Kennedy v. Bremerton School District: Throwing a Red Flag for the Public-Employee Speech Arena to Challenge the Court’s Hail Mary

Isabella Henry

Is a public-school football coach permitted to engage in audible prayer at the fifty-yard line immediately after school sponsored games while on the clock and surrounded by impressionable students? Where is the line drawn between public-employee speech that authorizes government regulation and citizen speech on a matter of public concern that necessitates constitutional protection? Apparently, the line is up for interpretation.

In Kennedy v. Bremerton School District, the Supreme Court of the United States considered whether a public-school employee’s prayer at the close of a school sponsored event is constitutionally protected speech, and if so, whether the government is authorized to prohibit such conduct to avoid an Establishment Clause violation. In a 6-3 decision, the Court held that the Constitution neither requires nor permits the government to suppress an employee’s “private” religious speech. Rather, the First Amendment’s Free Speech and Free Exercise Clauses as incorporated by the Due Process Clause of the Fourteenth Amendment protect public employees from government “reprisal.” Accordingly, the Court reversed the Ninth Circuit judgment and deemed Petitioner Joseph Kennedy to be entitled to summary judgment on his First and Fourteenth Amendment claims against Bremerton School District (the “District”).

While Kennedy produces numerous First Amendment issues that are worthy of discussion, this Note will focus on Coach Kennedy’s free speech claim and the ambiguity that surrounds public-school employees’ speech protections. The Court’s holding is erroneous because it distorted precedent and misconstrued the facts of the case to improperly reduce Kennedy’s overt, demonstrative prayer to “private,” constitutionally protected speech. In doing so, the Court disregarded its longstanding recognition of the heightened constitutional concerns within primary and secondary public schools. Even under the majority’s narrow view of the facts, the Court should have recognized the clear indications that the District’s interests in avoiding workplace disruption and an Establishment Clause violation outweighed Kennedy’s speech interests. Further, as the dissenting and concurring opinions properly noted, the Court failed to provide an applicable standard for employee-speech challenges that involve a brief pause in job responsibilities. Consequently, the Court effectively reduced the public-employee speech framework to an arbitrary analysis that neither lower courts nor school administrators can employ with the consistency that the Constitution demands. Thus, Kennedy threatens to further confuse First Amendment jurisprudence in the public-school context.