Supreme Court overturns longstanding protection of students’ religious freedom, sides with football coach

The U.S. Supreme Court ruled in favor of a Washington state high school football coach on Monday, after finding the school district could not ban his practice of praying at the 50-yard line immediately after the games. As BJC General Counsel Holly Hollman explained following the decision, this determination “goes against decades of rulings that have allowed students to enjoy their religious freedom rights without ‘feat of school-sponsored religious practices’.

In the center of the court 6-3 majority opinion, written by Judge Neil Gorsuch, was his determination that the on-field activities of the coach at issue were private speech and not government speech, despite Coach Joseph Kennedy’s continued duties as an employee of a public school. Contrary to the Court of Appeals’ finding that “the facts and record completely disprove Kennedy’s assertion that the prayer was private and personal”, Judge Gorsuch found that the coach was acting in his spare time and not in his official capacity:

During the post-game period when these prayers took place, coaches were free to briefly attend to their personal affairs, from checking sports scores on their phones to welcoming friends and family to the bleachers. We find it unlikely that Mr. Kennedy will fulfill a job-imposed responsibility by praying during a period in which the district has acknowledged that its coaching staff is free to engage in all manner of private speech. . The fact that Mr. Kennedy offered his prayers when the students were engaged in other activities like singing the school fight song further suggests that these prayers were not said as an address to the team, but rather as a private citizen. … [W]What matters is whether Mr. Kennedy offered his prayers while acting within the scope of his coaching duties. And taken together, both the substance of Mr. Kennedy’s speech and the circumstances surrounding it point to the conclusion that he did not.

This reasoning, however, ignored many facts on the record, as well as the school’s important religious freedom interests, as explained by defenders, including BJC.

The BJC’s brief in this case urged the Court to recognize the right of public school students and their parents to be free from religious pressure from authority figures. As BJC Executive Director, Amanda Tyler lamented following the decision, the Court “focused only on the religious exercise of a public school employee and not on the children and families, focused only on the free exercise/freedom of expression while severely limiting the Establishment Clause and its important protections for religious liberty”.

It is important to note that the Court’s decision leaves in place its 2000 opinion in Santa Fe vs. Doe, which hosted unconstitutional prayers said before a high school football game via a PA system. Gorsuch J. distinguished the present case by pointing out that in Santa Fe many students “had to attend games” and were therefore a “captive audience”. The use of the public address system to broadcast prayers seems to remain a limit that public schools cannot cross before this Court.

But as Justice Sonia Sotomayor explained in her dissent, joined by Justices Stephen Breyer and Elena Kagan, this standard does not go far enough to protect religious freedom in the school setting:

[W]Although the Court reaffirms that the Establishment Clause prohibits the government from coercing participation in religious exercise, it applies an almost toothless version of the coercion analysis, failing to recognize the unique pressures students face when participate in school-sponsored activities. This decision does a disservice to schools and the young citizens they serve, as well as to our nation’s longstanding commitment to the separation of church and state.

Judge Sotomayor is absolutely right and pointed out the many facts that the majority ignored or misrepresented in calling Kennedy’s prayers private and silent. No student on the field or parent in the stands celebrating high school football’s quintessential community ritual should have to weigh their participation against the isolating and offensive threat that it turns into a religious spectacle.

This Court’s tearing down of the Establishment Clause’s protections is as detrimental to religious liberty as it is unsurprising, given its history of disregard in recent years for safeguarding the separation of the Church and of State. Those of us who care about religious freedom for all must continue to educate and advocate for the importance of keeping government out of religion. Promoting religion in public schools – whether through direct coercion or subtle pressure – does neither church nor state a service.

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