9th Circuit Court of Appeals hearing focused on three key points

BREMERTON — On June 12, lawyers for Joe Kennedy and the Bremerton School District stood before a panel of three judges in the 9th Circuit Court of Appeals in Seattle.

The panel’s ruling, which will come at an unannounced date (as of June 13), will determine whether Kennedy’s lawsuit against the school district can be heard in a District Court. He and his lawyers hope a District Court will reinstate him as assistant football coach at Bremerton High School.

But lawyers acknowledge there is more at stake than a coaching job.

“This case is about Coach Kennedy’s First Amendment right to take a knee on the field at the end of the game and say a silent prayer that lasts 15 to 30 seconds,” Kennedy lawyer Rebekah Ricketts told the panel.

Michael Tierney, the school district’s lawyer, said, “This case asks whether federal court should order a local school district to surrender control of its football field and post-game traditions by allowing an employee to include in the post-game ceremonies — against the wishes of the district — a display of unmistakably religious conduct, in the center of the football stadium, while clothed in the school insignia.”

The 9th Circuit Court panel that will rule: judges Morgan Christen, Dorothy Wright Nelson and Milan Smith.

The arguments at the hearing on June 12 boiled down to a few key points: Kennedy’s “quiet and alone” prayer, the establishment clause in the U.S. Constitution, and alternatives available.

‘Pray quietly and alone’

Ricketts said Kennedy prayed “quietly and alone” on the 50-yard line after football games, and the decision by the school district to fire him was thus unconstitutional.

“The only practice we seek to vindicate here is that of Coach Kennedy to kneel silently and pray by himself for 15 seconds on the field,” Ricketts said.

However, the judges had a few questions about that.

For starters, Smith mentioned that on Oct. 14, 2015, the Liberty Institute released a statement that Kennedy would be praying after the game; Kennedy personally and through social media informed people he would be doing so, as well. And, based on photographs, when Kennedy prayed after the game on the field, he was joined by “21 football players, 16 other adults, four of whom were using video cameras to photograph the event.”

Smith added, “He prayed audibly.” He asked Ricketts to confirm that what he said was true. When she did, he answered, “Given that fact, is what happened on Oct. 16, 2015, what he means by his right to ‘pray quietly and alone?’ ”

Ricketts said it was after that game that Kennedy attempted to comply with what the district asked for by praying alone.

“What does that mean, ‘by himself’?” Christen asked. “Alone, surrounded by fans in the stand?”

Christen said that, to her, “alone” meant no one around, although Ricketts had acknowledged that even if players weren’t on the field, the stadium was still filled with spectators.

“You just described that as praying alone, but he was surrounded by several hundred people,” Christen said.

Ricketts said the spectators were “not in direct proximity,” thus he was alone.

Establishment clause

The reason the school district had an issue with Kennedy praying, they say, is because of the possible violation of the establishment clause of the First Amendment, which reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

Because Bremerton School District is a public school district, the district is forbidden from outwardly endorsing any religion.

The field used to be open for anyone — district employee, spectator or otherwise — to go onto the field following the game. But before the Oct. 16, 2015 game, the district ended that practice and following the game made every effort to inform people that the field would be closed to the public after the games.

“A coach acting in his gear in a place barred to all others, acting religiously, whether or not he’s speaking as a public employee or a private citizen (is a violation of the establishment clause),” Tierney said.

“When the coach went on the field on Oct. 23 and 26, by that point, the public had clearly been stopped from going on [the field]. Coach Kennedy could only have done what he did by being an employee of the district.”

Andrew Nellis of Americans United for Separation of Church and State, an amicus (“friend of the court”) religious and civil liberties organization, also took the stand and spoke on this issue, in support of the school district.

“You’re dealing with someone who is unambiguously a representative of the school district,” Nellis said. “There wasn’t an open forum, or there isn’t now, an open forum for anyone to come [onto the field].”

He said, “The reason that this issue is so important to the amicus is because public schools must be tolerant and welcoming of students of all faiths. When a public school abdicates its assurance of neutrality, you can really have ugly rifts erupting in a school community when members of religious minorities complain about or are separate from religious practices.”

What school district did, he said, was “their right and their duty, not just under the Constitution, but to their students and the entire school district, to ensure that it was a safe place and a welcoming place to students of all faiths.”

When Ricketts had the opportunity to rebut, she said there was no violation or risk of violation of the establishment clause by allowing Kennedy to pray on the field after the game, even after the field was closed to the public.

“What the reasonable observer would see would be Coach Kennedy kneeling on the field for 15 seconds,” Ricketts said. “The reasonable observer could conclude that he’s engaged in a moment of silence.”


Alternatives to firing Kennedy were also discussed at the hearing, including providing reasonable accommodations, or the district releasing a disclaimer saying it did not endorse the prayer and that Kennedy was praying as a private citizen.

Both suggestions were rejected.

Ricketts claimed the district did not make an offer of reasonable accommodation, that it instead suggested Kennedy leave the field entirely and go to a press box or athletic building, further away from the field and private, so he could pray without anyone witnessing, but said no offer was made to allow him to pray on the field.

“There was a time when Coach Kennedy tried to leave the field and then come back hours later in order to pray. He came to the conclusion that that was inconsistent with the religious commitment that he had made,” Ricketts said.

When it came to the idea of a disclaimer, Nellis said that would not work at all. He said disclaimers like that worked when a third-party organization is passing out religious fliers on school property, or when there is a religious student group, led by students.

In her rebuttal, Ricketts emphasized that Kennedy has a First Amendment right to pray regardless of when or where.

Earlier in the hearing, Kennedy’s job was described by Tierney as “to communicate ideas to the players. That is a shorthand for everything he does: model behavior, give inspirational speeches, teach football techniques. He’s just like a teacher, but teacher plus.”

Ricketts said, “Employers cannot restrict [an] employee’s rights by creating excessively broad job descriptions, and that’s effectively what the district has tried to do here by characterizing Coach Kennedy as a ‘teacher plus.’ They’re trying to use his stature in the community to justify a rule that strips him of all constitutional protection.

“The rule they’ve articulated would equally prohibit a teacher from wearing religious garb or engaging in any lunchroom prayer that may be observed by students,” she said.

To view the hearing in its entirety, visit goo.gl/gJiZL6.

— Michelle Beahm is an editor with the Kitsap News Group. She can be reached at mbeahm@soundpublish ing.com.