The U.S. Supreme Court declined to hear the appeal of Joseph A. Kennedy, a high school coach who was effectively removed by his school district for praying on the field immediately after the high school football games.  Kennedy brought an action alleging that the district retaliated against him for exercising his First Amendment rights when it suspended him for kneeling and praying on the football field’s fifty-yard line in view of students and parents immediately after high school football games.

Plaintiff is a practicing Christian who says that his religious beliefs require him to give thanks through prayer at the end of each game for the accomplishments of the players. Plaintiff is occasionally joined by players for the post-game prayers and would sometimes give short motivational speeches. In September 2015, school district officials advised the Plaintiff that he could continue to give motivational talks but could not lead or encourage students to pray with him. However, he was free to pray while on the job so long as it did not interfere with his job responsibilities and the prayer was “physically separate from any school activity.”

The coach initially complied, but then sought an accommodation from the district to continue the post-game prayers. The school district denied the request. The plaintiff continued his post-game prayers and was then placed on administrative leave by the district.

The Ninth Circuit Court of Appeals held that plaintiff spoke as a public employee, not as a private citizen when he prayed on the field after the games in school logoed-attire while in the view of students and parents. The court found that because plaintiff’s demonstrative speech fell within the scope of his typical job responsibilities, he spoke as a public employee, and the district was authorized to order him not to speak in the manner that he did.

The plaintiff appealed to the Supreme Court who ultimately denied review, reasoning that there were “important unresolved factual issues that would make it very difficult if not impossible” to decide the free speech question at issue in this case. However, Justice Alito in his concurrence made clear that he found the Ninth Circuit’s understanding of the free speech rights of public school employees “troubling” and may require review in the future. Alito warned that a public employer cannot convert private speech of an employee into public speech by creating overly broad job descriptions. Further, Alito found particularly concerning the Ninth Circuit’s suggestion in its opinion that a teacher or coach may not engage in any outward manifestation of religion even while off duty. While review was denied in this case, the clear message from the four members of the Court is that they are prepared to provide greater clarity on the free speech rights of public school employees in the future.

Fishel Downey will continue to follow the development of this topic in the courts.  Stay tuned by following us on social media and signing up for our newsletter.