BREMERTON, Wash. — A federal judge nominated to the bench by then-President George W. Bush has again ruled against a former high school football coach who lost his job in 2016 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.
U.S. District Judge Ronald Leighton said that “[a]lthough the court is sympathetic to [the coach’s] desire to follow his beliefs,” the school district’s “right” to refrain from endorsing religion supersedes his right to religious expression.
“While public schools do not have unfettered discretion to restrict an employee’s religious speech, they do have the ability to prevent a coach from praying at the center of the football field immediately after games,” he wrote, according to the Kitsap Sun.
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 told reporters 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 Institute stated that he had done nothing wrong in seeking to pray by himself at the conclusion of each game. They also opined that there is no 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 unless he agreed not to pray at the 50-yard-line. Months later, in January 2016, the district decided not to renew his teaching contract, effectively putting him out of a job.
In the meantime, 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, Judge Leighton, 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 2017, 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.
As efforts to obtain a rehearing were unsuccessful, Kennedy sought for the U.S. Supreme Court to take up his case, but the court allowed the ruling to stand due to a need for additional information.
“[A]lthough petitioner’s free speech claim may ultimately implicate important constitutional issues, we cannot reach those issues until the factual question of the likely reason for the school district’s conduct is resolved,” explained Justice Samuel Alito. “For that reason, review of petitioner’s free speech claim is not warranted at this time.”
However, he added that although the court would have to pass on the appeal for now, “the Ninth Circuit’s understanding of the free speech rights of public school teachers is troubling and may justify review in the future.”
“What is perhaps most troubling about the Ninth Circuit’s opinion is language that can be understood to mean that a coach’s duty to serve as a good role model requires the coach to refrain from any manifestation of religious faith—even when the coach is plainly not on duty,” Alito wrote. “I hope that this is not the message that the Ninth Circuit meant to convey, but its opinion can certainly be read that way.”
The Supreme Court returned the case to the district court for further review, but Leighton again ruled against Coach Kennedy.
Kennedy’s attorneys with the First Liberty Institute say that they plan to appeal Leighton’s ruling and will take the case as far as necessary.
“We are disappointed in this decision, but we are undeterred in our mission to obtain justice for Coach Kennedy,” attorney Mike Berry said in a statement on Friday. “Joe has fought — first as a U.S. Marine, then as a coach — to prove that every American has the right to engage in individual religious expression, including praying in public, without fear of getting fired.”
“He knows this fight isn’t over.”