WASHINGTON (BP) – The Southern Baptist Ethics and Religious Liberty Commission (ERLC) and other organizations have urged the U.S. Supreme Court to review a lower court decision they contend violates the First Amendment rights of public school teachers and coaches.
The court has twice rescheduled a conference to consider whether to accept the appeal according to First Liberty Institute which represents a coach in the case.
The ERLC joined the Billy Graham Evangelistic Association (BGEA) and seven other groups in support of a Washington state high school football coach who was suspended for kneeling and praying on the field after games. In their friend-of-the-court brief the organizations requested the high court review a Ninth Circuit Court of Appeals ruling against Joseph Kennedy and overturn that opinion.
The Ninth Circuit decision "sets a precedent that strikes at teachers' fundamental freedoms of speech religion and assembly" the ERLC and its allies said in the brief.
"Teachers and coaches are not required to leave their consciences at the door the moment they walk into a public school" ERLC President Russell Moore said. "The idea that someone could be fired for having religious convictions is outrageous.
"Not only that but school districts transforming campuses into zones where religious beliefs are hounded out of existence are engaging in something deeply destructive and un-American" Moore said in written comments. "Our schools must be the kind of place that accommodates people of faith and people of no faith."
Beginning in 2008 Kennedy – an assistant coach with the Bremerton (Wash.) High School varsity team – would walk to the 50-yard line after each game kneel and briefly pray thanking God for the players. Players eventually began joining him and Kennedy who was also head coach of the junior varsity team continued the practice for the next seven years. He also reportedly gave motivational speeches to players on both teams who gathered around him.
During the 2015 season the school district superintendent sent a letter to Kennedy telling him to refrain from the post-game prayers and from religious expression in his motivational talks to players. The superintendent said Kennedy's practices likely violated the U.S. Constitution's First Amendment clause prohibiting government establishment of religion. After abiding by the mandate for a few weeks Kennedy returned to his former practice of praying at midfield and was joined by others.
The school district placed Kennedy on administrative leave as a result. The athletic director recommended the school not rehire him in 2016 and Kennedy declined to apply for a coaching position when a new head coach was hired for the next season.
After a federal judge dismissed Kennedy's lawsuit against the school district a three-judge panel of the Ninth Circuit Court in San Francisco declined to grant him a preliminary injunction. The judges ruled that Kennedy knelt and prayed "as a public employee not as a private citizen and his speech therefore was constitutionally unprotected."
In their brief filed Aug. 1 the ERLC and others say it is obvious a public school teacher "wears two hats – that of a private citizen and that of a government worker."
"No one is confused by that" the brief says adding "action taken by a teacher even on school grounds and during school hours that is personal in nature has the protection of the Free Exercise Speech and Assembly Clauses [of the First Amendment] and does not implicate the Establishment Clause."
Such private actions by a teacher include the brief contends "wearing an armband protesting the death penalty for religious reasons wearing a necklace with a crucifix having a Bible at one's desk silently reading the Qur'an while proctoring a test having a bumper sticker on one's car on school grounds depicting church affiliation bowing one's head to say grace in the cafeteria hanging a favorite Scripture verse on one's wall attending a student-led religious club and explaining personal views on religious subject matter when asked."
Kennedy acted by himself well after the game was over and practiced private speech the brief says. "It turns the Constitution on its head to suggest that teachers may practice spoken or symbolic speech only as long as it does not involve prayer or other religious observance when 'the free exercise of' religion is in the very text of the First Amendment."
In addition to the ERLC and BGEA other organizations signing onto the brief were Samaritan's Purse the National Association of Evangelicals Concerned Women for America Congressional Prayer Caucus Foundation National Legal Foundation Pacific Justice Institute and International Conference of Evangelical Chaplain Endorsers.
Kelly Shackelford First Liberty's president said of the case in written remarks "Banning all coaches from praying just because they can be seen is wrong and contradicts the Constitution. We must protect the right of every American to engage in private religious expression including praying in public without fear of getting fired."
Americans United for Separation of Church and State argued before the Ninth Circuit Court in support of the school district and applauded its 2017 decision.
"Teachers and coaches don't get to pressure students to pray" Richard B. Katskee Americans United's legal director said in a written statement. "Students and families have the right to decide whether and how to practice their faith. Public schools should be welcoming places for all students and families and no student should feel like an outsider at his or her school."
Bremerton is located west of Seattle across Puget Sound.
The case is Kennedy v. Bremerton School District.