On Monday, the Supreme Court will hear oral argument in Kennedy v. Bremerton School District, which presents the question whether a school district can punish a football coach for kneeling and saying a brief silent prayer on the fifty-yard line at the end of a game.
In an incendiary screed on Slate last week, Dahlia Lithwick and Mark Joseph Stern grossly misstate the facts of the case in support of their ridiculous contention that the case “was carefully engineered to return prayer to public schools” and “marks an effort to overturn nearly 60 years of precedent protecting schoolchildren from state-sponsored religion by flipping the First Amendment on its head.”
Let’s start with the actual facts, as set forth in the Ninth Circuit opinion that ruled in favor of the school district. All of the quotations in the next five paragraphs are from the “Factual and Procedural Background” of that opinion or, in two instances, from the “directive” that, as the Ninth Circuit states, the school district sent to the coach.
Joseph Kennedy was an assistant coach of the varsity football team as Bremerton High School and the head coach of the junior-varsity team. A practicing Christian, Coach Kennedy believed that at the end of each game he should “kneel at the 50-yard line and offer a brief, quiet prayer of thanksgiving for player safety, sportsmanship, and spirited competition.” His prayer “usually lasted about thirty seconds.”
Kennedy prayed alone when he first started working at Bremerton High School. But when some players asked whether they could join him, he replied, “This is a free country. You can do what you want.” Over time, the group of players joining him in prayer “grew to include the majority of the team.”
Kennedy then “began giving short motivational speeches at midfield after games,” and, as Kennedy later acknowledged, these speeches “likely constituted prayers.” The school district then advised Kennedy that his motivational speeches “must remain entirely secular in nature” and that any religious activity on his part while on duty “must be physically separate from any student activity, and students may not be allowed to join such activity.” In response, Kennedy “temporarily stopped praying on the field after football games.”
In a letter from his lawyer on October 14, 2015, Kennedy informed the school district that he “would resume praying on the fifty-yard line immediately after the conclusion of the October, 16, 2015 game” and that “he would allow students to join him in that religious activity if they wished to do so.” On October 16, “Once the final whistle blew, Kennedy knelt on the fifty-yard line, bowed his head, closed his eyes, ‘and prayed a brief, silent prayer.’”* “A photo of this scene . . . in the record . . . depicts approximately twenty players in uniform kneeling around Kennedy with their eyes closed, a large group of what appear to be adults standing outside the ring of praying players, and several television cameras photographing the scene.” (The players kneeling around Kennedy, it turns out, were evidently from the opposing team. The Ninth Circuit quotes, and does not dispute, Kennedy’s testimony on that point, and the school district’s complaint to Kennedy about his prayer on October 16 acknowledges that his team’s “traditional singing of the school fight song” was under way when Kennedy said his prayer.)
On October 23, the school district “sent Kennedy a letter explaining that his conduct at the October 16 game violated [the school district’s] policy.” That letter also directed Kennedy that “you may not engage in demonstrative religious activity, readily observable to (if not intended to be observed by) students and the attending public.” After games on October 23 and October 26, Kennedy “engaged in the same behavior in violation of [the school district’s] directive.” The school district then suspended him from his duties.
Now let’s look at how Lithwick and Stern mischaracterize things:
Joe Kennedy was a football coach in Washington state who led explicitly religious prayer circles with students at the 50-yard line after games. When the school district discovered this conduct in 2015, it repeatedly sought to accommodate his beliefs, asking him to pray in a less public location to avoid conveying the school’s endorsement of his beliefs. Kennedy refused, instead hiring lawyers at the far-right First Liberty Institute to threaten the school with a lawsuit.
He and his lawyers then launched a media blitz, falsely claiming that he had been persecuted for quiet, private prayer. School district officials were inundated with hateful threats from the public. His postgame prayer circles then became a spectacle, with media and spectators rushing onto the field to watch or join. At one game, students racing from the stands tripped over cables and knocked over members of the school band; parents later complained about the “stampede” threatening their children’s safety. In effect, Kennedy had hijacked the school’s football games to pray with team members in the most public manner conceivable. After he refused multiple offers of potential accommodations, the school placed him on paid administrative leave.
It is true that Coach Kennedy “led explicitly religious prayer circles with students,” via his motivational speeches, for some period of time until the school district advised him not to. But when Lithwick and Stern state that “Kennedy refused” the school district’s efforts at accommodation and that he continued his “postgame prayer circles,” they hide from their readers that Kennedy (presumably on the good advice of the First Liberty Institute) had abandoned those motivational speeches and had returned to praying “a brief, silent prayer” on his own, while not affirmatively barring others from kneeling around him. Their claim that he “hijacked the school’s football games to pray with team members in the most public manner conceivable” is absurd.
Lithwick and Stern also conveniently omit any mention of the school district’s policy. I don’t doubt that the “spectacle” they decry (and that the Ninth Circuit also describes) presented the school district a difficult challenge. But the constitutional question is whether it was permissible for the school district to respond to that challenge by directing Coach Kennedy that he “may not engage in demonstrable religious activity, readily observable to . . . students and the attending public.” The fact that Lithwick and Stern don’t mention the policy is quite a signal that even they can’t defend it (much less contend that Coach Kennedy “carefully engineered” its intrusion on his constitutional rights).
In its ruling more than five decades ago in Tinker v. Des Moines Independent School District (1969), the Court famously stated that “it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” That, it said, had “been the unmistakable holding of this Court for almost 50 years” before 1969. It likewise is obviously true that neither students nor teachers — including coaches — shed those rights or their rights to religious liberty under the same First Amendment at a school’s football game.
So Lithwick and Stern are patently wrong to think that protecting Coach Kennedy’s constitutional rights would somehow “flip[] the First Amendment on its head” and “erase[] the rights of children who wish to avoid religious coercion at school.” If there are legitimate concerns that a teacher’s or coach’s constitutionally protected religious activity might subject students to religious coercion, there are surely ways for a school district to address those concerns without violating the Constitution.
* One confusing element in the Ninth Circuit’s presentation of facts is that it also states that “Kennedy’s counsel acknowledged in his October 14, 2015 letter that Kennedy’s prayers were ‘verbal’ and ‘audible,’ flatly contradicting Kennedy’s own recounting.” But a letter written on October 14 obviously couldn’t contradict a recounting of what happened two days later, so it would be strange to read this sentence as contradicting the Ninth Circuit’s own recitation of what Kennedy did on October 16. In any event, it is difficult to see how anything turns on whether Kennedy’s prayers were silent or audible.