I wouldn’t have thought that the best way to celebrate Constitution Day is to launch an ill-informed attack on a litigant who has vindicated his First Amendment rights to free exercise of religion and freedom of speech. But that didn’t stop Seattle Times columnist Danny Westneat. Nor has it deterred the usual suspects from piling on.
Westneat’s primary claim in his piece is that Coach Joe Kennedy, in the aftermath of his Supreme Court victory in June in Kennedy v. Bremerton School District, has declined to accept an offer from the school district to reinstate him and is instead “out on the conservative celebrity circuit.”
Westneat buries near the end of his article the huge fact that the district judge on remand is still “overseeing the rehiring issue and also how much in attorneys’ fees the Bremerton schools will pay Kennedy’s lawyers.” In other words, contrary to what he states in his opening sentence, there is not yet an actual order to the school district to give Kennedy his job back.
If Kennedy were simply to return to his position now, he would risk rendering his case moot and depriving himself of the full judicial relief to which he is entitled. Kennedy’s lawyers also tell me that the school district has refused numerous requests to meet with them to discuss reinstatement—even after the district court has ordered the school district to do so.
Westneat would have learned this if he had contacted Kennedy’s lawyers. He also would have learned that Coach Kennedy looks forward to resuming his coaching duties. In the meantime, Kennedy is celebrating his big victory, just as other successful litigants in high-profile cases often do.
Westneat also faults Kennedy’s lawyer, Paul Clement, for “telling the Supreme Court repeatedly [at oral argument] that [Kennedy] was fired.” Instead, Westneat contends, Kennedy was on a yearly deal and “never reapplied to work the 2016 season.”
Kennedy did not reapply for his job because the school district’s policy forbade him from exercising the very constitutional rights that the Supreme Court has now vindicated. The school district suspended Kennedy for violating its unconstitutional policy and recommended that he not be rehired as a result.
The word fired is not a legal term of art and is routinely applied to encompass a constructive discharge, a situation in which an employee declines to continue in a job because the working conditions are intolerable. That’s exactly why Kennedy did not reapply for his position.
You’d think from Westneat’s account that Clement sprung on the Court at oral argument that Kennedy was “fired.” But the very first line of Clement’s opening brief for Kennedy states that Kennedy “lost his job as a football coach at a public high school because he knelt and said a quiet prayer by himself at midfield after the game ended.”
Westneat claims that the Court “simply ignored [the] inconvenient fact” that Kennedy didn’t reapply for his position. But the Court doesn’t ignore that fact. It instead properly regards it as legally irrelevant. As does Justice Sotomayor’s dissent.
Westneat’s piece is just the latest in a long series of cheap shots directed at Coach Kennedy, including an incendiary screed on Slate that grossly misstated the facts of the case and a lot of mistaken accounts of the photos that Sotomayor included in her shoddy dissent. The school district itself, without consulting with Kennedy or his lawyers, tried to get the case dismissed as moot back in February—only to have Kennedy’s lawyers explain that Kennedy had temporarily relocated to Florida to help care for his sick father-in-law (who had also recently suffered a divorce, the murder of his son, and the loss of his job) and remained ready, willing, and able to be reinstated to his coaching position.
Disclosure: I am pleased to count Paul Clement as a friend.