Second Down: Supreme Court Takes Football Coach’s Appeal

On January 14, 2022, the Supreme Court announced that it would hear Kennedy v. Bremerton School District, the ongoing case of a high school football assistant coach who was disciplined after he insisted on kneeling and praying on the fifty-yard line immediately following football games, in full view of (and eventually joined by) students and parents.  This case has actually been to the Supreme Court twice:  after the lower court initially denied a request for injunctive relief in 2016 and the denial was upheld by the Ninth Circuit Court of Appeals, the Supreme Court declined to hear the appeal at that time. The case then went back down to the lower court, which granted summary judgment for the school district, and the Ninth Circuit again upheld the lower court’s decision.  See Kennedy v. Bremerton Sch. Dist., 991 F.3d 1004 (9th Cir. 2021). This time, however, the Supreme Court seems interested in taking a look at Coach Kennedy’s long and strange story.

That the Supreme Court decided to hear this case is actually not all that surprising: the current majority of the Court is very protective of individual free speech/free exercise rights, and they have already issued several decisions – such as Trinity Lutheran Church v. Comer and Espinoza v. Montana Department of Revenue – that arguably elevated the individual’s right to engage in religious speech over the government’s responsibilities under the Establishment Clause to maintain the separation between religion and the state.  Coach Kennedy has consistently maintained that his act of praying on the field was his own personal speech, so the Ninth Circuit’s conclusion that “Kennedy spoke as a public employee when he kneeled and prayed on the fifty-yard line immediately after games while in view of students and parents” clearly sets up the public/private speech dichotomy that the current Court seems to find so fascinating.

But the peculiar facts of Kennedy may ultimately make this a hard case to derive too many bright line rules from (and we know from Mahanoy that the current Court is not shy about overturning lower court First Amendment decisions without providing much guidance in return).  Both the majority opinion and the concurring opinion focused heavily on the fact that after the school initially directed Coach Kennedy to stop praying on the field right after games, at a time when the dispute between the two parties was still relatively private, Coach Kennedy clearly chose to aggressively and dramatically publicize his dispute with his school in the media, leading to significant media coverage of later football games; students, parents, and even a state representative attempting to join him on the field (which was never open to use by the general public) when he prayed; and the District “was flooded with thousands of emails, letters, and phone calls from around the country….many of which were hateful or threatening.”  The head football coach, after being verbally assaulted by a complete stranger, became so concerned about his personal safety that he decided to resign.

A Satanist group actually contacted the school district and said that if other outside groups were getting to use the football field, then they wanted to conduct ceremonies on the field as well.  The Satanist group actually came to one of the games, but decided not to go onto the field after learning that the police were there to secure the field.  Which vividly demonstrates an important point: the only reason Coach Kennedy had access to the center of the football field right after the game to at least begin his prayers was because he was an employee of the school district and was already on the field.  There was no evidence in the record that any other outside groups had ever been allowed to use the football fields for “private” activities.

In light of the overwhelming public nature of the dispute that Coach Kennedy had caused, the Ninth Circuit concluded that the school had no choice to but to prohibit the prayers, or risk being seen as endorsing them and thus violating the Establishment Clause.  As the concurring judge put it best:

The sequence of events leading up to BSD’s decision to place Kennedy on paid administrative leave painted BSD into a corner because an objective observer would have perceived the school’s endorsement if Kennedy had been allowed to continue praying at midfield. BSD had a compelling interest in avoiding an Establishment Clause violation, and the district court correctly ruled BSD’s adverse employment action was narrowly tailored to advance that interest.

Id. at 1025 (Christen, J, concurring) (internal citations omitted).

In addition, the Court also focused on the fact that over several weeks, the school had offered Coach Kennedy a number of potential accommodations that would have allowed him to pray in a manner that the school felt would not be perceived as District endorsement:

To that end, it suggested that “a private location within the school building, athletic facility or press box could be made available to [Kennedy] for brief religious exercise before and after games.” Kennedy, of course, could also pray on the fifty-yard line after the stadium had emptied….

Id. at 1013. According to the Court, Coach Kennedy’s only response “was informing the media that the only acceptable outcome would be for BSD to permit Kennedy to pray on the fifth-yard line immediately after games.”  Id. (emphasis added). Because Coach Kennedy did not meaningfully engage the school in reasonable accommodation discussions, the Court rejected his free exercise and failure to accommodate claims.

Kennedy v. Bremerton School District is a significant case to watch.  A decision for the football coach could have a significant impact on many public school First Amendment issues that have long been considered “resolved,” such as prayer at graduation ceremonies or football games.  We will keep you updated as this case makes its way through the Supreme Court.