SCOTUS Won’t Hear Public School Teacher’s First Amendment Case

The U.S. Supreme Court declined to hear a First Amendment case that could have clarified whether public school teachers and coaches retain any First Amendment rights when at work and “in the general presence of” students. The case, Kennedy v. Bremerton School District, involved a football coach who was terminated after praying at the 50-yard-line following his team’s games.

Facts of Kennedy v. Bremerton School District

In 2016, Bremerton High School (“BHS”) football coach Joseph A. Kennedy (“Kennedy”) filed suit in the Western District of Washington, alleging violations of his rights under the Free Speech and Free Exercise Clauses of the First Amendmentand Title VII of the Civil Rights Act of 1964. Kennedy sought a preliminary injunction that would order the Bremerton School District (“District”) to cease discriminating against him in violation of the First Amendment, reinstate him as a BHS football coach, and allow him to take a knee at midfield at the conclusion of BHS football games to “say a silent prayer that lasts 15-30 seconds.” 

The district court sided with the District, and the Ninth Circuit affirmed. In upholding the District court’s decision, the panel held that Kennedy “spoke as a public employee, not as a private citizen, when he kneeled and prayed on the fifty-yard line, noting that he was logoed-attire and in view of students and parents.” Id. The panel reasoned that Kennedy had a professional responsibility to communicate demonstratively to students and spectators and he took advantage of his position to press his particular views upon the impressionable and captive minds before him. 

“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 appellate court.

The Ninth Circuit further held 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 permitted to order him not to speak in the manner that he did. Accordingly, Kennedy could not show a likelihood of success on the merits of his First Amendment retaliation claim, and he was not entitled to a preliminary injunction.

Supreme Court Denies Petition for Certiorari

The Supreme Court denied Kennedy’s petition for certiorari, citing that the district court failed to make a finding on the question of the reason or reasons for Kennedy’s termination. “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,” the Court concluded.

Justice Samuel Alito Jr. wrote a concurring opinion, in which Justices Clarence Thomas, Neil Gorsuch and Brett Kavanaugh joined. The justices agreed that the Court should decline to hear the First Amendment challenge. “I concur in the denial of the petition for a writ of certio­rari because denial of certiorari does not signify that the court necessarily agrees with the decision (much less the opinion) below,” Justice Alito wrote. “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.”

Justice Alito’s concurrence raised significant concerns about the Ninth Circuit’s decision. According to Justice Alito, “The Ninth Circuit’s understanding of the free speech rights of public school teachers is troubling and may justify review in the future.”

In the concurrence, Justice Alito further argued that the Ninth Circuit’s opinion applied the Court’s precedent in Garcetti v. Ceballos, 547 U.S. 410 (2006) to public school teachers and coaches in a “highly tendentious way.”  He explained:

Under this interpretation of Garcetti, if teachers are visible to a student while eating lunch, they can be ordered not to engage in any “demonstrative” conduct of a religious nature, such as folding their hands or bowing their heads in prayer. And a school could also regulate what teachers do during a period when they are not teaching by preventing them from reading things that might be spotted by students or saying things that might be overheard. This Court certainly has never read Garcetti to go that far. While Garcetti permits a public employer to regulate employee speech that is part of the employee’s job duties, we warned that a public employer cannot convert private speech into public speech “by creating excessively broad job descriptions.” If the Ninth Circuit continues to apply its interpretation of Garcetti in future cases involving public school teachers or coaches, review by this Court may be appropriate. 

According to Alito, the “most troubling” aspect of the Ninth Cir­cuit’s opinion is “language that can be understood to mean that a coach’s duty to serve as a good role model requires the coach to refrain from any manifestation of religious faith—even when the coach is plainly not on duty.” Justice Alito further wrote, “I hope that this is not the message that the Ninth Circuit meant to convey, but its opinion can certainly be read that way.”

While the Supreme Court denied the petition, there are at least several justices who would like the Court to address the First Amendment rights of teachers, at least with respect to how they are defined by the Ninth Circuit Court of Appeals. We will certainly be watching this issue and will post updates as they become available. 

For more information about the case or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.

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