Kennedy v. Bremerton School District - Ninth Circuit Court of Appeals
In 2015, Joseph Kennedy, a Bremerton, Washington high school football coach was placed on leave in response to his leading prayer groups following football games. Mr. Kennedy, a Christian, was employed at the time as an assistant football coach and participated in all coaching activities. Prayers were led by Mr. Kennedy in the locker room and on the football field at the fifty-yard line at the conclusion of games. Although there was no requirement to participate in the prayers, students did join. Mr. Kennedy’s employer, Bremerton High School, instructed Mr. Kennedy he could not pray on the field in view of students and parents following games but that he could pray alone after students and spectators had left. Ultimately, Mr. Kennedy resumed the public prayers which led to his suspension by the school and refusal of the District to renew his contract. When Mr. Kennedy was not rehired, he sued, alleging the District violated his right of religious freedom and free expression.
His case has been heard twice in the Ninth Circuit Court of Appeals, initially addressing his request for reinstatement and injunction and submitted once for review by the United States Supreme Court, a bid that was denied. At issue, is whether Mr. Kennedy’s act of praying after games was the act of a private citizen and therefore constitutionally protected. Initially, the Ninth Circuit Court of Appeals held that because Mr. Kennedy was engaging in prayer in view of students and parents following a football game, his act of prayer was the act of a public employee and therefore not constitutionally protected, refusing to reinstate him.
Last month, the Ninth Circuit Court of Appeals ruled unanimously that Mr. Kennedy’s prayer groups would amount to a violation of the First Amendment’s ban on government establishment of religion had the District permitted them to continue. The ruling found that in the act of praying following the football games, Mr. Kennedy was serving as a public employee and therefore it was within the school’s rights to discipline him. From Mr. Kennedy’s perspective, his act was one of a private citizen when he knelt in prayer on the field following games. Part of the ruling of the Court of Appeals addressed concern that by engaging in prayer in site of spectators and students those in view may feel pressured to join which appears to have been speculation by the Court as no one complained about his prayers at the time they occurred.
Mr. Kennedy previously lost a bid to have his case heard by the United States Supreme Court when he appealed from the Ninth Circuits 2019 denial of an injunction to reinstate him. However, even as the case was not granted review, four justices indicated that the matter may justify review in the future. Those justices are conservative members of the Court Samuel Alito, Clarence Thomas, Neil Gorsuch and Brett Kavanaugh.
Several cases addressing the intersection of religious freedom and education have made their way through the Court recently, including two cases evaluating the scope of protection offered by the “ministerial exception” for religious schools in adherence to anti-discrimination cases. In those cases, known as Morrisey-Beru, the Court afforded protection to two Catholic schools that were subject of anti-discrimination complaints on the basis of age and disability discrimination.
The Kennedy matter addresses the converse argument of what rights an employee of a public school is provided in their expression of religious freedom while in school grounds and acting in capacity as a school employee. Given the Court’s prior favorable posture towards examining cases addressing religious freedom it seems likely that Mr. Kennedy’s case will be heard.