BREMERTON, Wash. — The Ninth Circuit Court of Appeals has declined to rehear a ruling from last August that denied relief to a Washington football coach who was put out of a job in 2015 as school district officials decided not to renew his contract in the midst of a battle over his desire to pray at the 50-yard line. The coach now plans to appeal to the U.S. Supreme Court.
“Judges [Milan] Smith and [Morgan] Christen have voted to deny the petition for rehearing en banc, and Judge [Dorothy] Nelson so recommends,” Thursday’s order read. “A judge of the court called for a vote on the petition for rehearing en banc. A vote was taken, and a majority of the non-recused active judges of the court failed to vote for en banc rehearing. The petition for rehearing en banc is denied.”
As previously reported, Joe Kennedy, the former assistant head coach for the varsity team at Bremerton High School and the head coach for the junior varsity team, was placed on paid administrative leave in October 2015 when he prayed at the conclusion of the homecoming game despite an order to cease his practice.
Kennedy said that he began offering brief prayers on the field in 2008, then praying on his own. He was subsequently approached by several team members who asked what he was doing.
“I was thanking God for you guys,” Kennedy recalls responding. “Then a couple said they were Christians and asked if they could join. I responded, ‘It’s a free country, you can do whatever you want to do.’”
He said that he never asked students to pray with him, but some desired to, including those from the opposing team.
“They just all showed up one day and the next thing I know, the other team was showing up with us,” Kennedy said.
In September 2015, the Bremerton School District launched an investigation into the coach’s practices, and soon sent a letter outlining that some aspects of his religious expression must cease. It noted that Kennedy not only prayed at the conclusion of each game, but also prayed in the locker room with students and staff.
While Superintendent Aaron Leavell acknowledged that “[e]ach activity has been voluntary” and that Kennedy has not “actively encouraged or required participation,” he asserted that the practices were still unconstitutional. He laid out rules so that the district would decrease its chances of a lawsuit, stating that while Kennedy may engage in religious activity, “students may not be allowed to join such activity.”
But although Kennedy agreed to discontinue the locker room prayer, his attorneys with the Texas-based group First Liberty stated that he had done nothing wrong in seeking to pray by himself at the conclusion of each game. They opined there is neither any constitutional violation in permitting students to join.
As Kennedy offered a prayer the following month at the homecoming game, and was voluntarily surrounded by his team and scores of other supporters, he was consequently placed on paid leave until he agrees not to pray at the 50-yard-line. In January, the district decided not to renew his teaching contract, effectively putting him out of a job.
In December 2015, the former U.S. Marine turned football coach filed a complaint with the Equal Employment Opportunity Commission, alleging workplace retaliation against his Christian expression in violation of Title VII of the Civil Rights Act of 1964.
In August 2016, Kennedy’s attorneys also filed a federal lawsuit challenging his firing at the high school. However, U.S. District Judge Ronald Leighton, nominated to the bench by then-President George W. Bush, declined to grant an injunction that would have required the Bremerton School District to rehire Kennedy while his case moves forward in court.
Kennedy appealed, but in August of last year, the Ninth Circuit Court of Appeals unanimously agreed with Leighton and likewise declined to grant the injunction.
“In sum, if Kennedy were to resume kneeling and praying on the fifty-yard line immediately after games while in view of students and spectators, an objective student observer would see an influential supervisor do something no ordinary citizen could do—perform a Christian religious act on secured school property while surrounded by players—simply because he is a coach,” it wrote.
“Irrespective of the district’s views on that matter, a reasonable observer would conclude in light of the history and context surrounding Kennedy’s conduct that the district, ‘in actuality,’ favors religion, and prefers Christianity in particular,” the court said.
Kennedy’s attorneys with First Liberty then sought for the case to be reheard by the full court of appeals, or en banc, but the Ninth Circuit denied the request this week. The organization says that it will appeal to the U.S. Supreme Court.
“Banning all coaches from praying just because they can be seen is wrong and contradicts the Constitution,” said President Kelly Schackelford. “We will keep fighting on behalf of Coach Kennedy until his religious liberties are fully restored, including appealing this case to the Supreme Court of the United States.”