The U.S. Supreme Court to Take on Public Employees’ Free Exercise in Public Schools

By Jordan Brickman

On January 14, 2022, the U.S. Supreme Court agreed to hear a case where the outcome may require public employers to reevaluate their policies regarding employees’ unprotected speech. [1]

In 2015, a Washington state public high school football coach was terminated following his refusal to accept the school district’s request that he relocate his post-game ritual of leading a public prayer on the 50-yd line to a more private location so that students would not be pressure to join. The coach sued the school district for violating his constitutional right to free speech and free exercise, as well as for employment discrimination based on his religion.  

On March 18, 2021, the Ninth Circuit Court of Appeals determined that Supreme Court precedent compelled the conclusion that the school district would have violated the Establishment Clause by allowing the Coach to pray at football games, finding in favor of the school district.[2]  

By taking on this issue, the Supreme Court will have to balance the interests of a public employee’s First Amendment right to free exercise and free speech against a public entity’s responsibility to maintain neutrality with respect to religion and non-religion, as mandated by the Establishment Clause of the U.S. Constitution.

Takeaway

As in Kennedy v. Bremerton School District, a public school may find itself in violation of the Establishment Clause if it does not restrict its employees’ public demonstrations of faith, but if it acts to prohibit such demonstrations, it risks violating an employee’s right to free exercise and free speech.

Previous attempts to balance these interests have resulted in fact specific determinations that offer little certainty. With the changed landscape of the Supreme Court, it is difficult to determine which side of the balance this case may fall.  Campbell Litigation will provide updates on the Supreme Court’s decision, which should provide clarity for public employers and its responsibilities under the Establishment Clause.

[1] Kennedy v. Bremerton Sch. Dist., 991 F.3d 1004, 1010 (9th Cir. 2021), cert. granted, No. 21-418, 2022 WL 129501 (U.S. Jan. 14, 2022).

[2] Id. at 1022-23.