In a widely publicized case, the full 9th Circuit Court of Appeals ruled in favor of an Oregon School District, holding that firing a coach for on-field prayer did not violate the coach’s First Amendment free-speech nor free-exercise-of-religion rights. See Kennedy v. Bremerton School District (9th Cir. 2021). In 2015, Joseph Kennedy was an assistant football coach for Bremerton School District (BSD). He began to privately pray on the field immediately after football games. Eventually, some of his players asked if they could join him, which he allowed. Over time, a majority of the team, and sometimes even members of the opposing team joined him at the 50 yard line for after-game prayer.
In September, BSD Superintendent Leavell sent Kennedy a letter clarifying BSD’s “Religious-Related Activities and Practices,” advising 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.” After the next few games, Kennedy abided by the directive. However, Kennedy wrote BSD that he would resume praying on the fifty-yard line immediately after the conclusion of the October 16, 2015 game. In anticipation of Kennedy’s defiance, local police blocked the field from the public. However, after the game, Kennedy prayed with his team at the 50 and spectators rushed the field, resulting in some injuries.
A few days later, the District sent Kennedy another letter stating that Kennedy’s “conduct … violated BSD’s policy. BSD 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.’” After Kennedy defied BSD’s directive, he was placed on administrative leave, and he did not apply for a 2016 coaching position. Kennedy then sued the District, alleging violation of his First Amendment rights of free speech and exercise-of-religion and violation of Title VII, with failure to accommodate and retaliation allegations.
Addressing the Free Speech claim, the Court stated that if Kennedy spoke as a public employee when he engaged in a demonstrative religious activity on the field in full view of players and spectators, his speech is not protected. The Court held that Kennedy was speaking as a public employee as he was “clothed with the mantle of one who imparts knowledge and wisdom.” However, the Court further opined that even if Kennedy was speaking as a private citizen, BSD still had adequate justification to suspend him because BSD had a State interest in avoiding an Establishment Clause violation. The Establishment Clause “proscribes public schools from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred.” The Court also stated that Kennedy’s “media blitz” belied his contention that his prayer was “personal and private.”
Next, the Court addressed Kennedy’s free exercise claim. The Court found that BSD’s directive to Kennedy to keep his after-game speeches secular was a compelling and justified attempt to avoid an Establishment Clause violation. Furthermore, BSD tried to accommodate Kennedy to avoid an Establishment Clause violation.
Lastly, the Court addressed Kennedy’s Title VII claims alleging: failure to rehire; disparate treatment; failure to accommodate, and retaliation. Denying the failure to rehire claim, the Court found that Kennedy did not establish the required element that he was adequately performing his job. The record clearly reflected that Kennedy refused to follow district policy and that student safety was compromised when spectators rushed the field after the October 16 game. Kennedy similarly failed to make a prima facie case of disparate discrimination because he could not prove BSD treated a similarly-situated employee more favorably.
Regarding his failure to accommodate allegations, the Court found that Kennedy made a prima facie case. After establishing a prima facie case, the burden then shifted to the District to show that it made a good faith effort to accommodate. Again, the Court found that BSD offered to accommodate Kennedy, who indicated that the only acceptable alternative was to permit him to continue his after-game prayer on the field. The Court held that “because allowing Kennedy to do so would constitute an Establishment Clause violation, the District could not reasonably accommodate Kennedy’s practice without undue hardship.” For the retaliation allegations, the Court again found that Kennedy made a prima facie case, but ruled for the District because if it had not forbidden Kennedy’s prayer, it would have violated the Establishment Clause. The Court found that the District’s conduct was a legitimate non-discriminatory reason to take an adverse employment action.
To read the Court’s full opinion, please download: