Beruflich Dokumente
Kultur Dokumente
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4 JOSEPH A. KENNEDY, )
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5 Plaintiff, ) No. CV16-5694RBL
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6 v. )
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7 BREMERTON SCHOOL DISTRICT, )
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8 Defendant. )
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PRELIMINARY INJUNCTION HEARING
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September 19, 2016
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16 APPEARANCES:
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09:17:56AM
09:30:30AM 20 have some others in the audience, but that's who is at the
09:31:06AM 2 argument.
09:31:59AM 14 forbids.
09:33:12AM 12 controlling precedent from the Supreme Court and the Ninth
09:33:31AM 17 That is the task that Lane v. Franks announces, and that
09:33:51AM 23 decided whether he will speak or what he will say, and all
09:35:20AM 15 duty?
09:36:34AM 11 very taut for most speech that does not have a religious
09:37:08AM 16 don't need a geography test for the Italian peninsula and
09:37:27AM 19 exercise.
09:37:41AM 23 for purposes of the prong two inquiry, under Eng, which
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
09:38:17AM 10 supervise, and said solely that its adverse actions were
09:38:27AM 13 step. The controlling test is Sante Fe, your Honor. And
09:38:34AM 15 observer would understand given the facts and the context.
09:39:24AM 4 and I'm glad you raised the picture. The picture that is
09:39:43AM 9 What the district does not tell you, following the
09:40:08AM 17 Kennedy in that photo are not Bremerton players. They are
09:40:14AM 19 time where his eyes were closed, his head was bowed.
09:41:05AM 9 issues with that holding. Number one, the Third Circuit's
09:41:12AM 11 inquiry, which is the one prong of the analysis that the
09:41:39AM 20 Honor, is that they are very different facts. The coach
09:42:00AM 1 Coach Kennedy has made very clear that the nature of
09:42:51AM 15 they are on duty. The law simply does not support that
09:42:54AM 16 conclusion.
09:43:02AM 18 Mr. Tierney. You will have every opportunity -- you will
09:43:13AM 21 hear Mr. Tierney and the district, and then you can come
09:43:33AM 1 minutes?
09:43:52AM 7 think the logical prior steps are. But if you have some
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.
09:45:05AM 25 know that they really mean to say they want to go back to
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
09:45:35AM 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
09:46:13AM 16 room before the game, and leading verbal prayers with the
09:46:23AM 19 all of the things that proceed farther down the line, we
09:46:33AM 21 asking for. I have my doubts that is really what they are
09:47:42AM 6 to not pray before games and to not pray after games.
09:47:51AM 8 parties.
09:48:10AM 14 place. But that is not the last peaceable status. And
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,
09:49:23AM 2 one of the bullet points, "Have read and understand all
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
09:49:55AM 10 bar him from praying before or after the game, or during
09:50:04AM 13 a coach?
09:50:12AM 16 praying.
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
09:50:34AM 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
09:51:21AM 9 can see and nobody can have any concern with.
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
09:52:07AM 22 district couldn't say anything about it, and couldn't stop
09:52:40AM 6 for him that the parties had never agreed upon. That is a
09:53:21AM 16 subject to the same rules that govern all the other
09:53:55AM 2 him to take over the school's field at the 50-yard line
09:54:34AM 12 speech. And they have not established that ground for
09:54:38AM 13 you.
09:54:50AM 17 what you have to do. And having not accomplished that,
09:55:20AM 25 going to keep talking. But I think that ends the inquiry
09:56:36AM 16 these are built on what we just talked about here, that in
09:56:45AM 18 have to show that there was a school district policy that
09:57:15AM 25 school district hired a new head coach. The head coach
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
09:58:02AM 11 for 2016 is at the core of what they are asking the court
09:59:04AM 2 that point, and simply say, "Well, it would have been
09:59:07AM 3 futile."
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
10:00:02AM 11 what the allegation is. That's what the court has before
10:00:21AM 16 That's what the basis for the preliminary injunction is.
10:00:50AM 23 basis for you to exercise your injunctive powers, any more
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."
10:01:09AM 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
10:01:40AM 10 got the school district saying, "He never even applied.
10:01:43AM 11 The positions were all open. We filled them with someone
10:02:23AM 17 Mr. Kennedy signed, and I will try to cut to the chase a
10:03:07AM 3 the core of his role. And that is what is at the core of
10:03:18AM 6 What the court said there was a teacher doesn't stop
10:03:25AM 8 coach doesn't stop being a coach when the whistle blows.
10:03:40AM 11 What the Johnson court said -- in this last one here,
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
10:04:39AM 1 teenage boy, who is the more towering figure, his football
10:04:52AM 4 life.
10:05:04AM 7 doing with our students: We are buying every bit of your
10:05:15AM 9 are always watching you. You are very important, and
10:05:31AM 13 duties. There isn't some seam in there. There isn't some
10:07:51AM 13 not the law that we have before us. That's my quandary.
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
10:09:44AM 9 are not here on a motion for summary judgment. We are not
10:09:50AM 11 whether you are going to issue that kind of order or what
10:10:18AM 18 points, your Honor. I will start at the end and back up
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
10:11:34AM 14 you are invoking the Lord's blessing for the food, that's
10:12:00AM 18 perspective.
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
10:12:13AM 23 conduct.
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
10:12:30AM 4 Honor.
10:12:36AM 6 look not at whether you are on duty or off duty, but
10:14:10AM 6 respectful, and you want to please your coach to get more
10:14:49AM 10 all that, and dogma. The Golden Rule is about stigma,
10:15:27AM 14 perspective.
10:16:24AM 11 But even if there was, the Ninth Circuit has said the
10:16:42AM 16 stated over and over that the role of the school is to
10:16:58AM 21 The Ninth Circuit has made abundantly clear that the
10:17:04AM 23 instead for the school to simply make clear that private
10:17:14AM 1 may?
10:18:33AM 21 opinion, makes clear that's how the analysis proceeds for
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
10:21:51AM 17 rule between when you are on duty and when you are off
10:22:13AM 23 responsibilities.
10:23:13AM 12 all stand on the facts presented before me. When I finish
10:23:51AM 18 revered to men and women, boys and girls. That's one of
10:24:21AM 21 With all due respect, the coach is more important to the
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.
10:25:44AM 18 THE COURT: But all the other cases, the free
10:27:09AM 8 answer says that it does not know whether Coach Kennedy
10:27:41AM 16 district made very clear that Coach Kennedy was to have no
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
10:28:12AM 25 think, your Honor, is simply meritless. The law does not
10:28:34AM 6 exactly what the district has done here. This whole
10:29:02AM 14 the field. The district has ample tools at its disposal
10:29:39AM 24 If you want to say something about anything else, you have
10:30:29AM 13 could make, that there is some rule that says all public
10:30:36AM 15 public employees. That is not what the case law is about.
10:30:46AM 18 much more varied. Johnson doesn't deal with all public
10:31:15AM 24 about the factual basis of what teachers do, and then it
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
10:32:01AM 12 test, but it is also a location test. And then, even more
10:32:50AM 4 it.
10:33:09AM 10 But they do that now. They still have to watch the
10:33:15AM 12 you, fights break out then sometimes, and we really had to
10:33:24AM 14 He's got his coaching gear on, he's got his students
10:33:43AM 18 the whole package up. We are not saying that at all.
10:33:55AM 22 to put this picture up, your Honor. When we are talking
10:34:30AM 3 Clause.
10:34:54AM 10 court.
10:35:05AM 14 is kneel on his own at the 50-yard line." But in the same
10:35:16AM 17 him."
10:35:17AM 18 The school can't, and doesn't want to, stop students
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
10:35:58AM 7 Honor.
10:36:12AM 14 But the district on one hand says, "We are not
10:36:21AM 17 employees.
10:36:34AM 21 respectfully, your Honor, that is just not what Lane and
10:37:12AM 7 quite the opposite, your Honor. The district was wholly
10:38:07AM 21 and the oral presentations that were made here today.
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
10:40:00AM 15 the state would have taken the adverse employment action
10:40:05AM 16 even absent the protected speech: No. This is the reason
10:40:35AM 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
10:41:10AM 22 because they love the kids, they love the sport, they love
10:41:31AM 25 a time and event when the season is ten games, or nine
10:42:27AM 6 was still responsible for the conduct of his students, his
10:43:51AM 15 law.
10:44:30AM 21 recess.
22 (Proceedings concluded.)
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1 C E R T I F I C A T E
8 above-entitled matter.
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12 _________________
/s/ Barry Fanning
13 Barry Fanning, Court Reporter
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