This essay submission secured a staff position with the DePaul Journal for Social Justice.
FREE SPEECH IN SCHOOLS: PRESERVING INSTITUTIONAL EFFICIENCY
I. INTRODUCTION
The Supreme Court’s anticipated holding in Kennedy v. Bremerton School District will undoubtedly have implications on the freedom to exercise religion within public school settings.[1] These implications will likely impact school staff, students and student-affiliated groups. From a broader First Amendment argument, it is less clear to what degree the holding will impact free speakers who coalesce around a shared political ideology rather than a religious belief. In some instances it seems they are interrelated. In any free speech challenge, a school will have to consider the inevitable Supreme Court holding in Kennedy when facing the difficult decision to permit, limit, or outright deny certain instances of free speech expression. Such decisions may become increasingly complicated when faced with intense publicity and scrutiny.
A sweeping Supreme Court holding refuting the coach’s claim to free speech as a private citizen, therefore granting him no constitutional protection under the First Amendment, may serve to suppress similar public demonstrations of free speech. Conversely, a determination that the coach was acting as a protected private citizen in a school-sponsored setting may be interpreted as the outermost edge of constitutionally-protected behavior by public employees. In either case, the holding may help guide schools in appropriately intervening. As will be explained in Part III of this discussion, a court may offset an individual’s right to speak freely with a public school’s necessity to operate efficiently.[2] A school that permits specific instances of free speech may appear as sponsors of that particular position, thus interfering with its’ ability to remain a neutral educational institution.
Part II will discuss the implementation and expansion of First Amendment protections in schools. Part III will note the facts and relevant discussion points from the Ninth Circuit’s opinion in Kennedy. Finally, Part IV will discuss the potential Supreme Court holding in Kennedy and the impact such a highly-publicized decision may have on subsequent First Amendment challenges.
II. BACKGROUND
The First Amendment, adopted just after the Constitution’s ratification, is an integral part of federal law and a cornerstone of American individual rights. Within the First Amendment are several rights-granting provisions: the Establishment Clause, which forbids the government from establishing a religion; the Free Exercise Clause, which similarly prevents government intervention in an individual’s right to exercise the religion of their choice; the Free Speech Clause, which grants individuals the right to speak without government censorship; and several remaining clauses that deal with freedom of the press, the right to assemble peacefully, and the right to petition the government for a redress of grievances.[3] In Kennedy, the focus was whether the plaintiff coach’s prayer was protected free speech.[4] As will be discussed later, the issue’s complexity arose from the public school setting in which the free speech occurred.[5] Such debates concerning individual rights have proliferated American history since the First Amendment’s inception.
Centuries later, after innumerable First Amendment challenges, Congress passed the Equal Access Act in an effort to reign in a public school’s ability to prohibit free speech within its confines.[6] Passed in 1984, the Act prohibits public schools from denying equal access to students who wish to meet within a school-sponsored forum based on the content of the student’s speech.[7] The Department of Education may withhold federal funding when a school district is not in compliance with the guidance set forth for permitting religious groups.[8] The Supreme Court, in Board of Educ. of Westside Community Schools v. Mergens, enforced a limitation on a school’s latitude to suppress free speech after a religious-based student group was denied access to use a school-sponsored forum.[9] The plaintiffs in Mergens argued the school wrongly denied access based on the group’s religious viewpoint while allowing other groups access to the forum.[10] The school feared admission of the religious group would result in the perceived endorsement for that particular belief.[11] The logic of the school to remain unbiased is comparable to the school’s position in Kennedy.[12] In Kennedy, the school’s priority was to avoid religious endorsement and a First Amendment Establishment Clause violation.[13]
Shortly after Mergens, the Supreme Court again weighed in when a group challenged a school’s denial of their participation in a public setting.[14] In Good News Club v. Milford Central School, the Court again ruled to protect a religious group’s ability to exercise free speech in a school-sponsored forum.[15] Mergens and Good News Club dealt with challenges by student-affiliated religious groups, yet broadly, both cases represent situations in which the Court had to carefully balance individual free speech protections within public settings, and a school’s interest as a neutral, functioning government entity. The Supreme Court, having the final say in Kennedy, must once again adjust the counterweight in order to find the elusive balance of competing interests.
III. SUBJECT OPINION
Primarily at issue in the Ninth Circuit’s Kennedy opinion was whether the plaintiff, a school employee, was protected under the First Amendment when he openly prayed in a school-sponsored setting.[16] As discussed earlier, in dealing with a plaintiff public employee, a court must carefully consider the interests of the employee and the employer.[17] As a matter of organizational efficiency, courts give deference to a school to suppress free speech made by its’ staff, especially when an employee is acting under their employment duties.[18] Free speech, exercised openly by staff or students within a school environment, may have the effect of appearing as school-endorsed. Any confusion by a reasonable observer may trigger a school’s concern for a violation of the Establishment Clause or Equal Access Act.[19]
The free speech at issue in Kennedy was religious-based.[20] However, the First Amendment Free Speech Clause also protects other forms of belief-based expression, such as political ideology.[21] The plaintiff in Kennedy, a football coach employed by the school, argued he had a constitutional right to pray on the field after each football game.[22] Much of the Ninth Circuit’s analysis into the plaintiff’s free speech argument focused on his status relative to the school at that particular moment when he prayed on the field.[23] The school believed the plaintiff coach was speaking as a public employee of the school, not a private citizen.[24] The Court agreed.[25] A public school has latitude to suppress the speech of its’ employees out of concern for its’ ability to operate efficiently.[26] In Kennedy, the defendant school took concern with the public perception of permitting the plaintiff coach’s prayer to continue.[27] The school’s concern was driven by a possible Establishment Clause violation.[28] The school district recognized its obligation under the First Amendment to refrain from establishing, or appearing to establish, a religion. It feared that allowing post-game prayer on the fifty-yard line might have had the effect of demonstrating religious establishment to a reasonable observer in attendance.[29]
Ultimately, the decision by the Ninth Circuit regarding the plaintiff’s status as a public employee was guided by the environment in which the prayer took place, coupled with his privilege in entering such a setting under his terms of employment.[30] The coach had access to the field due to his position with the school and his prayer occurred after a school-sponsored event in front of students, spectators and school affiliates.[31] Because the Ninth Circuit found that the plaintiff’s speech was not protected as a public employee, it held that the school’s actions were justified when it suspended the plaintiff’s employment, attempted to rectify the situation by providing alternatives, and eventually terminated his employment.[32]
IV. ANALYSIS
The outcome of a Supreme Court holding in Kennedy may be viewed as applying precedent to allow schools leeway in restricting the free speech of their staff and students. A contrary holding may be interpreted as opening the door for an extension of individual free speech protections in school settings. Such an expansion may authorize passivity by schools previously prone to interfering with free speech for the sake of neutrality and efficiency. In this section, the Ninth Circuit’s decision in Kennedy will be discussed as a basis for analyzing the anticipated Supreme Court holding on the matter.
A. THE POTENTIAL BACKLASH A SCHOOL FACES IN DECIDING HOW TO REACT
As the coach’s prayer continued in Kennedy, widespread media coverage and heightened publicity seemed to exacerbate division among the local community.[33] Some coalesced around the coach, contending he had every right to pray with students, attendees, and other coaches post-game.[34] Others in observance did not condone the coach’s activity, arguing students felt peer pressure to participate or were obliged out of fear that the coach would bench them.[35] At trial, it was testified by a player’s father that his child “felt compelled to participate” in the coach’s postgame prayer because the student “felt he wouldn’t get to play as much if he didn’t participate.”[36] An assistant coach who chose not to pray with the plaintiff coach resigned out of concern for his physical safety after an attendee made threats against him.[37] Other school employees testified suffering repercussions as a result of media attention garnered by the plaintiff coach.[38] When the coach’s ability to openly pray seemed to interfere with the school’s ability to carry out a basic function like safe extracurricular activity, the school intervened in an attempt to achieve a more desirable balance of individual liberty and government efficiency.[39]
Over two decades ago in Lee v. Weisman, a student’s parent challenged the principal’s decision to invite religious clergy members to the school graduation ceremony.[40] Making its way to the Supreme Court, the majority held that the principal’s religious-based action as a government employee was forbidden by the First Amendment.[41] Similar to findings in Kennedy, the Court in Lee cited the coercive pressures that certain school-age children feel to participate in the religious activity of others.[42] As demonstrated in Kennedy, this complicated tension on adolescent students prone to such pressure can be exacerbated by publicity. The school’s principal testified that a parent complained that his son “felt compelled to participate” in the postgame prayer even though he did not share the same religious beliefs as the coach.[43]
Considering all factors surrounding the free speech at issue, a school may decide to prioritize neutrality and operational efficiency, then act to suppress the speech. In Kennedy, the school intervened with the coach’s prayer out of concern for his inability to effectively carry out his position as a school employee.[44] The football program’s head coach recommended the plaintiff coach not be rehired due to his “contribut[ion] to negative relations between parents, students, community members, coaches and the school district.”[45] The school cited this testimony to support its belief that the plaintiff coach could no longer effectively carry out his duties.[46]
Treading carefully, the school invited the coach to brainstorm prayer accommodations that would run less risk of appearing as school-endorsed and wouldn’t interfere with the coach’s employment duties.[47] “The point at which individual action impermissively involves the state has not been clearly defined. In this respect determining the circumstances under which the schools can limit religious expression is discretionary.”[48] The coach made no direct response to the school’s invitation for compromise and instead dug in his heels by making media appearances and public social media comments.[49] Learning of the coach’s claim, people within and beyond the immediate community positioned themselves accordingly.[50] As more players and attendees joined the ongoing post-game prayer, some saw the worship turn into a performance.[51] The sudden hype altered the dynamic between the school and coach.[52]
In previous challenges, courts have held that once “individual expression relies on the involvement of the state to survive, accommodation is no longer involved, but rather an affirmative sponsorship condemned under the establishment clause.”[53] The optics became a key consideration for the school.[54] It’s eventual decision to place the coach on administrative leave only seemed to galvanize the coach’s claim and led the challenge to its current procedural posture.[55]
A school faced with the difficult task of ensuring free speech within its confines without appearing as an endorsement by a “reasonable observer” may find the situation additionally challenging with increasing publicity on the matter.[56] In a situation where a faculty member openly practices religious prayer in a school setting, or a student led group openly discusses strong religious beliefs, a school faces a challenging decision to: (1) allow the activity to resume; (2) attempt to intervene; or (3) deny the activity altogether for the sake of neutrality. For the school, the dilemma doesn’t stop there. The institution may be heavily criticized for allowing or disallowing one form of free speech and then seemingly, inconsistently deciding how to handle another’s free speech later. For a modern, non-religious example, a school that has previously allowed a student-led club like the 1619 Project to operate openly within the school’s forum may face pressure to at least entertain the notion of admitting the subsequent Turning Point USA applicant.
In Good News Club, the school was operating a limited public forum.[57] The holding reaffirmed that a school which has established such a forum is not required to allow students “to engage in every type of speech.”[58] However, the ability of a school to restrict free speech must not be in a manner that serves to discriminate against speech based on viewpoint.[59] A school’s decision to restrict free speech must also be reasonable in light of the forum’s basis.[60] The court held that the school’s denial of admission to a private Christian organization was a violation of the Free Speech Clause.[61] Contrary to the Ninth Circuit holding in Kennedy, the court in Good News Club stated that the school’s apprehension of an Establishment Clause violation was unfounded.[62] The Court emphasized that free speech discussions within the forum, taking place outside of regular school hours, not sponsored by the school, open to the public, and available to other groups, could not have been understood by a reasonable observer as an endorsement by the school.[63] The religious group challenging the school’s suppression of their free speech believed the school acted discriminatorily, directing attention to the fact that it was merely their desire to speak from a religious viewpoint that caused the school to deny them access.[64] Under the Equal Access Act, “even if a public secondary school allows only one ‘noncurriculum related student group’ to meet … the school may not deny other clubs, on the basis of the content of their speech, equal access to meet on school premises ….”[65] Accordance with the Act does not necessarily result in a violation of the Establishment Clause.[66] In Kennedy, the coach claimed he had been treated discriminatorily, pointing to the fact that another coach had previously prayed on the field.[67]
That a school must remain neutral and not play favorites concerning free speech is generally a shared belief by either side of an adverse claim. In Kennedy, the coach launched allegations of discrimination against the school, pointing to a Buddhist coach’s ability to openly exercise prayer on the field.[68] In the eyes of the coach, the fact that the school was seeking only to suppress his Christian prayer served to create feelings of hostility and entitlement.[69] It is apparent that a free speaker facing suppression of their individual rights may become compelled (and may compel others in the process) to double down and continue vocally exercising their right.
B. EMBOLDENED CHALLENGERS INSPIRE FURTHER DISCORD AND DISHARMONY
The conflict between free speaker and school becomes exacerbated when certain viewpoints are permitted and others are not. “The conflict arises from the pull of two realities: [t]hat … freedom depends on the First Amendment’s prohibition against a public school affirmatively … endorsing a particular belief[] …” and “[t]hat views hostile toward religion [or other beliefs] also have First Amendment protection … [s]ince the schools cannot affirmatively encourage religion, the only way to prevent the subversion of religious ideals is to allow [them].”[70] While the Establishment Clause and Equal Access Act apply to religious free speech, similar arguments may be made by other types of free speakers—both school staff and students alike. Either may contend that a denial of exercising free speech based on one viewpoint, while allowing an incompatible viewpoint to be freely spoken, looks as though the school is playing favorites. A single, unopposed individual or group representing a particular viewpoint within a school setting may pose little dilemma. In Kennedy, the school would’ve allowed the coach’s Christian prayer, the apparent first free speech of its kind, to continue on its terms.[71] However, the coach refused to concede.[72]
The conflict became even more complicated when the coach pointed out that another type of prayer was already being exercised, albeit in a less provocative manner.[73] At a minimum, the perception of allowing one viewpoint and excluding another was seen as hypocritical and discriminatory school behavior. You might imagine how additionally complicated the matter would have been if the Buddhist coach had been consistently and openly praying with students in the end zone postgame. Even if the school had come to an earlier agreement as to on what terms it would permit the Buddhist coach to pray, the sense of entitlement by the Christian coach, students and attendees may have been amplified. Conversely, in this hypothetical, if the school subsequently allowed the Christian coach to openly pray on the 50-yard line after each game out of fear of appearing to play favorites, the Buddhists may have challenged any unfavorable conditions placed on their speech. For instance, would the school permit the two groups to pray on the field simultaneously? Could the school succeed in appearing neutral by physically positioning both denominations on the field? And what arguments might either religious viewpoint make to demonstrate their unequal positioning? Suppose the Buddhist coach said, “The Christian coach is positioned more closely to the bleachers, thus attendees hear him better.” Or, suppose hypothetically that a third coach—the head coach, is a practicing Muslim who asserts he has a right to pray on the field because the others do. Imagine then that the school had to increase security to accommodate the opposing religious viewpoints as participation grew. In this hypothetical, would the football field have become a publicized religious forum, where any of the individual expressions relied on the school’s involvement to survive, and thus the free speech shifts from accommodation to endorsement?[74] You can see the difficulty in a school’s decision to permit or deny free speech in an environment where participation and opinion is dynamic.
Parties react differently depending on the circumstances in these challenges. It does not seem to be the case that all public free speech matters begin so complicated. We must never forget that the school in Kennedy was merely reacting to an assistant coach’s decision to perform a “brief, quiet prayer of thanksgiving for player safety, sportsmanship, and spirited competition” on the football field.[75] The school initially met the coach with compromise. What began as an isolated occurrence of free speech was swiftly carried to the forefront of religious free thinker’s consciousness and was enlarged to a national proportion.[76]
I do not propose that it is merely the school’s reaction which propels such a free speech challenge; a combination of factors supplies the fuel, many of which can be external to the original dispute. My proposition is that fundamentally, a school is “an institution of learning and education for children.”[77] The issue of free speech, whether religious or ideological, can prove to be an enormous impediment to productive, efficient education. At the same time, “schools are where the debate, comment and free exchange of those ideas essential to the development of the democratic spirit necessary to the existence of a free government are to take place.”[78] A school’s decision to balance such vying interests is complex. And now, in the national limelight, it is up to the Supreme Court to shift the fulcrum and rebalance those stubborn forces by ruling in Kennedy.
V. CONCLUSION
When the Constitution’s framers drafted the First Amendment, they simultaneously granted American citizens an individual right and prohibited infringement by the government upon that right. A bold line was drawn, identifying each’s respective power and limitation. A plethora of challenges have led to this complicated period in American history and have empowered free speakers to more easily identify with and coalesce around challengers in an increasingly public eye. A school may try to offer an immediate, impartial remedy, however, it is apparent a court is best equipped for the task. After all, a school is a learning institution, not “a place where justice is judicially administered.”[79]
[1] See generally Kennedy v. Bremerton School Dist., 991 F.3d 1004 (9th Cir. 2021).
[2] Id. at 1014.
[3] U.S. Const. amend I.
[4] Id. at 1015.
[5] Id.
[6] Bd. of Educ. of Westside Com. Sch. v. Mergens, 496 U.S. 226, 234 (1990).
[7] Id.
[8] See Kim Colby, Religious Freedom in Schools, 14 Christian Law. 6, 7 (1979), available at https://lawschool.westlaw.com/Files/Download/18507916/14ChristianLaw6.pdf?serve=true.
[9] Mergens, 496 U.S. at 227.
[10] Id. at 238.
[11] Id. at 227.
[12] Kennedy, 991 F.3d at 1020.
[13] Id.
[14] Good News Club v. Milford Central School, 533 U.S. 98, 98 (2001).
[15] Id.
[16] Id. at 1010.
[17] Id. at 1014.
[18] Kennedy, 991 F.3d at 1014.
[19] Id. at 1009.
[20] Id. at 1004.
[21] See U.S. Const. amend I.
[22] Id. at 1012.
[23] Kennedy, 991 F.3d at 1012.
[24] Id. at 1004.
[25] Id.
[26] Id. at 1014.
[27] Id. at 1011.
[28] Kennedy., 991 F.3d at 1014.
[29] Id. at 1024.
[30] Id. at 1012.
[31] Id.
[32] Id. at 1004.
[33] Kennedy, 991 F.3d at 1013.
[34] Id. at 1011.
[35] Id. at 1018.
[36] Id. at 1011.
[37] Id. at 1014.
[38] Kennedy, 991 F.3d at 1013-14. Several school employees testified they suffered repercussions due to the attention given to the coach.
[39] Id. at 1014.
[40] Lee v. Weisman, 505 U.S. 577, 577 (1992).
[41] Id.
[42] Id. at 588.
[43] Kennedy, 991 F.3d at 1011.
[44] Id. at 1014. The coach’s contract provided he be “a coach, mentor and role model for the student athletes” and someone who was “constantly being observed by others.”
[45] Id.
[46] Id.
[47] Id. at 1026.
[48] Lawrence W. Stunkel, Religious Freedom in the Public Schools: Is the Wall Being Misplaced?, 8 Christian Law. 61, 65 (1979), available at https://lawschool.westlaw.com/Files/Download/18507915/8ChristianLaw61%202.pdf?serve=true (emphasis added).
[49] Kennedy, 991 F.3d at 1010. A letter from the coach’s attorney stated that he would not cease praying per the school’s request and further, demanded the school rescind its earlier directive to immediately cease the post-game prayer.
[50] Id.
[51] Id. A photo of the last prayer before the coach was placed on administrative leave “depicts approximately twenty players in uniform kneeling around [coach] Kennedy … a large group of … adults standing outside the ring of praying players, and several television cameras photographing the scene.” Additionally, a Satanic-worshipping group attended at least one highly-publicized game with the intention of participating in protest.
[52] See Kennedy, 991 F.3d at 1026.
[53] Stunkel, supra n. 50, at 65.
[54] Id. at 1026. After CNN featured an article quoting the coach, the school sent him a letter reiterating that it would accommodate his prayer in a private location or after the stands had emptied, in an effort to curb attention on the matter.
[55] Id.
[56] Id. at 1011. In the Ninth Circuit opinion, the school superintendent advised the coach‘‘[i]f students engage in religious activity, school staff may not take any action likely to be perceived by a reasonable observer, who is aware of the history and context of such activity at BHS [Bremerton High School], as endorsement of that activity.”
[57] Good News Club, 533 U.S. at 98.
[58] Id.
[59] Id.
[60] Id.
[61] Id.
[62] Good News Club, 533 U.S. at 98.
[63] Id.
[64] Id.
[65] Mergens, 496 U.S. at 234.
[66] Id. at 224.
[67] Id. at 1021.
[68] Id.
[69] Kennedy, 991 F.3d at 1010.
[70] Stunkel, supra note 50, at 62.
[71] Id. at 1026.
[72] Id.
[73] Id. at 1021. The record states that the Buddhist coach chanted prayer in his head.
[74] Stunkel, supra note 50, at 65.
[75] Kennedy, 991 F.3d at 1010.
[76] Id. at 1026.
[77] School, Black’s Law Dictionary (11th ed. 2019).
[78] Stunkel, supra note 50, at 62.
[79] Court, Black’s Law Dictionary (11th ed. 2019).