Bremerton School District (BSD) employed Joseph Kennedy as a football coach at Bremerton High School (BHS) from 2008 to 2015. Kennedy is a practicing Christian, and his religious beliefs required him to give thanks through prayer at the end of each game by kneeling at the 50-yard line. Because Kennedy’s religious beliefs occurred on the field where the game was played immediately after the game, spectators including students, parents, and community members would observe Kennedy’s religious conduct. While Kennedy initially prayed alone, a group of BHS players soon asked if they could join him. Over time, the group grew to include the majority of the team. Kennedy’s religious practice also evolved and he began giving short speeches at midfield after games with participants kneeled around him.
BSD first learned that Kennedy was praying on the field in September 2015, when an opposing team’s coach told BHS’ principal that Kennedy had asked his team to join him in prayer on the field. After learning of the incident, the Athletic Director spoke with Kennedy and expressed disapproval in the religious practice. In response, Kennedy posted on Facebook “I think I just might have been fired for praying.” Subsequently, BSD was flooded with thousands of emails, letters, and telephone calls from around the Country regarding Kennedy’s prayer.
BSD’s discovery of Kennedy’s 50-yard line prayers prompted an inquiry into whether Kennedy was complying with its Religious-Related Activities and Practices policy. That policy provided that school staff should not encourage nor discourage a student from engaging in non-disruptive oral or silent prayer or other devotional activity. BSD’s investigation revealed that the coaching staff received little training regarding BSD’s policy, so the superintendent sent Kennedy a letter advising him that he could continue to give inspirational talks, but they must remain entirely secular in nature. The letter also noted that student religious activity needed to be entirely student-initiated; Kennedy’s actions could not be perceived as an endorsement of that activity; and that while Kennedy was free to engage in religious activity, it could not interfere with his job responsibilities and must be physically separate from any student activity. While Kennedy temporarily prayed after everyone else had left the stadium, he alleged he soon returned to his practice of praying immediately after games. However, BSD received no further reports of Kennedy praying on the field, and BSD officials believed he was complying with its directive.
On October 14, 2015, Kennedy wrote a letter to BSD through his lawyer announcing he would resume praying on the 50-yard line immediately after the conclusion of the October 16, 2015 football game. Kennedy’s intention to pray on the field was widely publicized through Kennedy and his representatives, and BSD arranged to secure the field from public access. Following the game, Kennedy prayed as he had indicated he would do, with a large gathering of coaches and players around him. Members of the public also jumped the fence to join him, resulting in a stampede. On October 23, 2015, BSD sent Kennedy a letter explaining that his conduct at the October 16th game violated BSD’s policy. While BSD offered Kennedy a private location to pray after games or suggested that he pray after the stadium had emptied, Kennedy responded the only acceptable outcome would be for BSD to permit Kennedy to pray on the 50-yard line immediately after games. Kennedy continued his behavior in violation of BSD’s directives. BSD placed him on paid administrative leave on October 26, 2015. During this time, BSD employees felt repercussions due to the attention Kennedy gave the issue, and many were concerned for their safety. Kennedy did not apply for a coaching position for the following season, but he initiated a lawsuit against BSD asserting his First Amendment and Title VII rights were violated.
After significant litigation and numerous appeals, the district court eventually entered judgment in BSD’s favor finding that the risk of constitutional liability associated with Kennedy’s religious conduct was the sole reason BSD suspended him. The district court also concluded that BSD’s actions were justified due to the risk of an Establishment Clause violation if BSD allowed Kennedy to continue with his religious conduct. Kennedy appealed.
On appeal, the Ninth Circuit first considered Kennedy’s free speech claim. The Court noted two factors were at issue: 1) whether Kennedy spoke as a private citizen or public employee; and 2) whether BSD had adequate justification for treating Kennedy differently from other members of the general public. If Kennedy spoke as a public employee during his religious activity, his speech would not be constitutionally protected. Similarly, if BSD had adequate justification for treating Kennedy differently from other members of the public, Kennedy’s claim would also fail.
As to the first issue, the court noted that when public employees make statements during their official duties, the employees are not speaking as citizens for First Amendment purposes. Thus, the Constitution does not insulate their communications from employer discipline. The Ninth Circuit concluded that Kennedy spoke as a public employee when he was praying on the 50-yard line. Kennedy only had access to the field because of his employment, and he practiced his religion during a time when he was generally tasked with communicating with students. Kennedy also insisted that his speech occur while players stood next to him, fans watched from the stands, and he stood at the center of the football field. Moreover, Kennedy repeatedly acknowledged and behaved as if, he was a mentor to students specifically at the conclusion of the game.
As to the second issue, the court reasoned that even assuming Kennedy spoke as a private citizen, BSD could still prevail because its justification for treating Kennedy differently from other members of the general public was adequate. Under the Establishment Clause, “Congress shall make no law respecting an establishment of religion.” The court noted that it needed to consider the context of Kennedy’s actions. Specifically, Kennedy engaged in a media blitz and his religious practice evolved to include a majority of the team. In addition, Kennedy prayed on the 50-yard line after the October 16th game despite that BSD made clear that the field as not open to the public. Thus, the court concluded that had BSD rescinded its directive and allowed Kennedy free rein to pray on the 50-yard line, the public would have perceived that the prayer had BSD’s stamp of approval.
Next, the Ninth Circuit addressed Kennedy’s free exercise claim. While Kennedy argued that BSD’s directive telling him his speeches needed to be secular in nature violated his rights under the Free Exercise Clause, the court disagreed. The court reasoned that BSD’s directive and accompanying BSD policy were narrowly tailored to BSD’s interest in avoiding a violation of the Establishment Clause. For example, BSD tried repeatedly to work with Kennedy to develop an accommodation that would avoid violating the Establishment Clause, but Kennedy declined to cooperate in that process and insisted that the only acceptable outcome would be praying immediately after the game on the 50-yard line in view of students and spectators.
Finally, the court analyzed Kennedy’s claims pursuant to Title VII. Title VII provides “an unlawful employment practice is established when the complaining party demonstrates that . . . religion . . . was a motivating factor for any employment practice.” The Ninth Circuit, however, concluded that Kennedy could not establish his failure to rehire, disparate treatment, failure to accommodate, and retaliation claims. Regarding his failure to rehire claim, Kennedy could not show he was adequately performing his job as is required under the law. Instead, Kennedy refused to follow BSD policy and conducted numerous media appearances that led to spectators rushing the field after the October 16th game in disregard of BSD’s responsibility to student safety.
Kennedy’s disparate treatment claim failed because he could not show BSD treated him differently than similarly situated employees. This was because Kennedy’s conduct was clearly dissimilar to that of other assistant coaches. With respect to his failure to accommodate the claim, BSD met its burden in establishing that accommodating Kennedy’s religious practices on the 50- yard line would cause an undue hardship. Lastly, with respect to his retaliation claim, BSD had a legitimate reason for placing Kennedy on administrative leave because he made it clear he would continue to pray on the 50-year line immediately following games.
For these reasons, the Ninth Circuit concluded the district court properly entered judgment in BSD’s favor on Kennedy’s claims.
Kennedy v. Bremerton Sch. Dist., (2021) 991 F.3d 1004.
NOTE:
LCW previously reported on an earlier decision in this case in the October 2017 Education Matters.