This case could have a significant impact on religious rights in public schools.
Joseph Kennedy, the coach, claimed that the Bremerton school district violated his constitutional rights of free exercise and freedom to speech. It punished him for not following its directives against “demonstrative religion activity” that is “readily observed” by students or the general public. Lawyers for the district argued that Kennedy was acting in the capacity of a public employee by praying on the field following football games. Players felt pressured to join Kennedy at the midfield for the post-game practice.
Monday’s nearly two-hour oral argument was filled with hypothetical scenarios. Justices questioned whether a school district can regulate employees’ conduct. Paul Clement, Kennedy’s attorney, cited the on-field actions by athletes such as Mo Salah and former NFL quarterback Tim Tebow.
Justice Stephen Breyer, one the court’s liberals, said that “this doesn’t seem to be a new problem.” “It just seems to be a line-drawing issue about the 50 yard line right after the game, when school said, “Don’t do that on the 50-yard-line. Do it 10 minutes later.”
Justice Amy Coney Barrett wanted to know when coaches can coerce players. She asked Clement about his youth group that had students come to his house.
Justice Clarence Thomas raised the possibility of a coach taking a knee during national anthem to protest racial injustices and asked Richard Katskee who represented the district, if the Bremerton Schools District would consider such an action a government speech.
Katskee stated, “That must include looking at the manner and the time and the location of the speech and how reasonable observers would perceive it, whether or not they would regard that as speech as government employees.” “So, in the hypothetical you just gave, that’s what it would look like, given that moment during national anthem at the center of field and making this public act, and public statement, that would make that regulable.”
With a 6-3 conservative majority, the Supreme Court has strengthened religious rights in recent decisions — even though some were biased — and a Kennedy ruling could herald a new era in which prayer is accepted more widely in public schools.
In 2008, Kennedy became a coach for Bremerton High School’s football team. He decided, after watching the film “Facing The Giants”, that after every game he would take a short prayer and walk to the 50 yard line.
Kennedy was an assistant coach at first. But players asked him if he could pray with them. His prayers soon evolved into motivational speeches with religious references.
Kennedy and the district both admit that he never asked Knights players to pray at midfield with him, but some parents claim their children were pressured into participating out of fear that they would lose playing time.
Kennedy continued to pray on the field for seven years, without incident. This changed when a coach from an opposing team told Bremerton High School’s Principal that Kennedy had asked his players to pray on the field after the game. He also said that he thought it was cool that the district would allow such activities.
The district launched an investigation to determine if Kennedy was following the policy of the school board on religious-related practices and activities. Later, a directive was issued prohibiting school employees on duty from participating in “demonstrative religion activity” that is “readily observed by” students and the public.
Kennedy continued to pray at the midfield after games and was placed on administrative leave for violating district directives. After the season, Bremerton’s athletic director recommended that Kennedy be terminated. He cited a failure in following district policy and failing to supervise student-athletes.
Kennedy decided not to reapply and sued the school district in federal Court in August 2016 claiming it violated his First Amendment rights.
Both the 9th U.S. District Court and the Circuit Court of Appeals rejected Kennedy’s First Amendment claims. Kennedy’s First Amendment claims were rejected by the Circuit Court of Appeals and 9th U.S.
Kennedy, who had suffered second-tier losses in lower courts, turned to the Supreme Court in September. The justices accepted Kennedy’s case in January. The Supreme Court is expected to make a decision by June’s end.
Clement stated to the high court that Kennedy’s kneeling at the 50 yard-mark after the last whistle was blown for a short prayer of thanksgiving was Kennedy’s expression and was “doubly covered” by the First Amendment’s freedom exercise and free speech clauses.
Thomas stated that Kennedy’s post-game prayers were not part of his job, because Kennedy was not aware he was engaging in such a practice.
Justice Sonia Sotomayor stated that Kennedy made extensive statements detailing his duties as a coach. He was required to stay for at least two hours after the game, and then escort players off the field. This suggested that Kennedy was in-duty while he prayed.
Justice Elena Kagan and she also spoke out about the unique relationship between players and coaches. Kennedy, they suggested, was putting “undue pressure” upon students to take part in his religious activity even though they might not wish to.
The court’s precedents focus on coercion on students and making students feel they must join religious activities they don’t want to be a part of, or that their parents do not want them to.
Katskee stated that coaches have “far greater power and influence” on their players, especially when it comes to post-game speeches.
“The situation here directly implicates power and authority of coach, which is amazing,” he stated. He explained that coaches decide who plays on the varsity team, who gets playing-time, and who gets recommendations for college scholarships. The coach must be supportive of your aspirations, so the students are aware.
Justice Brett Kavanaugh pointed out that there was a difference in a coach speaking to the team in the locker area and when the players are disbursing following a game. This meant that the players didn’t have to take part in Kennedy’s postgame prayers.
He said, “This wasn’t, you know? ‘Huddle up team’, which is a common coach phrase.” “That wasn’t this, right?”
Katskee later added that Kavanaugh had said: “It isn’t audible for all the players, so you’re relying upon, I think, being seen here. They’re not all there. They don’t need to be present. This is not a team event, in terms of a huddle or locker room situation. It’s important that it is visible. The question is: “How far can that go?”
Justice Samuel Alito repeatedly pressed Katskee about the permissibility of certain expressions by the school district. Katskee was asked to wave the Ukrainian flag at the 50 yard-line to protest Russia’s invasion or to kneel to express concern about climate change and racial injustice.
Kennedy’s dispute against the school district attracted a host of friend-of–the-court briefs. These included current and former NFL players as well as former coaches and athletes from collegiate athletics.
One brief was filed to support Kennedy, on behalf of Kirk Cousins, Minnesota Vikings quarterback, and Nick Foles, Chicago Bears quarterback, respectively. The current and former players invoked Kaepernick, though not by name, as they kneeled during the national anthem in protest of racial injustice.
They argued that the practice, similar to Kennedy’s prayers was controversial. “But, if Joe Kennedy had risen to protest racial injustices, it is almost certain that the district would not have claimed that his speech was somehow state-owned.” It would have been clear that it was private speech.
However, a group consisting of ex-professional football players and collegiate athletes backed the school district and warned that the relationship between coach and athlete in high schools athletics is unusual and “highly susceptible” to coercion. The Supreme Court should consider the case when it weighs it.
“The record shows that Mr. Kennedy’s actions had the potential to, and did lead players to feel compelled by Mr. Kennedy’s expressions of faith even though they would prefer not to,” said the ex-athletes, which included Chris Kluwe, a former Minnesota Vikings punter, and Obafemi Ayanbadejo, a former NFL running back.
