Ninth Circuit: Coach’s Duties Do Not End at Final Whistle for Purposes of Legality of Post-Game Prayer

Oct 13, 2017

The 9th U.S. Circuit Court of Appeals has affirmed the ruling of a lower court that denied a preliminary injunction to a high school coach, who 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 bid for an injunction on the grounds that the school district was retaliating against him for exercising his First Amendment rights.
Plaintiff 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 and 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.
The district court denied the requested preliminary injunction on September 19, 2016. Applying the five-step framework laid out in Eng v. Cooley, 552 F.3d 1062 (9th Cir. 2009), the court held that Kennedy was unlikely to prevail on the merits of his First Amendment retaliation claim because Kennedy spoke as a public employee and BSD’s conduct was justified by its need to avoid violating the Establishment Clause.
Kennedy appealed.
The circuit court agreed with the lower court.
The coach spoke as a public employee, and not as a private citizen, when he prayed on the 50-yard line in view of students and parents immediately after football games, according to the court. That’s because when acting in an official capacity in the presence of students and spectators, the coach was also responsible for communicating the school district’s perspective on appropriate behavior through the example set by his own conduct. Because the coach’s demonstrative speech fell within the scope of his typical job responsibilities, he spoke as a public employee, and the district was permitted to order the coach not to speak in the manner that he did.
Joseph A. Kennedy v. Bremerton School District; 9th Cir.; No. 16-35801, 2017 U.S. App. LEXIS 16106; 8/23/17
Attorneys of Record: (for Plaintiff-Appellant) Rebekah Ricketts (argued) and Benjamin D. Wilson, Gibson Dunn & Crutcher LLP, Dallas, Texas; Daniel S.J. Nowicki, Gibson Dunn & Crutcher LLP, Palo Alto, California; Jeffrey Paul Helsdon, Oldfield & Helsdon PLLC, Fircrest, Washington; Hiram Sasser and Michael Berry, First Liberty Institute, Plano, Texas; Anthony J. Ferate, Ferate PLLC, Edmond, Oklahoma. (for Defendant-Appellee. Michael B. Tierney (argued) and Paul Correa, Tierney & Blakney P.C., Seattle, Washington. (others) Andrew L. Nellis (argued) and Richard B. Katskee, Americans United for Separation of Church and State, Washington, D.C.; David L. Barkey, Anti-Defamation League, Boca Raton, Florida; Jeffrey I. Pasek, Cozen O’Connor, New York, New York; for Amici Curiae Americans United for the Separation of Church and State; The Anti-Defamation League; Central Conference of American Rabbis; Disciples Justice Action Network of the Christian Church (Disciples of Christ); Equal Partners in Faith; Hadassah, the Women’s Zionist Organization of America, Inc.; Hindu American Foundation; The Interfaith Alliance; Jewish Social Policy Action Network; People for the American Way Foundation; Union for Reform Judaism; and Women of Reform Judaism. Gerald J. Russello and Daniel A. McLaughlin, Sidley Austin LLP, New York, New York; Collin P. Wedel, Sidley Austin LLP, Los Angeles, California; Christopher R. Mills, Sidley Austin LLP, Washington, D.C.; for Amicus Curiae Former Professional Football Players Steve Largent and Chad Hennings. Justin D. Park, Bellevue, Washington, for Amicus Curiae Garfield High School Coaches Kellen Alley and Joseph Thomas.


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