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

Supreme Court briefApr 1, 2022

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No. 21-418

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------JOSEPH KENNEDY,

Petitioner,

BREMERTON SCHOOL DISTRICT,

Respondent.

---------------------------------♦--------------------------------On Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

---------------------------------♦--------------------------------BRIEF OF THE FREEDOM FROM RELIGION

FOUNDATION, CENTER FOR INQUIRY,

AMERICAN HUMANIST ASSOCIATION, AND

SECULAR COALITION FOR AMERICA AS AMICI

CURIAE IN SUPPORT OF RESPONDENT

---------------------------------♦--------------------------------PATRICK ELLIOTT

Counsel of Record

FREEDOM FROM RELIGION FOUNDATION

P.O. Box 750

Madison, WI 53701

(608) 256-8900

pelliott@ffrf.org

Counsel for Amici Curiae

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

TABLE OF CONTENTS

Page

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

iii

INTEREST OF AMICI CURIAE .........................

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

ARGUMENT ........................................................

This case is moot .......................................

A. The Court is required to determine

whether this case has become moot ....

B. This case is moot because Kennedy

cannot establish that he will benefit

from judicial relief ...............................

1) A Florida resident cannot sue a

Washington school district over its

policies ............................................

2) A case is moot when the plaintiff

removes themself from the threat

of allegedly unconstitutional policies ..................................................

3) There is no mechanism for Kennedy to “un-moot” this case ............

II.

The Court must apply jurisdictional doctrines uniformly, otherwise it manipulates

its jurisdiction in order to benefit preferred litigants ........................................... 11

III.

Students who are nonreligious or who are

religious minorities are harmed when

coaches instigate prayer or other religious

practices for their students ....................... 16

TABLE OF CONTENTS—Continued

Page

A. The features of the coach-student relationship coerce students to participate in coach-led prayers .................... 17

B. Recent examples demonstrate the harm

of coach-imposed prayers ...................... 21

C. Other school-sponsored religious activities harm students ................................ 23

D. Nonreligious students and religious

minorities have long been harmed by

school-sponsored religious activity ....... 26

CONCLUSION..................................................... 30

iii

TABLE OF AUTHORITIES

Page

CASES

303 Creative LLC v. Elenis,

142 S. Ct. 1106 (2022) .............................................16

303 Creative LLC v. Elenis,

2021 WL 5893335 (Dec. 8, 2021) (No. 21-476)........15

Ahlquist v. City of Cranston ex rel. Strom,

840 F.Supp. 507 (D.R.I. 2012) .................................25

Arizona Christian Sch. Tuition Org. v. Winn,

563 U.S. 125 (2011) .................................................13

Arizonans for Off. Eng. v. Arizona,

520 U.S. 43 (1997) ............................................. 3, 6, 8

Bauchman for Bauchman v. W. High Sch.,

132 F.3d 542 (10th Cir. 1997) ..................................14

Bd. of Sch. Comm’rs of City of Indianapolis v.

Jacobs,

420 U.S. 128 (1975) ...................................................9

Bell v. Little Axe Indep. Sch. Dist. No. 70,

766 F.2d 1391 (10th Cir. 1985) ................................27

Board of Ed. of Westside Community Schools

(Dist. 66) v. Mergens,

496 U.S. 226 (1990) .................................................17

Board of License Comm’rs of Tiverton v. Pastore,

469 U.S. 238 (1985) ...................................................6

Camreta v. Greene,

563 U.S. 692 (2011) ...................................................7

Carson v. Makin,

2021 WL 4993533 (Oct. 22, 2021) (No. 20-1088).......15

TABLE OF AUTHORITIES—Continued

Page

Chandler v. Siegelman,

230 F.3d 1313 (11th Cir. 2000) ................................28

City News & Novelty, Inc. v. City of Waukesha,

531 U.S. 278 (2001) ............................................... 3, 8

Cooley v. Granholm,

291 F.3d 880 (6th Cir. 2002) ......................................7

Deakins v. Monaghan,

484 U.S. 193 (1988) ...................................................5

Deal v. Mercer Cty. Bd. of Educ.,

911 F.3d 183 (4th Cir. 2018) ....................................24

Deveney v. Board of Education,

231 F.Supp. 2d 483 (S.D.W.Va. 2002) ......................28

Dobrich v. Walls,

380 F.Supp. 366 (D. Del. 2005) ................................29

Doe v. Madison Sch. Dist. No. 321,

177 F.3d 789 (9th Cir. 1999) .............................. 13, 14

Dunn v. Ray,

139 S. Ct. 661 (2019) ...............................................12

Edwards v. Aguillard,

482 U.S. 578 (1987) .................................................17

Elk Grove Unified Sch. Dist. v. Newdow,

542 U.S. 1 (2004) ............................................... 11, 13

Flast v. Cohen,

392 U.S. 83 (1968) .....................................................5

Genesis HealthCare Corp. v. Symczyk,

569 U.S. 66 (2013) .....................................................6

TABLE OF AUTHORITIES—Continued

Page

Hall v. Beals,

396 U.S. 45 (1969) .....................................................8

Hein v. Freedom From Religion Found., Inc.,

551 U.S. 587 (2007) .................................................13

Herdahl v. Pontotoc Cty. Sch. Dist.,

887 F.Supp. 902 (N.D. Miss. 1995) ..........................27

Illinois ex rel. McCollum v. Bd. of Educ.,

333 U.S. 203 (1948) .................................................26

Joint Sch. Dist. No. 241 v. Harris,

515 U.S. 1154 (1995)............................................ 9, 13

Lee v. Weisman,

505 U.S. 577 (1992) .................................................17

Lewis v. Cont’l Bank Corp.,

494 U.S. 472 (1990) ............................................... 5, 6

Lexmark Int’l, Inc. v. Static Control

Components, Inc.,

572 U.S. 118 (2014) .................................................11

Loertscher v. Anderson,

893 F.3d 386 (7th Cir. 2018) ......................................7

Lucero v. Trosch,

121 F.3d 591 (11th Cir. 1997) ....................................8

Lujan v. Defs. of Wildlife,

504 U.S. 555 (1992) ............................................. 6, 11

Mays v. Cabell Cnty. Bd. of Educ.,

No. 3:22-cv-00085, ECF No. 1

(S.D.W.Va. Feb. 17, 2022) ........................................24

TABLE OF AUTHORITIES—Continued

Page

M.B. ex rel. Bedi v. Rankin Cty. Sch. Dist.,

No. 3:13-CV241-CWR-FKB, ECF No. 1

(S.D. Miss. Apr. 24, 2013) ........................................25

M.B. ex rel. Bedi v. Rankin Cty. Sch. Dist.,

No. 3:13-CV241-CWR-FKB, ECF No. 63

(S.D. Miss. Nov. 22, 2013) ........................................24

Mellen v. Bunting,

327 F.3d 355 (4th Cir. 2003) ....................................13

Preiser v. Newkirk,

422 U.S. 395 (1975) ...................................................5

Roman Cath. Diocese of Brooklyn v. Cuomo,

141 S. Ct. 63 (2020) .................................................14

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

530 U.S. 290 (2000) .................................................28

Sch. Dist. of Abington Twp., Pa. v. Schempp,

374 U.S. 203 (1963) ........................................... 17, 26

Trinity Lutheran Church of Columbia, Inc. v.

Comer,

137 S. Ct. 2012 (2017) .............................................14

Trump v. Hawaii,

138 S. Ct. 2392 (2018) .............................................12

U.S. v. Sanchez-Gomez,

138 S. Ct. 1532 (2018) ........................................... 6, 9

Uzuegbunam v. Preczewski,

141 S. Ct. 792 (2021) ....................................... 4, 6, 10

Valley Forge Christian College v. Americans

United for Separation of Church and State, Inc.,

454 U.S. 464 (1982) .................................................12

vii

TABLE OF AUTHORITIES—Continued

Page

OTHER AUTHORITIES

Benjamin P. Edwards, When Fear Rules in Law’s

Place: Pseudonymous Litigation As A Response to Systematic Intimidation, 20 Va. J.

Soc. Pol’y & L. 437 (2013)........................................25

Catherine Ross, Kirtland Football Parent Files

First Amendment Complaint After Post-Game

Prayer, News 5 Cleveland (Mar. 3, 2022) ...............21

Charles Shumaker, Student Beaten for Prayer

Suit, He Says, Charleston Gazette & Daily

Mail, June 19, 2002 .................................................29

David Bario, A Lesson in Tolerance, Am. Lawyer,

July 2008 .................................................................29

Erin B. Edwards, College Athletics, Coercion,

and the Establishment Clause: The Case of

Clemson Football, 106 Va. L. Rev. (2020) ................18

FFRF persuasively tutors Va. school district,

Freedom From Religion Foundation (June 30,

2021) ........................................................................22

FFRF secures state/church victory in Mich.

school, Freedom From Religion Foundation

(Feb. 11, 2021) .........................................................21

Jean M. Williams, Gerald J. Jerome, Laura J.

Kenow, Tracie Rogers, Tessa A. Sartain &

Greg Darland, Factor Structure of the Coaching Behavior Questionnaire and Its Relationship to Athlete Variables, 17 Sport Psych.

(2003) .......................................................................19

viii

TABLE OF AUTHORITIES—Continued

Page

Jonathan Ringel, Alabama Claims U.S. Court

Order Denies Students’ Right to Pray, Fulton

County Daily Rep., Dec. 4, 1998 .............................28

Kenny Byrd, Baptist Family Opposed to Football

Prayer Feels Pressure, Baptist Standard (June

12, 2000) ..................................................................28

Laura Kenow and Jean M. Williams, Coach-Athlete compatibility and athlete’s perception of

coaching behaviors, Journal of Sport Behaviors (June 1999) .......................................................19

Linda K. Wertheimer, 50 Years After Abington v.

Schempp, a Dissenter Looks Back on School

Prayer, The Atlantic (Jun. 17, 2013), https://

www.theatlantic.com/national/archive/2013/06/50years-after-i-abington-v-schempp-i-a-dissenterlooks-back-on-school-prayer/276921/......................27

Muslim players sue saying beliefs led to dismissal, ESPN (Aug. 28, 2006) .......................................23

Paul Gattis, Freedom From Religion targets

Madison City Schools, Advance Local (Aug.

21, 2015) ..................................................................22

Pray to Play, Freedom From Religion Foundation (2015) ...............................................................23

Richard H. Fallon, Jr., The Linkage Between Justiciability and Remedies—and Their Connections to Substantive Rights, 92 Va. L. Rev.

(2006) .......................................................................12

TABLE OF AUTHORITIES—Continued

Page

Right-Remedy Equilibration and the Asymmetric Entrenchment of Legal Entitlements, 61

B.C. L. Rev. (2020) ...................................................12

Robert S. Alley, Without a Prayer: Religious

Expression in Public Schools (1996) ......................26

Stephanie Saul, A Lonely Battle in the Bible

Belt; A Mother Fights to Halt Prayers at Mississippi School, Newsday, Mar. 13, 1995 ...............28

US Census Bureau, Income and Poverty in the

United States: 2020. U.S. Census Report No.

P60-273. (Sept. 14, 2021) ........................................10

Wright and Miller, 13A Fed. Prac. & Proc. Juris.

§ 3531.1 (3d ed.) ................................................ 11, 12

INTEREST OF AMICI CURIAE1

Amici are national nonprofit organizations dedicated to promoting freedom of conscience. Amici work

to protect the First Amendment and its core principles,

which prohibit public school employees from imposing

their religion on students.

The Freedom From Religion Foundation is the

largest national association of freethinkers, representing atheists, agnostics, and others who form their opinions about religion based on reason, rather than faith,

tradition, or authority. Founded nationally in 1978 as

a 501(c)(3) nonprofit, FFRF has more than 36,000

members, including members in every state and the

District of Columbia. It has more than 1,600 active

members in Washington State. Its purposes are to educate about nontheism and to preserve the cherished

constitutional principle of separation between religion

and government. FFRF provides direct support for citizens encountering religious entanglements between

religion and government, with half of its caseload involving Establishment Clause violations in public

schools. FFRF tirelessly works to protect students

from school-sponsored religious activity.

The Center For Inquiry is a nonprofit educational

organization dedicated to promoting and defending

All parties consented to the filing of this amicus brief. No

party’s counsel in this case authored this brief in whole or in part.

No party or party’s counsel contributed any money intended to

fund preparing or submitting this brief. No person, other than

amicus, its members, or its counsel contributed money that was

intended to fund preparing or submitting this brief.

science, reason, humanist values, and freedom of inquiry. Through education, research, publishing, social

services, and other activities, including litigation, CFI

encourages evidence-based inquiry into science, pseudoscience, medicine, health, religion, and ethics. CFI

advocates for public policy rooted in science, evidence,

and objective trust, and works to protect the freedom

of inquiry that is vital to a free society. CFI believes

that the separation of church and state is vital to the

maintenance of a free society that allows for a reasoned exchange of ideas about public policy.

The American Humanist Association is a national

nonprofit membership organization based in Washington, D.C. Founded in 1941, the AHA is the nation’s oldest and largest humanist organization. The AHA has

tens of thousands of members and over 242 local chapters and affiliates across the country. Humanism is a

progressive lifestance that affirms—without theism

or other supernatural beliefs—our responsibility to

lead meaningful and ethical lives that add to the

greater good of humanity. The mission of the AHA’s legal center is to protect one of the most fundamental

principles of our democracy: the separation of church

and state. To that end, the AHA has litigated dozens of

First Amendment cases nationwide, including in this

Court.

The Secular Coalition for America is a group of diverse organizations large and small representing atheists, agnostics, humanists, and other nonreligious

Americans. As such, the Secular Coalition for America

is a dedicated 20-year-old lobbying organization whose

mission is to advocate for the equal rights of nonreligious Americans and defend the separation of religion

and government in Congress, in the executive branch,

and in the courts. SCA is also dedicated to amplifying

the diverse and growing voice of the nontheistic community in the United States.

---------------------------------♦---------------------------------

SUMMARY OF ARGUMENT

Changed circumstances render this case moot, divesting this Court of Article III jurisdiction and mandating that the Court dismiss the case.

Petitioner Joseph Kennedy moved approximately

2,800 miles from the Bremerton, Washington area to

Pensacola, Florida. Suggestion of Mootness, 1–2, 6. He

sold his home in Washington and purchased a home in

Florida in 2020. Id. at 1–2. Kennedy and his wife are

no longer employed in Washington. Id. The assistant

football coach position at Bremerton High School is a

year-round commitment that pays just $5,304. Id. at

2–3. These changed circumstances are problematic for

Kennedy because a Florida resident cannot sue a

Washington school district over its policies.

Under the Court’s precedents, the case is moot.

This is reinforced by the principle that a plaintiff who

removes himself from the threat of allegedly unconstitutional policies has mooted his claims for prospective

relief. See Arizonans for Off. Eng. v. Arizona, 520 U.S.

43, 72 (1997); City News & Novelty, Inc. v. City of

Waukesha, 531 U.S. 278, 283 (2001). Because a plaintiff

must maintain a “personal interest” in the matter at

“all stages of litigation,” Uzuegbunam v. Preczewski,

141 S. Ct. 792, 796 (2021), there is no mechanism to

“un-moot” a moot case. Kennedy’s case is moot and the

Court likely would not have issued a writ of certiorari

had the Court been aware of Kennedy’s changed circumstances.

Amici express serious concern that the Court may

disregard Article III jurisdictional requirements in

challenges involving Free Exercise litigants. Atheists

seeking to enforce the Establishment Clause have not

been treated similarly. The Court’s cases involving religion demonstrate the need for the Court to act evenhandedly in its approach to jurisdiction.

If the Court is inclined to review the merits of this

case, it must take into account the harm caused to students who are nonreligious or who are religious minorities when coaches instigate prayer. The unique

features of the coach-student relationship coerce students to participate in coach-led prayers. This type of

religious activity has harmed students in numerous respects, including by marginalizing nonreligious students and making them susceptible to attacks from

other students and members of the community.

---------------------------------♦---------------------------------

ARGUMENT

This case is moot.

A. The Court is required to determine

whether this case has become moot.

Bremerton School District has indicated that the

Court lacks Article III jurisdiction to decide this case

in its Suggestion of Mootness. Having been briefed on

the facts, the Court must analyze whether the case has

become moot. The Constitution requires that “federal

courts may adjudicate only actual, ongoing cases or

controversies.” Lewis v. Cont’l Bank Corp., 494 U.S. 472,

477 (1990), citing Deakins v. Monaghan, 484 U.S. 193,

199 (1988); Preiser v. Newkirk, 422 U.S. 395, 401 (1975).

The principle that federal courts may not issue advisory opinions is “the oldest and most consistent thread

in the federal law of justiciability.” Flast v. Cohen, 392

U.S. 83, 96 (1968) (citation omitted).

The Court cannot simply waive its responsibility

to comply with the case or controversy requirements of

Article III. As a threshold issue, this Court has an obligation to review and address it prior to any adjudication on the merits.

B. This case is moot because Kennedy cannot establish that he will benefit from

judicial relief.

The only ongoing motivation for this litigation

is the prospect of a “win” before the Supreme Court

by Kennedy. If “intervening circumstances” deprive

Kennedy of a stake in this case “at any point during

litigation, the action can no longer proceed and must

be dismissed as moot.” Genesis Healthcare Corp., 569

U.S. at 72, citing Lewis, 494 U.S. at 477–478.

Kennedy has the burden to demonstrate that his

changed circumstances do not render his appeal nonjusticiable. See Lujan v. Defs. of Wildlife, 504 U.S. 555,

561 (1992). “At all stages of litigation, a plaintiff must

maintain a personal interest in the dispute.” Uzuegbunam, 141 S. Ct. at 796. Kennedy must establish that

he maintains a “personal stake.” U.S. v. SanchezGomez, 138 S. Ct. 1532, 1537 (2018). This requirement

is fundamental to ensuring that the federal judiciary

“confines itself to its constitutionally limited role of adjudicating actual and concrete disputes.” Id., quoting

Genesis HealthCare Corp., 569 U.S. at 71.

Bremerton School District’s Suggestion of Mootness is fatal to Kennedy’s appeal. In 2020, Kennedy

moved 2,800 miles from the Bremerton, Washington

area to Pensacola, Florida.2 He sold his home in Washington. He purchased a home in Florida and established residency there. He and his wife are no longer

employed in Washington. There can hardly be a realistic prospect that the assistant football coach position

When Kennedy sold his home and moved to Florida, at a

minimum, his counsel should have informed opposing counsel

and the Ninth Circuit Court of Appeals. “It is the duty of counsel

to bring to the federal tribunal’s attention, ‘without delay,’ facts

that may raise a question of mootness.” Arizonans for Off. Eng.,

520 U.S. at 68 n.23, citing Board of License Comm’rs of Tiverton

v. Pastore, 469 U.S. 238, 240 (1985) (per curiam).

at Bremerton High School is the type of position that

one picks up and moves across the country to accept. It

is a year-round commitment that pays just $5,304. On

these key facts alone, Kennedy cannot maintain an action for prospective relief against a school district in

Washington.

1) A Florida resident cannot sue a Washington school district over its policies.

An action seeking prospective relief related to an

unconstitutional policy may become moot if the plaintiff moves from the geographical jurisdiction of the government entity that created the policy. Loertscher v.

Anderson, 893 F.3d 386, 393 (7th Cir. 2018). As discussed in Loertscher, this Court’s decision in Camreta

v. Greene, 563 U.S. 692 (2011) is instructive. When a

student bringing a Fourth Amendment challenge had

moved to Florida from Oregon and was about to graduate from school, “she face[d] not the slightest possibility of being seized in a school in the Ninth Circuit’s

jurisdiction as part of a child abuse investigation.”

Camreta, 563 U.S. at 710–711. Similarly, in Loertscher,

the plaintiff moved out of Wisconsin and had no plans

to return. 893 F.3d at 388.

Other courts have had to decline to rule on important cases when the person seeking judicial relief

had moved out of state. In Cooley v. Granholm, 291 F.3d

880 (6th Cir. 2002), a case involving Michigan law, one

physician had moved from Michigan to California with

the intention of returning “if he c[ould] find a suitable

job.” Id. at 882. The Sixth Circuit held that he lacked

“an immediate concrete interest in the outcome of the

case” and thus “the case ha[d] completely lost ‘its character as a present live controversy of the kind that

must exist if [the Court is] to avoid advisory opinions

on abstract propositions of law.” Id. at 882–883, quoting Hall v. Beals, 396 U.S. 45, 48 (1969). In Lucero v.

Trosch, the Eleventh Circuit discovered that a doctor

had sold his health clinic and no longer lived in Alabama. 121 F.3d 591, 595 (11th Cir. 1997). The court determined that any claims for injunctive relief related

to the clinic by the doctor or his family became moot.

Id. at 596.

2) A case is moot when the plaintiff removes themself from the threat of

allegedly unconstitutional policies.

Decisions related to the geographical location of

the litigants are similar to decisions where the plaintiff has voluntarily removed themself from the threat

of allegedly illegal policies. This Court determined that

an employee’s challenge to a state law affecting the

performance of her job was mooted by changed circumstances, her resignation to pursue work in the private

sector. Arizonans for Off. Eng., 520 U.S. at 72. Likewise,

a case was moot when an adult business that was challenging a local ordinance had ceased its efforts to renew its license after it petitioned for certiorari. City

News & Novelty, Inc., 531 U.S. at 283. The business had

argued that the case was not moot, as its license denial

was disqualifying for any future licenses, not just for

its closed location. Reply Brief of City News & Novelty,

Inc. at 1–2, 2000 WL 1740741. Hence, the possibility of

a future benefit did not save such cases from mootness.

In the school context, prospective relief claims are

often nonjusticiable when students, by happenstance,

have left the school. Bd. of Sch. Comm’rs of City of Indianapolis v. Jacobs, 420 U.S. 128 (1975) (per curiam).

When students graduate, “it seems clear that a case or

controversy no longer exists between the named plaintiffs and the [board] with respect to the validity of the

rules at issue.” Id. at 129. The Court has also determined that a high school student’s challenge to graduation prayer was moot after the student had

graduated. Joint Sch. Dist. No. 241 v. Harris, 515 U.S.

1154 (1995).

These decisions have a common theme: When the

plaintiff has removed himself from the threat of an allegedly unconstitutional policy, he cannot continue to

challenge said policy.

3) There is no mechanism for Kennedy

to “un-moot” this case.

It is of little consequence that Kennedy claims

his residency in Florida is “temporary” and that he

would fly 2,800 miles back to Bremerton to take a

year-round assistant coach position that pays $5,304.

Kennedy cannot carry the burden of establishing that

he still has a “personal stake.” Sanchez-Gomez, 138

S. Ct. at 1537.

First, such self-serving statements are implausible on their face. Kennedy has the burden to demonstrate that the Court has jurisdiction. Regardless of

the statements in his affidavit, the prospect that a person in his situation can obtain prospective relief is impractical in the extreme. People who work as assistant

coaches in high school athletic programs for less than

8 percent of the median household income do not move

across the country to take such a position.3 Certainly,

those persons do not sell their homes, buy new homes,

and give up their new jobs or schooling to do so. A modicum of legal judgment applied to the circumstances

here leads inevitably to the conclusion that the controversy is one that has passed.

Second, even if Kennedy asserts a plausible assurance that he would return, the effect is not to “un-moot”

the case. This case became moot when he left the

Bremerton area and established residency in Florida.

“At all stages of litigation, a plaintiff must maintain a

personal interest in the dispute.” Uzuegbunam, 141

S. Ct. at 796. There is no mechanism to “un-moot” a

moot case. If Kennedy were to return to Bremerton, he

could pursue an action against the Bremerton School

District at such time, which would be subject to appropriate fact-finding before a tribunal. But he is not permitted today to litigate what an assistant coach may

do on the athletic fields in Bremerton, Washington, as

Median household income in the U.S. in 2020 was $67,521.

US Census Bureau, Income and Poverty in the United States:

2020. U.S. Census Report No. P60-273. (Sept. 14, 2021).

a resident of Florida. His “some day” intention of returning is insufficient. Lujan, 504 U.S. at 564.

II.

The Court must apply jurisdictional doctrines uniformly, otherwise it manipulates

its jurisdiction in order to benefit preferred

litigants.

Amici work to protect the rights of nonreligious

Americans, including through litigation concerning

the Establishment Clause of the First Amendment.

This Court has dismissed Establishment Clause

claims as nonjusticiable in cases where reasonable

minds could differ. See Elk Grove Unified Sch. Dist. v.

Newdow, U.S. 1, 17–18 (2004), abrogated by Lexmark

Int’l, Inc. v. Static Control Components, Inc., 572 U.S.

118 (2014). In this case, it is apparent that Kennedy’s

claims for prospective relief are nonjusticiable.

The Court cannot pick and choose when to ignore

Article III. If the Court’s jurisdiction is circumscribed

by Article III’s case or controversy requirement, then

the Court must decline to hear the matter. If the Court

asserts it has jurisdiction to decide such cases, it must

apply its jurisdiction uniformly to all litigants, and not

only to cases involving preferred litigants. A review of

the Court’s cases involving religion highlights the need

for the Court to adopt an evenhanded approach to jurisdiction.

Concerns over manipulation of jurisdictional requirements by the Supreme Court have been noted by

multiple observers of the Court. See Wright and Miller,

13A Fed. Prac. & Proc. Juris. § 3531.1 (3d ed.) (Recognizing that justiciability determinations have sometimes led to “disingenuous manipulation.”). As one

scholar put it, “Many observers believe the manipulation of justiciability doctrine to be rampant.”4 Another

scholar has analyzed the mechanisms by which courts

manipulate outcomes by utilizing procedural, substantive, and justiciability principles.5

Atheist and Muslim plaintiffs who bring Establishment Clause claims ought not to face higher procedural and jurisdictional hurdles when seeking judicial

relief.6 The Court has often found that it had no authority to decide cases involving the first ten words of

the First Amendment.

In Valley Forge Christian College v. Americans

United for Separation of Church and State, Inc., the

Court, in part, found that plaintiffs who resided in

Maryland could not challenge a transfer of property in

Pennsylvania to vindicate their claim that the transfer

Richard H. Fallon, Jr., The Linkage Between Justiciability

and Remedies—and Their Connections to Substantive Rights, 92

Va. L. Rev. 633, 655 (2006).

Michael Coenen, Right-Remedy Equilibration and the

Asymmetric Entrenchment of Legal Entitlements, 61 B.C. L. Rev.

129, 134–135 (2020).

Beyond justiciability issues, Muslim litigants have faced

substantial scrutiny of their religious liberty claims before the

Supreme Court. See Trump v. Hawaii, 138 S. Ct. 2392 (2018);

Dunn v. Ray, 139 S. Ct. 661 (2019) (Vacating stay of execution of

Muslim death row inmate who sought the comfort of an imam at

his last moments of life).

violated the Establishment Clause. 454 U.S. 464, 471,

486–487 (1982).

In Elk Grove Unified Sch. Dist. v. Newdow, the

Court concluded that a father lacked prudential standing to challenge the Pledge of Allegiance on behalf of

his daughter when he did not have legal custody of the

child at the time the Court of Appeals issued its decision. 542 U.S. at 17–18.

In Hein v. Freedom From Religion Found., Inc., the

Court held that taxpayers lacked standing to challenge

federal expenditures under the Establishment Clause

without express authorization for the expenditures

from Congress. 551 U.S. 587, 608 (2007).

Likewise, in Arizona Christian Sch. Tuition Org. v.

Winn, 563 U.S. 125 (2011), the Court ruled that taxpayers challenging a tax credit for religious education, as

opposed to an expenditure, lacked Article III standing.

In the school context, Establishment Clause plaintiffs have had their appeals dismissed as moot after

they were no longer subject to school policies. In Joint

Sch. Dist. No. 241, 515 U.S. 1154 (1995), the Court

granted a petition for certiorari, and then vacated and

remanded the case with directions to dismiss as moot.

The student-plaintiff who challenged prayer practices

at her school had graduated. Circuit courts of appeals

have similarly dismissed prospective relief claims by

Establishment Clause plaintiffs. See Mellen v. Bunting,

327 F.3d 355, 365 (4th Cir. 2003) (Vacating injunctive

and declaratory relief awarded to former cadets at

state military college); Doe v. Madison Sch. Dist. No.

321, 177 F.3d 789, 791 (9th Cir. 1999) (Holding in part

that Establishment Clause claim concerning school

graduation prayers was moot after the student graduated); Bauchman for Bauchman v. W. High Sch., 132

F.3d 542, 548 (10th Cir. 1997) (Finding that Establishment Clause claim by former Jewish student was moot

after graduation).

Christians who have brought Free Exercise challenges have not faced significant procedural and jurisdictional hurdles. The Court has not only heard such

cases when jurisdiction was in doubt, it has done so

regularly. In Trinity Lutheran Church of Columbia,

Inc. v. Comer, the Court determined, in a footnote, that

the case had not become moot despite the Missouri

Governor providing the relief sought by the church.

137 S. Ct. 2012, 2019 n.1 (2017). The new Missouri

Governor had directed the Department of Natural Resources to allow religious organizations to receive

grants from the state. Id.

In a per curiam decision, the Court ordered injunctive relief in Roman Cath. Diocese of Brooklyn v.

Cuomo, 141 S. Ct. 63 (2020). Dissenting justices noted

the fact that the religious organizations seeking an injunction were no longer subject to restrictions implicating the Free Exercise Clause. Id. at 75 (Roberts,

C.J., dissenting) (“None of the houses of worship identified in the applications is now subject to any fixed numerical restrictions.”); (Breyer, J., dissenting) (“[N]one

of the applicants are now subject to the fixed-capacity

restrictions that they challenge in their applications.”).

This term, the Court will decide Carson v. Makin,

which asks whether either the First or Fourteenth

Amendments require Maine to include religious

schools in a program designed to provide a free public

education to students who live in school systems which

do not operate secondary public schools. Carson v.

Makin, 141 S. Ct. 2883 (2021). In its brief, Maine has

argued that parents who appealed lack standing because they failed to present evidence that their desired

Christian schools are even willing to participate in the

program. Carson v. Makin, Brief of Respondent, 2021

WL 4993533 at 53 (Oct. 22, 2021) (No. 20-1088). In fact,

it is unlikely that the schools will participate, or at

least it is doubtful that they would seek to do so. Id. at

53–54. At this time, the Court has yet to address the

standing issue or issue an opinion deciding the case.

In 303 Creative LLC v. Elenis, No. 21-476, a business sought the Court’s review of whether a public accommodation law violates both the Free Exercise and

Free Speech Clause of the First Amendment. In response, Colorado civil rights officials and the Colorado

Attorney General argued that the claims are not justiciable. 303 Creative LLC v. Elenis, Brief in Opposition,

2021 WL 5893335 (Dec. 8, 2021) (No. 21-476). The response asked, “Whether a commercial provider has

standing, and its claim is ripe, when it has not entered

the market, has no customers, has not created a product, and has not shown a credible threat of enforcement under the challenged law?” Id. Despite the

justiciability issues, the Court granted certiorari on

the Free Speech question. 303 Creative LLC v. Elenis,

142 S. Ct. 1106 (2022).

The Court has erected substantial barriers to

plaintiffs who assert Establishment Clause claims.

The court ought to apply the same scrutiny to claims

asserted by Christian litigants who espouse Free Exercise claims. If Establishment Clause claims become

moot when students challenge prayer policies and then

leave their school, Kennedy’s challenge to policies impacting prayer is moot when he leaves the state. The

Court must act as an impartial arbiter when it comes

to justiciability determinations. Because these decisions foreclose access to courts, they must not be manipulated to provide the availability of judicial relief to

only preferred litigants.

III. Students who are nonreligious or who are

religious minorities are harmed when

coaches instigate prayer or other religious

practices for their students.

Coaches who create a team prayer practice inevitably hurt nonreligious students and students who are

religious minorities. Recent incidents involving prayer

by coaches have led to students’ unwanted participation in prayer, students feeling isolated, students

fearing that they could not inform their parents about

team religious practices, students fearing retaliation,

and students ultimately leaving the team. The experiences of these students highlight the damage that is

caused when adults utilize public schools to impose

their religion on other people’s children. Schoolsponsored prayers have long marginalized nonreligious students and made them susceptible to attacks

from other students and members of the community.

A. The features of the coach-student relationship coerce students to participate

in coach-led prayers.

School athletic teams foster an atmosphere of both

communal activity among players and also allegiance

to the coach. These features, combined with the social

pressures exerted when an authority figure engages in

religious practices, coerce non-Christian students to

participate in Christian prayers.

Religious exercises in secondary schools involve

“subtle coercive pressures.” Lee v. Weisman, 505 U.S.

577, 588 (1992). This Court has observed, “[T]here are

heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools.” Id. at 592, citing

School Dist. of Abington Twp., Pa. v. Schempp, 374 U.S.

203, 307 (1963) (Goldberg, J., concurring); Edwards v.

Aguillard, 482 U.S. 578, 584 (1987); Board of Ed. of

Westside Community Schools (Dist. 66) v. Mergens, 496

U.S. 226, 261–262 (1990) (Kennedy, J., concurring). The

Court acknowledged, “[P]rayer exercises in public

schools carry a particular risk of indirect coercion.” Id.

at 592. The Court correctly surmised:

What to most believers may seem nothing

more than a reasonable request that the

nonbeliever respect their religious practices,

in a school context may appear to the nonbeliever or dissenter to be an attempt to employ

the machinery of the State to enforce a religious orthodoxy.

Id.

The coercive pressures on an athletic team are

even stronger than the typical school event. As members of athletic teams, students are expected to be

“team players” and to do as instructed by their coach.

Teams foster expectations that each member will do

the same pre-game and post-game activities. Sometimes those activities involve pre-game pep talks, postgame handshake lines, and post-game talks. Even

without explicit instruction to do so, members of sports

teams understand that they are supposed to engage in

certain pre-game and post-game activities with their

teammates and coaches.

The influence of coaches and teammates is significant. Coaches control important aspects of a players’

life, such as their practice regimen, their position on a

team, and their playing time. Coaches routinely discipline students. Coaches also have influence over aspects of the health of players, especially in contact

sports.7 Coaching performance is positively impacted

when players believe they are compatible with their

coach (including their goals, personality, and beliefs)

See Erin B. Edwards, College Athletics, Coercion, and the

Establishment Clause: The Case of Clemson Football, 106 Va. L.

Rev. 1533, 1556–1559 (2020).

and negatively impacted when players believe they are

incompatible with the coach.8 In practice, and by design, coaches have a significant influence over the behavior of student athletes. Students want to please the

most significant authority figure in their athletic career.

The dynamics of player and coach require that

coaches not have improper coercive influence over the

religious liberty of players. It must be for students to

decide what, if any, religious practices to engage in and

how to do so. Once coaches adopt on-field prayer, it is

inevitable that their players and the team will participate in the prayers.

When a coach instigates a prayer practice, a student who does not wish to participate is given a troubling dilemma. In violation of his conscience, that

student can participate and go against his personal beliefs. Or the student can make himself conspicuous and

isolate from the team by standing aside and abstaining

from the prayer. That “choice” makes his objection to

the prayer obvious. It puts the student in the crosshairs of fellow students on the basis of his religion. It

also drives a wedge between the objecting student and

Laura Kenow and Jean M. Williams, Coach-Athlete compatibility and athlete’s perception of coaching behaviors, Journal

of Sport Behaviors 22.2 (June 1999); See also Jean M. Williams,

Gerald J. Jerome, Laura J. Kenow, Tracie Rogers, Tessa A. Sartain & Greg Darland, Factor Structure of the Coaching Behavior

Questionnaire and Its Relationship to Athlete Variables, 17

Sport Psych. 16, 16 (2003), https://digitalcommons.linfield.edu/

hhpafac_pubs/3/.

the coach. Coaches make innumerable discretionary

decisions and dole out benefits to preferred players

(such as making the team, playing time, position status, plays called, and captain status). Students understand that they should stay in a coach’s good graces if

they want to be given the best opportunities.

Nonreligious students and students who are religious minorities have no good option when it comes to

team prayers. If they participate in the prayer, they act

contrary to their conscience. Or, they make themselves

transgressors and subject themselves to a magnifying

glass by their nonparticipation. They then suffer the

consequences of offending their coaches and receiving

peer pressure from other student athletes. Inevitably,

the practices of the coach become team practices and

those carry heavy consequences for some students.

That is especially the case when the coach intentionally

involved players in his religious practice for seven years.

Coach Kennedy’s religious activity on the 50-yard

line was a team activity. He intended to continue to

pray with students on the field, as was his prior practice. JA295, JA354. Kennedy’s post-game prayers

were anything but private. They were intended to be

team prayers. This is problematic for students who

would otherwise choose not to participate. Here, that

was demonstrated to be the case as some children

“participated in the team prayers only because they

did not wish to separate themselves from the team.”

JA356. Because of the pressure associated with

school-sponsored religious practices, students are coerced into team religious exercises.

B. Recent examples demonstrate the harm

of coach-imposed prayers.

Several recent examples demonstrate the impact

on students when coaches improperly influence the religious practices of their students. Several Amici are

routinely contacted by students and their parents

when the students have been subject to Christian

prayer by teachers and coaches.

●

In Michigan, a girl on the seventh grade basketball team was told to pray by her coach before middle school basketball games.9 The

coach would have the girls gather in a circle,

make them hold hands, and then say a prayer.

When the coach was finished with the prayer,

he would ask if any of the girls had a prayer

that they wanted to say. The girl, who was

nonreligious, was afraid to tell her father because she feared that she would no longer be

able to continue to play basketball.

●

In Ohio, football coaches told players to go to

the middle of the field to “take a knee” and

participate in a post-game prayer.10 The head

coach would regularly lead the team in the

Lord’s Prayer before every game either in the

Press Release, FFRF secures state/church victory in Mich.

school, Freedom From Religion Foundation (Feb. 11, 2021),

https://ffrf.org/news/news-releases/item/38473-ffrf-secures-statechurch-victory-in-mich-school.

Catherine Ross, Kirtland Football Parent Files First

Amendment Complaint After Post-Game Prayer, News 5 Cleveland (Mar. 3, 2022), https://www.news5cleveland.com/news/localnews/kirtland-football-parent-files-first-amendment-complaintafter-post-game-prayer.

locker room or the end zone. A nonreligious

player on the team felt uncomfortable with

the team prayer. The player’s family wished to

remain anonymous after Amici sent a complaint to the school for fear of pushback by

others at the school.

●

In Virginia, the coach of a boys’ soccer team

led students in pre-game prayers.11 Players

locked arms on the field in a circle with their

coaches during the prayers. A boy on the team

said he didn’t want to step out of the prayer

circle, which would make him feel isolated.

●

In Alabama, a high school volleyball coach required the girls on her team to gather in a

prayer circle before and after every game and

practice.12 Due in part to the prayers, the student ultimately left the team. The same school

also broadcast prayers by a pastor over the

public address system before and after football games.

Even at the collegiate level, students feel immense

pressure to participate in team religious activities at

the behest of their coaches. In 2015, an atheist football

player on a nationally ranked football team reported

that the head coach requested that he, the atheist

Press Release, FFRF persuasively tutors Va. school district, Freedom From Religion Foundation, (June 30, 2021),

https://ffrf.org/news/news-releases/item/39538-ffrf-persuasivelytutors-va-school-district.

Paul Gattis, Freedom From Religion targets Madison City

Schools, Advance Local (Aug. 21, 2015), https://www.al.com/news/

huntsville/2015/08/freedom_from_religion_targets.html.

player, lead a team prayer.13 The player felt he had no

choice but to comply and in fact led a prayer in the

locker room, in violation of his conscience. Id.

In 2005, three Muslim football players sued the

coach of the New Mexico State team after allegations

that he had mistreated them on the basis of their beliefs.14 The coach had players recite the Lord’s Prayer

after each practice and before each game. The players

said that the prayers made them feel like outcasts and

caused them to pray separately from the team.

Amici have heard these types of complaints about

coach prayers for decades. When coaches instigate

team religious activity, students who do not share the

coach’s personal religious beliefs suffer.

C. Other school-sponsored religious activities harm students.

Aside from school athletics, students who are

nonreligious or religious minorities suffer when school

staff implement religious practices for students. With

few exceptions, these students must either avoid religious practices or be treated as unwanted “outsiders”

by students who participate in the favored religious

practice. Some Amici are well acquainted with the

harms imposed on nonparticipating students due to

Pray to Play, Freedom From Religion Foundation at 3

(2015), https://ffrf.org/images/PraytoPlayReport.pdf.

Muslim players sue saying beliefs led to dismissal, ESPN

(Aug. 28, 2006), https://www.espn.com/college-football/news/story?

id=2564489.

receiving complaints from students, and also litigating

cases on behalf of these students and their families.

On Feb. 2, 2022, a West Virginia school hosted a

religious assembly and revival during the school day

in the school auditorium.15 The religious assembly was

not an option for some students—including a non-religious student and a Jewish student—because some

classrooms were mandated to attend. Id. at 5–6. An

evangelist led students in prayer and told the students

that they would face eternal torment if they did not

give their lives over to Jesus that day. Id. at 4.

In another West Virginia case, an elementary

school student was forced to leave the classroom and

sit alone during “Bible in the Schools” class. Deal v.

Mercer Cty. Bd. of Educ., 911 F.3d 183, 186–187 (4th

Cir. 2018). She was bullied by fellow students and was

told that she and her parents were going to hell. Id.

She ultimately was forced to attend school in a neighboring school system to avoid school-sponsored religious activities. Id.

In Mississippi, a student was coerced to attend a

mandatory religious assembly during the school day

put on by a local church.16 She had said that the

Mays v. Cabell Cnty. Bd. of Educ., No. 3:22-cv-00085, ECF

No. 1 (S.D.W.Va. Feb. 17, 2022)

M.B. ex rel. Bedi v. Rankin Cty. Sch. Dist., No. 3:13-CV241CWR-FKB, ECF No. 63 (S.D. Miss. Nov. 22, 2013).

assembly made her uncomfortable and that she and

other students were led in communal prayer.17

In Rhode Island, a high school student was reviled

in her community for challenging her high school’s

prayer banner. Jessica Ahlquist faced “bullying and

threats at school, on her way home from school and

online.” Ahlquist v. City of Cranston ex rel. Strom, 840

F.Supp. 507, 516 (D.R.I. 2012). She was “subject to frequent taunting and threats at school, as well as a virtual online hate campaign via Facebook.” Id. Jessica’s

state representative called her an “evil little thing” on

the radio and florists refused to deliver flowers ordered

for Jessica.18 Jessica eventually needed a police escort

to attend public meetings and class. Id.

These cases show the real world impact on students who do not wish to participate in school-sponsored religious practices. The students are isolated or

compelled to engage in religious practices with which

they disagree. Should students publicly disagree with

the practices, they are routinely vilified by adults and

other students.

M.B. ex rel. Bedi v. Rankin Cty. Sch. Dist., No. 3:13-CV241CWR-FKB, ECF No. 1 (S.D. Miss. Apr. 24, 2013).

Benjamin P. Edwards, When Fear Rules in Law’s Place:

Pseudonymous Litigation As A Response to Systematic Intimidation, 20 Va. J. Soc. Pol’y & L. 437, 458–460 (2013).

D. Nonreligious students and religious

minorities have long been harmed by

school-sponsored religious activity.

Since the 1940s, students who have publicly objected to religion in their schools have faced severe retribution. Those are not just the consequences of forced

participation in prayer or isolation due to non-participation, but also because of acts of violence and verbal

attacks lobbed against them by members of the community. This history is doomed to repeat itself if religious minorities and nonreligious students are forced

to publicly oppose religious practices undertaken by

their schools. Nearly every major lawsuit relating to

religion in schools has involved community members

attacking students and their families.19

This trend began in 1945 when Vashti McCollum

sued because her local public schools hosted religious

classes during the school day in school classrooms. See

Illinois ex rel. McCollum v. Bd. of Educ., 333 U.S. 203

(1948). Ms. McCollum was fired from her job, her house

was vandalized, she received more than one thousand

letters of hate, and her sons were assaulted. Edwards

at 456–457; Alley at 84–89.

The families who objected to prayer and Bible

readings in Sch. Dist. of Abington Twp., Pa. v. Schempp,

374 U.S. 203 (1963), were verbally and physically attacked. The Schempp children were bullied and one received a letter of “disrecommendation” from his school

See Edwards at 455–466; Robert S. Alley, Without a

Prayer: Religious Expression in Public Schools (1996).

principal that was sent to the university that had admitted the student.20 The home of Madalyn Murray

O’Hair was firebombed and one of her children was

beaten on the way home from school. Alley at 98.

In 1981, Joann Bell and Lucille McCord filed suit

to block prayer sessions and the distribution of Gideon

Bibles in their children’s schools. See Bell v. Little Axe

Indep. Sch. Dist. No. 70, 766 F.2d 1391 (10th Cir. 1985).

The plaintiffs’ children, who regularly attended Christian churches, were branded “devil worshipers.” Edwards at 457 n.124; Alley at 106. “An upside-down

cross was hung on thirteen-year-old Robert McCord’s

locker” and the Bells received threatening phone calls.

Alley at 106. “More than once a caller said he . . . was

going to break in the house, tie up the children, rape

their mother in front of them, and then ‘bring her to

Jesus.’ ” Id. at 107–108. The threats were not empty:

the Bells’ home was burned down. Id.

In 1994, Lisa Herdahl challenged prayer practices

in her children’s schools. See Herdahl v. Pontotoc Cty.

Sch. Dist., 887 F.Supp. 902 (N.D. Miss. 1995). As a

result, her children were called “atheists and devil

worshipers” by their classmates.21 Other parents

Linda K. Wertheimer, 50 Years After Abington v.

Schempp, a Dissenter Looks Back on School Prayer, The Atlantic

(Jun. 17, 2013), https://www.theatlantic.com/national/archive/2013/

06/50-years-after-i-abington-v-schempp-i-a-dissenter-looks-backon-school-prayer/276921/.

Stephanie Saul, A Lonely Battle in the Bible Belt; A Mother

Fights to Halt Prayers at Mississippi School, Newsday, Mar. 13,

1995, at A8.

threatened to beat their own children if they were

caught talking to, or playing with, the Herdahl children. Alley at 177. Herdahl gave up her job “because

of threats against her children.” Alley at 182. She received death threats and threats that her home would

be firebombed. Id. at 186.

The trend of attacking objectors to school prayer

practices continued into the 2000s. The plaintiff ’s son

in Chandler v. Siegelman, 230 F.3d 1313 (11th Cir.

2000) (challenging prayer at school-related events),

was “harassed at school almost daily.”22 And even

though she was not a plaintiff but merely a vocal opponent of the school-prayer policy challenged in Santa Fe

Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000), Debbie

Mason received threatening phone calls and was followed home by people trying to intimidate her.23 Her

family was unable to find work in their own town. Id.

Tyler Deveny, the eighteen-year-old plaintiff in

Deveney24 v. Board of Education, 231 F.Supp. 2d 483

(S.D.W.Va. 2002), endured a beating after successfully

challenging the invocation planned for his high-school

Jonathan Ringel, Alabama Claims U.S. Court Order Denies Students’ Right to Pray, Fulton County Daily Rep., Dec. 4,

1998, at 1.

Kenny Byrd, Baptist Family Opposed to Football Prayer

Feels Pressure, Baptist Standard (June 12, 2000), http://web.

archive.org/web/20151028003130/http://assets.baptiststandard.com/

archived/2000/6_12/pages/pressure.html.

Mr. Deveny’s last name was erroneously spelled “Deveney”

in the case caption.

graduation ceremony.25 A group of eight teens, evidently displeased with the outcome, attacked Deveny

in a public place, with one saying, “Oh, you hate God,”

before striking Deveny in the face. Id.

The Dobrich family—plaintiffs in Dobrich v. Walls,

380 F.Supp. 366 (D. Del. 2005)—suffered so much harassment, anti-Semitic taunts, and threats that they

were forced to move, after challenging school prayer

and other religious practices.26

A mob mentality takes over when a student’s family disagrees with group religious practices in public

schools. The people who have historically taken the

brunt of these attacks are nonreligious families, Jewish families, and Christians from a non-dominant sect

in the community.27

There can be little doubt that if a coach, like

Kennedy, establishes a repeated practice of prayer after games, students will be coerced into participating

or will face substantial harm for noncompliance with

the team’s practices. This history of harm to students

who are forced into conflict with school-sponsored religious practices, and the overall dynamics of the

See Charles Shumaker, Student Beaten for Prayer Suit, He

Says, Charleston Gazette & Daily Mail, June 19, 2002, at 6D.

David Bario, A Lesson in Tolerance, Am. Lawyer, July

2008, at 122.

Attorneys working for Amici themselves have been subject

to death threats and threats of violence in connection to representing families in cases involving opposition to school religious

practices.

coach-student relationship, require the Court to protect the religious liberty of students.

In short, it is improper and a gross violation of

freedom of conscience to coerce or even encourage

student athletes to pray in order to play. Our public

schools exist to educate, not to indoctrinate.

---------------------------------♦---------------------------------

CONCLUSION

Because this case is moot, the Court should dismiss the appeal for lack of jurisdiction. Alternatively,

the Court should affirm the ruling of the Court of Appeals.

Respectfully submitted,

PATRICK ELLIOTT

Counsel of Record

FREEDOM FROM RELIGION FOUNDATION

P.O. Box 750

Madison, WI 53701

(608) 256-8900

pelliott@ffrf.org

Counsel for Amici Curiae

April 1, 2022

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.