Joseph A. Kennedy v. Bremerton School District

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
J OSEPH A. KENNEDY,
Plaintiff-Appellant,
v.
B REMERTON S CHOOL D ISTRICT,
Defendant-Appellee.
No. 20-35222
D.C. No.
3:16-cv-05694-RBL
ORDER
Filed July 19, 2021
Before: DOROTHY W. NELSON, MILAN D. SMITH,
JR., and MORGAN CHRISTEN, Circuit Judges.
Order;
Concurrence by Judge Milan D. Smith, Jr.;
Concurrence by Judge Christen;
Statement by Judge O’Scannlain;
Statement by Judges O’Scannlain and Bea;
Statements by Judge O’Scannlain;
Statement by Judge Bea;
Dissent by Judge Ikuta;
Dissent by Judge R. Nelson;
Dissent by Judge Collins

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2 KENNEDY V . B REMERTON S CHOOL DISTRICT
SUMMARY*
Civil Rights
The panel issued an order denying on behalf of the court
a sua sponte request for rehearing en banc, in a case in which
the panel affirmed the district court’s summary judgment in
favor of Bremerton School District in an action brought by
Joseph Kennedy, BSD’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 BSD 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.
Concurring in the denial of rehearing en banc, Judge M.
Smith first addressed Judge O’Scannlain’s statements, and
wrote that Kennedy was never disciplined for offering silent,
private prayers, and that BSD disciplined him only after
Kennedy demanded the right to pray in the middle of the
high school field immediately after the conclusion of games
while the players were on the field and the crowd was still in
the stands. He wrote that the panel’s opinion specifically
identified BSD’s potential allowance of Kennedy’s religious
activity as the state action that would have violated the
Establishment Clause. BSD’s decision to limit Kennedy’s
religious expression was thus backed by a compelling
interest. The real threat of an Establishment Clause violation
justified Kennedy’s suspension. BSD’s possible option to
* This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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KENNEDY V . B REMERTON S CHOOL DISTRICT 3
provide a disclaimer – that Kennedy’s religious activities did
not carry the school’s endorsement – was insufficient in
coercive contexts, such as this instance.
Judge M. Smith next addressed Judge R. Nelson’s
dissent from the denial of rehearing en banc. He wrote that
this court was not at liberty to change the Supreme Court’s
guidance in Sante Fe Independent School District v. Doe,
530 U.S. 290 (2000); and strongly disagreed with the
suggestion that the panel applied Sante Fe’s test incorrectly.
Judge M. Smith wrote further that the actual facts of this
case left no question that Kennedy did not carry his burden
to show that he spoke as a private citizen, which was an
independent basis to affirm the district court. Judge
O’Scannlain’s contention – that the panel opinion
misapplied Garcetti v. Cellalos, 547 U.S. 410 (2006) – was
wrong on the current law.
Concurring in the denial of rehearing en banc, Judge
Christen, joined by Judge D.W. Nelson, wrote that the
panel’s opinion affirmed the district court’s summary
judgment ruling because Kennedy spoke as a public
employee, because BSD did not demonstrate a hint of
hostility or bias toward religion or non-religion, and because
BSD had a compelling interest in avoiding an Establishment
Clause violation. The outcome of this appeal was driven by
the particular facts and circumstances of Kennedy’s post-
game, on-field prayers. She further wrote that the dissenting
statements concerning the denial of rehearing en banc
painted an inaccurate picture of the dilemma that Kennedy
created. The dissents’ suggestion that BSD could have
issued a public disclaimer was not a realistic option.

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4 KENNEDY V . B REMERTON S CHOOL DISTRICT
Respecting the denial of rehearing en banc, Judge
O’Scannlain, joined in full by Judges Callahan, Bea, R.
Nelson, Collins, and Lee, joined by Judge Bumatay as to Part
III, and joined by Judge VanDyke as to all parts except Part
II-B, wrote that the panel’s opinion obliterated First
Amendment protections by announcing a new rule that any
speech by a public school teacher or coach, while on the
clock and in earshot of others, was subject to plenary control
by the government. He wrote further that the panel opinion
weaponized the Establishment Clause to defeat the Free
Exercise claim of Kennedy, who prayed as a private person.
He wrote that the panel opinion was in clear conflict with
Garcetti and decades of Supreme Court cases affirming the
principle that the First Amendment safeguards – not
banishes – private, voluntary religious activity by public
employees. He wrote that a proper application of Garcetti
and its progenitors dictates that Kennedy’s prayer was his
private speech, not that of the government. Consequently,
Kennedy’s Free Speech rights were implicated, and the
government’s stated justifications for its censorship must
face constitutional scrutiny.
Judge O’Scannlain wrote that a faithful reading of the
Supreme Court’s religion clauses jurisprudence makes clear
that BSD’s unfounded fears of Establishment Clause
liability did not justify BSD’s incursions on either
Kennedy’s Free Speech rights or his Free Exercise rights.
Because there was no Establishment Clause violation
without state action, BSD’s sole stated interest in avoiding
Establishment Clause liability could not justify suppressing
the Free Exercise rights of its coach. Because strict scrutiny
limits courts to considering state interests that are genuine,
not hypothesized, it necessarily followed that BSD had no
compelling interest in punishing Kennedy’s prayer. He
wrote further that even if an observer could mistake

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KENNEDY V . B REMERTON S CHOOL DISTRICT 5
Kennedy’s private speech for that of the school, it was still
erroneous for the panel to assume that BSD’s sole
constitutional option was to suspend Kennedy. Instead, the
panel should have considered the accommodation proposed
by Kennedy’s counsel: a simple disclaimer, clarifying
Kennedy’s prayer was his own private speech, not that of
BSD.
Respecting the denial of rehearing en banc, Judges
O’Scannlain and Bea agreed with the views expressed by
Judge Ikuta in her dissent from rehearing en banc.
Respecting the denial of rehearing en banc, Judge
O’Scannlain agreed with the views expressed by Judge R.
Nelson in his dissent from denial of rehearing en banc.
Respecting the denial of rehearing en banc, Judge
O’Scannlain agreed with the views expressed by Judge
Collins in his dissent from denial of rehearing en banc.
Respecting the denial of rehearing en banc, Judge Bea
agreed with the views expressed by Judge Collins in his
dissent from denial of rehearing en banc.
Dissenting from the denial of rehearing en banc, Judge
Ikuta, joined by Judges Callahan, R. Nelson, Bade, Forrest,
and Bumatay, wrote that, given the circumstances of this
case, no objective observer would think that BSD was
endorsing Kennedy’s prayers. BSD’s concern that
Kennedy’s religious activities would be attributed to BSD
was simply not plausible. Applying the objective observer
test from Sante Fe, there was no Establishment Clause
violation here. Judge Ikuta wrote that en banc consideration
of this case would raise an opportunity for the court to
develop a framework for evaluating how a public employer

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6 KENNEDY V . B REMERTON S CHOOL DISTRICT
can protect its employee’s religious expression without
becoming vulnerable to an Establishment Clause claim.
Dissenting from the denial of rehearing en banc, Judge
R. Nelson, joined in full by Judges Callahan, Bumatay, and
VanDyke, and joined by Judge Ikuta, as to Part I, wrote that
the panel misapplied Supreme Court precedent since none of
BSD’s actions would have come close to an endorsement of
religion or coercion. He wrote further that the panel’s
reliance of Sante Fe was inapt as there would not have been
an endorsement of religion by allowing Kennedy to pray.
Moreover, Sante Fe should not have been extended by the
panel as it stemmed from Lemon v. Kurtzman, 403 U.S. 602
(1971), which the Supreme Court has effectively killed.
Judge R. Nelson also wrote that the panel’s analysis went far
afield from the original meaning of an established religion,
especially in light of American Legion v. Humanist Ass’n,
139 S. Ct. 2067 (2019). Under existing Supreme Court
precedent, there was no Establishment Clause violation here.
Dissenting from the denial of rehearing en banc, Judge
Collins wrote he dissented for the reasons in Judge
O’Scannlain’s statement, which he joined. He also wrote to
underscore one irreducible aspect of the panel’s opinion. The
panel’s holding – that allowing any publicly observable
prayer behavior by the coach in these circumstances, even
silent prayer while kneeling, would violate the
Establishment Clause – was indefensible under Supreme
Court caselaw.

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KENNEDY V . B REMERTON S CHOOL DISTRICT 7
COUNSEL
Devin S. Anderson (argued), Emily Merki Long, Elizabeth
Hedges, Paul D. Clement, and Erin E. Murphy, Kirkland &
Ellis LLP, Washington, D.C.; Hiram Sasser, Jeffrey C.
Mateer, Michael Berry, Stephanie N. Taub, and David J.
Hacker, 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; Richard B.
Katskee, Bradley Girard, and Alexander Gouzoules,
Americans United for Separation of Church and State,
Washington, D.C.; for Defendant-Appellee.
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;

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8 KENNEDY V . B REMERTON S CHOOL DISTRICT
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.

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KENNEDY V . B REMERTON S CHOOL DISTRICT 9
ORDER
A judge of this court sua sponte requested a vote on
whether to rehear this case en banc. A vote was taken and
the matter failed to receive a majority of the votes of the
nonrecused active judges in favor of en banc consideration.
See Fed. R. App. P. 35(f). Rehearing en banc is DENIED.
Judge Bress did not participate in the deliberations or
vote in this case.
M. SMITH, Circuit Judge, concurring in the denial of
rehearing en banc:
Unlike Odysseus, who was able to resist the seductive
song of the Sirens by being tied to a mast and having his
shipmates stop their ears with bees’ wax, our colleague,
Judge O’Scannlain, appears to have succumbed to the Siren
song of a deceitful narrative of this case spun by counsel for
Appellant, to the effect that Joseph Kennedy, a Bremerton
High School (BHS) football coach, was disciplined for
holding silent, private prayers. That narrative is false.
Although I discuss the events in greater detail below, the
reader should know the following basic truth ab initio:
Kennedy was never disciplined by BHS for offering silent,
private prayers. In fact, the record shows clearly that
Kennedy initially offered silent, private prayers while on the
job from the time he began working at BHS, but added an
increasingly public and audible element to his prayers over
the next approximately seven years before the Bremerton
School District (BSD) leadership became aware that he had
invited the players and a coach from another school to join
him and his players in prayer at the fifty-yard line after the
conclusion of a football game. He was disciplined only after
BSD tried in vain to reach an accommodation with him after

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10 KENNEDY V . B REMERTON S CHOOL DISTRICT
he (in a letter from his counsel) demanded the right to pray
in the middle of the football field immediately after the
conclusion of games while the players were on the field, and
the crowd was still in the stands. He advertised in the area’s
largest newspaper, and local and national TV stations, that
he intended to defy BSD’s instructions not to publicly pray
with his players while still on duty even though he said he
might lose his job as a result. As he said he would, Kennedy
prayed out loud in the middle of the football field
immediately after the conclusion of the first game after his
lawyer’s letter was sent, surrounded by players, members of
the opposing team, parents, a local politician, and members
of the news media with television cameras recording the
event, all of whom had been advised of Kennedy’s intended
actions through the local news and social media.
In his statement, Judge O’Scannlain omits most of the
key facts in this case, reorders the chronology of events, and
ignores pertinent Establishment Clause law, much of which
has been in place for more than half a century.
I.
When Joseph Kennedy was hired by BSD in 2008, his
post-game prayers were initially silent and private. Kennedy
v. Bremerton Sch. Dist. (Kennedy III), 991 F.3d 1004, 1010
(9th Cir. 2021). Over the ensuing years, however, Kennedy
made it his mission to intertwine religion with football.
Eventually, he led the team in prayer in the locker room
before each game, and some players began to join him for
his post-game prayer, too, where his practice ultimately
evolved to include full-blown religious speeches to, and
prayers with, players from both teams after the game,
conducted while the players were still on the field and while
fans remained in the stands. Id.

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KENNEDY V . B REMERTON S CHOOL DISTRICT 11
When BSD’s Athletic Director heard about Kennedy’s
practices, he told Kennedy that he should not be conducting
prayers with his players. Id. Kennedy then wrote on his
Facebook page that he thought he might have been fired for
praying. Id. at 1011. According to Principal John Polm’s
deposition, that post resulted in “thousands of people saying
they were going to attend and storm the field with [Kennedy]
after the game.” In addition, Superintendent Aaron Leavell
wrote in his declaration that “[o]nce the topic arose, the
District was flooded with thousands of emails, letters, and
phone calls from around the country, many of which were
hateful or threatening.” Kennedy III, 991 F.3d at 1011.
Clearly, from that time forward, the public was watching to
see whether BSD would permit Kennedy to continue his
demonstrative religious practices while he was on the job.
The public’s interest was neither surprising nor unintended;
during the course of these events, Kennedy gave numerous
media interviews describing his practice of praying mid-
field at the conclusion of BHS’s games, and of his intention
to defy BSD in so doing.
Having learned of Kennedy’s on-duty religious practice,
BSD concluded that it needed to make certain the coaching
staff clearly understood the parameters of what was expected
of them regarding religious activities while on the job. Id.
BSD told the coaching staff that they could and should
continue giving inspirational talks to their players but that
“[t]hey must remain entirely secular in nature, so as to avoid
alienation of any team member.” Id. BSD also 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.” Id. BSD
further counseled 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

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12 KENNEDY V . B REMERTON S CHOOL DISTRICT
history and context of such activity at BHS, as endorsement
of that activity.” Id. Last, BSD stressed that Kennedy
personally 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.
Id.
Kennedy initially followed BSD’s instructions, ceasing
both his pre-game and post-game prayers, but he eventually
commenced a very public campaign against BSD focused
only on the post-game activity. Quoting from our opinion:
Kennedy’s increasingly direct challenge to
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-

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KENNEDY V . B REMERTON S CHOOL DISTRICT 13
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 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.”[1]
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
1 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.

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14 KENNEDY V . B REMERTON S CHOOL DISTRICT
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
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 self-evidently [false].
Moreover, Kennedy’s counsel acknowledged
in his October 14, 2015 letter that Kennedy’s
prayers were “verbal” and “audible,” flatly

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KENNEDY V . B REMERTON S CHOOL DISTRICT 15
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

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16 KENNEDY V . B REMERTON S CHOOL DISTRICT
players, and several television cameras
photographing the scene.[2]
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”
2
Post-game ritual on the field, October 16, 2015

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KENNEDY V . B REMERTON S CHOOL DISTRICT 17
accommodate “religious exercise that would
not be 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 fifty-yard 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.
. . . .
During this time, other BSD employees
testified that they suffered repercussions due

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18 KENNEDY V . B REMERTON S CHOOL DISTRICT
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 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 III, 991 F.3d at 1012–14.

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KENNEDY V . B REMERTON S CHOOL DISTRICT 19
When Kennedy sought injunctive relief from the
Supreme Court after we decided Kennedy v. Bremerton
School District (Kennedy I), 869 F.3d 813 (9th Cir. 2017),
Justice Alito noted that “important unresolved factual
questions would make it very difficult if not impossible at
this stage to decide the free speech question that the petition
asks us to review.” Kennedy v. Bremerton Sch. Dist.
(Kennedy II), 139 S. Ct. 634, 635 (2019) (mem.) (Alito, J.,
concurring in denial of certiorari). Specifically, Justice Alito
believed that the Court was unable to review our decision
until the record was clear about “the basis for the school’s
action” against Kennedy. Id. But after the case was
remanded to the district court and discovery was completed,
the district court ruled that “the risk of constitutional
liability associated with Kennedy’s religious conduct was
the ‘sole reason’ the District ultimately suspended him.”
Kennedy III, 991 F.3d at 1010 (emphasis added).
Judge O’Scannlain recounts only the facts that he claims
are “constitutionally relevant.” While our panel—like the
Supreme Court—“refuse[s] to turn a blind eye to the context
in which” an Establishment Clause violation would arise,
Santa Fe Independent School District v. Doe, 530 U.S. 290,
315 (2000), many of the facts that Judge O’Scannlain
selectively deems “constitutionally relevant” in his
statement are unmoored from the record. For the reader’s
convenience, I here provide each material unmoored
statement below, along with the accurate version, as
reflected in the record.
The unmoored claim What the record actually
shows
“[S]tudents and coaches
began to join Kennedy in
prayer of their own accord.”
There is no support for the
suggestion that players
could have avoided

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20 KENNEDY V . B REMERTON S CHOOL DISTRICT
Statement at 46
(O’Scannlain, J., statement
regarding denial of
rehearing en banc).
Kennedy’s pre-game locker
room prayers or post-game
on-field prayers. At least
one atheistic student athlete
only participated in the
post-game prayers because
he feared he would get less
playing time if he declined.
No students prayed on the
field without Kennedy
when Kennedy paused his
practice of doing so.
“Kennedy’s prayer—no
matter how personal,
private, brief, or quiet—
was wholly unprotected by
the First Amendment.”
Statement at 52
(O’Scannlain, J., statement
regarding denial of
rehearing en banc).
Kennedy’s prayer was
public, audible, and created
a scene that included
students being knocked
down in the rush to jump
over the fence to join
Kennedy on the field.
“Kennedy essentially asked
his employer to do
nothing—simply to tolerate
the brief, quiet prayer of
one man.” Statement at 64
(O’Scannlain, J., statement
regarding denial of
rehearing en banc).
Kennedy engaged in private
prayer for several years.
But when BSD learned that
he had begun leading
students in pre-game locker
room prayers and giving
overtly religious speeches
on the field post-game, it
directed him to stop that
practice. Kennedy
demanded that his
employer allow him to

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KENNEDY V . B REMERTON S CHOOL DISTRICT 21
engage in a public religious
demonstration surrounded
by school-age children in
front of a large crowd, in an
area he could only access
because he was a public
employee.
The panel relied “simply on
the existence of a District
policy that coaches should
‘exhibit sportsmanlike
conduct at all times’” to
determine Kennedy’s job
duties. Statement at 52
(O’Scannlain, J., statement
regarding denial of
rehearing en banc).
The panel relied on
numerous facts in the
record, including BSD’s
direction that Kennedy
engage in motivational
speech to students of a
secular nature at the end of
each game. The panel also
relied on Kennedy’s own
characterization of his
duties as a role model and
mentor, and his agreement
to “maintain positive media
relations,” “obey all the
Rules of Conduct before
players and public,” and
“serve[] as a personal
example.” Kennedy
“plainly understood that
demonstrative
communication fell within
the compass of his
professional obligations.”
Kennedy I, 869 F.3d at 826.
“[O]n the panel’s view, a
school can restrict any
A school can guide the
content of demonstrative

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22 KENNEDY V . B REMERTON S CHOOL DISTRICT
speech for any reason so
long as it instructs its
employees to demonstrate
good behavior in the
presence of others.”
Statement at 54
(O’Scannlain, J., statement
regarding denial of
rehearing en banc).
speech to students during
times when the employee’s
job duties require that
speech. Kennedy III, 991
F.3d at 1015.
The panel held “that prayer
was one of Kennedy’s job
duties when his employer
maintained a policy
banning it[.]” Statement
at 58 (O’Scannlain, J.,
statement regarding denial
of rehearing en banc).
The panel held that speech
and demonstrative conduct
after football games was
one of Kennedy’s job
duties, and therefore, his
carrying out of those duties
was speech as a public
employee. Kennedy I, 869
F.3d at 826. This is
quintessential regulable
government employee
speech.
“Only by ignoring
everything the District said
and did could an observer
(mistakenly) think the
school was endorsing
Kennedy’s [prayer].”
Statement at 67
(O’Scannlain, J., statement
regarding denial of
rehearing en banc).
Given Kennedy’s media
campaign, if BSD had
dropped its opposition to
Kennedy’s prayer instead
of suspending him, an
objective observer would
believe that BSD now
agreed that Kennedy was
allowed to publicly pray
surrounded by his players
as a demonstration for the
crowd. BSD’s prior

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KENNEDY V . B REMERTON S CHOOL DISTRICT 23
objection to the practice,
followed by its accession,
would magnify, not
diminish, BSD’s stamp of
approval.
“[T]he panel neglects other,
more narrowly tailored
remedies.” Statement at 68
(O’Scannlain, J., statement
regarding denial of
rehearing en banc).
Kennedy rejected any
compromise and demanded
that he be allowed to pray
on the field surrounded by
his players and in front of
all the game’s attendees.
“[T]he district could have
disclaimed Kennedy’s
prayer.” Statement at 69
(O’Scannlain, J., statement
regarding denial of
rehearing en banc).
A disclaimer would have no
effect on the proven
coercive effect Kennedy’s
prayers had on his players.
This coercive effect is
documented in the record.
II.
With the real facts in mind, let us next consider the
relevant law. Kennedy alleged BSD’s actions violated his
First Amendment Free Speech rights. 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). Eng’s second
and fourth questions are at issue in this case: whether
Kennedy spoke as a private citizen or as a public employee,
and whether BSD had adequate justification for treating
Kennedy differently from other members of the public. BSD
argued Kennedy’s Free Speech claim failed because he
spoke as a public employee and, even if he spoke as a private

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24 KENNEDY V . B REMERTON S CHOOL DISTRICT
citizen, BSD had adequate justification for treating Kennedy
as it did because BSD would have violated the Establishment
Clause if it had permitted Kennedy to continue his religious
practices on the field.
I begin my legal analysis where Judge O’Scannlain
ended: with the Establishment Clause.
By the time of the adoption of thef
Constitution, our history shows that there was
a widespread awareness among many
Americans of the dangers of a union of
Church and State. These people knew, some
of them from bitter personal experience, that
one of the greatest dangers to the freedom of
the individual to worship in his own way lay
in the Government’s placing its official
stamp of approval upon one particular kind of
prayer[.]
Engel v. Vitale, 370 U.S. 421, 429 (1962). For that reason,
the Court in Engel held that a New York school district
violated the Establishment Clause by having students recite
a prescribed non-denominational prayer at the beginning of
each school day. Id. at 436. Following Engel, Establishment
Clause doctrine evolved to take special care when
challenged religious endorsement occurred in schools. See
Lee v. Weisman, 505 U.S. 577, 592 (1992) (“[T]here are
heightened concerns with protecting freedom of conscience
from subtle coercive pressure in the elementary and
secondary public schools.”). In Lee, the Court held that it
was unconstitutional for a Providence, Rhode Island high
school to include a prayer by a clergyman in its graduation
ceremony. Id. at 599. When discussing the graduation
prayer, the Court was guided by “the lesson of history that
was and is the inspiration for the Establishment Clause, the

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KENNEDY V . B REMERTON S CHOOL DISTRICT 25
lesson that in the hands of government what might begin as
a tolerant expression of religious views may end in a policy
to indoctrinate and coerce.” Id. at 591–92. Religious
expression that bears “the imprint of the State” results in
“grave risk [to] that freedom of belief and conscience which
are the sole assurance that religious faith is real, not
imposed.” Id. at 590, 592. And in Abington Township, the
Court ruled that optional morning readings from the Bible in
public schools were unconstitutional, writing, “[W]e cannot
accept that the concept of neutrality, which does not permit
a State to require a religious exercise even with the consent
of the majority of those affected, collides with the majority’s
right to free exercise of religion.” Sch. Dist. of Abington
Twp., Pa. v. Schempp, 374 U.S. 203, 225–26 (1963). The
Court continued, “While the Free Exercise Clause clearly
prohibits the use of state action to deny the rights of free
exercise to anyone, it has never meant that a majority could
use the machinery of the State to practice its beliefs.” Id.
at 226. This brief review of the treatment of prayer in
schools brings us to Kennedy’s claim that he should have
been allowed to use his access to the BSD’s football field,
its sports program, and the attention of BSD’s spectators, to
practice his beliefs.
If allowing Kennedy to continue his religious practice
would have violated the Establishment Clause, BSD’s
restriction had “an adequate justification” for Pickering/Eng
purposes, and its action was thus constitutional. See Good
News Club v. Milford Cent. Sch., 533 U.S. 98, 112 (2001)
(holding that “a state interest in avoiding an Establishment
Clause violation ‘may be characterized as compelling,’” and
justify restricting other First Amendment rights).
Judge O’Scannlain contends that the panel failed to
identify the state action that constitutes an Establishment

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26 KENNEDY V . B REMERTON S CHOOL DISTRICT
Clause violation. That is a curious misreading of our
opinion. We explained that Kennedy’s media appearances
and refusal to comply with BSD directives had created a
public controversy, and, understanding how Kennedy’s
religious practice had evolved, we specifically identified
“BSD’s allowance of [Kennedy’s religious] activity” as the
state action that would have violated the Establishment
Clause. Kennedy III, 991 F.3d at 1017; see Santa Fe,
530 U.S. at 305–06 (holding that a school’s choice to permit
student religious activity is enough to make student-led
“pregame prayers bear the imprint of the State” (internal
quotation marks omitted)). In writing that “private religious
speech on public school property does not constitute state
action and therefore does not run afoul of the Establishment
Clause,” Statement at 63 (O’Scannlain, J., statement
regarding denial of rehearing en banc), Judge O’Scannlain
puts the cart before the horse and ignores the controlling rule
from Santa Fe. In reality, religious speech uttered by an
individual on school property can violate the Establishment
Clause if an objective observer would view the speech as
stamped with the school’s seal of approval. For example, in
Collins v. Chandler Unified School District, we held that the
school’s practice of permitting students to say a prayer of
their choosing at the beginning of student assemblies
violated the Establishment Clause. 644 F.2d 759, 760–61
(9th Cir. 1981). The Student Council (not the school itself)
selected the individual who would give the prayer and noted
the event on the assembly agenda. Id. Like in Kennedy, the
prayer in Collins was the independent choice of private
individuals. Merely by allowing the prayer to take place, the
school violated the Establishment Clause. The same would

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KENNEDY V . B REMERTON S CHOOL DISTRICT 27
be true here if BSD had allowed Kennedy’s prayers to
continue.3
Judge O’Scannlain’s statement misses the crucial point
that becomes clear when the events are viewed in the order
in which they actually occurred. The panel was required to
address the choice BSD confronted: impose some limits on
Kennedy’s First Amendment expression, or violate the
Establishment Clause. It is only through this analysis that
we could determine whether BSD’s decision to limit
Kennedy’s religious expression was backed by a compelling
interest.
As the Supreme Court made clear in Santa Fe, the
context in which religious expression occurs is the
touchstone for the Establishment Clause analysis. Santa Fe,
530 U.S. at 303–08. The Court instructed us to ask “whether
an objective observer, acquainted with the text, [ ] history,
and implementation of [the policy], would perceive it as a
state endorsement of prayer in public schools.” Id. at 308
(citation omitted). For this reason, we examined the context
in which Kennedy’s prayers occurred, including his
publicity-seeking activities leading up to the games on
October 16, 23, and 26 (after which he was suspended), the
Coach’s historical practice that resulted in players feeling
pressure to pray with him, and his insistence that the prayer
take place before the football players left the field or the fans
left the stands. (As noted, BSD offered Kennedy multiple
accommodations, including one—which he accepted for a
3 Incidentally, in rejecting another prayer-in-schools Establishment
Clause claim, Judge O’Scannlain attempted to distinguish Collins. Doe
v. Madison Sch. Dist. No. 321, 147 F.3d 832, 836 (9th Cir. 1998). But
his opinion was vacated upon en banc rehearing, and the en banc court
decided the case on different grounds. 177 F.3d 789 (9th Cir. 1999).

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28 KENNEDY V . B REMERTON S CHOOL DISTRICT
time—that allowed him to wait until students had left the
field to say his mid-field prayer.) And like the Court in Santa
Fe, we concluded that if BSD had allowed Kennedy to
continue his activities rather than suspending him, an
objective observer would have been left with no doubt that
BSD endorsed the integration of prayer into the football
games.
Still, Judge O’Scannlain maintains, our examination
“drain[ed]” the Establishment Clause case law of “the
factors animating [its] logic,” which our colleague lists as
“the school policy, the degree of control over employee
speech, neutrality toward religion, or the possibility of
coercion.” In fact, these considerations featured
prominently in Kennedy III: as stated previously, “the school
policy” is set out in our opinion, and the question was
whether BSD could allow Kennedy’s religious expression
directed at students. As for the degree of control over
Kennedy’s speech, BSD personnel specifically instructed
Kennedy “(1) that he should speak to players post-game and
(2) what the speeches should be about[.]” Kennedy III,
991 F.3d at 1016. With respect to neutrality toward religion,
allowing Kennedy to pray in the manner he demanded would
have forced BSD either to open the field to all religious
practices or forgo neutrality. As we explained, “[a] Satanist
religious group contacted BSD in advance of the [October
16] game to notify them that ‘it intended to conduct
ceremonies on the field after football games if others were
allowed to.’” Id. at 1012. And as for the possibility of
coercion, Kennedy III extensively discussed the
uncontroverted direct and circumstantial evidence in the
record that some of the players felt coerced to pray with
Coach Kennedy, and that he intended to continue that
practice. Id. at 1018 (“Over time, little by little, his players
began to join him in this activity—at least one out of a fear

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KENNEDY V . B REMERTON S CHOOL DISTRICT 29
that declining to do so would negatively impact his playing
time.”); id. at 1012 (“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].’”); id. at 1013 (“When
Kennedy was on leave, and during the time he temporarily
ceased performing on-field prayers, BHS players did not
initiate their own post-game prayer.”). We addressed every
factor Judge O’Scannlain says we ignored, and each
supported our disposition. Given Kennedy’s own statement
that he would pray with students if allowed to remain at his
post, id. at 1012, the (very real) threat of an Establishment
Clause violation justified his suspension.
Judge O’Scannlain’s final assertion is that we
overlooked BSD’s option to provide a disclaimer that
Kennedy’s religious activity did not carry the school’s
endorsement. But this resolution would not dispel the
pressure that players on the team felt to join in their coach’s
prayer circle out of fear that their playing time would suffer
if they opted out. Disclaimers are insufficient in “coercive”
contexts, Lassonde v. Pleasanton Unified Sch. Dist.,
320 F.3d 979, 984–85 (9th Cir. 2003); our colleague’s
statement conveniently omits the uncontested evidence that
Kennedy’s conduct left some of his players feeling pressure
to participate in mid-field prayers after the game. In
addition, the record also shows that no players prayed on the
field when Kennedy was not there, which speaks to the
coercive effect of Kennedy’s religious practices.
I must not neglect to mention the dissent of a second
colleague who believes our opinion should have been
reheard en banc, Judge Ryan Nelson. Judge R. Nelson’s
dissent to the denial of rehearing en banc appears to be based
on two claims: (1) Santa Fe should not be extended because

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30 KENNEDY V . B REMERTON S CHOOL DISTRICT
it is “ahistorical”; and (2) we applied Santa Fe’s test
incorrectly. Cabining Supreme Court precedent is a job for
the Supreme Court—not a three-judge or en banc panel of
our court—and I suspect Judge R. Nelson is fully aware of
that fact. See Rodriguez de Quijas v. Shearson/Am. Express,
Inc., 490 U.S. 477, 484 (1989) (“[T]he Court of Appeals
should follow the case which directly controls, leaving to
[the Supreme] Court the prerogative of overruling its own
decisions.”). Likewise, Judge Ikuta’s suggestion that we
should have taken this case en banc to develop a “framework
for evaluating how a public employer can protect its
employee’s religious expression without becoming
vulnerable to an Establishment Clause claim” would
ostensibly conflict with the Supreme Court’s decisions that
already prescribe how courts should evaluate prayer in
schools. We are not at liberty to make such a change.
As for the second of Judge R. Nelson’s concerns, I
strongly disagree. Initially, Judge R. Nelson prejudges the
issue by claiming that the panel’s reliance on Santa Fe was
“inapt” because permitting Kennedy’s prayer would not
have been an endorsement of religion. Dissent at 75
(R. Nelson, J., dissenting from denial of en banc rehearing).
However, the Santa Fe test is how we are required to
determine whether a particular state action
unconstitutionally establishes religion. For that reason, the
panel did not “extend” Santa Fe—we applied the relevant
law to the facts in the record. Moreover, there are
substantive problems with Judge R. Nelson’s contention that
players were not coerced into joining Kennedy’s prayers.
Most importantly, Judge R. Nelson gives short shrift to the
clear line the Supreme Court has drawn between adults and
children in discussing Establishment Clause coercion. In
Town of Greece, the case upon which Judge R. Nelson relies
for his coercion argument, the Court in fact distinguished “an

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KENNEDY V . B REMERTON S CHOOL DISTRICT 31
unconstitutional imposition as to mature adults, who
‘presumably’ are ‘not readily susceptible to religious
indoctrination or peer pressure,’” from high school students
at a school-sponsored event. Town of Greece, N.Y. v.
Galloway, 572 U.S. 565, 590 (2014) (citation omitted).
Unlike in adult environments, taking into account “students’
emulation of teachers as role models and the children’s
susceptibility to peer pressure,” “[t]he 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). Judge
R. Nelson’s coercion argument falls flat because it treats
children as adults, in contravention of the Supreme Court’s
instruction that the two are different for purposes of
determining the danger of coercion.
Additionally, Judge R. Nelson minimizes the experience
of the student athlete who prayed with Kennedy in
contravention of his own religious beliefs because he felt
that declining to do so would decrease his playing time.
Dissent at 80, (R. Nelson, J., dissenting from denial of
rehearing en banc). This student’s experience—which is
undisputed in the record—perfectly illustrates the
importance of the difference between teens and adults that
the Court set forth in Town of Greece. Why is this student’s
right to be free from coercive pressure to violate his own
religious beliefs inferior to Kennedy’s right to practice his in
such a public and demonstrative way? Judge R. Nelson’s
outright dismissal of this student’s actual participation in a
religious exercise that violated his beliefs is surprising. It
implies that religious freedom is reserved for sectarian
Christians, but not necessarily for those who are Jewish,
Muslim, Buddhist, atheist, or who hold to other creeds. That
approach, of course, flies in the face of current Supreme
Court law.

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32 KENNEDY V . B REMERTON S CHOOL DISTRICT
Finally, Judge R. Nelson conflates the coercion inquiry
with the Santa Fe inquiry, which perhaps contributes to his
mistaken perspective on this issue. See Dissent at 80 n.5
(R. Nelson, J., dissenting from denial of rehearing en banc).
Kennedy’s publicity campaign was relevant not because it
coerced the public to storm the field, but because it was
essential to consider the context of Kennedy’s religious
activity in determining whether BSD’s dropping its
objection to Kennedy’s behavior would cause an objective
observer to view the activity as stamped with the school’s
seal of approval. In contrast, the coercive effect of
Kennedy’s religious activity is apparent from the record of
events before BSD instructed Kennedy to stop leading
students in prayer. By the same token, this evidence shows
that it is also likely that players would feel pressured to join
Kennedy’s prayer in the future if BSD gave Kennedy back
his religious bully pulpit.
Several of our dissenting colleagues also suggest that the
conflict between Kennedy and BSD made clear that BSD did
not endorse Kennedy’s religious activity. As stated above,
the operative fact in this hypothetical would be BSD
dropping its opposition to the activity—the very outcome
Kennedy sought. Dropping opposition to the practice is
different in kind from publicly opposing it. But more
broadly, adopting a rule that rewards an employee’s ability
to garner public support and media coverage of a dispute
with his employer would come with perverse incentives. Let
us assume for a moment that an employer will act more
forcefully to curb a more egregious potential Establishment
Clause violation. Under a rule that uses the force of the
employer’s response to decide whether there ever was an
Establishment Clause violation in the first place, the worst
violations that receive the strongest responses would no
longer be considered violations. That approach simply

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KENNEDY V . B REMERTON S CHOOL DISTRICT 33
makes no sense, and conflicts sharply with current Supreme
Court law.
III.
The actual facts of the case also leave no question that
Kennedy did not carry his burden to show that he spoke as a
private citizen, which is an independent basis to affirm the
district court.4 In reaching the opposite conclusion, Judge
O’Scannlain sets aside the context of Kennedy’s audible
prayers as well as Kennedy’s acknowledgment that he was
on duty while on the field with his players, and contends that
our panel misapplied Garcetti v. Ceballos, 547 U.S. 410
(2006), the central Supreme Court precedent for determining
whether a government employee speaks as a private citizen
or as a public official.
Judge O’Scannlain’s contention that our opinion
misapplied Garcetti is simply wrong on the current law. In
Garcetti, the Court wrote that “[w]hen a citizen enters
government service, the citizen by necessity must accept
certain limitations on his or her freedom.” 547 U.S. at 418.
One reason for this is that government employees “often
occupy trusted positions in society,” id. at 419, (such as a
4 Judge O’Scannlain appears to disapprove of the fact that our
opinion included alternative holdings on prongs two and four of the Eng
test. Statement at 59 (O’Scannlain, J., statement regarding denial of
rehearing en banc). The practice of including alternative holdings or
arguendo assumptions is quite common, familiar to, and used by Judge
O’Scannlain, and does not connote a court’s lack of confidence in the
first alternative holding. See Ctr. for Biological Diversity v. Lohn,
511 F.3d 960, 965 (9th Cir. 2007) (O’Scannlain, J.); Friends of
Southeast’s Future v. Morrison, 153 F.3d 1059, 1069 (9th Cir. 1998)
(O’Scannlain, J.); Huffman v. Cnty. of L.A., 147 F.3d 1054, 1060 (9th
Cir. 1998) (O’Scannlain, J.); League of United Latin Am. Citizens v.
Wilson, 131 F.3d 1297, 1307 (9th Cir. 1997) (O’Scannlain, J.).

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34 KENNEDY V . B REMERTON S CHOOL DISTRICT
mentor to high school students, as Kennedy was). When a
person in a trusted position “speak[s] out, they can express
views that contravene governmental policies or impair the
proper performance of governmental functions.” Id. At
bottom, “[u]nderlying [the Court’s] cases has been the
premise that while the First Amendment invests public
employees with certain rights, it does not empower them to
‘constitutionalize the employee grievance.’” Id. at 420
(quoting Connick v. Thompson, 461 U.S. 138, 154 (1983)).
Garcetti considered several factors: whether the employee
speech was expressed internally or publicly, whether the
speech concerned the subject matter of the employee’s job,
and—most importantly—whether the speech was “made
pursuant to his duties” as a public employee. Id. at 420–22.
In subsequent cases, our circuit alternately phrased this last
inquiry as whether “the speech at issue owes its existence to”
the speaker’s government employment. Johnson v. Poway
Unified Sch. Dist., 658 F.3d 954, 970 (9th Cir. 2011), cert.
denied, 566 U.S. 906 (Mar. 26, 2012). 5
An integral part of Kennedy’s job was serving as a
mentor and role model to students.6 BSD recognized that
5 Judge O’Scannlain’s statement also relies heavily on the minority
statement regarding denial of certiorari the last time this case was before
the Supreme Court. It bears repeating that the relevant justices
acknowledged they did not have the benefit of factual development in
this case when the statement was made, and that four justices do not
represent the opinion of the Court.
6 It was also Kennedy’s stated intent that his behavior set an example
for children watching. Kennedy testified during his deposition that his
behavior in the presence of students was “always setting some kind of an
example to the kids . . . to do what is right.” (Emphasis added.) In an
interview published on May 3, 2019, Kennedy affirmed that he viewed
his religious activity as setting an example, stating “[A]s a Marine, I
knew I had to fight. I always told the young men whom I coached to

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KENNEDY V . B REMERTON S CHOOL DISTRICT 35
one of the ways in which he carried out this duty was by
giving post-game motivational speeches to his players on the
field after football games. Kennedy’s employer requested
that he engage in such expressions. In BSD’s September 17
letter to Kennedy, Superintendent Aaron Leavell wrote,
“You may continue to provide motivational inspirational
talks to students before, during and after games and other
team activity, focusing on appropriate themes . . . that have
long characterized your very positive and beneficial talks
with students.” Leavell later wrote to Kennedy that he
“values very highly” Kennedy’s “positive contributions to
the BHS football program and in particular,” his
“motivational and inspirational talks to players” after games.
Leavell “encourage[d] continuation of” the practice of post-
game secular motivational speeches to students.
Applying Garcetti to this fact pattern, the record leaves
no doubt that Kennedy’s prayers were speech in his capacity
as a public employee. Kennedy insisted on expressing his
religious speech publicly (indeed, he refused to wait until the
audience had left the stadium so his prayers could be
observed by all those on the field and in the stadium); the
record shows he would not have had access to the field if he
had not been working as a coach; he admitted he was on duty
when he prayed on the field; and the prayers were uttered in
violation of his employer’s instructions as part of the post-
game motivational speeches his employer had encouraged
him to continue providing for the players. Given these facts,
there can be no genuine dispute that this speech was within
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[.]” See
Kennedy III, 991 F.3d at 1017 n.2. Clearly, Kennedy himself viewed
persisting in his public prayers as part of his service as a role model to
students in fulfillment of his job duties.

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36 KENNEDY V . B REMERTON S CHOOL DISTRICT
Kennedy’s job description, and I reject the notion that our
conclusion somehow improperly broadens Kennedy’s duties
in a way that contravenes Garcetti.
* * *
In sum, based on the actual facts of the case, our
conclusion in Kennedy III faithfully applies the relevant
current law. I hope as this case proceeds that the truth of
what actually happened will prevail, but whether it does or
not, I personally find it more than a little ironic that
Kennedy’s “everybody watch me pray” staged public
prayers (that spawned this multi-year litigation) so clearly
flout the instructions found in the Sermon on the Mount on
the appropriate way to pray.7 I concur in our court’s denial
of rehearing this case en banc.
7 5 And when thou prayest, thou shalt not be as the hypocrites are:
for they love to pray standing in the synagogues and in the corners of the
streets, that they may be seen of men. Verily I say unto you, They have
their reward.
6 But thou, when thou prayest, enter into thy closet, and when thou
hast shut thy door, pray to thy Father which is in secret; and thy Father
which seeth in secret shall reward thee openly. Matt 6:5–6 (King James).

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KENNEDY V . B REMERTON S CHOOL DISTRICT 37
CHRISTEN, Circuit Judge, joined by D.W. NELSON,
Senior Circuit Judge, concurring in the denial of rehearing
en banc:
I do not typically publish my views concerning our
court’s decisions to grant or deny rehearing en banc, but I
make an exception here because the salient facts that
compelled our three-judge panel’s decision to affirm the
district court’s summary judgment ruling may be obscured
by the spirited statements dissenting from our court’s denial
of rehearing en banc. Our three-judge panel unanimously
affirmed the district court’s summary judgment ruling
because Coach Kennedy spoke as a public employee,
because Bremerton School District (BSD) did not
demonstrate a hint of hostility or bias toward religion or non-
religion, and because BSD had a compelling interest in
avoiding an Establishment Clause violation. Kennedy v.
Bremerton Sch. Dist. (Kennedy III), 991 F.3d 1004, 1014–
21 (9th Cir. 2021) (citing Good News Club v. Milford Cent.
Sch., 533 U.S. 98, 113–14 (2001)). The outcome of this
appeal was driven by the particular facts and circumstances
of Coach Kennedy’s post-game, on-field prayers, see id. at
1010–14, so it is critically important that we not stray from
the facts that are supported by the record.
To begin, given the record presented to the district court,
there is no genuine dispute that Coach Kennedy spoke as a
public employee. Recognizing the Supreme Court’s caution
that job descriptions must not be read too broadly, Garcetti
v. Ceballos, 547 U.S. 410, 424 (2006), the proper inquiry to
determine whether a task is within the scope of a public
employee’s professional duties is a practical one, id. Here,
the practical inquiry into the duties of a high school football
coach must acknowledge that football coaches occupy a
significant leadership role in their high school communities

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38 KENNEDY V . B REMERTON S CHOOL DISTRICT
and wield undeniable—perhaps unparalleled—influence
where their players are concerned.1 Kennedy III, 991 F.3d
at 1015–16, 1025. Contrary to our dissenting colleagues’
suggestions, the parties did not consider this point to be
controversial. Indeed, Coach Kennedy agreed that “for some
kids, the coach might even be the most important person they
encounter in their overall life,” and that “the scope of what a
coach has to do with some of the kids . . . is much more than
what any teacher in a classroom has to do.” Id. at 1025.
Second, regardless of Coach Kennedy’s subjective
intent, there was uncontroverted evidence that Coach
Kennedy’s prayerful speech had a coercive effect on his
players. At least one student felt compelled to join Coach
Kennedy’s post-game prayers, contrary to the player’s own
beliefs, because he feared he would get less playing time if
he did not participate. The record also shows that the players
did not initiate their own post-game prayer when Coach
Kennedy temporarily ceased his practice, nor after Coach
Kennedy had been suspended. The conscientious district
judge assigned to this case appropriately factored these
practical considerations into his description of Coach
Kennedy’s job duties, and recognized that, in addition to
teaching students how to play the game, i.e., teaching players
how to block and tackle, Coach Kennedy’s job required him
to motivate and mentor students, set a good example, and
1 See Brief of Amicus Curiae Former Professional Football Players
Steve Largent and Chad Hennings at 1–2, Kennedy v. Bremerton,
869 F.3d 813 (9th Cir. 2017) (No. 16-35801), 2016 WL 6649979 at *1
(Pro Football Hall of Famer Steve Largent “credits his successes on and
off the field in large part to the positive influence of the men who
coached him in his own youth,” and College Football Hall of Famer
Chad Hennings “attributes much of his success to lessons imparted to
him by the men who coached him throughout his scholastic and
professional athletic endeavors.”).

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KENNEDY V . B REMERTON S CHOOL DISTRICT 39
strive to “create good athletes and good human beings.” See
id. at 1010.
Third, our three-judge panel did not suggest that a coach
or teacher necessarily speaks as a public employee every
time he or she prays within eyeshot of students. Indeed, we
illustrated that point by including a few examples where
educators might engage in brief on-duty prayer that would
be plainly private and pose no risk of violating the
Establishment Clause. Id. at 1015–16, 1025. We explained
that a teacher tasked with supervising a high school cafeteria
would not risk an Establishment Clause violation if she took
a moment to give thanks before eating her meal, and that the
Establishment Clause “can surely accommodate high school
students observing a teacher giving thanks for an ‘all clear’
announcement in the wake of a safety scare.” Id. at 1015,
1025. We had no reason to explore or define the permissible
limits of such speech in a school setting because Coach
Kennedy’s prayer so clearly crossed the line by purposefully
sending a very public message. Coach Kennedy’s prayers
occurred on the fifty-yard line, immediately following the
team’s games, before the players left the field, under the
stadium lights, and while spectators remained in the stands.
Kennedy III, 991 F.3d at 1010, 1024. To be clear, Coach
Kennedy insisted that he pray immediately after the games,
not while the players were on their way back to the locker
room. The players had not yet left the field and were
sometimes still shaking the hands of the opposing players or
singing the school fight song when Coach Kennedy knelt
and audibly prayed. Although he initially agreed to one of
BSD’s suggested accommodations and prayed after the
players and fans left the stadium, see id. at 1011–12, it is
important to recognize that by the time the parties’ dispute
came to a head, Coach Kennedy had refused all BSD’s
accommodations and insisted that he be allowed to worship

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40 KENNEDY V . B REMERTON S CHOOL DISTRICT
at his chosen time and place: at midfield, with players and
fans present. Our conclusion that Coach Kennedy spoke as
a public employee when he prayed at midfield following the
team’s games rested on the facts in the record.
Respectfully, our colleagues’ dissenting statements
concerning the denial of rehearing en banc take sound bites
from the record out of sequence and paint an inaccurate
picture of the dilemma Coach Kennedy created. Though his
prayers may have started as personal and private, they
evolved into post-game motivational speeches to the
majority of his players, and Kennedy admitted his speeches
likely constituted prayers. Id. at 1011. After an opposing
coach informed BSD that Coach Kennedy invited the
opposing team to participate in post-game prayer, BSD
directed Coach Kennedy not to pray with the students. But
BSD encouraged Coach Kennedy to continue delivering
secular post-game motivational messages. Id. at 1011. The
district court correctly concluded that, at all times relevant
to Coach Kennedy’s claims, he spoke as a public employee
when he prayed on the field immediately following games.
Despite our dissenting colleague’s protests, the record does
not support the notion that he engaged in private personal
prayer.
A few other points bear repeating: (1) BSD never
sanctioned Coach Kennedy for engaging in private prayer;
(2) as we describe at some length, Coach Kennedy’s post-
game prayers were anything but private, id. at 1011–14,
1025; (3) nowhere did our panel suggest that a school district
will be subject to a viable Establishment Clause claim any
time a school employee engages in private prayer; (4) Coach
Kennedy rejected several accommodations BSD offered that
would have allowed him to pray privately, instead
demanding that he be permitted to pray on the fifty-yard line

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KENNEDY V . B REMERTON S CHOOL DISTRICT 41
immediately following games, while players, spectators, and
media looked on, id. at 1013, 1022. To borrow an analogy
from the district court, the venue Kennedy chose for his post-
game prayers was akin to a drama teacher taking center stage
to pray after a school play. An objective observer would
interpret a teacher’s speech, delivered from that location and
directed to a school audience, as “an extension of the school-
sanctioned speech just before it.” There is no genuine
question that Coach Kennedy’s prayers sent a very public
message.
Contrary to the statement of one of our colleagues,
Coach Kennedy was not in the position of asking BSD to “do
nothing” or “tolerate the brief, quiet prayer of one man.”
Coach Kennedy launched a national media campaign that
magnified the public nature of his post-game prayers and
painted BSD into a corner. As Judge Ikuta aptly described
the situation:
Joseph Kennedy’s highly public
demonstrations of his religious convictions
put [BSD] in a no-win situation. BSD wanted
to respect Kennedy’s right “to engage in
religious activity, including prayer,” but it
feared that allowing Kennedy to engage in
such highly public activity on the field after
football games would create a perception that
BSD was endorsing religion, in violation of
the Establishment Clause.
Following Kennedy’s multiple media interviews, he was
joined on the field by his own players, players from opposing
teams, members of the public—including a state
representative—and the media. Kennedy III, 991 F.3d
at 1010. Our three-judge panel described BSD’s
unsuccessful efforts to keep people off the football field and

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42 KENNEDY V . B REMERTON S CHOOL DISTRICT
maintain a safe environment, id. at 1012, but those efforts
were in vain. As spectators rushed to join Coach Kennedy
in on-field prayer, band members were knocked over, and
one of BSD’s coaches questioned whether he could be shot
from the crowd. Had BSD abandoned its opposition to
Coach Kennedy’s on-field prayers after his multiple
interviews with local and national media, an objective
observer would have perceived that BSD endorsed his
speech. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308
(2000).
Our dissenting colleagues suggest that BSD could have
issued a public disclaimer, but that was not a realistic option;
a public disclaimer in the wake of Coach Kennedy’s media
campaign would have only called more attention to his very
public worship. Moreover, “the ‘First Amendment
mandates governmental neutrality between religion and
religion.’” McCreary Cnty. v. Am. Civil Liberties Union of
Ky., 545 U.S. 844, 860 (2005) (quoting Epperson v.
Arkansas, 393 U.S. 97, 104 (1968)). Thus, BSD could not
simply distance itself from Kennedy’s Christian prayer and
allow Kennedy to continue; rather, BSD would have had to
permit access by other religious faiths, including the Satanist
group that had notified BSD it “intended to conduct
ceremonies on the field after football games if others were
allowed to.” Kennedy III, 991 F.3d at 1012. The suggestion
that BSD could have issued a public disclaimer is untenable;
BSD opened its forum for a football game, not for religious
worship by all comers.
This case concerns prayer in a public school, not a town
square. See Am. Legion v. Am. Humanist Ass’n, 139 S. Ct.
2067, 2092–93 (2019) (Kavanaugh, J., concurring)
(identifying “religious expression in public schools” as a
“categor[y] of Establishment Clause cases” distinct from

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KENNEDY V . B REMERTON S CHOOL DISTRICT 43
“regulation of private religious speech in public forums”);
Lee v. Weisman, 505 U.S. 577, 592 (1992) (recognizing
“heightened concerns with protecting freedom of conscience
from subtle coercive pressure in the elementary and
secondary public schools”). The touchstone of the Court’s
concern in this type of case is the risk of coercion. See Lee,
505 U.S. at 587; Santa Fe, 530 U.S. at 310–13. The district
court found no genuine dispute that Coach Kennedy’s
prayers were public, not private, and that Coach Kennedy
occupied a “powerful position in his players’ lives.” The
record includes unrebutted evidence that at least one student
felt compelled to participate in Coach Kennedy’s post-game
prayers, contrary to the student’s own religious beliefs,
because he feared he would not get as much playing time if
he did not. As such, the uncontested facts support the district
court’s conclusion that Coach Kennedy’s prayers had a
coercive effect.
In the future, we may be presented with close cases in
which our court will have an opportunity to address the
important issues raised by a public school’s response to an
employee’s private prayer. But this is not such a case. The
actual record presented in the district court bears little
resemblance to the hypothetical scenarios posited by Coach
Kennedy, and our decision faithfully applied existing
Supreme Court precedent to the particular facts presented.
Accordingly, I concur in our court’s denial of rehearing en
banc.

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44 KENNEDY V . B REMERTON S CHOOL DISTRICT
O’SCANNLAIN, Circuit Judge,1 with whom Judges
CALLAHAN, BEA, R. NELSON, COLLINS, and LEE join,
with whom Judge BUMATAY joins as to Part III, and with
whom Judge VANDYKE joins as to all parts except Part II-
B, respecting the denial of rehearing en banc:
It is axiomatic that teachers do not “shed” their First
Amendment2 protections “at the schoolhouse gate.” Tinker
v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506
(1969).3 Yet the opinion in this case obliterates such
constitutional protections by announcing a new rule that any
speech by a public school teacher or coach, while on the
clock and in earshot of others, is subject to plenary control
by the government. Indeed, we are told that, from the
moment public high school football coach Joseph Kennedy
arrives at work until the very last of his players has gone
home after a game, the Free Speech Clause simply doesn’t
apply to him.
1 As a judge of this court in senior status, I no longer have the power
to vote on calls for rehearing cases en banc or formally to join a dissent
from failure to rehear en banc. See 28 U.S.C. § 46(c); Fed. R. App. P.
35(a). Following our court’s general orders, however, I may participate
in discussions of en banc proceedings. See Ninth Circuit General Order
5.5(a).
2 U.S. Const. amend. I. References throughout this Statement will
be made to the Free Speech Clause, id. cl. 3 (“Congress shall make no
law . . . abridging the freedom of speech . . . .”), the Free Exercise
Clause, id. cl. 2 (“Congress shall make no law . . . prohibiting the free
exercise []of [religion] . . . .”), and the Establishment Clause, id. cl. 1
(“Congress shall make no law respecting an establishment of religion
. . . .”).
3 Indeed, the Supreme Court reaffirmed this principle just a few days
ago. See Mahanoy Area Sch. Dist. v. B.L. ex rel. Levy, 594 U.S. __, 2021
WL 2557069, at *4 (June 23, 2021) (citing Tinker, 393 U.S. at 506).

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KENNEDY V . B REMERTON S CHOOL DISTRICT 45
Kennedy lost his coaching job because he refused to
abandon his practice of kneeling on the field and uttering a
prayer after each football game. In 2017, the three-judge
panel decided that Kennedy’s prayer was wholly
unprotected by the Free Speech Clause. Kennedy v.
Bremerton Sch. Dist., 869 F.3d 813 (9th Cir. 2017) (Kennedy
I). In an extraordinary filing, four Justices of the Supreme
Court chastised the panel for its “highly tendentious” reading
of Garcetti v. Ceballos, 547 U.S. 410 (2006). Kennedy v.
Bremerton Sch. Dist., 139 S. Ct. 634, 636 (2019) (statement
of Alito, J.) (Kennedy II).
Rather than heed the extremely rare interlocutory
guidance of four Justices, the panel has doubled down on its
“troubling” view. Id. (statement of Alito, J.). The panel now
declares not only that the school district was permitted to
suspend Kennedy, but also that it was constitutionally
required to do so. Kennedy v. Bremerton Sch. Dist., 991 F.3d
1004, 1016–19 (9th Cir. 2021) (Kennedy III). That is strange
indeed, given that this is not an action brought by a student
or parent who alleges the government coerced his or her
participation in a state-sponsored prayer service. No matter,
the opinion here weaponizes the Establishment Clause to
defeat the Free Exercise claim of one man who prayed “as a
private citizen.” Id. at 1016.
Our circuit now lies in clear conflict with Garcetti and
decades of Supreme Court cases affirming the principle that
the First Amendment safeguards—not banishes—private,
voluntary religious activity by public employees. A decision
at odds with Free Speech, Free Exercise, and Establishment
Clause jurisprudence all at once, this case certainly
warranted a rehearing en banc. It is unfortunate that our court
has declined the opportunity to do so.

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46 KENNEDY V . B REMERTON S CHOOL DISTRICT
I
A
First, the facts—more specifically, the constitutionally
relevant facts.4 Joseph Kennedy was a football coach of
Bremerton High School from 2008 to 2015. Kennedy III,
991 F.3d at 1010. A devout Christian, Kennedy sincerely
believes that he is obliged to give thanks to God through
prayer after each football game. Id. From the time he started
coaching, Kennedy would “kneel at the 50-yard line and
offer a brief, quiet prayer of thanksgiving for player safety,
sportsmanship, and spirited competition.” Id. His prayer
“usually lasted about thirty seconds.” Id.
Over the years, students and coaches began to join
Kennedy in prayer of their own accord. Id. Sometimes
Kennedy prayed quietly by himself; sometimes he combined
his prayers with religious references in motivational
speeches to his players. Kennedy “never coerced, required,
or asked any student to pray.”
In September 2015, Bremerton School District
administrators learned of Kennedy’s prayers. Id. at 1011.
After an investigation, the District determined that Kennedy
4 That is, as Kennedy’s brief points out, the facts relevant to the
dispute over the constitutional right Kennedy actually asserted—and the
District actually denied—in this case: a “right to engage in brief, personal
prayer by himself on the field at the conclusion of football games.” But
see Kennedy III, 991 F.3d at 1017–19 (panel dwelling at length on
instances when students joined Kennedy in prayer, despite his never
asserting a right to pray with students). See also Kennedy II, 139 S. Ct.
at 636 (statement of Alito, J.) (criticizing panel for colorfully
“recount[ing] all of [Kennedy’s] prayer-related activities” over the
course of several years, “[i]nstead of attempting to pinpoint” the facts
actually relevant to his constitutional claim).

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KENNEDY V . B REMERTON S CHOOL DISTRICT 47
had violated District policy, which stated that “[s]chool staff
shall [not] encourage” a student to pray. Id. The District
directed Kennedy that his prayer must “be physically
separate from any student activity” and later asked that he
pray in “a private location.” Id. at 1011–13. Moreover, if
students chose to pray at the same time as Kennedy, the
District ordered him not to pray in any way “outwardly
discernible as religious activity”—i.e., he could not kneel or
say his prayers aloud. Id. at 1011.
Through counsel, Kennedy expressed to the District that
he was within his constitutional rights to continue saying a
“short, private, personal, prayer at midfield.” Kennedy
proposed that he or another school official could provide a
disclaimer to alleviate any concerns that his prayers would
be somehow attributed to the school. Kennedy then
continued to pray privately after games. 991 F.3d at 1012.
After media attention to the controversy gained steam, a
crowd of players, coaches, media, and members of the public
gathered around Kennedy when he prayed after the October
16, 2015, game. Id. at 1012–13. The District responded with
a sweeping directive to Coach Kennedy that made no
distinction for whether he prayed alone or with students,
silently or out loud: “While on duty for the District as an
assistant coach, you may not engage in demonstrative
religious activity, readily observable to (if not intended to be
observed by) students and the attending public.” When
Kennedy continued to pray at the conclusion of each of the
next two games, the District suspended him. Id. at 1013. He
was never rehired. Id. at 1014.
B
Kennedy filed this suit under 42 U.S.C. § 1983, alleging
violations of his First Amendment rights to Free Speech and
Free Exercise, and under Title VII of the Civil Rights Act of

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48 KENNEDY V . B REMERTON S CHOOL DISTRICT
1964, 42 U.S.C. §§ 2000e-2, 2000e-3, alleging employment
discrimination on the basis of religion as well as various
other violations of Title VII, including retaliation. Kennedy
then moved for a preliminary injunction on Free Speech
grounds, which the district court denied. The three-judge
panel here affirmed the denial of a preliminary injunction.
Kennedy I, 869 F.3d at 831. Kennedy petitioned for a writ of
certiorari, which the Supreme Court denied in a one-line
order. Kennedy II, 139 S. Ct. at 634. But four Justices,5 in
the very same order, took the extraordinary step of adding a
three-page statement explaining that while an under-
developed factual record would have rendered Supreme
Court review premature, the denial of certiorari should not
be taken to “signify” that the Court “agree[d] with the
decision (much less the opinion) below.” Id. at 635
(statement of Alito, J.). Quite the contrary, the four Justices
took the opportunity to criticize the panel opinion’s
“troubling” and “highly tendentious” misreading of
Garcetti, the Court’s leading case on the limits of the
government’s power to regulate the speech of public
employees. Id. at 636–37 (statement of Alito, J.).
Upon subsequent remand of the case, the district court
considered the remainder of Kennedy’s claims. The district
court found that “the risk of constitutional liability
associated with Kennedy’s religious conduct was the sole
reason the District ultimately suspended him.” Kennedy v.
Bremerton Sch. Dist., 443 F. Supp. 3d 1223, 1231 (W.D.
Wash. 2020) (internal quotation marks omitted). Concluding
that the Establishment Clause indeed required Kennedy’s
suspension, the district court granted summary judgment for
5 See Kennedy II, 139 S. Ct. at 635–37 (“Statement of Justice
ALITO, with whom Justice THOMAS, Justice GORSUCH, and Justice
KAVANAUGH join, respecting the denial of certiorari.”).

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KENNEDY V . B REMERTON S CHOOL DISTRICT 49
the District on Kennedy’s Free Speech, Free Exercise, and
Title VII claims. Id. at 1245. On appeal, the same panel of
our court agreed. Kennedy III, 991 F.3d at 1022–23. A judge
sua sponte called for rehearing en banc, but the matter failed
to receive a majority of the votes of the non-recused active
judges in favor of en banc consideration. Accordingly,
rehearing en banc was denied in the order to which this
statement is added. Ante, __ F.3d __ (9th Cir. 2021).
II
A
While the panel’s opinion, in my view, runs afoul of
controlling Supreme Court precedents on the Free Speech,
Free Exercise, and Establishment Clauses, it does so most
egregiously with respect to the Free Speech Clause. Let us
therefore begin with the background principles animating
the Court’s jurisprudence on public employees’ speech
rights:
Though it is well established that “the government as
employer . . . has far broader powers than does the
government as sovereign,” Waters v. Churchill, 511 U.S.
661, 671 (1994) (plurality op.), it is equally well established
that “a citizen who works for the government is nonetheless
a citizen,” whose rights do not simply vanish in the
workplace. Garcetti, 547 U.S. at 419. Thus, when public
employees speak “as citizens about matters of public
concern,” they may be subjected “only [to] those speech
restrictions that are necessary for their employers to operate
efficiently and effectively.” Id.
In other words, a public employer’s special latitude to
control its employees’ speech extends only to speech “the
employer itself has commissioned” or otherwise

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50 KENNEDY V . B REMERTON S CHOOL DISTRICT
functionally “created.” Id. at 422. But when public
employees’ expression falls outside their official job duties,
we must “unequivocally reject[]” any suggestion that they
“may constitutionally be compelled to relinquish the First
Amendment rights they would otherwise enjoy as citizens.”
Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968). Thus,
our task in any public-employee speech case is to delineate
whether the employee spoke “pursuant to [his or her] official
duties” (in which case the First Amendment provides no
protection) or, instead, in his or her capacity as a “private
citizen” (in which we must subject the government to First
Amendment scrutiny). Garcetti, 547 U.S. at 421–22.
Garcetti v. Ceballos provides the critical guideposts for
this task. There, the Court analyzed what now serves as the
paradigmatic example of “official” employee speech: a
deputy prosecutor’s internal memoranda to his supervisor,
expressing his concerns with a pending case and
recommending its dismissal. Id. at 414. The Court reasoned
that because the memoranda in question arose directly from
the very “tasks [Ceballos] was paid to perform”—namely,
the core “practical” responsibility of a deputy prosecutor “to
advise his supervisor about how best to proceed with . . .
pending case[s]”—they could not be characterized as his
private speech at all. Id. at 421–22, 424–25. Rather, they
constituted speech that the government had “commissioned
or created” (and therefore had power to control). Id. at 422.
The Court took pains, however, to admonish “that
employers can [not] restrict employees’ rights by creating
excessively broad job descriptions.” Id. at 424. Tellingly, the
Court offered this admonition in direct response to Justice
Souter’s concern that “the government may well try to limit
the English teacher’s options,” for example, “by the simple
expedient of defining teachers’ job responsibilities

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KENNEDY V . B REMERTON S CHOOL DISTRICT 51
expansively, investing them with a general obligation to
ensure sound administration of the school.” Id. at 431 n.2
(Souter, J., dissenting). To guard against such concerns, the
Court explained that the “proper inquiry” into a public
employee’s official job duties “is a practical one,” and that
“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.” Id. at 424–25.
B
The opinion in Kennedy III has run far, far afield of the
“practical” inquiry dictated by Garcetti. Cf. 547 U.S. 424. It
arrives at the bizarre conclusion that Kennedy’s prayer was
speech pursuant to his official duties “as a government
employee,” Kennedy III, 991 F.3d at 1015—which, make no
mistake, is to say that praying is somehow a football coach’s
responsibility in the same way that drafting memoranda on
pending prosecutions is a deputy prosecutor’s responsibility.
Worse still, the panel’s latest misapplication of Garcetti
directly contravenes the guidance offered by four Supreme
Court Justices in this very case. Compare Kennedy II, 139 S.
Ct. at 636 (statement of Alito, J.) (“The Ninth Circuit’s
opinion [in Kennedy I] applies our decision in Garcetti . . .
to public school teachers and coaches in a highly tendentious
way.”); with Kennedy III, 991 F.3d at 1015 (“Our holding
[from Kennedy I] has not changed.”).
According to the opinion, a coach is “clothed with the
mantle of one who imparts knowledge and wisdom,” so
Kennedy’s prayer “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.” Kennedy III,

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52 KENNEDY V . B REMERTON S CHOOL DISTRICT
991 F.3d at 1015 (quoting Kennedy I, 869 F.3d at 826). Thus,
by the opinion’s sweeping logic, Kennedy’s prayer—no
matter how personal, private, brief, or quiet—was wholly
unprotected by the First Amendment.
1
The fundamental flaw with the opinion’s conclusion is
that it relies on precisely the kind of “excessively broad job
description[]” that Garcetti plainly precludes. 547 U.S.
at 424. In adopting the reasoning of Kennedy I, which was
more thorough but no less troubling, the Kennedy III panel
repeats its original mistake. Relying simply on the existence
of a District policy that coaches should “exhibit
sportsmanlike conduct at all times,” the panel leapt to this
grandiosely broad characterization of Kennedy’s job duties:
“communicating the District’s perspective on appropriate
behavior” whenever “in the presence of students and
spectators.” Kennedy I, 869 F.3d at 825–27. This epitomizes
the sort of reasoning Garcetti forbids. Moreover, the panel
inferred its startling conclusion from an even more
startlingly simplistic syllogism: Because Kennedy’s job
involved “demonstrative speech” and prayer can at times be
“demonstrative speech,” then (by the opinion’s tortured
logic) Kennedy’s prayer necessarily “fulfill[ed] his
professional responsibility to communicate
demonstratively.” Id. at 828. The opinion’s flawed
reasoning—at odds with Supreme Court precedent and
common sense—lumps together obvious examples of
football coaching, calling plays and the like, with any speech
that can be overheard by someone else, no matter how
personal or private it may be.
If Garcetti were as simplistic as the panel made it out to
be, it could have been decided in just a few sentences. All
the Garcetti Court would have needed to say—on the panel’s

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KENNEDY V . B REMERTON S CHOOL DISTRICT 53
misguided reading—was that Ceballos was an attorney, that
an attorney’s job involves the written word, and that any
writing by Ceballos accordingly would constitute speech
pursuant to his official duties. Therefore, by the Kennedy III
opinion’s logic, the Supreme Court was only wasting ink
when it delved into the content of Ceballos’s memos, the
precise duties of a calendar deputy in the district attorney’s
office, and the comparison to civilian analogues, because
Ceballos could be disciplined with impunity whenever he put
pen to paper.
2
Garcetti and basic logical coherence are not the only
victims of the opinion’s Free Speech analysis. By assuming
that teachers always act as teachers between the first and last
bell of the school day (or that coaches always act as coaches
from the time they arrive for work at the school’s athletic
office to the moment the stadium lights go out on the end of
a game), the opinion also places itself in irreconcilable
contradiction with the most basic, “unmistakable” axiom of
the past century of school-speech jurisprudence: that, as
noted above, teachers do not “shed their constitutional rights
. . . at the schoolhouse gate.” Tinker, 393 U.S. at 506; see
also, e.g., Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675,
688 (1986) (Brennan, J., concurring) (noting the Court’s
repeated “reaffirm[ance]” of this “unimpeachable
proposition” of Tinker). For if, as the opinion declares, all
“demonstrative communication” in the presence of students
were unprotected, there would be little left of the First
Amendment—let alone Tinker’s landmark holding—for
public school employees. Likewise, the Pickering balancing
test would cease to provide refuge for large swaths of school
speech, religious or not. That cannot be right. For as

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54 KENNEDY V . B REMERTON S CHOOL DISTRICT
Kennedy rightly observes in his brief, “Garcetti applied
Pickering; it did not overrule it.”
3
And yet, on the panel’s view, a school can restrict any
speech for any reason so long as it instructs its employees to
demonstrate good behavior in the presence of others. See
Kennedy I, 869 F.3d at 825–26. Despite the panel’s tepid
assurance that its opinion does not establish “any bright-line
rule,” id. at 830 n.11, four Justices share my doubt:
According to the Ninth Circuit, public school
teachers and coaches may be fired if they
engage in any expression that the school does
not like while they are on duty, and the Ninth
Circuit appears to regard teachers and
coaches as being on duty at all times from the
moment they report for work to the moment
they depart, provided that they are within the
eyesight of students.
Kennedy II, 139 S. Ct. at 636 (statement of Alito, J.).
To illustrate, Justice Alito asked whether a teacher in the
Ninth Circuit still has the right to pray before eating in the
cafeteria where a student might notice. Id. Kennedy I’s
answer appeared to be no. 869 F.3d at 829 (“Kennedy can
pray in his office . . . .”). To be sure, Kennedy III attempts to
distinguish the hypothetical on the ground that a cafeteria
prayer “is of a wholly different character” than one on the
football field. 991 F.3d at 1015. But the panel fails to identify
any principled distinction between the two that would
actually impact its analysis. Rather, its opinion simply
describes the instant case: Kennedy prayed “while players
stood next to him, fans watched from the stands, and he

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KENNEDY V . B REMERTON S CHOOL DISTRICT 55
stood at the center of the football field. Moreover, Kennedy
. . . was a mentor, motivational speaker, and role model to
students specifically at the conclusion of a game.” Id. at 1015
(emphasis omitted).
True enough, but none of these facts does anything to
distinguish the cafeteria scenario (or innumerable others). If
Kennedy prayed in the cafeteria, “a location that he only had
access to because of his employment,” at a time when he was
on duty, “generally tasked with communicating with
students,” the panel’s opinion would dictate that he spoke in
his official capacity as a public employee in doing so. Id. at
1015. The opinion’s ipse dixit exception for mealtime prayer
defies its own logic and will surely not be taken seriously by
litigants or courts attempting to apply this sweeping rule to
many scenarios yet to come.6
Suppose, for example, a teacher receives bad news about
a family member while teaching and utters a brief, quiet
prayer, or suppose a coach makes the sign of the cross upon
6 Indeed, several other courts have acknowledged the far-reaching
scope of Kennedy I’s rule, which Kennedy III now entrenches. See, e.g.,
Espinoza v. Montana Dep’t of Revenue, 140 S. Ct. 2246, 2265 (2020)
(Thomas, J., concurring) (criticizing Kennedy I for failing to protect even
off-duty religious speech); Kennedy II, 139 S. Ct. at 636–37 (statement
of Alito, J.) (“[Kennedy I] regard[s] teachers and coaches as being on
duty at all times . . . within the eyesight of students.”); Greisen v.
Hanken, 925 F.3d 1097, 1112 (9th Cir. 2019) (interpreting Kennedy I to
apply whenever employees who teach and serve as role models act in an
official capacity in the presence of others); Barone v. City of Springfield,
902 F.3d 1091, 1100–01 (9th Cir. 2018) (same); Naini v. King Cty. Pub.
Hosp. Dist. No. 2, No. C19-0886-JCC, 2020 WL 290927, at *13–14
(W.D. Wash. Jan. 21, 2020) (same); Kountze Indep. Sch. Dist. v.
Matthews ex rel. Matthews, No. 09-13-00251-CV, 2017 WL 4319908,
at *4 (Tex. App. Sept. 28, 2017) (noting Kennedy I’s broad reliance on
the coach’s “responsibility to communicate demonstratively”).

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56 KENNEDY V . B REMERTON S CHOOL DISTRICT
seeing a player suffer an injury. Imagine a coach who kneels
during the national anthem in protest or a teacher whose car
parked on school property bears a bumper sticker for a
presidential campaign. Even if the opinion’s one-off
exception for mealtime prayer were taken at face value, these
citizens would now stand to be censored, disciplined, or even
fired by their public employer for any or no reason at all.
Relegating such speech to an empty office, or perhaps to
the teacher’s lounge, is an insult to the First Amendment,
which “extends to private as well as public expression.”
Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410, 415 n.4
(1979) (emphasis added). More fundamentally, doing so
corrodes the civic virtues that underlie the First Amendment:
We ask “teachers to foster those habits of open-mindedness
and critical inquiry which alone make for responsible
citizens . . . . They cannot carry out their noble task if the
conditions for the practice of a responsible and critical mind
are denied to them.” Wieman v. Updegraff, 344 U.S. 183,
196 (1952) (Frankfurter, J., concurring).
C
Tellingly, and perhaps unsurprisingly, it would have
required far less intellectual gymnastics for an en banc court
to apply Garcetti properly than for the panel to misapply
Garcetti as it did.
1
To determine whether Kennedy prayed within the ambit
of his official duties as a government employee, we must ask
what tasks he was paid to perform. Garcetti, 547 U.S. at 422;
see also Dahlia v. Rodriguez, 735 F.3d 1060, 1075 (9th Cir.
2013) (en banc) (“As part of a ‘practical’ inquiry, a trier of
fact must consider what [the employee] was actually told to

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KENNEDY V . B REMERTON S CHOOL DISTRICT 57
do.”). Some of a football coach’s speech—calling a play,
addressing the players at halftime, or teaching how to block
and how to tackle—undoubtedly accomplishes official tasks
required of him. Yet a coach might speak instead for purely
personal reasons, such as chatting about the weather with a
spectator or calling his family to let them know the game is
over. Both sets of examples take place on the job, on school
property, and in earshot of students, but only the former can
be fairly called speech the government paid to create.
Indeed, if we heed Garcetti’s instruction to inspect the
functional content of an employee’s speech, it is easy to see
the distinction between private speech and official public
speech in the context of football coaching. Private speech is
“the kind of activity engaged in by citizens who do not work
for the government,” such as “writing a letter to a local
newspaper” or “discussing politics with a co-worker.”
Garcetti, 547 U.S. at 423. This makes perfect sense. By
contrast, where a public employee speaks in his or her
capacity as a public employee, “there is no relevant analogue
to speech by citizens who are not government employees”—
and accordingly, the government is more likely to be correct
that the speech is really its to control. Id. at 424.
Writing a recommendation to the district attorney on
how to handle a case has no civilian analogue, and thus, the
speech in Garcetti was distinctly governmental in nature
(and in turn, subject to governmental control). But if the
attorney used the same medium in the same setting to
communicate a message unrelated to work, say, an invitation
to a birthday party, he would not speak as a public official.
See also Coomes v. Edmonds Sch. Dist. No. 15, 816 F.3d
1255, 1264 (9th Cir. 2016) (“[E]ven if Coomes’s duties . . .
included speaking to parents regarding their children’s

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58 KENNEDY V . B REMERTON S CHOOL DISTRICT
participation in [a] program, she could have gone outside her
duties in speaking to parents about other matters.”).
So too here: Kennedy might use on-field speech to
instruct the team’s defense, or he might kneel on the field to
pray quietly to God. The former is public because only
coaches call plays. Such speech “owes its existence to a
public employee’s professional responsibilities.” Garcetti,
547 U.S. at 421. But the latter is private because there is a
clear civilian analogue: Millions of Americans give thanks
to God, a practice that has nothing to do with coaching a
sport.
2
Perhaps the most obvious evidence that prayer fell
outside of Kennedy’s football-coaching duties was his
employer’s explicit and repeated opposition to such
prayer—culminating in Kennedy’s suspension. The District
demanded that coaching staff comply with a policy entitled
“Religious-Related Activities and Practices,” which the
District interpreted to prohibit Kennedy’s post-game prayer.
Kennedy III, 991 F.3d at 1011–13. How can the panel hold
that prayer was one of Kennedy’s job duties when his
employer maintained a policy banning it? Further
heightening the contradiction, the District told Kennedy that
his prayer “interfere[d] with the performance of job duties.”
Id. at 1013.7 How can it be that Kennedy’s prayer
“interfere[d] with” his job duties if, as the District and panel
7 To be clear, notwithstanding this statement from the District to
Kennedy, it remains undisputed that “the risk of constitutional liability
associated with Kennedy’s religious conduct”—rather than any concern
that Kennedy was being inattentive to his players—“was the ‘sole
reason’ the District ultimately suspended him.” Kennedy III, 991 F.3d
at 1014 (quoting Kennedy, 443 F. Supp. 3d at 1231) (emphasis added).

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KENNEDY V . B REMERTON S CHOOL DISTRICT 59
maintain, it was simultaneously pursuant to such duties? Cf.
id. Rather than straining to square this circle, a truly practical
inquiry would have recognized that Kennedy’s employer
excluded prayer from his duties—both as a matter of general
policy and as applied to him specifically.
In sum: A proper application of Garcetti and its
progenitors dictates that Kennedy’s prayer was his private
speech, not that of the government. Consequently, his Free
Speech rights are indeed implicated, and the government’s
stated justifications for its censorship must face
constitutional scrutiny. See Pickering, 391 U.S. at 568.
III
The opinion’s attempts to recast Kennedy’s private
speech as official government speech are strange enough.
But it then wanders even further afield. Perhaps belying its
own doubts, the panel does not rest on its (ostensibly
dispositive) conclusion that Kennedy’s prayer was official
speech unprotected by the Free Speech Clause and therefore
properly subject to discipline.
Instead, the panel proceeds to announce the alternative
holding that, even if Kennedy’s speech were private (and
therefore triggered First Amendment scrutiny), the District
would have a compelling interest in censoring it. See
Kennedy III, 991 F.3d at 1016–19. That putatively
“compelling interest” is the District’s stated fear that, unless
it fired Kennedy, it would be committing an Establishment
Clause violation by creating the perception that it “endorsed”
Kennedy’s Christian religious beliefs. See id. Consequently,
the opinion reaches the troubling conclusion that the
Constitution not only permitted, but required, the District to
punish Kennedy’s private prayer. In so doing, the opinion
defies the principle that “the state interest . . . in achieving

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60 KENNEDY V . B REMERTON S CHOOL DISTRICT
. . . separation of church and State” is “limited by the Free
Exercise Clause,” Widmar v. Vincent, 454 U.S. 263, 276
(1981) (emphasis added)—and not the other way around.
More fundamentally, the opinion subverts the entire thrust
of the Establishment Clause, transforming a shield for
individual religious liberty into a sword for governments to
defeat individuals’ claims to Free Exercise. The panel’s
holding, which thereby misinterprets both of the First
Amendment’s religion clauses, simply cannot be squared
with decades of Supreme Court precedent to the contrary.
Indeed, upon a more faithful examination of such
precedents, they reveal a deep irony in the panel’s
Establishment Clause analysis: What the District puts forth
(and the panel accepts) as a justification to extinguish
Kennedy’s Free Speech claim actually has quite the opposite
effect. Namely, it imparts credence and urgency to his Free
Exercise claim, which might otherwise have been dubious.
See Kennedy II, 139 S. Ct. at 637 (statement of Alito, J.)
(expressing doubt—prior to the District’s subsequent
concession, noted in the Kennedy III opinion, that District
administrators’ motivation for disciplining Kennedy was
“not [religiously] neutral,” 991 F.3d at 1020—as to whether
Kennedy’s Free Exercise claim might not pass muster under
existing law).8 Moreover, a faithful reading of the Court’s
8 At the preliminary-injunction stage (i.e., in the record that was
before the Supreme Court Justices in Kennedy II), the District had
advanced the dubious claim that its motivation for punishing Kennedy’s
prayer was that it “drew [him] away from [his] work.” Kennedy I,
869 F.3d 819. Accordingly, the Justices could not at that stage rule out
the possibility that the District’s “reason” for suspending Kennedy was
that “he was supposed to have been actively supervising the players after
they had left the field but instead left them unsupervised while he prayed
on his own.” Kennedy II, 139 S. Ct. at 635. Were that the case, the
District’s punishment of Kennedy presumably would have constituted a

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KENNEDY V . B REMERTON S CHOOL DISTRICT 61
religion clauses jurisprudence makes clear that the District’s
(unfounded) fears of Establishment Clause liability could
justify its incursions on neither Kennedy’s Free Speech
rights nor his Free Exercise rights.
A
In crediting the District’s Establishment Clause
rationale, the panel backed itself into the corner of conceding
that the District had targeted Kennedy’s conduct “because
the conduct is religious.” Kennedy III, 991 F.3d at 1020
(emphasis in original). The unmistakable upshot of this
concession is to trigger a Free Exercise problem and to
increase the credibility of Kennedy’s alternative claim. For
the most basic lesson of the Supreme Court’s Free Exercise
jurisprudence teaches that when government actions “target
the religious for ‘special disabilities’ based on their
‘religious status,’” they trigger “the strictest scrutiny.”
Trinity Lutheran Church of Columbia, Inc. v. Comer,
137 S.Ct. 2012, 2021 (2017) (quoting Church of Lukumi
Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 533 (1993)). That
is, such targeted incursions on religious rights “must be
justified by a compelling governmental interest and must be
narrowly tailored to advance that interest.” Lukumi Babalu
Aye, 508 U.S. at 531–32 (1993).
“generally applicable, religion-neutral” action that merely had the “effect
of burdening [Kennedy’s] particular religious practice,” which, under
Smith, would “need not be justified by a compelling governmental
interest.” Emp’t Div., Dep’t of Hum. Res. v. Smith, 494 U.S. 872, 886 n.3
(1990). This appears to be the uncertainty to which Justice Alito was
referring when he alluded to the possibility that Kennedy’s Free Exercise
claim might—on the basis of the record then before the Court—be
precluded by Smith. Kennedy II, 139 S. Ct. at 637 (statement of Alito, J.)
(citing Smith, 494 U.S. 872).

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62 KENNEDY V . B REMERTON S CHOOL DISTRICT
B
Consequently, Kennedy’s suspension must survive strict
scrutiny, and the only way the District wins is if its fears
were valid—i.e., if Kennedy could not privately pray on the
field after football games without the District’s violating the
Establishment Clause and if suspending (then declining to
re-hire) Kennedy were the only way the District could
remedy such putative Establishment Clause problem. Even
a cursory review of the Supreme Court’s Establishment
Clause jurisprudence should have assuaged the District’s
paranoia. But instead, the panel has chosen to exemplify the
“brooding omnipresence” of the “modern understanding of
the Establishment Clause . . . ever ready to be used to justify
the government’s infringement on religious freedom.”
Espinoza v. Montana Dep’t of Revenue, 140 S. Ct. 2246,
2263 (2020) (Thomas, J., concurring) (quoting S. Pac. Co. v.
Jensen, 244 U.S. 205, 222 (1917) (Holmes, J., dissenting)).
1
a
Most fundamentally, the opinion takes the rare—indeed,
unprecedented—step of perceiving an Establishment Clause
violation without first locating any state action to constitute
such a violation. In so doing, the opinion contravenes the
axiomatic principle that “an Establishment Clause violation
must be moored in government action.” Capitol Square Rev.
& Advisory Bd. v. Pinette, 515 U.S. 753, 779 (1995)
(O’Connor, J., concurring); see also Manhattan Cmty.
Access Corp. v. Halleck, 139 S. Ct. 1921, 1926 (2019)
(explaining, in the Free Speech context, that “the First
Amendment constrains governmental actors and protects
private actors”) (emphasis added). Indeed, the opinion
contravenes the very text of the Establishment Clause, which

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KENNEDY V . B REMERTON S CHOOL DISTRICT 63
announces a constraint on the State, rather than non-state
actors.
In case after case, the Supreme Court has determined that
private religious speech on public school property does not
constitute state action and therefore does not run afoul of the
Establishment Clause. For example, a private organization
can use classrooms for religious instruction after school,
Good News Club v. Milford Cent. Sch., 533 U.S. 98, 112–19
(2001); a Christian student newspaper can receive university
funding, Rosenberger v. Rector & Visitors of Univ. of Va.,
515 U.S. 819, 837–46 (1995); a church can screen religious
films on public school premises, Lamb’s Chapel v. Ctr.
Moriches Union Free Sch. Dist., 508 U.S. 384, 394–95
(1993); students can form a religious club with a faculty
monitor, Bd. of Educ. of Westside Cmty. Schs. v. Mergens ex
rel. Mergens, 496 U.S. 226, 249–53 (1990) (plurality op.);
and student groups can use university facilities for worship,
Widmar v. Vincent, 454 U.S. 263, 270–75 (1981). In short,
the Supreme Court “ha[s] never extended [its] Establishment
Clause jurisprudence to foreclose private religious conduct
during nonschool hours merely because it takes place on
school premises where . . . children may be present.” Good
News, 533 U.S. at 115; see also Capitol Square, 515 U.S.
at 764 (plurality op.) (“The test petitioners propose, which
would attribute to a neutrally behaving government private
religious expression, has no antecedent in our jurisprudence
. . . .”) (emphasis in original).
Underlying these holdings are decades of Supreme Court
caselaw drawing a sharp distinction “between government
speech endorsing religion, which the Establishment Clause
forbids, and private speech endorsing religion, which the
Free Speech and Free Exercise Clauses protect.” Mergens,
496 U.S. 226 at 250 (plurality op.) (emphasis in original).

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64 KENNEDY V . B REMERTON S CHOOL DISTRICT
The District, then, had no reason to worry about liability
from Kennedy’s private religious conduct, because—and
this bears repeating—“an Establishment Clause violation
must be moored in government action.” Capitol Square,
515 U.S. at 779 (O’Connor, J., concurring).
Here, by contrast, Kennedy never asked the school to
take any action endorsing or facilitating his religious
practice. Quite the contrary, Kennedy essentially asked his
employer to do nothing—simply to tolerate the brief, quiet
prayer of one man (which is exactly what the District had
done for years prior, without anyone ever raising an
Establishment Clause claim against it).
b
Consequently, this case bears no resemblance to the
kinds of institutional entanglements with religion—often
described as “coercive”—which may give rise to an
Establishment Clause violation. Cf. Santa Fe Ind. Sch. Dist.
v. Doe, 530 U.S. 290, 305–06, 309 (2000) (school policy
once titled “Prayer at Football Games” promoted prayer over
the school P.A. system); Lee v. Weisman, 505 U.S. 577, 587
(1992) (school both sponsored and directed a graduation
prayer); Sch. Dist. of Abington Twp. v. Schempp, 374 U.S.
203, 205 (1963) (state law required daily Bible reading at
school); Engel v. Vitale, 370 U.S. 421 (1962) (school
required prayer to start each day).
Yet rather than abide the lessons of this line of complex
Establishment Clause jurisprudence, the panel reduces it to
one simplistic question: Would an objective observer have
viewed Kennedy’s prayer as “stamped” with the “school’s
seal of approval”? Kennedy III, 991 F.3d at 1017 (quoting
Santa Fe, 530 U.S. at 308). If the answer is “yes,” then, says
the panel, the District must punish Kennedy for privately and

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KENNEDY V . B REMERTON S CHOOL DISTRICT 65
independently engaging in such conduct. In other words,
because someone might mistakenly attribute Kennedy’s
prayer to the District (notwithstanding its well-publicized
opposition), the panel declares that the school not only was
free, but indeed obliged, to discipline him in ways that would
otherwise violate his Free Speech and Free Exercise rights.
Lacking a single Supreme Court case that supports its
implicit assumption that a private individual can commit an
Establishment Clause violation, the panel gestures
desperately toward Establishment Clause cases merely
involving school employees’ endorsement of religion. But
the panel’s opinion drains such cases of the factors driving
their logic—the school policy, the degree of control over
employee speech, neutrality toward religion, or the
possibility of coercion. See, e.g., Santa Fe, 530 U.S. at 301–
03, 306–12; Weisman, 505 U.S. at 593.
Critically, every case cited in the opinion’s
Establishment Clause analysis involved government speech,
not private speech. See McCreary County. v. Am. C.L. Union
of Ky., 545 U.S. 844, 860 (2005) (courthouse displays of the
Ten Commandments); Santa Fe, 530 U.S. at 315 (school
policy “implemented with the purpose of endorsing school
prayer”); Weisman, 505 U.S. 577, 587 (1992) (“state-
sponsored and state-directed . . . formal religious
observance”); Edwards v. Aguillard, 482 U.S. 578, 585–94
(1987) (statewide ban on teaching evolution without
creationism); Wallace v. Jaffree, 472 U.S. 38, 59 (1985)
(statewide school prayer statute). It strikes me as specious to
conclude that such authorities should apply equally to
Kennedy’s speech merely because he worked for a public
employer. Especially so where the Supreme Court and our
court have expressly declined to find Establishment Clause
violations in the context of private religious activity—

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66 KENNEDY V . B REMERTON S CHOOL DISTRICT
authorities the opinion conveniently ignores. Cf. Mergens,
496 U.S. 226 at 250 (plurality op.) (“The proposition that
schools do not endorse everything they fail to censor is not
complicated.”); Hills v. Scottsdale Unified Sch. Dist. No. 48,
329 F.3d 1044, 1055–56 (9th Cir. 2003) (same); Tucker v.
Calif. Dep’t of Educ., 97 F.3d 1204, 1213 (9th Cir. 1996)
(“[S]peech by a public employee, even a teacher, does not
always represent, or even appear to represent, the views of
the state.”).
Likewise, the assumption that Kennedy spoke as a
private citizen—which the opinion expressly adopts for the
limited purpose of its in-the-alternative Establishment
Clause analysis, Kennedy III, 991 F.3d at 1016, contrary to
its earlier holding that Kennedy spoke “as a public
employee,” id. at 1015—forecloses the opinion’s application
of Santa Fe Independent School District v. Doe, the only
Supreme Court case that bears even remote factual
resemblance to ours. Cf. 530 U.S. at 310, 312 (holding,
where student’s prayer was “deliver[ed] . . . over the
school’s public address system, by a speaker representing
the student body, under the supervision of school faculty,
and pursuant to a school policy that explicitly and implicitly
encourage[d] public prayer,” that school policy had coerced
attendees into participation in prayer).
If the panel had engaged in a fair comparison between
the facts of Kennedy’s case and the facts of the
Establishment Clause cases upon which it relies, it could
have reached only one conclusion: The District made its
disavowal of Kennedy’s religious speech crystal clear to any
reasonable observer. For one, the District, as mentioned
above, had a pre-existing policy restricting any religious
speech that might “encourage” a student to pray. Kennedy
III, 991 F.3d at 1011. The superintendent then sent Kennedy

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KENNEDY V . B REMERTON S CHOOL DISTRICT 67
two letters detailing the policy and ordering him to stop
praying. Id. at 1011–13. Finally, the District published a
letter addressed to parents and staff explaining its policy
opposing prayer.
Given such facts, how could anyone be mistaken about
the school’s position—let alone “view [Kennedy’s private
prayer] as [the District’s] endorsement of a particular faith”?
Id. at 1019. The District vehemently opposed Kennedy’s
prayer, and the local community got the message loud and
clear. See id. at 1012 (“[T]he Seattle Times published an
article . . . entitled ‘Bremerton football coach vows to pray
after game despite district order.’” (emphasis added)). Only
by ignoring everything the District said and did could an
observer (mistakenly) think the school was endorsing
Kennedy’s. But the mere possibility of such a mistake does
not turn private speech into endorsement, “at least where . . .
the government has not fostered or encouraged the mistake.”
Capitol Square, 515 U.S. at 766 (plurality op.); see also
Good News, 533 U.S. at 119 (“We cannot operate . . . under
the assumption that any risk . . . [of] perceive[d]
endorsement should counsel in favor of excluding . . .
religious activity. We decline to employ Establishment
Clause jurisprudence using a modified heckler’s veto . . . .”)
(emphasis added). A reasonable observer would have known
of the District’s actions prior to Kennedy’s suspension, yet
the opinion maintains that every ounce of discipline—
including suspension—was required to comply with the
Establishment Clause.
At bottom, because there can be no Establishment Clause
violation without state action, the District’s sole stated
interest in avoiding Establishment Clause liability cannot
justify suppressing the Free Exercise rights of its coach. And
because strict scrutiny limits us to considering state interests

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68 KENNEDY V . B REMERTON S CHOOL DISTRICT
that are “genuine, not hypothesized,” cf. United States v.
Virginia, 518 U.S. 515, 533 (1996) (imposing this
requirement in the context of intermediate scrutiny, such that
it applies a fortiori in the strict-scrutiny context), it
necessarily follows that the District had no compelling
interest in punishing Kennedy’s prayer.
2
The errors of the panel’s Establishment Clause analysis
do not stop with its stubborn refusal to recognize the
distinction between state and private action. For even if an
observer could mistake Kennedy’s private speech for that of
the school, it was still erroneous for the panel to assume that
the District’s sole constitutional option was to suspend
Kennedy. In creating a false dichotomy between the
District’s chosen course and “allowing Kennedy free rein,”
Kennedy III, 991 F.3d at 1018, the panel neglects other, more
narrowly tailored remedies and hastily announces that “there
was no other way” to handle the situation, id. at 1020.
Instead, the panel should have considered the
accommodation Kennedy’s counsel proposed: a simple
disclaimer, clarifying that Kennedy’s prayer was his own
private speech, not that of the District.
A school does not violate the Establishment Clause
where it “can dispel any ‘mistaken inference of
endorsement’ by making it clear to students that . . . private
speech is not the speech of the school.” Prince v. Jacoby,
303 F.3d 1074, 1094 (9th Cir. 2002) (quoting Mergens,
496 U.S. at 251); see also Hills, 329 F.3d at 1054–56. A
disclaimer communicates that the school’s permission
“evinces neutrality toward, rather than endorsement of,
religious speech.” Mergens, 496 U.S. at 251. Our court has
found a disclaimer to be inadequate only once—in the
“coercive” context of a graduation speech. Lassonde v.

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KENNEDY V . B REMERTON S CHOOL DISTRICT 69
Pleasanton Unified Sch. Dist., 320 F.3d 979, 983–85 (9th
Cir. 2003).
If the school could have disclaimed Kennedy’s prayer in
a statement or at each game, then firing him was not
necessary to comply with the Establishment Clause, and the
violation of his Free Exercise rights was not narrowly
tailored. As we have long recognized, the District could have
more productively addressed its fear of confused observers
while still protecting Kennedy’s fundamental rights. Indeed,
as our court has observed:
The school’s proper response is to educate
the audience rather than squelch the speaker.
Schools may explain that they do not endorse
speech by permitting it. . . . Free speech, free
exercise, and the ban on establishment are
quite compatible when the government
remains neutral and educates the public about
the reasons.
Hills, 329 F.3d at 1055 (quoting Hedges v. Wauconda Cmty.
Unit Sch. Dist. No. 118, 9 F.3d 1295, 1299–1300 (7th Cir.
1993)). By holding that any demonstrative prayer in public
would necessarily (and unconstitutionally) be imputed to the
District, the panel leaves no room for schools “to educate the
audience.” Id. (quoting Hedges, 9 F.3d at 1299). Rather, on
the panel’s view, the District had no choice but to issue a
warning, a directive, and, ultimately, a suspension. At the
very least because the District could have disclaimed
Kennedy’s prayer, the panel is mistaken. Under binding
precedents of the Supreme Court, schools can and must do
more to protect the First Amendment liberties of coaches and
teachers.

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70 KENNEDY V . B REMERTON S CHOOL DISTRICT
IV
The opinion has forced our circuit into clear conflict with
the Supreme Court’s instruction in Garcetti—despite the
published guidance of four Justices in this very case. And the
opinion compounds the error by commanding public schools
throughout the nine states and two federal territories of the
Ninth Circuit to search for and to eliminate private religious
speech or else face liability under the Establishment Clause.
The First Amendment does not demand that we “purge from
the public sphere all that in any way partakes of the
religious,” Van Orden v. Perry, 545 U.S. 677, 699 (2005)
(Breyer, J., concurring in the judgment), but unfortunately,
the Ninth Circuit does.
For the foregoing reasons, it is most regrettable that our
court has failed to rehear this case en banc.
O’SCANNLAIN and BEA, Circuit Judges, respecting the
denial of rehearing en banc:
We agree with the views expressed by Judge Ikuta in her
dissent from denial of rehearing en banc.
O’SCANNLAIN, Circuit Judge, respecting the denial of
rehearing en banc:
I agree with the views expressed by Judge R. Nelson in
his dissent from denial of rehearing en banc.

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KENNEDY V . B REMERTON S CHOOL DISTRICT 71
O’SCANNLAIN, Circuit Judge, respecting the denial of
rehearing en banc:
I agree with the views expressed by Judge Collins in his
dissent from denial of rehearing en banc.
BEA, Senior Circuit Judge, respecting the denial of
rehearing en banc:
I agree with the views expressed by Judge Collins in his
dissent from denial of rehearing en banc.
IKUTA, Circuit Judge, with whom CALLAHAN, R.
NELSON, BADE, FORREST, and BUMATAY, Circuit
Judges, join, dissenting from the denial of rehearing en banc:
I write separately to express a different perspective.
A
Joseph Kennedy’s highly public demonstrations of his
religious convictions put Bremerton School District (BSD)
in a no-win situation. BSD wanted to respect Kennedy’s
right “to engage in religious activity, including prayer,” but
it feared that allowing Kennedy to engage in such highly
public activity on the field after football games would create
a perception that BSD was endorsing religion, in violation of
the Establishment Clause. Kennedy v. Bremerton Sch. Dist.,
991 F.3d 1004, 1011 (9th Cir. 2021).
To avoid such a violation, BSD repeatedly told Kennedy
to stop praying on the field after the football games. Id.

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72 KENNEDY V . B REMERTON S CHOOL DISTRICT
at 1011–13. BSD sent Kennedy letters “explaining that his
conduct . . . violated BSD’s [religious activities] policy,” id.
at 1013, and advised him that his post-game talks “must
remain entirely secular in nature,” id. at 1011.
Kennedy was defiant. He told BSD, through his lawyer,
that he intended to resume praying at the fifty-yard line at
the next game notwithstanding BSD’s orders. Id. at 1012.
His unyielding stance was “widely publicized through
Kennedy and his representatives’ numerous appearances and
announcements on various forms of media.” Id. (cleaned
up). The Seattle Times published an article with the headline
“Bremerton football coach vows to pray after game despite
district order,” and explaining that “[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.” Id.
Under these well-publicized circumstances, no objective
observer (assuming we apply the “objective observer” test)
would think BSD was endorsing Kennedy’s prayers. See
Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308 (2000)
(holding that in determining whether there is an
Establishment Clause violation, “one of the relevant
questions is whether an objective observer, acquainted with
the text, legislative history, and implementation of the
statute, would perceive it as a state endorsement of prayer in
public schools” (cleaned up)). Rather, BSD took “pains to
disassociate itself from the private speech involved in this
case.” See Rosenberger v. Rector & Visitors of Univ. of
Virginia, 515 U.S. 819, 841 (1995); Kennedy, 991 F.3d
at 1011, 1013. A “reasonable observer” who is “deemed
aware of the history and context of the community and forum
in which the religious speech takes place,” see Good News
Club v. Milford Cent. Sch., 533 U.S. 98, 119 (2001) (cleaned

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KENNEDY V . B REMERTON S CHOOL DISTRICT 73
up), would know that Kennedy’s prayer was not “stamped
with [BSD’s] seal of approval,” see Santa Fe, 530 U.S.
at 308. Clearly “there would have been no realistic danger
that the community would think that the District was
endorsing religion or any particular creed.” See Good News
Club, 533 U.S. at 113 (quoting Lamb’s Chapel v. Ctr.
Moriches Union Free Sch. Dist., 508 U.S. 384, 395 (1993)).
BSD’s concern that Kennedy’s religious activities would be
attributed to BSD is simply not plausible. See Rosenberger,
515 U.S. at 841. Applying the objective observer test from
Santa Fe, there is no Establishment Clause violation here.
Therefore, even assuming (as the panel majority does)
that Kennedy spoke as a private citizen, BSD could not
successfully justify any content-based discrimination against
Kennedy on the ground that it needed to do so to avoid an
Establishment Clause violation.
B
By holding that BSD could be subject to an
Establishment Clause claim under the circumstances of this
case, the majority missed an opportunity to address the
tension between the Free Exercise Clause and Establishment
Clause in the public employment context. The Supreme
Court has recognized that public employers are caught
between “countervailing constitutional concerns” of
respecting the free exercise rights of their employees while
at the same time avoiding giving offense to the public by
appearing to endorse religious activity. Good News Club,
533 U.S. at 119. The majority’s holding that BSD was
reasonable to fear liability for an Establishment Clause
violation is dangerous because it signals that public
employers who merely fail to act with sufficient force to
squelch an employee’s publicly observable religious activity
may be liable for such a claim. This raises the risk that

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public employers will feel compelled (or encouraged) to
silence their employee’s religious activities, even in
moments of private prayer, so long as they can be seen by
students. Cf. Kennedy v. Bremerton Sch. Dist., 139 S. Ct.
634, 636 (2019) (Alito, J., statement respecting denial of
certiorari).
We should address this issue directly. Just as the
Supreme Court provided guidance to public employers for
balancing their employees’ free speech rights with the
requirements of a particular job, see Garcetti v. Ceballos,
547 U.S. 410, 421 (2006), we need a parallel framework for
evaluating how a public employer can protect its employee’s
religious expression without becoming vulnerable to an
Establishment Clause claim. Because this case raises an
opportunity to develop such a framework, I respectfully
dissent from denial of rehearing this case en banc.
R. NELSON, Circuit Judge, joined by CALLAHAN,
BUMATAY, and VANDYKE, Circuit Judges, and by
IKUTA, Circuit Judge, as to Part I, dissenting from the
denial of rehearing en banc:
The way to stop hostility to religion is to stop being
hostile to religion. The panel held that merely allowing high
school football coaches and players to pray on the field
“unquestionably” violates the Establishment Clause.
Kennedy v. Bremerton Sch. Dist., 991 F.3d 1004, 1017 (9th
Cir. 2021). Not so fast.
First, the panel misapplied Supreme Court precedent
since none of the School District’s actions would have come
close to an endorsement of religion or coercion. Instead, the
panel went beyond precedent, assuming a hypothetical

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KENNEDY V . B REMERTON S CHOOL DISTRICT 75
Establishment Clause violation where there was none. This
extension is especially erroneous given that the panel’s
reliance on Santa Fe Independent School District v. Doe,
530 U.S. 290 (2000), is inapt as there would not have been
an endorsement of religion by allowing Coach Kennedy to
pray. Moreover, Santa Fe should not be extended as it stems
from Lemon v. Kurtzman, 403 U.S. 602 (1971)—an
ahistorical, atextual, and failed attempt to define
Establishment Clause violations. See Freedom From
Religion Found., Inc. v. Chino Valley Unified Sch. Dist. Bd.
of Educ., 910 F.3d 1297, 1305–06 (9th Cir. 2018) (R.
Nelson, J., dissenting from denial of rehearing en banc).
And given the Supreme Court has effectively killed Lemon,
see generally Am. Legion v. Am. Humanist Ass’n, 139 S. Ct.
2067 (2019), the panel should not have extended Santa Fe’s
holding.
Second, the panel’s analysis goes far afield from the
original meaning of an established religion. American
Legion demonstrated how critical historical practice and
understanding is in the Establishment Clause context. The
panel missed that cue. And because of that mistake, the
panel allowed an ahistorical and expansive view of the
Establishment Clause “to justify the [School District]’s
infringement on [Coach Kennedy’s] religious freedom.” See
Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2263
(2020) (Thomas, J., concurring). Yet the Establishment
Clause was originally intended “to secure religious liberty,”
not purge it from the public square. See Santa Fe, 530 U.S.
at 313. And make no mistake, favoring secularism over
religion is not neutrality. Ante, at 28–29 (M. Smith, J.,
concurring in denial of rehearing en banc).
Thus, the panel not only misapplied Supreme Court
precedent; it also failed to analyze the Establishment Clause

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issue in light of American Legion and to realign our
jurisprudence with the Establishment Clause’s original
meaning. Respectfully, I dissent.1
I
The Constitution forbids Congress from making a “law
respecting an establishment of religion.” U.S. Const. amend.
1; see also Everson v. Bd. of Educ. of Ewing Twp., 330 U.S.
1, 15 (1947) (incorporating Establishment Clause to the
states). Under existing Supreme Court precedent, there was
no Establishment Clause violation here. What is more, the
panel extended that precedent to reach a conclusion far
beyond the original meaning of the Establishment Clause.
A
Under the Establishment Clause, that Congress cannot
“formally establish[ a] church is straightforward.” Am.
Legion, 139 S. Ct. at 2080. But “pinning down the meaning
of ‘a law respecting an establishment of religion’ has proven
to be a vexing problem.” Id. In Lemon, the Supreme Court
attempted to create a “grand unified theory” of
Establishment Clause violations, focusing on a law’s
purpose, effects, and entanglement with religion. Id.
at 2087; see Lemon, 403 U.S. at 612–13. That effort fell flat,
and Lemon was slowly replaced by a kaleidoscope of other
1 Judge O’Scannlain argues the Establishment Clause was not
implicated for want of state action. Ante, at 62–63. That point has merit.
For purposes of my analysis, however, I assume the School District’s
allowance of Coach Kennedy’s mid-field prayers would have been state
action. Even then, there would have been no Establishment Clause
violation.

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KENNEDY V . B REMERTON S CHOOL DISTRICT 77
tests.2 Lemon’s juice was finally wrung dry in 2019 when a
majority of the Justices yet again “personally dr[ove] pencils
through the creature’s heart.”3 See Lamb’s Chapel v. Ctr.
Moriches Union Free Sch. Dist., 508 U.S. 384, 398 (1993)
(Scalia, J., concurring in the judgment). But despite
2 See, e.g., Hunt v. McNair, 413 U.S. 734, 741 (1973); Lee v.
Weisman, 505 U.S. 577 (1992); Zobrest v. Catalina Foothills Sch. Dist.,
509 U.S. 1 (1993); Rosenberger v. Rector & Visitors of Univ. of Va., 515
U.S. 819 (1995); Zelman v. Simmons-Harris, 536 U.S. 639 (2002); Van
Orden v. Perry, 545 U.S. 677 (2005); Town of Greece v. Galloway, 572
U.S. 565 (2014); Trump v. Hawaii, 138 S. Ct. 2392 (2018).
3 Writing for a plurality, Justice Alito criticized Lemon for its
widespread shortcomings and noted its demise, Am. Legion, 139 S. Ct.
at 2080–82, instead relying on “a more modest approach that focuses on
the particular issue at hand and looks to history for guidance,” id. at 2087.
Concurring Justices reached similar conclusions. Justice Kavanaugh
underscored that “this Court no longer applies the old test articulated in
Lemon v. Kurtzman.” Id. at 2092. Justice Thomas would “overrule the
Lemon test in all contexts.” Id. at 2097. Justice Gorsuch rejected the
“misadventure” that was Lemon. Id. at 2101. And Justice Breyer
analyzed the issue without relying on Lemon. Id. at 2090–91.
Since American Legion, the Supreme Court continues to ignore
Lemon. See Espinoza, 140 S. Ct. at 2254. And other courts around the
country have recognized Lemon’s demise and wisely left it dead. See,
e.g., Woodring v. Jackson County, 986 F.3d 979, 981 (7th Cir. 2021);
Perrier-Bilbo v. United States, 954 F.3d 413, 425 (1st Cir. 2020);
Kondrat’yev v. City of Pensacola, 949 F.3d 1319, 1321 (11th Cir. 2020);
Freedom From Religion Found., Inc. v. County of Lehigh, 933 F.3d 275,
280–81 (3d Cir. 2019); Williams v. Kingdom Hall of Jehovah’s
Witnesses, No. 20190422, 2021 WL 2251819, at *4 (Utah June 3, 2021);
see also Brown v. Collier, 929 F.3d 218, 246–48 (5th Cir. 2019)
(rejecting Lemon’s application without recognizing its demise). Though
not formally overruled, see Georgia v. Pub. Res. Org., Inc., 140 S. Ct.
1498, 1520 n.6 (2020) (Thomas, J., dissenting), Lemon is effectively
(and fortunately) dead.

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Lemon’s demise, we are left to sort through the continued
application of its progeny.
Here, the panel primarily relied on Santa Fe, a test
focused on what the “objective observer” would view as an
endorsement of religion. Kennedy, 991 F.3d at 1017 (citing
Santa Fe, 530 U.S. at 308). Given this test stems from
Lemon’s atextual and ahistorical purpose and effects prongs,
see Lynch, 465 U.S. 668, 688–90 (1984) (O’Connor, J.,
concurring), the endorsement test is equally suspect. See
infra Part I.B. Even applying that test, however, the panel
was wrong. In Santa Fe, a school’s formal policy authorized
religious prayer before all football games, excluded minority
viewpoints, and controlled the invocation’s content.
530 U.S. at 302–08. The school also provided access to its
public address system and “clothed [the pregame prayer
ceremony] in the traditional indicia of school sporting
events.” Id. at 307–08. Here, however, the School District’s
“degree of . . . involvement” in Coach Kennedy’s private
prayers or the players’ voluntary participation is zero. See
id. at 305. In fact, nothing in Santa Fe is remotely analogous
to Coach Kennedy’s case. Had the School District allowed
him to pray, that would not have been an endorsement either,
as I explain in the next section.
The Supreme Court has also directed us to look at
whether a school’s practices coerce students into religious
practices or beliefs. See generally Good News Club v.
Milford Cent. Sch., 533 U.S. 98 (2001); Lee, 505 U.S. 577.
Coercion does not mean peer-pressure or offense when
encountering a religious practice. Town of Greece, 572 U.S.
at 589 (plurality op.) (“Offense, however, does not equate to
coercion.”); id. at 609 (Thomas, J., concurrence in part) (the
Establishment Clause is not violated “whenever the
reasonable observer feels subtle pressure” (internal

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KENNEDY V . B REMERTON S CHOOL DISTRICT 79
quotation marks omitted)). As James Madison explained,
the Establishment Clause was designed to stop Congress
from “establish[ing] a religion, and enforc[ing] the legal
observation of it by law, []or compel[ling] men to worship
God in any manner contrary to their conscience.” Debates
on the Amendments to the Constitution (Aug. 15, 1789), 1
Annals of Congress 758 (1834). Instead, coercion in the
school context only occurs when a school sponsors religion
or leverages mandatory attendance requirements. See Good
News Club, 533 U.S. at 116; see also Santa Fe, 530 U.S.
at 313 (voluntary prayer is allowed in public schools so long
as the State does not “affirmatively sponsor[] the particular
religious practice of prayer”).
Nothing here suggests coercion. If anything, the School
District vehemently opposed, not sponsored, Coach
Kennedy’s activities. Ante, at 66–67 (statement of
O’Scannlain, J.); ante, at 72–73 (Ikuta, J., dissenting). The
record also contains no evidence that participation in Coach
Kennedy’s mid-field prayers were mandatory. In fact, he
made sure players knew that they did not need to join in.
When players asked to participate, Coach Kennedy replied,
“This is a free country[.] . . . You can do what you want.”
Kennedy, 911 F.3d at 1010. And because players, coaches,
and others on a football field could join “as a result of their
own genuine and independent private choice,” there was no
coercion and thus no establishment. See Zelman, 536 U.S.
at 652. Those choices were “reasonably attributable to the
individual” not the school.4 Id. According to Coach
4 The panel noted that the “players did not initiate their own post-
game prayer” once Coach Kennedy was placed on administrative leave.
Kennedy, 991 F.3d at 1013; see also ante, at 29 (M. Smith, J., concurring
in denial of rehearing en banc); ante, at 38 (Christen, J., concurring in
denial of rehearing en banc). But that does not mean the players were

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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[5]
joined him on the field and knelt beside him.” Kennedy,
991 F.3d at 1012–13 (alterations adopted) (internal
quotation marks omitted).
One player expressed “fear” that not joining Coach
Kennedy’s mid-field prayer “would negatively impact his
playing time.” Kennedy, 991 F.3d at 1018. But a colorable
coercion claim requires evidence of actual benefits or
burdens discriminatorily allocated based on religious beliefs.
Town of Greece, 572 U.S. at 589 (plurality op.). Though one
player expressed fear of mistreatment, there was no hint of
actual evidence that Coach Kennedy ever disfavored players
based on their religious participation. And that is key, since
by all accounts Coach Kennedy had engaged in religious
expression for years without one allegation of unequal
previously coerced into joining Coach Kennedy when he did pray. If
anything, it is more reasonable to assume that the players avoided doing
exactly what their coach had just been punished for. Fear of engaging in
religious expression is not evidence of past coercion. To the contrary, it
undermines any Establishment Clause violation by the School.
5 The panel disagreed that the public response to Coach Kennedy’s
prayer was spontaneous. Kennedy, 991 F.3d at 1013. But Coach
Kennedy’s “publicity advertising” is beside the point for a coercion
inquiry. See id. Whether the public felt inspired to join Coach
Kennedy’s efforts because of his publicity or joined in the moment, there
is no evidence that Coach Kennedy’s media appearances somehow
coerced coaches, players, spectators, and others to join him. More
fundamentally, the School District did the opposite of compelling
participation—it attempted to dissuade the public from joining Coach
Kennedy by fielding “robo calls” and restricting access to the field. See
id. at 1012. Those who joined Coach Kennedy, whether spontaneously
or not, did so voluntarily.

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KENNEDY V . B REMERTON S CHOOL DISTRICT 81
treatment. Without more, this single statement from one
player experiencing “subtle pressure” is hardly enough. See
Town of Greece, 572 U.S. at 609 (Thomas, J., concurrence
in part).6 Courts must “distinguish between real threat” of
an establishment “and mere shadow.” Am. Legion, 139 S.
Ct. at 2091 (Breyer, J., concurring) (citation omitted). Since
neither the School District nor Coach Kennedy imposed
consequences based on participation, there was no coercion.
And the individual players’ and coaches’ choice to engage
in religious expression would not have been an
establishment.7
6 To be sure, the Supreme Court has recognized that elementary and
secondary students can be more impressionable and thus more
susceptible to coercion. See Kennedy, 991 F.3d at 1017 (quoting
Edwards v. Aguillard, 482 U.S. 578, 583–84 (1987)). Contrary to Judge
M. Smith’s assertion, I do not ignore this distinction. Ante, at 30–31
(M. Smith, J., concurring in denial of rehearing en banc). This case is
not like those where a school requires students to say a non-
denominational prayer, appoints a clergy to pray over a graduation
ceremony, or offers optional morning Bible readings. See id. at 24–25.
Because here the School District “[i]s not actually advancing religion,
the impressionability of students” is not “relevant to the Establishment
Clause issue.” Good News Club, 533 U.S. at 116. And though teachers
and coaches are role-models, the Supreme Court has yet to factor that
consideration into its Establishment Clause analysis. See id.
7 The panel thought that allowing Coach Kennedy to pray would
have subjected the School District and spectators to a parade of horribles,
including (alarmingly) letting anyone onto the field like the Satanists
waiting in the stands. See Kennedy, 991 F.3d at 1012; see also ante,
at 28–29 (M. Smith, J., concurring in denial of rehearing en banc); ante,
at 42 (Christen, J., concurring in denial of rehearing en banc). This
reasoning is incorrect. Nothing would have required the School District
to open the field to the public. Instead, it would have had to allow the
religious exercise of those with access to the field without discriminating
between beliefs or practices. See Trump v. Hawaii, 138 S. Ct. at 2417

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Despite there being neither endorsement nor coercion,
the panel still thought allowing Coach Kennedy to pray
would have “unquestionably” violated the Establishment
Clause. Kennedy, 991 F.3d at 1017. That conclusion
erroneously went beyond Supreme Court precedent and
therefore should have been corrected.8
B
The panel’s analysis was wrong for a more fundamental
reason: it leaps beyond the Establishment Clause’s original
meaning to the detriment of free exercise rights. Generally,
we rely on the plain meaning of the Constitution because the
Framers “employed words in their natural sense, and . . .
intended what they have said.” Gibbons v. Ogden, 22 U.S.
(1 Wheat.) 1, 188 (1824). And “contemporary history, and
contemporary interpretation” help us capture how the
(“[The] clearest command of the Establishment Clause is that one
religious denomination cannot be officially preferred over another.”).
If nearly all players had joined Coach Kennedy, that would not have
been an establishment either. To be clear, these religious protections
apply equally to all creeds. See ante, at 31 (M. Smith, concurring in
denial of rehearing en banc). But when “nearly all” of those engaging in
voluntary religious exercise “turn[] out to be” members of the same faith,
allowing those homogenous exercises would “not reflect an aversion or
bias . . . against minority faiths.” Town of Greece, 572 U.S. at 585. So
long as individuals, as here, retain a “genuine and independent private
choice,” the frequency of a religious belief or practice should not factor
into an Establishment Clause analysis. See Zelman, 536 U.S. at 652.
8 Were Santa Fe controlling, we clearly would need to apply
Supreme Court precedent. See ante, at 29–30 (M. Smith, J., concurring
in denial of rehearing en banc). But Santa Fe is not controlling, and we
should not extend inapt precedent (as the panel did here), especially
when the Supreme Court has recently taken a different tack in
Establishment Clause cases. See generally Am. Legion, 139 S. Ct. 2067.

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Constitution’s text would have been understood by the
ordinary voter at the time of its ratification. 3 Joseph Story,
Commentaries on the Constitution of the United States § 405
(1833); see also District of Columbia v. Heller, 554 U.S.
570, 576 (2008) (cleaned up) (“the Constitution was written
to be understood by the voters” at the time it was ratified).
This inquiry is critical as “a practice consistent with our
nation’s traditions is just as permissible whether undertaken
today” or 230 years ago. Am. Legion, 139 S. Ct. at 2102
(Gorsuch, J., concurring in the judgment); cf. Fulton v. City
of Philadelphia, 141 S. Ct. 1868, 1896 (2021) (Alito, J.,
concurring in the judgment) (words in the Free Exercise
Clause “had essentially the same meaning in 1791 as they do
today”). Thus, the plain meaning of the Establishment
Clause’s text informed by historical practice should guide
our interpretation of that Clause.
The Supreme Court has already interpreted the
Establishment Clause under a historical test in many
contexts. To name a few, the Van Orden plurality jettisoned
Lemon to analyze a monument’s nature and “our Nation’s
history.” 545 U.S. at 686; see also id. at 699 (Breyer, J.,
concurring) (rejecting a single test, but recognizing the
Court’s reliance on historical practices in some contexts). In
Marsh v. Chambers, 463 U.S. 783, 787–89 (1983), and Town
of Greece, 572 U.S. at 575–76, the Court looked to historical
practices and understandings to determine the
constitutionality of legislative prayer. And recently in
American Legion, the Court continued its trend with a
majority of the Justices analyzing the “particular issue at
hand” and relying on “history for guidance.” 139 S. Ct. at
2067 (plurality op.); see also id. at 2096 (Thomas, J.,
concurring in the judgment); id. at 2102 (Gorsuch, J.,
concurring in the judgment). Even Everson relied on “the
background and environment of the period in which [the

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Establishment Clause’s] constitutional language was
fashioned and adopted” in the school context. 330 U.S. at 8.
This history-based test is not a way to approach
Establishment Clause cases, see Am. Legion, 139 S. Ct.
at 2092 (Kavanaugh, J., concurring)—it should be the way.
For judges, originalism provides a powerful check
against injecting our own policy preferences into the
Constitution; but sticking to the Establishment Clause’s
original public meaning is especially critical. The Bill of
Rights generally sets a floor, allowing federal, state, and
local governments to further protect those rights. Hence
Congress and many states enacted legislation to keep
protecting religious freedoms after the Supreme Court
artificially limited the Free Exercise Clause. See Emp. Div.,
Dep’t of Hum. Res. of Or. v. Smith, 494 U.S. 872 (1990);
Holt v. Hobbs, 574 U.S. 352, 357 (2015); National
Conference of State Legislatures, State Religious Freedom
Restoration Acts (May 4, 2017), https://www.ncsl.org/resea
rch/civil-and-criminal-justice/state-rfra-statutes.aspx. In
contrast, the Establishment Clause is more of a ceiling. It
was ratified to ensure the free exercise of religion without
government interference. Santa Fe, 530 U.S. at 313
(“Indeed, the common purpose of the Religion Clauses is to
secure religious liberty.” (emphasis added) (internal
quotation marks and citation omitted)); see also James
Madison, Memorial and Remonstrance Against Religious
Assessments (1785), reprinted in The Founders’
Constitution 82–84 (Philip B. Kurland & Ralph Lerner eds.,
1986). But by expanding the Establishment Clause beyond
its original scope, we frustrate its purpose and inhibit
personal religious exercise in the public square.
The panel’s analysis is a perfect example. Under the
panel’s ahistorical view of the Establishment Clause, the

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KENNEDY V . B REMERTON S CHOOL DISTRICT 85
School District had to let Coach Kennedy go since simply
allowing him to pray on the field would have
“unquestionably” violated the Establishment Clause. See
Kennedy, 991 F.3d at 1017. Or as Judge M. Smith reiterated,
“[m]erely by allowing the prayer to take place,” the School
District would have “violated the Establishment Clause”
even if the prayer “was the independent choice of private
individuals.” Ante, at 26 (M. Smith, J., concurring from
denial of rehearing en banc). That conclusion could not be
further from the original meaning of an established religion.
Yet the panel expanded the Establishment Clause beyond its
original scope, and even beyond our precedent, in a way that
would allow the School District to violate the free exercise
rights of an employee engaged in private prayer. Kennedy,
991 F.3d at 1019–21.
Historical practice shows that allowing religion in the
public square was never understood to be an establishment.
See 3 Story, supra, § 405. “There is an unbroken history of
official acknowledgment by all three branches of
government of the role of religion in American life from at
least 1789.” Lynch, 465 U.S. at 674. George Washington as
his “first official act” gave “fervent supplications to that
Almighty Being who rules over the universe,” for “[n]o
people can be bound to acknowledge and adore the Invisible
Hand, which conducts the affairs of men more than those of
the United States.” First Inaugural Address (Apr. 30, 1789),
reprinted in 1 Inaugural Addresses of the Presidents of the
United States 7 (2000). Only days after the Establishment
Clause was ratified, Congress “enacted legislation providing
for paid chaplains for the House and Senate.” Lynch,
465 U.S. at 674. Thanksgiving began as a day of gratitude
“to the Great Lord and Ruler of Nations,” and eventually
became a national holiday one century later. Id. at 677–78
& n.2 (citations omitted). Be it executive or legislative

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practices, the Pledge of Allegiance, or deific references on
our coinage, these overtly religious practices are
constitutional today not just because of tradition; they did
not violate the Establishment Clause then and certainly do
not now. See Am. Legion, 139 S. Ct. at 2102 (Gorsuch, J.,
concurring in the judgment).
In schools specifically, allowing religious exercise never
caused heartburn. In our nation’s early days, clergy oversaw
education and often intermixed religious training. Joseph P.
Viteritti, Blaine’s Wake: School Choice, the First
Amendment, and State Constitutional Law, 21 Harv. J. L. &
Pub. Pol’y 657, 663 (1998); see also Alexis de Tocqueville,
1 Democracy in America 314 n.f (2d ed. 1900) (“Almost all
education is entrusted to the clergy.”). Massachusetts’
constitution also affirmed that “the happiness of a people,
and the good order and preservation of civil government
essentially depend upon piety, religion and morality”
attained through “public worship of God and . . . public
instructions.” Mass. Const. of 1780 pt. I, art. III.
Pennsylvania’s constitution similarly considered “religious
societies” as perfectly situated “for the advancement of
religion or learning.” Pa. Const. of 1776, §§ 44–45.
The First Congress allowed religion in schools as well.
Those for and against a federal constitution agreed that the
new Congress had no authority to establish a religion. See
Amar, supra, at 36; The Federalist No. 45 (James Madison)
(“The powers delegated by the proposed Constitution to the
federal government are few and defined.”); 3 Story, supra,
§ 1873 (“Thus, the whole power over the subject of religion
is left exclusively to the state governments . . . .”). Still, the
First Congress had authority to reenact the Northwest
Ordinance of 1787, which declared that “[r]eligion, morality,
and knowledge, being necessary to good government and the

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KENNEDY V . B REMERTON S CHOOL DISTRICT 87
happiness of mankind, schools and the means of education
shall forever be encouraged.” Act of Aug. 7, 1789, ch. 8, 1
Stat. 50, 52. Congress could not have passed that law if
doing so would have impermissibly encroached into the
religious sphere.
Tellingly, a recent analysis of founding-era corpora
found no evidence that prayers or religious practices in
schools were considered an establishment of religion at the
time of the Establishment Clause’s ratification. Stephanie
H. Barclay et al., Original Meaning and the Establishment
Clause: A Corpus Linguistics Analysis, 61 Ariz. L. Rev. 505,
555 (2019). The only potential Establishment Clause
violation occurred when parents and students could not
choose between already religious schools. Id. at 555 n.311.
Decades later, the relationship between schools and
religion began to shift. Newly minted public schools called
for “strict religious neutrality” and the “entire exclusion of
religious teaching.” Viteritti, supra, at 666. But in reality,
these policies aimed to weaken Catholic parochial schools
and strengthen Protestant dominance in educational settings.
Id. at 666–68. It worked. And sadly, this religious infighting
laid the groundwork for the Supreme Court’s separationist
jurisprudence (like Lemon) and today’s anti-religious
demands in all public contexts. Eventually, it became
culturally apropos to declare that “[t]he First Amendment
has erected a wall between church and state” that “must be
kept high and impregnable.” Everson, 330 U.S. at 18. But
that wall was not laid in 1791; it was laid brick by brick in
the centuries that followed.9
9 Everson relies, in part, on a letter from Thomas Jefferson to the
Danbury Baptist Association, explaining that the Religion Clauses were

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88 KENNEDY V . B REMERTON S CHOOL DISTRICT
Applying the Establishment Clause’s historical bounds
to Coach Kennedy’s case, the panel got it wrong. Merely
allowing a coach or teacher to pray on the football field
would not have been an establishment in 1791 and thus is
not an establishment now. “The Religion Clauses of the
First Amendment . . . [b]y no means . . . impose a prohibition
on all religious activity in our public schools.” Santa Fe,
530 U.S. at 313. Again, en banc review would have allowed
our court to correct the panel’s ahistorical analysis.
II
One last thought. If we accept a historical approach to
Establishment Clause cases (as American Legion requires),
what do we do with the litany of other tests created over the
years? It makes little sense to kill Lemon but keep its
progeny. Thus, tests stemming from Lemon’s purpose,
effects, or entanglement prongs are inherently suspect. That
“intended to erect ‘a wall of separation between Church and State.’”
330 U.S. at 16; see also Thomas Jefferson, Letter to the Danbury Baptist
Association (Jan. 1, 1802), reprinted in The Founders’ Constitution,
supra, at 96. Separationists have relied on this statement for decades.
But Jefferson was not present during the framing and ratification of the
Bill of Rights and is thus “a less than ideal source of contemporary
history as to the meaning of the Religion Clauses of the First
Amendment.” Wallace v. Jaffree, 472 U.S. 38, 92 (1985) (Rehnquist, J.,
dissenting); see id. (“It is impossible to build sound constitutional
doctrine upon a mistaken understanding of constitutional history.”).
More importantly, Jefferson thought the Establishment Clause
disallowed Congress from passing religiously focused legislation, but
not the states (which retained the authority to enact such legislation).
Amar, supra, at 34–35. This explains Jefferson’s unwillingness to
declare a day of Thanksgiving while president, but allowance of religious
endorsements as Virginia’s governor so long as dissenters retained their
freedom of conscience. Id. Against this backdrop, it makes no sense to
superimpose Jefferson’s views of federal limits on state and local
governments.

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KENNEDY V . B REMERTON S CHOOL DISTRICT 89
said, if a test accurately captures the Establishment Clause’s
historical bounds without narrowing or expanding those
bounds, there is no need to jettison the test.
The panel’s “objective observer” test far exceeds the
original bounds of the Establishment Clause. See Kennedy,
991 F.3d at 1017 (quoting Santa Fe, 530 U.S. at 308). The
test is already suspect since it stems from Lemon, see Lynch,
465 U.S. at 688–90 (O’Connor, J., concurring), and its
overbroad sweep confirms that suspicion. First,
“endorsement” is too opaque. As this case demonstrates,
“endorsement” can sweep wide enough to forbid the School
District from merely allowing personal prayer on a football
field (a practice that historically was never an
establishment).
Second, the test turns on the objective observer. But who
is that? The panel did not have someone from 1791 in mind.
No, the panel relied on whether a modern-day observer—
infused with today’s more recent separationist mentality—
would view the School District’s allowance of Coach
Kennedy’s prayer as an establishment. After all, only that
modern mentality drove the School District to ask Coach
Kennedy to pray in a “private location” off the field or non-
visibly on the field. See Kennedy, 991 F.3d at 1013. Only
that mentality allowed the district court to find the School
District’s actions were justified by the Establishment Clause.
And only that mentality compelled the panel to praise the
School District’s “efforts to avoid violating the
Constitution” yet disparage Coach Kennedy’s efforts to

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90 KENNEDY V . B REMERTON S CHOOL DISTRICT
personally exercise his beliefs in a public space and defend
his free exercise rights.10 E.g., Kennedy, 991 F.3d at 1010.
Put simply, relying on the modern-day observer allows
governments and the courts to expand the Establishment
Clause’s prohibitions beyond its original bounds and inhibit
free exercise. But the Establishment Clause as originally
understood makes clear there is “no constitutional
requirement which makes it necessary for government to be
hostile to religion and to throw its weight against efforts to
widen the effective scope of religious influence.” Zorach v.
Clauson, 343 U.S. 306, 314 (1952). So just as Lemon has
been deemed largely illegitimate, so is an equally
illegitimate and ahistorical endorsement test based on the
modern-day objective observer. See Town of Greece,
572 U.S. at 609–10 (Thomas, J., concurring in part).
III
The Establishment Clause was designed to keep
government out of personal religious exercise, not purge
religion from the public square. Not only did the panel’s
10 The main opinion repeatedly criticized Coach Kennedy for
publicly defending his rights and refusing to hide his religious beliefs—
“pugilistic,” to put it in a word. Kennedy, 991 F.3d at 1017. But would
we ever pejoratively refer to members of various civil rights movements
as “pugilistic” when they publicly, peacefully, and vocally tried to
vindicate their rights? Absolutely not. See, e.g., Masterpiece Cakeshop
Ltd. v. Colo. Civ. Rts. Comm’n, 138 S. Ct. 1719, 1727 (2018) (gay
individuals and couples “cannot be treated as social outcasts or as
inferior in dignity or worth,” and “[t]he exercise of their freedom on
terms equal to others must be given great weight and respect by the
courts”). The position “that religious beliefs cannot legitimately be
carried into the public sphere . . . implying that . . . religious persons are
less than fully welcome” is hostility toward religion, not neutrality. Id.
at 1729.

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KENNEDY V . B REMERTON S CHOOL DISTRICT 91
analysis miss the mark, but it expanded a dangerous
misunderstanding of the Establishment Clause that infringes,
not protects, religious rights. There may be situations in
which a school’s sponsorship or mandatory attendance
policies lead to actual coercion. But merely allowing
religion to be independently expressed in a school setting
was never and is not an establishment of religion.
Without a distorted view of the Establishment Clause to
hide behind (whether analyzed under existing Supreme
Court precedent specifically or a historical analysis
generally), the School District violated Coach Kennedy’s
free exercise rights. Religion was the “sole reason” it acted
against Coach Kennedy, triggering the strictest scrutiny.
Kennedy, 991 F.3d at 1010; Espinoza, 140 S. Ct. at 2255.
The School District also had no compelling interest other
than an erroneous understanding of the Establishment
Clause. In other words, at least Coach Kennedy’s Free
Exercise claim would have “unquestionably” succeeded.
We are left with yet another decision untethered from
history and grounded in hostility toward religion of more
recent vintage. But from this nation’s beginning, when
government “guarantee[d] the freedom to worship as one
chooses,” “ma[d]e room for [a] wide variety of beliefs and
creeds,” “show[ed] no partiality to any one group,” and “let[]
each flourish,” it “follow[ed] the best of our traditions.”
Zorach, 343 U.S. at 313–14. With history as our guide, we
can better follow the First Congress’s “example of respect
and tolerance for differing views, an honest endeavor to
achieve inclusivity and nondiscrimination, and a recognition
of the important role that religion plays in the lives of many
Americans.” Am. Legion, 139 S. Ct. at 2089. I dissent.

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92 KENNEDY V . B REMERTON S CHOOL DISTRICT
COLLINS, Circuit Judge, dissenting from the denial of
rehearing en banc:
For the reasons set forth by Judge O’Scannlain, whose
statement I join, I dissent from the denial of rehearing en
banc in this case. I have little to add to the much that has
already been said about this case, but I do think that it is
worthwhile to underscore one irreducible aspect of the
panel’s opinion.
In concluding that Bremerton School District employed
the least restrictive means of accomplishing its assertedly
compelling interest in avoiding an Establishment Clause
violation, the panel relied on the premise that “allowing
Kennedy” to “pray[] on the fifty-yard line immediately
following the game in full view of students and spectators”
“would constitute an Establishment Clause violation.”
Kennedy v. Bremerton Sch. Dist., 991 F.3d 1004, 1022 (9th
Cir. 2021) (emphasis added). Thus, according to the panel,
allowing any publicly observable prayer behavior by the
coach in those circumstances—even silent prayer while
kneeling—would violate the Establishment Clause. See id.
(describing “pray[ing] on the fifty-yard line immediately
following the game” as “a practice that violated the
Establishment Clause”). Whatever else might be said about
what occurred at the various games at issue in this case, that
holding is indefensible under current Supreme Court
caselaw, as Judge O’Scannlain amply demonstrates.

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