Supreme Court Agrees to Hear Case of Former Football Coach Who Prayed on the Field after School District Told Him No
In 2019, we reported on the case of Kennedy v. Bremerton School District involving a football coach at Bremerton High School in Washington state who was placed on administrative leave by his public school district for praying on the football field after games. At the time, the Supreme Court declined to hear the case when the former assistant coach, Joseph A. Kennedy, appealed to the Court. However, in a concurring opinion signed by three other conservative justices, Justice Samuel Alito criticized the lower courts’ opinions and suggested that the school district may have violated the coach’s First Amendment free speech rights. Though Alito concurred in denying review due to “unresolved factual questions,” Alito’s sharply worded rebukes highlighted his willingness to revisit the issue of public-school employees and their rights to free expression, including religious speech.
As it turns out, the Supreme Court will have the chance to reconsider this issue in the Kennedy case. On January 14, the justices agreed to review Kennedy’s most recent appeal, which circled back through the 9th Circuit before ending up again before the Supreme Court, this time with an even larger conservative majority. This case may have far-reaching consequences involving Constitutional issues in the realm of education. The Court will review an educator’s right to free speech and the limits of that right, considering where an educator’s official duties begin and end and how to balance a district’s right as an employer to execute its educational mission efficiently. The Court will also review an educator’s freedom of religion and right to religious accommodation, in conjunction with a district’s potentially conflicting obligation not to advance or endorse religion in violation of the Constitutional prohibition against the establishment of religion. Should the Court decide in favor of Kennedy, their decision could restrict the scope of public schools’ ability to regulate the speech and religious expression of teachers and coaches.
Background of Kennedy
To recap briefly, the case involves a lawsuit by Kennedy against the school district for violating his First Amendment and civil rights. Kennedy asserted that his Christian beliefs required him to kneel at the 50-yard line and offer a prayer of thanksgiving immediately after every game. Over the course of several years, Kennedy routinely invited students, coaches, and members of the public to join him in prayer. The school district eventually notified Kennedy that he was free to engage in private prayer only if it was non-demonstrative and did not interfere with his job duties. While Kennedy initially complied with the directive, he soon reached out to local media and made widely publicized appearances vowing to resume praying on the field.
After a homecoming game that involved members of the public jumping the fence to get onto the field and pray with the coach, the school district sent Kennedy a letter explaining that his conduct violated district policy. The district offered to provide Kennedy with a private location on campus to pray and invited him to offer his own suggestions for a compromise. Instead of responding to the district, Kennedy and his attorneys informed the media that the only acceptable outcome was for the school district to permit him to pray on the 50-yard line after games.
After Kennedy continued to perform post-game prayers, the school district placed Kennedy on paid administrative leave. Kennedy sued the school district, claiming that his rights were violated under the First Amendment and the Civil Rights Act of 1964. Kennedy asked the trial court to order the school district to reinstate him and allow him to pray as he wished. The trial court denied his request, and a panel of 9th Circuit Court of Appeals judges affirmed. Kennedy appealed to the Supreme Court who denied his petition, albeit with Justice Alito’s vexed concurring opinion.
When the case was remanded to the lower courts, the district court held that the school district was justified in restricting Kennedy’s prayer activities to avoid violating the Establishment Clause of the Constitution, which prohibits the government from favoring any religion. Upon review, the 9th Circuit Court of Appeals panel once again ruled against Kennedy, leading to Kennedy’s second appeal to the Supreme Court.
Kennedy’s second appeal
In September 2021, Kennedy filed another petition for writ of certiorari with the Supreme Court, arguing that the 9th Circuit wrongly converted “everything public-school teachers do or say during school hours or after-hours functions into government speech that the school may prohibit.” Kennedy argued that his “brief, quiet prayer” was simply private speech, and the school district would not have violated the Establishment Clause by allowing him to engage in such prayer on the field after games. Kennedy urged the Supreme Court to affirm that the First Amendment “does not demand that schools purge from the public sphere all that in any way partakes of the religious.”
The school district responded in turn that Kennedy had mispresented the facts in his petition. The case was not about the hypothetical question of whether an employee has the right to a “brief, quiet prayer by himself while at school.” Instead, the district argued:
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 district thus 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 school district warned the Supreme Court that a ruling for Kennedy would “overturn decades of settled law under both the Free Speech and Establishment Clauses.”
What to look for in the Supreme Court’s ruling
As we noted earlier, Justice Alito’s 2019 opinion hinted that if these issues came before the Court again, the Supreme Court would likely apply a much broader interpretation of the First Amendment than the 9th Circuit. Justice Alito was troubled that the 9th Circuit believed that “public school teachers and coaches may be fired if they engage in any expression that the school does not like while they are on duty,” with “on duty” meaning “all times from the moment they report for work to the moment they depart, provided that they are within the eyesight of students.” Justice Alito expressed most concern over the view that a coach’s duty to serve as a role model “requires the coach to refrain from any manifestation of religious faith—even when the coach is plainly not on duty.”
With these issues back in play in Kennedy v. Bremerton, the Supreme Court is poised to tackle fundamental First Amendment questions regarding free speech, the free exercise of religion, and the establishment of religion. We will keep you updated on key developments in this case. Please feel free to reach out to our attorneys if you have any questions in the meantime.
*Also authored by Jenny Lee, a third-year law student at Loyola University Chicago School of Law, currently a law clerk at Franczek P.C.