Joseph A. Kennedy wants to pray on the field after games, a wish that cost the Washington State high school football coach his job, and propelled him into the national spotlight.
And now, litigation heavy hitters from Miami’s Greenberg Traurig representing Florida State coaching legend Bobby Bowden, evangelicals, 13 attorneys general and others from across the country are stepping into the fray, with amicus briefs in support of Kennedy’s appeal to the U.S. Supreme Court, in his fight against the Bremerton School District.
The case turns on whether Kennedy’s prayers on the field were considered private religious actions, with free-speech protections under the U.S. Constitution, or if they amounted to a public display by a government employee.
The U.S. Court of Appeals for the Ninth Circuit ruled against the coach in his bid for reinstatement. It found that Kennedy’s praying was done as a public employee — and not as a private citizen — because students could see him praying.
But attorneys general from Arizona, Arkansas, Georgia, Louisiana, Michigan, Montana, Nebraska, Nevada, Oklahoma, South Carolina, Texas, West Virginia and Wisconsin disagree. Those states filed a brief to the U.S. Supreme Court as public employers with “interests both in protecting the constitutional rights of their employees and in regulating messages that are communicated by public employees within the scope of their employment.”
“The fact that teachers are paid to communicate some messages to students does not mean that all messages that a teacher communicates are made in a public capacity,” reads the brief, filed Aug. 1. “To hold, as the Ninth Circuit did, that the ‘professional responsibility’ of educators is ‘to communicate demonstratively to students’ simply substitutes an ‘excessively broad job description’ for careful legal analysis.”
Also stepping into the litigation: The chairman of Greenberg Traurig’s Miami litigation department, Adam M. Foslid, who filed an amicus brief alongside associate Eva M. Spahn requesting that the high court grant Kennedy’s writ of certiorari.
The Big Law attorneys represent college football great Bowden, who led the Seminoles to 377 wins and two national titles. Their brief on the retired coach’s behalf asks the Supreme Court to hear the case in the interest of preserving religious liberty and contends the appellate ruling sets a dangerous legal precedent for personal self-expression.
“The District’s policy and the circuit court’s decision fundamentally transform the student-athlete/coach relationship, and effectively eliminate the ability of a religiously observant coach to serve as a mentor, counselor, or pseudo-parental figure to his or her players,” the brief reads. “The district’s policy and circuit court’s holding strip them of their faith and spiritual identity while in the presence of their players, and jeopardizes their ability to be a mentor, counselor, or pseudo-parental figure and otherwise impart important life lessons to their student-athletes.”
The Bremerton School District’s policy prohibits public expressions of religion by its employees. It bans “demonstrative religious activity” that is “readily observable to (if not intended to be observed by) students and the attending public.”
Kennedy lost his job for violating that policy. He is a former Marine, who worked for Bremerton between 2008 and 2015, when the district declined to renew his contract after he refused to stop praying on the field after school football games. Kennedy subsequently filed suit, arguing the school district had violated his First Amendment rights to freedom of speech and religion.
After the district court ruled against him, Kennedy appealed to the U.S. Court of Appeals for the Ninth Circuit in Seattle. That court affirmed the lower court’s ruling. Now, with the assistance of religious litigation group First Liberty and former U.S. Solicitor General Paul Clement, Kennedy has asked the nation’s highest court to take his case.
A slew of supporters filed briefs to the court this week, including the Texas High School Coaches Association, members of Congress and Bowden, who contacted Greenberg Traurig’s Foslid to weigh in on the litigation.
“By holding that any on-the-job religious expression by a public school coach falls within that coach’s official employment duties, the circuit court has effectively stripped observant coaches of their religious identity while in view of students,” Foslid told the Daily Business Review. “Stretched to its inevitable conclusion, the circuit court’s reasoning would allow a public school district to prevent an observant Muslim from wearing a hijab, an observant Jew from wearing a yarmulke, or an observant Christian from wearing a cross. It would prohibit a short moment of silent prayer, or crossing oneself before eating a meal in the school cafeteria.”
Michael B. Tierney, counsel for the Bremerton School District, told the Daily Business Review that he is not authorized to comment for the district on these matters.
The district, meanwhile, said it was gearing to respond to Kennedy’s appeal to the U.S. Supreme Court.
“The Court rejected his request for a preliminary injunction reinstating his employment with the District,” the district said in a statement. “The District looks forward to the eventual conclusion of this matter.”