The 9th Circuit Court of Appeals has just released an opinion concerning the controversial case of Washington state high school football coach Joe Kennedy.
The opinion rules in favor of the Bremerton School District. The BSD had disciplined Kennedy for his practice of kneeling at the 50-yard line immediately after football games and offering a brief, audible prayer.
The evolution of the post-game prayer
As the court's decision notes, Kennedy initially said his prayers alone at the 50-yard line after each game, but several games into his first season as coach (in 2008), several players approached Kennedy on their own and asked if they could pray with him. Kennedy responded, "It is a free country. You can do what you want."
According to the court:
Over time, the group grew to include the majority 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.
After seven years, controversy erupts
At some point, an opposing coach notified Bremerton School District officials that Kennedy was leading these prayers on the field after games and also that he was leading pre-game prayers in the locker room.
The school district informed Kennedy that he would not be allowed to lead school prayers in the locker room because that would make the prayers too compulsory on the players. Kennedy agreed to this demand. They also informed Kennedy that, while he could continue to give inspirational talks after football games, they would henceforth be required to be secular in nature.
BSD Superintendent Aaron Leavell further counseled Kennedy that:
“[S]tudent religious activity must be entirely and genuinely student- initiated, and may not be suggested, encouraged (or discouraged), or supervised by any District staff.” Leavell further counseled Kennedy that “[i]f students engage in religious activity, school staff may not take any action likely to be perceived by a reasonable observer, who is aware of the history and context of such activity at BHS, as endorsement of that activity.”
Kennedy initially complies, then has a change of heart
The 9th Circuit opinion notes that, due to the substantial publicity that Kennedy's case had received, they would not be able to secure the field after the game, but these fears turned out to be unfounded because Kennedy initially complied with district instructions. He gave a secular motivational talk after the following game, and then waited for the stadium to completely empty out, at which time he went to the 50-yard line alone and said a prayer in private.
Kennedy continued this practice for several weeks, but then eventually sent a letter through his attorney asking for a religious accommodation under the Civil Rights Act of 1964 that would allow him to “continue his practice of saying a private, post-game prayer at the 50-yard line.”
The letter further indicated that Kennedy planned to resume his practice of praying immediately after games after the scheduled game on Oct. 16, 2015. Although the school district had not yet responded to his letter, Kennedy followed through with his plan.
The Court's opinion notes:
Once the final whistle blew, Kennedy shook hands with the opposing team and waited until most of the BHS players were singing the fight song to the audience in the stands. Then, he knelt on the fifty-yard line, bowed his head, closed his eyes, “and prayed a brief, silent prayer.” According to Kennedy, while he was kneeling with his eyes closed, “coaches and players from the opposing team, as well as members of the general public and media, spontaneously joined [him] on the field and knelt beside [him].” In the days after the game, pictures were “published in various media” depicting Kennedy praying while surrounded by players and members of the public.
The school district fights back
Superintendent Leavell informed Kennedy that his conduct was not in keeping with district policy and that he would be required to wait until all players left the field before saying his post-game prayer. Coach Kennedy refused to comply and once again prayed immediately after the game on Oct. 23 and 26, 2015.
The district notified Kennedy on Oct. 28, 2015, that he was in violation of policy and would be placed on paid administrative leave. Kennedy continued to attend football games dressed in school gear and say a private prayer in the stands.
At the end of the school year, the Bremerton School District gave Kennedy his first unsatisfactory performance review ever and further recommended that his annual contract not be renewed.
The lawsuit and the final decision
Kennedy filed suit seeking injunctive relief asking the district court for an order preventing the school district from discriminating against him based on his religious beliefs, reinstating him as football coach, and allowing him to continue to pray on the 50-yard line after games.
The district court ruled against Kennedy, and the 9th Circuit upheld the district court's decision, reasoning that the deciding factor in the case was that Kennedy spoke as a public employee rather than as a private citizen when he led the private prayers. The court reasoned:
Kennedy’s demonstrative speech thus occurred “while performing a function” that fit “squarely within the scope of his position.” Id. After all, Kennedy spoke at a school event, on school property, wearing BHS- logoed attire, while on duty as a supervisor, and in the most prominent position on the field, where he knew it was inevitable that students, parents, fans, and occasionally the media, would observe his behavior.
In sum, Kennedy’s job was multi-faceted, but among other things it entailed both teaching and serving as a role model and moral exemplar. When acting in an official capacity in the presence of students and spectators, Kennedy was also responsible for communicating the District’s perspective on appropriate behavior through the example set by his own conduct.
Mindful of those facts, by kneeling and praying on the 50-yard line immediately after games while in view of students and parents, Kennedy was sending a message about what he values as a coach, what the District considers appropriate behavior, and what students should believe, or how they ought to behave. Because such demonstrative communication fell well within the scope of Kennedy’s professional obligations, the constitutional significance of Kennedy’s job responsibilities is plain — he spoke as a public employee, not as a private citizen, and his speech was therefore unprotected. ...
Here, an ordinary citizen could not have prayed on the 50-yard line immediately after games, as Kennedy did, because Kennedy had special access to the field by virtue of his position as a coach. The record demonstrates as much. Representatives of a Satanist religion arrived at the stadium “to conduct ceremonies on the field after [a] [BHS] football game[.]” They were forced to abandon this effort after they learned that the field was not an open forum. Thus, the precise speech at issue — kneeling and praying on the 50-yard line immediately after games while in view of students and parents — could not physically have been engaged in by Kennedy if he were not a coach. Kennedy’s speech therefore occurred only because of his position with the District.
The court thus ruled that the school district was within their legal rights to discipline Kennedy for his conduct and affirmed the district court's denial of injunctive relief.
Attorneys for Kennedy have not yet announced whether they plan to appeal this decision to either the Supreme Court or the 9th Circuit en banc.