Supreme Court denies appeal in football prayer case

The Supreme Court has turned down a request from a former Washington state public high school football coach over his right to lead prayers on the field after games. But four Justices said the question could be addressed by the Court in the future.

At least four Justices needed to vote in private conference to hear arguments in Kennedy v. Bremerton School District. Justice Samuel Alito, joined by Justices Clarence Thomas, Neil Gorsuch and Brett Kavanaugh, said the time wasn’t right to review the case because “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.”

Alito said the District Court and the Ninth Circuit Appeals Court didn’t define why former Bremerton High School assistant coach Joseph Kennedy was placed on paid administrative leave after leading voluntary prayer on a publicly owned football field.

“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. For that reason, review of petitioner’s free speech claim is not warranted at this time,” Alito concluded.

But Alito also said the Ninth Circuit’s reasoning in the case could eventually come before the Supreme Court. “The Ninth Circuit’s understanding of the free speech rights of public school teachers is troubling and may justify review in the future,” Alito warned.

The question presented to the Court was “whether public school teachers and coaches retain any First Amendment rights when at work and ‘in the general presence of’ students.”

In August 2017, the three-judge Ninth Circuit panel upheld the lower court’s decision against Kennedy, who sought an injunction against the school district seeking his reinstatement as a coach and the resumption of his prayer practice after his reinstatement.

The appeals court decision stated that Kennedy didn’t apply for a coaching position for the 2016 season after the team’s head coach left. The school athletic director also recommended that Kennedy not be rehired, said the court documents.

Kennedy’s attorneys filed suit in the Western District in August 2016. He claimed his rights under the First Amendment and Title VII of the Civil Rights Act of 1964 were violated.

Scott Bomboy is the editor in chief of the National Constitution Center.