Fact Specific Analysis is Key when Restricting on Employee Expression

Earlier this year, the Ninth Circuit Court of Appeals (“Ninth Circuit”) affirmed a lower court’s decision in Kennedy v. Bremerton School District (9th Cir. 2021) 991 F.3d 1004, holding that a school district’s direction to a high school football coach not to engage in religious conduct through prayer immediately after the game in front of students and spectators did not violate the coach’s First Amendment right to free speech.  On balance, the Ninth Circuit confirmed that allowing the conduct would have risked the school’s violation of the Establishment Clause.  As outlined below, the case outcome was fact-specific and driven by the unique circumstances giving rise to the Coach’s claim.

Kennedy was employed by the Bremerton School District (“BSD”) as a high school football coach from 2008 until 2015.  He was entrusted “to be a coach, mentor and role model for the student athletes.”  Kennedy was a practicing Christian and his religious practices required him to say a “quiet prayer of thanksgiving for player safety, sportsmanship, and spirited competition” immediately after the football game concluded.  Kennedy began engaging in silent prayer at the conclusion of each game during his first coaching season in 2008.  His religious conduct was observed by students, parents, and community members.  During his coaching tenure, students, coaches, and parents from BSD and opposing teams began joining him in prayer at the 50-yard line after each game.  Kennedy’s conduct evolved from his personal silent prayer into prayer speeches with religious content. 

BSD received a report from a parent who was concerned that his student felt compelled to participate in Kennedy’s religious conduct to maintain playing time on the team.  The school principal spoke with Kennedy to remind him of BSD’s Board Policy not to “encourage or discourage a student from engaging in non-disruptive oral or silent prayer or any other form of devotional activity.”  In September 2015, BSD Superintendent issued Kennedy a letter reminding him of BSD’s Board Policy and directing him to separate his religious conduct from student activity to avoid the perception that such religious activity was endorsed by BSD or required to participate in the program.

Kennedy briefly complied with the District’s directive; however, on October 14, 2015, Kennedy informed the District that he would resume his end of game prayers.  Kennedy’s decision to resume his prayers was widely publicized through various forms of media after he solicited support from the community.  At the conclusion of the October 16, 2015 football game, Kennedy was joined by students, coaches, parents, and other attendees who disregarded BSD’s demand to stay off the field so that they could support Kennedy.

On October 23, 2015, BSD sent Kennedy a letter stating that he violated the District’s Board Policy.  BSD was willing to provide accommodations for his religious conduct that would not be perceived as a District endorsement.  Kennedy rejected all accommodation options and continued to engage in end of game prayers.  BSD placed Kennedy on administrative leave and he was not rehired following the expiration of his yearly employment contract.  District coaches and employees were harassed and threatened by those who did not agree with BSD’s decision. 

In August 2016, Kennedy filed suit, asserting his rights were violated under the First Amendment and Title VII of the Civil Rights Act of 1964.  The district court denied an injunction to reinstate Kennedy as a coach and to allow him to pray on the field immediately after each game.  In 2019, the Supreme Court refused to hear Kennedy’s appeal.  Both Kennedy and BSD sought summary judgement from a federal district court and the court ruled in favor of BSD.  Kennedy appealed to the Ninth Circuit.

The district court held, and the Ninth Circuit agreed, that Kennedy spoke as a public employee when he engaged in religious conduct, and his expressions and communications with students on the football field were accessible to Kennedy because of his District employment.  The court distinguished Kennedy’s conduct from that of a teacher who bowed her head in the cafeteria prior to eating a meal, stating that Kennedy insisted that his religious conduct occurred as he stood in the center of the football field immediately following the game as a mentor, motivational speaker, and role model to students who accompanied him.

The Ninth Circuit found a strong inference that Kennedy intended to use the media to engage in public speech in order to inform students and parents about his religious values, which he believed to be in line with his job responsibilities as a role model for students.  The court clarified, however, that its ruling was not meant to suggest or imply that a teacher or coach cannot participate in any outward demonstrative religious activities while off duty. 

The Ninth Circuit found that if BSD did not stop Kennedy from engaging in prayer, an objective observer would have perceived BSD as endorsing religion, and specifically Kennedy’s religion, which could give rise to an Establishment Clause claim.  BSD repeatedly offered to work with Kennedy in good faith to accommodate his religious practices; however, Kennedy refused to cooperate and BSD could not accommodate him without undue hardship because doing so would violate the Establishment Clause.  The Ninth Circuit concluded that, after a full analysis of Kennedy’s evolution of his prayer practices from a silent prayer to a demonstration in front of students and parents, his failure to stop students from joining him after he was informed of District Board Policy, and his efforts to solicit community support through the media, BSD’s treatment towards Kennedy was supported by law.

This case supports the requirement that districts engage in fact-specific analysis when restricting employee conduct, and, when necessary engage in the interactive process with employees to provide accommodations. 

This AALRR post is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process. 

© 2021 Atkinson, Andelson, Loya, Ruud & Romo

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