On June 27, 2022, the U.S. Supreme Court ruled that a football coach could pray on the football field at the conclusion of the football game in which he was one of the coaches. In Kennedy v. Bremerton School District, the court determined that the school district violated the coach’s First Amendment rights.

In the 6-3 decision, the court said that the Free Exercise and Free Speech Clauses of the First Amendment protect an individual engaging in a personal religious observance from government reprisal; the Constitution neither mandates nor permits the government to suppress such religious expression.

Kennedy was hired as the football coach in 2008. According to the court, he had prayed on the football field for several years, but it was not until 2015 that the district became aware of this activity after the games.  The district communicated with Kennedy on several occasions concerned about the effect on students who may feel compelled to join the coach in his post-game prayers. After many failed attempts to accommodate Kennedy’s prayer activities, the district did not renew his contract for the following football season.

Lemon test discarded.  In reaching the conclusion that the district had violated Kennedy’s First Amendment rights, the court overturned Lemon v. Kurtzman. This 1971 U.S. Supreme Court decision established a three-prong test for determining whether a government-sponsored activity violated the free exercise clause of the First Amendment. That test is whether it has a legitimate secular purpose, does not have the primary effect of either advancing or inhibiting religion, and does not result in an excessive entanglement of government and religion. The Bremerton School district was concerned that by permitting the coach to pray immediately after the game on the field while students were still present, it would give the impression that the district endorsed his religious activity, as he was still “on-duty” as a district employee during this time.  However, the Kennedy court specifically rejected the Lemon test, saying that courts instead, “should determine whether a law or practice violates the establishment clause by looking at history and the understanding of the drafters of the Constitution.” The court said that the district’s actions “rested on a mistaken view that it had a duty to ferret out and suppress religious observances even as it allows comparable secular speech” and that “The Constitution neither mandates nor tolerates that kind of discrimination.”

The court viewed Kennedy’s prayers as private speech that he engaged in during this brief post-game period when other coaches were engaged in personal activities like “checking sports scores on their phones to greeting friends and family in the stands.” The court also determined that the district’s concern over the coercion of students was unfounded as the court could find no concrete evidence of coercion. The court reasoned that just because the coach may have been seen or heard by students, is not enough to establish a claim of coercion.  “[L]earning how to tolerate speech or prayer of all kinds is ‘part of learning how to live in a pluralistic society,’ a trait of character essential to ‘a tolerant citizenry.’ This Court has long recognized as well that ‘secondary school students are mature enough . . . to understand that a school does not endorse,’ let alone coerce them to participate in, ‘speech that it merely permits on a nondiscriminatory basis.’”

In sum, the court concluded that the district had violated Kennedy’s First Amendment rights because he was engaging in private speech during time when other coaches were also engaged in private, albeit secular, speech. Because the court concluded that the coach’s prayer activities were private speech, the nonrenewal of the coach was religious discrimination and the coach was entitled to be rehired.

For further information about this case, boards of education may contact the NJSBA Legal and Labor Relations Department at 609-278-5279 or their board attorney.