Coach Kennedy, Fired for Praying After Football Games, Gets Day in Court Monday

By Liberty McArtor Published on June 8, 2017

The football coach fired for praying will have oral arguments before the Ninth Circuit Appeals Court Monday. 

Joe Kennedy is represented by First Liberty Institute, a religious freedom law firm. 

“We feel very prepared,” said First Liberty attorney Mike Berry. But “it’s impossible to predict how oral arguments will go.”

“Constitutionally Protected,” or “Liability?”

Washington’s Bremerton School District suspended Kennedy in 2015. A retired Marine and a Christian, Kennedy prayed at the 50-yard-line after every game. It’s something he began at the start of his coaching job in 2008. Over time, players voluntarily joined in. 

“He never received any complaints,” Berry previously told The Stream. “Someone from the opposing team’s school saw the practice and complimented the school … which caused the school to investigate the situation.”

The district told Kennedy to stop praying in September 2015. The superintendent claimed that Kennedy violated the First Amendment’s Establishment Clause. He worried that the prayers exposed the school district to “significant risk of liability.” According to First Liberty, Kennedy’s prayers were “constitutionally protected.”

Kennedy requested a religious accommodation. The request was denied. After a game that October, Kennedy prayed on the field anyway. He was then suspended. In 2016, the district did not renew his contract. 

The EEOC granted Kennedy the right to sue for religious discrimination. First Liberty sought to have Kennedy reinstated in time for the 2016 football season. Last October, a district court denied their request for a preliminary injunction to do so.

Americans United for Separation of Church and State is representing the school District. Kennedy created “inherently coercive environment for students,” according to attorney Andrew Nellis. 

NFL Veterans, High School Coaches Back Kennedy

Two former NFL players submitted an amicus brief in support of Kennedy last November. The Seattle Seahawks’ Steve Largent and the Dallas Cowboys’ Chad Hennings contend Kennedy should get his job back. Largent is also a former Congressman.

“The District Court’s decision all but erases the line between public and private expression” for public school employees, they say. 

High school football coaches Kellen Alley and Joseph Thomas also submitted a brief supporting Kennedy. They argue that “public employees … receive First Amendment protection for their private expression.”

In 2016, both Alley and Thomas knelt with their team during the National Anthem. They wanted to “call attention to racially-based social injustices.” 

“Wearing school colors or being on the field does not rob a person of his or her right to engage in private expression under the First Amendment,” they said.

Berry agreed. “If the Constitution protects the right of a football coach to kneel to protest injustice, it certainly protects the right of a football coach to kneel in prayer,” he said.

Nellis told the Kitsap Sun the case was about students’ freedom. “Students at public schools should have the right to practice their own faith without being pressured to join in a religious practice that’s not their own,” he said.

“Threat to Liberty Itself”

First Liberty attorneys are hoping for the best on Monday. But they’re also prepared to take further steps.

If the court rules against Kennedy, First Liberty would ask the Ninth Circuit for a rehearing en banc, explained Jeremy Dys. Dys is First Liberty’s Deputy General Counsel. All Ninth Circuit judges would get a chance to review the case, rather than the smaller panel that will hear the case Monday. And if the judges declined to hear the case en banc? The next step would be the U.S. Supreme Court.

“A threat to religious liberty is a threat to liberty itself,” Dys told The Stream. He said a ruling against Kennedy could dampen other free speech, such as Alley’s and Thomas’. It could also threaten rights of other Bremerton teachers. 

Dys said the district ordered Kennedy to avoid outward displays of religious expression. If that order stands, expressions of faith such as crosses, hijabs, turbans, and yarmulkes could be called into question. 

“This is contrary to the long history in our country of respecting and accommodating religious expression of a free people,” Dys said. 

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