The Supreme Court on Tuesday declined, for now, to take up a case involving a Washington state high school football coach who was fired after praying silently following a game.
Coach Joe Kennedy asked the Supreme Court to reverse a Ninth Circuit Court of Appeals decision that stated the school district had the right to fire him because students and fans could see him when he would take a knee and silently pray after games:
The panel held that plaintiff spoke as a public employee, not as a private citizen when he kneeled and prayed on the fifty-yard line immediately after games in school logoed-attire while in view of students and parents. The panel held that plaintiff had a professional responsibility to communicate demonstratively to students and spectators and he took advantage of his position to press his particular views upon the impressionable and captive minds before him. The panel held that because plaintiff’s demonstrative speech fell within the scope of his typical job responsibilities, he spoke as a public employee, and the district was permitted to order him not to speak in the manner that he did. Plaintiff accordingly could not show a likelihood of success on the merits of his First Amendment retaliation claim, and was not entitled to a preliminary injunction.
Kennedy was hired by Bremerton High School (BHS) in 2008 and fired in 2015, with a contract that “entrusted” him “to be a coach, mentor and role model for the student athletes,” according to court documents. He was expected to “exhibit sportsmanlike conduct at all times” and informed him that, as coach, he was “constantly being observed by others.”
Kennedy also led prayers with the team before and after games, but court documents note the tradition predated his employment and that his religion didn’t require him to lead such prayers, but did require him to give thanks after each game.
As Kennedy kneeled and prayed after each game, members of the team began to join him until a majority of the team was also praying. Members of the opposing team were also invited to join. Kennedy eventually began giving mid-field motivational speeches after the games that included religious messaging.
On September 17, 2015, Bremerton School District (BSD) sent Kennedy a letter saying he would be investigated for breaking the school’s policy on “Religious-Related Activities and Practices,” which stated that students may “engage in private, non-disruptive prayer at any time not in conflict with learning activities” and “[s]chool staff shall neither encourage nor discourage a student from engaging in non-disruptive oral or silent prayer or any other form of devotional activity.”
Kennedy cooperated with the investigation and was told by BSD Superintendent that his prayers after the game were “problematic,” and that he must stop including religious content in his motivational speeches. He was told he could continue to practice his religion, but not when people could see him.
Kennedy stopped praying on the field while students and fans were around for several weeks, but on October 14, 2015, he asked for a religious accommodation under the Civil Rights Act of 1964, stating that “his official coaching duties ceased” after the game was over.
The school disagreed and fired Kennedy, who in turn sued. The case made its way through the system, eventually landing before the Supreme Court, which has now declined to take the case because it needs more information.
In a court statement filed by Supreme Court Justice Samuel Alito and joined by Justices Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas, the justices wrote that the court does “not grant such review to decide highly fact-specific questions,” and could not reach important constitutional issues “until the factual question of the likely reason for the school district’s conduct is resolved.”
This means the court could review the case in the future, and attorneys from First Liberty Institute, a pro-religious freedom organization representing Kennedy, plan to return to the district court and resolve the Supreme Court’s questions and perhaps return to the highest court in the future.
“The Supreme Court seems to understand that banning all coaches from praying just because they can be seen is wrong and contradicts the Constitution,” Kelly Shackelford, President and CEO of First Liberty, said in a press release. “We are eager to return to the District Court, answer the questions the justices raised today, and give the Court another opportunity to protect the right of every American to engage in private religious expression, including praying in public, without fear of getting fired.”
One other interesting note in Alito’s opinion could perhaps be construed as a suggestion to Kennedy and his attorneys on how to proceed. The justices note that Kennedy relied solely on the Free Speech Clause of the First Amendment, but has other claims that could help his case, and took a shot at Employment Division v. Smith, a controversial opinion from former Supreme Court Justice Antonin Scalia in 1990 that many conservatives dislike due to how it affected religious liberty.