On the Kennedy decision

 Yes, I have had the Kennedy v. Bremerton School District decision sitting on my desk in a folder for a month, waiting for me to get to it. It's absolutely--as the dissent itself notes!-- one that we're going to see reverberating down to districts.

Usual disclaimers: I'm not at all a lawyer. And I blog only as me. If you have anything at all to do with a school district, good heavens, talk to legal counsel before you do anything!

The simple outlines of the case: a football coach in Washington State prays in the middle of the football field after games. Is he within his rights to do so, or is the district correct in telling him he may not?

This case does have in common with Carson v. Makin, the Maine religious schools case that I discussed over here last month that it's another chapter in the tension between the Establishment and Exercise clauses in the First Amendment; that is, it's "Congress shall make no law" establishing a religion, but also shall not prevent individuals from exercising their religion.

Now, I should note here that Justice Gorsuch, who wrote for the majority, very explicitly (not only speaking to the dissent, but also, it reads to me, speaking to the dissent in Carson, a bit) disagrees that there is a tension, let alone that it's present in this case. To Gorsuch and the majority, the case is simple: the coach just wanted to pray out there as an individual, the district told him he couldn't, and that's an arm of the state--never forget that public schools are a part of the government--preventing an individual from free exercise of their faith.

The New Yorker has done a good job in taking apart the circular nature of this argument. 

What the majority never adequately deal with in their argument is that Coach Kennedy was a football coach, standing on a football field, directly after a game, in his coach garb. They argue that others are doing non-coach things in those moments after the game, but this misses that being "coach" doesn't come off that easily. Thus rather than being an individual being denied his rights, he is himself an agent of the state (enjoy that description!) who is imposing his faith on others, thus becoming the state establishing a religion. As noted first in the dissent, and then in Teen Vogue and elsewhere, the coercive nature of the coach's actions on his players absolutely need to be accounted for in discussing his actions and the district's decisions. 

As was noted in the Seattle Times after the decision, Coach Kennedy also wasn't conducting a quiet, individual prayer out there on the 50 yard line. He'd deliberately invited public attention to a controversy he nursed with the district. Justice Sotomayor, writing the dissent, went so far as to include photos of a large group surrounding the coach at midfield, some of whom had jumped the field fences to be on the field after the game, contrary to district policy. None of this was an accident. 

What is in peril here, of course, is the religious practice or lack of practice of students in our public schools. The rights of the students to be free from coercion by those in authority in public schools is nowhere recognized in this decision. 

And of course, this makes a mess for anyone making or enforcing public policy in our schools. Just how much of a mess is clear from some of the legal writing stemming from the decision; see, for example, here and here (both of which I recommend, for what it's worth, for those considering their district policies). 

I don't have a magic answer here, though I also will say that I have yet to read legal counsel that does.