Supreme Court Holds School Violated the First Amendment When it Fired a High School Football Coach for Praying on the 50-Yard Line / Overrules Lemon v. Kurtzman

Supreme Court Holds School Violated the First Amendment When it Fired a High School Football Coach for Praying on the 50-Yard Line / Overrules Lemon v. Kurtzman

Yesterday, the Supreme Court held in a 6-3 decision in Kennedy v. Bremerton School District that a school district violated the First Amendment’s Free Speech and Free Exercise Clauses when it terminated the employment of a high school football coach for refusing to curtail his practice of praying at the 50-yard line after football games with students.  Significantly, the majority also overruled Lemon v. Kurtzman and the Establishment Clause’s “endorsement test,” though it does so without explicitly saying so (calling it “long ago abandoned”).  This case is important for local governments to understand the limits of the Establishment Clause and is one that you all should read and then help educate your clients about so as to avoid Establishment Clause violations (particularly in combination with the Shurtleff v. Boston decision from earlier this term).

Though the majority and dissent disagree on the facts (just as the parties did), they do agree that Joseph Kennedy lost his job as an assistant football coach after engaging in prayer activity during high school football games. That’s about where their agreement ends.

The majority characterizes Mr. Kennedy as offering a “quiet prayer of thanks” at midfield and that when students asked if they could join him, he indicated it was a “free country.”  Eventually, most of the team would join the prayer and some of the opposing players might join as well.  Mr. Kennedy would also offer motivational speeches with prayer and would also pray in the locker game pre- and post-game with the players.  (The dissent includes pictures of what the prayer activity looked like and paints a different picture of the facts through those pictures).

The prayer activity went on for 7 years until someone informed the School District (the “District”), at which point the District, wary of an Establishment Clause violation, told Mr. Kennedy that the inspirational talks with prayer, prayer with students at mid-field, and the locker room prayer practice would all need to cease.  Mr. Kennedy stopped the locker room prayer and inspirational speeches involving prayer, but wished to continue praying at midfield and told the District he planned to continue his “private religious expression” at mid-field.  The District offered alternative accommodations as it did not want him praying with students, but Mr. Kennedy insisted on praying at mid-field.  At three subsequent games, Mr. Kennedy prayed at mid-field with students and other members of the community joining him (and as the dissent pointed out, Mr. Kennedy had informed the media about his prayer activity which created significant challenges for the school, including the community members rushing the field and knocking over other students in the process and a Satanist group requesting access to the field for religious purposes). The District ultimately did not renew Mr. Kennedy’s contract, citing concerns of the Establishment Clause and his continued prayer activity while on duty instead of supervising students.

Mr. Kennedy sued, claiming a Free Exercise and Free Speech violation.  The District responded that his speech was not private speech under Garcetti and Pickering, and it therefore could subject him to discipline.  The District also argued that it was risking an Establishment Clause violation if it did not terminate his contract given his refusal to curtail his prayer activity on the field with students.

In a 6-3 decision divided on ideological lines authored by Justice Gorsuch, the Supreme Court concluded that the District violated both the Free Speech and Free Exercise Clauses of the First Amendment when it terminated Mr. Kennedy’s contract based on his religious conduct / speech.  In dismissing the employer’s Establishment Clause concerns, the majority explained “in no world may a government entity’s concerns about phantom constitutional violations justify actual violations of an individual’s First Amendment rights.”

In terms of the Free Exercise claim, the Court explained that in “forbidding Mr. Kennedy’s brief prayer, the District failed to act pursuant to a neutral and generally applicable rule.”  Here, the rule was not generally applicable given that the religious conduct was prohibited while secular conduct that was comparable was not subject to discipline, including staff being allowed to make personal calls and visit with friends after the game.  Nor was the rule neutral, given that it was specifically singling out religious conduct as the prohibited practice.  Thus, the District’s decision was subject to strict scrutiny, a standard which it could not survive (discussed more fully below).

As this is a public employment case, the Court analyzed the Free Speech claim under Pickering v. Board of Ed. and Garcetti v. Ceballos.  The first step in the inquiry is to determine the nature of the speech at issue and whether the public employee is speaking “pursuant to [his or her] official duties.”  If so, an employer is generally allowed to control and discipline the public employee and the speech at issue is generally not protected under the Free Speech clause as it is considered the government’s own speech.

The Court’s focus was whether Mr. Kennedy’s prayer occurred as a private citizen or whether it was government speech attributable to the District. The Court concluded Mr. Kennedy was speaking as a private citizen when he was engaged in the prayer that resulted in his suspension and that “he was not engaged in speech ‘ordinarily within the scope’ of his duties as a coach.”  On this point, the Court underscored: “He did not speak pursuant to government policy. He was not seeking to convey a government-created message. He was not instructing players, discussing strategy, encouraging better on-field performance, or engaged in any other speech the District paid him to produce as a coach.”  The fact that coaches were free to engage in other secular conduct during this time including checking their phones underscored that this was private speech. The Court rejected an overly broad reading of Garcetti, explaining employers cannot utilize “excessively broad job description[s] and treat “everything [employees] say in the workplace as government speech subject to government control.”

Once the majority concluded that Mr. Kennedy was speaking as a private citizen, it indicated that strict scrutiny would apply (citing Reed v. Town of Gilbert, because this would be a content-based regulation of speech), again, a standard that the District could not meet.  Though the Court noted that the District also could not meet a more lenient standard under Pickering-Garcetti.

The District argued that it could meet the strict scrutiny standard under both the Free Speech and Free Exercise Clause because it had a compelling interest in avoiding an Establishment Clause violation, relying on Lemon’s “reasonable observer” standard. The majority flatly rejected this argument, explaining that the Free Speech, Free Exercise, and Establishment Clauses should be read as “complementary” and are not at “warring” purposes.

Moreover, the majority held that the Supreme Court “long ago abandoned Lemon and its endorsement test offshoot.”  The Court explained that “[a]n Establishment Clause violation does not automatically follow whenever a public school or other government entity “fail[s] to censor” private religious speech… Nor does the Clause ‘compel the government to purge from the public sphere’ anything an objective observer could reasonably infer endorses or ‘partakes of the religious.’”  Instead of Lemon, the majority explains that the Establishment Clause must be interpreted “by reference to historical practices and understandings,” which will allow courts to “faithfully reflect the understanding of the Founding Fathers.”  (This was the test endorsed in Town of Greece and American Legion in the context of legislative prayer and monuments).

Justice Sotomayor, joined by Justices Breyer and Kagan dissented.  As noted above, the dissent disagreed with the majority on not just the law, but the facts as well, arguing that the majority had “misconstrue[d] the facts.”  The dissent explains that:

Properly understood, this case is not about the limits on an individual’s ability to engage in private prayer at work. This case is about whether a school district is required to allow one of its employees to incorporate a public, communicative display of the employee’s personal religious beliefs into a school event, where that display is recognizable as part of a longstanding practice of the employee ministering religion to students as the public watched. A school district is not required to permit such conduct; in fact, the Establishment Clause prohibits it from doing so.

The dissent accuses the majority of “paying almost exclusive attention to the Free Exercise Clause’s protection for individual religious exercise while giving short shrift to the Establishment Clause’s prohibition on state establishment of religion.”  The dissent also accuses the majority of overruling Lemon and calling into question “decades of subsequent precedents.”  On this point, the dissent explains: “The Court now says for the first time that endorsement simply does not matter, and completely repudiates the test established in Lemon… Both of these moves are erroneous and, despite the Court’s assurances, novel.”

To read the full decision, click here.

IMLA joined an amicus brief filed by the State and Local Legal Center in this case given the implications for public employers. We are grateful to Michael Dreeben, Ephraim McDowell, & Jenya Godina of O’Melveny & Myers for drafting our amicus brief in this case, which you can read here.