Good afternoon, and welcome to the first ever “guest columnist” edition of the Oldest Blog. As many of you know, the Supreme Court issued its decision in Kennedy v. Bremerton School District yesterday.  I’ve been a bit busy, so Emily Forswall, who is clerking with us this summer, “volunteered” (we’ll call it that) to step in and write a summary of the case (with some tinkering–pun intended–from me).  Emily focused on the majority opinion, so I will post something later this week that addresses the dissent and my thoughts on the case overall.

Brief Summary of the Opinion 

On Monday the Supreme Court in Kennedy v. Bremerton School District held that the Bremerton School District violated the Constitution when it disciplined an assistant football coach after he publicly engaged in prayer on the football field immediately after several games.  In a 6-3 decision, authored by Justice Neil Gorsuch, the Supreme Court held that Kennedy’s actions were protected by both the Free Exercise and the Free Speech clauses of the Constitution, and that the Establishment Clause did not compel (or even allow) the school district to restrict Kennedy’s actions.  In reaching this conclusion, the Court dismissed Lemon v. Kurtzman as “long ago abandoned” and directed lower courts to draw the “line … between the permissible and the impermissible … to accord with history and faithfully reflect the understanding of the Founding Fathers.”  The Court acknowledged that governmental action amounting to religious “coercion … was among the foremost hallmarks … the framers sought to prohibit,” but did not find Kennedy’s actions coercive.  Going forward, school districts will need to analyze the permissibility of individual employees’ religious activities through the lens of “history” and the “understanding of the Founding Fathers,” while weighing the activity’s potentially coercive effect.  What that will look like on the ground is unclear.

Background

In 2015, Joseph Kennedy, a high school football assistant coach, was disciplined after he insisted on kneeling and praying on the fifty-yard line immediately following football games, in full view of (and eventually joined by) students and parents.  Kennedy argued that the school district’s decision to place him on administrative leave was in direct violation of the Free Speech and Free Exercise clauses of the Constitution.  Conversely, the school district claimed that allowing Kennedy to openly conduct prayer immediately after the game was a violation of the Establishment Clause.  Noting that any “reasonable person” would assume that Kennedy’s after game prayer was endorsed by the school district and was thus constitutionally prohibited government recognition and endorsement of religion, the Ninth Circuit ruled in favor of the school district, and Kennedy appealed to the United States Supreme Court.

The Opinion

Writing for the majority, Justice Gorsuch first reviewed whether Kennedy’s actions were protected by either the Free Exercise clause or the Free Speech clause of the Constitution.  The Court went on to determine whether the school district’s responsive actions were mandated by the Constitution.

Free Exercise Claim: Courts have long held that a government entity places an impermissible burden on the free exercise of religion when it develops a policy that is not “neutral” or “generally applicable.”  Here the Court found that the District’s policies were neither “neutral” towards religion, nor were they “generally applicable” to all employees.  The District conceded that “its policies were ‘not neutral’ toward religion,” but argued that they were “generally applicable” to all employees.  The Supreme Court disagreed, noting that other coaches were permitted a minor respite from their supervisory roles during the same time period (i.e. right after the football games).  Thus, the District’s claim that Kennedy “failed to supervise student-athletes after games” was not considered to be evidence of general applicability.  Rather, the Court found that it was evidence that they were singling out his right to practice his sincerely held religious beliefs.

Free Speech Claim: Following the analysis set out in cases like Garcetti v. Ceballos, the Court acknowledged the threshold question of whether Kennedy was speaking as a public employee or a private citizen.  The majority (absent Justice Kavanaugh, who did not join this part of the majority opinion) held that Kennedy’s prayers were private speech and thus warranted government protection.  The court noted that during this time Kennedy was free to speak with family members, use his cell phone, and engage with the opposing team, and was thus not actively fulfilling his “responsibilities as a public employee.” Importantly, the court noted that while the coach’s job description contained responsibilities that included modelling good behavior and helping to “create … good human beings,” any reliance on an “excessively broad job description” to support the conclusion that the coach was acting in his official capacity would contravene the limitation of Garcetti.  Emphasizing that other employees during this same time period were permitted to engage in any number of secular activities, limits on Kennedy’s ability to pray at the same time would “treat religious expression as second-class speech and eviscerate this Court’s repeated promise that teachers do not ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate’.” (quoting Tinker v. Des Moines Independent Community School District).      

Establishment Clause Defense: In determining whether the school district had an obligation under the Establishment Clause to restrict Kennedy’s actions, the court minimized the potential conflict between the Free Exercise and Establishment clauses.  Rather, the Court sought to emphasize the “complementary” motivation behind the creation of the First Amendment — “the framers’ distrust of government attempts to regulate religion and suppress dissent.”  Relying on prior precedent,  the court noted that the failure of a public school or other government entity to censor private religious speech does not automatically amount to an Establishment Clause violation (citing Board of Education of Westside Community Schools v. Mergens).  The court further reasoned that the Establishment Clause does not “compel the government to purge from the public sphere” anything that could be perceived as endorsing or “partake[ing] of the religious” (citing Van Orden v. Perry). In  rejecting the school district’s Establishment Clause defense, the court flatly dismissed as “long ago abandoned” the test from Lemon v. Kurtzman and its progeny, which held that the Establishment Clause is implicated if a “reasonable person” would perceive that the government entity is endorsing the religion or religious behavior.

After setting aside Lemon, the Court determined that the correct test was that established in Town of Greece v. Galloway (and related cases), which require that courts interpret the Establishment Clause by “‘reference to historical practices and understandings,’” drawing “‘the line’ … between the permissible and the impermissible [in] ‘accor[d] with history and faithfully reflec[ting] the understanding of the Founding Fathers.’”  But after it firmly dismissed the Lemon test, the Court never really applies its “correct” test to the facts of Kennedy.  Instead, the Court simply stated that the Ninth Circuit was wrong to have relied on Lemon, and that it should have looked instead to the reasoning in Town of Greece and similar cases, such as American Legion v. American Humanist Association, Torcaso v. Watkins, and McGowan v. Maryland.

Coercion Defense: The Court then considered the District’s final argument: that Kennedy’s actions violated the Establishment Cause because they were coercive towards students.  Although the Court acknowledged that coercive religious behavior by a government entity “was among the foremost hallmarks … the framers sought to prohibit,” the Court found that Kennedy’s actions were not coercive.  Relying on Kennedy’s assertion that participation was entirely voluntary and that none of his players participated in the three prayer sessions that the Court deemed relevant, the Court could not see how his actions could be perceived as “mak[ing] a religious observance compulsory.”  Furthermore, the Court argued that “learning how to tolerate speech or prayer of all kinds is ‘part of learning how to live in a pluralistic society.’”

Final Thoughts: While this opinion clearly establishes that Lemon is “out” and “historical framework” is “in”, many questions are left unanswered.  Free compulsory public education was not part of the “understanding of the Founding Fathers”, and it is therefore unclear how courts will filter the actions of school districts “through that lens”.  The Court also declined to answer whether a school district’s actions should be evaluated under the more lax “material disruption” standard set out in Tinker, or be subject to strict scrutiny and require a showing that its actions were narrowly tailored to address a compelling government interest.

What seems clear — at least for now — is that the Court has not cast doubt on cases banning clergy prayer at graduations (Lee v. Weisman) or banning prayer over a loudspeaker at sporting events (Santa Fe ISD v. Doe).  But what it has done is dramatically expanded the limits of Free Exercise and Free Speech protections for individuals.  What that will mean for school districts going forward is unclear.