FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSEPH A. KENNEDY,

Plaintiff-Appellant,

v.

BREMERTON SCHOOL DISTRICT,

Defendant-Appellee.

No. 20-35222

D.C. No.

3:16-cv-05694-RBL

OPINION

Appeal from the United States District Court

for the Western District of Washington

Ronald B. Leighton, District Judge, Presiding

Argued and Submitted January 25, 2021

Pasadena, California

Filed March 18, 2021

Before: DOROTHY W. NELSON, MILAN D. SMITH, 

JR., and MORGAN CHRISTEN, Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.;

Concurrence by Judge Christen
2 KENNEDY V. BREMERTON SCHOOL DISTRICT

SUMMARY*

Civil Rights

The panel affirmed the district court’s summary 

judgment in favor of Bremerton School District in an action 

brought by Joseph Kennedy, the District’s former high 

school football coach, who alleged that his rights were 

violated under the First Amendment and Title VII of the 

Civil Rights Act of 1964 when the District prohibited him 

from praying at the conclusion of football games, in the 

center of the field, potentially surrounded by Bremerton 

students, and members of the community. 

The panel held that the record before it and binding 

Supreme Court precedent compelled the conclusion that the 

District would have violated the Establishment Clause by 

allowing Kennedy to engage in the religious activity he 

sought. Kennedy’s attempts to draw nationwide attention to 

his challenge to the District showed that he was not engaging 

in private prayer. Instead, he was engaging in public speech 

of an overtly religious nature while performing his job 

duties. The District tried to accommodate Kennedy, but that 

was spurned by Kennedy insisting that he be allowed to pray 

immediately after the conclusion of each game, potentially 

surrounded by students. The panel held that the district court 

correctly granted summary judgment to the District on 

Kennedy’s free speech and free exercise claims.

* This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
KENNEDY V. BREMERTON SCHOOL DISTRICT 3

The panel held that Kennedy’s Title VII claims alleging 

failure to rehire, disparate treatment, failure to accommodate 

and retaliation also failed. The panel held that the record 

reflected that Kennedy did not show that he was adequately 

performing his job; he could not make out a prima facie case 

of disparate treatment; the District could not reasonably 

accommodate Kennedy’s practice without undue hardship; 

and the District had a legitimate nondiscriminatory reason 

for its adverse employment actions.

Concurring, Judge Christen, joined by Judge D.W. 

Nelson, stated that she concurred in the majority’s decision 

affirming the district court’s order granting summary 

judgment, and dismissing Kennedy’s Free Speech and Free 

Exercise claims. Judge Christen wrote separately to 

underscore why, in her view, the outcome of this appeal was 

entirely driven by the circumstances from which Kennedy’s 

claims arose.

COUNSEL

Devin S. Anderson (argued), Emily Merki Long, and 

Elizabeth Hedges, Kirkland & Ellis LLP, Washington, D.C.; 

Hiram Sasser, Michael Berry and Stephanie N. Taub, First 

Liberty Institute, Plano, Texas; Anthony J. Ferate, Spencer 

Fane LLP, Oklahoma City, Oklahoma; Jeffrey Paul 

Helsdon, Helsdon Law Firm PLLC, Tacoma, Washington;

for Plaintiff-Appellant.

Michael B. Tierney (argued) and Paul Correa, Tierney & 

Correa P.C., Mercer Island, Washington, for DefendantAppellee.
4 KENNEDY V. BREMERTON SCHOOL DISTRICT

Richard B. Katsee (argued) and Alexander Gouzoules, 

Americans United for Separation of Church and State, 

Washington, D.C., for Amici Curiae Religious and Civil 

Rights Organizations.

Francisco M. Negrón Jr., Chief Legal Officer, National 

School Boards Association, Alexandria, Virginia; Sloan R. 

Simmons and Courtney de Groof, Lozano Smith, 

Sacramento, California; for Amici Curiae National School 

Boards Association, Association of Alaska School Boards, 

Arizona School Boards Association, California School 

Arizona School Boards Association, California School 

Boards Association, Nevada Association of School Boards, 

and Washington State School Directors’ Association.

Kevin G. Clarkson, Attorney General; Katherine Demarest, 

Senior Assistant Attorney General; Alaska Department of 

Law, Anchorage, Alaska; Ken Paxton, Attorney General; 

Jeffrey C. Mateer, First Assistant Attorney General; Ryan L. 

Bangert, Deputy First Assistant Attorney General; Kyle D. 

Hawkins, Solicitor General; Kyle D. Highful and Natalie D. 

Thompson, Assistant Solicitors General; Office of the 

Attorney General, Austin, Texas; for Amici Curiae States of 

Alaska, Texas, Alabama, Arizona, Arkansas, Georgia, 

Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, 

Montana, Nebraska, Ohio, Oklahoma, South Carolina, South 

Dakota, Tennessee, Utah, and West Virginia.
KENNEDY V. BREMERTON SCHOOL DISTRICT 5

OPINION

M. SMITH, Circuit Judge:

This case requires us to decide whether Bremerton 

School District (BSD) would have violated the 

Establishment Clause by allowing Joseph Kennedy, a high 

school football coach, to engage in demonstrative religious 

conduct immediately after football games, while kneeling on 

the field’s fifty-yard line, surrounded by many of his players, 

and occasionally members of the community. To answer 

this question, we must examine whether a reasonable 

observer, aware of the history of Kennedy’s religious 

activity, and his solicitation of community and national 

support for his actions, would perceive BSD’s allowance of 

Kennedy’s conduct as an endorsement of religion. Although 

there are numerous close cases chronicled in the Supreme 

Court’s and our current Establishment Clause caselaw, this 

case is not one of them. When BSD’s superintendent 

became aware of Kennedy’s religious observances on the 

50-yard line with players immediately following a game, he 

wrote Kennedy informing him what he must avoid doing in 

order to protect BSD from an Establishment Clause claim. 

In response, Kennedy determined he would “fight” his 

employer by seeking support for his position in local and 

national television and print media, in addition to seeking 

support on social media. In a letter from his counsel, he 

informed BSD that he would not comply with its 

instructions, and that he intended to continue engaging in the 

kind of mid-field religious exercises he had been told not to 

perform. Answering Kennedy’s solicitation, scores of 

parents, a state representative, and students from both teams 

rushed to mid-field after a game to support Kennedy against 

BSD’s efforts to avoid violating the Constitution. All of this 
6 KENNEDY V. BREMERTON SCHOOL DISTRICT

was memorialized and broadcast by local and national TV 

stations and print media.

District personnel received hateful communications 

from some members of the public, and some BSD personnel 

felt physically threatened. When it evaluated BSD’s actions 

concerning Kennedy, the district court held that seeking to 

avoid an Establishment Clause claim was the “sole reason” 

BSD limited Kennedy’s public actions as it did. We hold 

that BSD’s allowance of Kennedy’s conduct would violate 

the Establishment Clause; consequently, BSD’s efforts to 

prevent the conduct did not violate Kennedy’s constitutional 

rights, nor his rights under Title VII. We affirm the district 

court’s grant of summary judgment to BSD on all claims.

FACTUAL AND PROCEDURAL BACKGROUND

We previously affirmed the district court’s denial of 

Kennedy’s request for a preliminary injunction. Kennedy v. 

Bremerton Sch. Dist. (Kennedy I), 869 F.3d 813 (9th Cir. 

2017). Although our opinion in Kennedy I set forth the facts 

as they were known at the time, we nevertheless include the 

relevant facts here—both those in the record at the time of 

Kennedy I, and those added to the record since.

BSD employed Kennedy as a football coach at 

Bremerton High School (BHS) from 2008 to 2015. Kennedy 

was an assistant coach for the varsity football team and the 

head coach for the junior varsity football team. Kennedy’s 

contract expired at the end of each football season. The 

contract provided that BSD “entrusted” Kennedy “to be a 

coach, mentor and role model for the student athletes.” 

Kennedy further acknowledged that, as a football coach, he 

was “constantly being observed by others.”
KENNEDY V. BREMERTON SCHOOL DISTRICT 7

Kennedy is a practicing Christian. Kennedy’s religious 

beliefs required him to “give thanks through prayer, at the 

end of each game, for what the players had accomplished 

and for the opportunity to be a part of their lives through 

football.” Specifically, “[a]fter the game [was] over, and 

after the players and coaches from both teams [ ] met to 

shake hands at midfield,” Kennedy felt called to kneel at the 

50-yard line and offer a brief, quiet prayer of thanksgiving 

for player safety, sportsmanship, and spirited competition.” 

Kennedy’s prayer usually lasted about thirty seconds. 

Kennedy’s religious beliefs required that his prayer occur on 

the field where the game was played, immediately after the 

game concluded. This necessarily meant that spectators—

students, parents, and community members—would observe 

Kennedy’s religious conduct.

Kennedy began performing these prayers when he first 

started working at BHS. At the outset, he prayed alone. 

Several games into his first season, however, a group of BHS 

players asked Kennedy whether they could join him. “This 

is a free country,” Kennedy replied, “You can do what you 

want.” Hearing that response, the students joined him. Over 

time, the group grew to include the majority of the team. The 

BHS players sometimes invited the opposing team to join. 

BHS principal John Polm testified that he later became 

aware of a parent’s complaint that his son “felt compelled to 

participate” in Kennedy’s religious activity, even though he 

was an atheist, because “he felt he wouldn’t get to play as 

much if he didn’t participate.”
8 KENNEDY V. BREMERTON SCHOOL DISTRICT

Eventually, Kennedy’s religious practice evolved. He 

began giving short motivational speeches at midfield after 

the games. Students, coaches, and other attendees from both 

teams were invited to participate. During the speeches, the 

participants kneeled around Kennedy. He then raised a 

helmet from each team and delivered a message containing 

religious content. Kennedy subsequently acknowledged that 

these motivational speeches likely constituted prayers.

BSD first learned that Kennedy was praying on the field 

in September 2015, when the opposing team’s coach told 

BHS principal John Polm that Kennedy had asked his team 

to join him in prayer on the field. He also noted that “he 

thought it was pretty cool how [BSD] would allow” 

Kennedy’s religious activity. After learning of the incident, 

Athletic Director Barton spoke with Kennedy and expressed 

disapproval when Kennedy conducted a prayer on the field. 

In response, Kennedy posted on Facebook, “I think I just 

might have been fired for praying.” Shortly thereafter, BSD 

“was flooded with thousands of emails, letters, and phone 

calls from around the country” regarding the conflict over 

Kennedy’s prayer, “many of which were hateful or 

threatening.”

BSD’s discovery prompted an inquiry into whether 

Kennedy was complying with the school board’s policy on 

“Religious-Related Activities and Practices.” Pursuant to 

that policy, “[a]s a matter of individual liberty, a student may 

of his/her own volition engage in private, non-disruptive

prayer at any time not in conflict with learning activities.” 

In addition, “[s]chool staff shall neither encourage nor 

discourage a student from engaging in non-disruptive oral or 

silent prayer or any other form of devotional activity.”
KENNEDY V. BREMERTON SCHOOL DISTRICT 9

The District’s investigation revealed that coaching staff 

had received little training regarding the District’s policy. 

Accordingly, BSD Superintendent Aaron Leavell sent 

Kennedy a letter on September 17, 2015, to clarify the 

District’s prospective expectations.

Leavell advised Kennedy that he could continue to give 

inspirational talks but “[t]hey must remain entirely secular 

in nature, so as to avoid alienation of any team member.” He 

further advised that “[s]tudent religious activity must be 

entirely and genuinely student-initiated, and may not be 

suggested, encouraged (or discouraged), or supervised by 

any District staff.” Leavell further counseled Kennedy that 

“[i]f students engage in religious activity, school staff may 

not take any action likely to be perceived by a reasonable 

observer, who is aware of the history and context of such 

activity at BHS, as endorsement of that activity.” Lastly, 

Leavell stressed that Kennedy was

free to engage in religious activity, including 

prayer, so long as it does not interfere with 

job responsibilities. Such activity must be 

physically separate from any student activity, 

and students may not be allowed to join such 

activity. In order to avoid the perception of 

endorsement discussed above, such activity 

should either be non-demonstrative (i.e., not 

outwardly discernible as religious activity) if 

students are also engaged in religious 

conduct, or it should occur while students are 

not engaging in such conduct.

In response, Kennedy temporarily stopped praying on 

the field after football games. Instead, after the September 

18th game, Kennedy gave a short motivational speech “that 
10 KENNEDY V. BREMERTON SCHOOL DISTRICT

included no mention of religion or faith.” According to 

Kennedy, he began to drive home that night but turned 

around to go back to the field because he “felt dirty,” 

knowing that, by not praying at the conclusion of the game, 

he had broken his commitment to God. Back at the field, 

Kennedy waited ten to fifteen minutes until “everyone else 

had left the stadium” so that he could have “a moment alone 

with God” to pray at the fifty-yard line.

BSD received no further reports of Kennedy praying on 

the field after games, and BSD officials believed that 

Kennedy was complying with its directive that allowed his 

religious activity, so long as he avoided “the perception of 

endorsement.” According to Kennedy’s averment in his 

deposition, however (and contrary to the allegations he 

raised in his EEOC complaint), he prayed directly after every 

game except the one on September 18.

Kennedy’s increasingly direct challenge to the BSD 

escalated when he wrote BSD through his lawyer on October 

14, 2015. The letter announced that Kennedy would resume 

praying on the fifty-yard line immediately after the 

conclusion of the October 16, 2015 game. Kennedy testified 

in his deposition that he intended the October 14 letter to 

communicate to the district that he “wasn’t going to stop 

[his] prayer because there was [sic] kids around [him].” In 

other words, Kennedy was planning to pray on the fifty-yard 

line immediately after the game, and he would allow 

students to join him in that religious activity if they wished 

to do so. The lawyer’s letter also demanded that BSD 

rescind the directive in its September 17 letter that Kennedy 

cease his post-game prayers at the fifty-yard line 

immediately after the game.

Kennedy’s intention to pray on the field following the 

October 16 game was widely publicized through Kennedy 
KENNEDY V. BREMERTON SCHOOL DISTRICT 11

and his representatives’ “numerous appearances and 

announcements [on] various forms of media.” For example, 

the Seattle Times published an article on October 14 (the 

same day as the lawyer’s letter was sent to BSD), entitled 

“Bremerton football coach vows to pray after game despite 

district order. A Bremerton High School football coach said 

he will pray at the 50-yard line after Friday’s homecoming 

game, disobeying the school district’s orders and placing his 

job at risk.” The Seattle Times has the twenty-third largest 

circulation of any newspaper in the country, with an average 

Sunday circulation of 364,454. See Circulation numbers for 

the 25 largest newspapers, Seattle Times (May 1, 2012), 

https://bit.ly/2OGgYX5.

In an attempt to secure the field from public access, BSD 

“made arrangements with the Bremerton Police Department 

for security, had signs made and posted, had ‘robo calls’ 

made to District parents, and otherwise put the word out to 

the public that there would be no access to the field.” A 

Satanist religious group contacted BSD in advance of the 

game to notify them that “it intended to conduct ceremonies 

on the field after football games if others were allowed to.”

On the day of the game, the District had not yet 

responded to Kennedy’s letter. Kennedy nonetheless 

proceeded as he indicated he would. The Satanist group was 

present at the game, but “they did not enter the stands or go 

on to the field after learning that the field would be secured.” 

But Kennedy had access to the field by virtue of his position 

as a public-school employee. Once the final whistle blew, 

Kennedy knelt on the fifty-yard line, bowed his head, closed 

his eyes, “and prayed a brief, silent prayer.” According to 

Kennedy, while he was kneeling with his eyes closed, 

“coaches and players from the opposing team, as well as 

members of the general public and media, spontaneously 
12 KENNEDY V. BREMERTON SCHOOL DISTRICT

joined [him] on the field and knelt beside [him].” Kennedy’s 

claim that the large gathering around him of coaches, 

players, a state elected official, and other members of the 

public who had been made aware of Kennedy’s intentions 

because of the significant amount of publicity advertising 

what Kennedy was about to do, was “spontaneous” is selfevidently inaccurate. Moreover, Kennedy’s counsel 

acknowledged in his October 14, 2015 letter that Kennedy’s 

prayers were “verbal” and “audible,” flatly contradicting 

Kennedy’s own recounting. BSD stated that this 

demonstration of support for Kennedy involved “people 

jumping the fence” to access the field, and BSD received 

complaints from parents of students who had been knocked 

down in the stampede. Principal John Polm said that he “saw 

people fall[.]” Principal Polm testified that “when the public 

went out onto the field, we could not supervise effectively,” 

resulting in “an inability to keep kids safe.” A photo of this 

scene is in the record, and it depicts approximately twenty 

players in uniform kneeling around Kennedy with their eyes 

closed, a large group of what appear to be adults standing 

outside the ring of praying players, and several television 

cameras photographing the scene.

In the days after the game, similar pictures were 

“published in various media.” Kennedy also made 

numerous media appearances in connection with the October 

16 game, to, in his words, “spread[] the word of what was 

going on in Bremerton.” For example, on October 18, 2015, 

CNN featured an article entitled “Despite orders, 

Washington HS coach prays on field after game.”

On October 23, 2015, BSD sent Kennedy a letter 

explaining that his conduct at the October 16 game violated 

BSD’s policy. BSD reiterated that it “can and will” 

accommodate “religious exercise that would not be 
KENNEDY V. BREMERTON SCHOOL DISTRICT 13

perceived as District endorsement, and which does not 

otherwise interfere with the performance of job duties.” To 

that end, it suggested that “a private location within the 

school building, athletic facility or press box could be made 

available to [Kennedy] for brief religious exercise before and 

after games.” Kennedy, of course, could also pray on the 

fifty-yard line after the stadium had emptied, as he did on 

September 18. Because the “[d]evelopment of 

accommodations is an interactive process,” the District 

invited Kennedy to offer his own suggestions. Kennedy and 

his attorneys’ only response in the record to BSD’s invitation 

was informing the media that the only acceptable outcome 

would be for BSD to permit Kennedy to pray on the fiftyyard line immediately after games.

Kennedy engaged in the same behavior in violation of 

BSD’s directive on October 23, 2015 and October 26, 2015. 

A photo taken after the October 23 game shows Kennedy 

kneeling alone on the field while players and other 

individuals mill about. A photo taken after the October 26 

game shows at least six individuals, some of whom appear 

to be school-age children, kneeling around Kennedy.

Following the October 26 game, BSD placed Kennedy 

on paid administrative leave. When Kennedy was on leave, 

and during the time he temporarily ceased performing onfield prayers, BHS players did not initiate their own postgame prayer.

During this time, other BSD employees testified that 

they suffered repercussions due to the “attention given to Mr. 

Kennedy’s issue and the way he chose to address the 

situation.” For example, Nathan Gillam, BHS’s head 

football coach, testified that during the controversy, “an 

adult who [he] had never seen before came up to [his] face 

and cursed [him] in a vile manner.” Gillam further stated 
14 KENNEDY V. BREMERTON SCHOOL DISTRICT

that he was concerned for his physical safety. He testified, 

“One of the assistant football coaches was also a police 

officer and, as we headed down to the field for one game, I 

obliquely asked him what he thought about whether we 

could be shot from the crowd.” As a result of these concerns, 

Gillam “decided that [he] would resign” from the coaching 

position he had held for eleven years.

After the season wound down, BSD began its annual 

process of providing its coaches with performance reviews. 

Gillam recommended that Kennedy not be rehired because 

Kennedy “failed to follow district policy,” “his actions 

demonstrated a lack of cooperation with administration,” he 

“contributed to negative relations between parents, students, 

community members, coaches and the school district,” and 

he “failed to supervise student-athletes after games due to 

his interactions with [the] media and [the] community.” 

Kennedy did not apply for a 2016 coaching position.

Kennedy commenced this action in the Western District 

of Washington on August 9, 2016. He asserted that his rights 

were violated under the First Amendment and Title VII of 

the Civil Rights Act of 1964. Kennedy moved for a 

preliminary injunction on August 24, 2016. The district 

court denied the preliminary injunction on September 19, 

2016. Kennedy appealed the denial, and our panel affirmed. 

Kennedy I, 869 F.3d at 813. Kennedy petitioned for a writ 

of certiorari; the Supreme Court denied the petition. 

Kennedy v. Bremerton Sch. Dist. (Kennedy II), 139 S. Ct. 

634 (2019) (mem.).

On remand, the parties cross-moved for summary 

judgment. The district court held that “the risk of 

constitutional liability associated with Kennedy’s religious 

conduct was the ‘sole reason’ the District ultimately 

suspended him.” The district court further held that BSD’s 
KENNEDY V. BREMERTON SCHOOL DISTRICT 15

actions were justified due to the risk of an Establishment 

Clause violation if BSD allowed Kennedy to continue with 

his religious conduct. Pursuant to this reasoning, the district 

court granted BSD’s motion for summary judgment on all 

claims, and Kennedy appealed.

STANDARD OF REVIEW

We review the district court’s grant of summary 

judgment de novo. United States v. Phattey, 943 F.3d 1277, 

1280 (9th Cir. 2019). Our task is to “view the evidence in 

the light most favorable” to Kennedy, “and determine 

whether there are any genuine issues of material fact and 

whether the district court correctly applied the relevant 

substantive law.” Id. (cleaned up).

ANALYSIS

A.

We begin with Kennedy’s free speech claim brought 

pursuant to 42 U.S.C. § 1983. In Pickering, the Supreme 

Court held that “[t]he problem” in a public-employee free 

speech case, “is to arrive at a balance between the interests 

of the teacher, as a citizen, in commenting upon matters of 

public concern and the interest of the State, as an employer, 

in promoting the efficiency of the public services it performs 

through its employees.” Pickering v. Bd. of Educ., 391 U.S. 

563, 568 (1968). “[S]ince Pickering,” we wrote, the law on 

this topic “has evolved dramatically, if sometimes 

inconsistently. Unraveling Pickering’s tangled history 

reveals a sequential five-step series of questions.” Eng v. 

Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009). Those 

questions are:
16 KENNEDY V. BREMERTON SCHOOL DISTRICT

(1) whether the plaintiff spoke on a matter of 

public concern; (2) whether the plaintiff 

spoke as a private citizen or public employee; 

(3) whether the plaintiff’s protected speech 

was a substantial or motivating factor in the 

adverse employment action; (4) whether the 

state had an adequate justification for treating 

the employee differently from other members 

of the general public; and (5) whether the 

state would have taken the adverse 

employment action even absent the protected 

speech.

Id. At issue here are factors (2) and (4). If Kennedy spoke 

as a public employee when he engaged in demonstrative 

religious activity at the fifty-yard line necessarily in view of 

the players and fans who stayed to the conclusion of the 

game, his speech is unprotected. See id. at 1071. Kennedy 

carries the burden of proof on factor (2). Id. Similarly, if 

BSD had adequate justification for treating Kennedy 

differently from other members of the public, Kennedy’s 

claim fails. Id. at 1072. BSD carries the burden of proof on 

factor (4). Id.

1.

“[W]hen public employees make statements pursuant to 

their official duties, the employees are not speaking as 

citizens for First Amendment purposes, and the Constitution 

does not insulate their communications from employer 

discipline.” Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). 

“The critical question under Garcetti is whether the speech 

at issue is itself ordinarily within the scope of an employee’s 

duties, not whether it merely concerns those duties.” Lane 
KENNEDY V. BREMERTON SCHOOL DISTRICT 17

v. Franks, 573 U.S. 228, 240 (2014). In answering that 

question,

[t]he proper inquiry is a practical one. 

Formal job descriptions often bear little 

resemblance to the duties an employee 

actually is expected to perform, and the 

listing of a given task in an employee’s 

written job description is neither necessary 

nor sufficient to demonstrate that conducting 

the task is within the scope of the employee’s 

professional duties for First Amendment 

purposes.

Garcetti, 547 U.S. at 424–25.

In Kennedy I, we held that Kennedy spoke as a public 

employee, and thus his free speech claim failed at factor (2). 

869 F.3d at 825. We explained that Kennedy “was one of 

those especially respected persons chosen to teach on the 

field, in the locker room, and at the stadium. He was clothed 

with the mantle of one who imparts knowledge and wisdom. 

Like others in this position, expression was Kennedy’s stock 

in trade.” Id. at 826 (quoting Peloza v. Capistrano Unified 

Sch. Dist., 37 F.3d 517, 522 (9th Cir. 1994) (internal 

citations and quotation marks omitted)). Thus, his 

expression on the field—a location that he only had access 

to because of his employment—during a time when he was 

generally tasked with communicating with students, was 

speech as a government employee. Id. at 828. We briefly 

address factor (2) to discuss subsequent developments. Our 

holding, however, has not changed.

First, our opinion in Kennedy I should not be read to 

suggest that, for instance, a teacher bowing her head in silent 

prayer before a meal in the school cafeteria would constitute 
18 KENNEDY V. BREMERTON SCHOOL DISTRICT

speech as a government employee. See Kennedy II, 139 S. 

Ct. at 636 (Alito, J.). That type of expression is of a wholly 

different character than Kennedy’s: Kennedy insisted that 

his speech occur while players stood next to him, fans 

watched from the stands, and he stood at the center of the 

football field. Moreover, Kennedy repeatedly 

acknowledged that—and behaved as if—he was a mentor, 

motivational speaker, and role model to students specifically 

at the conclusion of a game. That distinguishes this case 

from the hypothetical scenario of a teacher in the cafeteria.

We acknowledge the Supreme Court’s warning not to 

create “excessively broad job descriptions” that “convert” 

expressions of a private citizen into speech as a government 

employee. Id. (quoting Garcetti, 547 U.S. at 424). But on 

the record before us, there is simply no dispute that 

Kennedy’s position encompassed his post-game speeches to 

students on the field. Kennedy’s employer specifically 

instructed him (1) that he should speak to players post-game 

and (2) what the speeches should be about: “You may 

continue to provide motivational, inspirational talks to 

students before, during and after games and other team 

activity, focusing on appropriate themes such as unity, 

teamwork, responsibility, safety, endeavor and the like that 

have long characterized your very positive and beneficial 

talks with students.” In commenting on Kennedy’s secular 

post-game speech on September 18, Leavell wrote, “That 

talk was well received, and appreciated by the District and 

the community. I would certainly encourage continuation of 

that practice.” The only conclusion based on this record is 

that Kennedy’s post-game speech on the field was speech as 

a government employee.
KENNEDY V. BREMERTON SCHOOL DISTRICT 19

Second, our prior opinion in this case was not meant to 

suggest that a teacher or coach “cannot engage in any 

outward manifestation of religious faith” while off duty. Id.

at 637. In Kennedy I, we cited Kennedy’s prayer in the 

bleachers, surrounded by news cameras, two days after BSD 

issued a public statement explaining Kennedy’s suspension, 

in the context of “bolster[ing]” the already strong inference 

that he “inten[ded] to send a message to students and parents 

about appropriate behavior and what he values as a coach,” 

in line with his job duties of demonstrative communication 

as a role model for players. 869 F.3d at 826. Kennedy’s 

intent to send a message is important because this media 

event represented a continuation of his on-field 

demonstrative activities after the October 16, 23, and 26 

games that were designed to attract publicity. Nevertheless, 

Kennedy’s pre-suspension prescribed speaking 

responsibilities were the touchstone of our prior decision 

holding that Kennedy spoke as a government employee—

and they remain so in this one.

We also note the following from the opinion of the 

district court: “Although Kennedy originally claimed to be 

off duty after games, he has now abandoned that contention 

. . . . All of the evidence, including Kennedy’s own 

testimony, confirms that his job responsibilities extended at 

least until the players were released after going to the locker 

room.”

We therefore remain convinced that our conclusion in 

Kennedy I, that “Kennedy spoke as a public employee when 

he kneeled and prayed on the fifty-yard line immediately 

after games while in view of students and parents” is correct. 

869 F.3d at 831.
20 KENNEDY V. BREMERTON SCHOOL DISTRICT

2.

However, even if we were to assume, arguendo, that 

Kennedy spoke as a private citizen, BSD may still prevail if 

it can show that it had an adequate justification for treating 

Kennedy differently from other members of the general 

public. We hold that BSD’s justification was adequate.

“[A] state interest in avoiding an Establishment Clause 

violation may be characterized as compelling, and therefore 

may justify content-based discrimination.” Good News Club 

v. Milford Cent. Sch., 533 U.S. 98, 112 (2001) (internal 

quotation marks omitted); see also Peloza, 37 F.3d at 522 

(“The school district’s interest in avoiding an Establishment 

Clause violation trumps [a teacher’s] right to free speech.”).

The Establishment Clause provides that “Congress shall 

make no law respecting an establishment of religion.” U.S. 

Const. amend. I. The Fourteenth Amendment incorporated 

the Establishment Clause against the states and their publicschool systems. See Wallace v. Jaffree, 472 U.S. 38, 49‒50 

(1985). The Clause “mandates government neutrality 

between religion and religion, and between religion and 

nonreligion.” McCreary Cnty., Ky. v. Am. Civil. Liberties 

Union of Ky., 545 U.S. 844, 860 (2005) (quoting Epperson 

v. Arkansas, 393 U.S. 97, 104 (1968)). “The Court has been 

particularly vigilant in monitoring compliance with the 

Establishment Clause in elementary and secondary schools.” 

Edwards v. Aguillard, 482 U.S. 578, 583‒84 (1987). In that 

setting, “[t]he State exerts great authority and coercive 

power through mandatory attendance requirements, and 

because of the students’ emulation of teachers as role models 

and the children’s susceptibility to peer pressure.” Id. at 584. 

Accordingly, the Clause “proscribes public schools from 

conveying or attempting to convey a message that religion 

or a particular religious belief is favored or preferred.” Lee 
KENNEDY V. BREMERTON SCHOOL DISTRICT 21

v. Weisman, 505 U.S. 577, 604‒05 (1992) (Blackmun, J., 

concurring) (internal quotation marks and emphasis 

omitted).

The Supreme Court has made clear that an Establishment 

Clause analysis “not only can, but must, include an 

examination of the circumstances surrounding” the action 

alleged to have violated the Clause. Santa Fe Indep. Sch. 

Dist. v. Doe, 530 U.S. 290, 315 (2000) (emphasis added). 

Like the Court, “[w]e refuse to turn a blind eye to the context 

in which” Kennedy’s conduct arose. Id. Guided by Santa 

Fe, we ask whether an objective observer, familiar with the 

history of Kennedy’s on-field religious activity, coupled 

with his pugilistic efforts to generate publicity in order to 

gain approval of those on-field religious activities, would 

view BSD’s allowance of that activity as “stamped with [his 

or] her school’s seal of approval.” Id. at 308. Here, the 

answer is unquestionably yes.

At the outset, we address Kennedy’s repeated contention 

that the practice he sought to engage in was a brief, personal, 

and private prayer. While his prayer may have been brief, 

the facts in the record utterly belie his contention that the 

prayer was personal and private. As noted, Kennedy 

engaged in a media blitz between October 14, 2015—when 

Kennedy’s attorney informed BSD that he would be 

reinstituting his prior practice that included allowing 
22 KENNEDY V. BREMERTON SCHOOL DISTRICT

students to join his prayer1—and October 16, 2015.2 

Kennedy’s deposition included the following exchange: 

“Q. So you appeared on the media because you wanted to 

spread the word about what you were doing? A. I was 

sharing the word, yes, sir.” These media appearances took 

place prior to Kennedy’s on-field prayer on October 16, 23, 

1 Kennedy confirmed in his deposition that the October 14 letter 

included his intention not to stop students from joining his prayer:

Q. So where it says in the last paragraph, “Coach 

Kennedy will continue his practice,” do you 

understand that is saying that you will continue your 

practice of praying with students if the students come 

around you?

A. I wasn’t going to stop my prayer because there was 

kids around me.

Q. So is that a yes, sir?

. . . .

A. Yes.

2 We note that Kennedy’s media appearances continue to the present 

day. See, e.g., Joe Kennedy, “Football Coach Joe Kennedy: A prayer 

sidelined me – here’s why I’m still fighting to get back in the game,” Fox 

News (January 26, 2021), https://fxn.ws/3cmoWyq; Fox & Friends, “Exhigh school football coach still fighting five years after he was fired by 

school for praying on field,” Fox News (January 26, 2021), 

https://fxn.ws/3la91pv; First Liberty, “Coach Joe Kennedy: How 20 

Years in the Marine Corps Gave Him the Courage to Kneel,” (May 3, 

2019), https://bit.ly/3ak1e38 (interview with Kennedy in which Kennedy 

stated, “I couldn’t believe that after 20 years of serving and protecting 

the Constitution they would tell me that my rights didn’t matter because 

I was a public employee. And as a Marine, I knew I had to fight. I 

always told the young men whom I coached to stand up when adversity 

came their way. I had to be a leader to them and live up to what I said. 

So I wasn’t going to back down[.]”).
KENNEDY V. BREMERTON SCHOOL DISTRICT 23

and 26. That on-field prayer cannot be construed as personal 

and private in the context of Kennedy’s publicity leading up 

to it.

Context matters. As we know from Santa Fe, we must 

examine the surrounding circumstances to determine 

whether BSD rescinding the September 17 directive and 

allowing Kennedy free rein over his public demonstrations 

of religious exercise would have been perceived as a stamp 

of approval upon that exercise. Thus, at issue in this case is 

not, as Kennedy attempts to gloss it, a personal and private 

exercise of faith. At issue was—in every sense of the 

word—a demonstration, and, because Kennedy demanded 

that it take place immediately after the final whistle, it was a 

demonstration necessarily directed at students and the 

attending public.

The evolution of Kennedy’s prayer practices with 

students is also essential to understanding how an objective 

observer would view BSD continuing to allow Kennedy to 

pray on-field. An objective observer would know that, eight 

years earlier, Kennedy began praying alone on the fifty-yard 

line at the conclusion of each game. Over time, little by 

little, his players began to join him in this activity—at least 

one out of a fear that declining to do so would negatively 

impact his playing time. Kennedy did not stop players from 

joining him then, just as he made clear to BSD on October 

14, 2015 that he would not stop them from joining him when 

he resumed his practice after the October 16 game. Indeed, 

as noted, the record unquestionably reflects that after 

October 14, 2015, Kennedy actively sought support from the 

community in a manner that encouraged individuals to rush 

the field to join him and resulted in a conspicuous prayer 

circle that included students. An objective observer would 

know, in advance of the October 16 game, BSD made clear 
24 KENNEDY V. BREMERTON SCHOOL DISTRICT

that the field was not open to the public, specifically denying 

access to other religious groups. Yet, Kennedy used his 

access as a school employee to conduct his religious activity. 

Viewing this scene, an objective observer could reach no 

other conclusion than that BSD endorsed Kennedy’s 

religious activity by not stopping the practice:

Kennedy points to his post-game prayer on October 23, 

2015—when no one joined him—in an attempt to establish 

that all he wants is to pray alone. But this mischaracterizes 

the record. Instead, the record reflects that if BSD permitted 

Kennedy to resume his prior practice, students would join 

him. One instance, out of many, in which students did not 

join Kennedy’s prayer cannot require us to pretend they 

never did and never will.3 In sum, there is no doubt that an 

3 Throughout this litigation, Kennedy has urged us to turn a blind 

eye to the trajectory of his practice in favor of a segmented view of the 

Post-game ritual on the field, October 16, 2015.
KENNEDY V. BREMERTON SCHOOL DISTRICT 25

objective observer, familiar with the history of Kennedy’s 

practice, would view his demonstrations as BSD’s 

endorsement of a particular faith. For that reason, BSD had 

adequate justification for its treatment of Kennedy, and the 

district court correctly granted summary judgment to BSD 

on Kennedy’s free speech claim.

B.

We next address Kennedy’s free exercise claim. In 

Church of Lukumi, the Court wrote that “a law that is neutral 

and of general applicability need not be justified by a 

compelling governmental interest even if the law has the 

incidental effect of burdening a particular religious 

practice.” Church of the Lukumi Babalu Aye v. City of 

Hialeah, 508 U.S. 520, 531 (1993). Pursuant to that 

analysis, a law that is not neutral and generally applicable 

“must be justified by a compelling governmental interest and 

must be narrowly tailored to advance that interest.” Id.

at 531–32.

The District concedes that its September 17 directive is 

not neutral and generally applicable. It purports to restrict 

evidence, picking parts that help his case and discarding those that do 

not. For example, during oral argument, Kennedy’s counsel urged us to 

focus primarily on BSD’s October 23 letter. This letter—when read in 

isolation—appears to assert that any demonstration of faith by any 

teacher in any context would be impermissible. But acceding to 

Kennedy’s framing of the record would be rejecting the very inquiry that 

Santa Fe mandates. The October 23 letter was written after Kennedy 

rejected the restrictions announced in the September 17 letter and 

announced his intention to resume his unconstitutional behavior over his 

employer’s clear prohibition. Such a myopic view of the events leading 

to litigation simply does not tell the whole story—like attempting to 

decipher the plot of “The Wizard of Oz” by viewing a still photograph 

of Dorothy awaking in her bed at the end of the film.
26 KENNEDY V. BREMERTON SCHOOL DISTRICT

Kennedy’s religious conduct because the conduct is 

religious. See id. at 532 (“[T]he protections of the Free 

Exercise Clause pertain if the law at issue . . . regulates . . .

conduct because it is undertaken for religious reasons.” 

(emphasis added)). But the District contends that its 

directive satisfies strict scrutiny. We agree.

1.

“[A] state interest in avoiding an Establishment Clause 

violation ‘may be characterized as compelling,’ and 

therefore may justify content-based discrimination,” Good 

News Club, 533 U.S. at 113–14 (quoting Widmar v. Vincent, 

454 U.S. 263, 271 (1981)), such as prohibiting religious 

conduct that could be imputed to the District. Based on the 

Establishment Clause analysis in the fourth Eng factor 

above, the District’s September 17 directive was thus 

motivated by a compelling state interest.4

4 We determined above that BSD’s concern that it would violate the 

Establishment Clause by allowing Kennedy’s conduct was wellfounded—this activity indeed constituted a violation. But even without 

our holding as to the Establishment Clause, BSD had reason for concern. 

Public school districts were repeatedly sued in federal district courts

across the country for alleged Establishment Clause violations in the ten 

years preceding BSD’s September 17 letter to Kennedy. See, e.g., 

Sherman v. Twp. High School Dist. 214, 624 F. Supp. 907 (N.D. Ill. 

2007); Doe v. Wilson Cnty. Sch. Sys., 524 F. Supp. 2d 964 (M.D. Tenn. 

2007); Am. Humanist Ass’n v. S.C. Dep’t of Educ., 108 F. Supp. 3d 355 

(D.S.C. 2015); Ryan v. Mesa Unified Sch. Dist., 64 F. Supp. 3d 1356 

(D. Ariz. 2014); see also Borden v. Sch. Dist. of Twp. of E. Brunswick, 

523 F.3d 153, 178–79 (3d Cir. 2008) (holding that the Establishment 

Clause prohibited a football coach from bowing his head while players 

prayed because of his history of leading the team in prayer).
KENNEDY V. BREMERTON SCHOOL DISTRICT 27

2.

In this context, a regulation fails the narrow tailoring 

prong of strict scrutiny if it is either overbroad or 

underinclusive given the government’s compelling interest. 

Church of Lukumi, 508 U.S. at 546. For example, in Church 

of Lukumi, ordinances prohibiting animal slaughter were 

underinclusive for the stated interests of “protecting the 

public health and preventing cruelty to animals” because 

they failed “to prohibit nonreligious conduct that endangers 

these interests in a similar or greater degree than [Plaintiff’s 

religious] sacrifice does.” Id. at 543.

Here, the September 17 directive and accompanying 

BSD policy prohibiting Kennedy’s conduct were narrowly 

tailored to the compelling state interest of avoiding a 

violation of the Establishment Clause. Indeed, there was no 

other way to accomplish the state’s compelling interest. The 

District tried repeatedly to work with Kennedy to develop an 

accommodation for him that would avoid violating the 

Establishment Clause; Kennedy declined to cooperate in that 

process and insisted that the only acceptable outcome would 

be praying immediately after the game on the fifty-yard line 

in view of students and spectators.

Because BSD had a compelling state interest to avoid 

violating the Establishment Clause, and it tried repeatedly to 

work with Kennedy to develop an accommodation for him 

that would avoid violating the Establishment Clause while 

nevertheless offering him options that were narrowly 

tailored to protect his rights, we affirm the decision of the 

district court to deny Kennedy’s Free Exercise claim.
28 KENNEDY V. BREMERTON SCHOOL DISTRICT

C.

In addition to his constitutional claims, Kennedy brought 

four claims pursuant to Title VII: failure to rehire, disparate 

treatment, failure to accommodate, and retaliation.

1.

Pursuant to Title VII, “an unlawful employment practice 

is established when the complaining party demonstrates that 

. . . religion . . . was a motivating factor for any employment 

practice, even though other factors also motivated the 

practice.” 42 U.S.C. § 2000e-2(m). “In order to establish a 

prima facie case” in Kennedy’s circumstances, he must 

“show that [he] was a member of a protected group [ ], that 

[he] was adequately performing [his] job; and that [he] 

suffered an adverse employment action[.]” Kortan v. Cal. 

Youth Auth., 217 F.3d 1104, 1113 (9th Cir. 2000).

Kennedy established that he was a member of a protected 

group and that he suffered an adverse employment action. 

However, he did not show that he was adequately 

performing his job. Instead, the record reflects that Kennedy 

refused to follow BSD policy and conducted numerous 

media appearances that led to spectators rushing the field 

after the October 16 game, disregarding his and BSD’s 

responsibilities to ensure students’ safety. We affirm the 

district court’s grant of summary judgment to BSD on 

Kennedy’s failure to rehire claim.

2.

To establish a prima facie case of disparate treatment 

under Title VII, a plaintiff must show “(1) he is a member of 

a protected class; (2) he was qualified for his position; (3) he 

experienced an adverse employment action; and 
KENNEDY V. BREMERTON SCHOOL DISTRICT 29

(4) similarly situated individuals outside his protected class 

were treated more favorably.” Berry v. Dep’t of Soc. Servs., 

447 F.3d 642, 656 (9th Cir. 2006). Kennedy satisfies the 

first three prongs but stumbles on the fourth. “Other 

employees are similarly situated to the plaintiff when they 

have similar jobs and display similar conduct.” Earl v. 

Nielsen Media Rsch., Inc., 658 F.3d 1108, 1114 (9th Cir. 

2011) (internal quotation marks omitted).

Kennedy’s conduct is clearly dissimilar to the other 

personal activities of assistant coaches he cites, such as 

checking a cell phone or greeting a spouse, because 

Kennedy’s conduct violated the Establishment Clause, and 

obviously, checking a cell phone does not. Kennedy 

asserted that another assistant coach, David Boynton, could 

serve as a similarly-situated employee because Boynton 

once went on to the field following a game, took a picture of 

the scoreboard, and said a silent Buddhist chant to himself 

while standing. But Boynton’s alleged practice of reciting 

silent Buddhist chants in his head while standing on the field 

does not make Boynton similarly situated to Kennedy, 

either—Leavell’s declaration stated that he first “heard of an 

alleged Buddhist chant by Mr. Boynton [] in news reports of 

Mr. Kennedy’s EEOC complaint in January 2016 . . . . 

Other than Mr. Kennedy, [Leavell had] not received any 

reports of any other BSD employee who has allegedly 

engaged in readily observable demonstrative religious 

activity, while on-duty in the performance of his or her job, 

and in the presence of students.” The fact that BSD was 

unaware of Boynton’s alleged practice shows that Boynton 

and Kennedy were not similarly situated; BSD had no 

opportunity to impose differential treatment for conduct that 

was unobservable.
30 KENNEDY V. BREMERTON SCHOOL DISTRICT

Because Kennedy cannot make out a prima facie case of 

disparate treatment, we affirm the district court’s grant of 

summary judgment to BSD on this claim.

3.

“To establish religious discrimination on the basis of a 

failure-to-accommodate theory,” a plaintiff “must first set 

forth a prima facie case that (1) he had a bona fide religious 

belief, the practice of which conflicts with an employment 

duty; (2) he informed his employer of the belief and conflict; 

and (3) the employer discharged, threatened, or otherwise 

subjected him to an adverse employment action because of 

his inability to fulfill the job requirement.” Peterson v. 

Hewlett-Packard Co., 358 F.3d 599, 606 (9th Cir. 2004). It 

is undisputed that Kennedy presented a prima facie case of 

failure-to-accommodate.

Once a plaintiff makes out a prima facie case, “the 

burden then shifts” to the employer “to show that it initiated 

good faith efforts to accommodate reasonably the 

employee’s religious practices or that it could not reasonably 

accommodate the employee without undue hardship.” Id. 

For the reasons already discussed, BSD did both. BSD 

officials repeatedly offered to work with Kennedy to find an 

accommodation that would insulate the District from an 

Establishment Clause violation; Kennedy did not respond or 

indicated that the only acceptable outcome in his view would 

be resuming his prior practice of praying on the fifty-yard 

line immediately following the game, in full view of students 

and spectators. Because allowing Kennedy to do so would 

constitute an Establishment Clause violation, the District 

could not reasonably accommodate Kennedy’s practice 

without undue hardship. Accordingly, we affirm the district 

court’s grant of summary judgment to BSD on Kennedy’s 

failure-to-accommodate claim.
KENNEDY V. BREMERTON SCHOOL DISTRICT 31

4.

In a retaliation claim under Title VII, a “plaintiff has the 

burden of proving a prima facie case of discrimination based 

on opposition to an unlawful employment practice.” 

E.E.O.C. v. Crown Zellerbach Corp., 720 F.2d 1008, 1012 

(9th Cir. 1983). To prove a prima facie case of retaliation 

based on opposition, the plaintiff must show that “(1) he has 

engaged in statutorily protected expression; (2) he has 

suffered an adverse employment action; and (3) there is a 

causal link between the protected expression and the adverse 

action.” Id. If he does so, “the burden shifts to the defendant 

‘to articulate some legitimate, nondiscriminatory reason’ for 

the adverse employment action.” Id. (quoting Tex. Dept. of 

Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).

Kennedy presented a prima facie case of retaliation. But 

Kennedy also refused to collaborate with BSD in designing 

a reasonable accommodation for his religious practice. 

Furthermore, as explained above, Kennedy made it clear that 

he would continue to pray on the fifty-yard line immediately 

following the game as long as BSD employed him—a 

practice that violated the Establishment Clause. This 

conduct is a legitimate nondiscriminatory reason for the 

adverse employment actions BSD took. We affirm the 

district court’s grant of summary judgment to BSD on 

Kennedy’s retaliation claim.

CONCLUSION

The record before us and binding Supreme Court 

precedent compel the conclusion that BSD would have 

violated the Establishment Clause by allowing Kennedy to 

pray at the conclusion of football games, in the center of the 

field, with students who felt pressured to join him. 

Kennedy’s attempts to draw nationwide attention to his 
32 KENNEDY V. BREMERTON SCHOOL DISTRICT

challenge to BSD compels the conclusion that he was not 

engaging in private prayer, but was instead engaging in 

public speech of an overtly religious nature while 

performing his job duties. BSD tried to reach an 

accommodation for Kennedy, but that was spurned by his 

insisting that he be allowed to pray immediately after the 

conclusion of each game, likely surrounded by students who 

felt pressured to join him.

Kennedy’s Title VII claims also fail.

The judgment of the district court is AFFIRMED.

CHRISTEN, Circuit Judge, joined by D.W. NELSON, 

Circuit Judge, concurring:

I concur in the majority’s decision affirming the district 

court’s order granting summary judgment, and dismissing 

Coach Kennedy’s Free Speech and Free Exercise claims. I 

write separately to underscore why, in my view, the outcome 

of this appeal is entirely driven by the circumstances from 

which Coach Kennedy’s claims arose.

I

We consider “a sequential five-step series of questions” 

when evaluating Free Speech claims brought by public 

employees. Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 

2009). The second and fourth questions are at issue in this 

case: whether Kennedy spoke as a private citizen or as a 

public employee, and whether the Bremerton School District 

(BSD) had adequate justification for treating Kennedy 

differently from other members of the public. Id.
KENNEDY V. BREMERTON SCHOOL DISTRICT 33

Garcetti v. Ceballos, 547 U.S. 410, 421 (2006), explains 

that a person speaks as a public employee when he makes 

statements pursuant to his official duties. See Lane v. 

Franks, 573 U.S. 228, 240 (2014) (“The critical question 

under Garcetti is whether the speech at issue is itself 

ordinarily within the scope of an employee’s duties.”). 

Garcetti also cautioned that courts must not allow employers 

to describe job duties in infinitely elastic terms. 547 U.S at 

424. Garcetti’s cautionary note is critically important: if 

employers were allowed to decide that any unpopular or 

unwelcome speech fell within their employees’ job duties, 

they would be free to extinguish First Amendment rights—

or at least free to require that employees choose between 

keeping their jobs and exercising their First Amendment 

right to speak. We conduct a practical inquiry to decide 

whether a task is within the scope of an employee’s 

professional duties, id. at 424–25, so we begin from the 

premise that a coach’s duties include teaching non-academic 

skills such as teamwork, sportsmanship, dedication, and 

personal discipline.

Here, the district court found Kennedy’s job duties 

included mentoring students, setting a good example, and 

striving to “create good athletes and good human beings.” 

BSD sent two letters to Kennedy after it learned he was 

engaged in religious speech with the team. The first 

encouraged him to “continue to provide motivational, 

inspirational talks to students before, during and after games 

and other team activity,” but cautioned that his talks “may 

not include religious expression, including prayer.” 

Hopefully, all instructors at Bremerton High encourage their 

students’ efforts, but it cannot be denied that the nature of 

motivational talks coaches deliver to their teams differs 

substantially from the words of encouragement one might 

expect from geometry or history teachers. Kennedy 
34 KENNEDY V. BREMERTON SCHOOL DISTRICT

acknowledged that the inspirational speeches he gave to 

players at the conclusion of games likely constituted prayer,

and his speeches to the team were unmistakably the kind of 

motivational communication that fell squarely within his job 

duties. Kennedy’s demonstrative on-field prayers of thanks 

immediately following games must be viewed in the context 

of the motivational talks he routinely gave to the team. On 

the record presented, the district court correctly concluded 

there was no genuine dispute that Kennedy spoke as a public 

employee when he engaged in religious expression during 

the talks he gave to the team, and when he prayed at the fiftyyard line after the team’s games.

Eng’s fourth factor requires that we consider whether 

BSD had adequate justification for treating Kennedy 

differently from other members of the general public. 

552 F.3d at 1070. The district court found the “sole reason” 

BSD suspended Kennedy was its desire to avoid violating 

the Establishment Clause. BSD’s Establishment Clause 

defense requires that we ask whether an objective observer, 

familiar with the history and circumstances surrounding 

Kennedy’s prayers, would perceive them as “state 

endorsement of prayer in public schools,” i.e., whether an 

objective observer would view the prayers as “stamped with 

[the] school’s seal of approval.” Santa Fe Indep. Sch. Dist. 

v. Doe, 530 U.S. 290, 308 (2000) (citation and internal 

quotation marks omitted).

Kennedy’s post-game prayers took place at midfield 

while spectators were still in the stands, but he insisted that 

he only intended to engage in “brief, quiet prayer of 

thanksgiving for player safety, sportsmanship, and spirited 

competition.” The district court did not question Kennedy’s 

intentions, but it recognized that if he had been allowed to 

continue praying at the fifty-yard line, any objective 
KENNEDY V. BREMERTON SCHOOL DISTRICT 35

observer would have perceived that BSD endorsed 

Kennedy’s speech. Santa Fe, 530 U.S. at 308. No other 

conclusion could have been drawn after Kennedy publicly 

announced he would defy BSD’s directive that he stop 

praying at midfield, because spectators rushed to join him at 

a subsequent game and BSD was forced to engage security 

and close the field to the public. After the public was barred 

from the field, the perception that BSD endorsed Kennedy’s 

speech was unavoidable because only his job as assistant 

coach allowed Kennedy access. As the district court 

explained, if “a director takes center stage after a 

performance, a reasonable onlooker would interpret their 

speech from that location as an extension of the schoolsanctioned speech just before it.” Kennedy’s subjective 

intent to pray privately and personally did not guide BSD’s 

response to Kennedy’s actions; the question was how an 

objective observer would perceive Kennedy’s speech.

Kennedy’s talks evolved over time and the practice he 

eventually adopted, taking a knee at midfield and delivering 

what he referred to as private personal prayers alongside 

team members, was a thematic extension of the motivational 

speeches he delivered to Bremerton High’s assembled 

football team. The majority does not imply that coaches 

cannot lead by example or serve as excellent role models if 

players see them engage in personal prayer. And it must be 

acknowledged that Kennedy coached high school players, 

who were surely less impressionable than elementary-aged 

students. Still, even high-schoolers are not immune from 

perceiving—or misperceiving—pressure to “go along,” and 

the record shows that at least one parent confirmed a player 

felt “compelled to participate” in Kennedy’s post-game 

prayers because “he felt he wouldn’t get to play as much if 

he didn’t.” Kennedy agreed that coaches can have an 

outsized influence and “for some kids, the coach might even 
36 KENNEDY V. BREMERTON SCHOOL DISTRICT

be the most important person they encounter in their overall 

life.”

No case law requires that a high school teacher must be 

out of sight of students or jump into the nearest broom closet 

in order to engage in private prayer, but it cannot be denied 

that this football coach’s prayer at the fifty-yard line, 

immediately after a game, under stadium lights and in front 

of players and spectators, objectively sent a public message. 

In contrast, even an on-duty teacher tasked with supervising 

students in a high school cafeteria would not risk sending a 

message that BSD endorses her faith, nor risk inadvertently 

coercing students to join her, if she took a moment to give 

thanks before eating her meal. And the Establishment 

Clause can surely accommodate high school students 

observing a teacher giving thanks for an “all clear” 

announcement made in the wake of a safety scare like an 

earthquake tremor, or a “false alarm” announcement after a 

fire bell.

The opinion we entered affirming the district court’s 

order denying Coach Kennedy’s motion for a preliminary 

injunction made reference to prayer Kennedy engaged in 

while attending a game after he had been suspended. 

Kennedy v. Bremerton Sch. Dist., 869 F.3d 813, 820, 826 

(9th Cir. 2017). That off-duty speech played no role in 

BSD’s decision to suspend Kennedy, nor did our prior 

opinion signal that BSD would be free to restrict Kennedy’s 

off-duty speech. See id. Rather, the prayer Kennedy 

engaged in as a spectator after he was suspended was 

relevant because he was surrounded by members of the 

media he had courted. Although Kennedy argues he 

intended to engage in private prayer, his prayers were 

anything but private. Indeed, an objective observer would 

be aware that fans rushed to join Kennedy on the field and 
KENNEDY V. BREMERTON SCHOOL DISTRICT 37

knocked over band members at the conclusion of the 

October 16 game.

Kennedy candidly testified that he gave numerous media 

interviews before he was suspended, and that he did so in an 

effort to “spread the word.” In those interviews, Kennedy 

announced a firm stance that he would continue to pray and 

allow the team to join him, despite BSD’s directives. In 

response, BSD was “flooded with thousands of emails, 

letters, and phone calls from around the country, many of 

which were hateful or threatening.” Given the community’s 

response to Kennedy’s public statements, BSD would have 

unquestionably sent a message of endorsement if it had 

allowed him to continue to pray at midfield. BSD’s need to 

avoid an Establishment Clause violation provided adequate 

justification for prohibiting Kennedy’s post-game prayers. 

Kennedy’s Free Speech claim fails to satisfy Eng’s second 

and fourth factors. 552 F.3d at 1070.

II

The sequence of events leading up to BSD’s decision to 

place Kennedy on paid administrative leave painted BSD 

into a corner because an objective observer would have 

perceived the school’s endorsement if Kennedy had been 

allowed to continue praying at midfield. BSD had a 

compelling interest in avoiding an Establishment Clause 

violation, Good News Club v. Milford Cent. Sch., 533 U.S. 

98, 112 (2001), and the district court correctly ruled BSD’s 

adverse employment action was narrowly tailored to 

advance that interest, see Church of the Lukumi Babalu Aye 

v. City of Hialeah, 508 U.S. 520 531–32 (1993).

BSD first learned of Kennedy’s post-game prayers in 

September 2015, when an opposing team’s coach told 

Bremerton High’s principal that Kennedy had asked the 
38 KENNEDY V. BREMERTON SCHOOL DISTRICT

visiting team to join in a post-game prayer on the field. 

BSD’s first letter to Kennedy explained that his post-game 

prayers “would very likely be found to violate the First 

Amendment’s Establishment Clause,” and provided a 

number of “clear standards” to which Kennedy was required 

to adhere. Kennedy did not publicly pray at the following 

game, but on October 14 he informed BSD that he would 

resume his practice of praying on the fifty-yard line 

immediately following the next game.

As explained, Kennedy’s widely publicized intention to 

resume his post-game prayers resulted in an overwhelming 

response from the public, and BSD was reasonably 

concerned that it would be unable to “keep kids safe.” 

BSD’s concerns were realized when Kennedy resumed 

praying at the October 16 game and members of the public 

rushed the field. After that game, BSD enlisted help from 

the police department to provide security and also made 

public announcements and posted signs directing that public 

access to the field would no longer be allowed.

BSD’s second letter reiterated that school staff may not 

“engage in action that is likely to be perceived as endorsing 

(or opposing) religion or religious activities.” Nevertheless, 

Kennedy again prayed at the fifty-yard line following the 

next two games. Faced with mounting publicity and 

corresponding concern for student and public safety, BSD 

placed Kennedy on paid administrative leave.

At oral argument before our court, Kennedy’s counsel 

repeatedly referred to a single sentence from BSD’s second 

letter directing that “[w]hile on duty,” Kennedy must refrain 

from engaging in “demonstrative religious activity, readily 

observable to (if not intended to be observed by) students 

and the attending public.” Kennedy plucks this single 

sentence, and argues that it would prohibit a teacher from 
KENNEDY V. BREMERTON SCHOOL DISTRICT 39

giving thanks at lunchtime or engaging in any other personal 

prayer while on duty. But this sentence cannot be read in 

isolation. BSD consistently sought to accommodate 

Kennedy’s religious exercise without running afoul of the 

Establishment Clause. BSD’s correspondence to Kennedy 

“ma[d]e it clear that religious exercise that would not be 

perceived as District endorsement, and which does not 

otherwise interfere with the performance of job duties, can 

and will be accommodated.” BSD offered Kennedy the use 

of a private location within the school building, athletic 

facility, or press box, and invited Kennedy to propose 

alternative accommodations.

By the time BSD’s second letter directed Kennedy to 

refrain from engaging in religious activity observable to 

students and the attending public, Kennedy had announced 

his intention to resume praying midfield, BSD had received 

thousands of letters, many of which were hostile and 

threatening, and members of the public had knocked over 

some students while rushing to join him on the field after the 

October 16 game. Kennedy’s public statements that he 

would continue to pray despite BSD’s direction, and the 

public’s response to his statements, provide important 

context for the single sentence he isolates from BSD’s 

second letter.

BSD’s attempts to accommodate Kennedy’s prayer were 

efforts to more narrowly tailor its response, but Kennedy did 

not accept any of BSD’s proposed accommodations, or even 

acknowledge them. Instead, he gave media interviews 

publicizing his intent to continue his post-game prayers and 

followed through by praying on the fifty-yard line at the two 

games that followed. Given Kennedy’s announced plans to 

defy BSD’s reasonable directives, BSD met its burden to 

show its response was the least-restrictive means consistent 
40 KENNEDY V. BREMERTON SCHOOL DISTRICT

with avoiding an Establishment Clause violation. See 

Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 

63, 67 (2020).