By Attorney Thomas B. Mooney, Neag School of Education, University of Connecticut

The “Legal Mailbag Question of the Week” is a regular feature of the CAS Weekly NewsBlast. We invite readers to submit short, law-related questions of practical concern to school administrators. Each week, we will select a question and publish an answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues. We may edit your questions, and we will not identify the authors.

Please submit your questions to: legalmailbagcasciacorg.
 
 

 
Dear Legal Mailbag:

I am worried about our baseball coach. He is a clean-living fellow, and normally that would be just great. However, this coach makes no secret of the fact that he is born again and that he views Jesus Christ as his personal savior.

That’s fine with me, of course. But now his players are gathering in a circle before games for a brief prayer for guidance. The coach stands to the side, but he does bow his head and close his eyes when the players do their praying.

I know that teachers and coaches can have a great influence on their students and players, and I thought that school officials are supposed to be neutral in matters of religion. Does Legal Mailbag share my concern that the actions of the coach put pressure on the players to join in the prayer, even when their heart is not in it? Is that legal?

Signed,
A God-Fearing Principal
 

Dear Principal:

You raise a valid concern, and the question here is whether the coach can bow his head in public when his players do, thus joining them in prayer. The courts have ruled that state-sponsored prayer violates the United States Constitution, but they have also ruled that voluntary prayer by students is permissible. To be sure, Legal Mailbag’s knowledge of school law is encyclopedic. However, Legal Mailbag cannot answer your question definitively because Legal Mailbag is not clairvoyant. As described below, we await a ruling on this issue from the United States Supreme Court.

Until now, it seemed clear that coaches (and teachers) must refrain from participating in prayer with students. The First Amendment of the United States Constitution provides that Congress should pass no law respecting the establishment of religion, and the United States Supreme Court has ruled that the Fourteenth Amendment extends to the states the prohibition against government establishment of religion. Perhaps most famously, the Court ruled in 1971 that governmental actions with respect to religion may violate the Establishment Clause unless such actions are consistent with the three-part Lemon test:

• The action must have a secular purpose;
• The primary effect of the action must neither advance nor inhibit religion;
• The action must not result in excessive entanglement with religion.

Lemon v. Kurtzman, 403 U.S. 602 (1971). This Lemon test has been variously criticized or ignored in sorting out the legal issues related to religion in the schools, but it has provided a durable analytical framework for considering such issues. In the immortal words of Justice Scalia:

As to the Court’s invocation of the Lemon test: Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys . . . .

Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993) (Scalia, J. dissenting).

As we consider whether your coach has crossed the line, we must first ask whether his participation in the players’ prayer would be seen as advancing religion. Until recently, Legal Mailbag would not hesitate in saying that such participation would violate the First Amendment, specifically the second prong of the Lemon test, by advancing religion. For example, in 2008, the Third Court of Appeals ruled that a coach in New Jersey could not bow his head during grace before pre-game meals or take a knee during student-initiated prayer in the locker room. Borden v. School District of the Township of East Brunswick, 523 F.3d 153 (3d Cir. 2008), cert. denied 555 U.S. 1212 (U.S. 2009). A significant factor in the court’s ruling was the coach’s history of engaging in such activities:

Without Borden’s twenty-three years of organizing, participating in, and leading prayer with his team, this conclusion would not be so clear as it presently is. We agree with Borden that bowing one’s head and taking a knee can be signs of respect. Thus, if a football coach, who had never engaged in prayer with his team, were to bow his head and take a knee while his team engaged in a moment of reflection or prayer, we would likely reach a different conclusion because the same history and context of endorsing religion would not be present. However, in Borden’s case, the conclusion we reach today is clear because he organized, participated in, and led prayer activities with his team on numerous occasions for twenty-three years. Thus, a reasonable observer would conclude that he is continuing to endorse religion when he bows his head during the pre-meal grace and takes a knee with his team in the locker room while they pray.

Thus, in that case, the angle of the coach’s chin during the students’ prayer had constitutional significance.

Despite the court’s reliance on the coach’s past history, Legal Mailbag has long believed that any participation by a teacher or coach in student prayer would violate the United States Constitution. It may be time, however, to rethink that position. In 2018, the Ninth Circuit denied the request of a football coach for an injunction against the district’s prohibiting him from participating in prayers with players. Kennedy v. Bremerton School District, 869 F.3d 813 (9th Cir. 2018), cert denied 139 S.Ct. 634 (2019). Though the United States Supreme Court denied the coach’s request for review at the early stage of the litigation, Justices Alito, Thomas, Gorsuch and Kavanaugh issued a separate concurring opinion at that time, expressing grave concern over the scope of the Ninth Circuit’s opinion and stating that the Court should revisit this issue at a more appropriate time.

That time has come. The Kennedy v. Bremerton School District litigation continued, and both the district court and the Ninth Circuit dismissed the coach’s claims on the merits. The coach had claimed that he had the right to engage in prayer at the end of games as a matter of free speech and free exercise. The Ninth Circuit Court of Appeals, however, ruled that post-game statements by the coach were in furtherance of his duties as a coach and, as such, not speech protected by the First Amendment, given the Court’s ruling in Garcetti v. Ceballos, 547 U.S. 410 (2006). The Ninth Circuit explained as follows:

In sum, there is no doubt that an objective observer, familiar with the history of Kennedy’s practice, would view his demonstrations as BSD’s endorsement of a particular faith. For that reason, BSD had adequate justification for its treatment of Kennedy, and the district court correctly granted summary judgment to BSD on Kennedy’s free speech claim.

The Ninth Circuit also rejected the free exercise claim of the coach. It noted that the directive against prayer implicated Kennedy’s free exercise rights, but it ruled that the school district had a compelling interest in imposing the prohibition against post-game prayer in order to avoid an Establishment claim.

On January 14, 2022, the United States Supreme Court granted certiorari (took the appeal), and it will hear and decide the case. As with any case that comes to the Court, it may affirm past precedents, or it may make new law. Petitioner has framed the question before the Court as follows:

1. Whether a public-school employee who says a brief, quiet prayer by himself while at school and visible to students is engaged in government speech that lacks any First Amendment protection.
2. Whether, assuming that such religious expression is private and protected by the Free Speech and Free Exercise Clauses, the Establishment Clause nevertheless compels public schools to prohibit it.

Given that the coach’s prayers occurred at the 50-yard line at the end of a game in a football stadium with students joining in, Legal Mailbag questions the accuracy of the Petitioner’s description of the situation as a “brief, quiet prayer by himself at school and visible to students.” However, we will see how the Court views the situation. Stay tuned!