March 2019 Church & State Magazine - March 2019

Unsuccessful End Run Around The Constitution: A Washington Public High School Football Coach's Hail Mary Pass Fails To Connect At The Supreme Court

  Rob Boston

Joe Kennedy, a former public school football coach in Bremerton, Wash., adamantly insisted that he had a right to pray with players and other students after games. Officials in the school district were just as adamant that he had no such right.

For now, at least, the school district has come out on top.

The U.S. Supreme Court on Jan. 22 announced that it will not hear an appeal of Kennedy’s lawsuit against the school district. The high court’s inaction means that a lower court ruling against Kennedy stands.

The case goes back to 2015, when Kennedy was placed on administrative leave after he refused to stop praying with students at the 50-yard line after games.

Initially, Kennedy decided not reapply to coach the team. But he changed his mind after Religious Right groups began publicizing his case. Backed by a Texas-based Religious Right legal organization called First Liberty, Kennedy filed a lawsuit and demanded not only the right to pray with students, but also that the district be compelled to rehire him as a coach.

A federal court in September 2016 ruled against Kennedy, and about a year later the 9th U.S. Circuit Court of Appeals upheld that decision.

Americans United has been following the case, Kennedy v. Bremerton School District, from the beginning. AU filed a legal brief on behalf of the school district (joined by nearly a dozen religious- and civil-rights organizations) when the legal dispute reached the appeals court, and Andrew Nellis, then an AU legal fellow, argued part of the case.

When the appeals court ruled against Kennedy, Americans United lauded the decision as an important vindication of parental rights.

“Teachers and coaches don’t get to pressure students to pray,” said Rich­ard B. Katskee, Americans Uni­ted’s legal director. “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.”

Added Katskee, “The court agreed that the Bremerton School District could protect the religious freedom of its students. The school district was on the right side of history and religious freedom, and Americans United was proud to support its efforts.”

The appeals court opinion was authored by Judge Milan D. Smith Jr., who noted that high-school football is an important ritual in many American communities.

“On Friday nights, many cities and towns across America temporarily shut down while communities gather to watch high school football games. Students and families of all walks of life join to root for a common cause and admire young people who step proudly onto the field,” Smith wrote.

“While we ‘recognize the important role that public worship plays in many communities, as well as the sincere desire to include public prayer as part of [these] occasions,’” Smith added, “such activity can promote disunity along religious lines, and risks alienating valued community members from an environment that must be open and welcoming to all.”

Concluded Smith, “[W]hen Ken­nedy knelt and prayed on the fifty-yard line immediately after games while in view of students and parents, he spoke as a public employee, not as a private citizen, and his speech therefore was constitutionally unprotected.”

But Kennedy wouldn’t give up. Backed by First Liberty, he appealed to the Supreme Court.

The high court sat on the case for several months before announcing that it would not hear the matter. Normally, the high court’s decision not to hear a case is announced via a brief order. But this time, there was more to it.

Justices Samuel A. Alito, joined by Justices Clarence Thomas, Neil Gorsuch and Brett Kavanaugh, wrote four pages explaining that while he would not have accepted the case, he believes it raises important free-speech issues.

“I concur in the denial of the petition for a writ of certiorari because denial of certiorari does not signify that the Court necessarily agrees with the decision (much less the opinion) below,” Alito wrote. “In this case, important unresolved factual questions would make it very difficult if not impossible at this stage to decide the free speech question that the petition asks us to review. … While I thus concur in the denial of the present petition, the Ninth Circuit’s understanding of the free speech rights of public school teachers is troubling and may justify review in the future.”

Alito and his allies seem to be arguing here that there may be some instances in which public school teachers can claim a “free speech” right to pray with students. If adopted by the full high court, such a standard would greatly weaken the court’s longstanding decisions on school-sponsored prayer and worship.

Since 1962, the Supreme Court has been clear that public schools may not sponsor prayer or coerce students to take part in it during the school day or at school-sponsored events. While teachers have the right to pray privately at work, they’ve not been given the right to engage in religious activity with students.

Yet that’s exactly what Kennedy sought to do. Officials at the Bremerton district offered to give him space to pray privately after football games, but that wasn’t enough for him. Kennedy wanted to pray in a very public way with students.

Writing on AU’s “Wall of Separation” blog, Alison Tanner, an AU legal fellow, observed, “Since he was first hired during the 2008 season, Ken­nedy maintained a practice of leading his football team in prayer, before and after games. After district officials learned of his practice during the 2015 season and directed him to stop it, Kennedy initially complied and instead delivered nonreligious motivational postgame speeches to his team and prayed alone on the football field after the students left the stadium. But soon Kennedy chose to alert the superintendent and the media that he intended to ‘continue’ to offer an allegedly ‘private’ prayer immediately after games. …”

Tanner’s blog post was accompanied by a photograph that was entered into the court record. It shows Kennedy after a game on Oct. 16, 2015, surrounded by players, coaches, other students and members of media. It’s hardly a private setting. (The photo in question illustrates this story.)

Religious Right groups and far-right commentators were angry over the high court’s refusal to take the case. Todd Starnes, a Fox News contributor who loves to pontificate over “culture war” issues, called the court’s decision not to hear the case “a temporary, but devastating, blow to religious liberty.”

Starnes also asserted that AU President and CEO Rachel Laser had lied about the case because, in a media statement, Laser pointed out that Kennedy has no right to compel students to pray with him. Starnes asserted that Kennedy has not forced anyone to pray with him, but as AU has pointed out repeatedly, public school teachers and coaches are authority figures, and their behavior can send a message of coercion. Watching Kennedy, players could easily have gotten the idea that if they wanted to play, they’d better pray.

(Ironically, it was Starnes who spread misinformation. In his story he wrote, “The Supreme Court said they needed more information in order to resolve Coach Kennedy’s case.” In fact, only four justices said that, and they weren’t speaking for the full, nine-member court.)

Americans United celebrated the high court’s decision to pass on the case.

“Students shouldn’t have to pray to play on their high school football team,” Laser said in a statement (the one that so inflamed Starnes). “The coach’s actions were a clear violation of religious freedom, forcing kids to choose between their own beliefs and appeasing the man who decides the lineup for the game. This is not a dilemma any child should face.

“Luckily,” Laser continued, “the school district recognized and put a stop to this coercive act, sending the clear message that the beliefs of all students must be respected. The Supreme Court’s action today signals that the school district had the right to protect the religious freedom of its students.”

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