Last week, the 9th Circuit Court of Appeals upheld the suspension of a high school football coach for praying on the field after football games. The court ruled that the school district did not violate the coach’s First Amendment rights when it suspended him for praying.
After each game, the coach would kneel at the 50 yard line and would pray. While he initially prayed by himself, football players began to join him, as did spectators. He would pray for player safety, sportsmanship, and spirited competition, and would often give motivational speeches. The school district claimed that these activities violated district policy that “staff shall neither encourage nor discourage a student from engaging in nondisruptive oral or silent prayer,” and therefore suspended him.
The coach sued the school district, claiming that the suspension violated his First Amendment right to freely exercise his religious beliefs. He argued that his conduct did not encourage or discourage students from engaging in prayer because students joined him voluntarily without his encouragement and his prayers took place after the game, when his coaching duties had ended.
The court disagreed, holding that the district was right to fire the coach because he spoke as a public employee, and therefore his conduct could potentially be a violation of the Establishment Clause, which requires a separation between church and state. The court ruled that the coach was still acting in his capacity as a public employee because he had access to the field that members of the general public would not have, and because he was wearing school insignia when he prayed. The court held that any reasonable observer would find that the coach lead “an orchestrated session of faith.”
The court also held that the coach’s behavior could violate the separation of church and state because it might encourage students to engage in a particular religious belief. The court held that the coach’s prayer resulted in “subtle coercion” because “[i]f you are an athlete, you are impressionable, and you…want to please your coach to get more playing time, to shine.”
The coach also argued that the school district violated his right to free speech by suspending him. Public employers cannot fire an employee for his or her speech if that employee: 1) speaks on a matter of public concern, 2) speaks as a private citizen rather than a public employee, and 3) the employee’s speech does not violate his or her job duties.
As noted above, the court disagreed with the coach’s argument that he was acting as a private citizen when he prayed. It also disagreed with the coach’s argument that he was not violating his job duties. Those job duties included “becoming a coach, mentor, and role model for student athletes” and included a requirement to create both good athletes and good human beings, duties which the coach argued he had fulfilled. The court, however, found that his behavior violated district policy by encouraging students to engage in prayer. As a result, his suspension did not violate his First Amendment right to freedom of speech.
Public sector employers face a far more difficult challenge than private sector employers in regulating employee behavior because they are bound by the Constitution. Firing an employee for things that he or she has said or activities that the employee says were motivated by religion can put the government at risk of a lawsuit. Before wading into these matters, public employers would be wise to consult with an attorney.