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

Supreme Court briefMar 2, 2022

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No. 21-418

IN THE

Supreme Court of the United States

JOSEPH A. KENNEDY,

Petitioner,

BREMERTON SCHOOL DISTRICT,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR AMICI CURIAE

ELISABETH P. DEVOS AND

DEFENSE OF FREEDOM INSTITUTE

FOR POLICY STUDIES

IN SUPPORT OF PETITIONER

MATTHEW T. MARTENS

Counsel of Record

MATTHEW E. VIGEANT

DOUGLAS W. GATES

ANDREW MILLER

WILMER CUTLER PICKERING

HALE AND DORR LLP

1875 Pennsylvania Ave., NW

Washington, DC 20006

(202) 663-6000

matthew.martens@

wilmerhale.com

TABLE OF CONTENTS

Page

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

INTERESTS OF AMICI CURIAE ................................ 1

SUMMARY OF ARGUMENT ......................................... 2

ARGUMENT ....................................................................... 4

THE NINTH CIRCUIT RELIED ON

IRRELEVANT FACTS ..................................................... 4

II. THE NINTH CIRCUIT’S OVERBOARD VIEW

OF A GOVERNMENT EMPLOYEE’S OFFICIAL

DUTIES WARPED ITS ANALYSIS OF

KENNEDY’S FIRST AMENDMENT RIGHTS.................. 6

A. Kennedy’s Speech Is Not Government

Speech

Under

Supreme

Court

Precedent ............................................................... 7

B. The Ninth Circuit Ignored This Court’s

Guidance ............................................................... 10

III. THE NINTH CIRCUIT’S ESTABLISHMENT

CLAUSE ANALYSIS WAS FLAWED ........................... 15

A. The Ninth Circuit Should Not Have

Relied Entirely On Santa Fe’s

Endorsement Test .............................................. 15

B. The Establishment Clause Analysis

Should Instead Focus On Coercion And

Historical Practice .............................................. 20

CONCLUSION ................................................................. 23

TABLE OF AUTHORITIES

CASES

Page(s)

American Legion v. American Humanist

Ass’n, 139 S. Ct. 2067 (2019) ............. 17, 18, 20, 21, 22

Board of Education of Westside Community

Schools v. Mergens ex rel. Mergens, 496

U.S. 226 (1990) ...................................................... 19, 21

Borden v. School District of Township of East

Brunswick, 523 F.3d 153 (3d Cir. 2008) .................... 5

Connick v. Myers, 461 U.S. 138 (1983) ............................. 9

County of Allegheny v. ACLU, 492 U.S. 573

(1989) ............................................................................ 18

Edwards v. Aguillard, 482 U.S. 578 (1987) ................... 16

Garcetti v. Ceballos, 547 U.S. 410 (2006) ..... 3, 7, 8, 9, 11, 12

Good News Club v. Milford Central School, 533

U.S. 98 (2001) ........................................................ 15, 20

Kennedy v. Bremerton School District, 139 S.

Ct. 634 (2019) (mem.) ......................................... 3, 6, 14

Kennedy v. Bremerton School District, 443 F.

Supp. 3d 1223 (W.D. Wash. 2020)..................... 4, 6, 21

Kennedy v. Bremerton School District, 991

F.3d 1004 (9th Cir. 2021) .................................. passim

Kennedy v. Bremerton School District, 4 F.4th

910 (9th Cir. 2021)............................... 10, 11, 12, 13, 14

Kennedy v. Bremerton School District, 869

F.3d 813 (9th Cir. 2017) ............................................. 13

iii

TABLE OF AUTHORITIES—Continued

Page(s)

Kountze Independent School District v.

Matthews ex rel. Matthews, 2017 WL

4319908 (Tex. App. Sept. 28, 2017) .......................... 13

Lane v. Franks, 573 U.S. 228 (2014) ............. 7, 8, 9, 10, 11

Lee v. Weisman, 505 U.S. 577 (1992) .................. 17, 20, 21

Lemon v. Kurtzman, 403 U.S. 602 (1971) ...................... 16

Lynch v. Donnelly, 465 U.S. 668 (1984) ......................... 18

Marsh v. Chambers, 463 U.S. 783 (1983) ....................... 22

McCreary County v. ACLU of Kentucky, 545

U.S. 844 (2005) ............................................................ 18

Santa Fe Independent School District v. Doe,

530 U.S. 290 (2000) ......................................... 15, 17, 19

Tinker v. Des Moines Independent Community

School District, 393 U.S. 503 (1969) ................. 3, 7, 14

Town of Greece v. Galloway, 572 U.S. 565

(2014) ................................................................ 18, 20, 22

Van Orden v. Perry, 545 U.S. 677 (2005) ................. 18, 22

Wallace v. Jaffree, 472 U.S. 38 (1985) ............................ 16

Waters v. Churchill, 511 U.S. 661 (1994) ......................... 7

INTERESTS OF AMICI CURIAE1

Elisabeth P. DeVos served as the eleventh United

States Secretary of Education. She is a leading advocate for education reform in America, and a staunch defender of rights guaranteed by the First Amendment to

both students and school employees. Secretary DeVos

has long been a public advocate for and defender of religious liberty, particularly in the educational context.

On January 21, 2020, for example, she published “Updated Guidance on Constitutionally Protected Prayer

and Religious Expression in Public Elementary and

Secondary Schools,” school prayer guidance required

by Congress that had been left dormant and stale by

prior administrations since 2003. She is a pioneer in efforts to ensure the protection of students’ and teachers’

religious freedom across the country.

The Defense of Freedom Institute for Policy Studies, Inc. (“DFI”) is a nonprofit, nonpartisan 501(c)(3)

institute dedicated to defending freedom and opportunity for every American family, student, entrepreneur, and worker, as well as to protecting their constitutional and civil rights at school and in the workplace.

DFI promotes policies that foster open, diverse, and

intellectually engaging public schools fully compliant

with the First Amendment to the U.S. Constitution.

DFI places a particular focus on defending persons who

suffer infringements of their First Amendment rights

to protected speech and religious exercise in public

schools.

The parties have consented to the filing of this brief. No

counsel for a party authored this brief in whole or in part, and no

person, other than amici curiae or their counsel, made any monetary contribution to the preparation or submission of this brief.

As preeminent authorities on the intersection of religion and public education, Secretary DeVos and DFI

have a significant interest in and experience with the

issues presented by this matter.

SUMMARY OF ARGUMENT

If, as the Ninth Circuit held, Coach Kennedy cannot silently pray at the school where he was employed,

what is left of the First Amendment for teachers and

coaches?

The Ninth Circuit’s decision below suffers from

numerous defects, both factual and legal, that warrant

reversal. The Ninth Circuit reached its conclusion only

by revising the facts found by the District Court and

then misconstruing the law as previously interpreted

by this Court.

As an initial matter, the Ninth Circuit relied on

facts that simply are not at issue in the instant case.

This case only concerns Joseph Kennedy’s personal

prayers after September 17, 2015, which were not audible and did not entail any overt effort to involve his

players. Indeed, even the photo included in the Ninth

Circuit’s opinion is misleading without the correct context. It does not depict Kennedy’s own players (for

whom he had job responsibilities), but rather players

from the opposing team over whom he exercised no authority. The Ninth Circuit also erred in considering the

media and political attention surrounding this case.

The District Court’s factual finding was that the school

suspended Coach Kennedy solely because of its Establishment Clause concerns, not because of any actions

taken by Kennedy to publicize or discuss the limitations

on his First Amendment rights. Simply, the questions

in this case concern—and only concern—Kennedy’s

“brief, quiet prayer by himself while at school and visible to students.”

The Ninth Circuit’s opinion also suffers from defects in its legal analysis. First, its interpretation of

this Court’s Free Speech precedent is simply wrong.

Ignoring the warnings of four Justices that its interpretation of what constitutes government speech was

“troubling,” Kennedy v. Bremerton Sch. Dist., 139 S.

Ct. 634, 636 (2019) (mem.) (statement of Alito, J.)

(“Kennedy II”), the Ninth Circuit held that silent prayer is somehow an official duty of a football coach, Kennedy v. Bremerton Sch. Dist., 991 F.3d 1004, 1016 (9th

Cir. 2021) (“Kennedy III”). This is despite the fact that

the Bremerton School District (“BSD”) made clear that

post-game prayer by Kennedy violates its policies. Id.

at 1011-1013. The Ninth Circuit’s holding is not only in

conflict with Garcetti v. Ceballos, 547 U.S. 410 (2006),

but it eviscerates the Free Speech rights of coaches and

teachers, who do not “shed their constitutional rights to

freedom of speech or expression at the schoolhouse

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

393 U.S. 503, 506 (1969).

Finally, the Ninth Circuit should have ruled in favor of Kennedy’s Free Exercise and Free Speech

claims. The court below concluded that BSD was justified in prohibiting Kennedy’s religious speech because

“a state interest in avoiding an Establishment Clause

violation may be characterized as compelling.” Kennedy III, 991 F.3d at 1016, 1020 (citations omitted). However, the Establishment Clause analysis ignored this

Court’s recent guidance. The Ninth Circuit should not

have entirely relied on the Lemon-era endorsement

test to analyze these facts and should have instead considered Kennedy’s prayers using an analysis focused on

whether Kennedy’s actions were coercive and how they

fit into American tradition and historical practice. Had

the court below considered those factors, it would have

concluded that Kennedy’s religious speech did not come

anywhere near an Establishment Clause violation, and

would thus not have permitted BSD’s infringement of

his First Amendment rights.

ARGUMENT

THE NINTH CIRCUIT RELIED ON IRRELEVANT FACTS

The Ninth Circuit wrongly considered facts that

are not at issue here. First, this case is not about a

football coach praying with his players in the locker

room before or after the game. “Kennedy ceased praying in the locker room” after the school asked him to do

so in its September 17, 2015 letter. Kennedy v.

Bremerton Sch. Dist., 443 F. Supp. 3d 1223, 1229 (W.D.

Wash. 2020).

Nor is this case about a coach delivering sermons or

speeches replete with religious references after a game.

Again, although Coach Kennedy did say prayers with

his players before September 17, the record is devoid of

any instance in which Coach Kennedy audibly prayed in

the presence of Bremerton High School students after

the school asked him to stop. Instead, the District

Court found that, in each of the three instances in

which Coach Kennedy prayed on the field after September 17, 2015, his own players were “busy singing

the school’s fight song” (October 16 game), “headed to

the stands” (October 23 game), or “joined Kennedy at

the middle of the field after he had finished his kneeling

prayer” and after “the players finished their fight song”

(October 26 game). Kennedy, 443 F. Supp. 3d at 12301231. Although the Ninth Circuit included a photo of

Coach Kennedy kneeling and surrounded by football

players on October 16 in its opinion, Kennedy v.

Bremerton Sch. Dist., 991 F.3d 1004, 1019 (9th Cir.

2021) (“Kennedy III”), it neglected to mention that the

players in the photo were all wearing white jerseys—

they were members of the opposing team who voluntarily joined the prayer (and whom Coach Kennedy

could not possibly have coerced into participating). Cf.

Borden v. School Dist. of Twp. of E. Brunswick, 523

F.3d 153 (3d Cir. 2008) (finding Establishment Clause

violation where coach prayed with his own players).

Nor indeed, would this be remotely in his job responsibilities as he is not hired to coach or otherwise mentor

players from other schools.

Second, the relevant conduct to this case should be

considered irrespective of media or political attention.

The Ninth Circuit’s opinion is replete with references

to Coach Kennedy’s “pugilistic efforts to generate publicity in order to gain approval of [his] on-field religious

activities.” Kennedy III, 991 F.3d at 1017. It contrasted Coach Kennedy’s professed desire to engage in

“personal and private prayer” with his “media blitz”

and concluded that “on-field prayer cannot be construed as personal and private in the context of Kennedy’s publicity leading up to it.” Id. at 1017-1018. Setting aside the question of how much publicity an employee should attempt to generate when he believes

that he has been the victim of unlawful employment

discrimination, the District Court did not find that the

school suspended Coach Kennedy and failed to rehire

him for another season because he generated bad press

for the school or even because outsiders carelessly put

students at risk as they tried to exploit the situation for

their own political motives.

Rather, the District Court found that “the risk of

constitutional liability associated with Kennedy’s reli-

gious conduct was the sole reason the [School] District

ultimately suspended him.” Kennedy, 443 F. Supp. at

1231 (quotation omitted) (emphasis added); see also

Kennedy III, 991 F.3d at 1010 (“When it evaluated

BSD’s actions concerning Kennedy, the district court

held that seeking to avoid an Establishment Clause

claim was the sole reason BSD limited Kennedy’s public actions as it did. We hold that BSD’s allowance of

Kennedy’s conduct would violate the Establishment

Clause; consequently, BSD’s efforts to prevent the conduct did not violate Kennedy’s constitutional rights, nor

his rights under Title VII.” (quotation omitted) (emphasis added)). In other words, the District Court’s

factual finding was that the school suspended Coach

Kennedy solely because it was worried about being

sued for a prohibited establishment of religion.

As Coach Kennedy framed it in his petition for certiorari, the primary facts this case presents are related

to Kennedy’s post-September 17 “brief, quiet prayer by

himself while at school and visible to students.”

II. THE NINTH CIRCUIT’S OVERBOARD VIEW OF A GOVERNMENT EMPLOYEE’S OFFICIAL DUTIES WARPED ITS

ANALYSIS OF KENNEDY’S FIRST AMENDMENT RIGHTS

The Ninth Circuit misinterpreted this Court’s Free

Speech precedent by holding that Kennedy’s brief, silent prayer was government speech that lacked First

Amendment protection. See Kennedy III, 991 F.3d at

1016 (We therefore remain convinced that … ‘Kennedy

spoke as a public employee when he kneeled and

prayed on the fifty-yard line immediately after games

while in view of students and parents[.]’”). The Ninth

Circuit came to this conclusion despite being warned by

four Justices that its view of Kennedy’s Free Speech

claim was “troubling.” Kennedy v. Bremerton School

District, 139 S. Ct. 634, 636 (2019) (mem.) (statement of

Alito, J.) (“Kennedy II”). If the Court does not correct

the Ninth Circuit’s overbroad interpretation of Garcetti

v. Ceballos, 547 U.S. 410 (2006), it will have significant

detrimental effects on the speech of coaches and teachers, as well as citizens writ large.

A. Kennedy’s Speech Is Not Government Speech

Under Supreme Court Precedent

Teachers and coaches do not “shed their constitutional rights to freedom of speech or expression at the

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

Cmty. Dist., 393 U.S. 503, 506 (1969). Thus, while “the

government as employer ... has far broader powers

than does the government as sovereign,” Waters v.

Churchill, 511 U.S. 661, 671 (1994) (plurality op.), “a citizen who works for the government is nonetheless a citizen” and their speech is protected by the First

Amendment, Garcetti, 547 U.S. at 419; see also Lane v.

Franks, 573 U.S. 228, 236 (2014) (“public employees do

not renounce their citizenship when they accept employment, and this Court has cautioned time and again

that public employers may not condition employment

on the relinquishment of constitutional rights”).

To determine when and what speech a government

employer may restrict, the Court in Garcetti established a two-step test:

The first [step] requires determining whether

the employee spoke as a citizen on a matter of

public concern. If the answer is no, the employee has no First Amendment cause of action

based on his or her employer’s reaction to the

speech. If the answer is yes, then the possibility of a First Amendment claim arises. The

question becomes whether the relevant government entity had an adequate justification

for treating the employee differently from any

other member of the general public. This consideration reflects the importance of the relationship between the speaker’s expressions and

employment.

Garcetti, 547 U.S. at 418 (citations omitted).

“The critical question” for the first step of the Garcetti inquiry “is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not

whether it merely concerns those duties.” Lane, 573

U.S. at 240; see also id. at 237 (In “the first step … Garcetti distinguished between employee speech and citizen speech.”). The Court stressed this distinction because “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the

Constitution does not insulate their communications

from employer discipline.” Garcetti, 547 U.S. at 421. So

if the content of the speech is within the scope of an

employee’s duties, it is government speech. Lane, 573

U.S. at 240. If the content lies outside of the employee’s official duties, then the employee is speaking as a

citizen and his or her statements are matters of public

concern. Id.

One way to determine whether the speech is that of

a citizen on a matter of public concern, or of a government employee made pursuant to their official duties, is

to examine if the content has a private analogue. If the

speech “is the kind of activity engaged in by citizens

who do not work for the government,” such as “writing

a letter to a local newspaper or discussing politics with

a co-worker,” then it is likely private speech and pro-

tected. Garcetti, 547 U.S. at 423 (internal citation omitted). But where the speech lacks a “relevant analogue

to speech by citizens who are not government employees,” it is likely government speech. Id. at 424.

As to step two of the inquiry, any “restrictions [the

government] imposes must be directed at speech that

has some potential to affect the entity’s operations.”

Garcetti, 547 U.S. at 418. Further, “a stronger showing

[of government interests] may be necessary if the employee’s speech more substantially involve[s] matters

of public concern.” Lane, 573 U.S. at 242 (quoting Connick v. Myers, 461 U.S. 138, 152 (1983)).

In Garcetti, the Court held that because the speech

at issue—a disposition memorandum written by a deputy district attorney—was made pursuant to the respondent’s official duties, he was not acting as a private

citizen and the speech could be regulated. Garcetti, 547

U.S. at 420-423. That the respondent wrote the memo

in his office during working hours did not automatically

make it government speech, since “[m]any citizens do

much of their talking inside their respective workplaces, and it would not serve the goal of treating public

employees like ‘any member of the general public,’ to

hold that all speech within the office is automatically

exposed to restriction.” Id. at 420-421 (internal citation

omitted). Nor did it matter that the speech concerned

the subject matter of his employment. Id. at 421. Rather, “[t]he controlling factor … is that his expressions

were made pursuant to his duties as a calendar deputy,” e.g., these “official duties” were spelled out and understood. Id.

Contrast the holding in Garcetti with that in Lane.

In Lane, the speech at issue—courtroom testimony—

was found to be that of a private citizen speaking out on

a matter of public concern for two reasons. 573 U.S. at

238-242. First, testifying under oath was not within the

normal scope of the petitioner’s educational job duties;

“[t]he critical question under Garcetti is whether the

speech at issue is itself ordinarily within the scope of an

employee’s duties, not whether it merely concerns

those duties.” Id. at 240. Second, the petitioner’s

sworn testimony was determined to be a subject of

general interest and value to the public. Id. at 241.

With the private nature of the speech established, the

Court determined that there was no adequate justification for treating petitioner any differently than any

other member of the public. Id. at 242-243.

B. The Ninth Circuit Ignored This Court’s Guidance

Applying Garcetti and Lane, it is readily apparent

that the speech at issue—silent, post-game prayer—is

that of a citizen on a matter of public concern, not of an

employee pursuant to his official duties. Applying the

Garcetti framework to Kennedy’s speech, for the first

step, “[t]he critical question … is whether the speech at

issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.” Lane, 573 U.S. at 240. Clearly a brief, solitary

prayer is not within the scope of a football coach’s duties. While “calling a play, addressing the players at

halftime, or teaching how to block and how to tackle”

are speech-based official tasks of a football coach, offering a prayer by oneself is not. Kennedy, 4 F.4th at 936

(O’Scannlain, J.). And even if solitary, quiet prayer

“concerns” those duties—such as praying for the health

of players or giving thanks for the sportsmanship

shown in the game—unless the prayer is an official du-

ty of the coach, it is not government speech. Lane, 573

U.S. at 240.

Analogizing Kennedy’s prayer to the speech at issue in Garcetti, unlike the disposition memo where

“there [wa]s no relevant analogue to speech by citizens

who are not government employees,” 547 U.S. at 424,

here “[m]illions of Americans” who are not government

employees regularly “give thanks to God, a practice

that has nothing to do with coaching a sport.” Kennedy, 4 F.4th at 937 (O’Scannlain, J.). Indeed, the fact

that a prayer is religious in nature should have signaled

that the speech was not made pursuant to any official

duties. And perhaps even more dispositive is the fact

that the District demanded that the coaching staff

comply with its “Religious-Related Activities and Practices” policy, which it interpreted to ban any post-game

prayer. Kennedy III, 991 F.3d at 1011-1013. Saying

that prayer is both contrary to policy and an official duty is a logical contradiction.

As to the second step under Garcetti, there is no

valid justification for treating Kennedy differently from

any other member of the general public and prohibiting

his speech. Garcetti, 547 U.S. at 418. As discussed infra,2 the Ninth Circuit should have found that there

was no Establishment Clause violation if the District

had permitted Kennedy’s prayer.

Even though the application of Garcetti to Kennedy’s prayer is straightforward, the Ninth Circuit tortured it in holding that Kennedy spoke as a public employee. Specifically, the Ninth Circuit held that “Kennedy ‘was one of those especially respected persons

The Ninth Circuit’s second step analysis is solely based on

its flawed Establishment Clause reading, which is discussed below.

chosen to teach on the field, in the locker room, and at

the stadium. He was clothed with the mantle of one

who imparts knowledge and wisdom. Like others in

this position, expression was Kennedy’s stock in

trade.’” Kennedy III, 991 F.3d at 1015. Therefore,

Kennedy’s post-game prayer, on the football field that

he had access to because of his employment, was government speech which could be regulated. Id. In other

words, “by the opinion’s sweeping logic, Kennedy’s

prayer—no matter how personal, private, brief, or quiet—was wholly unprotected by the First Amendment.”

Kennedy, 4 F.4th at 934 (O’Scannlain, J.).

The Ninth Circuit’s twisted analysis is incorrect for

multiple reasons. First, the only behavior at issue is

Kennedy’s “right to engage in brief, personal prayer by

himself on the field at the conclusion of football games.”

Kennedy, 4 F.4th at 931, n.4 (O’Scannlain, J.); see also

App. 180. Kennedy’s post-game speech was not at issue, so the scope of the Ninth Circuit’s analysis was

wrong. Second, it did not matter that Kennedy’s

speech came in “a location that he only had access to

because of his employment.” Kennedy III, 991 F.3d

1015. Even though the respondent in Garcetti “expressed his views inside his office, rather than publicly,” this was “not dispositive.” 547 U.S. at 420. Third,

and most critically, to reach its conclusion the Ninth

Circuit was forced to create an “excessively broad job

description[]” for a football coach, and one that would

apply with equal force to teachers, whose expression is

also their “stock in trade.” Id. at 424.

Specifically, the Ninth Circuit said that Kennedy’s

job description stated that he must “exhibit sportsmanlike conduct at all times,” “‘communicate effectively’

with parents,” “maintain positive media relations,”

“[o]bey all the Rules of Conduct before players and the

public as expected of a Head Coach,” and create “good

human beings.” Kennedy v. Bremerton Sch. Dist., 869

F.3d 813, 825-827 (9th Cir. 2017) (“Kennedy I”). From

that job description, the Ninth Circuit extrapolated out

that Kennedy must “communicat[e] the District’s perspective on appropriate behavior” whenever “in the

presence of students and spectators.” Id. Then extrapolating this overly broad, unwritten, and

unacknowledged duty out further, the Ninth Circuit

reasoned that since the duty to communicate the District’s perspective involves “demonstrative speech,”

the District could regulate any demonstrative speech.

Id. at 828. Since prayer is “demonstrative speech,” the

Ninth Circuit concluded that it is government speech

and can be regulated. Id. at 828; see also Kountze Indep. Sch. Dist. v. Matthews ex rel. Matthews, 2017 WL

4319908, at *4 (Tex. App. Sept. 28, 2017) (“Despite the

fact that the game was over, that he was not exercising

authority over any student-athlete, and that he had no

specific, assigned task at the time of his prayer, the

Ninth Circuit held that the coach’s speech was part of

his ‘job responsibilities.’”).

But if any “demonstrative speech” made while a

coach is on or around a playing field, or made by a

teacher anywhere in a school building, is government

speech that can be regulated, what is left of the First

Amendment for teachers and coaches? Despite the

Ninth Circuit’s conclusory statement to the contrary, a

teacher’s silent prayer in the cafeteria could be regulated under this logic. See Kennedy, 4 F.4th at 935

(O’Scannlain, J.) (“none of these facts does anything to

distinguish the cafeteria scenario (or innumerable others)). This is the exact logic that four Justices warned

of when this case previously came before the Court. As

Justice Alito stated:

Under this interpretation of Garcetti, if teachers are visible to a student while eating lunch,

they can be ordered not to engage in any

“demonstrative” conduct of a religious nature,

such as folding their hands or bowing their

heads in prayer. And a school could also regulate what teachers do during a period when

they are not teaching by preventing them from

reading things that might be spotted by students or saying things that might be overheard.

This Court certainly has never read Garcetti to

go that far. While Garcetti permits a public

employer to regulate employee speech that is

part of the employee’s job duties, we warned

that a public employer cannot convert private

speech into public speech “by creating excessively broad job descriptions.”

Kennedy II, 139 S. Ct. at 636-637 (Alito, J.).

If any demonstrative speech by a coach or teacher

may be regulated, then teachers and coaches will be

forced to “shed their constitutional rights to freedom of

speech or expression at the school-house gate.” Tinker,

393 U.S. at 506. Not only will Tinker effectively be

overruled by the Ninth Circuit’s holding, “[l]ikewise,

the Pickering balancing test would cease to provide

refuge for large swaths of school speech, religious or

not. That cannot be right. For as Kennedy rightly observes in his brief, ‘Garcetti applied Pickering; it did

not overrule it.’” Kennedy, 4 F.4th at 935 (O’Scannlain,

J.). The Court cannot permit this to happen.

III. THE NINTH CIRCUIT’S ESTABLISHMENT CLAUSE ANALYSIS WAS FLAWED

The Ninth Circuit concluded that BSD was justified in engaging in “‘content-based discrimination’”

against Kennedy’s religious speech because a “‘state

interest in avoiding an Establishment Clause violation

may be characterized as compelling.’” Kennedy III, 991

F.3d at 1016, 1020 (quoting Good News Club v. Milford

Cent. Sch., 533, U.S. 98, 112 (2001)). The decision thus

rested on a determination that BSD rightly determined

that Kennedy’s quiet, post-game prayers violate the

Establishment Clause. However, the Ninth Circuit’s

analysis should not have entirely relied on the endorsement test and should have instead considered

Kennedy’s prayers using an analysis primarily focused

on coercion and historical practice.

A. The Ninth Circuit Should Not Have Relied

Entirely On Santa Fe’s Endorsement Test

The Ninth Circuit ignored this Court’s recent guidance by exclusively analyzing the establishment issues

in this case using the endorsement test. See Kennedy

III, 991 F.3d at 1017-1019 (“In sum, there is no doubt

that an objective observer, familiar with the history of

Kennedy’s practice, would view his demonstrations as

BSD’s endorsement of a particular faith.”). The opinion

relied most heavily on Santa Fe Independent School

District v. Doe, 530 U.S. 290, 308 (2000) (finding that

the endorsement test looks to “whether an objective

observer, acquainted with the text, legislative history,

and implementation of the statute, would perceive it as

a state endorsement of prayer in public schools.” (quotation omitted)).

In explaining its use of the endorsement test, the

Ninth Circuit noted that this “‘Court has been particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools,’”

where “‘[t]he State exerts great authority and coercive

power through mandatory attendance requirements,

and because of the students’ emulation of teachers as

role models and the children’s susceptibility to peer

pressure.’” Kennedy III, 991 F.3d at 1017-1019 (quoting Edwards v. Aguillard, 482 U.S. 578, 583-584

(1987)); see also id. (citing Wallace v. Jaffree, 472 U.S.

38, 49-50 (1985)). However, the court below offered

practically no additional discussion of its decision to use

the endorsement test,3 nor did it discuss recent guidance from this Court suggesting that other factors

should be considered instead.

Two problematic threads pervade the precedents

relied on by the Ninth Circuit: First, none evaluated an

employee’s individual, discrete exercise of religion, and

second, each relied on Lemon v. Kurtzman, 403 U.S.

602 (1971). See Wallace, 472 U.S. at 55-61 (applying

Lemon to an Alabama statute’s legislative history and

concluding “that the State intended to characterize

prayer as a favored practice”); Edwards, 482 U.S. at

Indeed, the Ninth Circuit opinion offers no discussion of its

decision to rely entirely on the endorsement test as articulated by

Santa Fe. Instead, its analysis states broad anti-establishment

principles, which, while relatively uncontroversial, are also not

explanatory of its decision to rely entirely on the endorsement test

nor particularly insightful for the facts that were before it. See

Kennedy III, 991 F.3d at 1017 (“The [Establishment] Clause ‘mandates government neutrality between religion and religion, and

between religion and nonreligion.’ … [T]he Clause ‘proscribes public schools from conveying or attempting to convey a message that

religion or a particular religious belief is favored or preferred.’”

(citations omitted)).

585-594 (applying Lemon to hold that a state statute

regulating schools’ science curriculum violated the Establishment Clause); Lee v. Weisman, 505 U.S. 577, 587

(1992) (holding under Lemon that permitting a member

of the clergy to offer an invocation and a benediction at

a school graduation ceremony amounts to “government

involvement with religious activity [that] is pervasive,

to the point of creating a state-sponsored and statedirected religious exercise in a public school”); Santa

Fe, 530 U.S. at 314-317 (applying Lemon to invalidate

school policy allowing students to lead pre-game prayer

over the public announcement system).

To the extent Lemon has any remaining precedential value, it is exceedingly limited, as a majority of this

Court has recently reiterated. See American Legion v.

American Humanist Ass’n, 139 S. Ct. 2067, 2080, 2087

(2019) (plurality opinion) (collecting Establishment

Clause cases where Lemon was not followed or ignored,

and noting that in recent cases, “we have taken a more

modest approach that focuses on the particular issue at

hand and looks to history for guidance.”)); id. at 2102

(Thomas, J., concurring) (describing the Lemon test as

“long-discredited” and suggesting that it should be

overruled in “all contexts”); id. at 2093 (Kavanaugh, J.,

concurring) (“[T]he Lemon test is not good law and

does not apply to Establishment Clause cases in any of

the five categories [including prayer in schools]”); id. at

2101 (Gorsuch, J., concurring in the judgment) (“Lemon

was a misadventure.”).

Indeed, even were it good precedent, Lemon cannot explain many types of Establishment Clause cases,

including “the prayers that open legislative meetings,

certain references to, and invocations of, the Deity in

the public words of public officials; the public references to God on coins, decrees, and buildings; or the at-

tention paid to the religious objectives of certain holidays, including Thanksgiving.” Id. at 2080-2081, (citing

Van Orden v. Perry, 545 U.S. 677, 699-700 (2005)

(Breyer, J., concurring) (citation omitted)). And “the

Lemon test presents particularly daunting problems in

cases … that involve the use, for ceremonial, celebratory, or commemorative purposes, of words … with religious associations.” Id. at 2081-2082.

Yet despite these statements about Lemon’s shortcomings, the Ninth Circuit decided—with little discussion—to rely entirely on the endorsement test, which

originated from Lemon’s purpose and effects prongs.

See, e.g., County of Allegheny v. ACLU, 492 U.S. 573,

592 (1989), abrogated by Town of Greece v. Galloway,

572 U.S. 565 (2014); Lynch v. Donnelly, 465 U.S. 668,

689-690 (1984) (O’Connor, J., concurring) (stating that

the endorsement test operates as a “clarifi[cation of]

the Lemon test as an analytical device.”).

Just as the Lemon test should not be extended, neither should the endorsement test. See American Legion, 139 S. Ct. at 2080-2081 (plurality opinion) (four

Justices rejecting the usefulness of the Lemon test,

specifically noting that its second prong asks whether a

reasonable observer would conclude that the activity

was an endorsement of religion—i.e., the endorsement

test); id. at 2101 (Gorsuch, J., concurring) (expressing

disapproval of the endorsement prong specifically, and

of lower courts’ uses of it in light of Lemon). Indeed,

the endorsement test has not even been used by this

Court since 2005, see McCreary Cnty. v. ACLU of Ky.,

545 U.S. 844 (2005).

The Ninth Circuit, however, analyzed this case’s

establishment issues primarily using endorsement criteria, asking:

[W]hether an objective observer, familiar with

the history of Kennedy’s on-field religious activity, coupled with his pugilistic efforts to generate publicity in order to gain approval of

those on-field religious activities, would view

[the school district’s] allowance of that activity

as “stamped with [his or] her school’s seal of

approval.”

Kennedy III, 991 F.3d at 1017 (quoting Santa Fe, 530

U.S. at 308).

The endorsement test was also poorly applied to

these facts. BSD’s “degree of … involvement,” Santa

Fe, 530 U.S. at 305, in Kennedy’s private prayers was

nonexistent, except to the extent it requested that he

stop his religious exercise. Cf. id. at 302-308 (finding

unconstitutional a school policy authorizing religious

prayer before all games and providing access to the

public address system to effectuate that policy). Declining to censor protected speech does not constitute

impermissible government endorsement. See Board of

Educ. of Westside Cmty. Schs. v. Mergens ex rel. Mergens, 496 U.S. 226, 250 (1990) (plurality op.) (“[S]chools

do not endorse everything they fail to censor.”). Indeed, Kennedy was coaching high school football, and

“secondary school students are mature enough … to

understand that a school does not endorse or support …

speech that it merely permits on a nondiscriminatory

basis.” Id. This can only be truer where, as here, the

relevant government entity explicitly disclaimed the

protected speech of its employee.

Thus, even if the endorsement test were the best

way to analyze these facts, it does not follow that a

government entity’s non-action—much less its disclaimer—of an individual’s personal religious exercise

and speech would be viewed as an endorsement of the

same.

B. The Establishment Clause Analysis Should

Instead Focus On Coercion And Historical

Practice

BSD’s Establishment Clause concerns instead

should be analyzed by addressing: (i) whether Kennedy’s quiet, individual prayer “coerced” students into

religious practices or beliefs; and (ii) how the type of

prayer at issue fits within the nation’s history and tradition. See American Legion, 139 S. Ct. at 2093 (Kavanaugh, J., concurring).

The coercion test strikes a balance in Establishment Clause analysis that other formulations do not. It

forbids the government from compelling its citizenry to

adopt one sect over another, or religion over nonreligion, without overly encroaching on citizens’ individual exercises of free speech and religion. Recognizing the benefits, this Court has considered coercion as a

key factor in Establishment Clause cases, including in

relatively recent cases related to schools. See generally

Good News Club, 533 U.S. 98; Weisman, 505 U.S. 577;

see also American Legion, 139 S. Ct. at 2093 (Kavanaugh, J., concurring) (“[T]he Court has proscribed

government-sponsored prayer in public schools … not

because of Lemon, but because [it] posed a risk of coercion of students.”).

To be coercive, a practice must allocate benefits or

burdens on the basis of religious beliefs or participation. See Town of Greece, 572 U.S. at 589 (plurality op.).

Coercion does not mean subjectively taking offense

when encountering a religious practice. Id. (“Offense,

however, does not equate to coercion.”). Courts must

“‘distinguish between real threat’” of an establishment

“‘and mere shadow.’” American Legion, 139 S. Ct. at

2091 (Breyer, J., concurring). As discussed earlier,

there is heightened sensitivity to the inherent coercive

risks involved in the education of younger children.

However, younger children are distinguishable from

adolescents and from young adults. See Mergens, 496

U.S. at 250 (plurality op.) (noting the differences in impressionability between age groups). In the school context, coercion analysis may also consider the extent of

supervision and the pressures on students to participate in the prayer or religious activity. Weisman, 505

U.S. at 593.

Considering these factors, the instant facts counsel

toward finding that Kennedy’s quiet, individual prayers

were not coercive. First and foremost, BSD did not

support, but opposed Kennedy’s prayer. If the relevant

government entity is opposed to the prayer, it is hard

to imagine that the same entity would be coercing its

students to participate in it. Second, Kennedy did “‘not

actively encourage[] or require[] [student] participation.’” Pet.App.218 (third brackets in original); Kennedy III, 991 F.3d at 1010. Third, there is no evidence in

the record that Kennedy treated any players better or

worse based on their participation or lack thereof in his

personal post-game prayers, nor did any of Kennedy’s

players testify that they feared retaliatory treatment.

While the district court noted that some parents expressed “that their children had participated in the

prayers to avoid being separated from the rest of the

team or ensure playing time,” Kennedy, 443 F. Supp. 3d

at 1229, the children did not themselves so testify. Nor

is there any evidence to substantiate that unfounded

fear, if it existed. Without any evidence of coercion,

there is nothing to animate BSD’s Establishment

Clause concerns, and thus no compelling interest in

prohibiting Kennedy’s prayers.

Finally, this Court should again take into consideration the place of public prayer in American history and

tradition in making its Establishment Clause determination. This is a time-honored way of analyzing the

propriety of government action. For example, in Van

Orden, the plurality analyzed a monument’s nature in

the context of American history in determining its constitutionality. 545 U.S. at 686; see also id. at 699,

(Breyer, J., concurring) (recognizing the Court’s reliance on history in some contexts). Likewise, Marsh v.

Chambers, 463 U.S. 783, 787-789 (1983), and Town of

Greece, 572 U.S. at 575-576, relied on historical practices and understandings to determine the constitutionality of legislative prayer. And most recently, this

Court’s decision in American Legion featured a majority of Justices analyzing the Establishment Clause issue

in light of its historical backdrop. 139 S. Ct. 2067 (plurality op.); see also id. at 2096 (Thomas, J., concurring

in the judgment); id. at 2102 (Gorsuch, J., concurring in

the judgment). Thus, in addition to considering coercion, the Establishment Clause analysis should account

for whether the type of prayer in this case has a foundation in America’s “history or tradition.” Id. at 2093

(Kavanaugh, J., concurring).

Other briefs in this case have well covered the history of public prayer, and of prayer in connection with

football games. See, e.g., Alabama Center Br. 7-15. The

inevitable conclusion is that the practice has a rich history in our nation, both from the broad perspective of

public prayer, and in the specific context of the game at

issue in this case. This Court should correct the Ninth

Circuit’s misapplication of the Establishment Clause to

this case given the lack of coercion in Kennedy’s pray-

ers, and the robust historical context for and practice of

such activities.

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.