Oklahoma Education Department Creates Office of Religious Liberty and Patriotism

In a November 12 press release, Oklahoma State Superintendent of Public Instruction Ryan Walters announced the creation of the Office of Religious Liberty and Patriotism at the State Department of Education, saying in part:

[The Office] will serve to promote religious liberty and patriotism in Oklahoma and protect parents, teachers, and students’ abilities to practice their religion freely in all aspects. The office will also oversee the investigation of abuses to individual religious freedom or displays of patriotism. Guidance to schools will be issued in the coming days on steps to be taken to ensure the right to pray in schools is safeguarded....

The new office will be charged with supporting teachers and students when their constitutional rights are threatened by well-funded, out of state groups as happened in Skiatook last year when a school was bullied into removing Bible quotes from a classroom....

The newly established Office of Religious Liberty and Patriotism is in line with one of President Trump’s top education priorities, “Freedom to Pray.”...

KOKH News has more on Walters' promotion of school prayer. [Thanks to Scott Mange for the lead.]

Coach Kennedy Resigns After One Post-Game Prayer

Last year, in a widely publicized Supreme Court decision, Bremerton, Washington high school football coach Joe Kennedy won the right to offer a personal prayer on the 50-yard line immediately after football games. After his Supreme Court win, Kennedy was reinstated as coach.  AP now reports that on Wednesday, after one game back at which he offered a brief post-game prayer, Kennedy resigned his coaching position and returned to Florida where he had been living full time. Kennedy posted a statement on his personal website, saying in part: "I believe I can best continue to advocate for constitutional freedom and religious liberty by working from outside the school system so that is what I will do."

Florida Governor Signs 5 Bills Labeled As "Protecting Innocence of Florida's Children"

On Wednesday, Florida Governor Ron DeSantis signed 5 bills into law which a press release from the governor's office described as "legislation to protect the innocence of Florida's children." 

• Senate Bill 254 (full text) prohibits sex-reassignment prescriptions or procedures for individuals under 18 years of age.
• House Bill 1069 (full text) prohibits K-12 schools from asking students to provide their preferred title or pronoun; prohibits requiring employees or students to refer to others by their preferred pronouns; and prohibits employees from providing their preferred title or pronoun to any student if the title or pronoun does not correspond to the person's biological sex.
• Senate Bill 1438 (full text) prohibits admitting children to sexually explicit adult performances that are pornographic for children. A summary of the bills released by the governor's office says that this includes a ban on admitting children to drag shows.
• House Bill 1521 (full text) requires individual to use restrooms and changing facilities that correspond to their biological sex in educational institutions, correctional institutions and public buildings.
• House Bill 225 (full text) allows charter and online school students to participate in extracurricular activities at public or private schools. It also provides that high school athletic associations that include public schools must allow any school participating in a championship contest to make 2-minute opening remarks using the public address system. It goes on to provide:

The athletic association may not control, monitor, or review the content of the opening remarks and may not control the school’s choice of speaker. Member schools may not provide remarks that are derogatory, rude, or threatening. Before the opening remarks, an announcement must be made that the content of any opening remarks by a participating school is not endorsed by and does not reflect the views and or opinions of the athletic association.... 

A summary of the bills released by the governor's office says that this includes the right to offer public prayer at high school sporting events.

The Washington Stand has additional reporting on the bill signings.

DOE Updates Guidance on Prayer In Public Schools

Yesterday, the U.S. Department of Education issued an updated Guidance on Constitutionally Protected Prayer and Religious Expression in Public Elementary and Secondary Schools. The Guidance document points out that the Elementary and Secondary Education Act requires the Secretary of Education to issue such guidance to state and local education agencies, and local agencies must certify that they do not have policies that deny participation in constitutionally protected prayer. The Guidance reads in part:

Teachers, school administrators, and other school employees may not encourage or discourage private prayer or other religious activity.

The Constitution does not, however, prohibit school employees themselves from engaging in private prayer during the workday where they are not acting in their official capacities and where their prayer does not result in any coercion of students. Before school or during breaks, for instance, teachers may meet with other teachers for prayer or religious study to the same extent that they may engage in other conversation or nonreligious activities. School employees may also engage in private religious expression or brief personal religious observance during such times, subject to the same neutral rules the school applies to other private conduct by its employees. Employees engaging in such expression or observance may not, however, compel, coerce, persuade, or encourage students to join in the employee's prayer or other religious activity, and a school may take reasonable measures to ensure that students are not pressured or encouraged to join in the private prayer of their teachers or coaches.

Americans United issued a press release welcoming the updated Guidance.

Prayer At The 50-Yard Line: SCOTUS Hears Football Coach's Case This Morning

This morning, the U.S. Supreme Court will hear oral arguments in Kennedy v. Bremerton School District. In the case, the U.S. 9th Circuit Court of Appeals upheld a high school's actions against a football coach who insisted on praying at the 50-yard line immediately after football games. The coach was placed on paid administrative leave and given negative performance reviews. He did not reapply to coach the following year. A divided 9th Circuit denied en banc review. (See prior posting.) Amy Howe at SCOTUSblog previews the case, saying in part:

... Kennedy and the school district disagree not only about the legal issues and their implications, but also about many of the facts, including exactly why Kennedy lost his job. Kennedy says he was fired for briefly and privately praying at midfield; Laser and the school district counter that he was suspended for “refusing to stop holding public prayers at the 50-yard line,” which created both pressure for students to join him and “genuine safety concerns for students on the fields because of the spectacle that ensued from his media outreach on praying.”

The SCOTUSblog case page has links to the filings in the case, including the dozens of amicus briefs that have been submitted. Live audio of the oral arguments, which begin at 10:00 AM, will be available at this link. When the transcript and recording of the oral arguments become available later today, I will update this post with links to them.

UPDATE Here are links to the transcript and audio of the oral arguments.

Cert. Filed In Case Of Football Coach Seeking To Pray On Field

A petition for certiorari (full text) was filed with the U.S. Supreme Court yesterday in Kennedy v. Bremerton School District, (US Sup. Ct., cert. filed 9/14/2021). In the case, the U.S. 9th Circuit Court of Appeals upheld the firing of a high school football coach who insisted on prominently praying at the 50-yard line immediately after football games. A divided 9th Circuit denied en banc review. (See prior posting.) First Liberty issued a press release announcing the filing of the petition for review.

9th Circuit Denies En Banc Review Of Football Coach's Challenge To Dismissal For On-Field Prayer

In Kennedy v. Bremerton School District, (9th Cir., July 19, 2021), the U.S. 9th Circuit Court of Appeals rejected a sua sponte request for a rehearing en banc in the case of a high school football coach who insisted on prominently praying at the 50-yard line immediately after football games. A 3-judge panel upheld upheld a Washington state school board's dismissal of the coach. (See prior posting.) The denial of the rehearing however generated six concurring and dissenting opinions and statements spanning 92 pages, reflecting sharp differences. Judge Smith's opinion concurring in the denial of review says in part:

Unlike Odysseus, who was able to resist the seductive song of the Sirens by being tied to a mast and having his shipmates stop their ears with bees’ wax, our colleague, Judge O’Scannlain, appears to have succumbed to the Siren song of a deceitful narrative of this case spun by counsel for Appellant, to the effect that Joseph Kennedy, a Bremerton High School (BHS) football coach, was disciplined for holding silent, private prayers. That narrative is false.... [T]he reader should know the following basic truth ab initio: Kennedy was never disciplined by BHS for offering silent, private prayers.

Senior Judge O'Scannlain, joined in full by 5 other judges and in part by two more, said in part:

It is axiomatic that teachers do not “shed” their First Amendment protections “at the schoolhouse gate.”... Yet the opinion in this case obliterates such constitutional protections by announcing a new rule that any speech by a public school teacher or coach, while on the clock and in earshot of others, is subject to plenary control by the government. Indeed, we are told that, from the moment public high school football coach Joseph Kennedy arrives at work until the very last of his players has gone home after a game, the Free Speech Clause simply doesn’t apply to him.

First Liberty announced that an appeal will be filed with the U.S. Supreme Court.

9th Circuit: Football Coach's Past-Game Prayers Violate Establishment Clause

In Kennedy v. Bremerton School District, (9th Cir., March 18, 2021), the U.S. 9th Circuit Court of Appeals upheld a Washington state school board's dismissal of a high school football coach who insisted on prominently praying at the 50-yard line immediately after football games. The long-running high-profile case was before the 9th Circuit for the second time. (See prior posting.) The court issued a Summary of its decision along with the opinion, saying in part:

The panel held that the record before it and binding Supreme Court precedent compelled the conclusion that the District would have violated the Establishment Clause by allowing Kennedy to engage in the religious activity he sought. Kennedy’s attempts to draw nationwide attention to his challenge to the District showed that he was not engaging in private prayer. Instead, he was engaging in public speech of an overtly religious nature while performing his job duties. The District tried to accommodate Kennedy, but that was spurned by Kennedy insisting that he be allowed to pray immediately after the conclusion of each game, potentially surrounded by students. The panel held that the district court correctly granted summary judgment to the District on Kennedy’s free speech and free exercise claims.

The panel held that Kennedy’s Title VII claims alleging failure to rehire, disparate treatment, failure to accommodate and retaliation also failed.

Judge Christen also issued a concurring opinion, joined by Judge Nelson. Friendly Atheist blog has more on the decision. [Thanks to Mel Kaufman for the lead.]

Consent Decree Ends Religious Practices In Tennessee School District

Earlier this week, a Tennessee federal district court issued a consent decree in Butler v. Smith County Board of Education, (MD TN, Sept. 14, 2020), enjoining various religious practices in the Smith County schools. The Consent Decree and Order provides in part:

Complaint alleged that the Board has a custom, policy, and practice of violating the Establishment Clause by, among other actions, incorporating official prayer into school events; proselytizing students; and subjecting students to religious iconography via displays in classrooms, hallways, and other locations....

School Officials are enjoined from promoting, advancing, endorsing, participating in, or causing Prayers during or in conjunction with School Events for any school within the School District....

School Officials are enjoined from planning, organizing, financing, promoting, or otherwise sponsoring in whole or in part a Religious Service....

Defendants are enjoined from permitting School Officials at any school within the School District to promote their personal religious beliefs to students in class or during or in conjunction with a School Event....

School Officials are enjoined from taking retaliatory action against Plaintiffs or any member of their family for bringing this lawsuit or otherwise objecting to unconstitutional practices.

WZTV reports on the case.

High School Football Coach's Complaint Over On-Field Prayer Ban Is Dismissed

In Kennedy v. Bremerton Schoool District, (W WA, March 5, 2020), a Washington federal district court dismissed 1st Amendment and Title VII claims by a high school football coach who was suspended when he insisted on prominently praying at the 50-yard line immediately after football games.  The court said in part:

The ensuing dispute has highlighted a tension in the First Amendment between a public-school educator’s right to free religious expression and their school’s right to restrict that expression when it violates the Establishment Clause....

Given this practical assessment of Kennedy’s duties as a coach, the Court must hold that his prayers at the 50-yard line were not constitutionally protected.... Like the front of a classroom or the center of a stage, the 50-yard line of a football field is an expressive focal point from which school-sanctioned communications regularly emanate. If a teacher lingers at the front of the classroom following a lesson, or a director takes center stage after a performance, a reasonable onlooker would interpret their speech from that location as an extension of the school-sanctioned speech just before it. The same is true for Kennedy’s prayer from the 50-yard line....

Here, Kennedy’s practice of praying at the 50-yard line fails both the endorsement and coercion tests and violates the Establishment Clause. While it may not convey school approval as universally as a public announcement system, speech from the center of the football field immediately after each game also conveys official sanction. This is even more true when Kennedy is joined by students or adults to create a group of worshippers in a place the school controls access to.

The case, at the preliminary injunction stage, has already worked its way to the U.S. Supreme Court where certiorari was denied, but with an unusual 6-page concurring statement by 4 justices. (See prior posting.) Kitsap Sun reports on yesterday's district court decision.

Missouri AG Supports High School Football Coaches' Prayer Practices

Missouri Attorney General Eric Schmitt this week released a letter (full text) which he sent on Dec. 3 to the superintendent of the Cameron, Missouri School District supporting high school football coaches against charges in a letter (full text) from the Freedom From Religion Foundation . In its Oct. 28 letter, FFRF said in part:

It is our understanding the Cameron High School's head football coach, Jeff Wallace, and assistant football coach, David Stucky, have been holding religious "chapel" services for players before and after football games where coaches pray with players and read and discuss bible verses.  We understand that after games, Coach Wallace holds religious services with players on the fifty-yard line and leads players in prayer.  We understand that Coach Wallace often brings in outside preachers to proselytize to players as well.

It is illegal for public school athletic coaches to lead their teams in prayer or religious worship.

Responding to this, Attorney General Schmitt in his letter said in part:

FFRF is an extreme anti-religion organization that seeks to intimidate local governments into surrendering their citizens' religious freedom and to expunge any mention of religion from the public square....

Our understanding is that no coach or other Cameron official has forced any football player to participate in prayer or taken any action against any player who chose not to participate.   The prayer occurs outside of the football game.  The prayer is not broadcast over stadium loudspeakers, and fans evidently cannot hear any part of the prayer.  The school district reports that it received no complaints from anyone about the prayer, and FFRF does not reference any complainant in their letter.   Evidently, FFRF's threat does not reflect any discomfort with the prayers in the local community.  Rather, it reflects only FFRF's radical agenda. And without a complainant, FFRF lacks standing to sue the school district, no matter how strongly it objects to this voluntary prayer.

 Friendly Atheist blog reports on these developments.

Court Expands Injunction On Prayer At High School Graduations

In American Humanist Association v. Greenville County School District, (D SC, July 18, 2019), a South Carolina federal district court expanded its May 2015 order relating to prayer at high school graduation ceremonies in a South Carolina school district. It issued a permanent injunction that includes the following provisions:

(1) The district shall not include a prayer ... as part of the official program for a graduation ceremony. The district also shall not include an obviously religious piece of music as part of the official program for a graduation ceremony.

(2) The district and/or school officials shall not encourage, promote, advance, endorse, or participate in causing prayers during any graduation ceremony....

(4) The district and/or school officials shall not provide copies of student remarks from any prior year’s graduation ceremony to any students selected to make remarks during an upcoming graduation ceremony.

(5) ... No program or flier may direct the audience or participants to stand for any student’s remarks at a graduation ceremony.

(6) If school officials review, revise, or edit a student’s remarks in any way prior to the graduation ceremony, then school officials shall ensure that the student’s remarks do not include prayer.

(7) If school officials do not review, revise, or edit a student’s remarks ..., then a student’s remarks may include prayer, provided that no other persons may be asked to participate or join in the prayer, for example, by being asked to stand or bow one’s head. Moreover, in the event that a student’s remarks contain prayer, no school officials shall join in or otherwise participate in the prayer.

(8) Any program or flier for a graduation ceremony must include the following disclaimer if the ceremony includes a student’s remarks: “The views or opinions expressed by students during this program are their own and do not reflect the policy or position of the school district.”

Greenville News reports on the decision.

Cert. Denied In Football Coach's Firing For On-Field Prayer

Today, the U.S. Supreme Court denied certiorari in Kennedy v. Bremerton School District, (Docket No. 18-12, cert. denied 1/22/19).  In the case, the 9th Circuit affirmed the district court's denial of a preliminary injunction sought by a Washington-state high school football coach who in a challenge to his school district was suspended for kneeling and praying on the football field 50-yard line immediately after games. (See prior posting.)  In today's action, Justice Alito, joined by Justices Thomas, Gorsuch and Kavanaugh, filed a 6-page concurring statement (scroll to end of Order List), saying in part:

In this case, important unresolved factual questions would make it very difficult if not impossible at this stage to decide the free speech question that the petition asks us to review....

While I thus concur in the denial of the present petition, the Ninth Circuit’s understanding of the free speech rights of public school teachers is troubling and may justify review in the future....

What is perhaps most troubling about the Ninth Circuit’s opinion is language that can be understood to mean that a coach’s duty to serve as a good role model requires the coach to refrain from any manifestation of religious faith—even when the coach is plainly not on duty.....

While the petition now before us is based solely on the Free Speech Clause of the First Amendment, petitioner still has live claims under the Free Exercise Clause of the First Amendment and Title VII of the Civil Rights Act of 1964.... Petitioner’s decision to rely primarily on his free speech claims as opposed to these alternative claims may be due to certain decisions of this Court.

In Employment Div., Dept. of Human Resources of Ore. v. Smith ... the Court drastically cut back on the protection provided by the Free Exercise Clause, and in Trans World Airlines, Inc. v. Hardison ... the Court opined that Title VII’s prohibition of discrimination on the basis of religion does not require an employer to make any accommodation that imposes more than a de minimis burden. In this case, however, we have not been asked to revisit those decisions.

MyNorthwest reports on the decision.

School Board Votes To End Appeals of Board Prayer Policy Decision

As previously reported, last month the U.S. 9th Circuit Court of Appeals, over a number of dissenting views, denied en banc review in Freedom From Religion Foundation, Inc. v. Chino Valley Unified School District Board of Education. In the case, a 3-judge panel applied the Lemon test to strike down a California school board's prayer policy for board meetings. Now, according to the Chino Champion, on Thursday with two new board members voting, the Board voted 3-2 to end all appeals of the decision. One of the new Board members voting with the majority works as a 1st Amendment lawyer.

9th Circuit Denies En Banc Review In School Board Prayer Case

Yesterday, the U.S. 9th Circuit Court of Appeals denied en banc review in Freedom From Religion Foundation, Inc. v. Chino Valley Unified School District Board of Education, (9th Cir., Dec. 26, 2018). In the case, a 3-judge panel applied the Lemon test to strike down a California school board's prayer policy for board meetings. (See prior posting.)  Seven active judges plus one judge holding senior status who is technically unable to vote on the rehearing petition disagreed with the denial of en banc review.  An opinion by Senior Judge O'Scannlan argued that the case should be governed by the legislative prayer precedents rather than by the Lemon test. An opinion by Judge Nelson argued that even it the Lemon test applies, no Establishment Clause violation was present. The seven dissenting active judges joined all or part of both opinions. San Francisco Chronicle reports on the denial of review.

9th Circuit: School Board Invocations Violate Establishment Clause

In Freedom From Religion Foundation, Inc. v. Chino Valley Unified School District Board of Education, (9th Cir., July 25, 2018), the U.S. 9th Circuit Court of Appeals agreed with the district court that a California school board's prayer policy at board meetings violates the Establishment Clause. The court said in part:

The invocations to start the open portions of Board meetings are not within the legislative prayer tradition that allows certain types of prayer to open legislative sessions. This is not the sort of solemnizing and unifying prayer, directed at lawmakers themselves and conducted before an audience of mature adults free from coercive pressures to participate, that the legislative-prayer tradition contemplates.... Instead, these prayers typically take place before groups of schoolchildren whose attendance is not truly voluntary and whose relationship to school district officials, including the Board, is not one of full parity.....

Instead of the legislative-prayer analysis, we apply the three-pronged Establishment Clause test articulated in Lemon v. Kurtzman.... The Chino Valley Board’s prayer policy and practice fails the Lemon test and is therefore unconstitutional.

Los Angeles Times reports on the decision.

Supreme Court Review Sought In Case of Football Coach Prayer

A petition for certiorari (full text) was filed with the U.S. Supreme Court this week in Kennedy v. Bremerton School District, (cert. filed 6/25/2018).  In the case, the 9th Circuit affirmed the district court's denial of a preliminary injunction sought by a Washington-state high school football coach who in a challenge to his school district was suspended for kneeling and praying on the football field 50-yard line immediately after games. (See prior posting.)  Christian News reports on the petition for review.

Impact On The Ground of School-Prayer Lawsuit

As previously reported, in December the mother of a Louisiana high school student filed suit against a local school board alleging extensive Establishment Clause violations.  Yesterday, CNN took an in-depth look at the extent to which religion has pervaded Lakeside Junior/High School, and at the impact on students and parents of the school's decision, in response to the pending lawsuit, to end recitation of the Lord's Prayer each morning.

Suit Charges Louisiana School Promotes Christian Beliefs and Broadcasts Daily Prayer

In Louisiana yesterday, the mother of a high school student filed suit against a local school board alleging extensive Establishment Clause violations.  The complaint (full text) in Cole v. Webster Parish School Board, (WD LA, filed 12/18/2017) alleges in part:

2 ... [T]he Webster Parish School District has a longstanding custom, policy, and practice of promoting and inculcating Christian religious beliefs by sponsoring religious activities and conveying religious messages to students, including by broadcasting prayers daily over school speakers.

3. So engrained is official promotion of religion at Webster Parish schools that virtually all school events—such as sports games, pep rallies, assemblies, and graduation ceremonies—include school-sponsored Christian prayer, religious messages and/or proselytizing. Graduation ceremonies are frequently held in houses of worship, and at times they resemble religious rituals that include Bible verses and Christian prayers.

The ACLU issued a press release announcing the filing of the lawsuit. Shreveport Times reports on the lawsuit.

9th Circuit Hears Oral Arguments In School Board Invocation Case

Yesterday the U.S. 9th Circuit Court of Appeals heard oral arguments (video of full oral arguments) in Freedom From Religion foundation v. Chino Unified School District. In the case, a California federal district court held that invocations at school board meetings are governed by case law relating to school prayer, not by the line of cases on legislative prayer.  Courthouse News Service reports on the oral arguments.