1st place — 2024 FFRF Law Student Essay Contest: Arielle Allen
By Arielle Allen
It was my first day of sixth grade when my history teacher introduced herself and exclaimed, “I simply cannot teach you history without teaching you His Story.” Clever, right? Now, I grew up in the Bible Belt, namely South Carolina, so this did not surprise me. What did surprise me was the rapture book series, “Left Behind,” she later encouraged us to read — and we did. What this had to do with history, I still do not know. But I do know that as a student, I immediately feared being left behind, when, instead, I should have just been left alone.
If this sounds familiar, you either also grew up in the Bible Belt or you heard stories like Coach Joe Kennedy’s. It all started when the school district that Kennedy worked for as a high school football coach in Bremerton, Wash., discovered he was praying with the players at games. Abiding by the Establishment Clause, the district told Kennedy to stop praying with the student players at games and suggested alternative ways to express his religion.
Initially, he accepted the district’s accommodations and complied by praying after the game ended and the players had left the field. But, discontented, Kennedy would go on to publicly express his dissatisfaction and advertise his plan to pray at the upcoming game through media, stirring his community. Then, almost like a deity himself, he kneeled midfield surrounded by visiting students and community members immediately after the game and prayed, as advertised. Shortly after, he was placed on paid administrative leave.
But you would only appreciate these facts if you read the 9th U.S. Circuit Court of Appeals opinion, read the Supreme Court’s dissenting opinion, or listened to Kennedy’s media tour. The Supreme Court majority, on the other hand, accepted Kennedy’s account that he quietly and briefly prayed at the end of the game alone. And, paradoxically, because had the court operated on the facts in the 9th Circuit’s record, how much further would it have gone to erode the Establishment Clause? Moreover, what could the Constitution say that would protect the Establishment Clause from an even more audacious Supreme Court?
Proposed amendment
In 1971, Chief Justice Warren Burger wrote for the majority in Lemon: “In the absence of precisely stated constitutional prohibitions, we must draw lines with reference to the three main evils against which the Establishment Clause was intended to afford protection: ‘sponsorship, financial support, and active involvement of the sovereign in religious activity’” (emphasis added). At that time, the court understood secularism as neutrality and determined that secularism is exactly what the Establishment Clause requires.
Recently, the Supreme Court inverted this analysis by characterizing exclusively secularist involvement as religious discrimination. This is what the Bremerton court did by elevating Kennedy’s free exercise protections over the Establishment Clause’s requirements, effectively sidestepping precedent while propagating a rule that provides no guidance for school districts. This essay seeks to answer Burger’s call for precisely stated constitutional prohibitions.
Any amendment restoring the Establishment Clause must start with recognizing the decades-old School Prayer Cases precedent. In doing so, this 28th Amendment should incorporate elements of the Lemon and endorsement tests and return to acknowledging implicit coercion as a concern among impressionable primary and secondary school children. Indeed, although imperfect, the Lemon and endorsement tests appear crystal clear when contrasted to the ambiguous and murky “historical practices and understandings” Bremerton test.
This is especially true since the Supreme Court does not consistently apply “historical practices and understandings” in all Establishment Clause cases. For example, the court fails to apply this test in Carson v. Makin, where the result would have been less favorable to Christian nationalism. With this context in mind, the proposed amendment is as follows:
“No state shall promote, sponsor, disseminate or otherwise endorse any expression of religion nor shall any state permit conduct that a reasonable observer would conclude elevates a public servant’s free exercise protections over a K-12 student’s unconditional freedom from religious coercion.”
This amendment dispenses with determining whether speech was made as a private citizen or as an employee, addresses both coercion and endorsement, and focuses protection on the people required to attend compulsory public school (students) rather than people that elect to work there (teachers).
Applying the amendment
Much of the confusion with the Bremerton holding is that it is both simultaneously broad and narrow, depending on which set of facts apply. The first set, the majority’s account, is that the district suspended Kennedy only for praying quietly after games “without his students.” The second is that the district placed Kennedy on paid leave after he ignored multiple requests to stop praying with students, failed to compromise with his employer, and instead conducted a media campaign advertising his refusal to abide district policy. Moreover, Bremerton left open what the Establishment Clause condemns, requires or permits, only seeming to elaborate on what the Free Exercise Clause requires for teachers. The proposed 28th Amendment resolves this gap.
Significantly, this amendment would provide direction to public school employers for policymaking. This is accomplished by eliminating the need for the court to decide whether Kennedy’s speech was as a private citizen or as a government employee. The court ultimately held that Kennedy spoke as a private citizen on matters of public concern, which resolved Kennedy’s free speech claim in his favor. Little consideration was given to the district’s interests as an employer in maintaining order and positive relationships with the community.
Like the plaintiff in Connick v. Meyers, Kennedy’s conduct greatly undermined the employer’s authority, disrupted operations, and diminished positive work relations. This proposed amendment deprives Coach Kennedy of the opportunity to “constitutionalize the employee grievance.” Instead, Kennedy would be required to participate in the many opportunities provided by the district to accommodate his religious beliefs while respecting the students’ constitutional rights.
Critically, the “historical practices and understandings” rule is far too ambiguous to facilitate sound policymaking. It is unclear at which point districts are abiding the Establishment Clause while not running afoul of a teacher’s free exercise rights. By contrast, the endorsement test is anchored by what a reasonable observer would determine with “the history and context of the community and forum in which the religious display appears.”
This is precisely what the district considered when they requested that Kennedy stop praying with students, since a reasonable observer would conclude that the group prayer is state-sanctioned religious activity at a school event. Sotomayor’s dissenting opinion discusses how the court erred by assessing the school district’s Establishment Clause concerns “divorced from the context and history of Kennedy’s prayer practice,” which explains, at least in part, why the majority misconstrues the facts.
Accordingly, the school district is not required to permit insubordinate conduct in contravention of students’ rights, since the district’s concerns are sufficient grounds to reprimand Kennedy under this amendment. Moreover, the district no longer needs to walk the tightrope in policymaking while in the impossible position of deciding which costly and protracted litigation to prepare for — free exercise or Establishment Clause violations. Teachers will also be empowered by knowing when they are crossing the line prior to employer intervention.
After “abandoning” the endorsement test, the Bremerton court proceeded to burden the district with proving coercion, rather than asserting “phantom constitutional violations.”
This is a stark contrast to Lee v. Weisman, where the court did not require proof of coercion, and instead focused on what a reasonable student would feel under the circumstances. Indeed, while education is compulsory for K-12 students, including those public school students in Bremerton, Kennedy could seek employment at various private institutions. Alternatively, Kennedy could have continued with the accommodations offered by the district, or suggested his own alternatives in compliance with the school’s policies.
Accordingly, it is reasonable to presume coercion when an adult in a position of authority promotes their own religious beliefs to students in school-sanctioned environments. A football coach with the ability to reward or punish players certainly stands in a position of authority. Furthermore, students and their parents should not be burdened with opting-out of prayer to participate in school-based events. As such, players should not be in the position of standing off from their teammates and coach to avoid participation in a religious exercise. This amendment accounts for this reality by acknowledging the students’ unconditional freedom from religious coercion based on what a reasonable observer would believe.
Conclusion
In sum, this amendment will restore the Establishment Clause by prohibiting states from elevating teachers’ free exercise rights over parents’ and students’ rights. This amendment will also ensure that the Establishment Clause is not interpreted differently based on the political and ideological shifts of the Supreme Court bench, as the current historical practices and understanding test has already illustrated. As a result, this amendment promotes judicial economy and ensures more predictability for public school employers and their employees.
Arielle Allen is a student at the University of Texas School of Law, where she has focused her curriculum on civil litigation and worked as a student attorney in the Children’s Rights, Disability Rights, and Actual Innocence clinics. After graduation, Arielle is opening a trial firm with another lawyer, serving clients across central Texas.
