Coach Joseph Kennedy took a knee mid-field after his Bremerton High School football games concluded, privately praying while wearing clothing with the school’s lego. The Washington coach attracted attention, both from players and parents who joined him in prayer, and from opponents who claimed that he was foisting his religious beliefs on impressionable youth. Kennedy defied district warnings to cease such religious expression, integrated motivational speeches that attracted post-game crowds, and soon found himself out of a job. In 2016, Kennedy initiated a legal battle, seeking both his job and his right to pray after games restored.
A federal district court dismissed the Kennedy v. Bremerton School District case; Kennedy appealed, and the United States Court of Appeals for the Ninth Circuit affirmed the district court’s opinion. The saga wound its way to the Supreme Court in January 2019, but the Court denied certiorari, indicating that the case was not ripe for review due to unresolved factual issues. Justice Alito, concurring with three other justices in denying certiorari, criticized the district court for its inadequate fact finding. The crux of those facts was summarized by Kennedy’s superintendent, who justified the coach’s firing for two different reasons:
- Kennedy was still on the job after the game ended and neglected his responsibility to supervise what his players were doing during his prayer.
- Kennedy’s conduct would lead an observer to believe the district was endorsing religion because he prayed while “on the field, under the game lights, in BHS-logoed attire, in front of an audience of event attendees.”
Dueling Roles: Private Citizen vs. State Actor
Should teachers refrain from any religious expression while on school property? What does the First Amendment have to say about all this?
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Public school teachers function as both private citizens and representatives of the state. The First Amendment protects their free exercise of religion but the Establishment Clause “respecting an establishment of religion” prohibits public school teachers from foisting their personal religious beliefs upon students.
Throw freedom of speech issues into the foray, and teachers are left with a confused jumble of law as they try to determine where their individual freedoms end and their obligations as agents of the state take over. The Supreme Court has clarified matters in several historic decisions:
In landmark case Tinker v. Des Moines (1969), the Court declared that, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” And the venerable Justice Thurgood Marshall, in Pickering v. Board of Education (1968), upheld teacher’s rights to express their opinions, stating, “The interest of the school administration in limiting teachers’ opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public.”
But what does that mean in the context of religious expressions? Can teachers display a discreet crucifix or Star of David around their necks? Can they wear a burqa to class? How about placing a Bible or Koran on their desk or hanging religious imagery alongside family photos on their classroom walls?
Ironically, religious adherents have historically been the most fervent promoters of censorship in the classroom, seeking to ban materials that present views of religion, race, or sexuality contrary to their own. Books like The Catcher in the Rye and To Kill a Mockingbird have been banned and burned while Darwin still struggles to fight his way into some science classrooms.
Civilized Social Order Trumps Personal Expression
Recent Supreme Court decisions have chipped away at teachers’ First Amendment rights. In Hazelwood School District v. Kuhlmeier (1988), the Supreme Court gave schools leeway to regulate student speech “inconsistent with ‘the shared values of a civilized social order” as long as the school had an educational purpose for such regulation. Later courts have applied the same reasoning to teachers’ speech.
In Miles v. Denver Public Schools (1991), the court applied the narrower First Amendment construction of Hazelwood over more lenient Pickering, explaining, “Because of the special characteristics of a classroom environment, in applying Hazelwood instead of Pickering we distinguish between teachers’ classroom expression and teachers’ expression in other situations that would not reasonably be perceived as school-sponsored.”
And Garcetti v. Ceballos (2006) really tightened the lock on First Amendment freedom. In Garcetti, the Court ruled that public employees do not have First Amendment freedom of speech in their official job duties. However, Garcetti points to the controlling factor as employer “commissioned or created” speech, with Justice Kennedy writing, “Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen.” In this way, Kennedy and other religious liberty cases differ since school districts certainly have not commissioned or created such personal religious expressions.
Whether schools and courts will continue to impose narrow Pickering restrictions or broad Hazelwood restrictions upon their teachers is a debate still in progress. Though the Supreme Court declined Kennedy’s case, the Court seemed to consider that the issue of teachers’ freedom of expression will probably wind its way back to their hallowed halls soon.
“What is perhaps most troubling about the 9th Circuit’s opinion is language that can be understood to mean that a coach’s duty to serve as a good role model requires the coach to refrain from any manifestation of religious faith—even when the coach is plainly not on duty,” Justice Alito, in his Kennedy concurrence, considered the lower court’s reference to Kennedy praying as a spectator in the stands at a game, “The suggestion that even while off duty, a teacher or coach cannot engage in any outward manifestation of religious faith is remarkable.”
Jennifer Babisak is a law student at Loyola University Chicago School of Law and a student in Loyola’s Education Law Practicum
