December 2017 Newsletter – School Districts
Prayer in School
The Ninth Circuit Court of Appeals recently handed down a First Amendment free speech ruling regarding prayer in schools that delineated where a citizen’s rights end and the rights of the State prevail. In Kennedy v. Bremerton Sch. Dist. ((2017) U.S. App. LEXIS 16106.), the Ninth Circuit affirmed the lower court’s decision denying an injunction to an assistant high school football coach employed by the Bremerton (Washington) School District that would have allowed the coach to resume his post-game practice of kneeling and praying on the high school football field’s fifty yard line with members of his football team while wearing apparel with the high school’s logo. The Court held that because this demonstrative speech fell within the scope of the coach’s typical job responsibilities, he was speaking as a public employee. Therefore, the district was permitted to order the coach to discontinue his post-game practice.
Additionally, the Court determined that the coach’s actions could constitute a violation of the Establishment Clause of the Constitution, which provides that, “Congress shall make no law respecting an establishment of religion.” (U.S. Const. amend. I.) The Establishment Clause not only prohibits the government from making any law establishing a religion, it also prohibits any governmental action which favors one religion over another. (Id.) For First Amendment purposes, when employees such as teachers make statements within the scope of their job responsibilities, they are not speaking as citizens, but rather as public employees. Thus, the Court held, the coach’s actions, if allowed to continue, could have been viewed as if the district was endorsing religion.
In reaching its determination, the Ninth Circuit relied upon a two-part analysis to determine whether an employee’s speech occurs within the framework of public employment. The first step is a factual determination of the scope and content of the speaker’s job responsibilities. Second, its constitutional significance must be determined as a matter of law. In the first part of the analysis, the Court found that the coach’s duties extended beyond those directly related to football, and that was also expected to act as a mentor and role model for his student-athletes. It also considered his demonstrative speech and how he conducted himself during the course of the football games while in the public eye. The Court found the coach’s prayers were demonstrative speech which, though after the game, occurred at a time that was within his job responsibilities, at a school event, while he was wearing clothing with the school logo, and at a time when he was on duty as a supervisor. Accordingly, based upon the context of where he was speaking, in combination with his coaching position, the Court determined that the coach’s speech was that of a public employee and the district was therefore justified in establishing restrictions.
In examining the constitutional significance of this issue, and for determining whether there is the potential for an Establishment Clause violation, the Ninth Circuit looked at whether an objective observer, familiar with the context of the conduct, would consider the coach’s conduct an endorsement of religion in a public school. It determined that if the coach had been allowed to resume his practice of praying after the football games, there was a likelihood that his players would have joined him. Given that the coach’s actions took place on the most prominent location on the field, at a time when the coach was responsible for supervising his players, while he was wearing his school logoed clothing and acting while participants were still in the bleachers to witness the episode, the Court determined that an objective, knowledgeable observer witnessing this conduct would likely conclude that the district was not only endorsing religion but, based on the coach’s posture, Christianity in particular. This too justified the district’s restrictions on the coach’s speech.
The Court also expressed concern that school prayer can be viewed as a form of subtle coercion. In other words, members of the football team may feel pressured to participate in the midfield prayer not because of their beliefs, but because they wanted to be in the coach’s good graces or to not feel alienated from or judged by their teammates or fellow students. The Court noted that, on the occasions when the coach did not pray on the field, no one else from the school initiated a prayer.
This is not to say that, under limited circumstances, prayer in school might be permitted. The Court noted that the Bremerton School District had a “Religious-Related Activities and Practices” policy in place, which allowed for non-disruptive prayer at any time not in conflict with learning activities. The school district also offered the coach an accommodation which would have allowed him to pray in a setting which would not have caused an Establishment Clause violation. According to the Court, either of these would have been constitutionally permitted expressions of free speech by the coach and students.
If you have any questions or concerns, or if you wish to further discuss this or other similar issues, please feel free to contact our law firm.
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