The U.S. Supreme Court on Tuesday declined to hear the appeal of a high school football coach who was was effectively dismissed by his Washington state school district for praying on the field immediately after games. Four justices signaled that they were troubled by the coach’s dismissal and the handling of his case by two lower courts, but that unresolved factual questions made the appeal unsuitable for high court review.
Justice Samuel A. Alito Jr., in a statement signed by Justices Clarence Thomas, Neil M. Gorsuch, Brett M. Kavanaugh, said he concurred in denying review in the case because such a denial “does not signify that the Court necessarily agrees with the decision (much less the opinion) below. In this case, important unresolved factual questions would make it very difficult if not impossible at this stage to decide the free speech question that the petition asks us to review.”
Still, those justices sent a further signal that Kennedy may yet be able to win his case, and that they believe public school educators have some on-the-job free speech rights, especially in the area of religious speech. (The “statement respecting the denial of certiorari” is at the bottom of this orders list.)
The action came in the case of Joseph A. Kennedy, a coach at Bremerton (Wash.) High School who argues that he has First Amendment free speech and free exercise of religion rights to express his faith while on the job.
Kennedy was the assistant varsity football coach and the head coach of the junior varsity team at Bremerton High in the fall of 2015 when his post-game prayers became the center of controversy.
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 as long as it was “non-demonstrative” when students were engaged in nearby voluntary prayers.
The coach complied for several weeks, but 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 coach sued the school district in 2016, seeking 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 2017, a unanimous three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, also ruled against the coach. The appeals court held that Kennedy was speaking as a public employee and not as a private citizen when he prayed on the field.
“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.
His appeal to the Supreme Court in Kennedy v. Bremerton School District (Case No. 18-12) says his case raised the fundamental question of whether the court’s 1969 decision in Tinker v. Des Moines Community Independent School District “still applies to teachers.”
“While Tinker is well known for reaffirming the First Amendment rights of students, this court actually stated that it was beyond argument that ‘either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,’” says Kennedy’s brief, referencing the most well-known line from a decision that upheld the right of students to wear black armbands to protest the Vietnam War as long as school was not substantially disrupted.
The appeal, written by the First Liberty Institute and Paul D. Clement, a former U.S. solicitor general under President George W. Bush, framed the question presented in broad terms: “Whether public school teachers and coaches retain any First Amendment rights when at work and ‘in the general presence of’ students.”
The appeal argued that the 9th Circuit’s “sweeping” ruling against “demonstrative communication” by a teacher does not square with existing precedents.
“Tinker makes clear that schoolhouses are not First-Amendment-free zones for either students or teachers,” Kennedy’s brief says.
The Bremerton school district, in a brief that urged the justices not to take up the case, said the 9th Circuit’s decision was correct and that Kennedy “spoke and acted as a school official, not as a private citizen.”
“It simply would not be possible to run the public schools if each teacher and coach were a law unto him- or herself,” the district argued. “School districts, not individual teachers, must have the authority to decide what instruction is provided, how it is provided, and how students are supervised to ensure their safety and to respect their and their families’ rights.”
A ‘Troubling’ Opinion Below
The Supreme Court considered Kennedy’s appeal privately for more than two months. On Jan. 22, the court’s denial of review and the statement by the four justices suggested a fair amount of internal debate over the case.
Alito, in the statement joined by his three colleagues, said the key question in the case was whether Kennedy showed he was likely to prevail on his free-speech claim. But the federal district court that heard the case did not make a specific finding about the reason for Kennedy’s termination, Alito said, and the 9th Circuit panel “was even more imprecise on this critical point.”
“We generally do not grant such review to decide highly fact-specific questions,” Alito said. “Here, although [Kennedy’s] free speech claim may ultimately implicate important constitutional issues, we cannot reach those issues until the factual question of the likely reason for the school district’s conduct is resolved. For that reason, review of [Kennedy’s] free speech claim is not warranted at this time.”
Aliton went on to say that the 9th Circuit’s “understanding of the free speech rights of public school teachers is troubling and may justify review in the future.”
He said the appeals court applied a key 2006 Supreme Court decision on public-employee speech rights, Garcetti v. Ceballos, in a way that would allow school districts to fire teachers and coaches “if they engage in any expression that the school does not like while they are on duty, and the 9th Circuit appears to regard teachers and coaches as being on duty at all times from the moment they report for work to the moment they depart, provided that they are within the eyesight of students.”
That means schools could bar teachers from folding their hands or bowing their heads in prayer at lunch, if the teachers were visible to students, Alito said.
“What is perhaps most troubling about the 9th Circuit’s opinion is language that can be understood to mean that a coach’s duty to serve as a good role model requires the coach to refrain from any manifestation of religious faith—even when the coach is plainly not on duty,” Alito said, referring to the lower court’s discussion of one or more instances when Kennedy prayed while a spectator at school events. “The suggestion that even while off duty, a teacher or coach cannot engage in any outward manifestation of religious faith is remarkable.”
Alito noted that Kennedy still has live claims under the free-exercise clause and Title VII of the Civil Rights Act of 1964.
The unmistakable message from four members of the court today is that, whether in Kennedy’s case at a later date or some other case, they are prepared to provide some greater clarity on the free expression rights of public school educators.
A version of this news article first appeared in The School Law Blog.