May 2022 Church & State Magazine

That’s What Friends Are For: AU Allies File Powerful Briefs In Washington State School Prayer Case

  Liz Hayes

Professional football players and former college athletes. Clergy, parents, educators and former students from Bremerton, Wash. National religious and secular organizations. Members of Con­gress and groups representing government officials. Education organizations representing teachers, school administrators and school boards. Law professors and church-state separation scholars. Social scientists and civil rights advocates.

All were part of the broad and diverse coalition of organizations and individuals who filed friend-of-the-court briefs with the U.S. Supreme Court last month in support of Bremerton School District, the public school district in Washington state that Americans United is representing in Kennedy v. Bremerton School District.

“Dozens of organizations and people that represent religious, education, sports, civil rights and religious freedom communities joined us in fighting to protect students’, and everyone’s, First Amendment rights,” said Rachel Laser, president and CEO of Americans United. “The diversity of this coalition demonstrates the widespread approval for the bedrock constitutional principle of church-state separation. The facts of the case, the laws of our country, and the majority of Americans are on the side of protecting students’ religious freedom.”

The facts of the case are clear: Assistant football coach Joseph Kennedy violated the religious freedom of Brem­erton students when he pressured them to join his public prayers at the 50-yard line at public high school football games. The coach’s attorneys have spun what one judge called a “deceitful narrative” about the coach just wanting to pray quietly by himself, but photos and videos plainly show the coach repeatedly organizing public prayers with students.

The law is also clear: Public school teachers and coaches cannot lead students in prayer. The lower courts have repeatedly held that Bremerton School District did the right thing to protect students’ religious freedom by stopping the coach from leading students in prayer. And decades of established law, backed by both liberal and conservative Supreme Court justices, prevent government employees from pressuring students to pray in public schools.

Thanks to these friend-of-the-court briefs, the widespread support for Bremerton School District, students’ religious freedom and church-state separation is clear, too. The briefs offer diverse and important perspectives for the court to consider when it weighs the outcome in the case. Here are some of the individuals and groups that voiced their support:

Professional And College Athletes

Several retired National Football League players joined college athletes and coaches to explain the dynamics of the coach-athlete relationship. In particular, their brief explains, “The coercive nature of the coach-athlete relationship derives from at least four factors: (1) coaches are authority figures; (2) coaches hold the keys to athletes’ success; (3) a coach’s sphere of influence and control often extends beyond the field; and (4) coaches have considerable influence over athletes.”

One of the athletes signing the brief, Frank Lambert, was a punter for the Pittsburgh Steelers in 1965-66. He’s now an emeritus professor of history at Purdue University and has written books about church-state separation. He joined AU and other representatives of the amicus briefs to speak to reporters on April 1.

“Of necessity coaches have coercive power,” Lambert said. “You cannot run a team as a democracy. Somebody has to decide what is the offense going to be, what is the defense going to be, but most important to players, … coaches have power over playing time. Who plays, what position do they play, coaches can insert people into the lineup, they can sit people on the bench.

“Now imagine if you will, players on … the Bremerton team, and remember that these are 15-, 16-, 17-year-old kids – teenagers – who look up to their coach. Their coach is an authority figure,” Lambert added. “So, the game is over, the coach is convening a meeting and the coach is setting the agenda for that meeting. That’s what coaches do all the time. So, these players look at that and say, ‘Gee, the coach has a meeting going and he scheduled this meeting. I had better attend it.’”

Chris Kluwe, another retired NFL punter who played primarily for the Minnesota Vikings, also joined the brief. “Every football player is conditioned to view his team as a family that sticks together no matter what. And the coach is unquestionably the head of that family,” Kluwe said in a statement. “The coach has the power to decide whether kids get to play and has influence over how they get along with teammates.

“It’s deeply wrong for any coach to put high school students in the position of turning their backs on the team family if they don’t want to join the coach’s very public prayers on the 50-yard line after games,” Kluwe added. “That’s why the law is so clear that coaches, as authority figures, cannot and should not compel athletes under their care to engage in prayer, either explicitly or implicitly.”

Government Officials

Members of Congress and organizations representing local governments and government officials also filed briefs in support of Bremerton. One of the briefs was written by U.S. Rep. Jamie Raskin (D-Md.), who was a constitutional law professor prior to serving in Congress. His brief was joined by 10 other members of the U.S. House of Representatives.

“This is not a case of religious discrimination against Coach Kennedy, who refused ample accommodations for his personal private prayer,” said Raskin, who co-chairs the Congressional Freethought Caucus. “This is about whether a school will be compelled to allow a football coach to conduct religious prayers with players on school time during sports games.”

“Our public schools must remain neutral on issues of religion, and students in public schools should never be coerced into religious practice – of any religion – by a government-employed authority figure,” said Rep. Jared Huffman (D-Calif.), the other co-chair of the Freethought Caucus. “This brief makes plain the vital role of public schools as a unifying force in society that should not promote any specific faith agenda. I am proud to join this brief on a case that is so important for the future of religious freedom in the United States.”

“I’m proud to join this amicus brief to ensure the Court continues to ensure students are not coerced, explicitly or implicitly, by their public schools to engage in religious activities,” said House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.).

Rep. Robert C. “Bobby” Scott (D-Va.), chairman of the House Committee on Education and Labor and a longtime sponsor of the Do No Harm Act, also joined: “Over two centuries ago, the General Assembly in my home state of Virginia adopted the Virginia Statute for Religious Freedom, which later served as the basis for the First Amendment’s protection of free exercise and prohibition on the establishment of religion by the government. The Supreme Court should uphold these protections by reaffirming that school staff cannot pressure or lead students into school prayer or other religious activity. The choice of whether to pray in school belongs to students and their families, not schools or staff.”

Also joining Raskin’s brief were Reps. Suzanne Bonamici (D-Ore.), Steve Cohen (D-Tenn.), Carolyn B. Maloney (D-N.Y.),  Mark Pocan (D-Wisc.), Jan Schakowsky (D-Ill.), Rashida Tlaib (D-Mich.) and Del. Eleanor Holmes Norton (D-D.C.),

Religious Leaders And Organizations

A multitude of faith groups and faith leaders also spoke out in support of Bremerton School District. One such brief was filed by the Baptist Joint Committee for Religious Liberty (BJC); it was joined by the American Jewish Committee, the Evangelical Lutheran Church in America and the General Synod of the United Church of Christ.

“For us, this case is very significant because it has the potential to reaffirm or sev­erely damage what has long been unquestioned: That is that the constitutional protection of religious liberty in the public schools means that teachers, coaches and administrators do not lead students in religious exercises or otherwise use their government positions to advance or denigrate religion,” said Holly Hollman, BJC’s general counsel and associate executive director, during the press call with AU.

“Public schools serve more than 90 percent of the U.S. population,” Hollman added. “Students come from all different religious backgrounds, and they should get an education and opportunities to be involved in extracurricular activities, in sporting events, without regard to religion.”

Another brief was joined by several Bremerton-area clergy and more than two dozen national religious and denominational organizations representing Christian, Jewish, Hindu, Muslim, Unitarian Universalist and interfaith groups.

One of the signers was the Rev. Douglas Avilesbernal, executive minister of the Evergreen Association of  Am­erican Baptist Churches, which oversees Washington and several surrounding states and has a church in Bremerton. In a press statement, he referenced his faith’s commitment to church-state separation as well as his experience with the coach-athlete relationship: “There are many examples in history of what happens when religion is mixed with government – people are harmed and faith is sullied. That’s why Baptists have been such strong supporters of the separation of church and state since the founding of America.

“As a Baptist preacher, I recognize that people consider me to be an authority figure and look to me for guidance,” he added. “When I played soccer, I similarly viewed my coach as an authority and would have felt compelled to join him if he and the team gathered at the center of the field right after games.” (The Interfaith Alliance also joined the brief.)

Secular Organizations

Several secular groups also filed briefs in support of Bremerton School District. American Atheists noted the chaos that could result if Kennedy’s argument prevails at the Supreme Court: “It’s plainly obvious that the principle Kennedy is advocating for is completely unworkable and would present a grave threat to the rights of all Americans,” said Geoffrey Blackwell, litigation counsel at American Atheists and the author of the brief. “Teachers could pray aloud in their classroom while students quietly study. Poll workers could engage in religious speech while managing an election.”

“Government would have no choice but to scrutinize whether anyone engaging in speech is motivated by a sincerely held religious belief in order to determine whether the normal rules apply to them,” added Blackwell.

The Freedom From Religion Foundation, in a brief joined by Center For Inquiry, the American Humanist Association and the Secular Coalition for America, noted not only the coercive nature of the coach’s prayers, but also argued that the case should be moot because, due to family hardships and obligations, Kennedy sold his home in Bremerton, left his full-time job and moved 2,800 miles away to Pensacola, Fla., about two years ago. He and his wife bought a house in Pensacola, registered to vote and call themselves “Floridians.” It seems implausible that, if he wins, he’ll move back to Bremerton for a $5,300-per-year assistant coaching job.

Education Experts

The National Education Association and the American Federation of Teachers – the nation’s two largest unions representing teachers and other educators – also are supporting the school district.

NEA and AFT stress in their brief the “deceitful narrative” that Ken­nedy’s attorneys have presented to the court: “This is not a case about someone removed from public-school employment for engaging in ‘brief,’ ‘quiet,’ ‘personal,’ ‘solitary’ prayer in a place ‘where no one joined him’ and at a time when he and his students ‘were free to engage in activities of their own choosing.’

“In reality, [Kennedy] repeatedly used the status and access of his job as a school employee to publicly stage sectarian prayers while on the job and in the spotlight of major, school-sponsored events,” the organizations wrote in their brief. “By [his] own admission, these prayers were intended to be witnessed by impressionable school children and to influence their beliefs. The predictable result was that students joined in the prayers out of fear of being ostracized or excluded from play on the team.”

The unions note that if the case truly were about a public school employee’s private, solitary prayers, they – as organizations that represent public school employees – would likely be supporting the coach: “After all, while [we] advocate for high-quality public schools that are free of religious endorsement or coercion, [we] are also champions of the First Amendment rights of [our] members and other public sector employees.”

Several other education advocacy organizations also filed briefs in support of the school district, including AASA (the School Superintendents Association), National Association of Elementary School Principals, National Association of Secondary School Principals, Washington Association of School Administrators, and the California School Boards Association.

Educators from the East Brunswick School District in New Jersey – which was embroiled in similar coach-led prayer litigation more than a decade ago – also filed a brief to share with the court the harm that such prayers can cause in a community (the school district, which was represented by Americans United, was successful in the courts). Jo Ann Magistro, East Brunswick’s former superintendent, and Alan Brodman, a former attorney and retired teacher who taught civics, world history and the Constitution at East Brunswick, urged the court to affirm Bremerton, like East Brunswick, did the right thing to protect students’ religious freedom.

“Religious strife and divisiveness are not the inevitable results of religious expression by public employees. But when that religious expression takes the form of public, sectarian prayer expressly intended to influence – even with only the best intentions – public school students of multiple religious faiths, beliefs, and practices, such strife and divisiveness are practically unavoidable, as the Religion Clauses’ framers well knew,” they wrote in their brief. “High-profile, audible prayer by a public employee on public school property at a public school event squarely implicates this core concern of the Establishment Clause. A policy prohibiting such prayer is not only reasonable, but necessary, to avoid religious strife and divisiveness and to protect the constitutional rights of all members of the public school community.”

Editor’s Note: Kennedy v. Bremerton School District was argued before the U.S. Supreme Court on April 25, after this issue went to press. Check the June issue of Church & State to read about how the arguments went. The court’s decision in the case is expected by the end of June.

 

BREAKING:

The Supreme Court just gutted decades of precedent by stripping away public school students’ religious freedom rights.

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