Last Friday, the U.S. Supreme Court agreed to review a free speech case with potentially far-reaching implications for employees of public institutions. If college athletes are recognized as employees, they could have a stake in the outcome.
The boundaries of free speech for college athletes have arguably never been more meaningful. Many use social media to opine on cultural trends and political controversies. Many also generate earnings from licensing their name, image and likeness for endorsements and sponsorships. In some states, high school athletes also enjoy NIL opportunities, while others are suing to reap the same.
Meanwhile, some college athletes are pursuing recognition as employees, which could allow them to unionize in some jurisdictions. In Johnson v. NCAA, a group of college athletes maintain 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 the National Labor Relations Act.
Employee recognition, and possible unionization, are complex legal topics, but the trajectory of college sports suggests that at some point, college athletes will gain employee status. That status could mean very different things. FLSA recognition, for example, would guarantee minimum wage and overtime pay but not lucrative salaries. Still, it would mark a major shift.
As employees, college athletes would be bound by workplace restrictions on speech, just as they’re bound by athletic department and coaches’ rules. How their public commentaries, shared with their large followings, intersect with workplace and team responsibilities could spark questions for them as well as for coaches and university human resources departments. And, as the Supreme Court explored last year in Mahanoy Area School District v. B.L., the distinction between school authority over on-campus and off-campus has grown hazier with technological advancements.
That 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 routinely kneeled at the 50-yard line and prayed quietly for about 15 to 30 seconds. He gave thanks for “player safety, sportsmanship and spirited competition.” Players sometimes joined him. Kennedy also gave short speeches that referenced his Christian faith.
School district administrators objected. A coach leading prayer alongside students, they concluded, risked the appearance of the district, through Kennedy, endorsing a religion. It also, they concluded, violated district rules governing employees. Kennedy was put on administrative leave and left his job.
Kennedy sued, claiming the district had violated his First Amendment free speech rights. He lost, first at a district court and then at the U.S. Court of Appeals for the Ninth Circuit. Kennedy’s practices were deemed incompatible with the First Amendment’s Establishment Clause, which bars the government—including public schools—from endorsing or sponsoring religion.
Kennedy might fare better at the Supreme Court. The Roberts Court has consistently taken the side of religious exercise in previous cases, and six of the nine justices are conservative. Also, granting certiorari suggests the justices might suspect the lower courts erred.
The Supreme Court has considered school prayer before. In 1962, the Court held that public schools can’t require prayer. Other Supreme Court decisions compel public schools to adopt a neutral stance toward religions. Lower courts have weighed in as well. In Borden v. Township of East Brunswick, the U.S. Court of Appeals for the Third Circuit allowed a public school to prohibit a football coach from bowing his head during grace and kneeling with players in prayer.
An oral argument for Kennedy v. Bremerton School District hasn’t yet been scheduled but is expected to be held in the months ahead. Kennedy has attracted supportive amicus briefs by former Clemson coach Tommy Bowden and two retired NFL players, Chad Hennings and former U.S Rep. Steve Largent.
In rendering a decision on the narrow set of facts concerning Kennedy, the Court might opine more generally on free speech rights in the public employment context. Those viewpoints could be cited as authority in subsequent employee speech cases unrelated to religion. Consider the federal lawsuit filed last month by four minor-league baseball teams against MLB. The lawsuit relies heavily on Justice Neil Gorsuch’s discussion of MLB in NCAA v. Alston—a U.S. Supreme Court case about college athletes, not pro baseball—to argue that MLB should no longer enjoy an antitrust exemption.
How the court decides Kennedy could present yet another example of the high court leaving its mark on athletics.
(This story has updated the headline.)