Education Week - May 11, 2022 - 8
Key Takeaways From Praying-Coach Case
While U.S. Supreme Court Deliberates
By Mark Walsh
The U.S. Supreme Court is weighing
whether prayers at the 50-yard
line by former high school football
coach Joseph A. Kennedy were protected
by the free speech and free exercise
of religion clauses of the First
Amendment. At issue is whether the
Bremerton, Wash., school district
could regulate the coach's religious
expression because he was on the
job or his prayers might appear to
be endorsed by the district or coerce
students to participate.
Education Week covered the April 25
argument. There's still plenty to unpack
from more than an hour and a
half of back and forth in the case of
Kennedy v. Bremerton School District.
The justices seemed to agree that
the facts are complicated
There is a long chronology of
events, especially involving games in
the fall of 2015 when Kennedy took
a knee at the 50-yard line right after
the game. There are factual disputes
about exactly what occurred at some
of these games, as well as over the
Bremerton school district's sometimes-shifting
rationales for its attempts
to rein in the coach's prayers.
" One of my problems in this case
was the parties seem to have different
views of the facts, " Justice Stephen G.
Breyer said during the argument. " This
may be a case about facts and not really
much about law. "
Justice Samuel A. Alito Jr. said, " Forget
about all of the complicated facts of
this case, " then offered a series of simpler
hypotheticals, including a coach
who prays on the 50-yard line without
inviting attention, a coach who waves
a Ukrainian flag to protest the Rus
sian invasion, or a coach who kneels
to make a statement about climate
change or racial unrest.
One side's lawyer highlighted
some key friend-of-the-court briefs
There are 36 friend-of-the-court
briefs filed in support of Kennedy
and 21 filed in support of the school
district. (Almost all of those have
multiple groups or individuals signing
on to them.)
During the argument, Richard B.
Katskee, the lawyer representing
the Bremerton school district, mentioned
three of the briefs supporting
the district. One was filed by AASA,
the School Superintendents Association,
and other administrator groups.
That brief argues that Kennedy's
prayers were disruptive and that such
expression by educators undermines
the educational mission of schools.
Katskee also cited a brief filed by
members of the Bremerton community
offering their views on the
coach's activities and another filed
by a former superintendent and a
teacher in a New Jersey school district
that had experienced a similar
controversy involving a praying football
coach in the mid-1980s.
Paul D. Clement, the lawyer representing
Kennedy, did not cite any of
the briefs supporting the coach during
his argument time. He returned
again and again to the complicated
record to stress that Kennedy only
sought to engage in a private prayer
and was not responsible for the participation
or reactions of others.
The issue of whether the person
praying was seeking to be the
'center of attention'
Justice Brett M. Kavanaugh asked
Katskee whether a coach could make
a sign of the cross on the field. " If the
coach is doing it while not making himself
the center of attention at the center
of the field, it's perfectly fine, " Katskee
Kavanaugh then said, " I don't know
how we could write an opinion that
would draw a line based on not making
yourself the center of attention as
the head coach of a game. "
Clement later agreed, pointing out
that soccer and football stars such as
Mohamed Salah and Tim Tebow engage
in religious exercise right after
they score, when they are the center
of attention in a sports arena.
" It's private, it's permissible, and
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the government can't stop it, " Clement
said. (He didn't mention that neither
of those stars are employees of a
public school district.)
Clement also argued that Kennedy
is " actually not the center of attention,
if you look at the videos, which
are in the record, because there's lots
of other activity going on. "
Lear Preston, 4, a student at Scott Joplin Elementary School in Chicago, participates in her virtual class in February as her mother, Brittany Preston, assists.
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los, and the school district relies on it
heavily for its arguments that Kennedy
was on duty when he conducted his
prayers, and thus his religious expression
could be regulated.
Some groups on either side of the
case suggested in their briefs that the
court may want to clarify Garcetti.
by lower courts, and Clement said
it has proved to be " a stubborn fruit,
and I don't think just pushing a pencil
through it has done the trick. " He went
on to say that " school districts continue
to make this mistake " in relying on the
Lemon precedent to regulate speech,
and said that overruling the precedent
" would be very helpful. "
Justices seem reluctant to
overhaul a precedent on public
employees' on-the-job speech
Joseph A. Kennedy,
a former high school coach
in Bremerton, Wash., talks
to reporters outside the
U.S. Supreme Court after
last month's oral arguments
in his case.
" The court should ... limit unprotected
speech under Garcetti to public-employee
speech produced pursuant
to an employee's job duties, "
says the brief of 27 states supporting
The American Federation of Teachers
and National Education Association,
in a brief supporting the school
district, make their dissatisfaction
with Garcetti clear, calling it " unworkable
and inadequate. "
" Educators are particularly vulnerable
at this very moment, " the NEA/
AFT brief says. " State legislatures and
local school boards across the country
are considering and enacting vaguely
worded teaching restrictions that target
discussions of race, racism, gender,
and American history. "
But there did not seem to be much
appetite among the justices to rework
Justice Elena Kagan said, " I think
a lot of this Garcetti stuff is ... just not
getting to the heart of what we care
about ... which is coercion on students
and having students feel that
they have to join religious activities
that they do not wish to join. "
Some conservative justices are a bit
obsessed with getting rid of the socalled
The 1971 case of Lemon v. Kurtzman
struck down state salary supplements
for teachers in religious
schools and yielded a three-part test
for courts to weigh government action
regarding religion. The test asks
whether the challenged program
had a secular purpose, had the primary
effect of advancing or inhibiting
religion, or created an excessive
entanglement with religion.
" One of the difficulties of this case
is getting one's hands around the
district's rationale [for taking action
against Kennedy], and as I understood,
it was based on kind of our
Lemon endorsement test, " said Justice
Neil M. Gorsuch.
The trouble with Gorsuch's observation
is that neither the lower courts
in the Kennedy case or the school
district actually cite Lemon much, or
at all, directly.
But the test continues to be applied
Mark Walsh/Education Week
Taylor Callery for Education Week
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WHATEVER IT TAKES: The first few weeks of teaching from home have been brutal for many teachers, like
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They have to rework their lessons. They're inundated with emails, texts, and calls. They're trying to " be there "
for students and their families, while juggling the needs of their own children. They're maxed out. l Page 10
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Education Week - May 11, 2022
Table of Contents for the Digital Edition of Education Week - May 11, 2022
Education Week - May 11, 2022
Why Misusing ‘Groomer’ as a Political Smear Is Especially Dangerous
School Sports Are Back. Where Are the Athletes?
What the Research Says
‘It Can Save Lives’: Students Testify To the Power of Poetry
Key Takeaways From Praying-Coach Case While U.S. Supreme Court Deliberates
1 in 5 Educators Say They’ve Experienced Long COVID
A Flood of Federal Cash and Then Layoffs. What Gives?
With Millions of Kids on the Line, Can Schools Make Tutoring Work?
Online Tutoring Can Be Effective, Research Shows
What Is Culturally Responsive Teaching?
What Should Culturally Relevant Teaching Look Like Today?
What If We Treated Public Education Like the Crisis It Is?
Why Students Can’t Tell Fact From Fiction Online
Letters to the Editor
EdWeek Top School Jobs
Hardest Year Ever? One Teacher’s View
Education Week - May 11, 2022 - Education Week - May 11, 2022
Education Week - May 11, 2022 - CW2
Education Week - May 11, 2022 - 1
Education Week - May 11, 2022 - Briefly Stated
Education Week - May 11, 2022 - 3
Education Week - May 11, 2022 - School Sports Are Back. Where Are the Athletes?
Education Week - May 11, 2022 - What the Research Says
Education Week - May 11, 2022 - ‘It Can Save Lives’: Students Testify To the Power of Poetry
Education Week - May 11, 2022 - 7
Education Week - May 11, 2022 - Key Takeaways From Praying-Coach Case While U.S. Supreme Court Deliberates
Education Week - May 11, 2022 - 9
Education Week - May 11, 2022 - 9A
Education Week - May 11, 2022 - 1 in 5 Educators Say They’ve Experienced Long COVID
Education Week - May 11, 2022 - 11
Education Week - May 11, 2022 - A Flood of Federal Cash and Then Layoffs. What Gives?
Education Week - May 11, 2022 - 13
Education Week - May 11, 2022 - With Millions of Kids on the Line, Can Schools Make Tutoring Work?
Education Week - May 11, 2022 - Online Tutoring Can Be Effective, Research Shows
Education Week - May 11, 2022 - What Is Culturally Responsive Teaching?
Education Week - May 11, 2022 - What Should Culturally Relevant Teaching Look Like Today?
Education Week - May 11, 2022 - 18
Education Week - May 11, 2022 - 19
Education Week - May 11, 2022 - What If We Treated Public Education Like the Crisis It Is?
Education Week - May 11, 2022 - Why Students Can’t Tell Fact From Fiction Online
Education Week - May 11, 2022 - Letters to the Editor
Education Week - May 11, 2022 - EdWeek Top School Jobs
Education Week - May 11, 2022 - Hardest Year Ever? One Teacher’s View
Education Week - May 11, 2022 - CW3
Education Week - May 11, 2022 - CW4