After watching the Husker defense in their first two games, Husker fans are praying that Bob Diaco and crew figures out how to successfully turn the Blackshirts’ season around. However, it is clear that the Ninth Circuit Court of Appeals would disapprove of that reaction. The west coast is the birthplace of the Colin Kaepernick National Anthem kneel, and now its federal appeals court just released an opinion on a very common sight on Friday nights: a high school football coach leading a prayer on the field after each game. The court ruled that the constitution did not protect the coach’s prayer. In fact, according to the concurring opinion, the nature of the coach’s prayer itself likely constituted a violation of the Establishment Clause of the First Amendment by the school district.
Facts of the Case
In Kennedy v. Bremerton Sch. Dist., No. 16-35801, 2017 U.S. App. LEXIS 16106 (9th Cir. Aug. 23, 2017), Joseph Kennedy, an assistant high-school football coach, alleged that the Bremerton School District infringed upon his First Amendment rights when the school instructed him to cease his on-field prayer after games and then fired him when he refused to comply. Kennedy went to court seeking an injunction that would compel the school to allow him to continue his public prayer on the field after games. As in most First Amendment cases, the facts are important in understanding how the court came to its decision.
In 2008, Bremerton School District, a Washington school near Seattle, hired Kennedy as a football coach. His contract set forth several provisions concerning his status as a role model to athletes, and in it he agreed that he would be “constantly observed by others” while acting as a coach.
From the beginning of his time as a coach, Kennedy would participate in the team’s locker room prayer before the game, and then pray again on the field after the game. His post-game prayer was done soon after the end of the game, on the field, at the 50 yard line, and while he was wearing apparel marked with the Bremerton High School logo. For the first few games, he kneeled to pray on the field alone. However, soon into his first season with the team, a number of players asked to join him on the field for the prayer. Eventually, the tradition grew to include many members of both his own and the opposing teams, and Kennedy would lead a short prayer and give a motivational speech to the participants. According to Kennedy, his religion compelled this practice of praying on the field because his “prayer lifts up the players and recognizes their hard work and sportsmanship during the game.” He also stated that his religious beliefs required the prayer to be done on the field of play.
Until 2015, the Kennedy’s practice was unknown to the district’s administration, and for about seven years Kennedy led these prayers undisturbed. However, after a visiting team’s staff mentioned the post-game prayers to a BSD administrator, the District took action. The school notified Kennedy that his leading of prayers presented problematic issues under the Establishment Clause, and that while his actions were well intentioned he could no longer suggest, encourage, or supervise student religious activity while acting in his capacity as a coach. The Superintendent further counseled Kennedy that, “if students engage in religious activity, school staff may not take any action likely to be perceived by a reasonable observer . . . as endorsement of that activity.” Finally, the district stressed to Kennedy that he was free to engage in religious activity, including prayer, which would not interfere with his job responsibilities. To this end, the district offered him various accommodations that would allow him either to pray privately by himself, or to pray on the field after players, staff, and spectators left the area.
For a few weeks, Kennedy utilized the latter accommodation and adhered to the district’s policy. However, after consulting with an attorney Kennedy decided that he had a constitutional right to continue his practice of saying a prayer on the field immediately after games. Media attention followed this decision, and when he prayed after the next game multiple people, including spectators, went onto the field to join him in prayer.
After this incident, the district reiterated its position to Kennedy and insisted that he cease the practice. The district received notice from a Satanist religion that they viewed the post-game field as a public forum open to religious ceremonies for the Satanist religion. Once the Satanists told the district they, too, intended to engage in their speech within the “forum,” the district took further steps to keep all spectators from entering the field. Leaving the forum open to Kennedy would have meant opening the forum to all speakers. When Kennedy continued his practice in an insubordinate manner, the District placed him on leave and eventually terminated his employment. After Kennedy’s departure, the student-athletes did not continue the post-game prayer.
The Ninth Circuit determined that Kennedy did not have a First Amendment right to continue praying on the field after games, and that the District was not wrong for firing him after he continued to do so. Central to this decision was the court’s observation that “Kennedy spoke as a public employee, not as a private citizen.” This determination was based in part on the fact that Kennedy’s conduct took place immediately after the game, when he still had a duty to supervise and lead the players. He was thus acting within the scope of his employment and responsibilities. Further, the fact that Kennedy insisted that this prayer be in the view of student’s and spectators, rather than in private in accordance with the accommodations offered by the district, indicated to the court that the speech at issue was directed towards the students and public.
As this decision demonstrates, First Amendment issues are often complex questions that mix law with specific, outcome determinative facts. This decision also demonstrates that there are many instances in which the First Amendment will not protect a public employee’s demonstrable speech. For school districts, the concurring opinion also notes that allowing an employee to engage in conduct such as Kennedy’s can raise issues with the Establishment Clause. While the Ninth Circuit decision is not binding on Nebraska courts, schools in Nebraska should be aware of their obligations and their employee’s rights. If you have any questions about these obligations or rights, or any other issue, you should contact your district’s attorney or call Karen, Steve, Bobby, or Tim.