A major clash over religious expression in public schools goes before the U.S. Supreme Court next week, with implications for school districts, educators, and students, as well as the debate over teaching of divisive topics such as race and gender identity.
The case being argued April 25 pits a former part-time high school football coach—who says he only wants to kneel and say a private prayer after games—against a Washington school district that tried to accommodate his religious expression while seeking to protect students from coercion to participate in such prayers.
The stakes in Kennedy v. Bremerton School District are much higher than just whether the coach wins reinstatement to his job. A victory for him, which many legal observers expect based on the court’s conservative majority and its recent deference to individual religious-liberty claims, would likely result in more clashes between school districts and teachers and other employees over personal religious expression when students are present.
In an interview, Joseph A. Kennedy, the former junior varsity coach and assistant varsity coach at Bremerton High School, put his case simply.
“My covenant with God was to just give a prayer of thanks after every football game on the field of battle,” he said. “That’s all this was.”
His lawyers cast Kennedy’s interest as wanting to conduct a “personal” and “private” prayer at the end of games before he was effectively fired in 2015 when the controversy escalated.
“At a time and place when coaches and players were free to talk to family and friends, Kennedy sought to take a moment to talk to God,” his court papers say.
But the 4,425-student Bremerton district contends that Kennedy’s narrative is “ridiculous” and that it went out of its way to provide the coach a reasonable accommodation for his private prayers while trying to protect students from feeling coerced to participate in a religious message.
Kennedy “puts himself on the 50-yard line, and he makes a spectacle of things,” said Richard B. Katskee, the vice president and legal director of Americans United for Separation of Church and State, which is representing the school district. “There’s nothing about that that’s personal or private.”
The stakes in Kennedy v. Bremerton School District (Case No. 21-418) are much higher than just whether the coach wins reinstatement to his job. A victory for the coach will likely result in more clashes between school districts and teachers and other employees over personal religious expression when students are present.
“For us, this case is very significant because it has the potential to re-affirm or severely damage what has long been unquestioned: That is, that the constitutional protection of religious liberty in the public schools means that teachers, coaches, and administrators do not lead students in religious exercises or otherwise use their government positions to advance or denigrate religion,” said Holly Holman, the general counsel of the Baptist Joint Committee for Religious Liberty, which filed a friend-of-the-court brief in support of the Bremerton district.
Douglas Laycock, a law professor and leading scholar of church-state issues who sometimes sides against states and school districts, was the lead author of the Baptist Joint Committee’s brief, asserting that Kennedy’s arguments have no limits and could lead to districts having to allow a classroom teacher to pray in front of their students “as an individual and not as their teacher.”
The coach’s legal theory “ignores the privilege, power, and influence that comes as a result of the teacher’s position,” writes Laycock, who teaches at both the University of Texas at Austin and the University of Virginia. “And it goes far beyond just coaches praying at football games. [Kennedy] would protect prayers by teachers and coaches with their students during athletic events, before and after school—or even during the regular school day.”
But Hiram S. Sasser III, a lawyer with the Plano, Texas-based First Liberty Institute, which represents Kennedy, said in an interview that the coach’s simple act of kneeling for a private prayer is protected by the First Amendment’s free speech and free exercise of religion clauses. And such a private act does not require regulation by the school district to avoid an unconstitutional government establishment of religion, as a lower court had ruled, he said.
“What he’s doing is not government speech at all,” Sasser said. “His prayer is not attributable to the government, and therefore the establishment clause has no bearing or application at all.”
Kennedy’s lawyers also argue that lower courts incorrectly applied the Supreme Court’s 2006 ruling that public employees generally do not have First Amendment free speech protection for their job-related speech. The courts below in Kennedy’s case held that the coach had expressed himself as a public employee, so the school district could regulate his speech under that ruling, Garcetti v. Ceballos.
“Teachers and coaches remain people even on the school grounds, and as private individuals they have political views, sports allegiances, and religious beliefs that do not become the government’s just because they are on the clock or on the premises,” Kennedy’s brief says.
The Bremerton district stands by Garcetti as one of the chief Supreme Court precedents on its side.
Under that decision, “this is just as easy a case as could possibly be,” said Katskee, the Americans United lawyer representing the district. Kennedy’s presence on the field right after the game “was part of his job,” he said.”The government has to be able to control its own message, its own events, its own staff, to make sure that the messages being conveyed to students are the ones that the district wants.”
But two of the school district’s allies, the National Education Association and the American Federation of Teachers, say Garcetti has proven “unworkable and inadequate” for protecting the free speech rights of educators.
“In the wake of Garcetti, … courts have routinely upheld discipline or discharge for educators based on their classroom speech or whistleblowing on important public matters,” the unions’ brief says. The unions cited headlines about state “critical race theory” laws that bar teachers from discussing race or other sensitive topics.
“Educators are particularly vulnerable at this very moment,” the unions say. “State legislatures and local school boards across the country are considering and enacting vaguely worded teaching restrictions that target discussions of race, racism, gender, and American history.”
In a further twist in the case, some of the states that have enacted restrictions on what teachers may say about race, sexual orientation, or gender identity are supporting the coach and his right to express his religion at a public school.
“The states … have a unique interest in ensuring that federal courts strike the proper balance between allowing governments to regulate speech affecting a government interest and protecting the free speech rights of public employees,” says a friend-of-the-court brief by 27 states. Among them are Alabama, Florida, and Oklahoma, which have each recently passed laws restricting what educators may discuss in class about race or sexual orientation and gender identity.
Kennedy, 52, was never a full-time employee of the Bremerton district, though his wife worked in human resources for the district. He graduated from Bremerton High School and later served in the Marine Corps for 20 years before taking a civilian job with the nearby Puget Sound Naval Shipyard in 2006.
Kennedy said that he was out running one day wearing a Bremerton High shirt when he ran into the school’s athletic director. Their conversation led to his part-time job on the football coaching staff.
“This was the joy of my life,” Kennedy said in his interview. “I had a full-time job, but coaching was the thing I actually looked forward to getting up and going to do.”
Kennedy took his part-time coaching position in 2008, and he began kneeling in prayer after games, where students would sometimes ask to join him. The coach also sometimes gave motivational speeches that included religious references, and he participated in a tradition of pre-game and post-game prayers in the locker room that predated his arrival.
Kennedy said these activities occurred without incident until September 2015, when the Bremerton superintendent learned about them.
Superintendent Aaron Leavell informed Kennedy that he was free to pray while on the job if it did not interfere with his job responsibilities and if it was “non-demonstrative.” Kennedy essentially complied for about a month, quietly taking a knee and praying after games while students were otherwise occupied. He also ended pre-game prayers in the locker room.
But Kennedy’s lawyers from First Liberty demanded that the district rescind its directive, and the coach announced that he would return to midfield prayers right after the homecoming game on Oct. 16 of that year.
After that game, the district says a “circus” ensued, as Kennedy was joined by a supportive state legislator, students, and spectators who jumped the fence and knocked down cheerleaders and marching band members to join the midfield prayer. In the following days, a Satanist group demanded the same access to the field, and school officials received hate-filled communications from the public.
Kennedy said that he did not encourage students to join him at that game and that it was the opposing team that first gathered around him while his own team was elsewhere on the field singing the fight song.
“I didn’t want this big ruckus going on,” Kennedy said.
Leavell sent the coach another letter, instructing him to stop his prayer practice while “on duty” right after games.
“Any reasonable observer saw a district employee, on the field only by virtue of his employment with the district, still on duty, under the bright lights of the stadium, engaged in what was clearly, given your prior public conduct, overtly religious conduct,” Leavell wrote.
When the coach continued to pray at the end of two more games, the district placed him on administrative leave. Kennedy did not seek the renewal of his year-to-year contract the next season.
Kennedy sued under the First Amendment. When he lost a bid for a preliminary injunction before a federal district court and a panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, he filed an initial appeal with the U.S. Supreme Court.
The high court declined to take up his case at that time, but four justices signed on to an opinion that said they were troubled by the lower courts’ rulings regarding Kennedy’s free speech rights, but that concerns about whether certain facts of the coach’s case had been resolved made it inappropriate to take up his case at that time.
Justice Samuel A. Alito Jr., in the 2019 statement, said “the suggestion that even while off duty, a teacher or coach cannot engage in any outward manifestation of religious faith is remarkable.” Alito’s statement was joined by Justices Clarence Thomas, Neil M. Gorsuch, and Brett M. Kavanaugh.
Kennedy’s case returned to the lower courts for further proceedings, and the federal district court held that the risk of an establishment clause violation because of Kennedy’s religious conduct was the “sole reason” the district suspended the coach. The 9th Circuit panel last year again upheld the district court, and the full 9th Circuit declined to rehear the case amid an exchange of sharp opinions. That teed up the major case the high court will hear next week.
Leavell and other Bremerton school officials declined to be interviewed. In a 2019 court filing, the superintendent said he never had any “negative motivations” toward Kennedy based on religion.
“I tried to create options that would accommodate his desire to pray and asked him on multiple occasions to engage with me to explore options,” Leavell said in that filing. “ I believed it was my job to ensure that the conduct of district employees did not violate the constitutional rights of students and other community members.”
Kennedy called the superintendent “a good friend” and said, “I don’t have the slightest bad feeling toward the school district whatsoever.”
The Kennedys left Bremerton and moved to Pensacola, Fla., two years ago, where the coach’s father-in-law lives and was experiencing health problems. Still, the move prompted the school district to file papers with the Supreme Court suggesting that Kennedy’s case is moot because he could not do the job if he is no longer in the Bremerton area.
Kennedy’s lawyers responded that a simple phone call would have resolved the matter because the coach stands ready to return to Washington state if he wins reinstatement. (The justices will likely explore the issue at oral argument if they are at all concerned the case might be moot.)
“If I get reinstated as a coach, it’s just going to be by myself” praying at the 50-yard line after games, Kennedy said. “That is all this ever was about. And that’s all it ever will be. It’s me giving thanks after a football game. Pretty simple.”