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A state interest in avoiding an Establishment Clause violation may be characterized as compelling, and therefore may justify content-based discrimination. A school district's interest in avoiding an Establishment Clause violation trumps a teacher's right to free speech.
Joseph Kennedy, Bremerton School District's (BSD)former high school football coach, brought an action against BSD alleging 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.
Would BSD have violated the Establishment Clause by allowing Kennedy, a high school football coach, to engage in demonstrative religious conduct immediately after football games, while kneeling on the field's fifty-yard line, surrounded by many of his players, and occasionally members of the community?
The court held that Kennedy’s free speech claim against BSD failed because he spoke as a public employee when he engaged in on-field, demonstrative religious activity, so his speech was unprotected, and even if the coach spoke as a private citizen, BSD had an adequate justification for its treatment of him because an objective observer, familiar with the history of his practice, would view his demonstrations as the district's endorsement of a particular faith. Kennedy’s free exercise claim failed because BSD had a compelling state interest to avoid violating the Establishment Clause, and it tried repeatedly to work with the coach to develop an accommodation for him that would avoid violating the Establishment Clause while nevertheless offering him options that were narrowly tailored to protect his rights.