A new case from the U.S. Court of Appeals for the Ninth Circuit bars a Washington high school football coach’s practice of praying on the field after games. The opinion deals with the specific issue of whether that practice had First Amendment protection since the Coach was a government employee. The opinion, Kennedy v. Bremerton School District, examines the tension between government control over its own speech and the personal religious exercise and free speech rights of individual government employees.1
The Background Before the Lawsuit
The Coach is a practicing Christian who felt called to take a knee at the 50-yard line and pray for about 30 seconds immediately following each high school football game. He originally did this alone. But later, a group of players asked if they could join him, and he agreed. Over time, this tradition blossomed to include most of the team and even players from the opposing side.
The School had a policy that essentially prohibited staff from encouraging students in their individual religious exercise, so as to avoid appearing to endorse it. When the School found out that the Coach was leading locker-room prayers, and praying on the field, it reminded him of the policy. As to the Coach’s individual prayer policy, the School asked him to refrain from praying in view of students and spectators after games.
After this, the Coach stopped his practice for a while. During this time, students also stopped praying after games. But shortly thereafter, the Coach asked the School for an accommodation to start his practice up again. When he did, it caused a huge ruckus. The events were highly-publicized and both supporters and opposition alike got involved with the dispute. Ultimately, the School decided to place the Coach on administrative leave. When his contract was up that year, the Athletic Director recommended he not be rehired based on his failure to follow school policy. The Coach chose not to reapply for his position.
The Coach’s Constitutional Claims
The Coach later brought a lawsuit saying, among other things, that the School had retaliated against him for his exercise of his First Amendment free speech rights. He sought a preliminary injunction that would require the School to permit him to pray on the 50-yard line of the football field immediately following each game. Considering this request, the District Court denied the motion for the injunction, holding that the Coach was unlikely to prevail on the merits of his First Amendment retaliation claim. The Coach appealed this order to the Ninth Circuit.
The Ninth Circuit’s Decision
The Ninth Circuit affirmed the District Court’s decision, holding that the Coach “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.”2 Therefore, he could not show a likelihood of success on the merits that would warrant an injunction.
The appellate Court’s opinion clarified that the speech at issue involved the Coach’s desire to pray immediately following games while in view of students and parents on the field, not simply praying silently and alone. The Court came to this conclusion because the School had offered the Coach the option of praying on the field after the stadium had emptied and he had refused that accommodation. So, the speech at issue was directed, at least in part, to students and the other attendees at the game.
The Court then turned to whether this demonstrative speech was part of the Coach’s duties such that he was speaking as an employee of the School and not as a private citizen. The First Amendment provides differing levels of protection for government employees depending on whether they are speaking as part of their official job duties, or instead, are speaking just like any other citizen. Here, the Court concluded that the Coach’s job duties included being a role model for students and modeling proper behavior and conduct before, during, and after the football game. By praying in the manner he did, the Coach was commandeering what he was paid to do—model appropriate behavior for the players—with his religious message. Apparently, the record demonstrated that students only prayed after games when this Coach did, further bolstering the Court’s point that the Coach was having a coercive effect, or at least an endorsing effect, on the students. The Court concluded that the Coach was taking advantage of his position to pray in the manner he did. The Court pointed out that not everyone was allowed on the field to perform religious exercises (apparently, a Satanist group had tried).
The Court concluded by remarking that the Coach remained free to pray privately, in a non-demonstrative manner. “What he cannot do,” said the Court, “is claim the First Amendment’s protections for private-citizen speech when he kneels and prays on the fifty-yard line immediately after games in school-logoed attire in view of parents and students.”3 Because the Court was able to resolve the matter on these grounds, it did not decide whether the School was otherwise justified by its actions because of Establishment Clause concerns.
The Legal Balancing Act
This case addresses the narrow issue of whether a government employee can engage in religious expression while on the job. Because of the Court’s conclusion that the Coach was speaking in his role as a government employee, it concluded that the School could have a say in how that speech took place. Striking the appropriate balance is a challenge, particularly for public school employees like teachers.
1 Kennedy v. Bremerton Sch. Dist., No. 16-35801 (9th Cir. Aug. 23, 2017).
2 Id. (slip op. at 36).
3 Id. (slip op. at 33).
Featured Image: ”American Football Game” by Abigail Keenan on Unsplash.
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