Federal Appeals Court Rules Against H.S. Football Coach Over Post-Game Prayers

By Mark Walsh — August 24, 2017 3 min read
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A high school football coach was speaking as a public employee when he kneeled and prayed on the field after games, and a Washington state school district did not violate his First Amendment rights when it disciplined him, a federal appeals court ruled on Wednesday.

“By kneeling and praying on the 50-yard line immediately after games,” the coach was communicating “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,” said a unanimous three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco.

The ruling came in the case of Joseph A. Kennedy, who was the assistant varsity football coach and chief junior varsity coach at Bremerton (Wash.) High School in the fall of 2015 when his post-game prayers became the center of controversy. (Kennedy won support from then-candidate Donald J. Trump last fall and from U.S. Secretary of Housing and Urban Affairs Ben Carson.)

Kennedy says in court papers that his Christian faith calls on him to give thanks at the end of each football game for the players’ accomplishments and his opportunity to be a part of their lives. Kennedy was sometimes joined by players for his post-game prayer and he would sometimes give short motivational talks.

In September 2015, Bremerton district officials advised Kennedy that he could continue to give inspirational talks, but could not lead or encourage student prayers. The superintendent informed Kennedy that he was free to pray while on the job if it did not interfere with his job responsibilities and if it was “non-demonstrative” if students were also engaged in religious conduct.

The coach complied for several weeks but, aided by the First Liberty Institute and other lawyers, sought an accommodation from the district to continue his post-game prayers. The school district rejected his argument that his job responsibilities ended when the football game ended.

“Any reasonable observer saw a district employee, on the field only by virtue of his employment with the district, still on duty, under the bright lights of the stadium, engaged in what was clearly, given your prior public conduct, overtly religious conduct,” the district wrote to Kennedy.

When the coach continued to pray at the end of two more games, the district placed him on administrative leave. Kennedy did not seek the renewal of his year-to-year contract the next season.

The coached sued the school district in 2016, arguing that his rights under the First Amendment free speech clause and the Civil Rights Act of 1964 were violated. He sought reinstatement as a coach and a ruling that he had the right to pray on the field after games.

A federal district court denied a preliminary injunction for Kennedy. In its Aug. 23 decision in Kennedy v. Bremerton School District, the 9th Circuit court panel upheld that ruling.

The panel held that the key factor in the coach’s case was that he was speaking as a public employee and not as a private citizen when he prayed on the field.

The court said Kennedy seemed intent on praying immediately after games when he would be viewed by students and spectators.

“Kennedy spoke at a school event, on school property, wearing [Bremerton High School]-logoed attire, while on duty as a supervisor, and in the most prominent position on the field, where he knew it was inevitable that students, parents, fans, and occasionally the media, would observe his behavior,” the court said.

The panel cited several other federal appeals court rulings that have upheld restrictions on public school coaches praying in locker rooms or after practices.

“While we recognize the important role that public worship plays in many communities, as well as the sincere desire to include public prayer as a part of these occasions, such activity can promote disunity along religious lines, and risks alienating valued community members from an environment that must be open and welcoming to all,” U.S. Circuit Judge Milan D. Smith Jr. wrote.

A version of this news article first appeared in The School Law Blog.