Supreme Court Hauls in Coach’s First Amendment Hail Mary
Some of you may recall Three Point Shot’s coverage in March 2018 of a public high school football coach in Washington state who was put on paid administrative leave in 2015 for continuing his practice of kneeling at midfield and bowing his head for a postgame prayer that others might voluntarily join. At that time, we reported on the Ninth Circuit’s denial of the suspended coach Joseph Kennedy’s (“Kennedy”) bid for an en banc rehearing following the appeals court’s affirmance of the dismissal of his First Amendment claims and the denial of his injunction request to restore him to his coaching position. As we hinted then, Kennedy, in fact, pushed his case into overtime and threw a Hail Mary pass to the Supreme Court. On June 27, 2022, Justice Neil Gorsuch caught the pass in the end zone and wrote the opinion that reversed the Ninth Circuit ruling in a 6-3 vote. In short, the Gorsuch opinion concluded that the public school district had violated the coach’s First Amendment rights when it censored his religious observance. (Kennedy v. Bremerton Sch. Dist., 597 U.S. ___, No. 21-418 (June 27, 2022)).
There is nothing quite like high school football. For well over a century, the sport has been a feel-good staple in American culture, inspiring nationally beloved films like Remember the Titans, Friday Night Lights, and Varsity Blues. What makes it so special goes well beyond the X’s and O’s. The real charm comes from its unrefined simplicity – not just during the games but also in the hours that come before and after – that usually is not replicable in a big-time college or professional setting. Yet to be exposed to the pressures of scholarships, salaries, and sponsorships, high school football is about school and community pride, and a motley team comprised of stars and supporting players.. It is about playing alongside friends and classmates, many of whom have known each other since kindergarten. It is about getting that varsity letter and competing against rival townships in front of the locals.
The field at the conclusion of each game is a hodgepodge of unhindered emotions (e.g., student-athletes and coaches coming together to celebrate their victory or commiserate their defeat), mixed with a jumble of other personal engagements (e.g., greeting friends and families in the stands, making dinner plans, and checking emails). The question at hand in the Kennedy case was whether a coach’s private midfield prayer – sometimes surrounded by players and other members of the community – was an appropriate part of this beloved collage. Legally speaking, the case highlighted a tension in the First Amendment between a public school coach’s Free Exercise right to religious expression and the school’s right to restrict that expression when it believed the coach’s conduct was an endorsement of religion by the District and a violation of the Establishment Clause. Are the two clauses in conflict? Which constitutional clause should prevail? In the instance of a public high school football coach reciting postgame prayers on the field (with no evidence of any coercion forcing students to participate), the Supreme Court confirmed that the Establishment Clause must give way to the Free Exercise and Free Speech Clauses.
Joseph Kennedy, a practicing Christian and former Marine, was a junior varsity head coach and varsity assistant coach at Bremerton High School from 2008 to 2015. Bremerton High School is a public high school in the Bremerton School District (the “District”) of Kitsap County, Washington. During his tenure, Kennedy began a ritual of his own wherein he knelt in the center of the field for approximately 30 seconds immediately after each game to give thanks for the student-athletes’ accomplishments. According to news reports, his prayers would sound something like “Lord, I thank you for these kids and the blessing you’ve given me with them. We believe in the game, we believe in competition and we can come into it as rivals and leave as brothers.” Early on, his practice was eventually joined by the majority of his football team – although participation was not expressly compelled – and sometimes evolved into motivational speeches that involved religious themes.
Concerned about these religious observances’ potential infringement of the Establishment Clause separating church and state, in September 2015 the District wrote to Kennedy and requested that he discontinue the practice to protect the school from an Establishment Clause lawsuit. Kennedy eventually stopped his postgame prayers (and certain other activities that included pregame prayer in the locker room). Soon after, however, in October 2015, feeling conflicted about his faith and the values he fought for as a Marine, the coach resumed his postgame midfield prayers. In response, the District pulled Kennedy from his coaching duties and placed him on paid administrative leave until the expiration of his contract, and thereafter declined to rehire him.
In his 2016 complaint, Kennedy brought claims against the District for, among others, violation of his constitutional rights under the First Amendment. He argued that the municipality unlawfully stifled his constitutional rights to religious exercise and free speech as a private citizen. When he moved for a preliminary injunction, which would have reinstated him to his former position and allowed him to continue his on-field postgame prayers, both the district court and the appeals court rejected his claims.
Upon further fact-finding, the Washington district court finally awarded summary judgment in favor of the District in 2020. First, the court confirmed that Kennedy spoke as a public employee, and not as a private citizen, when giving his postgame prayers. As the court explained, a public school teacher necessarily acts as a public employee when 1) at school or a school function; 2) in the general presence of students; 3) in a capacity one might reasonably view as official. The district court found Kennedy’s conduct to easily meet all three of these conditions, as his religious observance was done on the “expressive focal point,” the 50-yard line of the school football field, which is comparable to the front of a classroom, in plain view of students and parents, immediately after the games of the team he coaches. Second, the lower court found the suspension of the praying coach to be adequately justified. Sans the suspension, the District would not have been able to avoid the “appearance of government sponsorship of religion.” The lower court decision was again upheld by the Ninth Circuit in 2021. Just as in 2018, the District had maintained its lead.
In his desperate final attempt for a comeback, Kennedy threw his Hail Mary and, to the surprise of some, the Court, in a 6-3 opinion written by Justice Gorsuch, received the last-second pass, and overturned the Ninth Circuit ruling. The high court concluded that the public school coach’s prayer at the completion of school sports activities was a constitutionally protected exercise and did not violate the Establishment Clause. As an initial matter, the Court looked at whether the postgame prayers were speech pursuant to the coach’s official duties, or merely private speech by a citizen. According to the majority, the postgame period when Kennedy knelt for his prayers was effectively a brief pause in his duties during which he was free to engage in all manner of private speech and activities – “everything from checking sports scores on [his] phone to greeting friends and family in the stands.” Because there was no expectation of the coach to fulfill his official responsibilities during this period, the majority held that Kennedy spoke as a private citizen rather than a public employee acting within the scope of his duties when the prayers took place. Thus, he was “free to engage in all manner of private speech.” In rejecting the District’s argument that Kennedy’s suspension was necessary to avoid an Establishment Clause violation, the Court stressed that Kennedy’s “private religious exercise did not come close to crossing any line one might imagine separating protected private expression from impermissible government coercion,” as there was no evidence that students were directly coerced into participating. The majority also noted that the Free Exercise and Establishment Clauses have “complementary purposes, not warring ones,” and, in this instance, the Establishment Clause did not compel the government to “purge from the public sphere” the postgame religious behavior. The Court noted that even if onlookers witnessed the coach’s prayers, “learning how to tolerate speech or prayers of all kinds is ‘part of learning how to live in a pluralistic society’….”
If this dispute were the high school football state championships, it would have received record-smashing attention. After six years of courtroom drama, the game clock has finally run out with Coach Kennedy, perhaps surprisingly, on top.