                  Cite as: 586 U. S. ____ (2019)             1

                      ALITO, J., concurring
                     Statement   of ALITO, J.

SUPREME COURT OF THE UNITED STATES
         JOSEPH A. KENNEDY v. BREMERTON
                SCHOOL DISTRICT
   ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
    STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
              No. 18–12. Decided January 22, 2019

   The petition for a writ of certiorari is denied.
   Statement of JUSTICE ALITO, with whom JUSTICE
THOMAS, JUSTICE GORSUCH, and JUSTICE KAVANAUGH
join, respecting the denial of certiorari.
   I concur in the denial of the petition for a writ of certio-
rari because denial of certiorari does not signify that the
Court necessarily agrees with the decision (much less the
opinion) below. In this case, important unresolved factual
questions would make it very difficult if not impossible at
this stage to decide the free speech question that the
petition asks us to review.
                              I
   Petitioner Joseph Kennedy claims that he lost his job as
football coach at a public high school because he engaged
in conduct that was protected by the Free Speech Clause
of the First Amendment. He sought a preliminary injunc-
tion awarding two forms of relief: (1) restoration to his job
and (2) an order requiring the school to allow him to pray
silently on the 50-yard line after each football game. The
latter request appears to depend on petitioner’s entitle-
ment to the first—to renewed employment—since it seems
that the school would not permit members of the general
public to access the 50-yard line at the relevant time.
   The key question, therefore, is whether petitioner
showed that he was likely to prevail on his claim that the
termination of his employment violated his free speech
rights, and in order to answer that question it is necessary
2          KENNEDY v. BREMERTON SCHOOL DIST.

                      ALITO, J., concurring
                     Statement   of ALITO, J.

to ascertain what he was likely to be able to prove re-
garding the basis for the school’s action. Unfortunately,
the answer to this second question is far from clear.
   On October 23, 2015, the superintendent wrote to peti-
tioner to explain why the district found petitioner’s con-
duct at the then-most recent football game to be unac-
ceptable. And in that letter, the superintendent gave two
quite different reasons: first, that petitioner, in praying on
the field after the game, neglected his responsibility to
supervise what his players were doing at that time and,
second, that petitioner’s conduct would lead a reasonable
observer to think that the district was endorsing religion
because he had prayed while “on the field, under the game
lights, in BHS-logoed attire, in front of an audience of
event attendees.” 869 F. 3d 813, 819 (CA9 2017). After
two subsequent games, petitioner again kneeled on the
field and prayed, and the superintendent then wrote to
petitioner, informing him that he was being placed on
leave and was forbidden to participate in any capacity in
the school football program. The superintendent’s letter
reiterated the two reasons given in his letter of October
23. And the district elaborated on both reasons in an
official public statement explaining the reasons for its
actions.
   When the case was before the District Court, the court
should have made a specific finding as to what petitioner
was likely to be able to show regarding the reason or
reasons for his loss of employment. If the likely reason
was simply petitioner’s neglect of his duties—if, for exam-
ple, he was supposed to have been actively supervising the
players after they had left the field but instead left them
unsupervised while he prayed on his own—his free speech
claim would likely fail. Under those circumstances, it
would not make any difference that he was praying as
opposed to engaging in some other private activity at that
time. On the other hand, his free speech claim would have
                 Cite as: 586 U. S. ____ (2019)            3

                     ALITO, J., concurring
                    Statement   of ALITO, J.

far greater weight if petitioner was likely to be able to
establish either that he was not really on duty at the time
in question or that he was on duty only in the sense that
his workday had not ended and that his prayer took place
at a time when it would have been permissible for him to
engage briefly in other private conduct, say, calling home
or making a reservation for dinner at a local restaurant.
   Unfortunately, the District Court’s brief, informal oral
decision did not make any clear finding about what peti-
tioner was likely to be able to prove. Instead, the judge’s
comments melded the two distinct justifications:
    “He was still in charge. He was still on the job. He
    was still responsible for the conduct of his students,
    his team. . . . And a reasonable observer, in my judg-
    ment, would have seen him as a coach, participating,
    in fact leading an orchestrated session of faith . . . .”
    App. to Pet. for Cert. 89.
   The decision of the Ninth Circuit was even more impre-
cise on this critical point. Instead of attempting to pin-
point what petitioner was likely to be able to prove regard-
ing the reason or reasons for his loss of employment, the
Ninth Circuit recounted all of petitioner’s prayer-related
activities over the course of several years, including con-
duct in which he engaged as a private citizen, such as
praying in the stands as a fan after he was suspended
from his duties.
   If this case were before us as an appeal within our
mandatory jurisdiction, our clear obligation would be to
vacate the decision below with instructions that the case
be remanded to the District Court for proper application of
the test for a preliminary injunction, including a finding
on the question of the reason or reasons for petitioner’s
loss of employment. But the question before us is differ-
ent. It is whether we should grant discretionary review,
and we generally do not grant such review to decide highly
4          KENNEDY v. BREMERTON SCHOOL DIST.

                      ALITO, J., concurring
                     Statement   of ALITO, J.

fact-specific questions. Here, although petitioner’s free
speech claim may ultimately implicate important constitu-
tional issues, we cannot reach those issues until the factual
question of the likely reason for the school district’s con-
duct is resolved. For that reason, review of petitioner’s
free speech claim is not warranted at this time.
                               II
   While I thus concur in the denial of the present petition,
the Ninth Circuit’s understanding of the free speech rights
of public school teachers is troubling and may justify
review in the future.
   The Ninth Circuit’s opinion applies our decision in
Garcetti v. Ceballos, 547 U. S. 410 (2006), to public school
teachers and coaches in a highly tendentious way. Accord-
ing to the Ninth Circuit, public school teachers and coaches
may be fired if they engage in any expression that the
school does not like while they are on duty, and the Ninth
Circuit appears to regard teachers and coaches as being on
duty at all times from the moment they report for work to
the moment they depart, provided that they are within the
eyesight of students. Under this interpretation of Garcetti,
if teachers are visible to a student while eating lunch, they
can be ordered not to engage in any “demonstrative” con-
duct of a religious nature, such as folding their hands or
bowing their heads in prayer. And a school could also
regulate what teachers do during a period when they are
not teaching by preventing them from reading things that
might be spotted by students or saying things that might
be overheard.
   This Court certainly has never read Garcetti to go that
far. While Garcetti permits a public employer to regulate
employee speech that is part of the employee’s job duties,
we warned that a public employer cannot convert private
speech into public speech “by creating excessively broad
job descriptions.” Id., at 424. If the Ninth Circuit contin-
                 Cite as: 586 U. S. ____ (2019)           5

                     ALITO, J., concurring
                    Statement   of ALITO, J.

ues to apply its interpretation of Garcetti in future cases
involving public school teachers or coaches, review by this
Court may be appropriate.
   What is perhaps most troubling about the Ninth Cir-
cuit’s opinion is language that can be understood to mean
that a coach’s duty to serve as a good role model requires
the coach to refrain from any manifestation of religious
faith—even when the coach is plainly not on duty. I hope
that this is not the message that the Ninth Circuit meant
to convey, but its opinion can certainly be read that way.
After emphasizing that petitioner was hired to “communi-
cate a positive message through the example set by his
own conduct,” the court criticized him for “his media ap-
pearances and prayer in the BHS bleachers (while wear-
ing BHS apparel and surrounded by others).” 869 F. 3d,
at 826. This conduct, in the opinion of the Ninth Circuit,
“signal[ed] his intent to send a message to students and
parents about appropriate behavior and what he values as
a coach.” Ibid. But when petitioner prayed in the bleach-
ers, he had been suspended. He was attending a game
like any other fan. The suggestion that even while off
duty, a teacher or coach cannot engage in any outward
manifestation of religious faith is remarkable.
                             III
   While the petition now before us is based solely on the
Free Speech Clause of the First Amendment, petitioner
still has live claims under the Free Exercise Clause of the
First Amendment and Title VII of the Civil Rights Act of
1964. See Brief in Opposition 11, n. 1. Petitioner’s deci-
sion to rely primarily on his free speech claims as opposed
to these alternative claims may be due to certain decisions
of this Court.
   In Employment Div., Dept. of Human Resources of Ore.
v. Smith, 494 U. S. 872 (1990), the Court drastically cut
back on the protection provided by the Free Exercise
6         KENNEDY v. BREMERTON SCHOOL DIST.

                     ALITO, J., concurring
                    Statement   of ALITO, J.

Clause, and in Trans World Airlines, Inc. v. Hardison, 432
U. S. 63 (1977), the Court opined that Title VII’s prohibi-
tion of discrimination on the basis of religion does not
require an employer to make any accommodation that
imposes more than a de minimis burden. In this case,
however, we have not been asked to revisit those
decisions.
