Joseph Kennedy v. Bremerton School District

i—t i—i h-i of action is

When cause denned unambiguous

specific statutory ele-

ments, no there need redefine

restrict that cause action based

underlying purpose that motivated its en- today, its decision the court

actment. by rejecting the statutory

errs elements by Congress redefining

chosen narrowly

TCPA pri- claim restricted

vacy sought claim. Because Emanuel re-

covery alleged on an based violation

TCPA, recovery and did seek based privacy,

invasion of I would reverse the dismissing

district Lak- court’s order

ers’ claims.

I respectfully dissent. KENNEDY,

Joseph A. Plaintiff-

Appellant, DISTRICT,

BREMERTON SCHOOL

Defendant-Appellee.

No. 16-35801 of Appeals,

United States Court Circuit.

Ninth

Argued and Submitted June Seattle, Washington August

Filed claim, agreement coverage. as to the nature of a TCPA basis for denial valid, may good Federal well have had a faith Park, Bellevue, Washington,

Justin D. High Amicus Curiae Garfield School Alley Coaches Kellen Joseph Thomas. NELSON, Before: DOROTHY W. SMITH, JR., MILAN D. and MORGAN (argued) Benja- Rebekah Ricketts and CHRISTEN, Judges. Circuit Wilson, min D. Gibson Dunn <&Crutcher LLP, Dallas, Texas; Nowicki, Daniel S.J. by Smith, Judge Concurrence Milan D. LLP, Alto, Gibson Dunn & Palo Crutcher Jr. Helsdon, California; Jeffrey Paul Oldfield PLLC, Fircrest, Washington; & Helsdon OPINION Berry, Hiram and Michael First Sasser SMITH, Judge: M. Circuit Institute, Plano, Texas; Liberty Anthony J. Ferate, PLLC, Edmond, Ferate Okla- (BHS) Bremerton School football High

homa; Plaintiff-Appellant. for Joseph Kennedy coach A. appeals from district court’s denying order his motion Tierney (argued)

Michael B. Paul and preliminary for a Correa, P.C., injunction Blakney Seattle, that would Tierney & (BSD require Bremerton Washington-,for School District Defendant-Appellee. District) or the to allow to kneel L. (argued) Andrew and Nellis Richard pray on and line in view Katskee, B. Separa- Americans United for parents immediately students and State, Washington, tion of Church and games. football affirm. BHS We D.C.; Barkey, David L. Anti-Defamation Raton, Florida; League, Jeffrey Boca I. FACTUAL AND PROCEDURAL

Pasek, O’Connor, York, Cozen New New BACKGROUND York; for Amici Americans Curiae United State; Separation for Church and A. Bremerton School District League; The Anti-Defamation Central n Kitsap County, BSD Wash- Rabbis; Disciples Conference American located ington, Puget across Sound from Se- Justice Action Network the Christian attle. District is approximate- home to Christ); (Disciples Equal Church Part- 5,057 students, teachers, ly and Hadassah, Faith; ners in Zi- the Women’s non-teaching personnel. religiously BSD Inc.; America, Organization onist Hindu practice, diverse. families Students and Foundation; American The Interfaith Alli- beliefs, Judaism, Islam, among other ance; Network; Policy Jewish Action Social faith, Buddhism, Hinduism, Zo- Bahá’í Foundation; People Way for American roastrianism. Judaism; Union for Reform and Women Reform Judaism. employed Kennedy BSD football High J. Russello Daniel A. coach at Bremerton from

Gerald School LLP, 'McLaughlin, Sidley Austin New served as an assistant York, York; Wedel, Sidley varsity New Collin P. football team also coach.for LLP, California; Austin Los Angeles, junior varsity coach for the the head Mills, LLP, Christopher Sidley expired R. Austin team. contract Kennedy’s D.C.; Washington, For- It pro- Amicus Curiae at the end of season. each football Players mer Professional Football “to Steve vided BSD “entrusted” Largent coach, Hennings. and Chad role be a mentor model brief, prayer of quiet offer a yard line and agreed further

student athletes.” player safety, sportsman- thanksgiving for at all sportsmanlike conduct to “exhibit Kennedy’s that, spirited competition.” foot- times,” acknowledged ship, coach, being thirty seconds. “constantly usually ob- lasts about prayer he was ball bearing a jacket others.” BHS served He a shirt wears at midfield. Because logo prays when he re- job description formal recog- up players lifts “prayer him assist the coach with quired head sportsmanship their hard work and nizes “[ajdhere to responsibilities,” “supervisory religious be- during game,” Kennedy’s policies and ad- Bremerton School require pray him to on the actual field liefs regulations,” “communicate ministrative played. game where posi- effectively” parents, “maintain relations,” “[o]bey and all the tive media pray- Kennedy began performing these players and the Rules of Conduct before BHS. working at ers when he first started Coach,” in- expected of a Head outset, prayed alone. At Several the to cluding requirement proper “use season, however, into his a games first at all players before and conduct Kennedy group players asked BHS responsibility times.” Consistent with his join “This is a they could him. whether model, con- Kennedy’s to as a role serve “You can country,” Kennedy replied, free else, that, Ken- all” required tract “[a]bove response, Hearing you what want.” do only “to create nedy would endeavor join him. Over elected students athletes,” “good be- also human good but time, majori- grew to group include ings.” play- the BHS ty of the team. Sometimes join. team to opposing invited ers even B, Kennedy’s Religious Beliefs Practices Past Kennedy’s religious practice Eventually, Be- Kennedy practicing is a Christian. origi- something more than evolved 2015, he led students and tween began giving short motiva- He prayer. nal coaching prayer pri- staff in locker-room after speeches tional midfield He in games. participated or to most also coaches, Students, other atten- games. in the locker room place that took prayers par- from both were invited dees teams Kennedy in- had ended. after speeches, partici- ticipate. During the involve- predated these activities sists Kennedy, around who raised pants kneeled engaged program, with the and were ment from each team and delivered helmet His a matter school tradition. in as Ken- message containing religious content. him to lead require religious beliefs do acknowledged that nedy subsequently any prayer or after BHS before speeches likely consti- these motivational games. prayers. tuted do religious require beliefs give through prayer him to at the thanks from September Letter The C. game players’ for the accom- end each BSD to opportunity to be a plishments and first learned that The District through Specifi- part of their lives football. prayers pray- leading locker-room “[ajfter over, was cally, game when ing September field coaches from both teams players of another school district midfield,” an employee Ken- to shake hands at have met post-game prayers the 50- mentioned nedy “take knee at feels called discovery BSD administrator.1 activity.” dorsement of that Lastly, Leavell prompted inquiry into whether Kenne- stressed dy complying with the school board’s to engage religious free activity, in-

policy “Religious-Related Activities and cluding prayer, long so as it does not Pursuant that policy, Practices.” “[a]s interfere with job responsibilities. Such may matter of liberty, individual student activity must physically separate volition engage private, own his/her any activity, from student non-disruptive prayer any time not in may not join be allowed to activity. such learning conflict with activities.” In addi- order the perception avoid of en- tion, encourage staff shall neither “[s]chool above, dorsement discussed activity such discourage nor engaging a student from (ie., should either be non-demonstrative non-disruptive prayer any oral silent outwardly discernible as form of activity,” other devotional activity) if engaged students are also conduct, or it should occur cooperative was candid and engaging while students are not in such throughout inquiry. the District’s The in- conduct. vestigation coaching revealed that staff training regarding had received little policy. Accordingly, Super-

District’s BSD Kennedy Responds D. via an October Aaron Kennedy intendent Leavell sent 14th Letter September 17, 2015, on clarify letter the By point, this Kennedy’s prayers had prospective expectations. District’s “generated publicity.” substantial Com- explained Kennedy’s Leavell that two on ments social media led District to the practices “problematic” were under the be concerned that BHS not would be able Clause, Establishment but he acknowl- September secure its field after the edged they that were game, assuming well-intentioned and suspected— it—as actively that had “not encour- that a would from crowd come down the aged, required, participation.” join Kennedy’s prayer. [student] stands to on-field Leavell advised that he could The District to prevent was “not able that talks, give inspirational continue but from happening” on state of based its “[t]hey entirely must remain preparations, secular in it decided that it would nature, any so as to “prevent avoid alienation not access the field at that team member.” He further that point.” day advised On the of the game, religious activity realized, “[s]tudent must be entire- were not school’s concerns howev- student-initiated, er, ly genuinely receiving because after the District’s (or letter, not may suggested, encouraged be Kennedy temporarily dis- stopped pray- couraged), or supervised by any ing District while field students were Instead, staff.” Leavell further counseled around. September after the 18th that engage game, Kennedy students ac- gave “[i]f a short motivational tivity, may any school staff action take “that no included mention reli- likely perceived by Then, to be gion a reasonable ob- “everyone once else faith.” server, stadium,” history who aware had left the to the walked BHS, activity knelt, context of fifty-yard line, such at as en- prayed alone. complaints up "expressed 1. The had not received reports District individuals District Mr, point. community to that As the became Kennedy's concern about actions.” however, Kennedy’s practices, aware of game, pictures “published in this were various complying After manner sev- weeks, Kennedy depicting Kennedy praying eral wrote the District media” while lawyer on through his October surrounded and members players requested He accommodation public. Act Rights of 1964 that under Civil maintains that while District Ken-. him “continue practice allow

would nedy line, walking fifty-yard was' to the private, post-game prayer saying “[tjhere people jumping the were fence immediately following 50-yard line” among running others the cheerlead- opined games. The letter BHS ers, band[,] Afterwards, “the and players.” Kennedy’s religious expression' oc- complaints parents from received during “non-instructional hours” curred of band members who were knocked over because, offi- according Kennedy, “his in the rush on spectators the. field.” .to ceased” after coaching cial duties game, Sometime after the members of a games The letter had ended. also acknowl- religion Satanist contacted the District and edged Kennedy’s prayers “au- they said to conduct “intended ceremonies dibl[e],” but stressed “he does field if after football others specific of a pray religion,” in the name the. Ultimately, were allowed the District requests, encourages, nor dis- to.” “neither in” courages participating from arrangements made with the .Bremerton Lastly, his prayer. Department the letter announced Police to secure field after resume on games, signs, then posted “robocalls” made 16, 2015, line the October parents, put to District and “otherwise game. . out to that there would word Represen- no to the [future] access field.” pray intention the field religion up tatives showed Satanist game following October 16th “was they next did enter game, “but including through widely publicized, [Ken- go stands or learning the on the field after appearances.” nedy’s] media On own the secured,'”2 that the field would be day game, District yet of the thé not had letter, responded Kennedy’s to but Kenne- dy proceeded nonetheless as he had indi- E, The 2Srd October and Oc- District’s blew, cated. Once the final whistle Kenne- 28th Letters tober dy opposing hands with the shook team Kennedy Leavell a second letter on sent of players and most the waited until BHS October for 2015. He thanked song singing fight the to

were the audience September his “efforts comply to with the Then, he knelt on the stands. the fifty- Still, explained that Ken- directives.” line, head, yard his eyes, closed bowed nedy’s on game at the conduct October brief, prayed prayer.” Ac- “and silent 16th was the District’s inconsistent kneeling cording Kennedy, to while he was requirements. emphasized Leavell “that eyes closed, playérs with his “coaches and the team, prohibit prayer District not or does from the mem- opposing well as other media, religious by employees spon- 'exercise general public and bers on on joined while the exercise taneously job,” the and but “such must field [him] not of performance job In the the days knelt interfere with the [him].” beside after date, prior ingfully open was not an contest that the field contends to this District, however, by parents and to walk .-forum while in the BHS had use allowed fans games right to onto the and the District retained limit field after socialize congratulate He mean- players. not access. does not responsibilities, clearly, given-your must lead what prior public conduct, of perception religious District of reli- overtly endorsement conduct. gion.” The it District reiterated “can and District,

According “religious to the will” had accommodate exercise that requirements perceived met those “paid because would not be en- District dorsement, pro- assistant coaches 'athletic and which does District otherwise grams responsible for interfere supervision performance job are of with the of end, only prior during suggested duties.” it To that “a games, during of private but also location building, course activi- within following players facility press ties ’and until athletic are box could be made parents [Kennedy] to their al- available to otherwise for brief released added). (emphasis exercise before after games.” lowed leave.” The Kenne- course, dy, Kennedy’s District of confirmed with also prior head could resume his practice coach “that for over years, ten all assistant on the fifty-yard line assigned coaches have had both be- after the emptied. stadium had duties Because fore “[development each game have been accommodations expected the team process,” to remain with until the interactive the District invited Thus, Kennedy to last has offer his suggestions. student left the event.” own Kennedy, District told also reminded Kennedy that duty on “[w]hile .the District as an you engaged [W]hen exer- coach, you assistant may not engage in immediately following game cise religious activity, demonstrative readily 16, you duty October still on were (if observable not intended to be event, ob- District. You at the by) served attending students and field, lights, pub- game under the lic.” attire, BHS-logoed front of an audi- attendees, by solely ence event virtue Fi Praying Continues ón the your employment by the District. Fifty-Yard Line is not open The field forum which legal representatives re- members are invited follow sponded to the District’s letter inform- ing completion games; but if it even ing only media acceptable

were, you job respon continued have outcome per- for the District to sibilities, including supervision Kennedy mit to pray on the line players. [BSD] While understand^] immediately games.4 after Kennedy’s con- your religious fleeting, it exercise was duct bore that out. fifty- prayed on the He away your nevertheless you drew from yard line immediately after the game on importantly, any work. More' reasonable 23rd, October and once again after the employee, observer saw a District on the game on October 26th. only by employment field virtue of his District, duty, with the still on the The District under subsequently notified Ken- stadium, bright lights of engaged nedy the in in an October 28th letter had that-he Kennedy appears Kennedy,now 3. to have 4. abandoned contends that District's the argument duty” that he was not “on after the inadequate accommodations were because n “BSD not Instead, games. explain he he religious contends that never did how ex- [his] post-game assignment pression received a away would be “that would accommodated at prohibit games,” engaging in ex- [him] BSD does not con- from where have direct pression lasting no more seconds.” trol the than 30 over facilities. on-duty the District’s directives and volve students ac- violated added). paid placed (emphasis leave administrative tivities.” coach. position from his as an assistant Kennedy’s G. Evaluation and Decision a docu- publicly-released

The District also Reapply Not a Job ment entitled “Bremerton School Q&A Regarding Assistant Statement and ended, After the District be season Kennedy,” which de- Football Coach Joe process its gan providing annual its history of District’s interac- tailed the performance reviews. This coaches with Kennedy explained tions its views with by starts written evaluations with head regarding constitutionality of Kenne- coach school’s and the athletic director. dy’s conduct. typically coach then meets assistant go one of those two over his people with leave, not Kennedy he was

While performance If the coach is evaluation. participate pro- allowed in BHS football with head coach athletic unsatisfied gram Kennedy activities. could still attend evaluation, director’s he can involve games in his capacity a member Kennedy principal District. 30, 2015, At the public. game, October previously participated had in this re Kennedy a member which attended uniformly positive view—and had received public, Kennedy prayed in the bleach- participate evaluations —but did wearing apparel, ers while sur- his BHS supervisors nonetheless others, by rounded news cameras with submitted their The athletic assessments. recording his actions. Kennedy not director recommended that leave, during While was on to fol be rehired because “failed per- the time that he temporarily ceased policy” supervise low and “failed district forming prayers, players on-field BHS did due to his student-athletes pray on their own after BHS football and [the] interactions media [the] Rather, games. season, during the 2015 community.” players praying District observed varsity coach of The head football only at the games field where job at team left the the conclusion so. elected to do The District’s one-year 2015 season. The contracts also opined very statement thus likely “[i]t expired for all six assistant years, players joined that over the have opened up coaches. The District therefore activities these because do otherwise all application of the football seven potentially alienating would mean them- coaching positions. Kennedy apply did team, from their possibly selves their coaching position during for a coaches.” The District also surmised that season. required present “students to be virtue participation of their in football or cheer- Kennedy Files H. Suit

leading degree will suffer a necessarily participate religious activity coercion to this action commenced their it.” of Washington August when coaches lead endorse on Western District 9, acknowledged rights The District’s statement 2016. He asserts that his under “no that there was evidence” that students the First Amendment and Title VII “directly pray to with Ken- Act of 1964 Rights were coerced Civil violated. added). nedy.” (emphasis preliminary injunc- The District also for a moved acknowledged 24, 2016, Kennedy “complied” arguing that on-August tion that intentionally with directives “not to in- on of his claim would succeed the merits

821 against that BSD retaliated him for exer- JURISDICTION AND STANDARD ' cising his First Amendment to right free OF REVIEW speech.5 sought injunction an or- have jurisdiction We pursuant to 28 (1) dering discriminating BSD to cease 1292(a)(1). § U.S.C. against him in violation of the First (2) Amendment, reinstate him as a BHS A plaintiff seeking preliminary (3) coach, allow him to kneel (1) injunction must establish he is pray immediately line likely claim, to succeed on the merits his games. after BHS football (2) likely he is irreparable suffer harm The court requested relief, (3) district denied the in the absence of preliminary 19, preliminary injunction favor, (4) on September balance of equities tips 2016. Applying five-step framework injunction is in interest. Cooley, v. Eng Cty. laid out in 552 Republican F.3d 1062 Sanders Cent. Comm. (9th 2009), Bullock, 741, (9th 2012). Cir. the court held that Kenne- Cir. 698 744 F.3d dy unlikely prevail was on the merits of of pre

his First review the denial “[W]e Amendment retaliation claim be- liminary injunction for abuse discre Kennedy spoke cause as a employee Supervisors, tion.” Harris v. Bd. L.A. justified by BSD’s conduct its 2004). Cty., 366 F.3d violating need to avoid Establishment necessarily “The court abuses its conclusions, district reaching Clause. In these on discretion it decision when bases its “Kennedy court observed was dressed colors,” legal clearly on erroneous er “chose standard a time and event (internal findings quo roneous students, fact.” big ... [that] deal” omitted). Where, here, tation marks opportunity convey “used reli- relied alleged “the district court have gious responsi- views” while was still “[h]e legal on we premise, an erroneous review ble for of his the conduct students.” The Id.) de novo” underlying issues of court also law prayer found Sanders, see also F.3d resulted “subtle coercion” because “[i]f (“[W]here denial athlete, a district court’s you you impressionable, are an are injunction solely rests preliminary motion ... you please your want coach to are time, premise on of law the facts get playing more shine.” The court undisputed, our re either established or further concluded that reasonable ob- (internal view is de quotation novo.” server familiar with the relevant context omitted)). coach, [Kennedy] have seen “would fact[,] participating, leading an orches-

trated session of faith.” Given that Kenne- ANALYSIS dy could demonstrate a likelihood of merits, success on district court did contends that the district court remaining likely not address the in- preliminary erred concluding that he junction factors. his claim timely filed succeed the merits of 3,2016. on October appeal placed notice BSD him administrative paid n.1, (L.Ed.2d Kennedy brings his 5. First Amendment retali 115 S.Ct. 1995) (“The pursuant ‘liberty’ § Four ation claim to 42 U.S.C. term applies against makes First Amendment teenth to the State Amendment Constitution pursuant applicable to the to the Fourteenth Amendment. See the First Amendment Comm'n, States.”). McIntyre v. Elections Ohio 514 U.S. 822 his First -an exercising

leave retaliation to avoid Clause its need Establishment right four). to speech. (Eng Amendment 'free factor conclude violation We Kennedy spoke a public employee, that First retaliation Amendment citizen, private a de- not as therefore governed by are claims the framework to re- justifiably reach whether cline BSD Eng. See 552 F.3d at 1070-72. Kennedy’s speech violat- stricted to avoid (1) on a matter of spoke must show he ing the Establishment Clause. (2) concern, private as a public spoke cannot accordingly a show likelihood employee, than public, citizen rather a on the merits of his Amend- success First (3) speech a the relevant substantial was claim, ment retaliation is not entitled motivating em or factor in adverse injunction preliminary he seeks.6 ployment action. Sch. Coomes Edmonds 15, (9th 1255, 816 1259 Cir. Dist. No. F.3d Kennedy spoke employee, public I. as a 1070-71). 2016) Eng, (citing private citizen, and not as a when he Upon demon showing, State must prayed line in view (4) justifica it adequate strate had parents immediately treating from Kennedy differently tion for games. after BHS football (5) general public, other members taken employ it would have adverse Governing A. Law protected even ment action absent employees “[P]ublic do not surren (citing speech. Eng, 552 Id. F.3d 1070- First rights by der all their Amendment 72). necessary, in factors “[A]ll the are employment.” their reason Garcetti v. failure meet one them any sense that Ceballos, 410, 417, 1951, 547 U.S. 126 S.Ct. plaintiffs case.” Dahlia v. is fatal to (2006). Rather, 689 they 164 re L.Ed.2d 1060, Rodriguez, F.3d n.4 735 1067 right “in tain the certain circumstances[ ] 2013) (en banc). Accordingly, re “a speak addressing as a citizen matters of poten viewing court free address public concern.” Id. Courts therefore must factor tially dispositive rather than first Eng decide under the second factor wheth addressing sequentially.” each factor spoke citizen, an official er and thus (internal Coomes, F.3d at 1260 quota exercise, First rights had Amendment omitted). tion marks spoke capaci or whether official Here, parties do contest employee, ty public and therefore did con- matter of Kennedy spoke not. one), (Eng cern relevant factor Pickering v. Board Education motivating fac- speech a substantial High Township School District place Ken- tor in District’s decision three), U.S. S.Ct. L.Ed.2d (Eng nedy factor and that on leave (1968), this, a foundation for inquiry. laid would not taken the ad- the District have The Court held that a district action in absence of violat verse employment five). right speech ed teacher’s it (Eng factor free when the relevant Thus, for writing Ken- the teacher only whether fired letter to a we need consider private newspaper criticizing or a local nedy spoke ás citizen the school (Eng two), handling of factor board’s employee proposal. and whether tax justified by 564-65, adequately The Court BSD’s conduct S.Ct. 1731. noted . parties remaining light have briefed the reach of this 6 The conclusion. them factors, injunction preliminary we need

823 statements in infringe the letter were not any employee might liberties any “directed towards with person citizen,” whom enjoyed have as a private id. at normally in [the teacher] be 421-22, 126 contact S.Ct. 1951. daily of his the course Id. at 569- work.” emphasized Garcetti also “that various 70, Moreover, publication 88 S.Ct. 1731. easy heuristics are insufficient for deter “imped[e] letter did teacher’s mining employee spoke whether an pursu proper performance daily of his duties ant his professional Dahlia, duties.” 735 the classroom” or with “interfere[] 1069; Garcetti, F.3d at see also 547 at U.S. regular operation of generally.” the schools 420-21, 424, instance, 126 1951. For S.Ct. 572-73, Id. at 88 1731. S.Ct. Because the it was “not dispositive” prosecutor that the greater school had no interest in limiting “expressed office, his views inside rath it speech the teacher’s than “in limiting did Garcetti, than publicly,” 420, er 547 U.S. a by any similar contribution member 1951, 126 S.Ct. memorandum 573, general public,” id. at 88 S.Ct. subject “concerned the pros matter [the 1731, spoke private the teacher aas citi 421, employment,” id. at ecutor’s] 126 zen, speech and the could furnish itself rejected sugges S.Ct. 1951. The Court a for basis the teacher’s dismissal from tion employers could restrict their 574, public employment, id. at 88 S.Ct. employees’ rights creating “by excessively 1731. 424, job descriptions.” Id. broad 126 Court this inquiry The refined Garcet ultimately S.Ct. 1951. It instructed that Ceballos, 410, S.Ct.1951, ti v. 126 547 U.S. proper inquiry practical The ais one. (2006). 164 689 it “that L.Ed.2d There held descriptions Formal often job little bear public employees

when make statements employee resemblance to the duties pursuant duties, to their the em official actually expected perform, and the ployees are not speaking as citizens given employee’s of a task listing First purposes, Amendment and the Con job description written is neither neces- stitution does not insulate their communi sary nor sufficient to demonstrate that employer cations from discipline.” Id. at 421, added). conducting scope the task is within the (emphasis Ap 126 S.Ct. 1951 employee’s professional duties plying reasoning, “the Court found purposes. that an First prepared by internal memorandum Amendment prosecutor ordinary in the of his course 424-25, 126 Id. at S.Ct. job responsibilities unprotected constituted Garcetti, Following — we clarified Franks, employee speech.” Lane v. “the whether determination —, 2369, 2378, U.S. 134 S.Ct. 189 question spoken public as a (2014) Garcetti, (citing L.Ed.2d 312 547 employee private presents or a citizen 424, 1951). prosecu U.S. at S.Ct. question Posey of fact mixed and law.” v. spoke tor employee because he 84, Lake Pend Dist. Oreille Sch. No. “fulfilling responsibility advise 2008). (9th “First, F.3d Cir. supervisor proceed about how best Garcetti, factual as to determination must made pending case.” U.S. words, scope plaintiffs job content of a pros 126 S.Ct. 1951. In other “[the responsibilities.” Poway Unified expressions pursuant made Johnson ecutor’s] id., Dist., deputy,” to his ch. duties calendar S 2011) Omitted). (internal “[restricting quotation its speech that owes ex “Second, signifi istence constitutional professional the ultimate employee’s said, responsibilities,” cance those facts must be determined as the Court “does (internal matter,” “beyond found it quotation practical Id. we a matter of law.” omitted). dispute possibility for fairminded that the marks job respon- of scope content Johnson’s in applied in we these Helpfully, speaking to his sibilities did include in a First Amendment retalia structions during hours.” in his classroom class class involving employed by tion case a teacher (internal marks, alteration, quotation Id. argued school. The teacher that he a omitted). emphasis citizen when he decorat spoke private large two his classroom with banners ed two, constitu- step At we assessed the religious message. John conveyed significance by asking of those facts tional son, at 965. We held speech its exis- owe[d] Johnson’s “whether speech “unques teacher’s position, spoke to his or whether he tence concern,” tionably of id. at inherent non-employee just any as citizen could “spoke he nonetheless as an but that reasons, Id. For we held have.” several citizen,” not as at 970. employee, id. clear”: “Johnson answer did “[t]he [was] that John step, At the first we observed citizen ordinary not act as an when ‘es- (the teacher) “not or unique hold son did no in opposed as God’ pousing God government position” “per- exotic start, —he ordinary To classroom.” Id. “[a]n ordinary of a math form[ed] duties citizen not have walked into John- could defining Id. those teacher.” at 967. and decorated the as son’s classroom walls duties, “expression is a found we fit, anymore he or than an ordi- she saw trade, commodity stock teacher’s nary citizen could that students demand employer exchange sells [he] [his] remain in their seats listen whatev- (internal quotation Id. salary.” idiosyncratic perspective or sectarian er omitted). So, it alteration was “irrele viewpoints he or she wished share.” Id. of question ... to the John vant whether moreover, Pickering,” at 968. “Unlike “who spoke employee” son as a citizen as an newspaper to his local a letter wrote part that “the banners were John .,. any might, Johnson took citizen advan- all, at 967 n.13. After son’s curriculum.” Id. particular tage position press of his acting not cease “teachers do teachers captive upon impressionable views rings or the time bell conversa each (internal quotation him.” Id. minds before beyond the topic tion moves narrow omitted). general- marks and citation More curricular instruction.” Id. 967-68. position ly, trust and “because authority impres- and the hung [teachers] that Johnson hold We further observed young they in- long-standing minds with which pursuant the banners sionable teract,” necessarily held that “teachers we policy permitting teachers decorate Pickering subject to act as teachers for specific purposes their classrooms limita- tions. Id. at 967. Accordingly, we found inquiry when ^[1] school a school that Johnson’s speech occurred “while per- function, ^[2] general presence forming a function [ ] squarely within the students, ^[3] in a capacity one might rea- sonably Applying official.” Id. scope position”; of his run- view as “[h]e was rule, parameters. Johnson fit the reli- ning errands for the school in a car stickers,” gious speech “at issue” therefore bumper “owe[d] adorned sectarian with instance, position as a “or existence to Johnson’s people shel- its teacher,” And, Id. at because the tering earthquake.” in the after an ordinary scope Adding up, fell within it because Johnson was students, responsibilities, the communicating professional with his Johnson’s “as a constitutional er this school “acted well within demonstrative communication to ordering not to speak limits Johnson spectators ordinarily students and “is itself it not desire.”7 Id. manner did scope [Kennedy’s] within the duties.” Id. Application B. 1. Factual determination of

Applying foregoing principles, job responsibilities. Kennedy spoke public as a and employee, Kennedy’s job require not merely did private not citizen. as Before undertak him to supervise students in the locker analysis, ing points our two critical deserve room, at practice, and and before after First, the at attention. relevant “speech games. Nor it treating inju was limited to kneeling praying issue” involves and ries instructing players and about tech fifty-yard immediately the line Rather, niques to related football. addi par while in view and students duties, tion to these BSD “entrusted” Lane, not, ents. See 134 S.Ct. It is at 2379. coach, Kennedy “to be a mentor and role contends, Kennedy fifty- as on the for Kennedy model the student athletes.” yard “silently line alone.” know We agreed to further “exhibit sportsmanlike (and, Kennedy for this because was offered times,” conduct at acknowledged all time, an accepted) per accommodation that, coach, as a football he was “constant mitting pray him to line ly being by others.” observed The District emptied after the had and stu stadium required also to “communicate custody dents had been released to the effectively” parents, with posi “maintain parents. their His refusal of that accommo relations,” tive “[o]bey media all the that it is dation indicates essential Rules of players Conduct before and the speech presence be delivered the public Coach,” expected in a Head Second, for spectators. students and cluding to requirement proper “use reason, “speech same at is issue” di players conduct before part rected at to the least students and all surrounding spectators; solely duty not times.” Consistent with his it is Hence, students, speech serve as a role Kenne ques directed God. model Eng that, tion is dy’s required under second factor wheth- contract all” “[a]bove “guide calls our attention to Dahlia and 1070-71. also several We articulated guidance posts” determining While draw Lane. we from those whether an individual decisions, they appreciable did not work scope professional acted within the of their change legal inquiry required (1) under duties. at 1073-74. These included Eng second factor. employee or not confined his “whether command,” communications to his chain of Lane, Supreme In Court reiterated that (2) subject "the matter of the communica question critical Garcetti “[t]he under tion,” (3) public employee’s whether a speech ordinarily is itself whether the at issue speech is "in to his su duties, direct contravention scope employee’s within the pervisor's we Id. at 1074-75. While orders.” subject speech] whether matter of [the factors, they are mindful of stem from these merely concerns duties.” 134 S.Ct. those police the context confronted—a offi Dahlia testimony 2379. It held that under ”[t]ruthful reporting cer in his own abuse occurred by public employee scope oath outside the police job department. 1064-65. We ordinary See id. at speech a citizen duties pur find for our Johnson more informative purposes.” for First Amendment Id. at 2378 added). poses (emphasis either because than Dahlia Lane Dahlia, specifically we reiterated that the second Johnson addressed teacher Johnson, Eng requires practical, fact-specific context. See factor 967-68; Coomes, may rely solely inquiry, courts and that F.3d at see also F.3d at generic job description. See 735 F.3d at 1259-61. Kennedy’s job as a only Practically speaking, “to else, endeavor being akin to was also athletes,” football coach hu good “good but also create v. S. teacher. Grossman Shore Pub. See beings,” man (7th Dist., 1097, 1100 Cir. Sch. 507 F.3d words, involved Kennedy’s .job, in other 2007) (“Staff interact acting in an modeling good behavior while teachers.”). playa similar “While role presence of students capacity in the official just any high school” he “not Ac- agree. spectators. amici Capistrano ordinary citizen.” Peloza v. professional cording former Dist., Sch. Unified Largent and Hen- players Steve Chad 1994). especially “one those He was ' instance, a football coach nings, chosen to teach” on respected 'persons example.” That is personal “serve[s] room, field, at the stadi locker do, the District hired what mantle of um. Id. He “clothed with the presence he was in the when knowledge who imparts one wisdom.” parents: a positive communicate position, “expres Like in this Id. mes: others example sage through by set his own “stock in Kennedy’s trade.” sion’’ was Any person Johnson, has attended a conduct. who Kennedy’s ex at 967. F.3d likely sporting event knows high weight school pressions dis also carried —as illustrate, said, impor To a is true. when “the coach is more this trict court call, job principal.” it is a than the See referee coach’s tant to the athlete makes bad Separa so, also Br. United for doing In of Americans respond pro- he maturely. State as Amici of Church and et al. tion example specta- to players vides Appellee [herein at 7-8 Supporting Curiae Likewise, parent tors. hassles when (former player BHS Br.] after AUSCS seeking playing more game coach after fig a “parental was child, by the reaction states time a calm for.her team). ure” to the appropriate the-player coach teaches about acknowledging that was By conduct. he coach, it high As school others,” by “constantly being observed Kennedy’s his words and duty also use Kennedy plainly demons- understood in the expressions to “instill[ ] values the com- fell within trative communication Tp. E. team.” Borden v. Sch. Dist. of professional obligations. And pass his (3rd Brunswick, n.15 that his tellingly, Kennedy’s de- insistence 2008). observe, “many moth As amici occur view of'stu- speech monstrative of their son’s foot to the ers look coaches suggests parents dents hope the last show ball team as best responsibility his prayed pursuant it to become their means son[s] what exemplar. serve as a role and moral model Br. at real AUSCS man[.]” man—a enough from Were that evident Kenne- Why (quoting Harbaugh, John Football accommodations, rejection Balt, dy’s BSD’s 22, 2015), Matters, (Apr. Ravens Kennedy’s off-field conduct bolsters the re http://tinyurl.com/kn5fdhh). record appear- his particular, inference. media For Kennedy pursued flects that that task. prayer in the BHS bleachers ances and gave example, motivational (while apparel and wearing BHS surround- spectators after speeches to students and others) signal Moreover, his intent to send a players ed did not games. BHS Kennedy’s message parents about on absence. students and their own pray players he Rather, values appropriate what behavior observed only on the field as a coach. gations, personally significance elected to do

where the constitutional job Kennedy’s responsibilities plain so. —he spoke as a employee, not pri- as a job Finally, just responsi- as Johnson’s citizen, speech vate his therefore his “speaking'to bilities included class unprotected. hours,” during his class Kenne- classroom dy’s demonstratively to speaking included guideposts Each we have spectators game at the after the stadium suggests established this context Johnson, through his conduct. F.3d Kennedy spoke employee. Kennedy’s thus demonstrative First, necessarily act as “teachers teachers a function” performing occurred “while purposes Pickering inquiry of a when that fit “squarely within' scope [1] at school or a school function, ^[2] in the position.” After all, Kennedy spoke at a general presence of students, ^[3] in a ca event, property, wearing on school pacity might reasonably one offi view as attire, duty BHS-logoed while as a su- Johnson, cial.” at 968. Kennedy’s F.3d prominent posi- and in the most pervisor, easily conduct all three of meets these field, it tion where knew was conditions. students, fans, parents,

inevitable that Next, instruct, as Johnson and Coomes media, occasionally would observe his if “speech ‘owes existence’ its. behavior. teacher, position [Kennedy] then sum, Kennedy’s job In multi-facet- was a spoke public employee, as not as a citi- ed, things it among but entailed both other zen, is inquiry at at our an end.” Id. a teaching serving as role model and Garcetti, 421-22, 966 (quoting 547 U.S. at acting in official exemplar. moral Here, When 1951). an ordinary S.Ct. citizen of capacity presence in the students and fifty-yard could not on the prayed have spectators, Kennedy responsible also was games, immediately line Kennedy after as District’s communicating perspec- for did, special because had access through appropriate tive on behavior by position the field of his a virtue as example by set his conduct. own coach. The as much. record demonstrates Representatives of religion a ar- Satanist significance

2. constitutional “to rived at the stadium conduct ceremo- Kennedy’s job duties. of [a] nies field after football [BHS] facts, game[.]” by kneeling They forced tó abandon Mindful of were this those effort immediately they on after learned that field line was praying Thus, games open precise of not an while view students and forum. after sending message speech kneeling parents, was issue— coach, the fifty-yard immediately line about what he values as what the behavior, parents— of while view students and appropriate District considers believe, not physically engaged or could have been and what students should how if they ought Because he not a coach. Kenne- such de- behave. dy’s speech only fell well within therefore oceúrred be- monstrative communication position of his scope Kennedy’s professional cause the District.8 obli- Indeed, conveys. his points warrant insists that sin 8. Two additional comment. First, assertions, cerely religious permit Kennedy's. contrary held beliefs do not him pray anywhere is the on-field other than on field forum relevant because location game just played. required component Kennedy's speech, is where the The accom was signal temporal message he further and one he modations refused central n (internal quotation Lastly, given “expression,” as 658 F.3d at 968 omitted). addition, trade,” as an Johnson, In he “did act Kennedy’s “stock in was ‘espousing as employer ordinary citizen when God commodity he to his sold (internal bright quotation opposed to no under salary, id. at 967 God’” omitted), Id. at lights it is similar stadium. BHS mark and alteration speech question of his demonstrative fell of “the 967. Because ly non-dispositive typical job responsi his scope [Kennedy] spoke a citizen within the as whether bilities, public employee, he religious spoke content employee” that the as an Kenne permitted to order Kennedy’s message part his District Coaches, “curriculum,” manner he dy speak not to in the did. id. at n.13. 967-70; teachers, acting Tucker State Cal. not cease as See id. at do like 1204, 1213 Dep’t of Educ., F.3d rings bell or the “each time the coaches 1996) (“A speak for the appears teacher beyond moves the narrow conversation teaches; therefore, 967- state she of curricular Id. at when topic instruction.” event, may permissibly restrict any Kennedy’s prayer department cele Peloza, advocacy.”); F.3d content of such sportsmanship, so the brates to restrict biolo arguably (permitting falls at 522 within “to his (job gy ability discuss Kennedy’s curriculum. See ER teacher’s during school time Kennedy to beliefs with students description requiring “exhibit school, times”). grounds”). conduct all sportsmanlike Borden, True, agree. In circuits Kennedy spoke in contravention Other orders, Dahlia, that a coach supervisor’s spoke see 735 Third Circuit concluded to his official “pursuant duties but lone consideration F.3d public employee— enough employee speech to transform coach”—and thus as took was, his head and a knee speech. into citizen If it there when he bowed they prayed in the analysis be no need be- with team while Garcetti prior games. 523 every First retaliation locker room to football cause Amendment context The coach employment case in the involves F.3d at n.13. “concedefd] bowing of his head degree disagreement that the silent acts employer some and tools that he expressive taking [were] the a knee use[d] with conduct. good moral players respect teach his and told, by kneeling All on the and Id. He therefore was character.” at 172. games, line fifty-yard immediately after teacher, as a fulfilling responsibilities his fulfilling professional his re as is here. sponsibility to demonstra communicate Yet, v. Board Edu tively spectators. students Evans-Marshall and (6th 2010), cation, the his Cir. advantage position press “took of his F.3d 332 that a explained “[w]hen particular upon impressionable views the Sixth Circuit Johnson, teaches, system the school ... captive minds before him.” teacher and position Surely, requirements concerning as a coach. if an and due to his circumstantial (i.e., speech im his it must be delivered ordinary that onto the field and citizen walked mediately game, line, while in view of after the speech prayed spectators). These confirm that the features message the same would not communicate relevant demonstrative conduct— citizen would not be clothed with because the speech spectators to students its Johnson, —owes Kennedy’s authority. See 658 F.3d at Kennedy’s position the Dis existence to 968; of Educ., v. Bd. 624 F.3d Evans-Marshall Second, Kennedy’s mes demonstrative trict. 2010). (6th Cir. sage only instructive carries force Id, (internal speech.” hires that required basketball are to at team omitted). tend,” “[d]uring quotation mark As a these [Dis conse activities^] surely regulate employees trict] “it can coaches and other school quence, content present are representatives as expressed,” of what is or is because school their representative actions are is employee employ teacher not “the Id, policies.” (internal Applying [District] omitted). quotation er.” Id. reasoning, speaks employ if a coach anas For example, Pickering a let “[w]hen sent by standing vicinity ee student newspaper criticizing ter to local prayer supervising the students imme board,” noted, school court “he said diately after practice, a basketball there any something right citizen has question Kennedy spoke can be little it on say, and he his own time did as an employee per when he likewise name, not on own the school’s time or formed task that hired and contrast, By Id. in its name.” when a paid to perform: him demonstrative com through teacher did teaches—-as spectators munication with students and example own conduct act while immediately after games. ing capacity in his assistant coach— (and something “[he] [he] was hired d[oes] counterarguments 3. Kennedy’s do, paid) something [he] have could convincing. are not for done but the Board’s decision hire in insists the district court teacher.” [him] bright-line vented “a test temporal employed Circuit Seventh same strips protections First from Amendment Mayer County reasoning v. Monroe ‘on the That job’ public employees.” Community Corporation, School “[t]here incorrect. The district said court 2007). It found teachers “that issue,” bright-line no on this test ... hire out pro- their own and must asking Eng decided second factor vide the service which employers are Kennedy spoke em whether willing to It pay.” Id. at 479. thus held that private totality ployee or citizen “under spoke teacher as an not as employee, importantly, the circumstances.” More citizen, she opined Iraq when war temporal the court did articulate session, at a “current-events conducted dichotomy First Amendment reserves hours, during part of [that] class her rights employees. To only “off-duty” Id. Similarly, Kennedy official duties.” illustrate, in his office Kennedy can pray field, spoke on a time when he was plays, duty up pray he is on drawing while call, on in a and manner that was well duty super non-demonstratively when job description. within Like his the teacher students, vising pray private or in “a loca in Mayer, spoke he therefore as a building, tion within the school athletic employee. facility, press or box” and after before Indepen in Doe v. Finally, Duncanville games, can also write as BHS offered. He District, (5th dent School 402 70 F.3d Cir. duty a letters to local while newspaper 1995), Fifth Circuit barred school coach, em Pickering, U.S. at see 391 572- ployees in participating supervis 1731, from poli 88 discuss privately S.Ct. ing prayers took colleagues student-initiated that in the religion tics or his with place practice. basketball at 406. lounge, after teacher’s v. McPher see Rankin prayers son, 378, 388-92, It that challenged “[t]he reasoned S.Ct. 483 U.S. 107 school-controlled, (1987); Tucker, place during take curric F.3d at L.Ed.2d 315 97 activities that claim the First ulum-related members of 1213. he cannot do is What employee though even protections private-citi spoke as she er Amendment’s hired, prays on speech he kneels and not been buttonhole cosme- zen when “had immediately line after fifty-yard in tology the corridors and hand students in students logoed-attire view proclaiming homosexuality school that out tracts Berry Dep’t Soc. sin”). plarents. Kennedy also is a mortal does Cf. 2006) Servs., 651-52 dispute speech that his demonstrative gov prohibiting a (upholding restriction a taught about he viewed as what discussing religion from employee ernment dispute can he appropriate conduct. Nor government with his clients cubicle his many players responded prayer if that as assistance, them providing in the course school-sponsored part of the curricu- employee that could explaining while they prayed only on the field when lum— he does still Bible “whenever read his Kennedy elected to do so. cubicle”). him in his have a with client Kennedy' it is Finally, insists irrelevant Next, that crit- “[t]he observes only by had access to the field is ical under Garcetti whether question position virtue of his Lane estab- because ordinarily is itself within speech at issue question that the critical lishes whether Lane, of an scope employee’s duties.” speech ordinary scope was within argues prayer— at 2379. He S.Ct. explained For of his the reasons duties. -not speech “relate[] “the issue”—did above, Kennedy’s speech was within the certainly did constitute job, to” his event, In ordinary scope any of his duties. where, here, again, as “coaching.”9 But Coomes, af- which overlooks speaks at a school event teacher plaintiffs speech that if a its firmed “owes capacity one of students presence teacher, position as existence [his] official, as we might reasonably have view employee, not spoke a-public then as [he] a teacher proposition rejected citizen, inquiry is at our simply because the speaks as citizen (internal quota- at 1260 end.”10 F.3d veers, beyond speech of his content omitted). alterations tion instruction, and instead of curricular topic sum, when kneeled Johnson, 658 religion. F.3d relates immediately line Grossman, prayed 967-68; F.3d at see also games' of students (“The while view not a First Amendment spoke public employee, parents, he expression license uncontrolled teacher citizen, private not as a curricular con- established variance (internal constitutionally omitted)); unprotect- therefore was quotation marks tent.” (concluding teach- at 480 ed.11 Mayer, 474 F.3d acknowledges speech by public- involved because Coomes elsewhere . employee speaks "as a citi- whether a official. on the content zen” does not turn may arguing then speech. Kennedy emphasize 11. We that our conclusion neither is not related to his act of itself on, relies nor should be construed to estab job. argument because demonstra- That fails lish, analysis any bright-line As rule. our dem ¿f- spectators tively speaking to students , Eng requires the second factor a onstrates example through set his own games ter practical, inquiry fact-intensive into the na Kennedy’s job scope of is within the conduct job scope plaintiff's responsibili ture and a responsibilities. requires careful examination of ties. It also precise speech We also at issue. continue nearly years two after We issued 10. Coomes recognize "speech by public employ . Additionally; that a. Lane. Supreme issued Court ee, teacher, always represent, analogous does not factually than Lane even more is Coomes

831 nedy’s CONCLUSION claim fails on therefore the addi ground tional that the District can satisfy Friday nights, many On cities and towns the fourth Eng Eng factor. Cooley, See v. temporarily across America shut down 1062, 2009) 552 F.3d 1071-72 gather high while communities to watch (asking whether adequate the state has an games. school football Students and'fami justification for restricting employee’s join lies from all walks life “to root speech). I also write share a few common young peo cause” and admire thoughts about the role of the Establish ple step proudly who onto the field. Santa ment in protecting rights Clause all Doe, 290, Fe Ind. v. Sch. Dist. 530 U.S. (or Americans to worship worship) 312, 2266, 120 S.Ct. 147 L.Ed.2d 295 they see fit. (2000). “recognize important While we public role worship plays many Governing I. Law communities, as well as the sincere desire provides Establishment Clause public prayer to include as a of [these] part “Congress respecting shall make no law occasions,” activity promote such can dis Const, religion.”’ establishment of U.S. lines, unity along religious and risks alien I. The applies against Clause amend.. ating community valued members from an states, public and therefore their open environment must and wel systems, pursuant to the Fourteenth 307, coming to all. Id. 120 at S.Ct. 2266. Jaffree, Amendment. See v. Wallace 472 why “preservation That trans 38, 49-50, 2479, U.S. 105 S.Ct. 86 L.Ed.2d mission of worship beliefs and (1985). 29 govern The Clause “mandates responsibility and a committed to choice neutrality mental religion between and re private sphere, promised itself is which ligion, religion and between and nonreli pursue freedom to Lee mission.” v. gion.” McCreary Cty., Ky. v. Am. Civil Weisman, 577, 589, U.S. S.Ct. 844, 860, Liberties Ky., Union 545 U.S. 2649, 120 (1992). L.Ed.2d 467 (2005) Epperson 125 S.Ct. (quoting hand, As for the task we hold that Ark., 97, 104, 89 U.S. S.Ct. Kennedy spoke employee when (1968)) (internal quotation L.Ed.2d 228 prayed kneeled and omitted). par “The been has Court line immediately while view ticularly vigilant in monitoring compliance parents. of students and there- with the Establishment Clause in elemen fore cannot show likelihood of success on tary secondary schools.” Edwards v. the merits his First retalia- Amendment 578, 583-84, Aguillard, 482 U.S. 107 S.Ct. tion claim. AFFIRM district We (1987). 96 L.Ed.2d 510 In that set denying Kennedy’s court’s order motion ting, .great authority “[t]he exerts State for a preliminary injunction. Appellant power through mandatory coercive at App. shall bear costs on appeal. Fed. R. P. requirements, tendance and because 39(a)(2). ’ emulation of students teachers as role models the children’s süsceptibility SMITH, Judge, M. Circuit specially pressure.” peer 2573. S.Ct. concurring: Accordingly, “proscribes the Clause I separately my conveying attempting write view that schools from or share justified convey message religion partic BSD’s actions were also to avoid violating pre Establishment Ken ular is favored Clause. belief Tucker, appear represent,

or even views of state.” 832 Weisman, 577, Fe, challenged plaintiffs In Santa Lee v. 505 U.S.

ferred.” policy permitted, but school district 604-05, 2649, 120 467 112 S.Ct. L.Ed.2d require, deliver did student J., (internal (1992) (Blackmun, concurring) system be- address over prayer omitted). emphasis quotation marks and 294, varsity game. fore each factor, Eng the fourth Dis Under “Prayer The at Football 120 2266. S.Ct. if it escape potential liability can trict can policy “authorized two student Games” adequate justification it show had an elections, the first determine whether treating Kennedy from oth differently delivered, Invocations’ should be general public. Eng, er members to deliv- spokesperson to select the second in (inter- “[A] 552 F.3d at state interest 297, 1071-72. 2266 Id. at 120 S.Ct. er them.” omitted). avoiding an Establishment Clause violation After the quotation nal marks compelling, prayer may be characterized as had voted favor im- speaker, the school district justify selected may content-based dis therefore It omitted the plemented changes. two News crimination.” Good Club v. Milford from the title and amended “prayer” word Sch., 98, 112, 121 2093, Cent. 533 U.S. S.Ct. “‘messages’ policy refer (2001) (internal quotation 151 150 L.Ed.2d ” Id. at well as ‘invocations.’ ‘statements’ as omitted); Capis see also v. marks Peloza (internal 298, quotation 120 2266 S.Ct. Dist., 517, 522 Sch. trano Unified omitted). marks 1994) (“The (9th school district’s inter Cir. policy avoiding To an Establishment Clause assess whether amended est Clause, the Establishment violated trumps right to free [a teacher’s] violation objective student whether an Court asked speech.”).1 history familiar observer who was Independent Fe School v. Santa of the school’s conduct and context would Doe, 290, 2266, 120 530 U.S. S.Ct. 147 is, actuality, perceive that en- “prayer (2000), 295 the frame- L.Ed.2d describes 308, 120 couraged by the school.” Id. assessing work whether BSD would differently, Put the relevant 2266. S.Ct. for an viola- liable Establishment Clause objective ob- question was “whether an kneeling tion if resume text, server, legislative acquainted with the line immedi- [policy], implementation history, óf ately presence in the stu- perceive it a state endorsement would 315, spectators. See id. at dents (emphasis schools.” Id. prayer omitted). (asking added) (internal whether the “continua- quotation S.Ct. rule, prayer of’ school event vio- that “an Applying tion would Court held Clause). objective High Fe student School Santa late Establishment protected the First disagree otherwise parties as to whether the Dis (internal quotation marks and trict must show an actual Establishment Amendment.” ' News, violation, omitted)); Berry Dep't Clause see Good U.S. at Soc. alteration 112-13, merely legiti 2006) 121 S.Ct. Servs., F.3d avoiding mate an Establishment interest (holding government’s “need to avoid violation, Chapel Clause Lamb's v. Cir. see possible the Establishment violations U.S, 384, Dist., Union Free Sch. Moriches employee justified restriction on Clause” (1993) 394, 113 S.Ct. 124 L.Ed.2d 352 this issue because a speech). I do reach (noting suggestion prior in a case the Court's Kennedy’s conduct resumption avoiding of the State in that “the interest clearly result in an actual Establishment may violation be a com Establishment Clause Clause violation. justifying abridgement pelling of free one

833 unquestionably perceive history the inevit- The policy w[ould] and context of the pregame prayer stamped objective able bolstered the with her conclusion that an approval.” perceive seal of Id. observer would to be school’s the school encouraging prayer. The school had a setting. The first Court considered the “long-established sanctioning of tradition prayer large The would be “delivered to a prayer student-led at varsity football of part regularly audience assembled as 315, 2266, games,” id. at 120 S.Ct. and the scheduled, school-sponsored con- function policy itself had evolved from “office of the 307, property.” ducted on school Id. at Chaplain’ to candidly ‘Student the titled message 2266. S.Ct. The also would be ‘Prayer at regulation,” Football Games’ id. the “broadcast over school’s address 309, 120 S.Ct. 2266. The Court noted system,” “subject which was to the control prayers possible only the were be- of pregame school officials.” Id. The cere- cause the give school board had chosen to mony be would “clothed traditional the the opportunity students the to deliver events, sporting indicia of school which pregame messages. context, Id. With that team, generally just the include but the Court said it was “reasonable infer also cheerleaders members and band specific that the of purpose policy sporting in uniforms dressed preserve a popular state-sponsored reli- 308, name and mascot.” Id. at 120 S.Ct. (internal gious practice.” quotation Id. Further, the school’s 2266. name would be omitted). marks emblazoned the field and the crowd Lastly, “persuaded Court was “waving signs displaying would be delivery a pregame prayer of has the school name.” Id. The upshot, said the coercing effect of improper present those Court, objective that an audience to participate act of wor perceive pregame pray- member would ship.” 312, 120 Id. at 2266. According S.Ct. public expression er as “delivered with Court, to the some nonadherents of the school approval administration.” likely required games, to attend the “such Id. band, cheerleaders, members and, course, the team members them The text and rein purpose policy selves.” Id. at 2266. Even S.Ct. express pur forced that conclusion. The those required who were not so pose of the “sol pregame message was to “feel pressure,” immense social the Court emnize the event.” Id. at 120 S.Ct. said, “to be the extracurricular involved tellingly, only message type Yet high event that is school foot American “invocation,” the text endorsed was an (internal ball.” quotation Id. omit marks School, “in past High Santa Fe ted). So, by allowing prayer always ‘invocation’ entailed a ha[d] focused delivered, impermissibly the district was 306-07, 120 Id. at message.” S.Ct. forcing at choose “between (internal omitted). quotation tending avoiding po [a these regu The Court also noted that the school tentially] religious rit personally offensive message. Among the content lated 312, 120 Id. at S.Ct. 2266. ].” ual things, the message other had “establish appropriate competi environment totality circum Mindful these (internal 306, 120 stances, tion.” Id. at S.Ct. the Court concluded that “the omitted). quotation marks The school also plainly realities the situation reveal required pregame message “pro policy per both district’s] involves [the good religion.” mote sportsmanship.” Id. actual ceived and endorsement the. percep- 2266. It context would bolster therefore S.Ct. Clause. endorsing Establishment Id. at District was violated the tion that reli- the 316, 120 2266. S.Ct. gion. objective An would know observer only field access the Kennedy that had Application II. coach, by position of his that virtue Here, objective BHS student familiar an such ac- group been denied Satanist had Kennedy’s of history context the and with cess, Kennedy on demon- insists and that of practice perceive his would conduct in of stratively only view praying while fifty-yard line kneeling praying and True, in spectators. and contrast students in of stu- immediately after view Fe, District not be Santa the would District endorse- spectators as dents authorizing or the of regulating content encouragement of religion or ment of 306-07, See 530 U.S. Kennedy’s prayers. justifiably prayer. The therefore District Still, objective an observer 2266. S.Ct. vio- Kennedy’s speech avoid restricted Kennedy’s profes- it is know that would lating Clause. the Establishment duty to demonstrative- sional communicate spectators games, after ly to context, setting,

A. The history field, of that like use the use perception Ken- support the that system, “subject to the public address nedy’s be conduct would viewed of Id. at control school officials.” religion. of as state endorsement S.Ct. 2266. If setting supports this The conclusion. resume, Kennedy’s were an practice history would add The relevant public- would observe a objective student encourages the District perception that' BHS-logoed in attire de school 'employee objective prayer. An would know observer large of “a

monstratively praying front during eight years, Ken- previous that of part regularly audience assembled in locker-room nedy participated led scheduled, con school-sponsored function prayers, prayed on the regularly 307, 120 Id. at property.” on school ducted line, spiritual eventually larger led previous experience, 2266. on S.Ct. Based game. after each BSD exercise midfield him, likely join Kennedy’s players would that of it was this conduct states aware likely by meaning he would be surrounded Kennedy until if resume but majority of the team. The would midfield, an practice ob- occur at most location prominent also reasonably jective infer student could Kennedy during the field time when religious ex- ratifying supervising players. responsible con- previously had ercises that likely “the Lastly, the exhibit scene would inference, l follow be- ducted. This would sporting school traditiona indicia acquiescing to cause the District would be events,” and band including “cheerleaders knowing, well Kennedy’s full conduct uniforms,” audi members dressed only players prayed when “waving signs displaying ence so, previous elected to do name,” name or initials school’s and the prayer practice as an individual started large print’ across the field and “written 308, 120 but evolved an orchestrated session into .flags.” Id. at S.Ct. banners and faith.2 2266 . inference, objective ob- Again, bolstering players. perhaps this An surrounded history objective likely relevant see server observer would familiar

Lastly, by ating con permitting from the themselves team. rec duct, suggests condoning be ord this is precisely the District would what occurred coercion Santa Fe. As when pray same idéntified first started ing on case, in 2008. true various students the field See Kennedy Decl. (“Over time, 3at required games, number players to attend the. gathered who me cheerleaders, near game the. members “such grew band, and, course, majority team include members team.”). Yet the Constitution Id. at forbids Ken themselves.” S.Ct. 2266. nedy forcing from students whose beliefs an They rep important would see ' e are not the to compromise same his display distinctively “the resentativ personal identify their beliefs them in prom prayer-form”3 the most Christian selves as dissenters. field, despite location on the the com inent munity's religious diversity. This act would sum, if were to resume ancillary message to the members “send[ ] kneeling and line who of the audience are nonadherents that in immediately while view of outsiders, are members of they full spectators, objective an students and stu- community, accompanying an and political dent see observer an su- would influential message they that are insid adherents pervisor something no do ordinary citizen ers, the political favored members com a perform Christian could do— (in munity,” 309-10, Id. at 2266 120 S.Ct. act on property school while secured sur- omitted). quotation ternal players simply because is rounded — “intentionally involve might students of thé a coach. District’s views Irrespective activities,” on-duty religious (empha matter, in his a reasonable that observer added), I sis but no reason to have believe light of history would conclude in and pressure emanating from posi that surrounding Kennedy’s contéxt conduct of authority dissipate. District, tion would Accord actuality,” that “in reli- favors many pressure gion, feel ingly, prefers Christianity would in particu- and activity Fe, 308, join Kennedy’s religious lar.4 avoid Santa U.S. at 120 S.Ct. marking alien 2266. themselves as outsiders or contrast, lee By typically also football 12. would know team at Jews "do not that had kneel,” engaged post-game prayers in prayer and "as and pre- instead "stand tradition,” Muslims, sway.” school often matter of and that both 13. For "the Id. at Kennedy’s typical posture though apparently "predated” prayer prostration, activities is program. prayer standing bowing.” involvement with the With also involves context, objective might Prayer Id. observer rea- Bahá’í faith kneel "involves ing, sonably bowing, perceive prostration.” the District Id. had Hindus and seated, changed regarding propriety “pray cross-legged mind Buddhists its Kennedy’s particularly position.” Finally, noting so be- lotus conduct. This Id. it is worth community BSD ^previously cause had stated a letter to the Bremerton indi includes community identify viduals agnostic. Bremerton it could not who as atheist or as permit Kennedy’s lest it be conduct consid- Id. 14. endorsing religion. be ered Brunswick, Tp. 4. Borden v. E. Sch. Dist. of 2008), (3rd Kennedy employed Amici note dis F.3d 153 supports "the Cir. this There, tinctively prayer kneeling form of Christian the Third Circuit held that conclusion. clasped pose impermissibly and head bowed —a football coach with hands reli endorsed deep symbolic gion by bowing significance taking historical head knee meaning Christianity.” players engaged prayer, within Br. of while his Ameri 174, Separation Kennedy, cans United for of Church and Like coach history had Appel- leading Supporting prayers, yet et al. Amici team State Curiae stated that he want than counterarguments audience rather are to educate the

B. v. speaker.” Hills Scottsdale squelch the persuasive. 1044, 48, No. 329 F.3d Sch. Dist. Unified objective ob- Kennedy contends that 2003) (9th Hedges v. (quoting Cir. most) (at that he is “conclude server would Cmty. Dist. No. Unit Sch. Wauconda moment of silence” personal engaged 1993)). (7th Cir. 1299-1300 F.3d directly not be would because students However, held that a disclaimer we have not be District would pray, coerced Establishment to alleviate not sufficient religious ex- regulating the content of his graduation speech in the concerns Clause not be the prayer would pression, context, Lassonde Pleasanton Unified in contrast policy, product Dist., Sch. These in Santa Fe. prayer issue 2003), unlikely that a similarly it is correct, they have but may observations perception cure the disclaimer within significance little when considered again, an Once at issue here. endorsement Indeed, totality the circumstances. still see objective observer would student of indi- by the evidence they are rebutted something employee do respected District coercion, objec- the fact that an rect perform a ordinary no citizen could do— with the context observer familiar tive on a distinctively religious Christian act Kennedy’s professional it is would know property portion of school while secured demonstratively to duty to communicate is simply because he supervising students — games. after spectators Moreover, coach. because BHS Next, Kennedy kneeling insists in the would occur Kennedy’s speech be line would praying ordinary responsibilities and of his course religion of as state endorsement viewed capacity in his speaking he expressive conduct because coach’s be at his conduct would employee, playing quintessential is around field District, diluting to the tributed thus Kennedy notes that some personal speech. of See Bor any potential effect disclaimer. touch- point to the heavens after a athletes (“As den, employee an n.20 177 down, being player is kneel when both a coach of District as the School gen- injury, yet do not treated for fans teacher, actions can be tenured Borden’s of as hav- erally either actions view those For District. this imputed the School of Even ing made behalf the team. been reason, Dis claim the School Borden’s true, says if that it little about any remove Establishment trict could here, ignores entire- speech at issue and it by writing a disclaimer Clause violation ly history and context sur- relevant rep speech does saying that Borden’s Fe, rounding Kennedy’s speech. See Santa of the School District resent ideals (holding 120 2266 530 U.S. S.Ct. Ind. wrong.”); Doe v. Duncanville simply eye to the may not “turn a blind courts 1995) Dist., F.3d Sch. arose”). context [the conduct] which during school-sponsored (stating that present as coaches “are Lastly, Kennedy sporting that the rem events contends and their ac representatives “is edy any inference of endorsement omitted). (internal quotation In only respect kneel show ed to bow and objective Kennedy's history, ob light his team. Id. at 177. The court concluded here, history gave infer rise "to same inference reasonable server could draw requested conduct is [the coach’s] ence that notwithstanding Kennedy’s statement that state-sponsored preserve popular meant to silently only pray and alone. seeks religious practice his team.” with representative tions are stamp [school cial of approval district] upon particular one policies”).5 of prayer kind particular one form of religious Vitale, Engel services.” sura, satisfy the District can 421, 429, U.S. S.Ct. L.Ed.2d 601 Eng fourth It justifiably factor. restricted (1962). Kennedy’s speech to avoid violating the An objective Establishment Clause. BHS It is a lamentable fact of human history student familiar history relevant whenever a majority controls perceive context would con- the government, it frequently uses the civil duct to reflect school endorsement of reli- power to persecute religious minorities gion, encouragement prayer, pref- and a and non-believers.7 The Founders who met particular erence for one faith.6 Philadelphia negotiate terms Constitution, the U.S. men and the who Averting III. state establishment of re- later in ratifying met in the conventions ligion ultimately safeguards reli- states, several many aware that well gious liberty. hundreds of of people thousands had lost may Some readers find this conclusion lives, tortured, their been or had otherwise reflects, disconcerting. The record deprived rights been by gov their civil all, that Coach deeply cared ernments in the control of some students, about his and that his conduct faith, during European the then recent was well-intentioned from and flowed of religion. wars cataclysmic These events sincerely-held religious beliefs. those Given (1588- led writers such as Thomas Hobbes factors, it pausing is worth to remember 1679) (1632-1704), and John Locke each of that the designed Establishment Clause is Founders, whom was familiar to to to and protect advance religious liberty, argue that state an inappropri coercion is to injure religious those who have ate Indeed, enforcing and ineffective tool for reli history faith. has taught us “that gious greatest conformity, religious one of since dangers belief the freedom of the to worship way truly individual in his must be sincerely own held to be effica lay[s] in the placing Government’s offi- its cious . emphasize

5. I nonetheless that schools 6. The should also contends simply up "throw their hands because of fails the so-called "coercion” test and conduct possible misconceptions about endorse three-prong from Lemon v. framework Hills, religion.” of ment 1055. Kurtzman, 91 S.Ct. U.S. Instead, they should [stu endeavor "to teach (1971). L.Ed.2d 745 I do those address amendment, dents] about the first about the arguments light analysis in outlined of the action, private difference between above. views,” why divergent about [and] we tolerate as BSD’s letter to the community Bremerton (and might 7. Interested Will later readers find (first admirably sought to do here. Id. altera Ariel) epic Will and series on th Durant’s original) (quoting Hedges, tion in 9 F.3d at e civilization, history separate of volumes 1299). exercise, speech, "Free free and the Faith, Renaissance, Age entitled The of The quite compatible ban establishment are Reformation, Begins, Age The The Reason of government when the remains neutral and Voltaire, XIV, Age Age The of of Louis educates the about the reasons.” Id. Revolution, amongst oth Rousseau and 1300). However, (quoting Hedges, 9 F.3d at in ers, an excellent source to learn more about instance, remaining this BSD would not be subject, this See Will Durant Durant, eyes objective & Ariel of neutral in the observer if 1993). (MJF Books story permit Kennedy it were to of resume on- civilization prayers, field which, generous policy, offering from that ways, In the United States some d Asylum persecute to reli- very op existence due whose nation most gious the colonies every Religion, conflict because pressed Nation and by persons who initially came settled promised were a lustre our Id. at country.” persecution in escape religious here to 83. came, they Europe. such colonists When defeated, Henry’s After bill was the Vir- amongst generally those who held settled legislature ginia eventually up took Thom- beliefs, and the similar dominant plan separation for the as Jefferson’s govern- group civil controlled 1786, Virginia Bill church and state. ment, in just as been Eu- had case Establishing Religious for Freedom was Thus, initially rope. Anglicans dominated adopted. Among things, other Bill Massachusetts, Virginia, Puritans provided: Quakers Pennsylvania, Baptists Island, Assembly

Rhode Roman of Virginia Catholics in We General when, enact, Maryland. example, the Pu- But that no shall be compelled do man ritan Bay any frequent support relig[i]ous leaders Massachusetts or Colony challenged by religious whatsoever, dis- were Worship Ministry or place' senters, Roger Williams and Anne enforced, such restrained, shall mo- nor Hutchinson, dissidents were banished lested, body in his or burthened from, by, the persecuted Colony over goods, nor shall suffer on ac- otherwise disagreements concerning theology, as belief, religious opinions count general- and non-Puritans Catholics but that all be free profess, men shall ly. frequently employed in Violence was by argument to maintain their opin- many religibus to suppress colonies religion, ions matters and that dissenters. diminish, same in no enlarge, shall wise ' capacities. or-affect their civil America a Seeking to make more true (cid:127) refuge religious persecution, from some wrote the law was Jefferson early began leaders advocate comprehend, “meant to within the mantle religion govern disentanglement Gentile, protection, of its and the Jew example, responding ment. to a bill For Mahometan, Hindoo, the Christian and Henry by calling for Patrick introduced denomination,” every and Infidel of Thom- of the Chris “Teachers state support Jefferson, (1821), Autobiography in 5 president tian future James Religion,” at 85. Constitution, The Founders’ essay arguing an that penned Madison Madison make endeavored Jefferson’s financially support Virginia should a part vision of the Constitution. For ex Madison, See James Christian instruction. of ample, Article the Constitution VI re Against Remonstrance Reli Memorial quires all federal officials “shall be (June 20, gious 1785), Assessments Affirmation, by or (P. support bound Oath Kur Constitution The Founders’ Constitution; no this but 1986). Test Lerner eds. land R. Madison & required Qualification shall ever rhetorically: does not see asked “Who any Office or public Trust under the Unit authority which can establish same VI, Later, art. cl. of ed States.” Const. in exclusion all other Reli U.S. Christianity, First what became the Amendment to the gions, same may establish ease Christians, Constitution the words: of included “Con any particular sect exclu gress no respecting shall make law sion He also ob an of all other Sects?” Henry’s departure religion, of prohibiting bill was “a establishment served Id. amend. the free exercise thereof....” DZ BANK

I. of purpose pro these is to AG DEUTSCHE ZENTRAL- clauses BANK, tect our of worship freedom unhindered GENOSSENSCHAFT Frank Main, government. furt Branch, AM York New Plaintiff-Appellant, very glimpse aspect This brief one intended, that, history our to show hav- ing from the learned harmful effects Phillipus MEYER; Lynn Louis Meyer, conflicts,

past religious our nation’s Found- Defendants-Appellees. ers included our foundational law safe- guards against religious by oppression No. 15-35086 (or government government) arms of that the control of majority under of Appeals, United States Court punish severely limit our Ninth Circuit. (or right to worship worship) as we please. priceless This bulwark our Argued May and Submitted freedom, I personal hope that interest- Seattle, Washington ed appreciate will come to readers August Filed good Establishment Clause as a friend and protector, enemy, and not as one of precious rights

their most and liberties. Conclusion

IV.

Striking appropriate balance between

ensuring right free

avoiding the endorsement of state reli-

gion easy. Thankfully, has never been we longer

no resolve these conflicts with vio-

lence, law, but instead use courts of where

parties arguments in open make free and

hearings to address their differences. To end, I lawyers commend these

proceedings exceptional job they

have done.

At day, the end I believe that a

resumption conduct would

violate the Establishment I Clause. would deny preliminary injunction

therefore ground the additional can BSD Eng

satisfy the fourth facto r.

Case Details

Case Name: Joseph Kennedy v. Bremerton School District

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 23, 2017

Citation: 869 F.3d 813

Docket Number: 16-35801

Court Abbreviation: 9th Cir.