S. Ct. Agrees to Hear Free Exercise Clause / Public High School Coach Prayer Case

The Petition for Certiorari is available in this case Kennedy v. Bremerton School Dist. For the following opinions, click here and here

Joseph Kennedy was fired as the football coach of a public high-school after he began to kneel and pray by himself in midfield following the end of a game. Four members of this Court considered Kennedy’s interlocutory petition, in which he sought to review the refusal of lower courts to grant him a preliminary order of injunction. They noted that the Ninth Circuit’s interpretation of free speech rights for public school teachers was troubling. However, they concluded that the Court should not intervene until lower courts had determined why Kennedy was fired.

Kennedy was also mentioned in the statement as having a claim that had not been addressed under the Free Exercise Clause. On remand, the lower courts found—and the school district ultimately agreed—that Kennedy lost his job solely because of his religious expression. The Ninth Circuit ruled again against Kennedy. Not only did the court double down on the “troubling free-speech reasoning,” which makes almost all speech from public-school workers into speech that is not protected under the First Amendment, but it also reached the astonishing conclusion that Kennedy’s prayer, while private speech, was still subject to the Free Speech Clause and Free Exercise Clauses. However, the Establishment Clause required Kennedy’s suppression. Over the objections of eleven judges, the court refused en banc review.

Here are the questions:

1. If a school employee says a quiet prayer in his absence while on duty, it is engaging in speech government doesn’t protect.

2. The Establishment Clause compels schools to ban such religious expressions regardless of whether they are protected by the Free Speech or Free Exercise Clauses.

Here’s the 2019 (pre-Justice-Barrett) statement by Justice Alito, joined by Justices Thomas, Gorsuch, and Kavanaugh:

Joseph Kennedy is the petitioner. He claims that he was fired as the football coach of a public school high school after engaging in conduct which was not protected by the First Amendment. The petitioner sought to obtain a preliminary order that would allow him two kinds of relief. He requested (1) a restoration of his job, and (2) an order for the school to allow him silence to pray at the 50 yard line following each football match. The latter request appears to depend on petitioner’s entitlement to the first — to renewed employment — since it seems that the school would not permit members of the general public to access the 50-yard line at the relevant time.

It is important to determine whether petitioner proved that he could prevail in his claim that his termination from his job violated his freedom of speech rights. To answer this question we need to know what evidence he can prove about the grounds for school’s actions. This second question has a complicated answer.

Petitioner was notified by the superintendent on October 23, 2015 that petitioner had been found to have behaved in unacceptable manner at the last football game. In that letter the superintendent offered two reasons. First, petitioner had failed to follow his duty to monitor what players were doing after the game. Second, petitioner’s behavior would make it appear that the district endorses religion. He had been praying while on the field under game lights in BHS-logoed clothing, and in front of a large audience.

Petitioner kneeled down on the football field again after two more games. After this, the superintendent sent a letter to petitioner informing him that the program was ending and that he would be placed on administrative leave. In his October 23 letter, the superintendent reiterated two of the reasons he had given. The district also elaborated on the two reasons it used in its October 23 letter.

The District Court should have given a clear finding regarding what the petitioner could prove about the reasons for his job loss. If the likely reason was simply petitioner’s neglect of his duties — if, for example, he was supposed to have been actively supervising the players after they had left the field but instead left them unsupervised while he prayed on his own — his free speech claim would likely fail. It would be irrelevant that petitioner was praying, and not engaging in private activities at that moment.

His free speech claim, on the other hand would be far more weighted if petitioner could prove either that he wasn’t really on duty during the incident or that he only was on duty in the sense that his day had not ended. Also, that petitioner was likely able to show that prayer was held at a time where it would have been permitted for him to conduct some private business, such as making dinner reservations at local restaurants or calling home.

Unfortunately, the District Court’s brief, informal oral decision did not make any clear finding about what petitioner was likely to be able to prove…. The decision of the Ninth Circuit was even more imprecise on this critical point…. Although petitioner’s claim for free speech may eventually implicate fundamental constitutional issues, it is impossible to reach these issues until we have resolved the facts about the probable reason that the school district behaved in this way. For that reason, review of petitioner’s free speech claim is not warranted at this time….

Although I concur with the denial, my concern about the Ninth Circuit’s interpretation of free speech rights for public school teachers may warrant review.

We are able to apply our decision to the Ninth Circuit. Garcetti v. Ceballos (2006), to public school teachers and coaches in a highly tendentious way. The Ninth Circuit states that public school coaches and teachers can be fired for engaging in unprofessional behavior while on duty. It appears that teachers and coaches are considered on duty from the time they report to work until they leave, as long as they’re not visible to students.

According to this interpretation, GarcettiIf teachers see students while they are eating lunch, the school can order them to refrain from engaging in “demonstrative” religious conduct, like bowing their heads or folding their hands in prayer. A school can also restrict what teachers say or read during non-teaching periods by prohibiting them from being seen by students.

It is certain that this Court has not read anything. GarcettiTo go this far. You can do it! GarcettiA public employer may regulate the speech of its employees. However, we warn that it is against the law that an employer converts private speech into public speech by creating too many job descriptions. …

What is perhaps most troubling about the Ninth Circuit’s opinion is language that can be understood to mean that a coach’s duty to serve as a good role model requires the coach to refrain from any manifestation of religious faith — even when the coach is plainly not on duty. While I do not believe this was intended, the Ninth Circuit’s opinion could be read in the same way. While emphasizing the fact that petitioner was being paid to communicate a positive message by the example he sets, the court criticised his media appearances and prayers in BHS bleachers while surrounded and dressed in BHS attire. In the Ninth Circuit’s opinion, this behavior “signalizes”[ed]He wanted to convey to his students and parents that he is a good coach and has a positive attitude.

He was then suspended for praying in the bleachers. As any other spectator, he was at the game as every other. The suggestion that even while off duty, a teacher or coach cannot engage in any outward manifestation of religious faith is remarkable….

Although the petition is solely based on the Free Speech Clause of Amendment, the petitioner has still live rights under Title VII of Civil Rights Act of 1964 and the Free Exercise Clause of Amendment. The Court may have made certain decisions that petitioner chose to focus primarily upon his freedom speech claims and not on these other claims.

Employment Div. Dept. of Human Resources of Ore. (1990), the Court drastically cut back on the protection provided by the Free Exercise Clause, and in Trans World Airlines, Inc.The Court held that Title VII’s ban on discrimination on religion grounds does not require employers to provide accommodation exceeding a minimal burden. We haven’t been asked to review those decisions in this case.

The Title VII question is in the present question on which the Supreme Court just granted review. However, the Free Exercise Clause is the issue. Although the petition appears to be calling for the application of existing Free Exercise Clause principles and not for reverse engineering the situation, Smith.