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Bremerton (WA) School District and (Asst.) Coach Joe Kennedy

SUPREME COURT OF THE UNITED STATES (SCOTUS)

JOSEPH A. KENNEDY v. BREMERTON SCHOOL DISTRICT

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 18–12.

Decided January 22, 2019

The Petition for a Writ of Certiorari is Denied

Statement of JUSTICE ALITO, with whom JUSTICE THOMAS, JUSTICE GORSUCH, and JUSTICE KAVANAUGH join, respecting the denial of certiorari.

I concur in the denial of the petition for a writ of certiorari because denial of certiorari does not signify that the Court necessarily agrees with the decision (much less the opinion) [of the lower court]. In this case, important unresolved factual questions would make it very difficult if not impossible at this stage to decide the free speech question that the petition asks us to review.

Numerous flaws were emphasized, in the full SCOTUS legal brief, regarding the lower courts’ thoughts and decisions! It was implied in that statement, by these “Conservative” Justices, that they could/would hear the case in the future IF …….

Coach Kennedy’s and counsel are currently considering their procedural options.

The Issues

Issue: Whether public school teachers and coaches retain any First Amendment rights when at work and “in the general presence of” students?

Petitioner Joseph Kennedy claims that he lost his job as football coach at a public high school because he engaged in conduct that was protected by the Free Speech Clause of the First Amendment. He sought a preliminary injunction awarding two forms of relief: (1) restoration to his job and (2) an order requiring the school to allow him to pray silently on the 50-yard line after each football game. The latter request appears to depend on petitioner’s entitlement to the first—to renewed employment—since it seems that the school would not permit members of the general public to access the 50-yard line at the relevant time.

October 23, 2015

The superintendent wrote to petitioner to explain why the district found petitioner’s conduct at the then-most recent football game to be unacceptable. And in that letter, the superintendent gave two quite different reasons: first, that petitioner, in praying on the field after the game, neglected his responsibility to supervise what his players were doing at that time and, second, that petitioner’s conduct would lead a reasonable observer to think that the district was endorsing religion because he had prayed while “on the field, under the game lights, in BHS-logoed attire, in front of an audience of event attendees.” 869 F. 3d 813, 819 (CA9 2017).

After two subsequent games, petitioner again kneeled on the field and prayed, and the superintendent then wrote to petitioner, informing him that he was being placed on leave and was forbidden to participate in any capacity in the school football program. The superintendent’s letter reiterated the two reasons given in his letter of October 23. And the district elaborated on both reasons in an official public statement explaining the reasons for its actions.

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JOSEPH A. KENNEDY, Plaintiff-Appellant, v. BREMERTON SCHOOL DISTRICT, Defendant-Appellee

No. 16-35801

D.C. No. 3:16-cv-05694-RBL

Appeal from the U.S. District Court for the Western District of Washington - Seattle, Washington

Argued and Submitted June 12, 2017

Factual and Procedural Background

Bremerton School District (BSD) is located in Kitsap County, WA, across the Puget Sound from Seattle. It is home to approximately 5,057 students, 332 teachers, and 400 non-teaching personnel. BSD is religiously diverse. Students and families practice, among other beliefs, Judaism, Islam, the Bahá’í faith, Buddhism, Hinduism, and Zoroastrianism.

The Kennedy & Bremerton “Relationship”

BSD employed Kennedy as a football coach at Bremerton High School from 2008 to 2015. Kennedy served as an assistant coach for the varsity football team and also as the head coach for the junior varsity football team. Kennedy’s contract expired at the end of each football season. It provided that BSD “entrusted” Kennedy “to be a coach, mentor and role model for the student athletes.” Kennedy further agreed to “exhibit sportsmanlike conduct at all times,” and acknowledged that, as a football coach, he was “constantly being observed by others.”

Kennedy’s Job Description

Kennedy’s formal job description required him to assist the head coach with “supervisory responsibilities,” “[a]dhere to Bremerton School District policies and administrative regulations,” “communicate effectively” with parents, “maintain positive media relations,” and “[o]bey all the Rules of Conduct before players and the public as expected of a Head Coach,” including the requirement to “use proper conduct before the public and players at all times.” Consistent with his responsibility to serve as a role model, Kennedy’s contract required that, “[a]bove all” else, Kennedy would endeavor not only “to create good athletes,” but also “good human beings.”

Kennedy’s Religious Beliefs and Past Practices (1)

Kennedy is a practicing Christian. Between 2008 and 2015, he led students and coaching staff in a locker-room prayer prior to most games. He also participated in prayers that took place in the locker room after the games had ended. Kennedy insists these activities predated his involvement with the program and were engaged in as a matter of school tradition. His religious beliefs do not require him to lead any prayer before or after BHS football games.

Kennedy’s Religious Beliefs and Past Practices (2)

Kennedy’s religious beliefs do require him to give thanks through prayer at the end of each game for the players’ accomplishments and the opportunity to be a part of their lives through football. Specifically, “[a]fter the game is over, and after the players and coaches from both teams have met to shake hands at midfield,” Kennedy feels called to “take a knee at the 50-yard line and offer a brief, quiet prayer of thanksgiving for player safety, sportsmanship, and spirited competition.” Kennedy’s prayer usually lasts about thirty seconds. He wears a shirt or jacket bearing a BHS logo when he prays at midfield. Because his “prayer lifts up the players and recognizes their hard work and sportsmanship during the game,” Kennedy’s religious beliefs require him to pray on the actual field where the game was played.

Kennedy’s Religious Beliefs and Past Practices (3)

Kennedy began performing these prayers when he first started working at BHS (2008). At the outset, he prayed alone. Several games into his first season, however, a group of BHS players asked Kennedy whether they could join him. “This is a free country,” Kennedy replied, “You can do what you want.” Hearing that response, the students elected to join him. Over time, the group grew to include the majority of the team. Sometimes the BHS players even invited the opposing team to join.

Kennedy’s Religious Beliefs and Past Practices (4)

Eventually, Kennedy’s religious practice evolved to something more than his original prayer. He began giving short motivational speeches at midfield after the games. Students, coaches, and other attendees from both teams were invited to participate. During the speeches, the participants kneeled around Kennedy, who raised a helmet from each team and delivered a message containing religious content. Kennedy subsequently acknowledged that these motivational speeches likely constituted prayers.

September 17, 2015, Letter from BSD to Kennedy

The District first learned that Kennedy was leading locker-room prayers and praying on the field in September 2015, when an employee of another school district mentioned the post-game prayers to a BSD administrator. The discovery prompted an inquiry into whether Kennedy was complying with the school board’s policy on “Religious-Related Activities and Practices.” Pursuant to that policy, “[a]s a matter of individual liberty, a student may of his/her own volition engage in private, non-disruptive prayer at any time not in conflict with learning activities.” In addition, “[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 is Cooperative

Kennedy was candid and cooperative throughout the District’s inquiry. The investigation revealed that coaching staff had received little training regarding the District’s policy. Accordingly, BSD Superintendent Aaron Leavell sent Kennedy a letter on September 17, 2015, to clarify the District’s prospective expectations.

Problematic Practices

Leavell explained that Kennedy’s two practices were “problematic” under the Establishment Clause, but he acknowledged that they were well-intentioned and that Kennedy had “not actively encouraged, or required, [student] participation.” Leavell advised Kennedy that he could continue to give inspirational talks, but “[t]hey must remain entirely secular in nature, so as to avoid alienation of any team member.” He further advised that “[s]tudent religious activity must be entirely and genuinely student-initiated, and may not be suggested, encouraged (or discouraged), or supervised by any District staff.” Leavell further counseled Kennedy that “[i]f students engage in religious activity, school staff may not take any action likely to be perceived by a reasonable observer, who is aware of the history and context of such activity at BHS, as endorsement of that activity.”

Point of Emphasis

Lastly, Leavell stressed that Kennedy was

“free to engage in religious activity, including prayer, so long as it does not interfere with job responsibilities. Such activity must be physically separate from any student activity, and students may not be allowed to join such activity. In order to avoid the perception of endorsement discussed above, such activity should either be non-demonstrative (i.e., not outwardly discernible as religious activity) if students are also engaged in religious conduct, or it should occur while students are not engaging in such conduct.”

Kennedy Apparently Complies

Kennedy temporarily stopped praying on the field while students were around. Instead, after the September 18th game, Kennedy gave a short motivational speech “that included no mention of religion or faith.” Then, once “everyone else had left the stadium,” he walked to the fifty-yard line, knelt, and prayed alone.

Kennedy Responds in October 14th Letter

He requested a religious accommodation under the Civil Rights Act of 1964 that would allow him to “continue his practice of saying a private, post-game prayer at the 50-yard line” immediately following BHS football games. The letter opined that Kennedy’s religious expression occurred during “non-instructional hours” because, according to Kennedy, “his official coaching duties ceased” after the games had ended. The letter also acknowledged that Kennedy’s prayers were “audibl[e],” but stressed that “he does not pray in the name of a specific religion,” and “neither requests, encourages, nor discourages students from participating in” his prayer. Lastly, the letter announced that Kennedy would resume praying on the fifty-yard line at the October 16, 2015, game.

Kennedy’s intention to pray on the field following the October 16th game “was widely publicized, including through [Kennedy’s] own media appearances.” On the day of the game, the District had not yet responded to Kennedy’s letter, but Kennedy nonetheless proceeded as he had indicated.

October 16, 2015

Once the final whistle blew, Kennedy shook hands with the opposing team and waited until most of the BHS players were singing the fight song to the audience in the stands. Then, he knelt on the fifty-yard line, bowed his head, closed his eyes, “and prayed a brief, silent prayer.” According to Kennedy, while he was kneeling with his eyes closed, “coaches and players from the opposing team, as well as members of the general public and media, spontaneously joined [him] on the field and knelt beside [him].” In the days after the game, pictures were “published in various media” depicting Kennedy praying while surrounded by players and members of the public.

The New Complaint

The District maintains that while Kennedy was walking to the fifty-yard line, “[t]here were people jumping the fence and others running among the cheerleaders, band[,] and players.” Afterwards, “the District received complaints from parents of band members who were knocked over in the rush of spectators on to the field.” Sometime after the game, members of a Satanist religion contacted the District and said they “intended to conduct ceremonies on the field after football games if others were allowed to.” Ultimately, the District made arrangements with the Bremerton Police Department to secure the field after games, then posted signs, made “robocalls” to District parents, and “otherwise put the word out to the public that there would be no [future] access to the field.” Representatives of the Satanist religion showed up at the next game, “but they did not enter the stands or go on the field after learning that the field would be secured.”

October 23, 2015

Leavell sent Kennedy a second letter on October 23, 2015. He thanked Kennedy for his “efforts to comply with the September 17 directives.” Still, he explained that Kennedy’s conduct at the game on October 16th was inconsistent with the District’s requirements. Leavell emphasized “that the District does not prohibit prayer or other religious exercise by employees while on the job,” but “such exercise must not interfere with the performance of job responsibilities, and must not lead to a perception of District endorsement of religion.”

In the Letter

According to the District, Kennedy had not met those requirements because “paid assistant coaches in District athletic programs are responsible for supervision of students not only prior to and during the course of games, but also during the activities following games and until players are released to their parents or otherwise allowed to leave.” (emphasis added). The District confirmed with Kennedy’s head coach “that for over ten years, all assistant coaches have had assigned duties both before and after each game and have been expected to remain with the team until the last student has left the event.” Thus, the District told Kennedy (see the next slide)

Long Quote From the Letter

“[W]hen you engaged in religious exercise immediately following the game on October 16, you were still on duty for the District. You were at the event, and on the field, under the game lights, in BHS-logoed attire, in front of an audience of event attendees, solely by virtue of your employment by the District. The field is not an open forum to which members of the public are invited following completion of games; but even if it were, you continued to have job responsibilities, including the supervision of players. While [BSD] understand[s] that your religious exercise was fleeting, it nevertheless drew you away from your work. More importantly, any reasonable observer saw a District employee, on the field only by virtue of his employment with the District, still on duty, under the bright lights of the stadium, engaged in what was clearly, given your prior public conduct, overtly religious conduct.”

District Persists

The District reiterated that it “can and will” accommodate “religious exercise that would not be perceived as District endorsement, and which does not otherwise interfere with the performance of job duties.” To that end, it suggested that “a private location within the school building, athletic facility or press box could be made available to [Kennedy] for brief religious exercise before and after games.” Kennedy, of course, could also resume his prior practice of praying on the fifty-yard line after the stadium had emptied. Because the “[d]evelopment of accommodations is an interactive process,” the District invited Kennedy to offer his own suggestions. The District also reminded Kennedy that “[w]hile on duty for the District as an assistant coach, you may not engage in demonstrative religious activity, readily observable to (if not intended to be observed by) students and the attending public.”

Kennedy Continues Praying on the Fifty-Yard Line

Kennedy’s legal representatives responded to the District’s letter by informing the media that the only acceptable outcome would be for the District to permit Kennedy to pray on the fifty-yard line immediately after games [Kennedy contended that the District’s accommodations were inadequate because “BSD did not explain how [his] religious expression would be accommodated at away games,” where BSD does not have direct control over the facilities.] Kennedy’s conduct bore that out. He prayed on the fifty-yard line immediately after a Varsity game on October 23rd, and once again after a JV game on October 26th.

October 28th Letter

The District subsequently notified Kennedy by letter that he had violated the District’s directives and would be placed on paid administrative leave from his position as an assistant coach. The District also publicly-released a document entitled “Bremerton School District Statement and Q&A Regarding Assistant Football Coach Joe Kennedy,” which detailed the history of the District’s interactions with Kennedy and explained its views regarding the constitutionality of Kennedy’s conduct.

While Kennedy was on leave, he was not allowed to participate in BHS football program activities. Kennedy could still attend the games in his capacity as a member of the public. At the October 30, 2015, game, which Kennedy attended as a member of the public, Kennedy prayed in the bleachers while wearing his BHS apparel, surrounded by others, and with news cameras recording his actions.

Kennedy’s Job Evaluation

After the season ended, the District began its annual process of providing its coaches with performance reviews. This starts with written evaluations by the head coach and the school’s athletic director. The assistant coach then typically meets with one of those two people to go over his performance evaluation. If the coach is unsatisfied with the head coach or athletic director’s evaluation, he can involve the school principal or the District. Kennedy had previously participated in this review—and had received uniformly positive evaluations—but he did not participate in 2015. The athletic director recommended that Kennedy not be rehired because Kennedy “failed to follow district policy” and “failed to supervise student-athletes after games due to his interactions with [the] media and [the] community.”

The head coach of the varsity football team left the job at the conclusion of the 2015 season. The one-year contracts also expired for all six of the assistant football coaches. The District therefore opened up to application all seven of the football coaching positions. Kennedy did not apply for a coaching position during the 2016 season.

Kennedy Files Suit

Kennedy commenced this action in the Western District of Washington on August 9, 2016. He asserted that his rights under the First Amendment and Title VII of the Civil Rights Act of 1964 were violated. Kennedy moved for a preliminary injunction on August 24, 2016, arguing that he would succeed on the merits of his claim that BSD retaliated against him for exercising his First Amendment right to free speech. Kennedy sought an injunction ordering BSD to (1) cease discriminating against him in violation of the First Amendment, (2) reinstate him as a BHS football coach, and (3) allow him to kneel and pray on the fifty-yard line immediately after BHS football games.

Kennedy’s Claim

Kennedy brought his First Amendment retaliation claim pursuant to 42 U.S.C. § 1983. The First Amendment applies against the State pursuant to the Fourteenth Amendment. See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 336 n.1 (1995) (“The term ‘liberty’ in the Fourteenth Amendment to the Constitution makes the First Amendment applicable to the States.”).

Conclusion of The U.S. Court of Appeals for The 9th Circuit

On Friday nights, many cities and towns across America temporarily shut down while communities gather to watch high school football games. Students and families from all walks of life join “to root for a common cause” and admire the young people who step proudly onto the field. Santa Fe Ind. Sch. Dist. v. Doe, 530 U.S. 290, 312 (2000). While we “recognize the important role that public worship plays in many communities, as well as the sincere desire to include public prayer as a part of [these] occasions,” such activity can promote disunity along religious lines, and risks alienating valued community members from an environment that must be open and welcoming to all. Id. at 307. That is why the “preservation and transmission of religious beliefs and worship is a responsibility and a choice committed to the private sphere, which itself is promised freedom to pursue that mission.” Lee v. Weisman, 505 U.S. 577, 589 (1992).

“As for the task at hand, we hold that Kennedy spoke as a public employee when he kneeled and prayed on the fifty-yard line immediately after games while in view of students and parents. Kennedy therefore cannot show a likelihood of success on the merits of his First Amendment retaliation claim. We AFFIRM the district court’s order denying Kennedy’s motion for a preliminary injunction. Appellant shall bear costs on appeal.” Fed. R. App. P. 39(a)(2).