Left to right: Justices Neil Gorsuch, Clarence Thomas and Samuel Alito

A high school football coach, disciplined for kneeling and praying on the field at the end of games, has lost his bid to have have his First Amendment challenge heard by the U.S. Supreme Court.

The justices on Tuesday declined to hear arguments in the case Kennedy v. Bremerton School District, which confronted whether public school teachers and coaches retain any First Amendment rights when at work and “in the general presence of” students.

Justice Samuel Alito Jr., joined in a concurring opinion by Justices Clarence Thomas, Neil Gorsuch and Brett Kavanaugh, said the denial of review did not signify the court agreed with the lower court decision.

“In this case, important unresolved factual questions would make it very difficult if not impossible at this stage to decide the free speech question that the petition asks us to review,” Alito 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.”

Joseph Kennedy was put on administrative leave after the Bremerton School District officials in Bremerton, Washington, warned him several times he could not lead or encourage student prayers on the field. He did not try to renew his contract for the season after his leave. But in 2016, he sued the school district for allegedly violating his free speech rights and the Civil Rights Act of 1964.

The U.S. Court of Appeals for the Ninth Circuit, affirming a district court’s denial of a preliminary injunction against the school district, said Kennedy was speaking as a public official during prayers on the field.

“While we recognize the important role that public worship plays in many communities, as well as the sincere desire to include public prayer as a part of these occasions, such activity can promote disunity along religious lines, and risks alienating valued community members from an environment that must be open and welcoming to all,” Judge Milan D. Smith Jr. wrote for the appeals panel.

Kirkland & Ellis partner Paul Clement is counsel to Kennedy. Michael Tierney of Seattle’s Tierney & Correa represents the school district.



The court’s order is posted below: