Supreme Court refuses to hear coach's free speech case

The Supreme Court on Tuesday refused to hear a case challenging whether teachers and coaches retain any First Amendment right to freedom of speech and religion when they’re in the presence of students.

The case centers on Joseph Kennedy, who was suspended and ultimately let go from his job as a high school football coach in Bremerton, Wash., for kneeling midfield and saying a quiet prayer to himself after games.


Bremerton School District said it was required by the Establishment Clause of the Constitution to prohibit Kennedy’s brief post-game prayers because reasonable observers would think the district was endorsing his religious beliefs, according to court documents.

Kennedy requested a religious accommodation to continue his post-game prayer under civil rights laws that ban discrimination on the basis of religion in employment, but it was denied.

He then sued the school for allegedly violating his right to free speech and exercise of religion, but both the district court and the 9th Circuit Court of Appeals sided with the school district.

The 9th Circuit said “when Kennedy kneeled and prayed on the fifty yard line immediately after games while in view of students and parents, he spoke as a public employee, not as a private citizen, and his speech therefore was constitutionally unprotected.”

Justice Samuel Alito issued an opinion respecting the court's decision to deny review of the case, which the court's other conservative members — Justices Clarence Thomas, Neil Gorsuch and Brett KavanaughBrett Michael KavanaughSusan Collins raises .1 million in third quarter Poll: 50 percent of Maine voters disapprove of Susan Collins's job performance Collins challenger raises .2 million in third quarter MORE — joined.

It takes four justices to agree to hear a case.

Alito said important unresolved factual questions would make it difficult, if not impossible, at this stage to decide the free speech question that the petition asks justices to review. He said it was unclear from the lower court's proceedings whether Kennedy lost his job because he was praying during his own time or because he abandoned his duties to do so.

If Kennedy left the players unsupervised to pray on the field, Alito said, the coach's free speech claim would likely fail. But if Kennedy was able to show that he wasn’t on duty, he would have a far greater chance of proving his case, the justice wrote.

“Here, although petitioner’s free speech claim may ultimately implicate important constitutional issues, we cannot reach those issues until the factual question of the likely reason for the school district’s conduct is resolved,” Alito wrote.

But Alito made clear that the high court’s denial does not signify the justices necessarily agree with the 9th Circuit’s decision. He went on to call the ruling "troubling."

He said that, under the 9th Circuit’s interpretation of the court’s precedent, teachers can be ordered not to pray while eating their lunch if they’re in sight of a student, adding that the court has never read such precedent to go that far.

“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 wrote. “I hope that this is not the message that the Ninth Circuit meant to convey, but its opinion can certainly be read that way.”

Kelly Shackelford, president and CEO the First Liberty Institute, which represented Kennedy in the case, said the Supreme Court appears to understand that banning all coaches from praying just because they can be seen is wrong, adding that it contradicts the Constitution.

“We are eager to return to the District Court, answer the questions the justices raised today, and give the Court another opportunity to protect the right of every American to engage in private religious expression, including praying in public, without fear of getting fired,” he said.

Updated at 3:44 p.m.