The recent decision of the Supreme Court of the United States in Kennedy v. Bremerton School District– the widely followed case concerning the right of a public high school football coach to pray individually on the fifty-yard line after a game – further clarifies the legal landscape of the application of the First Amendment to public schools (this landscape was covered in depth in our #TakeAKnee legal update). The First Amendment requires all public entities, including a public school, to balance their obligations under the Establishment Clause with the rights of staff under the free speech and free exercise clauses. A full discussion of the Court’s opinion is beyond the scope of this legal update, but school officials should consider the following lessons learned from kennedy.

First lesson : How a School District Portrays a Staff Member’s Conduct in Disciplinary Communication.

Kennedy had a long-standing practice of engaging student-athletes in motivational prayers before games as well as praying with the students after games. Once the Bremerton School District found out, they asked Kennedy to stop. Initially, Kennedy complied, but he later decided to continue his prayer practice at the fifty-yard line after games, but without inviting students to join. The district then placed Kennedy on paid administrative leave, but cited only solo prayers as reasons for Kennedy’s eventual release. Therefore, the Court’s analysis was narrow and centered on Kennedy’s solo prayers. This Court’s approach implicitly suggests that if schools are to regulate a staff member’s religious exercise, past conduct may not be relevant unless the school specifically identifies such conduct in the formal reprimand issued. to the staff member. Next kennedy, forcing students to participate in prayers can still be disciplinary. School administrators should carefully and methodically document disciplinary action against employees noting the specific reasons for the discipline. The adverse employment decision must be consistent with school policies and procedures and must be supported by evidence of past behaviors and incidents.

Lesson two: School districts can no longer rely on the Establishment Clause to reprimand staff for engaging in public prayer.

The primary reason the district suspended Kennedy from training was concern that allowing Kennedy’s public religious displays to occur during or directly after school-sanctioned events would violate the Establishment Clause. Specifically, the district’s response to stop Kennedy’s prayer on the ground was intended to communicate to observers that it did not approve of Kennedy’s religious conduct. This concept originates Lemon vs. Kurtzman403 US 602 (1971), which created an “approval test” to offer guidance in enforcing the constitutional prohibition on state religious establishment.

In kennedy, the Court rejected the District’s interpretation of the interplay between the free exercise and establishment clauses, finding that the District had created its own “self-imposed trap”. The Court in kennedy abandoned Lemon and the Approval Test, finding that there is not necessarily a violation of the Establishment Clause whenever a school does not censor private religious speech. Instead, the Court ordered an assessment grounded in the “historical practices and understandings” of the Establishment Clause. According to the Court, school districts cannot prohibit an employee’s private, noncoercive religious exercise in an effort to avoid offended responses or allegations of approval.

As a result of this decision, school districts must be mindful of the balance between protecting private religious freedom and preventing the endorsement of a religion in public schools. The opinion distinguishes between unconstitutional religious activity in compulsory or official school events (that’s to sayprayer at a graduation ceremony or over the speaker at a football game) and presumptively acceptable religious activity in voluntary public school programs (that’s to say, “release time” programs for off-campus religious education during school hours with parental consent). The Court noted that school employees cannot compel students to engage in religious practices. Based on the guidance provided by the Court, it is recommended that school districts pay particular attention to whether an employee’s conduct is coercive when determining whether they may violate the clause. of establishment and, consequently, be subject to measures (disciplinary or otherwise).

Third lesson: School policies cannot exclusively target religious exercise.

In kennedy, the Court found that the district violated Kennedy’s right to free exercise because the policy that restricted Kennedy’s right to his solitary and sincere religious practice was not neutral or generally applicable. According to the Court, the district violated Kennedy’s constitutional interests by specifically restricting his religious exercise without addressing similar secular activity. Additionally, the policy was inconsistently enforced as the district did not penalize other coaches for engaging in personal and secular activities after games (that’s to say, visiting friends or making a personal phone call). Going forward, school districts should review their employment policies to ensure that all rules are neutral, generally applicable, and do not specifically target non-disruptive religious practice. School districts should also take steps to ensure that the neutral policy is applied consistently by training administrators and educating staff on these policies.

Lesson four: Not all school employee speeches are government speeches.

In kennedy, another key issue in the free-speech analysis was whether Kennedy spoke as a private citizen or as a government employee on behalf of the district when he prayed on the field after football games. . The Court reiterated that government speech occurs when public employees speak as part of their job duties. The Court pointed out, however, that schools cannot rely on job descriptions or rigid written categorizations to determine when a school employee is acting or speaking in the course of their employment. Rather, it may be a practical and factual question, such as kennedy illustrated. The scope of public employment does not lend itself to mechanical or rigid categorizations but must be determined on the basis of a functional and practical analysis that is not tied solely to written job descriptions. The Court found that Kennedy’s speech was given as a “private” citizen because his prayers did not result from his coaching responsibilities. In the court’s view, Kennedy was praying when other coaches were engaging in personal matters and communicating as private citizens. Kennedy used this small pause to engage in personal, barely audible religious discourse, not directed at players or spectators, so he spoke in his capacity as a private citizen.

Next kennedy, Districts should analyze whether a person engaging in silent or solitary religious practice is speaking as an employee or as a private citizen before taking action. As the Court made clear, an employee may take a brief detour from his or her duties to pray and, in doing so, speak as a citizen on the facts presented, when the activity was solo, unconstrained and not disruptive. Schools are advised to give careful consideration to all of the facts and circumstances surrounding an individual’s speech when determining whether an action is appropriate, including, but not limited to, describing job.