Posted on March 22, 2021
By: Lily Crespo Esq.
Quick takeaway: School employees cannot use their official capacity to promote their personal religious beliefs upon a captive audience of students. The following 9th circuit case provides some greater clarity on the free expression rights of public school educators.
What happened: The Ninth Circuit ruled March 18, that a Washington state public school district was justified in firing a football coach who insisted on praying on the 50-yard line immediately after each game, saying the coach’s ritual put the district in legal jeopardy. Joseph A. Kennedy, a former high school football coach, sued the Bremerton School District (District) for Title VII and First Amendment violations. The district court granted the District summary judgment. The 9th Circuit affirmed.
Legal framework for the case: The controversy involves two core constitutional concepts about religion: the Establishment and Free Exercise Clauses of the First Amendment. Under the Establishment Clause, governments and their agencies, such as public schools, can’t endorse religious practices through their actions. But individual expressions of religious beliefs at public schools, under certain circumstances, are protected by the Free Exercise Clause.
Background: Kennedy was the assistant varsity football coach and the head coach of the junior varsity team at Bremerton High in the fall of 2015 when his post-game prayers caused controversy. Bremerton district officials advised Kennedy that he could continue to give inspirational talks, but could not lead or encourage student prayers. The coach complied for several weeks, but sought an accommodation from the district to continue his post-game prayers. The school district rejected his argument that his job responsibilities ended when the football game did. When the coach continued to pray at the end of two more games, the district placed him on administrative leave and he did not seek to renew his contract. The coach sued the school district in seeking reinstatement as a coach and a ruling that he had the right to pray on the field after games.
Ruling: After the Supreme Court declined to review Kennedy’s earlier appeal, both sides sought summary judgment from a federal district court. That court again ruled for the school district and clarified that the “risk of constitutional liability associated with Kennedy’s religious conduct” was the “sole reason” the district suspended the coach. The 9th Circuit court again upheld the district court with its March 18 decision. The school district “tried to reach an accommodation for Kennedy, but that was spurned by his insisting that he be allowed to pray immediately after the conclusion of each game, likely surrounded by students who felt pressured to join him,” the appeals court said. Both the main opinion and a concurrence signed by two judges on the panel note that Kennedy courted media coverage of his efforts to pray on the field at the time (and since then).
- “Kennedy did not accept any of BSD’s proposed accommodations, or even acknowledge them,” said the concurrence. “Instead, he gave media interviews publicizing his intent to continue his post-game prayers and followed through by praying on the 50-yard line at the two games that followed.
- Given Kennedy’s announced plans to defy BSD’s reasonable directives, BSD met its burden to show its response was the least-restrictive means consistent with avoiding an Establishment Clause violation.”
“Like the front of a classroom or the center of a stage, the 50-yard-line of a football field is an expressive focal point from which school-sanctioned communications regularly emanate,” the decision reads. “If a teacher lingers in front of the classroom following a lesson, or a director takes center stage after a performance, a reasonable onlooker would interpret their speech from the location as an extension of the school-sanctioned speech just before it. The same is true for Kennedy’s prayer from the 50-yard line.”
What this case means: The legal analysis hinged on whether the coach’s prayer was of a public or private nature. Kennedy’s attempts to draw nationwide attention to his challenge to BSD compels the conclusion that he was not engaging in private prayer, but was instead engaging in public speech of an overtly religious nature while performing his job duties.
- The case highlighted the tension inherent in the First Amendment, noting that public school employees have the right to religious expression but the district also has the right to restrict that expression if it violates the prohibition on the government favoring a particular religion. Justice Leighton wrote, “Although the court is sympathetic to Kennedy’s desire to follow his beliefs, the former right must give way to the latter in this case.”
What is the name of the case and where can you read it? The name of the case is Kennedy v. Bremerton School District (9th Cir 03/18/2021)
As you consider these and other issues, we recommend you speak with your school lawyer or contact Bea, Kevin, Megan, Beth, and Lily by email or at 406-542-1300 to discuss these issues.