Joseph Kennedy v. Bremerton School District
869 F.3d 813
9th Cir.2017Background
- Joe Kennedy, a Bremerton High assistant football coach, knelt and offered brief post-game prayers at midfield in view of students, parents, and media; practice grew over years with players often joining.
- District policies allowed private, non-disruptive student prayer but prohibited staff-endorsed or supervised religious activity; Superintendent Leavell warned Kennedy in letters (Sept. 17 and Oct. 23, 2015) to avoid demonstrative on-field prayer while on duty and offered accommodations (private locations or after stadium emptied).
- Kennedy resumed public on-field prayers despite warnings; District placed him on paid administrative leave for violating directives and for failing to supervise students after games.
- Kennedy sued under 42 U.S.C. § 1983 alleging First Amendment retaliation and sought a preliminary injunction to reinstate him and permit on-field post-game prayers.
- The district court denied the preliminary injunction, concluding Kennedy likely spoke as a public employee and District actions were justified to avoid Establishment Clause issues; the Ninth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Kennedy spoke as a private citizen or public employee when praying on-field after games | Kennedy: his prayers were private religious exercise occurring after duties ended and thus protected as citizen speech | District: prayers occurred at a school event, on school property, in BHS attire, while he was supervising — within his job scope | Held: Kennedy spoke as a public employee; his on-field demonstrative prayer fell within his professional duties and was unprotected |
| Whether District’s restriction was justified to avoid an Establishment Clause violation (Eng factor four) | Kennedy: no state endorsement — his prayer was personal, brief, and not school policy-driven; accommodation could be disclaimers or education | District: same-context/same-history would convey school endorsement and coercion (students required/pressured to attend); allowing access only to coach but not others shows favoritism | Held (concurrence): District had adequate justification; a reasonable student would perceive endorsement, so restriction to avoid Establishment Clause was warranted |
| Whether District’s accommodations were adequate | Kennedy: offered accommodations insufficient (e.g., away games) and he needed presence of students to fulfill religious obligation | District: offered private locations and after-stadium option; duty and perception problems prevented permitting on-field midstadium prayers when students present | Held: Kennedy refused adequate accommodations tied to avoiding endorsement and supervision duties reinforced restriction |
| Whether Kennedy was likely to succeed on First Amendment retaliation claim (preliminary injunction standard) | Kennedy: speech was a motivating factor but he argued he retained citizen-speech protection, entitling him to relief | District: even if speech motivated action, it was permissible limitation on employee speech and/or would have been taken to avoid Establishment Clause | Held: Kennedy unlikely to succeed (spoke as public employee); preliminary injunction denied |
Key Cases Cited
- Pickering v. Board of Education of Township High School Dist. 205, 391 U.S. 563 (1968) (balancing teacher speech on matters of public concern against school interests)
- Garcetti v. Ceballos, 547 U.S. 410 (2006) (speech pursuant to official duties is not citizen speech for First Amendment)
- Lane v. Franks, 134 S. Ct. 2369 (2014) (employee testimony outside ordinary job duties can be citizen speech)
- Eng v. Cooley, 552 F.3d 1062 (9th Cir. 2009) (framework for public-employee First Amendment retaliation claims)
- Johnson v. Poway Unified Sch. Dist., 658 F.3d 954 (9th Cir. 2011) (teacher’s in-class religious expression held to be employee speech)
- Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000) (school-sponsored pregame prayer creates perception of school endorsement and coerces students)
- Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001) (state interest in avoiding Establishment Clause violation can justify content-based distinctions)
- Dahlia v. Rodriguez, 735 F.3d 1060 (9th Cir. 2013) (practical, fact-specific Garcetti analysis; guideposts for employee/citizen speech inquiry)
- Borden v. Sch. Dist. of Township of E. Brunswick, 523 F.3d 153 (3d Cir. 2008) (coach-led prayer in locker room treated as employee conduct attributable to school)