THE FIRST AMENDMENT AND RESTRICTING THE SPEECH/EXPRESSION OF TEACHERS AND COACHES

February 1, 2019

The current debate over pro sports athletes’ symbolic protests sparked debate over a number of basic First Amendment constitutional concepts – and unsettled areas of law.  The dispute involved a silent protest made by former San Francisco 49er quarterback Colin Kaepernick in August of 2017.  Kaepernick sat down during the playing of the National Anthem prior to an NFL preseason game.

Since that time a number of students have elected to engage in similar conduct – Kneeling at athletic events during the playing of the National Anthem or refusing to stand for the Pledge of Allegiance.  The First Amendment generally protects students and their right to engage in free speech/expression provided their speech/expression is not disruptive – The right to kneel at athletic events during the National Anthem or refuse to stand for the Pledge of Allegiance.

But what about teachers and coaches?  What would happen if teachers or coaches elected to express themselves in a similar manner and the school attempted to discipline or even terminate the teacher or coach?

In Kennedy v. Bremerton School District, 586 U.S. ___ (January 22, 2019), the United States Supreme Court addressed this concept in denying a Petition for a Writ of Certiorari.  Joseph Kennedy claimed that he lost his job as football coach at Bremerton High School because he engaged in conduct that was protected by the First Amendment.  Kennedy was appealing an adverse decision of the United States Court of Appeals for the Ninth Circuit – Denying his pursuit of a preliminary injunction seeking:  (1) restoration of his job and (2) an order requiring the Bremerton School District to allow him to kneel and pray on the fifty-yard line in view of students and parents, immediately after football games.  Kennedy v. Bremerton School District, 869 F.3d 813 (9th Cir. 2017).

Bremerton School District employed Kennedy as a football coach from 2008 to 2015.  Kennedy served as an assistant coach for the varsity football team and also the head coach for the junior varsity football team.  Kennedy’s contract expired at the end of each football season.  The contract provided that Bremerton School District “entrusted” Kennedy “to be a coach, mentor and role model for the student athletes.”  In the contract Kennedy further agreed to “exhibit sportsmanlike conduct at all times,” and acknowledged that, as a football coach, he was “constantly being observed by others.”

Between 2008 and 2015, Kennedy led students and the coaching staff in a locker room prayer prior to most games.  He also participated in prayers that took place in the locker room after the games had ended.

Kennedy contended that his beliefs (he is a practicing Christian) did not require he lead any prayer but did require him to give thanks through prayer at the end of each game for the players’ accomplishments and the opportunity to be part of their lives through football.  Specifically, Kennedy felt called to “take a knee 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.  He would wear a shirt or jacket bearing a Bremerton High School logo when he prayed at midfield.  Because his “prayer lift[ed] up the player and recognize[d] their hard work and sportsmanship during the game,” Kennedy contended that his religious beliefs required him to pray on the actual field where the game was played.

Kennedy began performing these prayers when he first started working at Bremerton High School.  At the outset, he prayed alone.  Several games into his first season, however, a group of students asked Kennedy if they could join him.  Eventually, Kennedy’s religious practice evolved to something more than his original prayer.  He began giving short motivational speeches at midfield after the games.  Students, coaches and other attendees from both teams participated.  Kennedy acknowledged that these motivational speeches likely constitute prayer.

The District first learned that Kennedy was leading locker-room prayers and praying on the field in September of 2015.  Thereafter, the Superintendent sent Kennedy a letter clarifying the District’s expectations.  The Superintendent advised Kennedy that he could continue to give inspirational talks, but “[t]hey must remain entirely secular in nature.”  The Superintendent further advised that if students elected to engage in religious activity “[he] may not take any action likely to be perceived by a reasonable observer . . . as endorsement of that activity.”  Finally, the Superintendent stressed to Kennedy that he was free to engage in religious activity himself but “[s]uch activity must be physically separate from any student activity, and students may not be allowed to join such activity.”

Kennedy complied for a period of time.  He would give a short motivational speech following each game “that included no mention of religion or faith.”  Then, once “everyone else had left the stadium,” he would walk to the fifty-yard line, kneel and pray alone. 

Thereafter, Kennedy requested a religious accommodation under the Civil Rights Act of 1964 that would allow him to “continue his practice of saying a private, post-game prayer at the 50-yard line” immediately following football games.

Kennedy resumed his practice without hearing from the Bremerton School District as to his request for an accommodation and was joined by others.  The Superintendent responded by directing Kennedy to refrain from such conduct moving forward.  The Superintendent 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.”  Finally, Kennedy was advised that he could resume his prior practice of praying on the 50-yard line after the stadium had emptied.

Kennedy subsequently notified the Bremerton School District that he intended to pray on the fifty-yard line immediately after games and he did so immediately following the next two games.  The Bremerton School District subsequently placed Kennedy on paid administrative leave for violating the District’s directives.

After the season ended, the District began its annual process of providing its coaches with performance reviews.  The athletic director recommended that Kennedy not be rehired because he “failed to follow district policy” and “failed to supervise student-athletes after games due to his interactions with the [the] media and [the] community.”  Additionally, the head coach of the varsity football team left the job and the one-year contracts expired for all of his assistant coaches.  The District solicited applications for all seven football coaching positions but Kennedy did not apply.

The United States Court of Appeals for the Ninth Circuit concluded that by 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.  Because such demonstrative communication fell within the scope of Kennedy’s professional obligations, the Ninth Circuit concluded that the constitutional significance of Kennedy’s job responsibilities is plain – he spoke as a public employee, not as a private citizen, and his speech was therefore unprotected.  Accordingly, the Ninth Circuit denied his request for a preliminary injunction, finding the likelihood of success on the merits of his First Amendment claim (whether he could show that he was likely to prevail on his claim that the termination of his employment violated his First Amendment rights) to be unlikely.

In denying Kennedy’s Petition for a Writ of Certiorari, Supreme Court Justices Alito, Thomas, Gorsuch and Kavanaugh indicated that the decision to do so did not signify that the Supreme Court necessarily agreed with the decision of the United States Court of Appeals for the Ninth Circuit.  Instead, the Justices indicated that although Kennedy’s free speech claim may ultimately implicate important constitutional issues, the Supreme Court could not reach those issues until the factual question of the likely reason for the Bremerton School District’s conduct is resolved:

  1. If the likely reason for Kennedy’s termination was Kennedy’s neglect of his duties – If, for example, he was supposed to have been actively supervising the players after they had left the field but instead left them unsupervised while he prayed on his own – his First Amendment claim would likely fail.
  1. On the other hand, Kennedy’s First Amendment claim would have far greater weight if he was likely to be able to establish either that he was not really on duty at the time in question or that he was on duty only in the sense that his workday had not ended and that his prayer took place at a time when it would have been permissible for him to engage briefly in other private conduct, say, calling home or making a reservation for dinner at a local restaurant.

Moreover, the Justices indicated that the understanding of United States Court of Appeals for the Ninth Circuit as to the free speech rights of public school teachers and coaches was troubling and may justify review in the future.  The Justices specifically noted:

  1. Supreme Court precedent should not be interpreted as holding that public school teachers and coaches may be fired if they engage in any expression that the school does not like while they are on duty (noting that the Ninth Circuit appears to regard teachers and coaches as being on duty at all times from the moment they report for work until the moment they depart, provided they are in the eyesight of students). Teachers and coaches should not be precluded from engaging in certain conduct (e.g., folding their hands or bowing their heads in prayer) while eating lunch in sight of students.  Moreover, schools should not be entitled to regulate what teachers or coaches do while not teaching or coaching by preventing them from reading things that might be spotted by students or saying things that might be overheard.
  1. The duty of a teacher or coach to serve as a good role model should not require the teacher or coach to refrain from any manifestation of religious faith – especially when the teacher or coach is plainly not on duty.

Stay tuned!

For questions regarding this article, please contact the author, Attorney Tony J. Renning (email: trenning@strangpatteson.com; telephone: 844.833.0823), or your Strang, Patteson, Renning, Lewis & Lacy, s.c., attorney.