Labor & Employment Law Daily Justices won’t review coach’s claim he was suspended for praying on football field
Friday, January 25, 2019

Justices won’t review coach’s claim he was suspended for praying on football field

By Pamela Wolf, J.D.

Justice Alito agreed with the denial of review to a coach suspended for praying on the football field due to inadequate factual findings, but noted the Ninth Circuit applied Garcetti “to public school teachers and coaches in a highly tendentious way.”

In an unusual move, Justice Samuel Alito, joined by Justices Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh, provided an explanation for their vote to deny certiorari in a petition asking the High Court to determine “whether public school teachers and coaches retain any First Amendment rights when at work and ‘in the general presence of’ students.”

Justice Alito’s statement appears to send a message to the Ninth Circuit, not only about a lack of factual findings that would permit review, but also about the appeals court’s interpretation of First Amendment jurisprudence.

Ninth Circuit affirms prayer ban. Below, in Kennedy v. Bremerton School District, the Ninth Circuit Court of Appeals affirmed denial of preliminary injunctive relief for a football coach seeking both reinstatement and to be allowed to pray on the 50-yard line immediately after games. The appeals court held that the coach 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; 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.

It’s not because we agree with this opinion. Concurring in the denial of the petition for certiorari filed by the coach, Justice Alito wrote, “I concur in the denial of the petition for a writ of certiorari because denial of certiorari does not signify that the Court necessarily agrees with the decision (much less the opinion) below. In this case, important unresolved factual questions would make it very difficult if not impossible at this stage to decide the free speech question that the petition asks us to review.”

Reason for loss of employment matters. Explaining that the district court below should have made a specific finding as to what the coach was likely able to show about the reason(s) for his loss of employment, Alito gave two alternatives: “If the likely reason was simply petitioner’s neglect of his duties … while he prayed on his own—his free speech claim would likely fail.” It wouldn’t make a difference that he was praying rather than engaging in some other private activity at that time. But his free speech claim would have far greater weight if he was likely able to show either that he was not really on duty at the time in question, or that he was on duty only in that his workday had not yet ended and that his prayer took place at a time when it would have been permissible for him to engage briefly in other private conduct.

“Unfortunately, the District Court’s brief, informal oral decision did not make any clear finding about what petitioner was likely to be able to prove,” wrote Alito, explaining that the judge’s comments instead “melded” these two distinct justifications.

“The decision of the Ninth Circuit was even more imprecise on this critical point,” according to Alito. “Instead of attempting to pinpoint what petitioner was likely to be able to prove regarding the reason or reasons for his loss of employment, the Ninth Circuit recounted all of petitioner’s prayer-related activities over the course of several years, including conduct in which he engaged as a private citizen, such as praying in the stands as a fan after he was suspended from his duties.”

On discretionary, not mandatory review. If the coach’s case had been before the Supreme Court on an appeal within its mandatory jurisdiction, “our clear obligation would be to vacate the decision below with instructions that the case be remanded to the District Court for proper application of the test for a preliminary injunction, including a finding on the question of the reason or reasons for petitioner’s loss of employment,” Alito noted. “But the question before us is different. It is whether we should grant discretionary review, and we generally do not grant such review to decide highly fact-specific questions.”

Lesson for the Ninth Circuit. In his statement, Justice Alito criticized the Ninth Circuit’s interpretation of First Amendment Law, writing, “the Ninth Circuit’s understanding of the free speech rights of public school teachers is troubling and may justify review in the future.” The appeals court’s opinion applied the Supreme Court’s Garcetti v. Ceballos, ruling “to public school teachers and coaches in a highly tendentious way,” Alito said.

“According to the Ninth Circuit, public school teachers and coaches may be fired if they engage in any expression that the school does not like while they are on duty, and the Ninth Circuit appears to regard teachers and coaches as being on duty at all times from the moment they report for work to the moment they depart, provided that they are within the eyesight of students.”

This interpretation of Garcetti would mean that if teachers are visible to a student while eating lunch, they could “be ordered not to engage in any “demonstrative” conduct of a religious nature, such as folding their hands or bowing their heads in prayer,” according to Alito. “And a school could also regulate what teachers do during a period when they are not teaching by preventing them from reading things that might be spotted by students or saying things that might be overheard.” The High Court has never read Garcetti to go that far.

“While Garcetti permits a public employer to regulate employee speech that is part of the employee’s job duties, we warned that a public employer cannot convert private speech into public speech ‘by creating excessively broad job descriptions,” Alito warned: “If the Ninth Circuit continues to apply its interpretation of Garcetti in future cases involving public school teachers or coaches, review by this Court may be appropriate.”

Expressing religious faith while not on duty. “What is perhaps most troubling about the Ninth Circuit’s opinion is language that can be understood to mean that a coach’s duty to serve as a good role model requires the coach to refrain from any manifestation of religious faith—even when the coach is plainly not on duty,” Alito said. “I hope that this is not the message that the Ninth Circuit meant to convey, but its opinion can certainly be read that way.” The Justice noted that when the coach prayed in the bleachers, he had been suspended and was then attending a game like any other fan. “The suggestion that even while off duty, a teacher or coach cannot engage in any outward manifestation of religious faith is remarkable,” Alito wrote.

The case is No. 18-12.

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