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On Monday, the U.S. Supreme Court held that a public high school football coach’s rights under the Free Exercise and Free Speech Clauses of the First Amendment were violated when his employer, Bremerton School District (Wash.), punished him for kneeling at the 50-yard line and praying—often, though not always, with players—for about 15 to 30 seconds after the team’s games. During the prayer, Joseph Kennedy, who was suspended as an assistant coach in 2015 and eventually lost his job, would highlight his Christian faith, express gratitude for God protecting players’ health and offer words of inspiration.
The 6-3 decision is a victory for advocates of religious expression in public education. Coaches at public high schools who wish to pray with players can rely on it, provided their method of prayer comports with the permissible circumstances outlined by the Court. Critics, however, contend the decision will muddle the separation of church and state in public education and accompanying sports.
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As previously detailed by Sportico, school district officials objected to Kennedy’s prayer since they worried it could be perceived as a school endorsement of his religion. They also suspected players might have felt implicit pressure to join Kennedy, thereby undermining those players’ religious liberties. Players, the officials surmised, didn’t want to get on the wrong side of the coach, who makes playing time decisions and can impact college recruiting.
Writing for the majority, Justice Neil Gorsuch noted how Kennedy never told students they must or should participate in his prayer. Gorsuch further highlighted that Kennedy’s prayer attracted no complaints for more than seven years. The school’s disciplinary action only came after an employee of another school had spoken with Bremerton’s principal and offered praise for Kennedy.
Gorsuch also found it problematic that the school district issued Kennedy a negative performance evaluation, claiming he “failed to supervise student-athletes after games.” Meanwhile, Gorsuch wrote, “the district permitted other members of the coaching staff to forgo supervising students briefly after the game to do things like visit with friends or take personal phone calls.” He concluded the purported post-game obligation of Kennedy to “supervise” players was neither fair nor neutral, and instead it constituted “a bespoke requirement specifically addressed to Mr. Kennedy’s religious exercise.”
Gorsuch also drew attention to the timing of the prayer, which he concluded was private speech, not speech within the scope of his employment. The school district, he noted, admitted that after games, “its coaching staff was free to engage in all manner of private speech.” After the game, Gorsuch explained, players would disperse. Some would head to the locker room, others would board the bus or sing the school fight song. When Kennedy prayed, then, it was neither intended nor understood to be an address to the team. As the majority of the Court saw it, Kennedy, “was not seeking to convey a government-created message” and 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.”
In a dissent joined by Justices Stephen Breyer and Elena Kagan, Justice Sonia Sotomayor criticized the majority for “giving short shrift to the Establishment Clause’s protection on state establishment of religion.” The district court and the U.S. Court of Appeals for the Ninth Circuit had sided with the school district, reasoning that the Establishment Clause, which is part of the First Amendment, bars public schools from endorsing or sponsoring religion. Sotomayor contended her conservative colleagues downplayed those lower courts’ conclusions, instead advocating their preferred ideological viewpoint.
Of particular concern to Sotomayor was her unease about student pressures. She insisted the majority “failed to acknowledge the unique pressures faced by students when participating in school-sponsored activities.” To that end, Sotomayor opined the Court had previously recognized that “students look up to their teachers and coaches as role models and seek their approval.” The majority, Sotomayor concluded, was not especially interested in that dynamic.
Sotomayor also drew attention to the heightened pressure points for athletes, particularly those with ambitions to play in college or even the pros. “Players,” she wrote, “recognize that gaining the coach’s approval may pay dividends small and large, from extra playing time to a stronger letter of recommendation to additional support in college athletic recruiting.”
As the three dissenting justices see it, the decision “does a disservice to schools and the young citizens they serve, as well as to our Nation’s longstanding commitment to the separation of church and state.”
The decision is a victory for Kennedy’s attorney, Paul Clement, who served as U.S. Solicitor General under President George W. Bush. Clement has been connected to other noteworthy sports litigations; he successfully argued on behalf of the NFL in Tom Brady’s Deflategate case.
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