Affirming the denial of preliminary injunctive relief for a football coach seeking reinstatement and to be allowed to pray on the 50-yard line immediately after games, the Ninth Circuit held that he spoke as a public employee, not as a private citizen, when he kneeled and prayed in school logoed-attire while in view of students and parents. The panel also expressed that he used his position to press his particular views on impressionable and captive minds. Because his demonstrative speech fell within his typical job duties, he spoke as a public employee, and the district was allowed to order him not to speak in this manner, he could not show a likelihood of success on the merits of his First Amendment retaliation claim and was not entitled to a preliminary injunction (Kennedy v. Bremerton School District, August 23, 2017, Smith, M, Jr.).
The employee worked as a football coach in a Kitsap County, Washington, school district that is religiously diverse. Students and families practice, among other beliefs, Judaism, Islam, the Baha’i faith, Hinduism, and Zoroastrianism. The employee’s contract, which expired after each football season, stated that he was entrusted “to be a coach, mentor and role model for the student athletes.” He agreed to “exhibit sportsmanlike conduct at all times,” and acknowledged that, as a coach, he was “constantly being observed by others.” He was required to adhere to district policies, “communicate effectively” with parents, and “maintain positive media relations.”
Post-game prayer on 50-yard line. Between 2008 and 2015, the employee led students and staff in a locker-room prayer before games and participated in locker room prayers after games. He is a practicing Christian, and his religious beliefs required he give thanks at the end of each game for the players’ accomplishments and for being part of their lives. However, his religious beliefs did not require him to lead a prayer. He claimed he felt called after games to “take a knee at the 50-yard line and offer a brief, quiet prayer of thanksgiving for player safety, sportsmanship, and spirited competition.” His prayer lasted about 30 seconds. At first, he prayed alone. After a few games, players asked to join and he told them it was a “free country.” The group grew to include most of the team and some opposing players. The prayer also evolved into short speeches in which students and others were invited to participate. Some kneeled around the coach, who held up helmets from each team and delivered a religious message.
Inquiry. In 2015, the post-game prayers came to the attention of a district administrator, leading to an inquiry into whether the coach was complying with a policy on “Religious-Related Activities and Practices.” The policy states that “a student may of his/her own volition engage in private, non-disruptive prayer at any time not in conflict with learning activities,” and that “[s]chool staff shall neither encourage nor discourage a student from engaging in non-disruptive oral or silent prayer or any other form of devotional activity.” In a September 17 letter, the superintendent informed the employee his practices, though well-meaning, were “problematic” under the Establishment Clause and speeches “must remain entirely secular in nature, so as to avoid alienation of any team member.” He was also advised that student religious activity “must be entirely and genuinely student-initiated” and not “encouraged (or discouraged), or supervised” by staff. It stressed that he was “free to engage in religious activity . . . so long as it does not interfere with job responsibilities” and was separate from student activity.
Publicity. By now, the employee’s prayers had “generated substantial publicity” and the district worried it would not be able to secure its field. The coach temporarily stopped praying on the field, giving speeches with “no mention of religion or faith” and only praying after everyone else left. Then, in an October 14 letter he requested an accommodation of saying a “private post-game prayer at the 50-yeard line,” stressing he did not encourage students to participate. His intent to pray at the next game was widely publicized, including by him. When he knelt down, others rushed to join, including spectators who reportedly knocked over students on the way.
The superintendent sent the employee another letter explaining that the conduct at the October 16 game was inconsistent with district requirements. He also confirmed that coaches had assigned duties before and after games and the employee was engaging in overtly religious conduct while still on duty, and while on the field by virtue of his employment. The district offered him the use of a private location for prayers but he declined. His legal representatives made clear to the media that his 50-yard line prayer would continue; and it did after games on October 23 and 26. He was then placed on administrative leave. He still attended games as a member of the public, wearing district apparel and praying in the bleachers while news cameras recorded his actions.
During the employee’s leave, the players did not pray on their own after games. The district concluded that students had felt coerced to pray when he did. Thereafter, the athletic director recommended the employee not be rehired because he failed to follow district policy. The district opened all coaching positions to application, but the employee did not apply for the 2016 season.
Injunction denied. The employee filed suit alleging violations of the First Amendment and Title VII. He also moved for a preliminary injunction ordering the district to (1) cease discriminating against him, (2) reinstate him as a football coach, and (3) allow him to kneel and pray on the 50-yard line immediately after football games. Denying the injunction, the district court applied the five-step framework laid out by the Ninth Circuit in Eng v. Cooley and held that the employee was unlikely to prevail on the merits of his First Amendment retaliation claim because he spoke as a public employee and because the district’s conduct was justified by its need to avoid violating the Establishment Clause.
Spoke as public employee, not private citizen. On appeal, the parties did not contest that the employee spoke on a matter of public concern or that the speech was a substantial or motivating factor in the decision to put him on leave and the district would not have done so absent his speech. Thus, the only two Eng factors at issue were whether he spoke as a private citizen and whether the district’s conduct was adequately justified. Because the Ninth Circuit concluded that he spoke as a public employee, not a private citizen, it did not reach the question of justification.
After detailing the governing law, the appeals court explained that in praying on the 50-yard line in view of students and parents immediately after the school’s football games, the employee was making a statement within the course of his ordinary job responsibilities and therefore spoke as a public employee. The court stressed that it was critical here that the relevant “speech at issue” involved praying on the 50-yard line immediately after games while in view of students and parents. This was not a case, as argued by the employee, where he prayed “silently and alone.”
Moreover, the speech was directed at least in part to the students and spectators. The employee’s job required that he be a “role model,” “communicate effectively” with parents, and “maintain positive media relations.” Also, he acknowledged he was “constantly being observed by others,” so in the court’s view, he “plainly understood that demonstrative communication fell within the compass of his professional obligations.” Indeed, an ordinary citizen could not have prayed on the 50-yard line immediately after games and the employee only spoke by virtue of his position. Also, in the court’s view, he used his position to press his particular views on impressionable and captive minds. Because his demonstrative communication fell within the scope of his job duties, he spoke as a public employee, not a private citizen, so his speech was not protected.
Concurring opinion. Justice Smith also authored a concurring opinion to share the view that the district’s actions were also justified to avoid violating the Establishment Clause, so the employee’s claims failed on that Eng factor as well.
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