In Kennedy v. Bremerton School District, published March 18, 2021, the 9th Circuit Court of Appeals affirmed a district court's grant of summary judgment to the defendant school district. The plaintiff, assistant coach' to a district high school's varsity football team and head coach to its junior varsity team, had religious beliefs that required him to pray on the field immediately after the game. Over time, students joined him; at least one felt compelled to participate to avoid having his playing time reduced. The district informed the plaintiff of its policy concerning religious related activities, which required that school staff neither encourage nor discourage student prayer. The plaintiff initially complied by giving secular motivational talks. He then informed the district that he would resume praying on the fifty-yard line immediately after the conclusion of the game. The plaintiff and his representatives appeared and announced on media what he would do. At the game, the plaintiff prayed audibly, and a stampede of persons from the audience joined him. The plaintiff then made numerous media appearances to spread the word of what had happened. The district offered to allow the plaintiff to pray in a private location, or to pray on the field after the stands emptied. The plaintiff maintained that he would continue. The district placed the plaintiff on administrative leave. After they did so, members of the staff felt repercussions from the public because of the attention given to the plaintiff's acts. At the end of his annual contact, the district recommended the plaintiff not be rehired. The plaintiff alleged that his rights under the First Amendment and Title VII were violated.
The 9th Circuit first analyzed the plaintiff's free speech claim. It determined, under the Pickering test, that he had spoken as a public employee, since his job involved communicating on the field. Further, even if the plaintiff had spoken as a private citizen, the district's treatment of him differently from other members of the public was adequately justified. An objective observer, familiar with the history of the plaintiff's on-field religious activity coupled with his efforts to generate publicity to gain approval of those activities, would view the district's allowance of that activity as stamped with the district's approval. Because an objective observer would view that as an endorsement of the plaintiff's faith, the district's interest in avoiding an Establishment Clause violation justified its narrowly-tailored conduct in response, including offering the plaintiff an accommodation process the plaintiff declined to cooperate with. As to the plaintiff's Title VII claims, the plaintiff failed to establish a prima facie claim of religious discrimination, because similarly-situated employees outside his protected class were not treated more favorably. While the plaintiff established a prima facie claim for failure to accommodate religious beliefs, the district carried its burden of showing an attempt to accommodate the plaintiff.
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