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The SCOTUS Kennedy v. Bremerton Decision: Where Friday Night Lights And Freedom Of Religion Converge – Education

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In its Kennedy v. Bremerton School District decision,
the U.S. Supreme Court has made a bold move that seems to disregard
established precedent and leaves school district administrators and
boards puzzled as to how best to handle freedom of religion in the
school setting.

Joseph Kennedy, a storied football coach at Bremerton High
School in Washington State, knelt at the 50-yard line after each
football game. Early on, students asked what he was doing.
According to the Court, Coach Kennedy “made it a practice to
give ‘thanks through prayer on the playing field.'”
Over time, some students asked to join him. He told them they could
do what they wished and many did. This persisted for some time.
Eventually concerns were raised, and Coach Kennedy was requested to
stop. The school offered various accommodations which would allow
him to continue his prayer but in a manner that did not appear to
coerce student athletes or seem to be school sponsored. Coach
Kennedy continued. Ultimately, he was placed on leave from coaching
and not rehired as a coach. He sued, claiming these actions
violated his First Amendment rights to freely exercise his
religious beliefs.

The questions presented to the Court were:

  1. Whether a public school employee who says a brief, quiet prayer
    by himself while at school and visible to students is engaged in
    government speech that lacks any First Amendment protection.

  2. Whether, assuming that such religious expression is private and
    protected by the Free Speech and Free Exercise Clauses, the
    Establishment Clause nevertheless compels public schools to
    prohibit it.1

SCOTUS ruled that the school violated Coach Kennedy’s free
expression rights when it did not rehire him. The Court seemed to
apply a somewhat different analysis reaching this conclusion.

For decades the court has applied what is known as the Lemon
Test to determine whether an action violates the establishment
clause of the First Amendment. The Court devised the constitutional
test in Lemon v. Kurtzman (403 US 602 (1971)), deciding
that in order for a statute to be constitutional, and not violate
the Establishment Clause, the law or public action must (1) have a
secular purpose, (2) not have promoting or inhibiting religion as
its primary effect, and (3) avoid an excessive entanglement with
religion. Over the years, the Lemon test has been applied to decide
whether public employee action is acceptable or if it violates the
Establishment Clause. Bright lines have never fully been drawn;
but, for example, reading a prayer before a public meeting is
deemed to violate the Lemon Test due to the appearance of promoting
a religion.

The Bremerton Court did not apply Lemon. It
insisted that Coach Kennedy had the right to pray on the field
immediately after games and that to restrict that practice,
including by not rehiring him, amounted to an invasion of his right
to the free exercise of his religion. This, it said, is grounded in
“‘historical practices and understandings.” In a
remarkable ruling, the Court noted: “The Constitution and
the best of our traditions counsel mutual respect and tolerance,
not censorship and suppression, for religious and nonreligious
views alike

Reaching its conclusion, the Court ignored the Lemon Test; and,
as the dissent pointed out, years of jurisprudence permitting
reasonable restrictions on proselytizing on school grounds. The
decision was unprecedented in light of most of the Establishment
Clause and Free Exercise cases.

Amicus on the case, including the ACLU, urged the Court that it
must not allow Coach Kennedy’s actions. It was clear he was
working when the post-game prayer occurred and thus the First
Amendment would not protect that activity. Additionally, as the
Court has ruled so frequently in the past, the school must act to
address concerns about the coach’s conduct on students and
others at school.

Does Bremerton give us new law? Possibly. But the
three-part Lemon test remains a valuable method of
analysis in this space, especially as this area of the law
continues to settle. In the meantime, schools should continue to
carefully advise and caution staff about infusing religion into
their actions while at school.



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