By Stephanie Taub, Senior Counsel
The U.S. Supreme Court heard oral arguments April 25 in the case of Joe Kennedy, a Marine veteran-turned-football coach who made a commitment to God to kneel in prayer on the field after football games and was removed from his job as a result.
The case, Kennedy v. Bremerton School District, has the potential to affect the First Amendment rights of public school teachers and coaches across the country.
First Liberty Institute, along with the international law firm Kirkland and Ellis LLP, represented the coach. Former U.S. Solicitor General Paul Clement argued on behalf of Kennedy. Richard Katskee of Americans United for Separation of Church and State argued on behalf of the Bremerton, Washington, School District.
Judging by oral arguments, the majority of the justices seem inclined to rule in favor of Kennedy.
Most of the justices appeared to acknowledge that teachers do have some rights to religious expression while on campus, such as when a Catholic teacher wears ashes on her forehead on Ash Wednesday. The question is whether that right extends to the coach in this case.
The justices had several questions about the facts of Kennedy’s case. When he first began coaching in 2008, he took a knee for a brief, quiet prayer by himself after games. When the players noticed, some voluntarily asked to join him.
Over the years, the practice morphed into giving faith-based motivational speeches, with players free to join if they wanted. But, when the school district asked him to stop giving those speeches, Kennedy complied and took steps to no longer involve Bremerton students.
But then, the school fired him anyway because he could be seen doing something religious; specifically, taking a knee in prayer after games.
Overall, the most telling questions had to do with the establishment clause of the Constitution and whether to expressly overrule old, flawed case law.
Justices Brett Kavanaugh and Neil Gorsuch noted that the Supreme Court has not applied the “Lemon test” or the related “endorsement test” in 20 years. Those questions signaled their belief that those tests are no longer good law in light of more modern cases, such as American Legion v. American Humanist Association and Town of Greece v. Galloway, which leave more flexibility for governments to respect private religious speech and expression.
The antiquated Lemon test is responsible for a large share of anti-religious hostility on public school grounds.
Too often, public school administrators mistakenly believe that they are required to turn schools into religion-free zones. Mistakenly aggressive views of the establishment clause lead administrators to try to rid the schools of any hint of religion, even when the speech or activity is clearly private and not attributable to the school.
But censoring the private religious speech of students and teachers is not neutral. It shows a hostility toward religion that violates the free speech, free exercise, and establishment clauses of the First Amendment.
At heart, this case reflects the sad reality that public school officials often treat religious expression and religious identities as something shameful that must be hidden from view.
School district lawyers argue with a straight face that teachers must hide their religious identities because students might look up to them as mentors, suggesting that being religiously observant is disqualifying from taking on a mentorship role.
This case ruffles feathers because it calls into question the typical school district lawyer’s impulse to censor all mentions of religion. But such an approach is not neutral. Censoring private religious speech, no matter how brief, evidences hostility and sends a message of disapproval toward religion.
As Kennedy’s reply brief summarizes: “If the only acceptable role models are coaches and teachers that never engage in any visible religious expression, then something has gone seriously awry.”
With the justices’ decision expected in June, this case presents the opportunity for the Supreme Court to clarify that teachers do not in fact shed their First Amendment rights at the schoolhouse gate.
Note: This article was first published on The Daily Signal and is re-published here with permission. The article presents the main points of an op-ed published in The Daily Signal. This work was authored by Stephanie Taub. The full article can be found on The Daily Signal website, here.
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