First Amendment Imbalance: Kennedy v. Bremerton School District

Steven K. Green*

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. 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. 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. 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. 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.

© 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).