Coach Joseph Kennedy took a knee mid-field after his Bremerton High School football games concluded, privately praying while wearing clothing with the school\u2019s 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.<\/p>\n
A federal district court dismissed the Kennedy v. Bremerton School District<\/em> case; Kennedy appealed, and the United States Court of Appeals for the Ninth Circuit affirmed the district court\u2019s 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\u2019s superintendent, who justified the coach\u2019s firing for two different reasons:<\/p>\n Dueling Roles: Private Citizen vs. State Actor<\/strong><\/p>\n Should teachers refrain from any religious expression while on school property? What does the First Amendment have to say about all this?<\/p>\n 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.<\/em><\/p>\n 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 \u201crespecting an establishment of religion\u201d prohibits public school teachers from foisting their personal religious beliefs upon students.<\/p>\n 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:<\/p>\n In landmark case Tinker v. Des Moines <\/em>(1969), the Court declared that, \u201cIt can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.\u201d And the venerable Justice Thurgood Marshall, in Pickering v. Board of Education<\/em>\u00a0(1968)<\/a>, upheld teacher\u2019s rights to express their opinions, stating, \u201cThe interest of the school administration in limiting teachers\u2019 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.\u201d<\/p>\n 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?<\/p>\n 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<\/em> and To Kill a Mockingbird<\/em> have been banned and burned while Darwin still struggles to fight his way into some science classrooms.<\/p>\n Civilized Social Order Trumps Personal Expression<\/strong><\/p>\n Recent Supreme Court decisions have chipped away at teachers\u2019 First Amendment rights. In\u00a0Hazelwood School District v. Kuhlmeier<\/em> (1988)<\/a>, the Supreme Court gave schools leeway to regulate student speech “inconsistent with ‘the shared values of a civilized social order\u201d as long as the school had an educational purpose for such regulation. Later courts have applied the same reasoning to teachers\u2019 speech.<\/p>\n In\u00a0Miles v. Denver Public Schools<\/em>\u00a0(1991)<\/a>, the court applied the narrower First Amendment construction of Hazelwood<\/em> over more lenient Pickering<\/em>, explaining, \u201cBecause of the special characteristics of a classroom environment, in applying\u00a0Hazelwood<\/em> instead of\u00a0Pickering<\/em>\u00a0we distinguish between teachers\u2019 classroom expression and teachers\u2019 expression in other situations that would not reasonably be perceived as school-sponsored.\u201d<\/p>\n And Garcetti v. Ceballos<\/em>\u00a0(2006)<\/a> really tightened the lock on First Amendment freedom. In\u00a0Garcetti<\/em>,\u00a0the Court ruled that\u00a0public employees<\/a>\u00a0do not have First Amendment freedom of speech in their official job duties. However, Garcetti<\/em> points to the controlling factor as employer \u201ccommissioned or created\u201d speech, with Justice Kennedy writing, \u201cRestricting speech that owes its existence to a public employee\u2019s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen.\u201d In this way, Kennedy<\/em> and other religious liberty cases differ since school districts certainly have not commissioned or created such personal religious expressions.<\/p>\n Whether schools and courts will continue to impose narrow Pickering<\/em> restrictions or broad Hazelwood<\/em> restrictions upon their teachers is a debate still in progress. Though the Supreme Court declined Kennedy\u2019s case, the Court seemed to consider that the issue of teachers\u2019 freedom of expression will probably wind its way back to their hallowed halls soon.<\/p>\n “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\u2014even when the coach is plainly not on duty,” Justice Alito, in his Kennedy<\/em> 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.”<\/p>\n\n\n\n Jennifer Babisak is a law student at Loyola University Chicago School of Law and a student in Loyola’s Education Law Practicum<\/em><\/p>\n","protected":false},"excerpt":{"rendered":" Jennifer Babisak is a part-time law student at Loyola University Chicago School of Law and a student in Loyola’s Education Law Practicum Continue reading \n