Kneeling at midfield to say a quick prayer of thanks in the hubbub immediately following a public high school football game is the sort of private religious act protected by the U.S. Constitution’s free speech clause, a Christian coach in Washington state will tell the Ninth Circuit at oral argument Monday.
The 50-yard line of a football field is different from the front of a class full of students, former Bremerton High School assistant coach Joe Kennedy says. That means he was speaking as a private citizen, not a public employee whose speech the school district had the right to restrict, Kennedy says.
If he’s correct, Kennedy’s lawsuit against the school district could clarify and shape the workplace free speech rights of millions of coaches, teachers, and other school and public employees of all faiths in the circuit. The circuit also includes Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, the Northern Mariana Islands, and Oregon.
But the school district says the coach was at the focal point of a school event, and therefore should follow the same guidance as he would at the front of a classroom.
“The 50-yard line is the part that bothered the school district and is the critical component in the case,” appellate lawyer Jack M. Sleeth Jr. told Bloomberg Law.
Duties Included Communicating
Kennedy’s job duties included communicating ideas to and modeling behavior for players and students during post-game ceremonies, the school district says in its appellate brief.
The coach’s “demonstrative” prayer fits the criteria the circuit has previously set for declaring a public school employee’s at-work religious expression to be public speech because it was done in the presence of students, at a school event, and while Kennedy was working in his official capacity as a coach, the school district says. It acted lawfully when it placed him on leave for failing to stop his open praying because it otherwise risked being seen as endorsing Kennedy’s faith, Bremerton says.
The U.S. District Court for the Western District of Washington agreed in March. It granted summary judgment to the school district.
The case already caught the attention of four U.S. Supreme Court justices on a previous round of appeals. The Ninth Circuit in 2017 rejected Kennedy’s request for an injunction that would have permitted him to continue his midfield prayer while the case played out.
The high court declined tohear Kennedy’s case last year. But a statement by Justice Samuel Alito—in which Justices Clarence Thomas, Brett Kavanaugh, and Neil Gorsuch joined—could signal that the court’s strengthened conservative bloc may intercede if it believes the Ninth Circuit has gone too far to restrict religious liberty in the workplace.
The Ninth Circuit’s injunction ruling seemed to suggest teachers can be ordered not to engage in any “demonstrative” prayer or other religious conduct that is visible to students, even folding hands or bowing heads in prayer at lunch, Alito wrote.
‘Focal Point’ Critical
Whether Kennedy’s prayer occurred at an “expressive focal point,” the 50-yard line, will be critical to the Ninth Circuit, Sleeth said.
The district court found midfield similar to the front of a class. The court said Kennedy’s prayer wasn’t shielded by the free speech clause, citing a Ninth Circuit 2011 decision. In Johnson v. Poway Unified School District, the appeals court ruled that a teacher who hung banners with religious sayings in the front of his classroom spoke as a public worker whose speech could be restricted.
While Kennedy’s prayer wasn’t done before the same sort of “captive audience,” that’s a small difference and likely won’t be critical for the Ninth Circuit, Sleeth said. He is with Artiano Shinoff APC in San Diego and represents schools in religious and other speech cases, including the employer in Johnson.
The circuit will likely focus more on the fact Kennedy was on duty and being paid at the time, Sleeth said. The coach had more work to do even though the game was over, including overseeing the players in the locker-room, Sleeth said.
Praying on the 50-yard line at the end of a game isn’t an act of “private, personal observance,” but rather “demonstrative” conduct, Sleeth said.
Under Johnson, Bremerton could therefore ask Kennedy to stop so the school wouldn’t violate the First Amendment clause prohibiting the state establishment of religion, Sleeth said.
Avoiding lawsuits by parents and others who object to the perceived endorsement of a school employee’s religious observance is a valid reason to restrict Kennedy’s conduct, the school district says in its brief. Kennedy indicated he would continue praying audibly, with students, and he was later seen inviting others to join in, it says.
And Kennedy only had access to the 50-yard line because of his job, the school district says.
No ‘Captive Audience’
But a lawyer for Kennedy told Bloomberg Law the Ninth Circuit doesn’t need to get into the expressive-focal-point issue. That Kennedy prayed at midfield isn’t critical to his lawsuit because it doesn’t have anything to do with Kennedy’s speech, Devin S. Anderson of Kirkland & Ellis LLP in Washington said.
Kennedy’s beliefs obligated him to pray immediately after a game ends, Anderson said.
The prayer typically ended up being at midfield simply because of handshake and related end-of-the game traditions.
The prayer generally lasted no more than 15 seconds and wasn’t meant to attract attention or even involve players or students, although some at times joined in, Anderson said.
There was no “captive audience,” Anderson said, making this case “different in every way that matters” from students focused on a teacher at the front of a room where banners with religious slogans hung.
The First Liberty Institute also represents Kennedy. The Plano, Texas-based advocacy group is “dedicated to protecting your religious liberty interest in every part of your life,” according to its website.
“The Coach Kennedy case presents a rare opportunity to overturn a bad precedent that has been used by judges for decades to erode the Constitution and reduce religious liberty,” the group said in a Jan. 22 posting. “If successful, the result could mean that millions of Americans no longer have to choose between their jobs and their faith.”
‘Entertainment, Not Education’
John Whitehead of Charlottesville, Va.'s Rutherford Institute, a civil liberties organization, was skeptical of the district court’s reliance on the expressive-focal-point issue.
Kennedy’s prayer occurred on an open football field where members of the broader community could mingle after the game, Whitehead told Bloomberg Law.
And “football is entertainment, not education,” he said.
Whether the 50-yard line is similar to the front of a classroom depends largely on timing, said Thomas E. Wheeler II of Frost Brown Todd LLC.
The age of the audience is also significant, Wheeler said. High schoolers may distinguish between the speech and the speaker, while younger students may have more difficulty.
But Wheeler sees problems with the theory that high school coaches are always role models when they’re around students, justifying broad speech restrictions.
The argument advanced by Bremerton and embraced by the district court would seemingly substantially expand a school’s right, even obligation, to regulate speech aggressively, Wheeler said.
Kennedy’s counsel echoed those concerns. A Ninth Circuit ruling upholding the role-model analysis would affect teachers and school workers of all religions who might require a brief moment of private prayer or expression during the school day, Anderson said.
But students do have “impressionable minds” and coaches are significant community figures, Sleeth said. If Kennedy had only bowed his head or his prayer had otherwise been less expressive, the case may have come out differently.
Supreme Court Showdown?
The case is with the same Ninth Circuit panel—Judges Dorothy W. Nelson, Milan D. Smith Jr., and Morgan Christen—that heard Kennedy’s claim before. That could indicate the circuit will again reject Kennedy’s contention his prayer was protected speech.
A finding against the coach on that issue would be enough to uphold dismissal of his free-speech retaliation claim, Sleeth said.
Kennedy’s appeal could also turn on other issues, including whether the school district had justification to restrict his prayer because it might otherwise be viewed as endorsing his faith or coercing his impressionable students to embrace it. The coach has also appealed the dismissal of his claims under the free exercise clause and Title VII of the 1964 Civil Rights Act.
The case will go back to the Supreme Court, Wheeler predicted, where Kennedy has a good chance of winning. He pointed to the interest Alito and the other conservatives showed when certiorari was previously denied.
Whitehead pointed to the Ninth Circuit’s “mixed record” in public-employee-speech litigation. The circuit has faced some criticism in the past in such cases, he said.
The school district didn’t respond to Bloomberg Law’s requests for comment.
Spencer Fane LLP and Jeffrey P. Helsdon of Tacoma also represent Kennedy. Tierney & Correa PC represents Bremerton.
The case is Kennedy v. Bremerton Sch. Dist., 9th Cir., No. 20-35222, oral argument 1/25/21.