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Ninth Circuit is No Fan of Post-Game Prayer

Last week, the Ninth Circuit issued its opinion in Kennedy v. Bremerton School District, affirming the district court’s denial of a preliminary injunction for Joseph Kennedy, a high school football coach, who gained national attention when he was suspended for conducting public post-game prayers on the football field and asserted First Amendment retaliation.  In affirming, the Ninth Circuit revisited its prior cases analyzing religious speech by public school employees, and provided a framework for analyzing whether a school’s disciplinary actions violate the First Amendment rights of educators.

In Kennedy, the speech at issue was Coach Kennedy’s practice of kneeling and praying immediately after games at the 50-yard line while wearing his official Bremerton High School (“BHS”) attire.  At times, BHS students or opposing teams would join in this prayer, though they were not compelled to do so.  After complaints, the school instructed Kennedy that he could not pray on the field immediately after games, as his in-uniform prayer suggested that the high school was supporting his Christian faith.  Though Kennedy and BHS attempted to come to a compromise, such as a private prayer, Kennedy eventually insisted on praying immediately after each game in view of the spectators, and was placed on leave.  Kennedy sued for an injunction to reinstate him as football coach and allow him to kneel and pray on the field immediately after BHS football games.  The district court denied Kennedy’s request for a preliminary injunction, finding that he was unlikely to succeed on the merits of his First Amendment claim because his behavior put BHS at risk of violating the Establishment Clause.  Kennedy appealed the denial of the preliminary injunction.

On appeal, the Ninth Circuit analyzed Kennedy’s claim under the framework of Eng v. Cooley, asking whether Kennedy’s post-game prayer was: (1) on a matter of public concern, (2) conducted as a private citizen or a public employee, and (3) motivated his termination.  See Eng v. Cooley, 552 F.3d 1062, 1070-1072 (9th Cir. 2009).  If the speech was conducted as a private citizen, the Court would then look to two additional factors, asking whether (4) the state had an adequate justification for treating him differently than members of the general public, and (5) whether Kennedy would have been terminated even absent his speech.  Id.  As the parties agreed that Kennedy’s prayer was a matter of public concern and that his prayer motivated his termination, the Ninth Circuit’s opinion hinged on whether Kennedy spoke as a private citizen or as a public employee when he prayed after the football games.  To make this determination, the Ninth Circuit looked to the 2011 decision of Johnson v. Poway Unified School District, which analyzed a math teacher’s classroom banners proclaiming there is a God.  658 F.3d 954 (9th Cir. 2011).  There, the Court found that teachers necessarily act in the scope of their employment when they speak “at school or a school function, in the presence of students, in a capacity one might reasonably view as official.”  Id. at 968.

Applying Johnson to Kennedy’s prayer, the Court had little trouble determining that Kennedy’s prayer was performed as a public employee.  The Court emphasized that Kennedy’s duties as a coach did not end at the final whistle.  To the contrary, Kennedy was expected to model good behavior in the post-game environment by speaking to parents and athletes.  Because Kennedy’s prayer was conducted as a public employee, the Court concluded that Kennedy could not show a likelihood of success on the merits and upheld the district court’s denial of the preliminary injunction.

As the school semester gets underway once more, public school employees and administrators should be mindful of this latest decision at the intersection of the public school environment and the First Amendment.