Livin' On A Prayer: Supreme Court To Hear Case Of Football Coach Who Lost Job For Praying

• Published date: 31 January 2022
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Constitutional & Administrative Law, Trials & Appeals & Compensation
• Law Firm: Husch Blackwell LLP
• Author: John W. Borkowski, Aleksandra O. Rushing and Claire Hawley

On January 14, 2022, the Supreme Court granted certiorari to determine whether a school district was within its rights in telling a coach not to continue to kneel and pray at the 50-yard line after his team's games.

Background

From 2008 to 2015, Joseph Kennedy worked as an assistant varsity football coach for a public school, Bremerton High School. As a devout Christian, Kennedy had a practice of kneeling at mid-field to pray immediately after each game. These prayers were usually silent and lasted 30 seconds, but they were in full view of players and spectators. Over time, players began joining in and the prayers evolved into short motivational speeches with religious overtones, delivered at the fifty-yard line while football players knelt around the coach. At least one player privately complained about participating in the prayers but feared he would lose playing time if he did not join. Bremerton School District's ("the District") policies for religious-related activities and practices did not explicitly address religious expression by on-duty staff, but the District twice directed Kennedy to avoid demonstrative religious activity when in view of students. The coach posted on Facebook that he "might have been fired for praying" and decried the District's directives in local and national media appearances. When the coach continued his post-game prayers, the District placed him on paid administrative leave. After Kennedy's contract expired at the end of the 2015 season, he chose not to reapply.

The coach sued the District, alleging that it had violated his rights under the Free Speech and Free Exercise Clauses of the First Amendment.

Free Speech and Free Exercise Clauses

This case places two bedrock constitutional principles on a collision course. The Free Speech and Free Exercise Clauses protect private religious speech. The Establishment Clause prohibits public schools from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred. In Garcetti v. Ceballos, the United States Supreme Court addressed the perennial issue of when religious expression by a government employee is protected by the Free Speech and Free Exercise Clause or prohibited by the Establishment Clause: "[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer...