October 16, 2015
Hiram Sasser via email
Liberty Institute
2001 West Plano Parkway, Suite 1600
Plano, Texas 75075
Re:

Bremerton School District/Joseph Kennedy

Dear Mr. Sasser:
We are attorneys representing the Bremerton School District in Bremerton, Washington.
The District has provided us with a copy of your letter to the District’s Superintendent and Board
of Directors, dated October 14, 2015, for response. In accordance with the Washington State
Rules of Professional Conduct Rule 4.2 (and the corresponding provision of the Oklahoma Rules
of Professional Conduct), please direct all further communication regarding this matter to this
office.
The District has worked in good faith with Mr. Kennedy to identify clear guidelines by
which he is able to exercise his fundamental religious freedoms, while respecting and avoiding any
violation of the constitutional rights of others in the school community. The District remains
willing to discuss and clarify those expectations. However, it must be understood that the
guidelines and directives provided by the District to Mr. Kennedy must be adhered to.
In large part, the District agrees with your characterization of existing federal case law
under the First Amendment. However, we believe that you materially misunderstand key facts in
this case.
First, in describing the development of Mr. Kennedy’s practice of praying immediately
following Bremerton High School football games, you assert that he did not invite anyone to join
him in his “short prayer of thanksgiving for player safety, fair play, and spirited competition,” and
that “he does not pray in the name of a specific religion or deity, and he does not say ‘amen.’”
While this may presently be the case following the District’s guidance to Mr. Kennedy on
September 17, 2015, to be clear, the opposite was true prior to that direction. Mr. Kennedy
acknowledged during the District’s inquiry that, among others, coaching staff from other teams
were invited to join in his post-game prayer. Mr. Kennedy also acknowledged that the activity
was, indeed, prayer. And contrary to your assertion, local media published video of Mr. Kennedy
beginning his post-game address on September 14, 2015, with the word “Lord,” and ending it
with the word “amen.” That Mr. Kennedy impermissibly led students in prayer immediately
following the end of football games prior to the September 17 guidance is without question.

 Hiram Sasser
October 16, 2015
Page 2
Of course, following receipt of written guidance on September 17, 2015, Mr. Kennedy has
confirmed his understanding of it (including signing a statement of expectations that all District
employees were asked to acknowledge), and to the District’s knowledge, he has complied with
the District’s directives. It is my understanding that Mr. Kennedy has provided short,
inspirational, secular talks to students and coaches immediately following games. This is
consistent with the guidance the District provided to Mr. Kennedy, and has been an entirely
positive and inclusive activity.
The more important factual inaccuracy in your letter and analysis is your repeated
characterization of Mr. Kennedy’s post-game prayers (prior to September 17) or talks (following
that date) as occurring “on his own time,” after his duties as a District employee had ceased. In
fact, those talks occur 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.
Critically, at that time, Mr. Kennedy remains on duty. All District-employed coaches and assistant
coaches are responsible for supervision of students not only before and during games, but
following completion of the contest and until the players have returned to the locker room,
changed out of their uniforms, and been released to their parents or otherwise depart the Districtsponsored activity. We believe that this expectation is clearly understood by all coaches employed
by the District. After all, the District activity is not merely an athletic contest. The event
encompasses all of the pre-game preparation and post-game activities attendant to and which are,
as much as the game itself, reasons for school district athletic programs.
As such, your analogy to Wigg v. Sioux Falls Sch. Dist., 382 F.3d 807 (8th Cir. 2004), is
inapt. In that case, a religious club, along with many other clubs, was allowed to use school
district facilities for voluntary club purposes after the school day had ended. The court ruled that
a teacher for the school district could not be prohibited from participating in that club’s activities
on the basis of the district’s interest in avoiding an Establishment Clause violation, because her
participation occurred after her work day had ended, involved an event that was not districtsponsored, and, importantly, after “nonparticipating students … exited the building.” 382 F.3d
807, 815. Under those circumstances, the court found that no reasonable person would perceive
the teacher’s participation in the club’s activities as school district endorsement of religion.
Mr. Kennedy’s situation is markedly different. His post-game talks occur immediately
following the end of the game, during a District-sponsored event at which he is paid to attend and
perform his job duties. During the time following completion of the game, until players are
released to their parents or otherwise allowed to leave the event, Mr. Kennedy, like all coaches, is
clearly on duty and paid to continue supervision of students. During such times, Mr. Kennedy
must continue to comply with the guidelines that have been provided to him.

 Hiram Sasser
October 16, 2015
Page 3
On the other hand, once Mr. Kennedy is truly no longer on duty, the analysis in Wigg
applies, and he is free to engage in such activities as he chooses, so long as they are otherwise
consistent with the District’s policies regarding private use of District facilities—which do not
prohibit religious activities. For example, one recent media report states: “Nearly an hour after
the game, Kennedy told KING 5 he waited until the lights were out and he was the only person
left in the stadium. Then, he walked to the 50-yard-line, alone, and bowed his head in prayer.”
The District has absolutely no concern with this conduct, as it appears to have occurred after Mr.
Kennedy’s duties for the District had ended. Of course, this is but one example of off-duty
conduct that poses no concerns to the District; the point is that the District does not purport to
control Mr. Kennedy’s private conduct, including exercise of his religious rights, when he is not
on duty for the District.
Moreover, the District’s guidance to Mr. Kennedy does not prohibit all religious exercise
even while he is on duty as a District-paid coach. He is free to engage in religious activity, including
prayer, even while on duty, so long as doing so does not interfere with performance of his job
duties, and does not constitute District endorsement of religion. However, Mr. Kennedy must be
cautious to avoid the constitutional violations identified in Borden v. Sch. Dist. of the Township of
East Brunswick, 523 F.3d 153 (3rd Cir. 2008).
The facts of that case are remarkably similar to those present here. The Borden court
upheld the school district’s prohibition of the coach joining in or even bowing his head or
kneeling during voluntary, student-initiated prayer, because he had a long-standing and wellknown history of having led students in prayer: “[B]ased on the history and context of Borden’s
conduct in coaching the EBHS football team over the past twenty-three years, Borden is in
violation of the Establishment Clause when he bows his head and takes a knee while his team
prays.” Id. at 175. “The history of Borden’s prayers with the football team leads to a reasonable
inference that his current requested conduct is meant ‘to preserve a popular “state-sponsored
religious practice”’ of praying with his team prior to games.” Id. at 177 (quoting Santa Fe Indep.
Sch. Dist. v. Doe, 530 U.S. 290 (2000)). “We find that, based on the history of Borden’s conduct
with the team’s players, his acts cross the line and constitute an unconstitutional endorsement of
religion. … Based on this history, we hold that a reasonable observer would conclude that Borden
is showing not merely respect when he bows his head and takes a knee with his teams and is
instead endorsing religion.” Id. at 178.
Given the marked similarity of facts between the Borden case and Mr. Kennedy’s prior,
long-standing and well-known history of leading students in prayer, the District has no choice but
to conclude that a federal court would rule in the same way here. That is, any overt actions on Mr.
Kennedy’s part, appearing to a reasonable observer to endorse even voluntary, student-initiated
prayer, while he is on duty as a District-paid coach, would amount to District endorsement of
religion in violation of the Establishment Clause. For these reasons, the District affirms the

 Hiram Sasser
October 16, 2015
Page 4
guidance and expectations provided to Mr. Kennedy on September 17, 2015. Given the significant
potential liability to which conduct violating those guidelines would expose the District, strict
adherence is required and expected, and violations cannot be tolerated.
Please let me know if you have any questions or wish to discuss these matters further.
Sincerely,
PORTER FOSTER RORICK LLP

Jeffrey Ganson
JG:cn
cc:
Anthony Ferate (via email)
Aaron Leavell (via email)
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