By Alana Rosen

Kennedy v. Bremerton School District, 597 U.S. ___ (2022).

In many states, high school football is seen almost as an unofficial religion. On June 27, 2022, the United States Supreme Court brought high school football and religion even closer by announcing its decision in favor of Mr. Joseph Kennedy in Kennedy v. Bremerton School District.

Mr. Kennedy worked as a football coach for Bremerton High School in Washington State from 2008 to 2015. Since his hiring in 2008, Mr. Kennedy engaged in a practice of “taking a knee at the fifty-yard line to say a quiet prayer at the end of football games for about 30-seconds.” Initially, Mr. Kennedy prayed on his own but, over time, some players asked whether they could pray alongside him. Some players invited opposing players to join too. Mr. Kennedy began giving motivational speeches, with a helmet held aloft, and would deliver speeches with “overtly religious references,” which Mr. Kennedy described as prayers, while players kneeled around him. On September 17, 2015, after learning of the post-game prayers, the Bremerton School District (District) asked Mr. Kennedy to stop the practice of incorporating religious references or prayer in his post-game motivational talks on the field because the District did not want to violate the Establishment Clause. [1]

On October 14, 2015, Mr. Kennedy sent a letter to school officials through his attorney, stating that he would resume his practice of praying at the 50-yard line because he felt “compelled” by his “sincerely-held religious beliefs” to offer a “post-game personal prayer.” He asked the District to allow him to continue the “private religious expression” alone and stated that he would wait until the game was over and the players had left the field.

Thereafter, Mr. Kennedy and his attorney had a back-and-forth with the school district. Mr. Kennedy wanted to exercise his sincerely-held religious beliefs to offer a post-game prayer and the school expressed concern that such a prayer would lead a reasonable observer to think that he was endorsing prayer while on duty as a District employee. The District also offered accommodations for religious exercise that would not be perceived as endorsing religion or interfere with his job performance.

Undeterred, Mr. Kennedy continued to pray at the 50-yard line while post-game activities were still ongoing, and as a result, the District placed him on paid administrative leave for violating its directives by thrice kneeling on the field and praying immediately following games before rejoining the players for post-game talks. On August 9, 2016, Mr. Kennedy filed suit in the Western District of Washington contending that the District violated his rights under the Free Speech and Free Exercise Clauses of the First Amendment.

In this case, the United States Supreme Court considered whether a public school employee who says a brief, quiet prayer while at school and visible to students is engaged in government speech, which is not protected by the First Amendment. And whether, assuming that such religious expression is private and protected by the Free Speech and Free Exercise Clauses, the Establishment Clause compels public schools to prohibit religious expression.

Since the founding of this country, the Religion Clauses of the First Amendment—the Establishment Clause and the Free Exercise Clause—have been understood to jointly demand government neutrality towards religion. The Free Exercise Clause recognizes the right to believe and practice a faith, or not. The Establishment Clause prohibits the government from making any law “respecting an establishment of religion.” The Free Speech Clause protects religious speech.

A plaintiff bears a certain burden to demonstrate an infringement of rights under the Free Exercise and Free Speech Clauses. In this case, the Court held that Mr. Kennedy discharged his burdens under the Free Exercise Clause and the Free Speech Clause, which were “sincerely motivated religious exercises.”

To determine whether the government violated the Free Exercise Clause, the Court considered whether a government policy is neutral and generally applicable. Justice Gorsuch, writing for the six-member majority, stated that a government policy will not qualify as neutral if it is specifically directed at a religious practice. Additionally, a government policy will fail the general applicability requirement if the policy prohibits religious conduct while permitting secular conduct that undermines the government’s asserted interests in a similar way or if it provides a mechanism for individualized exemptions.

Here, the Court determined that the District’s challenged policies were neither neutral nor generally applicable. The Court held that the District’s policy was not neutral towards religious conduct. The Court further held that the District’s challenged policy failed the general applicability test because the District had advised against renewing Mr. Kennedy’s contract because he “failed to supervise student-athletes after the game.” The Court noted that any sort of post-game supervision requirement must be applied evenly across the board, and while other coaching staff briefly visited with friends or took personal calls, Mr. Kennedy chose to briefly pray at the 50-yard line.

The Court then analyzed whether the District violated Mr. Kennedy’s freedom of speech. The Court held that Mr. Kennedy offered his prayers in his capacity as a private citizen, which did not amount to government speech because the prayers were not ordinarily within the scope of Mr. Kennedy’s duties as a coach. To come to this conclusion, the Court applied the “Pickering – Garcetti” two-step test.[2] The first step of the test is to determine whether a public employee is speaking as a the public employee doing official duties or whether the public employee is speaking as a citizen addressing a matter of public concern. The second step of the test is that the government may seek to prove that its interests as an employer outweigh an employee’s private speech as a matter of public concern.

In applying the “Pickering-Garcetti” test, the Court first determined Mr. Kennedy was speaking as a private citizen as “Mr. Kennedy’s prayers did not ‘owe [their] existence’ to Mr. Kennedy’s responsibilities as a public employee.” The Court stated that the timing and circumstances of Mr. Kennedy’s prayers confirm this point because the prayer was conducted during the post-game period. Justice Gorsuch stated that “[t]eachers and coaches served as vital role models, but [the District’s] argument commits the error of positing an excessively broad job description by treating everything teachers and coaches say in the workplace as government speech subject to government control.” In the dissent, however, Justice Sotomayor argued that Mr. Kennedy was on the job as a school official on government property when he incorporated a public, demonstrative prayer into government-sponsored school related events as a regularly scheduled feature to those events.

The District argued that it was essential to suspend Mr. Kennedy to avoid violations of the Establishment Clause and relied on the Lemon test—a three-step test established in Lemon v. Kurtzmann—and its progeny to determine Establishment Clause violations. [3] Justice Gorsuch, however, said that the Court had abandoned Lemon and the related endorsement test. The Court argued that these tests invited chaos and led to differing results in materially identifiable cases. Instead, in place of Lemon, the Court instructed that the Establishment Clause must be interpreted by “reference to historical practices and understandings.” Justice Sotomayor questioned the Court’s new “history and tradition” test because the Court did not provide guidance on how to apply the test, potentially causing confusion to school administrators, faculty, and staff trying to implement it.

What does Kennedy mean for Colorado?

Right now, it is unclear how Kennedy will affect Colorado and education law. While teachers or school personnel could bring forth similar arguments for their religious conduct, courts will ultimately have to determine what the “history and tradition” test is in order to answer whether religious conduct violates the Establishment Clause. Because the Court did not provide guidance on how to apply the “history and tradition” test, it will be up to the lower courts to decide.

[1] The Establishment Clause prohibits the government from making any law “respecting an establishment of religion” and it bars the government from taking sides in religious disputes or favoring or disfavoring anyone based on religion or belief (or lack thereof).

[2] Garcetti v. Ceballos, 547 U.S. 410 (2006) (holding the First Amendment does not prohibit managerial discipline of public employees for making statements pursuant to employees’ official duties); Pickering v. Bd. of Ed. of Township High Sch. Dist. 205 Will Cty., 391 U.S. 563 (1968) (holding a teacher’s right to speak on issues of public importance may not furnish the basis for his dismissal from public employment).

[3] Lemon v. Kurtzman, 401 U.S. 602 (1971) (establishing a three-part test to determine First Amendment Establishment Clause violations).

by Jacob Baus

“Unremarkable”

Is this a judgmental slight from Downton Abbey’s Mr. Carson, or a harsh but fair critique from TV personality Carson Kressley? Neither! This is how U.S. Supreme Court Chief Justice John Roberts described the holding in a recent case, Carson v. Makin.

The First Amendment of the U.S. Constitution states, in part, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; . . .”, and these clauses are commonly referred to as the Establishment Clause and Free Exercise Clause. Carson is the latest case concerning the provision of public money to a religious-affiliated school and how states have attempted to navigate the issue with respect to these clauses.

Maine is a sparsely populated state, and many of its school districts do not operate a secondary school. Consequently, Maine created a tuition assistance program for families whose resident school district does not provide a secondary school education. An eligible family chooses a school, and the resident school district sends tuition assistance payments to the school, if the school is eligible.

To be eligible, a school must satisfy certain education-related requirements, may be public or private, and must be nonreligious. Maine excluded religious schools from the program based on a position that the provision of public money to religious schools violated the Establishment Clause of the First Amendment of the U.S. Constitution. Eligible families sued Maine’s Commissioner of Education, arguing the program’s nonreligious requirement violated the Free Exercise, Establishment, and Equal Protection Clauses of the U.S. Constitution.

Applying principles from the related Trinity Lutheran Church of Columbia, Inc. v. Comer and Espinoza v. Montana Department of Revenue cases, the Court arrived at a similar conclusion in Carson; that is, excluding religious schools from program eligibility because of their religious character violates the Free Exercise Clause. This reliance on consistent and recent precedent may explain why Chief Justice Roberts found the conclusion in this case to be unremarkable. Nevertheless, the Court addressed a few significant considerations and arguments in reaching its conclusion.

First, the Court noted that the flow of public funds to a religious institution through the independent choice of a benefit recipient does not offend the Establishment Clause. Consequently, excluding religious schools from program eligibility promotes stricter separation between church and state than the Establishment Clause requires. And, the Court continued, a state’s interest in separating church and state further than the Establishment Clause requires is not sufficiently compelling in this case to justify a Free Exercise Clause violation to deny a public benefit because of religious character.

Second, Maine argued that the benefit at issue was providing the “rough equivalent of a public school education” and therefore must be secular. The Court rejected this argument, citing numerous facts about the program undermining this assertion. The Court ultimately concluded that the only real manner in which an eligible private school is the “equivalent” of a public school under the program is that it must be secular, thereby supporting the Court’s position that the program excludes based upon religious character.

Third, Maine argued that the nonreligious requirement was not religious character-based, but rather religious use-based. Maine argued that because religion permeates everything a religious school does, the nonreligious requirement was effectively use-based and therefore permissible. Maine argued this distinction because the Court has previously held that a state’s religious use-based exclusion was constitutionally permissible.[1] The Court rejected this argument, concluding that a prohibition on character-based discrimination is not grounds for engaging in use-based discrimination.

What does Carson mean for Colorado?

Nothing in the Carson decision requires Colorado to provide public money to support private schools. The Carson decision reaffirms an important point of clarity from the Espinoza decision:

[A] State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.

It is not novel to state that the General Assembly must be cautious if a public program or benefit appears to categorically exclude a religious school or institution. It appears from Carson, Espinoza, and Trinity, that the Court is likely inclined to find that religious exclusions are character-based, and therefore in violation of the Free Exercise Clause, even if a state has a no-aid provision similar to article IX, section 7 of the Colorado Constitution.

Although it is always difficult to predict what happens next, the Court will likely have future opportunities to examine whether there is a meaningful constitutional distinction between exclusions that are character-based versus use-based in nature and how states should consider issues that fall in an often-found tension between the Free Exercise and Establishment Clauses.

[1] Locke v. Davey, 540 U.S. 712 (2004) (A publicly funded Washington scholarship excluded the use of the scholarship for a degree in theology. The United States Supreme Court concluded the exclusion was not unconstitutional.)