Law; Garcetti v. Ceballos; Kennedy v. Bremerton; public school prayer; government employee speech; Establishment Clause


When American citizens elect to work in government positions, they relinquish certain free speech rights granted by the First Amendment. In Garcetti v. Ceballos, the U.S. Supreme Court ruled that when public employees make statements pursuant to their government job duties, they do not speak as citizens for First Amendment purposes. As such, they are not constitutionally insulated from employer discipline. Determining whether public employees speak as a result of, or in accordance with, their official responsibilities can be difficult, and one government job has proven more challenging than most: the public school teacher. In 2021, the Ninth Circuit held in Kennedy v. Bremerton that a high school football coach’s official duty was to serve as a role model to his students, such that any speech he made in that capacity, including his personal religious prayer, was not entitled to First Amendment protection. The Ninth Circuit, in its efforts to shield students from religious conduct, has left little protection for public school employees to engage in any type of private speech at school. This Note argues that the Ninth Circuit’s broad interpretation of a coach’s official duties improperly expands Garcetti’s scope and extinguishes the freedom for public school employees to engage in private religious expression at school. This Note reasons that teachers and coaches do not always speak pursuant to their job duties when they engage in speech in front of students, and it urges the Supreme Court to carve out a private prayer exception that requires the government to justify disciplinary action by demonstrating a compelling state interest. This Note simultaneously recognizes that safeguards are necessary to protect students’ free exercise rights. When a public school’s instructional employee places undue pressure on students to engage in religious activity, this Note contends that the prevention of this coercive Establishment Clause violation can serve as one such compelling interest, overriding a teacher’s right to pray.