Protecting Students From Religious Coercion After Kennedy v. Bremerton
Gabriela Hybel and Alex Bodaken
This article is part of our “Kennedy, Carson, and Dobbs: Law and Religion in Pressing Supreme Court Cases” series.
If you’d like to check out other articles in this series, click here.
2021-2022 was a blockbuster Supreme Court term for opponents of church-state separation. In the course of a few short months, the Court stripped women of their right to an abortion, required Maine to fund private religious schools, and ordered Boston to fly a Christian flag at its City Hall.
But another case may represent the greatest threat to church-state separation this country has seen in half a century. In Kennedy v. Bremerton School District, the Court adopted a football coach’s fictionalized narrative and overturned decades of foundational First Amendment law, ruling that a public school district must allow its coach to pray at midfield at the end of games. But the Court failed to provide helpful guidance for practitioners and school administrators operating in this brave new world.
As two of the lawyers who represented the Bremerton School District, we identify two questions left open in Kennedy, suggest how lawyers and courts should answer them, and offer suggestions to school districts who wish to protect their students from religious coercion without violating the law.
The parties in Kennedy vehemently disagreed about the basic facts of the case. In our view, Justice Sotomayor’s dissenting opinion and our Supreme Court brief accurately laid out what actually happened in Bremerton in 2015. But because Kennedy’s factual narrative formed the basis for the legal conclusions in Justice Gorsuch’s majority opinion, what follows largely tracks his version of the facts.
In 2008, during his first season as an assistant football coach at Bremerton High School, Joseph Kennedy began a practice of kneeling midfield after games and saying a short prayer. Eventually, Kennedy’s practice grew: He began standing, surrounded by players, and incorporated prayers into his postgame speeches.
In September 2015, after learning about Kennedy’s prayer practice from an opposing coach, the District asked Kennedy to stop. Kennedy and his counsel responded by requesting that Kennedy be allowed to “continue” his prior practice of “post-game, personal prayer.”
For the next three games, Kennedy prayed midfield immediately after the postgame handshake line. While he was joined by students from the opposing team at one game, and members of the public at another, the Court emphasized that Kennedy “knelt alone” at the start of each of these prayers, and that most Bremerton players were singing the fight song while he prayed. After those games, the District placed Kennedy on administrative leave; he later sued the District. According to the Supreme Court’s majority opinion, Kennedy “voluntarily discontinued” his “postgame religious talks to students” and was disciplined “only for his decision to persist in praying quietly without his players after three games in October 2015.” Based on those facts, by a 6-3 vote, the Court reversed the Ninth Circuit and found that Kennedy was entitled to summary judgment on his claims that the District had violated his free-speech and free-exercise rights.
The ruling leaves open many difficult questions for school districts, attorneys, and courts considering the constitutionality of school prayer. We attempt to answer two of those questions here.
When Can Public Employers Regulate Their Employees’ Religious Speech?
Regulating government employee speech raises thorny constitutional questions. On the one hand, government employees are citizens who have a right to be free from onerous government speech restrictions. But they are also employees and public servants, and when they disrupt their workplace or interfere with the government’s responsibility to the public, the broader community suffers. Like all employers, the government must be able to manage its workforce and ensure the proper functioning of its operations.
In light of these competing interests, the Supreme Court adopted the Garcetti–Pickering test. Under Garcetti-Pickering, when a government employee is on the job and performing her duties, her speech is the government’s and is subject to regulation. That means that a math teacher can be required to teach PEMDAS during algebra class and a football coach can be prohibited from talking about astrology while instructing players. But when a government employee engages in private speech on a matter of public concern — for example, when the same algebra teacher tweets about the importance of STEM education — her employer can regulate her speech only if the government’s interest in doing so outweighs her interest in speaking.
We argued that religious speech should be treated like all other protected speech, and urged the Court to adopt the same test in Kennedy as it does in other government speech cases. That means that even if Kennedy’s speech was private (a major “if”), the District’s restriction of his midfield prayers should have been subject to Garcetti-Pickering balancing. In other words, the District could regulate Kennedy’s midfield prayers so long as it showed that its interest in regulating that speech outweighed Kennedy’s interest in speaking.
But Kennedy asked the Court to adopt a stricter test whenever the employee’s speech is religious. Specifically, he asked for strict scrutiny: A government employer would be constitutionally permitted to regulate an employee’s religious speech only if the restriction is narrowly tailored to serve a compelling interest.
The Court dodged the question, holding that the District failed to satisfy the requirements of either Garcetti-Pickering or strict scrutiny, and leaving litigators and trial judges to determine the appropriate standard in future cases. In our view, Garcetti-Pickering remains the correct approach. Not only is it administrable — indeed, employers and courts have been applying it for decades — but it is also necessary to protect whatever separation of church and state remains after the Court’s 2021-22 term.
Take a recent case as an example. In Clay v. Greendale Sch. Dist., a public-school teacher was terminated for making homophobic comments to his students. The teacher sued, arguing that his speech was religiously motivated and that the school had discriminated against him based on his faith. But the school explained that it didn’t even know the teacher was religious. If courts adopt Kennedy’s requested approach and begin imposing a separate and stricter test each time a government employer regulates an employee’s religious speech, courts and public employers will face a maze of constitutional confusion. Must administrators go searching to determine whether a religious motivation underlies an employee’s speech? Does the religious motivation need to be explicit? How can government employers ascertain the sincerity of an asserted religious belief? These questions would force already-overworked school officials to investigate the religious beliefs of staff members before making disciplinary decisions.
But aside from these administrability challenges, it makes no constitutional sense to create enhanced protections for religious speech, but not for other highly protected speech (which is analyzed under Garcetti-Pickering), including political speech. Such a test would mandate special treatment for religiously motivated messages, and therefore, for religious people. A coach that kneels in protest of police violence against Black people would have stronger constitutional protections if his practice is motivated by his faith rather than a secular concern for his players’ survival. A teacher barred from wearing a “No human is illegal” pin could bring a stronger legal claim if her speech is grounded in Jesus’ teachings than if it originates in concern for her own undocumented family. That sort of favoritism is inconsistent with our Constitution. Indeed, while religious speech must not be disfavored, neither may it receive uniquely preferred status.
This religious favoritism would also impose the greatest harm on children and marginalized populations who most rely on government services. A coach or teacher is often one of the most influential adults in a young person’s life; a child-protective agent might determine whether a poor mother maintains custody of her children. It is essential that government employers have the latitude to ensure that each employee approaches the public with the care, equity, and civility required for public service. But Kennedy’s strict-scrutiny test would make that oversight near impossible anytime an employee asserts a religious justification for her speech. And it would allow religious messages — and religious coercion — to seep into public schools, courthouses, public-benefits offices, and other government services nationwide.
What Constitutes an Establishment Clause Violation in the Public-School Prayer Context?
The Kennedy opinion also opened significant holes in the Court’s Establishment Clause jurisprudence. That Clause forbids the government — including government employees — from making laws “respecting an establishment of religion.” But what constitutes an Establishment Clause violation? For decades, courts and government employers had relied on the “Lemon” and “endorsement” tests to answer this question. But Kennedy overruled those tests, instead instructing that Establishment Clause violations must be determined “by reference to historical practices and understandings,” including the “understandings of the founding fathers.” The Court further explained that “impermissible coercion” to participate in a religious practice violates the Clause.
To make sense of the Clause’s history, scholars and courts have looked to Professor Michael McConnell’s influential article arguing that established religions at the founding “shared six characteristics: (1) government control over the doctrine and personnel of the established church; (2) mandatory attendance in the established church; (3) government financial support of the established church; (4) restrictions on worship in dissenting churches; (5) restrictions on political participation by dissenters; and (6) use of the established church to carry out civil functions.” On McConnell’s view, only religious practices that share one or more of these elements can be an Establishment Clause violation.
But even if one accepts McConnell’s controversial historical analysis, how his identified characteristics map onto real-world situations is far from obvious. Consider McConnell’s second attribute: Mandatory church attendance. A rigid analogy to this characteristic would mean that only government-mandated religious practice violates the Establishment Clause. Accordingly, the government could pressure people to engage in a specific religion without violating the Clause, so long as such religious participation was not technically mandatory.
This interpretation, we believe, is dangerous and wrong. It would subject citizens to the very government intrusion on their religious freedoms that the founding generation feared. After all, many of the Founders knew the “dangers of a union of Church and State . . . from bitter personal experience,” and sought to ensure that the Government would not “be used to control, support, or influence” religious exercise in any way. These separationist principles are inconsistent with allowing government employees to incentivize citizens into any particular religious belief or practice, even if nothing is made mandatory.
Fortunately, there is good reason to believe that those investigating the historical origins of the Establishment Clause can and will reject such an unbending application of the historical principles to modern life. Using history to guide constitutional interpretation does not mean that only those practices that were forbidden in the 1700s are unconstitutional today. If a present-day activity is sufficiently analogous to one prohibited at the Founding, and similarly violates the principle underlying a constitutional provision, then it too is unconstitutional. In other words, as the Supreme Court has put it, history-based analogical reasoning depends on identifying a “historical analogue, not a historical twin” to modern practices.
In our view, when a teacher or coach encourages a student to pray — even if prayer is not made mandatory — that violates the Establishment Clause because it is analogously coercive to founding-era mandatory church attendance. Public schools present a remarkably coercive environment: The state enforces attendance, and students — whose brains have not fully developed — are “much more vulnerable than adults to outside influences,” including prayer, that might “manipulat[e] the reward structures they face.” So even if a teacher or coach does not explicitly require a student to participate in prayer, that student will likely understand the invitation as a de facto mandate regardless of their own religious beliefs.
The often-intense public pressure to conform that is a hallmark of school-prayer cases, moreover, only adds to this coercion. In one case, a court had to curb serious “intimidation [and] harassment” aimed at those objecting to prayer at football games; in another, there were vile threats directed at Jewish students suspected of complaining about adult-led prayers, including “Heil Hitla!!!” and “just suck it up if u don’t fu*king like whats going on in america then GO THE FU*K BACK TO YOUR COUNTRY AND STAY THERE AND PRAY.” Students subjected to school-sponsored prayer face a choice between participating in the prayer, against their own consciences, or potentially subjecting themselves to this or similar abuse.
Our position on adult-led prayer reflects the longstanding consensus that public-school teachers and coaches may not ask or encourage students to pray, and we are optimistic that a wide range of scholars will continue to support that view. McConnell, for instance, has written that “pressuring children to say” a prayer may violate the Clause (even, presumably, if the prayer is not mandated). Both he and others who support a history-focused approach to Establishment Clause law, moreover, have argued that it is largely consistent with the Court’s previous cases holding that non-mandatory religious coercion is sometimes unconstitutional. For instance, the Court has struck down a school’s tradition of including a clerical member as part of an official graduation ceremony and invalidated a school’s practice of broadcasting student prayers over loudspeakers before football games. Neither of these cases involved mandatory prayer, yet Kennedy explicitly affirmed them while insisting that this case was distinct because there was no coercion present on the Bremerton football field.
In short, even using a history-focused test, much more than mandated prayer constitutes sufficient coercion for an Establishment Clause violation when it comes to public-school students. When a teacher, coach, or other government employee asks or encourages a student to participate in religious exercise, that violates the Establishment Clause — and a school district must act to stop it.
How Should School Districts React to Kennedy?
Despite the radical remaking of education law this term, one thing remains true: Schools have a duty to prioritize their students’ safety and wellbeing. There are several steps school districts can still take to protect their students from religious coercion.
First, the Supreme Court did not disrupt a government employer’s power to regulate government speech. That means that a school district can impose restrictions on what a teacher says when she explains the historic significance of To Kill a Mockingbird or the language a coach uses when he tells a quarterback how to run a play. In other words, a school district can still prohibit a teacher or coach from engaging in religious speech while she is performing her job of instructing students.
Second, many school districts may need to adapt their policies in response to the Kennedy ruling. These new employee speech policies should implement neutral guidelines to protect students from coercive prayer and to protect students from coercive political statements, inattentive staff, or chaotic events. For example, districts can cite the legitimate safety concerns associated with the end of football games to limit any personal conduct by district staff until students have exited the field. And where a public employee’s religious, political, or other controversial speech causes a disruption — such as when it invites students and fans to storm the field — schools should document and reference those disruptions when taking disciplinary action against the speaker. Nothing in the Court’s opinion bars districts from stepping in to protect student safety.
Third, the Establishment Clause still bars government actors from coercing the public into religious practice. In Kennedy, the Court held that because there was no evidence that the District’s actions were motivated by coercion concerns, the Establishment Clause did not justify the District’s actions. But where coercion concerns do exist, and where they are well documented, school districts can and should use them to justify any disciplinary measures taken in response to an employee’s religious speech. (As counsel for Bremerton School District, we are compelled to clarify that, in our view, there were coercion concerns regarding Kennedy’s practice that the District properly documented. But the Supreme Court disagreed.) Schools should ensure that students know that they have a right to practice their own religion, free from the coercive forces of any government employee, and that they can anonymously complain if any school staff member violates that right.
Those who seek to impose religious supremacy may try to use Kennedy to return prayer to public schools. But schools, lawyers, and courts who care about students and the religious freedom of everyone retain ample tools to reduce religious coercion at school.♦
Gabi Hybel is a Madison Legal Fellow at Americans United for Separation of Church and State, where she represents employees challenging workplace discrimination, school districts seeking to protect students from religious coercion, and families fighting religious discrimination in state foster-care systems. Gabi has previous experience as a communications director, a labor organizer, and an elementary school teacher. She can be found on Twitter @gabihybel.
Alex Bodaken is former counsel for Bremerton School District, and a former Steven Gey Constitutional Fellow at Americans United for Separation of Church and State.
Hybel, Gabi, and Alex Bodaken. “Protecting Students From Religious Coercion After Kennedy v. Bremerton.” Canopy Forum, November 2, 2022. https://canopyforum.org/2022/11/2/protecting-students-from-religious-coercion-after-kennedy-v-bremerton/