BREMERTON — “On Friday nights, many cities and towns across America temporarily shut down while communities gather to watch high school football games.
“Students and families from all walks of life join ‘to root for a common cause’ and admire the young people who step proudly onto the field.”
So writes 9th District Circuit Court of Appeals Judge Milan Smith in the publicized opinion in the Joseph Kennedy v. Bremerton School District appeal, issued Aug. 23.
To sum up the events leading to the lawsuit, the Bremerton School District chose not to reinstate Kennedy’s coaching contract following his refusal to cease his post-game prayer held on the 50-yard line immediately following games, in public view as a public employee. The district said his doing so in such a manner made it appear the public school district endorsed the prayer, which would be a violation of the Establishment Clause of the First Amendment, which states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
Kennedy and his lawyers filed a lawsuit Aug. 8, 2016, asking only to be reinstated as the assistant football coach. On Sept. 19, 2016, U.S. District Court Judge Ronald Leighton denied Kennedy a preliminary injunction — an order requiring the school district to reinstate him. Kennedy, who is represented by the First Liberty Institute, filed an appeal Oct. 3, 2016.
The circuit court heard arguments from both sides on June 12. Kennedy and his lawyers from the First Liberty Institute appealed the decision made by a district court to deny them a preliminary injunction in an attempt for Kennedy to be reinstated as an assistant football coach at the Bremerton School District. The circuit court upheld the district court’s decision to deny the preliminary injunction.
The opinion concluded with Smith quoting the opinion published from the 2000 suit Santa Fe Independent School District v. Doe.
“While we ‘recognize the important role that public worship plays in many communities, as well as the sincere desire to include public prayer as a part of [these] occasions,’ such activity can promote disunity along religious lines, and risks alienating valued community members from an environment that must be open and welcoming to all,” Smith wrote.
“We’re disappointed with the court’s decision,” said Mike Berry, a lawyer with the First Liberty Institute representing Kennedy. “We’re reviewing (the decision) carefully and evaluating all of our options. We haven’t made any decisions about what we’ll do next.”
Berry said they have a number of options available they can consider pursuing, including asking the 9th Circuit Court of Appeals to revisit their appeal “en banc,” which means the entire 9th Circuit would consider the appeal, not just a panel of three judges as happened June 12. They could also ask the Supreme Court to review the case, or “simply go back to trial,” Berry said.
“There are any number of options available,” Berry said. “We need to evaluate the pros and cons.”
When asked if the outcome was expected or unexpected, Berry said he wouldn’t use those words.
“We’re disappointed,” he said. “We believed and continue to believe that the facts are on our side and the law is on our side. We knew it was going to be difficult. Lawyers don’t typically make predictions … in terms of how a court will rule. We believe the facts are on our side and we go forth with that knowledge.
“Unfortunately, in this case, the court did not rule in our favor,” he said. “That’s not going to stop us from fighting for religious liberty.”
Patty Glaser, the Bremerton School District’s public information officer, released the following statement:
“The Bremerton School District appreciates the well-reasoned decision from the Ninth Circuit Court of Appeals denying Mr. Kennedy’s request for a preliminary injunction reinstating his district employment. The district’s legal counsel will now focus on the next phase of this case in the trial court, and we look forward to the eventual resolution of this matter.”
The decision to uphold the denial was reached based on many factors, according to the published opinion.
“Before undertaking the analysis, two critical points deserve attention,” Smith wrote. “First, the relevant ‘speech at issue’ involves kneeling and praying on the 50-yard line immediately after games while in view of students and parents. “It is not, as Kennedy contends, praying on the 50-yard line ‘silently and alone.’ We know this because Kennedy was offered (and, for a time, accepted) an accommodation permitting him to pray on the 50-yard line after the stadium had been emptied and students had been released to the custody of their parents.
“His refusal of that accommodation indicates that it is essential that his speech be delivered in the presence of students and spectators.
“Second, for the same reason, the ‘speech at issue’ is directed, at least in part, to the students and surrounding spectators; it is not solely speech directed to God. Hence, the question … is whether this demonstrative communication to students and spectators ‘is itself ordinarily within the scope of [Kennedy’s] duties.’ ”
The opinion explains that Kennedy’s job description includes Kennedy “be a coach, mentor and role model for the student athletes,” and that “Kennedy further agreed to ‘exhibit sportsmanlike conduct at all times,’ and acknowledged that, as a football coach, he was ‘constantly being observed by others.’ ”
“Kennedy’s job, in other words, involved modeling good behavior while acting in an official capacity in the presence of students and spectators,” Smith wrote. “That is what the district hired Kennedy to do, when he was in the presence of students and parents: communicate a positive message through an example set by his own conduct.”
Smith wrote that because Kennedy acknowledged he was “constantly being observed,” he “plainly understood that demonstrative communication fell within the compass of his professional obligations. And tellingly, Kennedy’s insistence that his demonstrative speech occur in view of students and parents suggests that Kennedy prayed pursuant to his responsibility to serve as a role model and moral exemplar.”
Smith added that Kennedy’s media appearances and prayer in the Bremerton High School bleachers while wearing Bremerton High School apparel, surrounded by others, “signal his intent to send a message to students and parents about appropriate behavior and what he values as a coach.”
The opinion goes on to state that it was obvious to both Kennedy and any objective observers that his presence on the 50-yard line immediately following football games was only permissible due to his position as a district employee.
“An ordinary citizen could not have prayed on the 50-yard line immediately after games as Kennedy did because Kennedy had special access to the field by virtue of his position as a coach,” Smith wrote. “Thus, the precise speech at issue — kneeling and praying on the 50-yard line immediately after games while in view of students and parents — could not physically have been engaged in by Kennedy if he were not a coach. Kennedy’s speech, therefore, occurred only because of his position with the district.”
In conclusion, Smith wrote that the circuit court judges “hold that Kennedy spoke as a public employee when he kneeled and prayed on the 50-yard line immediately after games while in view of the students and parents. Kennedy, therefore, cannot show a likelihood of success on the merits of his First Amendment retaliation claim. We affirm the district court’s order denying Kennedy’s motion for a preliminary injunction.”
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Michelle Beahm is the online editor with the Kitsap News Group. She can be reached at firstname.lastname@example.org.