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Court rules in favor of coach prayer

High-profile case among several affecting schools

The U.S. Supreme Court made a lot of news this term. Some of its rulings directly affect schools.

In the most high-profile case, Kennedy v. Bremerton School District, a six-justice majority held that the First Amendment’s free speech and free exercise of religion clauses protected a high school football coach’s right to pray on the field after games. Some players joined him at times but were never required or encouraged by the coach to do so. The school district terminated him based on its perception that an observer might conclude the district was endorsing prayer by an employee. He then sued it for violating his right to free speech and free exercise of religion.

The Supreme Court held that schools may not suppress such religious expression by employees. The Court rejected the school’s primary argument that it needed to suppress the coach’s religious speech to comply with the First Amendment’s Establishment Clause, which prohibits the government from “establishing” a religion. The Court said the Establishment Clause does not require the government to single out private religious speech for special disfavor.

The Court expressly rejected the Lemon v. Kurtzman test it introduced in a 1971 decision, which required consideration of a law’s purposes, effects, and potential for entanglement with religion. Instead, it held the Establishment Clause must be interpreted by reference to historical practices and understandings. The Court stated that “learning how to tolerate speech or prayer of all kinds is part of learning how to live in a pluralistic society, a trait of character essential to a tolerant citizenry.”

In another case, a unanimous ruling by the Court in Houston Community College System v. Wilson rejected a board member’s claim that the board’s censure of him over his speech violated his free speech rights under the First Amendment. While this case involved a community college board, the deci-

by Jay Bequette ASBA General Counsel

sion likely would apply equally to K-12 school boards.

The Court explained that board members should expect to be criticized by both the community and their board colleagues, and their recourse is to respond to critics with their own speech.

In upholding the censure, the Court observed that just as the board member had the right to criticize, the First Amendment “cannot be used as a weapon to silence other representatives from doing the same.” It said the censure did not prevent the board member from doing his job or deny him any privilege of office, and the board member did not allege the censure was defamatory. It also noted that the censure had not prevented him from continuing his criticism.

Somewhat limiting the scope of the decision, the Court added that there were occasions where verbal reprimands might give rise to First Amendment retaliatory claims, as in cases involving students, employees, licensees or other private individuals.

Finally, the Court ruled in Cummings v. Premier Rehab Keller that damages for emotional distress may not be recovered from public entities – including public schools – under federal civil rights laws that prohibit discrimination based on race, sex, and disability.

Such claims have been brought for many years under the Civil Rights Act of 1964, Title IX of the EducationAmendments of 1972, the Patient Protection and Affordable Care Act, and Section 504 of the Rehabilitation Act of 1973.

The ruling does not impact a plaintiff’s right to seek other types of compensatory damages, such as back pay, out-of-pocket expenses, medical bills, and the ability to recover legal costs.

The premise supporting the ruling was its 2002 Barnes decision. It held that federal funds recipients could not be found liable for punitive damages for violations of anti-discrimination laws.

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NEW BOARD MEMBER. John McFarland, a newly elected member of the Midland School Board, listens to a presentation at the New Board Member Institute.

Board members’ role limited, vital

At the New Board Member Institute, school board members were told to do what only they can do, while leaving other responsibilities to the professionals hired to do them.

What’s a school board member’s job? To do what only he or she can do, and not do what someone else already does for a living.

That was one of the messages at ASBA’s New Board Member Institute, the annual event that brings newly elected school board members together to review their limited but very important roles. The event was held June 30 at the Hot Springs DoubleTree by Hilton Hotel and had both in-person and virtual attendees.

In one session, ASBA Staff Attorney Kristen Garner and attorney Teddy Stewart with Bequette, Billingsley, & Kees, P.A., described how school boards should handle a situation where a district employee asks them to meet in executive session to discuss “some concerns.”

The short answer is, they shouldn’t. The school board hires and supervises only the superintendent. Employee matters are to be handled by the superintendent and by other administrators. School board members aren’t directly involved in employee matters until they reach a board hearing at the end of the process. Until then, they should remain as uninformed as possible in order to remain neutral and unbiased.

“If you are a school board member, a quick test is this: Is there anybody in this school district who gets paid money to do this thing or worry about this thing or find out about this thing or take care of this thing?” Garner said. “If the answer is ‘yes,’ then that is how you know it is not your job as a school board member.

“On the other hand, there are things that are your job as a school board member that no one else can do, like give an employment hearing, give a student hearing, approve the budget, etc., etc. That’s how you know it’s your job, when nobody else has the power to do it. So do the things that only you can do, and you will stay fine.”

Garner noted that a school board’s usurping the superintendent will hurt that relationship and may cost the district a good administrator at a time when good ones can be hard to find.

The two said that by far the most common reason a school board will