Adding another major case about religion and public education to its docket, the U.S. Supreme Court on Friday agreed to hear the appeal of a former public high school football coach in Washington state who was removed from his job for praying on the field in defiance of his supervisors.
The case of Joseph A. Kennedy has become a cause célèbre in conservative legal circles, and the high court’s grant of his appeal does not come as a surprise. In 2019, when the coach’s case reached the court at a preliminary stage, four conservative justices expressed sympathy for his arguments and suggested a federal appeals court had a “troubling” understanding of the free speech rights of public school educators.
Justice Samuel A. Alito Jr. said in the 2019 statement that the U.S. Court of Appeals for the 9th Circuit, in San Francisco, had suggested in an opinion “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.”
“The suggestion that even while off duty, a teacher or coach cannot engage in any outward manifestation of religious faith is remarkable,” Alito wrote, in a statement respecting the court’s decision not to take up Kennedy’s case at that time because of some undeveloped factual matters. Alito’s statement was joined by Justices Clarence Thomas, Neil M. Gorsuch, and Brett M. Kavanaugh.
A continuing controversy over post-game prayers.
Some of the facts in the coach’s case have been a matter of contention. Kennedy was the assistant varsity football coach and the head coach of the junior varsity team at Bremerton High School in Bremerton, Wash., in the fall of 2015 when his post-game prayers caused controversy.
Bremerton district officials advised Kennedy that he could give inspirational talks to team members before and after games, but he could not lead or encourage student prayers, which the district believed could be coercive to students. The coach complied for several weeks, but sought an accommodation from the district to continue his post-game prayers. The school district rejected his view that his job responsibilities ended when the football game did.
When the coach continued to pray on the field 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 had denied review of Kennedy’s appeal of a preliminary injunction against him in 2019, a federal district court held that the “risk of constitutional liability associated with Kennedy’s religious conduct” was the “sole reason” the district suspended the coach.
A 9th Circuit panel, in March 2021, again ruled in favor of the school district, and the full 9th Circuit last July declined to rehear the case amid a flurry of strong written opinions. One dissenting judge, Ryan D. Nelson, said “merely allowing religion to be independently expressed in a school setting was never and is not an establishment of religion.”
But another 9th Circuit judge, Milan D. Smith Jr., noted that the coach had courted publicity and support for his defiant midfield prayers.
“I personally find it more than a little ironic that Kennedy’s ‘everybody watch me pray’ staged public prayers (that spawned this multiyear litigation) so clearly flout the instructions found in the Sermon on the Mount on the appropriate way to pray,” wrote Smith, who quoted from the Gospel according to St. Matthew.
Coach gets support from states, religious groups, and some ex-NFL players
Kennedy’s appeal to the Supreme Court begins by stating simply that he “lost his job as a football coach at a public high school because he knelt and said a quiet prayer by himself at midfield after the game ended.”
The appeal, from First Liberty Institute and former U.S. Solicitor General Paul D. Clement, emphasizes that “four justices have already recognized that the free-speech claim in this case, standing alone, is ‘troubling.’”
“This court should ... confirm that a public school does not own every on-the-job expression that its teachers or coaches may make around students,” the appeal states, “and that the First Amendment does not demand that schools purge from the public sphere all that in any way partakes of the religious.”
Kennedy had the support of friend-of-the-court briefs at the petition stage from 24 states, several religious groups, and two former pro football players, Steve Largent (also a former congressman) and Chad Hennings.
The Bremerton district, represented by Americans United for Separation of Church and State, urged the justices not to take up the case, arguing that Kennedy’s appeal distorted or ignored facts in the record and raised only a hypothetical question about whether public educators ever have the right to pray silently at school.
“The district … faced a stark choice: Either let its employee dictate how school events would be run—even if that threatened the safety and religious freedom of the students—or take the steps necessary to curb the practice,” the Bremerton district’s brief says. “This case is about a school district’s authority to protect students when its employee does not work with it to find a reasonable accommodation.”
The brief even includes pictures of Kennedy’s on-field prayers and the large gatherings the coach attracted.
The court’s grant of review in Kennedy v. Bremerton School District (Case No. 21-418) comes at the point when it is adding the last cases that could be argued in the current term. But even though the court has room in the calendar of its April session to hear the case, it is not yet certain that will happen.