Notre Dame Law Review

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Steven K. Green*

For several years, prior to the COVID shutdowns, I conducted workshops for the Oregon School Boards Association on First Amendment issues arising in public schools.  The annual workshops were for newly elected school board members from across the state.  A significant number of the attendees hailed from smaller communities in the eastern and southern parts of Oregon, those politically conservative bastions in an otherwise politically blue state.  When the topic turned to prayer and Bible reading, I strove to provide a balanced, but legally resolute account of the rules governing student and teacher religious expression during the school day.  Projecting a PowerPoint image of a teacher praying with her students,[1] I explained the concerns about student impressionability and subtle coercive pressure in such situations, as well as how such exercises might trench upon parental rights to control the religious upbringing of their children.[2]  To a person, the attendees would nod their heads in agreement, reflecting a collective intuitive sense about the delicate issues involved.  That unanimity of thought quickly fell away, however, with my next slide showing a football coach kneeling in prayer with his players, with several board members expressing the belief that such common activity was somehow different.  The second slide provided a nice segue for a larger discussion about how teachers and coaches serve as role models for their students, and of the various forms of subtle coercive pressure that exist in school environments.  I cannot say that I was always successful, but usually a majority of attendees concluded that the rules governing teacher religious expression should apply with equal, if not greater, rigor in situations involving coaches and their players due to the significant influence that coaches commonly have over their student athletes as mentors and role models.[3]

This Essay seeks to unpack the competing legal claims presented by a public-school employee engaging in religious expression in conjunction with their work duties and in the presence of students.  The competing First Amendment issues are several: nonestablishment, free exercise, free speech (including the government-employee speech doctrine), and parental expressive rights.  These various issues came to a head in 2022 in Kennedy v. Bremerton School District where a Court majority affirmed the right of a high school football coach to engage in demonstrative prayers on the football field at the conclusion of a game.[4]  In so holding, the majority prioritized free exercise and private free speech claims over the remaining values of nonestablishment, government control of employee speech, and parental rights.  In reaching its conclusion, the majority ignored precedent and misconstrued the facts by recharacterizing Coach Joseph Kennedy’s overt prayers undertaken while engaged in his official duties as “private” constitutionally protected speech.[5]  In the process, the Court disregarded its longstanding acknowledgment of the heightened constitutional concerns about the coercive nature of religious expression within public-school contexts.[6]  Even if one accepts the majority’s skewed version of the facts, the Court should have deferred to the School District’s interests in avoiding an Establishment Clause violation and workplace disruption by holding that they outweighed Kennedy’s speech interests.  And finally, as even the concurrences acknowledged, the Court failed to provide any guidance for evaluating government employee speech challenges that involve a “brief lull” in job responsibilities, other than to prioritize an employee’s religious speech over other forms of speech.[7]  In the end, the majority not only ignored crucial facts in the case and a significant body of constitutional jurisprudence, it created an imbalance within the First Amendment, as well as much uncertainty about the breadth of the Kennedy decision as it affects the workplace management for one of the nation’s largest government employers, the public schools.[8]

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© 2024 Steven K. Green.  Individuals and nonprofit institutions may reproduce and distribute copies of this Essay in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law
Review Reflection, and includes this provision in the copyright notice.

*Fred H. Paulus Professor of Law, Willamette University College of Law.  In full disclosure, I collaborated on an amicus brief at the Supreme Court in Kennedy v. Bremerton School District.  See Brief of Church-State Scholars as Amici Curiae in Support of Respondent, Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407 (2022) (No. 21-418).

[1]The 1963 photograph, taken concurrently with litigation in the School District of Abington Township v. Schempp case, 374 U.S. 203 (1963), can be found on the cover of my book, The Third Disestablishment: Church, State, and American Culture,1940–1975 (2019).

[2]See Edwards v. Aguillard, 482 U.S. 578, 584 (1987) (“Families entrust public schools with the education of their children, but condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student and his or her family.  Students in such institutions are impressionable and their attendance is involuntary.”).

[3]See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 311–12 (2000) (acknowledging the additional concerns about student coercion associated with participating in athletic events); see also Kennedy,142 S. Ct. at 2443 (Sotomayor, J., dissenting) (“Students look up to their teachers and coaches as role models and seek their approval.  Students also depend on this approval for tangible benefits.  Players recognize that gaining the coach’s approval may pay dividends small and large, from extra playing time to a stronger letter of recommendation to additional support in college athletic recruiting.  In addition to these pressures to please their coaches, this Court has recognized that players face ‘immense social pressure’ from their peers in the ‘extracurricular event that is American high school football.’” (quoting Santa Fe, 530 U.S. at 311)).

[4]Kennedy, 142 S. Ct. at 2432–33.

[5]Id. at 2424–25.

[6]Lee v. Weisman, 505 U.S. 577, 588 (1992); Edwards, 482 U.S. at 584.

[7]Kennedy, 142 S. Ct. at 2433, 2433–34 (Alito, J., concurring); id. at 2433 (Thomas, J., concurring).

[8]See Ira C. Lupu & Robert W. Tuttle, Kennedy v. Bremerton School District—A Sledgehammer to the Bedrock of Nonestablishment,Am. Const. Soc. Expert F. (June 28, 2022), https://‌www.acslaw.org‌/expertforum‌/kennedy-v-bremerton-school-district-a​-sledgehammer-to-the-bedrock-of-nonestablishment‌/ [perma.cc/S3XY-GU7E]; Isabella Henry, Note, Kennedy v. Bremerton School District: Throwing a Red Flag for the Public-Employee Speech Arena to Challenge the Court’s Hail Mary, 82 Md. L. Rev. 1067, 1068 (2023); Ann L. Schiavone, A “Mere Shadow” of Conflict: Obscuring the Establishment Clause in Kennedy v. Bremerton, 61 Duq. L. Rev. 40, 40–42 (2023).  For a contrary view, see Stephanie H. Barclay, The Religion Clauses After Kennedy v. Bremerton School District, 108 Iowa L. Rev. 2097 (2023).