First Amendment

Kennedy v. Bremerton School District Case No. 20-35222 – Federal Court of Appeals, Ninth Circuit New

Member(s) Involved: On behalf of all California School Districts and County Offices of Education

Current status and/or outcome:

On Sept. 28, 2020, the ELA joined the National School Boards Association (NSBA) in filing an amicus brief with the Ninth Circuit Court of Appeals, noting that students are a captive audience in the school setting, that teachers and coaches hold positions of authority at schools and courts must evaluate speech issues with the recognition of the public school context, and that school districts have a compelling interest in restricting some religious expression of employees when on duty to avoid the appearance such expression is school sponsored. The parties await the court’s decision.

Importance of statewide issue:

As public entities, school districts and county offices are tasked with regulating speech and any endorsement of religion that may be attributed to it. School districts and county offices should have the authority to establish reasonable restrictions on speech directed at students within the school context, and enforce their board policies, without fear of violating the constitutional rights.

Summary of the case:

Plaintiff Joseph Kennedy, an assistant football coach at Bremerton High School, began praying at the 50-yard line at the conclusion of each football game during his first year of coaching, and students subsequently began joining in. Eventually, a majority of the team would join the coach after the games for his short motivational speeches and religious prayers following each game, as well as for prayers in the locker room.

After the district learned of this practice, the coach was sent a letter stating his practice of giving religious speeches at the 50-yard line and leading prayer in the locker room likely violated the district’s policy that requires school staff to neither encourage nor discourage students from engaging in religious activity. The district offered several times to work with the coach on accommodating his desire to pray after football games in another way, but he refused those offers. The coach was placed on paid administrative leave after he refused to abide by the district’s directive to discontinue his public prayer with students on the 50-yard line and in the locker room.

Kennedy sued the school district, claiming it had violated his First Amendment rights to free speech and free exercise of religion by limiting his practice of praying at the 50-yard line and ultimately placing him on paid administrative leave.

The district court denied Kennedy’s motion for an injunction, and the Ninth Circuit upheld the decision in favor of the district. Kennedy petitioned the case to the Supreme Court, which declined to take the case, but four justices issued a rare concurring opinion expressing skepticism at the Ninth Circuit’s ruling, which they thought was an overly broad interpretation of the Supreme Court’s previous decisions holding that public employers could regulate employee speech when that employee is speaking in their public role. The case went back to the district court, and on March 5, 2020, the district court ruled again that Kennedy’s prayers at the 50-yard line were not constitutionally protected and granted summary judgment in the school district’s favor. Kennedy appealed to the Ninth Circuit again.