BREMERTON — Former Bremerton High assistant football coach Joe Kennedy has appealed a court decision denying his request to be given back his job.
Kennedy was placed on paid leave in 2015 when he refused an order from administrators at the Bremerton School District that he cease praying on the football field following games. His contract was not renewed in 2016, and he has sued the district.
The widely-publicized case threw the district — and Bremerton — into the national spotlight and set off a firestorm of conflicting commentary on social media.
A three-judge panel of the Ninth Circuit Court of Appeals on Aug. 23 declined Kennedy’s request for a legal injunction that would have required the district to reinstate him to the position while his lawsuit made its way through the courts.
On Wednesday, Kennedy’s lawyers made a legal request for a hearing in front of the full circuit (called an “en banc” review) in the appeals court, which covers the western United States, Alaska and Hawaii, and the U.S. territories of Guam and the Northern Marianas Islands.
“The Bremerton School District is aware that Mr. Kennedy is seeking a rehearing on the preliminary injunction issue before the full Ninth Circuit Court of Appeals,” district spokeswoman Patty Glaser said Thursday. “The district will respond to that request in due course and looks forward to the court’s determination.”
The appeal argues that the panel’s ruling establishes “a sweeping and unconstitutional rule: Public school teachers and coaches have no First Amendment rights whenever they are ‘in view of students.’” Kennedy’s attorneys say that denying him the right to “a brief, silent prayer” on the field after games conclude threatens other forms of religious expression by public employees such as bowing one’s head in prayer before a meal, or wearing a yarmulke or hijab, or making the sign of the cross, or “wearing a ‘Love Conquers Hate’ lapel pin.”
Bremerton School District does not prohibit employees from wearing religious garb.
Among Kennedy’s other legal options: He could have asked the three-judge Ninth Circuit panel who made the Aug. 23 ruling in Seattle to revisit its decision. But the panel was emphatic in upholding an earlier U.S. District Court decision denying Kennedy’s request. The panel agreed with the lower court — and the district — regarding questions of religious liberty and free speech raised by the case.
The district says Kennedy violated its policy upholding the separation of church and state. Kennedy and his legal team argue that the district violated his constitutional right to freedom of expression and freedom of religion.
In its ruling, the Ninth Circuit panel wrote that Kennedy “spoke as a public employee, not as a private citizen when he kneeled and prayed on the fifty-yard line immediately after games in school-logoed attire while in view of students and parents.”
Judges from the Ninth Circuit Court of Appeals now will decide whether Kennedy’s case merits review by the full circuit. The number of cases accepted for an en banc review is small compared with the number of appeals filed. In 2016, there were 810 en banc petitions in the Ninth Circuit Court of Appeals. Out of the 810 cases, 19 were granted an en banc hearing.
“Clearly, getting an appeals court to rehear a case en banc is rare, and it’s not easy if you’re the person seeking en banc review,” said Michael Berry, a lead attorney on the case with First Liberty Institute in Plano, Texas. “We’re well aware of that. We believe in the strength of our case.”
Another legal option for Kennedy would have been an appeal to the U.S. Supreme Court. That option remains open should the Ninth Circuit Court of Appeals turn down his request.