Ronald B. Leighton, United States District Judge.
THIS MATTER is before the Court on the parties' Cross-Motions for Summary
Kennedy was employed as a football coach at Bremerton High School (BHS) from 2008 until the 2015-16 season. Kennedy Dec., Dkt. # 71-4, at 1. As an assistant coach, Kennedy had to help the head coach with team supervision, assume direct supervisorial authority when designated by the head coach, and "[o]bey all Rules of Conduct before players and the public." Dkt. # 64-4 at 15. In addition to these practical responsibilities, Kennedy's position required him to act as a "mentor and role model for the student athletes, ... exhibit sportsmanlike conduct at all times,... maintain positive media relations, ... [and strive to] create good athletes and good human beings." Coaching Agreement, Dkt. # 64-2 at 11. In Kennedy's own estimation, a coach's role extends far beyond merely teaching a sport and often involves a large amount of influence over student athletes. Kennedy Dep., Dkt. # 64-24, at 106-108.
According to his colleagues and superiors, Kennedy was a successful and dedicated coach when he worked at BHS. Polm Dep., Dkt. # 71-5, at 42-43; Saulsberry Dep., Dkt. # 71-6, at 14; Boynton Dep., Dkt. # 71-7, at 12. Kennedy also was (and is) a practicing Christian, and his sincerely-held beliefs required him to "give thanks through prayer, at the end of each game, for what the players had accomplished and for the opportunity to be a part of their lives through the game of football." Kennedy Dec., Dkt. # 71-4, at 2-3. This took the form of a roughly 30-second prayer that Kennedy delivered on one knee at the 50-yard line immediately after the players and coaches shook hands after the game. Id. at 3. According to Kennedy, these prayers were private communications with God that Kennedy committed to after watching a 2006 film called Facing the Giants. Id. at 2-3.
Kennedy recounts that when he began this practice in 2008 he would pray alone. Id. at 3. However, when players from the BHS team began to join him, he did not interfere. Id. Although the number of participating players varied from game to game, Kennedy recalls that a majority of the team eventually took part. Id. Eventually, Kennedy began delivering inspirational speeches with religious references after games. Id. at 4. He would also participate in pre- and post-game locker room prayers, although he testifies that these were not required by his religious beliefs. Id. Kennedy emphasizes that he "never coerced, required, or asked any student to pray with [him] at the conclusion of games." Id.
Although Kennedy's religious activity with student athletes went on for years,
After an inquiry, the District sent Kennedy a letter on September 17, 2015, stating that his practices of giving religious inspirational talks at the 50-yard line (which "evolve[ed] organically" from his prayer at the 50-yard line) and leading prayer in the locker room likely violated District policy. September 17 Letter, Dkt. # 64-8, at 1. Specifically, the letter explained that the conduct likely ran afoul of Board Policy 2340, which seeks to avoid violations of the Establishment Clause by requiring that school staff neither encourage nor discourage students from engaging in religious activity. Id. at 1-2. Although noting that it "may not address every potential scenario," the letter closed with the following directive:
Id. at 3. Some students and parents expressed thanks for the District's directive that Kennedy cease praying after games, with some noting that their children had participated in the prayers to avoid being separated from the rest of the team or ensure playing time. Barton Dec., Dkt. # 65, at 2; Leavell Dec. at 7; Polm Dep., Dkt. # 64-25, at 73-74; see also Saulsberry Dep., Dkt. # 64-26, at 19-20.
After meeting with Kennedy to further explain the situation, Superintendent Leavell testified that Kennedy was "not happy" with the District's directive but agreed to abide by it. Leavell Dec., Dkt. # 67, at 4. At the September 18 game, Kennedy ceased praying in the locker room, omitted religious references in his inspirational speech, and prayed on the field only after the stadium had emptied. Kennedy Dec., Dkt. # 71-4, at 5. For the following five varsity and junior varsity games, Kennedy testified at his deposition that he either does not remember the manner in which he prayed or recalls that he prayed for 10-15 seconds while the team was performing the fight song, walking off the field, or heading to the bus. Kennedy Dep., Dkt. # 71-10, at 163-65. It is unclear whether he prayed at the 50-yard line. Id. Although Kennedy states that there were school administrators at these games, Leavell, Polm, and Barton were unaware of Kennedy's prayer at the time and believed he had ceased praying immediately after games. Leavell Dec., Dkt. # 82, at 2; Polm Dec., Dkt. # 80, at 2; Barton Dec., Dkt. # 81, at 2. After Kennedy changed his practices in September, no students were witnessed praying on the field independently. Leavell Dec., Dkt. # 67, at 7.
On October 14, the District received a letter from Kennedy's lawyers requesting a religious accommodation on his behalf. October 14 Letter, Dkt. # 71-16. The letter emphasized that Kennedy's prayers were not obviously Christian and occurred "after his official duties as a coach have ceased." Id. at 2. In light of this, Kennedy's lawyers insisted that his prayers were private speech and that the District could not prohibit him from praying with students if they voluntarily joined. Id. at 6-7. The letter thus advised the District that Kennedy would resume praying at the 50-yard line after the October 16 homecoming game and requested that the District rescind its September 17 directive with respect to this practice. Id. at 6.
Meanwhile, Kennedy began making media appearances spreading the word that he intended to pray after the October 16 game. Kennedy Dep., Dkt. # 64-24, at 72-73. The Seattle Times published an article on October 14 announcing Kennedy's plans for the upcoming game, and a local news story aired before the game that explained the conflict with the District and included a statement from Kennedy that he planned to "do what [he'd] always done" at the game. Seattle Times Article, Dkt. # 64-11; Local News Video, Dkt. 64-12. The District also began receiving a large amount of emails, letters, and phone calls regarding the conflict over Kennedy's prayer, many of which were hateful or threatening. Leavell Dec., Dkt. # 67, at 3. This may have been originally triggered by Kennedy's September 11 Facebook about getting fired for praying.
Given this public response, Superintendent Aaron Leavell anticipated that members of the community would likely try to join Kennedy on the field after the homecoming game and that the District was currently unprepared to prevent this. September 18 Email, Dkt. # 64-9; Leavell Dec., Dkt. # 67, at 4. This prediction proved accurate, as a large number of people came onto the field after October 16 game. Leavell Dec. at 6. In the rush to reach the field, some band members and cheerleaders were knocked down. Id. Kennedy himself followed his custom of praying at the 50-yard line after the players had shaken hands, except this time he was surrounded by cameras and joined by a group of players, coaches, and even a state representative (the BHS players were busy singing the school's fight song at the time). Kennedy Dep., Dkt. # 64-24, at 69-70; Photo of October 16 Game, Dkt. # 64-13.
After October 16, the District increased security at games and placed robocalls to parents informing them that there was no public access to the field. Leavell Dec., Dkt. # 67, at 6. The District also sent another letter to Kennedy on October 23 informing him that his conduct at the homecoming game did not comply with the September 17 directive. October 23 Letter, Dkt. # 64-14, at 1. The letter emphasized that Kennedy's duties as an assistant coach did not cease immediately after games and continued until the players were out of the dressing rooms and released to their parents. Id. at 2. Indeed, the head coach of the BHS team had confirmed that Kennedy was among those assistant coaches "with specific responsibility for the supervision of players in the locker room following games." Id.; see also Polm Dep., Dkt. # 64-25, at 47; Kennedy Dep., Dkt. # 64-24, at 41-42 (testifying that he is performing "football coaching functions... until the last kid leaves [the stadium]").
Kennedy did not take the District up on its offer to keep discussing religious accommodations. Leavell Dec., Dkt. # 67, at 5. Instead, Kennedy continued his practice of praying at the 50-yard line in the next two games. At the October 23 game, Kennedy prayed alone in the middle of the field while the players headed to the stands. Video of October 23 Game, Dkt. # 71-20. At the October 26 game, Kennedy initially knelt down by himself but was then joined by about a dozen other adults. Video of October 26 Game, Dkt. # 71-22. Once the players finished their fight song, they joined Kennedy at the middle of the field after he had finished his kneeling prayer. Id.
Citing Kennedy's decision to keep praying on the field at the games on October 16, 23, and 26, the District placed Kennedy on paid administrative leave on October 28, 2015 for violating the District's prior directives. October 28 Letter, Dkt. # 64-16. Although the October 23 letter had mentioned that Kennedy's prayer distracted him from his supervisorial duties, the risk of constitutional liability associated with Kennedy's religious conduct was the "sole reason" the District ultimately suspended him. Leavell Dep., Dkt. # 71-9, at 197; see also District Statement and Q & A regarding Kennedy, Dkt. # 71-2, at 1 (placing Kennedy on leave was "necessitated" by his refusal to cease his "overt, public religious displays."). Kennedy was no longer allowed to participate in games as a coach but could attend them as a member of the public, which he did on October 30 when he prayed in the bleachers with a group of people. Id.; Photo of Kennedy Praying in Bleachers, Dkt. # 64-17; Leavell Dec., Dkt. # 67, at 7. Although the October 28 letter renewed the District's invitation to discuss alternative accommodations, Kennedy did not respond. October 28 Letter; Kennedy Dep., Dkt. # 64-24, at 100.
Kennedy's evaluations for the 2015 season by Head Coach Gillam and Athletic Director Barton reflected the drama that had played out with the District. Gillam gave Kennedy low marks for putting his own interests over those of the team, although Kennedy received high marks for his relationship with players and other qualities. Gillam Evaluation, Dkt. # 64-19. Barton similarly praised Kennedy's coaching skills but criticized his lack of cooperation, noting that he "never came in after numerous requests and contacts." Barton Evaluation, Dkt. # 64-20. At the end of the 2015 season, Gillam resigned as head coach after eleven years in the position, and the six assistant coach contracts also expired. Gillam Dec., Dkt. # 66, at 3; Steedman Dec., Dkt. # 22, at 3. Kennedy was one of four current assistant coaches who did not reapply for their jobs. Steedman Dec. at 3.
Kennedy filed suit in this Court on August 9, 2016. Complaint, Dkt. # 1. Kennedy's first two claims under 42 U.S.C. § 1983 allege the District violated his First Amendment rights to free speech and free exercise by limiting his practice of praying
Kennedy moved for a preliminary injunction based on his First Amendment claims on August 24, 2016. Dkt. # 15. The Court denied that motion at a hearing held on September 19. Dkt. # 25. Kennedy appealed, and the Ninth Circuit affirmed on the basis that Kennedy's prayers were delivered in his capacity as a public employee and were thus unprotected speech. Kennedy v. Bremerton Sch. Dist., 869 F.3d 813 (9th Cir. 2017) (Kennedy I). The Supreme Court denied certiorari, but four of the justices issued a concurring opinion expressing skepticism at the prior holdings. Kennedy v. Bremerton Sch. Dist., ___ U.S. ___, 139 S.Ct. 634, 203 L.Ed.2d 137 (2019) (Kennedy II). Now, both parties have moved for summary judgment on all seven of Kennedy's claims.
Summary judgment is proper "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In determining whether an issue of fact exists, the Court must view all evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir. 1996). A genuine issue of material fact exists where there is sufficient evidence for a reasonable factfinder to find for the nonmoving party. Anderson, 477 U.S. at 248, 106 S.Ct. 2505.
On cross-motions, the defendant bears the burden of showing that there is no evidence which supports an element essential of the plaintiff's claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Conversely, the plaintiff "must prove each essential element by undisputed facts." McNertney v. Marshall, No. C-91-2605-DLJ, 1994 WL 118276, at *2 (N.D. Cal. Mar. 4, 1994) (citing Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986)). Either party may defeat summary judgment by showing there is a genuine issue of material fact for trial. Id.; Anderson, 477 U.S. at 250, 106 S.Ct. 2505. Although the parties may assert that there are no contested factual issues, this is ultimately the court's responsibility to determine. Fair Hous. Council of Riverside Cty., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001).
To succeed in his claims under § 1983, Kennedy must prove that the District acted under color of state law to violate his constitutional rights under the First Amendment. Stein v. Ryan, 662 F.3d 1114, 1118 (9th Cir. 2011). In cases involving the free speech rights of government workers, First Amendment protections aim "both to promote the individual and societal interests that are served when employees speak as citizens on matters of public concern and to respect the needs of government employers attempting to perform their important public functions." Garcetti v. Ceballos, 547 U.S. 410, 420, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). This
Today, the Ninth Circuit has boiled this precedent down to a First Amendment retaliation test that requires asking five sequential questions: "(1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the plaintiff's protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech." Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009).
The District first contends that Kennedy's prayer at the 50-yard line was delivered in his capacity as a public employee, while Kennedy argues that it was private speech falling outside of his coaching role. "[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Ceballos, 547 U.S. 410, 421, 126 S.Ct. 1951. In Ceballos, the speech at issue—a critical disposition memo—indisputably fell within Ceballos's responsibilities as a prosecutor, giving the Court "no occasion to articulate a comprehensive framework for defining the scope of an employee's duties." Id. at 424, 126 S.Ct. 1951. Nonetheless, the Court pointed out that the "proper inquiry is a practical one" and that "employers can[not] restrict employees' rights by creating excessively broad job descriptions." Id.; see also Lane v. Franks, 573 U.S. 228, 240, 134 S.Ct. 2369, 189 L.Ed.2d 312 (2014) (The "critical question under Ceballos is whether the speech at issue is itself ordinarily within the scope of an employee's duties, not whether it merely concerns those duties.").
The Ninth Circuit has interpreted Ceballos as presenting courts with a "mixed question of fact and law" regarding the nature of a public employee's speech. Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1129 (9th Cir. 2008). First, the trier or fact must determine the "scope and content of a plaintiff's job responsibilities;" then, "the court must "evaluate the ultimate constitutional significance of the
In Johnson v. Poway Unified School District, 658 F.3d 954 (9th Cir. 2011), the Ninth Circuit applied this framework to teachers and defined the scope of their duties with respect to student-directed speech. Johnson, a high school math teacher, had decorated his classroom using two banners with religious messages, such as "IN GOD WE TRUST." Id. at 958. The court concluded that Johnson's duties encompassed such communications because the school had a specific policy regulating the content of classroom banners and because "expression is a teacher's stock and trade, the commodity she sells to her employer in exchange for a salary." Id. at 967. The court thus held that, "as a practical matter, we think it beyond possibility for fairminded dispute that the `scope and content of [Johnson's] job responsibilities' did not include speaking to his class in his classroom during class hours." Id. (quoting Ceballos, 547 U.S. at 424, 126 S.Ct. 1951).
The court then assessed the constitutional significance of these facts and held that Johnson's speech owed its existence to his position, despite the fact that the banners' messages were outside the math curriculum. Id. at 967-68. The court pointed out that "[a]n ordinary citizen could not have walked into Johnson's classroom and decorated the walls as he or she saw fit." Id. at 968. More broadly, "because of the position of trust and authority they hold and the impressionable young minds with which they interact, teachers necessarily act as teachers for purposes of a Pickering inquiry when at school or a school function, in the general presence of students, in a capacity one might reasonably view as official." Id.
It was Johnson that the Ninth Circuit primarily relied upon in upholding this Court's order denying a preliminary injunction. Kennedy I, 869 F.3d at 824-25. Just as Johnson was tasked with educating his students in the classroom, the appellate court determined that Kennedy's job was to serve as a role model and mentor on the field. Id. at 825. Consequently, "[w]hen acting in an official capacity in the presence of students and spectators, Kennedy was also responsible for communicating the District's perspective on appropriate behavior through the example set by his own conduct." Id. at 827. The court then held that Kennedy's prayer was a product of his coaching position because it took place "[1] at school or a school function, [2] in the general presence of students, [3] in a capacity one might reasonably view as official." Id. at 827 (quoting Johnson, 658 F.3d at 968). Further, the court noted that Kennedy's speech "owe[d] its existence" to the field-access provided by his coaching position and, as in Johnson, deemed the content of Kennedy's speech largely irrelevant. Id. at 827-28 (quoting Ceballos, 547 U.S. at 421-22, 126 S.Ct. 1951).
Kennedy appealed again, and although the Supreme Court did not grant certiorari, four of the Justices criticized the Ninth Circuit's reasoning. Kennedy II, 139 S. Ct. at 635 (Alito, J., concurring). The Justices observed that the Ninth Circuit's application of Ceballos implies that teachers and coaches are "on duty" whenever students are nearby and can thus be fired for any
As this tension demonstrates, the question of what speech is public vs. private becomes especially difficult when an essential part of an employee's job is expression. On one hand, a coach or teacher's duties as an educator make it imperative that the school can control the types of information they impart to young minds. On the other hand, these broad duties could conceivably encompass all expression —no matter how personal—if there is a slight chance students could witness it. But while this case exists near the cross-roads of these concerns, Kennedy's prominent, habitual prayer is not the kind of private speech that is beyond school control.
As the Ninth Circuit determined, Kennedy's duties as a coach "involved modeling good behavior while acting in an official capacity in the presence of students and spectators." Kennedy I, 869 F.3d at 826. The agreement Kennedy signed upon becoming a coach confirms this by requiring him to act as a "mentor and role model for the student athletes" and "exhibit sportsmanlike conduct at all times." Coaching Agreement, Dkt. # 64-2 at 11. Kennedy himself testified that what he says or does while coaching serves as an influential example for his players to "do what is right". Kennedy Dep., Dkt. # 64-24, at 109-110. A practical description of a coach's job responsibilities must account for this far-reaching influence.
This does not necessarily mean that all of a coach's conduct nearby student athletes is within the scope of their job. After all, as the four concurring Justices pointed out, such an outcome could conceivably mean that a coach's speech is subject to control even off the clock. Kennedy II, 139 S. Ct. at 637 (Alito, J., concurring). There is a point at which an educator's speech is so obviously personal that it is delivered as a citizen. This may be the case when a coach greets family in the bleachers during a game or a teacher wears a cross around their neck. See District 30(b)(6) Dep., Dkt. # 71-9, at 125-26; see also Boynton Dep., Dkt. # 71-7, at 19-21 (testifying that BHS coaches would sometimes check their phones or greet friends and family in the stand after games).
But just as it would excessively restrict public educators to encompass all speech within the scope of their duties, it would be equally harmful to exclude all speech that is not overtly educational. Speech around students bearing the mark of an educator's formal role, such as a classroom banner, is well within the scope of their responsibilities. See Johnson, 658 F.3d at 958. To hold otherwise would hinder schools' ability to protect students from all sorts of improper communications by teachers and coaches that happen to occur outside of a lesson. Consequently, while Kennedy's job description
Given this practical assessment of Kennedy's duties as a coach, the Court must hold that his prayers at the 50-yard line were not constitutionally protected. "[T]eachers necessarily act as teachers for purposes of a Pickering inquiry when [1] at school or a school function, [2] in the general presence of students, [3] in a capacity one might reasonably view as official." Kennedy I, 869 F.3d at 827 (quoting Johnson, 658 F.3d at 968). It is the third requirement that Kennedy contests,
Kennedy testified that, despite his prominent location on the field, his prayers were between him and God and not directed at players or audience members. Kennedy Dep. at 27. This may be true as far as Kennedy is concerned, but the Ceballos/Eng analysis is not so subjective. If it was, a teacher could validly claim that their sincerely-held beliefs compel them to announce their prayers after each lesson or proselytize in front of students. The teacher may not intend to direct their actions at the students, but the latter would nonetheless feel implicated. Kennedy's prayers at the center of the field, under bright lights, in front of the bleachers, at a time when the general public could not access the field had a similar effect.
Kennedy's speech at the 50-yard line also "owes its existence" to his coaching position. Ceballos, 547 U.S. at 421, 126 S.Ct. 1951. As the Ninth Circuit observed, this is literally the case because only BHS staff and players had access to the field immediately after football games. Kennedy I, 869 F.3d at 827. However, as the Court explained in Ceballos, presence in an exclusive location is insufficient on its own to expose an employee's speech to restriction. See 547 U.S. at 421, 126 S.Ct. 1951 ("Many citizens do much of their talking inside their respective workplaces."). Here, however, Kennedy's speech was uniquely tied to his job. Kennedy's sincerely-held beliefs did not allow him to pray just anywhere about anything; he was required to pray on school-controlled property about a school-sponsored event. The place and manner of Kennedy's speech also gave it a unique effect that derived from his position. Just as the impact of Ceballos's memo depended on his authority and duties as a prosecutor, the impact of Kennedy's prayer came from his position as a coach. See id. at 414, 420, 126 S.Ct. 1951.
And indeed, whether Kennedy intended it or not, his prayers did have an impact: players joined Kennedy at the 50-yard line for years despite evidence that some would
The fact that Kennedy spoke as an employee is enough to end the Court's analysis at part two of the Eng inquiry. Johnson, 658 F.3d at 961. However, the District's justification for disciplining Kennedy —avoiding an Establishment Clause violation—is so closely related to the public nature of Kennedy's speech and his remaining claims that it warrants discussion. "Establishment Clause concerns can justify speech restrictions `in order to avoid the appearance of government sponsorship of religion.'" Hills v. Scottsdale Unified Sch. Dist. No. 48, 329 F.3d 1044, 1053 (9th Cir. 2003) (quoting Lassonde v. Pleasanton Unified Sch. Dist., 320 F.3d 979, 983-85 (9th Cir. 2003)). Indeed, "a state interest in avoiding an Establishment Clause violation `may be characterized as compelling.'" Good News Club v. Milford Cent. Sch., 533 U.S. 98, 112, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001) (quoting Widmar v. Vincent, 454 U.S. 263, 271, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981)).
As the Supreme Court has recognized numerous times, "there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools." Lee v. Weisman, 505 U.S. 577, 592, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992) (collecting cases). Santa Fe Independent School District v. Doe is particularly instructive here. 530 U.S. 290, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000). The policy in Santa Fe, which was adopted by a majority of the student body, allowed a student-led prayer to be delivered via the high school's announcement system before football games. Id. at 297-99, 120 S.Ct. 2266. The Court held the policy unconstitutional because it amounted to government endorsement of religion and coerced participation in religious activity.
Under the endorsement test, the court must ask "whether an objective observer, acquainted with the text, legislative history, and implementation of the statute, would perceive it as a state endorsement of [religion]." Id. at 308, 120 S.Ct. 2266 (quoting Wallace v. Jaffree, 472 U.S. 38,
Other circuit courts have similarly recognized the potential for Establishment Clause violations when school employees become involved in religious expression. In Doe v. Duncanville Independent School District, for example, the Fifth Circuit held that school staff participating in student-led prayer at basketball games "improperly entangle[d] [the school] in religion and signal[ed] an unconstitutional endorsement of religion." 70 F.3d 402, 406 (5th Cir. 1995). And in Borden v. School District of the Township of East Brunswick, the Third Circuit held that a coach bowing his head and taking a knee to join his players in prayer before games violated the Establishment Clause. 523 F.3d 153, 179 (3d Cir. 2008). Although the court noted that the result might be different if the practice was viewed in isolation, the coach's years-long history of leading prayers with athletes would cause a reasonable observer to perceive school endorsement of religion. Id. at 177-78.
Here, Kennedy's practice of praying at the 50-yard line fails both the endorsement and coercion tests and violates the Establishment Clause.
And even if the District did not have an official policy condoning Kennedy's conduct, as in Santa Fe, a reasonable observer would conclude the school was aware that a "distinctively Christian prayer" was
Observers would also be aware that Kennedy's activities were religious in nature based on his history of engaging in religious activity with players. For eight years prior to 2015, Kennedy prayed with students in the locker room, prayed on the field, and delivered religious inspirational talks after games. Kennedy Dec., Ex. 71-4, at 3-4. Anyone familiar with this history would view Kennedy's prayer at the 50-yard line as continuing this tradition of injecting religious undertones into BHS football events.
But even more than the perception of school endorsement, the greatest threat posed by Kennedy's prayer is its potential to subtly coerce the behavior of students attending games voluntarily or by requirement. Players (sometimes via parents) reported feeling compelled to join Kennedy in prayer to stay connected with the team or ensure playing time, and there is no evidence of athletes praying in Kennedy's absence. Leavell Dec., Dkt. # 67, at 7; Barton Dep., Dkt. # 65, at 2; Polm Dep., Dkt. # 64-25, at 73-74; Saulsberry Dep., Dkt. # 64-26, at 19-20. Kennedy himself testified that, "[o]ver time, the number of players who gathered near [him] after the game grew to include the majority of the team." Kennedy Dec., Dkt. # 71-4, at 3. This slow accumulation of players joining Kennedy suggests exactly the type of vulnerability to social pressure that makes the Establishment Clause vital in the high school context. As anyone who has passed through that fraught stage of life can confirm, there is no time when the urge to join majority trends is greater. But when it comes to religion, the Establishment Clause forbids government actors from using this pressure to promote conformity.
Kennedy argues that his prayers were not coercive because, after the District's September 17 directive, he "intentionally separated himself from students and waited until players were departing the field before engaging in prayer." Kennedy Motion, Dkt. # 70, at 18; see also Kennedy Dep., Dkt. # 64-24, at 62-66 (explaining that, after the September 17 letter, Kennedy and his lawyers planned for him to pray quickly at the 50-yard line while students were distracted by singing the fight song). However, even if the Court focuses only on Kennedy's final few games, the outcome is the same. Kennedy may have tried to deliver his prayers in late 2015 while players were distracted, but this does not mean the athletes were unaware of Kennedy's actions or could not have joined him. His brief prayers were still long enough for other adults to participate at the October 16 and 26 games, and Kennedy's original practice of praying alone on the field eventually drew in most of the team.
Indeed, Kennedy's post-September 17 prayers were not meaningfully different from his original practice before he started giving inspirational speeches. Kennedy's own statements have consistently represented his plan for the October 16, 23, and 26 games as a continuation of what he "started out doing." Kennedy Dep. at 64; October 14 Letter, Dkt. # 71-16, at 6; Local News Video, Dkt. 64-12. Kennedy took no reliable steps to prevent students from joining him in prayer and has admitted
Finally, Kennedy's own intentions also do not change the practical effects of his prayer. Kennedy occupied a powerful position in his players' lives, both as a role model and as one of the people controlling their chance to perform on the biggest stage American high schools have to offer: the football field. Kennedy Dep., Dkt. # 64-24, at 106 (acknowledging that coaches can be the most important figure in some student athletes' lives). As Judge Smith observed in his concurring opinion, there is "no reason to believe that the pressure emanating from [Kennedy's] position of authority would dissipate" simply because he may have intended it to. Kennedy I, 869 F.3d at 835. Rather, Kennedy's prayers sent a "message to members of the audience who are nonadherents that they are outsiders, not full members of the political community." Id. (quoting Santa Fe, 530 U.S. at 309, 120 S.Ct. 2266). For many young athletes, the response to such a message is a desire to become an insider by joining Kennedy at the 50-yard line. This coercive effect violates the Establishment Clause and justifies the District's decision to place Kennedy on leave.
In addition to his free speech claim, Kennedy also makes a § 1983 claim under the Free Exercise Clause. "[I]f the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral, ... and it is invalid unless it is justified by a compelling interest and is narrowly tailored to advance that interest." Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993); see also Employment Div., Dep't of Human Res. of Oregon v. Smith, 494 U.S. 872, 883, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). "A law lacks facial neutrality if it refers to a religious practice without a secular meaning discernable from the language or context." Lukumi, 508 U.S. at 533, 113 S.Ct. 2217.
Kennedy contends that the District's September 17 directive, which derived from Board Policy 2340, was not neutral or generally applicable because it specifically targeted Kennedy's religious conduct. See September 17 Letter, Dkt. # 64-8. But even if this is the case, the District's decision to restrict Kennedy's post-game prayer activities was not unconstitutional under the standard from Lukumi. The District had a compelling interest in avoiding constitutional violations, see Good News Club, 533 U.S. at 112, 121 S.Ct. 2093, and the Court has already concluded that allowing Kennedy to continue praying at the 50-yard line would have violated the Establishment Clause. The District's application of Board Policy 2340 to Kennedy was also narrowly tailored to protect his rights. The District gave Kennedy multiple options to continue praying after games that would not have amounted to a violation. Kennedy, however, rejected these accommodations and did not respond to the District's requests for further input. In light of this, Kennedy's Free Exercise claim cannot succeed.
Finally, Kennedy asserts five claims under Title VII of the Civil Rights
Kennedy asserts that the District failed to re-hire him on the basis of his religious beliefs, although his actual claim is that the District made it futile for him to re-apply for his job after they suspended him and issued critical evaluations. Complaint, Dkt. # 1, at 16. Title VII makes it unlawful for employers to "fail or refuse to hire or to discharge any individual ... because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1).
A 1991 amendment to the statute further provides that "an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice." § 2000e-2(m).
Even under these forgiving standards, Kennedy's claim cannot pass scrutiny. There is no evidence that Kennedy's religion itself, rather than the unconstitutional time and manner he expressed it, motivated the District's actions. All the evidence shows that the District wanted to accommodate Kennedy's faith and encouraged constitutional religious expression. Indeed, the centerpiece of Kennedy's § 1983 claims is the assertion that he was placed on leave "solely [because of] concern that [his] conduct might violate the constitutional rights of students and other community members." Kennedy Motion, Dkt. # 70, at 9 (quoting Leavell Dep., Dkt. # 71-9, at 197). Kennedy's effort to equate the District's good faith efforts to obey the
Kennedy also asserts a disparate treatment claim based on the theory that the District targeted Kennedy for his demonstrative religious expression while failing to discipline other coaches who acted similarly. Complaint, Dkt. # 1, at 14. To succeed in a disparate impact claim, the plaintiff employee must first make a prima facie case by showing that: "(1) he is a member of a protected class; (2) he was qualified for his position; (3) he experienced an adverse employment action; and (4) similarly situated individuals outside his protected class were treated more favorably." Berry v. Dep't of Soc. Servs., 447 F.3d 642, 656 (9th Cir. 2006). Then, the burden shifts to the defendant employer to provide a "legitimate nondiscriminatory reason" for the action.
Here, Kennedy cannot carry his initial burden because he cannot show that anyone outside his class engaged in comparable conduct. Kennedy contends that other coaches on the team "similarly situated" to him were not disciplined for expressive activity like tying their shoes. But "[o]ther employees are similarly situated to the plaintiff when they have similar jobs and display similar conduct." Earl v. Nielsen Media Research, Inc., 658 F.3d 1108, 1114 (9th Cir. 2011) (emphasis added). Tying one's shoes is in no way similar to demonstrative religious worship in the center of the field.
Kennedy argues that, under Berry, the Court should compare "Kennedy's brief, personal conduct [to the] brief, personal conduct of the other football coaches." Kennedy Opposition, Dkt. # 83, at 20. In Berry, the court compared the plaintiff's request to use a conference room for religious purposes to another group's request to use the room for secular purposes. 447 F.3d at 656. But unlike Berry, Kennedy's use of the center of the field to pray after each game is not the same as other coaches' spontaneous personal acts somewhere else on the field. The Court also rejects the notion that the District must treat religious expression the same as non-religious expression when there are no constitutional liabilities for the latter. Berry recognized this distinction as well. Id. at 656 ("[W]e perceive a difference
The only evidence of a coach doing anything remotely comparable to praying on the 50-yard line is Kennedy's testimony that Coach Boynton engaged in silent Buddhist chants on the field after "many" BHS games. Kennedy Dec., Dkt. # 71-4, at 4; see also Kennedy Dep., Dkt. # 64-24, at 148. Boynton testified about one occurrence when he went onto the field after the last game of his first season, took a picture of the scoreboard, and said a silent chant to himself while standing. Boynton Dep., Dkt. # 64-23, at 54-57. The District was not aware of any religious conduct by Boynton until Kennedy mentioned it in his EEOC complaint. Leavell Dec., Dkt. # 67, at 7. Kennedy himself admits that he would not have known that Boynton was engaging in Buddhist prayer at games because the only indication was that he sometimes closed his eyes briefly. Kennedy Dep. at 149-151. The fact that no one would have learned of Boynton's conduct if he had not said something himself confirms that it is not analogous to Kennedy's demonstrative prayer.
But even if it was, the District had a legitimate, non-discriminatory reason for placing Kennedy on leave: avoiding a constitutional violation. The undisputed evidence demonstrates that this was the District's rationale, and Kennedy presents no evidence that the District's actions were merely pretext to punish him for his religion. In fact, Kennedy argues that the District's rationale of avoiding liability was "consistent with [its] representations to both the public and the federal government." Kennedy Motion, Dkt. # 70, at 9. Kennedy's disparate treatment claim therefore fails.
Kennedy next claims that the District failed to accommodate his sincerely-held religious beliefs by putting restrictions on his post-game prayers. To succeed in a failure to accommodate claim, a plaintiff must show that: "(1) he had a bona fide religious belief, the practice of which conflicts with an employment duty; (2) he informed his employer of the belief and conflict; and (3) the employer discharged, threatened, or otherwise subjected him to an adverse employment action because of his inability to fulfill the job requirement." Berry, 447 F.3d at 655 (quoting Peterson v. Hewlett-Packard Co., 358 F.3d 599, 606 (9th Cir. 2004)). The burden then shifts to the defendant employer, who must demonstrate that "it initiated good faith efforts to accommodate reasonably the employee's religious practices or that it could not reasonably accommodate the employee without undue hardship." Id. (quoting Peterson, 358 F.3d at 606).
Although Kennedy makes a prima facie showing that the District failed to accommodate him, the accommodation Kennedy demanded would have been an undue hardship for the District because it violated the Establishment Clause. As expressed in his October 14, 2015 letter, the accommodation Kennedy requested was unfettered freedom to "continue his practice of saying a private, post-game prayer at the 50-yard line," possibly with a disclaimer that his speech was private. October 14 Letter, Dkt. # 71-16, at 6. This would have violated the Establishment Clause, and Kennedy did not respond to the District's efforts to find a constitutional accommodation.
Kennedy now tries to argue that the District's September 17 letter was an acceptable accommodation allowing him to pray on the field away from students that the District deviated from later in its October 23 letter. Kennedy Motion, Dkt. # 70, at 23. This distinction, while convenient for Kennedy, is not supported by the record.
Even if it had, any arrangement in which Kennedy prayed at the center of the field, immediately after games, in the presence of students would have run afoul of the Establishment Clause. Short of requiring Kennedy to pray out of students' sight, the only way to ensure Kennedy's prayers remained "separate from any student activity" was to forbid students from joining. September 17 Letter, Dkt. # 64-8 at 3. This, however, was also unacceptable to Kennedy because it would have infringed on the rights of students.
Finally, Kennedy claims that the District retaliated against him for obtaining counsel and exercising his rights under the First Amendment. "To make out a prima facie case of retaliation, an employee must show that (1) he engaged in a protected activity; (2) his employer subjected him to an adverse employment action; and (3) a causal link exists between the protected activity and the adverse action." Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000). "If a plaintiff has asserted a prima facie retaliation claim, the burden shifts to the defendant to articulate a legitimate nondiscriminatory reason for its decision." Id. The plaintiff then must prove that the defendant's reason is mere pretext. Id.
As with Kennedy's other Title VII claims, the fact that his prayers on the 50-yard line violated the Establishment Clause is fatal. By unilaterally rejecting
While public schools do not have unfettered discretion to restrict an employee's religious speech, they do have the ability to prevent a coach from praying at the center of the football field immediately after games. The Court GRANTS the District's Motion for Summary Judgment and DENIES Kennedy's Motion.
IT IS SO ORDERED.
