The high-profile case of a high school football coach who was suspended for praying on the field immediately after games is likely headed back to the U.S. Supreme Court, where four justices have already expressed sympathy for his case.
A federal appeals court on Thursday once again upheld the Bremerton, Wash., school district’s handling of the case of Joseph A. Kennedy, who contends that he has First Amendment free-speech and free-exercise-of-religion rights to express his Christian faith while on the job.
“The record before us and binding Supreme Court precedent compel the conclusion that BSD would have violated the establishment clause by allowing Kennedy to pray at the conclusion of football games, in the center of the field, with students who felt pressured to join him,” said a unanimous three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco.
“Kennedy’s attempts to draw nationwide attention to his challenge to BSD compels the conclusion that he was not engaging in private prayer, but was instead engaging in public speech of an overtly religious nature while performing his job duties,” the appeals court added.
The 9th Circuit also responded—at least partially—to concerns about the free speech rights of public school educators expressed by Justice Samuel A. Alito Jr. in an opinion when the Supreme Court in 2019 denied review of an appeal by Kennedy at an earlier stage in the litigation.
Alito, in a statement “respecting” the denial of review, said there were unresolved factual questions about Kennedy’s case that made it unsuitable for high court review based on the preliminary injunction record the court had before it. But Alito said the earlier appeals court opinion in favor of the school district suggested that the 9th Circuit’s “understanding of the free-speech rights of public school teachers is troubling and may justify review in the future.”
Alito said “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 could lead to schools barring teachers from folding their hands or bowing their heads at lunch if they were in view of students, Alito said.
Justices Clarence Thomas, Neil M. Gorsuch, and Brett M. Kavanaugh joined Alito’s statement, which has led to considerable debate in education law circles.
The 9th Circuit, in the new opinion in Kennedy v. Bremerton School District, said its 2019 opinion in the case “should not be read to suggest that, for instance, a teacher bowing her head in silent prayer before a meal in the school cafeteria would constitute speech as a government employee.”
Such expression is “of a wholly different character” than that of the football coach, the appeals court said. “Kennedy insisted that his speech occur while players stood next to him, fans watched from the stands, and he stood at the center of the football field,” the 9th Circuit court said.
The appellate panel, further responding to (and quoting) Alito, said its prior opinion in this case “was not meant to suggest that a teacher or coach ‘cannot engage in any outward manifestation of religious faith’ while off duty.”
Clarifying the ‘sole reason’ for the district’s actions
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 caused controversy.
Bremerton district officials advised Kennedy that he could continue to give inspirational talks, but could not lead or encourage student 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 did.
When the coach continued to pray at the end of two more games, the district placed him on administrative leave and he did not seek to renew his contract.
The coach sued the school district in seeking reinstatement as a coach and a ruling that he had the right to pray on the field after games.
After the Supreme Court declined to review Kennedy’s earlier appeal, both sides sought summary judgment from a federal district court. That court again ruled for the school district and clarified that the “risk of constitutional liability associated with Kennedy’s religious conduct” was the “sole reason” the district suspended the coach.
The 9th Circuit court again upheld the district court with its March 18 decision. The school district “tried to reach an accommodation for Kennedy, but that was spurned by his insisting that he be allowed to pray immediately after the conclusion of each game, likely surrounded by students who felt pressured to join him,” the appeals court said.
Both the main opinion and a concurrence signed by two judges on the panel note that Kennedy courted media coverage of his efforts to pray on the field at the time (and since then).
“Kennedy did not accept any of BSD’s proposed accommodations, or even acknowledge them,” said the concurrence. “Instead, he gave media interviews publicizing his intent to continue his post-game prayers and followed through by praying on the 50-yard line at the two games that followed. Given Kennedy’s announced plans to defy BSD’s reasonable directives, BSD met its burden to show its response was the least-restrictive means consistent with avoiding an Establishment Clause violation.”
