The Supreme Court on Monday looked poised to side with a high school football coach who claims he was unfairly suspended for praying on the field.
The Bremerton School District in 2015 suspended coach Joe Kennedy, claiming his postgame prayers were designed to cause a spectacle. Kennedy pushed back, claiming he was exercising his First Amendment rights. During Monday's arguments, the justices seemed to take Kennedy's side.
Justice Brett Kavanaugh pushed back on the district's characterization of Kennedy as an attention-seeker and said it's hard for a head coach to do anything discreetly during an athletic event. Justice Samuel Alito took issue with the district's rationale for suspending Kennedy.
Kennedy's case comes amid a broader reckoning with First Amendment rights in schools. The justices are grappling with a school choice case that's poised to deliver First Amendment protection to families who use vouchers at religious schools. And the Court last term telegraphed a reappraisal of its school speech cases in a minor case involving a vulgar cheerleader.
The school district and the coach put the controversy in starkly different lights. To the district, Kennedy is an attention-grabber who, to cause a stir, violated an understanding that he would pray after spectators departed. They say Kennedy enlisted lawyers at the group First Liberty to promote a midfield prayer during Bremerton High School's 2015 homecoming game.
The event grew into a spectacle involving dozens of players, fans, reporters, a state lawmaker, and a local satanist group. Parents complained to the district and confronted athletic personnel. District officials claim they had no choice but to suspend Kennedy, who did not reapply for a coaching position.
But Kennedy's lawyers say the district created a fuss with its unreasonable policies. They acknowledge the run-up to Kennedy's suspension was chaotic but note that the district did not cite the homecoming game in their suspension. Instead, the district points to midfield prayers at two October games where Kennedy prayed inconspicuously, without students.
"As much as the district would like to change the subject, the record is clear that Coach Kennedy was fired for that midfield prayer, not for any earlier practices," said Paul Clement, who represented Kennedy at Monday's arguments.
The Court had its hands full sorting through the competing narratives. But getting the facts straight was important to several justices, a sign that the Court will avoid a blockbuster decision.
"This may be a case about facts and not really much about law," Justice Stephen Breyer said.
Justice Sonia Sotomayor said Kennedy's actions were coercive. A couple of parents said athletes felt pressured to join him, she noted, and his midfield prayers only came to the district's attention when a coach from a different school alerted them.
Alito repeatedly asked Robert Katskee, who represented the district, to elaborate on the district's reasons for suspending the coach. In employment discrimination cases like Kennedy's, Alito argued, everything turns on the employer's stated reasons for penalizing the employee. Additional reasons—like the run-up to the decisive October games—don't matter. Katskee was evasive.
School prayer cases involve a difficult balancing exercise. Students and personnel have the right to pray. But they also have the right to be free from coercion. And the government has the right to ensure its schools are safe and orderly.
A bevy of hypotheticals underscored the difficulty and the likelihood of a narrow decision.
Alito asked if an ordained minister could coach a high school team. Sotomayor wondered if teachers could pray between classes, when they're supposed to answer questions and supervise students. Kavanaugh pressed about a coach who makes the sign of the cross at the start of a game.
Kennedy's case attracted attention from the NFL. Minnesota Vikings quarterback Kirk Cousins filed an amicus brief backing Kennedy, joined by Chicago Bears quarterback Nick Foles and Hall of Famers Joe DeLamielleure and Jack Youngblood.
A decision in the case, No. 21-418 Kennedy v. Bremerton School District, is expected by summer.