Supreme Court Justices Criticize School’s Discipline of Football Coach for Prayer During Game

The Supreme Court recently declined to hear a case involving a public school district that fired its football coach for kneeling and praying on the football field after games. If the Supreme Court isn’t even hearing the case, why is it news? Typically, when the Court decides not to hear a case, it simply says so and moves on. But in this case, Justice Alito issued a rare statement, joined by three other justices, suggesting that the school likely violated the coach’s First Amendment free speech rights if it fired him for praying while on the job. The statement sharply criticized both the trial court and the appellate court decisions below, which the justices read as saying that school employees can be fired for “any expression that the school doesn’t like while they are on duty.” The statement is an important reminder that the current Supreme Court may give public schools less leeway in disciplining teachers when First Amendment rights are implicated than previous Courts allowed.

In Kennedy v. Bremerton School District, a high school football coach, Joseph Kennedy, sued after he lost his job for kneeling and praying on the 50-yard line immediately after football games. Kennedy claimed that his firing violated his First Amendment right to free speech. Kennedy asked a trial court to order the school, while his lawsuit proceeded, to reinstate him and allow him to pray after games. The trial court ruled that Kennedy did not show that he was likely to succeed on his First Amendment claim, and so declined to enter the order he requested. The Ninth Circuit Court of Appeals, which covers many western states, agreed.

Kennedy tried to appeal to the Supreme Court, which decided it could not hear his case. In a statement joined by Justices Thomas, Gorsuch, and Kavanaugh, Justice Alito said that the Court could only hear the case if the record below clearly stated why the school fired Kennedy. The school had given two reasons for its action: (1) that when Kennedy was praying he was not supervising students, which his coaching role required; and (2) that Kennedy’s prayers could be seen as an endorsement of religion by the district. Justice Alito suggested that if Kennedy was fired for failing to supervise students, it would be appropriate, but if he were fired simply for praying on the job while students and parents were present, it would not. Because the lower courts did not decide why he was fired, however, the Supreme Court could not hear the case.

The justices hinted that if this or a similar case came before them in the future, they would apply a much broader interpretation of the First Amendment than the Ninth Circuit did with Kennedy. Justice Alito was concerned that the Ninth Circuit believes “public school teachers and coaches may be fired if they engage in any expression that the school does not like when they are on duty,” and regards “teachers and coaches as being on duty at all times from the moment they report for work to the moment they depart, provided they are within the eyesight of students.” The justices warned that if the Ninth Circuit applied that standard in future cases “involving public school teachers or coaches, review by this Court may be appropriate.” The justices also criticized a suggestion by the Ninth Circuit that a coach cannot serve as a good role model if engaging in “any manifestation of religious faith—even when not on duty.”

Finally, and notably, Justice Alito stated that although Kennedy’s lawsuit claimed his firing violated his First Amendment right to freely exercise his religion, his petition to the Supreme Court was based only on free speech. Justice Alito stated that this might have been because prior Supreme Court precedent “drastically cut back on the protections provided by the Free Exercise Clause” by opining “that Title VII’s prohibition of discrimination on the basis of religion does not require an employer to make any accommodation that imposes more than a de minimis burden.” Alito’s reference to claims that Kennedy did not even raise before the Court could be a signal that he and the other justices who signed onto Alito’s statement might reconsider those prior Supreme Court cases in the future if asked.