Federal courts have repeatedly ruled in favor of Bremerton School District in Washington State – agreeing that the district had a right to stop an assistant football coach from praying with players and students at the 50-yard line after games. The district recognized the coach was violating the religious freedom of impressionable students, who might feel they had no choice but to pray to play.
Even the U.S. Supreme Court declined to intervene last year. But the coach, and the Religious Right legal group First Liberty that is representing him, have continued to drag the public school district through the courts to push a Christian nationalist agenda in public schools.
The case, Kennedy v. Bremerton School District, is back before the 9th U.S. Circuit Court of Appeals, and on Sunday, Americans United was joined by 17 interfaith and religious-freedom organizations in filing a friend-of-the-court brief in support of the school district’s decision to stop the coach from praying with students.
The brief outlines the risk to students if the coach’s prayers were allowed to continue: “Though Kennedy’s intent was undoubtedly benign, his practice of praying on the 50-yard line immediately after games, reinforced by his eight-year history of leading team prayers and giving on-field religious speeches, sent an unmistakable message to the players and other students that they ought to participate. For those who did not join risked being marked as outsiders who do not fully share in the life of the school community, making them potential targets for bullying, harassment, and social ostracism.”
While the courts have so far agreed with the district and protected the religious freedom of Bremerton’s students, the current vacancy on the U.S. Supreme Court is looming over this and many other cases involving church-state separation. Justice Ruth Bader Ginsburg was a staunch supporter of this constitutional principle, but President Donald Trump’s nominee to fill her seat, Amy Coney Barrett, has a record that shows she’s hostile to church-state separation – including when it comes to public school students’ rights.
When the high court declined to review this case in 2019, four of the court’s more conservative justices indicated they didn’t necessarily agree that teachers and coaches at public school districts can’t proselytize schoolchildren. Attached to the one-sentence order denying the coach’s petition was a four-page statement written by Justice Samuel Alito and joined by Justices Clarence Thomas, Neil Gorsuch and Brett Kavanaugh that signaled they are interested in reviewing the issue.
Alito wrote that he thought the coach’s case shouldn’t be reviewed because there still were “factual questions” to be resolved by the lower courts, not because he agreed with the lower court’s decision. “While I thus concur in the denial of the present petition, the Ninth Circuit’s understanding of the free speech rights of public school teachers is troubling and may justify review in the future.”
Americans United’s report on Barrett’s record notes that her writing indicates she also might be another conservative vote to overturn decades of precedent by not upholding the separation of religion and government in our public schools. In a May 2017 law review article (published not long before Trump appointed her to the 7th U.S. Circuit Court of Appeals), Barrett praised the late Justice Antonin Scalia’s dissent from a landmark Supreme Court decision that prohibited prayers at public school graduations.
Public schools must be inclusive places that welcome all students, regardless of their religious beliefs. And parents must be secure in the knowledge that they can send their children to school without fear that their kids will be coerced to participate in prayers or other religious activities.
That’s why Americans United is supporting Bremerton School District. And that’s why we oppose the confirmation of Barrett to the U.S. Supreme Court. Not only should the Senate wait until the next presidential term begins to confirm a new justice, but that justice should not be Barrett. Please urge your Senators to vote no on Barrett’s confirmation. The separation of church and state is at stake.
(PHOTO: Former Bremerton assistant football coach Joe Kennedy, at right in brown coat, prays with students after a 2015 football game. Credit: Court documents.)