Public Sector Case Notes
| Publication year | 2018 |
| Author | By Scott Tiedemann and Dalisai Nisperos |
By Scott Tiedemann and Dalisai Nisperos
Scott Tiedemann is the Managing Partner of Liebert Cassidy Whitmore, California's largest public sector labor, employment and education law firm. He is the author of the CPER Pocket Guide to the Firefighters Procedural Bill of Rights, as well as a chapter on that topic in California Public Sector Employment Law. Dalisai Nisperos is an Associate in the San Francisco Office of Liebert Cassidy Whitmore. She represents and advises public sector agencies in all aspects of labor, employment, and education law. Ms. Nisperos earned her J.D. from the University of Pennsylvania Law School and her B.A. from the University of California, Berkeley.
Kennedy v. Bremerton Sch. Dist., 869 F.3d 813 (9th Cir. 2017)
The Ninth Circuit Court of Appeals found that a high school football coach did not have a First Amendment right to kneel in prayer at the fifty-yard line immediately after school football games, in view of students and parents, while he wore the school logo.
Joseph Kennedy coached at a Seattle, Washington High School. For several years he knelt in prayer on the football field, as described above. Some students joined Kennedy for a period of time, but they tended not to pray when he did not. The Bremerton School District (District) directed him to refrain from his public prayer practice, but allowed him to pray on the fifty-yard line, after the stadium was empty and students had been allowed to leave. Defying the District's direction, Kennedy continued his prayer practice in view of students and sued, claiming that the District's restrictions were retaliation for exercising his right to free speech under the First Amendment.
The Ninth Circuit determined that the District did not violate Kennedy's First Amendment rights. To prevail on his retaliation claim, Kennedy was required to show that during his prayer activities "(1) he spoke on a matter of public concern, (2) he spoke as a private citizen rather than a public employee, and (3) the relevant speech was a substantial or motivating factor in the adverse employment action."
The key question for the court was the second element: whether Kennedy's speech—his post-game prayer practice—owed its existence to, or was done as part of his job responsibilities. If so, he was not speaking as a private citizen but as a public employee, and his speech would not be protected by the First Amendment. The court noted that this question requires consideration of the scope and content of the job duties an employee is actually expected to perform (which may differ from duties listed in a job description). The answer does not necessarily turn on whether the speech takes place in the workplace or publicly. Rather, courts consider whether the speech at issue owes its existence to the employee's work position, or whether the employee speaks as any ordinary citizen would speak.
Kennedy's job responsibilities as a football coach required him "to be a coach, mentor and role model" for student athletes, adopt "sportsmanlike conduct at all times," and acknowledge that he was "constantly being observed by others." Further, he was required to "to create good athletes," but also "good human beings." Kennedy's duties also required him to obey the school's Rules of Conduct while he was in the presence of players and the general public. Existing policy prohibited school staff from either encouraging or discouraging students from engaging in prayer.
The court found that Kennedy's professional duties required him to model good behavior through his own conduct. In acknowledging that he was constantly being observed, Kennedy understood that his communication with others, including through his actions, fell within the scope of his professional duties as the high school's coach. As a coach, he was expected to set a good example, while working in an official capacity in the presence of students, and members of the public, including at football games.
The court was particularly persuaded by the fact that Kennedy's position as coach gave him special access to the field immediately following football games. Because Kennedy was fulfilling his professional obligations to the school, as its coach, he was speaking as a public employee, not as an ordinary private citizen, when he prayed on the fifty-yard line. Thus, the "District was permitted to...
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