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

No. 21-418

IN THE

Supreme Court of the United States

___________

JOSEPH A. KENNEDY,

v.

Petitioner,

BREMERTON SCHOOL DISTRICT,

Respondents.

___________

On Writ of Certiorari to the United States Court

of Appeals for the Ninth Circuit

___________

BRIEF OF THE NATIONAL EDUCATION

ASSOCIATION AND AMERICAN FEDERATION

OF TEACHERS AS AMICI CURIAE IN

SUPPORT OF RESPONDENTS

___________

RHONDA WEINGARTEN

DAVID J. STROM

DANIEL J. MCNEIL

American Federation

of Teachers

555 New Jersey Ave. NW

Washington, DC 20001

(202) 393-7472

April 1, 2022

ALICE O’BRIEN

Counsel of Record

JASON WALTA

KRISTEN HOLLAR

LAURA B. PETTY

National Education

Association

1201 Sixteenth St. NW

Washington, DC 20036

(202) 822-7035

aobrien@nea.org

Mosaic - (301) 927-3800 - Cheverly, MD

49261_Ltrhd.indd

1

6/11/08

12:44:0

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TABLE OF CONTENTS

Page

Table of authorities ................................................. iii

Interest of Amici Curiae .......................................... 1

Introduction and summary of argument ................ 2

Argument ................................................................. 5

I. The undisputed facts confirm that the

school lawfully proscribed Petitioner’s onduty religious activities because they

created an intolerable risk of violating the

Establishment Clause ...................................... 5

A. The parties present the Court with two

distinct sets of facts, but the undisputed

facts relied on by the district court and

the Ninth Circuit are controlling ................. 7

B. Petitioner’s dismissal was justified by the

school’s

interest

in

avoiding

the

appearance of openly endorsing religion,

as well as the actual coercion of school

children in their religious views ................ 11

II. Even if this Court adopts Petitioner’s view

of the facts, it still cannot rule in his favor

while remaining faithful to existing

precedent concerning the First Amendment

rights of public employees .............................. 14

A. Petitioner’s claim fails under this Court’s

current precedent restricting the First

Amendment rights of public employees .... 15

B. The Court cannot rule in Petitioner’s

favor on his First Amendment claim

while leaving extant precedent intact ....... 18

ii

C. If this Court is intent on ruling for

Petitioner on the First Amendment claim,

it must modify existing precedent in a

principled way that ensures the rights of

all public employees ................................... 22

1. Modification of existing precedent

would be appropriate because it has

proven unworkable and inadequate for

the protection of important First

Amendment rights ................................ 22

2. If this Court decides to re-examine its

precedent in this area, it should

establish clear rules protecting publicemployee expression ............................. 26

Conclusion .............................................................. 30

iii

Cases

TABLE OF AUTHORITIES

Pages

Beard v. Banks, 548 U.S. 521 (2006) .................... 10

Borough of Duryea v. Guarnieri, 564 U.S. 379

(2011) ................................................... 17, 18, 21

Caperton v. A.T. Massey Coal Co., 556 U.S. 868

(2009) ............................................................... 14

Citizens United v. FEC, 558 U.S. 310 (2010) .. 19, 20

City of San Diego v. Roe, 543 U.S. 77 (2004) ......... 29

Daniels v. City of Arlington, 246 F.3d 500 (5th

Cir. 2001) .......................................................... 18

Edwards v. Aguillard, 482 U.S. 578 (1987) ......... 12

Evans-Marshall v. Bd. of Educ., 624 F.3d 332

(6th Cir. 2010) .................................................. 24

Fox v. Traverse City Area Pub. Sch. Bd. of

Educ., 605 F.3d 345 (6th Cir. 2010) ............... 24

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

Janus v. AFSCME Council 31, 138 S. Ct. 2448

(2018) ................................................................ 28

Kennedy v. Bremerton Sch. Dist., 443 F. Supp.

3d 1223 (W.D. Wash. 2020) ............................. 16

Kennedy v. Bremerton Sch. Dist., 991 F.3d 1004

(9th Cir. 2021) ...................................... 7, 8, 9, 10

Kennedy v. Bremerton Sch. Dist., 4 F.4th 910

(9th Cir. 2021) ......................................... 7, 9, 10

Lamb’s Chapel v. Ctr. Moriches Union Free

Sch. Dist., 508 U.S. 384 (1993) ........................ 11

Lane v. Franks, 573 U.S. 228 (2014) ..................... 26

Lee v. Weisman, 505 U.S. 577 (1992) .................... 12

Mahanoy Area Sch. Dist. v. B.L., 141 S. Ct.

2038 (2021) ...................................................... 28

Mayer v. Monroe County Cmty. Sch. Corp., 474

F.3d 477 (7th Cir. 2007) ................................... 24

Mpoy v. Rhee, 758 F.3d 285 (D.C. Cir. 2014) ........ 24

iv

Cases (cont’d)

Pickering v. Bd. of Educ., 391 U.S. 563

(1968) .......................................................... 16, 27

Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925) .......13

R.A.V. v. City of St. Paul, 505 U.S. 377

(1992) ......................................................... 19, 21

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

(2000) ................................................... 11, 12, 13

Scott v. Harris, 550 U.S. 372 (2007) ........................ 7

Sweezy v. New Hampshire, 354 U.S. 234 (1957) ... 24

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

393 U.S. 503 (1969) ......................................... 24

Trusz v. UBS Realty Investors, LLC, 123 A.3d

1212 (Conn. 2015) ........................................... 23

U.S. Civil Serv. Comm’n v. Nat’l Ass’n of Letter

Carriers, 413 U.S. 548 (1973) ......................... 19

Ward v. Hickey, 996 F.2d 448 (1st Cir. 1993) ...... 29

Waters v. Churchill, 511 U.S. 661 (1994) .............. 21

Weintraub v. Bd. of Educ., 593 F.3d 196 (2d

Cir. 2010) ......................................................... 27

Welsh v. United States, 398 U.S. 333 (1970) ......... 21

Williams-Yulee v. Fla. Bar, 575 U.S. 433

(2015) ......................................................... 14, 20

Constitutional provisions, statutes, and

rules

Fed. R. Civ. P. 56 ............................................... 7, 10

U.S. Const. amend. 1 ....................................... passim

v

Other authorities

Omar Abdel-Baqui & Jennifer Calfas, New

Virginia Hotline Lets Parents Report

‘Divisive Teaching Practices’, WALL ST. J.

(Jan.

26,

2022),

https://www.wsj.com/articles/new-virginiahotline-lets-parents-report-divisiveteaching-practices-11643236044 ..................... 25

Erwin Chemerinksy, The Rookie Year of the

Roberts Court and a Look Ahead: Civil

Rights, 34 PEPP. L. REV. 535 (2007) ................ 23

Caroline Mala Corbin, Government Employee

Religion, 49 ARIZ. ST. L.J. 1193 (2017) ............ 14

ENCYCLOPAEDIA OF THE LAWS OF ENGLAND (2d

ed. 1908) ......................................................... 14

Cynthia Estlund, Free Speech Rights that Work

at Work: From the First Amendment to Due

Process, 54 UCLA L. REV. 1463 (2007) .......... 23

Adrian Florido, Teachers Say Laws Banning

Critical Race Theory Are Putting a Chill on

Their Lessons, NPR (May 28, 2021),

https://www.npr.org/2021/05/28/100053720

6/teachers-laws-banning-critical-racetheory-are-leading-to-self-censorship ............. 25

Sheldon H. Nahmod, Public Employee Speech,

Categorical Balancing, and § 1983: A

Critique of Garcetti v. Ceballos, 42 U. RICH.

L. REV. 561 (2008) ........................................... 22

Laura Meckler & Hannah Natanson, New

Critical Race Theory Laws Have Teachers

Scared, Confused and Self-Censoring,

WASH.

POST

(Feb.

22,

2022),

https://www.washingtonpost.com/education

/2022/02/14/critical-race-theory-teachersfear-laws/ ......................................................... 25

vi

Other authorities (cont’d)

PEN America, Educational Gag Orders:

Legislative Restrictions on the Freedom to

Read,

Learn,

and

Teach

(2022),

https://pen.org/wpcontent/uploads/2022/02/PEN_Educational

GagOrders_01-18-22-compressed.pdf ............ 25

Antonin Scalia & Bryan A. Garner, READING

LAW: THE INTERPRETATION OF LEGAL TEXTS

(2012) ................................................................ 20

Paul M. Secunda, Garcetti’s Impact on the First

Amendment Speech Rights of Federal

Employees, 7 FIRST AMEND. L. REV. 117

(2008) ............................................................... 23

Eugene Volokh, Freedom of Speech and

Information

Privacy:

The

Troubling

Implications of a Right to Stop People from

Speaking About You, 52 STAN. L. REV. 1049

(2000) ................................................................ 28

Lewis M. Wasserman & John P. Connolly,

Unipolar Panel Effects and Ideological

Commitment: An Analysis of U.S. Courts of

Appeals Free Speech Decisions Involving K12 Public Education Employees, 31 ABA J.

LAB. & EMP. L. 537 (2016) ................................ 25

Haley Yamada, Teachers in New Hampshire

Face New Legal Threats for Teaching SoCalled “Divisive Concepts” on Race: “It’s

Psychological Warfare,” ABC NEWS (Nov.

16,

2021),

https://abcnews.go.com/US/teachershampshire-face-legal-threats-teachingcalled-divisive/story?id=81213142 ................. 26

1

INTEREST OF AMICI CURIAE

This brief is submitted on behalf of Amici National Education Association (“NEA”) and American Federation of Teachers, AFL-CIO (“AFT”).*

NEA is the nation’s largest professional association, representing almost three million members—the

vast majority of whom serve as educators, counselors,

and education support professionals in our nation’s

public schools. NEA has a deep and longstanding

commitment to ensuring that public schools are welcoming to all students. As part of that commitment,

NEA’s Resolution I-22 (entitled “Freedom of Religion”) expresses the organization’s fundamental belief that an individual’s “choice of religion, including

no religion, is an intensely personal decision,” and

that instruction on religious practice “is best provided

within a family setting and/or by religious institutions”—not by public schools. Accordingly, NEA

maintains that public schools must refrain from engaging in sectarian religious practices; must treat all

religions, or the choice of none, on an equal basis; and

must protect the rights of students and education

employees. NEA also supports the rights of educators

to express their personal views in public without fear

of censorship or reprisal. NEA Resolution H-2 (“The

Education Employee as Citizen”).

* Both parties have given blanket consent for the filing of amicus

briefs. Amici state that no party’s counsel authored the brief in

whole or in part; no party’s counsel contributed money that was

intended to fund preparing or submitting the brief; and no person—other than Amici—contributed money that was intended to

fund preparing or submitting the brief.

2

AFT was founded in 1916 and today represents

1.7 million members in more than 3,500 local affiliates nationwide. AFT members include educators and

educational assistants, higher education faculty and

administrative staff, nurses and health care workers,

and public employees. AFT’s K-12 members are

committed to providing their students the highest

quality public education consistent with the standards set by the local, state, and federal government.

In cases that directly impact public school education

and public employees, AFT frequently submits amicus briefs in this Court.

INTRODUCTION AND SUMMARY OF

ARGUMENT

Children compelled by law to attend school

should not have to a run a gauntlet of religious observances and indoctrinations, just to receive a public

education. Yet that is precisely where Petitioner Joseph Kennedy’s argument in this case could lead.

1. This is not a case about someone removed from

public-school employment for engaging in “brief,”

“quiet,” “personal,” “solitary” prayer in a place “where

no one joined him” and at a time when he and his

students “were free to engage in activities of their

own choosing.” In reality, Petitioner repeatedly used

the status and access of his job as a school employee

to publicly stage sectarian prayers while on the job

and in the spotlight of major, school-sponsored

events. By Petitioner’s own admission, these prayers

were intended to be witnessed by impressionable

school children and to influence their beliefs. The

predictable result was that students joined in the

prayers out of fear of being ostracized or excluded

from play on the team.

3

The Establishment Clause squarely forbids this

kind of governmental intrusion into students’ rights

of conscience and parents’ rights to direct the religious upbring of their children. Not only did Petitioner’s actions create the impression that his sectarian

prayer had the imprimatur of the school, but he in

fact coerced vulnerable schoolchildren into religious

activity. Because Petitioner refused to stop conducting these coercive religious observances, the school

was effectively given no choice but to remove Petitioner from his position. The need to protect the First

Amendment rights of schoolchildren was more than

enough justification for the school’s action. The Ninth

Circuit’s decision to that effect should be affirmed.

2. If this Court rejects the Ninth Circuit’s holding

on the Establishment Clause issue, it must still decide whether the Petitioner had a First Amendment

right to engage in highly public, on-the-job religious

observances without interference from his employer.

Under this Court’s extant doctrine, the answer is

plainly “no”: Petitioner’s religious speech was categorically unprotected by the First Amendment from employer sanction because it was made pursuant to his

employment and because it involved only matters of

personal and private concern. As a result, if this

Court intends to rule in Petitioner’s favor on his First

Amendment claim—and do so on a principled basis

that is consistent with its judicial obligation to do

right to all manner of people—it must reformulate

current precedent in a way that expands free speech

protections for all public employees.

Such a reformulation of existing precedent would

be more than justified. Under this Court’s current

case law, speech made pursuant to a public employee’s job duties or on matters of private concern is considered categorically unprotected by the First

4

Amendment. Both of these exclusions rely on distinctions that are not tethered to the text of the First

Amendment, and have proven in practice to be artificial and difficult to apply. Worse yet, these exclusions

have robbed members of the public of valuable speech

about the functioning—and sometimes malfunctioning—of their government, and they have deprived

public employees of fundamental liberties designed to

foster individuality and self-expression. The harmful

effects of this Court’s misguided case law in this area

have fallen especially hard on the nation’s publicschool educators, who are increasingly threatened by

efforts to stifle speech on a broad range of important

topics.

If this Court goes on to consider the merits of Petitioner’s First Amendment claim, there are three revisions to current doctrine that would begin to restore

the promise of the First Amendment for public employees. First, this Court should abandon the categorical exclusion for speech pursuant to official duties

and, instead, consider the capacity in which an employee speaks as a factor in the traditional balancing

between the interest of the employee in speaking and

the government employer’s interest in promoting

workplace efficiency. Second, this Court should abandon the categorical exclusion for speech on matters of

private concern and, instead, allow the degree of public or private concern to be weighed in case-by-case

balancing. Finally, this Court should recognize that

public employees are generally entitled to notice of

the kinds of speech their employers might seek to restrict. Such protection is particularly important for

educators, who will fear teaching if they can be disciplined or discharged for every on-the-job utterance.

5

ARGUMENT

I.

The Undisputed Facts Confirm that the

School Lawfully Proscribed Petitioner’s OnDuty Religious Activities Because They

Created an Intolerable Risk of Violating the

Establishment Clause

Petitioner tells this Court that he should prevail

on his First Amendment claim because he was fired

from public-school employment for engaging in

“brief,” “quiet,” “personal,” “solitary” prayer in a place

“where no one joined him” and at a time when he and

his students “were free to engage in activities of their

own choosing.” Pet. Br. at 12, 29. If those were indeed

the facts of this case, Petitioner would likely be entitled to prevail, and the Amici on this brief would just

as likely have filed in support of that result. After all,

while Amici advocate for high-quality public schools

that are free of religious endorsement or coercion,

Amici are also champions of the First Amendment

rights of their members and other public sector employees.

But the facts are not remotely as Petitioner presents them to this Court. On the contrary, the undisputed evidence submitted at summary judgment establishes a clear and escalating pattern of religious

endorsement and coercion by Petitioner, which included leading sectarian prayers in the locker room

with the entire football team, and culminated in Petitioner’s public campaign to commandeer school property to stage overtly sectarian religious prayers while

on duty, in full view of both his team and a crowd of

spectators assembled to watch a school football game.

The undisputed facts further show that both students and staff at the school were adversely affected

by Petitioner’s activities. Members of the public rea-

6

sonably understood Petitioner’s prayers as bearing

the school’s imprimatur, and students felt pressure to

participate in the prayers on pain of being benched

during games. All of this was in the face of the

school’s requests to cease the conduct, coupled with

its repeated offers—all refused by the Petitioner—to

accommodate him in a way that would respect both

his religious freedom and the rights of others in the

school community.

Petitioner has failed at every stage of the case to

dispute these facts, which formed the basis for the

district court’s grant of summary judgment against

him. Instead, his arguments to this Court are pinned

to the hope that a majority of Justices will disregard

the full record in favor of a skewed and sanitized version of events that includes only Petitioner’s preferred facts. This Court should reject Petitioner’s revisionist efforts.

The undisputed facts show that Petitioner was

uncompromising in his pursuit of using the status

and access that came with his position at a public

school to stage sectarian prayers repeatedly while on

the job and in the spotlight of major, school-sponsored

events. The need to protect the rights of schoolchildren and the broader school community under the

Establishment Clause provided ample justification

for the school’s decision to terminate the Petitioner.

The Ninth Circuit’s decision to that effect should be

affirmed.

7

A. The parties present the Court with two

distinct sets of facts, but the undisputed

facts relied on by the district court and

the Ninth Circuit are controlling

In his brief on the merits, Petitioner claims this

case is about whether a public employee enjoys First

Amendment protection for engaging in “brief,” “quiet,” “personal,” “solitary” prayer in a place “where no

one joined him” and at a time when he and his students “were free to engage in activities of their own

choosing.” Pet. Br. at 12, 29. The Ninth Circuit correctly explained that “the facts in the record utterly

belie” Petitioner’s framing of the case. Kennedy v.

Bremerton Sch. Dist., 991 F.3d 1004, 1017 (9th Cir.

2021) (Kennedy III); see also Kennedy v. Bremerton

Sch. Dist., 4 F.4th 910, 912 (9th Cir. 2021) (Kennedy

IV) (Smith, J., concurring in the denial of rehearing

en banc) (identifying Petitioner’s skewed recitation of

the facts as a “deceitful narrative”).

Rule 56 determines which version of the facts

controls in this Court. A motion for summary judgment must prevail if the evidence adduced at that

stage of the case “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). In considering such a motion, this Court typically views facts in the light most favorable to the

nonmoving party, but only when there is a genuine

dispute as to those facts. See Scott v. Harris, 550 U.S.

372, 380 (2007). “When opposing parties tell two different stories, one of which is blatantly contradicted

by the record so that no reasonable jury could believe

it, a court should not adopt that version of the facts

for purposes of ruling on a motion for summary

judgment.” Id.

8

That is the case here. Petitioner’s “version of

events is so utterly discredited by the record that no

reasonable jury could have believed him.” Id. Where a

summary judgment litigant’s presentation is such a

“visible fiction,” this Court must—as the Ninth Circuit and district court properly did below—view the

facts in the light depicted by the undisputed evidence.

Id. at 380–81.

The most glaring discrepancy between the reality

of the summary judgment record and Petitioner’s revisionist version of the facts is his claim that “[t]here

is zero record evidence that any student felt compelled

to join . . . his quiet, personal post-game prayer.” Pet.

Br. at 44 (emphasis added). The record shows precisely the opposite. Several parents reported that their

children “participated in the team prayers only because they did not wish to separate themselves from

the team,” JA 356, and at least one student reported

participating in Petitioner’s staged prayers out of

“fear that declining to do so would negatively impact

his playing time.” Kennedy III, 991 F.3d at 1018. After the school eventually put a stop to Petitioner’s

displays, parents and students came forward to

thank school officials for ending “awkward situations

where they did not feel comfortable declining to join”

in the prayers. JA 359.

These conflicts are all a predictable result of a

school employee in a leadership role staging overtly

sectarian prayers to maximize their exposure to students and the school community. These prayers were

neither “quiet” nor “personal,” as Petitioner claims

before this Court. Pet. Br. at 44. Photographic and

video evidence captured the very public nature of Petitioner’s religious activity. See, e.g., JA 262–67, 318–

19, 356. And letters and news reports depict Petitioner’s public campaign to pressure the school district to

9

accede to his demands to lead public prayers, along

with his refusal to consider reasonable accommodations from his employer. Kennedy III, 991 F.3d at

1012–13.

Furthermore, Petitioner candidly admitted that

his prayers were not “personal,” but rather a conscious effort to leverage his position of trust and authority to proselytize and influence students’ beliefs.

When the school instructed Petitioner to cease his

public prayers, he demanded that he be allowed to

“continue” the practice in order to “help[] these kids

be better people.” JA 69–74. Petitioner’s counsel delivered the same message to the district court, stating: “The young men on the team are looking up to

the coach. . . . That’s precisely why Coach Kennedy

wants to do what he does.” JA 368. Petitioner’s central role in this highly visible sectarian activity is underscored further by the fact that no students or

community members took to the field for prayer during the period when Petitioner complied with the

school’s request to cease his on-field religious activity.

JA 181.

On the occasions when Petitioner did engage in

truly “personal” and “quiet” prayers while on the job,

no issues ever arose. See Kennedy IV, 4 F.4th at 912

(Smith, J.). It was only when Petitioner’s sectarian

prayers became public, audible, and involved leading

students in religious exercise that the school stepped

in and asked him to stop. Even then, the school offered to accommodate his religious beliefs with precisely what he claims to want from this Court: the

freedom to engage in “brief,” “quiet,” “personal,” “solitary” prayer in a place where “where no one joined

him” and at a time when he and his students are

“free to engage in activities of their own choosing.” JA

106; Pet. Br. at 12, 29. Yet Petitioner refused those

10

accommodations, id., and made clear that he would

only be satisfied with using his access and status as a

coach to “pray in the middle of the football field immediately after the conclusion of games while the

players were on the field, and the crowd was still in

the stands.” Kennedy IV, 4 F.4th at 912 (Smith, J.).

Petitioner then mounted a publicity campaign

against the school, advertising the dispute in local

newspapers, television, and social media, and notifying the entire community that he intended to defy the

school and conduct his prayers publicly. Id. This publicity created a hostile and threatening atmosphere

for school officials and staff and raised safety concerns about crowd control during games. Kennedy III,

991 F.3d at 1013–14. Ultimately, the school suspended Petitioner from his coaching duties—but only after

it became clear there was no accommodation acceptable to Petitioner that did not also present an intolerable risk of violating the Establishment Clause. JA

106.

These facts are not just undisputed, they are indisputable, as no reasonable jury could have adopted

the version of events peddled in Petitioner’s brief to

this Court. At any rate, Petitioner did not challenge

these facts in the manner prescribed by Rule 56(c)(1).

As such, they must be accepted as definitely established for purposes of summary judgment and this

Court’s review. See Beard v. Banks, 548 U.S. 521, 527

(2006).

11

B. Petitioner’s dismissal was justified by the

school’s interest in avoiding the appearance of openly endorsing religion, as well

as the actual coercion of school children

in their religious views

In determining whether an unconstitutional endorsement of religion exists in the K-12 public school

context, this Court considers whether an “objective

observer,” would perceive the state’s involvement as

“a state endorsement of prayer in public schools.”

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

(2000) (cleaned up). That analysis “not only can, but

must, include an examination of the circumstances

surrounding” the action. Id. at 315. Here, the undisputed record of Petitioner’s activities more than justifies the measures the school took to avoid a serious

violation of students’ and others’ rights under the Establishment Clause.

An objective observer, aware of the surrounding

facts, would have no choice but to conclude that Petitioner’s conduct met the endorsement test. After all,

Petitioner repeatedly used the status and access of

his job as a school employee to publicly stage sectarian prayers while on the job and in the spotlight of

major, school-sponsored events. See supra at 9. This

religious expression enjoyed a privileged status because the school did not make the field available to

other individuals or religious groups to engage in

similar expression. Cf. Lamb’s Chapel v. Ctr.

Moriches Union Free Sch. Dist., 508 U.S. 384, 395

(1993). And Petitioner engaged in this activity, not

merely knowing that students were present and likely to join him, but for the very purpose of influencing

students’ beliefs and in spite of the pressure some felt

to join. See supra at 9. Viewing these post-game

prayers in light of the undisputed facts concerning

12

the publicity around this case, there can be no question that, had the school capitulated to Petitioner’s

demands to continue staging prayers at schoolsponsored football games, an objective observer would

view the school’s permission to continue the prayers

as a “seal of approval” and “authorized by a government policy.” Santa Fe Indep. Sch. Dist., 530 U.S. at

302, 308.

Furthermore, the school has a separate—and

“heightened”—interest under the Establishment

Clause in “protecting freedom of conscience from subtle coercive pressure in the elementary and secondary

public schools.” Lee v. Weisman, 505 U.S. 577, 592

(1992). Research shows that children are susceptible

to pressure from their peers towards conformity, such

that even “subtle and indirect” pressure “can be as

real as any overt compulsion.” Id. at 593. A young

person faced with a situation where most of her

friends or teammates are joining in prayer may simply not feel free to dissent from the group in the same

way an adult might. As a result, she may have “a

reasonable perception that she is being forced by the

State to pray in a manner her conscience will not allow.” Id. Coercion concerns are further amplified

where school staff or officials are the ones leading

prayers, due to the compound effects of “students’

emulation of teachers as role models and the children’s susceptibility to peer pressure.” Edwards v.

Aguillard, 482 U.S. 578, 584 (1987).

Nor has this Court ever said that coercion only

exists in the K-12 public school context where a

teacher explicitly “compels” students to pray. Such an

argument would be “formalistic in the extreme,” Lee,

505 U.S. at 595—it ignores the realities of the school

environment and “minimizes the immense social

pressure, or truly genuine desire, felt by many stu-

13

dents to be involved in the extracurricular event that

is American high school football.” Santa Fe, 530 U.S.

at 292. The potential loss of playing time could hardly

be a more coercive force for a high school athlete,

even if the student is not verbally ordered or physically forced to bend a knee.

If this Court holds that the First Amendment allows the kinds of coercion or endorsement shown

here, it could leave children in our K-12 public

schools in a tug-of-war of religious instruction and

indoctrination. Students will be caught, not only between schools and their parents, who have a fundamental right to direct their children’s religious upbringing, see Pierce v. Society of Sisters, 268 U.S. 510,

532, 534–35 (1925), but also between educators within schools who undoubtedly hold different and conflicting views of which religious beliefs and observances will best (in Petitioner’s words) “help[] these

kids be better people.” JA 73–74. The First Amendment would be turned on its head if this Court forced

a young and impressionable schoolchild to run a

gauntlet of Catholic confession at the close of Algebra, a short break for Buddhist meditation in Chemistry, and Evangelical prayer before Orchestra practice. Yet that is precisely the kind of result that a ruling in Petitioner’s favor would allow.

There can be no question that the school’s decision to remove Petitioner from his position was justified by an interest in avoiding potential violations of

the Establishment Clause. The Ninth Circuit was

therefore correct to affirm a grant of summary judgment in favor of the school and against Petitioner.

This Court should affirm that result. If it does so, it

need not reach the other arguments Petitioner raises.

14

II. Even if this Court Adopts Petitioner’s View

of the Facts, It Still Cannot Rule in His Favor While Remaining Faithful to Existing

Precedent Concerning the First Amendment

Rights of Public Employees

If this Court adopts Petitioner’s framing of the

facts and rejects the Ninth Circuit’s holding on the

Establishment Clause issue, there still remains the

issue of whether the First Amendment affirmatively

protects Petitioner from dismissal based on the

speech and religious activity at issue in this case. See

Caroline Mala Corbin, Government Employee Religion, 49 ARIZ. ST. L.J. 1193, 1205 (2017) (explaining

that, “even if not forbidden by the Constitution,” a

public-employee’s religious activity may still not be

“protected by the Constitution”). And on that question, so long as this Court remains faithful to its current interpretation of the First Amendment rights of

public employees as explicated in Garcetti v. Ceballos,

547 U.S. 410 (2006), Petitioner’s claim faces insurmountable obstacles.

In other words, if this Court intends to rule in Petitioner’s favor on his First Amendment claim, it can

do so only by (i) making an unreasoned, one-off departure from extant precedent or (ii) reformulating

that precedent in a manner that expands the protections of the First Amendment for all public employees. It should go without saying that only the latter

course is consistent with a judge’s traditional obligation to “do right to all manner of people,” WilliamsYulee v. Florida Bar, 575 U.S. 433, 445 (2015) (quoting 10 ENCYCLOPAEDIA OF THE LAWS OF ENGLAND 105

(2d ed. 1908)), and to safeguard “public confidence in

the fairness and integrity” of the judiciary, Caperton

v. A.T. Massey Coal Co., 556 U.S. 868, 889 (2009)

(cleaned up).

15

Petitioner is wrong that the Establishment

Clause allows him to use the status and access of his

job as a school employee to publicly stage sectarian

prayers while on duty and in the spotlight of major,

school-sponsored events. But at the same time, he is

entirely correct that “teachers and coaches remain

people even on the school grounds, and as private individuals they have political views, sports allegiances, and religious beliefs that” that are entitled to a

meaningful degree of First Amendment protection.

Pet. Br. at 30. If this Court intends to rule in Petitioner’s favor on his First Amendment claim, its ruling should also extend meaningful Free Speech protections to all educators—indeed, to all public employees—and not just the Petitioner or others who

seek to engage in similar religious observances on the

job.

A. Petitioner’s claim fails under this Court’s

current precedent restricting the First

Amendment rights of public employees

This Court’s existing precedent establishes a twostep inquiry into whether a public employee’s speech

is entitled to First Amendment protection. The first

step “requires determining whether the employee

spoke as a citizen on a matter of public concern.”

Garcetti, 547 U.S. at 418. If the answer is no—

because the employee was speaking either pursuant

to his or her official responsibilities or on a matter of

purely private concern—then “the employee has no

First Amendment cause of action.” Id. But if the answer is yes, then “the possibility of a First Amendment claim arises,” id., and the inquiry at the second

step is whether the employee’s interest in speaking

outweighs the interest of the government employer in

“promoting the efficiency of the public services it per-

16

forms through its employees.” Pickering v. Bd. of

Educ., 391 U.S. 563, 568 (1968).

Here, even if one accepts the sanitized version of

facts laid out in Petitioner’s brief, his First Amendment claim fails under this Court’s existing standards.

First, Petitioner has no claim that he engaged in

his religious speech in his capacity as a citizen, rather than “pursuant to [his] employment responsibilities.” Garcetti, 547 U.S. at 424. Although Petitioner

asserted early in the litigation that he was off-duty

during his prayers, the district court correctly concluded that “[a]ll of the evidence, including [Petitioner’s] own testimony, confirms that his job responsibilities extended at least until the players were released

after going to the locker room.” Kennedy v. Bremerton

Sch. Dist., 443 F. Supp. 3d 1223, 1236 n.3 (W.D.

Wash. 2020). As a result, there can be no question

that Petitioner was both on-duty and carrying out his

official responsibilities when he staged a sectarian

prayer in the presence of students and the public at a

school-sponsored sporting event. As even the Petitioner recognizes, “[p]ublic-school employees have no

constitutional right to inject prayer or proselytization

into their official duties.” Pet. Br. at 2.

Nor is this a situation where an employer sought

to “restrict employees’ rights by creating excessively

broad job descriptions,” Garcetti, 547 U.S. at 424. Petitioner acknowledged in his deposition that “a

coach’s role extends far beyond merely teaching a

sport.” Kennedy, 443 F. Supp. 3d at 1228. And in any

event, it is perfectly reasonable that the school would

expect Petitioner to remain on-duty and interacting

with players in an appropriate fashion until the field

had cleared.

17

Indeed, it was very much by virtue of Petitioner’s

employment position and on-duty status that he was

able to accomplish his preferred religious expression

in the way that he did. Ordinary citizens were in no

position to commandeer the school’s property to stage

sectarian prayers before crowds at major, schoolsponsored events. When Petitioner undertook these

activities using the status and access afforded by his

position, there existed “no relevant analogue to

speech by citizens who are not government employees.” Garcetti, 547 U.S. at 424. Thus, under this

Court’s current controlling standards, Petitioner’s

speech is categorically without First Amendment protection because it was made pursuant to his official

duties.

Second, even if one assumes that Petitioner expressed himself solely in his capacity as a citizen for

purposes of Garcetti, his claim would nevertheless

fail. That is because a public employee’s speech as a

citizen can only enjoy First Amendment protection if

it is on a “matter of public concern.” Id. at 418; see

also Borough of Duryea v. Guarnieri, 564 U.S. 379,

398 (2011) (“[O]n a matter of purely private concern,

the employee’s First Amendment interest must give

way.”). This Court has justified a categorial exclusion

of protection for public-employee speech on matters of

private concern on the ground that “government officials should enjoy wide latitude in managing their offices without intrusive oversight by the judiciary in

the name of the First Amendment,” even if the resulting discipline of the employee “may not be fair.” Connick v. Myers, 461 U.S. 138, 146 (1983).

The religious expression at issue here plainly

fails the “public concern” requirement. In fact, Petitioner has been steadfast throughout this litigation

and in his brief before this Court that his expression

18

was strictly “personal” and “private.” Pet. Br. at 8.

“Although personal religious conviction—even the

honestly held belief that one must announce such

conviction to others—obviously is a matter of great

concern to many members of the public, in this case it

simply is not a matter of ‘public concern’ as that term

of art has been used in the constitutional sense.”

Daniels v. City of Arlington, 246 F.3d 500, 504 (5th

Cir. 2001); see also Connick, 461 U.S. at 147 (“[W]hen

a public employee speaks . . . upon matters only of

personal interest . . . , a federal court is not the appropriate forum in which to review the wisdom of a

personnel decision taken by a public agency allegedly

in reaction to the employee’s behavior.”). Accordingly,

Petitioner’s personal and private expression of religious devotion was not protected from adverse action

by his employer under current precedent. And it necessarily follows that, even if the school were wrong

that the coach’s prayers on the school football field

created an impermissible impression that the school

was endorsing religion, the school would still be well

within its rights to decide that the activity was disruptive and should be stopped on school property.

B. The Court cannot rule in Petitioner’s favor on his First Amendment claim while

leaving extant precedent intact

As shown above, a ruling in Petitioner’s favor

would be incompatible with two categorical exclusions from First Amendment protection for speech by

public employees under current precedent: one for

“expressions made pursuant to official responsibilities,” Garcetti, 547 U.S. at 424, and another for expression on matters of “purely private concern.” Borough of Duryea, 564 U.S. at 398. If this Court nevertheless intends to hold Petitioner’s speech protected,

it should decline to do so in a way that undermines

19

broader principles of the sound administration of justice.

First, this Court should decline Petitioner’s suggestion, implicit throughout his brief, that he be given a case-specific reprieve from the restrictions on

First Amendment claims that apply to all other public employees. See generally Pet. Br. at 23−27 (misstating Garcetti’s pursuant-to-official-duties standard, failing to acknowledge the ramification under

Connick of the private and personal nature of the

speech at issue, and sidestepping entirely Pickering’s

balancing of interests). The reasons for this Court to

avoid departing from precedent for one particular litigant are obvious. “Courts, too, are bound by the First

Amendment.” Citizens United v. FEC, 558 U.S. 310,

326 (2010). And the judiciary—just like any other

arm of government—risks committing a “constitutional wrong” when it operates in a manner that explicitly or implicitly “identifies certain preferred

speakers” Id. at 340. A ruling that protects Petitioner’s speech on terms not available to other public employees raises the specter of the government attempting to impose religious or ideological orthodoxy,

which the Constitution does not permit. See R.A.V. v.

City of St. Paul, 505 U.S. 377, 391 (1992).

Moreover, any ruling that operates as a one-caseonly relaxation of existing standards for publicemployee First Amendment claims could undermine

perceptions of the Court’s integrity. “[I]t is not only

important that the Government . . . in fact avoid

practicing political justice, but it is also critical that

they appear to the public to be avoiding it, if confidence in . . . Government is not to be eroded to a disastrous extent.” U.S. Civil Serv. Comm’n v. Nat’l

Ass’n of Letter Carriers, 413 U.S. 548, 565 (1973). As

this Court has recognized, the “judiciary’s authority

20

. . . depends in large measure on the public’s willingness to respect and follow its decisions.” WilliamsYulee, 575 U.S. at 445–46. In a case as ideologically

freighted as this one, a ruling that does not faithfully

apply previously-stated legal standards would give

the public the harmful impression that the judiciary,

when presented with a congenial set of facts, will

simply “imbue authoritative texts with their own policy preferences.” Antonin Scalia & Bryan A. Garner,

READING LAW: THE INTERPRETATION OF LEGAL TEXTS

xxviii (2012).

Second, this Court should reject the approach

urged by Amicus America First Legal, which is to

rule for Petitioner on Free Exercise grounds alone

and without consideration of whether Petitioner’s

speech was pursuant to official duties or involved

matters of public concern. See Br. of Amicus America

First Legal at 4–5. Amicus America First Legal is

blunt in its reasons for advocating this approach: it

fears that a ruling in Petitioner’s favor on Free

Speech grounds would authorize public-employee

speech on topics it would prefer to see governmentally suppressed. In particular, Amicus America First

Legal expresses concern that a Free Speech ruling in

Petitioner’s favor would allow a coach who is “a homosexual activist” to “unfurl a rainbow flag” at “midfield after each game.” Id. at 4.

Suffice it to say, this Court should reject this argument, which Amicus America First Legal advances

for purposes that are openly disdainful of every principle the First Amendment embodies. In determining

the standards for protecting the First Amendment

rights of public employees, it would be a grave “constitutional wrong” for this Court to exalt the rights of

“certain preferred speakers” while denigrating the

rights of others. Citizens United, 558 U.S. at 340; see

21

also R.A.V., 505 U.S. at 391. Likewise, this Court

should not establish standards that draw lines among

religious beliefs (which may include advocating for

the rights of gay and transgender people) or that

draw lines between deeply held religious convictions

and secular ones. See Welsh v. United States, 398

U.S. 333, 356 (1970) (Harlan, J., concurring) (explaining that “such distinctions are not . . . compatible

with the Establishment Clause of the First Amendment”).

At any rate, this Court should reject the suggestion to apply different standards to public-employee

claims under the Free Exercise Clause, because doing

so would expose “public employers to intolerable legal

uncertainty” and create “yet another speech-related

puzzlement that government employers, judges, and

juries must struggle to solve.” Waters v. Churchill,

511 U.S. 661, 692 (1994) (Scalia, J., concurring). This

Court has already recognized in Borough of Duryea

that, in the context of public employment, the other

protections of the First Amendment (in that case, the

ones arising under the Petition Clause) are subjected

to the same standards as Free Speech claims governed by Garcetti. See Borough of Duryea, 564 U.S. at

389. The rationale for that decision applies with

equal force to any Free Exercise claim here. Just like

petitions and non-religious speech, religious exercise

“can interfere with the efficient and effective operation of government,” affect “public confidence in the

government and its employees,” or undermine employee morale. Id. at 389–90. Likewise, “[a]rticulation

of a separate test for the [Free Exercise Clause]

would aggravate potential harm to the government’s

interests by compounding the costs of compliance

with the Constitution.” Id. at 393.

22

C. If this Court is intent on ruling for Petitioner on the First Amendment claim, it

must modify existing precedent in a principled way that ensures the rights of all

public employees

If this Court reverses the Ninth Circuit on the

Establishment Clause issue, Petitioner’s case may

present an opportunity to revisit and modify its precedent restricting the First Amendment rights of public employees. In doing so, this Court should take account of the ways in which Garcetti and other precedents have become unworkable and inadequate. Ultimately, this Court should recognize a handful of

changes to the prevailing standards that would be

simple and easy to administer and would, most importantly, advance the public interest.

1. Modification of existing precedent

would be appropriate because it has

proven unworkable and inadequate for

the protection of important First

Amendment rights

This Court’s decision in Garcetti—and its introduction of the “pursuant to official duties” standard—

marked a sea change in the law that greatly restricted the First Amendment rights of public employees.

Scholarly reaction to the decision has been overwhelmingly negative. See, e.g., Sheldon H. Nahmod,

Public Employee Speech, Categorical Balancing, and

§ 1983: A Critique of Garcetti v. Ceballos, 42 U. RICH.

L. REV. 561, 563 (2008) (describing Garcetti as “unsound as a matter of First Amendment policy”). These

critiques have focused, not only on a significant diminution of personal autonomy for the millions of Americans who work in the public sector, but on the harm

done to the public at large by stripping important

23

constitutional protections from employees who reveal

information about governmental operations or expose

governmental wrongdoing. See Erwin Chemerinksy,

The Rookie Year of the Roberts Court and a Look

Ahead: Civil Rights, 34 PEPP. L. REV. 535, 539 (2007)

(Garcetti “is not only a loss of free speech rights for

millions of government employees, but it is really a

loss for the general public, who are much less likely

to learn of government misconduct”); Cynthia

Estlund, Free Speech Rights that Work at Work: From

the First Amendment to Due Process, 54 UCLA L.

REV. 1463, 1471 (2007) (criticizing Garcetti by asking,

“why are public employees not acting as citizens

when they speak out about government misconduct,

waste, or dishonesty in the course of doing their

jobs?”); Paul M. Secunda, Garcetti’s Impact on the

First Amendment Speech Rights of Federal Employees, 7 FIRST AMEND. L. REV. 117, 117 (2008) (Garcetti

makes “it nearly impossible for conscientious public

servants to speak out in the best interests of the public without jeopardizing their careers.”).

The harms predicted by these critiques have been

borne out in the workplace and the courts. As one

state supreme court has observed, Garcetti’s distinction between citizen and employee speech has not only proven “artificial and . . . difficult to apply,” it also

has the perverse effect of “reduc[ing] the likelihood

that public employees would speak to their employers

regarding corrupt practices, threats to the public

safety[,] or other illegal or dangerous workplace practices.” Trusz v. UBS Realty Investors, LLC, 123 A.3d

1212, 1224–25, 1230 (Conn. 2015). The same court

also recognized that Garcetti is fundamentally incompatible with the promotion of “liberties designed

to foster individuality,” “vibrant public speech,” and

24

“a minimum of governmental interference.” Id. at

1229.

The effects of Garcetti have been especially baleful for Amici’s members and other educators in public

schools. This Court’s cases promise that, just like

their students, teachers 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), and that they

“must always remain free to inquire, to study and to

evaluate, to gain new maturity and understanding;

otherwise our civilization will stagnate and die.”

Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957).

But, in the wake of Garcetti, the pages of the Federal

Reporters tell a different story, in which courts have

routinely upheld discipline or discharge for educators

based on their classroom speech or whistleblowing on

important public matters. See, e.g., Evans-Marshall

v. Bd. of Educ., 624 F.3d 332, 334–35 (6th Cir. 2010)

(Garcetti doomed teacher’s First Amendment claim

when she was fired after a parent complained about

the content of a book she assigned from the school’s

curriculum); Mayer v. Monroe County Cmty. Sch.

Corp., 474 F.3d 477, 478 (7th Cir. 2007) (same with

regard to teacher’s claim challenging her dismissal

for responding honestly to a student’s question about

whether she honked when she saw a “Honk for

Peace” sign); Mpoy v. Rhee, 758 F.3d 285, 289 (D.C.

Cir. 2014) (same with regard to a teacher who complained that his principal pressured him to falsify

test scores); Fox v. Traverse City Area Pub. Sch. Bd.

of Educ., 605 F.3d 345, 348 (6th Cir. 2010) (same with

regard to a special education teacher who complained

to her supervisor that the size of her teaching caseload was above the legal limit). A 2016 analysis of

federal circuit decisions concerning school employee

25

Free Speech claims found “a steady increase in voting

tendencies” among federal appellate judges “favoring

employers in K-12 free speech cases over the entire

period of [the] analysis.” Lewis M. Wasserman &

John P. Connolly, Unipolar Panel Effects and Ideological Commitment: An Analysis of U.S. Courts of Appeals Free Speech Decisions Involving K-12 Public

Education Employees, 31 ABA J. LAB. & EMP. L. 537,

541–42 (2016) (observing that, while 50% of votes favored employers before Connick, and just over 60%

favored employers in the period between Connick and

Garcetti, the post-Garcetti figure rose to over 80%).

Educators are particularly vulnerable at this very

moment. State legislatures and local school boards

across the country are considering and enacting

vaguely-worded teaching restrictions that “target discussions of race, racism, gender, and American history.” PEN America, Educational Gag Orders: Legislative Restrictions on the Freedom to Read, Learn, and

Teach 4 (2022). The furor surrounding these issues

has created deep concern among educators around

the country about how to comply with new laws and

how far educators must go in prophylactically censoring their own teaching and speech in order to avoid

controversy that might endanger their jobs. See

Laura Meckler & Hannah Natanson, New Critical

Race Theory Laws Have Teachers Scared, Confused

and Self-Censoring, WASH. POST (Feb. 22, 2022);

Adrian Florido, Teachers Say Laws Banning Critical

Race Theory Are Putting a Chill on Their Lessons,

NPR (May 28, 2021). In some places, the creation of

“hotlines” to report educators for teaching a proscribed topic have caused even greater concern. See

Omar Abdel-Baqui & Jennifer Calfas, New Virginia

Hotline Lets Parents Report ‘Divisive Teaching Practices’, WALL ST. J. (Jan. 26, 2022) (noting that “educa-

26

tors in the state worry [the hotline] could be used to

intimidate staff teaching historical fact”); Haley

Yamada, Teachers in New Hampshire Face New Legal Threats for Teaching So-Called ‘Divisive Concepts’

on Race: ‘It’s Psychological Warfare,’ ABC NEWS (Nov.

16, 2021).

Given the inadequate track record of this Court’s

current approach to protecting the First Amendment

rights of public employees, the time has surely

come—in this case or perhaps another in the near future—for a re-examination and revision of the Court’s

precedents in this area.

2. If this Court decides to re-examine its

precedent in this area, it should establish clear rules protecting publicemployee expression

There are three principal revisions to current

precedent that would be consistent with the text and

structure of the First Amendment and that would

address the problems of unworkability and inadequate protection posed by existing case law.

First, this Court should abandon Garcetti’s categorical exclusion of speech “pursuant to official duties” from the protections of the First Amendment. As

noted above, Garcetti’s pursuant-to-official-duties

standard has, from its very inception, harmed employees and the public at large by chilling substantial

amounts of speech on matters of urgent public concern—including corruption, abuse, and dangers to

public safety. See supra at 23−25. Moreover, the imprecision of the pursuant-to-official-duties standard

has sown confusion in the lower courts, leading to decisions that are impossible to square with any meaningful conception of the First Amendment. See, e.g.,

Lane v. Franks, 573 U.S. 228, 247 (2014) (reversing

27

the Eleventh Circuit’s erroneous conclusion that a

college employee’s truthful sworn testimony, compelled by subpoena, was unprotected under Garcetti

because it concerned information learned on the job);

Weintraub v. Bd. of Educ., 593 F.3d 196, 209 n.6 (2d

Cir. 2010) (Calabresi, J., dissenting) (criticizing a

panel majority’s conclusion that an employee’s union

grievance is unprotected speech pursuant to official

duties and noting the “distinct irony in the idea that

unions, which so many employers seek to exclude

from the workplace, are somehow transmuted into

entities that promote the employer’s mission” for

purposes of Garcetti) (cleaned up).

Amici do not gainsay the reality that a citizen entering public employment “by necessity must accept

certain limitations on his or her freedom” because

“[g]overnment employers, like private employers,

need a significant degree of control over their employees’ words and actions.” Garcetti, 547 U.S. at 418.

However, these concerns are better addressed—not

with a categorical rule of exclusion for speech pursuant to official duties—but by incorporating the capacity in which an employee speaks as a factor in the

traditional balancing of interests performed under

Pickering to account for both the interest of the employee in speaking and the government employer’s

interest in “promoting the efficiency of the public services it performs through its employees.” 391 U.S. at

569. Thus, to the extent an employee’s speech is made

pursuant to her duties as a government employee,

she would have a correspondingly lighter interest to

weigh against the government employer’s interests—

but her speech would not be categorically excluded

from protection.

Second, this Court should abandon Connick’s categorical exclusion of speech on matters of “private”

28

concern from the protections of the First Amendment.

The current categorical rule renders a vast swath of

speech unprotected, including speech on the deepest

and most private matters, even when they are discussed in an individual’s personal capacity outside

the workplace. Cf. Mahanoy Area Sch. Dist. v. B.L.,

141 S. Ct. 2038, 2048 (2021) (extending First

Amendment protection to a student’s off-campus expression of personal frustration and observing that,

while “[i]t might be tempting to dismiss [the student’s

speech as] as unworthy,” it is “sometimes . . . necessary to protect the superfluous in order to in order to

preserve the necessary”); see also Eugene Volokh,

Freedom of Speech and Information Privacy: The

Troubling Implications of a Right to Stop People from

Speaking About You, 52 STAN. L. REV. 1049, 1093

(2000) (explaining that “communication related to the

real, everyday experience of ordinary people” is entitled to significant protection under the First Amendment because it “deeply affects the way we view the

world, deal with others, evaluate their moral claims

on us, and even vote; and its effect is probably greater

than that of most of the paintings we see or the editorials we read”). Moreover, this Court’s precedents attempting to separate matters of public and private

concern have become increasingly confused and difficult to parse. Compare, e.g., Connick, 461 U.S. at 148

(holding that discussions among employees of ordinary workplace concerns do not involve matters of

public concern), with Janus v. AFSCME Council 31,

138 S. Ct. 2448, 2475–77 (2018) (concluding that the

presence of a union in such discussions converts them

into matters of “overwhelmingly . . . substantial public concern”).

To be sure, government employers have a strong

interest in preserving “wide latitude in managing

29

their offices.” Connick, 461 U.S. at 146. But the better

approach, again, would be to allow the degree of public or private concern to be weighed in the balancing

conducted under Pickering. Where an employee’s

speech is of relatively small importance to either the

employee or the public, and the employer has a substantial reason for restricting the speech, balancing

will favor the employers. See, e.g., City of San Diego

v. Roe, 543 U.S. 77, 84 (2004) (per curiam) (rejecting

a First Amendment claim where the employee’s lowvalue speech—consisting of homemade pornography—was “detrimental to the mission and functions

of the employer”).

Finally, this Court should recognize that a significant factor in Pickering balancing is the extent to

which an employer provided notice that the kind of

speech at issue would be proscribed. The inclusion of

such a factor would be particularly important for educators who carry out their duties in increasingly polarized and fractious environments. Such a requirement would ensure that local school boards can exercise their traditional authority to set the curriculum,

while also recognizing that “[f]ew subjects lack controversy,” and “[i]f teachers must fear retaliation for

every utterance, they will fear teaching.” Ward v.

Hickey, 996 F.2d 448, 453 (1st Cir. 1993).

If this Court considers Petitioner’s First Amendment claims, these refinements discussed above

would be sensible improvements to the current state

of the law. Implementing them would ensure the

principled application of legal standards in this case

and would provide millions of public employees with

protections worthy of the First Amendment’s principles.

30

CONCLUSION

For the reasons explained above, Amici submit

that this Court should affirm the Ninth Circuit’s

judgment below on the Establishment Clause issue.

If, however, this Court proceeds to Petitioner’s Free

Speech and Free Exercise claims, Amici submit that

the Court should revisit its existing precedent in this

area in accordance with the arguments made in this

brief.

Respectfully submitted.

RHONDA WEINGARTEN

ALICE O’BRIEN

DAVID J. STROM

Counsel of Record

DANIEL J. MCNEIL

JASON WALTA

American Federation

KRISTEN HOLLAR

of Teachers

LAURA B. PETTY

555 New Jersey Ave. NW National Education

Washington, DC 20001

Association

(202) 393-7472

1201 Sixteenth St. NW

Washington, DC 20036

Counsel for Amicus Cu- (202) 822-7035

riae American Federation aobrien@nea.org

of Teachers, AFL-CIO

Counsel for Amicus Curiae

National Education Association

April 1, 2022