CASE PREVIEW
on Apr 24, 2022 at 6:27 pm
Joseph Kennedy, a former football coach at Bremerton High School in Washington state. (First Liberty Institute)
Joseph Kennedy had never coached football when Bremerton High School, a public school near Seattle, Washington, hired him in 2008. He was too small to play in high school, and his football experience was limited to playing for two years while he was in Hawaii serving in the Marines.
Kennedy describes the school district’s decision to hire him to coach the school’s junior varsity team and to serve as an assistant for the varsity team as a “fluke”: His wife worked for the school district, and the athletic director thought he might be a good fit because of his military background. Fourteen years later, the man who was hired as a fluke will be at the Supreme Court, contesting the school district’s decision not to renew his contract because of his post-game prayers at the 50-yard line.
Kennedy is not just trying to get his old job back. He’s also hoping to win a constitutional clash at the intersection of three First Amendment rights: the right to worship, the right to free speech, and the right of students to be free from religion imposed by school officials.
Like many cases involving school prayer, Kennedy v. Bremerton School District, which will be argued on Monday, is hotly contested. Kelly Shackelford, the president and CEO of First Liberty Institute, which is representing Kennedy, says a victory for Kennedy would be a victory “for everybody” that would merely reaffirm the rights to freedom of religion and free speech. By contrast, Rachel Laser, the president of Americans United for Separation of Church and State, which represents the school district, warns that a ruling for Kennedy would be “a radical departure from decades of well-established law protecting students’ religious freedom.”
But in this case, Kennedy and the school district disagree not only about the legal issues and their implications, but also about many of the facts, including exactly why Kennedy lost his job. Kennedy says he was fired for briefly and privately praying at midfield; Laser and the school district counter that he was suspended for “refusing to stop holding public prayers at the 50-yard line,” which created both pressure for students to join him and “genuine safety concerns for students on the fields because of the spectacle that ensued from his media outreach on praying.”
When he was deciding whether to take the job in 2008, Kennedy was channel-surfing at home one night when he came across a 2006 movie, Facing the Giants, about a football coach who turns a losing streak around after deciding to praise God after every game. Kennedy decided that he would do the same, he said. He pledged that he would give God “the glory after every game, win or lose, right there on the field of battle. And that’s how it all started, and that’s what it was.” Once the football season began, he explained in an interview, he would “just turn, face the scoreboard, take a knee, thank God, and walk off before” his players were “even done doing their fight song.”
From 2008 until 2015, Kennedy worked as a part-time coach for the school district, on a year-to-year contract. He initially prayed alone at midfield after each game, but some players later asked to join him; Bremerton players also sometimes invited members of the opposing team to join them.
In September 2015, the school district learned that Kennedy was praying on the field when a coach from an opposing team told the Bremerton principal about Kennedy’s prayers. That phone call prompted the athletic director to speak with Kennedy and express his disapproval when Kennedy prayed on the field after a game. After his conversation with the athletic director, Kennedy posted on Facebook that he thought he might have “just been fired for praying.”
The phone call also led the school district to send Kennedy a letter on Sept. 17 regarding the prayers. The letter reiterated that student prayers should be “entirely and genuinely student-initiated,” and it stressed that Kennedy should not do anything that could be seen as an endorsement of those prayers. Kennedy himself, the letter explained, could continue to give motivational speeches, but those should be exclusively secular. If Kennedy prayed, the letter noted, it should “not interfere with job responsibilities” and should be separate from players.
In the wake of the Sept. 17 letter from the school district, Kennedy temporarily stopped praying on the field after games – although on one occasion he did return to the stadium to pray after leaving to drive home.
On Oct. 14, Kennedy – who had by then retained a lawyer – told the school district that he intended to resume his practice of praying by saying a private, post-game prayer at the 50-yard line. Two days later, after a game, Kennedy offered a brief, silent prayer at midfield, with players and coaches from the opposing team and members of the public and the media around him. The school district portrays the atmosphere following the Oct. 16 game as chaotic, with spectators and reporters knocking down members of the marching band in their efforts to join Kennedy at midfield. The Bremerton head coach, Nate Gillam, was the target of profanity, and he feared he might “be shot from the crowd.”
The school district sent Kennedy another letter on Oct. 23. That letter told him that his actions at the Oct. 16 game had violated the district’s policy, and it offered other options for him to pray after games – for example, privately, or after the crowd had left. When Kennedy continued to pray after two games on Oct. 23 and Oct. 26, the school district placed him on administrative leave.
When the season ended, Gillam – who himself resigned after 11 years at Bremerton – recommended that Kennedy’s contract not be renewed for the following season. Kennedy did not apply for a job for the 2016 season. Instead, he went to federal district court, where he argued that the school district’s actions violated his rights under the free speech and free exercise clauses of the First Amendment. The district court declined to give him back his job while the litigation continued, reasoning that his prayers were not protected by the First Amendment because he was acting as a “public employee.” After the U.S. Court of Appeals for the 9th Circuit upheld that ruling, Kennedy went to the Supreme Court in 2018, asking the justices to intervene.
The justices declined to step in, but four members of the court – Justice Samuel Alito, joined by Justices Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh – expressed sympathy for Kennedy’s position. Alito wrote that “the Ninth Circuit’s understanding of the free speech rights of public school teachers is troubling and may justify review in the future.” However, he said, the Supreme Court cannot reach those issues “until the factual question of the likely reason for the school district’s conduct is resolved.”
When Kennedy’s case returned to the district court, the court found that the school district had suspended Kennedy only because it was concerned that, if it allowed the prayer, it could be sued for infringing the First Amendment’s establishment clause, which prohibits government entities (including public schools) from endorsing religion. The district court ruled for the school district, concluding that “prominent, habitual prayer” is “not the kind of private speech that is beyond school control.” And although the school district had “specifically targeted Kennedy’s religious conduct,” the court nonetheless concluded that “the district had a compelling interest in prohibiting Kennedy’s prayer because ‘allowing’ it ‘would have violated the Establishment Clause.’”
A panel of the 9th Circuit again upheld the district court’s ruling. It stressed that when Kennedy prayed on the field, which he could access only because of his job as a coach, at a time when he was supposed to be speaking with students, he was acting as a government employee – whose speech is not protected by the First Amendment. But even if Kennedy was acting as a private citizen, the panel continued, the district court still acted properly, because a reasonable observer who was familiar with the situation would regard his religious activities on the field as “stamped” with the school district’s “seal of approval.” And like the district court, the panel ruled that the school district’s need to avoid violating the Constitution’s establishment clause justified its efforts to restrict Kennedy’s religious freedom.
Over a dissent by nine active judges, the 9th Circuit declined to rehear the case. Kennedy then went to the Supreme Court, which in January agreed to hear his case.
Kennedy’s arguments
Kennedy frames the question before the justices as whether his “brief, quiet prayer” at the 50-yard line is protected by the First Amendment and, if it is, whether public schools can nonetheless prohibit it to avoid violating the establishment clause. The Supreme Court has long held that the Constitution protects prayer, Kennedy notes, and it has also made clear that both public-school teachers and their students “do not ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.’”
Because teachers retain some free speech rights at school, Kennedy contends, everything teachers and coaches say and do is not necessarily government speech, which is not protected by the First Amendment. Therefore, he contends, the key question is whether speech by a teacher or coach is part of that employee’s official duties. For teachers, he observes, those duties include teaching a lesson, while a coach’s duties include calling plays and giving motivational speeches. But a brief, private prayer at the end of the game, he suggests, doesn’t fall into either of these categories. Instead, he writes, “[a]t a time and place when coaches and players were free to talk to family and friends, Kennedy sought to take a moment to talk to God.”
It doesn’t matter, Kennedy continues, that players may have stood near him while he prayed privately, that other people may have watched him pray from the stands, or that he knelt at the 50-yard line to pray. The key question is whether he was “actually engaged in some sort of on-field duty” – which, he reiterates, he was not.
Because his prayers were not government speech, Kennedy contends, the school district’s “efforts to suppress it trigger the most demanding form of constitutional scrutiny.” The district, he argues, wanted to restrict Kennedy’s prayers because they were religious and because it believed that not doing so would violate the establishment clause. But concerns about violating the establishment clause do not justify stifling Kennedy’s private prayers, particularly when the district’s only concern was the prospect that it might be seen as endorsing religion if it allowed the prayers to continue.
There is no evidence in the record, Kennedy stresses, that students felt pressured to join him in his post-game prayers. To the contrary, Kennedy noted in an interview, only two players ever expressed possible discomfort with the prayers: one player who described himself as an agnostic and a second who said that he did not believe in God and did not want to participate. Doing so had no impact on their playing time, Kennedy stressed, because everyone plays on the JV team and because he didn’t make decisions about playing time on the varsity team. In fact, Kennedy added, both players who came to him about the prayers eventually became captains of the JV team.
But in any event, Kennedy adds, if it becomes difficult to tell whether religious expression is or is not government speech, the answer is not to ban the religious expression. Instead, he explains, the solution is more speech, to educate students and the public and to make clear that the religious expression is not speech on behalf of the school district.
The school district’s arguments
The school district counters that when Kennedy prayed at the 50-yard-line after games, everyone – from the district to students to Kennedy himself – all saw him as a coach. Indeed, the district notes, Kennedy testified that his coaching job – which included serving as a “mentor and role model” – was not over “until the last kid leaves.” And because Kennedy was acting as a government employee at that moment, the district argues, the legal case is a straightforward one: Under the Supreme Court’s 2006 decision in Garcetti v. Ceballos, his speech was government speech not protected by the First Amendment.
But even if Kennedy was delivering the post-game prayers as a private citizen, rather than a public employee, the school district continues, under decisions such as Pickering v. Board of Education the district could still regulate his speech. The district has strong interests that outweigh Kennedy’s desire to pray with students at midfield, the district contends. For example, it has to be able to control its own events and avoid scenes like the one that followed the Oct. 16, 2015, game, and it needs to prevent interference with its students’ religious freedom. Laser cites “multiple instances” of parents who told the school district that their sons felt pressured to pray: They believed they had to “pray to play” and to “feel part of the team.” Kennedy’s actions, the school district adds, also exposed the district to liability for violating the establishment clause.
The school district rejects Kennedy’s suggestion that it could preempt any establishment clause problems with a disclaimer that Kennedy’s prayers are his personal speech, rather than speech on behalf of the school district. A disclaimer would not solve the problem here, the district insists, because other groups would want to use the field, and students would still feel pressure to join the prayer.
A question of mootness
Before the justices can turn to the First Amendment issues, they will have to resolve a threshold issue: whether the case can continue at all. The school district has argued that the case is moot – that is, no longer a live controversy – because Kennedy has been living in Florida for over two years. Kennedy is asking only to be reinstated to his part-time coaching job and to be able to pray after the games there, the school district writes, which he can’t do from the other side of the country.
Kennedy rejects any suggestion that the case should be dismissed as moot, explaining that he and his wife had moved to Florida to help her father in a difficult time. But most of his family remains in the Bremerton area, he stresses, and if he wins in the Supreme Court, Kennedy said in an interview, he will be “on the next flight from Florida” to return to his coaching duties at Bremerton High School. Kennedy and the school district are likely to learn in late June or early July whether he’ll be back on the sidelines when practice resumes in August.
This article was originally published at Howe on the Court.
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