Amicus Curiae Brief — Joseph A. Kennedy, Petitioner v. Bremerton School District
Supreme Court briefMar 31, 2022
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No. 21-418
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In The
Supreme Court of the United States
---------------------------------♦--------------------------------JOSEPH A. KENNEDY,
Petitioner,
v.
BREMERTON SCHOOL DISTRICT,
Respondent.
---------------------------------♦--------------------------------On Writ Of Certiorari To The
United States Court Of Appeals
For The Ninth Circuit
---------------------------------♦--------------------------------BRIEF OF BAPTIST JOINT COMMITTEE
FOR RELIGIOUS LIBERTY, AMERICAN JEWISH
COMMITTEE, EVANGELICAL LUTHERAN
CHURCH IN AMERICA, AND GENERAL SYNOD
OF THE UNITED CHURCH OF CHRIST AS
AMICI CURIAE IN SUPPORT OF RESPONDENT
---------------------------------♦--------------------------------K. HOLLYN HOLLMAN
JENNIFER L. HAWKS
BAPTIST JOINT COMMITTEE
FOR RELIGIOUS LIBERTY (BJC)
200 Maryland Ave. N.E.
Washington, D.C. 20002
(202) 544-4226
hhollman@bjconline.org
DOUGLAS LAYCOCK
Counsel of Record
UNIVERSITY OF VIRGINIA
SCHOOL OF LAW
214 Sprigg Lane
Charlottesville, VA 22903
(512) 656-1789
dlaycock@virginia.edu
CHRISTOPHER C. LUND
WAYNE STATE UNIVERSITY
LAW SCHOOL
471 West Palmer St.
Detroit, MI 48202
(313) 577-3933
lund@wayne.edu
(Additional Counsel Listed On Inside Cover)
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
HEATHER E. KIMMEL
UNITED CHURCH OF CHRIST
MARC STERN
AMERICAN JEWISH COMMITTEE
THOMAS A. CUNNIFF
ROBERT W. TUTTLE
EVANGELICAL LUTHERAN
CHURCH IN AMERICA
(Full contact information for all counsel
is set forth on the signature page.)
i
TABLE OF CONTENTS
Page
Table of Authorities .............................................
ii
Interest of Amici ..................................................
1
Summary of Argument ........................................
3
Argument .............................................................
4
I.
Petitioner’s Speech Is Government Speech.....
6
II.
Petitioner’s Contrary Theory Is Unpersuasive ............................................................. 17
A. Petitioner’s Theory Has No Limits ...... 17
B. Petitioner’s Claims Are Inconsistent
with a Broad and Longstanding Consensus About Religion in Public
Schools ................................................. 26
C. Petitioner’s Theory Is at Odds with
Both Congress’s View and This Court’s
View of the Equal Access Act .............. 30
Conclusion............................................................ 33
ii
TABLE OF AUTHORITIES
Page
CASES
Bd. of Educ. v. Mergens, 496 U.S. 226 (1990) ..... passim
Bd. of Educ. v. Pico, 457 U.S. 853 (1982) ....................24
Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786
(2011) .......................................................................18
Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682
(2014) .......................................................................14
Capitol Square Review & Advisory Bd. v. Pinette,
515 U.S. 753 (1995) ............................................. 5, 23
Connick v. Myers, 461 U.S. 138 (1983) .........................7
Doe v. Santa Fe Indep. Sch. Dist., 168 F.3d 806
(5th Cir. 1999)..........................................................26
Dr. A. v. Hochul, 142 S. Ct. 552 (2021)........................15
Edwards v. Aguillard, 482 U.S. 578 (1987) ..................8
Engel v. Vitale, 370 U.S. 421 (1962) ..............................8
Garcetti v. Ceballos, 547 U.S. 410 (2006)......................6
Good News Club v. Milford Cent. Sch., 533 U.S.
98 (2001) ................................................................ 1, 5
Heffron v. Int’l Soc’y for Krishna Consciousness,
452 U.S. 640 (1981) .................................................23
Karen B. v. Treen, 653 F.2d 897 (5th Cir. 1981),
aff ’d mem., 455 U.S. 913 (1982) .......................... 5, 26
Kennedy v. Bremerton Sch. Dist., 139 S. Ct. 634
(2019) .......................................................................22
iii
TABLE OF AUTHORITIES—Continued
Page
Lamb’s Chapel v. Ctr. Moriches Union Free Sch.
Dist., 508 U.S. 384 (1993) ..........................................5
Lee v. Weisman, 505 U.S. 577 (1992) ........................ 2, 5
Matal v. Tam, 137 S. Ct. 1744 (2017) .........................19
M.B. ex rel. Bedi v. Rankin Cty. Sch. Dist., No.
3:13CV241-CWR-FKB, 2015 WL 5023115 .............26
Pleasant Grove City v. Summum, 555 U.S. 460
(2009) .......................................................................24
Polk County v. Dodson, 454 U.S. 312 (1981)...............10
Rosenberger v. Rector & Visitors of the Univ. of
Va., 515 U.S. 819 (1995) .................................. 1, 5, 23
Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290
(2000) ..................................................................... 2, 5
Sch. Dist. of Abington Twp. v. Schempp, 374 U.S.
203 (1963) ...................................................... 8, 17, 19
Snyder v. Phelps, 562 U.S. 443 (2011) ........................19
Town of Greece v. Galloway, 572 U.S. 565 (2014) ..... 8, 18
United States v. Classic, 313 U.S. 299 (1941).............10
Van Orden v. Perry, 545 U.S. 677 (2005) ......................8
West v. Atkins, 487 U.S. 42 (1988) ........................... 9, 10
Widmar v. Vincent, 454 U.S. 263 (1981) ................... 2, 5
Young v. Am. Mini Theatres, Inc., 477 U.S. 50
(1976) .......................................................................23
iv
TABLE OF AUTHORITIES—Continued
Page
STATUTES
Equal Access Act of 1984, 20 U.S.C. §§ 40714074 .........................................................................30
Title VII of the Civil Rights of 1964, 42 U.S.C.
§§ 2000e, 2000e-2(a) ................................................12
SECONDARY AUTHORITIES
Brief of American Jewish Congress et al. (including Baptist Joint Committee) as Amici
Curiae in Support of Respondents, Lee v. Weisman, 505 U.S. 577 (1992) (No. 90-1014) ...................2
Brief of Baptist Joint Committee et al. as Amici
Curiae in Support of Respondents, Bd. of
Educ. v. Mergens, 496 U.S. 226 (No. 88-1597)...........1
Brief of Baptist Joint Committee et al. as Amicus
Curiae in Support of Respondents, Santa Fe
Indep. Sch. Dist. v. Doe, 530 U.S. 290 (No. 9962) ..............................................................................2
Brief of Baptist Joint Committee as Amicus Curiae in Support of Respondents, Widmar v.
Vincent, 454 U.S. 263 (1981) (No. 80-689) ................2
Brief of Christian Legal Society et al. as Amici
Curiae in Support of Petitioners, Rosenberger
v. Rector & Visitors of the Univ. of Va., 515 U.S.
819 (No. 94-329) ........................................................1
Brief of Douglas Laycock as Amicus Curiae in
Support of Petitioners, Good News Club v.
Milford Cent. Sch., 533 U.S. 98 (No. 99-2036) ..........1
v
TABLE OF AUTHORITIES—Continued
Page
Brief of National Council of Churches et al. (including Baptist Joint Committee) as Amici
Curiae in Support of Petitioners, Good News
Club v. Milford Cent. Sch., 533 U.S. 98 (No. 992036) ..........................................................................1
Brief of Respondents, Santa Fe Indep. Sch. Dist.
v. Doe, 530 U.S. 290 (No. 99-62) ................................2
Jason Isbell, Speed Trap Town, in SOMETHING
MORE THAN FREE (2015) ..........................................14
Douglas Laycock, Equal Access and Moments of
Silence: The Equal Status of Religious Speech
by Private Speakers, 81 NW. U.L. REV. 1
(1986) .........................................................................2
Office of the Federal Register, National Archives
and Records Administration, Memorandum
on Religious Expression in Public Schools,
https://www.govinfo.gov/content/pkg/PPP-1995book2/pdf/PPP-1995-book2-doc-pg1083.pdf
(July 12, 1995) .........................................................28
Religion in the Public Schools: A Joint Statement
of Current Law (1995), https://bjconline.org/
wp-content/uploads/2014/05/Religion-in-publicschools-joint-statement.pdf................................. 3, 27
A Teacher’s Guide to Religion in the Public
Schools, reprinted in FINDING COMMON GROUND:
A FIRST AMENDMENT GUIDE TO RELIGION AND
PUBLIC EDUCATION (Charles C. Haynes & Oliver
Thomas eds., 2007), https://www.freedomforum
institute.org/wp-content/uploads/2016/10/FCG
complete.pdf ...................................................... 29, 30
vi
TABLE OF AUTHORITIES—Continued
Page
U.S. Department of Education, Guidance on
Constitutionally Protected Prayer and Religious
Expression in Public Elementary and Secondary Schools (Jan. 21, 2020), https://www2.ed.
gov/policy/gen/guid/religionandschools/prayer_
guidance.html..........................................................28
U.S. Department of Education, Guidance on
Constitutionally Protected Prayer in Public
Elementary and Secondary Schools (Feb. 7,
2003), https://www2.ed.gov/policy/gen/guid/
religionandschools/prayer_guidance-2003.html ........28
U.S. Department of Education, Guidelines on Religious Expression in Public Schools (June 1998),
https://files.eric.ed.gov/fulltext/ED416591.pdf .......28
1
INTEREST OF AMICI1
The Baptist Joint Committee for Religious
Liberty (BJC) serves sixteen supporting organizations, including state and national Baptist conventions
and conferences, and has vigorously supported both
the free exercise of religion and freedom from religious
establishments for all of its eighty years. BJC addresses only religious liberty and church-state separation issues, and believes that strong enforcement of
both Religion Clauses is essential to religious liberty
for all Americans.
In cases involving public schools, BJC and counsel
Professor Douglas Laycock have long defended both
sides of the constitutional line that properly separates
individual religious speech from government religious
speech. They vigorously support freedom of religious
speech, and they have repeatedly urged the Court to
defend the right to religious speech in public places
against attempts to recharacterize that speech as
governmental.2 They have also repeatedly urged the
1
This brief was prepared and funded entirely by amici and
their counsel. No other person contributed financially or otherwise. All parties have consented in writing to this brief.
2
See Brief of National Council of Churches et al. (including
Baptist Joint Committee) as Amici Curiae in Support of Petitioners, Good News Club v. Milford Cent. Sch., 533 U.S. 98 (No. 992036); Brief of Douglas Laycock as Amicus Curiae in Support of
Petitioners, Good News Club, 533 U.S. 98 (No. 99-2036); Brief of
Christian Legal Society et al. as Amici Curiae in Support of Petitioners, Rosenberger v. Rector & Visitors of the Univ. of Va., 515
U.S. 819 (No. 94-329) (Douglas Laycock, Counsel of Record); Brief
of Baptist Joint Committee et al. as Amici Curiae in Support of
Respondents, Bd. of Educ. v. Mergens, 496 U.S. 226 (No. 88-1597)
2
Court to protect citizens, and especially students in
public schools, from the press of government religious
speech that government actors have attempted to recharacterize as private.3
The American Jewish Committee is an organization of American Jews founded in 1906. It has long
insisted both on the right of private religious expression in the schools and the imperative for public
schools and school officials to remain scrupulously religiously neutral.
The Evangelical Lutheran Church in America (ELCA) is the largest Lutheran denomination in
North America. The General Synod of the United
Church of Christ is the representative body of the
United Church of Christ (UCC), formed from a union
of the Evangelical and Reformed Church and The General Council of the Congregational Christian Churches
of the United States. Both religious bodies and their
predecessor organizations have longstanding and deep
(Douglas Laycock, Counsel of Record); Brief of Baptist Joint Committee as Amicus Curiae in support of Respondents, Widmar v.
Vincent, 454 U.S. 263 (1981) (No. 80-689); see generally Douglas
Laycock, Equal Access and Moments of Silence: The Equal Status
of Religious Speech by Private Speakers, 81 NW. U.L. REV. 1
(1986).
3
See Brief of Respondents, Santa Fe Indep. Sch. Dist. v. Doe,
530 U.S. 290 (No. 99-62) (Douglas Laycock, Counsel of Record);
Brief of Baptist Joint Committee et al. as Amicus Curiae in Support of Respondents, Santa Fe, 530 U.S. 290 (No. 99-62); Brief of
the American Jewish Congress et al. (including Baptist Joint
Committee) as Amici Curiae in Support of Respondents, Lee v.
Weisman, 505 U.S. 577 (1992) (No. 90-1014) (Douglas Laycock,
Counsel of Record).
3
commitments to the free exercise of religion and the
separation of religion from government. More specifically, the two organizations are committed to the general prohibition on government-sponsored religious
speech, as reflected in their endorsement of Religion in
the Public Schools: A Joint Statement of Current Law
(1995).4
---------------------------------♦---------------------------------
SUMMARY OF ARGUMENT
The critical issue in this case is whether Petitioner’s on-field prayers are government speech restricted by the Establishment Clause or private speech
protected by the Free Speech and Free Exercise
Clauses. This distinction is deeply rooted in precedent
and constitutional text, and few litigants openly reject
it. Instead, litigants attempt to evade the distinction
by manipulating the line between private speech and
governmental speech. This Court has diligently resisted those efforts, particularly in the context of the
public schools. Petitioner’s speech was governmental,
and the Court should reject his expansive claim that
he spoke only in his private capacity.
I. Petitioner was a government employee, who
prayed on the fifty-yard line—who, in fact, had free access to the fifty-yard line only because of his job. While
the Free Exercise and Free Speech Clauses protect his
religious speech and exercise in a variety of ways, the
Establishment Clause does not allow him to use his
4
See infra note 10.
4
position in ways that compel, pressure, persuade, or influence his students to engage in religious activity. The
record and the findings below are clear that this is
what he was doing here.
II. Petitioner offers no limiting principle to his
theory that his speech is private and protected by
“the most demanding form of constitutional scrutiny.”
Pet. Br. 36. His theory would enable public-school
teachers and coaches to push their views (religious,
anti-religious, and otherwise) on their students in a
wide variety of situations. A classroom teacher could
disclaim school sponsorship and then harangue his
students to convert to his religion. Petitioner’s claims
are at odds with decades of settled case law, executive
branch guidance on religion in the public schools, and
an Act of Congress specifically designed to protect religious expression in the public schools. Petitioner’s theory is novel and unpersuasive, and it should be
rejected.
---------------------------------♦---------------------------------
ARGUMENT
The critical issue in this case is whether Petitioner’s on-field prayers are “government speech endorsing religion, which the Establishment Clause
forbids,” or whether they are “private speech endorsing
religion, which the Free Speech and Free Exercise
Clauses protect.” Bd. of Educ. v. Mergens, 496 U.S. 226,
250 (1990) (plurality opinion). Given its solid foundation in precedent and constitutional text, few these
5
days openly reject this distinction. But attempts at
evasion—where both sides try to win by manipulating
the line between private speech and governmental
speech—are common. This Court has diligently resisted those efforts, particularly in the context of the
public schools. The Court should likewise reject Petitioner’s misguided effort in this case.
In a series of cases going back more than forty
years, this Court has seen through efforts to cast private speech as governmental. See Good News Club v.
Milford Cent. Sch., 533 U.S. 98 (2001); Rosenberger v.
Rector & Visitors of the Univ. of Va., 515 U.S. 819
(1995); Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753 (1995); Lamb’s Chapel v. Ctr.
Moriches Union Free Sch. Dist., 508 U.S. 384 (1993);
Mergens, supra; Widmar v. Vincent, 454 U.S. 263
(1981). And it has resisted equally misbegotten efforts
to cast governmental speech as private. See Santa Fe
Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000); Lee v. Weisman, 505 U.S. 577 (1992); Karen B. v. Treen, 653 F.2d
897 (5th Cir. 1981), aff ’d mem., 455 U.S. 913 (1982).
Lead amicus Baptist Joint Committee and its frequent counsel Douglas Laycock have long encouraged
the Court to defend both sides of this line, because doing so properly reflects the way the Religion Clauses
work together to protect religious liberty. They have
vigorously supported freedom of religious speech, and
have repeatedly urged the Court to defend the right to
religious speech in public places against attempts to
recharacterize that speech as governmental. They
have also repeatedly urged the Court to protect
6
citizens, and especially students in the public schools,
from the press of government religious speech that
government actors tried to recharacterize as private.5
This case presents the second of these two situations. Petitioner claims that his prayers are private
speech. But these prayers must be understood as governmental, because they present all the dangers of government religious speech to an audience of students in
public schools. Parents are entitled to send their children to the public schools, and allow them to participate in extracurricular activities, without having any
concern that teachers or coaches will induce their children to become more or less religious—or religious in
a different way from what is taught at home. This is
why government religious speech is tightly restricted
in the public schools, and this is why Petitioner’s prayers must be understood as governmental.
I.
Petitioner’s Speech Is Government Speech.
This case so far has mostly been framed as a Pickering-style free speech case, with the central question
being whether Petitioner was “act[ing] as a citizen”
when he prayed, or whether he was “act[ing] as a government employee.” Garcetti v. Ceballos, 547 U.S. 410,
422 (2006). While this inquiry generally corresponds
with the private/governmental distinction in the Religion Clauses, there are two significant differences.
5
See supra notes 2-3 (providing citations to the relevant
briefs).
7
First, the Pickering cases grow out of “the right
of citizens to participate in political affairs,” Connick v.
Myers, 461 U.S. 138, 145 (1983) (emphasis added), so
they protect speech only if it addresses matters of
public concern. See Garcetti, 547 U.S. at 418. But the
Free Speech and Free Exercise Clauses, read together
and in light of each other, offer independent protections for religious speech and religious exercise that
are in some ways broader than those of the Free
Speech Clause alone.
Private religious speech is protected by the Constitution whether or not it addresses a matter of public
concern. A Muslim woman who wears a veil to work at
a government job is protected by the Constitution, regardless of whether she wears the veil to make a statement on an issue of public concern—regardless, in fact,
of whether she wears the veil to make a statement at
all. Petitioner’s prayers clearly did not address matters
of public concern, and so far as amici are aware, no one
has claimed otherwise.
More crucially for this case, Pickering had no occasion to consider the change in values on the employer’s
side when religious speech is involved. “[T]he Establishment Clause,” after all, “is a specific prohibition on
forms of state intervention in religious affairs with no
precise counterpart in the speech provisions.” Lee, 505
U.S. at 591. The focus in Pickering was on whether the
employer could restrict the employee’s private speech.
But here, Petitioner’s speech was governmental, and
the Constitution restricts that speech whether his
8
employer chooses to prohibit it or permit it, restrict it
or encourage it.
The Establishment Clause puts limits on government speech. Governments “must not press religious
observances upon their citizens.” Van Orden v. Perry,
545 U.S. 677, 683 (2005). “Government may not mandate a civic religion” or “prescribe a religious orthodoxy.” Town of Greece v. Galloway, 572 U.S. 565, 581
(2014).
This Court has sometimes relaxed these rules in
contexts involving “mature adults, who presumably
are not readily susceptible to religious indoctrination
or peer pressure.” Id. at 590. But the public schools
have always been different.
School-sponsored prayer has long been recognized
as unconstitutional. See Sch. Dist. of Abington Twp. v.
Schempp, 374 U.S. 203 (1963); Engel v. Vitale, 370 U.S.
421 (1962). “The State exerts great authority and coercive power through mandatory attendance requirements.” Edwards v. Aguillard, 482 U.S. 578, 584 (1987).
Parents, including those who would prefer a private religious education if it were available to them, “entrust
public schools with the education of their children but
condition their trust on the understanding” that the
school “will not purposely be used to advance religious
views [in] conflict with [their own] beliefs.” Id. So when
it comes to religious exercises sponsored by the public
schools, the Court has been understandably and unmistakably firm: “No holding by this Court suggests
9
that a school can persuade or compel a student to participate in a religious exercise.” Lee, 505 U.S. at 599.
Yet because the government can act only through
the human beings who are its agents, the Establishment Clause means nothing unless it binds people acting on the government’s behalf. Petitioner says that
“public-school teachers, no less than students” retain
their “constitutional rights to freedom of speech or expression” inside the school. Pet. Br. at 1 (emphasis
added) see also Pet. Br. at 30 (same language). But the
italicized portion of that statement cannot be right.
Students and teachers both have significant rights
of religious free speech and free exercise, but they differ in a fundamental respect. While the role of students
is typically private, teachers stand in two sets of shoes
at once. Vis a vis their governmental employer, a public-school teacher is both an agent and a private person, and as a private person, endowed with rights
under the Free Speech and Free Exercise Clauses. But
vis a vis their students, a public-school teacher is the
government, bound by the strictures of the Establishment Clause. Both interests must be taken seriously—
these cases require courts to strike a balance between
the teacher’s constitutional rights and the teacher’s
constitutional obligations.
Ordinary state-action principles help show why
Petitioner was a state actor. Petitioner was a government employee, and “[s]tate employment is generally
sufficient to render the defendant a state actor.” West
10
v. Atkins, 487 U.S. 42, 49 (1988).6 Petitioner here had
not left work. He was still on the field. If he had returned to the locker room and spoken to his players, or
gone to the sidelines and spoken with reporters, he
would have done so as a state actor. Petitioner had free
access to the field here only because of his governmental position, Pet. App. 8, meaning that his actions were
“possible only because [he was] clothed with [governmental] authority.” United States v. Classic, 313 U.S.
299, 326 (1941).
Petitioner admitted that he was on duty at least
until his players leave. Jt. App. 275-76. When he
prayed, he was still responsible for his players, who
had not yet dressed in street clothes and left the
school’s premises. He was still very much in a position
of authority over them, not only with respect to any
disciplinary incident that might arise in the aftermath
of the game, but also with respect to playing time in
the next game.
And he was still very much in his role as coach,
leading, reviewing, and motivating players. Suppose
Petitioner had crossed the field and launched a racist
tirade against minority players on the other team, and
that some sort of litigation ensued against the Respondent school district. Respondent could hardly
6
Amici note that the word “generally” appears in this formulation only because of this Court’s earlier encounter with public
defenders, who find themselves in the strange position of working
simultaneously both for and against the government—a situation
totally inapplicable here. See Polk County v. Dodson, 454 U.S. 312
(1981).
11
defend on the ground that Petitioner was speaking
only in his personal capacity and not as an employee
of the school. It might have other meritorious defenses,
but not that one.
Calling this a “zero-tolerance policy for religious
speech,” Petitioner fears a world where teachers and
coaches are barred from “wearing a yarmulke in the
classroom, making the sign of the cross before eating a
meal in the cafeteria, or performing midday salah in a
visible location.” Pet. Br. at 30. Amici fear such a world
as well. But few of the things Petitioner describes are
constitutionally problematic, for multiple reasons.
First, they are no part of the teacher’s job and are
in no way entangled with the teacher’s duties. They are
not aimed at a student audience. Nor do they pressure
or significantly influence students. They do not “persuade or compel” students to engage in religious exercise. Lee, 505 U.S. at 599.
Students rarely notice (let alone care) what the
teacher is silently reading at her desk—whether it is
the Bible, Shakespeare, or Time magazine. A teacher
eating in the cafeteria is not instructing students at
the time, or moments before or after in that place, and
saying grace over a meal is a widely understood religious practice. Students are likely to recognize it as an
individual practice, just something that some people
do. Students may notice it when a Christian teacher
wears a cross or a Jewish teacher wears a yarmulke.
But again, the social context creates little pressure on
students to act similarly.
12
Salah is more analogous to the facts here, and
would clearly be problematic if a teacher prostrated
himself for prayer in his classroom, in front of his own
students, moments before or after addressing them in
his role as teacher. The school of course must normally
accommodate a Muslim teacher by providing time and
place for salah, 42 U.S.C. §§ 2000e(j), 2000e-2(a), but
that place should not be in the immediate presence of
students.
To be sure, the Establishment Clause does not require that influence on students be zero—a goal that is
probably unachievable. Non-Muslim children are unlikely to start wearing hijabs simply because their beloved Muslim science teacher does so. If her wearing a
veil at school creates any influence or pressure on them
at all, it is only incrementally greater than the influence that exists simply from knowing she is a Muslim
or seeing her veiled in the grocery store on Saturday.
Some might nevertheless retort that her veiling
will, at the margins, create at least some influence on
the students to act similarly. That brings us to second
reason why the Establishment Clause nevertheless allows some of these practices.
The second and more fundamental explanation
lies in the asymmetry of the burdens involved. For if
the Muslim teacher is allowed to wear the veil, she will
exert the tiniest amount of pressure on her students to
become Muslim. But if she is not allowed to wear the
veil, she will lose her government job because of her
faith.
13
In the name of reducing the pressure on students
from nearly nothing to absolutely nothing, a rule forbidding religious headwear would make observant
Muslim women categorically ineligible to work in an
entire field of public employment. This would not
strike a balance between free exercise values and disestablishment values. It would subordinate the Free
Exercise Clause to the Establishment Clause.
But this case presents the reverse danger. Here
also the burdens are asymmetric, but in the other direction. Petitioner does not propose a balance between
free exercise values and disestablishment values; he
would subordinate the Establishment Clause to the
Free Exercise Clause.
First, Petitioner’s actions put genuine religious
pressure on his students. Whether or not he intended
to pressure his students, he clearly did so. This is not
wild speculation; nor is it just a matter of obvious logical inference. These are simply the facts that the trial
court found and that the record shows. Multiple parents complained that their sons felt compelled to participate in Petitioner’s prayer even though they didn’t
want to or the parents didn’t want them to. Resp. Br.
13 (citing record). One parent specified “that his son
felt compelled to participate in [Petitioner’s] religious
activity, even though he was an atheist, because he felt
he wouldn’t get to play as much if he didn’t participate.” Pet. App. 4. That fear is entirely reasonable. The
group of players joining Petitioner after the game had
grown “to include the majority of the team.” Id. But no
players prayed on the field after Petitioner quit
14
making a display of modeling and encouraging prayer
for them. Pet. App. 11.
Football coaches are often beloved by their players; players will want to do what their coach does. Football coaches also have incredible power and influence
over their players; they can summarily end any boy’s
dream of making it on the field, becoming a star player
known in the school cafeteria, or playing in college or
beyond.7 Few things matter more to student athletes
than playing time; they cannot risk offending the
coach, and some no doubt feel that they cannot pass up
a chance to cater to the coach’s preferences.
Petitioner claims that he would not retaliate
against those few who refuse to pray in public, but
other coaches might and the students can never know
for sure. Atheists, agnostics, religious minorities, and
even fellow Christians whose views differ from Petitioner’s, will be driven to pray with him anyway. Some
of them will be driven to engage in religious conduct
that they would prefer to avoid, or prefer to engage in
on their own at a different time and place. And some
will be pressured to “engage in conduct that seriously
violates their religious beliefs.” Burwell v. Hobby Lobby
Stores, Inc., 573 U.S. 682, 720 (2014).
Of course, the students have an option. They could
outwardly seem to pray, but still hold their dissenting
7
It is difficult to understate the importance of high school
football for much of America—it is “a boy’s last dream and a man’s
first loss.” Jason Isbell, Speed Trap Town, in SOMETHING MORE
THAN FREE (2015).
15
religious beliefs inwardly and secretly. But the Constitution “protects not only the right to hold unpopular
religious beliefs inwardly and secretly. It protects the
right to live out those beliefs publicly in the performance of (or abstention from) physical acts.” Dr. A. v.
Hochul, 142 S. Ct. 552, 555 (2021) (Gorsuch, J., and
Alito, J., dissenting from the denial of application for
injunctive relief ) (citations and quotations omitted).
This case, just as much as Dr. A., is about the rights of
religious dissenters to live out their beliefs by abstaining from physical acts. This is the core of the Establishment Clause.
A religious tradition that honors martyrs who
went to the lions rather than go through the motions
of pretending to pray to a false god is in no position to
dispute the feelings of players who refuse to feign
prayer while secretly dissenting, or who unhappily join
the coach’s prayer for fear of the coach’s power over
playing time.
Second, on the other side of the balance, Petitioner
has ample ways to avoid putting that religious pressure on his students. Amici respect Petitioner’s religious obligation to pray after the game. But Petitioner
can satisfy that obligation without involving his students. Most obviously, he can simply wait until the students leave, and then pray by himself. After the
September 18th game, for example, Petitioner left the
stadium without praying. But feeling like he “had broken his commitment to God,” he turned his car around,
went back to the field, and “waited ten to fifteen
minutes until everyone else had left the stadium so
16
that he could have a moment alone with God to pray
at the fifty-yard line.” Pet. App. 6-7. Petitioner describes these steps as solving his problem, but they
simultaneously resolve all the Establishment Clause
concerns as well.
To be sure, amici are not asking Petitioner to leave
the stadium and then come back. All amici want Petitioner to do is pray in a way that clearly separates his
private from his governmental capacity—that does not
unite his government role with his private religious exercise, and that does not explicitly or implicitly invite
his students to join him.
He could delay the prayer at the fifty-yard line. Or
kneel to pray in some secluded location near the field,
or while the students are otherwise occupied, as he did
for several weeks after September 18. Jt. App. 340-42.
Or he could pray unobtrusively on the sidelines, as a
Buddhist coach did, Jt. App. 336, without the public
display inherent in kneeling or walking to the fiftyyard line or both. In short, he need only change the
time, place, or manner of his prayer to avoid influencing or coercing his students.
Changing the time worked for Petitioner before,
and it enables him to fulfill his religious obligations
without imposing on his students. Amici would consider that a win-win.
*
*
*
Even if Petitioner’s speech were private, Respondent had ample reason to prohibit it under the Pickering
17
balancing test. That argument is well developed in Respondent’s brief and need not be elaborated here. But
Petitioner’s argument ignores any balancing test, and
makes free-speech claims that have no limit. We now
turn to Petitioner’s claim to essentially unlimited free
speech.
II.
Petitioner’s Contrary Theory Is Unpersuasive.
Amici have explained in Part I what speech is
properly considered private and what is properly considered governmental. Amici now turn to Petitioner’s
vision, which would have far-reaching consequences
for the lives of public-school students, contradict the
basis of this Court’s decision in Mergens, 496 U.S. at
250 (plurality opinion), and seriously undermine the
heretofore unquestioned school-sponsored prayer decisions in Sch. Dist. of Abington Twp., 374 U.S. 203, and
Engel, 370 U.S. 421.
A. Petitioner’s Theory Has No Limits.
Throughout his brief, Petitioner tries to make his
claim seem modest—he says he wants only the right to
“say a brief, quiet prayer.” Pet. Br. at 1. That claim is
deeply inconsistent with the record, as Respondent’s
brief details. Resp. Br. 3-18.
But even if it were true, it would not cabin Petitioner’s legal theory. If the Free Speech Clause protects, with “the most demanding form of constitutional
18
scrutiny,” Pet. Br. 36, private prayers by a coach that
are brief and quiet, then it equally protects a coach’s
private prayers that are long and loud. If this speech is
private and protected as Petitioner claims, then “government has no power to restrict [it] because of its
message, its ideas, its subject matter, or its content.”
Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786, 791
(2011). A coach’s prayer could attack the President or
the local school board; it could encourage people to renounce their sinful ways and give their lives to Christ;
it could denounce Muslims, Catholics, or atheists.
In all the cases before this one, this Court did not
really need to worry about these troubling hypotheticals. When the Court relaxed some of the limits on government religious speech, it always retained the power
to set limits—more permissive limits that allowed
some measure of freedom to government speakers, but
limits nonetheless. The Court could still draw a line
excluding prayers that went too far, like those that
“chastised dissenters” or “attempted lengthy disquisition on religious dogma.” Town of Greece, 572 U.S. at
589-90; see also Lee, 505 U.S. at 641 (Scalia, J., dissenting) (advocating restrictions on prayers that take positions on “the divinity of Christ”). But those limits were
possible only because the speech in those cases was assumed to be government speech. That assumption is
why the Establishment Clause applied in those cases
at all, and why governments or the Court could impose
and enforce outer limits.
Yet if Petitioner is correct that this is fully protected private speech, then it is beyond the power of
19
either Respondent or this Court to set limits short of
the few outer limits on private speech, such as defamation or incitement to imminent violence. Petitioner
need not be praying at all; he could speak on any topic,
even in ways that “demean[ ] on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground.” Matal v. Tam, 137 S. Ct. 1744, 1764
(2017). If Petitioner is right, Respondent could not stop
him from rolling out the Confederate flag on the fiftyyard line right after the game in front of all of Petitioner’s players, their parents, the team’s fans, and the
opposing team and its fans. Respondent could not stop
him from bringing his own microphone or amplifier
and delivering a racist or homophobic rant, like the
protected speech in Snyder v. Phelps, 562 U.S. 443
(2011). Petitioner cannot be right.
Petitioner’s theory ignores the privilege, power,
and influence that comes as a result of the teacher’s
position. And it goes far beyond just coaches praying at
football games. Petitioner would protect prayers by
teachers and coaches with their students during athletic events, before and after school—or even during
the regular school day.
A classroom teacher could begin by saying that she
wanted to speak to the students personally, as an individual and not as their teacher. She could say that the
students were free to listen to her or to quietly ignore
her. She could say that class would not begin for two
minutes, or five minutes, and that students were free
to wait outside in the hall (as in Sch. Dist. of Abington
Twp.). And she could say that the school really
20
wouldn’t want her to be saying these things to students—few introductions would be better calculated to
grab student attention than this attempt to emphasize
her private capacity. Petitioner’s theory assumes that
the privilege, power, and influence that teachers have
by virtue of their position would disappear with these
magic words.
Having established herself as a private speaker,
the teacher could lead the students in prayer, urge
them to accept Jesus as their personal Lord and Savior,
or denounce the Pope as the anti-Christ. She could explain that there is no God but Allah and Muhammad
is his prophet, that all religions are lies made up out of
whole cloth to control the people, or deliver any other
religious or anti-religious speech she chose.
If Petitioner can pray in the immediate presence
of his students—students whom he is still responsible
for supervising—and if he can let his students freely
join in his prayer, simply by declaring himself to be
speaking in his personal capacity, then so can any
other teacher. And the school-sponsored prayer cases
would become dead letters in many school districts. Petitioner’s argument ignores this Court’s foundational
decisions that protect the religious liberty of students
and their parents by prohibiting government-sponsored prayer in schools.
Some teachers would use their “private” speech to
promote their religion in their classrooms, in violation
of the Establishment Clause. Others would use their
“private” speech to promote other things that violated
21
school policy, whether critical race theory, or transgenderism, or hostility to transgender students, or partisan politics on either side. And if it could be cast as
private speech notwithstanding the immediate presence of students, the school would have almost no ability to control it.
If Petitioner’s theory is right, then a school’s only
hope of limiting inappropriate speech lies in the compelling-interest test. But compelling government interests in censoring private speech on the basis of content
are extraordinarily difficult to show, and have largely
coalesced into a few defined exceptions, such as true
threats and incitement of imminent violence.
Petitioner’s theory would lead to rampant violations of the Establishment Clause. To avoid those violations, the Court has to recognize that speech in the
presence of one’s students, while on duty, cannot be
truly private speech.
Petitioner emphasizes his version of the facts of
this case, but his argument is not so limited. “While
Kennedy used prayer or religious content in some [earlier] activities”—namely his halftime talks, pre-game
speeches, and post-game speeches, all addressed to students—he claims that “that is not what this case is
about.” Pet. Br. at 27. But that is what this case is
about, for Petitioner cannot explain why these things
could be forbidden if his prayer on the fifty-yard line
cannot be.
Each of Petitioner’s attempts to minimize the
breadth of his claim collapses on examination.
22
Petitioner says his prayers were private because they
did not interfere with “the tasks he was paid to perform.” Pet. Br. at 26. But that is no real limit. A teacher
can pray with her students while still doing a perfect
job teaching them reading, writing, and arithmetic—
indeed, that happens all the time in private religious
schools.
At another point, Petitioner says his prayers were
private because Respondent did not want him to pray.
See Pet. Br. at 29 (arguing that the fact that “[t]he district took issue” with Kennedy’s actions “confirms that
Kennedy’s religious exercise was not the district’s own
speech”). But this is the starting premise in every Pickering case, and it too offers no limit. Indeed, it licenses
anarchy. A rogue teacher could now say literally anything about religion (or anything else); any school district that tries to stop him would thereby render his
speech private and beyond the school’s control.
In an earlier iteration of this case, Justice Alito
suggested that courts look to whether Petitioner would
have been allowed to engage “in some other private activity at the time”—Petitioner’s prayers should be considered private speech, he reasoned, if they “took place
at a time when it would have been permissible for him
to engage briefly in other private conduct, say, calling
home or making a reservation for dinner.” Kennedy v.
Bremerton Sch. Dist., 139 S. Ct. 634, 635-36 (2019)
(Alito, J., respecting the denial of certiorari).
This logic draws on some powerful intuitions, but
it cannot be maintained. It relies on the principle of
23
content neutrality: if Petitioner could order dinner, he
could pray. But that principle applies only to private
speech. As applied to private speech, content neutrality is a fundamental safeguard.
The Establishment Clause is a content-based
limit—indeed, a viewpoint-based limit—on government speech. The Constitution restricts government
speech about religion to better protect private choice
and private commitments about religion—to insulate
those choices and commitments from government influence and pressure.
The First Amendment requires the government to
be content-neutral when it regulates or otherwise
deals with private speech—government cannot treat
private religious speech better than or worse than
other high-value private speech.8 See, e.g., Rosenberger,
515 U.S. at 828 (“In the realm of private speech or expression, government regulation may not favor one
speaker over another.”); Capitol Square Review & Advisory Bd., 515 U.S. at 766 (Scalia, J., plurality opinion)
(“Of course, giving sectarian religious speech preferential [treatment] would violate the Establishment
Clause as well as the Free Speech Clause, since it
would involve content discrimination.”); Heffron v. Int’l
Soc’y for Krishna Consciousness, 452 U.S. 640, 653
(1981) (“nonreligious organizations seeking support
for their activities are entitled to rights equal to those
8
Some private speech, such as sexually explicit speech, gets
lower levels of protection. See, e.g., Young v. Am. Mini Theatres,
Inc., 477 U.S. 50, 70 (1976) (plurality opinion).
24
of religious groups to enter a public forum and spread
their views”).
But the First Amendment does not require the
government to be content neutral with respect to its
own speech. Government can and regularly does take
positions on contested secular issues. Even in dealing
with students in public schools, government can and
does try to instill patriotism, respect for law, tolerance
for individual difference, and other widely shared values that may not be unanimously shared. That is, public schools teach certain viewpoints.
And government speech is also subject to formal
and informal viewpoint restrictions. Public schools do
not try to install loyalty to a political party, because
parents supporting other parties wouldn’t stand for it,
and because doing so on a large scale would threaten
free political competition and free government in the
next generation. Cf. Bd. of Educ. v. Pico, 457 U.S. 853,
870-71 (1982) (public school’s “discretion may not be
exercised in a narrowly partisan or political manner”)
(plurality opinion). Whether or not legally enforceable,
this is a viewpoint restriction on government speech.
And as already noted, the Establishment Clause
is itself a viewpoint-based restriction on government
speech. When this Court says that “government speech
must comport with the Establishment Clause,” Pleasant Grove City v. Summum, 555 U.S. 460, 468 (2009),
the Court is saying that the Establishment Clause regulates what government agents can say. And that regulation is content- and viewpoint-based.
25
Thus, the invocation of content neutrality simply
returns us to where we started: Petitioner’s prayers
are impermissible if considered governmental, and
protected if considered private. And crucially, content
neutrality gives us no way to distinguish between what
is private and what is governmental. Content neutrality comes into play only after we have decided what is
private and what is governmental; it cannot help us
draw that line.
One sees the problem well enough if one flips Justice Alito’s point around. Justice Alito suggested that
Petitioner’s prayers should be considered private if Petitioner could have used that time to engage in other
kinds of private speech. But if Petitioner could also
have taken that time to engage in some official duty,
that same logic would suggest that Petitioner’s prayers
are really governmental. Neither argument works.
Under this theory, a lot of speech could be classified as both private and governmental at the same
time, or as either private or governmental. After all,
there are a lot of times throughout the school day
where teachers and coaches could do their jobs or take
a short break from those jobs. If that flexibility makes
it all private speech, then the Establishment Clause’s
restraints on governmental promotion of religion will
fall to the ground like sand through open fingers.
Instead of checking their phone, a teacher could
instead take that time to explain why Mormons are an
evil non-Christian cult. Instead of grabbing a cup of
coffee, teachers could lead their classes in prayer.
26
Instead of standing around in the hallways between
classes, teachers could pass out Bibles. These fears are
not exaggerated hypotheticals. This Court and its precedents are all that keep the country from these kinds
of scenarios.9 By enabling teachers and coaches to toggle back and forth between their private and governmental roles, Petitioner’s argument would make the
Establishment Clause an empty shell.
B. Petitioner’s Claims Are Inconsistent
with a Broad and Longstanding Consensus About Religion in Public
Schools.
Petitioner not only mischaracterizes the facts
when he claims to want only to pray briefly and quietly
in a private capacity. His claims also rest on a false
portrayal of the law as hostile toward religion in the
public schools. In fact, much private religious activity occurs in and about public schools within longestablished constitutional bounds. In this case, for
instance, Petitioner admits that he was offered an
9
See, e.g., Doe v. Santa Fe Indep. Sch. Dist., 168 F.3d 806,
810 (5th Cir. 1999) (teacher advertised Baptist revival meeting in
classroom, and gave “a diatribe about the non-Christian, cult-like
nature of Mormonism, and its general evils”), aff ’d, 530 U.S. 290
(2000); Karen B. v. Treen, 653 F.2d 897 (5th Cir. 1981) (teachers
authorized to volunteer to lead class in prayer if no student volunteered to do so), aff ’d mem., 455 U.S. 913 (1982); M.B. ex rel.
Bedi v. Rankin Cty. Sch. Dist., No. 3:13CV241-CWR-FKB, 2015
WL 5023115, at *1-2 (S.D. Miss. July 10, 2015) (school conducted
“Christian assemblies” that proselytized for Christianity, and
principal ordered teachers to assist with distribution of Bibles).
27
accommodation that would allow him to pray after
games away from his players. Nor is there any dispute
that football players are free to pray on their own, individually or in a group. Such religious expression is
common and well-established.
Beginning in the 1990s, a broad array of religious
and civil-liberties groups negotiated guidelines concerning religion in the public schools to help educate
parents, students, and public school officials. These
guidelines were drafted as good-faith efforts among diverse groups to clarify the law and reduce conflicts.
They recognized private rights to prayer and religious
expression, and they recognized limitations on religious expression by the school and its employees.
In 1995, this coalition produced Religion in the
Public Schools: Joint Statement of Current Law, which
was endorsed by dozens of organizations from diverse
faith perspectives including Muslims, Jews, Humanists, liberal and conservative Christians, and secular
civil-liberties organizations.10 More specific joint statements were published and endorsed in the following
decades and have been used to train school teachers
and administrators to respect religious liberty and
avoid conflicts throughout the country.
These privately negotiated guidelines were substantially incorporated into presidential guidelines
and guidelines from the Department of Education.
10
See Religion in the Public Schools: A Joint Statement of
Current Law (1995), https://bjconline.org/wp-content/uploads/
2014/05/Religion-in-public-schools-joint-statement.pdf.
28
This consensus recognizes the distinct roles of students and teachers. The dichotomy, which is solidly
grounded in this Court’s decisions, is absolutely necessary to protect religious liberty in the public schools. It
reflects the understanding that teachers are not
merely private citizens that happen to be on school
grounds. Teachers, coaches, and school administrators
are agents of the state. This understanding has continued under the Clinton, Bush, Obama, and Trump Administrations. It has not been changed by the Biden
Administration, and there is no reason to think that it
will be.
Specifically, since 1995, the Department of Education has provided guidance at least four times on religious expression in public schools.11 Each version
differentiates between students and teachers and limits a teacher’s religious exercise in order to protect the
religious freedom of students. For example, see the
most recent Trump Guidance: “Teachers, however, may
11
U.S. Department of Education, Guidance on Constitutionally
Protected Prayer and Religious Expression in Public Elementary
and Secondary Schools (Jan. 21, 2020), https://www2.ed.gov/policy/
gen/guid/religionandschools/prayer_guidance.html (“Trump
Guidance”); U.S. Department of Education, Guidance on Constitutionally Protected Prayer in Public Elementary and Secondary
Schools (Feb. 7, 2003), https://www2.ed.gov/policy/gen/guid/religion
andschools/prayer_guidance-2003.html (“Bush Guidance”); U.S.
Department of Education, Guidelines on Religious Expression in
Public Schools (June 1998), https://files.eric.ed.gov/fulltext/ED
416591.pdf (“Clinton II Guidance”); Office of the Federal Register,
National Archives and Records Administration, Memorandum
on Religious Expression in Public Schools, https://www.govinfo.gov/
content/pkg/PPP-1995-book2/pdf/PPP-1995-book2-doc-pg1083.pdf
(July 12, 1995) (“Clinton Guidance”).
29
take part in religious activities where the overall context makes clear that they are not participating in
their official capacities . . . Before school or during
lunch, teachers may engage with other teachers for
prayer. . . .”12 Certainly here, “the overall context” does
not “make[ ] clear” that Petitioner was not still acting
in his official capacity.
And see the Clinton Guidance: “Teachers and
school administrators, when acting in those capacities,
are representatives of the state and are prohibited by
the establishment clause from soliciting or encouraging religious activity, and from participating in such
activity with students.”13 Once the students began to
join Petitioner in prayer, he was “participating in such
activity with students.”
In many of the privately endorsed joint statements
that have long been used to teach about religion in the
public schools, consistent with Supreme Court standards, the guidance is more explicit. For example, in A
Teacher’s Guide to Religion in the Public Schools, the
signing organizations explained that teachers do not
have the right to pray with or in the presence of students on school grounds or at school functions. These
guidelines have been widely endorsed by education
groups, such as National Association of Secondary
School Principals and National School Board Association, and by religious groups, such as Christian Legal
12
13
Trump Guidance, supra note 10.
Clinton Guidance and Clinton Guidance II, supra note 10.
30
Society, National Association of Evangelicals, and Union of Orthodox Jewish Congregations in America.14
C. Petitioner’s Theory Is at Odds with
Both Congress’s View and This Court’s
View of the Equal Access Act.
Petitioner’s argument also runs counter to the considered judgments of both Congress and this Court
with respect to the Equal Access Act, 20 U.S.C. §§ 40714074. Congress passed the Act in 1984, requiring secondary schools to treat student religious groups on
equal terms with other student groups. Congress rejected the idea that a private student group’s religious
speech is attributable to the school, and this Court
agreed with that judgment when it interpreted the Act
broadly and then upheld it, explaining that “schools do
not endorse everything they fail to censor.” Mergens,
496 U.S. at 250 (plurality opinion). Petitioner repeatedly quotes this phrase as if Mergens supports his
claims. See Pet. Br. at 2, 38, 44. But the truth is that
Mergens undermines those claims.15
14
See A Teacher’s Guide to Religion in the Public Schools,
reprinted in FINDING COMMON GROUND: A FIRST AMENDMENT
GUIDE TO RELIGION AND PUBLIC EDUCATION (Charles C. Haynes
& Oliver Thomas eds., 2007), https://www.freedomforuminstitute.
org/wp-content/uploads/2016/10/FCGcomplete.pdf.
15
The Establishment Clause section of the Mergens opinion
is a plurality opinion by Justice O’Connor on behalf of herself,
Chief Justice Rehnquist, and Justices White and Blackmun. Justices
Kennedy and Scalia, from one direction, and Justices Marshall
and Blackmun from the other, concurred separately. Neither concurring opinion took any explicit issue with the points in the
31
The Equal Access Act draws precisely the line that
amici propose here. The Act distinguishes private actors (students and student groups) from governmental
actors (the school and its agents). Most crucially, the
Equal Access Act puts school employees—like teachers
and coaches—on the government side of the line.
The Act does this explicitly, and does it twice. First,
the Act says that there can be “no sponsorship of the
meeting by the school, the government, or its agents or
employees.” 20 U.S.C. § 4071(c)(2) (emphasis added).
And second, it says that “employees or agents of the
school or government [can be] present at religious
meetings only in a nonparticipatory capacity.” Id.
§ 4071(c)(3) (emphasis added).
Mergens understood and relied on these restrictions. “[T]he Act expressly limits participation by
school officials at meetings of student religious
groups.” 496 U.S. at 251 (plurality opinion). The Court
elaborated: “[T]he Act prohibits school ‘sponsorship’ of
any religious meetings, which means that school officials may not promote, lead, or participate in any such
meeting.” Id. at 253.16
Moreover, Mergens did not see these limitations as
bad things but as good things. It was on the basis of
plurality opinion cited here. All the passages from Mergens that
Petitioner cites are also from the plurality opinion.
16
To be sure, the Act permits “the assignment of a teacher,
administrator, or other school employee to the meeting for custodial purposes,” but only “to ensure order and good behavior.” Mergens, 496 U.S. at 253 (plurality opinion).
32
these limitations that the Court upheld the Act against
Establishment Clause challenge—it was precisely because “no school officials actively participate” that
there was “little if any risk of official state endorsement or coercion” despite the very real “possibility of
student peer pressure.” Id. at 251.
Petitioner’s theory is thus at odds with Congress’s
decision in the Equal Access Act and this Court’s decision in Mergens, as well as this Court’s Establishment
Clause decisions in the school-sponsored prayer and
Bible-reading cases. If Petitioner has a constitutional
right to pray with students at the fifty-yard line right
after the game ends, then Petitioner would have a constitutional right to pray with those same students before or after school, contrary to the restrictions in the
Equal Access Act. And if Petitioner has a right to pray
with students immediately after the game and before
and after school, he has a right to pray with students
in his private capacity during the school day, thus creating an easy way around this Court’s school-sponsored prayer cases.
Petitioner’s theory would take a wrecking ball to
Establishment Clause protections in public schools.
This Court should reject it.
---------------------------------♦---------------------------------
33
CONCLUSION
The judgment below should be affirmed.
Respectfully submitted,
K. HOLLYN HOLLMAN
JENNIFER L. HAWKS
BAPTIST JOINT COMMITTEE
FOR RELIGIOUS LIBERTY (BJC)
200 Maryland Ave. N.E.
Washington, D.C. 20002
(202) 544-4226
hhollman@bjconline.org
DOUGLAS LAYCOCK
Counsel of Record
UNIVERSITY OF VIRGINIA
SCHOOL OF LAW
214 Sprigg Lane
Charlottesville, VA 22903
(512) 656-1789
dlaycock@virginia.edu
CHRISTOPHER C. LUND
WAYNE STATE UNIVERSITY
LAW SCHOOL
471 West Palmer St.
Detroit, MI 48202
(313) 577-3933
lund@wayne.edu
THOMAS A. CUNNIFF
General Counsel
EVANGELICAL LUTHERAN
CHURCH IN AMERICA
8765 West Higgins Road
Chicago, IL 60631
(773) 380-2101
thomas.cuniff@elca.org
HEATHER E. KIMMEL
General Counsel
UNITED CHURCH OF CHRIST
700 Prospect Ave. East
Cleveland, OH 44115
(216) 736-2138
kimmelh@ucc.org
MARC STERN
Chief Legal Officer
AMERICAN JEWISH COMMITTEE
165 East 56th
New York, NY 10022
(212) 891-1480
sternm@ajc.org
March 31, 2022
PROFESSOR ROBERT W. TUTTLE
(Counsel for the
Evangelical Lutheran
Church in America)
THE GEORGE WASHINGTON
UNIVERSITY LAW SCHOOL
2000 H St. NW
Washington, DC 20051
(202) 994-8163
rtuttle@law.gwu.edu
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.