Former Coach Joe Kennedy Loses Bremerton School District Lawsuit

Joe Kennedy Bremerton High School lawsuit
Photo: Michaela Roman / Kitsap Sun

Former Bremerton High School assistant football Coach Joe Kennedy lost his lawsuit today as the Ninth Circuit Court of Appeals declined his request for an injunction allowing him to return to the school and resume proselytizing his Christian beliefs to football players.

The lawsuit arose from a conflict that began when the embattled Washington state high school decided not to renew Kennedy’s contract after repeatedly instructing him to stop engaging in prayer with students on the school’s football field before, during or after games.

Regarding the lawsuit, we wrote last year:

After violating federal law and school policy by leading prayer with students, former assistant football Coach Joe Kennedy was suspended and later terminated by Bremerton High School for violating the Establishment Clause in using his taxpayer-funded educational position to promote religion among students. At the end of 2015 Kennedy filed a complaint with the EEOC that later issued him a “right to sue” letter. Based on that, the former coach just filed a lawsuit in the U.S. District Court against Bremerton School District in Washington claiming the school district violated his First Amendment rights. He’s seeking to return to his position in order to continue proselytizing Christianity to students.

As we explained last year, prayer led by teachers, school staff and especially coaches in front of students can never be considered voluntary as the act has a coercive effect on students by pressuring them to comply, conform and participate or potentially face consequences from their peers in the form of harassment and often consequences from their educational role model figures.

As has been documented in countless cases, students are compelled by the role model figure to participate whether they want to or not lest they suffer the wrath not only of their peers but potentially that role model or the Christian community at large. Many examples exist in which families who do speak out and are harassed, attacked and eventually (literally) run out of town.

Additionally, the Bremerton School District had an existing regulation on their books noting the federal law concerning religious endorsement and as a condition of his employment Kennedy agreed not to violate it. He chose to willingly violate that covenant when he prayed and the school acted in accordance with policy and suspended him from his role. Shortly thereafter his contract was not renewed as his continued violations of school policy and federal law presented too much liability to the school district.

Kennedy filed the lawsuit in late 2016 alleging the school violated his First Amendment religious freedom rights. The lawsuit stated in part, “This case is about Coach Kennedy’s right to pray quietly and alone at the conclusion of BHS football games, and to do so on the field where the game was played.” It added, ”Coach Kennedy’s sincerely held religious beliefs compel this brief, private religious expression.”

Note the use of the phrase “sincerely held religious beliefs” as that’s been the key phrase used by every ‘religious freedom’ lawsuit filed in the last few years where a business or individual is seeking exemptions to existing law whether to violate the Establishment Clause or to discriminate against others.

The three judge Ninth Circuit panel saw right through Kennedy’s lawsuit (as we predicted). The decision said in part:

The panel held that plaintiff 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 held that plaintiff 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. The panel held that because plaintiff’s demonstrative speech fell within the scope of his typical job responsibilities, he spoke as a public employee, and the district was permitted to order him not to speak in the manner that he did. Plaintiff accordingly could not show a likelihood of success on the merits of his First Amendment retaliation claim, and was not entitled to a preliminary injunction.

The entire decision is rather damning as it points out not only that Kennedy obviously acted as a public school employee, but turned down accommodations that would have allowed him to continue praying without a captive student audience.

At one point Judge Milan D. Smith Jr. concluded:

Before undertaking our analysis, two critical points deserve attention. First, the relevant “speech at issue” involves kneeling and praying on the fifty-yard line immediately after games while in view of students and parents. See Lane, 134 S. Ct. at 2379. It is not, as Kennedy contends, praying on the fifty-yard line “silently and alone.” We know this because Kennedy was offered (and, for a time, accepted) an accommodation permitting him to pray on the fifty-yard line after the stadium had emptied and students had been released to the custody of their parents. His refusal of that accommodation indicates that it is essential that his speech be delivered in the presence of students and spectators. Second, for the same reason, the “speech at issue” is directed at least in part to the students and surrounding spectators; it is not solely speech directed to God. Hence, the question under the second Eng factor is whether this demonstrative communication to students and spectators “is itself ordinarily within the scope of [Kennedy’s] duties.”

[Emphasis Mine]

The refusal of that accommodation may have been one of the final nails that sealed the case against Kennedy’s lawsuit.

Not surprisingly, Kennedy’s legal counsel was unhappy about the decision. “By refusing to allow any public displays, the Ninth Circuit Court of Appeals is effectively saying it is unconstitutional for a coach to make the sign of the cross or bow his head in prayer when a player is hurt,” Jeremy Dys, deputy general counsel for First Liberty, told the Kitsap Sun. “That is not the America contemplated by our Constitution.”

The problem with that statement is the evolution not only of jurisprudence but of the nation. When the Constitution was written the founders had no way of knowing Christianity would become such a dominating, discriminating force in the public domain across the nation. They did know having gone through the exercises of breaking free from another country that religious liberty was crucial, but that having the state (as in the government) endorse or force any one belief would make us just as bad as militant theocracies in the third world.

They struck a balance between individual religious freedom and the establishment of religion by the state. Case law and constitutional amendments thereafter molded and shaped that balance – including case law explicitly pertaining to school officials (including coaches) engaging in religious prayer in front of students.

This case has been repeatedly decided by district courts as well as the U.S. Supreme Court, so it comes as no surprise the Ninth Circuit ruled the way they did.

Commenting on the ruling, Americans United legal director Richard B. Katskee said, “Teachers and coaches don’t get to pressure students to pray.” He added, “Students and families have the right to decide whether and how to practice their faith. Public schools should be welcoming places for all students and families, and no student should feel like an outsider at his or her school.”

You can read the full decision here.

Kennedy still has a few options though they’re unlikely to succeed. He may seek an en banc hearing before the full Ninth Circuit (which can be refused) or he can appeal to the Supreme Court. In either case, it’s at the discretion of the courts to take the case and given the substantial case history supporting this decision, neither is likely to occur.

Previously:

Tim Peacock is the Managing Editor and founder of Peacock Panache and has worked as a civil rights advocate for over twenty years. During that time he's worn several hats including leading on campus LGBT advocacy in the University of Missouri campus system, interning with the Colorado Civil Rights Division, and volunteering at advocacy organizations. You can learn more about him at his personal website.

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