Jason T. Hanselman1Jason T. Hanselman is a J.D. Candidate at the University of Chicago Law School, Class of 2024. He thanks the University of Chicago Law Review Online team for its thoughtful commentary and is grateful for Kayla Parker, to whom he dedicates any and all persuasive arguments in this Case Note.
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The First Amendment prohibits the state from “establish[ing]” a religion, and it is uncontroversial that this prohibition extends to so-called religious coercion. Suppose, for instance, that a teacher at a public high school attempts to spread her Catholic faith by awarding students academic credit for reciting the Apostle’s Creed. None would doubt that the teacher’s coercive scheme runs afoul of the First Amendment. However, the outer bounds of the Establishment Clause are hazier. Suppose instead that a football coach at a public high school prays on the field at the conclusion of every game, welcoming student participation without overtly encouraging it. Would the First Amendment still prohibit his behavior as unconstitutionally coercive?
The Supreme Court recently answered “no” in Kennedy v. Bremerton School District (2022). In reaching its decision, the Court amended its approach to religious coercion—and dramatically circumscribed the scope of the Establishment Clause. This Case Note questions the wisdom of taking such a blunt instrument to the First Amendment.
I. Religious Coercion Before Kennedy
Justice Anthony Kennedy introduced the notion of religious coercion in County of Allegheny v. ACLU (1989). Writing for himself and three other Justices, he proposed that the Establishment Clause prohibits state employees from promoting their faith traditions via coercion. Justice Kennedy distinguished direct and indirect coercive efforts: while the former explicitly encourage participation in a religious tradition, the latter employ the subtle influence of social pressure. As understood by Justice Kennedy, though, direct and indirect coercion are equally repugnant to the First Amendment.
Nearly a decade later in Lee v. Weisman (1992), Justice Kennedy’s view became that of the majority. Lee tasked the Supreme Court with evaluating the constitutionality of a public high school graduation ceremony that featured a monotheistic prayer. The Court found that, in supervising the ceremony, the school district indirectly yet unconstitutionally coerced students to pray. It reached this conclusion without requiring any students to testify to the social pressure they allegedly experienced. Rather, the Court appealed to the “undeniable fact” that a reasonable student would feel pressured to pray at the ceremony.
The Supreme Court later imported this test for indirect coercion into a variety of educational contexts. Most relevantly, in Santa Fe Independent School District v. Doe (2000), the Court was presented with a challenge to a public high school’s custom of commencing its football games with student-led prayer. The Court determined that this custom was unconstitutionally coercive, even though students were free to stay home from the games altogether. And much like in Lee, it did not require any students to testify that they actually felt compelled to participate in the religious custom. The Court instead based its finding of indirect coercion on the “obvious observation” that a reasonable student would experience social pressure to attend—and pray at—the games.2In the wake of Santa Fe, the Courts of Appeals conducted similarly nebulous analyses of indirect coercion. They approximated the social pressure experienced by a reasonable student by considering such factors as the content of the prayer, the age of the listeners, and the voluntariness of attendance.
II. Moving the Goalposts of Indirect Coercion
The Court was presented with similar facts to Santa Fe in Kennedy v. Bremerton School District (2022). In Kennedy, a football coach at a public high school was fired for praying on the field after games, prompting him to sue his former employer under the Free Speech and Free Exercise Clauses of the First Amendment. To defend itself, the school district argued that the coach’s termination was necessary to avoid violating the Establishment Clause. The Court was unpersuaded, however, determining that the school district failed to show the coach’s prayers were unconstitutionally coercive.
Speaking through Justice Neil Gorsuch, the Court first addressed the possibility of direct coercion. As expounded by Justice Kennedy, direct coercion requires an explicit attempt to encourage participation in a religious tradition. The coach in Kennedy disavowed any coercive intent, though, and he acted accordingly. When the school district directed him to stop giving religious speeches, he complied, requesting only that he still be able to pray himself. The Court was thus quick to conclude that the coach’s post-game prayers were not directly coercive.
Turning to the question of indirect coercion, the Court acknowledged that the coach wielded “authority and influence over the students.” Precedents like Lee and Santa Fe would suggest that this is tantamount to acknowledging indirect coercion: if the coach occupied a position of status, a reasonable student probably would feel pressured to join him in prayer. The Court insisted on additional evidence, though. First, it faulted the school district for failing to present testimony or other concrete proof that the students actually “felt pressured to participate in [the] prayers.” Second, the Court took issue with the lack of evidence that the students “did participate in any of the . . . prayers.”
III. Two Different, Yet Similarly Problematic, Readings of Kennedy
In Kennedy, the Court clearly parted ways with Lee and Santa Fe, but it is unclear how much of the old regime remains intact. School districts, which must assess indirect coercion to make termination decisions, will struggle to decide whether Kennedy establishes a new legal test or just revamps the old one.
A. Kennedy as Promulgating a New Indirect Coercion Test
One interpretation of Kennedy is that in identifying two evidentiary shortcomings, the Court announced the dual prongs of a new test for indirect coercion. On this reading, indirect coercion now requires (1) concretely demonstrable social pressure and (2) compelled religious expression.
But if the Kennedy Court debuted a new test for indirect coercion, it would seem to inadequately protect resilient students. Suppose that an adjunct professor teaches the same course at two public universities, leading an optional prayer at the conclusion of each session. While one of the professor’s classes succumbs to social pressure and joins her, the other happens to be unusually resilient. The university with resilient students would thus be unable to satisfy a “Kennedy Test,” the second prong of which would require participation in the encouraged religious practice. In other words, some students would be denied the protections of the Establishment Clause for no other reason than their insistence on religious autonomy.
Parsimony also militates against a two-pronged test for indirect coercion. Scholars have long maintained that any doctrinal wrinkle must pay for itself; what does an independent requirement of compelled religious expression bring to the table? It does not appear to be a particularly good proxy for determining whether the state has inflicted harm. Recall our zealous adjunct: in pressuring students at a public university to join her in prayer, she invaded the “sphere of inviolable belief and conscience” enshrined in the Establishment Clause. Her invasion does not become harmless when it is met with student resistance.
B. Kennedy as Revamping the Old Indirect Coercion Test
It is far from certain, though, that the Supreme Court intended Kennedy to spawn a new legal test. In finding that none of the students “did participate in any of the . . . prayers,” the Court might not have intended to imply that indirect coercion always requires compelled religious expression. Perhaps the Court only intended to illustrate its initial rebuke of the school district, which faulted the district for failing to concretely demonstrate that the students “felt pressured to participate in [the] prayers.” After all, if some of the students had decided to join their coach in prayer, this could have been concrete evidence of the social pressure they purportedly experienced.
On an alternative reading of Kennedy, then, the Supreme Court’s evidentiary admonitions reflect the modest goal of reigning in the Lee and Santa Fe regime. The trier of fact would no longer presume social pressure from its armchair, instead requiring some form of concrete proof, which could be evidence of compelled religious expression. Because the proof could also be direct evidence of the alleged social pressure, this revamped version of the old indirect coercion test would not always implicate the resilience and parsimony concerns associated with the new one.
Nonetheless, the same concerns would emerge in the absence of any direct evidence, and direct evidence of social pressure might be difficult to come by. Take the students in Kennedy: even if they did feel pressured by the coach’s post-game prayers, they might not have complained to their parents or school district for fear of retaliation. The coach controlled their playing time, training program, and status on the team. While he did not explicitly leverage this authority, it is easy to imagine students doing the risk-reward calculus themselves and deciding that complaining was not worth it. There would be limited direct evidence of the social pressure those students experienced—certainly at the time of any adverse employment action and likely at the time the adversely affected party files suit—precisely because the students experienced that pressure so acutely.
A revamped version of the old indirect coercion test would also frustrate prophylactic measures. Suppose that a teacher at a public high school offers to lead her class in an end-of-the-day prayer, but no students experience any social pressure; perhaps they all belong to her faith tradition. The trier of fact could still determine that some other reasonable student would have experienced social pressure, so under the old test, the school district might take action in anticipation of more religiously diverse classes. On the other hand, anticipated social pressure falls short of concrete proof. The revamped version of the old test would therefore expose proactive school districts to lawsuits à la Kennedy.
The Lee and Santa Fe regime was hardly beyond reproach. If indirect coercion continued to turn on what the trier of fact imagined a reasonable student would experience, the trier’s limitations would have more room to run amok. Many judges and jurors have not been in school for some time, impairing their ability to imagine the experience of a student. And while some probably have vivid memories, even they might struggle to abstract away the idiosyncrasies of their own experiences.
However, Kennedy only mitigates the problems of the old regime by constraining the trier of fact, including the trier’s capacity to avert absurd outcomes. Whether Kennedy promulgates a new indirect coercion test or just revamps the old one, it seems poised to punish resilient students and proactive school districts.
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Jason T. Hanselman is a J.D. Candidate at the University of Chicago Law School, Class of 2024. He thanks the University of Chicago Law Review Online team for their thoughtful commentary and is grateful for Kayla Parker, to whom he dedicates any and all persuasive arguments in this Case Note.