(CN) – Noting that the Supreme Court doesn’t necessarily agree with a Ninth Circuit ruling against a high school football coach who prayed on the field, Justice Samuel Alito said Tuesday the issue is an important one but the specific case is not the right vehicle to address it.
Joseph Kennedy, a Christian, claims he lost his job as a football coach at Washington state’s Bremerton High School because he knelt and prayed on the football field’s 50-yard line after games, in front of students and parents.
He filed a lawsuit seeking an injunction ordering the public school district to reverse his suspension and reinstate him as a coach, and allow him to pray on the field immediately after school football games.
A federal judge ruled in favor of the school district, finding Kennedy was unlikely to prevail on his First Amendment retaliation claim because he was acting as a public employee and his suspension was justified by the district’s need to avoid violating the Establishment Clause. The district is diverse and includes students and families who practice Judaism, Islam, Buddhism, Hinduism and other religions, according to court records.
The Ninth Circuit affirmed in August 2017. It found that the former coach “took advantage of his position to press his particular views upon the impressionable and captive minds before him.”
“By kneeling and praying on the fifty-yard line immediately after games while in view of students and parents, Kennedy was sending a message about what he values as a coach, what the district considers appropriate behavior, and what students should believe, or how they ought to behave,” the appellate ruling states. “Because such demonstrative communication fell well within the scope of Kennedy’s professional obligations, the constitutional significance of Kennedy’s job responsibilities is plain—he spoke as a public employee, not as a private citizen, and his speech was therefore unprotected.”
Kennedy appealed to the U.S. Supreme Court last year, arguing that public school teachers and coaches do not “shed their First Amendment rights at the schoolhouse gate.”
On Tuesday, the nation’s highest court declined to take up the case.
Justice Alito – joined by Justices Clarence Thomas, Neil Gorsuch and Brett Kavanaugh – wrote in a separate concurrence that he agrees with not hearing this specific case, but said the “Ninth Circuit’s understanding of the free speech rights of public school teachers is troubling and may justify review in the future.”
“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,” he 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.” (Parentheses in original.)
Alito said neither the district court nor the Ninth Circuit made any clear finding about what Kennedy “was likely to be able to show regarding the reason or reasons for his loss of employment.”
“What is perhaps most troubling about 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,” he said. “I hope that this is not the message that the Ninth Circuit meant to convey, but its opinion can certainly be read that way.”