Religious freedom scored a major victory today when the 9th U.S. Circuit Court of Appeals affirmed that a Washington public high school had the right to stop its football coach from leading students in prayer.
Former Bremerton High School coach Joe Kennedy routinely knelt down at the 50-yard-line immediately after games and led his players in prayer. Recognizing that Kennedy’s prayers pressured students to participate and created the impression that the school district endorsed Kennedy’s faith, Bremerton’s superintendent asked him to move his prayer to a private location.
But Kennedy ignored his superintendent and continued the prayer practice, and he was placed on paid administrative leave in 2015. He did not re-apply for the coaching job when his contract expired after that season.
Instead, Kennedy sued, claiming that the school district had violated his constitutional rights. He also took his case public and tried to portray himself as a victim. Religious Right groups rallied around him, and Donald Trump invited Kennedy to appear with him at a campaign rally in Virginia about a month before the election.
But Kennedy was no victim. In reality, it was Bremerton’s students whose constitutional rights were violated.
Former Bremerton High School football coach Joe Kennedy's after-game prayer practice was coercive to students. (photo credit: Meegan M. Reid/Kitsap Sun via AP)
In June, AU Legal Fellow Andrew Nellis argued before the 9th Circuit in support of Bremerton School District. Today, that court affirmed a lower court’s ruling that the district was within its rights to stop Kennedy from leading students in prayer.
“On Friday nights, many cities and towns across America temporarily shut down while communities gather to watch high school football games. Students and families from all walks of life join ‘to root for a common cause’,” Judge Milan D. Smith Jr. wrote in his opinion for the court. “While we ‘recognize the important role that public worship plays in many communities, as well as the sincere desire to include public prayer as a part of [these] occasions,’ such activity can promote disunity along religious lines, and risks alienating valued community members from an environment that must be open and welcoming to all.
“[B]y kneeling and praying on the fifty-yard line immediately after games while in view of students and parents, Kennedy was sending a message about what he values as a coach, what the District considers appropriate behavior, and what students should believe, or how they ought to behave,” said the court. And so the school district – mindful of its responsibility to ensure religious freedom for all of its students – had every right to ask Kennedy to stop.
Americans United, joined by 11 religious and civil-liberties organizations, had filed a friend-of-the-court brief in the case, Kennedy v. Bremerton School District. Our brief explained that school districts must remain neutral with respect to religion in order to protect the constitutional rights of all public school students.
The 9th Circuit’s opinion quoted our brief in explaining how Kennedy’s position as a role model could be coercive to impressionable students who may not feel able to refuse to participate in his prayers, even if those prayers run counter to their own beliefs.
“Teachers and coaches don’t get to pressure students to pray,” said Richard B. Katskee, AU’s legal director. “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.”
In addition to writing for the court, Judge Smith also wrote a separate concurring opinion, emphasizing that the school district’s actions were justified to avoid violating the Constitution. He observed that “many students would feel pressure to join Kennedy’s religious activity to avoid marking themselves as outsiders or alienating themselves from the team.” And he rejected Kennedy’s attorneys’ narrative of persecution, noting that the separation of church and state enshrined in the First Amendment’s Establishment Clause was “designed to advance and protect religious liberty, not to injure those who have religious faith.” For “whenever a religious majority controls the government, it frequently uses the civil power to persecute religious minorities and non-believers.”
AU is all too familiar with how a public school employee endorsing religion can tear communities apart. AU represented a New Jersey school district in a similar case, Borden v. School District of East Brunswick, where another football coach refused to stop leading students in prayer. The 3rd U.S. Circuit Court of Appeals ruled in our favor in 2008, but not before the issue divided the community and resulted in savage hate speech directed at students based on their religion, race, sex and sexual orientation.
Katskee praised Bremerton School District for standing up for its students: “The school district was on the right side of history and religious freedom, and Americans United was proud to support its efforts.”
If you’d like to learn more about today’s opinion and background on the case, watch this Facebook Live video recorded today by Nellis and Claire Hillan, another legal fellow at AU: