Lead Opinion
Concurrence by Judge Milan D. Smith, Jr.
OPINION
Bremerton High School (BHS) football coach Joseph A. Kennedy appeals from the district court’s order denying his motion for a preliminary injunction that would require Bremerton School District (BSD or the District) to allow Kennedy to kneel and pray on the fifty-yard line in view of students and parents immediately after BHS football games. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Bremerton School District
BSD is located ⅛ Kitsap County, Washington, across the Puget Sound from Seattle. The District is home to approximately 5,057 students, 332 teachers, and 400 non-teaching personnel. BSD is religiously diverse. Students and families practice, among other beliefs, Judaism, Islam, the Bahá’í faith, Buddhism, Hinduism, and Zoroastrianism.
BSD employed Kennedy as a football coach at Bremerton High School from 2008 to 2015. Kennedy served as an assistant coach.for the varsity football team and also as the head coach for the junior varsity football team. Kennedy’s contract expired at the end of each football season. It provided that BSD “entrusted” Kennedy “to be a coach, mentor and role model for the
Kennedy’s formal job description required him to assist the head coach with “supervisory responsibilities,” “[ajdhere to Bremerton School District policies and administrative regulations,” “communicate effectively” with parents, “maintain positive media relations,” and “[o]bey all the Rules of Conduct before players and the public as expected of a Head Coach,” including the requirement to “use proper conduct before the public and players at all times.” Consistent with his responsibility to serve as a role model, Kennedy’s contract required that, “[a]bove all” else, Kennedy would endeavor not only “to create good athletes,” but also “good human beings.”
B, Kennedy’s Religious Beliefs and Past Practices
Kennedy is a practicing Christian. Between 2008 and 2015, he led students and coaching staff in a locker-room prayer pri- or to most games. He also participated in prayers that took place in the locker room after the games had ended. Kennedy insists these activities predated his involvement with the program, and were engaged in as a matter of school tradition. His religious beliefs do not require him to lead any prayer before or after BHS football games.
Kennedy’s religious beliefs do require him to give thanks through prayer at the end of each game for the players’ accomplishments and the opportunity to be a part of their lives through football. Specifically, “[ajfter the game is over, and after the players and coaches from both teams have met to shake hands at midfield,” Kennedy feels called to “take a knee at the 50-yard line and offer a brief, quiet prayer of thanksgiving for player safety, sportsmanship, and spirited competition.” Kennedy’s prayer usually lasts about thirty seconds. He wears a shirt or jacket bearing a BHS logo when he prays at midfield. Because his “prayer lifts up the players and recognizes their hard work and sportsmanship during the game,” Kennedy’s religious beliefs require him to pray on the actual field where the game was played.
Kennedy began performing these prayers when he first started working at BHS. At the outset, he prayed alone. Several games into his first season, however, a group of BHS players asked Kennedy whether they could join him. “This is a free country,” Kennedy replied, “You can do what you want.” Hearing that response, the students elected to join him. Over time, the group grew to include the majority of the team. Sometimes the BHS players even invited the opposing team to join.
Eventually, Kennedy’s religious practice evolved to something more than his original prayer. He began giving short motivational speeches at midfield after the games. Students, coaches, and other attendees from both teams were invited to participate. During the speeches, the participants kneeled around Kennedy, who raised a helmet from each team and delivered a message containing religious content. Kennedy subsequently acknowledged that these motivational speeches likely constituted prayers.
C. The September 17, 2015, Letter from BSD to Kennedy
The District first learned that Kennedy was leading locker-room prayers and praying on the field in September 2015, when an employee of another school district mentioned the post-game prayers to a
Kennedy was candid and cooperative throughout the District’s inquiry. The investigation revealed that coaching staff had received little training regarding the District’s policy. Accordingly, BSD Superintendent Aaron Leavell sent Kennedy a letter on September 17, 2015, to clarify the District’s prospective expectations.
Leavell explained that Kennedy’s two practices were “problematic” under the Establishment Clause, but he acknowledged that they were well-intentioned and that Kennedy had “not actively encouraged, or required, [student] participation.” Leavell advised 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.” He further advised that “[s]tudent religious activity must be entirely and genuinely student-initiated, and may not be suggested, encouraged (or discouraged), or supervised by any District staff.” Leavell further counseled Kennedy that “[i]f students engage in religious activity, school staff may not take any action likely to be perceived by a reasonable observer, who is aware of the history and context of such activity at BHS, as endorsement of that activity.” Lastly, Leavell stressed that Kennedy was
free to engage in religious activity, including prayer, so long as it does not interfere with job responsibilities. Such activity must be physically separate from any student activity, and students may not be allowed to join such activity. In order to avoid the perception of endorsement discussed above, such activity should either be non-demonstrative (ie., not outwardly discernible as religious activity) if students are also engaged in religious conduct, or it should occur while students are not engaging in such conduct.
D. Kennedy Responds via an October 14th Letter
By this point, Kennedy’s prayers had “generated substantial publicity.” Comments on social media led the District to be concerned that BHS would not be able to secure its field after the September 18, 2015, game, assuming — as it suspected— that a crowd would come down from the stands to join Kennedy’s on-field prayer. The District was “not able to prevent that from happening” based on the state of its preparations, and it decided that it would not “prevent access to the field at that point.” On the day of the game, the school’s concerns were not realized, however, because after receiving the District’s letter, Kennedy temporarily stopped praying on the field while students were around. Instead, after the September 18th game, Kennedy gave a short motivational speech “that included no mention of religion or faith.” Then, once “everyone else had left the stadium,” he walked to the fifty-yard line, knelt, and prayed alone.
Kennedy’s intention to pray on the field following the October 16th game “was widely publicized, including through [Kennedy’s] own media appearances.” On the day of the game, thé District had not yet responded to Kennedy’s letter, but Kennedy nonetheless proceeded as he had indicated. Once the final whistle blew, Kennedy shook hands with the opposing team and waited until most of the BHS players were singing the fight song to the audience in the stands. Then, he knelt on the fifty-yard line, bowed his head, closed his eyes, “and prayed a brief, silent prayer.” According to Kennedy, while he was kneeling with his eyes closed, “coaches and playérs from the opposing team, as well as members of the general public and media, spontaneously joined [him] on the field and knelt beside [him].” In the days after the game, pictures were “published in various media” depicting Kennedy praying while surrounded by players and members of the public.
The District maintains that while Ken-. nedy was' walking to the fifty-yard line, “[tjhere were people jumping the fence and others running among the cheerleaders, band[,] and players.” Afterwards, “the District received complaints from parents of band members who were knocked over in the rush of spectators on .to the. field.” Sometime after the game, members of a Satanist religion contacted the District and said they “intended to conduct ceremonies on the. field after football games if others were allowed to.” Ultimately, the District made arrangements with the .Bremerton Police Department to secure the field after games, then posted signs, made “robocalls” to District parents, and “otherwise put the word out to the public that there would be no [future] access to the field.” Representatives of the Satanist religion showed up at the next game, “but they did not enter the stands or go on the field after learning that the field would be secured,'”
E, The District’s October 2Srd and October 28th Letters
Leavell sent Kennedy a second letter on October 23, 2015. He thanked Kennedy for his “efforts to comply with the September 17 directives.” Still, he explained that Kennedy’s conduct at the game on October 16th was inconsistent with the District’s requirements. Leavell emphasized “that the District does not prohibit prayer or other religious 'exercise by employees while on the job,” but “such exercise must not interfere with the performance of job
According to the District, Kennedy had not met those requirements because “paid assistant coaches in District 'athletic programs are responsible for supervision of students not only prior to and during the course of games, but also during the activities following games ’and until players are released to their parents or otherwise allowed to leave.” (emphasis added). The District confirmed with Kennedy’s head coach “that for over ten years, all assistant coaches have had assigned duties both before and after each game and have been expected to remain with the team until the last student has left the event.” Thus, the District told Kennedy,
[W]hen you engaged in religious exercise immediately following the game on October 16, you were still on duty for the District. You were at the event, and on the field, under the game lights, in BHS-logoed attire, in front of an audience of event attendees, solely by virtue of your employment by the District.
The field is not an open forum to which members of the public are invited following completion of games; but even if it were, you continued to have job responsibilities, including the supervision of players. While [BSD] understand^] that your religious exercise was fleeting, it nevertheless drew you away from your work. More' importantly, any reasonable observer saw a District employee, on the field only by virtue of his employment with the District, still on duty, under the bright lights of the stadium, engaged in what was clearly, given-your prior public conduct, overtly religious conduct.3
The District 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.” Kennedy, of course, could also resume his prior practice of praying on the fifty-yard line after the stadium had emptied. Because the “[development of accommodations is an interactive process,” the District invited Kennedy to offer his own suggestions. The District also reminded Kennedy that “[w]hile on duty for .the District as an assistant coach, you may not engage in demonstrative religious activity, readily observable to (if not intended to be observed by) students and the attending public.”
Fi Kennedy Continues Praying ón the Fifty-Yard Line
Kennedy’s legal representatives responded to the District’s letter by informing the media that the only acceptable outcome would be for the District to permit Kennedy to pray on the fifty-yard line immediately after games.
The District subsequently notified Kennedy in an October 28th letter that-he had
While Kennedy was on leave, he was not allowed to participate in BHS football program activities. Kennedy could still attend the games in his capacity as a member of the public. At the October 30, 2015, game, which Kennedy attended as a member of the public, Kennedy prayed in the bleachers while wearing his BHS apparel, surrounded by others, and with news cameras recording his actions.
While Kennedy was on leave, and during the time that he temporarily ceased performing on-field prayers, BHS players did not pray on their own after BHS football games. Rather, during the 2015 season, the District observed players praying on the field only at the games where Kennedy elected to do so. The District’s public statement thus opined “[i]t is very likely that over the years, players have joined in these activities because to do otherwise would mean potentially alienating themselves from their team, and possibly their coaches.” The District also surmised that “students required to be present by virtue of their participation in football or cheer-leading will necessarily suffer a degree of coercion to participate in religious activity when their coaches lead or endorse it.” The District’s statement acknowledged that there was “no evidence” that students were “directly coerced to pray with Kennedy.” (emphasis added). The District also acknowledged that Kennedy “complied” with directives “not to intentionally involve students in his on-duty religious activities.” (emphasis added).
G. Kennedy’s Evaluation and Decision Not to Reapply for a Job
After the season ended, the District began its annual process of providing its coaches with performance reviews. This starts with written evaluations by the head coach and the school’s athletic director. The assistant coach then typically meets with one of those two people to go over his performance evaluation. If the coach is unsatisfied with the head coach or athletic director’s evaluation, he can involve the school principal or the District. Kennedy had previously participated in this review — and had received uniformly positive evaluations — but he did not participate in 2015. Kennedy’s supervisors nonetheless submitted their assessments. The athletic director recommended that Kennedy not be rehired because Kennedy “failed to follow district policy” and “failed to supervise student-athletes after games due to his interactions with [the] media and [the] community.”
The head coach of the varsity football team left the job at the conclusion of the 2015 season. The one-year contracts also expired for all six of the assistant football coaches. The District therefore opened up to application all seven of the football coaching positions. Kennedy did not apply for a coaching position during the 2016 season.
H. Kennedy Files Suit
Kennedy commenced this action in the Western District of Washington on August 9, 2016. He asserts that his rights under the First Amendment and Title VII of the Civil Rights Act of 1964 were violated. Kennedy moved for a preliminary injunction on-August 24, 2016, arguing that he would succeed on the merits of his claim
The district court denied the requested preliminary injunction on September 19, 2016. Applying the five-step framework laid out in Eng v. Cooley,
JURISDICTION AND STANDARD ' OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1).
A plaintiff seeking a preliminary injunction must establish that (1) he is likely to succeed on the merits of his claim, (2) he is likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in his favor, and (4) an injunction is in the public interest. Sanders Cty. Republican Cent. Comm. v. Bullock,
“[W]e review the denial of a preliminary injunction for abuse of discretion.” Harris v. Bd. of Supervisors, L.A. Cty.,
ANALYSIS
Kennedy contends that the district court erred by concluding that he was not likely to succeed on the merits of his claim that BSD placed him on paid administrative
First Amendment retaliation claims are governed by the framework in Eng. See 552 F.3d at 1070-72. Kennedy must show that (1) he spoke on a matter of public concern, (2) he spoke as a private citizen rather than a public, employee, and (3) the relevant speech was a substantial or motivating factor in the adverse employment action. Coomes v. Edmonds Sch. Dist. No. 15,
Here, the parties do not contest that Kennedy spoke on a matter of public concern (Eng factor one), that the relevant speech was a substantial or motivating factor in the District’s decision to place Kennedy on leave (Eng factor three), and that the District would not have taken the adverse employment action in the absence of the relevant speech (Eng factor five). Thus, we need consider only whether Kennedy spoke ás a private citizen or a public employee (Eng factor two), and whether BSD’s conduct was adequately justified by its need to avoid -an Establishment Clause violation (Eng factor four). We conclude that Kennedy spoke as a public employee, not as a private citizen, and therefore decline to reach whether BSD justifiably restricted Kennedy’s speech to avoid violating the Establishment Clause. Kennedy accordingly cannot show a likelihood of success on the merits of his First Amendment retaliation claim, and is not entitled to the preliminary injunction he seeks.
I. Kennedy spoke as a public employee, and not as a private citizen, when he prayed on the fifty-yard line in view of students and parents immediately after BHS football games.
A. Governing Law
“[P]ublic employees do not surrender all their First Amendment rights by reason of their employment.” Garcetti v. Ceballos,
Pickering v. Board of Education of Township High School District 205,
The Court refined this inquiry in Garcetti v. Ceballos,
Garcetti also emphasized “that various easy heuristics are insufficient for determining whether an employee spoke pursuant to his professional duties.” Dahlia,
The proper inquiry is a practical one. Formal job descriptions often bear little resemblance to the duties an employee actually is expected to perform, and the listing of a given task in an employee’s written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee’s professional duties for First Amendment purposes.
Id. at 424-25,
Following Garcetti, we clarified that “the determination whether the speech in question was spoken as a public employee or a private citizen presents a mixed question of fact and law.” Posey v. Lake Pend Oreille Sch. Dist. No. 84,
Helpfully, in 2011, we applied these instructions in a First Amendment retaliation case involving a teacher employed by a public school. The teacher argued that he spoke as a private citizen when he decorated his classroom with two large banners that conveyed a religious message. Johnson,
At the first step, we observed that Johnson (the teacher) did “not hold a unique or exotic government position” — he “per-form[ed] the ordinary duties of a math teacher.” Id. at 967. In defining those duties, we found that “expression is a teacher’s stock in trade, the commodity [he] sells to [his] employer in exchange for a salary.” Id. (internal quotation marks and alteration omitted). So, it was “irrelevant ... to the question of whether Johnson spoke as a citizen or as an employee” that “the banners were not part of Johnson’s curriculum.” Id. at 967 n.13. After all, “teachers do not cease acting as teachers each time the bell rings or the conversation moves beyond the narrow topic of curricular instruction.” Id. at 967-68.
We further observed that Johnson hung the banners pursuant to a long-standing policy permitting teachers to decorate their classrooms subject to specific limitations. Id. at 967. Accordingly, we found that Johnson’s speech occurred “while performing a function [ ] squarely within the scope of his position”; “[h]e was not running errands for the school in a car adorned with sectarian bumper stickers,” for instance, “or praying with people sheltering in the school after an earthquake.” Id. Adding it up, because Johnson was communicating with his students, “as a practical matter,” we found it was “beyond possibility for fairminded dispute that the scope and content of Johnson’s job responsibilities did not include speaking to his class in his classroom during class hours.” Id. (internal quotation marks, alteration, and emphasis omitted).
At step two, we assessed the constitutional significance of those facts by asking “whether Johnson’s speech owe[d] its existence to his position, or whether he spoke just as any non-employee citizen could have.” Id. For several reasons, we held “[t]he answer [was] clear”: “Johnson did not act as an ordinary citizen when ‘espousing God as opposed to no God’ in his classroom.” Id. To start, “[a]n ordinary citizen could not have walked into Johnson’s classroom and decorated the walls as he or she saw fit, anymore than an ordinary citizen could demand that students remain in their seats and listen to whatever idiosyncratic perspective or sectarian viewpoints he or she wished to share.” Id. at 968. “Unlike Pickering,” moreover, “who wrote a letter to his local newspaper as any citizen might, .,. Johnson took advantage of his position to press his particular views upon the impressionable and captive minds before him.” Id. (internal quotation marks and citation omitted). More generally, “because of the position of trust and authority [teachers] hold and the impressionable young minds with which they interact,” we held that “teachers necessarily act as teachers for purposes of a Pickering inquiry when [1] at school or a school function, [2] in the general presence of students, [3] in a capacity one might reasonably view as official.” Id. Applying that rule, Johnson fit the parameters. The religious speech “at issue” therefore “owe[d] its existence to Johnson’s position as a teacher,” Id. at 970. And, because the speech fell within the ordinary scope of Johnson’s professional responsibilities, the
B. Application
Applying the foregoing principles, Kennedy spoke as a public employee, and not as a private citizen. Before undertaking our analysis, two critical points deserve attention. First, the relevant “speech at issue” involves kneeling and praying on the fifty-yard line immediately after games while in view of students and parents. See Lane,
1. Factual determination of Kennedy’s job responsibilities.
Kennedy’s job did not merely require him to supervise students in the locker room, at practice, and before and after games. Nor was it limited to treating injuries and instructing players about techniques related to football. Rather, in addition to these duties, BSD “entrusted” Kennedy “to be a coach, mentor and role model for the student athletes.” Kennedy further agreed to “exhibit sportsmanlike conduct at all times,” and acknowledged that, as a football coach, he was “constantly being observed by others.” The District also required Kennedy to “communicate effectively” with parents, “maintain positive media relations,” and “[o]bey all the Rules of Conduct before players and the public as expected of a Head Coach,” including the requirement to “use proper conduct before the public and players at all times.” Consistent with his duty to serve as a role model to students, Kennedy’s contract required that, “[a]bove all”
Kennedy’s .job, in other words, involved modeling good behavior while acting in an official capacity in the presence of students and spectators. Kennedy’s amici agree. According to former professional football players Steve Largent and Chad Hen-nings, for instance, a ' football coach “serve[s] as a personal example.” That is what the District hired Kennedy to do, when he was in the presence of students and parents: communicate a positive mes: sage through the example set by his own conduct. Any person who has attended a high school sporting event likely knows that this is true. To illustrate, when a referee makes a bad call, it is a coach’s job to respond maturely. In doing so, he provides an example to players and spectators. Likewise, when a parent hassles a coach after a game seeking more playing time for.her child, a calm reaction by the coach teaches the-player about appropriate conduct. By acknowledging that he was “constantly being observed by others,” Kennedy plainly understood that demonstrative communication fell within the compass of his professional obligations. And tellingly, Kennedy’s insistence that his demonstrative speech occur in view of'students and parents suggests that Kennedy prayed pursuant to his responsibility to serve as a role model and moral exemplar. Were that not evident enough from Kennedy’s rejection of BSD’s accommodations, Kennedy’s off-field conduct bolsters the inference. In particular, his media appearances and prayer in the BHS bleachers (while wearing BHS apparel and surrounded by others) signal his intent to send a message to students and parents about appropriate behavior and what he values as a coach.
Practically speaking, Kennedy’s job as a football coach was also akin to being a teacher. See Grossman v. S. Shore Pub. Sch. Dist.,
As a high school football coach, it was also Kennedy’s duty to use his words and expressions to “instill[ ] values in the team.” Borden v. Sch. Dist. of Tp. of E. Brunswick,
Finally, just as Johnson’s job responsibilities included “speaking'to his class in his classroom during class hours,” Kennedy’s included speaking demonstratively to spectators at the stadium after the game through his conduct. Johnson,
In sum, Kennedy’s job was multi-facet-ed, but among other things it entailed both teaching and serving as a role model and moral exemplar. When acting in an official capacity in the presence of students and spectators, Kennedy was also responsible for communicating the District’s perspective on appropriate behavior through the example set by his own conduct.
2. The constitutional significance of Kennedy’s job duties.
Mindful of those facts, by kneeling and praying on the fifty-yard line immediately after games while in view of students and parents, Kennedy was sending a message about what he values as a coach, what the District considers appropriate behavior, and what students should believe, or how they ought to behave. Because such demonstrative communication fell well within the scope of Kennedy’s professional obligations, the constitutional significance of Kennedy’s job responsibilities is plain — he spoke as a public employee, not as a private citizen, and his speech was therefore unprotected.
Each of the guideposts we have established in this context suggests that Kennedy spoke as a public employee. First, “teachers necessarily act as teachers for purposes of a Pickering inquiry when [1] at school or a school function, [2] in the general presence of students, [3] in a capacity one might reasonably view as official.” Johnson,
Next, as Johnson and Coomes instruct, if Kennedy’s “speech ‘owes its. existence’ to his position as a teacher, then [Kennedy] spoke as a public employee, not as a citizen, and our inquiry is at an end.” Id. at 966 (quoting Garcetti,
True, Kennedy spoke in contravention of his supervisor’s orders, see Dahlia,
All told, by kneeling and praying on the fifty-yard line immediately after games, Kennedy was fulfilling his professional responsibility to communicate demonstratively to students and spectators. Yet, he “took advantage of his position to press his particular views upon the impressionable and captive minds before him.” Johnson,
Other circuits agree. In Borden, the Third Circuit concluded that a coach spoke “pursuant to his official duties as a coach” — and thus as a public employee— when he bowed his head and took a knee with his team while they prayed in the locker room prior to football games.
In Evans-Marshall v. Board of Education,
The Seventh Circuit employed the same reasoning in Mayer v. Monroe County Community School Corporation,
Finally, in Doe v. Duncanville Independent School District,
3. Kennedy’s counterarguments are not convincing.
Kennedy insists the district court invented “a bright-line temporal test that strips First Amendment protections from ‘on the job’ public employees.” That is incorrect. The district court said “[t]here is no bright-line test ... on this issue,” and decided the second Eng factor by asking whether Kennedy spoke as a public employee or private citizen “under the totality of the circumstances.” More importantly, the court did not articulate a temporal dichotomy that reserves First Amendment rights only for “off-duty” employees. To illustrate, Kennedy can pray in his office while he is on duty drawing up plays, pray non-demonstratively when on duty supervising students, or pray in “a private location within the school building, athletic facility, or press box” before and after games, as BHS offered. He can also write letters to a local newspaper while on duty as a coach, see Pickering,
Next, Kennedy observes that “[t]he critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee’s duties.” Lane,
Finally, Kennedy' insists it is irrelevant that he had access to the field only by virtue of his position because Lane establishes that the critical question is whether his speech was within the ordinary scope of his duties. For the reasons explained above, Kennedy’s speech was within the ordinary scope of his duties. In any event, Kennedy overlooks Coomes, which affirmed that if a plaintiffs speech “owes its existence to [his] position as a teacher, then [he] spoke as a-public employee, not as a citizen, and our inquiry is at an end.”
In sum, when Kennedy kneeled and prayed on the fifty-yard line immediately after games' while in view of students and parents, he spoke as a public employee, not as a private citizen, and his speech therefore was constitutionally unprotected.
On Friday nights, many cities and towns across America temporarily shut down while communities gather to watch high school football games. Students and'families from all walks of life join “to root for a common cause” and admire the young people who step proudly onto the field. Santa Fe Ind. Sch. Dist. v. Doe,
As for the task at hand, we hold that Kennedy spoke as a public employee when he kneeled and prayed on the fifty-yard line immediately after games while in view of students and parents. Kennedy therefore cannot show a likelihood of success on the merits of his First Amendment retaliation claim. We AFFIRM the district court’s order denying Kennedy’s motion for a preliminary injunction. Appellant shall bear costs on appeal. Fed. R. App. P. 39(a)(2).
Notes
. The District had not received complaints up to that point. As the community became aware of Kennedy’s practices, however, the District reports that individuals "expressed concern about Mr, Kennedy's actions.”
. Kennedy contends that prior to this date, BHS had allowed parents and fans to walk onto the field after games to socialize and congratulate the players. He does not meaningfully contest that the field was not an open .-forum while in use by the District, however, and that the District retained the right to limit public access.
. Kennedy appears to have abandoned his argument that he was not “on duty” after the games. Instead, he contends that he never received a post-game assignment “that would prohibit [him] from engaging in religious expression lasting no more than 30 seconds.”
. Kennedy,now contends that the District's accommodations were inadequate because ■“BSD did not explain how [his] religious expression would be accommodated at away games,” where BSD does not have direct control over the facilities.
. Kennedy brings his First Amendment retaliation claim pursuant to 42 U.S.C. § 1983. The First Amendment applies against the State pursuant to the Fourteenth Amendment. See McIntyre v. Ohio Elections Comm'n,
. The parties have not briefed the remaining preliminary injunction factors, and we need not reach them in light of this conclusion.
. Kennedy calls our attention to Dahlia and Lane. While we draw guidance from those decisions, they did not work an appreciable change to the legal inquiry required under the second Eng factor.
In Lane, the Supreme Court reiterated that “[t]he critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether [the subject matter of the speech] merely concerns those duties.”
In Dahlia, we reiterated that the second Eng factor requires a practical, fact-specific inquiry, and that courts may not rely solely on a generic job description. See
. Two additional points warrant comment. First, contrary to Kennedy's. assertions, the forum is relevant because the on-field location is a required component of Kennedy's speech, and one that is central to the message he conveys. Indeed, Kennedy insists that his sincerely held religious beliefs do not permit him to pray anywhere other than on the field where the game was just played. The accommodations he refused signal further temporal
. Kennedy elsewhere . acknowledges that whether a public employee speaks "as a citizen” does not turn on the content of the speech. Kennedy may then be arguing that the act of praying itself is not related to his job. That argument fails because demonstratively speaking to students and spectators ¿f-ter games through the example set by his own conduct is within the scope of Kennedy’s job responsibilities.
. We issued Coomes nearly two years after . the Supreme Court issued Lane. Additionally; Coomes is more factually analogous than Lane because Coomes involved speech by a public-school official.
. We emphasize that our conclusion neither relies on, nor should be construed to establish, any bright-line rule. As our analysis demonstrates, the second Eng factor requires a practical, fact-intensive inquiry into the nature and scope of a plaintiff's job responsibilities. It also requires a careful examination of the precise speech at issue. We also continue to recognize that "speech by a. public employee, even a teacher, does not always represent,
Concurrence Opinion
specially concurring:
I write separately to share my view that BSD’s actions were also justified to avoid violating the Establishment Clause. Kennedy’s claim therefore fails on the additional ground that the District can satisfy the fourth Eng factor. See Eng v. Cooley,
I. Governing Law
The Establishment Clause provides that “Congress shall make no law respecting an establishment of religion.”’ U.S. Const, amend.. I. The Clause applies against the states, and therefore their public school systems, pursuant to the Fourteenth Amendment. See Wallace v. Jaffree,
Under the fourth Eng factor, the District can escape potential liability if it can show that it had an adequate justification for treating Kennedy differently from other members of the general public. Eng,
Santa Fe Independent School District v. Doe,
In Santa Fe, the plaintiffs challenged a school district policy that permitted, but did not require, a student to deliver a prayer over the public address system before each varsity football game. Id. at 294,
To assess whether the amended policy violated the Establishment Clause, the Court asked whether an objective student observer who was familiar with the history and context of the school’s conduct would perceive that “prayer is, in actuality, encouraged by the school.” Id. at 308,
The Court first considered the setting. The prayer would be “delivered to a large audience assembled as part of a regularly scheduled, school-sponsored function conducted on school property.” Id. at 307,
The text and purpose of the policy reinforced that conclusion. The express purpose of the pregame message was to “solemnize the event.” Id. at 306,
The history and context of the policy bolstered the conclusion that an objective observer would perceive the school to be encouraging prayer. The school had a “long-established tradition of sanctioning student-led prayer at varsity football games,” id. at 315,
Lastly, the Court was “persuaded that the delivery of a pregame prayer has the improper effect of coercing those present to participate in an act of religious worship.” Id. at 312,
Mindful of the totality of these circumstances, the Court concluded that “the realities of the situation plainly reveal that [the district’s] policy involves both perceived and actual endorsement of religion.”
II. Application
Here, an objective BHS student familiar with the history and context of Kennedy’s conduct would perceive his practice of kneeling and praying on the fifty-yard line immediately after games in view of students and spectators as District endorsement of religion or encouragement of prayer. The District therefore justifiably restricted Kennedy’s speech to avoid violating the Establishment Clause.
A. The setting, context, and history support the perception that Kennedy’s conduct would be viewed as state endorsement of religion.
The setting supports this conclusion. If Kennedy’s practice were to resume, an objective student would observe a public-school 'employee in BHS-logoed attire demonstratively praying in front of “a large audience assembled as part of a regularly scheduled, school-sponsored function conducted on school property.” Id. at 307,
The context would bolster the. perception that the District was endorsing religion. An objective observer would know that Kennedy had access to the field only by virtue of his position as a coach, that a Satanist group had been denied such access, and that Kennedy insists on demonstratively praying only while in view of students and spectators. True, in contrast to Santa Fe, the District would not be authorizing or regulating the content of Kennedy’s prayers. See
The relevant history would add to the perception that' the District encourages prayer. An objective observer would know that during the previous eight years, Kennedy led and participated in locker-room prayers, regularly prayed on the fifty-yard line, and eventually led a larger spiritual exercise at midfield after each game. BSD states that it was not aware of this conduct until 2015, but if Kennedy were to resume his practice of praying at midfield, an objective student could reasonably infer that the District was ratifying the religious exercises that Kennedy had previously conducted. This inference, would follow because the District would be acquiescing to Kennedy’s conduct knowing, full well that the players prayed only when Kennedy elected to do so, and that the previous practice started as an individual prayer but evolved into an orchestrated session of faith.
In sum, if Kennedy were to resume kneeling and praying on the fifty-yard line immediately after games while in view of students and spectators, an objective student observer would see an influential supervisor do something no ordinary citizen could do — perform a Christian religious act on secured school property while surrounded by players — simply because he is a coach. Irrespective of thé District’s views on that matter, a reasonable observer would conclude in light of the history and contéxt surrounding Kennedy’s conduct that the District, “in actuality,” favors religion, and prefers Christianity in particular.
Kennedy contends that an objective observer would “conclude (at most) that he is engaged in a personal moment of silence” because students would not be directly coerced to pray, the District would not be regulating the content of his religious expression, and the prayer would not be the product of a school policy, in contrast to the prayer at issue in Santa Fe. These observations may be correct, but they have little significance when considered within the totality of the circumstances. Indeed, they are rebutted by the evidence of indirect coercion, and the fact that an objective observer familiar with the context would know it is Kennedy’s professional duty to communicate demonstratively to students and spectators after games.
Next, Kennedy insists that kneeling and praying on the fifty-yard line would not be viewed as state endorsement of religion because a coach’s expressive conduct around a playing field is quintessential personal speech. Kennedy notes that some athletes point to the heavens after a touchdown, or kneel when a player is being treated for an injury, yet fans do not generally view either of those actions as having been made on behalf of the team. Even if that is true, it says little about the speech at issue here, and it ignores entirely the relevant history and context surrounding Kennedy’s speech. See Santa Fe,
Lastly, Kennedy contends that the remedy for any inference of endorsement “is to educate the audience rather than squelch the speaker.” Hills v. Scottsdale Unified Sch. Dist. No. 48,
In sura, the District can satisfy the fourth Eng factor. It justifiably restricted Kennedy’s speech to avoid violating the Establishment Clause. An objective BHS student familiar with the relevant history and context would perceive Kennedy’s conduct to reflect school endorsement of religion, encouragement of prayer, and a preference for one particular faith.
III. Averting state establishment of religion ultimately safeguards religious liberty.
Some readers may find this conclusion disconcerting. The record reflects, after all, that Coach Kennedy cared deeply about his students, and that his conduct was well-intentioned and flowed from his sincerely-held religious beliefs. Given those factors, it is worth pausing to remember that the Establishment Clause is designed to advance and protect religious liberty, not to injure those who have religious faith. Indeed, history has taught us “that one of the greatest dangers to the freedom of the individual to worship in his own way lay[s] in the Government’s placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services.” Engel v. Vitale,
It is a lamentable fact of human history that whenever a religious majority controls the government, it frequently uses the civil power to persecute religious minorities and non-believers.
Seeking to make America a more true refuge from • religious persecution, some early leaders began to advocate for the disentanglement of religion and government. For example, in responding to a bill introduced by Patrick Henry calling for state support for “Teachers of the Christian Religion,” future president James Madison penned an essay arguing that Virginia should not financially support Christian instruction. See James Madison, Memorial and Remonstrance Against Religious Assessments (June 20, 1785), in 5 The Founders’ Constitution 82 (P. Kurland & R. Lerner eds. 1986). Madison asked rhetorically: “Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects?” Id. He also observed that Henry’s bill was “a departure from that generous policy, which, offering an Asylum to the persecuted and oppressed of every Nation and Religion, promised a lustre to our country.” Id. at 83.
After Henry’s bill was defeated, the Virginia legislature eventually took up Thomas Jefferson’s plan for the separation of church and state. In 1786, the Virginia Bill for Establishing Religious Freedom was adopted. Among other things, that Bill provided:
We the General Assembly of Virginia do enact, that no man shall be compelled to frequent or support any relig[i]ous Worship place' or Ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief, but that all men shall be free to profess, and by argument to maintain their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or-affect their civil capacities. '
Id. at 77. Jefferson wrote that the law was “meant to comprehend, within the mantle of its protection, the Jew and the Gentile, the Christian and Mahometan, the Hindoo, and Infidel of every denomination,” Thomas Jefferson, Autobiography (1821), in 5 The Founders’ Constitution, at 85.
Madison endeavored to make Jefferson’s vision a part of the Constitution. For example, Article VI of the Constitution requires that all federal officials “shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” U.S. Const. art. VI, cl. 3. Later, what became the First Amendment to the Constitution included the words: “Congress shall make no law respecting an establishment of religion, or prohibiting
This very brief glimpse of one aspect of our history is intended, to show that, having learned from the harmful effects of past religious conflicts, our nation’s Founders included in our foundational law safeguards against religious oppression by a government (or arms of that government) under the control of a religious majority that would punish or severely limit our right to worship (or not worship) as we please. This is a priceless bulwark of our personal freedom, and I hope that interested readers will come to appreciate the Establishment Clause as a good friend and protector, and not as an enemy, of one of their most precious rights and liberties.
IV. Conclusion
Striking an appropriate balance between ensuring the right to free speech and avoiding the endorsement of a state religion has never been easy. Thankfully, we no longer resolve these conflicts with violence, but instead use courts of law, where parties make arguments in free and open hearings to address their differences. To that end, I commend the lawyers in these proceedings for the exceptional job they have done.
At the end of the day, I believe that a resumption of Kennedy’s conduct would violate the Establishment Clause. I would therefore deny the preliminary injunction on the additional ground that BSD can satisfy the fourth Eng factor.
. The parties disagree as to whether the District must show an actual Establishment ' Clause violation, see Good News,
. Again, perhaps bolstering this inference, an objective observer would likely see Kennedy surrounded by his players. An objective observer familiar with the relevant history
. Amici note that Kennedy employed "the distinctively Christian prayer form of kneeling with hands clasped and head bowed — a pose with deep historical significance and symbolic meaning within Christianity.” Br. of Americans United for Separation of Church and State et al. as Amici Curiae Supporting Appel-lee at 12. By contrast, Jews "do not typically kneel,” and instead "stand for prayer and often sway.” Id. at 13. For Muslims, "the typical prayer posture is prostration, though prayer also involves standing and bowing.” Id. Prayer in the Bahá’í faith "involves kneeling, bowing, and prostration.” Id. Hindus and Buddhists “pray in the seated, cross-legged lotus position.” Id. Finally, it is worth noting that the Bremerton community includes individuals who identify as atheist or as agnostic. Id. at 14.
. Borden v. Sch. Dist. of Tp. of E. Brunswick,
. I nonetheless emphasize that schools should not simply "throw up their hands because of the possible misconceptions about endorsement of religion.” Hills,
. The District also contends that Kennedy’s conduct fails the so-called "coercion” test and the three-prong framework from Lemon v. Kurtzman,
. Interested readers might find Will (and later Will and Ariel) Durant’s epic series on the history of civilization, with separate volumes entitled The Age of Faith, The Renaissance, The Reformation, The Age of Reason Begins, The Age of Louis XIV, The Age of Voltaire, and Rousseau and Revolution, amongst others, an excellent source to learn more about this subject, See Will Durant & Ariel Durant, the story of civilization (MJF Books 1993).