KEEPING FAITHFUL TO THE FACTS.

• Date: 22 September 2023
• Author: Mysyk, Antonia

CONTENTS
                INTRODUCTION
                I. FACTUAL AND PROCEDURAL HISTORY IN KENNEDY A. The Undisputed Facts in Kennedy B. The Procedural History 1. The Lower Court Granted Bremerton's Motion for Summary Judgment 2. The Supreme Court Completely Reversed the Lower Courts' Holdings 3. The Dissent Affirmed the Lower Courts' Conclusions C. The Factual Disputes Between the Majority and the Dissent 1. Student Coercion a. Majority b. Dissent c. Factual Importance 2. Media Outreach and Impact a. Majority b. Dissent c. Factual Importance 3. Postgame Supervision Duties a. Majority b. Dissent c. Factual Importance 4. Relevant Timeframes a. Majority b. Dissent c. Factual Importance 5. Bremerton's Accommodations a. Majority b. Dissent c. Factual Importance 6. The October 16 th Game a. Majority b. Dissent c. Factual Importance
                II. APPELLATE REVIEW A. The Standards of Review 1. Levels of Scrutiny 2. Standards of Review for Preliminary Pleadings a. Motions to Dismiss b. Motions for Summary Judgment B. Understanding the Summary Judgment Standard
                III. Understanding Kennedy A. The Court Ignores the Rule 56 Standard B. The Trial Skeptics Theory: Kennedy as an Expansion of Judicial Fact-Finding 1. The Shift of Fact-Finding Power a. Motions to Dismiss b. Motions for Summary Judgment 2. The Shift Continues Through Scott v. Harris a. The Factual Dispute in Harris b. Summary Judgment Analysis 3. Explaining Kennedy
                IV. THE CONSEQUENCES OF KENNEDY
                CONCLUSION
                

INTRODUCTION

On June 27, 2022, the Supreme Court released Kennedy v. Bremerton School District (1) and made the American public its jury. The majority and dissent in Kennedy presented conflicting factual narratives about the suspension of a public high school football coach for praying midfield after games. From the majority's perspective, Coach Kennedy's prayer was quiet and personal--well within his First Amendment rights. In the dissent's eyes, however, the majority twisted the facts to hide how disruptive and coercive Coach Kennedy's religious activities really were. (2) And the Court asked America to decide which narrative to believe.

The American public read the opinions. Based on each side, the reader saw Kennedy through a completely different factual lens. Through each factual lens, the reader could reach a completely different conclusion on how the Court should have decided Kennedy. (3)

Factual framing--highlighting facts that support your argument while downplaying facts that weigh against it--is a common legal writing technique. (4) So, one can expect contrasts in the factual framings of majority and dissenting opinions, even from the Supreme Court. But in Kennedy, the justices seem to address different facts altogether. This is concerning. And for the American public, it caused confusion and outrage. (5) By the time a case reaches the Supreme Court, one would hope and expect that the justices make their decision on the same set of facts. This is especially true when the Court grants summary judgment--which can only occur if a case contains no dispute of material fact. (6) Yet in Kennedy, the justices' main dispute did not involve legal standards and their application, but rather the facts themselves.

Kennedy has left legal scholars and the American public alike with the same question--how did such a large factual discrepancy occur at the Supreme Court level? (7) This Note provides an explanation. The factual dispute within Kennedy occurred because instead of remanding the case for a jury to sort out the material factual disputes, as required under Civil Rule of Procedure 56, the Supreme Court ignored this established procedure and the controlling precedents. (8) Instead, the majority and dissent kept the fact-finding power for themselves, resolving the factual dispute in a manner that supported the legal conclusion each side wanted to make. (9) The decision in Kennedy to ignore the Rule 56 summary judgment standard is yet another step in the shift of courts taking and handing factual-inference power from jurors to judges. (10) Kennedy is a symptom of the underlying changes within the American judiciary that have culminated over the last two decades. (11) To clarify, this Note does not address which justice's opinion in Kennedy is right, how the Court should resolve First Amendment challenges, or what actions of school officials violate the Establishment Clause. Rather, this Note only addresses Kennedy's factual discrepancies, explains why they occurred, and discusses their consequences.

This Note unfolds in three parts. Part I uncovers the Kennedy decision--the undisputed facts, case history, and material factual disputes between the majority and dissent. Part II explores the different standards and procedures that govern appellate fact-finding, especially focusing on summary judgment review. Part III provides an explanation for what caused the factual discrepancies in Kennedy. Finally, Part IV concludes with the legal and societal consequences of Kennedy.

I. FACTUAL AND PROCEDURAL HISTORY IN KENNEDY

To understand whether the Court should have decided Kennedy on summary judgment, it is important to review the decision's background. Part I of this Note gives context to the Kennedy decision by providing (1) the undisputed facts in Kennedy, (2) Kennedy's procedural history, and (3) an analysis of the material factual disputes between Kennedy's majority and dissenting opinions.

A. The Undisputed Facts in Kennedy

First, it is necessary to understand the baseline, undisputed fact pattern within Kennedy to later evaluate the disputed facts. (12) In 2008, Joseph Kennedy started work as a football coach at Bremerton High School. (13) Coach Kennedy was a devout Christian. As part of his sincerely held religious beliefs, he always offered a postgame prayer of thanksgiving at the 50-yard line. (14) At first, he prayed alone. But the prayer evolved over the seasons. Eventually, a few players asked to join Kennedy in prayer, which he allowed. (15) But the handful of players soon increased to include most of the team. Kennedy eventually began accompanying the prayers with religious motivational speeches. Separately, he sometimes conducted team locker-room prayer before and after games. (16) For seven years, Kennedy coached without Bremerton raising any issue about his religious practices. This changed in 2015. (17)

That year, an opposing team's coach complimented BHS's principal for allowing Kennedy's postgame prayer. This apparently was the first time Bremerton learned of Kennedy's religious practices. (18) Bremerton investigated to ensure Kennedy's religious activities did not violate Bremerton's handbook policies, which sought to prevent Establishment Clause (19) violations by forbidding school employees from encouraging or discouraging religious activities. Some of the players' parents also reached out to Bremerton claiming their sons had felt forced to join Kennedy's prayers to avoid team separation. (20)

On September 17, 2015, Bremerton sent Coach Kennedy a letter explaining that his religiously inspired speeches and locker-room prayer likely violated Bremerton's handbook policies. The letter asked Kennedy to desist from encouraging, supervising, or partaking in any demonstrative religious activity with students. (21)

At first, Kennedy followed the directive. During the following September 18th game, he ceased all locker-room prayer, omitted religious references in his postgame speech, and originally left the field without conducting any postgame prayer. But on the drive home, Kennedy felt he was breaking his "commitment to God" by desisting from his postgame midfield prayer, so he returned to the stadium and prayed after everyone left. (22) On October 14th, Kennedy's counsel sent Bremerton a letter requesting a religious accommodation to allow Kennedy to silently pray postgame at the 50-yard line without having to flee if students were near. Bremerton did not approve this accommodation. (23)

During the following game on October 16th, Kennedy ignored Bremerton's directive, praying midfield postgame while BHS players were partaking in other activities. Kennedy began the prayer alone. But, soon after, players and coaches from the opposing team and members of the public came onto the field and joined the midfield prayer. (24) After this event, Bremerton increased security measures and issued a statement forbidding public access on its football field. (25)

On October 23rd, Bremerton issued Kennedy another letter. It warned Kennedy that his religious conduct during the October 16th game was inconsistent with Bremerton's coaching policies because the prayer created Establishment Clause concerns. (26) During that night's game on October 23rd, Kennedy once again ignored Bremerton's letter and prayed postgame at the 50-yard line--this time alone. During the following October 26th game, Kennedy repeated this act. Although he started the prayer alone, members of the public once again came onto the field and prayed with him. (27)

Based on Coach Kennedy's actions during the October 16th, 23rd, and 26th games, Bremerton placed Kennedy on paid administrative leave and barred him from coaching the rest of the season. On his 2015 coaching evaluation, Kennedy received low marks due to his lack of cooperation with Bremerton's policies and his failure to supervise students postgame. Kennedy did not coach the following season. (28)

B. The Procedural History

Second, examining the procedural history and reasoning behind the Court's decision is necessary to determine the materiality of the factual disputes in Kennedy.

1. The Lower Court Granted Bremerton's Motion for Summary Judgment

Coach Kennedy sued Bremerton in federal court for violating his First Amendment rights under the Free Speech and Free Exercise Clauses. (29) After the court denied Kennedy's motion for a preliminary injunction, (30) both parties filed cross-motions for summary judgment. The district...