Supreme Court Denies Review to Football Coach Fired for Praying After Games

Alito: 'denial of certiorari does not signify that the Court necessarily agrees with the decision' of lower courts

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January 22, 2019

The Supreme Court decided not to consider an appeal from a high school football coach who was fired for praying at the 50-yard line after games. Joseph Kennedy, who coached at Bremerton High School in Washington before being fired in 2015, argued his First Amendment rights had been violated by the school district.

Kennedy began praying after games in 2008, when he "took a knee and silently thanked God for his players" after his first game, according to a case history published by his legal counsel, the nonprofit First Liberty Institute. Kennedy continued to do this for seven years with no complaints.

In 2015, the Bremerton School District superintendent sent Kennedy a letter telling him to stop praying after games. The letter cited "two problematic practices in the football program." First, Kennedy would often deliver a motivational speech at midfield after games in which students from both teams were invited to participate. His speeches usually included "overtly religious references," and he "acknowledged that they likely constitute prayer." Second, Kennedy led students and coaches in voluntary prayer prior to most games.

The superintendent stated that "both activities would very likely be found to violate the First Amendment's Establishment Clause, exposing the District to significant risk of liability."

Kennedy's legal counsel responded with a letter asking the school to make a religious accommodation whereby he would be allowed "to take 15 seconds after the game to take a knee and silently thank God for his team when the players were not on the field."

The school district rejected this request and directed Kennedy to stop praying after games, and then suspended him from football activities before deciding not to renew his contract, thus ending his coaching career at the school.

Kennedy filed charges of religious discrimination against Bremerton School District, but his lawsuit was dismissed by a federal district court.

In August 2017, the Ninth Circuit Court of Appeals refused to reinstate Kennedy to his former position. The Ninth Circuit argued Kennedy "spoke as a public employee, not as a private citizen when he kneeled and prayed on the fifty-yard line immediately after games in school logoed-attire while in view of students and parents." The panel of judges further contended that he "had a professional responsibility to communicate demonstratively to students and spectators and he took advantage of his position to press his particular views upon the impressionable and captive minds before him."

Last January, the Ninth Circuit rejected a request by Kennedy's attorneys to reconsider its prior ruling and denied a request for a rehearing by the full court.

In June, Kennedy's attorneys filed a petition asking the Supreme Court to review the case. The petition argued that the Ninth Circuit had instituted a "sweeping categorical rule" by saying "that any 'demonstrative communication' by a public school teacher or coach that occurs 'at school or a school function' and 'in the general presence of students' is entitled to no First Amendment protection at all."

"The question presented is: Whether public school teachers and coaches retain any First Amendment rights when at work and 'in the general presence of' students," Kennedy's attorneys wrote in the petition.

The school district's legal counsel countered by arguing the case is about whether "in the factual setting of this case, petitioner offered his midfield prayer in his capacity as a public-school coach," and that the Ninth Circuit correctly determined the school district "had lawful authority to direct petitioner in the performance of his job duties, and that petitioner did not have private free-speech rights to disobey those instructions."

The Court denied a writ of certiorari by which it would have agreed to review the case. Justice Alito wrote a statement regarding the denial, in which he was joined by Justices Thomas, Gorsuch, and Kavanaugh.

Alito's statement notes that "denial of certiorari does not signify that the Court necessarily agrees with the decision" of lower courts.

Alito argued the district court "should have made a specific finding as to what petitioner was likely to be able to show regarding the reason or reasons for his loss of employment." His statement continues,

If the likely reason was simply petitioner's neglect of his duties—if, for example, he was supposed to have been actively supervising the players after they had left the field but instead left them unsupervised while he prayed on his own—his free speech claim would likely fail.... On the other hand, his free speech claim would have far greater weight if petitioner was likely to be able to establish either that he was not really on duty at the time in question or that he was on duty only in the sense that his workday had not ended and that his prayer took place at a time when it would have been permissible for him to engage briefly in other private conduct, say, calling home or making a reservation for dinner at a local restaurant.

Alito goes on to say that the Court cannot resolve potential constitutional issues raised by the petitioner "until the factual question of the likely reason for the school district’s conduct is resolved." He also referred to the Ninth Circuit's understanding of public school teachers' free speech rights as "troubling."

Hiram Sasser, general counsel for First Liberty Institute, expressed optimism after the Supreme Court's decision.

"They gave us a road map to victory in the case. They identified the exact issue that we need to go get resolved and we feel great about that issue," Sasser told the Washington Free Beacon.

"And then they breathed some life into our additional claims under the Free Exercise Clause and Title Seven, so they gave us a great road map, and we feel really good about going back down to the district court and resolving those issues in a way that gives us the opportunity to go back to the Supreme Court to finish this case with a win," Sasser continued.