In January 2019, the U.S. Supreme Court decided not to review Kennedy’s case, but four of the justices sent a clear message – there’s a real problem here that needs to be fixed.
Although the Court declined to reverse the decision at this time, in a statement filed by Justice Alito and joined by Justices Thomas, Gorsuch, and Kavanaugh, the justices explained that the Court needs more information in order to resolve the matter.
The four justices also added, “the Ninth Circuit’s understanding of the free speech rights of public school teachers is troubling and may justify review in the future.”
Attorneys with First Liberty Institute and Kirkland & Ellis LLP returned to the district court in order to resolve the issues the Supreme Court identified. As expected the District Court ruled in favor of the school district, setting up a return to the U.S. Court of Appeals for the Ninth Circuit.
In July 2020, Coach Kennedy began his comeback at the Ninth when his attorneys filed the first brief in the return to that court.
Kennedy was head coach for the Bremerton High School junior varsity football team and an assistant coach for the varsity team. Before he even coached his first game, this Marine Corps veteran turned football coach made a commitment to God that he would give thanks after every game—win or lose—for the opportunity to be a football coach and for his players.
So after his very first football game in 2008, Coach Kennedy waited until the players cleared the field, then took a knee and silently 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.
The School District Bans Prayer
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. The Bremerton School District superintendent sent Kennedy an official letter from the school district, telling him that he must stop praying after the games.
In response, First Liberty sent the school district a letter on October 14, 2015 explaining that teachers and administrators do not lose their private rights to express their religious beliefs upon entering the schoolhouse—or the football field.
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.
But the school district refused to give him even 15-seconds of silent prayer.
The school district said any perceived violations of their policy “cannot be tolerated.” They ordered Coach Kennedy to stop praying after the game and then 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.
First Liberty Legal Action
Coach Kennedy filed a charge of religious discrimination with the Equal Employment Opportunity Commission (EEOC) against the Bremerton School District. In response, the EEOC issued a right-to-sue letter to Coach Kennedy and First Liberty Institute filed a lawsuit against Bremerton School District.
A federal district court dismissed the lawsuit and First Liberty filed an appeal with the United States Court of Appeals for the Ninth Circuit.
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.
Supreme Court Refuses to Hear Appeal, But Gives Hope
Attorneys for First Liberty Institute and Kirkland & Ellis LLP filed a petition for writ of certiorari with the U.S. Supreme Court asking the court to reverse the Ninth Circuit’s decision. While the Supreme Court decided to not grant the appeal, four justices – Alito, Thomas, Gorsuch, and Kavanaugh – expressed serious concern with the Ninth’s decision. The justices state, “If this case were before us as an appeal within our mandatory jurisdiction, our clear obligation would be to vacate the decision below….”
“The Supreme Court seems to understand that banning all coaches from praying just because they can be seen is wrong and contradicts the Constitution,” said Kelly Shackelford, President, CEO, and Chief Counsel for First Liberty. “With the latest ruling by the District Court, we’re now on our way back to the Ninth Circuit and possibly the U.S. Supreme Court to give the Court another opportunity to protect the right of every American to engage in private religious expression, including praying in public, without fear of getting fired.”
For Immediate Release: 7.23.20
Contact: Lacey McNiel, firstname.lastname@example.org
Comeback: Coach Kennedy Returns to Ninth Circuit Seeking Reversal of Decision Preventing Football Coach from Taking a Knee
First Liberty attorneys ask court to again review school district’s decision to not rehire coach because of his silent 15-second prayer in light of Supreme Court instruction
Seattle, WA—First Liberty Institute and Kirkland & Ellis LLP filed an opening brief on behalf of football Coach Joe Kennedy in his appeal to the U.S. Court of Appeals for the Ninth Circuit. In 2015, the Bremerton (WA) School District suspended the longtime football coach for the season and then refused to rehire him because he took a knee in brief, silent, personal prayer after football games. In March, a federal district court ruled against Coach Kennedy.
You can read the brief here.
“Banning all coaches from praying just because they can be seen is wrong and contradicts the Constitution,” said Hiram Sasser, Executive General Counsel at First Liberty. “Coach Kennedy has been denied the freedom to coach for nearly five years, but he’s never been a quitter. We must protect the right of every American to engage in private religious expression, including praying in public, without fear of getting fired.”
In January 2019, the Supreme Court of the United States declined to review the case at that time and instead allowed Coach Kennedy’s case to continue through the court system. In a separate statement written by Justice Alito and joined by Justices Thomas, Gorsuch, and Kavanaugh, the justices explained that the Court needed more information in order to resolve the matter. As the four justices wrote, “the Ninth Circuit’s understanding of the free speech rights of public school teachers is troubling and may justify review in the future.” The case then returned to the district court for further review where, in January, district court judge Ronald Leighton granted the Bremerton (WA) School District’s motion for summary judgment.
In its brief, attorneys for Coach Kennedy argue, “Discovery has shown that Coach Kennedy’s ‘fleeting’ (the District’s words, not Coach Kennedy’s) personal prayer was directed to God, not others, and did not pose a risk of coercing student involvement in religion. In concluding otherwise, the district court improperly constrained the ability of public-school employees to exercise their Constitutional rights simply because they happen to be in view of students or on school property. In this very case, four justices on the Supreme Court cautioned against such a ‘remarkable’ restriction on the rights of ‘public school teachers and coaches.’”
Coach Kennedy’s case received national attention and support from political and religious leaders including President Trump and Franklin Graham, hall of fame football coach Bobby Bowden, and former NFL players Steve Largent, and Chad Hennings. In January, President Trump invited Coach Kennedy to the Oval Office as he announced new actions to protect religious freedom in America’s public schools.
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 at email@example.com or by calling 972-941-4453.
8/1/18 – Amicus Brief by The Billy Graham Evangelistic Association, Samaritan’s Purse, National Association of Evangelicals, Ethics & Religious Liberty Commission of the Southern Baptist Convention, Congressional Prayer Caucus Foundation, Concerned Women for America, National Legal Foundation, Pacific Justice Institute, and International Conference of EvangelicalChaplain Endorsers