Background
An issue that has recently again come into focus has been the role of prayer in a public-school venue. Most specifically, last term, the Supreme Court rejected a writ of certiorari to hear the case of a coach at a public high school that was fired after leading his team in prayer on the field after their football game. The Supreme Court, however, showed an openness to hear a case on it in future terms after some issues were resolved at the courts below. The coach argued that the anti-faith sentiment embedded in the school district’s policy restricted his free speech rights. The Supreme Court noted, however, in its denial of certiorari that the coach may have actionable claims under the Free Exercise Clause and Title VII of the Civil Rights Act of 1964.[1]
This case could also present an opportunity for the Supreme Court to more clearly define the boundaries of Establishment Clause jurisprudence. The school district policy that was enforced likely reflects a firm stance against religious influence in public school settings that has carried through Supreme Court jurisprudence since the middle of the twentieth century. This has been discussed in-depth in prior posts.[2]
In the provided facts, Coach Joe Kennedy of a Washington state high school began a tradition of kneeling for a short prayer at the end of every game. Members of both teams would join and this would also promote a good spirit of sportsmanship among the young athletes. His local school district later suspended and fired him for violation of district policy.[3] The reasoning the school district used was:
“‘(F)irst, that petitioner, in praying on the field after the game, neglected his responsibility to supervise what his players were doing at that time and, second, that petitioner’s conduct would lead a reasonable observer to think that the district was endorsing religion because he had prayed while “on the field, under the game lights, in BHS-logoed attire, in front of an audience of event attendees.”’[4]
Supreme Court View
When the Supreme Court rejected the coach’s case it focused on two main factual points considered by the school district. There was a question of whether the coach was neglecting his duty of supervising the players on the field following the game and whether his actions constituted an endorsement of religion on the part of the school district.[5] Justice Samuel Alito, in explaining the Court’s reasoning stated that if the primary reason for his employment discharge was the neglect issue raised in point 1 of the district’s decision, this would negatively impact the free speech argument presented. In contrast, Justice Alito stated that if the facts supported point 2, coach would have further support for his free speech claim if it was established that he was no longer on duty following the game or if the work day had not finished, whether this time could still be considered private time. This could plausibly give him freedom to proceed with the reflection. Justice Alito noted overall that this factual inquiry was unclear, thus the Supreme Court declined to take the case. Justice Alito was especially critical of the 9th Circuit and District Court for not clarifying these factual issues.
In regards to the 9th Circuit, Justice Alito was skeptical of its application of the Supreme Court’s prior precedent in Garcetti v. Ceballos, 547 U. S. 410 (2006). In short, the Supreme Court there held that a public official’s speech can be protected when it is engaged as a private citizen and not expressed as part of the official’s public duties. According to Justice Alito, however, the 9th Circuit, misapplied this decision to the present facts and he stated under the 9th Circuit’s interpretation:
“(P)ublic school teachers and coaches may be fired if they engage in any expression that the school does not like while they are on duty, and the Ninth Circuit appears to regard teachers and coaches as being on duty at all times from the moment they report for work to the moment they depart, provided that they are within the eyesight of students”[6]
The 9th Circuit had found that Coach Kennedy’s actions in leading the prayer were undertaken while he acted in his role as mentor and model of sportsmanship to the students. Those descriptions helped constitute part of his role as a football coach. It did not matter that the game had ended, he was still acting in his teaching and leadership role to the student athletes. The faith incorporation that was included in his demonstration of speech as a salaried employee of the district was problematic to the 9th Circuit. The court held:
“‘While we “recognize the important role that public worship plays in many communities, as well as the sincere desire to include public prayer as a part of [these] occasions,” such activity can promote disunity along religious lines, and risks alienating valued community members from an environment that must be open and welcoming to all. Id. at 307. That is why the “preservation and transmission of religious beliefs and worship is a responsibility and a choice committed to the private sphere, which itself is promised freedom to pursue that mission.” Lee v. Weisman, 505 U.S. 577, 589 (1992).”‘[7]
The Supreme Court should take the opportunity to review this matter again when the factual issues are clarified. It should be noted, however, that if the determining issue is faith and not the negligence standard, this presents a chance for the Supreme Court to correct its prior decisions.
These are some issues that should be considered. It should be encouraged that the coach proceeds with a Free Exercise claim. As Justice Alito discussed in his opinion, the precedent of Employment Division v. Smith[8] lingers with a detrimental impact on Free Exercise claims, however, the court should re-evaluate its precedential value with these facts. In short, the court there held that an individual’s religious beliefs do not excuse him from compliance with an otherwise neutral law of general applicability. There the facts considered counselor in a drug rehab program having access to peyote, a form of illegal drug used in Native American communities. The counselor was fired for using the banned substance and denied unemployment benefits.
Here, at its very core the policy forbidding the endorsement of religion by a public employee of the school district could be construed to show animus towards religion. Classifying this policy as a neutral law of general applicability could be called into question. The Constitution should not be interpreted to reflect a complete detachment of faith from the public forum. The coach was freely exercising his faith to take a moment to pray and reflect after the game. He was not compelling students and other coaches to convert to Christianity or Islam or Judaism. He was simply offering a reflection. A line should be drawn when considering this issue. It also has been understood that other teams and players chose to join him in this function, there was no mandate. They appreciated how this was a model of healthy sportsmanship for the young players. If players or other coaches chose not to join that was their prerogative. The issue would be different if a player or assistant coach was found to be detrimentally impacted and punished for not participating in the prayer or was compelled. This would then invoke Establishment Clause concerns. That is not present here, the Supreme Court therefore has an opportunity to reform law and religion jurisprudence with this case.
Conclusion and Proposed Solutions
Overall, this case presents the opportunity to re-visit Free Exercise and Establishment Clause jurisprudence. These could be better legal alternatives than relying on the free speech claim.
From the Free Exercise layer, this policy should not be considered a neutral law of general applicability. Even if we apply the Smith precedent here, religion is clearly a target of the school district policy and the district is fearful of any appearance of endorsement of religion. Coach Kennedy was within his First Amendment rights to hold a prayerful reflection on his own accord following the game. It is incredibly difficult to assess the appropriateness of regulations banning even the slightest endorsement of religion due to an alleged unsettling sentiment within the community when compared to known access to illegal drugs that may tangibly and directly threaten the physical environment and individuals in the surrounding community. I would encourage the Supreme Court to reform the Smith standard and create a test to draw a clear distinction on this basis.
From the Establishment Clause layer, the school district policy itself, in building off past wrongfully decided Supreme Court precedents from the mid-twentieth century, provides a false separation of church and state. Endorsing the presence of religion in a public governmental forum is not incoherent with the original intent of the Establishment Clause. As discussed in prior posts, the Establishment Clause could be interpreted to protect against a state-run church that would deny freedom of religion to individual communities of faith. It also was a safeguard against a theocracy. Many states had allowed up until the mid-twentieth century, prayer in school or regularly scheduled bible classes in public school. This was to enrich the education of the students. The key focus in an Establishment Clause legal inquiry should be the role of compulsion and what constitutes it. As discussed above, a new test could consider if individuals were forced to participate in religious activity that was endorsed or supported by the state or representative of the state. A key element of the facts here was that the coach performed this prayerful exercise on his own will with players and coaches choosing to join him. There was no demand to be Christian or punishment if one chooses not to participate. A new test considering these points would be more consistent with the original intent of the Establishment Clause.
[1] 586 U. S. ____ (2019).
[2] https://constitutionalistpubliusinexile.com/2019/06/20/the-constitutional-sins-of-brennan/
[3] https://www.foxnews.com/faith-values/football-coach-fired-prayer-school
[4] 586 U. S. ____ (2019).
[5] 586 U. S. ____ (2019).
[6] Id.
[7] 869 F. 3d 813 (CA9 2017)
[8] 494 U.S. 872
Publius in Exile 