The U.S Supreme Court recently granted a petition for certiorari to review a Ninth Circuit Court of Appeals decision regarding employee free speech in Kennedy v. Bremerton School District, 142 S.Ct. 857 (Jan. 14, 2022). This case raises several first amendment constitutional questions regarding the intersection of employees’ rights to free speech and free exercise of religion with the government’s duty to avoid endorsing religion.

Facts

Kennedy worked as a football coach for Bremerton School District (BSD) from 2008 to 2015. He served as an assistant coach for the varsity team and head coach for the junior varsity team. Kennedy was a practicing Christian whose religious beliefs called him to “give thanks through prayer at the end of each game.” To give thanks, Kennedy would kneel at the fifty (50) yard line to say a quiet prayer after the teams completed postgame handshakes. 

Initially, Kennedy prayed after the game alone. Eventually, some football team members asked Kennedy if they could join him for the postgame prayer. Kennedy told them they could join in if they wanted. The group of participating students grew over time until a majority of the team was joining Kennedy during his postgame prayer. Occasionally, students and coaches from the opposing team would also join the group, as well. As the group grew larger, Kennedy’s prayers evolved into short motivational speeches containing religious themes.

BSD officials eventually learned of Kennedy’s activities after football games and raised concerns about the practice. BSD’s Superintendent later sent a letter to Kennedy advising him that he could continue to give motivational speeches after games, but they had to be entirely secular. The Superintendent further advised that Board policy allowed student religious activity that was entirely student-initiated and not encouraged or discouraged by BSD staff. Finally, the Superintendent advised that Kennedy could engage in religious activities, provided that they did not interfere with his job duties and were physically separate from any student activity. 

A month after receiving the Superintendent’s letter, Kennedy responded, through his attorney, by letter, stating he would resume praying at midfield after the next football game and that he would allow students to join him if they wished to do so. Kennedy’s letter received significant publicity and interest from the public. BSD increased security around the field, anticipating that members of the public would try to enter the field in support or opposition to Kennedy’s prayer. Despite the added security, several members of the public entered the field and joined Kennedy in prayer.

Kennedy continued to pray after the next two (2) football games, which the media publicized on each occasion. At that time, BSD placed Kennedy on administrative leave for the remainder of the season. After the season, BSD reviewed the coaches’ performance to determine whether to renew contracts. BSD’s head varsity football coach recommended against retaining Kennedy as a football coach due to his failure to follow BSD policy. Kennedy filed suit against BSD in federal court, alleging BSD violated his Civil Rights under the Constitution’s First Amendment.

Procedural History and Decisions

Kennedy initially sought a preliminary injunction that would require BSD to allow him to kneel and pray at midfield after football games in view of students and the public. The District Court and 9th Circuit denied the preliminary injunction, concluding that Kennedy spoke as a public employee when he prayed after football games. As such, the First Amendment did not protect his speech, and he was not entitled to a preliminary injunction.

Kennedy appealed the denial to the U.S. Supreme Court, which denied the petition for certiorari. Although the Supreme Court declined to review the preliminary injunction, Justice Alito, joined by three (3) other justices, took the unusual step to chastise the Ninth Circuit. Justice Alito described the Ninth Circuit’s analysis and application of Supreme Court precedent as “troubling” and stated that it might warrant Supreme Court review in the future. 

Despite the concerns expressed by Justice Alito and the three (3) concurring justices, the Supreme Court remanded the case to the District Court for a decision on the merits. On remand, the District Court granted BSD’s motion for summary judgment, holding that Kennedy spoke as a public employee while praying after football games. The District Court further concluded that even if Kennedy spoke as a private citizen, avoiding an Establishment Clause violation justified BSD’s actions to limit his speech.

Kennedy appealed the summary judgment motion to the Ninth Circuit, which affirmed the District Court’s decision. The Ninth Circuit held that Kennedy’s speech occurred in his capacity as a public employee. The Ninth Circuit reasoned that Kennedy’s role as football coach was to teach on the field, in the locker room, and at the stadium. Like a teacher, Kennedy’s “stock in trade” was his expression. Therefore, the Ninth Circuit concluded, Kennedy’s expression on the field, when he was generally tasked with communicating with students, was speech as a public employee and not entitled to First Amendment protections.

The Ninth Circuit also affirmed the District Court’s conclusion that avoiding an Establishment Clause violation was adequate justification for allowing the restriction of Kennedy’s speech, even if he spoke as a private citizen. The Ninth Circuit noted that at least one (1) student reported feeling compelled to join Kennedy and the other students in prayer, or he would not receive as much playing time. Further, the Ninth Circuit reasoned that an objective observer, familiar with the circumstance surrounding Kennedy’s prayers, would view BSD allowing them to continue as an impermissible endorsement of religion.

Kennedy appealed the Ninth Circuit’s decision to the Supreme Court, which granted the petition for certiorari on January 14, 2022. The two (2) issues before the Supreme Court for review are: 1) whether a public-school employee, who says a brief, quiet prayer, by himself, while at school and visible to students, is engaged in government speech that lacks any First Amendment protection; and 2) whether, assuming that such religious expression is private and protected by the free speech and free exercise clauses, the Establishment Clause nevertheless compels public schools to prohibit it. Oral arguments have not been scheduled yet in the case.

What To Know

The Supreme Court’s decision in Kennedy v. Bremerton School District could substantially impact public employers and their ability to regulate employee speech and religious expression at work. Balancing employees’ constitutional rights to exercise their religion and the constitutional prohibition against endorsing a particular religion is often difficult when employees engage in religious activities at work. Kennedy v. Bremerton School District gives the Supreme Court an opportunity to create clear guidance for public employers and employees on these issues moving forward.

The Supreme Court’s decision could also signal how its conservative majority will analyze other free speech and religious protections under the Constitution’s First Amendment. Public employers should monitor the case and consult legal counsel when addressing employee speech and religious expression.

For questions regarding this article, please contact the author,

or your Renning, Lewis & Lacy attorney.

Chad P. Wade

Chad P. Wade

 cwade@law-rll.com | 833-654-1176