This article was published by The McAlvany Intelligence Advisor on Wednesday, March 11, 2020:
For Joe Kennedy, the former coach of Washington’s Bremerton High Junior Varsity football team, it’s been a long five years. He coached the team from 2008 until his contract wasn’t renewed in 2015. For those seven years, after every game, he would take 15 seconds to go out to the 50-yard line and pray for his players.
And for seven years nobody minded. Nobody said anything. Nobody sued. Nobody even threatened to sue.
But when a school administrator paid a public compliment for how the coach was positively impacting the lives of his players, the school board told Kennedy to stop. When he didn’t, the board decided not to renew his contract.
Kennedy enlisted the help of First Liberty, a non-profit public interest law firm that specializes in such First Amendment cases. Together they sued the board, claiming it violated his First Amendment rights. And they lost.
So they appealed to the Ninth Circuit Court of Appeals. And they lost again. So they appealed to the Supreme Court. And lost. But with a disclaimer: there were enough loose ends to the case that needed to be resolved at the lower court’s level to keep the court from reviewing Kennedy’s claim.
In the Supreme Court’s denial in January 2019, Justices Samuel Alito, Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh added a statement to the public record, explaining that “important unresolved factual questions would make it very difficult if not impossible at this stage to decide the free speech question that [Kennedy] asks us to review.”
The justices then excoriated the Ninth Circuit Court’s reasoning: “The Ninth Circuit’s opinion applies our decision in Garcetti v. Ceballos to public school teachers and coaches in a high tendentious [i.e., biased] way.”
That decision ruled that statements made by public employees in the normal conduct of their official duties are not protected by the First Amendment. It ruled that public employees are not speaking as citizens when they are speaking to fulfill a responsibility of their job. It held that the First Amendment does not prevent employees from being disciplined for making statements that are made “pursuant” to their professional duties.
But the Ninth Circuit stretched that ruling out of all recognition, according to the justices: