Coach Small Religious Protection Act: Public Employee or Private Citizen?

Mar 30, 2018

By Landon T. Huffman, Ph.D., Assistant Professor – Sport & Fitness Leadership, Johnson University,
In late January 2018 a bill was introduced to the Georgia Senate (SB 361) intending to secure First Amendment protections of religious expression for students and faculty at public schools. The legislation was largely introduced to counter a series of complaints raised by the Freedom From Religion Foundation (FFRF) in various Georgia public school districts. However, the complaint which gained the most notoriety involved East Coweta High School football coach John Small.
Let’s rewind a few months for a moment — on October 25, 2017, FFRF sent a letter to the superintendent of Coweta County School System detailing the actions of Coach Small who they alleged was violating the Constitution by praying with the football team on the field after games[1]. Specifically, FFRF asserted “Small’s conduct is unconstitutional because he endorses and promotes his religion when acting in his official capacity as a school district employee…When a public school employee acting in an official capacity organizes and advocates for team prayer, he effectively endorses religion on the District’s behalf.”
The complaint cited strong precedent when urging the Coweta County superintendent to ensure these practices were discontinued at athletic events, including the Supreme Court rulings in Santa Fe Independent School District v. Doe, 530 U.S. 290, 308 (2000) and Lee v. Weisman, 505 U.S. 577 (1992), as well as other compelling cases including Board of Education of the Westside Community School v. Mergens, 496 U.S. 226, 253 (1990) and Borden v. School District of the Township of East Brunswick, 523 F.3d 153 (3d Cir. 2008). The latter two cases held that public school employees must have limited roles (i.e., nonparticipatory supervisory and custodial) pertaining to student-led and student-initiated religious expression.
The superintendent acted swiftly and his team met with county principals, coaches, and sent a memo to all county schools which read, in part:
“Representatives of the school cannot participate in any student initiated or student-led prayer or other worship while acting in their official capacity. For instance, they cannot join hands, bow their heads, take a knee or commit another act that otherwise manifests approval with the students’ religious exercise, at least where it would be perceived by a reasonable observer to display government endorsement of religion…it is best to avoid the perception of government endorsement by all employees refraining from any action that may be perceived as endorsement, silent or otherwise.”[2];[3]
All of what is transpiring in Georgia is especially intriguing when considering the national context of the August 2017 case Kennedy v. Bremerton School District in which the courts held the Seattle-area high school football coach was essentially acting in violation of the Establishment Clause:
“[Coach Kennedy] spoke as a public employee, not as a private citizen when he kneeled and prayed on the fifty-yard line immediately after games in school logoed attire while in view of students and parents. The panel held that plaintiff had a professional responsibility to communicate demonstratively to students and spectators and he took advantage of his position to press his particular views upon the impressionable and captive minds before him.”[4]
Back to the present. It seems relatively clear that courts have repeatedly concluded public-school employees are not permitted to individually express and/or participate in student-led / student-initiated religious expression surrounding athletic events, even if silently kneeling, joining hands, and/or bowing heads, because it gives the perception of government endorsement of religion. FFRF makes persuasive arguments that public school coaches, in their “official capacity,” cannot legally participate in religious expressions — but what about in an unofficial, personal capacity? Enter Georgia Senate Bill 361 — referred to as the Coach Small Religious Protection Act.
The Coach Small Religious Protection Act was introduced in January 2018 with the aim of clearly articulating the rights of public school employees at elementary and secondary schools to, among other things:
“Participate in voluntary student-initiated, student-led prayer, such as prayer before a sporting event, when invited to do so by the students, provided that the participation is in the faculty’s or employee’s personal capacity and not as a representative of the school…”[5]
I’ll repeat, with emphasis: “provided that the participation is in the faculty’s or employee’s personal capacity and not as a representative of the school…” This legislation is significant because it fights against the raging current of “representatives of the school” mentioned in the FFRF complaint and Coweta County School System memo. Specifically, the Coach Small Religious Protection Act intentionally includes language that seeks to distinguish professional parameters and private protections. In other words, the proposed legislation hones in on and seemingly encourages public school employees to explicitly state when they are not representing the school, but rather expressing their personal beliefs.
The Public Square
The lens through which I write is that of intercollegiate athletic administration, so I lack the legal expertise of much of the readership. While I cannot confidently speak to the extent of Constitutional infractions and/or First Amendment protections, I am captivated by the ripple effect these cases and proposed litigation have on the athletic community. One of the more intriguing questions I’m left contemplating is how far can an individual take their private citizen rights (i.e., Freedom of Expression) into the public square of coaching (i.e., Establishment Clause)? The legal precedent suggests “not at all,” but the difficulty here is that serving as a coach is more than fulfilling the responsibilities of coaching. Let me attempt to explain.
From my experiences, coaches have difficulty compartmentalizing their private and professional lives, meaning they wholeheartedly embrace the vocation of coaching and the prominent role being a coach has in a community. Their contractual employment responsibilities often extend far beyond that of a typical teacher, meaning coaches work after the school day has ended (i.e., leading practices and competitions during the evenings and weekends) as well as representing the school when traveling to compete off-campus. Being a coach is an integral part of their identity — some people joke and say it is their first name! The demanding schedule of coaches and performance-based criteria lends itself to many complexities of identity and role engulfment associated with the coaching profession. Therefore, coaches may be susceptible to integrate their work, family, and faith more than other state employees. This certainly does not excuse coaches from legal responsibilities, but it offers insights as to why these cases keep appearing in the national context.
Consequently, I think the recommendations outlined in the Coach Small Religious Protection Act fall short of achieving their goal. Not necessarily by fault of the bill’s sponsors and content, but rather the complexities of the coaching profession.
For instance, I do not think it is reasonable to expect coaches to explicitly identify when they are speaking and/or acting from their personal capacity versus as a representative of the school, or reasonable for their audience to internalize this disclaimer. The concept of “contract time” operationalized in the Act is too vague for the coaching profession, and coaches are simply too visible as representatives of their school and their community to effectively disentangle from the perception of endorsement of religion. Nonetheless, coaches and administrators must not disregard their legal responsibilities amid these complexities and potential trappings.
Concluding Thoughts
After examining this legislation, the case of Coach Small and Coweta County, and related cases, it seems as if the reality of the situation is that public school coaches conditionally forfeit some of their Constitutional rights while engaging in their official capacity and fulfilling the duties of their employment as coaches. While, as Kennedy’s lawyer stated, “No American should have to choose between their faith and their job,”[6] coaches are wise to consider their “fit” as a coach at a public school versus serving as a coach at a private school. Similarly, principals and athletic administrators at public schools must be vigilant to vet and educate prospective employees, current employees, and athletic department representatives regarding the legal obligations, protections, and rights afforded by the First Amendment to public school students and employees.
No matter one’s level of (dis)agreement, given the current legal landscape, public school employees should be encouraged to have limited, nonparticipatory roles in virtually all matters of religious expression while working in their official capacity, including silent self-expression as well as student-led and student-initiated experiences. This can be a tough pill to swallow for individuals who desire faith integration undergirding all areas of their lives, but these are the expectations, and the private sector may indeed be the best fit for individuals with these preferences.
Both the FFRF and members of the Georgia Senate are fighting for First Amendment rights and protections. Continued dialogue is encouraged to ensure all entities involved are pursuing the best interests of their constituents and communities.


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