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First Amendment
Kennedy v. Bremerton School District — Federal Court of Appeals, Ninth Circuit (Case No. 20-35222)

MEMBER(S) INVOLVED: Filed on behalf of all California school districts and county offices of education

IMPORTANCE OF STATEWIDE ISSUE:
As public entities, pursuant to the First Amendment and the principal of separation between church and state, school districts and county offices are charged with regulating speech and conduct that endorses religion within the schools. Local educational agencies (“LEAs”) 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 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 eventually 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, holding that Kennedy’s prayers at the 50-yard line were not constitutionally protected. 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.

On September 28, 2020, the ELA joined the National School Boards Association 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.

CURRENT STATUS AND/OR OUTCOME:
On March 18, 2021, the United States Court of Appeals for the Ninth Circuit once again upheld the district court’s grant of summary judgment in favor of the school district, finding that the facts of the case and binding Supreme Court precedent compelled the conclusion that the school district would have violated the Establishment Clause by allowing the coach to continue to engage in public prayer immediately after football games, while kneeling on the field’s 50-yard line with students who felt pressured to join him. On July 19, 2021, the Ninth Circuit issued an order denying, on behalf of the court, a sua sponte request for a rehearing en banc. On September 14, 2021, Kennedy filed a Petition for Writ of Certiorari before the United States Supreme Court, asking the Supreme Court to review the Ninth Circuit’s decision in favor of the school district.
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