SCOTUS Should Not Allow Students To Be Pressured To Pray To Play!
Bradley Girard, Litigation Counsel, Americans United for Separation of Church and State
Earlier this month, the Supreme Court granted review in Kennedy v. Bremerton School District, a case you’ll surely hear much about in the coming months. The case could rewrite broad swaths of First Amendment law and, among other things, risks opening the door to official prayer in public schools.
First, a little background: Joseph Kennedy was an assistant football coach at Bremerton High School, a public school in the State of Washington. For years, Kennedy led his team in prayers, both before and after games. When the School District learned what he was doing, it asked him to stop. The District made sure to let Kennedy know that it would find ways to accommodate his religious practice that did not make students feel pressure to participate. But Kennedy’s lawyers made clear that he would accept nothing less than capitulation by the School District: He must be allowed to continue to pray at the 50-yard line at the end of every game, joined by students. The district court and Ninth Circuit rightly rejected that demand—twice—but the Supreme Court has now granted cert.
Kennedy’s lawyers framed the case to the Supreme Court as one about “personal,” “private,” “solitary,” “silent or quiet” prayer. As the Ninth Circuit said, however, that description is “utterly belied” by the record. And one judge went as far as calling it a “deceitful narrative” spun by Kennedy’s lawyers. Readers of this blog will recognize those statements as unusually stern admonitions from a court. That the Supreme Court granted review of the Ninth Circuit’s reasoned decision based on that narrative is nothing short of extraordinary. (You can see more of why the Court should not have taken the case in our brief in opposition to the petition here.) And if the Court rules in Kennedy’s favor, it could revamp long-standing law under the Establishment Clause, the Free Exercise Clause, and the Free Speech Clause. That should be concerning to us all—especially because the actual facts in the record make clear that the district court and court of appeals simply applied settled law.
Coach Kennedy’s “personal,” “private,” “solitary,” and “quiet” prayer.
But in addition to those concerns, I want to highlight something that might get lost in the First Amendment shuffle that will make up coverage of this case—the students themselves. The Establishment Clause protects against religious coercion by government employees. And as the Supreme Court has long recognized, the potential for coercion is especially serious when it comes to school-aged kids. Add to that the go-along-to-get-along nature of high-school sports, especially football, and it’s hard to see how a student wouldn’t be pressured to pray. When a coach says jump, the players ask how high. So when the coach takes a knee, surrounded by teammates, to perform his so-called personal and private prayer, common sense will tell you what’s going to happen: Students who want to be a part of the team and get playing time are going to join the coach in prayer—even if they have no desire to pray or, indeed, even if the coach’s prayers are directly contrary to their own beliefs. It’s no surprise that some Bremerton parents thanked the school district for putting a stop to the coach’s public prayer because their kids had felt compelled to join.
As the Bremerton School District recognized, no student should feel pressured to pray to play. But the students who could be harmed most by the Supreme Court’s decision in this case are those who most need protecting against coercive religious practices. Students of minority faith groups and nonbelievers are going to feel pressured to participate or risk being viewed by the team as outsiders. And what if the so-called personal prayers preach anti-LGBTQ rhetoric? Imagine how LGBTQ students or students with LGBTQ parents will feel as they are pressured to join in that prayer.
Public-school coaches have the absolute right to believe or not as they see fit. That’s as it should be. But so do the students. And they are who the teachers and coaches are there to serve. That is why the Establishment Clause protects them from religious coercion. And it is why a coach’s right to personal belief does not extend to his duties as a public employee. The fundamental rights of students should not be winnowed away because an obviously public and coercive prayer practice has been artfully framed to the Supreme Court as “private” and “personal.”