A former Washington state high school football coach who lost his job for praying on the field after games won’t get to make his case at the U.S. Supreme Court.

Conservative Justice Samuel A. Alito, who concurred with the court’s decision to deny review of Joe Kennedy’s petition, said in a statement that important “unresolved factual questions would make it very difficult if not impossible at this stage to decide the free speech question” at issue.

Fellow conservatives Clarence Thomas, Neil M. Gorsuch, and Brett M. Kavanaugh agreed with Alito’s suggestion that the high court may at some point need to review the “troubling” view of public school teachers’ free speech rights expressed in an appeals court ruling in this case.

Midfield Prayer

While an assistant coach at Bremerton High, Kennedy would for years kneel alone at midfield after the final whistle to offer a “silent or quiet prayer of thanksgiving for player safety, sportsmanship, and spirited competition,” according to his petition. Sometimes players joined him.

No one complained until 2015 when administrators were advised of the post-game prayer. What followed was a series of administrative steps that eventually led to Kennedy’s dismissal as a coach, and then his legal challenges on constitutional grounds.

Lower courts, including the U.S. Court of Appeals for the Ninth Circuit in Kennedy v. Bremerton Sch. Dist., found that he didn’t have a First Amendment right to pray on the field.

The appeals court decision stripped teachers of their constitutional rights to free speech and expression, 13 states argued in a friend-of-the-court brief with the Supreme Court.

Nevertheless, the justices declined to consider whether public school teachers and coaches retain First Amendment rights when at work and in the presence of students.

The Ninth Circuit ruled that the suspension was permissible because Kennedy spoke as a public employee rather than a private citizen when he prayed with a majority of the football team in view of other students and parents at a high school.

Further, the Bremerton School District’s brief in opposition argued that it was entitled to protect itself from legal liability for violating the establishment clause rights of students and parents.

Though Kennedy lost on his free speech claims, he still has live claims under the First Amendment’s free exercise clause and under Title VII of the 1964 Civil Rights Act, Alito said.

Ninth Circuit Criticized

Alito criticized the Ninth Circuit for what he saw as an overly broad application of the high court’s 2006 First Amendment ruling in Garcetti v. Ceballos.

Garcetti allows a public employer to regulate speech that is part of an employee’s job duties, Alito said.

But according to the Ninth Circuit, public school teachers and coaches can be terminated for engaging in “any expression that the school does not like while they are on duty,” which that court defines as whenever they are at work and within the eyesight of students, Alito said.

Alito said the high court “certainly has never read Garcetti to go that far.”

“What is perhaps most troubling” about the Ninth Circuit’s decision is language possibly suggesting that even off-duty teachers or coaches can’t engage in any outward expression of faith, Alito said.

Alito cited the court’s criticism of Kennedy’s post-suspension praying in the bleachers, when he attended a school football game as a fan.

Kirkland & Ellis LLP, First Liberty Institute, Ferate PLLC, and Jeffrey Paul Helsdon of Tacoma, Wash. represented Kennedy.

Tierney & Correa P.C. represented the school district.

The case is Kennedy v. Bremerton Sch. Dist., U.S., No. 18-12, review denied 1/22/19.