Initially, Mr. Kennedy prayed on his own. But over time, some players asked whether they could pray alongside him. Mr. Kennedy responded by saying, “‘This is a free country. You can do what you want.’”. The number of players who joined Mr. Kennedy eventually grew to include most of the team, at least after some games. Sometimes team members invited opposing players to join. Other times Mr. Kennedy still prayed alone. Eventually, Mr. Kennedy began incorporating short motivational speeches with his prayer when others were present. Separately, the team at times engaged in pregame or postgame prayers in the locker room. It seems this practice was a “school tradition” that predated Mr. Kennedy’s tenure. Mr. Kennedy explained that he “never told any student that it was important they participate in any religious activity.” In particular, he “never pressured or encouraged any student to join” his postgame midfield prayers.
For over seven years, no one complained to the Bremerton School District (District) about these practices.
It seems the District’s superintendent first learned of them only in September 2015, after an employee from another school commented positively on the school’s practices to Bremerton’s principal. At that point, the District reacted quickly. On September 17, the superintendent sent Mr. Kennedy a letter. In it, the superintendent identified “two problematic practices” in which Mr. Kennedy had engaged. First, Mr. Kennedy had provided “inspirational talk[s]” that included “overtly religious references” likely constituting “prayer” with the students “at midfield following the completion of . . . game[s].” Second, he had led “students and coaching staff in a prayer” in the locker-room tradition that “predated [his] involvement with the program.”
The District explained that it sought to establish “clear parameters” “going forward.” It instructed Mr. Kennedy to avoid any motivational “talks with students” that “include[d] religious expression, including prayer,” and to avoid “suggest[ing], encourag[ing] (or discourag[ing]), or supervis[ing]” any prayers of students, which students remained free to “engage in.” The District also explained that any religious activity on Mr. Kennedy’s part must be “nondemonstrative (i.e., not outwardly discernible as religious activity)” if “students are also engaged in religious conduct” in order to “avoid the perception of endorsement.” In offering these directives, the District appealed to what it called a “direct tension between” the “Establishment Clause” and “a school employee’s [right to] free[ly] exercise” his religion. To resolve that “tension,” the District explained, an employee’s free exercise rights “must yield so far as necessary to avoid school endorsement of religious activities.”
After receiving the District’s September 17 letter, Mr. Kennedy ended the tradition, predating him, of offering locker-room prayers. He also ended his practice of incorporating religious references or prayer into his postgame motivational talks to his team on the field.
On October 14, through counsel, Mr. Kennedy sent a letter to school officials informing them that, because of his “sincerely-held religious beliefs,” he felt “compelled” to offer a “post-game personal prayer” of thanks at midfield. He asked the District to allow him to continue that “private religious expression” alone. Consistent with the District’s policy, Mr. Kennedy explained that he “neither requests, encourages, nor discourages students from participating in” these prayers, Mr. Kennedy emphasized that he sought only the opportunity to “wai[t] until the game is over and the players have left the field and then wal[k] to mid-field to say a short, private, personal prayer.” He “told everybody” that it would be acceptable to him to pray “when the kids went away from [him].” He later clarified that this meant he was even willing to say his “prayer while the players were walking to the locker room” or “bus,” and then catch up with his team. However, Mr. Kennedy objected to the logical implication of the District’s September 17 letter, which he understood as banning him “from bowing his head” in the vicinity of students, and as requiring him to “flee the scene if students voluntarily [came] to the same area” where he was praying. After all, District policy prohibited him from “discourag[ing]” independent student decisions to pray.
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