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Kennedy v. Bremerton School District

United States Court of Appeals, Ninth Circuit

August 23, 2017

Joseph A. Kennedy, Plaintiff-Appellant,
v.
Bremerton School District, Defendant-Appellee.

          Argued and Submitted June 12, 2017 Seattle, Washington

         Appeal from the United States District Court for the Western District of Washington No. 3:16-cv-05694-RBL, Ronald B. Leighton, District Judge, Presiding

          Rebekah Ricketts (argued) and Benjamin D. Wilson, Gibson Dunn & Crutcher LLP, Dallas, Texas; Daniel S.J. Nowicki, Gibson Dunn & Crutcher LLP, Palo Alto, California; Jeffrey Paul Helsdon, Oldfield & Helsdon PLLC, Fircrest, Washington; Hiram Sasser and Michael Berry, First Liberty Institute, Plano, Texas; Anthony J. Ferate, Ferate PLLC, Edmond, Oklahoma; for Plaintiff-Appellant.

          Michael B. Tierney (argued) and Paul Correa, Tierney & Blakney P.C., Seattle, Washington, for Defendant-Appellee.

          Andrew L. Nellis (argued) and Richard B. Katskee, Americans United for Separation of Church and State, Washington, D.C.; David L. Barkey, Anti-Defamation League, Boca Raton, Florida; Jeffrey I. Pasek, Cozen O'Connor, New York, New York; for Amici Curiae Americans United for the Separation of Church and State; The Anti-Defamation League; Central Conference of American Rabbis; Disciples Justice Action Network of the Christian Church (Disciples of Christ); Equal Partners in Faith; Hadassah, the Women's Zionist Organization of America, Inc.; Hindu American Foundation; The Interfaith Alliance; Jewish Social Policy Action Network; People for the American Way Foundation; Union for Reform Judaism; and Women of Reform Judaism.

          Gerald J. Russello and Daniel A. McLaughlin, Sidley Austin LLP, New York, New York; Collin P. Wedel, Sidley Austin LLP, Los Angeles, California; Christopher R. Mills, Sidley Austin LLP, Washington, D.C.; for Amicus Curiae Former Professional Football Players Steve Largent and Chad Hennings.

          Justin D. Park, Bellevue, Washington, for Amicus Curiae Garfield High School Coaches Kellen Alley and Joseph Thomas.

          Before: DOROTHY W. NELSON, MILAN D. SMITH, JR., and MORGAN CHRISTEN, Circuit Judges.

          SUMMARY[*]

         Civil Rights

         The panel affirmed the district court's denial of preliminary injunctive relief in an action brought by a high school coach who alleged that his school district retaliated against him for exercising his First Amendment rights when it suspended him for kneeling and praying on the football field's fifty-yard line in view of students and parents immediately after high school football games.

         Plaintiff sought an injunction ordering the school district to (1) cease discriminating against him in violation of the First Amendment, (2) reinstate him as a football coach, and (3) allow him to kneel and pray on the fifty-yard line immediately after high school football games.

         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.

         Specially concurring, Judge M. Smith wrote separately to share his view that the school district's action were also justified to avoid violating the Establishment Clause.

          OPINION

          Milan D. Smith, Circuit Judge

         Bremerton High School (BHS) football coach Joseph A. Kennedy appeals from the district court's order denying his motion for a preliminary injunction that would require Bremerton School District (BSD or the District) to allow Kennedy to kneel and pray on the fifty-yard line in view of students and parents immediately after BHS football games. We affirm.

         FACTUAL AND PROCEDURAL BACKGROUND

         A. Bremerton School District

         BSD is located in Kitsap County, Washington, across the Puget Sound from Seattle. The District is home to approximately 5, 057 students, 332 teachers, and 400 non-teaching personnel. BSD is religiously diverse. Students and families practice, among other beliefs, Judaism, Islam, the Bahá'í faith, Buddhism, Hinduism, and Zoroastrianism.

         BSD employed Kennedy as a football coach at Bremerton High School from 2008 to 2015. Kennedy served as an assistant coach for the varsity football team and also as the head coach for the junior varsity football team. Kennedy's contract expired at the end of each football season. It provided that BSD "entrusted" Kennedy "to be a coach, mentor and role model for the student athletes." Kennedy further agreed to "exhibit sportsmanlike conduct at all times, " and acknowledged that, as a football coach, he was "constantly being observed by others."

         Kennedy's formal job description required him to assist the head coach with "supervisory responsibilities, " "[a]dhere to Bremerton School District policies and administrative regulations, " "communicate effectively" with parents, "maintain positive media relations, " and "[o]bey all the Rules of Conduct before players and the public as expected of a Head Coach, " including the requirement to "use proper conduct before the public and players at all times." Consistent with his responsibility to serve as a role model, Kennedy's contract required that, "[a]bove all" else, Kennedy would endeavor not only "to create good athletes, " but also "good human beings."

         B. Kennedy's Religious Beliefs and Past Practices

         Kennedy is a practicing Christian. Between 2008 and 2015, he led students and coaching staff in a locker-room prayer prior to most games. He also participated in prayers that took place in the locker room after the games had ended. Kennedy insists these activities predated his involvement with the program, and were engaged in as a matter of school tradition. His religious beliefs do not require him to lead any prayer before or after BHS football games.

         Kennedy's religious beliefs do require him to give thanks through prayer at the end of each game for the players' accomplishments and the opportunity to be a part of their lives through football. Specifically, "[a]fter the game is over, and after the players and coaches from both teams have met to shake hands at midfield, " Kennedy feels called to "take a knee at the 50-yard line and offer a brief, quiet prayer of thanksgiving for player safety, sportsmanship, and spirited competition." Kennedy's prayer usually lasts about thirty seconds. He wears a shirt or jacket bearing a BHS logo when he prays at midfield. Because his "prayer lifts up the players and recognizes their hard work and sportsmanship during the game, " Kennedy's religious beliefs require him to pray on the actual field where the game was played.

         Kennedy began performing these prayers when he first started working at BHS. At the outset, he prayed alone. Several games into his first season, however, a group of BHS players asked Kennedy whether they could join him. "This is a free country, " Kennedy replied, "You can do what you want." Hearing that response, the students elected to join him. Over time, the group grew to include the majority of the team. Sometimes the BHS players even invited the opposing team to join.

         Eventually, Kennedy's religious practice evolved to something more than his original prayer. He began giving short motivational speeches at midfield after the games. Students, coaches, and other attendees from both teams were invited to participate. During the speeches, the participants kneeled around Kennedy, who raised a helmet from each team and delivered a message containing religious content. Kennedy subsequently acknowledged that these motivational speeches likely constituted prayers.

         C. The September 17, 2015, Letter from BSD to Kennedy

         The District first learned that Kennedy was leading locker-room prayers and praying on the field in September 2015, when an employee of another school district mentioned the post-game prayers to a BSD administrator.[1]The discovery prompted an inquiry into whether Kennedy was complying with the school board's policy on "Religious-Related Activities and Practices." Pursuant to that policy, "[a]s a matter of individual liberty, a student may of his/her own volition engage in private, non-disruptive prayer at any time not in conflict with learning activities." In addition, "[s]chool staff shall neither encourage nor discourage a student from engaging in non-disruptive oral or silent prayer or any other form of devotional activity."

         Kennedy was candid and cooperative throughout the District's inquiry. The investigation revealed that coaching staff had received little training regarding the District's policy. Accordingly, BSD Superintendent Aaron Leavell sent Kennedy a letter on September 17, 2015, to clarify the District's prospective expectations.

         Leavell explained that Kennedy's two practices were "problematic" under the Establishment Clause, but he acknowledged that they were well-intentioned and that Kennedy had "not actively encouraged, or required, [student] participation." Leavell advised Kennedy that he could continue to give inspirational talks, but "[t]hey must remain entirely secular in nature, so as to avoid alienation of any team member." He further advised that "[s]tudent religious activity must be entirely and genuinely student-initiated, and may not be suggested, encouraged (or discouraged), or supervised by any District staff." Leavell further counseled Kennedy that "[i]f students engage in religious activity, school staff may not take any action likely to be perceived by a reasonable observer, who is aware of the history and context of such activity at BHS, as endorsement of that activity." Lastly, Leavell stressed that Kennedy was

free to engage in religious activity, including prayer, so long as it does not interfere with job responsibilities. Such activity must be physically separate from any student activity, and students may not be allowed to join such activity. In order to avoid the perception of endorsement discussed above, such activity should either be non-demonstrative (i.e., not outwardly discernible as religious activity) if students are also engaged in religious conduct, or it should occur while students are not engaging in such conduct.

         D. Kennedy Responds via an October 14th Letter

         By this point, Kennedy's prayers had "generated substantial publicity." Comments on social media led the District to be concerned that BHS would not be able to secure its field after the September 18, 2015, game, assuming-as it suspected-that a crowd would come down from the stands to join Kennedy's on-field prayer. The District was "not able to prevent that from happening" based on the state of its preparations, and it decided that it would not "prevent access to the field at that point." On the day of the game, the school's concerns were not realized, however, because after receiving the District's letter, Kennedy temporarily stopped praying on the field while students were around. Instead, after the September 18th game, Kennedy gave a short motivational speech "that included no mention of religion or faith." Then, once "everyone else had left the stadium, " he walked to the fifty-yard line, knelt, and prayed alone.

         After complying in this manner for several weeks, Kennedy wrote the District through his lawyer on October 14, 2015. He requested a religious accommodation under the Civil Rights Act of 1964 that would allow him to "continue his practice of saying a private, post-game prayer at the 50-yard line" immediately following BHS football games. The letter opined that Kennedy's religious expression occurred during "non-instructional hours" because, according to Kennedy, "his official coaching duties ceased" after the games had ended. The letter also acknowledged that Kennedy's prayers were "audibl[e], " but stressed that "he does not pray in the name of a specific religion, " and "neither requests, encourages, nor discourages students from participating in" his prayer. Lastly, the letter announced that Kennedy would resume praying on the fifty-yard line at the October 16, 2015, game.

         Kennedy's intention to pray on the field following the October 16th game "was widely publicized, including through [Kennedy's] own media appearances." On the day of the game, the District had not yet responded to Kennedy's letter, but Kennedy nonetheless proceeded as he had indicated. Once the final whistle blew, Kennedy shook hands with the opposing team and waited until most of the BHS players were singing the fight song to the audience in the stands. Then, he knelt on the fifty-yard line, bowed his head, closed his eyes, "and prayed a brief, silent prayer." According to Kennedy, while he was kneeling with his eyes closed, "coaches and players from the opposing team, as well as members of the general public and media, spontaneously joined [him] on the field and knelt beside [him]." In the days after the game, pictures were "published in various media" depicting Kennedy praying while surrounded by players and members of the public.

         The District maintains that while Kennedy was walking to the fifty-yard line, "[t]here were people jumping the fence and others running among the cheerleaders, band[, ] and players." Afterwards, "the District received complaints from parents of band members who were knocked over in the rush of spectators on to the field." Sometime after the game, members of a Satanist religion contacted the District and said they "intended to conduct ceremonies on the field after football games if others were allowed to." Ultimately, the District made arrangements with the Bremerton Police Department to secure the field after games, then posted signs, made "robocalls" to District parents, and "otherwise put the word out to the public that there would be no [future] access to the field." Representatives of the Satanist religion showed up at the next game, "but they did not enter the stands or go on the field after learning that the field would be secured."[2]

          E. The District's October 23rd and October 28th Letters

         Leavell sent Kennedy a second letter on October 23, 2015. He thanked Kennedy for his "efforts to comply with the September 17 directives." Still, he explained that Kennedy's conduct at the game on October 16th was inconsistent with the District's requirements. Leavell emphasized "that the District does not prohibit prayer or other religious exercise by employees while on the job, " but "such exercise must not interfere with the performance of job responsibilities, and must not lead to a perception of District endorsement of religion."

         According to the District, Kennedy had not met those requirements because "paid assistant coaches in District athletic programs are responsible for supervision of students not only prior to and during the course of games, but also during the activities following games and until players are released to their parents or otherwise allowed to leave." (emphasis added). The District confirmed with Kennedy's head coach "that for over ten years, all assistant coaches have had assigned duties both before and after each game and have been expected to remain with the team until the last student has left the event." Thus, the District told Kennedy,

[W]hen you engaged in religious exercise immediately following the game on October 16, you were still on duty for the District. You were at the event, and on the field, under the game lights, in BHS-logoed attire, in front of an audience of event attendees, solely by virtue of your employment by the District.
The field is not an open forum to which members of the public are invited following completion of games; but even if it were, you continued to have job responsibilities, including the supervision of players. While [BSD] understand[s] that your religious exercise was fleeting, it nevertheless drew you away from your work. More importantly, any reasonable observer saw a District employee, on the field only by virtue of his employment with the District, still on duty, under the bright lights of the stadium, engaged in what was clearly, given your prior public conduct, overtly religious conduct.[3]

         The District reiterated that it "can and will" accommodate "religious exercise that would not be perceived as District endorsement, and which does not otherwise interfere with the performance of job duties." 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 resume his prior practice of praying on the fifty-yard line after the stadium had emptied. Because the "[d]evelopment of accommodations is an interactive process, " the District invited Kennedy to offer his own suggestions. The District also reminded Kennedy that "[w]hile on duty for the District as an assistant coach, you may not engage in demonstrative religious activity, readily observable to (if not intended to be observed by) students and the attending public."

         F. Kennedy Continues Praying on the Fifty-Yard Line

         Kennedy's legal representatives responded to the District's letter by informing the media that the only acceptable outcome would be for the District to permit Kennedy to pray on the fifty-yard line immediately after games.[4] Kennedy's conduct bore that out. He prayed on the fifty-yard line immediately after the game on October 23rd, and once again after the game on October 26th.

         The District subsequently notified Kennedy in an October 28th letter that he had violated the District's directives and would be placed on paid administrative leave from his position as an assistant coach. The District also publicly-released a document entitled "Bremerton School District Statement and Q&A Regarding Assistant Football Coach Joe Kennedy, " which detailed the history of the District's interactions with Kennedy and explained its views regarding the constitutionality of Kennedy's conduct.

         While Kennedy was on leave, he was not allowed to participate in BHS football program activities. Kennedy could still attend the games in his capacity as a member of the public. At the October 30, 2015, game, which Kennedy attended as a member of the public, Kennedy prayed in the bleachers while wearing his BHS apparel, surrounded by others, and with news cameras recording his actions.

          While Kennedy was on leave, and during the time that he temporarily ceased performing on-field prayers, BHS players did not pray on their own after BHS football games. Rather, during the 2015 season, the District observed players praying on the field only at the games where Kennedy elected to do so. The District's public statement thus opined "[i]t is very likely that over the years, players have joined in these activities because to do otherwise would mean potentially alienating themselves from their team, and possibly their coaches." The District also surmised that "students required to be present by virtue of their participation in football or cheerleading will necessarily suffer a degree of coercion to participate in religious activity when their coaches lead or endorse it." The District's statement acknowledged that there was "no evidence" that students were "directly coerced to pray with Kennedy." (emphasis added). The District also acknowledged that Kennedy "complied" with directives "not to intentionally involve students in his on-duty religious activities." (emphasis added).

         G. Kennedy's Evaluation and Decision Not to Reapply for a Job

         After the season ended, the District began its annual process of providing its coaches with performance reviews. This starts with written evaluations by the head coach and the school's athletic director. The assistant coach then typically meets with one of those two people to go over his performance evaluation. If the coach is unsatisfied with the head coach or athletic director's evaluation, he can involve the school principal or the District. Kennedy had previously participated in this review-and had received uniformly positive evaluations-but he did not participate in 2015. Kennedy's supervisors nonetheless submitted their assessments. The athletic director recommended that Kennedy not be ...


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