The U.S. Supreme Court issued a long-awaited ruling regarding prayer by school employees today. In Kennedy v. Bremerton School District, the Court was asked to decide whether a high school football coach had a constitutionally protected right to pray on the football field following a game. The Court sided 6-3 with the coach. The decision turned on a determination by the majority that the coach’s actions constituted “private speech” and that the school’s interest in avoiding a potential Establishment Clause violation was not sufficient when weighed against the coach’s rights of free speech and exercise of religion.
The case has several potentially far-reaching implications for both the school legal environment, as well as, the broader world of public employment law. The Court appears to have delivered the final blow to what is known as the Lemon test. This doctrine, which had previously informed the analysis of Establishment Clause cases, was quite forcibly rejected by the Court. This means that the concept of “excessive entanglement” can no longer be relied upon when making decisions as to whether to regulate employee speech.
Importantly, the Court distinguished the issue of endorsement from that of coercion. This means that, for now, schools must still prohibit religious conduct that has a coercive effect on students. The ruling expressly references cases in which clergy prayer at an official school graduation ceremony and broadcasting a prayer over the public address system before football games as examples of “problematically coercive” conduct that violated that Establishment Clause.
The ruling is also illustrative of the fact-dependent nature of these First Amendment cases. In deciding for Coach Kennedy, the majority relies heavily on what it viewed as a lack of evidence of coercion. Notably, the dissent directly contradicts the facts relied upon by the majority in reaching this decision. While not completely unexpected or unprecedented, this dispute illustrates both the ever-growing importance documentation plays when taking disciplinary action and the unfortunate reality that even the highest tribunal in the land may disagree on the facts.
We are certain much more analysis will be forthcoming in the near future. In fact, Mike Leasor will be co-presenting a panel discussion on this case and its implications at the upcoming TASA/TASB Convention. In the meantime, the most immediate takeaway for disputes involving employee religious expression appears to be proceed with caution and document, document, document. As always, the attorneys at Leasor Crass, P.C. remain available to assist as we continue to navigate these murky waters.