Kennedy v. Bremerton

BJC’S POSITION

Protecting religious freedom in the public schools means ensuring that students can express their religion in ways that do not interfere with education and that public school employees in their official capacity do not advance or denigrate religion.

All families have the right to send their children to public school without the fear that the government is going to interfere with the religious education and practices the families have chosen. 

Teachers are not to lead in religious exercises, and coaches — for all the great work they do to be mentors — are not authorized to lead in religious exercises or denigrate religion while in their official capacity.

There are many ways to express religion in public schools: students can gather before or after school for prayer, teachers can pray in the teachers’ lounge, everyone can bow their heads for private prayer before they eat their meals or before they take their tests, and more. If the coach in this case simply changed the time, place or manner of his prayer (as he has done before), he could fulfill his religious obligations without violating his students’ constitutional rights.

STATUS

The U.S. Supreme Court released a 6-3 decision in the case on June 27, 2022, which will subject students to religious pressure. “This Court pays lip service to religious freedom but throws out any concern about avoiding government pressure on students,” said BJC General Counsel Holly Hollman. “Students should not have to worry about whether their religious beliefs will be in or out of favor with their teachers, coaches and administrators, much less be pressured to participate in religious exercises at school.”  Read BJC’s full reaction at this link. 

BJC filed a brief in the case focusing on the role of public school teachers in protecting the religious freedom of students. The brief was co-authored by Professors Douglas Laycock and Christopher Lund, and it was joined by the American Jewish Committee, Evangelical Lutheran Church in America, and General Synod of the United Church of Christ.

From BJC’s brief

“Petitioner’s theory would take a wrecking ball to Establishment Clause protections in public schools. This Court should reject it.”

“A religious tradition that honors martyrs who went to the lions rather than go through the motions of pretending to pray to a false god is in no position to dispute the feelings of players who refuse to feign prayer while secretly dissenting, or who unhappily join the coach’s prayer for fear of the coach’s power over playing time.”

“Students and teachers both have significant rights of religious free speech and free exercise, but they differ in a fundamental respect. While the role of students is typically private, teachers stand in two sets of shoes at once. Vis a vis their governmental employer, a public-school teacher is both an agent and a private person, and as a private person, endowed with rights under the Free Speech and Free Exercise Clauses. But vis a vis their students, a public-school teacher is the government, bound by the strictures of the Establishment Clause. Both interests must be taken seriously— these cases require courts to strike a balance between the teacher’s constitutional rights and the teacher’s constitutional obligations.”

“All [we] want Petitioner to do is pray in a way that clearly separates his private from his governmental capacity—that does not unite his government role with his private religious exercise, and that does not explicitly or implicitly invite his students to join him. He could delay the prayer at the fifty-yard line. Or kneel to pray in some secluded location near the field, or while the students are otherwise occupied, as he did for several weeks after September 18. … Or he could pray unobtrusively on the sidelines, as a Buddhist coach did … without the public display inherent in kneeling or walking to the fifty-yard line or both. In short, he need only change the time, place, or manner of his prayer to avoid influencing or coercing his students. Changing the time worked for Petitioner before, and it enables him to fulfill his religious obligations without imposing on his students. [We] would consider that a win-win.”

“His claims also rest on a false portrayal of the law as hostile toward religion in the public schools. In fact, much private religious activity occurs in and about public schools within long-established constitutional bounds. In this case, for instance, Petitioner admits that he was offered an accommodation that would allow him to pray after games away from his players. Nor is there any dispute that football players are free to pray on their own, individually or in a group. Such religious expression is common and well-established.”