The Establishment Clause of the First Amendment provides that “Congress shall make no law respecting an establishment of religion.” [1] Together with the Free Exercise Clause, which prohibits laws “prohibiting the free exercises” of religion, the Religion Clauses reflect a constitutional commitment to both religious liberty and governmental neutrality.[2] The Supreme Court (the “Court”) has long stated that the Establishment Clause “mandates governmental neutrality between religion and religion, and between religion and nonreligion.”[3]
For decades, the Court consistently invalidated school practices that integrated prayer into official school activities or conveyed the appearance of state endorsement of religion.[4] But in Kennedy v. Bremerton School District, the Court rejected decades of Establishment Clause doctrine and replaced the familiar endorsement test with what it described as a “historical practices and understandings” approach.[5] The Court centered its inquiry on coercion and concluded that because there was no evidence that students were required to pray or that participation was compelled, no constitutional violation occurred. [6]
The decision sparked divided reactions. Some viewed it as a victory for religious liberty and free speech.[7] Others criticized it as destabilizing church-state separation in public schools.[8] At the very least, the decision leaves school administrators wondering what they are supposed to do.
The Facts of Kennedy
Understanding the policy consequences of Kennedy requires understanding the facts. Joseph Kennedy was a high school football coach in Bremerton, Washington.[9] For years, he engaged in brief, silent prayers at the 50-yard line immediately following games.[10] Over time, some players began joining him.[11] The practice occasionally included motivational religious messages and attracted media attention.[12]
The school district grew concerned that the prayers, occurring on the field immediately after the games and in view of students and spectators, could be perceived as school endorsement of religion.[13] Administrators directed Kennedy to refrain from engaging in demonstrative religious activity while on duty.[14] Kennedy refused.[15] He continued to pray at midfield after games and was ultimately placed on administrative leave and not rehired.[16]
Kennedy sued, alleging violations of his rights under the Free Exercise Clause and the Free Speech Clause.[17] The Supreme Court sided with Kennedy. The majority characterized his prayers as “brief, quiet, personal religious observance” that occurred while he was not actively coaching players.[18] The Court rejected the school district’s Establishment Clause concerns and held that the Constitution did not require the district to suppress Kennedy’s private religious expression.
The majority also used the case to formally abandon the Lemon v. Kurtzman framework and the endorsement test that had shaped Establishment Clause analysis for decades.[19] Instead, the Court instructed lower courts to interpret the Establishment Clause by reference to historical practices and understandings, with coercion as the central constitutional concern.[20]
The Special Constitutional Context of Public Schools
Historically, public schools have occupied a distinct position in Establishment Clause jurisprudence. Students are legally required to attend, coaches and teachers exercise evaluative and supervisory authority, and adolescents are uniquely susceptible to peer pressure and social conformity.[21] These structural realities have shaped the Court’s approach to school prayer cases.
For decades, the Court applied the three-pronged test from Lemon v. Kurtzman, which asked whether government action had a secular purpose, whether its principal effect advanced or inhibited religion, and whether it fostered excessive entanglement with religion.[22]
In Lee v. Weisman, the Court invalidated clergy-led prayer at a high school graduation, emphasizing that coercion in schools may be “subtle and indirect,” yet constitutionally significant. [23] Even when attendance at graduation was technically voluntary, the Court recognized that social pressure could amount to unconstitutional coercion.[24]
Similarly, in Santa Fe Independent School District v. Doe, the Court struck down student-led prayer before football games.[25] The Court reasoned that the school’s involvement in organizing and supervising the prayer created impermissible pressure on students to participate.[26] The key concern in both cases was the combination of school authority and social expectation.
These precedents reflected a recognition that coercion in public schools often operates through its structure.
The Shift in Kennedy
Kennedy altered this framework. The Court rejected reliance on the endorsement test and emphasized that historical practice and coercion now guide Establishment Clause analysis. The majority concluded that because students were not required to pray and because there was no clear evidence that playing time or team status depended on participation, no unconstitutional coercion occurred.[27]
The Court’s analysis focused heavily on the absence of documented complaints or explicit directives. [28] In doing so, it adopted a relatively narrow conception of coercion that is tied to overt compulsion rather than contextual pressure.
But in athletics, authority and visibility are harder to separate. Coaches influence playing time, leadership roles, and recommendations. Team cohesion and peer conformity may amplify that influence.[29] By concentrating on documented instances of explicit coercion, the Court arguably minimized the structural dynamics that have historically animated school prayer cases.
Public Policy Consequences
The doctrinal shift from endorsement to coercion carries significant public policy implications.
First, it raises evidentiary burdens. Students alleging religious pressure must now demonstrate something closer to explicit compulsion rather than contextual influence. Yet adolescents may be reluctant to complain about authority figures who control their opportunities. The absence of formal complaints does not necessarily indicate the absence of pressure.
Second, the decision creates uncertainty for administrators. School districts must balance employee Free Exercise and Free Speech rights with their constitutional obligation to avoid establishing religion. By rejecting the Lemon test and narrowing the coercion inquiry without providing a clear alternative framework, Kennedy leaves administrators without a predictable method for evaluating religious expression that falls short of overt compulsion but nonetheless implicates student vulnerability.
Third, the decision risks normalizing religious expression in highly visible school contexts. Public schools serve diverse populations, including students of minority faiths and students with no religious affiliation. When religious practice occurs in settings closely tied to school authority, it potentially may signal alignment with a particular faith tradition.
Conclusion
Kennedy v. Bremerton represents a significant change of Establishment Clause doctrine. By rejecting the endorsement test and centering coercion, the Court reshaped how religious expression in public schools will be evaluated going forward. However, replacing one framework with another did not eliminate the underlying constitutional tension.
If coercion is the governing standard, courts must recognize that coercion in public schools is often subtle, unreported, and embedded in hierarchy. Focusing only on documented instances of overt pressure risks overlooking the structural realities of adolescent life and institutional authority.
Religious liberty is strongest when participation is genuinely voluntary. Students should be free to join or abstain without fear of social or institutional consequence. The challenge after Kennedy is ensuring that the coercion framework remains sensitive to those structural realities.
[1] U.S. Const. amend. I.
[2] U.S. Const. amend I.
[3] McCreary Cty. V. Am. Civ. Liberties Union of Ky., 545 U.S. 844, 860 (2005).
[4] See Santa Fe Indep. Sch. Dist. V. Doe, 530 U.S. 290, 290 (2000). (invalidating prayer prior to football games); Schempp, 374 U.S. 203 (invalidating a statute requiring the recitation of Bible verses and Lord’s Prayer before class); Engel v. Vitale, 370 U.S. 421, 422 (1962) (invalidating a state-composed prayer for recitation in public school classrooms).
[5] Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 537 (2022).
[6] Id. at 543.
[7] Aislinn Comiskey, Kennedy v. Bremerton School District: A Touchdown and a Victory for Establishment Clause Jurisprudence, 31 Jeffrey S. Moorad Sports L.J. 67 (2024).
[8] See JOSEPH A. KENNEDY, Petitioner, v. BREMERTON SCHOOL DISTRICT, Respondent., 2022 WL 1032638.
[9] Kennedy v. Bremerton Sch. Dist., 869 F.3d 813, 815 (9th Cir. 2017).
[10] Id. at 816.
[11] Id.
[12] Kennedy, 597 U.S. at 529.
[13] Kennedy v. Bremerton Sch. Dist., at 816.
[14] Id.
[15] Id.
[16] Id. at 819.
[17] Id. at 819.
[18] Kennedy, 597 U.S. at 520.
[19] Id. at 510.
[20] Id. at 511.
[21] Id. at 530.
[22] Lemon v. Kurtzman, 403 U.S. 602 (1971).
[23] Lee, 505 U.S. at 593.
[24] Id. at 595.
[25] Santa Fe, 530 U.S. at 317.
[26] Id. at 311.
[27] Kennedy, 597 U.S. at 537.
[28] Id.
[29] JOSEPH A. KENNEDY, Petitioner, v. BREMERTON SCHOOL DISTRICT, Respondent., 2022 WL 1032788, at *5.