Update on Supreme Court Case of the Praying Football Coach

[The Nehor]

Coach Kennedy won his case and the Supreme Court ordered the school to renew his contract. Coach Kennedy insisted his only goal in the case was to keep his job and he would be on the “first flight” once that happened.

Then things get weird. The school is ready to comply with the court order but the coach has not gotten in touch about renewing his contract.

https://www.seattletimes.com/seattle-news/the-story-of-the-praying-bremerton-coach-keeps-getting-more-surreal/
 

 

Quote

 

As soon as the school district says ‘Hey, come back,’ I am there, first flight,” he said.

So the school district has been flummoxed about what’s happened since. They complied by offering to reinstate him, they say, and now the football season is in full swing. But Kennedy is nowhere near the sidelines.

“He’s had the paperwork for his reinstatement since August 8th, and we haven’t gotten so much as a phone call,” says Karen Bevers, spokesperson for Bremerton schools.

Instead, as the Bremerton Knights were prepping for the season in August, Kennedy was up in Alaska, meeting with former Vice President Mike Penceand evangelist Franklin Graham. On the eve of the first game, which the Knights won, Kennedy was in Milwaukee being presented with an engraved .22-caliber rifle at an American Legion convention.

The weekend of the second game, which the Knights also won, Kennedy appeared with former President Donald Trump at the Trump National Golf Club in New Jersey. He saw Trump get a religious award from a group called the American Cornerstone Institute.

Coming up this month, Kennedy’s scheduled to give a talk as part of a lectureship series at a Christian university in Arkansas.

“Place a PR/Publicity Request,” invites his personal website, where he’s known as Coach Joe.

It’s an increasingly surreal situation for the Bremerton schools. They were ordered to “reinstate Coach Kennedy to a football coaching position,” according to court documents. But the now-famous coach is out on the conservative celebrity circuit, continuing to tell a story about “the prayer that got me fired” — even though Bremerton never actually fired him.

In 2015, he was put on paid leave near the end of the season after holding a series of prayer sessions on the field with students and state legislators. He still got paid for his full assistant coach contract, about $5,000. High school assistants often work on yearly deals, and Kennedy, at odds with the head coach and aggrieved by what had happened, never reapplied to work the 2016 season.

“He was not terminated,” Bevers said. The head coach at the time had moved on, as did most of the coaching staff.

This did not stop Kennedy’s lawyers from telling the Supreme Court repeatedly that he was fired.

“The record is clear that Coach Kennedy was fired for that midfield prayer,” lawyer Paul Clement told the nine justices in the first 15 seconds of the oral arguments of the case in April. The words “fired,” “fire” or “firing” were used 16 times in the hour and a half session.

It wasn’t true though. The district’s lawyers tried to correct the record, to no avail.

“You can’t sue them for failing to rehire you if you didn’t apply,” one lawyer, Mercer Island’s Michael Tierney, argued during a lower court session. “The District didn’t get an application from him, had four positions to fill and filled them with people who had applied. It didn’t fail to rehire him.”

The Supreme Court simply ignored this inconvenient fact — along with a host of others. At one point during oral arguments, as a different school district attorney was saying the narrative that had been spun didn’t fit with the facts — that the coach’s prayers were neither silent nor solitary, nor was he fired — Justice Samuel Alito interrupted him, saying “I know that you want to make this very complicated.”

So he didn’t even try to keep his job which automatically terminates every year and then sued to keep the job he never sought? Then when he won the right to the job he decided the conservative celebrity grifting circuit is his true passion and never sought the hard-won job? 

Huh……odd that. And the Supreme Court Justices kept hammering incorrect facts? And are also recently whining about how people don’t respect their legitimacy? Huh……

Edited September 18, 2022 by The Nehor

[JustAnAustralian]

This is the first time I think I realised that it's based on events from 7 years ago.

 

[rpn]

Before you dis someone's choice's and statements, consider that a lot can happen during the life of a Supreme Court case, and we probably don't know it all.   I don't think the OP knows enough to be so definitively judging negatively the circumstances or, if he has changed his mind, why.   This isn't an "UPDATE" but a uninformed hit job, at least facially.

[Calm]

7 minutes ago, rpn said:

Before you dis someone's choice's and statements, consider that a lot can happen during the life of a Supreme Court case, and we probably don't know it all.   I don't think the OP knows enough to be so definitively judging negatively the circumstances or, if he has changed his mind, why.   This isn't an "UPDATE" but a uninformed hit job, at least facially.

If he was paid until the end of his contract and then simply not rehired, how can he have been fired?

Are you saying that particular fact of the case is inaccurate?

Edited September 18, 2022 by Calm

[Calm]

So I was looking for confirmation that he was simply not rehired and hasn’t even applied to be hired and ended up reading some of the syllabus of the SC decision. It reaffirms my belief it was inappropriate for him to be praying at that time because he was not on a break or having personal time, but it was time officially designated as him being required to be supervising students, being responsible for them. So if he is having prayer with students at that time, it is technically part of his job, which is against the rules. It is not a quiet nor a private prayer. 
 

“The District first hired Kennedy in 2008, on a renewable annual contract, to serve as a part-time assistant coach for the varsity football team and head coach for the junior var- sity team at Bremerton High School (BHS). Kennedy’s job description required him to “[a]ccompany and direct” all home and out-of-town games to which he was assigned, overseeing preparation and transportation before games, being “[r]esponsible for player behavior both on and off the field,” supervising dressing rooms, and “secur[ing] all facilities at the close of each practice.” App. 32–34, 36. His duties encompassed “supervising student activities immediately following the completion of the game” until the students were released to their parents or otherwise allowed to leave. Id., at 133.”

[I removed end of line dashes]

page 43

https://www.supremecourt.gov/opinions/21pdf/21-418_i425.pdf

“ As relevant here, the District’s policy on “Religious-Related Activities and Practices” provided that “[s]chool staff shall neither encourage or discourage a student from engaging in non-disruptive oral or silent prayer or any other form of devotional activity” and that “[r]eligious services, programs or assemblies shall not be conducted in school facilities during school hours or in connection with any school sponsored or school related activity.”

page 44

Not exactly private:

”Before the homecoming game, Kennedy made multiple media appearances to publicize his plans to pray at the 50-yard line, leading to an article in the Seattle News and a local television broadcast about the upcoming homecoming game. In the wake of this media coverage, the District began receiving a large number of emails, letters, and calls, many of them threatening.”

Page 48

”The District responded to Kennedy’s letter before the
game on October 16. It emphasized that Kennedy’s letter evinced “materia[l] misunderstand[ings]” of many of the facts at issue. Id., at 76. For instance, Kennedy’s letter asserted that he had not invited anyone to pray with him; the District noted that that might be true of Kennedy’s Sep- tember 17 prayer specifically, but that Kennedy had acknowledged inviting others to join him on many previous occasions. The District’s September 17 letter had explained that Kennedy traditionally held up helmets from the BHS and opposing teams while players from each team kneeled around him. While Kennedy’s letter asserted that his prayers “occurr[ed] ‘on his own time,’ after his duties as a District employee had ceased,” the District pointed out that Kennedy “remain[ed] on duty” when his prayers occurred “immediately following completion of the football game, when students are still on the football field, in uniform, under the stadium lights, with the audience still in attendance, and while Mr. Kennedy is still in his District-issued and District-logoed attire.””

By taking the time immediately after the game to pray with or without students, coaches, TV cameras, he was neglecting his actual duties:

“The District sent Kennedy another letter on October 23, explaining that his conduct at the October 16 game was inconsistent with the District’s requirements for two reasons. First, it “drew [him] away from [his] work”; Kennedy had, “until recently, . . . regularly c[o]me to the locker room with the team and other coaches following the game” and had “specific responsibility for the supervision of players in the locker room following games.” ”

Edited September 18, 2022 by Calm

[bluebell]

Was this his goal from 7 years ago, or a goal that he expressed lately?

 

[Calm]

“Stressing that “[d]evelopment of accommodations is an interactive process,” it invited Kennedy to reach out to discuss accommodations that might be mutually satisfactory, offering proposed accommodations and inviting Kennedy to raise others.…

Kennedy did not directly respond or suggest a satisfactory accommodation. Instead, his attorneys told the media that he would accept only demonstrative prayer on the 50-yard line immediately after games….

The District recounted that it had offered accommodations to, and offered to engage in further discussions with, Kennedy to permit his religious exercise, and that Kennedy had failed to respond to these offers. The District stressed that it remained willing to discuss possible accommodations if Kennedy was willing.”

page 50

So when does an employee have the right to dictate to his employer how he will perform his job?

“In Kennedy’s annual review, the head coach of the varsity team recommended Kennedy not be rehired because he “failed to follow district policy,” “demonstrated a lack of co-operation with administration,” “contributed to negative relations between parents, students, community members, coaches, and the school district,” and “failed to supervise student-athletes after games due to his interactions with media and community” members. Id., at 114. The head coach himself also resigned after 11 years in that position, expressing fears that he or his staff would be shot from the crowd or otherwise attacked because of the turmoil created by Kennedy’s media appearances. Three of five other assistant coaches did not reapply.”

page 51

So Kennedy’s behaviour of publicizing his prayers pretty much created a hostile work environment causing several other employees to quit. 
 

““feeling compelled to join Kennedy in prayer to stay connected with the team or ensure playing time,” and that the “slow accumulation of players joining Kennedy suggests exactly the type of vulnerability to social pressure that makes the Establishment Clause vital in the high school context.”

page 53

”The court instead concluded that Kennedy’s speech constituted government speech, as he “repeatedly acknowledged that—and behaved as if—he was a mentor, motivational speaker, and role model to students specifically at the conclusion of the game.””

Looking at the pictures and reading the content of his speech, the above seems obvious to me.  Who holds up helmets in a private prayer?

Edited September 19, 2022 by Calm

[Calm]

36 minutes ago, bluebell said:

Was this his goal from 7 years ago, or a goal that he expressed lately?

 

Unfortunately the quote provided was just in that article and repeats of it so far and it is written as being said after the ruling. 
 

“The day of the ruling, Fox News host Sean Hannity expressed doubts the district would follow through. But one of Kennedy’s lawyers clarified that they had no choice: “We’re ready to have that fight. If they want to defy the Supreme Court, I think they’re gonna realize they made a serious mistake.”

Kennedy was sunnier about it all.

“As soon as the school district says ‘Hey, come back,’ I am there, first flight,” he said.”

I am going to see if I can find a clip and see if both Kennedy and his lawyer were on Hannity. 

Edited September 18, 2022 by Calm

[Calm]

Not a clip, but from June:

https://www.foxnews.com/media/praying-coach-won-supreme-court-case-wants-job-invocation-back.amp

”When asked if Kennedy plans to try to return to Bremerton, Shackelford strongly suggested he would:

 "In the fall, he'll be back on the field, and he'll be saying a prayer after the game," he replied”

Maybe Kennedy forgot to tell his lawyer if by chance the offer to meet Pence and Trump (at separate events), Franklin Graham and get awarded a rifle occurred at the same time as a game, the game would have to take second place…and it turns out the whole season is that way. 

Edited September 18, 2022 by Calm

[The Nehor]

1 hour ago, JustAnAustralian said:

This is the first time I think I realised that it's based on events from 7 years ago.

 

I knew it was from years ago but how far back I had forgotten.

58 minutes ago, rpn said:

Before you dis someone's choice's and statements, consider that a lot can happen during the life of a Supreme Court case, and we probably don't know it all.   I don't think the OP knows enough to be so definitively judging negatively the circumstances or, if he has changed his mind, why.   This isn't an "UPDATE" but a uninformed hit job, at least facially.

Hit job? A facial hit job? I never said he was a Nazi.

I am not suggesting he changed his mind and that is bad. I am suggesting that the idea that he ever still wanted the job is doubtful. By the time this was in the courts it was a political stunt with local and state politicians joining in the private prayers for the clout. Now he is running around selling public appearances. Much more lucrative than the football coach job. A success in the free market from one perspective I suppose.

I am more concerned that so many Supreme Court Justices seemed so deliberately ignorant of the facts of a case. The hearings sounded more like political spin doctoring than testing the law against the rulings of lower courts. Legitimacy dipping.

[Calm]

For some reason not allowing me to link. Only Sky article.  Obviously biased, but provides the Florida info.  Coaching job was apparently a part time job for under $6000 a year.
 

“The most interesting part of the episode is that Liptak doesn’t just talk about the case. He shares audio of a trip he took with Kennedy throughBremerton, Washington. We’re told Kennedy moved there in 2006 and that it’s his “hometown.” None of that is in dispute. We’re also told (twice) that he’s a “beloved” member of the community.

However, neither Liptak nor Tavernise told their audience that Kennedy moved the hell out of that community a couple of years ago. 

That’s not a small issue. The school district even filed paperwork with the Supreme Court saying the case should be tossed out because Kennedy no longer lives in the area. They explained that when the case was initially filed with the Court, Kennedy said he was “a resident of Port Orchard, Washington” and worked in the state. But in 2019, they argued, “he and his wife sold their home… and they moved to Florida.” They now live in Pensacola.

The district said that Kennedy’s legal team only wanted two things from the Court: They wanted the judges to “reinstate Coach Kennedy to his previous [coaching] positions” and grant him the ability to pray “at the 50-yard line at the conclusion of [Bremerton High School] football games.” This isn’t about money, they say. It’s about letting him coach and pray.”

 

Edited September 19, 2022 by Calm

[helix]

2 hours ago, Calm said:

So I was looking for confirmation that he was simply not rehired and hasn’t even applied to be hired and ended up reading some of the syllabus of the SC decision. It reaffirms my belief it was inappropriate for him to be praying at that time because he was not on a break or having personal time, but it was time officially designated as him being required to be supervising students, being responsible for them. So if he is having prayer with students at that time, it is technically part of his job, which is against the rules. It is not a quiet nor a private prayer. 

The decision was clear that what made this case different was that there was a lull on the job.  The majority ruled that if staff can call their family, go to the car, chat about politics, or sing a song, then a coach can say a silent prayer at this same time.

The facts of the case were that he was specifically let go and wasn't rehired explicitly due to his silent prayer.

Edited September 19, 2022 by helix

[The Nehor]

26 minutes ago, helix said:

The decision was clear that what made this case different was that there was a lull on the job.  The majority ruled that if staff can call their family, go to the car, chat about politics, or sing a song, then a coach can say a silent prayer at this same time.

The facts of the case were that he was specifically let go and wasn't rehired explicitly due to his silent prayer.

He wasn’t “let go”. They decided not to rehire him in the coming year and he was put on paid leave and got the balance of his salary. It also didn’t start as a prayer. That is a bit of revisionism as well.

[helix]

54 minutes ago, The Nehor said:

He wasn’t “let go”. They decided not to rehire him in the coming year and he was put on paid leave and got the balance of his salary. It also didn’t start as a prayer. That is a bit of revisionism as well.

The coach had been pulling numerous unconstitutional hijinks for a while.  Had the district legally punished him at that time, the district would have been fully correct.  But they worked with him.  They agreed that after some back and forth and him agreeing to substantial changes, his past was behind him and not a factor.  As the ruling clearly demonstrates, at issue was only the three most recent incidents. 

He was told he would not be rehired as he traditionally had due to these three incidents.  For all common sense purposes, he was let go.

[Danzo]

16 hours ago, The Nehor said:

I knew it was from years ago but how far back I had forgotten.

Hit job? A facial hit job? I never said he was a Nazi.

I am not suggesting he changed his mind and that is bad. I am suggesting that the idea that he ever still wanted the job is doubtful. By the time this was in the courts it was a political stunt with local and state politicians joining in the private prayers for the clout. Now he is running around selling public appearances. Much more lucrative than the football coach job. A success in the free market from one perspective I suppose.

I am more concerned that so many Supreme Court Justices seemed so deliberately ignorant of the facts of a case. The hearings sounded more like political spin doctoring than testing the law against the rulings of lower courts. Legitimacy dipping.

most of these types of supreme court cases from the left and from the right are "stunts".

 

[The Nehor]

11 minutes ago, Danzo said:

most of these types of supreme court cases from the left and from the right are "stunts".

 

Most aren’t this pointless. Most also don’t have Supreme Court Justices in hearings deliberately getting the facts wrong.

[Stargazer]

On 9/19/2022 at 1:19 AM, Calm said:

That’s not a small issue. The school district even filed paperwork with the Supreme Court saying the case should be tossed out because Kennedy no longer lives in the area.

Court cases can have relevance beyond such things such as whether someone still lives where the incident in question took place. There have been cases which have gone all the way to the supreme court for decision when the main principal could not even be located any longer. For example, we have United States v. Miller, decided in 1929 (wrongly decided in my opinion), but by the time SCOTUS's decision was issued, Mr. Miller was dead and his counsel failed to appear before the court to argue about it. It was the issue that was important, not necessarily the circumstances of the defendant.

[Calm]

Still, I think it matters if the circumstances are lied about in order to sway public opinion and to justify a court case. He was not fired, his contract was not terminated, it was simply not renewed. And it was not renewed not because his employer made that decision (though they likely would have put his application in the reject file if given the chance), but because he did not apply for the renewal.  Last I checked court cases are not tried on what might have happened though. 
 

That the court took the case for the issue rather than the circumstances makes it appear to me the court was looking for a chance to make law, not resolve an actual case. 

Edited September 21, 2022 by Calm

[Stargazer]

36 minutes ago, Calm said:

That the court took the case for the issue rather than the circumstances makes it appear to me the court was looking for a chance to make law, not resolve an actual case.

So, issues aren't important? On the contrary, I believe that issues are what drives cases. And I believe that issues are frequently more important than the cases themselves. Do I support the SCOTUS decision in this case? Actually, yes, but not for Mr. Kennedy's sake. I couldn't care less whether he gets his job back, or even if he wants it. I support it because I believe there is a worrying trend eroding away the First Amendment, and not just the freedom of religion part.

Dred Scott v Sandford was decided by a racist, slavery-loving SCOTUS. Did they take the case in order to reinforce their prejudices, or did they think the issue in question was important and required settling? Was Loving v Virginia taken on by the court because of the issue in question, or because the racists were in the minority and the majority wanted to "make law"? If SCOTUS justices feel that there is an injustice that needs to be corrected, are they making law? I'll tell you who it is who are saying they are "making law", and it is those who oppose the decision. I won't say that the courts never "make law" in their decisions, but one has to be very careful that one's own prejudices aren't showing when one claims they're doing it.

In the case I mentioned above, US v Miller, the district court judge whose decision to declare the law in question unconstitutional (apparently favoring Miller) was actually in favor of the law, and only did so in order to force the case to as high as it could go upon appeal, and intended that he be overruled and the law declared constitutional. He did this because he knew that Miller himself would go into hiding upon release (because he had testified against members of his gang in court), and that Miller couldn't possibly afford to, and would have no interest in defending his case at higher court levels (because Miller was a scalawag). Was the district court judge "making law" in this case? Was SCOTUS? 

[By the way, I'm deliberately avoiding mentioning the law and the arguments in the Miller case because it would probably lead to a derail. I suggest we avoid getting into that.]

Edited September 21, 2022 by Stargazer

[The Nehor]

11 minutes ago, Stargazer said:

[By the way, I'm deliberately avoiding mentioning the law and the arguments in the Miller case because it would probably lead to a derail. I suggest we avoid getting into that.]

[Calm]

13 minutes ago, Stargazer said:

So, issues aren't important? On the contrary, I believe that issues are what drives cases. And I believe that issues are frequently more important than the cases themselves. Do I support the SCOTUS decision in this case? Actually, yes, but not for Mr. Kennedy's sake. I couldn't care less whether he gets his job back, or even if he wants it. I support it because I believe there is a worrying trend eroding away the First Amendment, and not just the freedom of religion part.

Of course issues are important, but circumstances are as well or we would see court cases tried on hypothetical cases. I remember a case of a wedding invitation company who was denied standing in a lawsuit against a city ordinance because they hadn’t opened their doors yet. The company wanted the issue settled before they took a risk of starting a business and potentially getting shut down. Very understandable, but it was a hypothetical.

Do you think if an issue is important it should be tried with a fictitious person suing a fictitious company?

[Stargazer]

1 minute ago, Calm said:

Do you think if an issue is important it should be tried with a fictitious person suing a fictitious company?

No, not in those terms. They say that "hard cases make bad law", but in the situation you mention it would be "hypothetical cases make hypothetical law," and who would want that?  

However, it is not unknown for standing to be given to a petitioner who is affected by a law (e.g. a law that prevents him from doing something) even before he has actually done something to be accused of violating that law. This may be called "prior restraint". I think in the case you brought up, it would have been very easy for the principal(s) of the company to actually form the business entity, and then before beginning operations, to sue the city regarding the law. I don't see why the burden of proving standing couldn't have been met in that case.

And of course, I'm a computer programmer, not a lawyer, so...

[Stargazer]

16 minutes ago, The Nehor said:

No it's not bait. Just like a huge hole in the middle of the street is going to draw attention, some curious soul is bound to look the case up and might be tempted to argue the merits or demerits of the case particulars in connection with the OP. I'm just saying "Let's not," because it would be a derail. I added that last bit as an edit because I was concerned that not doing so would lead to the derail. Notice that red banner up top where it says "No Politics!" Does that constitute "bait"?

The fact that Mr. Miller was no longer available to pursue his case (either in person or by counsel), and yet SCOTUS decided to argue and decide it, has a resemblance to Mr. Kennedy's situation where he clearly didn't have much interest in whether he won the case. SCOTUS's interest in deciding it shouldn't have been influenced either way in either case. In my humble opinion. 

[smac97]

On 9/18/2022 at 6:19 PM, Calm said:

For some reason not allowing me to link. Only Sky article.  Obviously biased, but provides the Florida info.  Coaching job was apparently a part time job for under $6000 a year.

“The most interesting part of the episode is that Liptak doesn’t just talk about the case. He shares audio of a trip he took with Kennedy throughBremerton, Washington. We’re told Kennedy moved there in 2006 and that it’s his “hometown.” None of that is in dispute. We’re also told (twice) that he’s a “beloved” member of the community.

However, neither Liptak nor Tavernise told their audience that Kennedy moved the hell out of that community a couple of years ago. 

Not sure how this is significant, though.  Litigation grinds forward at a different pace than the life of Joe Regular.  Are you suggesting that the suit could only have been maintained if he had stayed in Bremerton?  

On 9/18/2022 at 6:19 PM, Calm said:

That’s not a small issue. The school district even filed paperwork with the Supreme Court saying the case should be tossed out because Kennedy no longer lives in the area. They explained that when the case was initially filed with the Court, Kennedy said he was “a resident of Port Orchard, Washington” and worked in the state.

Okay.  Are you suggesting that he was not a resident of Port Orchard when the case started?

On 9/18/2022 at 6:19 PM, Calm said:

But in 2019, they argued, “he and his wife sold their home… and they moved to Florida.” They now live in Pensacola.

Still not seeing a problem.  He had no idea how the case was going to turn out, and he had no obligation to remain in or around Kitsap County.  That he ultimately may choose to not resume employment in Bremerton does not render the case moot, as there were more issues at stake than just his job.

Also, Kennedy's attorneys filed a response with the Supreme Court:

Quote

This case is not remotely moot.  Petitioner believes that he was unconstitutionally removed from his job, and he seeks a declaration of his constitutional rights and reinstatement.  He remains ready, willing, and able to return to his job just as soon as his constitutional rights are vindicated.  It is really that simple, and a phone call to opposing counsel would have confirmed as much and saved the parties and the Court the trouble of dealing with a frivolous suggestion that a very live controversy is moot. 
...
Evidently not anxious to defend the Ninth Circuit’s decision before this Court, the district instead elected to file a suggestion of mootness.  The suggestion was not based on intervening legislation or the actions of some third party.  Instead, it was based entirely on Kennedy’s actions and supposed inability to take advantage of judicial relief.  And yet it was filed without consulting with Kennedy’s counsel.  Moreover, the filing is based on events that date back two years.  But rather than raise a mootness question back in the district court or the Ninth Circuit, the district waited until the deadlines for petitioner’s merits briefs and supporting amicus briefs were approaching to file its misguided suggestion. 

According to that remarkable (yet markedly equivocal) filing, some sleuthing on Facebook and real-estate records led the district to determine that Kennedy and his wife moved to Florida nearly two years ago (in March 2020) when the case was still in district court.  As a result, the district suggests that it “appears” and “seem[s]” that this case “may be moot,” because a “Floridian … could not serve as or perform the duties of a Bremerton football coach,” which requires “a year-round time commitment for physical presence and active, in-person coaching.”  SM.1, 4, 5 & n.2, 7 (quotation marks and alterations omitted). 

Had the district picked up the phone and called Kennedy’s counsel at any point during its extra-record investigation, it could have saved itself a lot of trouble, for Coach Kennedy and his wife have never concealed the fact that they presently live in Florida.  Indeed, his wife resigned from her job in the Bremerton School District to make the move.  Dec.2, ¶10.  But as counsel would have confirmed just as readily, the relocation to Florida is not permanent, and Kennedy stands ready, willing, and able to move back to Bremerton as soon as humanly possible should he prevail in this litigation and be permitted to resume his coaching duties at BHS without having to sacrifice his sincerely held religious beliefs.  Dec.2-3, ¶¶13-14. And if the district would not take Kennedy and his counsel at their word, they could have provided the district with the kind of sworn declaration attached to this response, which still would have avoided a frivolous filing and a public airing of the details of the Kennedys’ private life.  

As the declaration details, the Kennedys have always intended to return home to Bremerton if Coach Kennedy’s legal rights are vindicated and his job restored.  Kennedy grew up in Bremerton; he returned to Bremerton after his military service ended in 2008; he is a BHS graduate with a passion for coaching football (in person) at his alma mater (whatever the annual stipend); much of the Kennedys’ family— including three of their four children, their grandchildren, and Kennedy’s father and birth mother—continues to live in the Bremerton area; their friends are in Bremerton; and their church family is there too.  Dec.3, ¶15.  

The Kennedys have temporarily relocated to Pensacola, Florida, only because of a personal family tragedy, the details of which he and his wife understandably did not wish to advertise on Facebook or elsewhere.  During the course of a single week in July 2019, Kennedy’s father-in-law, who lives in Pensacola, “went through a divorce, received news that his son had been murdered, and was laid off from his job.”  Dec.1-2, ¶7.  On top of that, Kennedy’s father-in-law faces “numerous health challenges.”  Dec. 1-2, ¶¶7, 11 (detailing health issues).  Kennedy and his wife thus began exploring ways in which they could help him.   

At the onset of the COVID-19 pandemic, and as travel restrictions took hold throughout the Nation, the Kennedys decided to temporarily move to Florida so that they could support him in person.  Dec.2, ¶9.  Kennedy’s wife gave notice to the district and moved to Pensacola in March 2020, and Kennedy followed about a month later.  Dec.2, ¶10.  Kennedy feels “privileged to be near” his father-in-law and “support him during this extremely difficult time.”  Dec.2, ¶12.  But if given the opportunity, he “cannot wait” to return to the life that he led before the district abruptly upended it in 2015, and he has attested in a sworn declaration that he has every intention of doing so should this Court conclude that he is entitled to that relief.  Dec.2-3, ¶¶14-15. 

All of that makes clear beyond cavil that this case is not remotely moot, despite Kennedy’s temporary move to Florida.  “A case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.”  Knox v. Serv. Emps. Int’l Union, 567 U.S. 298, 307 (2012).  “As long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot.”  Chafin v. Chafin, 568 U.S. 165, 172 (2013).  Kennedy retains the same concrete (and very large) interest in this case as he has always had:  He is champing at the bit to “resume the job [he] love[s]—coaching high school athletes on the football field for BHS,” Dec.3, ¶16—should this Court determine that he need not choose between that job and his sincerely held religious beliefs.   

...

{W}hen Kennedy received the district’s “suggestion,” he offered the district a suggestion of his own:  If it really wanted to conserve “judicial and party resources,” SM.5 n.2, it should promptly withdraw its ill-considered suggestion of mootness in light of the additional information and assurances Kennedy has now supplied.  But the district refused to take Kennedy at his word that he  does indeed plan to return to BHS if given the chance, hence necessitating this very public airing of the Kennedys’ personal information.  The need for this filing is unfortunate, but the bottom line is unmistakable:  The dispute between the parties is alive and well.  Kennedy has not spent the past six years fighting for constitutional rights that he has no interest in exercising. 

The foregoing was filed on February 5, 2022.

On 9/18/2022 at 6:19 PM, Calm said:

The district said that Kennedy’s legal team only wanted two things from the Court: They wanted the judges to “reinstate Coach Kennedy to his previous [coaching] positions” and grant him the ability to pray “at the 50-yard line at the conclusion of [Bremerton High School] football games.” This isn’t about money, they say. It’s about letting him coach and pray.”

As to final legal remedies, yes.  But that's not the sum total of why he filed suit.

Thanks,

-Smac

[Calm]

12 minutes ago, Stargazer said:

No, not in those terms. They say that "hard cases make bad law", but in the situation you mention it would be "hypothetical cases make hypothetical law," and who would want that?  

However, it is not unknown for standing to be given to a petitioner who is affected by a law (e.g. a law that prevents him from doing something) even before he has actually done something to be accused of violating that law. This may be called "prior restraint". I think in the case you brought up, it would have been very easy for the principal(s) of the company to actually form the business entity, and then before beginning operations, to sue the city regarding the law. I don't see why the burden of proving standing couldn't have been met in that case.

And of course, I'm a computer programmer, not a lawyer, so...

I don’t have a problem with such tactics except when they allow judges to discriminate in favor of one set of American citizens over another by insisting there be an actual termination on one case while pretending the guy isn’t lying in another because they want to make a particular ruling.  Aren’t our courts supposed to be impartial and decide on the facts of a case?

Then there is the problem that too often it is viewed as  great when one agrees with the interpretation of a law, it is good practice because the issue is important, but if one disagrees with a law, then we start hearing cries of activist judges from the same applauding the tactics previously. Wouldn’t it be better to be consistent so as to be sure there is nothing to whine about.

Plus what about the costs to the person or organization that is being lied about?…though this case I guess it ultimately was just the taxpayers, so no big deal.