KingSpry Ninth Circuit Punts Public Prayer by Football Coach

Ninth Circuit Punts Public Prayer by Football Coach

Posted on October 2nd, 2017
by Ryan K. Fields

In a recent case, the Ninth Circuit affirmed the ruling of the district court denying a football coach’s request for a preliminary injunction after he was placed on administrative leave for ignoring district policy regarding student prayer.

In Kennedy v. Bremerton School District, an assistant coach for the Bremerton High School (BHS) varsity football team, Joseph A. Kennedy, sought to lead his players in a post-game prayer at the fifty-yard line immediately following the games. Kennedy had led students in pre-game prayers in the locker room and on the field for nearly a decade.  As a devout Christian, Kennedy felt called to take a knee at midfield to offer a brief, quiet prayer of thanksgiving for safety, sportsmanship, and spirited competition. Each time the coach prayed, he wore clothing with a BHS logo.

Over time, Kennedy’s short prayer evolved into a lengthy, motivational invocation. His actions became conspicuous enough that they spurred another school district’s employee to notify administrators for Bremerton School District. BSD thereafter sent Kennedy a letter notifying him that his actions were likely violations of the Establishment Clause. The District told the coach that it understood he was acting with good intentions, but that he could no longer lead prayers with the students after games.

BSD gave Kennedy several options. He could give secular, inspirational speeches, pray separately from the students, not in their view, or pray non-demonstratively while still with the students. At first, Kennedy stopped praying with the students, opting for short, secular speeches. He would then pray independently at midfield after the stadium cleared.

Eventually, Kennedy hired a lawyer and sought accommodations under the Civil Rights Act of 1964. He claimed that, once the game ended, his job duties ceased, and that he did not encourage nor discourage students to join him in prayer.

After the next game, Kennedy waited for most players to join other students in the stands and then knelt at the 50-yard line to pray. He was joined by several members of the public, coaches, players, and the media. This very public display led the Church of Satan to contact BSD and notify it of the church’s intent to conduct rituals after games. BSD thereafter shut down the field to post-game access.

The District sent another letter to Kennedy informing him of the problems related to leading students in prayer after games, but nonetheless asked for potential accommodations as part of an interactive process. Kennedy’s lawyer responded that the only viable solution was to permit the coach to pray at midfield after games, which the coach went on to do without the District’s authority.

BSD then placed Kennedy on paid administrative leave and released a statement. The coach appeared at the next game in the stands, and prayed there surrounded by other fans and the media.

At the end of the school year, the District decided not to renew Kennedy’s contract noting that Kennedy did not follow the District’s “Religious-Related Activities and Practices” policy, which forbid school staff from encouraging or discouraging student prayer. Kennedy filed suit for injunction and other relief to allow him to continue to pray at the games on the 50 yard line.  The District Court denied his injunction, an appeal to the Ninth Circuit Court of Appeals followed.

What The Court Said

The Ninth Circuit analyzed Kennedy’s First Amendment retaliation claim according to a five-part framework laid out in Eng v. Cooley (9th Cir. 2009). In order to establish a viable First Amendment retaliation claim, Kennedy needed to show that: (1) he spoke on a matter of public concern; (2) he spoke as a private citizen rather than a public employee; and (3) the relevant speech was a substantial or motivating factor in the adverse employment action.

Once a prima facie case was established, the burden shifted to the district to demonstrate: (4) it had an adequate justification for treating Kennedy different from the general public; or (5) it would have taken the adverse employment action regardless of the speech.

Finding the other factors not an issue, the Court focused on whether Kennedy spoke as a public employee, the court performed a fact-intensive analysis considering the totality of the circumstances. The court looked beyond the simple written job description of a football coach. Instead, the court evaluated Kennedy’s actual job duties and the full context in which he spoke.The court considered Kennedy’s role as coach similar to that of a teacher. He was responsible to serve as a role model and “moral exemplar.” Since he was constantly being observed by others, it was a critical component of his position to obey rules of conduct and model good behavior. The court noted that Kennedy’s expression carried weight, as he was likely more important to the athletes than even the school principal.

Succinctly, the court found that Kennedy spoke at a school event, on school property, wearing school attire, while on duty as a supervisor, and in the most prominent position on the field, where he knew it was inevitable that students, parents, fans, and occasionally the media, would observe his behavior. His job duties included speaking demonstratively to spectators at the stadium, even after the game, and he therefore spoke as a public employee.

The Ninth Circuit affirmed the ruling of the district court denying Kennedy’s request for a preliminary injunction because he was unlikely to succeed on the merits of his First Amendment retaliation claim.

Bottom Line for Schools

Coaches are often held in high regard not just by the school community, but by the community at large. It is important for coaches to know that when they are at school-related events, their actions are likely to be interpreted as those of the District they serve. Courts have taken a hard line against school-sponsored prayer for years, and prayers on the football field are no different. Districts without an explicit school prayer policy like Bremerton should consider adding one, and all Districts may be well-served this season by reminding coaches that even well-intentioned prayers could end up in litigation.


School Law Bullets are a publication of KingSpry’s Education Law Practice Group. They are meant to be informational and do not constitute legal advice. John E. Freund, III, is our editor.