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,

Petitioner,

v.

BREMERTON SCHOOL DISTRICT,

Respondent.

__________________

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

__________________

BRIEF OF AMICUS CURIAE CALIFORNIA

SCHOOL BOARDS ASSOCIATION, AND ITS

EDUCATION LEGAL ALLIANCE,

IN SUPPORT OF RESPONDENT

__________________

KEITH BRAY

MARK BRESEE

ROBERT TUERCK

Counsel of Record

ALEXANDRA WORTHY

MARLON WADLINGTON

ANTHONY DE MARCO

CALIFORNIA SCHOOL BOARDS

ASSOCIATION’S EDUCATION

ATKINSON, ANDELSON,

LOYA, RUUD & ROMO

LEGAL ALLIANCE

3251 Beacon Blvd.

12800 Center Court Drive

Suite 300

West Sacramento, CA 95691

(800) 266-3382

Cerritos, CA 90703

(562) 653-3200

mbresee@aalrr.com

Attorneys for Amicus Curiae

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

i

TABLE OF CONTENTS

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

IDENTITY AND INTEREST OF AMICUS CURIAE

........................................ 1

INTRODUCTION

AND

SUMMARY

OF

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

I. Pickering and Garcetti Appropriately Balance

Individual Interests and Government Interests,

Especially in the Public School Setting, and

They Should be Applied in this Case . . . . . . . . . . 7

II. Applying Pickering and Garcetti in this Case, the

Ninth Circuit Decision Should be Affirmed . . . . . . 10

A. In this Case, Kennedy Spoke as an

Employee, and Kennedy’s Application of

Garcetti is Overly Narrow and Unworkable

Especially in a Public School Context . . . . . 10

B. In this Case, the Balance of Interests Tip in

the District’s Favor . . . . . . . . . . . . . . . . . . . . 14

1. The District’s Actions Were Justified by

the Legitimate Governmental Interests it

Sought to Protect and Advance . . . . . . . . 14

2. A Rule That a Disclaimer by a Public

School District Cures any Establishment

Clause Concerns Would be Unworkable

and Ineffective . . . . . . . . . . . . . . . . . . . . . 18

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

ii

TABLE OF AUTHORITIES

CASES

Ansonia Bd. of Educ. v. Philbrook,

479 U.S. 60 (1986). . . . . . . . . . . . . . . . . . . . . . . . 16

Bd. of Educ. v. Earls,

536 U.S. 822 (2002). . . . . . . . . . . . . . . . . . . . . . . 13

Berry v. Department of Social Services,

447 F.3d 642 (9th Cir. 2006). . . . . . . . . . . . . . . . . 9

Board of County Com’rs, Wabaunsee County v.

Umbehr, 518 U.S. 668 (1996) . . . . . . . . . . . . . . . . 8

Capitol Square Review and Advisory Bd. v. Pinette,

515 U.S. 753 (1995). . . . . . . . . . . . . . . . . . . . . . . 19

City of San Diego v. Roe,

543 U.S. 77 (2004). . . . . . . . . . . . . . . . . . . . . . . . . 7

Connick v. Myers,

461 U.S. 138 (1983). . . . . . . . . . . . . . . . . . 8, 10, 14

Edwards v. Aguillard,

482 U.S. 578 (1987). . . . . . . . . . . . . . . . . . . . 13, 19

Garcetti v. Ceballos,

547 U.S. 410 (2006). . . . . . . . . . . . . 7, 8, 10, 11, 14

General Electric Co. v. Gilbert,

429 U.S. 125 (1976). . . . . . . . . . . . . . . . . . . . . . . 16

Good News Club v. Milford Cent. School,

533 U.S. 98 (2001). . . . . . . . . . . . . . . . . . . . . . . . 19

Hazelwood School Dist. v. Kuhlmeier,

484 U.S. 260 (1988). . . . . . . . . . . . . . . . . . . . . . . 21

iii

Janus v. American Federation of State, County,

and Municipal Employees, Council 31,

138 S.Ct. 2448 (2018) . . . . . . . . . . . . . . . . 7, 10, 11

Knight v. Connecticut,

275 F.3d 156 (2nd Cir. 2001) . . . . . . . . . . . . . . . . 9

Lamb’s Chapel v. Ctr. Moriches Union Free Sch.

Dist., 508 U.S. 384 (1993) . . . . . . . . . . . . . . . . . . 18

Lee v. Weisman,

505 U.S. 577 (1992). . . . . . . . . . . . . . . . . . . . . . . 13

Pickering v. Bd. of Ed. of Township High School

Dist., 391 U.S. 563 (1968) . . . . . . . . . . . . . . passim

Rosenberger v. Rector & Visitors,

515 U.S. 819 (1995). . . . . . . . . . . . . . . . . . . . . . . 18

Tucker v. State of Cal. Dept. of Ed.,

97 F.3d 1204 (9th Cir. 1996). . . . . . . . . . . . . . . . . 9

United States v. Treasury Employees,

513 U.S. 454 (1995). . . . . . . . . . . . . . . . . . . . . . . . 7

Vernonia Sch. Dist. 47J v. Acton,

515 U.S. 646 (1995). . . . . . . . . . . . . . . . . . . . 12, 13

Waters v. Churchill,

511 U.S. 661 (1994). . . . . . . . . . . . . . . . . . . . . . . . 7

Widmar v. Vincent,

454 U.S. 263 (1981). . . . . . . . . . . . . . . . . . . . . . . 19

CODE

20 U.S. Code § 4071(c)(3) . . . . . . . . . . . . . . . . . . . . . 12

iv

OTHER AUTHORITIES

EEOC Compliance Manual, Section 12-IV(A)(2)

(Discussion of Request), https://perma.cc/UE8YEATY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

What Sport Means in America: A Study of Sport’s

Role in Society, U.S. Anti-Doping Agency (2011),

https://perma.cc/66HL-5A7N . . . . . . . . . . . . 20, 21

1

IDENTITY AND INTEREST OF

AMICUS CURIAE

Pursuant to Supreme Court Rule 37, Amicus

Curiae, the California School Boards Association

(“CSBA”) and its Education Legal Alliance (“ELA”)

submit this brief supporting Respondent Bremerton

School District.1

CSBA is a California non-profit association duly

formed and validly existing under the laws of the State

of California. As a part of the CSBA, the ELA is

composed of nearly 700 CSBA member entities

dedicated to addressing legal issues of statewide

concern to school districts and county offices of

education. As part of its activities, the ELA files

amicus curiae briefs in litigation which impacts

California public educational agencies as a whole.

School districts in California and across the nation

are entrusted with educating students from countless

cultures and backgrounds, including innumerable

religious traditions, from pre-school through high

school. CSBA and the ELA have a strong interest in

ensuring that the resolution of the issues presented in

this case will provide California public schools with

reasonable, workable standards for navigating their

obligations and authority related to the Free Speech,

Free Exercise, and Establishment Clauses of the First

Amendment, as well as their obligation to reasonably

1

All parties have given blanket consent to the filing of this brief.

No counsel for a party authored this brief in whole or in part. No

person other than amici curiae made any monetary contribution

intended to fund the preparation or submission of this brief.

2

accommodate employee religious beliefs and practices

under Title VII of the Civil Rights Act of 1964.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Public employees, including public school teachers,

regularly engage in quiet, personal prayer while they

are in the workplace, and neither CSBA nor the ELA

have an interest in limiting that activity or questioning

this Court’s precedent that balances personal and

governmental interests when analyzing speech and

exercise activity in the government workplace.

However, this case invokes this Court’s precedent

regarding the exercise of constitutional rights by public

employees, precedent which dictates that context

matters, as it should here. In the full context of the

record in this case quiet, personal prayer by a public

employee is not what this case is about — this case is

not about a high school teacher bowing her head in

prayer in the faculty cafeteria prior to eating, even if it

might occur in view of student cafeteria workers or

students passing by; this case is not about a teacher

wearing a yarmulke in the classroom; this case does

not ask whether public school teachers and coaches are

prohibited from engaging in any religious activity or

expression while they are on duty.

This case is about school districts ability to navigate

the appropriate balance between honoring an

individual’s First Amendment right to private prayer

and protecting students. This case is about Petitioner

and former high school football coach Joseph Kennedy’s

(“Kennedy”) decision and demand, conveyed through

3

counsel and publicized widely by both Kennedy and

counsel, that he be permitted to return to his

longstanding “practice” of engaging in “verbal” and

“audible” prayer with students, to “help[] these kids be

better people,” in the middle of the school’s football

field in a crowded stadium immediately following the

end of each game. And, it is about more than that —

Kennedy’s “defiant” and “unyielding stance” (in the

words of Ninth Circuit dissenting Judge Ikuta)

occurred in the midst of other relevant, significant

contextual facts: when Kennedy returned to his

previous practice, students authorized to be on the field

were physically knocked over by reporters and other

spectators who jumped a fence to get on the field to join

or witness Kennedy’s conduct; Kennedy invited the

presence and involvement of a state legislator who

supported Kennedy, spoke to the legislator of his plan

on the sidelines during the game, and invited the

legislator to join the after game prayer to speak to the

students and others; a Satanist group demanded access

to the field, contending the District was allowing the

football field to be a forum for expressive activity by

members of the public; the District was flooded with

emails and media inquiries; several parents

complained about Kennedy’s practice, some

commenting that their children had felt compelled to

participate; parents of students knocked over after the

game complained; coaches who did not express

agreement with Kennedy were threatened, including

the head coach, Kennedy’s supervisor, who ended up

(along with other coaches) declining to return the

following season because of the “unsafe situation” he

felt subjected to; a District employee, the parent of a

District student, was the target of a social media

4

campaign advocating her termination from

employment after she wrote about her experience of

being bullied and harassed daily, in high school, for not

joining in similar religious activities. This is the

context in which the District had to decide what to do.

And throughout, the District’s conduct was

measured and respectful of the legitimacy of the

competing interests here, and it attempted to

reasonably navigate those interests. When the District

learned that for several years Kennedy had led pregame locker room prayers to a captive audience of

players, and post-game overtly religious prayers in the

midst of motivational speeches to his players —

conduct which came to the attention of the District

through an opposing coach characterizing the on-field

practice as being “allowed” by the District — Kennedy

was not removed from his position. Instead, the

District tried to work with him to strike an appropriate

balance between his faith-based desires and the

District’s interests as an employer, and as a required

protector of student safety and student rights, seeking

as it must, to avoid the appearance of endorsement,

and endeavoring to avoid its athletic venues from

becoming public forums immediately after each game

ends. The District repeatedly encouraged Kennedy and

his counsel to interact in good faith to discuss how

Kennedy’s desire to pray after games could be

reasonably accommodated. These invitations continued

even after Kennedy and his counsel announced that

Kennedy would defy the District’s direction and return

to leading post-game, mid-field prayer. Every District

invitation to engage in good faith dialogue was flatly

ignored by Kennedy and his counsel.

5

As Ninth Circuit Judge Ikuta accurately stated in

her dissent to the denial of rehearing en banc below,

Kennedy’s “defiant” and “unyielding stance” put the

District in a “no-win situation.” The District has

employees who possess rights under Title VII and the

Constitution, and the latter are neither shed at the

schoolhouse gate nor equivalent in scope as they are

outside that gate. Communication from Kennedy’s

counsel sent the clear message that litigation would be

the likely result if Kennedy was not permitted to do

exactly what he wanted, where he wanted, when he

wanted, regardless of the circumstances or

repercussions. The District also had the obligation (and

the prerogative) to address concerns and complaints

that students did or might feel compelled to

participate; to address an incident that occurred where

innocent students could have been injured; that nonparticipating or opposing employees were threatened

and ridiculed publicly; that despite their best efforts

they could not prevent people from charging onto the

field after games; and that allowing Kennedy’s

demanded practice to continue, even if the District

deemed his practice that of a private citizen rather

than a District employee, would obligate it to provide

on-field access to other groups demanding access for

First Amendment activity.

This is an employment case, not a student free

exercise case or a public forum access case as many of

Kennedy’s citations would suggest. The question is not

whether private personal prayer should be allowed, but

rather whether a school district should be liable for an

employee who chooses to pray with students while on

6

duty at school events after having been given

accommodations for private prayer.

This Court’s longstanding precedent dictates that

context matters in cases involving public employee

First Amendment rights, just as it does in cases

involving public school student First Amendment

rights. It is contexts like the one in this case that cry

out for this Court to reinforce and reaffirm the analysis

it laid out in Pickering v. Bd. of Ed. of Township High

School Dist., 391 U.S. 563 (1968), one that for decades

has provided the school officials and judges of this

Nation with workable standards for determining, in

specific factual contexts, whether and when public

employees are speaking as private citizens on matters

of public concern rather than as public employees, and

when the employee speaks as a private citizen whether

the interests of the public employer outweigh the rights

of the employee.

CSBA and the ELA urge this Court to reaffirm the

Pickering analysis in this case, to reject Kennedy’s

contention that public school employee religious

activity is by definition private speech subject to strict

scrutiny, and to confirm that applying Pickering leads

to the conclusion that: 1) Kennedy acted as a public

employee in his post-game speeches and prayers; and

2) even if his speech is deemed private the District’s

interests, especially in light of its relentless effort to

initiate discussions to find common ground and

accommodate Kennedy, outweighed Kennedy’s right to

engage in prayer at the exact time, place and manner

he demanded.

7

ARGUMENT

I. PICKERING AND GARCETTI APPROPRIATELY

B ALANCE I N D I V I D U A L I N T E R E S T S AND

GOVERNMENT INTERESTS, ESPECIALLY IN THE

PUBLIC SCHOOL SETTING, AND THEY SHOULD BE

APPLIED IN THIS CASE

Clearly, public employees do not surrender their

First Amendment rights by reason of their public

employment, Garcetti v. Ceballos, 547 U.S. 410, 417

(2006), but when they enter government service they

“by necessity must accept certain limitations on [their]

freedom.” Id. at 418, citing Waters v. Churchill, 511

U.S. 661, 671 (1994) (plurality opinion), see also City of

San Diego v. Roe, 543 U.S. 77, 80 (2004) (“[A]

governmental employer may impose certain restraints

on the speech of its employees, restraints that would be

unconstitutional if applied to the general public.”).

Since 1968, Pickering has addressed the balance

between the retention of rights and the limitations of

them in the context of public employment. Recently, in

Janus v. American Federation of State, County, and

Municipal Employees, Council 31, 138 S.Ct. 2448

(2018) this Court reaffirmed that the Pickering

framework “was developed specifically for cases that

involve ‘one employee’s speech and its impact on that

employee’s public responsibilities.’” 138 S.Ct. at 2472,

quoting United States v. Treasury Employees, 513 U.S.

454, 467 (1995). In other words, the Pickering

framework was developed for cases like this one.

Pickering and its progeny “identify two inquiries to

guide interpretation of the constitutional protections

accorded to public employee speech.” Garcetti, 547 U.S.

8

at 418. First, the employee must establish that the

conduct was undertaken not as an employee but as a

citizen, on a matter of public concern. Id. at 418, citing

Pickering, 391 U.S. at 568. If the former, “the employee

has no First Amendment cause of action based on his

or her employer’s reaction to the speech.” Id. at 418,

citing Connick v. Myers, 461 U.S. 138, 147 (1983). If the

latter, “the possibility of a First Amendment claim

arises,” and “[t]he question becomes whether the

relevant government entity had an adequate

justification for treating the employee differently from

any other member of the general public.” Id. at 418,

citing Pickering, 391 U.S. at 568. “A government entity

has broader discretion to restrict speech when it acts in

its role as employer — the restrictions it imposes must

be directed at speech that has some potential to affect

the entity’s operations,” id. at 418, but an employer

need not wait until “disruption of the office and the

destruction of working relationships is manifest before

taking action.” Connick, 461 U.S. at 152. The analysis

“requires a fact-sensitive and deferential weighing of

the government’s legitimate interests.” Board of County

Com’rs, Wabaunsee County v. Umbehr, 518 U.S. 668,

677. Factors to be considered include the government’s

“presumably weighty” interests in workplace

effectiveness and efficiency, in discipline by superiors

and harmony among co-workers, in positive working

relationships, in the unimpeded performance of the

employee’s duties, and in promoting the regular

mission and operation of the enterprise. Connick¸ 461

U.S. at 150-154. Also relevant is whether the speech

was aired in an inappropriate time, place, or manner.

Id. at 152-153.

9

The time-tested Pickering analysis has been applied

by this Court since 1968, has been reaffirmed in Janus

as the appropriate framework for cases that involve an

employee’s speech and its impact, and is a workable

standard that should be maintained. It has been

successfully and faithfully applied by lower courts in

the context of religious speech by public employees.

See, e.g. Berry v. Department of Social Services (9th

Cir. 2006) 447 F.3d 642 (applying Pickering, “we

conclude that the Department has successfully

navigated between the Scylla of not respecting its

employee’s right to the free exercise of his religion and

the Charybdis of violating the Establishment Clause of

the First Amendment by appearing to endorse

religion); Tucker v. State of Cal. Dept. of Ed. (9th Cir.

1996) 97 F.3d 1204 (applying Pickering, concluding the

state has a legitimate interest in avoiding the

appearance of supporting religion and in furthering the

efficiency of the workplace, but on the facts of the case

the state interests were insufficient to support a ban on

religious advocacy and on the posting of religious

materials); Knight v. Connecticut (2nd Cir. 2001) 275

F.3d 156 (applying Pickering, and concluding that the

state showed that permitting religious speech when

working with clients was and would continue to be

disruptive, the disruption outweighed the employees’

free speech interests, and the employees’ jobs required

a great deal of public contact thus giving the state a

significant interest in regulating speech related to that

contact). School officials are not judges and are not

typically constitutional scholars, but the Pickering test

empowers and obligates them to do what District

officials did in this case — respecting and balancing

the rights of employees, including by seeking

10

accommodations in good faith, with its interests in

promoting its educational mission, the safety and

rights of its students, the efficiency of its public

services and events, in avoiding the appearance of

endorsement of a particular religious message, and in

maintaining a closed forum for expressive activity.

Kennedy offers a single, passing citation to

Pickering (Br. 26), does not cite Connick, and relies on

Garcetti solely to argue that he was acting as a private

citizen while on duty and with students in his presence

and zone of supervisorial responsibility. Amici urge

this Court to reject that approach, and to reaffirm its

pronouncement in Janus, that Pickering and its

progeny — and both prongs of Pickering and its

progeny — govern this case and others like it.

II. APPLYING PICKERING AND GARCETTI IN THIS CASE,

THE NINTH CIRCUIT DECISION SHOULD BE

AFFIRMED

A. In this Case, Kennedy Spoke as an

Employee, and Kennedy’s Application of

Garcetti is Overly Narrow and Unworkable

Especially in a Public School Context

Garcetti teaches that “the proper inquiry” into

whether a public employee speaks as an employee or a

private citizen is “a practical one.” 547 U.S. at 424.

Courts should not rely mechanically on formal or

written job descriptions, which “often bear little

resemblance to the duties an employee actually is

expected to perform.” Id. at 424–25. “Many employees,

in both the public and private sectors, are paid to write

or speak for the purpose of furthering the interests of

11

their employers,” and “in general when public

employees are performing their job duties, their speech

may be controlled by their employer.” Janus, 138 S.Ct.

at 2474. “Restricting speech that owes its existence to

a public employee’s professional responsibilities does

not infringe any liberties the employee might have

enjoyed as a private citizen. It simply reflects the

exercise of employer control over what the employer

itself has commissioned or created.” Garcetti, 547 U.S.

at 421-422.

Here, importantly, this proper, practical inquiry

necessarily includes the fact that the speech at issue is

praying with students. In his deposition, Kennedy

confirmed this:

Q. Is there anything in Exhibit 10 [his counsel’s

letter] that says you are going to stop praying

with students?

A. No, there is nothing that says that specifically.

Q. So where it says in the last paragraph,

“Coach Kennedy will continue his practice,” do

you understand that that is saying that you will

continue your practice of praying with students

if the students come around you?

A. I wasn’t going to stop my prayer because

there was kids around me.

Q. So is that a yes, sir?

A. I — I’m sorry, one more time, could you just?

MR. TIERNEY: Could you read that question

back, please?

(The record was read back by the reporter.)

A. Yes.

12

Kennedy confirmed that between the receipt of

direction from the District in September, 2015, and his

counsel’s announcement that he would return to his

previous practice of praying with students about a

month later, he prayed privately after several games

without students and without resistance from the

District. The record as a whole thus makes it clear that

even Kennedy acknowledges a distinction between

private personal prayer and that “praying with

students” is what had happened before the District

issued any directives to Kennedy, what Kennedy

planned to continue, and what occurred after Kennedy

(through counsel) informed the District that he was

reinstating his previous practice. Thus, the relevant

question here is whether an on-duty football coach

praying with students at midfield immediately

following a game, and inviting community members

and elected officials to join in that prayer is speech as

a government employee, or whether that speech can be

considered purely private.

In the Equal Access Act, protecting public school

student Free Exercise rights related to student clubs

and access to public forums created by school districts,

Congress addressed the issue of employee prayer with

students by requiring that “employees or agents of the

school or government are present at religious meetings

only in a nonparticipatory capacity.” 20 U.S. Code

§ 4071(c)(3). Indeed, this Court has repeatedly and

correctly reinforced that public schools have a

“custodial and tutelary responsibility for children” that

cannot be artificially limited to delivering instruction

and coaching during practice and while time remains

on the game clock. Vernonia Sch. Dist. 47J v. Acton,

13

515 U.S. 646, 656 (1995); Bd. of Educ. v. Earls, 536

U.S. 822, 829–30 (2002). The Court has been properly

sensitive to the impact of religious expression by public

school teachers and coaches because of their position of

authority and the influence they have on students, and

because public school attendance is compulsory.

Edwards v. Aguillard, 482 U.S. 578, 584 (1987). This

Court has also acknowledged, correctly, that students

are more susceptible to peer pressure and coercion with

regard to religion. Lee v. Weisman, 505 U.S. 577, 592

(1992). This is the standard that defines the boundaries

within which public schools operate with respect to

religious expression.

Against this backdrop, amici contend that in this

case, on these facts, Kennedy was acting as a public

school coach when praying with students. Kennedy

announces he is not asserting that “everything teachers

or coaches do or say within the public schools is beyond

their employer’s reach,” Br. 25, emphasis in original,

but he proceeds to imply that there is literally no

control over public school employee speech unless the

employee is engaging in the narrow, core duty of the

job description — when the classroom teacher is

instructing students in organic chemistry, or when the

athletic coach is coaching players, calling plays, or

giving halftime talks. Br. 26-27. Not only does this defy

this Court’s rulings in Vernonia and Earls, but if the

job description of a teacher on a public school campus

addressed only classroom instruction, or the job

description of a coach addressed only communication

during practice, games, pre- and post-game speeches,

and halftime instruction, these descriptions would

“bear little resemblance to the duties an employee

14

actually is expected to perform.” Garcetti, 547 U.S. at

424-425. Kennedy himself admits as much.

B. In this Case, the Balance of Interests Tip in

the District’s Favor

1. The District’s Actions Were Justified by

the Legitimate Governmental Interests

it Sought to Protect and Advance

Even if one adopts the position that Kennedy’s onfield actions were that of a private citizen on a matter

of public concern, amici contends that applying the

extensive factual record in this case to the “practical

inquiry” of the second prong of the Pickering analysis

leads to the conclusion that the District’s actions were

reasonable and warranted. The District’s thorough

discussion of its “interest in the effective and efficient

fulfillment of its responsibilities to the public,” which

warrants “full consideration” by this Court, need not be

reiterated here. Connick, 461 U.S. at 150-151. Amici

focus here, and urge the Court in this context to

acknowledge and apply what it has already

acknowledged and applied previously, on two

additional and important considerations for public

school officials and districts.

First, the “practical inquiry” into the District’s

interests and obligations, and into the actions the

District took to address the actual circumstances it

faced, should include what Kennedy and his counsel

refused to do — to engage in the good faith, interactive

process required of both employers and employees

under Title VII of the Civil Rights Act of 1964. The

Equal Employment Opportunity Commission (EEOC)

15

describes this legal and practical, mutual obligation in

its Compliance Manual:

Both the employer and the employee have roles

to play in resolving an accommodation request.

In addition to placing the employer on notice of

the need for accommodation, the employee

should cooperate with the employer’s efforts to

determine whether a reasonable accommodation

can be granted. Once the employer becomes

aware of the employee’s religious conflict, the

employer should obtain promptly whatever

additional information is needed to determine

whether a reasonable accommodation is

available without posing an undue hardship on

the operation of the employer’s business. This

typically involves the employer and employee

mutually sharing information necessary to

process the accommodation request. Employer

employee cooperation and flexibility are key to

the search for a reasonable accommodation. If

the accommodation solution is not immediately

apparent, the employer should discuss the

request with the employee to determine what

accommodations might be effective. If the

employer requests additional information

reasonably needed to evaluate the request, the

employee should provide it.

EEOC Compliance Manual, Section 12-IV(A)(2)

(Discussion of Request).2 Although the Court has noted

that EEOC guidelines are accorded less weight than

2

https://perma.cc/UE8Y-EATY

16

administrative regulations declared by Congress to

have the force of law, General Electric Co. v.

Gilbert, 429 U.S. 125, this Court has reinforced the

EEOC guidance and the obligation to cooperate in good

faith. Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60,

69 (1986) (“[B]ilateral cooperation is appropriate in the

search for an acceptable reconciliation of the needs of

the employee’s religion and the exigencies of the

employer’s business.”). Indeed, in Ansonia the Court

confirmed that an employer meets its obligation to

reasonably accommodate an employee’s religious

observance or practice under Title VII once it

demonstrates that it has offered a reasonable

accommodation to the employee, and that an employer

does not have to demonstrate undue hardship related

to other potential accommodations:

Under the approach articulated by the Court of

Appeals, however, the employee is given every

incentive to hold out for the most beneficial

accommodation, despite the fact that an

employer offers a reasonable resolution of the

conflict. This approach, we think, conflicts with

both the language of the statute and the views

that led to its enactment. We accordingly hold

that an employer has met its obligation under

[Title VII] when it demonstrates that it has

offered a reasonable accommodation to the

employee.

Id. at 69. Amici contend that the District offered more

than one reasonable resolution, including a resolution

that was implemented in mid-September, 2015, and

under which Kennedy prayed after multiple games

17

until he demanded through counsel to return to his

pre-September practice of praying with students and

refused to discuss any other option. The record is clear

that the District adhered to both established precedent

and to EEOC guidance and accommodated Kennedy so

he could engage in private, personal prayer. At

minimum, amici urge this Court to reinforce that

public employees seeking workplace accommodation of

their religious beliefs and practices cannot simply

demand a specific accommodation and refuse to discuss

in good faith “the exigencies of the employer’s

business.”

Second, amici urge the Court to resist the

temptation, urged by Kennedy but unsupported by the

record, to assume that the District’s ultimate decisions

were because Kennedy’s activity was religious. The

District in this case demonstrated, repeatedly, the

opposite of hostility to Kennedy’s religious beliefs and

desire to pray after games, and it cannot be said that

coaches checking cell phones or greeting family

members in the stands, for example, were part of or

contributed to the actual circumstances that are

relevant to the second prong of the Pickering analysis.

Given the facts in the record, after offering multiple

accommodations, it was reasonable for the District to

take action regarding Kennedy’s “defiant” and

“unyielding stance,” and the record supports the

conclusions that the same would have occurred had his

insistence been that he be allowed to engage in other

activity that similarly impacted workplace

effectiveness and efficiency, discipline by superiors and

harmony among co-workers, positive working

relationships, the unimpeded performance of

18

employees’ duties, and the promotion of the District’s

mission and operation.

2. A Rule That a Disclaimer by a Public

School District Cures any Establishment

Clause Concerns Would be Unworkable

and Ineffective

Finally, amici support the District’s opposition to

Kennedy’s assertion that a disclaimer by a school

district would suffice to essentially negate the need to

conduct the balancing test in the second prong of the

Pickering framework, or at least the Establishment

Clause element of it. Schools cannot escape their duty

of care and responsibility to students by disavowing the

words and actions of their employees. Allowing the

activity to continue with a simple disclaimer in this

case would likely have intensified the demands for

access to the post-game forum and would have neither

addressed nor negated the very real potential of

students being impacted by the coach engaging in the

conduct on school grounds at a school-sponsored event.

Two additional reasons render unconvincing Kennedy’s

claim that a disclaimer would negate any

Establishment Clause, operational, or governmental

interest concerns present in the second prong of the

Pickering analysis.

First, the cases cited and relied on related to

disclaimers are factually and substantively distinct.

This is not a case related to student speech,

Rosenberger v. Rector & Visitors, 515 U.S. 819 (1995),

Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist.,

508 U.S. 384 (1993), or access to an open forum on

public school property that is open to other expressive

19

activity, Good News Club v. Milford Cent. School, 533

U.S. 98 (2001), Widmar v. Vincent, 454 U.S. 263 (1981),

or access to other government property that has been

opened to the public for speech. Capitol Square Review

and Advisory Bd. v. Pinette, 515 U.S. 753 (1995). As

Kennedy concedes, this “long line of this Court’s cases”

relates to “times and places where [the government

entity] would permit the speaker to engage in other

forms of activity or expression,” not the case here, and

they do not involve speech by teachers and coaches in

the presence of students, their younger siblings, and

others from the community. Br. 38-39. The Court has

confirmed:

Families entrust public schools with the

education of their children, but condition their

trust on the understanding that the classroom

will not purposely be used to advance religious

views that may conflict with the private beliefs

of the student and his or her family. Students in

such institutions are impressionable and their

attendance is involuntary. The State exerts

great authority and coercive power through

mandatory attendance requirements, and

because of the students’ emulation of teachers as

role models and the children’s susceptibility to

peer pressure.

Edwards, 482 U.S. at 584 (citations omitted). There is

a substantive difference between a governmental entity

disclaiming speech by non-employees — by students,

unaffiliated organizations in an open forum, etc. — and

an entity disclaiming speech by an employee, especially

when that employee is a teacher or coach in the midst

20

of impressionable students and (in this case) younger

fans watching from the stands, who are all susceptible

to peer pressure and see teachers and coaches

(correctly so) as role models.

Second, and similarly, expanding the proposition

that “schools do not endorse everything they fail to

censor” to a rule or expectation that school districts can

avoid controversy or litigation by simply disclaiming

any connection to or endorsement of employee speech

or religious exercise is offered by Kennedy devoid of

context. It might be an easier argument in a case

involving high school students only, but it raises the

issue of how a disclaimer is distributed, how widely it

is known, and its true effect. What, for example, would

a disclaimer mean to elementary school students

witnessing a teacher supervising recess taking a knee

and praying when the bell rings to end recess and send

students back to their classroom? And, in this case, can

it really be said that a formal disclaimer would have

satisfied those who perceived endorsement by the

District, or that it would have satisfied the Satanic

group and others demanding equal access to the field?

A disclaimer from the District that Kennedy’s activity

was not endorsed by the District would not assuage the

fears of students and their parents who felt compelled

to participate. The superintendent of a school district

or the president of its school board do not determine

the starting lineup or select team captains, the coaches

do, and it cannot be reasonably questioned that

coaches, through their words and actions, have a

tremendous influence on the young people they coach.

Thankfully, and not surprisingly, the influence is

typically positive, see, e.g. What Sport Means in

21

America: A Study of Sport’s Role in Society, U.S. AntiDoping Agency (2011),3 but the direct influence cannot

be discounted. Some students in this case felt

pressured in relation to their role and status on the

team, and undoubtedly students in other circumstances

feel pressure to conform to a coach’s view of what the

coach believes will “help[] these kids be better people.”

Context matters, and when a teacher or coach speaks

or acts on campus or at a school-sponsored activity it

carries more weight and impact than when a

superintendent or principal issues a disclaimer.

This Court has held that a school must retain the

authority to refuse “to associate the school with any

position other than neutrality on matters of political

controversy,” even in instances of student expression,

Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 272

(1988), and the record in this case does not support the

proposition that a disclaimer would have ended the

controversy or even altered the very real circumstances

the District faced above and beyond the Establishment

Clause issue.

CONCLUSION

For the foregoing reasons, this Court should

reaffirm the Pickering framework in public employee

speech cases, and affirm the decision of the Ninth

Circuit Court of Appeals.

3

https://perma.cc/66HL-5A7N (“Among all audiences surveyed,

coaches rank as the #1 positive influence on today’s youth,

according to the majority of respondents. This makes coaches,

perhaps even more so than parents and teachers, the guardians of

youth sport.”),

22

Respectfully submitted,

Date: April 1, 2022

MARK BRESEE

Counsel of Record

MARLON WADLINGTON

ANTHONY DE MARCO

ATKINSON, ANDELSON,

LOYA, RUUD & ROMO

12800 Center Court Drive

Suite 300

Cerritos, CA 90703

(562) 653-3200

mbresee@aalrr.com

KEITH BRAY

ROBERT TUERCK

ALEXANDRA WORTHY

CALIFORNIA SCHOOL BOARDS

ASSOCIATION’S EDUCATION

LEGAL ALLIANCE

3251 Beacon Blvd.

West Sacramento, CA 95691

(800) 266-3382

Attorneys for Amicus Curiae