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 THE RUTHERFORD INSTITUTE

AS AMICUS CURIAE IN SUPPORT

OF PETITIONER

John W. Whitehead

Counsel of Record

William E. Winters

Christopher F. Moriarty

THE RUTHERFORD INSTITUTE

109 Deerwood Road

Charlottesville, VA 22911

(434) 978-3888

legal@rutherford.org

Counsel for Amicus Curiae

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

i

QUESTIONS PRESENTED

1.

Whether a public-school employee who

says a brief, quiet prayer by himself while at school

and visible to students is engaged in government

speech that lacks any First Amendment protection.

2.

Whether, assuming that such religious

expression is private and protected by the Free Speech

and Free Exercise clauses, the Establishment Clause

nevertheless compels public schools to prohibit it.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................... i

TABLE OF AUTHORITIES .........................................iii

INTEREST OF AMICUS CURIAE............................... 1

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

ARGUMENT ................................................................... 3

A. The Ninth Circuit Erred By Holding

Petitioner's Conduct Was Not Protected………...3

B. This Case Demonstrates The Need To Define And Limit - Garcetti………………………………...6

CONCLUSION ............................................................... 9

iii

TABLE OF AUTHORITIES

Cases

Americans for Prosperity Found. v. Bonta,

141 S. Ct. 2373 (2021) ................................................. 8

Bd. of Educ. of Westside Cmty. Sch. v. Mergens ex

rel. Mergens,

496 U.S. 226 (1990) ..................................................... 6

Capitol Square Review & Advisory Bd. v. Pinette,

515 U.S. 753 (1995) ..................................................... 8

Garcetti v. Ceballos,

547 U.S. 410 (2006) ...................................2, 6, 7, 8, 10

Kennedy v. Bremerton Sch. Dist.,

991 F.3d 1004 (9th Cir. 2021) ............................ 4, 5, 9

Kennedy v. Bremerton Sch. Dist.,

4 F.4th 910 (9th Cir. 2021) ............................. 3, 6, 7, 8

Lee v. Weisman,

505 U.S 577 (1992) ...................................................... 3

Mahanoy Area Sch. Dist. v. B.L.,

141 S. Ct. 2038 (2021) ................................................. 5

Pickering v. Bd. of Educ.,

391 U.S. 563 (1968) ................................................. 6, 7

Santa Fe Indep. Sch. Dist. v. Doe,

530 U.S. 290 (2000) ..................................................... 4

Shelton v. Tucker,

364 U.S. 479 (1960) ..................................................... 3

iv

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

383 U.S. 503 (1969) ..................................................... 3

1

INTEREST OF AMICUS CURIAE1

The Rutherford Institute is an international

nonprofit civil liberties organization headquartered in

Charlottesville, Virginia. Founded in 1982 by its

President, John W. Whitehead, the Institute provides

legal representation without charge to individuals

whose civil liberties are threatened or infringed and

educates the public about constitutional and human

rights issues.

One of the purposes of the Institute is to

advance the preservation of the most basic freedoms

our nation affords its citizens – in this case, the First

Amendment right of public employees to engage in

freedom of religion, speech, and expression. Attorneys

affiliated with the Institute have filed amicus curiae

briefs in this Court and federal courts of appeal on

numerous occasions over the Institute’s history,

including on the issues raised in the Petition.

SUMMARY OF THE ARGUMENT

Once again, this Court is confronted with a case

in which a lower court has eviscerated an individual’s

core First Amendment rights in a misguided attempt

1 Each party has filed a blanket consent for the filing

of amicus briefs. No counsel for a party authored

this brief in whole or in part, and no party or counsel

for a party made a monetary contribution intended

to fund the preparation or submission of this brief.

No person or entity other than Amicus Curiae, its

members, or its counsel made a monetary

contribution to this brief’s preparation or

submission.

2

to prevent a hypothetical Establishment Clause

violation. But unlike in previous cases where the

school’s speech was at issue, this case comes before

the Court on the matter of whether public school

employees may engage in private prayer on school

grounds outside of their official duties. While joining

in Petitioner’s arguments, Amicus writes separately to

request that this Court not only hold definitively that

such a right exists, but to clarify the scope of its prior

ruling in Garcetti v. Ceballos, 547 U.S. 410 (2006). As

the Ninth Circuit’s majority and dissenting opinions

make clear, there is confusion as to the extent of the

Court’s holding in that case, which has in turn

resulted in individuals, including Petitioner, being

denied their constitutional rights.

In addition, absent a formal holding from this

Court that there is a robust First Amendment right to

engage in the conduct in which Petitioner engaged

and that Garcetti does not sweep as broadly as the

Ninth Circuit would have it, citizens run the risk of

self-censoring and school districts run the risk of

terminating

employees

for

engaging

in

constitutionally protected conduct in their (however

well-meaning) desire to avoid the appearance of an

Establishment Clause violation.

In sum, this case is the perfect vehicle for the

Court to help shape the future for religious and other

protected speech and conduct in our nation’s public

schools and provide much needed guidance to lower

courts on the reach – and limits – of Garcetti.

3

ARGUMENT

A.

The Ninth Circuit Erred By Holding

Petitioner’s

Conduct

Was

Not

Protected

Two overarching and immutable principles

undergird this case: First, “religious beliefs and

religious expression are too precious to be either

proscribed or prescribed by the state.”

Lee v.

Weisman, 505 U.S 577, 589 (1992). Second, neither

students nor teachers “shed their constitutional

rights to freedom of speech or expression at the

schoolhouse gate.” Tinker v. Des Moines Indep. Cmty.

Sch. Dist., 383 U.S. 503, 506 (1969).

Eschewing both principles, the District Court

and then the Ninth Circuit failed Petitioner not once,

but (at least) thrice: under each of the Establishment

Clause, the Free Speech Clause, and the Free Exercise

Clause of the First Amendment.

As Judge

O’Scannlain astutely noted in his dissent below, the

Ninth

Circuit’s

ruling

“obliterate[d]

such

constitutional protections . . . by announcing a new

rule that any speech by a public school teacher or

coach, while on the clock and in earshot of others, is

subject to plenary control by the government.”

Kennedy v. Bremerton Sch. Dist., 4 F.4th 910, 930 (9th

Cir. 2021) (O’Scannlain, J., dissenting). Accordingly,

as the Ninth Circuit would have it, while “[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), this does not apply to our nation’s public

schoolteachers and coaches – at least not when the

4

constitutional freedom in question is a brief moment

of private prayer.

As this Court has made clear, the litmus test

for whether speech or conduct violates the

Establishment Clause is whether an objective

observer would perceive one’s religious expression to

be a “State endorsement of prayer in public schools.”

Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308

(2000). In Santa Fe, the Court held that official

prayer at school football games, even when studentled, places the imprimatur of official approval on

religion. That, of course, is a far cry from here.

Petitioner’s prayer was not based on school policies,

but his own conscience. No students were compelled

to participate.

Although several students and members of the

community chose to join Petitioner on the field after

the October 16, 2015 game, Kennedy v. Bremerton

Sch. Dist., 991 F.3d 1004, 1012-13 (9th Cir. 2021),

that appears to have been more of a reaction to the

school district seeking to suppress Petitioner’s

constitutional rights than simply joining him in

prayer since such crowds were not present at previous

games. Nor were crowds present at the following

games on October 23 and 26, 2015, id. at 1013, which

shows that Petitioner praying was not the cause of

any disruption. The fact that Petitioner made the

public aware of the school district’s repressive

responses to his prayers – as was his constitutional

right – did not transform his private prayer on the

football field into public speech, as the Ninth Circuit

held, id. at 1023, because those were separate types of

activities. The fact that no one continued to pray on

5

the field after the school district placed Petitioner on

administrative leave following the October 26, 2015

game, id. at 1013, seems to indicate that the school

district’s actions had a chilling effect on students,

which runs contrary to the role of “America’s public

schools [being] the nurseries of democracy.” Mahanoy

Area Sch. Dist. v. B.L., 141 S. Ct. 2038, 2046 (2021).

Accordingly,

Petitioner’s

conduct

is

fundamentally different from this Court’s school

prayer cases that involved school policies. Indeed, if

the act of taking a knee on the fifty-yard line after a

high school football game has ended and engaging in a

brief moment of silent prayer constitutes unprotected

conduct which violates the Establishment Clause, it is

not hard to imagine what is left protected: only

secular activities. Such discrimination, of course,

would violate the First Amendment. Indeed, it is hard

to believe that the school district – or any school

district – would have taken disciplinary action against

Petitioner had he engaged in a similar, but secular,

act after the conclusion of each game.

Despite the private nature of Petitioner’s

conduct and the fact the school district did not endorse

it implicitly or explicitly, the record makes clear that

the avoidance of a potential Establishment Clause

violation was the basis for the Ninth Circuit’s holding.

In so ruling, however, the Ninth Circuit relegated

Petitioner’s free speech and free exercise rights to an

afterthought.

Amicus recognizes that public

employees, particularly schoolteachers, occupy a

tenuous place between the public and the private in

their official capacities and that the free speech

rights of public employees is a complex legal issue –

6

especially post-Garcetti – requiring a balance between

the right of the employee to be free from government

censorship and the right of the government to ensure

its employees act consistent with their duties. See

Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)

(“The problem . . . is to arrive at a balance between the

interests of the teacher, as a citizen, in commenting

upon matters of public concern and the interest of the

State, as an employer, in promoting the efficiency of

the public services it performs through its

employees.”). However complicated that may be – and

it is surely not that complicated – one must also

remember that “schools do not endorse everything

they fail to censor,” Bd. of Educ. of Westside Cmty.

Sch. v. Mergens ex rel. Mergens, 496 U.S. 226, 250

(1990) (plurality op.), and hypothetical fears of

violating the Establishment Clause provide no basis to

deprive public employees of their First Amendment

rights. But that is precisely what happened here.

B.

This Case Demonstrates The Need To

Define – And Limit – Garcetti

Notwithstanding that the private nature of

Petitioner’s prayer should resolve this matter, Amicus

believes that a large part of the problem in this case

(and others) stems from this Court’s decision in

Garcetti – or more accurately how the Ninth Circuit

and other lower courts have interpreted it.

In

Garcetti, the Court held that speech by a public official

is only protected if it is engaged in as a private citizen,

not if it is expressed as part of the official’s public

duties. Here, the Ninth Circuit held that “[a]pplying

Garcetti to this fact pattern, the record leaves no

doubt that Kennedy’s prayers were speech in his

7

capacity as a public employee.” Kennedy, 4 F.4th at

926. Contrary to the Ninth Circuit’s ruling, there is

significant doubt as to whether Petitioner’s prayers

were “speech in his capacity as a public employee”

given Judge Ikuta, joined by five judges, wrote that

“[u]nder the[] well-publicized circumstances” of the

case, the school district’s “concern that Kennedy’s

religious activities would be attributed to [it] is simply

not plausible.” Id. at 944 (Ikuta, J., dissenting). If the

en banc panel reached such distinct conclusions as to

the impact of Garcetti on the facts of this one case, it is

safe to assume that courts across the country face

similar confusion each day. This Court’s guidance is

thus badly needed.

Amicus submits that while Garcetti allows the

government some leeway to restrict at-work speech of

government employees “when employees make

statements pursuant to their official duties,” 547

U.S. at 421 (emphasis added), the Ninth Circuit went

far beyond this by holding that Petitioner’s private

conduct “made outside the duties of employment,” id.

at 424, was implicated. By so doing, the Ninth Circuit

ignored that a government employee’s speech may be

private even when, as here, it occurs in a public

setting. Pickering, 391 U.S. 563. More troublingly,

the Ninth Circuit’s overexpansive reading of Garcetti

is consistent with that of other courts that have taken

far too broad a reading of the decision – all with

significant ramifications for our nation’s citizen’s

constitutional rights. See Br. of the Liberty Justice

Center in Supp. of Pet’r, Kennedy v. Bremerton Sch.

Dist., No. 21-418, at 7-10

8

Such cases not only threaten First Amendment

freedoms directly, but also indirectly because any

broad interpretation of the scope of Garcetti chills

speech by forcing public employees to self-censor for

fear of reprisals. Accordingly, the Court should take

this opportunity to make clear what Garcetti permits

– and just as importantly, what it does not. See

Kennedy, 4 F.4th at 931 (O’Scannlain, J., dissenting)

(“Our circuit now lies in clear conflict with Garcetti

and decades of Supreme Court cases affirming the

principle that the First Amendment safeguards—not

banishes—private, voluntary religious activity by

public employees.”). Absent such clarification, there

are significant practical implications for public

employees, who will be severely limited in how, when,

and where they practice their religion or other First

Amendment rights. In essence, public employees will

be faced with a choice: practice your religion and risk

losing your job, or cease practicing your religion. This

is no choice at all.

Put simply, there needs to be room for public

employees to engage in the private practice of religion

and other constitutionally protected behavior without

risk of sanction under a broad reading of Garcetti.

“Narrow tailoring is crucial where First Amendment

activity is chilled—even if indirectly—because First

Amendment freedoms need breathing space to

survive.” Americans for Prosperity Found. v. Bonta,

141 S. Ct. 2373, 2384 (2021) (cleaned up). Therefore,

the school district should be “required to find its most

‘narrowly drawn’ alternative.” Capitol Square Review

& Advisory Bd. v. Pinette, 515 U.S. 753, 793-94 (1995)

(Souter, J., concurring in part). Here, for example, the

school district could have permitted (and may still

9

permit) Petitioner to engage in a moment of prayer

while also informing any individuals who expressed

concern that Petitioner’s speech and conduct was his

own. That would have been a small price for the

school district to pay to avoid terminating an

employee who simply wished for a moment of peaceful

prayer after a football game. But the school district

asking Petitioner to hide his faith and not “give

thanks” or glory to God in the sight of others was not

the most narrowly drawn alternative, and made him

feel “dirty” and convicted because “he had broken his

commitment to God.”2 Kennedy, 991 F.3d at 1010-12.

This is the antithesis of the First Amendment.

CONCLUSION

For the foregoing reasons, and those described

by Petitioner and his other Amici, the Court should

2 Indeed, as a “practicing Christian,” Kennedy, 991

F.3d at 1010, Petitioner might feel compelled based

on scripture not to hide his thanks or

acknowledgement of God. Matthew 10:32-33 records

Jesus as saying, “So everyone who acknowledges me

before men, I also will acknowledge before my

Father who is in heaven, but whoever denies me

before men, I also will deny before my Father in

heaven.” Romans 1:21 states “For although they

knew God, they did not honor him as god or give

thanks to him, but they became futile in their

thinking, and their foolish hearts were darkened.”

And Acts 12:23 states that after the people praised

Herod, “[i]mmediately an angel of the Lord struck

[Herod] down, because he did not give God the

glory.” (Bible quotations come from the English

Standard Version.)

10

reverse the decision of the Ninth Circuit and take this

opportunity to clarify – and limit – the reach of

Garcetti.

Respectfully submitted,

John W. Whitehead

Counsel of Record

William E. Winters

Christopher F. Moriarty

THE RUTHERFORD INSTITUTE

109 Deerwood Road

Charlottesville, Virginia 22911

(434) 978-3888

legal@rutherford.org

Counsel for Amicus Curiae