Joseph Kennedy v. Bremerton School District ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEPH A. KENNEDY, No. 20-35222
Plaintiff-Appellant,
D.C. No.
v. 3:16-cv-05694-RBL
BREMERTON SCHOOL DISTRICT,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted January 25, 2021
Pasadena, California
Filed March 18, 2021
Before: DOROTHY W. NELSON, MILAN D. SMITH,
JR., and MORGAN CHRISTEN, Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.;
Concurrence by Judge Christen
2 KENNEDY V. BREMERTON SCHOOL DISTRICT
SUMMARY *
Civil Rights
The panel affirmed the district court’s summary
judgment in favor of Bremerton School District in an action
brought by Joseph Kennedy, the District’s former high
school football coach, who alleged that his rights were
violated under the First Amendment and Title VII of the
Civil Rights Act of 1964 when the District prohibited him
from praying at the conclusion of football games, in the
center of the field, potentially surrounded by Bremerton
students, and members of the community.
The panel held that the record before it and binding
Supreme Court precedent compelled the conclusion that the
District would have violated the Establishment Clause by
allowing Kennedy to engage in the religious activity he
sought. Kennedy’s attempts to draw nationwide attention to
his challenge to the District showed that he was not engaging
in private prayer. Instead, he was engaging in public speech
of an overtly religious nature while performing his job
duties. The District tried to accommodate Kennedy, but that
was spurned by Kennedy insisting that he be allowed to pray
immediately after the conclusion of each game, potentially
surrounded by students. The panel held that the district court
correctly granted summary judgment to the District on
Kennedy’s free speech and free exercise claims.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
KENNEDY V. BREMERTON SCHOOL DISTRICT 3
The panel held that Kennedy’s Title VII claims alleging
failure to rehire, disparate treatment, failure to accommodate
and retaliation also failed. The panel held that the record
reflected that Kennedy did not show that he was adequately
performing his job; he could not make out a prima facie case
of disparate treatment; the District could not reasonably
accommodate Kennedy’s practice without undue hardship;
and the District had a legitimate nondiscriminatory reason
for its adverse employment actions.
Concurring, Judge Christen, joined by Judge D.W.
Nelson, stated that she concurred in the majority’s decision
affirming the district court’s order granting summary
judgment, and dismissing Kennedy’s Free Speech and Free
Exercise claims. Judge Christen wrote separately to
underscore why, in her view, the outcome of this appeal was
entirely driven by the circumstances from which Kennedy’s
claims arose.
COUNSEL
Devin S. Anderson (argued), Emily Merki Long, and
Elizabeth Hedges, Kirkland & Ellis LLP, Washington, D.C.;
Hiram Sasser, Michael Berry and Stephanie N. Taub, First
Liberty Institute, Plano, Texas; Anthony J. Ferate, Spencer
Fane LLP, Oklahoma City, Oklahoma; Jeffrey Paul
Helsdon, Helsdon Law Firm PLLC, Tacoma, Washington;
for Plaintiff-Appellant.
Michael B. Tierney (argued) and Paul Correa, Tierney &
Correa P.C., Mercer Island, Washington, for Defendant-
Appellee.
4 KENNEDY V. BREMERTON SCHOOL DISTRICT
Richard B. Katsee (argued) and Alexander Gouzoules,
Americans United for Separation of Church and State,
Washington, D.C., for Amici Curiae Religious and Civil
Rights Organizations.
Francisco M. Negrón Jr., Chief Legal Officer, National
School Boards Association, Alexandria, Virginia; Sloan R.
Simmons and Courtney de Groof, Lozano Smith,
Sacramento, California; for Amici Curiae National School
Boards Association, Association of Alaska School Boards,
Arizona School Boards Association, California School
Arizona School Boards Association, California School
Boards Association, Nevada Association of School Boards,
and Washington State School Directors’ Association.
Kevin G. Clarkson, Attorney General; Katherine Demarest,
Senior Assistant Attorney General; Alaska Department of
Law, Anchorage, Alaska; Ken Paxton, Attorney General;
Jeffrey C. Mateer, First Assistant Attorney General; Ryan L.
Bangert, Deputy First Assistant Attorney General; Kyle D.
Hawkins, Solicitor General; Kyle D. Highful and Natalie D.
Thompson, Assistant Solicitors General; Office of the
Attorney General, Austin, Texas; for Amici Curiae States of
Alaska, Texas, Alabama, Arizona, Arkansas, Georgia,
Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi,
Montana, Nebraska, Ohio, Oklahoma, South Carolina, South
Dakota, Tennessee, Utah, and West Virginia.
KENNEDY V. BREMERTON SCHOOL DISTRICT 5
OPINION
M. SMITH, Circuit Judge:
This case requires us to decide whether Bremerton
School District (BSD) would have violated the
Establishment Clause by allowing Joseph Kennedy, a high
school football coach, to engage in demonstrative religious
conduct immediately after football games, while kneeling on
the field’s fifty-yard line, surrounded by many of his players,
and occasionally members of the community. To answer
this question, we must examine whether a reasonable
observer, aware of the history of Kennedy’s religious
activity, and his solicitation of community and national
support for his actions, would perceive BSD’s allowance of
Kennedy’s conduct as an endorsement of religion. Although
there are numerous close cases chronicled in the Supreme
Court’s and our current Establishment Clause caselaw, this
case is not one of them. When BSD’s superintendent
became aware of Kennedy’s religious observances on the
50-yard line with players immediately following a game, he
wrote Kennedy informing him what he must avoid doing in
order to protect BSD from an Establishment Clause claim.
In response, Kennedy determined he would “fight” his
employer by seeking support for his position in local and
national television and print media, in addition to seeking
support on social media. In a letter from his counsel, he
informed BSD that he would not comply with its
instructions, and that he intended to continue engaging in the
kind of mid-field religious exercises he had been told not to
perform. Answering Kennedy’s solicitation, scores of
parents, a state representative, and students from both teams
rushed to mid-field after a game to support Kennedy against
BSD’s efforts to avoid violating the Constitution. All of this
6 KENNEDY V. BREMERTON SCHOOL DISTRICT
was memorialized and broadcast by local and national TV
stations and print media.
District personnel received hateful communications
from some members of the public, and some BSD personnel
felt physically threatened. When it evaluated BSD’s actions
concerning Kennedy, the district court held that seeking to
avoid an Establishment Clause claim was the “sole reason”
BSD limited Kennedy’s public actions as it did. We hold
that BSD’s allowance of Kennedy’s conduct would violate
the Establishment Clause; consequently, BSD’s efforts to
prevent the conduct did not violate Kennedy’s constitutional
rights, nor his rights under Title VII. We affirm the district
court’s grant of summary judgment to BSD on all claims.
FACTUAL AND PROCEDURAL BACKGROUND
We previously affirmed the district court’s denial of
Kennedy’s request for a preliminary injunction. Kennedy v.
Bremerton Sch. Dist. (Kennedy I), 869 F.3d 813 (9th Cir.
2017). Although our opinion in Kennedy I set forth the facts
as they were known at the time, we nevertheless include the
relevant facts here—both those in the record at the time of
Kennedy I, and those added to the record since.
BSD employed Kennedy as a football coach at
Bremerton High School (BHS) from 2008 to 2015. Kennedy
was an assistant coach for the varsity football team and the
head coach for the junior varsity football team. Kennedy’s
contract expired at the end of each football season. The
contract provided that BSD “entrusted” Kennedy “to be a
coach, mentor and role model for the student athletes.”
Kennedy further acknowledged that, as a football coach, he
was “constantly being observed by others.”
KENNEDY V. BREMERTON SCHOOL DISTRICT 7
Kennedy is a practicing Christian. Kennedy’s religious
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
football.” Specifically, “[a]fter the game [was] over, and
after the players and coaches from both teams [ ] met to
shake hands at midfield,” Kennedy felt called to kneel at the
50-yard line and offer a brief, quiet prayer of thanksgiving
for player safety, sportsmanship, and spirited competition.”
Kennedy’s prayer usually lasted about thirty seconds.
Kennedy’s religious beliefs required that his prayer occur on
the field where the game was played, immediately after the
game concluded. This necessarily meant that spectators—
students, parents, and community members—would observe
Kennedy’s religious conduct.
Kennedy began performing these prayers when he first
started working at BHS. At the outset, he prayed alone.
Several games into his first season, however, a group of BHS
players asked Kennedy whether they could join him. “This
is a free country,” Kennedy replied, “You can do what you
want.” Hearing that response, the students joined him. Over
time, the group grew to include the majority of the team. The
BHS players sometimes invited the opposing team to join.
BHS principal John Polm testified that he later became
aware of a parent’s complaint that his son “felt compelled to
participate” in Kennedy’s religious activity, even though he
was an atheist, because “he felt he wouldn’t get to play as
much if he didn’t participate.”
8 KENNEDY V. BREMERTON SCHOOL DISTRICT
Eventually, Kennedy’s religious practice evolved. He
began giving short motivational speeches at midfield after
the games. Students, coaches, and other attendees from both
teams were invited to participate. During the speeches, the
participants kneeled around Kennedy. He then raised a
helmet from each team and delivered a message containing
religious content. Kennedy subsequently acknowledged that
these motivational speeches likely constituted prayers.
BSD first learned that Kennedy was praying on the field
in September 2015, when the opposing team’s coach told
BHS principal John Polm that Kennedy had asked his team
to join him in prayer on the field. He also noted that “he
thought it was pretty cool how [BSD] would allow”
Kennedy’s religious activity. After learning of the incident,
Athletic Director Barton spoke with Kennedy and expressed
disapproval when Kennedy conducted a prayer on the field.
In response, Kennedy posted on Facebook, “I think I just
might have been fired for praying.” Shortly thereafter, BSD
“was flooded with thousands of emails, letters, and phone
calls from around the country” regarding the conflict over
Kennedy’s prayer, “many of which were hateful or
threatening.”
BSD’s discovery prompted an inquiry into whether
Kennedy was complying with the school board’s policy on
“Religious-Related Activities and Practices.” Pursuant to
that policy, “[a]s a matter of individual liberty, a student may
of his/her own volition engage in private, non-disruptive
prayer at any time not in conflict with learning activities.”
In addition, “[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.”
KENNEDY V. BREMERTON SCHOOL DISTRICT 9
The District’s investigation revealed that coaching staff
had received little training regarding the District’s policy.
Accordingly, BSD Superintendent Aaron Leavell sent
Kennedy a letter on September 17, 2015, to clarify the
District’s prospective expectations.
Leavell advised Kennedy that he could continue to give
inspirational talks but “[t]hey must remain entirely secular
in nature, so as to avoid alienation of any team member.” He
further advised that “[s]tudent religious activity must be
entirely and genuinely student-initiated, and may not be
suggested, encouraged (or discouraged), or supervised by
any District staff.” Leavell further counseled Kennedy that
“[i]f students engage in religious activity, school staff may
not take any action likely to be perceived by a reasonable
observer, who is aware of the history and context of such
activity at BHS, as endorsement of that activity.” Lastly,
Leavell stressed that Kennedy was
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 discernible as religious activity) if
students are also engaged in religious
conduct, or it should occur while students are
not engaging in such conduct.
In response, Kennedy temporarily stopped praying on
the field after football games. Instead, after the September
18th game, Kennedy gave a short motivational speech “that
10 KENNEDY V. BREMERTON SCHOOL DISTRICT
included no mention of religion or faith.” According to
Kennedy, he began to drive home that night but turned
around to go back to the field because he “felt dirty,”
knowing that, by not praying at the conclusion of the game,
he had broken his commitment to God. Back at the field,
Kennedy waited ten to fifteen minutes until “everyone else
had left the stadium” so that he could have “a moment alone
with God” to pray at the fifty-yard line.
BSD received no further reports of Kennedy praying on
the field after games, and BSD officials believed that
Kennedy was complying with its directive that allowed his
religious activity, so long as he avoided “the perception of
endorsement.” According to Kennedy’s averment in his
deposition, however (and contrary to the allegations he
raised in his EEOC complaint), he prayed directly after every
game except the one on September 18.
Kennedy’s increasingly direct challenge to BSD
escalated when he wrote BSD through his lawyer on October
14, 2015. The letter announced that Kennedy would resume
praying on the fifty-yard line immediately after the
conclusion of the October 16, 2015 game. Kennedy testified
in his deposition that he intended the October 14 letter to
communicate to the district that he “wasn’t going to stop
[his] prayer because there was [sic] kids around [him].” In
other words, Kennedy was planning to pray on the fifty-yard
line immediately after the game, and he would allow
students to join him in that religious activity if they wished
to do so. The lawyer’s letter also demanded that BSD
rescind the directive in its September 17 letter that Kennedy
cease his post-game prayers at the fifty-yard line
immediately after the game.
Kennedy’s intention to pray on the field following the
October 16 game was widely publicized through Kennedy
KENNEDY V. BREMERTON SCHOOL DISTRICT 11
and his representatives’ “numerous appearances and
announcements [on] various forms of media.” For example,
the Seattle Times published an article on October 14 (the
same day as the lawyer’s letter was sent to BSD), entitled
“Bremerton football coach vows to pray after game despite
district order. A Bremerton High School football coach said
he will pray at the 50-yard line after Friday’s homecoming
game, disobeying the school district’s orders and placing his
job at risk.” The Seattle Times has the twenty-third largest
circulation of any newspaper in the country, with an average
Sunday circulation of 364,454. See Circulation numbers for
the 25 largest newspapers, Seattle Times (May 1, 2012),
https://bit.ly/2OGgYX5.
In an attempt to secure the field from public access, BSD
“made arrangements with the Bremerton Police Department
for security, had signs made and posted, had ‘robo calls’
made to District parents, and otherwise put the word out to
the public that there would be no access to the field.” A
Satanist religious group contacted BSD in advance of the
game to notify them that “it intended to conduct ceremonies
on the field after football games if others were allowed to.”
On the day of the game, the District had not yet
responded to Kennedy’s letter. Kennedy nonetheless
proceeded as he indicated he would. The Satanist group was
present at the game, but “they did not enter the stands or go
on to the field after learning that the field would be secured.”
But Kennedy had access to the field by virtue of his position
as a public-school employee. Once the final whistle blew,
Kennedy knelt on the fifty-yard line, bowed his head, closed
his eyes, “and prayed a brief, silent prayer.” According to
Kennedy, while he was kneeling with his eyes closed,
“coaches and players from the opposing team, as well as
members of the general public and media, spontaneously
12 KENNEDY V. BREMERTON SCHOOL DISTRICT
joined [him] on the field and knelt beside [him].” Kennedy’s
claim that the large gathering around him of coaches,
players, a state elected official, and other members of the
public who had been made aware of Kennedy’s intentions
because of the significant amount of publicity advertising
what Kennedy was about to do, was “spontaneous” is self-
evidently inaccurate. Moreover, Kennedy’s counsel
acknowledged in his October 14, 2015 letter that Kennedy’s
prayers were “verbal” and “audible,” flatly contradicting
Kennedy’s own recounting. BSD stated that this
demonstration of support for Kennedy involved “people
jumping the fence” to access the field, and BSD received
complaints from parents of students who had been knocked
down in the stampede. Principal John Polm said that he “saw
people fall[.]” Principal Polm testified that “when the public
went out onto the field, we could not supervise effectively,”
resulting in “an inability to keep kids safe.” A photo of this
scene is in the record, and it depicts approximately twenty
players in uniform kneeling around Kennedy with their eyes
closed, a large group of what appear to be adults standing
outside the ring of praying players, and several television
cameras photographing the scene.
In the days after the game, similar pictures were
“published in various media.” Kennedy also made
numerous media appearances in connection with the October
16 game, to, in his words, “spread[] the word of what was
going on in Bremerton.” For example, on October 18, 2015,
CNN featured an article entitled “Despite orders,
Washington HS coach prays on field after game.”
On October 23, 2015, BSD sent Kennedy a letter
explaining that his conduct at the October 16 game violated
BSD’s policy. BSD reiterated that it “can and will”
accommodate “religious exercise that would not be
KENNEDY V. BREMERTON SCHOOL DISTRICT 13
perceived as District endorsement, and which does not
otherwise interfere with the performance of job duties.” To
that end, it suggested that “a private location within the
school building, athletic facility or press box could be made
available to [Kennedy] for brief religious exercise before and
after games.” Kennedy, of course, could also pray on the
fifty-yard line after the stadium had emptied, as he did on
September 18. Because the “[d]evelopment of
accommodations is an interactive process,” the District
invited Kennedy to offer his own suggestions. Kennedy and
his attorneys’ only response in the record to BSD’s invitation
was informing the media that the only acceptable outcome
would be for BSD to permit Kennedy to pray on the fifty-
yard line immediately after games.
Kennedy engaged in the same behavior in violation of
BSD’s directive on October 23, 2015 and October 26, 2015.
A photo taken after the October 23 game shows Kennedy
kneeling alone on the field while players and other
individuals mill about. A photo taken after the October 26
game shows at least six individuals, some of whom appear
to be school-age children, kneeling around Kennedy.
Following the October 26 game, BSD placed Kennedy
on paid administrative leave. When Kennedy was on leave,
and during the time he temporarily ceased performing on-
field prayers, BHS players did not initiate their own post-
game prayer.
During this time, other BSD employees testified that
they suffered repercussions due to the “attention given to Mr.
Kennedy’s issue and the way he chose to address the
situation.” For example, Nathan Gillam, BHS’s head
football coach, testified that during the controversy, “an
adult who [he] had never seen before came up to [his] face
and cursed [him] in a vile manner.” Gillam further stated
14 KENNEDY V. BREMERTON SCHOOL DISTRICT
that he was concerned for his physical safety. He testified,
“One of the assistant football coaches was also a police
officer and, as we headed down to the field for one game, I
obliquely asked him what he thought about whether we
could be shot from the crowd.” As a result of these concerns,
Gillam “decided that [he] would resign” from the coaching
position he had held for eleven years.
After the season wound down, BSD began its annual
process of providing its coaches with performance reviews.
Gillam recommended that Kennedy not be rehired because
Kennedy “failed to follow district policy,” “his actions
demonstrated a lack of cooperation with administration,” he
“contributed to negative relations between parents, students,
community members, coaches and the school district,” and
he “failed to supervise student-athletes after games due to
his interactions with [the] media and [the] community.”
Kennedy did not apply for a 2016 coaching position.
Kennedy commenced this action in the Western District
of Washington on August 9, 2016. He asserted that his rights
were violated under the First Amendment and Title VII of
the Civil Rights Act of 1964. Kennedy moved for a
preliminary injunction on August 24, 2016. The district
court denied the preliminary injunction on September 19,
2016. Kennedy appealed the denial, and our panel affirmed.
Kennedy I, 869 F.3d at 813. Kennedy petitioned for a writ
of certiorari; the Supreme Court denied the petition.
Kennedy v. Bremerton Sch. Dist. (Kennedy II), 139 S. Ct.
634 (2019) (mem.).
On remand, the parties cross-moved for summary
judgment. The district court held that “the risk of
constitutional liability associated with Kennedy’s religious
conduct was the ‘sole reason’ the District ultimately
suspended him.” The district court further held that BSD’s
KENNEDY V. BREMERTON SCHOOL DISTRICT 15
actions were justified due to the risk of an Establishment
Clause violation if BSD allowed Kennedy to continue with
his religious conduct. Pursuant to this reasoning, the district
court granted BSD’s motion for summary judgment on all
claims, and Kennedy appealed.
STANDARD OF REVIEW
We review the district court’s grant of summary
judgment de novo. United States v. Phattey, 943 F.3d 1277,
1280 (9th Cir. 2019). Our task is to “view the evidence in
the light most favorable” to Kennedy, “and determine
whether there are any genuine issues of material fact and
whether the district court correctly applied the relevant
substantive law.” Id. (cleaned up).
ANALYSIS
A.
We begin with Kennedy’s free speech claim brought
pursuant to 42 U.S.C. § 1983. In Pickering, the Supreme
Court held that “[t]he problem” in a public-employee free
speech case, “is to arrive at a balance between the interests
of the teacher, as a citizen, in commenting upon matters of
public concern and the interest of the State, as an employer,
in promoting the efficiency of the public services it performs
through its employees.” Pickering v. Bd. of Educ., 391 U.S.
563, 568 (1968). “[S]ince Pickering,” we wrote, the law on
this topic “has evolved dramatically, if sometimes
inconsistently. Unraveling Pickering’s tangled history
reveals a sequential five-step series of questions.” Eng v.
Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009). Those
questions are:
16 KENNEDY V. BREMERTON SCHOOL DISTRICT
(1) whether the plaintiff spoke on a matter of
public concern; (2) whether the plaintiff
spoke as a private citizen or public employee;
(3) whether the plaintiff’s protected speech
was a substantial or motivating factor in the
adverse employment action; (4) whether the
state had an adequate justification for treating
the employee differently from other members
of the general public; and (5) whether the
state would have taken the adverse
employment action even absent the protected
speech.
Id. At issue here are factors (2) and (4). If Kennedy spoke
as a public employee when he engaged in demonstrative
religious activity at the fifty-yard line necessarily in view of
the players and fans who stayed to the conclusion of the
game, his speech is unprotected. See id. at 1071. Kennedy
carries the burden of proof on factor (2). Id. Similarly, if
BSD had adequate justification for treating Kennedy
differently from other members of the public, Kennedy’s
claim fails. Id. at 1072. BSD carries the burden of proof on
factor (4). Id.
1.
“[W]hen public employees make statements pursuant to
their official duties, the employees are not speaking as
citizens for First Amendment purposes, and the Constitution
does not insulate their communications from employer
discipline.” Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).
“The critical question under Garcetti is whether the speech
at issue is itself ordinarily within the scope of an employee’s
duties, not whether it merely concerns those duties.” Lane
KENNEDY V. BREMERTON SCHOOL DISTRICT 17
v. Franks, 573 U.S. 228, 240 (2014). In answering that
question,
[t]he proper inquiry is a practical one.
Formal job descriptions often bear little
resemblance to the duties an employee
actually is expected to perform, and the
listing of a given task in an employee’s
written job description is neither necessary
nor sufficient to demonstrate that conducting
the task is within the scope of the employee’s
professional duties for First Amendment
purposes.
Garcetti, 547 U.S. at 424–25.
In Kennedy I, we held that Kennedy spoke as a public
employee, and thus his free speech claim failed at factor (2).
869 F.3d at 825. We explained that Kennedy “was one of
those especially respected persons chosen to teach on the
field, in the locker room, and at the stadium. He was clothed
with the mantle of one who imparts knowledge and wisdom.
Like others in this position, expression was Kennedy’s stock
in trade.” Id. at 826 (quoting Peloza v. Capistrano Unified
Sch. Dist., 37 F.3d 517, 522 (9th Cir. 1994) (internal
citations and quotation marks omitted)). Thus, his
expression on the field—a location that he only had access
to because of his employment—during a time when he was
generally tasked with communicating with students, was
speech as a government employee. Id. at 828. We briefly
address factor (2) to discuss subsequent developments. Our
holding, however, has not changed.
First, our opinion in Kennedy I should not be read to
suggest that, for instance, a teacher bowing her head in silent
prayer before a meal in the school cafeteria would constitute
18 KENNEDY V. BREMERTON SCHOOL DISTRICT
speech as a government employee. See Kennedy II, 139 S.
Ct. at 636 (Alito, J.). That type of expression is of a wholly
different character than Kennedy’s: Kennedy insisted that
his speech occur while players stood next to him, fans
watched from the stands, and he stood at the center of the
football field. Moreover, Kennedy repeatedly
acknowledged that—and behaved as if—he was a mentor,
motivational speaker, and role model to students specifically
at the conclusion of a game. That distinguishes this case
from the hypothetical scenario of a teacher in the cafeteria.
We acknowledge the Supreme Court’s warning not to
create “excessively broad job descriptions” that “convert”
expressions of a private citizen into speech as a government
employee. Id. (quoting Garcetti, 547 U.S. at 424). But on
the record before us, there is simply no dispute that
Kennedy’s position encompassed his post-game speeches to
students on the field. Kennedy’s employer specifically
instructed him (1) that he should speak to players post-game
and (2) what the speeches should be about: “You may
continue to provide motivational, inspirational talks to
students before, during and after games and other team
activity, focusing on appropriate themes such as unity,
teamwork, responsibility, safety, endeavor and the like that
have long characterized your very positive and beneficial
talks with students.” In commenting on Kennedy’s secular
post-game speech on September 18, Leavell wrote, “That
talk was well received, and appreciated by the District and
the community. I would certainly encourage continuation of
that practice.” The only conclusion based on this record is
that Kennedy’s post-game speech on the field was speech as
a government employee.
KENNEDY V. BREMERTON SCHOOL DISTRICT 19
Second, our prior opinion in this case was not meant to
suggest that a teacher or coach “cannot engage in any
outward manifestation of religious faith” while off duty. Id.
at 637. In Kennedy I, we cited Kennedy’s prayer in the
bleachers, surrounded by news cameras, two days after BSD
issued a public statement explaining Kennedy’s suspension,
in the context of “bolster[ing]” the already strong inference
that he “inten[ded] to send a message to students and parents
about appropriate behavior and what he values as a coach,”
in line with his job duties of demonstrative communication
as a role model for players. 869 F.3d at 826. Kennedy’s
intent to send a message is important because this media
event represented a continuation of his on-field
demonstrative activities after the October 16, 23, and 26
games that were designed to attract publicity. Nevertheless,
Kennedy’s pre-suspension prescribed speaking
responsibilities were the touchstone of our prior decision
holding that Kennedy spoke as a government employee—
and they remain so in this one.
We also note the following from the opinion of the
district court: “Although Kennedy originally claimed to be
off duty after games, he has now abandoned that contention
. . . . All of the evidence, including Kennedy’s own
testimony, confirms that his job responsibilities extended at
least until the players were released after going to the locker
room.”
We therefore remain convinced that our conclusion in
Kennedy I, that “Kennedy spoke as a public employee when
he kneeled and prayed on the fifty-yard line immediately
after games while in view of students and parents” is correct.
869 F.3d at 831.
20 KENNEDY V. BREMERTON SCHOOL DISTRICT
2.
However, even if we were to assume, arguendo, that
Kennedy spoke as a private citizen, BSD may still prevail if
it can show that it had an adequate justification for treating
Kennedy differently from other members of the general
public. We hold that BSD’s justification was adequate.
“[A] state interest in avoiding an Establishment Clause
violation may be characterized as compelling, and therefore
may justify content-based discrimination.” Good News Club
v. Milford Cent. Sch., 533 U.S. 98, 112 (2001) (internal
quotation marks omitted); see also Peloza, 37 F.3d at 522
(“The school district’s interest in avoiding an Establishment
Clause violation trumps [a teacher’s] right to free speech.”).
The Establishment Clause provides that “Congress shall
make no law respecting an establishment of religion.” U.S.
Const. amend. I. The Fourteenth Amendment incorporated
the Establishment Clause against the states and their public-
school systems. See Wallace v. Jaffree, 472 U.S. 38, 49‒50
(1985). The Clause “mandates government neutrality
between religion and religion, and between religion and
nonreligion.” McCreary Cnty., Ky. v. Am. Civil. Liberties
Union of Ky., 545 U.S. 844, 860 (2005) (quoting Epperson
v. Arkansas, 393 U.S. 97, 104 (1968)). “The Court has been
particularly vigilant in monitoring compliance with the
Establishment Clause in elementary and secondary schools.”
Edwards v. Aguillard, 482 U.S. 578, 583‒84 (1987). In that
setting, “[t]he State exerts great authority and coercive
power through mandatory attendance requirements, and
because of the students’ emulation of teachers as role models
and the children’s susceptibility to peer pressure.” Id. at 584.
Accordingly, the Clause “proscribes public schools from
conveying or attempting to convey a message that religion
or a particular religious belief is favored or preferred.” Lee
KENNEDY V. BREMERTON SCHOOL DISTRICT 21
v. Weisman, 505 U.S. 577, 604‒05 (1992) (Blackmun, J.,
concurring) (internal quotation marks and emphasis
omitted).
The Supreme Court has made clear that an Establishment
Clause analysis “not only can, but must, include an
examination of the circumstances surrounding” the action
alleged to have violated the Clause. Santa Fe Indep. Sch.
Dist. v. Doe, 530 U.S. 290, 315 (2000) (emphasis added).
Like the Court, “[w]e refuse to turn a blind eye to the context
in which” Kennedy’s conduct arose. Id. Guided by Santa
Fe, we ask whether an objective observer, familiar with the
history of Kennedy’s on-field religious activity, coupled
with his pugilistic efforts to generate publicity in order to
gain approval of those on-field religious activities, would
view BSD’s allowance of that activity as “stamped with [his
or] her school’s seal of approval.” Id. at 308. Here, the
answer is unquestionably yes.
At the outset, we address Kennedy’s repeated contention
that the practice he sought to engage in was a brief, personal,
and private prayer. While his prayer may have been brief,
the facts in the record utterly belie his contention that the
prayer was personal and private. As noted, Kennedy
engaged in a media blitz between October 14, 2015—when
Kennedy’s attorney informed BSD that he would be
reinstituting his prior practice that included allowing
22 KENNEDY V. BREMERTON SCHOOL DISTRICT
students to join his prayer 1—and October 16, 2015.2
Kennedy’s deposition included the following exchange:
“Q. So you appeared on the media because you wanted to
spread the word about what you were doing? A. I was
sharing the word, yes, sir.” These media appearances took
place prior to Kennedy’s on-field prayer on October 16, 23,
1
Kennedy confirmed in his deposition that the October 14 letter
included his intention not to stop students from joining his prayer:
Q. So where it says in the last paragraph, “Coach
Kennedy will continue his practice,” do you
understand that is saying that you will continue your
practice of praying with students if the students come
around you?
A. I wasn’t going to stop my prayer because there was
kids around me.
Q. So is that a yes, sir?
....
A. Yes.
2
We note that Kennedy’s media appearances continue to the present
day. See, e.g., Joe Kennedy, “Football Coach Joe Kennedy: A prayer
sidelined me – here’s why I’m still fighting to get back in the game,” Fox
News (January 26, 2021), https://fxn.ws/3cmoWyq; Fox & Friends, “Ex-
high school football coach still fighting five years after he was fired by
school for praying on field,” Fox News (January 26, 2021),
https://fxn.ws/3la91pv; First Liberty, “Coach Joe Kennedy: How 20
Years in the Marine Corps Gave Him the Courage to Kneel,” (May 3,
2019), https://bit.ly/3ak1e38 (interview with Kennedy in which Kennedy
stated, “I couldn’t believe that after 20 years of serving and protecting
the Constitution they would tell me that my rights didn’t matter because
I was a public employee. And as a Marine, I knew I had to fight. I
always told the young men whom I coached to stand up when adversity
came their way. I had to be a leader to them and live up to what I said.
So I wasn’t going to back down[.]”).
KENNEDY V. BREMERTON SCHOOL DISTRICT 23
and 26. That on-field prayer cannot be construed as personal
and private in the context of Kennedy’s publicity leading up
to it.
Context matters. As we know from Santa Fe, we must
examine the surrounding circumstances to determine
whether BSD rescinding the September 17 directive and
allowing Kennedy free rein over his public demonstrations
of religious exercise would have been perceived as a stamp
of approval upon that exercise. Thus, at issue in this case is
not, as Kennedy attempts to gloss it, a personal and private
exercise of faith. At issue was—in every sense of the
word—a demonstration, and, because Kennedy demanded
that it take place immediately after the final whistle, it was a
demonstration necessarily directed at students and the
attending public.
The evolution of Kennedy’s prayer practices with
students is also essential to understanding how an objective
observer would view BSD continuing to allow Kennedy to
pray on-field. An objective observer would know that, eight
years earlier, Kennedy began praying alone on the fifty-yard
line at the conclusion of each game. Over time, little by
little, his players began to join him in this activity—at least
one out of a fear that declining to do so would negatively
impact his playing time. Kennedy did not stop players from
joining him then, just as he made clear to BSD on October
14, 2015 that he would not stop them from joining him when
he resumed his practice after the October 16 game. Indeed,
as noted, the record unquestionably reflects that after
October 14, 2015, Kennedy actively sought support from the
community in a manner that encouraged individuals to rush
the field to join him and resulted in a conspicuous prayer
circle that included students. An objective observer would
know, in advance of the October 16 game, BSD made clear
24 KENNEDY V. BREMERTON SCHOOL DISTRICT
that the field was not open to the public, specifically denying
access to other religious groups. Yet, Kennedy used his
access as a school employee to conduct his religious activity.
Viewing this scene, an objective observer could reach no
other conclusion than that BSD endorsed Kennedy’s
religious activity by not stopping the practice:
Post-game ritual on the field, October 16, 2015.
Kennedy points to his post-game prayer on October 23,
2015—when no one joined him—in an attempt to establish
that all he wants is to pray alone. But this mischaracterizes
the record. Instead, the record reflects that if BSD permitted
Kennedy to resume his prior practice, students would join
him. One instance, out of many, in which students did not
join Kennedy’s prayer cannot require us to pretend they
never did and never will. 3 In sum, there is no doubt that an
3
Throughout this litigation, Kennedy has urged us to turn a blind
eye to the trajectory of his practice in favor of a segmented view of the
KENNEDY V. BREMERTON SCHOOL DISTRICT 25
objective observer, familiar with the history of Kennedy’s
practice, would view his demonstrations as BSD’s
endorsement of a particular faith. For that reason, BSD had
adequate justification for its treatment of Kennedy, and the
district court correctly granted summary judgment to BSD
on Kennedy’s free speech claim.
B.
We next address Kennedy’s free exercise claim. In
Church of Lukumi, the Court wrote that “a law that is neutral
and of general applicability need not be justified by a
compelling governmental interest even if the law has the
incidental effect of burdening a particular religious
practice.” Church of the Lukumi Babalu Aye v. City of
Hialeah, 508 U.S. 520, 531 (1993). Pursuant to that
analysis, a law that is not neutral and generally applicable
“must be justified by a compelling governmental interest and
must be narrowly tailored to advance that interest.” Id.
at 531–32.
The District concedes that its September 17 directive is
not neutral and generally applicable. It purports to restrict
evidence, picking parts that help his case and discarding those that do
not. For example, during oral argument, Kennedy’s counsel urged us to
focus primarily on BSD’s October 23 letter. This letter—when read in
isolation—appears to assert that any demonstration of faith by any
teacher in any context would be impermissible. But acceding to
Kennedy’s framing of the record would be rejecting the very inquiry that
Santa Fe mandates. The October 23 letter was written after Kennedy
rejected the restrictions announced in the September 17 letter and
announced his intention to resume his unconstitutional behavior over his
employer’s clear prohibition. Such a myopic view of the events leading
to litigation simply does not tell the whole story—like attempting to
decipher the plot of “The Wizard of Oz” by viewing a still photograph
of Dorothy waking in her bed at the end of the film.
26 KENNEDY V. BREMERTON SCHOOL DISTRICT
Kennedy’s religious conduct because the conduct is
religious. See id. at 532 (“[T]he protections of the Free
Exercise Clause pertain if the law at issue . . . regulates . . .
conduct because it is undertaken for religious reasons.”
(emphasis added)). But the District contends that its
directive satisfies strict scrutiny. We agree.
1.
“[A] state interest in avoiding an Establishment Clause
violation ‘may be characterized as compelling,’ and
therefore may justify content-based discrimination,” Good
News Club, 533 U.S. at 113–14 (quoting Widmar v. Vincent,
454 U.S. 263, 271 (1981)), such as prohibiting religious
conduct that could be imputed to the District. Based on the
Establishment Clause analysis in the fourth Eng factor
above, the District’s September 17 directive was thus
motivated by a compelling state interest. 4
4
We determined above that BSD’s concern that it would violate the
Establishment Clause by allowing Kennedy’s conduct was well-
founded—this activity indeed constituted a violation. But even without
our holding as to the Establishment Clause, BSD had reason for concern.
Public school districts were repeatedly sued in federal district courts
across the country for alleged Establishment Clause violations in the ten
years preceding BSD’s September 17 letter to Kennedy. See, e.g.,
Sherman v. Twp. High School Dist. 214, 624 F. Supp. 907 (N.D. Ill.
2007); Doe v. Wilson Cnty. Sch. Sys., 524 F. Supp. 2d 964 (M.D. Tenn.
2007); Am. Humanist Ass’n v. S.C. Dep’t of Educ., 108 F. Supp. 3d 355
(D.S.C. 2015); Ryan v. Mesa Unified Sch. Dist., 64 F. Supp. 3d 1356
(D. Ariz. 2014); see also Borden v. Sch. Dist. of Twp. of E. Brunswick,
523 F.3d 153, 178–79 (3d Cir. 2008) (holding that the Establishment
Clause prohibited a football coach from bowing his head while players
prayed because of his history of leading the team in prayer).
KENNEDY V. BREMERTON SCHOOL DISTRICT 27
2.
In this context, a regulation fails the narrow tailoring
prong of strict scrutiny if it is either overbroad or
underinclusive given the government’s compelling interest.
Church of Lukumi, 508 U.S. at 546. For example, in Church
of Lukumi, ordinances prohibiting animal slaughter were
underinclusive for the stated interests of “protecting the
public health and preventing cruelty to animals” because
they failed “to prohibit nonreligious conduct that endangers
these interests in a similar or greater degree than [Plaintiff’s
religious] sacrifice does.” Id. at 543.
Here, the September 17 directive and accompanying
BSD policy prohibiting Kennedy’s conduct were narrowly
tailored to the compelling state interest of avoiding a
violation of the Establishment Clause. Indeed, there was no
other way to accomplish the state’s compelling interest. The
District tried repeatedly to work with Kennedy to develop an
accommodation for him that would avoid violating the
Establishment Clause; Kennedy declined to cooperate in that
process and insisted that the only acceptable outcome would
be praying immediately after the game on the fifty-yard line
in view of students and spectators.
Because BSD had a compelling state interest to avoid
violating the Establishment Clause, and it tried repeatedly to
work with Kennedy to develop an accommodation for him
that would avoid violating the Establishment Clause while
nevertheless offering him options that were narrowly
tailored to protect his rights, we affirm the decision of the
district court to deny Kennedy’s Free Exercise claim.
28 KENNEDY V. BREMERTON SCHOOL DISTRICT
C.
In addition to his constitutional claims, Kennedy brought
four claims pursuant to Title VII: failure to rehire, disparate
treatment, failure to accommodate, and retaliation.
1.
Pursuant to Title VII, “an unlawful employment practice
is established when the complaining party demonstrates that
. . . religion . . . was a motivating factor for any employment
practice, even though other factors also motivated the
practice.” 42 U.S.C. § 2000e-2(m). “In order to establish a
prima facie case” in Kennedy’s circumstances, he must
“show that [he] was a member of a protected group [ ], that
[he] was adequately performing [his] job; and that [he]
suffered an adverse employment action[.]” Kortan v. Cal.
Youth Auth., 217 F.3d 1104, 1113 (9th Cir. 2000).
Kennedy established that he was a member of a protected
group and that he suffered an adverse employment action.
However, he did not show that he was adequately
performing his job. Instead, the record reflects that Kennedy
refused to follow BSD policy and conducted numerous
media appearances that led to spectators rushing the field
after the October 16 game, disregarding his and BSD’s
responsibilities to ensure students’ safety. We affirm the
district court’s grant of summary judgment to BSD on
Kennedy’s failure to rehire claim.
2.
To establish a prima facie case of disparate treatment
under Title VII, a plaintiff must show “(1) he is a member of
a protected class; (2) he was qualified for his position; (3) he
experienced an adverse employment action; and
KENNEDY V. BREMERTON SCHOOL DISTRICT 29
(4) similarly situated individuals outside his protected class
were treated more favorably.” Berry v. Dep’t of Soc. Servs.,
447 F.3d 642, 656 (9th Cir. 2006). Kennedy satisfies the
first three prongs but stumbles on the fourth. “Other
employees are similarly situated to the plaintiff when they
have similar jobs and display similar conduct.” Earl v.
Nielsen Media Rsch., Inc., 658 F.3d 1108, 1114 (9th Cir.
2011) (internal quotation marks omitted).
Kennedy’s conduct is clearly dissimilar to the other
personal activities of assistant coaches he cites, such as
checking a cell phone or greeting a spouse, because
Kennedy’s conduct violated the Establishment Clause, and
obviously, checking a cell phone does not. Kennedy
asserted that another assistant coach, David Boynton, could
serve as a similarly-situated employee because Boynton
once went on to the field following a game, took a picture of
the scoreboard, and said a silent Buddhist chant to himself
while standing. But Boynton’s alleged practice of reciting
silent Buddhist chants in his head while standing on the field
does not make Boynton similarly situated to Kennedy,
either—Leavell’s declaration stated that he first “heard of an
alleged Buddhist chant by Mr. Boynton [] in news reports of
Mr. Kennedy’s EEOC complaint in January 2016 . . . .
Other than Mr. Kennedy, [Leavell had] not received any
reports of any other BSD employee who has allegedly
engaged in readily observable demonstrative religious
activity, while on-duty in the performance of his or her job,
and in the presence of students.” The fact that BSD was
unaware of Boynton’s alleged practice shows that Boynton
and Kennedy were not similarly situated; BSD had no
opportunity to impose differential treatment for conduct that
was unobservable.
30 KENNEDY V. BREMERTON SCHOOL DISTRICT
Because Kennedy cannot make out a prima facie case of
disparate treatment, we affirm the district court’s grant of
summary judgment to BSD on this claim.
3.
“To establish religious discrimination on the basis of a
failure-to-accommodate theory,” a plaintiff “must first set
forth a prima facie case that (1) he had a bona fide religious
belief, the practice of which conflicts with an employment
duty; (2) he informed his employer of the belief and conflict;
and (3) the employer discharged, threatened, or otherwise
subjected him to an adverse employment action because of
his inability to fulfill the job requirement.” Peterson v.
Hewlett-Packard Co., 358 F.3d 599, 606 (9th Cir. 2004). It
is undisputed that Kennedy presented a prima facie case of
failure-to-accommodate.
Once a plaintiff makes out a prima facie case, “the
burden then shifts” to the employer “to show that it initiated
good faith efforts to accommodate reasonably the
employee’s religious practices or that it could not reasonably
accommodate the employee without undue hardship.” Id.
For the reasons already discussed, BSD did both. BSD
officials repeatedly offered to work with Kennedy to find an
accommodation that would insulate the District from an
Establishment Clause violation; Kennedy did not respond or
indicated that the only acceptable outcome in his view would
be resuming his prior practice of praying on the fifty-yard
line immediately following the game, in full view of students
and spectators. Because allowing Kennedy to do so would
constitute an Establishment Clause violation, the District
could not reasonably accommodate Kennedy’s practice
without undue hardship. Accordingly, we affirm the district
court’s grant of summary judgment to BSD on Kennedy’s
failure-to-accommodate claim.
KENNEDY V. BREMERTON SCHOOL DISTRICT 31
4.
In a retaliation claim under Title VII, a “plaintiff has the
burden of proving a prima facie case of discrimination based
on opposition to an unlawful employment practice.”
E.E.O.C. v. Crown Zellerbach Corp., 720 F.2d 1008, 1012
(9th Cir. 1983). To prove a prima facie case of retaliation
based on opposition, the plaintiff must show that “(1) he has
engaged in statutorily protected expression; (2) he has
suffered an adverse employment action; and (3) there is a
causal link between the protected expression and the adverse
action.” Id. If he does so, “the burden shifts to the defendant
‘to articulate some legitimate, nondiscriminatory reason’ for
the adverse employment action.” Id. (quoting Tex. Dept. of
Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
Kennedy presented a prima facie case of retaliation. But
Kennedy also refused to collaborate with BSD in designing
a reasonable accommodation for his religious practice.
Furthermore, as explained above, Kennedy made it clear that
he would continue to pray on the fifty-yard line immediately
following the game as long as BSD employed him—a
practice that violated the Establishment Clause. This
conduct is a legitimate nondiscriminatory reason for the
adverse employment actions BSD took. We affirm the
district court’s grant of summary judgment to BSD on
Kennedy’s retaliation claim.
CONCLUSION
The record before us and binding Supreme Court
precedent compel the conclusion that BSD would have
violated the Establishment Clause by allowing Kennedy to
pray at the conclusion of football games, in the center of the
field, with students who felt pressured to join him.
Kennedy’s attempts to draw nationwide attention to his
32 KENNEDY V. BREMERTON SCHOOL DISTRICT
challenge to BSD compels the conclusion that he was not
engaging in private prayer, but was instead engaging in
public speech of an overtly religious nature while
performing his job duties. BSD tried to reach an
accommodation for Kennedy, but that was spurned by his
insisting that he be allowed to pray immediately after the
conclusion of each game, likely surrounded by students who
felt pressured to join him.
Kennedy’s Title VII claims also fail.
The judgment of the district court is AFFIRMED.
CHRISTEN, Circuit Judge, joined by D.W. NELSON,
Circuit Judge, concurring:
I concur in the majority’s decision affirming the district
court’s order granting summary judgment, and dismissing
Coach Kennedy’s Free Speech and Free Exercise claims. I
write separately to underscore why, in my view, the outcome
of this appeal is entirely driven by the circumstances from
which Coach Kennedy’s claims arose.
I
We consider “a sequential five-step series of questions”
when evaluating Free Speech claims brought by public
employees. Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir.
2009). The second and fourth questions are at issue in this
case: whether Kennedy spoke as a private citizen or as a
public employee, and whether the Bremerton School District
(BSD) had adequate justification for treating Kennedy
differently from other members of the public. Id.
KENNEDY V. BREMERTON SCHOOL DISTRICT 33
Garcetti v. Ceballos, 547 U.S. 410, 421 (2006), explains
that a person speaks as a public employee when he makes
statements pursuant to his official duties. See Lane v.
Franks, 573 U.S. 228, 240 (2014) (“The critical question
under Garcetti is whether the speech at issue is itself
ordinarily within the scope of an employee’s duties.”).
Garcetti also cautioned that courts must not allow employers
to describe job duties in infinitely elastic terms. 547 U.S at
424. Garcetti’s cautionary note is critically important: if
employers were allowed to decide that any unpopular or
unwelcome speech fell within their employees’ job duties,
they would be free to extinguish First Amendment rights—
or at least free to require that employees choose between
keeping their jobs and exercising their First Amendment
right to speak. We conduct a practical inquiry to decide
whether a task is within the scope of an employee’s
professional duties, id. at 424–25, so we begin from the
premise that a coach’s duties include teaching non-academic
skills such as teamwork, sportsmanship, dedication, and
personal discipline.
Here, the district court found Kennedy’s job duties
included mentoring students, setting a good example, and
striving to “create good athletes and good human beings.”
BSD sent two letters to Kennedy after it learned he was
engaged in religious speech with the team. The first
encouraged him to “continue to provide motivational,
inspirational talks to students before, during and after games
and other team activity,” but cautioned that his talks “may
not include religious expression, including prayer.”
Hopefully, all instructors at Bremerton High encourage their
students’ efforts, but it cannot be denied that the nature of
motivational talks coaches deliver to their teams differs
substantially from the words of encouragement one might
expect from geometry or history teachers. Kennedy
34 KENNEDY V. BREMERTON SCHOOL DISTRICT
acknowledged that the inspirational speeches he gave to
players at the conclusion of games likely constituted prayer,
and his speeches to the team were unmistakably the kind of
motivational communication that fell squarely within his job
duties. Kennedy’s demonstrative on-field prayers of thanks
immediately following games must be viewed in the context
of the motivational talks he routinely gave to the team. On
the record presented, the district court correctly concluded
there was no genuine dispute that Kennedy spoke as a public
employee when he engaged in religious expression during
the talks he gave to the team, and when he prayed at the fifty-
yard line after the team’s games.
Eng’s fourth factor requires that we consider whether
BSD had adequate justification for treating Kennedy
differently from other members of the general public.
552 F.3d at 1070. The district court found the “sole reason”
BSD suspended Kennedy was its desire to avoid violating
the Establishment Clause. BSD’s Establishment Clause
defense requires that we ask whether an objective observer,
familiar with the history and circumstances surrounding
Kennedy’s prayers, would perceive them as “state
endorsement of prayer in public schools,” i.e., whether an
objective observer would view the prayers as “stamped with
[the] school’s seal of approval.” Santa Fe Indep. Sch. Dist.
v. Doe, 530 U.S. 290, 308 (2000) (citation and internal
quotation marks omitted).
Kennedy’s post-game prayers took place at midfield
while spectators were still in the stands, but he insisted that
he only intended to engage in “brief, quiet prayer of
thanksgiving for player safety, sportsmanship, and spirited
competition.” The district court did not question Kennedy’s
intentions, but it recognized that if he had been allowed to
continue praying at the fifty-yard line, any objective
KENNEDY V. BREMERTON SCHOOL DISTRICT 35
observer would have perceived that BSD endorsed
Kennedy’s speech. Santa Fe, 530 U.S. at 308. No other
conclusion could have been drawn after Kennedy publicly
announced he would defy BSD’s directive that he stop
praying at midfield, because spectators rushed to join him at
a subsequent game and BSD was forced to engage security
and close the field to the public. After the public was barred
from the field, the perception that BSD endorsed Kennedy’s
speech was unavoidable because only his job as assistant
coach allowed Kennedy access. As the district court
explained, if “a director takes center stage after a
performance, a reasonable onlooker would interpret their
speech from that location as an extension of the school-
sanctioned speech just before it.” Kennedy’s subjective
intent to pray privately and personally did not guide BSD’s
response to Kennedy’s actions; the question was how an
objective observer would perceive Kennedy’s speech.
Kennedy’s talks evolved over time and the practice he
eventually adopted, taking a knee at midfield and delivering
what he referred to as private personal prayers alongside
team members, was a thematic extension of the motivational
speeches he delivered to Bremerton High’s assembled
football team. The majority does not imply that coaches
cannot lead by example or serve as excellent role models if
players see them engage in personal prayer. And it must be
acknowledged that Kennedy coached high school players,
who were surely less impressionable than elementary-aged
students. Still, even high-schoolers are not immune from
perceiving—or misperceiving—pressure to “go along,” and
the record shows that at least one parent confirmed a player
felt “compelled to participate” in Kennedy’s post-game
prayers because “he felt he wouldn’t get to play as much if
he didn’t.” Kennedy agreed that coaches can have an
outsized influence and “for some kids, the coach might even
36 KENNEDY V. BREMERTON SCHOOL DISTRICT
be the most important person they encounter in their overall
life.”
No case law requires that a high school teacher must be
out of sight of students or jump into the nearest broom closet
in order to engage in private prayer, but it cannot be denied
that this football coach’s prayer at the fifty-yard line,
immediately after a game, under stadium lights and in front
of players and spectators, objectively sent a public message.
In contrast, even an on-duty teacher tasked with supervising
students in a high school cafeteria would not risk sending a
message that BSD endorses her faith, nor risk inadvertently
coercing students to join her, if she took a moment to give
thanks before eating her meal. And the Establishment
Clause can surely accommodate high school students
observing a teacher giving thanks for an “all clear”
announcement made in the wake of a safety scare like an
earthquake tremor, or a “false alarm” announcement after a
fire bell.
The opinion we entered affirming the district court’s
order denying Coach Kennedy’s motion for a preliminary
injunction made reference to prayer Kennedy engaged in
while attending a game after he had been suspended.
Kennedy v. Bremerton Sch. Dist., 869 F.3d 813, 820, 826
(9th Cir. 2017). That off-duty speech played no role in
BSD’s decision to suspend Kennedy, nor did our prior
opinion signal that BSD would be free to restrict Kennedy’s
off-duty speech. See id. Rather, the prayer Kennedy
engaged in as a spectator after he was suspended was
relevant because he was surrounded by members of the
media he had courted. Although Kennedy argues he
intended to engage in private prayer, his prayers were
anything but private. Indeed, an objective observer would
be aware that fans rushed to join Kennedy on the field and
KENNEDY V. BREMERTON SCHOOL DISTRICT 37
knocked over band members at the conclusion of the
October 16 game.
Kennedy candidly testified that he gave numerous media
interviews before he was suspended, and that he did so in an
effort to “spread the word.” In those interviews, Kennedy
announced a firm stance that he would continue to pray and
allow the team to join him, despite BSD’s directives. In
response, BSD was “flooded with thousands of emails,
letters, and phone calls from around the country, many of
which were hateful or threatening.” Given the community’s
response to Kennedy’s public statements, BSD would have
unquestionably sent a message of endorsement if it had
allowed him to continue to pray at midfield. BSD’s need to
avoid an Establishment Clause violation provided adequate
justification for prohibiting Kennedy’s post-game prayers.
Kennedy’s Free Speech claim fails to satisfy Eng’s second
and fourth factors. 552 F.3d at 1070.
II
The sequence of events leading up to BSD’s decision to
place Kennedy on paid administrative leave painted BSD
into a corner because an objective observer would have
perceived the school’s endorsement if Kennedy had been
allowed to continue praying at midfield. BSD had a
compelling interest in avoiding an Establishment Clause
violation, Good News Club v. Milford Cent. Sch., 533 U.S.
98, 112 (2001), and the district court correctly ruled BSD’s
adverse employment action was narrowly tailored to
advance that interest, see Church of the Lukumi Babalu Aye
v. City of Hialeah, 508 U.S. 520 531–32 (1993).
BSD first learned of Kennedy’s post-game prayers in
September 2015, when an opposing team’s coach told
Bremerton High’s principal that Kennedy had asked the
38 KENNEDY V. BREMERTON SCHOOL DISTRICT
visiting team to join in a post-game prayer on the field.
BSD’s first letter to Kennedy explained that his post-game
prayers “would very likely be found to violate the First
Amendment’s Establishment Clause,” and provided a
number of “clear standards” to which Kennedy was required
to adhere. Kennedy did not publicly pray at the following
game, but on October 14 he informed BSD that he would
resume his practice of praying on the fifty-yard line
immediately following the next game.
As explained, Kennedy’s widely publicized intention to
resume his post-game prayers resulted in an overwhelming
response from the public, and BSD was reasonably
concerned that it would be unable to “keep kids safe.”
BSD’s concerns were realized when Kennedy resumed
praying at the October 16 game and members of the public
rushed the field. After that game, BSD enlisted help from
the police department to provide security and also made
public announcements and posted signs directing that public
access to the field would no longer be allowed.
BSD’s second letter reiterated that school staff may not
“engage in action that is likely to be perceived as endorsing
(or opposing) religion or religious activities.” Nevertheless,
Kennedy again prayed at the fifty-yard line following the
next two games. Faced with mounting publicity and
corresponding concern for student and public safety, BSD
placed Kennedy on paid administrative leave.
At oral argument before our court, Kennedy’s counsel
repeatedly referred to a single sentence from BSD’s second
letter directing that “[w]hile on duty,” Kennedy must refrain
from engaging in “demonstrative religious activity, readily
observable to (if not intended to be observed by) students
and the attending public.” Kennedy plucks this single
sentence, and argues that it would prohibit a teacher from
KENNEDY V. BREMERTON SCHOOL DISTRICT 39
giving thanks at lunchtime or engaging in any other personal
prayer while on duty. But this sentence cannot be read in
isolation. BSD consistently sought to accommodate
Kennedy’s religious exercise without running afoul of the
Establishment Clause. BSD’s correspondence to Kennedy
“ma[d]e it clear that religious exercise that would not be
perceived as District endorsement, and which does not
otherwise interfere with the performance of job duties, can
and will be accommodated.” BSD offered Kennedy the use
of a private location within the school building, athletic
facility, or press box, and invited Kennedy to propose
alternative accommodations.
By the time BSD’s second letter directed Kennedy to
refrain from engaging in religious activity observable to
students and the attending public, Kennedy had announced
his intention to resume praying midfield, BSD had received
thousands of letters, many of which were hostile and
threatening, and members of the public had knocked over
some students while rushing to join him on the field after the
October 16 game. Kennedy’s public statements that he
would continue to pray despite BSD’s direction, and the
public’s response to his statements, provide important
context for the single sentence he isolates from BSD’s
second letter.
BSD’s attempts to accommodate Kennedy’s prayer were
efforts to more narrowly tailor its response, but Kennedy did
not accept any of BSD’s proposed accommodations, or even
acknowledge them. Instead, he gave media interviews
publicizing his intent to continue his post-game prayers and
followed through by praying on the fifty-yard line at the two
games that followed. Given Kennedy’s announced plans to
defy BSD’s reasonable directives, BSD met its burden to
show its response was the least-restrictive means consistent
40 KENNEDY V. BREMERTON SCHOOL DISTRICT
with avoiding an Establishment Clause violation. See
Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct.
63, 67 (2020).