Amicus Curiae Brief — Joseph A. Kennedy, Petitioner v. Bremerton School District

No. 21-418

In the Supreme Court of the United States

__________________

JOSEPH A. KENNEDY,

v.

Petitioner,

BREMERTON SCHOOL DISTRICT,

Respondent.

__________________

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

__________________

BRIEF OF AMICI CURIAE CURRENT STATE

LEGISLATORS IN SUPPORT OF PETITIONER

__________________

RYAN ANTHONY KRIEGSHAUSER

Counsel of Record

JOSHUA NEY

ALAN VESTER

KRIEGSHAUSER NEY LAW GROUP

15050 W. 138th St., Unit 4493

Olathe, KS 66063

(913) 303-0639

ryan@knlawgroup.com

Counsel for Amici Curiae

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . ii

INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

I.

The Ninth Circuit’s Opinion Places

Toleration and Pluralism at Risk . . . . . . . . . . 5

II.

The Ninth Circuit Opinion Strips

School Employees of First Amendment

Protections . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

III.

The Ninth Circuit’s Opinion Creates a

New Undefined Mandatory Enforcement

Regime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

IV.

The Ninth Circuit’s New Undefined

Mandatory Enforcement Regime Swallows

the Free Exercise Clause in Favor of the

Establishment Clause . . . . . . . . . . . . . . . . . . 10

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

APPENDIX - Complete list of Amici Curiae . . . App. 1

ii

TABLE OF AUTHORITIES

CASES

Ashcroft v. Free Speech Coal.,

535 U.S. 234, 122 S. Ct. 1389,

152 L. Ed. 2d 403 (2002) . . . . . . . . . . . . . . . . . . . . 5

Fulton v. Philadelphia,

141 S. Ct. 1868 (2021). . . . . . . . . . . . . . . . . . . . . . 9

Garcetti v. Ceballos,

547 U.S. 410 (2006). . . . . . . . . . . . . . . . . . 4, 7, 8, 9

Good News Club v. Milford Cent. Sch.,

533 U.S. 98 (2001). . . . . . . . . . . . . . . . 4, 10, 11, 12

Kennedy v. Bremerton Sch. Dist.,

991 F.3d 1004 (9th Cir. 2021). . . . . . . . . . . . . . 8, 9

Kennedy v. Bremerton School District,

4 F.4th 910 (9th Cir. 2021) . . . . . . . . . . . . . . . . . . 6

Lane v. Franks,

573 U.S. 228 (2014). . . . . . . . . . . . . . . . . . . . . . 4, 8

Lee v. Weisman,

505 U.S. 577 (1992). . . . . . . . . . . . . . . . . . . . . . . . 6

Pickering v. Board of Education,

391 U.S. 563 (1968). . . . . . . . . . . . . . . . . . . . . . . . 7

Pleasant Grove City, Utah v. Summum,

555 U.S. 460, 129 S. Ct. 1125,

172 L. Ed. 2d 853 (2009) . . . . . . . . . . . . . . . . . . 5, 9

Shelton v. Tucker,

364 U.S. 479 (1960). . . . . . . . . . . . . . . . . . . . . . . . 5

iii

Tinker v. Des Moines Indep. Sch. Dist.,

393 U.S. 503 (1969). . . . . . . . . . . . . . . . . . . . . . 4, 6

CONSTITUTION

U.S. Const. amend. I . . . . . . . . . . . . . . . . . . . . passim

1

INTEREST OF AMICI CURIAE1

Amici Curiae are current members of state

legislatures and are engaged in carrying out legislative

functions in relation to the educational interests of

their respective states.2 They are active in passing and

supporting laws, as well as providing legislative

oversight, in relation to these interests. This includes

acting to ensure that the laws of their state adequately

protect the constitutional rights of students, teachers

and staff. The outcome of this case will directly impact

their legislative duties in this regard. In addition,

Amici have taken oaths to support the Constitution of

the United States, and the Constitutions of their

respective states, and as such have an official interest

in this Court’s interpretation of the First Amendment,

which affects these legislators in their drafting,

considering, enacting and overseeing laws in their

states.

SUMMARY OF ARGUMENT

This Court should reverse the Ninth Circuit Court

of Appeals and rule in favor of Petitioner Kennedy to

correct the Ninth Circuit’s ruling which directly

contradicts this Court’s prior decisions safeguarding

private, voluntary religious activity by public

1

All parties have consented to the filing of this brief by filing

blanket consents. No counsel for a party authored this brief in

whole or in part, and no counsel or party made a monetary

contribution intended to fund the preparation or submission of this

brief.

2

A complete list of state legislators participating as Amici appears

in an appendix to this brief.

2

employees. The states, and the local school districts

within those states, face tremendous challenges in

navigating complex and sometimes contradictory court

rulings in relation to the constitutional rights of

public-school employees. Holding in favor of Petitioner

Kennedy’s right to engage in private religious conduct

on school grounds would establish clear standards

safeguarding these public employees’ rights, and

promoting the kind of pluralism that undergirds our

system of public education. Further, a decision

upholding public employees’ right to practice their own

faiths would foster mutual respect among students,

teachers and staff with differing beliefs. The appellate

decision below needlessly and harmfully creates

confusion where clarity is needed—especially

muddying this Court’s Establishment Clause

jurisprudence. Permitting the ruling below to stand

would likewise undermine the core constitutional

values our public schools exist, in part, to promote.

The issues presented by this appeal, when

understood in light of the actual facts, should not be

controversial. The result of the Ninth Circuit’s opinion

would forward the novel and untenable position that

the Free Speech and Free Exercise clauses of the First

Amendment are inapplicable to all on-the-clock speech

and expression by public school employees. Yet, the

Ninth Circuit’s opinion then goes even further—

suggesting the Establishment Clause actually compels

public schools to discipline such employees when they

engage in private prayer. This result turns public

school administrators away from their appropriate role

of promoting pluralism, and instead makes them

gatekeepers tasked with barring governmentally

3

disproved forms of private religious expression. If

allowed to stand, this would breed confusion and

mistrust in our public school, subverting the

educational mission that Amici are pledged to support.

Moreover, this Court must reverse the Ninth Circuit

in order to safeguard its own Free Speech and Free

Exercise Clause Jurisprudence. Prior to the Ninth

Circuit’s ruling, private, voluntary religious activity by

public employees was shielded by Free Speech and Free

Exercise caselaw. However, the Ninth Circuit’s recent

decision disrupts these already-settled constitutional

waters. While the employment status of Coach

Kennedy matters, allowing the Ninth Circuit’s decision

to stand essentially denudes public employees of their

Right to Free Exercise, creating a new exceptionally

broad interpretation of the Establishment Clause with

a mandatory enforcement regime at the expense of

diversity and pluralism. Regardless of the facts in this

particular case, a plausible reading of the Ninth

Circuit’s new interpretation is that it mandates the

termination of a public employee who participates in

even the most de minimis practice of religious activity

on public property. This result represents a sea-change

in First Amendment jurisprudence and should be

resisted.

Further, a holding in favor of Petitioner Kennedy

could grant this Court an opportunity to clarify its

somewhat murky Establishment Clause jurisprudence.

This Court should, at least, make plain that the

Establishment Clause does not create a compelling

state interest in censoring private speech.

4

These laudable and common-sense results can be

achieved by simply applying existing precedent. See,

e.g., Tinker v. Des Moines Indep. Sch. Dist., 393 U.S.

503, 506 (1969) (“It can hardly be argued that either

students or teachers shed their constitutional rights to

freedom of speech or expression at the schoolhouse

gate.”); Garcetti v. Ceballos, 547 U.S. 410, 420-21

(2006) (all speech within a public employee’s workplace

is not automatically exposed to restrictions); Lane v.

Franks, 573 U.S. 228, 240 (2014) (“the mere fact that a

citizen’s speech concerns information acquired by

virtue of his public employment does not transform

that speech into employee—rather than citizen—

speech.”); Good News Club v. Milford Cent. Sch., 533

U.S. 98, 11 9 (2001) (permitting private religious

activity does not violate the Establishment Clause).

Leaving the Ninth Circuit’s opinion in place would

leave states, school districts, and school employees

without clear guidance on an important issue weighing

on the effective administration of public schools across

the county. What is more, this judicially-created

confusion would stand contrary to this Court’s

precedent. Only this Court can calm the waters now

troubled by the Ninth Circuit. Accordingly, this Court

should reverse the Ninth Circuit and rule in favor of

Petitioner Kennedy.

5

ARGUMENT

I.

The Ninth Circuit’s Opinion

Toleration and Pluralism at Risk.

Places

The Framers of the Constitution held out clearly

and succinctly the inherent value of the individuals’

Freedom of Speech. See, Ashcroft v. Free Speech Coal.,

535 U.S. 234, 244, 122 S. Ct. 1389, 1398, 152 L. Ed. 2d

403 (2002) (“The First Amendment commands,

‘Congress shall make no law . . . abridging the freedom

of speech.’”). Accordingly, government action that

impedes citizens’ free speech or free exercise of religion

is a constitutionally serious matter. Moreover, this

Court has explained these vital freedoms do not stop

just because someone stands on public ground. See,

Pleasant Grove City, Utah v. Summum, 555 U.S. 460,

469, 129 S. Ct. 1125, 1132, 172 L. Ed. 2d 853

(2009)(“[T]he government does not have a free hand to

regulate private speech on government property. This

Court long ago recognized that members of the public

retain strong free speech rights when they venture into

public streets and parks, which ‘have immemorially

been held in trust for the use of the public and, time

out of mind, have been used for purposes of assembly,

communicating thoughts between citizens, and

discussing public questions.’ . . . [T]his Court has

recognized that members of the public have free speech

rights on other types of government property.”).

Indeed, this Court has expressly recognized that

“[t]he vigilant protection of constitutional freedoms is

nowhere more vital than in the community of American

schools.” Shelton v. Tucker, 364 U.S. 479, 487 (1960).

Petitioner Kennedy’s case is vitally important because

6

the Ninth Circuit’s opinion directly threatens this

Court’s long held view that, “[i]n our system, stateoperated schools may not be enclaves of

totalitarianism.” Tinker, 393 U.S. at 511. It is

axiomatic that “First Amendment rights, applied in

light of the special characteristics of the school

environment, are available to teachers and students. It

can hardly be argued that either students or teachers

shed their constitutional rights to freedom of speech or

expression at the schoolhouse gate.” Id. at 506. While

it is true that this principle is not limitless, the line

drawn by the Ninth Circuit would set public schools on

exactly the kind of “relentless and all-pervasive

attempt to exclude religion from every aspect of public

life” that this Court has specifically warned against.

See, Lee v. Weisman, 505 U.S. 577, 598-99 (1992).

Permitting the Ninth Circuit’s ruling to stand as

precedent would flip this system on its head, turning

schools into enforcers of rigid standards—completely

divested of expressive speech of a religious character

—rather than modeling principles of tolerance and

pluralism. Effectively, this Ninth Circuit’s standard

would subject on-the-clock public school teachers to

near “plenary control by the government.” Kennedy v.

Bremerton School District, 4 F.4th 910, 930 (9th Cir.

2021) (O’Scannlain, J., concurring).

This result would be bad enough for government

employees generally. But, this result is doubly

problematic for the malign message it sends to

students educated in such an environment. The guiding

principle would no longer be respect for religious

difference, but rather an atmosphere of fear and

suspicion in which even the most innocuous religious

7

expression by a teacher or coach must be stamped out.

This is not only wrong as a matter of law, it is

dangerous for what it instructs regarding the place of

toleration and pluralism in our society.

II.

The Ninth Circuit Opinion Strips School

Employees of First Amendment

Protections.

The Garcetti Court clearly held that private,

voluntary, religious activity by public employees is

protected by the First Amendment. Garcetti, 547 U.S.

at 419 (“The First Amendment limits the ability of a

public employer to leverage the employment

relationship to restrict, incidentally or intentionally,

the liberties employees enjoy in their capacities as

private citizens”.). Contrary to Garcetti, the Ninth

Circuit held that firing Petitioner Kennedy for quietly

kneeling to pray after a football game is required by the

Establishment Clause. This result cannot be

countenanced within this Court’s longstanding view

that a public employer may only limit the speech or

expression of its employees where it falls within the

scope of their official duties. Pickering v. Board of

Education, 391 U.S. 563, 568 (1968). Nor can a public

employer artificially expand an employee’s duties, as a

way of shrinking the scope of the employee’s

constitutionally protected speech or expression.

Garcetti, 547 U.S. at 424.

Yet, the school district did exactly that when it

determined Petitioner Kennedy was always acting

under his job duties before, during, or after games

when he was in the presence of students or spectators.

According to the Ninth Circuit, Petitioner Kennedy was

8

acting in the scope of his official duties because he was

in a place where he was authorized to be due to his

employment, during a time when he was authorized to

communicate with students. Kennedy v. Bremerton

Sch. Dist. (Kennedy III), 991 F.3d 1004, 1005 (9th Cir.

2021). If the Ninth Circuit’s interpretation is correct,

public school teachers have virtually no capacity for

private, voluntary, religious expression when on the

clock. Indeed, teachers would be left wholly

unprotected by the First Amendment any time they are

involved in speech or expression, merely because the

job of a teacher involves speaking and expressing.

III.

The Ninth Circuit’s Opinion Creates a New

Undefined Mandatory Enforcement

Regime.

The Ninth Circuit’s opinion directly contradicts the

Garcetti Court’s logic, which reaffirmed the existence of

private, voluntary, religious speech and expression by

public employees. Garcetti, 547 U.S. at 419. This

common-sense conclusion was clarified and bolstered

when this Court held “[t]he critical question under

Garcetti is whether the speech at issue is itself

ordinarily within the scope of those duties, not whether

it merely concerns those duties.” Lane, 573 U.S. at 240.

This standard presumes a degree of good faith on the

part of public employers. See, id. Permitting the school

district to point to broad and amorphous employment

responsibilities as a post-hoc rationalization for

limiting private speech it does not like, simply runs

counter to what this Court meant by an ordinary job

duty that places speech outside the purview of the First

Amendment.

9

The Ninth Circuit Opinion provides no workable

limiting principle on a public employer’s authority to

shrink the scope of First Amendment protected conduct

by arbitrarily expanding the manner in which it

interprets generalized job responsibilities. Recently,

this Court emphasized that, “[w]e have never suggested

that the government may discriminate against religion

when acting in its managerial role.” Fulton v.

Philadelphia, 141 S. Ct. 1868, 1878 (2021). The fact

government contractors, and employees, accept some

limits on their freedoms, does not leave the state with

plenary authority to single out all employee religious

speech and expression for particular disfavor. See

generally, Summum, 555 U.S. at 460.

The private nature of Petitioner Kennedy’s religious

expression is easy to establish if the correct test is

used. The proper inquiry is a practical one, focused on

the simple question of whether the conduct in question

involved one of the tasks he was paid by the school

district to perform. Garcetti, 547 U.S. at 422. A brief,

quiet, personal prayer in which no one else is asked to

join, is not what he was paid to do. This was

quintessential private speech, and a type of expression

that non-government employees commonly engage in.

Id. at 423-24. The school district did not fire Petitioner

Kennedy because his brief and private prayer

interfered with his job duties. Quite the contrary,

Petitioner Kennedy lost his job solely because the

school district contended that failing to remove him

from his coaching duties put the school district at risk

of constitutional liability for Petitioner Kennedy’s

“religious conduct.” Kennedy III, 991 F.3d at 1014.

10

The Ninth Circuit’s affirmation of this perverse

constitutional interpretation leaves important

questions unanswered. At least within the bounds of

the Ninth Circuit, public school administrators are

currently left to wonder just how assiduously they

must police every hint of religious expression by a

school employee which might be observed by a student

or guest. Affirming the Ninth Circuit and ruling

against Petitioner Kennedy would not only throw

decades of First Amendment jurisprudence into

turmoil, but would also suggest to school

administrators nationwide that the answer to this

ambiguity is “aggressively and comprehensively.” Such

a result is clearly not intended by the First

Amendment, as previously interpreted by this Court.

IV.

The Ninth Circuit’s New Undefined

Mandatory Enforcement Regime Swallows

the Free Exercise Clause in Favor of the

Establishment Clause.

This Court has been clear that government

toleration of private religious activity does not violate

the Establishment Clause. Good News Club, 533 U.S.

at 119 (“We are not convinced that there is any

significance in this case to the possibility that

elementary school children may witness the Good News

Club’s activities on school premises, and therefore we

can find no reason to depart from . . . [our past

holdings]. Accordingly, we conclude that permitting the

Club to meet on the school’s premises would not have

violated the Establishment Clause.”). The Ninth

Circuit has taken the opposite view, holding that even

if Petitioner Kennedy’s conduct was private, it still

11

must be prohibited to prevent what the Ninth Circuit

apparently viewed as the danger that a student or

other observer might learn that some teachers and

coaches pray. This constitutional paradigm would

transform the Establishment Clause into a blunt club

that government employers could wield against their

own employees to discourage the free exercise of

religion—even as private citizens.

That the school district admitted it fired Petitioner

Kennedy specifically because of the religious nature of

his conduct should not have strengthened the school

district’s case under the Establishment Clause. Rather,

this intentional targeting of religious conduct should

have been the fatal blow to the school district’s cause.

First, by contending the Establishment Clause was

implicated even if Coach Kennedy’s conduct was

private, the Ninth Circuit abrogated any need to prove

state action to show a violation. The ramifications of

this novel and textually absurd reading are quite

staggering. This Court must reaffirm its Establishment

Clause jurisprudence and reject the Ninth Circuit’s

constitutional framework by reversing the Ninth

Circuit and holding in favor of Petitioner Kennedy.

Second, this Court, “has never extended its

Establishment Clause jurisprudence to foreclose

private religious conduct during non-school hours

merely because it takes place on school premises where

elementary school children may be present.” Id. at

Headnote 9; see also id. at 115. This holding applies

equally to Petitioner Kennedy’s case where the

students most likely to observe the conduct are in high

school.

12

The Amici contend the damage inflicted by the

Ninth Circuit’s ruling extends far beyond its impact on

Petitioner Kennedy. Beyond the present case, the

Ninth Circuit’s holding will create needless conflict and

mistrust in our public schools, detracting from their

educational mission. If public schools are deemed to

endorse everything they do not forcefully suppress,

they will be forced to become vapid enclaves cut off

from the lives of the communities they exist to serve.

Long before they fired him, the school district made it

abundantly obvious that Petitioner Kennedy’s brief

prayers were not being offered as part of his duties as

a coach. But that was not enough. Rather, the Ninth

Circuit held that public schools can only avoid the

possibility of mistaken belief that they have endorsed

private religious conduct if they fire employees engaged

in private religious speech.

Should this court rule against Petitioner Kennedy,

it would transfigure the Establishment Clause into “a

modified heckler’s veto”—a result this Court has

explicitly rejected in the past. Id. at 119. Schools can

engage in far more limited action that would have the

prophylactic effect necessary to disclaim an official

approbation of Petitioner Kennedy’s private speech. It

is ironic, and dangerous, that a school district would

forgo an opportunity to educate those who might

observe that speech. Instead opting for punitive

measures against the speaker. It is shocking that the

Ninth Circuit apparently viewed that choice as not

merely constitutionally permissible—but even

constitutionally mandated.

13

CONCLUSION

Were the Ninth Circuit’s ruling be allowed to stand,

it would breed confusion and mistrust in our public

schools and subvert the educational mission the Amici

are pledged to support. In light of this Court’s past

precedent, leaving the Ninth Circuit’s opinion in place

would leave states, school districts, and school

employees alike without clear guidance on important

constitutional issues weighing on the effective

administration of public schools across the country.

Only this Court can provide that needed clarity, and as

such, this Court should reverse the Ninth Circuit and

find in favor of Petitioner Kennedy.

Respectfully submitted,

RYAN ANTHONY KRIEGSHAUSER

Counsel of Record

JOSHUA NEY

ALAN VESTER

KRIEGSHAUSER NEY LAW GROUP

15050 W. 138th St., Unit 4493

Olathe, KS 66063

(913) 303-0639

ryan@knlawgroup.com

Counsel for Amici Curiae

APPENDIX

i

APPENDIX

TABLE OF CONTENTS

Complete List of Amici Curiae . . . . . . . . . . . . . App. 1

App. 1

COMPLETE LIST OF AMICI CURIAE

Senator Bob Ballenger (AR)

Senator Amy Sinclair (IA)

Senator Dennis Guth (IA)

Representative Sandy Salmon (IA)

Senator Ty Masterson (KS – Senate President)

Senator Kellie Warren (KS)

Senator Beverly Gossage (KS)

Senator Renee Erickson (KS)

Senator Mark Steffen (KS)

Senator Michael Thompson (KS)

Senator Gene Sullentrop (KS)

Senator Virgil Peck (KS)

Representative Jesse Burris (KS)

Representative Randy Garber (KS)

Representative Emil Bergquist (KS)

Representative Kristey Williams (KS)

Representative Steve Hubert (KS)

Representative Susan Humphries (KS)

Representative Stephen Owens (KS)

Representative Bill Rhiley (KS)

Representative Barbara Wasinger (KS)

Representative Paul Waggoner (KS)

Representative Brian Bergkamp (KS)

Representative Michael Murphy (KS)

Representative William Clifford (KS)

Representative Cheryl Helmer (KS)

Representative Kyle Hoffman (KS)

Representative Samantha Poetter Parshall (KS)

Representative Doug Blex (KS)

Representative Cyndi Howerton (KS)

Representative Les Mason (KS)

Representative Clarke Sanders (KS)

App. 2

Representative Will Carpenter (KS)

Representative Beryl A. Amedee (LA)

Senator Bob Onder (MO)

Senator Eric Burlison (MO)

Representative Brad Hudson (MO)

Representative Kim Koppelman

(ND – Speaker of the House)

Representative Tammy Townley (OK)

Representative Doug Gilliam (SC)

Representative John McCravy (SC)

Representative Mike Burns (SC)

Representative Mark Smith (SC)

Representative Steven Long (SC)

Representative Garry Smith (SC)

Representative Melissa Oremus (SC)

Representative Sandy McGarry (SC)

Senator Paul Rose (TN)

Senator Page Walley (TN)

Senator Steve Southerland (TN)

Senator Brian Kelsey (TN)

Senator Janice Bowling (TN)

Representative Debra Moody (TN)

Senator Charles Perry (TX)

Representative Cody Harris (TX)

Representative Matt Schaefer (TX)

Representative Briscoe Cain (TX)

Representative James White (TX)

Senator Amy Grady (WV)

Delegate Jonathan Pinson (WV)