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

No. 21-418

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------JOSEPH A. KENNEDY,

Petitioner,

v.

BREMERTON SCHOOL DISTRICT,

Respondent.

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

United States Court Of Appeals

For The Ninth Circuit

---------------------------------♦--------------------------------BRIEF OF JO ANN MAGISTRO

AND ALAN BRODMAN AS

AMICI CURIAE SUPPORTING RESPONDENT

---------------------------------♦--------------------------------BRUCE P. MERENSTEIN

Counsel of Record

HEATHER JANIS GAW

DANIEL GROSS

SCHNADER HARRISON SEGAL

& LEWIS LLP

1600 Market Street

Suite 3600

Philadelphia, PA 19103

(215) 751-2249

bmerenstein@schnader.com

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

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TABLE OF CONTENTS

Page

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

ii

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

1

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

4

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

6

I.

II.

III.

Kennedy’s Public Prayers on Public School

Property and During Public School Events

Were Coercive and Divisive .......................

6

The East Brunswick Experience With

Coach-Led Prayer Starkly Demonstrates

That Such Prayer, Including Kennedy’s

Prayer at Bremerton, Is Coercive and Divisive ..........................................................

9

Bremerton School District’s Actions, Like

East Brunswick’s Two Decades Ago, Were

Necessary to Avoid Violating the Establishment Clause’s Prohibition on Coercing

Students Into Engaging in Religious Activities ........................................................ 13

A. The Establishment Clause Concern That

Government Authorities Not Coerce Religious Conformance Is at Its Greatest

in the Public School Context ............... 14

B. Coach-Led Prayer During Public

School Events, on Public School Property, Inevitably Leads to the Religious

Strife and Divisiveness That the Establishment Clause Is Intended to

Prevent ................................................ 20

CONCLUSION..................................................... 24

ii

TABLE OF AUTHORITIES

Page

CASES

Am. Legion v. Am. Humanist Ass’n, 139 S. Ct.

2067 (2019) ........................................................ 14, 20

Borden v. Sch. Dist. of E. Brunswick, 523 F.3d

153 (3d Cir. 2008) ......... 1, 2, 10, 11, 13, 15, 16, 19, 21

Borden v. Sch. Dist. of E. Brunswick, 555 U.S.

1212 (2009) ..............................................................13

Edwards v. Aguillard, 482 U.S. 578 (1987) .......... 15, 16

Lee v. Weisman, 505 U.S. 577 (1992) .... 4, 14, 16, 17, 19, 21

Lynch v. Donnelly, 465 U.S. 668 (1984) ......................17

Mitchell v. Helms, 530 U.S. 793 (2000) .......................20

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

(2000) ......................................5, 14, 16, 17, 18, 19, 21

Sch. Dist. of Abington Twp. v. Schempp, 374 U.S.

203 (1963) ................................................................20

Town of Greece v. Galloway, 572 U.S. 565 (2014).......14

Van Orden v. Perry, 545 U.S. 677 (2005) .............. 16, 20

Wallace v. Jaffree, 472 U.S. 38 (1985) ................... 15, 17

Widmar v. Vincent, 454 U.S. 263 (1981) .....................14

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. I ........................................... passim

U.S. Const. amend. XIV ................................................5

iii

TABLE OF AUTHORITIES – Continued

Page

OTHER AUTHORITIES

Michael W. McConnell, Coercion: The Lost Element of Establishment, 27 WM. & MARY L.

REV. 933 (1986)........................................................15

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INTEREST OF THE AMICI CURIAE

Amici curiae are a former superintendent of the

East Brunswick School District in New Jersey and a

longtime teacher at East Brunswick High School.1 Almost twenty years ago, East Brunswick High School

was the site of a constitutional dispute very much like

the one before the Court. That dispute culminated in a

unanimous Third Circuit opinion, holding that a football coach’s participation in prayer with his team members, which followed almost a quarter century of

similar prayer by the coach at team events, violated

the Establishment Clause. Borden v. Sch. Dist. of E.

Brunswick, 523 F.3d 153, 179 (3d Cir. 2008). As Judge

McKee explained in a concurring opinion, the football

team’s “players were put in the untenable position of

either compromising any opposing beliefs they may

have had or going on record . . . as opposing their coach

and perhaps a majority of their teammates.” Id. at 182

(McKee, J., concurring). When the district—led by one

of the amici here—enforced its policy prohibiting employees from participating in religious activities with

students, the students whose complaints were presumed to have precipitated application of the policy

were “taunted, bullied,” and “harassed and threatened

on a student internet ‘blog.’ ” Id. at 184. The “venomous

1

Amici affirm that no counsel for a party authored this brief

in whole or in part and no person other than amici or their counsel

have made any monetary contributions intended to fund the preparation or submission of this brief. Amici affirm that all parties

have filed blanket letters of consent to the filing of amicus briefs

with the Clerk’s Office.

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comments” on the blog included racist, anti-Semitic,

and violent content. Id. at 184 & n.31.

Amici were directly involved in the circumstances

at the heart of the dispute in Borden and are intimately familiar with the community strife that followed enforcement of the policy governing the coach’s

prayer activities at team events. Amici share an interest in fostering an inclusive learning environment for

public school students, and submit this brief because

they are acutely aware of the religious strife and divisiveness that arise when a public school employee

endorses and encourages participation in religious

practices at public school events.

Based on their own experiences and this Court’s

Establishment Clause precedents, amici strongly believe that public school districts like Bremerton School

District must have the authority to put reasonable limits on their employees’ public religious expressions

when they are acting in their official capacity—such as

coaching a public school football team—so that students do not feel pressured into engaging in those religious practices. Amici also are committed to protecting

students’ constitutional rights, under not only the Establishment Clause, but the Free Speech and Free Exercise Clauses, as both the East Brunswick policy at

issue in Borden and Bremerton’s policy here do. Borden, 523 F.3d at 160; Pet. App. 5-7.

Dr. Jo Ann Magistro, Ed.D., is the former Superintendent of Schools for the East Brunswick School

District and was a named defendant in the Borden

3

litigation. In her role as Superintendent, Dr. Magistro

received complaints from a number of parents that

their children, including football players and cheerleaders, were uncomfortable attending team events at

which the East Brunswick football coach led attendees

in prayer. The complaints led to application of a school

district policy that prohibited the coach (or any school

staff ) from participating in prayers with students during school events, including the football team’s pregame meals and in the locker room before games.

Alan Brodman, a former attorney, is a retired

Civics, World History, and Constitution teacher at East

Brunswick High School. He joined the school district

in 1992 and began teaching at East Brunswick High

School in 1999. At the high school, he taught the Institute for Political and Legal Education class and supervised the Model U.N. Program. Mr. Brodman was first

made aware of the East Brunswick football coach’s

prayers at team activities when Mr. Brodman was

teaching at a local junior high school in the 1990s. At

that time, a Jewish football player on the East Brunswick team approached Mr. Brodman to express his

discomfort with the pre-game prayers. This student

ultimately chose not to complain to the school district,

as he feared being ostracized and losing the opportunity to play on the team. A number of years later,

when he was teaching at the high school, several of

Mr. Brodman’s students from his Constitution class

approached him and asked about the legality of the

coach’s prayers. Mr. Brodman discussed the issue

with his students and advised them that while

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student-initiated prayers were permitted in school,

such prayers could not obstruct or disturb other students, and school faculty could not initiate those prayers.

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

SUMMARY OF ARGUMENT

Amici are well aware, through their personal experiences, of the ways in which coach-led prayer can

coerce students into religious practices that some students might strongly object to or, at a minimum, wish

to refrain from in a public setting. Amici also are well

aware of how coach-led prayer can lead to school, team,

and community strife and divisiveness, undermining

the precise values that public schools are meant to foster, including camaraderie, respect, and equity.

The Bremerton School District, like the East

Brunswick School District before it, adopted a reasonable, constitutional policy to address these concerns.

That policy fully recognized and honored employees’

rights to freely exercise religion, so long as that exercise did not coerce students into joining them or lead

reasonable observers to believe that the school district

endorsed that exercise of religion. The Bremerton policy, again like the East Brunswick policy, fully complied with this Court’s precedents. More particularly,

in allowing personal religious exercise during school

events while taking steps to avoid government coercion or endorsement, the policy follows this Court’s

school-prayer precedents such as Lee v. Weisman, 505

5

U.S. 577 (1992), and Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000).

As respondent’s brief explains at length, the record here is clear that, rather than comply with the

school district’s carefully constructed policy for accommodating both the religious expression and freedom of

conscience protected by the First and Fourteenth

Amendments, Joseph Kennedy insisted on leading

high-profile prayers in the middle of a public school facility, expressly aimed (in the coach’s own words) at

“helping” the students on the football team. This Court

should adhere to its well-established precedents that

appropriately accommodate the rights and principles

embodied in the Religion and Free Speech Clauses of

the First Amendment. Those precedents lend no support to Kennedy’s insistence on the right of a public

school employee to lead students and other community

members in prayers in the middle of a public school

football field at the conclusion of a public school activity. Rather, they require no more than the reasonable

accommodations Bremerton offered to Kennedy, which

would have preserved his free exercise and free speech

rights without causing the school district to violate the

Establishment Clause and infringe the rights of the

students it is charged with educating. Most significantly, the policy that Kennedy refused to follow ensures that the constitutional rights of all of the

school district’s employees and students are protected,

thereby avoiding the coercion, strife, and divisiveness

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that the Religion Clauses were intended to prevent,

rather than foster.

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

ARGUMENT

I.

Kennedy’s Public Prayers on Public School

Property and During Public School Events

Were Coercive and Divisive.

Joseph Kennedy, then a Bremerton assistant football coach, began a practice of praying on the football

field after watching a Christian sports film in 2008.

Pet. App. 133-134; JA148. Over time, Kennedy’s prayers became verbal, audible, and public; he led his students in pre- and post-game locker room prayers and

delivered religiously inspired speeches after the

games. Pet. App. 9, 134. These prayers took place while

Kennedy was fulfilling his public school duties as

coach, on school property, wearing school-logoed clothing, and supervising the football team. Pet. App. 139,

150-152, 239.

The prayers themselves took the place of postgame speeches to the players, which the school district

had instructed Kennedy should be focused on “unity,

teamwork, responsibility, safety, endeavor and the

like.” Pet. App. 15-16. Kennedy testified that, over time,

he attracted more and more players to gather around

him in prayer until it included the majority of the

team. Pet. App. 157. The district court found this testimony to be evidence of the players’ vulnerability to

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social pressure and the coerciveness of the coach-led

prayers. Pet. App. 157-158.

In 2015, after an opposing coach informed the

school district that Kennedy had invited his team to

join Bremerton’s team in prayer, the school district informed Kennedy that these practices violated its policy

to “neither encourage nor discourage students from engaging in religious activity.” Pet. App. 134-135. The district made clear that it did not prohibit “student

religious activity,” and that Kennedy and other district

employees were “free to engage in religious activity, including prayer,” but that the district had to ensure that

students did not feel pressured to engage in religious

activities contrary to their beliefs. Pet. App. 135-136.

Some students and parents thanked the school district

for instructing Kennedy to cease his post-game prayers

and they reported that the students had “participated

in the prayers to avoid being separated from the rest

of the team” or to prevent potential adverse action by

Kennedy related to playing time. Pet. App. 136.

After a short interval during which he appeared to

comply with the school district’s instructions regarding

on-field prayer, Kennedy began a media campaign in

which he sought community support for his on-field

prayers while his lawyers insisted that the district allow him to pray with students. Pet. App. 136-138. As a

result, the school district received many hateful and

threatening emails, letters, and phone calls about its

decision to prevent coach-led prayer. Pet. App. 138. At

one point, the head football coach was personally confronted by a Kennedy supporter and, concerned for his

8

physical safety, he eventually resigned from his 11year position as head coach. Pet. App. 11.

Notably, for the brief period when Kennedy refrained from praying with students, and when Kennedy was placed on administrative leave, the players

did not pray on their own. Pet. App. 224, 239; JA356.

Rather, players prayed on the field only after games

when Kennedy was there to lead them. Pet. App. 224,

239.

Once Kennedy began widely publicizing his conflict with the school district, a number of players made

the school district aware that they had been uncomfortable with Kennedy’s practice of leading prayers but

felt that they had no choice but to join him. Pet. App.

136. For example, the high school principal was informed by a player’s father that his son was an atheist,

but participated in the coach’s prayers because he was

afraid that if he did not, his playing time would be reduced. JA233-234. An assistant football coach testified

that a parent complained to the team and on Facebook

because he did not want his son to have to participate

in the prayers. JA186. Bremerton’s superintendent “received, either directly or through other District employees, input from some local parents and students

who were critical of Mr. Kennedy’s actions, and whose

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

the team.” JA356. And the athletic director “was approached by several students and parents who expressed thanks for the District’s actions” in addressing

Kennedy’s prayers, and described how Kennedy’s prior

9

prayer practices “had put them or their children in

awkward situations where they did not feel comfortable declining to join with the other players in Mr. Kennedy’s prayers.” JA359; see also Pet. App. 224-225

(quoting school district’s statement regarding the coercive effect of the coach-led prayers).

II.

The East Brunswick Experience With

Coach-Led Prayer Starkly Demonstrates

That Such Prayer, Including Kennedy’s

Prayer at Bremerton, Is Coercive and Divisive.

In East Brunswick, New Jersey, beginning in the

mid-1980s, the head football coach at the high school

organized, participated in, and eventually led the football team in prayer before games and at mandatory

pre-game dinners.2 His practice changed over the

years, as parents complained to the administration. At

first, a local minister said the prayers; later, a student

read a prayer chosen by the minister; and eventually,

the coach read the prayer himself. By the early 2000s,

after meeting resistance from the administration (including amicus Dr. Magistro) on several occasions, the

coach changed the practice in the locker room and at

the pre-game meal to assigning students to lead the

team in prayers. These students were not given a

choice. At times, the prayers also included cheerleaders

2

This description of the circumstances of the coach-led

prayer in East Brunswick is taken primarily from the Third Circuit’s decision, Borden, 523 F.3d at 159-63, as well as from amici’s

personal recollections.

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and other students or members of the community who

attended the pre-game meal.

The chosen prayer leaders, as well as the many

other team members and pre-game meal attendees,

were placed in the untenable position of complying

with this practice and joining the prayers or voicing

complaints to school officials. Any complaints to school

officials (or visible abstention from the prayer activities) would inevitably be made known to the coach and

possibly other team members, likely leading to ostracization or retaliation. Both the players and their parents were therefore hesitant to object to the practice,

either to the coach himself or to school officials.

Some students’ parents ultimately did complain to

the district administration. As Dr. Magistro recalls,

while the identity of the objecting students was kept

secret, the coach and many students publicly expressed their views as to the source of the complaints,

primarily targeting religious minorities within the

school community. The presumed sources were then

subjected to racist, anti-Semitic, misogynistic, and violent slurs. Jewish cheerleaders were harassed and

threatened. Fellow students sent anonymous antiSemitic emails, wrote virulent chat room posts accusing these cheerleaders of lodging complaints, and made

threats against the cheerleaders and any students who

defended them. Judge McKee, in his concurring opinion in Borden, listed only a small sample of these derogatory on-line comments from the appellate record:

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•

“First they crucify Jesus, then they got Borden

fired .... Jews gotta learn to stop ruining everything cool.”

•

“The jew is wrong. Borden is right. Let us

pray.”

•

“d**n jews ... then you wonder why hitler did

what he did back in the day.”

•

“MAYBE if [Borden] held a gun to the jjjjewwws

head and was like b*tch get on ur knees

and pray to jesus!! then that might be breaking the law...ehhh maybe not! ... just suck it

up if u don’t fu*king like whats going on in

america then GO THE FU*K BACK TO

YOUR COUNTRY AND STAY THERE AND

PRAY ....”

•

“Heil Hitla!!! sieg heill.”

Borden, 523 F.3d at 184 (McKee, J., concurring) (alterations in original) (citations omitted).3 Dr. Magistro

3

Just a few additional comments from the voluminous collection in the appellate record, Borden v. Sch. Dist. of E. Brunswick, No. 06-3890, JA456-495 (3d Cir. Dec. 18, 2006), include:

• “[Two names of students omitted]...you guys thought u

dint have friends to begin with...now ur really f**ked...I

will make sure that i make the rest of the year a living

hell for both of u.”

• “alright enuff w/ the jews postin nuts...cuz i guarenteee

they f**kin write there nuts in Works and f**kin spell

check so they can sound smart..theyr probl..sittin in

front of their comp. looking through a thesuras so they

can sound really smart...blow me...I will never work for

a jew..and no matter how much money u make...ull always be a f**kin jew.”

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recalls that the cheerleaders faced harassment and

bullying from their fellow students in person as well,

at pep rallies and football games, in the form of taunts,

spitting, and items being thrown at them.

Amicus Alan Brodman also recalls speculation

within the school community that certain cheerleaders

had complained about the coach. Football team members became fixated on these girls “getting their coach

fired” and the cheerleaders were targeted based on

these suspicions. Mr. Brodman also recalls how the

cheerleaders, particularly the Jewish ones, were harassed in person and received emails and other online

messages with anti-Semitic content. These students

suffered severe stress and feared escalating attacks,

solely because some of their classmates suspected that

they had expressed discomfort with being forced by the

football coach to participate in group prayer.

These issues spilled over from the student body

into the greater community, particularly after the football coach filed suit seeking to force the school district

•

“what bothers me is the cheerleaders werent even supposed to be there..it was optional for them. why the f**k

would u complain about something if your not even supposed to be there in the first place. if u have a problem

with something when ur not even wanted there—well

then get the fuuck out. d**n jews..then you wonder why

hitler did what he did back in the day..maybe thats

harsh but come on..stop being f**kiin tools.”

• “why would i praise people that killed my savior. They

turned on his ass when he was just tryin to save us all.

Have fun chillin in hell with moses f*g**t.”

Borden, JA457, 464, 471, 473 (all quotations verbatim).

13

to permit him to pray with his team members and

other attendees of the pre-game meal. Mr. Brodman recalls that the community became divided into two

groups, one supporting the coach and the other concerned that his actions violated students’ rights, particularly the rights of minority-faith students. Mr.

Brodman believes the split occurred largely along religious lines. Dr. Magistro also saw the split in the community between the Christian and Jewish population.

She even contacted local churches and synagogues in

an attempt to calm the town’s population and reduce

the strife and tension that the prayer dispute had

wrought. Although the tension ebbed as time passed,4

the conflict has re-surfaced each time the suit has been

reported. And the students who were the targets of the

harassment and “venomous comments,” Borden, 523

F.3d at 184 n.31 (McKee, J., concurring), solely because

they were suspected of objecting to the coach’s prayer

activities, express anxiety and trauma about the situation to this day.

III. Bremerton School District’s Actions, Like

East Brunswick’s Two Decades Ago, Were

Necessary to Avoid Violating the Establishment Clause’s Prohibition on Coercing Students Into Engaging in Religious Activities.

One of the Establishment Clause’s core purposes, frequently invoked by this Court, is avoiding

4

It has been about thirteen years since the litigation concluded with this Court’s denial of the coach’s certiorari petition.

Borden v. Sch. Dist. of E. Brunswick, 555 U.S. 1212 (2009).

14

“religiously based divisiveness.” Am. Legion v. Am.

Humanist Ass’n, 139 S. Ct. 2067, 2085 (2019) (internal

quotation omitted). A related purpose, particularly in

the context of public school prayer, is ensuring that

government actors do not coerce citizens, particularly

minors, into engaging in religious practices inconsistent with their personal beliefs or consciences. See,

e.g., Town of Greece v. Galloway, 572 U.S. 565, 590

(2014) (opinion of Kennedy, J.) (noting that, in the

school setting, the Court has held that a religious invocation may be coercive to objecting students “where

school authorities maintained close supervision over

the conduct of the students and the substance of the

ceremony” (citing Lee v. Weisman, 505 U.S. 577, 592-94

(1992), and Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S.

290, 312 (2000))). In the circumstances here, just as in

the very similar circumstances in East Brunswick two

decades ago, these important goals justify the school

district’s reasonable policy prohibiting coercive coachled prayer, thus ensuring that the district does not violate students’ First Amendment rights.

A. The Establishment Clause Concern That

Government Authorities Not Coerce Religious Conformance Is at Its Greatest in

the Public School Context.

School districts have a compelling interest in

avoiding violation of the Establishment Clause. See,

e.g., Widmar v. Vincent, 454 U.S. 263, 271 (1981). Although the Court’s Establishment Clause jurisprudence outside the school setting has been heavily

15

contested and multi-faceted over the past few decades,

the Court has consistently held that the Clause prohibits prayer in public schools where such prayer is

officially mandated or endorsed by government employees. In doing so, the Court has emphasized the coercive effects of school prayer on children. See, e.g.,

Wallace v. Jaffree, 472 U.S. 38, 72 (1985) (O’Connor, J.,

concurring in judgment); cf. Michael W. McConnell,

Coercion: The Lost Element of Establishment, 27 WM.

& MARY L. REV. 933, 940 (1986) (“Recognition of the

centrality of coercion—or, more precisely, its opposite,

religious choice—to establishment clause analysis

would lead to a proscription of all government action

that has the purpose and effect of coercing or altering

religious belief or action.”).

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

The Court has acknowledged that the State “exerts

great authority and coercive power” over students in

elementary and secondary schools because students

emulate teachers as role models and are sensitive to

peer pressure. Id. This same principle is applicable to

school sports, which are an extension of a public

school’s educational mission, overseen by its employees, and can even count for school credit. In both Borden and this case, the football coaches led students in

prayer while cloaked with the authority of a public

16

school, while on public school property, and during

public school events. See Pet. App. 139, 150-152, 239;

Borden, 523 F.3d at 159.

Because students are often impressionable and do

not have control over whether they attend public

school, the Court has for many decades been particularly vigilant in enforcing the Establishment Clause in

the public school setting. See, e.g., Edwards, 482 U.S. at

583-85; see also Van Orden v. Perry, 545 U.S. 677, 691

(2005) (plurality). The Court’s concern for improper coercive activities in the public school setting is not limited to overt state pressure, but encompasses “subtle

coercive pressure in the elementary and secondary

public schools.” Lee, 505 U.S. at 592; see also id. at 594

(“the government may no more use social pressure to

enforce orthodoxy than it may use more direct means”);

Santa Fe, 530 U.S. at 313-17.

Again, in both this case and Borden, those subtle

coercive pressures plainly were present; in both cases,

only after the school district began to address the issue

did objecting students (or their parents) make their

substantial concerns known to the administration. See,

e.g., Pet. App. 136; JA233-234, 356, 359. These students

can hardly be faulted for buckling to this coercive pressure to join the prayers; when certain students in East

Brunswick were simply suspected of objecting to the

coach’s prayers during team activities, they were vehemently attacked with scurrilous on-line screeds, many

of them focusing on their religious affiliations and

their minority religious status. See, e.g., Borden, 523

F.3d at 184 & n.31 (McKee, J., concurring).

17

Protection of the rights of such religious minorities is a paramount goal of the Establishment Clause.

For that reason, “[s]chool sponsorship of a religious

message is impermissible because it sends the ancillary message to members of the audience who are nonadherents ‘that they are outsiders, not full members of

the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.’ ” Santa Fe, 530 U.S. at

309-10 (quoting Lynch v. Donnelly, 465 U.S. 668, 688

(1984) (O’Connor, J., concurring)); see also Wallace, 472

U.S. at 81 (O’Connor, J., concurring in judgment) (distinguishing presidential proclamations from public

school prayer, in that the former “are received in a

noncoercive setting and are primarily directed at

adults, who presumably are not readily susceptible to

unwilling religious indoctrination,” whereas, “when

government-sponsored religious exercises are directed

at impressionable children who are required to attend

school, . . . government endorsement is much more

likely to result in coerced religious beliefs”).

“It is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce

anyone to support or participate in religion or its exercise, or otherwise act in a way which establishes a state

religion or religious faith, or tends to do so.” Lee, 505

U.S. at 587 (internal quotation omitted). For the

Bremerton School District when it enforced its policy

prohibiting coach-led prayer at school events, just as

for this Court in Lee, an overriding concern was that

students objecting to public religious expression were

18

subject to, at a minimum, “subtle and indirect” pressure that “can be as real as any overt compulsion.” Id.

at 593. In both cases, without intervention, objectors

faced a state-created or tolerated dilemma to either

participate in religious activities during public school

events or protest and suffer the consequences (or else

abstain from the school activities).

This case, of course, is not the Court’s first consideration of prayers in the context of a public school

sporting event. See Santa Fe, 530 U.S. at 294-301. In

the course of striking down a school district’s policy

permitting student-led prayer at football games in

Santa Fe, the Court noted that the prayer was “delivered to a large audience assembled as part of a regularly scheduled, school-sponsored function conducted

on school property,” id. at 307, a feature that Kennedy’s

prayers shared. The Court also rejected the school district’s contention that, “because attendance at an extracurricular event, unlike a graduation ceremony, is

voluntary,” the prayers in Santa Fe were not coercive.

Id. at 310. As the Court pointed out, and as is undoubtedly true in Bremerton as well, for some students,

“such as cheerleaders, members of the band, and, of

course, the team members themselves, . . . commitments mandate their attendance.” Id. at 311; see also

id. at 312 (“The constitutional command will not permit the District to exact religious conformity from a

student as the price of joining her classmates at a varsity football game.” (internal quotation omitted)).

Ultimately, the Court in Santa Fe explained how

the Religion Clauses work together to ensure that all

19

members of a public school community may enjoy religious liberty: “nothing in the Constitution as interpreted by this Court prohibits any public school

student from voluntarily praying at any time before,

during, or after the schoolday. But the religious liberty

protected by the Constitution is abridged when the

State affirmatively sponsors the particular religious

practice of prayer.” Id. at 313. This protection of liberty

is precisely what the Bremerton School District sought

to ensure in expressly informing Kennedy (and other

members of the school district community) that voluntary, personal prayer by students or employees was

permitted, but that prayer led by a prominent leader

of the school community at “a regularly scheduled,

school-sponsored function conducted on school property,” id. at 307, crossed the line into impermissible territory.

In this case, as in Borden and Santa Fe, football

players and other students faced “subtle and indirect”

pressure “as real as any overt compulsion,” Lee, 505

U.S. at 593, to join religious practices during a public

school activity, on public school property, that had the

imprimatur of a governmental employee with substantial influence and authority over those students. Such

coercion renders that religious expression violative of

the Establishment Clause. The Bremerton School District reasonably acted to ensure that it did not allow

such a violation here.

20

B. Coach-Led Prayer During Public School

Events, on Public School Property, Inevitably Leads to the Religious Strife and

Divisiveness That the Establishment

Clause Is Intended to Prevent.

The “basic purpose” of the Religion Clauses “is to

promote and assure the fullest possible scope of religious liberty and tolerance for all and to nurture the

conditions which secure the best hope of attainment of

that end.” Sch. Dist. of Abington Twp. v. Schempp, 374

U.S. 203, 305 (1963) (Goldberg, J., concurring). As Justice Goldberg explained, religious liberty and tolerance

go hand in hand. The liberty promoted by both the Free

Exercise and Establishment Clauses ensures that intolerance and religious divisiveness are minimized

and, in particular, are not furthered by government action. See, e.g., id. at 307 (emphasizing the “very divisive

influences and inhibitions of freedom which both religion clauses of the First Amendment preclude”); see

also Am. Legion v. Am. Humanist Ass’n, 139 S. Ct.

2067, 2085 (2019) (same) (citing Van Orden, 545 U.S.

at 704 (Breyer, J., concurring)).

As Justice Souter explained in Mitchell v. Helms,

“government establishment of religion is inextricably

linked with conflict,” and even if such conflict is no

longer considered “a practical criterion for applying

the Establishment Clause case by case,” it indelibly

remains “a motivating concern behind the Establishment Clause.” 530 U.S. 793, 872 & n.2 (2000) (Souter,

J., dissenting). Indeed, in this precise context—

prayer at public school football games—the Court has

21

emphasized that “divisiveness along religious lines in

a public school setting” is “at odds with the Establishment Clause.” Santa Fe, 530 U.S. at 311. Similarly,

in Lee, the Court noted that while divisiveness “can

attend any state decision respecting religions, and neither its existence nor its potential necessarily invalidates the State’s attempts to accommodate religion

in all cases,” this animating principle of the Establishment Clause is of particular concern in the public

school setting, where “subtle coercive pressures exist.”

505 U.S. at 587-88.

Both this case and the Borden case highlight this

concern that has been at the heart of the Establishment Clause since its adoption. Kennedy’s actions, like

those of the East Brunswick football coach, divided religious students from non-religious; Christian students

from non-Christian; and those comfortable with public

displays of religion from those who believed in private

worship. And these divisions were hardly innocuous.

Students who objected to the coach-led prayers during

public school events, or even those simply suspected of

objecting, were subjected to scurrilous attacks.

In East Brunswick, presumed objectors were attacked with “disgusting comments” rife with antiSemitism, invocations of Nazism, and violent imagery.

Borden, 523 F.3d at 184 (McKee, J., concurring). In addition to the “venomous” on-line comments, id. at 184

n.31, many of which identified their targets by name

or description (“Jewish cheerleaders”), students suspected of objecting to the prayers were subjected to inperson verbal and physical harassment and bullying

22

by the coach’s supporters. The East Brunswick community as well became deeply divided between the coach’s

supporters and those concerned about the rights of

objecting students, particularly those not sharing the

coach’s religious beliefs. Similarly here, Kennedy’s

mid-field, post-game prayers led to deep divisions

within the public school and broader communities.

See, e.g., Pet. App. 137-138; see also Pet. App. 2, 5, 11;

JA351.

Religious strife and divisiveness are not the inevitable results of religious expression by public employees. But when that religious expression takes the form

of public, sectarian prayer expressly intended to influence—even with only the best intentions—public

school students of multiple religious faiths, beliefs,

and practices, such strife and divisiveness are practically unavoidable, as the Religion Clauses’ framers

well knew. High-profile, audible prayer by a public employee on public school property at a public school

event squarely implicates this core concern of the Establishment Clause. A policy prohibiting such prayer

is not only reasonable, but necessary, to avoid religious

strife and divisiveness and to protect the constitutional rights of all members of the public school community.

***

Coach-led prayer inevitably places students in an

unavoidable bind that implicates the core values

that the Religion Clauses were meant to protect. Students, especially those holding minority or unfavored

23

religious viewpoints, either must join these religious

practices that violate their own beliefs (or, at a minimum, contravene their own views of public religious

expression), or publicly distance themselves from their

peers and authority figures, inviting ostracism, wrath,

and even venomous attacks. While this coercion creates an untenable situation that is sufficient in itself

to warrant school district intervention, the religious

strife and divisiveness that inevitably follow provide

all the more reason for reasonable actions such as

Bremerton’s, which leave ample space for personal,

noncoercive religious expression in the public school

setting. Public schools, and the sports teams that are

an integral part of them, seek to develop qualities such

as community, tolerance, and independence in their

students. Bremerton School District’s actions challenged by Joseph Kennedy do just that, and ensure the

district’s compliance with all provisions of the First

Amendment.

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

24

CONCLUSION

For the foregoing reasons and those in the brief of

respondent, the decision of the Ninth Circuit should be

affirmed.

Respectfully submitted,

BRUCE P. MERENSTEIN

Counsel of Record

HEATHER JANIS GAW

DANIEL GROSS

SCHNADER HARRISON SEGAL

& LEWIS LLP

1600 Market Street

Suite 3600

Philadelphia, PA 19103

(215) 751-2249

bmerenstein@schnader.com

Counsel for Amici Curiae