Ninth Circuit Affirms Dismissal of Coach’s Free Speech Case

May 21, 2021

The 9th U.S. Circuit Court of Appeals has affirmed a district court’s ruling dismissing a high school coach’s free speech claim, which was made as he sought to continue his practice of kneeling down and praying at the 50-yard-line after his team’s football games.

The school district had suspended the coach because of his practice, leading to his initial bid for an injunction on the grounds that the school district was retaliating against him for exercising his First Amendment rights. That claim was denied by a district court and a panel of judges in the 9th Circuit. It was ultimately appealed to the U.S. Supreme Court, which declined last year to review the case.

While the injunction was denied, the free speech claim continued, leading to the instant decision.

The underlying facts in the case were as follows, as recounted from a 2017 case summary in Sports Litigation Alert:

Joseph A. Kennedy was a football coach for Bremerton High School (BHS) in the Bremerton School District (BSD or the District) in Washington State. BSD employed him at BHS from 2008 to 2015. Kennedy’s contract expired at the end of each football season. It provided that BSD “entrusted” Kennedy “to be a coach, mentor and role model for the student athletes.” Kennedy further agreed to “exhibit sportsmanlike conduct at all times,” and acknowledged that, as a football coach, he was “constantly being observed by others.”

Kennedy is a practicing Christian. Between 2008 and 2015, he led students and coaching staff in a locker-room prayer prior to most games. He also participated in prayers that took place in the locker room after the games had ended. Kennedy insists these activities predated his involvement with the program, and were engaged in as a matter of school tradition. His religious beliefs do not require him to lead any prayer before or after BHS football games.

Kennedy’s religious beliefs do require him to give thanks through prayer at the end of each game for the players’ accomplishments and the opportunity to be a part of their lives through football, according to the court. Specifically, “after the game is over, and after the players and coaches from both teams have met to shake hands at midfield,” Kennedy feels called to “take a knee at the 50-yard line and offer a brief, quiet prayer of thanksgiving for player safety, sportsmanship, and spirited competition.” Kennedy’s prayer usually lasts about 30 seconds. He wears a shirt or jacket bearing a BHS logo when he prays at midfield. Because his “prayer lifts up the players and recognizes their hard work and sportsmanship during the game,” Kennedy’s religious beliefs require him to pray on the actual field where the game was played.

Kennedy began performing these prayers when he first started working at BHS. At the outset, he prayed alone. Several games into his first season, however, a group of BHS players asked Kennedy whether they could join him. “This is a free country,” Kennedy replied, “You can do what you want.” Hearing that response, the students elected to join him. Over time, the group grew to include much of the team. Sometimes the BHS players even invited the opposing team to join.

Eventually, Kennedy’s religious practice evolved to something more than his original prayer. He began giving short motivational speeches at midfield after the games. Students, coaches, and other attendees from both teams were invited to participate. During the speeches, the participants kneeled around Kennedy, who raised a helmet from each team and delivered a message containing religious content. Kennedy subsequently acknowledged that these motivational speeches likely constituted prayers.

The practice began sparking significant concerns for two reasons:

  • First, the district became concerned about security as people from the stands streamed on to the field to participate in the prayer.
  • Second, Kennedy became sacrosanct about his right an proactively enlisted counsel, even reaching out to the media according to the court.

One point of contention between the two sides centered on whether Kennedy’s official duties as an employee were over immediately after the game or when the students were released to their parents. The school district concluded that Kennedy was still on duty and thus he violated school policy and would be placed on paid administrative leave from his position as an assistant coach.

Kennedy sued in the Western District of Washington on August 9, 2016, claiming his rights under the First Amendment and Title VII of the Civil Rights Act of 1964 were violated. Kennedy moved for a preliminary injunction on August 24, 2016, arguing that he would succeed on the merits of his claim that BSD retaliated against him for exercising his First Amendment right to free speech. Kennedy sought an injunction ordering BSD to (1) cease discriminating against him in violation of the First Amendment, (2) reinstate him as a BHS football coach, and (3) allow him to kneel and pray on the fifty-yard line immediately after BHS football games.

After Kennedy’s bid for an injunction was denied, what remained was original claim. After the lower court dismissed that claim, Kennedy appealed.

Ninth Circuit Latest Determination

In summary, the panel ruled that the football coach’s free speech claim against the school district “failed because he spoke as a public employee when he engaged in on-field, demonstrative religious activity. So, his speech was unprotected. And even if the coach spoke as a private citizen, the district had an adequate justification for its treatment of him because an objective observer, familiar with the history of his practice, would view his demonstrations as the district’s endorsement of a particular faith.

“The coach’s free exercise claim failed because the district had a compelling state interest to avoid violating the Establishment Clause, and it tried repeatedly to work with the coach to develop an accommodation for him that would avoid violating the Establishment Clause, while … offering him options that were narrowly tailored to protect his rights.”

Kennedy v. Bremerton Sch. Dist.; 9th Cir.; No. 20-35222; 3/18/21

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