Preliminary Injunction Denied

Case 3:16-cv-05694-RBL Document 27 Filed 09/27/16 Page 1 of 45 1
1 UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON
2 IN TACOMA
3 ----------------------------------------------------------
4 JOSEPH A. KENNEDY, )
)
5 Plaintiff, ) No. CV16-5694RBL
)
6 v. )
)
7 BREMERTON SCHOOL DISTRICT, )
)
8 Defendant. )
9
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10
PRELIMINARY INJUNCTION HEARING
11
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12
September 19, 2016
13
14 BEFORE THE HONORABLE RONALD B. LEIGHTON

UNITED STATES DISTRICT COURT JUDGE
15
16 APPEARANCES:
17 For the Plaintiff: Rebekah Perry Ricketts

GIBSON DUNN & CRUTCHER
18 Michael Berry
FIRST LIBERTY INSTITUTE
19 Anthony J. Ferate
FERATE PLLC
20 Jeffrey Paul Helsdon
OLDFIELD & HELSDON
21
For the Defendant: Michael Barry Tierney
22 TIERNEY & BLAKNEY
Jeffrey Ganson
23 PORTER FOSTER RORICK
24
25
09:17:56AM
Barry L. Fanning, RMR, CRR - Official Court Reporter

(206) 370-8507 Barry_Fanning@WAWD.uscourts.gov
1717 Pacific Ave - Tacoma, WA 98402
09:17:56AM 1 THE CLERK: This is in the matter of Kennedy
09:29:49AM 2 versus Bremerton School District, Cause No. C16-5694RBL.
09:29:55AM 3 Counsel please make their appearances.
09:29:58AM 4 MS. RICKETTS: Good morning, your Honor. Rebekah
09:30:00AM 5 Ricketts for the plaintiff, Joseph Kennedy. With me at
09:30:03AM 6 counsel table is Ben Wilson.
09:30:04AM 7 MR. HELSDON: Good morning, your Honor. Jeff
09:30:05AM 8 Helsdon for Joe Kennedy.
09:30:08AM 9 MR. BERRY: Good morning, your Honor. Michael
09:30:11AM 10 Berry for Joe Kennedy.
09:30:13AM 11 MR. FERATE: Good morning, your Honor.
09:30:14AM 12 A.J. Ferate here for Joe Kennedy.
09:30:16AM 13 THE COURT: Good morning.
09:30:16AM 14 MR. TIERNEY: Good morning, your Honor. Michael
09:30:17AM 15 Tierney. I represent the Bremerton School District.
16 THE COURT: Good morning.
09:30:21AM 17 MR. TIERNEY: Accompanying me is Aaron Leavell.
09:30:23AM 18 He is the superintendent of the school district. And Jeff
09:30:27AM 19 Ganson is the general counsel for the school district. We
09:30:30AM 20 have some others in the audience, but that's who is at the
09:30:33AM 21 table with us.
09:30:34AM 22 THE COURT: Thank you. Good morning. I have
09:30:35AM 23 reviewed everything that has been submitted by both sides.
09:30:44AM 24 Because of the importance of this matter, I wanted to
09:30:53AM 25 schedule oral argument for the plaintiff's motion for a

09:31:00AM 1 preliminary injunction. Plaintiff can make their
09:31:06AM 2 argument.
09:31:07AM 3 MS. RICKETTS: Good morning, your Honor. This
09:31:21AM 4 case is about Coach Kennedy's First Amendment right to
09:31:25AM 5 take a knee at midfield at the end of the BHS football
09:31:30AM 6 games and say a silent prayer for 15 to 30 seconds.
09:31:34AM 7 The district has admitted it suspended Coach Kennedy
09:31:39AM 8 from all participation in the BHS football program because
09:31:42AM 9 he engaged in, quote, demonstrative religious conduct
09:31:48AM 10 while he was still on duty as a coach.
09:31:50AM 11 The primary issue here is whether the district can
09:31:53AM 12 strip Coach Kennedy of his First Amendment rights at the
09:31:56AM 13 schoolhouse gate. And that is exactly what Tinker
09:31:59AM 14 forbids.
09:31:59AM 15 The district has already conceded that Coach
09:32:03AM 16 Kennedy's religious conviction is fleeting, that any
09:32:08AM 17 student participation was entirely voluntary, was never
09:32:11AM 18 coerced, never even actively encouraged, and that Coach
09:32:14AM 19 Kennedy fully complied with the district's directives not
09:32:18AM 20 to intentionally involve students in his religious
09:32:21AM 21 expression. All of these concessions are in the
09:32:24AM 22 district's official correspondence, and are clear on the
09:32:27AM 23 face of the record.
09:32:28AM 24 The district has also effectively conceded three of
09:32:31AM 25 the four prongs of the preliminary injunction inquiry.

09:32:35AM 1 That's not surprising, because the law is clear that
09:32:38AM 2 deprivation of First Amendment rights constitutes
09:32:41AM 3 irreparable harm, and the balance of equities and public
09:32:45AM 4 interest prongs cut squarely in favor of the party whose
09:32:48AM 5 rights are being chilled.
09:32:49AM 6 So what remains is the Eng test, and Coach Kennedy,
09:32:54AM 7 we respectfully submit, amply satisfies that test.
09:32:59AM 8 As an initial matter, the district concedes, as it
09:33:01AM 9 must, that Coach Kennedy's religious expression is a
09:33:05AM 10 matter of public concern. So that takes care of Step 1.
09:33:08AM 11 At Step 2, the district has completely ignored
09:33:12AM 12 controlling precedent from the Supreme Court and the Ninth
09:33:16AM 13 Circuit. Under Lane v. Franks, the critical question in
09:33:22AM 14 order to determine whether an individual speaks as a
09:33:23AM 15 citizen or as an employee is whether that speech falls
09:33:27AM 16 within the ordinary scope of his job responsibilities.
09:33:31AM 17 That is the task that Lane v. Franks announces, and that
09:33:35AM 18 is the task that the Ninth Circuit specifically adopted in
09:33:39AM 19 Coomes, following the Lane decision.
09:33:41AM 20 Under that task, your Honor, it is abundantly clear
09:33:44AM 21 that Coach Kennedy's speech is outside the scope of his
09:33:47AM 22 ordinary job responsibilities. The district has not
09:33:51AM 23 decided whether he will speak or what he will say, and all
09:33:54AM 24 of the responsibilities that the district points to,
09:33:57AM 25 coaching football, caring for injuries, maintaining

09:34:01AM 1 equipment, none of these have anything to do with Coach
09:34:05AM 2 Kennedy's private personal prayer.
09:34:08AM 3 So the clear import of Lane is that Coach Kennedy
09:34:13AM 4 speaks as a citizen, not as a public employee, and his
09:34:16AM 5 speech is therefore fully protected.
09:34:18AM 6 THE COURT: You know, my parents were educators
09:34:24AM 7 of a small district. They had responsibilities well
09:34:34AM 8 beyond the classroom. My dad coached baseball,
09:34:40AM 9 basketball, football. He wouldn't recognize the
09:34:45AM 10 limitations that you're arguing, that Coach Kennedy is not
09:34:55AM 11 a coach at that moment. Center of the field, lights on,
09:35:03AM 12 school property.
09:35:06AM 13 How do you persuade people, who know the educational
09:35:14AM 14 mission of all public schools, that Mr. Kennedy is off
09:35:20AM 15 duty?
09:35:22AM 16 MS. RICKETTS: Your Honor, to be clear, our
09:35:24AM 17 argument does not turn on whether Coach Kennedy is on duty
09:35:27AM 18 or off duty. We think the controlling test under Lane
09:35:30AM 19 versus Franks is whether the expression that is at issue
09:35:33AM 20 is ordinarily within the scope of his job
09:35:36AM 21 responsibilities. We do not, for these purposes,
09:35:40AM 22 dispute -- we don't think there is a factual dispute about
09:35:43AM 23 the nature of his job responsibilities.
09:35:45AM 24 In fact, the district has effectively abandoned their
09:35:48AM 25 prior argument that his alleged failure to supervise

09:35:52AM 1 justified the adverse action here.
09:35:54AM 2 But the Ninth Circuit en banc in the Dahlia decision
09:35:58AM 3 made clear that public employees may receive First
09:36:02AM 4 Amendment protection for expressions made at work.
09:36:05AM 5 So the only thing the district can point to is this
09:36:09AM 6 bright-line temporal test that they invent, that treats
09:36:14AM 7 any expression by an on-duty public employee as speech,
09:36:18AM 8 quote, as an employee for constitutional purposes.
09:36:21AM 9 THE COURT: Is there a difference between the
09:36:23AM 10 speech if it is religious in nature? The trip wire is
09:36:34AM 11 very taut for most speech that does not have a religious
09:36:41AM 12 overtone, because we guard our liberties jealously for
09:36:48AM 13 political discussion and the like. But there is a push
09:36:54AM 14 me/pull you on religion. It is the uprights.
09:37:01AM 15 It is not Scylla, it is not Charybdis. I mean, we
09:37:08AM 16 don't need a geography test for the Italian peninsula and
09:37:14AM 17 Sicily, just the goalposts. You've got to thread the
09:37:20AM 18 needle, so to speak, between establishment and free
09:37:27AM 19 exercise.
09:37:28AM 20 And that, I think, makes the trip wire a little
09:37:36AM 21 slack. How do you respond to that?
09:37:39AM 22 MS. RICKETTS: Respectfully, we would submit that
09:37:41AM 23 for purposes of the prong two inquiry, under Eng, which
09:37:45AM 24 looks at whether he is speaking as a citizen or as an
09:37:48AM 25 employee, we do not think the religious content matters

09:37:51AM 1 for purposes of that analysis.
09:37:53AM 2 Now, your Honor is certainly correct that when we get
09:37:56AM 3 to prong four, which is where the district bears the
09:37:59AM 4 burden to show an adequate justification for its actions,
09:38:02AM 5 then you're absolutely right that the Establishment Clause
09:38:05AM 6 comes squarely into play, and in fact that is the only
09:38:09AM 7 justification that the district has offered here for its
09:38:12AM 8 adverse actions against Coach Kennedy.
09:38:15AM 9 It has abandoned the argument that it failed to
09:38:17AM 10 supervise, and said solely that its adverse actions were
09:38:20AM 11 required in order to violate the Establishment Clause.
09:38:24AM 12 So with your Honor's permission, I will skip to that
09:38:27AM 13 step. The controlling test is Sante Fe, your Honor. And
09:38:31AM 14 the question under Sante Fe is what the reasonable
09:38:34AM 15 observer would understand given the facts and the context.
09:38:39AM 16 So what would the reasonable observer understand
09:38:42AM 17 here? He would see Coach Kennedy take a knee at midfield
09:38:46AM 18 for 15 to 30 seconds. At most, your Honor, the reasonable
09:38:51AM 19 observer would draw the conclusion that he is engaged in a
09:38:54AM 20 personal moment of silence.
09:38:57AM 21 Now, that is completely different -- completely
09:39:00AM 22 different facts from the district's other cases, which
09:39:04AM 23 involve public employees who actively encourage, actively
09:39:08AM 24 orchestrate student religious expression.
09:39:12AM 25 By the district's own admission --

09:39:12AM 1 THE COURT: Nobody orchestrated that gaggle of
09:39:15AM 2 press and everyone around? I saw the pictures.
09:39:23AM 3 MS. RICKETTS: Your Honor, it is a great point,
09:39:24AM 4 and I'm glad you raised the picture. The picture that is
09:39:28AM 5 in the record of the coach surrounded by players was taken
09:39:33AM 6 following the October 16th game. The district puts
09:39:37AM 7 forward this picture as evidence its Establishment Clause
09:39:42AM 8 concerns are justified.
09:39:43AM 9 What the district does not tell you, following the
09:39:46AM 10 October 16th game Coach Kennedy intentionally waited until
09:39:49AM 11 the Bremerton students had finished their handshakes, were
09:39:53AM 12 walking towards the stands, and were engaged in their
09:39:56AM 13 post-game fight song. It was at that moment that he
09:39:59AM 14 intentionally waited to drop to his knee, close his eyes,
09:40:02AM 15 and engage in a personal prayer.
09:40:05AM 16 So the players that you see gathered around Coach
09:40:08AM 17 Kennedy in that photo are not Bremerton players. They are
09:40:11AM 18 Centralia players who gathered around him at a point in
09:40:14AM 19 time where his eyes were closed, his head was bowed.
09:40:19AM 20 According to his sworn declaration, and the district
09:40:22AM 21 does not dispute this, he had nothing to do with
09:40:24AM 22 orchestrating that event.
09:40:25AM 23 In fact, the only reason, your Honor, that event
09:40:28AM 24 occurred is because the district in prior weeks had taken
09:40:32AM 25 very public actions to try to stamp out Coach Kennedy's

09:40:37AM 1 religious expression.
09:40:38AM 2 So for the district to cite the controversy that it
09:40:42AM 3 created as a justification for its adverse actions against
09:40:46AM 4 Coach Kennedy, candidly, your Honor, we think that
09:40:50AM 5 argument is perverse. That is not the relevant standard
09:40:53AM 6 for purposes of the Establishment Clause analysis.
09:40:56AM 7 A quick word on Borden, your Honor, which is a case
09:41:00AM 8 that the district cites very prominently. A couple of
09:41:05AM 9 issues with that holding. Number one, the Third Circuit's
09:41:09AM 10 analysis in that case actually turns on the public concern
09:41:12AM 11 inquiry, which is the one prong of the analysis that the
09:41:15AM 12 district has fully conceded, as it must, because the Ninth
09:41:19AM 13 Circuit has adopted a very expansive definition of public
09:41:23AM 14 concern to incorporate any speech or expression that
09:41:27AM 15 touches on religion.
09:41:29AM 16 The only Establishment Clause discussion that is
09:41:31AM 17 actually in Borden is in dicta that the court admits it
09:41:35AM 18 need not undertake.
09:41:36AM 19 But the most important point about Borden, your
09:41:39AM 20 Honor, is that they are very different facts. The coach
09:41:42AM 21 in that case had a history of actively encouraging
09:41:45AM 22 students to participate in official prayer, and he
09:41:49AM 23 continued to actively encourage that student religious
09:41:53AM 24 expression, going so far as to email players asking them
09:41:56AM 25 to participate, asking them to report back to him.

09:42:00AM 1 Coach Kennedy has made very clear that the nature of
09:42:04AM 2 his religious conviction has nothing to do with engaging
09:42:08AM 3 in prayer with students. The core of his religious
09:42:11AM 4 conviction is to simply take a knee following the game and
09:42:16AM 5 offer a prayer of thanks.
09:42:18AM 6 The district can point to no authority, your Honor,
09:42:21AM 7 for the proposition that a 15- to 30-second silent prayer
09:42:26AM 8 constitutes a state endorsement of religion. And that's
09:42:30AM 9 because no federal court has endorsed, in our view, such
09:42:34AM 10 an extreme and expansive understanding of the
09:42:38AM 11 Establishment Clause.
09:42:39AM 12 The clear impact, we think, of the district's view
09:42:43AM 13 would be to strip public employees of all First Amendment
09:42:47AM 14 rights to engage in any visible religious conduct while
09:42:51AM 15 they are on duty. The law simply does not support that
09:42:54AM 16 conclusion.
09:43:00AM 17 THE COURT: How about if we hear from
09:43:02AM 18 Mr. Tierney. You will have every opportunity -- you will
09:43:05AM 19 get multiple opportunities to take the floor and counter
09:43:10AM 20 their argument. I get your basic argument. I want to
09:43:13AM 21 hear Mr. Tierney and the district, and then you can come
09:43:16AM 22 back. You will be up many times.
09:43:20AM 23 MS. RICKETTS: Thank you, your Honor.
09:43:25AM 24 MR. TIERNEY: Good morning, your Honor. So I
09:43:29AM 25 don't have to try to say everything I want to say in ten

09:43:33AM 1 minutes?
09:43:33AM 2 THE COURT: Right. There are no time limits
09:43:36AM 3 here. Just in Seattle.
09:43:38AM 4 MR. TIERNEY: There's not a trapdoor that is
09:43:40AM 5 going to open?
09:43:47AM 6 What I want to do is go back and start at what I
09:43:52AM 7 think the logical prior steps are. But if you have some
09:43:57AM 8 question, obviously you will direct me to it, and I will
09:43:59AM 9 be happy to jump ahead.
09:44:00AM 10 THE COURT: You glean from my question, my big
09:44:05AM 11 focus is on step two of the Pickering test. I am stuck on
09:44:11AM 12 that. But I don't want to curtail your remarks.
09:44:20AM 13 MR. TIERNEY: I would still like to go back,
09:44:23AM 14 because I think they illuminate what those questions will
09:44:29AM 15 be later on.
09:44:33AM 16 The first question here is -- This is a motion for
09:44:37AM 17 preliminary injunction. We are arguing that it is a
09:44:41AM 18 mandatory preliminary injunction. And the plaintiff's
09:44:44AM 19 response has been, well, it is not really mandatory, we
09:44:47AM 20 are just going back to the last peaceable status. And
09:44:50AM 21 they say they want to go back to the status that was in
09:44:53AM 22 existence for eight years. And that's out of their reply
09:44:57AM 23 brief.
09:45:00AM 24 That status was clearly unconstitutional. I don't
09:45:05AM 25 know that they really mean to say they want to go back to

09:45:08AM 1 that status, but all we can do in a motion for preliminary
09:45:12AM 2 injunction is examine what it is that the plaintiff is
09:45:16AM 3 asking for and what sort of facts they have put before the
09:45:23AM 4 court. And what they say they are asking for is, return
09:45:27AM 5 to the status of eight years before.
09:45:32AM 6 Now, in that status of eight years before, the
09:45:35AM 7 practice was Mr. Kennedy would lead prayers in the locker
09:45:40AM 8 room prior to a game, and then after a game he would meet
09:45:45AM 9 at the midfield, and players from his team, and possibly
09:45:49AM 10 players from another team, and give basically a
09:45:54AM 11 congratulation speech, with references to God. And he
09:45:57AM 12 conceded in the district -- and this is in the district's
09:46:01AM 13 letter of September 17, that that constituted a prayer.
09:46:05AM 14 What they are asking to reinstate is the regime that
09:46:09AM 15 consisted of Mr. Kennedy leading prayers in the locker
09:46:13AM 16 room before the game, and leading verbal prayers with the
09:46:18AM 17 team after the game.
09:46:19AM 18 So when we look at all of these steps in the test --
09:46:23AM 19 all of the things that proceed farther down the line, we
09:46:30AM 20 have to look at it in view of what they are actually
09:46:33AM 21 asking for. I have my doubts that is really what they are
09:46:36AM 22 asking for.
09:46:38AM 23 I want to illustrate what I think went on here -- not
09:46:43AM 24 that I think, that I know went on -- with the timeline.
09:47:02AM 25 Your Honor, it is Tab 3. For eight years there was a

09:47:16AM 1 practice that clearly violated the Constitution. It came
09:47:20AM 2 to the district's attention. And so, obviously, the
09:47:24AM 3 district isn't aggressively trying to search out prayer
09:47:27AM 4 and persecute Christians or anyone else. Had meetings
09:47:36AM 5 with Mr. Kennedy, and he agreed to abandon that practice,
09:47:42AM 6 to not pray before games and to not pray after games.
09:47:47AM 7 Now, that is the last peaceable status between the
09:47:51AM 8 parties.
09:47:51AM 9 He made an agreement with the district. That
09:47:55AM 10 agreement he honored for a month. And then his lawyers
09:47:59AM 11 sent a letter saying he is going to pray at midfield, and
09:48:02AM 12 you can't stop the students from joining him.
09:48:06AM 13 Now, I believe that is the regime they want to put in
09:48:10AM 14 place. But that is not the last peaceable status. And
09:48:13AM 15 there are several problems with it in the context of a
09:48:16AM 16 motion for a preliminary injunction that I don't believe
09:48:20AM 17 this court can get over the hurdles on.
09:48:26AM 18 I will start with, what was the agreement that
09:48:30AM 19 Mr. Kennedy made? It is in a contract. And this is
09:48:41AM 20 Tab 13. I am going to put it up here. Mr. Kennedy signed
09:48:48AM 21 a contract with the district after the district told him
09:48:56AM 22 stop praying before games and stop praying after games,
09:49:03AM 23 and after he agreed that he would not do that. That
09:49:07AM 24 contract is signed October 5th of 2015.
09:49:15AM 25 So the last peaceable status between the parties --

09:49:19AM 1 And I want to point out, this contract states under
09:49:23AM 2 one of the bullet points, "Have read and understand all
09:49:27AM 3 policies and procedures." So we have a pretty visible
09:49:34AM 4 issue that has been discussed in the district. We have
09:49:38AM 5 meetings between the superintendent and Mr. Kennedy. We
09:49:42AM 6 have him agreeing to stop praying with the team before
09:49:45AM 7 games and after games. And then we have him execute a
09:49:49AM 8 written contract that says he has understood the policies.
09:49:53AM 9 THE COURT: The school district is not seeking to
09:49:55AM 10 bar him from praying before or after the game, or during
09:49:59AM 11 the game, or at any time, are you?
09:50:01AM 12 MR. TIERNEY: Do you mean outside his capacity as
09:50:04AM 13 a coach?
09:50:05AM 14 THE COURT: He can say a prayer to himself?
09:50:11AM 15 MR. TIERNEY: Nobody would know if he was
09:50:12AM 16 praying.
09:50:12AM 17 THE COURT: Joe Garagiola, he would make the sign
09:50:20AM 18 of the cross in the dirt with his bat, and Yogi Berra
09:50:24AM 19 would walk over and erase Garagiola's cross and say,
09:50:24AM 20 "Let's let God watch this one." That was a humorous way
09:50:29AM 21 to lighten the moment.
09:50:34AM 22 Anybody can pray at any moment. You can say a prayer
09:50:42AM 23 right now silently. You are not contending that you want
09:50:49AM 24 to bar him from doing that?
09:50:54AM 25 MR. TIERNEY: No. In fact, your Honor, the

09:50:56AM 1 district was only concerned with demonstrative prayer
09:51:00AM 2 around the students, that reflected on his role as a coach
09:51:04AM 3 with the students.
09:51:05AM 4 THE COURT: So we are using that shorthand
09:51:07AM 5 version for that construct --
09:51:11AM 6 MR. TIERNEY: Most of the prayers that people
09:51:13AM 7 do -- You know, you didn't see me praying at the table
09:51:18AM 8 here beforehand. Most of the prayers people do, nobody
09:51:21AM 9 can see and nobody can have any concern with.
09:51:25AM 10 But a coach's prayer, or a teacher's, when they are
09:51:29AM 11 with the students in a role is a different animal. That
09:51:33AM 12 is what we are addressing. That's what Mr. Kennedy agreed
09:51:36AM 13 to stop doing.
09:51:38AM 14 The district offered other places for him to engage
09:51:43AM 15 in a prayer if he wanted to. The district didn't oppose
09:51:46AM 16 his prayer.
09:51:49AM 17 The only issue is basically what I call the time and
09:51:52AM 18 place issue: When can you do that? When can that be
09:51:55AM 19 acceptable? It was fine for a while until he insisted
09:52:01AM 20 that he would be able to do it on the district's field,
09:52:04AM 21 under the lights, when he wanted to do it, and the
09:52:07AM 22 district couldn't say anything about it, and couldn't stop
09:52:09AM 23 the students from joining him.
09:52:11AM 24 I believe that's the regime they want to put back in
09:52:15AM 25 place. But that is a modification of the contract that

09:52:19AM 1 would have been renewed if he had agreed to the same
09:52:25AM 2 contract. He never applied. He never said, "Renew my
09:52:28AM 3 contract," because he didn't want that contract anymore.
09:52:32AM 4 He wanted a different contract.
09:52:34AM 5 He is asking the court to write a different contract
09:52:40AM 6 for him that the parties had never agreed upon. That is a
09:52:44AM 7 mandatory injunction. That requires the district to do
09:52:46AM 8 something it had not done before. It is not putting back
09:52:51AM 9 in place any sort of status quo.
09:52:54AM 10 The other problem with it, as long as we are talking
09:52:58AM 11 about mandatory injunction, is that even if he were
09:53:04AM 12 correct on his argument that, "Well, in that moment I'm
09:53:09AM 13 not a public employee, I'm not a school district employee
09:53:13AM 14 or coach, I am a private citizen," that doesn't advance
09:53:17AM 15 him anywhere, because if he is a private citizen he is
09:53:21AM 16 subject to the same rules that govern all the other
09:53:24AM 17 private citizens sitting in the stand. They are not
09:53:27AM 18 allowed to go on the field and use it as a forum for
09:53:30AM 19 speech. They are not allowed to have a religious
09:53:33AM 20 demonstration out there.
09:53:34AM 21 That is something that turned into an issue later on
09:53:37AM 22 when we had this -- and I submitted the photo, because I
09:53:40AM 23 think it is kind of scary, we had the Satanist group show
09:53:44AM 24 up and say, "We want to use the field, too."
09:53:47AM 25 He becomes a private citizen -- If he wins his

09:53:52AM 1 argument, he is a private citizen. But that doesn't allow
09:53:55AM 2 him to take over the school's field at the 50-yard line
09:53:58AM 3 and then engage in a prayer.
09:54:00AM 4 I think it makes no difference, really, as far as
09:54:03AM 5 what this court can do under a mandatory injunction. You
09:54:09AM 6 would be writing an order requiring the school district to
09:54:13AM 7 reform his contract and writing an order requiring the
09:54:17AM 8 school district to open a public forum on the school
09:54:21AM 9 property after games. Because if Mr. Kennedy is allowed
09:54:26AM 10 on the field to engage in free speech, everybody else is
09:54:29AM 11 going to be allowed on the field to pray under free
09:54:34AM 12 speech. And they have not established that ground for
09:54:38AM 13 you.
09:54:38AM 14 And that's what I am talking about, what is before
09:54:41AM 15 the court in this motion for preliminary injunction. They
09:54:45AM 16 haven't even put it before you as to laying out exactly
09:54:50AM 17 what you have to do. And having not accomplished that,
09:54:55AM 18 they can't prevail on that. They haven't shown us
09:54:57AM 19 anything that gives you grounds to say it is more likely
09:55:01AM 20 than not that they will succeed in getting ultimately a
09:55:05AM 21 decision in this case that requires the school district to
09:55:08AM 22 open a public forum. It hasn't even been discussed, but
09:55:12AM 23 that is the consequence of what they are asking for.
09:55:17AM 24 I mean, we are not going to do it, obviously. We are
09:55:20AM 25 going to keep talking. But I think that ends the inquiry

09:55:26AM 1 here in the injunction. Now, maybe we would talk more if
09:55:28AM 2 we were at summary judgment. If the mission at this
09:55:30AM 3 hearing is to get the court to issue a mandatory
09:55:33AM 4 injunction, they have failed in that mission.
09:55:45AM 5 I want to point out one other thing on a mandatory
09:55:48AM 6 injunction. We talked about it changing the standard to
09:55:51AM 7 producing a clear likelihood of success on the merits.
09:55:55AM 8 But the other effect of it -- And it is in that very
09:55:59AM 9 same case, the Marlyn Nutraceuticals case, is that it
09:56:03AM 10 changes the irreparable harm standard. The irreparable
09:56:08AM 11 harm standard says only extreme or very serious damage
09:56:13AM 12 will result. Again, that is a heightened standard from a
09:56:21AM 13 prohibitive injunction.
09:56:23AM 14 The next what I consider logical prior step is with
09:56:31AM 15 respect to the elements for a Section 1983 action. And
09:56:36AM 16 these are built on what we just talked about here, that in
09:56:39AM 17 order to prevail on a Section 1983 action the plaintiffs
09:56:45AM 18 have to show that there was a school district policy that
09:56:47AM 19 inflicted the harm that he is complaining of. But the
09:56:52AM 20 harm that he is complaining of is a contract and an
09:56:56AM 21 agreement he made to stop praying before and after games.
09:57:06AM 22 All of the coaches' positions were open at the end of
09:57:10AM 23 the season. They were all open for application. He
09:57:13AM 24 didn't apply. Three other coaches didn't apply. The
09:57:15AM 25 school district hired a new head coach. The head coach

09:57:18AM 1 participated in the hiring of other assistants, and all
09:57:22AM 2 the positions were filled. There was no application by
09:57:25AM 3 Mr. Kennedy for a renewal of his contract.
09:57:30AM 4 So no school district employee, much less a
09:57:33AM 5 policymaker, ever denied Mr. Kennedy a renewal of the
09:57:39AM 6 October 5th contract, the contract that he had signed that
09:57:44AM 7 said, "I won't pray before or after games." That's what
09:57:47AM 8 he would have been entitled to if he had actually applied
09:57:50AM 9 for a job for 2016.
09:57:53AM 10 So in the absence of a policymaker -- And that job
09:58:02AM 11 for 2016 is at the core of what they are asking the court
09:58:05AM 12 to do, "Exercise your injunctive powers on my 1983 claim."
09:58:10AM 13 But if there is no policymaker, there is no Section 1983
09:58:14AM 14 claim, and we don't have a basis for federal jurisdiction
09:58:17AM 15 to be exercised with respect to the 2016 coaching roster.
09:58:21AM 16 I believe it goes to the court's jurisdiction. It
09:58:24AM 17 certainly goes to the viability of any Section 1983 claim
09:58:27AM 18 regarding the renewal of his contract.
09:58:30AM 19 He doesn't want the contract he had.
09:58:35AM 20 I think those should stop the inquiry at this point,
09:58:39AM 21 especially when the standard is clear likelihood of
09:58:43AM 22 success on the merits. I don't see any chance of showing
09:58:50AM 23 policymaker involvement in not renewing a contract that he
09:58:53AM 24 didn't ask to renew.
09:58:55AM 25 But is it ever going to get to clear likelihood of

09:58:59AM 1 success on the merits? They basically refused to address
09:59:04AM 2 that point, and simply say, "Well, it would have been
09:59:07AM 3 futile."
09:59:09AM 4 And here's where I go back to what I started out
09:59:13AM 5 with: Let's look at what we have in front of us for this
09:59:15AM 6 motion. What we have in front of us is Mr. Kennedy's
09:59:21AM 7 testimony that, "I was suspended, then they gave me a bad
09:59:28AM 8 review, then they fired me." That's the testimony that is
09:59:35AM 9 before the court. And it hasn't been changed.
09:59:56AM 10 "Suspending and then firing me from my job," that's
10:00:02AM 11 what the allegation is. That's what the court has before
10:00:06AM 12 it to deal with.
10:00:08AM 13 From the complaint it says, "In January 2016, Coach
10:00:13AM 14 Kennedy's contract was not renewed." So they are alleging
10:00:15AM 15 that something affirmative happened in January of 2016.
10:00:21AM 16 That's what the basis for the preliminary injunction is.
10:00:28AM 17 But that was established by the witness, by the party.
10:00:31AM 18 Now what we have is the lawyers attempting to
10:00:35AM 19 backfill, provide their own testimony, change those facts.
10:00:40AM 20 They say, "Well, it was futile. He was discouraged from
10:00:44AM 21 applying because of what happened." That's testimony by a
10:00:47AM 22 lawyer. That isn't what was submitted to the court as a
10:00:50AM 23 basis for you to exercise your injunctive powers, any more
10:00:56AM 24 than my testimony, if I were to say, "Well, that is not
10:00:58AM 25 really what happened. He knew that they would renew the

10:01:01AM 1 contract, but on the grounds of the one that they signed."
10:01:04AM 2 I am testifying to that. That isn't the basis of a
10:01:09AM 3 motion.
10:01:16AM 4 So what is the basis that this court has -- what has
10:01:22AM 5 been factually submitted to this court that says there was
10:01:25AM 6 a policymaker that did something wrong with respect to
10:01:28AM 7 renewing a contract for 2016? They have nothing.
10:01:33AM 8 They have an allegation by the plaintiff that, "They
10:01:35AM 9 fired me," that something happened in January 2016. We've
10:01:40AM 10 got the school district saying, "He never even applied.
10:01:43AM 11 The positions were all open. We filled them with someone
10:01:46AM 12 else." At best, that's a disputed fact. That is not a
10:01:54AM 13 clear basis for exercise of your injunctive powers.
10:01:58AM 14 Now we are getting to what you wanted to get to. I
10:02:09AM 15 think what I said before will illuminate this
10:02:19AM 16 public-employee/private-citizen issue. The contract that
10:02:23AM 17 Mr. Kennedy signed, and I will try to cut to the chase a
10:02:26AM 18 little more, if you read it all, he is going to be a
10:02:36AM 19 coach, mentor, and a role model.
10:02:39AM 20 THE COURT: Right.
10:02:40AM 21 MR. TIERNEY: He is going to "exhibit
10:02:42AM 22 sportsmanlike conduct at all times," not just the times of
10:02:46AM 23 his choosing.
10:02:52AM 24 "Positive motivational strategies."
10:02:56AM 25 Underneath the bold, where it says, "Always approach

10:03:00AM 1 officials with composure. I understand that I am
10:03:03AM 2 constantly being observed by others." And that goes to
10:03:07AM 3 the core of his role. And that is what is at the core of
10:03:10AM 4 the court's Ninth Circuit ruling in Johnson versus Poway
10:03:18AM 5 Unified School District.
10:03:18AM 6 What the court said there was a teacher doesn't stop
10:03:20AM 7 being a teacher when he steps outside of the classroom, a
10:03:25AM 8 coach doesn't stop being a coach when the whistle blows.
10:03:30AM 9 He is always being observed. So when the coach is out
10:03:35AM 10 there on the field, he is being observed as a coach.
10:03:40AM 11 What the Johnson court said -- in this last one here,
10:03:47AM 12 "Understand that the athletics program is an integral part
10:03:51AM 13 of the total educational process."
10:03:57AM 14 What the court said in Johnson is -- basically asking
10:04:01AM 15 the question, what does a teacher sell to the school
10:04:04AM 16 district? What the teacher sells to the school district
10:04:08AM 17 is the teacher's expressions. And it cited cases from
10:04:13AM 18 other circuits.
10:04:14AM 19 And there is nothing remarkable about that. That's
10:04:16AM 20 what teaching is. That's what education is, you put young
10:04:19AM 21 people together with older people. And having myself been
10:04:22AM 22 a coach, been coached, and watched my son being coached, I
10:04:27AM 23 know that a coach in most situations -- Not most. I
10:04:32AM 24 don't want to be anti-education. But the Johnson case
10:04:35AM 25 dealt with a calculus teacher. Now in the life of a

10:04:39AM 1 teenage boy, who is the more towering figure, his football
10:04:43AM 2 coach or his calculus teacher? It is going to be his
10:04:47AM 3 football coach. They can be monumental figures in a kid's
10:04:52AM 4 life.
10:04:54AM 5 What the district contracts for when it hires a coach
10:04:59AM 6 is all of your expressions are relevant to what you are
10:05:04AM 7 doing with our students: We are buying every bit of your
10:05:11AM 8 behavior while you're around the students, because they
10:05:15AM 9 are always watching you. You are very important, and
10:05:18AM 10 everything you do is important to us.
10:05:21AM 11 So what the Johnson court says, basically, is
10:05:24AM 12 everything that is expressed by a teacher is his job
10:05:31AM 13 duties. There isn't some seam in there. There isn't some
10:05:37AM 14 break when he is around the students.
10:05:41AM 15 If he goes in the teachers' lounge and he talks to
10:05:45AM 16 other teachers, that is a different matter. If he is
10:05:48AM 17 engaged in some totally different thing -- As the court
10:05:52AM 18 said about the teacher, if he is running errands or doing
10:05:55AM 19 something else for the school district, that is a
10:05:57AM 20 different matter. But if he is out and around the
10:05:59AM 21 students, in the classroom or out, every bit of his
10:06:02AM 22 expression is expression that the district has contracted
10:06:05AM 23 for. So every bit of it is subject to district control.
10:06:09AM 24 THE COURT: I wrote and delivered a speech on
10:06:12AM 25 civility, comportment, and the theme was "Everything I

10:06:20AM 1 needed to know about civility I learned from baseball."
10:06:27AM 2 That, it seems to me, is appropriate now. Coach Kennedy
10:06:35AM 3 is a very, very good man, who teaches powerful lessons to
10:06:43AM 4 young men. But it is a two-edged sword, because he is a
10:06:53AM 5 coach. He is "Coach."
10:07:00AM 6 I played baseball. I had two tryouts for the pros.
10:07:04AM 7 I love baseball. I would walk through a wall for my
10:07:09AM 8 coaches. In many ways it is outcome determinative. I
10:07:23AM 9 love his sentiment enunciated at the center of the field.
10:07:33AM 10 That is powerful stuff.
10:07:39AM 11 In a different era, it would have been acceptable and
10:07:44AM 12 universally applauded -- or almost universally. That is
10:07:51AM 13 not the law that we have before us. That's my quandary.
10:08:00AM 14 MR. TIERNEY: And I couldn't agree more, your
10:08:03AM 15 Honor. If you read the district's letters, that is the
10:08:07AM 16 tenor of what the district is saying. We are almost
10:08:10AM 17 basically begging, saying, "Look, do the wonderful stuff
10:08:13AM 18 that you do, but let's work something out with the
10:08:16AM 19 prayer." And they thought they had it worked out. And
10:08:18AM 20 then he said, "No, you don't."
10:08:23AM 21 That puts the district in an extremely difficult
10:08:25AM 22 position, that I would rather not have, of course. As you
10:08:33AM 23 said, in the day and age we live in, if it is going to
10:08:38AM 24 allow a demonstrative prayer at midfield, it is going to
10:08:43AM 25 have to open a public forum to allow other people to speak

10:08:46AM 1 what they want to speak.
10:08:47AM 2 THE COURT: I delivered the invocation at my
10:08:49AM 3 graduation ceremony. Enough said. In my life and in my
10:09:01AM 4 perception of tradition and faith, that was a good thing.
10:09:15AM 5 But we are a diverse -- a more diverse community, and the
10:09:26AM 6 goalposts narrow. That's what we are wrestling with here.
10:09:36AM 7 MR. TIERNEY: And I agree, your Honor. I think
10:09:40AM 8 it is worthy at this point -- worthwhile to emphasize we
10:09:44AM 9 are not here on a motion for summary judgment. We are not
10:09:47AM 10 here to decide the ultimate merits. We are here to decide
10:09:50AM 11 whether you are going to issue that kind of order or what
10:09:53AM 12 it will be going forward.
10:09:58AM 13 I feel like I have used up enough time.
10:10:00AM 14 THE COURT: You will have another shot.
10:10:05AM 15 Ms. Ricketts, do you want to come back up and respond to
10:10:09AM 16 what you have heard so far?
10:10:11AM 17 MS. RICKETTS: Yes, your Honor. A couple of
10:10:18AM 18 points, your Honor. I will start at the end and back up
10:10:21AM 19 and address the standard.
10:10:24AM 20 On the subject of whether his speech -- whether Coach
10:10:28AM 21 Kennedy's speech is as a citizen or as an employee, that
10:10:31AM 22 is the step two inquiry that your Honor alluded to
10:10:34AM 23 earlier. The district just told you that it is, quote,
10:10:38AM 24 buying every bit of his behavior, and that every bit of it
10:10:42AM 25 is subject to district control.

10:10:44AM 1 So the district is not backing off on its temporal
10:10:48AM 2 bright-line rule. They are doubling down on a rule that
10:10:52AM 3 says on-duty public employees cannot engage in any form of
10:10:58AM 4 visible religious conduct. The problem with that, your
10:11:01AM 5 Honor, is that it is squarely contradicted both by the
10:11:04AM 6 Supreme Court and by Ninth Circuit precedent.
10:11:08AM 7 The Ninth Circuit in Dahlia made clear to caution
10:11:12AM 8 courts not to determine whether you act pursuant to your
10:11:16AM 9 official duties based on whether the views were expressed
10:11:20AM 10 inside the office or not. So the question is not whether
10:11:24AM 11 you're on duty or off duty, the inquiry is to look --
10:11:27AM 12 THE COURT: It is under the totality of the
10:11:29AM 13 circumstances. If you're at a table in the cafeteria, and
10:11:34AM 14 you are invoking the Lord's blessing for the food, that's
10:11:37AM 15 a different question than with all the accoutrements, all
10:11:47AM 16 of the attention, all of the authority, by virtue of his
10:11:52AM 17 coachhood, that's a different question from my
10:12:00AM 18 perspective.
10:12:00AM 19 MS. RICKETTS: Respectfully, your Honor, we would
10:12:02AM 20 disagree. The rule that the district has articulated and
10:12:06AM 21 the rule that the district punished Coach Kennedy for
10:12:10AM 22 violating was engagement in demonstrative religious
10:12:13AM 23 conduct.
10:12:14AM 24 That equally prohibits the teacher who is sitting
10:12:16AM 25 alone in the cafeteria and silently bows her head. It

10:12:20AM 1 would prohibit any coach, any teacher from wearing a head
10:12:24AM 2 scarf, from wearing a cross, from making the sign of the
10:12:26AM 3 cross. Those are all visible religious expressions, your
10:12:30AM 4 Honor.
10:12:31AM 5 And Dahlia and Lane squarely instruct the court to
10:12:36AM 6 look not at whether you are on duty or off duty, but
10:12:41AM 7 whether the speech is within or without the scope of the
10:12:44AM 8 employment duties. The district, your Honor, has made no
10:12:48AM 9 attempt to engage that test at all. They failed even to
10:12:51AM 10 cite Lane versus Franks, which is the controlling test, in
10:12:55AM 11 their response brief.
10:12:59AM 12 The district points to Poway -- Johnson versus Poway.
10:13:06AM 13 We think Poway is a great case for us. Poway illustrates
10:13:11AM 14 how different the facts would have to be in order to find
10:13:13AM 15 in favor of the district.
10:13:14AM 16 The teacher in that case engaged in religious
10:13:17AM 17 expression in the classroom, hanging gigantic banners with
10:13:21AM 18 religious expression. And the court -- There were fact
10:13:25AM 19 findings in that case that he had taken advantage of his
10:13:28AM 20 position in order to press his religious views onto a
10:13:32AM 21 captive audience of students.
10:13:34AM 22 Courts have consistently treated cases inside the
10:13:37AM 23 classroom as wholly other, because in that context there
10:13:42AM 24 is a captive audience of students who are forced to listen
10:13:47AM 25 to whatever expression the teacher comes forward with.

10:13:50AM 1 That is not this case, your Honor.
10:13:52AM 2 THE COURT: Were you an athlete?
10:13:54AM 3 MS. RICKETTS: Not a very good one, your Honor.
10:13:56AM 4 THE COURT: It is not a good or a bad. If you
10:14:02AM 5 are an athlete, you are impressionable, and you are
10:14:10AM 6 respectful, and you want to please your coach to get more
10:14:23AM 7 playing time, to shine, to do whatever. That's a subtle
10:14:31AM 8 coercion. It is called stigma. Stigma has a very
10:14:44AM 9 laudatory role in society without rules, regulations, and
10:14:49AM 10 all that, and dogma. The Golden Rule is about stigma,
10:15:03AM 11 treat me the way you want to be treated.
10:15:12AM 12 There is coercion, albeit perhaps loving, kind,
10:15:23AM 13 inspiring. It is coercion nonetheless, from my
10:15:27AM 14 perspective.
10:15:28AM 15 MS. RICKETTS: Respectfully, your Honor, we
10:15:29AM 16 disagree, and we think the cases disagree as well.
10:15:32AM 17 First of all, on the facts, the district has
10:15:34AM 18 expressly stated that no students were ever coerced, were
10:15:38AM 19 ever required, were even actively encouraged to
10:15:41AM 20 participate in any religious conduct.
10:15:43AM 21 MR. TIERNEY: Your Honor, I would have to object.
10:15:45AM 22 This is a Rule 106 objection. That is misquoting. And I
10:15:49AM 23 would like to --
10:15:51AM 24 THE COURT: Put it on the record. Overruled.
10:15:55AM 25 MS. RICKETTS: I will have you look at the

10:15:57AM 1 statements in context, as well, your Honor.
10:15:58AM 2 The more important point, I think, here, is that the
10:16:01AM 3 Ninth Circuit has instructed what the remedy is in the
10:16:04AM 4 event of any confusion. Because the courts are sensitive
10:16:07AM 5 to exactly this concern that your Honor is raising,
10:16:12AM 6 students are impressionable.
10:16:14AM 7 Even, let's say, in the context of a 15- to 30-second
10:16:17AM 8 silent prayer, your Honor, we don't think there is any
10:16:20AM 9 uncertainty about what a reasonable observer would
10:16:23AM 10 understand in that situation.
10:16:24AM 11 But even if there was, the Ninth Circuit has said the
10:16:27AM 12 district has two remedies: First of all, it can issue a
10:16:31AM 13 disclaimer, making clear that the private speech is not
10:16:35AM 14 the speech of the state. That's Prince v. Jacoby.
10:16:40AM 15 Second of all, your Honor, the Ninth Circuit has
10:16:42AM 16 stated over and over that the role of the school is to
10:16:45AM 17 educate the students, educate the community that the
10:16:48AM 18 school does not endorse all speech that it fails to
10:16:51AM 19 prohibit. That's the Hills case, which is cited in our
10:16:55AM 20 brief, at Page 20.
10:16:58AM 21 The Ninth Circuit has made abundantly clear that the
10:17:01AM 22 desirable approach here is not to suppress the speech, but
10:17:04AM 23 instead for the school to simply make clear that private
10:17:07AM 24 speech and government speech are separate.
10:17:10AM 25 A couple of points, your Honor, on the standard, if I

10:17:14AM 1 may?
2 THE COURT: Yes.
10:17:22AM 3 MS. RICKETTS: First of all, your Honor, the
10:17:24AM 4 district has misconstrued what is the last peaceable state
10:17:28AM 5 of affairs. Of course Coach Kennedy is not seeking to
10:17:32AM 6 pray with students. He is not seeking to engage in any
10:17:36AM 7 sort of religious conduct with students. He has made that
10:17:39AM 8 abundantly clear, and the district itself has conceded
10:17:42AM 9 that he complied with all directives not to intentionally
10:17:47AM 10 involve students in his religious expression.
10:17:51AM 11 Instead, your Honor, the last peaceable state of
10:17:53AM 12 affairs is one before the district announced its blanket
10:17:58AM 13 ban on demonstrative religious conduct. That is
10:18:01AM 14 essentially rewinding the clock to September 2015.
10:18:06AM 15 The injunction that Coach Kennedy seeks here is
10:18:17AM 16 simply to preserve that state of affairs. The relevant
10:18:22AM 17 metric for that state of affairs is what the district's
10:18:24AM 18 policy was before it announced this, in our view, baldly
10:18:30AM 19 unconstitutional rule.
10:18:31AM 20 The Brewer case, which is a Ninth Circuit 2014
10:18:33AM 21 opinion, makes clear that's how the analysis proceeds for
10:18:36AM 22 purposes of determining whether something is a mandatory
10:18:39AM 23 or prohibitory injunction.
10:18:41AM 24 Candidly, your Honor, ultimately the label does not
10:18:43AM 25 matter, because courts order reinstatement even when that

10:18:47AM 1 remedy is construed as mandatory. And that's because the
10:18:51AM 2 remedy of reinstatement is not just an available remedy
10:18:56AM 3 here, it is actually the preferred remedy in cases of
10:18:59AM 4 First Amendment retaliatory discharge.
10:19:02AM 5 Courts have said that you are only to order monetary
10:19:06AM 6 damages, which Coach Kennedy does not even seek, if there
10:19:09AM 7 is some reason specific to the workplace why reinstatement
10:19:13AM 8 would be inappropriate.
10:19:14AM 9 The district has obviously pointed to no such reason
10:19:24AM 10 why reinstatement would be inappropriate here. So I would
10:19:28AM 11 argue reinstatement is fully available to the court, and
10:19:31AM 12 in fact it is the preferred remedy in this case.
10:19:34AM 13 The notion that the characterization of the
10:19:36AM 14 injunction as mandatory, which we disagree with, should be
10:19:40AM 15 dispositive, we simply disagree.
10:19:42AM 16 Next, your Honor, the district points to and relies
10:19:47AM 17 heavily upon Coach Kennedy's alleged failure to reapply
10:19:52AM 18 for a position in the 2016 season.
10:19:57AM 19 It is interesting that the district thinks that it
10:20:01AM 20 can escape liability on these grounds, for a couple of
10:20:04AM 21 reasons: First of all, the district made clear when it
10:20:07AM 22 suspended Coach Kennedy that he was prohibited from
10:20:10AM 23 participating in any capacity in the BHS football program
10:20:17AM 24 unless and until he agreed to the district's rules.
10:20:22AM 25 THE COURT: Ms. Ricketts, I am persuaded that the

10:20:26AM 1 district acted under color of law. My question is, is
10:20:36AM 2 there a violation of a constitutional right under the
10:20:39AM 3 Pickering test? I am not looking at the mandatory and
10:20:44AM 4 prohibitory injunction anymore. The standards, it makes
10:20:49AM 5 no difference to me. The clearly --
10:20:54AM 6 MS. RICKETTS: We agree, your Honor.
10:20:56AM 7 THE COURT: 1983, it is all about whether there
10:20:59AM 8 is a constitutional right. You drill down to the
10:21:03AM 9 Pickering test. The second standard -- And he is a
10:21:11AM 10 teacher. He is a coach. Explain Lane to me, that it
10:21:21AM 11 alters the analysis of religious speech. Not just free
10:21:31AM 12 speech, but religiously-oriented free speech.
10:21:35AM 13 MS. RICKETTS: Your Honor, we would say that
10:21:39AM 14 Lane, as affirmed by Coomes, as well as Dahlia, which is
10:21:44AM 15 the Ninth Circuit en banc opinion, all of those cases
10:21:46AM 16 stand for the proposition that there can be no bright-line
10:21:51AM 17 rule between when you are on duty and when you are off
10:21:54AM 18 duty. That is not the relevant line in the sand.
10:21:58AM 19 Instead, what we have to do is say -- the courts are
10:22:02AM 20 instructed to undertake a fact-specific analysis to look
10:22:05AM 21 at what are Coach Kennedy's responsibilities, and look at
10:22:09AM 22 whether the speech is ordinarily a part of those job
10:22:13AM 23 responsibilities.
10:22:15AM 24 THE COURT: Yeah. After the analysis of the
10:22:25AM 25 facts, it is an issue of law. It is a question of law.

10:22:29AM 1 MS. RICKETTS: That's right. We would submit,
10:22:31AM 2 your Honor, the prong two inquiry is actually relatively
10:22:34AM 3 straightforward, simply because the district enunciates
10:22:38AM 4 the wrong test.
10:22:39AM 5 What the district wants to do is take Poway and
10:22:42AM 6 construe Poway as creating a bright-line temporal rule
10:22:46AM 7 that applies to all public employees. First of all, I
10:22:50AM 8 think that --
10:22:50AM 9 THE COURT: There is no bright-line test in my
10:22:55AM 10 horizon on this issue. I've had three or four or five
10:23:03AM 11 religious freedom cases. I seem to get all of them. They
10:23:13AM 12 all stand on the facts presented before me. When I finish
10:23:24AM 13 a case, I shred everything and start over, because there
10:23:30AM 14 is no efficient way to try a case from a trial lawyer's
10:23:35AM 15 perspective or from a judge's perspective.
10:23:39AM 16 Under these circumstances I evaluate what -- I know
10:23:43AM 17 a lot about coaching. I coached my sons. They are
10:23:51AM 18 revered to men and women, boys and girls. That's one of
10:23:59AM 19 the great advances in our culture, the equality of women
10:24:10AM 20 and girls to compete, and learn the skills of competition.
10:24:21AM 21 With all due respect, the coach is more important to the
10:24:29AM 22 athlete than the principal.
10:24:34AM 23 MS. RICKETTS: In the life of students on a daily
10:24:37AM 24 basis, we agree. Again, with no offense, Coach Kennedy,
10:24:42AM 25 everyone, I think, agrees, has had a tremendous impact on

10:24:46AM 1 the lives of these students. And he is currently,
10:24:50AM 2 candidly, your Honor, in agony, not being able to
10:24:54AM 3 participate in those relationships with those players that
10:24:58AM 4 he built up over time. There are a number of seniors
10:25:02AM 5 currently on the roster. He is not able to be on the
10:25:05AM 6 sidelines coaching them through their final season. That
10:25:08AM 7 itself, we would argue, is irreparable.
10:25:12AM 8 But, your Honor, we are sensitive to the fact that it
10:25:17AM 9 would be attractive, it would be easier if the court in
10:25:20AM 10 Lane, or Garcetti, or Dahlia had articulated a clear rule
10:25:24AM 11 that said when you're on the clock, you speak only as a
10:25:28AM 12 public employee; when you're off the clock, you don't.
10:25:32AM 13 But that's not what the courts do.
10:25:34AM 14 Instead, we have to look at the employment
10:25:36AM 15 responsibilities that the district has articulated. And
10:25:39AM 16 respectfully, your Honor, they have nothing to do with the
10:25:42AM 17 religious expressions he is engaged in.
10:25:44AM 18 THE COURT: But all the other cases, the free
10:25:48AM 19 speech cases, are preferential in favor of free speech.
10:26:02AM 20 Not so much on the religious. It has gotten much narrower
10:26:10AM 21 because of the Establishment Clause. And that has
10:26:14AM 22 become -- Justice Sotomayor, if she had described the
10:26:23AM 23 response in a religious speech case, I would follow it.
10:26:37AM 24 MS. RICKETTS: To the extent, your Honor --
10:26:40AM 25 Well, I will say that we wholeheartedly agree, that

10:26:43AM 1 current Establishment Clause jurisprudence is not a model
10:26:47AM 2 of clarity, by any means. However, it is clear, we think,
10:26:50AM 3 that Sante Fe is the test. Sante Fe instructs the court
10:26:54AM 4 to look at what the reasonable observer would understand.
10:26:58AM 5 What the reasonable observer sees here is Coach
10:27:02AM 6 Kennedy kneeling at midfield for a period of 10 to
10:27:07AM 7 15 seconds. Your Honor, even the district in its own
10:27:09AM 8 answer says that it does not know whether Coach Kennedy
10:27:14AM 9 was engaged in prayer in that length of time during that
10:27:18AM 10 October 16th game. How can there be a violation of the
10:27:20AM 11 Establishment Clause if the district does not itself know
10:27:24AM 12 whether any religious expression was happening at all? It
10:27:28AM 13 just doesn't make sense.
10:27:31AM 14 A couple of points, just quickly, your Honor, to
10:27:37AM 15 touch on failure to reapply. As I mentioned earlier, the
10:27:41AM 16 district made very clear that Coach Kennedy was to have no
10:27:45AM 17 subsequent involvement in the football program until he
10:27:48AM 18 agreed to the district's rule.
10:27:50AM 19 We now know from the papers that the district has
10:27:53AM 20 filed in this court that the district adhered to that same
10:27:56AM 21 view in its filings before the EEOC, and indeed it
10:28:01AM 22 continues to adhere to that view today.
10:28:03AM 23 So to claim that any intervening action by Coach
10:28:07AM 24 Kennedy would in any way have changed the result, we
10:28:12AM 25 think, your Honor, is simply meritless. The law does not

10:28:15AM 1 require futile action by a party.
10:28:19AM 2 But there is a second problem with the failure to
10:28:21AM 3 reapply, your Honor. The Supreme Court in Connick made
10:28:25AM 4 clear that the state cannot condition public employments
10:28:29AM 5 on a basis that infringes freedom of expression. That is
10:28:34AM 6 exactly what the district has done here. This whole
10:28:37AM 7 notion that an intervening cause from Coach Kennedy's
10:28:41AM 8 failure to comply, candidly, your Honor, we think that
10:28:44AM 9 argument just doesn't work.
10:28:47AM 10 A couple of additional points that counsel raised.
10:28:50AM 11 One related to the Satanists. We are by no means asking
10:28:54AM 12 the district to endorse a rule that would require groups
10:28:58AM 13 that clearly seek to disrupt or create a disturbance onto
10:29:02AM 14 the field. The district has ample tools at its disposal
10:29:06AM 15 to deal with those people. And those sorts of
10:29:10AM 16 hypotheticals, we think, have no bearing here.
10:29:13AM 17 Finally, your Honor, the issue of Monell, which your
10:29:17AM 18 Honor already alluded to, certainly is not a jurisdiction
10:29:21AM 19 issue. We think there can be no plausible dispute that
10:29:24AM 20 the district acted in its official capacity, official
10:29:29AM 21 correspondence, official policymaker, official suspension.
10:29:33AM 22 THE COURT: Thank you, Ms. Ricketts.
10:29:35AM 23 Mr. Tierney, do you want to say anything about Lane?
10:29:39AM 24 If you want to say something about anything else, you have
10:29:43AM 25 the votes, you don't need to speak.

10:29:45AM 1 MR. TIERNEY: I will just talk about Lane, your
10:29:48AM 2 Honor. The problem with that discussion, your Honor,
10:29:58AM 3 first of all, it mischaracterizes Lane, but most of all it
10:30:01AM 4 mischaracterizes what the district is saying.
10:30:03AM 5 The district isn't saying that all public employees
10:30:07AM 6 are subject to a temporal test that says if they are at
10:30:12AM 7 work they are therefore speaking as public employees. We
10:30:16AM 8 don't say anything of the sort. We don't come close to
10:30:19AM 9 saying anything of the sort.
10:30:20AM 10 I would call it a straw man, except a straw man is
10:30:23AM 11 even stronger than that. It is a ridiculous argument. It
10:30:26AM 12 is a ridiculous argument for anybody to think that a party
10:30:29AM 13 could make, that there is some rule that says all public
10:30:32AM 14 employees while they are at work necessarily speak as
10:30:36AM 15 public employees. That is not what the case law is about.
10:30:39AM 16 We don't say that.
10:30:40AM 17 What we draw from Johnson is much more specific and
10:30:46AM 18 much more varied. Johnson doesn't deal with all public
10:30:51AM 19 employees. It only deals with the school context.
10:30:57AM 20 It takes pains -- It is a long opinion. It refers
10:31:01AM 21 to circuit court rulings from other districts, and draws
10:31:06AM 22 on all of those principles, to describe what is it about
10:31:10AM 23 the school environment that is unique, and what is it
10:31:15AM 24 about the factual basis of what teachers do, and then it
10:31:20AM 25 draws the conclusions from it.

10:31:21AM 1 And I will put the conclusions up here. This isn't a
10:31:24AM 2 temporal test. It says, "Teachers necessarily" -- this is
10:31:31AM 3 the rule in this case, "A teacher necessarily acts as a
10:31:35AM 4 teacher for purposes of a Pickering inquiry," one, "when
10:31:39AM 5 at school or a school function"; two, "in the general
10:31:44AM 6 presence of students"; three, "in a capacity one might
10:31:47AM 7 reasonably view as official."
10:31:49AM 8 There are at least three components there. It's not
10:31:52AM 9 a temporal test. It doesn't say from the minute they walk
10:31:55AM 10 in the door until they go. It says, "If you are in school
10:31:58AM 11 or at a school function." That is sort of a temporal
10:32:01AM 12 test, but it is also a location test. And then, even more
10:32:04AM 13 specific, "In the general presence of students." So it
10:32:07AM 14 doesn't address anything that teachers do outside of the
10:32:10AM 15 presence of students.
10:32:11AM 16 And then, finally, even more leeway for a teacher,
10:32:15AM 17 "In a capacity one might reasonably view as official."
10:32:19AM 18 There is a difference between the teacher at the
10:32:21AM 19 basketball game who is keeping score, or he is standing in
10:32:25AM 20 front of the crowd to keep people from running on the
10:32:29AM 21 court, or something like that. That is a capacity you
10:32:31AM 22 might reasonably view as official.
10:32:33AM 23 But if a teacher is sitting up in the stands watching
10:32:36AM 24 a game, I think Johnson would say that teacher isn't
10:32:39AM 25 necessarily acting in the capacity as a teacher. That is

10:32:42AM 1 the test that we are applying.
10:32:43AM 2 There is no bright-line test here. There is a lot of
10:32:46AM 3 room for nuance. There is a lot of different elements to
10:32:50AM 4 it.
10:32:51AM 5 But if you take that, I think, under any generous
10:32:55AM 6 reading even, for the plaintiff, each of these factors
10:32:59AM 7 applies to his role when is he out in the middle of the
10:33:01AM 8 field with the students -- the players. They do the
10:33:06AM 9 handshake line, which we never did when I was a player.
10:33:09AM 10 But they do that now. They still have to watch the
10:33:12AM 11 students then. Honestly, as a lacrosse coach, I will tell
10:33:15AM 12 you, fights break out then sometimes, and we really had to
10:33:19AM 13 watch it.
10:33:24AM 14 He's got his coaching gear on, he's got his students
10:33:29AM 15 around him, clearly in an official capacity. That is a
10:33:35AM 16 difference. It is not saying every single second,
10:33:40AM 17 anything he says, we have this bright-line rule that wraps
10:33:43AM 18 the whole package up. We are not saying that at all.
10:33:46AM 19 What we are saying is that these factors apply squarely to
10:33:49AM 20 the situation we are talking about.
10:33:50AM 21 I just have to briefly address that picture. I want
10:33:55AM 22 to put this picture up, your Honor. When we are talking
10:34:01AM 23 about the Establishment Clause issue -- The top picture
10:34:11AM 24 is the one we submitted with the motion. This bottom
10:34:15AM 25 picture is -- If you pull out the Ninth Circuit -- the

10:34:22AM 1 Third Circuit opinion, this is in there. This is what the
10:34:28AM 2 Third Circuit said is a violation of the Establishment
10:34:30AM 3 Clause.
10:34:31AM 4 Now, it didn't have the Johnson versus Poway test to
10:34:35AM 5 apply. But if you read the reasoning of that case, it
10:34:38AM 6 applies. That case was cited by -- I believe that case
10:34:43AM 7 was cited by the -- I might be thinking of Doe versus
10:34:47AM 8 Duncanville, which was another coaching case, holding
10:34:50AM 9 hands at midcourt. Those cases were cited by the Johnson
10:34:54AM 10 court.
10:34:55AM 11 This bottom picture was found to be a violation of
10:34:59AM 12 the Establishment Clause.
10:35:02AM 13 The top picture, they say, "Well, all he wants to do
10:35:05AM 14 is kneel on his own at the 50-yard line." But in the same
10:35:11AM 15 letter that says he is going to do that, it says, "Don't
10:35:13AM 16 you dare do anything to stop the students from joining
10:35:16AM 17 him."
10:35:17AM 18 The school can't, and doesn't want to, stop students
10:35:20AM 19 from praying. If the students want to pray, they are
10:35:24AM 20 entitled to pray.
10:35:25AM 21 So how does the school manage that situation, where a
10:35:30AM 22 prayer circle with a coach in the middle of it is a
10:35:33AM 23 violation of the Establishment Clause, but we can't stop
10:35:37AM 24 the students from praying? We don't want to stop the
10:35:39AM 25 students from praying. The only way they manage that is

10:35:42AM 1 to say to the coach, "We are going to ask you to do your
10:35:45AM 2 prayer somewhere else."
10:35:46AM 3 THE COURT: Thank you, Mr. Tierney.
10:35:51AM 4 MR. TIERNEY: You're welcome, your Honor.
10:35:52AM 5 THE COURT: Ms. Ricketts, any final thoughts?
10:35:55AM 6 MS. RICKETTS: Two points, very briefly, your
10:35:58AM 7 Honor.
10:35:58AM 8 THE COURT: Thank you.
10:35:59AM 9 MS. RICKETTS: Your Honor, first, the step two
10:36:00AM 10 inquiry, the district continues to run from Lane,
10:36:03AM 11 continues to run from Dahlia. Both of those cases are
10:36:06AM 12 after Johnson versus Poway. Those are the controlling
10:36:10AM 13 cases in this circuit.
10:36:12AM 14 But the district on one hand says, "We are not
10:36:15AM 15 announcing a bright-line rule," on the other hand they are
10:36:18AM 16 crafting such a rule with respect to public school
10:36:21AM 17 employees.
10:36:22AM 18 Under the district's rule that's announced and that's
10:36:27AM 19 applied against Coach Kennedy, visible religious conduct
10:36:31AM 20 that may be observed by a student is prohibited. And
10:36:34AM 21 respectfully, your Honor, that is just not what Lane and
10:36:36AM 22 Dahlia permit. That is not the relevant analysis.
10:36:39AM 23 Here is what happened in Poway: The teacher in that
10:36:42AM 24 case took advantage of his position to press his
10:36:46AM 25 particular views upon the impressionable and captive minds

10:36:51AM 1 before him. The court leaned heavily on the classroom
10:36:54AM 2 context, the captive audience of students that were there.
10:36:58AM 3 There is no classroom, there is no captive audience here.
10:37:02AM 4 Second, your Honor, briefly, as to Borden, the
10:37:06AM 5 district wants to look at the eight-year history here and
10:37:09AM 6 claim that is a factor in their favor. In fact, it is
10:37:12AM 7 quite the opposite, your Honor. The district was wholly
10:37:15AM 8 unaware of Coach Kennedy's religious expression for the
10:37:19AM 9 first eight years of his tenure as a coach. That is how
10:37:23AM 10 unobtrusive the religious expression is here.
10:37:26AM 11 What the district wants to do is claim the media
10:37:30AM 12 attention resulting from the controversy it created, and
10:37:34AM 13 say that creates an Establishment Clause violation.
10:37:37AM 14 Your Honor, that is simply not what is at issue. All
10:37:40AM 15 that Coach Kennedy wants to do is take a knee at midfield
10:37:44AM 16 for 15 to 30 seconds, for what is effectively a personal
10:37:48AM 17 moment of silence. There is no federal court that should
10:37:51AM 18 prohibit that religious expression. Thank you.
10:37:54AM 19 THE COURT: Thank you, Ms. Ricketts. First, I
10:37:59AM 20 want to thank all participants for the written materials
10:38:07AM 21 and the oral presentations that were made here today.
10:38:14AM 22 This is one of those cases that make you want to be a
10:38:19AM 23 lawyer, to argue and deal with complex, sensitive issues
10:38:34AM 24 in a public way. That's why I wanted to be a lawyer. I
10:38:42AM 25 suspect that many of you feel the same way.

10:38:46AM 1 I am going to deny the motion for preliminary
10:38:52AM 2 injunction. I am satisfied that under the 1983 elements
10:39:04AM 3 for injunctive relief that the district did act under
10:39:09AM 4 color of law, but they did not violate the constitutional
10:39:13AM 5 right of free speech violation determined by Pickering.
10:39:22AM 6 The five elements or tests under Pickering: One,
10:39:28AM 7 whether the plaintiff spoke on a matter of public concern:
10:39:32AM 8 Yes. Two, whether the plaintiff spoke as a private
10:39:35AM 9 citizen as opposed to a public employee: No. Three,
10:39:39AM 10 whether the plaintiff's protected speech was a substantial
10:39:43AM 11 or motivating factor in the adverse employment action:
10:39:46AM 12 Yes. Four, whether the state had an adequate
10:39:50AM 13 justification for treating the employee differently from
10:39:52AM 14 other members of the general public: Yes. Five, whether
10:40:00AM 15 the state would have taken the adverse employment action
10:40:05AM 16 even absent the protected speech: No. This is the reason
10:40:11AM 17 that Coach Kennedy is no longer coaching for Bremerton.
10:40:20AM 18 He had a great opportunity, a great job, to influence
10:40:35AM 19 young people. Most coaches would coach for free. Not the
10:40:51AM 20 big coaching jobs at the university and all that, but the
10:41:00AM 21 workaday coaches get a stipend, and it is not much. It is
10:41:10AM 22 because they love the kids, they love the sport, they love
10:41:15AM 23 the competition.
10:41:19AM 24 Coach Kennedy was dressed in school colors. He chose
10:41:31AM 25 a time and event when the season is ten games, or nine

10:41:42AM 1 games. It is one-tenth of the excitement for the students
10:41:51AM 2 for that semester. It is a big deal. Under the lights.
10:42:05AM 3 He used that opportunity to convey his religious views, as
10:42:13AM 4 laudable as they were.
10:42:19AM 5 He was still in charge. He was still on the job. He
10:42:27AM 6 was still responsible for the conduct of his students, his
10:42:34AM 7 team. It is not a debatable point, from my perspective,
10:42:49AM 8 that he was a private citizens as opposed to a public
10:42:53AM 9 employee. He was on the job, as he would have wanted to
10:43:03AM 10 be. And a reasonable observer, in my judgment, would have
10:43:06AM 11 seen him as a coach, participating, in fact leading an
10:43:22AM 12 orchestrated session of faith, of thanks, of fellowship.
10:43:39AM 13 All those things are laudable. They just can't be
10:43:44AM 14 happening on public property in this climate under the
10:43:51AM 15 law.
10:43:52AM 16 For those reasons the preliminary injunction is
10:43:59AM 17 denied, and I make no finding of mandatory versus
10:44:08AM 18 prohibitory injunction. I am just focusing on Coach
10:44:17AM 19 Kennedy's role as coach as determinative of this issue.
10:44:25AM 20 All right. Have a great week. Court will be at
10:44:30AM 21 recess.
22 (Proceedings concluded.)
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1 C E R T I F I C A T E
4 I, Barry Fanning, Official Court Reporter for the
5 United States District Court, Western District of
6 Washington, certify that the foregoing is a true and
7 correct transcript from the record of proceedings in the
8 above-entitled matter.
10
11
12 _________________
/s/ Barry Fanning
13 Barry Fanning, Court Reporter
14
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Suite 17205 - 700 Stewart St. - Seattle, WA 98101

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Case 3:16-cv-05694-RBL Document 27 Filed 09/27/16 Page 1 of 45 1

1 UNITED STATES DISTRICT COURT

14 BEFORE THE HONORABLE RONALD B. LEIGHTON

17 For the Plaintiff: Rebekah Perry Ricketts

Barry L. Fanning, RMR, CRR - Official Court Reporter

09:17:56AM 1 THE CLERK: This is in the matter of Kennedy

09:29:49AM 2 versus Bremerton School District, Cause No. C16-5694RBL.

09:29:55AM 3 Counsel please make their appearances.

09:29:58AM 4 MS. RICKETTS: Good morning, your Honor. Rebekah

09:30:00AM 5 Ricketts for the plaintiff, Joseph Kennedy. With me at

09:30:03AM 6 counsel table is Ben Wilson.

09:30:04AM 7 MR. HELSDON: Good morning, your Honor. Jeff

09:30:05AM 8 Helsdon for Joe Kennedy.

09:30:08AM 9 MR. BERRY: Good morning, your Honor. Michael

09:30:11AM 10 Berry for Joe Kennedy.

09:30:13AM 11 MR. FERATE: Good morning, your Honor.

09:30:14AM 12 A.J. Ferate here for Joe Kennedy.

09:30:16AM 13 THE COURT: Good morning.

09:30:16AM 14 MR. TIERNEY: Good morning, your Honor. Michael

09:30:17AM 15 Tierney. I represent the Bremerton School District.

16 THE COURT: Good morning.

09:30:21AM 17 MR. TIERNEY: Accompanying me is Aaron Leavell.

09:30:23AM 18 He is the superintendent of the school district. And Jeff

09:30:27AM 19 Ganson is the general counsel for the school district. We

09:30:33AM 21 table with us.

09:30:34AM 22 THE COURT: Thank you. Good morning. I have

09:30:35AM 23 reviewed everything that has been submitted by both sides.

09:30:44AM 24 Because of the importance of this matter, I wanted to

09:30:53AM 25 schedule oral argument for the plaintiff's motion for a

Barry L. Fanning, RMR, CRR - Official Court Reporter

09:31:00AM 1 preliminary injunction. Plaintiff can make their

09:31:07AM 3 MS. RICKETTS: Good morning, your Honor. This

09:31:21AM 4 case is about Coach Kennedy's First Amendment right to

09:31:25AM 5 take a knee at midfield at the end of the BHS football

09:31:30AM 6 games and say a silent prayer for 15 to 30 seconds.

09:31:34AM 7 The district has admitted it suspended Coach Kennedy

09:31:39AM 8 from all participation in the BHS football program because

09:31:42AM 9 he engaged in, quote, demonstrative religious conduct

09:31:48AM 10 while he was still on duty as a coach.

09:31:50AM 11 The primary issue here is whether the district can

09:31:53AM 12 strip Coach Kennedy of his First Amendment rights at the

09:31:56AM 13 schoolhouse gate. And that is exactly what Tinker

09:31:59AM 15 The district has already conceded that Coach

09:32:03AM 16 Kennedy's religious conviction is fleeting, that any

09:32:08AM 17 student participation was entirely voluntary, was never

09:32:11AM 18 coerced, never even actively encouraged, and that Coach

09:32:14AM 19 Kennedy fully complied with the district's directives not

09:32:18AM 20 to intentionally involve students in his religious

09:32:21AM 21 expression. All of these concessions are in the

09:32:24AM 22 district's official correspondence, and are clear on the

09:32:27AM 23 face of the record.

09:32:28AM 24 The district has also effectively conceded three of

09:32:31AM 25 the four prongs of the preliminary injunction inquiry.

Barry L. Fanning, RMR, CRR - Official Court Reporter

09:32:35AM 1 That's not surprising, because the law is clear that

09:32:38AM 2 deprivation of First Amendment rights constitutes

09:32:41AM 3 irreparable harm, and the balance of equities and public

09:32:45AM 4 interest prongs cut squarely in favor of the party whose

09:32:48AM 5 rights are being chilled.

09:32:49AM 6 So what remains is the Eng test, and Coach Kennedy,

09:32:54AM 7 we respectfully submit, amply satisfies that test.

09:32:59AM 8 As an initial matter, the district concedes, as it

09:33:01AM 9 must, that Coach Kennedy's religious expression is a

09:33:05AM 10 matter of public concern. So that takes care of Step 1.