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A high school football coach doesn’t have a First Amendment right to pray on the field immediately after games, the U.S. Court of Appeals for the Ninth Circuit held Aug. 23 ( Kennedy v. Bremerton Sch. Dist. , 2017 BL 295404, 9th Cir., No. 16-35801, 8/23/17 ).
Joseph A. Kennedy spoke not as a private citizen but as a public employee when he prayed in sight of students and parents in Washington state, the court said in a decision by Judge Milan D. Smith Jr., joined by Judges Dorothy W. Nelson and Morgan Christen.
He therefore wasn’t entitled to a preliminary injunction allowing him to continue praying after games, the court held.
The Bremerton School District suspended Kennedy, “a practicing Christian,” after he refused to stop praying in the middle of the field following games.
Kennedy spoke as a public employee during the prayers because he “was sending a message” about “what students should believe,” the court said.
Communicating with students and spectators was part of his normal job responsibilities, the court said.
The school therefore had a right to order Kennedy “not to speak in the manner that he did,” the court held.
The district’s “actions were also justified to avoid violating the Establishment Clause,” Smith said in a special concurrence.
Gibson Dunn & Crutcher LLP argued for Kennedy. Tierney & Blakney P.C. argued for the district.
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