The Ninth Circuit Court of Appeals has declined Joe Kennedy’s request for a legal injunction that would have reinstated him to his job as an assistant football coach at Bremerton High School and allowed him to pray after games.
Attorneys who worked on behalf of Kennedy in the high-profile case are considering their next steps, including whether to ask the U.S. Supreme Court to review the decision, but there is no guarantee that it will. A group that backed Bremerton schools hailed the decision as a victory.
Kennedy was placed on paid leave from the job in 2015, when he refused an order from administrators at the Bremerton School District that he cease praying on the football field following games. Kennedy had also been leading students and coaching staff in locker room prayer since 2008.
His contract was not renewed in 2016.
In the legal battle that followed, Kennedy argued that the district had violated his constitutional right to freedom of expression and freedom of religion. The district said Kennedy had violated its policy upholding the separation of church and state.
In its ruling, the Ninth Circuit panel wrote that Kennedy “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.”
Religious activities and expressions of faith on school grounds are permitted if they originate from students, according to the decision.
Judge Milan D. Smith Jr. wrote in the opinion that Kennedy “took advantage of his position to press his particular views upon the impressionable and captive minds before him. … 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.”
The district “is religiously diverse,” Smith noted, “and families practice, among other beliefs, Judaism, Islam, the Bahá’í faith, Buddhism, Hinduism and Zoroastrianism.”
Jeremy Dys, deputy general counsel for First Liberty, an advocacy group that worked on behalf of Kennedy, called the ruling deeply disappointing and absurd.
“By refusing to allow any public displays, the Ninth Circuit Court of Appeals is effectively saying it is unconstitutional for a coach to make the sign of the cross or bow his head in prayer when a player is hurt,” Dys told the Kitsap Sun. “That is not the America contemplated by our Constitution.”
The three options available are to request the three-judge panel reconsider its decision, request a hearing in front of the full circuit (called an “en banc” review), or appeal directly to the Supreme Court. All options are discretionary, Dys said, meaning that making the request does not guarantee the case will be heard again.
The decision on how to proceed will likely be made in the next couple weeks, Dys said.
“Teachers and coaches don’t get to pressure students to pray,” Richard B. Katskee, Americans United’s legal director, said in a statement. “Students and families have the right to decide whether and how to practice their faith. Public schools should be welcoming places for all students and families, and no student should feel like an outsider at his or her school.”
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