Kennedy v. Bremerton Sch. Dist., CASE NO. 3:16-cv-05694-RBL

• Decision Date: 05 March 2020
• Docket Number: CASE NO. 3:16-cv-05694-RBL
• Citation: 443 F.Supp.3d 1223
• Parties: Joseph A. KENNEDY, Plaintiff, v. BREMERTON SCHOOL DISTRICT, Defendant.
• Court: U.S. District Court — Western District of Washington

443 F.Supp.3d 1223

Joseph A. KENNEDY, Plaintiff,

v.BREMERTON SCHOOL DISTRICT, Defendant.

CASE NO. 3:16-cv-05694-RBL

United States District Court, W.D. Washington, at Tacoma.

Signed March 5, 2020

Devin S. Anderson, Pro Hac Vice, Emily M. Long, Pro Hac Vice, William K. Lane, III, Pro Hac Vice, Samuel R. Fitzpatrick, Pro Hac Vice, Kirkland & Ellis LLP, Washington, DC, Jeffrey Paul Helsdon, The Helsdon Law Firm, PLLC, Gig Harbor, WA, Anthony J. Ferate, Pro Hac Vice, Ferate PLLC, Edmond, OK, Hiram Sasser, Pro Hac Vice, Michael Berry, Pro Hac Vice, First Liberty Institute, Plano, TX, Rebekah Perry Ricketts, Pro Hac Vice, Gibson Dunn & Crutcher LLP, Dallas, TX, for Plaintiff.

Michael Barry Tierney, Paul Correa, Tierney & Correa, P.C., Seattle, WA, for Defendant.

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

DKT. ## 63, 70

Ronald B. Leighton, United States District Judge

INTRODUCTION

THIS MATTER is before the Court on the parties' Cross-Motions for Summary Judgment. Dkt. ## 63, 70. Plaintiff Joseph Kennedy, a former football coach at Bremerton High School, was suspended in 2015 after he refused to change his practice of praying at the 50-yard line immediately after games. The ensuing dispute has highlighted a tension in the First Amendment between a public-school educator's right to free religious expression and their school's right to restrict that expression when it violates the Establishment Clause. Although the Court is sympathetic to Kennedy's desire to follow his beliefs, the former right must give way to the latter in this case. The Court therefore GRANTS Defendant Bremerton School District's Motion for Summary Judgment and DENIES Kennedy's Motion.

BACKGROUND

1. Kennedy's Coaching Career and History of Religious Conduct with Players

Kennedy was employed as a football coach at Bremerton High School (BHS) from 2008 until the 2015-16 season. Kennedy Dec., Dkt. # 71-4, at 1. As an assistant coach, Kennedy had to help the head coach with team supervision, assume direct supervisorial authority when designated by the head coach, and "[o]bey all Rules of Conduct before players and the public." Dkt. # 64-4 at 15. In addition to these practical responsibilities, Kennedy's position required him to act as a "mentor and role model for the student athletes, ... exhibit sportsmanlike conduct at all times, ... maintain positive media relations, ... [and strive to] create good athletes and good human beings." Coaching Agreement, Dkt. # 64-2 at 11. In Kennedy's own estimation, a coach's role extends far beyond merely teaching a sport and often involves a large amount of influence over student athletes. Kennedy Dep., Dkt. # 64-24, at 106-108.

According to his colleagues and superiors, Kennedy was a successful and dedicated coach when he worked at BHS. Polm Dep., Dkt. # 71-5, at 42-43; Saulsberry Dep., Dkt. # 71-6, at 14; Boynton Dep., Dkt. # 71-7, at 12. Kennedy also was (and is) a practicing Christian, and his sincerely-held beliefs required him to "give thanks through prayer, at the end of each game, for what the players had accomplished and for the opportunity to be a part of their lives through the game of football." Kennedy Dec., Dkt. # 71-4, at 2-3. This took the form of a roughly 30-second prayer that Kennedy delivered on one knee at the 50-yard line immediately after the players and coaches shook hands after the game. Id. at 3. According to Kennedy, these prayers were private communications with God that Kennedy committed to after watching a 2006 film called Facing the Giants. Id. at 2-3.

Kennedy recounts that when he began this practice in 2008 he would pray alone. Id. at 3. However, when players from the BHS team began to join him, he did not interfere. Id. Although the number of participating players varied from game to game, Kennedy recalls that a majority of the team eventually took part. Id. Eventually, Kennedy began delivering inspirational speeches with religious references after games. Id. at 4. He would also participate in pre- and post-game locker room prayers, although he testifies that these were not required by his religious beliefs. Id. Kennedy emphasizes that he "never coerced, required, or asked any student to pray with [him] at the conclusion of games." Id.

2. The District issues a Directive to Kennedy Limiting his Religious Conduct around Players on September 17, 2015

Although Kennedy's religious activity with student athletes went on for years, the District did not find out about it until September 2015 when a coach from an opposing team informed BHS Principal Polm that Kennedy had asked his team to join him in prayer on the field. Polm Dep., Dkt. # 71-5, at 55-56. Kennedy was first approached about his praying on September 11, when Athletic Director Barton spoke with Kennedy after a game and expressed disapproval when Kennedy conducted a prayer on the field. Kennedy Dep., Dkt. # 71-10, at 24-25. This prompted Kennedy to post on Facebook that he might get fired for praying. Id. at 25.

After an inquiry, the District sent Kennedy a letter on September 17, 2015, stating that his practices of giving religious inspirational talks at the 50-yard line (which "evolve[ed] organically" from his prayer at the 50-yard line) and leading prayer in the locker room likely violated District policy. September 17 Letter, Dkt. # 64-8, at 1. Specifically, the letter explained that the conduct likely ran afoul of Board Policy 2340, which seeks to avoid violations of the Establishment Clause by requiring that school staff neither encourage nor discourage students from engaging in religious activity. Id. at 1-2. Although noting that it "may not address every potential scenario," the letter closed with the following directive:

Student religious activity must be entirely and genuinely student-initiated, and may not be suggested, encouraged (or discouraged), or supervised by any District staff.... You and all District staff are 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 discernable as religious activity) if students are also engaged in religious conduct, or it should occur while students are not engaging in such conduct.

Id. at 3. Some students and parents expressed thanks for the District's directive that Kennedy cease praying after games, with some noting that their children had participated in the prayers to avoid being separated from the rest of the team or ensure playing time. Barton Dec., Dkt. # 65, at 2; Leavell Dec. at 7; Polm Dep., Dkt. # 64-25, at 73-74; see also Saulsberry Dep., Dkt. # 64-26, at 19-20.

After meeting with Kennedy to further explain the situation, Superintendent Leavell testified that Kennedy was "not happy" with the District's directive but agreed to abide by it. Leavell Dec., Dkt. # 67, at 4. At the September 18 game, Kennedy ceased praying in the locker room, omitted religious references in his inspirational speech, and prayed on the field only after the stadium had emptied. Kennedy Dec., Dkt. # 71-4, at 5. For the following five varsity and junior varsity games, Kennedy testified at his deposition that he either does not remember the manner in which he prayed or recalls that he prayed for 10-15 seconds while the team was performing the fight song, walking off the field, or heading to the bus. Kennedy Dep., Dkt. # 71-10, at 163-65. It is unclear whether he prayed at the 50-yard line. Id. Although Kennedy states that there were school administrators at these games, Leavell, Polm, and Barton were unaware of Kennedy's prayer at the time and believed he had ceased praying immediately after games. Leavell Dec., Dkt. # 82, at 2; Polm Dec., Dkt. # 80, at 2; Barton Dec., Dkt. # 81, at 2. After Kennedy changed his practices in September, no students were witnessed praying on the field independently. Leavell Dec., Dkt. # 67, at 7.

3. Kennedy Opposes the District's Directive, makes Media Appearances, and Prays at the October 16 Homecoming Game

On October 14, the District received a letter from Kennedy's lawyers requesting a religious accommodation on his behalf. October 14 Letter, Dkt. # 71-16. The letter emphasized that Kennedy's prayers were not obviously Christian and occurred "after his official duties as a coach have ceased." Id. at 2. In light of this, Kennedy's lawyers insisted that his prayers were private speech and that the District could not prohibit him from praying with students if they voluntarily joined. Id. at 6-7. The letter thus advised the District that Kennedy would resume praying at the 50-yard line after the October 16 homecoming game and requested that the District rescind its September 17 directive with respect to this practice. Id. at 6.

Meanwhile, Kennedy began making media appearances spreading the word that he intended to pray after the October 16 game. Kennedy Dep., Dkt. # 64-24, at 72-73. The Seattle Times published an article on October 14 announcing Kennedy's plans for the upcoming game, and a local news story aired before the game that explained the conflict with the District and included a statement from Kennedy that he planned to "do what [he'd] always done" at the game. Seattle Times Article, Dkt. # 64-11; Local News Video, Dkt. 64-12. The District also began receiving a large amount of emails, letters, and phone calls regarding the conflict over Kennedy's prayer, many of which were hateful or threatening. Leavell Dec., Dkt. # 67, at 3. This may have been originally triggered by Kennedy's September 11 Facebook about getting fired for praying.

Given this public response, Superintendent Aaron Leavell anticipated that members of the community would likely try to join Kennedy on the field after the homecoming game and that the District was currently unprepared to prevent...