Kennedy v. Bremerton Sch. Dist.

991 F.3d 1004

Joseph A. KENNEDY, Plaintiff-Appellant,

v.BREMERTON SCHOOL DISTRICT, Defendant-Appellee.

No. 20-35222

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 25, 2021 Pasadena, California

Filed March 18, 2021

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 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 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."

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."

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 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...