Last Friday, the United States Supreme Court agreed to hear a free speech case with potentially significant implications for employees of public institutions. If college athletes are recognized as employees, they might have a stake in the outcome.
The limits of free speech for college athletes have arguably never been more significant. Many use social media to speak out on cultural trends and political controversies. Many also generate revenue by licensing their name, image, and likeness for endorsements and endorsements. In some states, high school athletes are also getting NIL opportunities, while others are suing for the same benefits.
Meanwhile, some college athletes are seeking recognition as employees, which could allow them to unionize in some jurisdictions. In Johnson vs. NCAA, a group of college athletes claim they are employees under the Fair Labor Standards Act. Other efforts, including an unfair labor practice charge filed by College Basketball Players Association co-director Michael Hsu, invoke state labor relations law.
Employee recognition and possible unionization are complex legal matters, but the trajectory of varsity sports suggests that at some point, varsity athletes will gain employee status. This status can mean very different things. FLSA recognition, for example, would guarantee minimum wage and overtime pay, but not lucrative wages. Still, it would mark a major shift.
As employees, varsity athletes would be bound by workplace speech restrictions, just as they are bound by the rules of the athletic department and coaches. How their public comments, shared with their many followers, intersect with workplace and team responsibilities could raise questions for them as well as for coaches and college human resources departments. And, as the Supreme Court explored last year in Mahanoy Area School District v.BL, the distinction between on-campus and off-campus school authority has become more blurred with advances in technology.
This leads to Kennedy v. Bremerton School District. The case involves Joseph Kennedy, who was an assistant football coach at Bremerton, Wash., high school between 2008 and 2015. After games, he would regularly kneel at the 50-yard line and pray quietly for about 15 to 30 seconds. He thanked for “player safety, sportsmanship and spirited competition”. Players sometimes joined him. Kennedy also gave short speeches referencing his Christian faith.
School district administrators objected. A coach leading prayer alongside students, they concluded, risked the appearance of the neighborhood, through Kennedy, endorsing a religion. He also, they concluded, violated district rules governing employees. Kennedy was placed on administrative leave and quit his job.
Kennedy sued, claiming the district violated his First Amendment free speech rights. He lost, first in district court and then in the United States Court of Appeals for the Ninth Circuit. Kennedy’s practices were deemed inconsistent with the Establishment Clause of the First Amendment, which prohibits the government – including public schools – from endorsing or sponsoring religion.
Kennedy might fare better on the Supreme Court. The Roberts Court has always taken the side of religious exercise in previous cases, and six of the nine justices are conservative. Furthermore, the granting of certiorari suggests that judges might suspect that the lower courts erred.
The Supreme Court has already considered school prayer. In 1962, the Court ruled that public schools cannot require prayer. Other Supreme Court decisions require public schools to take a neutral stance toward religions. Lower courts also weighed in. In Borden v. Township of East Brunswick, the United States Court of Appeals for the Third Circuit has allowed a public school to ban a football coach from bowing his head during pardon and kneeling with players in prayer.
Oral argument for Kennedy v. Bremerton School District has not yet been scheduled but should take place in the coming months. Kennedy drew supportive amicus briefs from former Clemson coach Tommy Bowden and two retired NFL players, Chad Hennings and former U.S. Representative Steve Largent.
By ruling on the narrow set of facts about Kennedy, the Court could rule more generally on free speech rights in the context of public employment. These views could be cited as authoritative in later instances of employee speech unrelated to religion. Consider the federal lawsuit filed last month by four minor league baseball teams against MLB. The lawsuit leans heavily on Judge Neil Gorsuch’s discussion of MLB in NCAA vs. Alston— a U.S. Supreme Court case involving college athletes, not baseball professionals — to argue that MLB should no longer benefit from an antitrust exemption.
How the court decides kennedy could present another example of the high court leaving its mark on athletics.