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The Supreme Court Declines to Consider Public Employee’s First Amendment Appeal

This week the Supreme Court declined to hear a case challenging whether public school teachers and coaches maintain any First Amendment rights to freedom of speech and religion when they’re in the presence of students.  However, the Court left the door open for further consideration as explained below. In fact, Justice Alito writing for the Court went so far as to describe the Appellate Court’s decision as “troubling.”

The underlying case was brought by Joseph Kennedy, a football coach in Washington State.  Kennedy was suspended and then subsequently terminated for taking a knee midfield and praying to himself after games.

Initially, Kennedy asked the school for a religious accommodation under Title VII of the Civil Rights Laws that prohibit discrimination on the basis of religion.  The school denied Kennedy’s request.

So Kennedy sued the school for violating his right to free speech and exercise of religion.  The school took the position that Kennedy’s actions were not protected by the Constitution’s Establishment Clause because a reasonable observer would think the school endorsed his religious beliefs.

The 9th Circuit agreed with the school and specified that “when Kennedy kneeled and prayed on the fifty-yard line immediately after games while in view of students and parents, he spoke as a public employee, not as a private citizen, and his speech therefore was constitutionally unprotected.”

Justice Alito, writing on behalf of the Court and joined by Justices Thomas, Gorsuch and Kavanaugh, explained that the Court could not consider the underlying issue (did the school violate Kennedy’s right to free speech and exercise of religion) until the lower court determines whether or not Kennedy was terminated for praying during his own time or for praying while he was still on duty.  The Court indicated that if Kennedy left his team unsupervised to pray, he most likely would not avail on his free speech claim.

This is far from over.  We will have to wait and see how the factual issues identified by the Court are resolved.  However, Justice Alito’s comments suggest that the four conservative Justices may be inclined to side with the football coach if he was terminated for praying after his coaching duties concluded.