Football coach Joe Kennedy is violating the Constitution.

A High School Football Coach Should Not Lead Players in Prayer

A High School Football Coach Should Not Lead Players in Prayer

The law, lawyers, and the court.
Nov. 11 2015 4:29 PM

What Does the Constitution Say About a Praying High School Football Coach?

Coercing students isn’t exactly sporting.

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What exactly does the Constitution say about voluntary prayer, led by a nonfaculty member, after a school athletic event?

Photo illustration by Lisa Larson-Walker. Photo by Thinkstock.

High school football coach Joe Kennedy has made national news for refusing to stop praying on the field at the end of games. Last week, Kennedy, a coach at Bremerton High School in Bremerton, Washington, was placed on paid administrative leave after he declined to comply with school district orders to stop praying midfield, which he regularly does with players from both teams.* Soon after he was told to stop his postgame prayer, Kennedy conferred with lawyers from the conservative Liberty Institute who are threatening to sue the school district for violating Kennedy’s religious liberty.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

The former Marine and coach has prayed at the 50-yard line of the public school’s football field for years, since 2008 to be exact. Students, coaches, and opposing players have come to join him. Evidently it took years for the authorities to notice. But when the ritual came to the school district’s attention this fall, it decided to take action.

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In mid-September, Superintendent Aaron Leavell sent a three-page letter to Kennedy laying out two “problematic practices” in the football program. The first was that the coach’s postgame “inspirational talks” at midfield used overtly religious expressions and were conducted while players kneeled. The second was a regular pregame prayer in the locker room. The letter warned Kennedy: “While on duty for the district as an assistant coach, you may not engage in demonstrative religious activity, readily observable to … students and the attending public.” Leavell offered to provide a place for Kennedy to pray—in private — “not observable to students or the public” and cautioned that his “talks with students may not include religious expression, including prayer.”

Kennedy initially agreed to this arrangement, then changed his mind after talking to lawyers at the Liberty Institute. Evidently he abided by the school directive for a few weeks, then decided “he had to do what he believed was right,” taking a knee for 15 to 20 seconds at midfield after an Oct. 16 game. The suspension followed.

His lawyers insist Kennedy is not leading students in prayer, just praying himself, and the fact that student athletes voluntarily join him after a game does not transform his action into an organized religious display. On Oct. 26, the Liberty Institute said it would file a lawsuit accusing the school of religious discrimination, and it said it planned to file a charge of discrimination against the school with the Equal Employment Opportunity Commission.

Then the Satanists showed up, having been invited by students who believed they deserved equal time. Then 47 members of Congress sent a letter of support for the coach to the district. Not to be outdone, some GOP hopefuls jumped in: Ben Carson tweeted, “Praying for Coach Joe Kennedy and the Knights, even if the school board doesn’t like it.” Donald Trump added: “Support Coach Kennedy and his right, together with his young players, to pray on the football field.”

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On the Senate floor, Sen. James Lankford (R-Okla.) defended Kennedy:

They are saying that if you are a school official, no one can see that you have faith because if anyone sees that you have faith, they will take that as the establishment of religion from the school district. That is a standard no court in America has set. That would mean any individual who is Jewish couldn’t wear a yarmulke if they were also a teacher. That would mean anyone who is Muslim couldn’t wear a headscarf because clearly that is a visual display of faith. That would mean no teacher could bow their head and pray before their meal in the school lunchroom. That would mean no football coach could kneel down with 5 seconds to go in the game in, the fourth quarter, before their 16-year-old is about to kick a field goal. They would say: “No, you can’t kneel down and pray on the sidelines.”

Hiram Sasser, Kennedy’s lawyer from the Liberty Institute, agrees. He has written that although the First Amendment forbids religious activity sponsored by the government, it “protects religious activity that is initiated by individuals acting privately, as is the case with Coach Kennedy.” Adds Sasser, in a letter to the school district: “No reasonable observer could conclude that a football coach who waits until the game is over and the players have left the field and then walks to midfield to say a short, private, personal prayer is speaking on behalf of the state.”

But what exactly do the Constitution and the court have to say about voluntary prayer, led by a nonfaculty member, after a school athletic event?

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We know that after the 1992 case Lee v. Weisman, public schools may not invite outside adults to lead prayers at graduation ceremonies. Part of the Supreme Court majority’s reasoning was based on the fact that students, unlike adults, might feel subtly coerced to participate and would be unlikely to want to miss their graduation to protest sectarian prayers.

But what if the prayer is voluntary? In the 2000 case Santa Fe v. Doe, the Supreme Court tackled the issue of student-initiated, student-led prayer at school-sponsored athletic events. The students would vote on whether they wanted prayer at football games, and a student would then deliver an invocation over school loudspeakers. The Supreme Court found the Santa Fe policy unconstitutional by a 6–3 margin, partly because a football game is still a school-sponsored event, and because you don’t get to vote about God, and because coercion was still possible, and because nobody really knows what “nonsectarian” prayer means anymore.

So what about the fact that Kennedy says his prayers are private—they merely happen on the 50-yard line after a game and that when he looks up, the students have joined him there?

In one of the most compelling defenses of Kennedy, the Seattle Times’ Matt Calkins, who writes that he himself is not religious, says Kennedy should be left alone because he is a tremendously nice man who does not go out of his way to seek attention, and because “public displays of faith are everywhere. They’re on television, in the streets, and on NFL fields galore.” What harm, he posits, can there be in children seeing their public school heroes do the same thing? But of course that is perfectly circular. The mere fact that religion is “everywhere” doesn’t change the constitutional calculus about injecting religion into public schools.

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And the fact that Kennedy is a wonderful role model and real-life hero who simply wants to model religious bravery for his students doesn’t make his conduct benign or constitutional. His very humility and conviction, combined with his determination to keep praying on the football field, mean that students are being invited to follow the religious path trodden by a school mentor and a role model.

Kennedy’s many defenders insist that what he does is not merely private, but also secular, since he has stopped invoking the name of God in recent prayers. But—as is invariably the case in these religious freedom arguments—he himself calls it “prayer,” and the legal analysis holding that his religious rights are being quashed only works insofar as his behavior is acknowledged as a public act of prayer. Were it merely a secular act of kneeling in private, it would raise no religious freedom issues in the first instance.

This is nothing like wearing a turban or a yarmulke, because it is, deliberately and consciously, praying in a public space.

So if we are to call it what it is—prayer—and also acknowledge that the very idea here is to inspire and embolden the high school students who adore a popular coach to pray along with him, then how can this not be a classic Establishment Clause problem that raises questions about coercion of the students?

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The more I read about the brave and devout Kennedy, the more I find that I agree with Calkins, who writes: “Joe can coach my kid any day.”

I would love for my kids to have coaches like Kennedy: men who are veterans and mentors and who deeply understand the outsize role they play in the moral and developmental lives of our youth. I dream of having teachers and coaches like that. And that is precisely why I don’t want Kennedy—or any other devout believer in any faith—to use all of that school-conferred power and influence to openly admit to modeling religious bravery to my children, or anyone else’s. It’s not the unpopular or grandiose educators one worries about when it comes to publicly privileging one faith over another. It’s the wonderful ones.

In church, yes. In a religious club, absolutely. At Sunday school, yes, sure. But public school is still supposed to be a place where our heroes don’t lead us to worship. And when the self-confessed point here is to show suggestible children that brave Christians will always stand up to secular “bullies,” it crosses a clear line between school sports and worship, whether it happens on the 50-yard line or the end zone. 

*Correction, Nov. 12, 2015: The article originally misstated that Joe Kennedy was a volunteer coach at Bremerton; he is paid.