Most media coverage of Kennedy v. Bremerton revolves around religious exercise and whether the school was hostile to it. However, the majority opinion holds that Kennedy's prayer was protected by both the Free Exercise and Free Speech Clauses.

This would seem to suggest nonreligious speech, such as political speech, may also be protected if delivered in a similar manner to Kennedy's prayers. To what extent does the ruling guarantee a teacher's a right to express political opinions?

For example, suppose a coach wanted to "take a knee" a la Kaepernick in protest of police brutality, or give a midfield land acknowledgment denouncing America's colonial past. Is it constitutionally permissible for the school district to prohibit this?

2 Answers 2


I don't think Kennedy v. Bremerton would have much effect, because there has been little question that governments cannot prohibit the expression of a political viewpoint. There have been a number of rulings based on the Establishment Clause which say that it is impermissible for the government to establish a particular religion, or religions in general, which has resulted in a struggle between the Establishment Clause and the Free Exercise Clause, leading to a particular resolution in Kennedy v. Bremerton. I see nothing new in that opinion that bears on Free Speech. We can paraphrase the tail end of the holding in the opinion for any such future case: "a government entity sought to punish an individual for engaging in a personal political expression, based on a mistaken view that it has a duty to suppress political expressions even as it allows comparable secular speech. The Constitution neither mandates nor tolerates that kind of discrimination". Since there is nothing that vaguely suggests that it is okay to suppress political expression, nothing fancy is required to conclude that the school cannot suppress political expression.


So it's important to note that Kennedy's prayer was done at the 50 yard line of the football field at the end of every game as the teams and crowd were leaving. While he did kneel and make the sign of the cross, his prayer was made silently. SCOTUS found no evidence that Kennedy pressured his players (or the coaches and players from opposing teams who joined in his post game tradition) to join him and that all people who engaged in the practice did so of their own free will after noticing Kennedy doing so. As a general rule in the U.S., religious expression is permitted in public schools so long as the staff (who are government employees) do not encourage others to do so as well, since a school staffer will have a "captive audience" in the form of the students, which would unduly influence them."

As such, a Coach may take a knee during the national anthem so long as the coach makes no effort to encourage other students to do as he does and or takes adverse actions against students who remain standing. The midfield denouncement idea may not track as again, Kennedy's prayer was silent and followed the conclusion of the game when there was no captive audience (everyone was leaving). Anyone who was interested in participating in his actions alongside him was free to do so but no one was forced to do so. Since public school property is available for public use and generally in the U.S., out door high school sports fields, when not in use for school functions, are available to the public for their own use, his speech at a 50 yard line following the game's conclusion would be fine. I would wager that the sounds system that is in place for the game function would not be permissible with no advanced notice.

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