Respondents Brief — Joseph A. Kennedy, Petitioner v. Bremerton School District
Supreme Court briefDec 7, 2021
Ask Donna
What actually matters in this document.
Text
No. 21-418
In the Supreme Court of the United States
JOSEPH A. KENNEDY,
Petitioner,
v.
BREMERTON SCHOOL DISTRICT,
Respondent.
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Ninth Circuit
BRIEF FOR THE RESPONDENT
IN OPPOSITION
MICHAEL B. TIERNEY
Tierney, Correa &
Zeinemann, P.C.
2737 77th Ave. SE,
Ste. 204
Mercer Island,
WA 98040
(206) 232-3074
RICHARD B. KATSKEE
Counsel of Record
BRADLEY GIRARD
Americans United for
Separation of Church
and State
1310 L St. NW, Ste. 200
Washington, DC 20005
(202) 466-3234
katskee@au.org
Counsel for Respondent
i
QUESTIONS PRESENTED
Misdescribing or ignoring the facts in the record,
the petition raises the purely hypothetical question
whether a public-school employee ever has any right
to pray alone, quietly and privately, if students might
happen to see him. The actual questions presented
are:
1. Did petitioner, who has conceded that he was
on duty, deliver his midfield prayers to students in his
capacity as a high-school coach?
2. Was respondent constitutionally required to capitulate to petitioner’s demand to resume his yearslong practice of praying with students on the 50-yard
line at football games, or was it entitled to accommodate his religious exercise in alternative ways that respected the beliefs of students and their families?
ii
TABLE OF CONTENTS
Page
Questions Presented ................................................... i
Table of Authorities................................................... iii
Introduction .................................................................1
Statement ....................................................................3
Reasons for Denying the Petition ............................. 17
I. This case is an exceedingly poor vehicle for
further review. ..................................................... 17
A. The case does not present the questions
that the petition poses. ................................... 17
B. To grant Kennedy relief, the Court
would have to overturn decades of law
under multiple First Amendment
clauses. ............................................................ 19
II. The rulings here do not conflict with
decisions of this Court or any other. ................... 21
A. The decision does not conflict with this
Court’s precedents. ......................................... 21
1. Government Speech ................................... 21
2. Establishment Clause ................................ 25
B. There is no circuit split................................... 31
1. Government Speech ................................... 31
2. Establishment Clause ................................ 33
Conclusion ................................................................. 35
iii
TABLE OF AUTHORITIES
Page(s)
CASES
Ahern v. Board of Educ.,
456 F.3d 399 (8th Cir. 1972) ............................... 31
Bishop v. Aronov,
926 F.2d 1066 (11th Cir. 1991) ........................... 31
Board of Educ. v. Mergens,
496 U.S. 226 (1990) ................................. 27, 28, 29
Borden v. Sch. Dist.,
523 F.3d 153 (3d Cir. 2008) .............. 31, 32, 33, 34
Boring v. Buncombe Cnty. Bd. of Educ.,
136 F.3d 364 (4th Cir. 1998) (en banc) ............... 31
Boulton v. Swanson,
795 F.3d 526 (6th Cir. 2015) ............................... 33
Bradley v. Pittsburgh Bd. of Educ.,
910 F.2d 1172 (3d Cir. 1990) .............................. 31
Bradley v. West Chester Univ.,
880 F.3d 643 (3d Cir.),
cert. denied, 139 S. Ct. 167 (2018)...................... 31
Brammer-Hoelter v. Twin Peaks
Charter Acad.,
492 F.3d 1192 (10th Cir. 2007) ........................... 32
Brown v. Armenti,
247 F.3d 69 (3d Cir. 2001) .................................. 31
Carollo v. Boria,
833 F.3d 1322 (11th Cir. 2016) ........................... 33
Cary v. Board of Educ.,
598 F.2d 535 (10th Cir. 1979) ............................. 31
Chrzanowski v. Bianchi,
725 F.3d 734 (7th Cir. 2013) ......................... 32, 33
iv
TABLE OF AUTHORITIES—continued
Page(s)
Dambrot v. Central Mich. Univ.,
55 F.3d 1177 (6th Cir. 1995) ......................... 31, 32
Doe v. Duncanville Indep. Sch. Dist.,
70 F.3d 402 (5th Cir. 1995) ................................. 34
Downs v. Los Angeles Unified Sch. Dist.,
228 F.3d 1003 (9th Cir. 2000) ............................. 31
Edwards v. Aguillard,
482 U.S. 578 (1987) ....................................... 25, 28
Edwards v. California Univ. of Pa.,
156 F.3d 488 (3d Cir. 1998) .......................... 31, 32
Evans-Marshall v. Board of Educ.,
624 F.3d 332 (6th Cir. 2010) ............................... 31
Flora v. County of Luzerne,
776 F.3d 169 (3d Cir. 2015) ................................ 33
Freshwater v. Mount Vernon City
Sch. Dist. Bd. of Educ.,
1 N.E.3d 335 (Ohio 2013).................................... 34
Garcetti v. Ceballos,
547 U.S. 410 (2006) ................................. 12, 22, 24
Good News Club v. Milford Cent. Sch.,
533 U.S. 98 (2001) ............................................... 28
Grossman v. South Shore Pub. Sch. Dist.,
507 F.3d 1097 (7th Cir. 2007) ............................. 31
Hunter v. Town of Mocksville,
789 F.3d 389 (4th Cir. 2015) ............................... 32
Hysong v. School Dist.,
30 A. 482 (Pa. 1894) ............................................ 34
Jager v. Douglas Cnty. Sch. Dist.,
862 F.2d 824 (11th Cir. 1989) ............................. 34
v
TABLE OF AUTHORITIES—continued
Page(s)
Johnson v. Poway Unified Sch. Dist.,
658 F.3d 954 (9th Cir. 2011) ............................... 31
Kirkland v. Northside Indep. Sch. Dist.,
890 F.3d 794 (5th Cir. 1989) ............................... 31
Lacks v. Ferguson Reorganized Sch. Dist. R-2,
147 F.3d 718 (8th Cir. 1998) ............................... 31
Lamb’s Chapel v. Center Moriches
Union Free Sch. Dist.,
508 U.S. 384 (1993) ............................................. 28
Lane v. Franks,
573 U.S. 228 (2014) ....................................... 22, 23
Lee v. York Cnty. Sch. Div.,
484 F.3d 687 (4th Cir. 2007) ............................... 31
Lovelace v. Southeastern Mass. Univ.,
793 F.2d 419 (1st Cir. 1986) ............................... 32
Marchi v. Board of Coop. Educ. Servs.,
173 F.3d 469 (2d Cir. 1999) ................................ 29
Martin v. Blessing,
571 U.S. 1040 (2013) ........................................... 20
Mayer v. Monroe Cnty. Cmty. Sch. Corp.,
474 F.3d 477 (7th Cir. 2007) ......................... 31, 32
Miles v. Denver Pub. Schs.,
944 F.3d 773 (10th Cir. 1991) ............................. 31
Palmer v. Board of Educ.,
603 F.2d 1271 (7th Cir. 1979) ............................. 31
Pickering v. Board of Educ.,
391 U.S. 563 (1968) ............................................. 22
Rayborn v. Bossier Par. Sch. Bd.,
881 F.3d 409 (5th Cir. 2018) ............................... 31
vi
TABLE OF AUTHORITIES—continued
Page(s)
Rodgers v. United States,
522 U.S. 252 (1998) ....................................... 19, 20
Rosenberger v. Rector & Visitors,
515 U.S. 819 (1995) ....................................... 22, 28
Santa Fe Indep. Sch. Dist. v. Doe,
530 U.S. 290 (2000) ......................25, 26, 27, 30, 33
Silano v. Sag Harbor Union Free
Sch. Dist. Bd. of Educ.,
42 F.3d 719 (2d Cir. 1994) ................................. 31
Taylor v. Riojas,
141 S. Ct. 52 (2020) ............................................. 17
Warnock v. Archer,
380 F.3d 1076 (8th Cir. 2004) ............................. 34
CONSTITUTION AND LEGISLATIVE MATERIALS
U.S. Const. amend. I ......................................... passim
S. Rep. No. 357, 98th Cong., 2d Sess. (1984) ........... 28
BRIEF FOR THE RESPONDENT IN OPPOSITION
INTRODUCTION
According to petitioner, this case presents two
questions concerning whether a school district may
prevent its employees from ever offering a “solitary,”
“silent or quiet prayer” while at work. Pet. 4, 7. Petitioner calls the court of appeals’ decision on those
questions a “remarkable,” “stunning,” “staggering,”
“radical,” “indefensible,” “egregiously” and “exceptionally wrong” “triple threat” and “outlier” that “obliterated” and “botch[ed] three separate lines of First
Amendment jurisprudence in one fell swoop.” Pet. 1,
17-19, 23, 27, 33. But no amount of purple prose can
change that petitioner’s conduct was never as the petition describes it; the School District never imposed
the restrictions that the petition asserts; and the court
of appeals never addressed the grand questions of legal doctrine that the petition insists—much less did it
repudiate all existing First Amendment jurisprudence. The questions posed in the petition are perhaps
interesting ones, but in this case they are merely hypothetical.
Here is what actually happened: For more than
seven years, Joseph Kennedy—a public-school football coach—delivered prayers to players on the 50yard line while on duty at the end of games. ER107,
113-114, 356-357; SER498. 1 He was often surrounded
by students, and he invited opposing coaches to join.
ER107, 133-134, 357. When the District learned what
was going on, it recognized that the practice could be
ER refers to the excerpts of record (ECF 14) and SER refers to
the supplemental excerpts of record (ECF 27) filed in the court of
appeals.
1
2
coercive. ER107-109. Indeed, the District later heard
from players’ parents that their children felt “compelled to participate.” ER379-380; see also SER517.
The District offered Kennedy time and space to
pray before and after games, in the press box or elsewhere that Kennedy would not be surrounded by the
team. ER99-100. It tried repeatedly to accommodate
his desire to “exercise his fundamental religious freedoms” (ER253; see ER100) as a means of “honoring
[his] rights” (ER109). And it invited him to suggest
other accommodations that might satisfy him. ER99100, 367.
Kennedy’s only response was a demand from his
lawyers that he be allowed to “continue his practice of
saying a private, post-game prayer on the 50-yard
line.” ER263. But the prayer practice he wanted to
continue hadn’t been private at all: For years, he had
been delivering prayers to the team. ER107, 204. Kennedy then made a series of media appearances announcing his intention to resume his past practice.
SER482, 484-488, 516. And he held more postgame
prayers on the 50-yard line, with students and community members rushing the field to join him, knocking over members of the marching band. ER364-365,
368-370; SER481, 516.
The District thus faced a stark choice: Either let
its employee dictate how school events would be run—
even if that threatened the safety and religious freedom of the students—or take the steps necessary to
curb the practice. The question whether a school employee has the right to a “brief, quiet prayer by himself
while at school” (Pet. i) is entirely beside the point.
This case is about a school district’s authority to protect students when its employee does not work with it
to find a reasonable accommodation.
3
To borrow a word or two from the petition, it
would be truly “staggering” and “radical” for this
Court to grant review on hypothetical questions that
bear no relation to the facts or to the court of appeals’
decision, which correctly applied settled law to those
facts.
STATEMENT
1. Kennedy was an assistant coach for the varsity
football team and head coach of the junior-varsity
team at Bremerton High School. ER111. He held a
one-year term position subject to renewal on reapplication at the end of each school year. SER531-532.
For more than seven years, Kennedy delivered
prayers to students. ER107, 113-114, 356-357;
SER498. To begin with, he prayed on the 50-yard line
at the end of games and participated in pregame and
postgame locker-room prayers. ER113-114, 380. Next,
he began allowing students on the team to join his onfield prayers. ER113. Then, he began standing, holding up the helmets from both teams, and delivering
“motivational” “prayers” to the players (ER114, 209,
293, 361; SER498), with kneeling Bremerton players
surrounding him (ER299). Sometimes, players from
the opposing team joined also. ER107, 113, 356-357.
4
SER498 (arrow added).
The District learned of Kennedy’s prayer practice
in September 2015, when a coach from another school
told Bremerton’s principal that Kennedy “had asked
him and his team to join [Kennedy] and [the Bremerton] team * * * after their game to pray last season.”
ER133-134. At the September 11 game, Bremerton’s
athletic director, now understanding that Kennedy’s
postgame speeches to the players were prayers, shook
his head in disapproval when he saw Kennedy deliver
one. ER201-203. That evening, Kennedy posted on Facebook: “I think I just might have been fired for praying.” ER203. His posting led to an “explosion in calls
and emails” to the District. ER236.
The District therefore investigated whether Kennedy’s conduct violated its policies. ER299. In that inquiry, Kennedy confirmed that, “among others, coaching staff from other teams were invited to join in his
post-game prayer.” ER253. The District also ultimately learned from a player’s father that his son felt
“compelled to participate” because he feared that he
5
otherwise “wouldn’t get to play as much.” ER379. And
other players’ parents reported that their children
had “participated in the team prayers only because
they did not wish to separate themselves from the
team.” SER517.
On September 17, Superintendent Aaron Leavell
wrote to inform Kennedy that he was “free to engage
in religious activity, including prayer, so long as it
does not interfere with [his] job responsibilities.”
ER107-109. Leavell instructed that Kennedy’s prayers while on duty should be “physically separate from
any student activity, and students may not be allowed
to join such activity.” ER109. Leavell clarified that
Kennedy’s prayers “should either be non-demonstrative (i.e., not outwardly discernible as religious activity) if students are also engaged in religious conduct,
or [they] should occur while students are not engaging
in such conduct.” ER109 (emphasis added). In other
words, Kennedy could pray, including where students
could see him, but he should not deliver prayers to or
pray with students at school activities, because that
could cause “alienation” of “team member[s]” who did
not wish to participate. ER109. Acknowledging that
these instructions might not cover every scenario,
Leavell encouraged Kennedy to raise any questions
with his superiors or with Leavell himself. ER109.
Kennedy initially complied: On September 18, his
postgame speech to the team was nonreligious.
SER426. He returned to the field to pray after the
crowd departed, which was acceptable to the District.
SER426-427. To the District’s knowledge, Kennedy refrained, for approximately a month, from holding
6
prayers at the games. SER430, 432-433. 2 No players
visibly prayed on the field when Kennedy was not initiating the prayers. SER517.
2. On October 14, Kennedy’s attorneys sent the
District a letter declaring that, beginning “on October
16,” Kennedy would “continue his practice of saying a
private, post-game prayer at the 50-yard line,” and
they demanded that the District “rescind the directive” in its September 17 letter. ER263; see generally ER258-263. Counsel described Kennedy’s prayers
as “verbal” and “audibl[e]” (ER259) and asserted that
students had the right to join (ER262-263). (After remand, Kennedy testified: “I wasn’t going to stop my
prayer because there was kids around me.” ER363364.) Counsel’s letter also asserted that Kennedy had
never invited anyone to join in his prayers, that Kennedy did not close them with the word “amen,” and
that Kennedy was praying “after his official duties as
a coach have ceased.” ER259.
Kennedy then made media appearances in which
he announced his plan to hold midfield postgame
prayers on October 16. SER462, 482, 484-488, 516.
The day of the game, the District responded to
Kennedy’s counsel. ER253-256. It first reiterated the
District’s intention to work “in good faith with Mr.
Kennedy” to find a solution acceptable to everyone.
ER253. But the District also explained that Kennedy’s
attorneys “materially misunderst[ood] key facts in
this case.” ER253.
In his January 2016 EEOC complaint, Kennedy described his
actions this way. ER294. In his 2019 deposition he instead said
that he prayed midfield at every game except on September 18.
ER217-219.
2
7
With respect to counsel’s assertions that Kennedy
had not concluded the prayers with “amen” or invited
others to join, the District explained that “the opposite
was true”: Kennedy had invited, “among others,” opposing coaches “to join his post-game prayer” (ER253;
see ER133-134); and a video from the September 14
game showed Kennedy closing the prayer with “amen”
(ER253). The District also explained that Kennedy’s
prayers occurred not “on his own time” but instead
while he “remain[ed] on duty.” ER254 (emphasis omitted). The District noted that its “expectation” to remain on duty “until the players have * * * depart[ed]
the District-sponsored activity” was “clearly understood by all coaches,” and that school functions “encompassed all of the pre-game preparation and postgame activities.” ER254. (After remand, Kennedy conceded that he was on duty during the prayers. ER359.)
As he had announced, Kennedy resumed having
prayers at the October 16 game, surrounded by players bowing their heads and by a crush of spectators
who ran onto the field to join him—including students, a state legislator, and members of the press.
ER364-365; SER481, 516.
8
SER481 (arrow added).
Spectators “jumped over the fence” to reach the
field and people tripped over cables and fell. ER378.
School band members were knocked over. SER516. In
the commotion, the District was unable to “keep kids
safe.” ER378. The District later “received complaints
from parents of students who had been knocked down
in the stampede.” Pet. App. 9.
Meanwhile, “District personnel received hateful
communications from some members of the public,
and some [District] personnel felt physically threatened.” Pet. App. 2; see SER513. Bremerton’s head varsity football coach, Nathan Gillam, became concerned
about his own safety and that of the players, cheerleaders, and band members. SER521-522. Among
other incidents at games, “an adult [Gillam] had never
seen before came up to [Gillam’s] face and cursed
[him] in a vile manner.” SER521-522. The environment was so heated that Gillam, speaking to an offduty police officer while walking onto the field for a
9
game, expressed fear that he “could be shot from the
crowd.” SER522.
Additionally, after the October 16 game, a Satanist group notified the District that it intended to conduct religious ceremonies on the field after games if
others were allowed to do so (SER516); and other
groups requested access to the field also (SER427).
The District therefore took several measures to
protect students’ safety, maintain control over its facilities and activities, and prevent the football field
from becoming a forum for use by outside groups: It
placed robocalls to inform District parents that there
was no public access to the field; it posted signs saying
the same thing; and it arranged for the Bremerton Police to provide security and keep spectators from rushing the field. SER516.
3. On October 23, Superintendent Leavell wrote to
Kennedy again. ER98-100. He reiterated unequivocally that Kennedy’s religious exercise “can and will
be accommodated” as long as it did not interfere with
Kennedy’s performance of his job duties and would not
be perceived as the District’s endorsement of religion.
ER99. The letter instructed Kennedy to stop his public
prayer practice, which was observable to students and
everyone else while Kennedy was “still on duty” at the
games. ER99. Leavell explained that, given the context, “any reasonable observer” would view Kennedy
as acting in his official role as a District employee.
ER99. Leavell offered Kennedy a variety of accommodations, including “a private location within the
school building, athletic facility or press box” to pray
before and after games; and he invited Kennedy to
contact him directly to discuss other potential accommodations. ER100. Additionally, Bremerton’s principal told Kennedy that he could return to the field to
10
pray after the students were gone (ER378), as Kennedy had done in September (SER426-427).
Kennedy did not respond to the District’s October
16 or October 23 letters. ER367; SER515. Instead, his
lawyers alerted the media that the only acceptable
outcome would be for the District to permit him to continue his past prayer practice (ER321), echoing counsel’s October 14 demand letter.
On October 23, Kennedy prayed midfield at the
end of a varsity away game. ER381, 404. He did so
again at the junior-varsity home game on October 26,
joined by a group that included two state legislators,
two school-aged children, and other community members. ER368-370; SER479. The opposing team’s coach,
presumably concerned about coach-led prayer, instructed his players not to join. ER381.
On October 28, the District wrote to Kennedy a
fourth time. ER277. Noting Kennedy’s continued violations of the District’s directives, Superintendent
Leavell placed him on paid administrative leave.
ER277. Leavell reiterated, however, that “the District
remains willing to discuss ways of accommodating
your private religious exercise”; and he again encouraged Kennedy to “contact me if you wish to discuss the
options I have previously identified, or any other options you may have in mind.” ER277.
Kennedy testified on remand that he “didn’t
doubt” the superintendent’s “sincerity” and understood him to be “working very hard” to develop a suitable accommodation. ER367. Yet Kennedy never responded and never suggested any acceptable accommodations. Nor did he deviate from the October 14 demand that the District rescind in its entirety its
11
September 17 guidance and allow Kennedy to “continue his practice” of “audibly” praying with students
on the field after games. ER259, 263; SER515. Superintendent Leavell understood that “Kennedy had specifically expressed his intention to pray with students
on the field.” SER515. “At no point” “did Mr. Kennedy
or his representatives ever modify” this demand
(SER515)—that is, he never asked to pray silently and
alone.
While on administrative leave, Kennedy attended
games as a spectator and knelt to pray in the stands,
joined by others. SER475. The District did nothing to
stop him. For the remainder of the season, the District
enforced its policy against having spectators on the
field after games. SER516. No players had postgame
prayers on the field once Kennedy was no longer initiating them. SER517. Players and their parents
thanked the District for putting an end to “awkward
situations where they did not feel comfortable declining to join with the other players in Mr. Kennedy’s
prayers.” SER526.
When Kennedy’s contract expired at the end of the
season, he did not reapply to coach the following year.
SER532. 3 Head coach Gillam also did not reapply, be-
Though the petition (at i) contends that “the school district ultimately agreed * * * that Kennedy lost his job solely because of
his religious expression,” not only did Kennedy not lose his job—
rather than take the District up on its ongoing offer to accommodate him, he did not reapply for the next year—but the District’s
position has always been that it acted to maintain order and ensure students’ safety at school events, to keep from having its
field and games become a public forum, and to respect students’
and their families’ religious beliefs and comply with the law. See,
e.g., SER467, 516-517; Pet. App. 75-76.
3
12
cause of the “negative,” “unsafe situation” that Kennedy’s actions had created. SER522. Gillam “consider[ed] it a great personal loss” to have to “withdraw
from the program and student-athletes he had been
devoted to for eleven years.” SER522.
4. In January 2016, Kennedy filed an EEOC complaint, which described his practice as evolving from
silent prayers to “audible” ones joined by a “majority
of the team.” ER293.
Kennedy commenced this action in the Western
District of Washington just before the start of the next
football season and moved for a preliminary injunction. ER416-417. Denying that motion, the district
court found it particularly salient that Kennedy had
used his influence as a coach to convey religious views
while “in charge” and “on the job.” Pet. App. 303.
Kennedy appealed, and the court of appeals affirmed. Pet. App. 214-266. It concluded under Garcetti
v. Ceballos, 547 U.S. 410 (2006), that Kennedy had delivered his prayers as a public employee and that the
District could therefore regulate his speech. Pet. App.
228-247.
Kennedy petitioned for a writ of certiorari, which
this Court denied. Pet. App. 207. Justice Alito issued
a statement respecting the denial. Pet. App. 207-213.
He noted that the Court generally does not grant discretionary review “to decide highly fact-specific questions.” Pet. App. 210-211. He also criticized the district court for not making a “specific finding” on why
Kennedy was placed on administrative leave (Pet.
App. 209-210), questioned the scope of what the court
of appeals considered to be “on duty” (Pet. App. 211),
and expressed concern about whether the panel opinion could “be understood to mean that a coach’s duty
13
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” (Pet. App. 212).
5. The proceedings on remand answered those
concerns.
As to whether Kennedy was on duty while praying, he himself testified that his “football coaching
functions” continued “until the last kid leaves.”
ER359. Superintendent Leavell agreed that Kennedy
“remained on duty and responsible for the supervision
of the football players until they were dismissed from
the locker room after the game.” SER516. And the District had always maintained that Kennedy’s speeches
to the team were part of his job. See ER109, 254.
On summary judgment, the district court made
the “specific finding” (Pet. App. 209) that the School
District justifiably placed Kennedy on leave based on
“the risk of constitutional liability associated with
[his] religious conduct” (Pet. App. 140, 153-160).
The court of appeals unanimously affirmed. Pet.
App. 1-39. The court, per Judge Milan Smith Jr., reiterated that there was now “no dispute” that Kennedy
was on the job when he held the prayers. Pet. App. 15.
The court also affirmed that Kennedy was speaking as
a school official, not as a private citizen, when he delivered his “post-game speeches to students on the
field”—i.e., his motivational prayers. Pet. App. 15; see
SER498. So Kennedy’s free-speech claim failed. Pet.
App. 15.
Addressing Justice Alito’s concern that the panel
the first time around might have overread Garcetti to
apply “even when the coach is plainly not on duty”
(Pet. App. 212), the court explained that it had looked
at Kennedy’s off-duty conduct solely to “bolster[] the
14
already strong inference” that Kennedy intended “to
send a message to students and parents about appropriate behavior and what he values as a coach, in line
with his job duties of demonstrative communication
as a role model for players.” Pet. App. 16 (internal quotation marks omitted). In other words, Kennedy’s offduty conduct illuminated how he himself understood
his on-duty conduct—and what he meant for students
to understand about it. The court underscored that
Kennedy’s on-the-job actions at the games—not any
off-field activities—were the “touchstone” of its analysis that “Kennedy spoke as a government employee.”
Pet. App. 16-17.
The court also ruled in the alternative that even if
Kennedy’s prayers had been private speech, the District had ample justification to regulate them on the
particular facts here. Pet. App. 17-23. It concluded
that Kennedy’s free-exercise claim merited strict scrutiny, but that the District had a compelling interest in
not violating the Establishment Clause and that its
actions were narrowly tailored because Kennedy refused the District’s repeated attempts to accommodate his prayers. Pet. App. 23-25.
Judge Christen, joined by Judge Dorothy Nelson,
filed a concurrence (Pet. App. 30-39) that further detailed the specific facts supporting the court’s conclusions. She explained that Kennedy’s counsel’s argument that the District’s policy “would prohibit a
teacher from giving thanks at lunchtime or engaging
in any other personal prayer while on duty” was not
supported by the record. Pet. App. 37. She also explained that the District “consistently sought to accommodate Kennedy’s religious exercise without running afoul of the Establishment Clause.” Pet. App. 3738.
15
6. The court denied rehearing en banc. Pet. App.
40-129. Four dissents from (or statements opposing)
denial and two statements in support were filed.
In opposition, Judge O’Scannlain stated his view
that Kennedy’s prayers were private. Pet. App. 77106. Judge Ikuta, though recognizing that “Kennedy’s
highly public demonstrations of his religious convictions put Bremerton * * * in a no-win situation” (Pet.
App. 107), expressed the view that circuit law should
be clarified (Pet. App. 106-110). Judge Ryan Nelson
argued that the panel misapplied precedent and
strayed from the First Amendment’s original meaning. Pet. App. 110-128. And Judge Collins criticized
the panel’s Establishment Clause reasoning. Pet. App.
129.
Judge Christen filed a statement explaining that
on the “particular facts and circumstances” in the record, “there [was] no genuine dispute that Coach Kennedy spoke as a public employee.” Pet. App. 70. She
also detailed the “uncontroverted evidence that Coach
Kennedy’s prayerful speech had a coercive effect on
his players.” Pet. App. 71. And she explained that the
“suggestion that [the District] could have issued a
public disclaimer” that the prayers were private,
while “allow[ing] Kennedy to continue,” was “untenable” because the District “would have had to permit
access” to other groups, opening the field as a public
forum. Pet. App. 75-76. Because Kennedy’s “hypothetical scenarios” of quiet, solitary prayer bore “little resemblance” to “[t]he actual record,” she explained, this
was not a “close case[].” Pet. App. 76.
Judge Milan Smith, author of the panel opinion,
further clarified:
16
Kennedy was never disciplined * * * for offering silent, private prayers. In fact, the record
shows clearly that Kennedy * * * added an increasingly public and audible element to his
prayers over the next approximately seven
years before the Bremerton School District
(BSD) leadership became aware that he had
invited the players and a coach from another
school to join him and his players in prayer at
the fifty-yard line after the conclusion of a
football game. He was disciplined only after
BSD tried in vain to reach an accommodation
with him after he (in a letter from his counsel)
demanded the right to pray in the middle of
the football field immediately after the conclusion of games while the players were on the
field, and the crowd was still in the stands.
* * * Kennedy prayed out loud in the middle of
the football field immediately after the conclusion of the first game after his lawyer’s letter
was sent, surrounded by players, members of
the opposing team, parents, a local politician,
and members of the news media with television cameras recording the event, all of whom
had been advised of Kennedy’s intended actions through the local news and social media.
Pet. App. 41-42.
Judge Smith warned of “the Siren song of a deceitful narrative of this case spun by counsel for Appellant, to the effect that Joseph Kennedy * * * was disciplined for holding silent, private prayers.” Pet. App.
41.
17
REASONS FOR DENYING THE PETITION
On this record, the court’s rulings were commonplace, fact-bound applications of settled precedents
that are not in tension with decisions of this Court or
any other. And they were correct. By contrast, Kennedy’s preferred result would require this Court to
overturn decades of settled law under both the Free
Speech and Establishment Clauses.
This Court has “well-known criteria for granting
review, and they are not met here.” Taylor v. Riojas,
141 S. Ct. 52, 55 (2020) (Alito, J., concurring in the
judgment). Whatever this Court’s interest may be in
the questions posed by the petition, they are entirely
hypothetical.
I.
This case is an exceedingly poor vehicle for
further review.
A. The case does not present the questions
that the petition poses.
The petition insists that this case is about Kennedy’s “brief, quiet prayer by himself.” Pet. i. Except
for “prayer,” every word of that description is wrong.
The petition says that Kennedy’s prayer lasted
“approximately 15 to 30 seconds.” Pet. 4. But focusing
on the length of each individual prayer elides that the
prayers were a regular “practice” that spanned more
than seven years, expanded over time, included prayers both before and after games, and undoubtedly coerced years of Bremerton student-athletes. ER107,
113-114, 356-57, 379; SER498. A football game consists of many separate plays, each of which lasts only
seconds. But a single play doesn’t tell the whole story
of a game, just as ‘a brief prayer’ doesn’t tell the whole
story of Kennedy’s prayer practice.
18
Though taking a half-step back from the dogged
insistence below that the prayers were silent—after
the court of appeals took Kennedy’s counsel to task
because his own demand letter to the District specifically described his prayers as “audible” (Pet. App. 9;
see ER259)—the petition now labels them as “silent or
quiet” (Pet. 4). But the motivational speeches—which
Kennedy himself testified were prayers (ER 209)—
“utterly belie his contention” (Pet. App. 19-20). That
Kennedy also sometimes prayed quietly is irrelevant.
He regularly delivered postgame prayers to crowds of
players and others. ER114; see ER 368-370.
The petition also insists that Kennedy prayed “by
himself.” Pet i. Again, the record tells a different story:
Bremerton players often surrounded Kennedy as he
prayed (ER299; SER498); and coaches and players
from opposing teams—and by the end, community
members—joined too (ER107, 113, 356-357, 368-370;
SER498). Indeed, opposing coaches did so at Kennedy’s invitation. ER133-134, 357. That was true both
when Kennedy stood to deliver his postgame motivational prayers (ER203-204, 209, 212) and when he
knelt for prayers (see ER481). And he demanded that
students must be allowed to join. ER263.
Add to all of that the evidence that Kennedy was
repeatedly offered accommodations (see ER97-100,
107-109, 277) that would have allowed him to have the
“brief, quiet prayer by himself” that he insists he was
denied (Pet. i), as well as the District’s repeated invitations to propose other accommodations that would
satisfy him while still respecting students’ and their
families’ religious beliefs (ER99-100, 109, 277). Plus
Kennedy’s testimony that he did not doubt the superintendent’s “sincerity” in “working very hard” to accommodate him. ER367.
19
Though the petition categorizes Kennedy’s prayer
practice as a short, solitary, silent or quiet moment of
personal devotion, that is not what Kennedy actually
did, not what he demanded to “continue” doing
(ER263), and not what the students and the entire
school community experienced. And given the “uncontroverted evidence that Coach Kennedy’s prayerful
speech had a coercive effect on his players” (Pet. App.
70-71), the petition’s characterizations are not what
the district court and court of appeals were asked to
consider. Petitioner urges this Court “to turn a blind
eye to the trajectory of his practice in favor of a segmented view of the evidence * * *. But acceding to
Kennedy’s framing of the record * * * simply does not
tell the whole story.” Pet. App. 22 n.3. Because the petition relies on reimagined facts, it does not and cannot raise substantial legal issues worthy of this
Court’s attention.
B. To grant Kennedy relief, the Court would
have to overturn decades of law under
multiple First Amendment clauses.
The court of appeals’ dual holdings—that the District could regulate Kennedy’s conduct because he
acted as a public-school employee (Pet. App. 14-17)
and that it was entitled to do so under the Religion
Clauses (Pet. App. 17-23)—combine with the factbound nature of the court’s analysis to make this case
an exceptionally poor candidate for further review.
The petition asks this Court to make grand pronouncements that would rewrite settled doctrine under both the Free Speech and Establishment Clauses.
See Part II, infra. But when this Court considers “an
important issue of constitutional law,” it takes pains
not to “decide the question if it has not been cleanly
presented.” Rogers v. United States, 522 U.S. 252, 259
20
(1998) (O’Connor, J., concurring). Here, the court of
appeals made plain that its government-speech and
Establishment Clause holdings independently justified ruling for the District. See Pet. App. 17. So neither holding is “squarely presented” on its own. Rogers, 522 U.S. at 259 (O’Connor, J., concurring). 4
The only way that this Court could avoid sweeping
pronouncements of constitutional law would be to accept Kennedy’s tale about what occurred, and then to
review a mishmash of purported errors. But this
Court is “not a court of error correction.” Martin v.
Blessing, 571 U.S. 1040, 1045 (2013) (statement of
Alito, J., respecting denial of certiorari). In all events,
if the legal issues here are as serious and far-reaching
as the petition asserts—which is doubtful, given that
they do not genuinely arise here, and the petition
identifies no other cases involving them either—future cases presenting each question legitimately and
cleanly will arise. Those would be the occasions to
take them up.
*
*
*
Granting petitioner relief would be a tall order if
the facts were as he says. On this record, it would be
extraordinary.
Yet another line of free-speech jurisprudence is also implicated
and would need to be substantially revised: The court of appeals
acknowledged the District’s interest in preventing the football
field from being converted into a public forum for outside groups
that demanded access equal to Kennedy’s. See Pet. App. 8. To
rule for Kennedy, this Court would have to hold both that the
District inadvertently opened a forum (or allowed Kennedy to do
so), and that it could not close that forum.
4
21
II. The rulings here do not conflict with decisions
of this Court or any other.
Because this case is not about anyone’s “brief,
quiet prayer by himself” (Pet. i) but instead is about a
public-school coach’s demand to continue his yearslong practice of audibly praying with and to students
on the 50-yard line at football games, the court of appeals’ holdings were straightforward and correct:
Kennedy engaged in government speech at the focal
center of a government event that the School District
had authority to direct; and even if Kennedy’s practice
had somehow not qualified as government speech, the
District still had authority and justification to regulate its employee’s conduct because of Establishment
Clause concerns.
To conjure a split, the petition misstates the court
of appeals’ reasoning, misapplies this Court’s precedents, and raises wholly irrelevant law from other jurisdictions. The application of the pertinent law to this
record was consistent with this Court’s precedents
and the decisions of sister circuits.
A. The decision does not conflict with this
Court’s precedents.
The petition criticizes as “radical” and “boundless”
(Pet. 23) the court of appeals’ interpretation of this
Court’s government-speech and Establishment
Clause precedents. It is, however, the petition that
misunderstands those precedents.
1. Government Speech
This Court has long recognized the need to “balance” the free-speech rights of public-school teachers
22
as citizens and the State’s unique “interests as an employer in regulating the speech of its employees.” Pickering v. Board of Educ., 391 U.S. 563, 568 (1968).
a. “The critical question under Garcetti is whether
the speech at issue is itself ordinarily within the scope
of an employee’s duties.” Lane v. Franks, 573 U.S. 228,
240 (2014). When it is, “the Constitution does not insulate” the speech “from employer discipline.” Garcetti, 547 U.S. at 421.
The “speech at issue” (Lane, 573 U.S. at 240) is the
specific speech in which the public employee engages,
not a general category of speech. See Garcetti, 547
U.S. at 414-415, 422. And the “scope of an employee’s
duties” (Lane, 573 U.S. at 240) is not narrowly limited
to the “subject matter” of the speaker’s employment,
but instead includes any speech made “pursuant to
[one’s] duties as a” public employee (Garcetti, 547 U.S.
at 421).
These legal rules reflect a practical consideration:
Government must have some “managerial discretion”
over its employees if it is to maintain control of its operations and functions. Garcetti, 547 U.S. at 423. In
the public schools, that means an educational institution must be able to “regulate the content of what is
or is not expressed” so that it may “convey its own
message” to students. Rosenberger v. Rector & Visitors, 515 U.S. 819, 833 (1995).
b. The court of appeals straightforwardly applied
those rules to determine whether Kennedy’s prayer
practice was that of a “private citizen or public employee.” Pet. App. 13 (internal citation omitted). The
court noted Kennedy’s concession that he was on duty
for the prayers and “until the last kid leaves” (ER359),
and his specific testimony “that his job responsibilities
23
extended” to postgame activities (Pet. App. 17). It also
considered that Kennedy was “clothed with the mantle of one who imparts knowledge and wisdom,” and
that he “repeatedly acknowledged that—and behaved
as if—he was a mentor, motivational speaker, and role
model to students specifically at the conclusion of a
game.” Pet. App. 14-15 (emphasis in original). It determined that Kennedy’s “position encompassed his
post-game speeches to students on the field.” Pet. App.
15. And in light of all of that, it evaluated Kennedy’s
demand that his speech must “occur while players
stood next to him, fans watched from the stands, and
he stood at the center of the football field.” Pet. App.
15; see ER258-263. 5
Petitioner’s attempts to recast the facts notwithstanding, the court correctly recognized the context in
which the School District had to determine whether it
could restrict Kennedy’s on-field religious speeches to
students. That settled the matter under Lane, Garcetti, and Pickering.
c. The petition insists, however, that because the
“‘speech at issue’” was not “‘ordinarily within the
scope of [Kennedy’s] duties,’” it must be categorized as
private. Pet. 19 (quoting Lane, 573 U.S. at 240). In
other words, because Kennedy’s job description did
not list praying as a job duty, his prayers were by definition private speech—whenever, wherever, however, and to whomever he delivered them. To arrive at
In this fact-specific application of the law, the court drew a
careful, principled distinction—not a “strained” one (Pet. 23)—
between Kennedy’s speeches to the team and, for example, the
act of a teacher who bows her head in silent prayer before lunch
in the school cafeteria. Pet. App. 15.
5
24
that conclusion, it is the petition, not the court of appeals, that forsakes any pretense of fidelity to this
Court’s decisions.
First of all, the court of appeals determined, in accordance with Lane and Garcetti, that the speech at
issue was not just “prayer” but the specific “practice”
that “Kennedy insisted” that he be allowed to “continue”—namely, delivering motivational-speech prayers while surrounded by players midfield at football
games. Pet. App. 15, 19 n.1.
And the suggestion that a football coach’s job-related speech is limited to calling plays (Pet. 20) is
frankly silly. Cf. Garcetti, 547 U.S. at 421. Every coach
understands that motivational speeches to the team
and serving as a mentor and role model on the field
“during post-game activities” (ER254) are part of the
job. Kennedy certainly did. See, e.g., ER373 (agreeing
that his behavior is an “example to the kids” “at a
game or at practice”). Petitioner’s own amici underscore the point. See Br. Amicus Coach Tommy Bowden
14-15 (detailing “special relationship” between players and coaches); Br. Amici Former Football Players
Largent & Hennings 8-9 (explaining how influential
coaches are in lives of student-athletes).
Petitioner’s argument is tantamount to saying
that a geometry teacher could be disciplined if she got
the Pythagorean Theorem wrong but not if she converted her classes into partisan political rallies, because her only job was to teach math. And what of
other public employees? The court clerk who sang
showtunes to litigants and the police officer who lectured arrestees on the evils of the federal income tax
would be engaging in constitutionally protected private speech that their employers would be powerless
to curtail. For on petitioner’s theory, the further that
25
a public employee’s on-the-job speech or expressive
conduct strays from official duties, the less the employer can do about it—regardless of its effect on the
government’s ability to perform its public functions.
More than that, on petitioner’s view, if a history
teacher stopped the lesson thirty seconds before the
bell rang every day, dropped to one knee or stood at
the front of the class, and delivered a prayer, with students joining and other teachers invited to join also,
that would be personal, private speech. But no one
present would think of it that way—especially not the
Jewish and Muslim students who had to go along or
else mark themselves as outsiders and religious dissenters. So too here: The football field and locker room
are a coach’s classroom, and practices and games are
his classes.
2. Establishment Clause
The court’s ruling in the alternative—that the
School District could justify its regulation of Kennedy’s speech because of Establishment Clause concerns—also faithfully applied this Court’s precedents
to the facts.
a. This “Court has been particularly vigilant in
monitoring compliance with the Establishment
Clause in elementary and secondary schools,” because
the state coerces students to attend and conform, and
“because of the students’ emulation of teachers as role
models.” Edwards v. Aguillard, 482 U.S. 578, 583-584
(1987). Hence, courts must examine all the circumstances to determine whether (intentionally or not)
school officials are pressuring students to participate
in religious exercises that may be contrary to their religious beliefs. Santa Fe Indep. Sch. Dist. v. Doe, 530
U.S. 290, 315 (2000).
26
b. Again, the ruling was a prosaic application of
the settled legal test. The court did not, as the petition
contends (at 24-25), simply assume that Kennedy’s
conduct would be attributed to the District. Instead,
the court took seriously this Court’s admonition not to
“‘turn a blind eye to the context in which’ Kennedy’s
conduct arose.” Pet. App. 18 (quoting Santa Fe, 530
U.S. at 315); see also Pet. App. 22 n.3. And it recounted the pertinent facts—including that:
• Kennedy had a long-standing, expanding
prayer practice at games that included delivering midfield motivational prayers to
players on both teams. Pet. App. 4.
• Kennedy’s demand letter “acknowledged”
that his prayers were “‘verbal’ and ‘audible,’
flatly contradicting Kennedy’s own recounting.” Pet. App. 9.
• Kennedy specifically demanded to “continue his practice” of praying with students.
Pet. App. 19 n.1.
• Kennedy invited an opposing team’s coach
to have his team join in the prayers; and
that coach told Bremerton’s principal that
he “‘thought it was pretty cool how [the District] would allow’ Kennedy’s religious activity.” Pet. App. 5 (showing how even adult
school officials viewed the prayers).
• A photo in the record depicted “approximately twenty players in uniform kneeling
around Kennedy with their eyes closed, a
large group of * * * adults standing outside
the ring of praying players, and several television cameras photographing the scene.”
Pet. App. 9.
27
• Kennedy “actively sought support from the
community in a manner that encouraged
individuals to rush the field to join him and
resulted in a conspicuous prayer circle that
included students” (Pet. App. 21), causing a
“stampede” onto the field (Pet. App. 9). Despite its efforts to keep the field closed to
the public, the District was unable to “‘supervise effectively,’ resulting in ‘an inability to keep kids safe.’” Pet. App. 9 (quoting
principal’s testimony).
• A parent reported “that his son ‘felt compelled to participate’ in Kennedy’s religious
activity.” Pet. App. 4 (quoting principal’s
testimony).
Only after considering all these facts and circumstances, as it “must” (Santa Fe, 530 U.S. at 315), did
the court conclude that “allowing Kennedy free rein
over his public demonstrations of religious exercise
would have been perceived as a stamp of approval
upon that exercise” (Pet. App. 20). So the court determined that even if somehow the prayers hadn’t been
government speech, Kennedy’s conduct raised constitutional concerns for the students’ religious freedom,
warranting the District’s actions. Pet. App. 20-23.
c. The petition’s chief assertion of a conflict with
this Court’s jurisprudence (at 17-18) is that by crediting those concerns the court of appeals ignored the
proposition of a plurality (though the petition does not
identify it as such) in Board of Education v. Mergens
that “schools do not endorse everything they fail to
censor.” 496 U.S. 226, 250 (1990) (plurality opinion).
But what the plurality actually recognized is that
“secondary school students are * * * likely to under-
28
stand that a school does not endorse or support student speech that it merely permits on a nondiscriminatory basis.” Ibid. (emphasis added). The Court
based that conclusion on the Senate Judiciary Committee’s finding that “students below the college level
are capable of distinguishing between State-initiated,
school sponsored, or teacher-led religious speech,”
which may raise Establishment Clause concerns, “and
student-initiated, student-led religious speech,”
which generally does not. Id. at 250-251 (quoting S.
Rep. No. 357, 98th Cong., 2d Sess. 35 (1984)).
Rosenberger, 515 U.S. 819, was likewise about
student speech in a public forum. And Good News
Club v. Milford Central School, 533 U.S. 98, 103
(2001), and Lamb’s Chapel v. Center Moriches Union
Free School District, 508 U.S. 384, 387-388 (1993),
were about the rights of outside groups to use school
facilities after hours—which Good News specifically
contrasted with the “curriculum taught by state
teachers” (533 U.S. at 117).
How those cases establish that students would understand this “[coach]-led religious speech” to the
players (Mergens, 496 U.S. at 250 (plurality opinion)
(citation omitted)) to be private and personal, we cannot fathom.
d. This Court’s jurisprudence that addresses
school officials’ conduct required the court of appeals
to consider, as it did, that “students’ emulation of
teachers as role models” at school activities can be
(and actually was) coercive for the students. Edwards,
482 U.S. at 584. In other words, school officials are
school officials, with enormous authority and influence over students. And while public schools generally
do not stumble into endorsing the speech of students
(Mergens and Rosenberger) or outsiders (Good News
29
and Lamb’s Chapel), that says nothing about either
their duty or their discretion when it comes to their
employees’ religious speeches to and religious exercises with students at school activities.
e. Had the District instead tried to disclaim as
personal, private, and solitary Kennedy’s prayers to
the team on the 50-yard line, the history, context, and
conduct of his prayer practice would have made that
a fiction—and cold comfort to the students who felt
pressured to participate. See ER379; SER517, 526.
The sham would also have been transparent to all in
the school community who saw Kennedy deliver the
prayers to the Bremerton players and their opponents. 6
This Court has never held that “it’s not us, it’s
them” disavowals absolve public school districts of all
responsibility for their employees’ actions with students. Much less has the Court held that schools are
constitutionally prohibited from acknowledging responsibility and taking reasonable measures to protect students’ rights, as the District did here. The Mergens plurality’s statement that schools do not endorse
everything they fail to censor (496 U.S. at 250) does
not mean that they are never responsible for the onthe-job conduct of their faculty—much less that they
can never regulate that conduct when they determine
Even if the District could have absolved itself of responsibility,
moreover, the question was whether it must be penalized for having chosen a different path. The line between constitutional duties to students and obligations to employees cannot be so finely
drawn that attempts to respect both inevitably trigger liability
one way or the other. There must be reasonable discretion to
manage employees to protect students’ religious freedom—and
their safety. ER 109, 378; see, e.g., Marchi v. Board of Coop.
Educ. Servs., 173 F.3d 469, 476 (2d Cir. 1999) (Newman, J.).
6
30
it to be contrary to the school’s pedagogical aims or the
students’ rights. Public school districts simply could
not function if that were so. 7
Finally, the petition chastises the court of appeals
five times (Pet. 2, 3, 14, 25, 32) for its single reference
to Kennedy’s “pugilistic efforts to generate publicity in
order to gain approval of those on-field religious activities” (Pet. App. 19), accusing the court of punishing
Kennedy for “defense of [his] liberty” (Pet. 25). What
the court in fact concluded was not, as the petition
puts it, that Kennedy’s publicity campaign “justif[ied]
greater government suppression” of speech (Pet. 25),
but that what Kennedy said to the media illuminated
what he did on the field, and insisted on continuing to
do, which “utterly belie[d] his contention that the
prayer was personal and private” (Pet. App. 19). The
court determined—as any reasonable person in the
school community would—that Kennedy did not act,
or speak, like someone who sought only to be left alone
for private, solitary, silent prayer. Pet. App. 18-20; cf.
Santa Fe, 530 U.S. at 315. 8 The conflict is only imagined.
As for the contention that because the controversy became
public, no one would view Kennedy’s speech or actions as approved by the District (Pet. 24), if that were the rule, public employees could ignore their job requirements and evade their employer’s policies just by announcing loudly and proudly that they
intended to disobey. Whatever the line may be between official
conduct and private activity, it cannot be that.
7
Petitioner also castigates Judge Smith (Pet. 2, 17, 25-26) for
mentioning Jesus’ Sermon on the Mount (see Pet. App. 69). But
that reference, in Judge Smiths’ en banc statement (not the
court’s opinion), was merely his “personal[]” view about how far
Kennedy’s conduct was from his litigating position that he
sought only to be left alone for silent devotions. Pet. App. 69.
8
31
B. There is no circuit split.
The petition also asserts conflicts with a handful
of cases bearing no resemblance to this one, while conveniently failing to mention the legion of pertinent
cases that have come out as this case did.
1. Government Speech
As explained above, the court based its determination that Kennedy spoke as a public employee on
extensive review of his activities as coach. Both the
approach and the conclusion align with decades of circuit-court decisions about instructors’ speech in public
secondary schools 9 and colleges. 10 For as Judge
See, e.g., Rayborn v. Bossier Par. Sch. Bd., 881 F.3d 409, 418
(5th Cir. 2018); Johnson v. Poway Unified Sch. Dist., 658 F.3d
954, 969-970 (9th Cir. 2011); Evans-Marshall v. Board of Educ.,
624 F.3d 332, 340 (6th Cir. 2010); Borden v. School Dist., 523
F.3d 153, 172 (3d Cir. 2008); Grossman v. South Shore Pub. Sch.
Dist., 507 F.3d 1097, 1100 (7th Cir. 2007); Lee v. York Cnty. Sch.
Div., 484 F.3d 687, 700 (4th Cir. 2007); Mayer v. Monroe Cnty.
Cmty. Sch. Corp., 474 F.3d 477, 479-480 (7th Cir. 2007); Downs
v. Los Angeles Unified Sch. Dist., 228 F.3d 1003, 1016 (9th Cir.
2000); Lacks v. Ferguson Reorganized Sch. Dist. R-2, 147 F.3d
718, 719, 724 (8th Cir. 1998); Boring v. Buncombe Cnty. Bd. of
Educ., 136 F.3d 364, 368-371 (4th Cir. 1998) (en banc); Silano v.
Sag Harbor Union Free Sch. Dist. Bd. of Educ., 42 F.3d 719, 722724 (2d Cir. 1994); Miles v. Denver Pub. Schs., 944 F.2d 773, 778779 (10th Cir. 1991); Bishop v. Aronov, 926 F.2d 1066, 1075-1076
(11th Cir. 1991); Bradley v. Pittsburgh Bd. of Educ., 910 F.2d
1172, 1176 (3d Cir. 1990); Kirkland v. Northside Indep. Sch.
Dist., 890 F.2d 794, 795, 802 (5th Cir. 1989); Palmer v. Board of
Educ., 603 F.2d 1271, 1274 (7th Cir. 1979); Cary v. Board of
Educ., 598 F.2d 535, 543-544 (10th Cir. 1979); Ahern v. Board of
Educ., 456 F.2d 399, 403-404 (8th Cir. 1972).
9
10 See, e.g., Bradley v. West Chester Univ., 880 F.3d 643, 652-653
(3d Cir.), cert. denied, 139 S. Ct. 167 (2018); Brown v. Armenti,
247 F.3d 69, 75 (3d. Cir. 2001); Edwards v. California Univ. of
Pa., 156 F.3d 488, 491-492 (3d Cir. 1998) (Alito, J.); Dambrot v.
32
Easterbrook explained, a public “school system does
not ‘regulate’ teachers’ speech as much as it hires that
speech.” Mayer v. Monroe Cnty. Cmty. Sch. Corp., 474
F.3d 477, 479 (7th Cir. 2007). And as then-Judge Alito
stated, a school has the “ability to say what it wishes
when it is the speaker.” Edwards v. California Univ.
of Pa., 156 F.3d 488, 491 (3d Cir. 1998).
Yet the petition mentions none of that—not even
the Third Circuit’s decision in Borden v. School District, which explicitly held that a high-school football
coach’s prayers with his team were “pedagogic,” with
the coach “acting as a proxy for the School District,”
so the district could regulate his speech. 523 F.3d 153,
172 (3d Cir. 2008).
Instead, the petition fabricates a circuit split by
pointing to cases rejecting overly broad job descriptions as sweeping too much into the category of government speech. See Pet. 28-29 (citing Hunter v. Town
of Mocksville, 789 F.3d 389, 399 (4th Cir. 2015);
Chrzanowski v. Bianchi, 725 F.3d 734, 739-740 (7th
Cir. 2013); Brammer-Hoelter v. Twin Peaks Charter
Acad., 492 F.3d 1192, 1204 (10th Cir. 2007)). But
those decisions have no bearing, because here “there
[was] simply no dispute that Kennedy’s position encompassed his post-game speeches to students on the
field” (Pet. App. 15). And the court’s conclusions about
the scope of Kennedy’s job were based not on a job description, excessively broad or otherwise, but on Kennedy’s coaching practices over more than seven years,
his demand to continue those practices, and his explicit concession that he was on the job for the prayers.
See Pet. App. 15-17, 150 n.3.
Central Mich. Univ., 55 F.3d 1177, 1190 (6th Cir. 1995); Lovelace
v. Southeastern Mass. Univ., 793 F.2d 419, 426 (1st Cir. 1986).
33
The court’s detailed, fact-bound analysis also accords with other circuits’ decisions by demanding
more than the bare fact that speech “‘ow[es] its existence’ to [an employee’s] public position” (Pet. 29 (citing Boulton v. Swanson, 795 F.3d 526, 532-534 (6th
Cir. 2015))). Though the court certainly noted that
Kennedy was on the field as a coach (Pet. App. 14-15),
that was only the beginning of the court’s analysis, not
the end. The court concluded that Kennedy’s coaching
practice was to command the attention of the players
in his charge and deliver motivational prayers to them
as a closing ritual at games—which is something that
only a coach would or could do, at a place and in a way
that only a coach could do it, because motivational
speeches to the team at games are part of the coach’s
job. Pet. App. 14-15. Like other circuits, the court considered the entire record to determine whether Kennedy’s speech was “made in accordance with or in furtherance of the ordinary responsibilities of [his] employment”—and rightly concluded that it was. Carollo
v. Boria, 833 F.3d 1322, 1329 (11th Cir. 2016); accord
Boulton, 795 F.3d at 532-534; Flora v. County of Luzerne, 776 F.3d 169, 177-180 (3d Cir. 2015);
Chrzanowski, 725 F.3d at 739-740.
2. Establishment Clause
Finally, the petition asserts a split with other
courts’ Establishment Clause jurisprudence. But tellingly, it does not mention that every case in the courts
of appeals (or this Court) that involved prayer at public-school sporting events led or sponsored by publicschool officials came out as this case did: in favor of
the school districts’ authority, and duty, to regulate
the conduct to ensure that students are not pressured
to participate in religious exercises contrary to their
beliefs. See Santa Fe, 530 U.S. at 301; Borden, 523
34
F.3d at 174; Doe v. Duncanville Indep. Sch. Dist., 70
F.3d 402, 406 & n.4 (5th Cir. 1995); Jager v. Douglas
Cnty. Sch. Dist., 862 F.2d 824, 831 (11th Cir. 1989).
Having determined that Kennedy’s on-fieldprayer practice resulted in actual coercion of students
(see Pet. App. 4, 21; ER379; SER517, 526), the court
applied those same legal principles and arrived at the
same conclusion.
Because the pertinent cases are of no help to him,
petitioner points principally to ones involving nondemonstrative conduct. See, e.g., Warnock v. Archer, 380
F.3d 1076, 1082 (8th Cir. 2004) (“personal” framed
psalm in school administrator’s office held not to violate First Amendment). Petitioner’s invocation of
Freshwater v. Mount Vernon City School District
Board of Education, 1 N.E.3d 335 (Ohio 2013), showcases the chasm here: The court held that a teacher’s
“personal Bible” on his desk did not violate the Establishment Clause. Id. at 352. Though the petition (at
27) describes the Bible as “demonstrative,” that term
appears nowhere in the opinion. Rather, the court
took pains to emphasize just how “inconspicuous” it
was. Id. at 353-354. 11
Petitioner’s cases only underscore the key principle identified and applied here: “Context matters”
(Pet. App. 20). With the context firmly laid (see pp. 2627, supra), the court determined that Kennedy’s
11 The petition also points to Hysong v. School District, 30 A. 482,
484 (Pa. 1894)—a single, 127-year-old state-court case that arguably involved demonstrative conduct in distinguishing religious
garb from impermissible religious instruction. Even if that made
for a genuine conflict, which it doesn’t, an issue as pressing as
the petition asserts surely would have arisen sometime in the
past century.
35
words, actions, and demands were not those of someone who wished merely to engage in personal, private
prayer but instead were “a demonstration” “in every
sense of the word” (Pet. App. 20). They were thus far
afield from the cases that petitioner cites—and from
his litigating position that his prayers were solitary,
private, and silent. The court’s determinations are not
at odds with those decisions or any others.
CONCLUSION
As Justice Alito noted the first time around, this
Court does not grant review “to decide highly fact-specific questions.” Pet. App. 210-211. That is surely even
more true when the questions that a petition poses are
not remotely grounded in the record or implicated by
the lower courts’ correct applications of settled law.
The petition should be denied.
Respectfully submitted.
MICHAEL B. TIERNEY
Tierney, Correa &
Zeinemann, P.C.
2737 77th Ave. SE,
Ste. 204
Mercer Island,
WA 98040
(206) 232-3074
RICHARD B. KATSKEE
Counsel of Record
BRADLEY GIRARD
Americans United for
Separation of Church
and State
1310 L St., NW, Ste. 200
Washington, DC 20005
(202) 466-3234
katskee@au.org
Counsel for Respondent
DECEMBER 2021
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.