Friday, January 25, 2019

By Anna Salvatore

I was hoping that the justices would hear Kennedy v. Bremerton, a case about a high school football coach who claims that he was fired for praying post-game, because it would’ve provided a great mix of high school and Supreme-Court-related content. Yet the Court declined to hear Kennedy on Tuesday, with the four conservative justices citing concerns about the factual record. Their biggest qualm was that the lower court didn’t definitively say whether the school district fired Coach Kennedy for praying or for neglecting to supervise his students. Until the justices knew for sure, they were unwilling to delve into the important constitutional issues at stake.

First, some context. Patrick Kennedy served as the assistant football coach for Bremerton High School from 2008 to 2015. As a Christian, he felt compelled to pray at the end of each football game to give thanks “for player safety, sportsmanship, and spirited competition” (cert petition). Sometimes students would join him in prayer, although he didn’t invite them to do so. Then, as more team members began praying with him, Kennedy made nonsectarian religious pep talks. These practices got him into some trouble in September 2015, when an employee from an other high school complained to BHS administrators about the post-game gatherings. Soon the BHS superintendent was investigating whether Kennedy had complied with the district’s religion-related protocol.

The superintendent told Kennedy that he was allowed to pray post-game, as long as praying didn’t interfere with his job responsibilities, but students would not be permitted to join him. The superintendent also advised Kennedy to pray in a non-demonstrative way “to avoid the perception of endorsement [of religion].” To make a long story short, Kennedy didn’t follow this advice. He prayed on several more occasions until he was placed on administrative leave in November 2015. The district explained that he had flouted their religious policy, and that by praying while he was on-duty, he had also neglected his supervisory duties over his players.

Kennedy sued Bremerton in August 2016, claiming that it had violated his rights under the First Amendment and Title VII of the Civil Rights Act. He argued that he wasn’t speaking as a coach but as a private citizen when he prayed post-game. The Court of Appeals for the Ninth Circuit disagreed. It said that when public employees engage in speech that’s part of their official duties, they are not speaking as private citizens and their speech is thus subject to employer discipline. Because Kennedy’s responsibilities included “modeling good behavior while acting in an official capacity” in front of students and spectators, the Ninth Circuit held that his prayers were unprotected speech.

On Tuesday, Justices Alito, Thomas, Gorsuch, and Kavanaugh expressed their disagreement with the Ninth Circuit’s holding:

The Ninth Circuit’s opinion applies our decision in Garcetti v. Ceballos, 547 U. S. 410 (2006), to public school teachers and coaches in a highly tendentious way. According to the Ninth Circuit, public school teachers and coaches may be fired if they engage in any expression that the school does not like while they are on duty, and the Ninth Circuit appears to regard teachers and coaches as being on duty at all times from the moment they report for work to the moment they depart, provided that they are within the eyesight of students. Under this interpretation of Garcetti, if teachers are visible to a student while eating lunch, they can be ordered not to engage in any “demonstrative” conduct of a religious nature, such as folding their hands or bowing their heads in prayer. And a school could also regulate what teachers do during a period when they are not teaching by preventing them from reading things that might be spotted by students or saying things that might be overheard.

I think they’re kind of right. Garcetti held that employers can’t unduly limit their employees’ speech by creating excessively broad job descriptions. “The listing of a given task [in a job description],” the 5-4 majority wrote, “is neither necessary nor sufficient to demonstrate that [the employee’s speech] is within the scope of [his or her] professional duties.” So perhaps the Ninth Circuit erred here by allowing the school district to invoke Coach Kennedy’s broad job description to punish him. Modeling good behavior is a vague requirement, and it gives the district too much power to restrict seemingly non-professional speech such as prayers.

On the other hand, I’m not sure that the Ninth Circuit’s opinion was “highly tendentious.” Consider the following sentence from Garcetti: “Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen.” The question is, did Kennedy’s speech owe its existence to his professional responsibilities? And one could reasonably answer ‘yes.’ If Kennedy wasn’t a football coach, he wouldn’t have had access to the fifty yard line of the football field. Nor would he have been able to lead students in prayer or give them motivational talks. So even though Ninth Circuit judges may have slightly misinterpreted Garcetti, I don’t think it’s fair to accuse them of improper bias.

Now onto the final paragraph of the conservative justices’ statement. There they made “huge news,” according to Steven Mazie of the Economist, by casting doubt on Employment Division v. Smith. The landmark 1990 case held that facially neutral and generally applicable laws are constitutional even if they forbid some religious conduct. Although the opinion was written by Justice Scalia, many conservatives now think that it undercuts the Free Exercise Clause, which says that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Count the Supreme Court’s right wing in this camp, as they said on Tuesday that Smith “drastically” limits Free Exercise protections.

Will the Court revisit Smith soon? Hard to say. It would take five votes to overturn the precedentand Chief Justice Roberts didn’t sign on to this statement. I hate to end this post with the boilerplate phrase, “We’ll have to wait and see,” but that’s all we can do until the Court makes its next move on Free Exercise.

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One thought on “Friday, January 25, 2019

  1. “If Kennedy wasn’t a football coach, he wouldn’t have had access to the fifty yard line of the football field.”

    That’s not necessarily true. After a game (at least one not followed by another game — particularly, I’m thinking a JV game followed by a varsity game), I’m not sure a school cares whether people come onto the field. The game’s over; interlopers are not in the way; family and friends might want to come talk to congratulate or commiserate with individual players (assuming it didn’t get in the way of any coach postgame locker-room speech). This isn’t NFL or NCAA Division I college where field access is much likelier to be restricted. I remember no particular concerns along these lines after games at my high school when I was there.

    Maybe there are high schools that are hard-nosed about this (and uniformly so, not just against religious coaches). In a whole country of schools, probably there’s at least one — perhaps a Texas school with an umpteen-billion-dollar football field whose condition they really really really really care about. But it wouldn’t have been difficult to get down on the field after games at my high school, no matter if you were coach or school employee or someone else.

    I’m not so sure it’s sensible to hold coaches at high schools and colleges to different standards this way, but if we’re running this logic to ground, it seems like qualifications for access to midfield after the game present a factual question.

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