Kennedy v. Bremerton School District

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Kennedy v. Bremerton School District
Term: 2021
Important Dates
Argued: April 25, 2022 Decided: June 27, 2022
Outcome
Reversed
Vote
6-3
Majority
Neil Gorsuch • Chief Justice John Roberts • Clarence Thomas • Samuel Alito • Amy Coney Barrett • Brett Kavanaugh (except as to Part III-B)
Concurring
Clarence Thomas • Samuel Alito
Dissenting
Sonia Sotomayor • Stephen Breyer • Elena Kagan

Kennedy v. Bremerton School District is a case that was decided by the Supreme Court of the United States on June 27, 2022, during the court's October 2021-2022 term. The case was argued on April 25, 2022.

The court reversed the decision of the U.S. Court of Appeals for the 9th Circuit in a 6-3 ruling, holding that a high school football coach praying on-field after a football game was protected speech under the First Amendment. Justice Neil Gorsuch delivered the court's majority opinion. Justice Sonia Sotomayor filed a dissenting opinion, joined by Justices Stephen Breyer and Elena Kagan. Click here for more information about the ruling.

HIGHLIGHTS

The case: High school football coach Joseph Kennedy prayed at midfield following the conclusion of games. The school district told Kennedy this violated school board policy and required him to stop so as not to violate the Constitution's establishment clause. Kennedy stated that he would not comply. The school district attempted to accommodate Kennedy's expressions, but Kennedy declined the offers and prayed on the field again after two more games. Kennedy was placed on administrative leave. Kennedy sued the school in U.S. district court for violating his right to free speech. The court ruled that the school district suspended Kennedy solely to avoid violating the establishment clause. The Ninth Circuit Court of Appeals upheld the judgment. Click here to learn more about the case's background.

The issue: The case concerned religious expression at a public school and the Constitution's establishment clause.

The questions presented:
"1. Whether a public-school employee who says a brief, quiet prayer by himself while at school and visible to students is engaged in government speech that lacks any First Amendment protection.
"2. Whether, assuming that such religious expression is private and protected by the Free Speech and Free Exercise Clauses, the Establishment Clause nevertheless compels public schools to prohibit it."

The outcome: The court reversed the decision of the U.S. Court of Appeals for the 9th Circuit and held that a coach praying on-field after a football game is an activity protected by the First Amendment.

The case came on a writ of certiorari to the United States Court of Appeals for the 9th Circuit. To review the lower court's opinion, click here.

Timeline

The following timeline details key events in this case:

• June 27, 2022: The U.S. Supreme Court reversed the decision of the U.S. Court of Appeals for the 9th Circuit.
• April 25, 2022: The U.S. Supreme Court heard oral argument.
• January 14, 2022: The U.S. Supreme Court agreed to hear the case.
• September 14, 2021: Joseph Kennedy appealed to the U.S. Supreme Court.
• March 18, 2021: The United States Court of Appeals for the 9th Circuit affirmed the U.S. District Court for the Western District of Washington's ruling.

Background

Joseph Kennedy was a high school football coach with Bremerton School District (BSD) in Bremerton, Washington from 2008 to 2015. He engaged in the practice of kneeling at the fifty-yard line and saying a prayer after the end of a game. At first, Kennedy did so alone. Several games into his first season as a coach, some players asked if they could join him. The number of participants varied after each game from none to most of the team. Over time, Kennedy began giving motivational speeches that included prayer and religious content. Kennedy alleged that he never required or asked any student to pray or participate in any religious activity. School principal John Polm later testified that a parent complained about the prayers, stating that his son felt compelled to participate or risk losing playing time during games.

In 2015, an employee from another high school informed the school principal of the post-game prayers. A separate BSD administrator expressed disapproval of the practice to Kennedy. In response, Kennedy published a post on Facebook stating, "I think I just might have been fired for praying." In response to that post, the district received thousands of phone, email, and written communications from around the country. BSD characterized many of the messages as "hateful or threatening."

On September 17, 2015, Superintendent Aaron Leavell notified Kennedy of the school district's investigation into whether it was in compliance with the school board policy on "Religious-Related Activities and Practices", specifically, "[a]s a matter of individual liberty, a student may of his/her own volition engage in private, non-disruptive prayer at any time not in conflict with learning activities..." and "[s]chool staff shall neither encourage nor discourage a student from engaging in non-disruptive oral or silent prayer or any other form of devotional activity." The investigation concluded that the coaching staff had received little training on the policy; Leavell outlined the investigation's results and the school district's expectations in the September 17 letter. The superintendent advised Kennedy that he could give secular inspirational talks and that student religious activity must be initiated by the student only, and staff were not permitted to suggest, discourage, or encourage the activity. He added that if students engage in religious activity, school staff could not take any action likely to be perceived as an endorsement of the activity. As well, Leavell informed Kennedy that he was free to engage with any religious activity, so long as it did not interfere with his job's responsibilities, was physically separate from any student activity, and no students were permitted to join in the religious activity. Upon receiving the letter, Kennedy temporarily stopped praying on the field after football games. After a game on September 18, Kennedy gave a motivational speech without reference to religion. He began driving home but decided to return to the field to pray on the field ten to fifteen minutes after it had emptied.

On October 14, 2015, Kennedy contacted BSD through his lawyer, stating that he would resume praying at the fifty-yard line after the conclusion of the October 16, 2015, game and would allow students to join him if they wanted to, and asking the school district to revoke its prohibition on his post-game prayers on the field. Kennedy and his representatives publicized his intention to pray on various media platforms. In response, BSD attempted to secure the field from public access.

On the day of the game after the final whistle, Kennedy kneeled at midfield and said what he alleged was a brief, and silent prayer. Kennedy also alleged that players and coaches from the opposing team and members of the general public and media spontaneously joined him and knelt with him. However, Kennedy's claims were deemed inaccurate by the 9th Circuit due to the pre-game publicity of his plans to pray after the game. As well, the court said that Kennedy's legal counsel acknowledged that his prayers were verbal and audible, in contradiction with his retelling of events. The school district stated that some students had been knocked down and other individuals fell as a result of the demonstration when members of the public went out onto the field. Following the game, Kennedy made several media appearances in order to bring attention to the events.

On October 23, 2015, BSD notified Kennedy that his conduct violated school district policy and offered accommodations for religious exercise that would not be perceived as the district endorsing religious expression and would not interfere with his job performance. The district also invited Kennedy to provide suggestions of accommodations. Kennedy and his legal counsel's only response on the record was to inform the media that the only acceptable outcome was for Kennedy to be allowed to pray on the field immediately after games.

On October 23 and October 26, Kennedy prayed on the field immediately following the game's conclusion. Following the October 26 game, the school district placed Kennedy on paid administrative leave. During that time, members of the team did not initiate their own post-game prayer. Also during this time, BSD employees testified that they experienced consequences that they attributed to the publicity surrounding Kennedy and his post-game prayers., including concerns for their physical safety. Head football coach Nathan Gillam resigned as a result of his concerns.

Following the season's conclusion, Gillam recommended that Kennedy not be rehired for various reasons. Kennedy did not apply for a coaching position for the next season.

On August 9, 2016, Kennedy sued the school district in the Western District of Washington for violating his First Amendment rights. The district court denied his preliminary injunction request on September 19. Kennedy appealed to the 9th Circuit, and the appeals court affirmed the denial. Kennedy appealed to the U.S. Supreme Court, and the court denied the petition.

On remand, both the school district and Kennedy moved for summary judgment. The district court held that Kennedy was suspended by the district due to the risk of constitutional liability and that BDS' actions were justified due to the risk of violating the establishment clause if Kennedy was allowed to continue with his religious activities. The district court granted BSD's motion for summary judgment.

On appeal, the 9th Circuit affirmed the district court, holding:

“

The record before us and binding Supreme Court precedent compel the conclusion that BSD would have violated the Establishment Clause by allowing Kennedy to pray at the conclusion of football games, in the center of the field, with students who felt pressured to join him. Kennedy's attempts to draw nationwide attention to his challenge to BSD compels the conclusion that he was not engaging in private prayer, but was instead engaging in public speech of an overtly religious nature while performing his job duties. BSD tried to reach an accommodation for Kennedy, but that was spurned by his insisting that he be allowed to pray immediately after the conclusion of each game, likely surrounded by students who felt pressured to join him. Kennedy's Title VII claims also fail. The judgment of the district court is AFFIRMED.

”

Establishment Clause

The Establishment Clause refers to the section of the 1st Amendment of the United States Constitution, which prohibits Congress from establishing any law "respecting an establishment of religion."

The following legal definition is sourced from Cornell Law School's Legal Information Institute:

“	The First Amendment's Establishment Clause prohibits the government from making any law “respecting an establishment of religion.” This clause not only forbids the government from establishing an official religion, but also prohibits government actions that unduly favor one religion over another. It also prohibits the government from unduly preferring religion over non-religion, or non-religion over religion. Although some government action implicating religion is permissible, and indeed unavoidable, it is not clear just how much the Establishment Clause tolerates. In the past, the Supreme Court has permitted religious invocations to open legislative session, public funds to be used for private religious school bussing and textbooks, and university funds to be used to print and public student religious groups' publications. Conversely, the Court has ruled against some overtly religious displays at courthouses, state funding supplementing teacher salaries at religious schools, and some overly religious holiday decorations on public land. One point of contention regarding the Establishment Clause is how to frame government actions that implicate religion. Framing questions often arise in the context of permanent religious monuments on public land. Although it is reasonably clear that cities cannot install new religious monuments, there is fierce debate over whether existing monuments should be removed. When the Supreme Court recently considered this issue in Van Orden v. Perry, 545 U.S. 677 (2005), and McCreary County v. ACLU, 545 U.S. 844 (2005), it did not articulate a clear general standard for deciding these types of cases. The Court revisited this issue in Salazar v. Buono (08-472), a case which considered the constitutionality of a large white Christian cross erected by members of the Veterans of Foreign Wars on federal land in the Mojave Desert. While five Justices concluded that a federal judge erred in barring a congressionally ordered land transfer which would place the memorial on private land, there was no majority reasoning as to why. Three Justices held that the goal of avoiding governmental endorsement of religion does not require the destruction of religious symbols in the private realm, while Justice Scalia and Justice Thomas concluded that the plaintiff lacked standing to bring this complaint.	”
—Cornell Law School Legal Information Institute

Questions presented

The petitioner presented the following questions to the court:

Questions presented: “ Whether a public-school employee who says a brief, quiet prayer by himself while at school and visible to students is engaged in government speech that lacks any First Amendment protection. Whether, assuming that such religious expression is private and protected by the Free Speech and Free Exercise Clauses, the Establishment Clause nevertheless compels public schools to prohibit it. ”

Oral argument

Audio

Audio of oral argument:

Transcript

Transcript of oral argument:

Outcome

The court reversed the decision of the U.S. Court of Appeals for the 9th Circuit in a 6-3 ruling, holding that a high school football coach praying on-field after a football game was protected speech under the First Amendment. Justice Neil Gorsuch delivered the court's majority opinion. Justice Sonia Sotomayor filed a dissenting opinion, joined by Justices Stephen Breyer and Elena Kagan.

Opinion

In the court's majority opinion, Justice Alito wrote:

“	When it comes to Mr. Kennedy’s free speech claim, our precedents remind us that the First Amendment’s protections extend to “teachers and students,” neither of whom “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, 506 (1969); see also Lane v. Franks, 573 U. S. 228, 231 (2014). ... To account for the complexity associated with the interplay between free speech rights and government employment, this Court’s decisions in Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563 (1968), Garcetti, 547 U. S. 410, and related cases suggest proceeding in two steps. The first step involves a threshold inquiry into the nature of the speech at issue. If a public employee speaks “pursuant to [his or her] official duties,” this Court has said the Free Speech Clause generally will not shield the individual from an employer’s control and discipline because that kind of speech is—for constitutional purposes at least—the government’s own speech. Id.', at 421. At the same time and at the other end of the spectrum, when an employee “speaks as a citizen addressing a matter of public concern,” our cases indicate that the First Amendment may be implicated and courts should proceed to a second step. Id., at 423. At this second step, our cases suggest that courts should attempt to engage in “a delicate balancing of the competing interests surrounding the speech and its consequences.” Ibid. ... Applying these lessons here, it seems clear to us that Mr. Kennedy has demonstrated that his speech was private speech, not government speech. ... To defend its approach, the District relied on Lemon and its progeny. See App. 43–45. In upholding the District’s actions, the Ninth Circuit followed the same course. See Part II–C, supra. And, to be sure, in Lemon this Court attempted a “grand unified theory” for assessing Establishment Clause claims. American Legion v. American Humanist Assn., 588 U. S. ___, ___ (2019) (plurality opinion) (slip op., at 24). That approach called for an examination of a law’s purposes, effects, and potential for entanglement with religion. Lemon, 403 U. S., at 612–613. In time, the approach also came to involve estimations about whether a “reasonable observer” would consider the government’s challenged action an “endorsement” of religion. See, e.g., County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 593 (1989); id., at 630 (O’Connor, J., concurring in part and concurring in judgment); Shurtleff, 596 U. S., at ___ (opinion of GORSUCH, J.) (slip op., at 3). What the District and the Ninth Circuit overlooked, however, is that the “shortcomings” associated with this “ambitiou[s],” abstract, and ahistorical approach to the Establishment Clause became so “apparent” that this Court long ago abandoned Lemon and its endorsement test offshoot. American Legion, 588 U. S., at ___–___ (plurality opinion) (slip op., at 12–13); see also Town of Greece v. Galloway, 572 U. S. 565, 575–577 (2014). ... Respect for religious expressions is indispensable to life in a free and diverse Republic—whether those expressions take place in a sanctuary or on a field, and whether they manifest through the spoken word or a bowed head. Here, a government entity sought to punish an individual for engaging in a brief, quiet, personal religious observance doubly protected by the Free Exercise and Free Speech Clauses of the First Amendment. And the only meaningful justification the government offered for its reprisal rested on a mistaken view that it had a duty to ferret out and suppress religious observances even as it allows comparable secular speech. The Constitution neither mandates nor tolerates that kind of discrimination. Mr. Kennedy is entitled to summary judgment on his First Amendment claims. The judgment of the Court of Appeals is reversed.	”
—Justice Neil Gorsuch

Concurring opinion

Clarence Thomas

Justice Thomas filed a concurring opinion. In his concurrence, Thomas wrote:

“	I join the Court’s opinion because it correctly holds that Bremerton School District violated Joseph Kennedy’s First Amendment rights. I write separately to emphasize that the Court’s opinion does not resolve two issues related to Kennedy’s free-exercise claim. First, the Court refrains from deciding whether or how public employees’ rights under the Free Exercise Clause may or may not be different from those enjoyed by the general public. See ante, at 19, n. 2. ... Second, the Court also does not decide what burden a government employer must shoulder to justify restricting an employee’s religious expression because the District had no constitutional basis for reprimanding Kennedy under any possibly applicable standard of scrutiny. See ante, at 20.	”
—Justice Clarence Thomas

Samuel Alito

“	The expression at issue in this case is unlike that in any of our prior cases involving the free-speech rights of public employees. Petitioner’s expression occurred while at work but during a time when a brief lull in his duties apparently gave him a few free moments to engage in private activities. When he engaged in this expression, he acted in a purely private capacity. The Court does not decide what standard applies to such expression under the Free Speech Clause but holds only that retaliation for this expression cannot be justified based on any of the standards discussed. On that understanding, I join the opinion in full.	”
—Justice Samuel Alito

Dissenting opinion

Justice Sotomayor wrote a dissenting opinion, joined by Justices Breyer and Kagan. In her dissent, Sotomayor wrote:

“	This case is about whether a public school must permit a school official to kneel, bow his head, and say a prayer at the center of a school event. The Constitution does not authorize, let alone require, public schools to embrace this conduct. Since Engel v. Vitale, 370 U. S. 421 (1962), this Court consistently has recognized that school officials leading prayer is constitutionally impermissible. Official-led prayer strikes at the core of our constitutional protections for the religious liberty of students and their parents, as embodied in both the Establishment Clause and the Free Exercise Clause of the First Amendment. The Court now charts a different path, yet again paying almost exclusive attention to the Free Exercise Clause’s protection for individual religious exercise while giving short shrift to the Establishment Clause’s prohibition on state establishment of religion. See Carson v. Makin, 596 U. S. ___, ___ (2022) (BREYER, J., dissenting) (slip op., at 1). To the degree the Court portrays petitioner Joseph Kennedy’s prayers as private and quiet, it misconstrues the facts. The record reveals that Kennedy had a longstanding practice of conducting demonstrative prayers on the 50- yard line of the football field. Kennedy consistently invited others to join his prayers and for years led student athletes in prayer at the same time and location. The Court ignores this history. The Court also ignores the severe disruption to school events caused by Kennedy’s conduct, viewing it as irrelevant because the Bremerton School District (District) stated that it was suspending Kennedy to avoid it being viewed as endorsing religion. Under the Court’s analysis, presumably this would be a different case if the District had cited Kennedy’s repeated disruptions of school programming and violations of school policy regarding public access to the field as grounds for suspending him. As the District did not articulate those grounds, the Court assesses only the District’s Establishment Clause concerns. It errs by assessing them divorced from the context and history of Kennedy’s prayer practice. Today’s decision goes beyond merely misreading the record. The Court overrules Lemon v. Kurtzman, 403 U. S. 602 (1971), and calls into question decades of subsequent precedents that it deems “offshoot[s]” of that decision. Ante, at 22. In the process, the Court rejects longstanding concerns surrounding government endorsement of religion and replaces the standard for reviewing such questions with a new “history and tradition” test. In addition, while the Court reaffirms that the Establishment Clause prohibits the government from coercing participation in religious exercise, it applies a nearly toothless version of the coercion analysis, failing to acknowledge the unique pressures faced by students when participating in school-sponsored activities. This decision does a disservice to schools and the young citizens they serve, as well as to our Nation’s longstanding commitment to the separation of church and state. I respectfully dissent.	”
—Justice Sonia Sotomayor

Text of the opinion

Read the full opinion here.

October term 2021-2022

See also: Supreme Court cases, October term 2021-2022

The Supreme Court began hearing cases for the term on October 4, 2021. The court's yearly term begins on the first Monday in October and lasts until the first Monday in October the following year. The court generally releases the majority of its decisions in mid-June.

The court agreed to hear 68 cases during its 2021-2022 term. Four cases were dismissed and one case was removed from the argument calendar.

The court issued decisions in 66 cases during its 2021-2022 term. Three cases were decided without argument. Between 2007 and 2021, SCOTUS released opinions in 1,128 cases, averaging 75 cases per year.

See also

• 

  Supreme Court cases, October term 2021-2022

• 

  Supreme Court of the United States

• 

  History of the Supreme Court

External links

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• U.S. Supreme Court docket file - Kennedy v. Bremerton School District (petitions, motions, briefs, opinions, and attorneys)
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