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Rehearing en banc denied in case of coach banned from 50-yard-line prayers with players after games

By Ronald Miller, J.D.

The school district could not accommodate the coach’s religious practice of praying on the 50-yard line following football games because it violated the Establishment Clause.

Rehearing en banc was denied after a three-member panel of the Ninth Circuit concluded in Kennedy v. Bremerton School District (Kennedy III) that a school district would have violated the Establishment Clause by allowing a high school football coach to engage in demonstrative religious conduct immediately after football games by kneeling on the 50-yard line surrounded by many of his players. The matter failed to receive a majority of the votes of the non-recused active judges in favor of en banc consideration. Judge Smith and Judge Christen wrote separate opinions concurring in the denial of rehearing en banc. Judges Ikuta, Ryan Nelson, and Collins issued separate opinions dissenting from the denial of rehearing en banc (Kennedy v. Bremerton School District, July 19, 2021, Smith, M., Jr.).

After game prayer. When the football coach was first hired by the school district, his post-game prayers were initially silent and private. Eventually, he led the team in prayer in the locker room before each game, and some players began to join him for his post-game prayer, too. Ultimately, the prayers evolved to include players from both teams after the game and were conducted while the players were still on the field and while fans remained in the stands.

When the school district’s athletic director heard about the coach’s practices, he told him that he should not be conducting prayers with his players. After the coach posted on his Facebook page that he thought he might have been fired for praying, the school district was flooded with emails, letters, and phone calls, many of them hateful or threatening.

School district policy. The school district initiated an inquiry into whether the coach was complying with its policy on “Religions-Related Activities and Practices.” Following the investigation, the superintendent sent the coach a letter to clarify the school district’s expectations. The coach was advised 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.” In response, the coach temporarily stopped praying on the field after games.

In a letter from his lawyer to the school district on October 14, 2015, the coach announced that he would resume praying on the 50-yard line immediately after the game. His intention to pray on the field following the October 16 game was widely publicized. At the end of the game, the coach knelt in prayer and was joined by players and members of the public.

Placed on leave, not rehired. After the game, the school district sent the coach a letter explaining that his conduct had violated district policy. According to the coach, the only acceptable outcome would be for the district to permit him to pray on the 50-yard line immediately after games. After he repeated his behavior, he was placed on paid administrative leave. At the end of the football season it was recommended that he not be rehired.

The coach filed suit asserting that his rights under the First Amendment and Title VII were violated. The district court denied his motion for a preliminary injunction, which was affirmed by the Ninth Circuit. Thereafter, the district court granted the school district’s summary judgment motion, ruling that a public-school educator’s right to free religious expression must give way to a school’s right to restrict that expression when it violates the Establishment Clause. That decision was affirmed in Kennedy III. Following a judge’s sua sponte request that the Ninth Circuit vote on whether to rehear this case, re hearing en banc was denied.

Concurrence. In his concurrence, Judge Smith, who wrote the opinion in the panel decision, observed that the Ninth Circuit considers “a sequential five-step series of questions” when evaluating Free Speech claims brought by public employees, as outlined in Eng v. Cooley, 552 F.3d 1062, 1070 (2009). Eng’s second and fourth questions were at issue in this case: whether the coach spoke as a private citizen or as a public employee, and whether the school district had adequate justification for treating him differently from other members of the public.

If allowing the coach to continue his religious practice would have violated the Establishment Clause, the school district’s restriction had “an adequate justification” for Pickering/Eng purposes, and its action was thus constitutional. The panel was required to address the choice the school district confronted: impose some limits on the coach’s First Amendment expression, or violate the Establishment Clause. It is only through this analysis that the court could determine whether the school district’s decision to limit the coach’s religious expression was backed by a compelling interest.

If the school district had allowed the coach to continue his activities rather than suspending him, an objective observer would have been left with no doubt that it endorsed the integration of prayer into the football games.

Speech as citizen. The facts of this case also left no question that the coach did not carry his burden to show that he spoke as a private citizen, according to Judge Smith. An integral part of the coach’s job was serving as a mentor and role model to students. The school district recognized that one of the ways in which he carried out this duty was by giving post-game motivational speeches to his players on the field after football games. Thus, applying Garcetti to this fact pattern left no doubt that the coach’s prayers were speech in his capacity as a public employee. Consequently, the Ninth Circuit faithfully applied the relevant current case law in Kennedy III. Accordingly, Smith concurred in the court’s denial of rehearing of this case en banc.

Christen’s concurrence. Judge Christen, joined by Judge D.W. Nelson, also concurred in the denial of rehearing en banc. According to Judge Christen, the panel unanimously affirmed the district court’s summary judgment ruling because the coach spoke as a public employee, because the school district did not demonstrate a hint of hostility or bias toward religion or non-religion, and because it had a compelling interest in avoiding an Establishment Clause violation. Given the record presented to the district court, Judge Christen explained, there is no genuine dispute that Coach Kennedy spoke as a public employee. Further, regardless of the coach’s subjective intent, there was uncontroverted evidence that his prayerful speech had a coercive effect on his players. Moreover, the panel did not suggest that a coach or teacher necessarily speaks as a public employee every time he or she prays within eyeshot of students.

Additionally, Judge Christen noted, the school district never sanctioned the coach for engaging in private prayer; the coach’s post-game prayers were anything but private; nowhere did the panel suggest that a school district will be subject to a viable Establishment Clause claim any time a school employee engages in private prayer; and the coach rejected several accommodations BSD offered that would have allowed him to pray privately. Thus, an objective observer would interpret a teacher’s speech, delivered from that location and directed to a school audience, as “an extension of the school-sanctioned speech just before it.”

O’Scannlain’s statement. In his statement regarding the denial of an en banc rehearing, Judge O’Scannlain observed that teachers do not “shed” their First Amendment protections “at the schoolhouse gate,” but he concluded that the case obliterated constitutional protections by announcing a new rule that any speech by a public school teacher or coach, while on the clock and in earshot of others, is subject to plenary control by the government.

In O’Scannlain view, the panel’s opinion ran afoul of controlling Supreme Court precedents on the Free Speech, Free Exercise, and Establishment Clauses, but it did so most egregiously with respect to the Free Speech Clause. O’Scannlain noted that when public employees speak “as citizens about matters of public concern,” they may be subjected “only [to] those speech restrictions that are necessary for their employers to operate efficiently and effectively.”

Accordingly, he argued that a public employer’s special latitude to control its employees’ speech extends only to speech “the employer itself has commissioned” or otherwise functionally “created.” According to the dissent, when public employees’ expression falls outside their official job duties, the court must “unequivocally reject[]” any suggestion that they “may constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens.” O’Scannlain would find that the panel erred in relying on an “excessively broad job description” that Garcetti precludes, in concluding that the coach’s prayer was speech pursuant to his official duties “as a government employee.” Thus, he would find that the coach’s Free Speech rights were implicated and the government’s stated justification for its censorship must face constitutional scrutiny.

Ikuta’s dissent. In her dissent from the denial of rehearing en banc, Judge Ikuta argued that the school district could not successfully justify any content-based discrimination against Kennedy on the ground that it needed to do so to avoid an Establishment Clause violation. Given that the school district took “pains to disassociate itself from the private speech involved in this case,” a “reasonable observer” would know that the coach’s prayer was not “stamped with [BSD’s] seal of approval.” Applying the objective observer test from Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308 (2000), Ikuta would conclude that there was no Establishment Clause violation here.

Dissent by R. Nelson. In his dissent, Judge Nelson argued that the panel misapplied Supreme Court precedent since none of the school district’s actions would have come close to an endorsement of religion or coercion. He argued that the panel’s “objective observer” test far exceeded the original bounds of the Establishment Clause. In his view, the panel relied on a modern-day observer—infused with today’s more recent separationist mentality. He found that relying on the modern-day observer allows governments and the courts to expand the Establishment Clause’s prohibitions beyond its original bounds and inhibit free exercise.