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Hannah Santos, Religious Freedom Program Coordinator at Freedom Forum (Bio) and
Zachary Markwith, Education Director at Islamic Networks Group (Bio)
October 11, 2022
On June 27, 2022, the United States Supreme Court ruled 6-3 in favor of a high school football coach, Joseph Kennedy, who sued Bremerton School District in Washington State because his contract was not renewed in response to Kennedy praying on the field immediately following games. The religious clauses of the First Amendment guarantee that government “shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof.” In public schools this means that teachers and other school employees are not allowed to promote a particular religion or pray with students, although teachers and staff retain the right to practice their religion privately.
This case is particularly relevant to the work we do at Islamic Networks Group (ING), including with our Islamic Speakers Bureau (ISB) and Interfaith Speakers Bureau (IFSB), who offer presentations and panels across the nation about Muslim, Christian, Jewish, Buddhist, and Hindu Americans to schools, colleges, universities, and other institutions. Since the founding of ING in 1993, our speakers have been careful to abide by the First Amendment and the separation of church and state when teaching about religion. ING asked Freedom Forum, an organization with leading experts on the First Amendment, to collaborate on this article to help explain the Supreme Court ruling and its implications for teachers, guest speakers, students, and parents.
Summary of Kennedy v. Bremerton School District Ruling
Kennedy v. Bremerton School District considers the balance between the Free Exercise Clause (which protects an individual’s right to freely act upon their religion) and the Establishment Clause (which requires a public institution to be neutral toward religion) of the First Amendment. The majority opinion, authored by Justice Neil Gorsuch, decisively affirms Coach Kennedy’s prayer as protected by both the Free Exercise and Free Speech Clause of the First Amendment and rejects the school district’s concerns about an Establishment Clause violation.
The Court’s opinion addressed three main topics—Free Speech and Free Exercise claims, Establishment concerns, and the potential coercion of students. Justice Gorsuch begins by addressing the Free Speech argument and affirming Kennedy’s prayers as private speech, not government speech. The Court’s evaluation emphasizes the timing of the prayers; Kennedy’s religious exercise is considered private precisely because it was performed after the game, during a moment where he was functionally off duty. According to Justice Gorsuch, because Kennedy waited until a moment when school faculty were permitted to engage in personal activities—such as taking a private phone call or talking to a friend in the stands—and did not intentionally direct his prayers toward a captive audience of players, it should be considered private speech.
The Establishment concerns, Gorsuch asserts, rely upon a “false tension” between the Free Exercise Clause and the Establishment Clause. He argues the school district’s commitment to religious neutrality does not justify disciplinary action toward a faculty member for choosing to participate in private prayer. Justice Gorsuch rejects the school district’s Establishment concerns as a “self-imposed trap,” arguing a “reasonable observer” would recognize that Coach Kennedy was not speaking on behalf of the school.
Finally, the Court dismissed concerns of student coercion because, according to Gorsuch, there was “no indication in the record that anyone expressed any coercion concerns to the district.” In footnote 6, Gorsuch affirms had there been evidence of coercion, this would be relevant to the Court’s decision. In this case, however, such evidence didn’t exist.
As many have noted, there is substantial disagreement regarding the facts of this case. Much of the dissent, authored by Justice Sonia Sotomayor, is spent addressing the discrepancies between conflicting reports of the post-game prayers. According to Justice Sotomayor, there is substantial evidence Kennedy “consistently invited others to join” his “intentionally, visually demonstrative” prayers. While these discrepancies are critical to consider when evaluating the case at large, the factual circumstances accepted by the majority opinion matter more when considering how to move forward.
How Does the Ruling Impact Prayer in Schools?
According to majority opinion, Kennedy’s prayer is constitutionally protected because—and only because—it meets the following criteria:
- “Private,” “brief,” and “quiet”
- Performed while off duty
- Not directed to a “captive audience”
- Students were not encouraged or required to participate.
Only if all these criteria are met, may a public-school teacher or staff member engage in prayer on school grounds. In this way, much of the precedent regarding prayer in schools remains unchanged. School-sponsored prayer, delivered by either a teacher or a student, remains unconstitutional. While it is tempting to frame Kennedy v. Bremerton as a groundbreaking case, the limitations surrounding religious exercises by public-school faculty remains largely the same.
Unfortunately, coverage of this decision has been plagued with misinformation. Framed as an unequivocal win for religious freedom, some have taken the Court’s decision as a green light to welcome all prayer into the classroom. In reality, school-sponsored prayer in the classroom infringes upon the religious freedoms of all students, particularly non-religious students and those of minority faiths. This erroneous framing of the Kennedy decision perpetuates false narratives about religion in schools and creates further confusion for teachers in the classroom.
Let us now consider the following scenarios, applying the Kennedy ruling and other precedents to determine the constitutionality of religious exercises on school grounds.
1. A Muslim teacher who performs the Islamic five daily prayers can only make the noon prayer in her classroom. What should she do?
A Muslim high school biology teacher who prays five times a day can only make the noon (zuhr) prayer during her lunch break. Due to the First Amendment and the physical nature of the prayer (i.e., standing, bowing, and prostrating), she prefers to perform the prayer while alone in her classroom. Teachers of any faith may pray privately on school grounds during lunch, other breaks, and while off duty provided they do not invite students to participate. The Kennedy ruling confirms that the prayer must be private and not during instruction or directed at students, who cannot be encouraged or required to participate. Thus, the teacher may pray privately in her classroom during her break and when she is off duty.
2. A Jewish student feels pressured to participate in a prayer before football games with his Christian teammates. What should he and they do?
A Jewish middle school student, while not required, feels informally pressured to participate in a prayer before football games with his Christian teammates. He is worried about feeling singled out as the only person not praying and not feeling a part of the team. Jewish students, as well as students of other religious minorities, may be particularly uncomfortable when student-led group prayers, for example, invoke “Jesus” or include the sign of the cross. The First Amendment protects the rights of students of all religions to engage in personal and group worship at school if it is not disruptive to school activity. While the Kennedy ruling reminds us that student prayers and clubs cannot be led by teachers or other school staff, student-led, student-initiated prayer is constitutionally protected. Thus, the students have the right to engage in prayer during school, games, and at other times as long as it does not disrupt classroom instruction and is not led by a member of the school staff. The Jewish student—and students of other religious minorities and non-religious students—may ask his teammates to simply invoke “God” or have a moment of silence before their games to include all teammates who may want to participate. Alternatively, he can choose not to participate in the group prayer.
3. A Christian guest speaker is invited to teach a class session about the Bible as literature. Are devotional readings of the Bible allowed in this context?
A Christian guest speaker is invited to teach a class session on the Bible as literature during a middle school English class. He has been asked to read selections from the King James Bible, including passages from the Psalms and Gospels. The guest speaker asks the teacher if he can begin the class with a devotional reading of the Lord’s Prayer from the Gospel of Matthew. While an academic reading uses text to further understand the role of religion strictly within the context of the literature, a devotional reading uses text to encourage adherence to a particular tradition. In 1963, the Supreme Court ruled in Abington School District v. Schempp that state-sponsored devotional readings of the Bible or other religious texts in the classroom violate the First Amendment but encouraged studying the Bible in school in the context of literature, comparative religion, or history courses. Thus, the teacher should inform the guest speaker that he may not read the Bible devotionally with students during the class session but is welcome to teach and discuss the Bible as literature.
Teaching About Religion Guidelines
Teachers and guest speakers must be able to distinguish between teaching religion or religious indoctrination and teaching about religion in public schools. State-sponsored religious indoctrination is a violation of the First Amendment, whereas teaching about religion is protected by the First Amendment. The Freedom Forum published a series of guidelines for teaching about religion:
- The school’s approach to religion is academic, not devotional.
- The school strives for student awareness of religions but does not press for student acceptance of any one religion.
- The school sponsors study about religion, not the practice of religion.
- The school exposes students to a diversity of religious views; it does not impose any particular view.
- The school educates about all religions; it does not promote or denigrate any religion.
- The school informs students about various beliefs; it does not seek to conform students to any particular belief.
ING then adopted and integrated these guidelines in our content and trainings with speakers to ensure that all of our presentations, panels, workshops, and seminars adhere to the doctrine of separation of church and state as articulated in the First Amendment. You can read ING’s Teaching About Religion Policy here.
The Supreme Court Kennedy v. Bremerton School District ruling affirms that teachers and other school officials may pray at school privately and while off duty, provided the prayer is not directed at students and they are not encouraged or required to participate. It upholds the Free Exercise Clause and the Establishment Clause of the First Amendment. While the facts of the case have been disputed, the law remains unchanged—teachers and other school officials are not allowed to pray with students in public schools. The First Amendment protects the religious freedoms of all Americans, including students of minority faiths and non-religious students. We must ensure that these rights remain protected today and for future generations.
- Read Freedom Forum’s article on “Court Oks Coach’s On-Field Prayer, Shifting Balance for Religious Expression” here.
- Download Freedom Forum’s infographic on “To Pray or Not to Pray: When Does the First Amendment Protect Prayer at School?” here.
- Read Freedom Forum’s Religious Freedom FAQ, including questions and answers on prayer in schools, here.
- Read ING Interfaith Speakers Bureau’s statement on how “Recent Supreme Court Rulings Undermine Religious Freedoms in America” here.
- View ING’s webinar on “Teaching About World Religions in Schools” here.
- Schedule an ING interreligious panel for your school, university, community center or civic organization—including our new panel on “Interreligious Responses to Recent SCOTUS Decisions on Abortion and Prayer in Schools”—here.
 Kennedy v. Bremerton School Dist., No. 21-418 (U.S. Jun. 27, 2022), J. Gorsuch, 14, 17.
 Kennedy v. Bremerton School Dist., 24.
 Kennedy v. Bremerton School Dist., 21.
 Kennedy v. Bremerton School Dist., 27.
 Kennedy v. Bremerton School Dist., J. Gorsuch, Footnote 6, 28.
 Kennedy v. Bremerton School Dist., No. 21-418 (U.S. Jun. 27, 2022), Dissenting J. Sotomayor, 1, 32.