High School's Suspension of Praying Football Coach Backed by U.S. Court

by | August 24, 2017

By Bob Egelko

A federal appeals court on Wednesday upheld a high school's refusal to allow a football coach to kneel and pray at midfield after every game, wearing school attire and in view of students and spectators.

Bremerton High School in Washington state was entitled to suspend Coach Joe Kennedy because he was acting as a school employee, not as a private citizen, and therefore had no right to speak contrary to the school's policy, said the Ninth U.S. Circuit Court of Appeals in San Francisco.

The three-judge panel said it did not have to decide whether Kennedy's prayers, joined at times by football players and fans, amounted to an unconstitutional endorsement of religion by the public school district. But Judge Milan Smith, in a separate opinion, said an objective observer would have seen the coach's conduct as an "orchestrated session of faith" in which the district acquiesced.

The U.S. Supreme Court barred school-led prayer in 1962 as a violation of the constitutional separation of church and state, and issued a similar ruling in 2000 against organized, student-led prayers at public high school football games. But religious advocates have argued that teachers and coaches still have the right to hold voluntary prayer sessions, and Kennedy's case is one of the most prominent examples.

Kennedy was an assistant coach at Bremerton High from 2008 to 2015. A devout Christian, he led students and other coaches in pregame locker-room prayers, and went to the 50-yard line after each game to kneel and give a thankful prayer for the players' safety and sportsmanship. He was joined by most of the team, and eventually added religiously themed motivational speeches to his prayers, the court said.

District officials said they were unaware of Kennedy's actions until September 2015, and then told the coach he could pray on his own after others had left the stadium but could not lead students in prayer. A month later, however, after multiple media appearances, he held a postgame prayer that was promptly joined by students and spectators, the court said.

After similar events at the next two games, the district suspended Kennedy with pay. He resigned in 2016 and sued for violation of his right to free speech.

Steering clear of the issue of church and state, the appellate panel relied on the Supreme Court's 2006 ruling that government employees have no First Amendment right to speak freely in the workplace unless they are acting as private citizens on matters of public concern.

Kennedy had refused the school's offer to allow a private prayer and instead acted in the full view of students and spectators, wearing a shirt with the school logo, and clearly sending a message as a teacher and role model, the three-judge panel said.

"He spoke as a public employee, not as a private citizen, and his speech was therefore unprotected," Smith said for the panel, separately from his opinion that the prayers were also a school-endorsed constitutional violation.

The nonprofit Americans United for Separation of Church and State praised the ruling. "Students and families have the right to decide whether and how to practice their faith" without pressure from teachers and coaches, said Richard Katskee, the group's legal director.

The ruling may be appealed further, said Jeremy Dys, an attorney for First Liberty, the nonprofit representing Kennedy. "Banning all coaches from praying individually and in public, just because they can be seen, is wrong," he said.

(c)2017 the San Francisco Chronicle