Kennedy v. Bremerton Sch. Dist.

• Decision Date: 19 July 2021
• Docket Number: No. 20-35222,20-35222
• Citation: Kennedy v. Bremerton Sch. Dist., 4 F.4th 910(Mem) (9th Cir. 2021)
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: Joseph A. KENNEDY, Plaintiff-Appellant, v. BREMERTON SCHOOL DISTRICT, Defendant-Appellee.

4 F.4th 910 (Mem)

Joseph A. KENNEDY, Plaintiff-Appellant,

v.BREMERTON SCHOOL DISTRICT, Defendant-Appellee.

No. 20-35222

United States Court of Appeals, Ninth Circuit.

Filed July 19, 2021

Devin S. Anderson(argued), Emily Merki Long, Elizabeth Hedges, Paul D. Clement, and Erin E. Murphy, Kirkland & Ellis LLP, Washington, D.C.; Hiram Sasser, Jeffrey C. Mateer, Michael Berry, Stephanie N. Taub, and David J. Hacker, First Liberty Institute, Plano, Texas; Anthony J. Ferate, Spencer Fane LLP, Oklahoma City, Oklahoma; Jeffrey Paul Helsdon, Helsdon Law Firm PLLC, Tacoma, Washington; for Plaintiff-Appellant.

Michael B. Tierney(argued) and Paul Correa, Tierney & Correa P.C., Mercer Island, Washington; Richard B. Katskee, Bradley Girard, and Alexander Gouzoules, Americans United for Separation of Church and State, Washington, D.C.; for Defendant-Appellee.

Richard B. Katskee(argued) and Alexander Gouzoules, Americans United for Separation of Church and State, Washington, D.C., for Amici Curiae Religious and Civil Rights Organizations.

Francisco M. Negrón Jr., Chief Legal Officer, National School Boards Association, Alexandria, Virginia; Sloan R. Simmons and Courtney de Groof, Lozano Smith, Sacramento, California; for Amici Curiae National School Boards Association, Association of Alaska School Boards, Arizona School Boards Association, California School Arizona School Boards Association, California School Boards Association, Nevada Association of School Boards, and Washington State School Directors’ Association.

Kevin G. Clarkson, Attorney General; Katherine Demarest, Senior Assistant Attorney General; Alaska Department of Law, Anchorage, Alaska; Ken Paxton, Attorney General; Jeffrey C. Mateer, First Assistant Attorney General; Ryan L. Bangert, Deputy First Assistant Attorney General; Kyle D. Hawkins, Solicitor General; Kyle D. Highful and Natalie D. Thompson, Assistant Solicitors General; Office of the Attorney General, Austin, Texas; for Amici Curiae States of Alaska, Texas, Alabama, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, and West Virginia.

Before: DOROTHY W. NELSON, MILAN D. SMITH, JR., and MORGAN CHRISTEN, Circuit Judges.

Order;

Concurrence by Judge Milan D. Smith, Jr. ;

Concurrence by Judge Christen ;

Statement by Judge O'Scannlain ;

Statement by Judges O'Scannlain and Bea ;

Statements by Judge O'Scannlain ;

Statement by Judge Bea ;

Dissent by Judge Ikuta ;

Dissent by Judge R. Nelson ;

Dissent by Judge Collins

ORDER

A judge of this court sua sponte requested a vote on whether to rehear this case en banc.A vote was taken and the matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration.SeeFed. R. App. P. 35(f).Rehearing en banc is DENIED .

Judge Bress did not participate in the deliberations or vote in this case.

M. SMITH, Circuit Judge, concurring in the denial of rehearing en banc:

Unlike Odysseus, who was able to resist the seductive song of the Sirens by being tied to a mast and having his shipmates stop their ears with bees’ wax, our colleague, Judge O'Scannlain, appears to have succumbed to the Siren song of a deceitful narrative of this case spun by counsel for Appellant, to the effect that Joseph Kennedy, a Bremerton High School (BHS) football coach, was disciplined for holding silent, private prayers.That narrative is false.Although I discuss the events in greater detail below, the reader should know the following basic truth ab initio : Kennedy was never disciplined by BHS for offering silent, private prayers.In fact, the record shows clearly that Kennedy initially offered silent, private prayers while on the job from the time he began working at BHS, but added an increasingly public and audible element to his prayers over the next approximately seven years before the Bremerton School District(BSD) leadership became aware that he had invited the players and a coach from another school to join him and his players in prayer at the fifty-yard line after the conclusion of a football game.He was disciplined only after BSD tried in vain to reach an accommodation with him after he(in a letter from his counsel) demanded the right to pray in the middle of the football field immediately after the conclusion of games while the players were on the field, and the crowd was still in the stands.He advertised in the area's largest newspaper, and local and national TV stations, that he intended to defy BSD's instructions not to publicly pray with his players while still on duty even though he said he might lose his job as a result.As he said he would, Kennedy prayed out loud in the middle of the football field immediately after the conclusion of the first game after his lawyer's letter was sent, surrounded by players, members of the opposing team, parents, a local politician, and members of the news media with television cameras recording the event, all of whom had been advised of Kennedy's intended actions through the local news and social media.

In his statement, Judge O'Scannlain omits most of the key facts in this case, reorders the chronology of events, and ignores pertinent Establishment Clause law, much of which has been in place for more than half a century.

I.

When Joseph Kennedy was hired by BSD in 2008, his post-game prayers were initially silent and private.Kennedy v. Bremerton Sch. Dist. (Kennedy III) , 991 F.3d 1004, 1010(9th Cir.2021).Over the ensuing years, however, Kennedy made it his mission to intertwine religion with football.Eventually, he led the team in prayer in the locker room before each game, and some players began to join him for his post-game prayer, too, where his practice ultimately evolved to include full-blown religious speeches to, and prayers with, players from both teams after the game, conducted while the players were still on the field and while fans remained in the stands.Id.

When BSD's Athletic Director heard about Kennedy's practices, he told Kennedy that he should not be conducting prayers with his players.Id.Kennedy then wrote on his Facebook page that he thought he might have been fired for praying.Id. at 1011.According to Principal John Polm's deposition, that post resulted in "thousands of people saying they were going to attend and storm the field with [Kennedy] after the game."In addition, Superintendent Aaron Leavell wrote in his declaration that "[o]nce the topic arose, the District was flooded with thousands of emails, letters, and phone calls from around the country, many of which were hateful or threatening."Kennedy III , 991 F.3d at 1011.Clearly, from that time forward, the public was watching to see whether BSD would permit Kennedy to continue his demonstrative religious practices while he was on the job.The public's interest was neither surprising nor unintended; during the course of these events, Kennedy gave numerous media interviews describing his practice of praying mid-field at the conclusion of BHS's games, and of his intention to defy BSD in so doing.

Having learned of Kennedy's on-duty religious practice, BSD concluded that it needed to make certain the coaching staff clearly understood the parameters of what was expected of them regarding religious activities while on the job.Id.BSD told the coaching staff that they could and should continue giving inspirational talks to their players but that "[t]hey must remain entirely secular in nature, so as to avoid alienation of any team member."Id.BSD also advised that "[s]tudent religious activity must be entirely and genuinely student-initiated, and may not be suggested, encouraged (or discouraged), or supervised by any District staff."Id.BSD further counseled that "[i]f students engage in religious activity, school staff may not take any action likely to be perceived by a reasonable observer, who is aware of the history and context of such activity at BHS, as endorsement of that activity."Id.Last, BSD stressed that Kennedy personally was

free to engage in religious activity, including prayer, so long as it does not interfere with job responsibilities.Such activity must be physically separate from any student activity, and students may not be allowed to join such activity.In order to avoid the perception of endorsement discussed above, such activity should either be non-demonstrative (i.e. , not outwardly discernible as religious activity) if students are also engaged in religious conduct, or it should occur while students are not engaging in such conduct.

Id.

Kennedy initially followed BSD's instructions, ceasing both his pre-game and post-game prayers, but he eventually commenced a very public campaign against BSD focused only on the post-game activity.Quoting from our opinion:

Kennedy's increasingly direct challenge to BSD escalated when he wrote BSD through his lawyer on October 14, 2015.The letter announced that Kennedy would resume praying on the fifty-yard line immediately after the conclusion of the October 16, 2015 game.Kennedy testified in his deposition that he intended the October 14 letter to communicate to the district that he"wasn't going to stop [his] prayer because there was [sic] kids around [him]."In other words, Kennedy was planning to pray on the fifty-yard line immediately after the game, and he would allow students to join him in that religious activity if they wished to do so.The lawyer's letter also demanded that BSD rescind the directive in its September 17 letter that Kennedy cease his post-game prayers at the fifty-yard line immediately after the game.

Kennedy's intention to pray on the field following the October 16 game was widely publicized through Kennedy and his representatives’ "numerous appearances and announcements [on] various forms of media."For example, the Seattle Times published an article on October 14(the same day as the lawyer's letter was sent to BSD), entitled

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