Law & Courts

Appeals Court Again Backs School District Against Football Coach Who Prayed on Field

By Mark Walsh — March 18, 2021 4 min read
Image of a gavel.
  • Save to favorites
  • Print

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.”

Events

Jobs Virtual Career Fair for Teachers and K-12 Staff
Find teaching jobs and other jobs in K-12 education at the EdWeek Top School Jobs virtual career fair.
Ed-Tech Policy Webinar Artificial Intelligence in Practice: Building a Roadmap for AI Use in Schools
AI in education: game-changer or classroom chaos? Join our webinar & learn how to navigate this evolving tech responsibly.
Education Webinar Developing and Executing Impactful Research Campaigns to Fuel Your Ed Marketing Strategy 
Develop impactful research campaigns to fuel your marketing. Join the EdWeek Research Center for a webinar with actionable take-aways for companies who sell to K-12 districts.

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

Law & Courts Oklahoma Nonbinary Student's Death Shines a Light on Families' Legal Recourse for Bullying
Students facing bullying and harassment from their peers face legal roadblocks in suing districts, but settlements appear to be on the rise
11 min read
A photograph of Nex Benedict, a nonbinary teenager who died a day after a fight in a high school bathroom, is projected during a candlelight service at Point A Gallery, on Feb. 24, 2024, in Oklahoma City. Federal officials will investigate the Oklahoma school district where Benedict died, according to a letter sent by the U.S. Department of Education on March 1, 2024.
A photograph of Nex Benedict, a nonbinary teenager who died a day after a fight in a high school restroom, is projected during a candlelight service at Point A Gallery, on Feb. 24, 2024, in Oklahoma City. Federal officials will investigate the Oklahoma school district where Benedict died, according to a letter sent by the U.S. Department of Education on March 1, 2024.
Nate Billings/The Oklahoman via AP
Law & Courts Supreme Court Declines Case on Selective High School Aiming to Boost Racial Diversity
Some advocates saw the K-12 case as the logical next step after last year's decision against affirmative action in college admissions
7 min read
Rising seniors at the Thomas Jefferson High School for Science and Technology gather on the campus in Alexandria, Va., Aug. 10, 2020. From left in front are, Dinan Elsyad, Sean Nguyen, and Tiffany Ji. From left at rear are Jordan Lee and Shibli Nomani. A federal appeals court’s ruling in May 2023 about the admissions policy at the elite public high school in Virginia may provide a vehicle for the U.S. Supreme Court to flesh out the intended scope of its ruling Thursday, June 29, 2023, banning affirmative action in college admissions.
A group of rising seniors at the Thomas Jefferson High School for Science and Technology gather on the campus in Alexandria, Va., in August 2020. From left in front are, Dinan Elsyad, Sean Nguyen, and Tiffany Ji. From left at rear are Jordan Lee and Shibli Nomani. The U.S. Supreme Court on Feb. 20 declined to hear a challenge to an admissions plan for the selective high school that was facially race neutral but designed to boost the enrollment of Black and Hispanic students.
J. Scott Applewhite/AP
Law & Courts School District Lawsuits Against Social Media Companies Are Piling Up
More than 200 school districts are now suing the major social media companies over the youth mental health crisis.
7 min read
A close up of a statue of the blindfolded lady justice against a light blue background with a ghosted image of a hands holding a cellphone with Facebook "Like" and "Love" icons hovering above it.
iStock/Getty
Law & Courts In 1974, the Supreme Court Recognized English Learners' Rights. The Story Behind That Case
The Lau v. Nichols ruling said students have a right to a "meaningful opportunity" to participate in school, but its legacy is complex.
12 min read
Associate Justice of the U.S. Supreme Court William O. Douglas is shown in an undated photo.
U.S. Supreme Court Justice William O. Douglas, shown in an undated photo, wrote the opinion in <i>Lau</i> v. <i>Nichols</i>, the 1974 decision holding that the San Francisco school system had denied Chinese-speaking schoolchildren a meaningful opportunity to participate in their education.
AP