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 AMICI CURIAE

WASHINGTON STATE CHARTER SCHOOLS

ASSOCIATION AND CALIFORNIA

CHARTER SCHOOLS ASSOCIATION

IN SUPPORT OF RESPONDENT

---------------------------------♦--------------------------------CHRISTOPHER A. BROOK

PATTERSON HARKAVY LLP

100 Europa Drive, Suite 420

Chapel Hill, NC 27517

Tel: 919.942.5200

cbrook@pathlaw.com

Counsel for Amici Curiae

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ......................................

i

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

iii

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

1

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

2

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

5

I.

II.

THE PRACTICAL FIRST AMENDMENT

JURISPRUDENCE RELIED UPON BY

THE LOWER COURT IN DECIDING

THIS CASE APPROPRIATELY RECOGNIZES THE WEIGHTY INTERESTS

THAT CHARTER PUBLIC SCHOOL COMMUNITIES BALANCE ..............................

5

A. Charter schools are public schools subject to state and federal constitutional

obligations ...........................................

5

B. Current First Amendment jurisprudence

carefully and practically balances the

interests of students, families, and employees in public school communities ....

8

RULING FOR THE PETITIONER WOULD

THREATEN CHARTER SCHOOLS’ ABILITY TO EDUCATE THEIR STUDENTS

AS WELL AS EFFECTIVELY MANAGE

THEIR EMPLOYEES, CLASSROOMS, FACILITIES, AND GROUNDS ...................... 14

A. Charter schools must be able to establish welcoming, non-coercive environments for all students ......................... 14

ii

TABLE OF CONTENTS – Continued

Page

B. Charter schools must be able to direct

their on-duty employees ...................... 19

C. Charter schools must be able to control their classrooms, facilities, and

grounds ................................................ 23

CONCLUSION..................................................... 27

iii

TABLE OF AUTHORITIES

Page

CASES

Am. Legion v. Am. Humanist Ass’n,

139 S.Ct. 2067 (2019) ..............................................23

Bd. of Educ. of Westside Cmty. Sch. v.

Mergens ex rel. Mergens,

496 U.S. 226 (1990) .................................................11

Capitol Square Review & Advisory Bd. v. Pinette,

515 U.S. 753 (1995) ....................................... 3, 11, 25

Church of the Lukumi Babalu Aye, Inc. v.

City of Hialeah,

508 U.S. 520 (1993) ............................................... 2, 9

Edwards v. Cal. Univ. of Penn.,

156 F.3d 488 (3d Cir. 1998) .....................................20

Edwards v. Aguillard,

482 U.S. 578 (1987) ................................. 3, 10, 15, 16

El Centro de la Raza v. State,

428 P.3d 1143 (Wash. 2018) ......................................6

Epperson v. Arkansas,

393 U.S. 97 (1968) ...................................................24

Garcetti v. Ceballos,

547 U.S. 410 (2006) ..................................... 2, 8, 9, 19

Good News Club v. Milford Central Sch.,

533 U.S. 98 (2001) ............................................... 9, 24

Lane v. Franks,

573 U.S. 228 (2014) ...................................................8

Lassonde v. Pleasanton Unified Sch. Dist.,

320 F.3d 979 (9th Cir. 2003) ....................................24

iv

TABLE OF AUTHORITIES – Continued

Page

Lee v. Weisman,

505 U.S. 577 (1992) ................................. 9, 15, 16, 17

Mayer v. Monroe Cnty Cmty. Sch. Corp.,

474 F.3d 477 (7th Cir. 2007) ....................................20

McCreary Cnty. v. Am. Civil Liberties of Ky.,

545 U.S. 844 (2005) ........................................... 24, 25

Our Peculiar Family v. Inspire Charter School,

2020 WL 3440562 (C.D. Cal. June 23, 2020) .... 10, 11

Perry Educ. Ass’n v. Perry Local Educators’ Ass’n,

460 U.S. 37 (1983) ...................................................25

Regents of Univ. of Michigan v. Ewing,

474 U.S. 214 (1985) .................................................20

Riley’s American Heritage Farms v. Elsasser,

2022 WL 804108 (9th Cir. Mar. 17, 2022) ...............10

Rosenberger v. Rector & Visitors of Univ. of Va.,

515 U.S. 819 (1995) .................................................20

Sable Cmmc’ns of Cal., Inc. v. FCC,

492 U.S. 115 (1989) .................................................26

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

530 U.S. 290 (2000) ............................................. 9, 21

Wallace v. Jaffree,

472 U.S. 38 (1985) .....................................................7

Wilson v. State Bd. of Educ.,

75 Cal.App.4th 1125 (Cal. Ct. App. 1999) ............ 6, 7

v

TABLE OF AUTHORITIES – Continued

Page

CONSTITUTIONAL PROVISIONS

Cal. Const. art. IX, § 8 ..................................................7

Wash. Const. art. IX, § 4 ...............................................7

STATUTES

Cal. Educ. Code § 220 (2021) ......................................11

Cal. Educ. Code § 47601(b) (2021) ...............................6

Cal. Educ. Code § 47601(c) (2021) .......................... 6, 22

Cal. Educ. Code § 47604.1 (2021) .................................7

Cal. Educ. Code § 47605(c) (2021) ................................5

Cal. Educ. Code § 47605(i) (2021) ..............................17

Cal. Educ. Code § 47605.1(f ) ......................................22

Cal. Educ. Code § 47607(f )(4) (2021) .........................13

Cal. Educ. Code § 48907 (2021) ..................................11

N.C. Gen. Stat. § 115C-218.15(a) (2021) ......................6

Wash. Rev. Code § 28A.642.010 (2022) ......................11

Wash. Rev. Code § 28A.710.010(1) (2022) ....................7

Wash. Rev. Code § 28A.710.020(1) (2022) ....................6

Wash. Rev. Code § 28A.710.030(1)(f ) (2022) ................7

Wash. Rev. Code § 28A.710.040(3) (2022) .............. 6, 22

Wash. Rev. Code § 28A.710.040(4) (2022) ....................7

Wash. Rev. Code § 28A.710.040(i) (2022) .....................7

vi

TABLE OF AUTHORITIES – Continued

Page

Wash. Rev. Code § 28A.710.130(2)(o) (2022) ..............17

Wash. Rev. Code § 28A.710.200(1)(d) (2022) ..............13

OTHER AUTHORITIES

Charter School Report 2020-2021, Washington

State Board of Education, 2021, https://

www.sbe.wa.gov/sites/default/files/public/

documents/CharterSchools/2021%20Charter

%20School%20Report_SBE_Final.pdf ...................18

Charters at 30: Reimagining Public Education,

CCSA, 2022, https://chartersat30.org............... 18, 22

Examining Islamophobia in California Schools,

Council on American-Islamic RelationsCalifornia, 2021, https://static.ca.cair.com/reports/

islamophobia/downloads/cair-ca-bullying-report2021.pdf ...................................................................17

Peter Alexander, How Much Do You Know About

Olympia Oysters?, GREAT PENINSULA CONSERVANCY

(Oct. 6, 2021), https://greatpeninsula.org/howmuch-do-you-know-about-olympia-oysters/ ...........22

Pew Research Center, 2014 Religious Landscape

Study: Adults in California, https://www.pew

forum.org/religious-landscape-study/state/

california/.................................................................18

Pew Research Center, 2014 Religious Landscape

Study: Adults in Washington, https://www.

pewforum.org/religious-landscape-study/state/

washington/ .............................................................18

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INTEREST OF AMICI CURIAE1

The Washington State Charter Schools Association (“WSCSA”) and California Charter Schools Association (“CCSA”) are statewide, non-profit membership

and advocacy organizations. Their missions are to

meet the needs of students, parents, educators, and

communities for great public school options by supporting and advocating for high quality non-profit

charter public schools and by sharing their successes

with other public schools in their states.

WSCSA and CCSA advocate on behalf of charter

schools that prepare their students for success in college, career, community, and life – especially those

schools that provide our most systemically underserved and vulnerable students with the high-quality

public education they deserve. Charter public schools

are committed to innovative educational solutions that

can serve students from all backgrounds. But that is

only possible in efficient and effective school environments that respect all students and families.

Charter schools are part of the fabric of the Washington and California public school systems. Sixteen

public charter schools, serving approximately 4,500

students, are currently operating in Washington.

Nearly 700,000 children – approximately 11.5% of all

Pursuant to Supreme Court Rule 37.6, counsel for amici affirms that no counsel for a party authored this brief in whole or

in part, and that no person other than amici or their counsel contributed money intended to fund preparing or submitting this

brief. Counsel for both parties have consented to the filing of this

brief.

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public school students in the state – attend the more

than 1,300 charter schools operating in California.

WSCSA and CCSA submit this brief as amici curiae in support of respondent. They have an interest in

this matter that aligns with that of traditional public

schools such as those in the Bremerton School District

(“BSD”) but is independently important. A ruling for

petitioner would have serious and negative day-to-day

consequences for all public schools. But those consequences would be particularly problematic for charter

public schools and their students.

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

SUMMARY OF THE ARGUMENT

The constitutional issues raised by this case have

long been settled and reflect a careful balancing of

weighty interests. Employers can regulate employees’

actions and speech made “pursuant to their official duties[.]” Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). It

could hardly be otherwise for any business or school to

function. But this discretion is limited, as it should be;

employers cannot create “excessively broad job descriptions” in order to squelch employee speech. Ibid.

at 424.

Evincing even greater solicitude for individual

rights, state restrictions on truly private religious expression outside the employer-employee context “must

be narrowly tailored to advance . . . a compelling governmental interest[.]” Church of the Lukumi Babalu

Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993).

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But, again, the right to free expression is not absolute.

Compliance with the Establishment Clause, a concern

at its apex in the public school setting, see, e.g., Edwards v. Aguillard, 482 U.S. 578, 583-84 (1987), provides a valid basis for state regulation, Capitol Square

Review & Advisory Bd. v. Pinette, 515 U.S. 753, 761-62

(1995).

The Ninth Circuit Court of Appeals even-handedly

applied these principles in ruling for the respondent,

BSD. By his own admission, petitioner prayed while

fulfilling his official duties. JA276. While he contends

his prayers were private and quiet, the facts belie this

at every turn. Petitioner inviting opposing teams to

join him in prayer on the 50-yard line immediately following games (JA41, 229, 266-68), members of the public “stampeding” the field to join as well (Pet.App. 9),

his players feeling coerced to join (Pet.App. 4, 157;

JA359) – if this is private and quiet, then what is public and loud? The lower court thus had no choice but to

hold that petitioner’s prayers were government speech

subject to regulation by BSD. Pet.App. 16-17. Accepting for the sake of argument that petitioner’s prayers

were private does not change the outcome. The Ninth

Circuit correctly held, in the alternative, that the

school’s interest in preventing an Establishment

Clause violation constituted a compelling interest that

they appropriately pursued by seeking to work with

the petitioner to identify an acceptable accommodation. Pet.App. 23-25.

While petitioner attacks these principles, amici

not only rely upon them but also know that they are

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essential to the educational mission of charter public

schools.

They are the lines on the field that show what actions are in bounds and what actions are out of bounds.

See infra Section I.B. If petitioner were successful in

erasing these lines, see ibid., schools could no longer

balance and seek to accommodate the interests of their

student bodies, teachers, coaches, and parents. Instead,

schools would become subject to individual vetoes no

matter how well-founded their efforts to protect their

students from religious coercion, see infra Section II.A.,

to keep their classrooms aimed at educational success,

see infra Section II.B., their grounds serving their intended purposes, and their students safe on those

grounds, see infra Section II.C.

Though this imperils the mission of all public

schools, these concerns are all the more pronounced for

charter public schools. See infra Sections I.B.-II.B.

Serving systemically underserved students and experimentation with different educational programs are

very much at the heart of the charter school movement.

See infra Sections I.A., II.A.-II.B. These programs include schools working with families in their homes and

students engaging in experiential learning in their

communities, both of which require thoughtful oversight. See infra Section II.B. Greater freedom to operate free from the constraints of the traditional public

school bureaucracy means greater liberty to try these

new ways of reaching and serving students. See infra

Section II.B. But that does not mean charters wish to

give up oversight of their programs, or the ability to

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welcome students of all backgrounds, beliefs, and identities. A ruling for petitioner would imperil charters’

ability to effectively supervise their staffs and deliver

on their promise of unique educational opportunities

to parents and students. See infra Section II.

Educating children is hard work. So too is honoring and respecting all of the weighty interests touched

upon by public education. Mistakes can and do happen.

But the current, pragmatic First Amendment jurisprudence empowers schools to strike the right balance of

safeguarding core individual liberties while also ensuring schools can realize their reason for being. The

Ninth Circuit’s faithful application of that case law to

the facts of this case means this Court must affirm.

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

ARGUMENT

I.

THE PRACTICAL FIRST AMENDMENT

JURISPRUDENCE RELIED UPON BY THE

LOWER COURT IN DECIDING THIS CASE

APPROPRIATELY RECOGNIZES THE

WEIGHTY INTERESTS THAT CHARTER

PUBLIC SCHOOL COMMUNITIES BALANCE.

A. Charter schools are public schools subject to state and federal constitutional

obligations.

At the foundation of amici’s interest in this case

is a simple fact: charter schools are public schools.

Cal. Educ. Code § 47605(c) (2021) (“[C]harter schools

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are and should become an integral part of the California educational system[.]”); Wash. Rev. Code

§ 28A.710.020(1) (2022) (“A charter school . . . [i]s a

public school[.]”); see also Wilson v. State Bd. of

Educ., 75 Cal.App.4th 1125, 1139 (Cal. Ct. App. 1999)

(“[C]harter schools are public schools because . . . charter schools are part of the public school system[.]”) (emphasis in original); El Centro de la Raza v. State, 428

P.3d 1143, 1146 (Wash. 2018) (Wiggins, J., dissenting)

(“Charter schools, of course, are public schools.”).2 This

is not merely a legal reality. It reflects charter schools’

purpose and practice of serving all students and bringing new ideas into the broader public school system.

See, e.g., Cal. Educ. Code § 47601(b) (2021) (noting legislative intent in creating charter schools to “[i]ncrease

learning opportunities for all pupils” and “[e]ncourage

use of different and innovative teaching methods”);

Wash. Rev. Code § 28A.710.020(1)(a) (2022) (requiring charter schools be “[o]pen to all children free of

charge”); Wash. Rev. Code § 28A.710.040(3) (2022) (granting charter schools flexibility “to innovate in . . . educational programs to improve student outcomes and

academic achievement”).

With public status and support comes associated

responsibilities, which charter schools accept and,

Because this is a brief on behalf of amici WSCSA and CCSA,

it focuses on the Washington and California charter school legal

regimes and day-to-day experiences. That being said, the proposition that charter schools are public schools is a generally unremarkable proposition. See, e.g., N.C. Gen. Stat. § 115C-218.15(a)

(2021) (“A charter school . . . shall be a public school within the

local school administrative unit in which it is located.”).

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indeed, view as essential to realizing their mission.

For instance, Washington and California charter

schools are subject to many of the same transparency

laws applicable to other local public agencies, including those related to open meetings and public records.

Cal. Educ. Code § 47604.1 (2021); Wash. Rev. Code

§ 28A.710.040(i) (2022). Charters in Washington and

California also must abide by state restrictions on religious control or influence over public education.

Cal. Const. art. IX, § 8 (“No public money shall ever

be appropriated for the support of any sectarian or

denominational school[.]”); Wash. Const. art. IX, § 4

(“All schools maintained or supported wholly or in

part by public funds shall forever be free from sectarian control or influence.”); see also Wash. Rev.

Code §§ 28A.710.010(1), .030(1)(f), .040(4) (2022) (noting, respectively, charter schools cannot be managed by

or accept donations from sectarian or religious organizations or otherwise engage in any sectarian practices

of operations); Wilson, 75 Cal.App.4th at 1143 (“Charter petitioners must affirm that their schools will be

nonsectarian in its programs and operations.”). And, of

course, as public schools, charter schools must abide by

the federal constitution. See Wallace v. Jaffree, 472 U.S.

38, 49-50 (1985).

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B. Current First Amendment jurisprudence

carefully and practically balances the

interests of students, families, and employees in public school communities.

First Amendment school jurisprudence is built

around a pragmatic appreciation of the challenges

schools face as educators and employers and as classroom, facility, and grounds managers. The Ninth Circuit rightly turned back petitioner’s appeal based on

an even-handed application of this jurisprudence. Reversing this ruling would not only erase well-established lines from the field but also, and even more

importantly, imperil the ability of charters to respect

the interests of all students and families in their school

communities and perhaps even continue to operate at

all.

The basis upon which the Ninth Circuit decided

this case is familiar and, hence, foundational to the operation of charter schools. As the starting point for its

employee speech analysis, the court below noted that

“when public employees make statements pursuant to

their official duties, the employers are not speaking as

citizens for First Amendment purposes, and the Constitution does not insulate their communications from

employer discipline.” Garcetti, 547 U.S. at 421. “The

critical question . . . is whether the speech at issue is

itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.” Lane

v. Franks, 573 U.S. 228, 240 (2014). While employers

may not create “excessively broad job descriptions” to

convert employees’ private speech into government

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speech, Garcetti, 547 U.S. at 424, an employee may

not demand his or her employer ignore the practical

reality or consequences of his or her speech, ibid. at

424-25.

The Ninth Circuit’s free exercise and establishment analyses likewise reflect a careful and familiar

balancing of interests. On the one hand, restrictions on

private religious conduct occurring outside of the employer-employee context “must be narrowly tailored to

advance . . . a compelling governmental interest,” the

highest standard of constitutional scrutiny. Lukumi,

508 U.S. at 531. On the other hand, “[a] state interest

in avoiding an Establishment Clause violation may be

characterized as compelling, and therefore may justify

content-based discrimination.” Good News Club v.

Milford Central Sch., 533 U.S. 98, 112 (2001) (cleaned

up); see also Lee v. Weisman, 505 U.S. 577, 587 (1992)

(“The principle that government may accommodate

the free exercise of religion does not supersede the fundamental limitations imposed by the Establishment

Clause.”). The key in assessing whether there has been

an Establishment Clause violation is whether the reasonable observer would believe the religious activity in

question has been “stamped” with the government’s

“seal of approval.” Santa Fe Indep. Sch. Dist. v. Doe, 530

U.S. 290, 308 (2000).

Context is pivotal in this analysis. As a general

matter, “an Establishment Clause analysis ‘not only

can, but must, include an examination of the circumstances surrounding’ the action alleged to have violated the Clause.” Pet.App. 18 (quoting Santa Fe, 530

10

U.S. at 315 (emphasis added)). One context meriting

“particular[ ] vigilan[ce]” is “elementary and secondary

schools.” Edwards, 482 U.S. at 583-84. This is with good

reason as, in that setting, “[t]he State exerts great authority and coercive power through mandatory attendance requirements, and because of the students’

emulation of teachers as role models and the children’s

susceptibility to peer pressure.” Ibid. at 584.

That the application of these well-established

principles turned back petitioner’s arguments evinces

no hostility to private speech or religious exercise; governing case law appropriately balances the weighty interests of all stakeholders who are in and who interact

with schools. Two recent examples from amici’s communities bear this out. In Riley’s American Heritage

Farms v. Elsasser, 2022 WL 804108, *2-4 (9th Cir. Mar.

17, 2022), a school district cancelled a contract for student field trips to a nearby farm on account of what it

considered offensive political commentary from one of

the farm’s principal shareholders. Correctly ruling

that this violated free speech rights, the Ninth Circuit

noted “we give less weight to the government’s concerns about the disruptive aspect of speech outside the

workplace context[,]” and that there was no actual disruption to school operations caused by the speech. Ibid.

at *11. The court further noted that the shareholder

“was not speaking for, or on behalf of the School District.” Ibid. at *13. Similarly, a charter school declined

to contract with an art business on account of religious

messages on the business’s website in Our Peculiar

Family v. Inspire Charter School, 2020 WL 3440562, at

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*1 (C.D. Cal. June 23, 2020). The trial court rightly held

that this violated the right to free exercise in a way

that “vague citation of religious establishment concerns” could not justify. Ibid. at *3. In sum, the principles applied in the current controversy serve to protect

expression when it is truly private and does not raise

real concerns of governmental religious endorsement

or coercion.3

While petitioner chides schools for ostensibly failing “to get the message” sent by this case law (Br. 37),

it is, in fact, petitioner who launches a full-on assault

on it. Often the attack is explicit. Compare Br. 24 (“The

government cannot discriminate against private religious speech, even in the name of avoiding Establishment Clause concerns.”) (emphasis in original) with

Pinette, 515 U.S. at 761-62 (“There is no doubt that

compliance with the Establishment Clause is a state

interest sufficiently compelling to justify contentbased restrictions on speech.”). On other occasions the

attack turns on sleight of hand. See Br. 38 (citing Bd.

of Educ. of Westside Cmty. Sch. v. Mergens ex rel. Mergens, 496 U.S. 226, 250-51 (1990) (plurality op.) for the

proposition “that schools do not endorse everything

These principles are reinforced by Washington and California statutory law. See, e.g., Cal. Educ. Code § 220 (2021) (prohibiting discrimination against any person on the basis of religion in

any public school program); Cal. Educ. Code § 48907 (2021) (guaranteeing students’ free speech rights, requiring schools to have a

free speech policy, and protecting school employees who act to protect pupils’ free speech rights); Wash. Rev. Code § 28A.642.010

(2022) (prohibiting discrimination on the basis of religion in

Washington public schools).

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they fail to censor” without noting this was about

student, not school employee, speech). Most fundamentally, petitioner seeks to evade the applicable constitutional scrutiny by re-imagining his public, student

interactive prayers at the 50-yard line as “quiet” and

“personal.” Br. 44; but see Pet.App. 41 (Smith, J.) (“Kennedy was never disciplined by BHS [Bremerton High

School] for offering silent, private prayers.”) (emphasis

in original). Though differing in their degree of directness, the goal of each attack is the same: to erase the

lines on which public schools have relied.

What replaces them is unclear. Where petitioner

argues that the current rules forbid truly quiet and

personal religious displays with only the most modest

implications on official duties, such as a teacher prayer

over her lunch (Br. 32) (they do not) (Pet.App. 37-38),

the real danger is in what flows from his arguments.

“[I]f a history teacher stopped the lesson thirty seconds

before the bell rang every day, dropped to one knee or

stood at the front of the class, and delivered a prayer,

with students joining and other teachers invited to join

also, . . . would [that] be personal, private speech”?

BIO.25. Undoubtedly so based on petitioner’s arguments, making plain, at the very least, the sea change

in law and practice he demands.

That the contours of schools’ responsibilities

would become unclear if petitioner were to prevail is

no mere academic concern. As the current controversy demonstrates, a disagreement as to schools’

obligations can result in years-long litigation. Accepting petitioner’s arguments, and its vast unsettling

13

of well-established jurisprudence, would mean even

more such litigation as the line between what schools

and their staffs control blurs. This poses serious challenges for all public schools, but particularly for charter public schools. Charters, unlike traditional public

schools, face closure if they do not live up to their legal

obligations. See, e.g., Cal. Educ. Code § 47607(f )(4)

(2021) (“A charter may be revoked . . . if the chartering

authority finds . . . that the charter school . . . [v]iolated

any law.”); Wash. Rev. Code § 28A.710.200(1)(d) (2022)

(“An authorizer may revoke a charter . . . if the authorizer determines that the charter school . . . [s]ubstantially violated any material provision of law[.]”). It

cannot be that schools have to walk a tightrope that

moves beneath them, and, if their good-faith efforts

at balancing their constitutional obligations to students and their duties to employees are even slightly

off, then they face a mountain of liability or even closure.

Charter schools in particular need clear, manageable lines on the field. Petitioner’s re-conceptualizing

of these lines will result in confusion that imperils the

very existence of the schools that amici represent.

More than that, charters require and the First Amendment demands rules that balance and respect the interests of all stakeholders, including those of schools’

diverse student bodies. Though public schools do not

always strike the balance perfectly, the status quo

works to vindicate the weighty interests at stake. As

discussed below, ruling for petitioner would constitute

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a hammer blow against schools’ ability to successfully

operate and educate students.

II.

RULING FOR THE PETITIONER WOULD

THREATEN CHARTER SCHOOLS’ ABILITY TO EDUCATE THEIR STUDENTS AS

WELL AS EFFECTIVELY MANAGE THEIR

EMPLOYEES, CLASSROOMS, FACILITIES,

AND GROUNDS.

Lost in petitioner’s creative re-casting of the facts

of this case is what, at bottom, schools actually do: employ teachers, coaches, and staff and manage myriad

classrooms, facilities, and grounds to create an environment conducive to student learning. Though more

prosaic than conjuring hypothetical disputes that do

not actually exist, running a school is a serious and

challenging enterprise. Schools serve students from

every background and they need discretion to manage

their day-to-day operations, realities plain from the actual facts of this case and especially true for charter

public schools.

A. Charter schools must be able to establish welcoming, non-coercive environments for all students.

Almost entirely absent from petitioner’s arguments are those whom schools serve first and foremost:

their students. Public schools, including charter public

schools, educate students from every walk of life and

faith imaginable. The best schools and educators do not

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shelter their students from the challenges of life. But,

at the same time, they take pains to meet students

where they are and not impose additional burdens

upon them in the classroom or playing on the field. Petitioner’s conduct and arguments in this case transgress the Establishment Clause and, as a corollary, the

notion that public education is for and should include

everyone.

“Divisiveness, of course, 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.” Lee, 505

U.S. at 588-89. “The potential for divisiveness is of particular relevance[,]” however, in public schools. Ibid. at

589. Indeed, this Court “has been particularly vigilant

in monitoring compliance with the Establishment

Clause in elementary and secondary schools.” Edwards, 482 U.S. at 583-84. This makes sense for two

interconnected reasons. First, “[t]he State exerts great

authority and coercive power through mandatory attendance requirements[.]” Ibid. at 584. Second, “because of students’ emulation of teachers as role models

and the children’s susceptibility to peer pressure.” Ibid.

This susceptibility raises “heightened concerns with

protecting [student] freedom of conscience from subtle

coercive pressure[.]” Lee, 505 U.S. at 592.

The current controversy bears out these concerns.

It is beyond dispute that the current controversy unfortunately, but predictably, devolved into animosity.

This included petitioner’s supporters cursing BHS’s

head football coach, Nathan Gillam, “in a vile manner.”

16

JA346. The situation grew so fraught that Coach

Gillam, a police officer when not coaching, asked one of

his assistants, also a police officer, “whether we could

be shot from the crowd.” JA347. This pressure-cooker

environment “drove a wedge in [the] coaching staff[,]”

which Coach Gillam attributed to petitioner repeatedly “put[ting] himself before the team.” JA250. As a

result of these concerns and challenges, Coach Gillam

resigned from the position he had held for eleven years.

Pet.App. 11.

Students, of course, also were impacted by this divisiveness. When the petitioner’s supporters stampeded the field to support his prayer practice, school

cheerleaders and band members were knocked over.

Pet.App. 9, 138. Students felt the effects in more “subtle” ways as well. Lee, 505 U.S. at 592. For instance, a

parent complained to the school administration “that

his son ‘felt compelled to participate’ in Kennedy’s religious activity, even though he was an atheist, because

‘he felt he wouldn’t get to play as much if he didn’t participate.’ ” Pet.App. 4. Other parents indicated that

their children “participated in the team prayers only

because they did not wish to separate themselves from

the team.” JA356. Several students and parents

thanked the school for stepping in because students

“did not feel comfortable declining to join with the

other players in [petitioner’s] prayers.” JA359.

This is unsurprising given students’ susceptibility to outside pressure. Edwards, 482 U.S. at 584. That

the pressure to conform here came from a role model

controlling the student’s playing time places all students, especially those with heterodox religious views,

17

“in an untenable position.” Lee, 505 U.S. at 590; see

also Examining Islamophobia in California Schools,

Council on American-Islamic Relations-California, 2021,

at 6, https://static.ca.cair.com/reports/islamophobia/

downloads/cair-ca-bullying-report-2021.pdf (noting

“55.73% of all respondents reported feeling unsafe,

unwelcome, or uncomfortable at school because of

their Muslim identity”). As petitioner acknowledged,

“coaches can have an outsized influence and ‘for some

kids, the coach might even be the most important person they encounter in their overall life.’ ” Pet.App. 34.

Tellingly, when Kennedy was on leave, and during the

time he temporarily ceased performing on-field prayers, BHS players did not initiate their own post-game

prayer. JA181.

The concerns over pressure on students to conform

regarding matters of conscience are higher still in

charter public schools. Charter schools particularly

aim to serve systemically underserved and vulnerable

students. See, e.g., Cal. Educ. Code § 47605(i) (2021)

(“In reviewing petitions for the establishment of charter schools with the school district, the governing

board of the school district shall give preference to petitions that demonstrate the capacity to provide comprehensive learning experiences to pupils identified

. . . as academically low achieving[.]”); Wash. Rev.

Code § 28A.710.130(2)(o) (2022) (requiring inclusion

of “targeted plans for recruiting at-risk students” in

application for charter school seeking authorization to

operate).

18

The numbers bear that out. Where 49% of students in traditional public schools in Washington

state are students of color, that percentage is 62% in

Washington’s charter schools. Charter School Report

2020-2021, Washington State Board of Education,

2021, at 17, https://www.sbe.wa.gov/sites/default/files/

public/documents/CharterSchools/2021%20Charter%20

School%20Report_SBE_Final.pdf. And more than twothirds of California public charter students are students of color. Charters at 30: Reimagining Public Education, CCSA, 2022, at 7, https://chartersat30.org

(follow “Get Report” hyperlink) [hereinafter “Charters

at 30”]. Unsurprisingly then, charters educate students of every imaginable faith tradition as well as

nonbelievers. See Pew Research Center, 2014 Religious

Landscape Study: Adults in California, https://www.

pewforum.org/religious-landscape-study/state/california/

(noting Californians identify as follows: 32% Protestant,

28% Catholic, 1% Mormon, 1% Orthodox Christian, 1%

Jehovah’s Witness, 2% Jewish, 1% Muslim, 2% Buddhist, 2% Hindu, 27% “unaffiliated,” 18% “nothing in

particular”); Pew Research Center, 2014 Religious

Landscape Study: Adults in Washington, https://www.

pewforum.org/religious-landscape-study/state/washington/

(noting Washingtonians identify as follows: 40%

Protestant, 17% Catholic, 3% Mormon, 2% Jehovah’s

Witness, 1% Jewish, 1% Buddhist, 1% Hindu, 32% “unaffiliated,” 22% “nothing in particular”).

Schools educate students. Successfully serving

diverse student bodies, and specifically systemically

underserved students, requires fully integrating and

19

supporting them in the school community. Public

schools, including charter public schools, thus must

have the ability to ensure their administrators, teachers, coaches, and staff put their diverse student bodies

first. Coercing or otherwise excluding students because

of who they are or what they believe, intentionally or

not, is incompatible not only with the law but also the

educational mission of public schools.

B. Charter schools must be able to direct

their on-duty employees.

To maintain control of their operations and functions, public school employers in Washington and California must have some “managerial discretion” over

their employees. Garcetti, 547 U.S. at 423. This means,

first and foremost, the ability to ensure employees fulfill their duties. It also means public school employers

can regulate their employees’ speech made pursuant to

these duties, an especially important form of discretion

for public schools and, in particular, public charters.

At the most basic, general level, employers “need

a significant degree of control over their employees’ . . .

actions; without it, there would be little chance for the

efficient provision of public services.” Ibid. at 418. For

example, as Justice Alito observed, petitioner’s arguments should fail if “he was supposed to have been actively supervising the players after they had left the

field but instead left them unsupervised while he

prayed on his own[.]” Pet.App. 209 (Alito, J., respecting

denial of certiorari); see also Pet.App. 11 (noting Coach

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Gillam “recommended that Kennedy not be rehired because . . . he ‘failed to supervise student-athletes after

games due to his interactions with [the] media and

[the] community’ ” and that “Kennedy did not apply for

a 2016 coaching position”).

In the context of employee instructional speech at

public schools, managerial discretion means the ability

to “regulate the content of what is or is not expressed”

such that the educational institution may “convey its

own message” to students. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 833 (1995); see also

Edwards v. Cal. Univ. of Penn., 156 F.3d 488 (3d Cir.

1998) (“The Supreme Court has explained that ‘[a]cademic freedom thrives not only on the independent and

uninhibited exchange of ideas among teachers and

students, but also, and somewhat inconsistently on

autonomous decisionmaking by the academy itself.’ ”)

(quoting Regents of Univ. of Michigan v. Ewing, 474

U.S. 214, 226 n.12 (1985)). As Judge Easterbrook has

noted, a public “school system does not ‘regulate’

teacher’s speech as much as it hires that speech.”

Mayer v. Monroe Cnty. Cmty. Sch. Corp., 474 F.3d 477,

479 (7th Cir. 2007) (emphasis in original).

This case amply demonstrates the challenges public schools face as employers generally and specifically

when it comes to employee speech. Ensuring the longtenured geometry teacher down the hall from the principal’s office is effectively guiding all of her students

through the essential curricular points is straightforward compared to supervising contractual employees

who are often working far afield. Indeed, BSD did not

21

learn of petitioner’s prayer practice, which he acknowledges he led while on-duty (JA276), for seven years and

then only when an opposing coach told BHS’s principal

that his team had been invited to join in the prayers.4

Pet.App. 5, 41 (Smith, J.).

BSD acknowledged the challenges in running a

huge enterprise like a public school likely contributed

to the current controversy. Specifically, the school

noted that year-to-year contractual employees on its

football coaching staff received limited training pertaining to the school’s policy that employees should

neither encourage nor discourage student prayer.

Pet.App. 5. When this dispute arose, BSD responded

thoughtfully, setting about to “find a positive solution

that meets the needs of [its] staff member(s), and . . .

protect[s] all students[’] rights.” JA88. But petitioner

rebuffed these efforts (Pet.App. 7-10), insisting instead

on continuing his practice of praying with students

(JA295).

Charter public schools share the school-asemployer concerns raised by this case as well as facing

their own unique challenges in this space. Charters, of

course, also require managerial discretion. Like BSD,

they exercise that authority with an eye toward balancing all interests whenever possible. Consistent

with their emphasis on educational innovation, charters also offer services rare in traditional public

Tellingly, this opposing coach, the quintessential objective

observer, see Santa Fe, 530 U.S. at 308, attributed petitioner’s

prayers to the school district. JA229.

4

22

schools. For instance, many charter schools have employees meet with all students and their parent(s) or

guardian(s) in their homes to discuss and assist with

matters of school performance. See, e.g., Charters at 30,

at 18. These visits “establish a home-school connection

and ensure appropriate supports and interventions are

provided[,]” ibid.; they are also potentially unduly intrusive or even coercive if not thoughtfully managed.

In addition, charter students participate in any number of experiential learning activities that take place

off-campus. See, e.g., Peter Alexander, How Much Do

You Know About Olympia Oysters?, GREAT PENINSULA

CONSERVANCY (Oct. 6, 2021), https://greatpeninsula.

org/how-much-do-you-know-about-olympia-oysters/

(chronicling students from Catalyst Public School “collect[ing] data on habitat conditions” in Washington’s

Klingel-Bryan-Beard Wildlife Refuge and Belfair State

Park); see also Cal. Educ. Code § 47605.1(f ) (authorizing “in the field” instruction in partnership with,

among others, “[f ]ederally affiliated Youth Build programs” and “California Conservation Corps or local

conversation corps certified by the California Conservative Corps”). Charter schools must be able to

guide, supervise, and, yes, correct, their employees and

those with whom they contract to ensure these potentially delicate off-campus activities are constructive.

There is always room for innovation in and beyond

the classroom; this is the North Star for public charter

schools. See, e.g., Cal. Educ. Code § 47601(c) (2021);

Wash. Rev. Code § 28A.710.040(3) (2022). Pursuing a

creative educational approach, however, does not mean

23

discarding the foundation upon which every school

builds. Schools and their employees must pull in the

same direction to help students realize the best possible outcomes. Petitioner stands these realities on their

head, arguing essentially that elementary and secondary schools are about serving the adults they employ.

One can appreciate that schools cannot fulfill their

mission without teachers and staff and owe them

boundless respect, while also appreciating that they do

not get to unilaterally dictate how students are treated

and schools operate.

C. Charter schools must be able to control

their classrooms, facilities, and grounds.

Finally, public schools also have an interest in the

physical spaces in which they operate. As with their

employees, if schools lose effective control over when

and how their classrooms, facilities, and grounds are

used, then it would be much more difficult for them to

carry out their educational mission. The current controversy again illustrates these perils well.

Petitioner’s argument is based on the (dubious)

proposition that his prayer practice constituted private

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

2067, 2092 (2019) (Kavanaugh, J., concurring) (identifying “religious expression in public schools” as a category of Establishment Clause case distinct from

“regulation of private religious speech in public forums”). This allows him to suggest that, at most, BSD

needed only to disclaim his prayers. Br. 9; cf. Pet.App.

24

55 (Smith, J.) (“A disclaimer would have no effect on

the proven coercive effect Kennedy’s prayers had on

his players.”); Pet.App. 61 (Smith, J.) (“[State] [d]isclaimers [of religious activity] are insufficient in ‘coercive’ context[s].”) (quoting Lassonde v. Pleasanton

Unified Sch. Dist., 320 F.3d 979, 984-85 (9th Cir. 2003)).

Even accepting this facile suggestion as a panacea

for establishment concerns, however, does nothing to

address the whole new First Amendment issue this approach would raise. “[A] public disclaimer in the wake

of Coach Kennedy’s media campaign would have only

called more attention to his very public worship.”

Pet.App. 75 (Christen, J.). Thus, to realize the First

Amendment’s mandate of “neutrality between religion

and religion, and between religion and nonreligion[,]”

McCreary Cnty. v. Am. Civil Liberties of Ky., 545 U.S.

844, 860 (2005) (quoting Epperson v. Arkansas, 393

U.S. 97, 104 (1968)), BSD “would have had to permit

access [to its football field] by other religious faiths[.]”

Pet.App. 75 (Christen, J.).

In so doing, BSD would necessarily acquiesce to

petitioner’s prayers making its field into at least a limited public forum.5 Public schools are (rightly) limited

in their regulation of expression when operating such

forums. A school, for example, “must not discriminate

against speech on the basis of viewpoint” within a limited public forum. Good News Club, 533 U.S. at 106. In

Petitioner himself directly opened the forum by allowing an

elected official onto the field to pray with him and his team.

JA314-15.

5

25

short, accommodating petitioner’s “private” prayers on

the 50-yard line would also mean needing to accommodate all religious and irreligious speech and expression

on its field. See McCreary, 545 U.S. at 860. During the

course of this controversy, the school superintendent

informed the school board that this was “exactly the

door we worried about opening[.]” JA101.

The consequences of opening this door are no mere

hypotheticals. In fact, “[a] Satanist religious group contacted BSD in advance of [a] game to notify them that

‘it intended to conduct ceremonies on the field after

football games if others were allowed to.’” Pet.App. 8.

BSD was only able to keep them off the field (Pet.App.

8 (“The Satanist group was present at the game, but

‘they did not enter the stands or go on to the field after

learning that the field would be secured.’”)), because it

continued to treat the field as a nonpublic forum, see

Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460

U.S. 37, 48 (1983) (“Because the school mail system is

not a public forum, the School District had no constitutional obligation per se to let any organization use the

school mail boxes.”) (cleaned up); see also Pinette, 515

U.S. at 761 (“It is undeniable, of course, that speech

which is constitutionally protected against state suppression is not thereby accorded a guaranteed forum

on all property owned by the State.”).

But BSD’s broader efforts to secure the field on

this occasion were unsuccessful. Despite making “arrangements with the Bremerton Police Department for

security,” posting signs as well as making robocalls to

BSD parents, “and otherwise put[ting] the word out to

26

the public that there would be no access to the field[,]”

it was overrun. Pet.App. 8-9. Members of the public as

well as the media stormed the field to join petitioner’s

prayer, including “‘people jumping the fence’ to access

the field.” Pet.App. 9. In the course of this “stampede[,]”

(Pet.App. 9), members of the BSD cheerleading squad

and marching band were knocked to the ground

(Pet.App. 9, 138). Simply put, BSD was unable “to keep

kids safe.”6 JA222-23.

To rule for the petitioner would require this Court

to hold that BSD allowed petitioner to open a forum,

one that it could not close. Granting this authority to

an employee, in the face of strenuous school efforts to

the contrary, again stands both the case law and common sense on its head. The consequences of doing so

are apparent from this case and, if endorsed by this

Court, difficult, if not impossible, to cabin. Taken to

their logical end, petitioner’s arguments would imperil charter public schools’ ability to regulate their

grounds, facilities, and classrooms and, hence, their

ability to educate and keep their students safe.

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

This case thus implicates yet another compelling interest

for public schools – safeguarding “the physical and psychological

well-being of minors.” Sable Cmmc’ns of Cal., Inc. v. FCC, 492

U.S. 115, 126 (1989).

6

27

CONCLUSION

For the above reasons, this Court should affirm.

Respectfully submitted,

CHRISTOPHER A. BROOK

PATTERSON HARKAVY LLP

100 Europa Drive, Suite 420

Chapel Hill, NC 27517

Tel: 919.942.5200

cbrook@pathlaw.com

Counsel for Amici Curiae