869 F.3d 813 (9th Cir. 2017), 16-35801, Kennedy v. Bremerton School District

Docket Nº:16-35801
Citation:869 F.3d 813
Opinion Judge:Milan D. Smith, Circuit Judge:
Party Name:JOSEPH A. KENNEDY, Plaintiff-Appellant, v. BREMERTON SCHOOL DISTRICT, Defendant-Appellee
Attorney:Rebekah Ricketts (argued) and Benjamin D. Wilson, Gibson Dunn & Crutcher LLP, Dallas, Texas; Daniel S.J. Nowicki, Gibson Dunn & Crutcher LLP, Palo Alto, California; Jeffrey Paul Helsdon, Oldfield & Helsdon PLLC, Fircrest, Washington; Hiram Sasser and Michael Berry, First Liberty Institute, Plano,...
Judge Panel:Before: DOROTHY W. NELSON, MILAN D. SMITH, JR., and MORGAN CHRISTEN, Circuit Judges. Opinion by Judge Milan D. Smith, Jr.; Concurrence by Judge Milan D. Smith, Jr. Milan D. Smith, Circuit Judge, specially concurring:
Case Date:August 23, 2017
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
SUMMARY

The Ninth Circuit affirmed the district court's order denying a high school coach's motion for a preliminary injunction that would require the District to allow him to kneel and pray on the fifty-yard line in view of students and parents immediately after football games. The panel held that the coach spoke as a public employee, not as a private citizen, and therefore declined to reach whether the ... (see full summary)

 
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Page 813

869 F.3d 813 (9th Cir. 2017)

JOSEPH A. KENNEDY, Plaintiff-Appellant,

v.

BREMERTON SCHOOL DISTRICT, Defendant-Appellee

No. 16-35801

United States Court of Appeals, Ninth Circuit

August 23, 2017

Argued and Submitted, Seattle, Washington: June 12, 2017

As Corrected August 24, 2017.

Appeal from the United States District Court for the Western District of Washington. D.C. No. 3:16-cv-05694-RBL. Ronald B. Leighton, District Judge, Presiding.

SUMMARY[*]

Civil Rights

The panel affirmed the district court's denial of preliminary injunctive relief in an action brought by a high school coach who alleged that his school district retaliated against him for exercising his First Amendment rights when it suspended him for kneeling and praying on the football field's fifty-yard line in view of students and parents immediately after high school football games.

Plaintiff sought an injunction ordering the school district to (1) cease discriminating against him in violation of the First Amendment, (2) reinstate him as a football coach, and (3) allow him to kneel and pray on the fifty-yard line immediately after high school football games.

The panel held that plaintiff spoke as a public employee, not as a private citizen when he kneeled and prayed on the fifty-yard line immediately after games in school logoed-attire while in view of students and parents. The panel held that plaintiff had a professional responsibility to communicate demonstratively to students and spectators and he took advantage of his position to press his particular views upon the impressionable and captive minds before him. The panel held that because plaintiff's demonstrative speech fell within the scope of his typical job responsibilities, he spoke as a public employee, and the district was permitted to order him not to speak in the manner that he did. Plaintiff accordingly could not show a likelihood of success on the merits of his First Amendment retaliation claim, and was not entitled to a preliminary injunction.

Specially concurring, Judge M. Smith wrote separately to share his view that the school district's actions were also justified to avoid violating the Establishment Clause.

Rebekah Ricketts (argued) and Benjamin D. Wilson, Gibson Dunn & Crutcher LLP, Dallas, Texas; Daniel S.J. Nowicki, Gibson Dunn & Crutcher LLP, Palo Alto, California; Jeffrey Paul Helsdon, Oldfield & Helsdon PLLC, Fircrest, Washington; Hiram Sasser and Michael Berry, First Liberty Institute, Plano, Texas; Anthony J. Ferate, Ferate PLLC, Edmond, Oklahoma; for Plaintiff-Appellant.

Michael B. Tierney (argued) and Paul Correa, Tierney & Blakney P.C., Seattle, Washington, for Defendant-Appellee.

Andrew L. Nellis (argued) and Richard B. Katskee, Americans United for Separation of Church and State, Washington, D.C.; David L. Barkey, Anti-Defamation League, Boca Raton, Florida; Jeffrey I. Pasek, Cozen O'Connor, New York, New York; for Amici Curiae Americans United for the Separation of Church and State; The Anti-Defamation League; Central Conference of American Rabbis; Disciples Justice Action Network of the Christian Church (Disciples of Christ); Equal Partners in Faith; Hadassah, the Women's Zionist Organization of America, Inc.; Hindu American Foundation; The Interfaith Alliance; Jewish Social Policy Action Network; People for the American Way Foundation; Union for Reform Judaism; and Women of Reform Judaism.

Gerald J. Russello and Daniel A. McLaughlin, Sidley Austin LLP, New York, New York; Collin P. Wedel, Sidley Austin LLP, Los Angeles, California; Christopher R. Mills, Sidley Austin LLP, Washington, D.C.; for Amicus Curiae Former Professional Football Players Steve Largent and Chad Hennings.

Justin D. Park, Bellevue, Washington, for Amicus Curiae Garfield High School Coaches Kellen Alley and Joseph Thomas.

Before: DOROTHY W. NELSON, MILAN D. SMITH, JR., and MORGAN CHRISTEN, Circuit Judges. Opinion by Judge Milan D. Smith, Jr.; Concurrence by Judge Milan D. Smith, Jr.

OPINION

M. SMITH, Circuit Judge:

Bremerton High School (BHS) football coach Joseph A. Kennedy appeals from the district court's order denying his motion for a preliminary injunction that would require Bremerton School District (BSD or the District) to allow Kennedy to kneel and pray on the fifty-yard line in view of students and parents immediately after BHS football games. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Bremerton School District

BSD is located in Kitsap County, Washington, across the Puget Sound from Seattle. The District is home to approximately 5,057 students, 332 teachers, and 400 non-teaching personnel. BSD is religiously diverse. Students and families practice, among other beliefs, Judaism, Islam, the Bahá 'í faith, Buddhism, Hinduism, and Zoroastrianism.

BSD employed Kennedy as a football coach at Bremerton High School from 2008 to 2015. Kennedy served as an assistant coach for the varsity football team and also as the head coach for the junior varsity football team. Kennedy's contract expired at the end of each football season. It provided that BSD " entrusted" Kennedy " to be a coach, mentor and role model for the student athletes." 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 formal job description required him to assist the head coach with " supervisory responsibilities," " [a]dhere to Bremerton School District policies and administrative regulations," " communicate effectively" with parents, " maintain positive media relations," and " [o]bey all the Rules of Conduct before players and the public as expected of a Head Coach," including the requirement to " use proper conduct before the public and players at all times." Consistent with his responsibility to serve as a role model, Kennedy's contract required that, " [a]bove all" else, Kennedy would endeavor not only " to create good athletes," but also " good human beings."

B. Kennedy's Religious Beliefs and Past Practices

Kennedy is a practicing Christian. Between 2008 and 2015, he led students and coaching staff in a locker-room prayer prior to most games. He also participated in prayers that took place in the locker room after the games had ended. Kennedy insists these activities predated his involvement with the program, and were engaged in as a matter of school tradition. His religious beliefs do not require him to lead any prayer before or after BHS football games.

Kennedy's religious beliefs do require him to give thanks through prayer at the end of each game for the players' accomplishments and the opportunity to be a part of their lives through football. Specifically, " [a]fter the game is over, and after the players and coaches from both teams have met to shake hands at midfield," Kennedy feels called to " take a knee at the 50-yard line and offer a brief, quiet prayer of thanksgiving for player safety, sportsmanship, and spirited competition." Kennedy's prayer usually lasts about thirty seconds. He wears a shirt or jacket bearing a BHS logo when he prays at midfield. Because his " prayer lifts up the players and recognizes their hard work and sportsmanship during the game," Kennedy's religious beliefs require him to pray on the actual field where the game was played.

Kennedy began performing these prayers when he first started working at BHS. At the outset, he prayed alone. Several games into his first season, however, a group of BHS players asked Kennedy whether they could join him. " This is a free country," Kennedy replied, " You can do what you want." Hearing that response, the students elected to join him. Over time, the group grew to include the majority of the team. Sometimes the BHS players even invited the opposing team to join.

Eventually, Kennedy's religious practice evolved to something more than his original prayer. He began giving short motivational speeches at midfield after the games. Students, coaches, and other attendees from both teams were invited to participate. During the speeches, the participants kneeled around Kennedy, who raised a helmet from each team and delivered a message containing religious content. Kennedy subsequently acknowledged that these motivational speeches likely constituted prayers.

C. The September 17, 2015, Letter from BSD to Kennedy

The District first learned that Kennedy was leading locker-room prayers and praying on the field in September 2015, when an employee of another school district mentioned the post-game prayers to a BSD administrator.1 The discovery prompted an inquiry into whether Kennedy was complying with the school board's policy on " Religious-Related Activities and Practices." Pursuant to...

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