So after his very first football game in 2008, Coach Kennedy waited until the players cleared the field, then took a knee and thanked God for his players. Coach Kennedy continued doing this after every game for seven years and no students, coaches or parents ever complained about it. In fact, it was a compliment that started the problems.
After receiving a compliment from a school administrator about how they were grateful for Coach Kennedy’s leadership and great example for the team through his prayers, Bremerton High School responded with a demand letter to the coach threatening his fundamental right to free speech and religious exercise. On September 17, 2015, the Bremerton School District superintendent sent Kennedy an official letter from the school district, telling him that he must stop praying after the games, out of fear of a possible violation of the Establishment Clause.
In response, First Liberty sent the school district a letter on October 14, 2015. Delving into details of multiple court cases, First Liberty explained that teachers and administrators do not lose their private rights to express their religious beliefs upon entering the schoolhouse—or the football field.
In the letter, First Liberty attorneys said:
No reasonable observer could conclude that a football coach who waits until the game is over and the players have left the field and then walks to mid-field to say a short, private, personal prayer is speaking on behalf of the state. Quite the opposite, Coach Kennedy is engaged in private religious expression upon which the state may not infringe. In fact, any attempt by Bremerton School District to ban or prohibit Coach Kennedy—or any private citizen—from praying violates the First Amendment. (Read the full letter)
First Liberty asked the school to make a religious accommodation that would allow Coach Kennedy to take 15 seconds after the game to take a knee and silently thank God for his team when the players were not on the field.
In a letter on October 16, just hours before homecoming game time, Bremerton School District’s lawyers said they largely agree with First Liberty’s legal analysis, which guarantees Coach Kennedy’s right to pray after football games. However, due to their concern about “potential liability,” they said any perceived violations of their policy “cannot be tolerated.” They ordered Coach Kennedy to stop praying after the game with students. Coach Kennedy complied and only prayed silently and away from his players.
First Liberty attorneys replied with an email to the school district, saying, “If the school is concerned that the coach’s prayer may be interpreted as government speech, there is an easy solution: the school district can simply say that the coach’s prayer is his own speech. Then they should stand back and let him pray.”
On Friday, October 23, Bremerton School District sent a letter to Coach Kennedy denying his request for religious accommodation. The school district said if Coach Kennedy prays after football games, even silently and alone, he could be disciplined, up to and including being terminated from his job.
On October 28, the Bremerton School District sent a letter to Coach Kennedy announcing that he was suspended and may not “participate, in any capacity, in BHS football program activities.” The district suspended Coach Kennedy the day before the final varsity football game of the season and refused to renew his contract, resulting in the termination of his coaching career.
On December 15, Coach Kennedy filed a charge of religious discrimination with the Equal Employment Opportunity Commission (EEOC) against Bremerton School District.
In the charge, Coach Kennedy said, “[Bremerton School District] violated my rights to free exercise of religion and free speech by prohibiting my private religious expression.”
In response to Coach Kennedy’s EEOC complaint, the U.S. Department of Justice issued a right-to-sue letter to Coach Kennedy on June 27.
On August 9, 2016 First Liberty Institute filed a lawsuit against Bremerton School District. (Read the lawsuit)
“Bremerton School District violated Coach Kennedy’s First Amendment rights to free speech and free exercise, as well as his rights under Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of religion,” said Mike Berry, Senior Counsel at First Liberty.
In the lawsuit, Coach Kennedy did not request any compensation from the school district.
“Coach Kennedy declined to seek monetary damages,” Berry said. “Instead, all he wants is for the court to say he has a right to pray, that the school district violated the law by firing him, and for the school to give him his job back so he can continue coaching the kids.”
Oral arguments were held June 12, 2017 before the U.S. Court of Appeals, Ninth Circuit.
Two months later, on August 23, the Ninth Circuit issued a ruling against Coach Kennedy. The court argued that Coach Kennedy’s prayers were not protected by the Constitution because, according to the Ninth Circuit, Coach Kennedy was praying as a public employee rather than in his private, personal capacity.
“Banning all coaches from praying individually in public just because they can be seen is wrong,” First Liberty President and CEO Kelly Shackelford said in a press release. “This is not the America contemplated by our Constitution.”
“According to the Ninth Circuit, a school district can fire a coach for making the sign of the cross or bowing his head in prayer when a player gets hurt,” stated Mike Berry, Deputy General Counsel to First Liberty. “We are deeply disappointed by the decision and will consider all options available to Coach Kennedy as we continue to review the opinion.”
For Immediate Release: September 21, 2017
Contact: Lacey McNiel, email@example.com
Football Coach Seeks En Banc Rehearing Following Extreme,
Far-Reaching Opinion by Three-Judge Appeals Panel
First Liberty attorneys say future of private prayer hangs in the balance
SEATTLE, Wash.—Attorneys for First Liberty Institute today filed a petition on behalf of their client, football coach Joe Kennedy, requesting an en banc rehearing of Coach Kennedy’s case by the U.S. Court of Appeals for the Ninth Circuit. If granted, eleven active Ninth Circuit judges—including the chief judge—would hear Coach Kennedy’s case and issue a decision.
“An en banc rehearing by the Ninth Circuit is necessary, given the extreme, far-reaching opinion issued by the three-judge panel,” Mike Berry, Deputy General Counsel for First Liberty. “If the current decision stands, a teacher could be fired for wearing a yarmulke to school. A coach could be fired for bowing his head in prayer when a player is hurt.”
In August, a three-judge panel of the Ninth Circuit held that a school district in Washington state could ban Coach Kennedy from silently praying alone for 15 to 30 seconds following a football game.
“Banning coaches from praying just because they can be seen is wrong and contradicts the Constitution,” said Kelly Shackelford, President and CEO of First Liberty. “We hope the Ninth Circuit will recognize the significance of this case. The future of private prayer hangs in the balance.”
To learn more about the case, visit CoachKennedyFacts.com.
About First Liberty Institute First Liberty Institute is a non-profit public interest law firm and the largest legal organization in the nation dedicated exclusively to defending religious freedom for all Americans.
To arrange an interview, contact Lacey McNiel, firstname.lastname@example.org, Direct: 972-941-4453.
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