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

No. 21-418

IN THE

_______________

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 FOR PSYCHOLOGY AND

NEUROSCIENCE SCHOLARS AS

AMICI CURIAE IN

SUPPORT OF RESPONDENT

_______________

Mark W. Mosier

Counsel of Record

Sarah Suwanda

Alexander J. Cave

COVINGTON & BURLING LLP

850 Tenth Street N.W.

Washington, DC 20001

(202) 662-6000

mmosier@cov.com

April 1, 2022

Counsel for Amici Curiae

i

TABLE OF CONTENTS

INTEREST OF THE AMICI CURIAE ...................... 1

INTRODUCTION AND SUMMARY OF

ARGUMENT .................................................... 3

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

I.

The Court Should Look to Scientific

Studies to Analyze the Coercive Effect

That Petitioner’s Prayers Would Have

on Adolescent Student Athletes. ..................... 7

II.

As This Court Has Correctly

Recognized, Coaches Powerfully Affect

the Behavior of Adolescent Athletes. ............ 13

III.

The Influence that Teammates Have on

Each Other Compounds a Coach’s

Influence on Adolescent Behavior................. 19

A.

Driven By the Desire to Fit In,

Adolescents Are More Susceptible

to Peer Influence. ................................ 20

B.

Adolescents’ Heightened

Neurobiological Sensitivity to

Rewards in the Presence of Peers

Makes Them Particularly

Susceptible to Social Conformity........ 22

C.

Adherence to Team-Sport

Identity Amplifies AlreadyExisting Influences of Social

Conformity Among Teammates.......... 26

CONCLUSION ......................................................... 29

ii

TABLE OF AUTHORITIES

Cases

Adams v. Deloria,

443 F. Supp. 3d 1093 (N.D. Cal. 2020) ................ 14

Davenport by Davenport v. Randolph Cnty.

Bd. of Educ.,

730 F.2d 1395 (11th Cir. 1984) ............................ 14

Edwards v. Aguillard,

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

Graham v. Florida,

560 U.S. 48 (2010) ............................................ 3, 10

J.D.B. v. North Carolina,

564 U.S. 261 (2011) ................................................ 8

Lee v. Weisman,

505 U.S. 577 (1992) ................................ 3, 4, 7, 8, 9

Lowery v. Euverard,

497 F.3d 584 (6th Cir. 2007) ................................ 14

Mahanoy Area Sch. Dist. v. B. L.,

141 S. Ct. 2038 (2021) .................................... 13, 15

Miller v. Alabama,

567 U.S. 460 (2012) .......................................... 3, 10

Roper v. Simmons,

543 U.S. 551 (2005) .......................................... 3, 10

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

530 U.S. 290 (2000) ...................................... 3, 9, 18

Tenn. Secondary Sch. Athletic Ass’n v.

Brentwood Acad.,

551 U.S. 291 (2007) ........................................ 13, 15

iii

Town of Greece v. Galloway,

572 U.S. 565 (2014) ................................................ 8

Vernonia Sch. Dist. 47J v. Acton,

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

Other Authorities

Adolescence, APA Dictionary of Psychology,

https://dictionary.apa.org/adolescence .................. 5

Dustin Albert et al., The Teenage Brain: Peer

Influences on Adolescent Decision Making,

22 Current Directions in Psych. Sci., no. 2,

2013, at 114 ........................................ 11, 12, 23, 27

Sarah-Jayne Blakemore, Development of the

Social Brain During Adolescence,

61 Q.J. Experimental Psych., no. 1, 2008,

at 40 ...................................................................... 20

Kaitlyn Breiner et al., Combined Effects of

Peer Presence, Social Cues, and Rewards on

Cognitive Control in Adolescents,

60 Dev. Psychobiology, no. 3, 2018, at 292 ... 12, 25

Jason Chein et al., Peers Increase Adolescent

Risk Taking,

14 Dev. Sci, no. 2, 2011, at F1 ................. 11, 12, 23

Childhood, APA Dictionary of Psychology,

https://dictionary.apa.org/childhood .................... 20

Margo Gardner & Laurence Steinberg, Peer

Influence on Risk Taking, Risk Preference,

and Risky Decision Making in Adolescence

and Adulthood: An Experimental Study,

41 Dev. Psych., no. 4, 2005, at 625 ...................... 22

iv

Scott A. Graupensperger, et al., Everyone Else

Is Doing It: The Association Between Social

Identity and Susceptibility to Peer Influence

in NCAA Athletes,

40 J. Sport & Exercise Psych., no. 3, 2018,

at 117 .................................................................... 28

Thomas Grisso et al., Juveniles’ Competence to

Stand Trial: A Comparison of Adolescents’

and Adults’ Capacities as Trial Defendants,

27 Law & Hum. Behav., no. 4, 2003, at 333 ....... 17

Grace Icenogle et al., Adolescents’ Cognitive

Capacity Reaches Adult Levels Prior to

Their Psychosocial Maturity: Evidence for a

“Maturity Gap” in a Multinational, CrossSectional Sample,

43 Law & Hum. Behav., no. 1, 2019, at 69 ..... 8, 25

Sheree Logue et al., Adolescent Mice, Unlike

Adults, Consume More Alcohol in the

Presence of Peers Than Alone,

17 Dev. Sci., no. 1, 2014, at 79 ............................. 24

Ethan M. McCormick et al., Functional

Connectivity in the Social Brain Across

Childhood and Adolescence,

13 Social Cognitive & Affective

Neuroscience, no. 8, 2018, at 819 ........................ 20

Lia O’Brien et al., Adolescents Prefer More

Immediate Rewards when in the Presence of

Their Peers,

21 J. Rsch. on Adolescence, no. 4, 2011, at

747 ........................................................................ 21

v

Ashley R. Smith et al., Age Differences in the

Impact of Peers on Adolescents’ and Adults’

Neural Response to Reward,

11 Dev. Cognitive Neuroscience 75 (2015) .......... 23

Ashley R. Smith et al., Peers Influence

Adolescent Reward Processing, But Not

Response Inhibition,

18 Cognitive, Affective & Behav.

Neuroscience, no. 2, 2018, at 284 ............ 11, 22, 23

Leah H. Somerville, The Teenage Brain:

Sensitivity to Social Evaluation,

22 Current Directions in Psych. Sci., no. 2,

2013, at 121 .................................................... 16, 21

Leah H. Somerville et al., Behavioral &

Neural Representation of Emotional Facial

Expressions Across the Lifespan,

36 Dev. Neuropsychology, no. 4, 2011, at

408 ........................................................................ 16

Laurence Steinberg, Adolescence

(13th ed. 2023).......................... 8, 11, 17, 24, 27, 28

Laurence Steinberg et al., Around the World,

Adolescence Is a Time of Heightened

Sensation Seeking and Immature SelfRegulation,

21 Dev. Sci., no. 2, 2017, at 1 ................... 12, 15, 24

Eva H. Telzer et al., Neurobiological

Sensitivity to Social Rewards and

Punishments Moderates Link Between Peer

Norms and Adolescent Risk Taking,

92 Child Dev., no. 2, 2021, at 731.................. 20, 21

1

INTEREST OF THE AMICI CURIAE1

Amici are professors of psychology and neuroscience.2 They conduct research related to adolescence,

including brain and behavioral development during

adolescence and adolescents’ interpersonal experiences, particularly among peers.

B. Bradford Brown is a Professor of Human Development in the Department of Educational Psychology at the University of Wisconsin-Madison. Dr.

Brown is one of the nation’s leading authorities on adolescent peer relations. He is a former Editor of the

Journal Research on Adolescence and currently leads

the Peer Relations Study Group, a lab at the University of Madison-Wisconsin that researches various aspects of peer relationships from early adolescence

through young adulthood. Dr. Brown has authored

and edited numerous scholarly publications regarding

various aspects of adolescent development, including

the organization of peer groups and processes of peer

influence.

Brett Laursen is a Professor of Psychology at

Florida Atlantic University. Dr. Laursen, an expert

on adolescent peer relationships, is the Editor-inChief of the International Journal of Behavioral De-

1 Pursuant to Rule 37.6, amici affirm that no counsel for a party

authored this brief in whole or in part and that no person other

than amici or their counsel made any monetary contributions intended to fund the preparation or submission of this brief. The

parties filed blanket consents to the filing of amicus briefs.

2 Amici submit this brief solely on their own behalf and not as

representatives of their universities. Amici are listed with institutional affiliations for purposes of identification only.

2

velopment and of the Cambridge Elements in Research Methods for Developmental Science. He also

serves as Docent Professor of Educational Psychology

at the University of Helsinki, Finland, and is a Fellow

of the American Psychological Association, the Association for Psychological Science, and the International Society for the Study of Behavioural Development. Dr. Laursen has authored over 150 scholarly

articles and edited several books on close relationships during adolescence and childhood, with a special

emphasis on influence and conformity in friendships

and peer groups.

Mitch Prinstein is the John Van Seters Distinguished Professor of Psychology and Neuroscience at

the University of North Carolina at Chapel Hill. Dr.

Prinstein is a renowned expert on children’s and adolescents’ peer relationships. He has led the Peer Relations Lab at the University of North Carolina at

Chapel Hill, which studies peer relationships and adjustment from early childhood through adolescence.

Dr. Prinstein has authored more than 200 publications on adolescent development, including popularity

and peer relations.

Laurence Steinberg is the Distinguished University Professor and the Laura H. Carnell Professor

of Psychology and Neuroscience at Temple University.

Dr. Steinberg is one of the world’s leading experts on

adolescence. He is a former President of the Division

of Developmental Psychology of the American Psychological Association and of the Society for Research on

Adolescence. Dr. Steinberg has authored hundreds of

publications on adolescence, including adolescent

brain development, risk-taking, and decision-making.

3

Amici submit this brief to aid the Court in understanding the pressure that teenage football players

would feel to participate in Petitioner’s postgame

prayers. This Court has looked to psychological and

neuroscientific research in prior cases where the legal

issues turned on adolescents’ mental states. See, e.g.,

Miller v. Alabama, 567 U.S. 460, 471–72 (2012); Graham v. Florida, 560 U.S. 48, 68 (2010); Roper v. Simmons, 543 U.S. 551, 569 (2005); Santa Fe Indep. Sch.

Dist. v. Doe, 530 U.S. 290, 311–12 (2000); Lee v. Weisman, 505 U.S. 577, 593–94 (1992). It should do the

same here.

INTRODUCTION AND

SUMMARY OF ARGUMENT

This Court has held that a pregame prayer at a

high school football game violated the Establishment

Clause because it had “the improper effect of coercing

those present to participate in an act of religious worship.” Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290,

312 (2000). Applying this precedent, the lower courts

concluded that Petitioner’s postgame prayers at high

school football games also violated the Establishment

Clause because they, too, coerced students to participate in acts of religious worship. Pet. App. 17–23,

153–60.

Petitioner contends that there can be no coercion

here, because he does not think he pressured any student athlete to participate in his prayers. Pet. Br. 5

(citing Petitioner’s own declaration). But whether Petitioner’s actions were coercive does not depend on Petitioner’s characterization of his actions, even if that

4

characterization were accurate. But see JA 295 (Petitioner sought to “continue” his “practice of praying

with students” (emphasis added)). Nor does the coercive effect of his postgame prayers turn on whether

those prayers were well intentioned, Pet. Br. 7; but see

Pet. App. 16 (finding that Petitioner intended to send

a message about “appropriate behavior”), or whether

Respondent disclaimed responsibility for them, Pet.

Br. 9, 33. What matters is whether the student athletes felt coerced to participate in the prayers.

They did. “At least one student felt compelled to

join Coach Kennedy’s post-game prayers, contrary to

the player’s own beliefs, because he feared he would

get less playing time if he did not participate.” Pet.

App. 71. Some parents likewise indicated that “their

children had participated in the prayers to avoid being

separated from the rest of the team or to ensure playing time.” Pet. App. 136; see also JA 186, JA 356. Several students, and their parents, thanked Respondent

for its actions to address the “awkward situations

where they did not feel comfortable declining to join

with the other players in Mr. Kennedy’s prayers.”

JA 359. And when Petitioner did not visibly pray,

none of his players did, either. JA 181.

The Court has observed that officially sponsored

prayer in public schools poses “heightened concerns

with protecting freedom of conscience from subtle coercive pressure.” Lee v. Weisman, 505 U.S. 577, 592

(1992). The coercive pressure to participate in Petitioner’s prayers was anything but subtle. Petitioner

prayed on the 50-yard line, immediately following the

team’s games, before the players left the field, while

spectators remained in the stands. Pet. App. 15, 72.

5

Petitioner’s actions created pressure to participate

to which adolescent student athletes would likely succumb, even if doing so were contrary to their own beliefs and even if the pressure was never explicit.3 The

adolescent student athletes would be influenced to follow Petitioner’s lead because he controlled benefits

they valued (such as playing time) and because of his

status as a role model and authority figure. Compounding that direct pressure, the sight of some teammates, along with classmates and community members, joining Petitioner in prayer influenced more reluctant student athletes to do the same. This pressure

to conform—whether explicit or implicit—was undoubtedly amplified by an innate desire to abide by

the norms of the team itself, for adolescents are especially vulnerable to peer influence when faced with

the possibility of social approval or disapproval.

The fact that most of the team joined Petitioner’s

prayers meant that everyone else would likely feel

compelled to do so as well. To refuse would be to risk

social reprobation from Petitioner, teammates, and

classmates. That student athletes felt both direct and

indirect pressure—all traceable to Petitioner—to participate in a religious ritual led by a public high school

employee underscores what is already well-known by

this Court and well-studied in psychology and neurobiology: Adolescents are behaviorally and neurobiologically predisposed to follow the lead of authority

3 Adolescence begins with puberty, at around 10–12 years of age,

and ends with physiological maturity, at around 19 years of age.

Adolescence, APA Dictionary of Psychology, https://dictionary.apa.org/adolescence.

6

figures, like coaches, and similarly susceptible to pressure—even unconscious, non-explicit pressure—to

conform to their peers’ actions.

I. The Court must consider the coercive nature of

Petitioner’s prayers from the perspective of an adolescent. Petitioner’s prayers most directly impacted adolescent student athletes. And as the Court has long

recognized—including in cases involving prayer at

public schools—psychological and neuroscientific research confirms that adolescents are especially susceptible to outside influences. Recent scientific research, including neuroimaging work, confirms that

this vulnerability is the result of two distinct, yet interconnected trajectories of adolescent brain development. While adolescents develop a heightened sensitivity to rewards around the time of puberty, including socioemotional rewards, their ability to control

their impulses and regulate their behavior develops

much more gradually. As a result of these dual systems, rewards have far greater impact on adolescent

behavior than adult behavior.

II. This Court, other courts, and even Petitioner

himself have noted the influence that coaches have

over adolescent student athletes. Coaches are role

models with immense power to dispense rewards of

great value to student athletes, such as roster spots,

playing time, and college recommendations. That

power, coupled with adolescents’ heightened reward

sensitivity and still maturing self-control, gives

coaches potent influence over athletes’ behavior—

even when coaches do not apply explicit pressure.

Moreover, because adolescents are especially inclined

toward authority figures and role models, a coach’s

7

status as an authority figure and respected mentor

adds to his influence.

III. In addition to the influence Petitioner exerted

as a coach and role model, the Court must also account

for the compounding influence that peers, and teammates in particular, have on one another. Adolescents

are driven, more so than any other age group, by their

desire for social approval among their peers, their

heightened sensitivity to rewards in the presence of

peers, and their fidelity to the team identity. Those

salient influences were clearly at play here, where Petitioner’s prayers were attended not only by spectators

and media but by a majority of the team. Here, too,

the compounding effect of peer influence can be traced

back to Petitioner. As a coach and role model for the

team, the natural result of the direct coercive effect of

Petitioner’s prayers was that some players would

join—thereby increasing the pressure on their more

reluctant teammates to do the same.

ARGUMENT

I.

The Court Should Look to Scientific Studies to Analyze the Coercive Effect That Petitioner’s Prayers Would Have on Adolescent Student Athletes.

As this Court has previously recognized, the coercive effect of officially sponsored prayer at public

schools must be assessed from the perspective of children and adolescents. See Lee v. Weisman, 505 U.S.

577, 592–94 (1992). Recent neurobiological research

confirms the importance of treating adolescents differently from adults.

The possibility of coercion is “most pronounced” in

schools precisely because children and adolescents are

8

especially susceptible to influence. Id. at 577, 592–94;

see also Town of Greece v. Galloway, 572 U.S. 565, 590

(2014) (plurality op.) (“mature adults” are “‘not readily

susceptible to religious indoctrination or peer pressure’” (quoting Marsh v. Chambers, 463 U.S. 783, 792

(1983))). Concerns specific to adolescents are especially salient here, where Petitioner prayed on the 50yard line immediately after high school football

games, before adolescent players from both teams had

left the field and while spectators—including dozens

of students—remained in the stands. Pet. App. 15, 72.

Indeed, players and student spectators alike were

even invited to join in the prayers. Pet. App. 4.

Time and time again, this Court has observed—

and science has confirmed—that “children cannot be

viewed simply as miniature adults.” J.D.B. v. North

Carolina, 564 U.S. 261, 273 (2011). Indeed, “because

different abilities mature along different timetables,

adolescents of a given age could be adult-like in some

respects but not others.” Grace Icenogle et al.,

Adolescents’ Cognitive Capacity Reaches Adult Levels

Prior to Their Psychosocial Maturity: Evidence for a

“Maturity Gap” in a Multinational, Cross-Sectional

Sample, 43 Law & Hum. Behav., no. 1, 2019, at 69, 71

(hereinafter “Adolescents’ Cognitive Capacity”). For

instance, “[t]he maturation of basic cognitive abilities

is complete around age 16.” Laurence Steinberg, Adolescence 245 (13th ed. 2023) (hereinafter “Adolescence”); see also Adolescents’ Cognitive Capacity, supra, at 69, 77. By that age, adolescents are often capable, among other things, of independently forming

their own religious beliefs. Adolescence, supra, at

9

258–59. Yet adolescents are neurobiologically susceptible to certain outside influences that may pressure

them to act inconsistently with those beliefs.

By the time adolescents reach puberty, their

brains are nearly adult-like in their capacity to process rewards and incentives. But their brains’ ability

to modulate behavioral responses to those rewards

and incentives develops much more gradually, and

may not fully mature until adulthood. As a result of

these distinct developmental trajectories—sometimes

called “dual systems”—adolescents are much more

vulnerable than adults to outside influences capable

of manipulating the reward structures they face.

This Court has long looked to psychology and neuroscience to understand these differences—and concluded that they matter in the very context in which

this case arises, among others. In Lee, the Court did

not consider whether “plac[ing] objectors in the dilemma of participating” in a prayer at a high school

graduation ceremony “is acceptable if the affected citizens are mature adults,” because they were not. 505

U.S. at 593. Instead, the Court held that “the State

may not, consistent with the Establishment Clause,

place primary and secondary school children in this

position,” because “[r]esearch in psychology supports

the common assumption that adolescents are often

susceptible to pressure” to conform, “and that the influence is strongest in matters of social convention.”

Id. at 593–94 (citing multiple studies coauthored by

one of amici). The Court reapplied these same lessons

in Santa Fe Independent School District v. Doe, in

holding that a pregame prayer at a high school football game violated the Establishment Clause. 530

U.S. 290, 311–12 (2000).

10

The Court has relied on scientific research on psychological and neurobiological differences between adolescents and adults in other contexts, too. For instance, in Roper v. Simmons, which held the death

penalty unconstitutional as applied to individuals under 18 years of age, the Court cited “scientific and sociological studies”—including one co-authored by one

of amici—showing that “juveniles are more vulnerable or susceptible to negative influences and outside

pressures, including peer pressure.” 543 U.S. 551, 569

(2005). Similarly, in Miller v. Alabama, the Court’s

conclusion that “children are constitutionally different from adults for purposes of sentencing” rested “not

only on common sense,” but also on “‘developments in

psychology and brain science [that] continue to show

fundamental differences between juvenile and adult

minds’—for example, in ‘parts of the brain involved in

behavior control.’” 567 U.S. 460, 471–72 (2012) (quoting Graham v. Florida, 560 U.S. 48, 68 (2010)). As the

Court had previously explained in Graham—relying

on amicus briefs by psychiatrists and psychologists

that explored the same trajectories of neurobiological

development relevant here—those regions of the brain

“continue to mature through late adolescence.” 560

U.S. at 68 (citing Brief for the American Medical Association et al. at 16–24 and Brief for the American

Psychological Association et al. at 22–27, Graham v.

Florida, 560 U.S. 48 (2010) (Nos. 08-7412, 08-7621)).

Research conducted since this Court’s decisions in

Lee, Santa Fe, Roper, Graham, and Miller has only reinforced the importance of the dual systems development of the adolescent brain. The first system matures relatively early in adolescence, as “[m]ajor

11

changes within the brain’s reward-processing circuitry occur around the time of puberty.” Ashley R.

Smith et al., Peers Influence Adolescent Reward Processing, But Not Response Inhibition, 18 Cognitive, Affective & Behav. Neuroscience, no. 2, 2018, at 284, 285

(hereinafter “Peers Influence Adolescent Reward Processing”). In early adolescence, this circuitry—which

includes the ventral striatum and orbitofrontal cortex,

among other regions of the brain—undergoes “dramatic remodeling . . . with respect to the distribution

and density of dopamine receptors.” Jason Chein et

al., Peers Increase Adolescent Risk Taking, 14 Dev.

Sci, no. 2, 2011, at F1, F2 (hereinafter “Peers Increase

Adolescent Risk Taking”).

Neuroimaging studies—brain scans, in common

parlance—“show especially heightened activation” of

these reward-processing regions “during adolescence

in response to reward-relevant cues and reward anticipation.” Id. at F2 (citations omitted). These regions

are activated “more intensively during early and middle adolescence than in childhood or adulthood.” Adolescence, supra, at 244–45. Moreover, adolescents

are generally unaware of their brains’ heightened reactivity to rewards and anticipated rewards, id. at

245, including “socioemotional reward[s],” Dustin Albert et al., The Teenage Brain: Peer Influences on Adolescent Decision Making, 22 Current Directions in

Psych. Sci., no. 2, 2013, at 114, 114 (hereinafter “The

Teenage Brain”).

The brain’s ability to regulate behavior, such as by

controlling impulses, increases during adolescence,

too. But this system’s development is gradual and

protracted. Unlike reward sensitivity—which spikes

dramatically around puberty and stays elevated

12

throughout adolescence—“cognitive capacities supporting efficient self-regulation mature in a gradual,

linear pattern over the course of adolescence.” Id. at

116. This shift may begin as early as preadolescence,

but it continues “at least” through the mid-twenties.

Peers Increase Adolescent Risk Taking, supra, at F2.

A “growing neuroimaging literature” confirms this developmental trajectory. Laurence Steinberg et al.,

Around the World, Adolescence Is a Time of Heightened Sensation Seeking and Immature Self-Regulation, 21 Dev. Sci., no. 2, 2017, at 1, 2 (hereinafter

“Around the World”).

As a result of these diverging developmental trajectories, the adolescent brain features both an “easily

aroused reward system” and “still maturing self-regulatory regions, which limit the young person’s ability

to resist” the very rewards to which the person is especially sensitive. Id. As one representative study

puts it, this “developmental asynchrony” is “akin to

starting a car’s engines before a well-functioning

braking system is in place.” Id. And a body of scientific research on “psychological and behavioral development during adolescence” shows that these developmental patterns manifest themselves in adolescents’

real-world behaviors. Id. In particular, a “rich literature” describes “how social influences and rewards differentially impact adolescent behavior relative to that

of adults” as a result of these neurobiological differences. Kaitlyn Breiner et al., Combined Effects of Peer

Presence, Social Cues, and Rewards on Cognitive Control in Adolescents, 60 Dev. Psychobiology, no. 3, 2018,

at 292, 293 (hereinafter “Combined Effects”). Those

13

differences—and their implications for adolescent behavior—are critical to understanding the coercive effect of Petitioner’s behavior in this case.

II.

As This Court Has Correctly Recognized,

Coaches Powerfully Affect the Behavior of

Adolescent Athletes.

This Court has already recognized the power and

influence that coaches enjoy over adolescent student

athletes. A high school coach, after all, is responsible

for “selecting members of the team, . . . assigning

roles, and . . . allocating playing time”—and “may

wish to take group cohesion and harmony into account” in making such decisions. Mahanoy Area Sch.

Dist. v. B. L., 141 S. Ct. 2038, 2058 (2021) (Alito, J.,

concurring). And student athletes’ behavior is under

“constant supervision” by their coaches. See Vernonia

Sch. Dist. 47J v. Acton, 515 U.S. 646, 678 (1995)

(O’Connor, J., dissenting).

That power and access gives coaches “potent” influence over adolescent student athletes’ behavior.

Tenn. Secondary Sch. Athletic Ass’n v. Brentwood

Acad., 551 U.S. 291, 299 (2007). Nearly all adolescent

student athletes wish to maximize their playing time

during their high school years, and many aspire to

“continue on to college or (dream of dreams) professional sports.” Id. at 298–99. A coach’s decisions

about roster composition, playing time, and more—all

made after closely observing each student athlete’s behavior on the field, at practice, and in the locker

room—may “play[] . . . on” these “youthful hopes” and

the “fears” that accompany them, and “could well exert . . . undue pressure” on adolescents’ behavior. Id.

at 299.

14

Other courts, too, have recognized the special

power that coaches have over adolescent athletes.

See, e.g., Lowery v. Euverard, 497 F.3d 584, 594 (6th

Cir. 2007) (“The coach determines the strategies and

plays, and ‘sets the tone’ for the team.”); Davenport by

Davenport v. Randolph Cnty. Bd. of Educ., 730 F.2d

1395, 1396 (11th Cir. 1984) (describing “grooming policy” under which coach denied high school student

athletes the opportunity to play because they refused

to shave); Adams v. Deloria, 443 F. Supp. 3d 1093,

1104 (N.D. Cal. 2020) (“His players listened to his

speech because he was the football coach . . . .”). Indeed, the district court here found that “Coach Kennedy occupied a ‘powerful position in his players’

lives.’” Pet. App. 76. And Petitioner himself agreed

that “a coach . . . might be the absolute most important person” an adolescent athlete “encounter[s] at

school” or “in their overall life,” and may enjoy “a tremendous amount of influence” over adolescent athletes. JA 323–24.

The neurobiological phenomena discussed in Part

I, supra, explain how, given coaches’ power, “undue

pressure” may result from a coach’s actions—even if

the coach does not expressly pressure or coerce student athletes into particular behaviors. The adolescent brain’s heightened reward sensitivity and stillmaturing self-control impact how young student athletes may perceive and respond to a coach’s on-field

prayer immediately following the game, because those

players understand that coaches have bountiful rewards to offer their players.

Consider a high school football coach—like Petitioner here—with roles on both the junior varsity and

varsity coaching staffs. JA 167. That coach likely has

15

the power to decide whether to cut a backup tight end

from next year’s team; when to elevate a promising

junior varsity running back to varsity; and how much

more playing time a second-string linebacker has

earned. Each of those decisions can confer—or deny—

an immediate reward: a spot on the team, a chance to

shine under the bright lights, a more prominent role.

That same coach can dispense longer-term rewards,

too, to those players who hope to “continue on to college or (dream of dreams) professional sports”—or

even just to attend college. Tenn. Secondary, 551 U.S.

at 298–99. For example, the coach may leverage his

relationships with Division I college coaches to get a

star safety a closer look. Or he might pen recommendation letters to the admissions officers at the nation’s

top universities extolling a backup offensive lineman’s

impressive leadership qualities and tireless work

ethic.

Because he has so many rewards to offer, a coach

who prays on the 50-yard line after a game need not

expressly pressure his players to join him for them to

be influenced—consciously or not—to do so. The mere

possibility that the coach may consider a player’s contribution to “group cohesion and harmony,” Mahanoy,

141 S. Ct. at 2058 (Alito, J., concurring)—or simply a

player’s bonds with and similarities to the coach—is

enough to trigger adolescents’ predisposition to seek

the rewards that the coach controls by joining the

prayer. Because the “sensation seeking” behavior to

which adolescents are especially prone includes the

“tendency for individuals to pursue activities that are

perceived as potentially rewarding,” Around the

World, supra, at 5 (emphasis added), players will tend

to join the prayer even if the coach does not make clear

16

whether those rewards depend on doing so. As a result, the simple sight of a coach praying by himself—

let alone surrounded by teammates, community members, and television cameras—may provide the incentive an eager-to-please player needs to kneel down beside him. In the context of high school athletics, the

prayer itself has coercive effect independent of any explicit pressure the coach might impose.

Coercive effect on players is especially likely if the

coach betrays any emotion as he kneels down to pray,

for adolescents may be “more emotionally reactive to

explicit cues indicative of social inclusion or exclusion.” Leah H. Somerville, The Teenage Brain: Sensitivity to Social Evaluation, 22 Current Directions in

Psych. Sci., no. 2, 2013, at 121, 121 (hereinafter “Sensitivity to Social Evaluation”). The amygdala—“a

brain region . . . critical to emotion processing and social behavior”—shows “greater activation” in adolescents than in adults in response to “a variety of facial

emotional cues presented in different contexts.” Leah

H. Somerville et al., Behavioral & Neural Representation of Emotional Facial Expressions Across the

Lifespan, 36 Dev. Neuropsychology, no. 4, 2011, at

408, 416, 419. In tandem with adolescents’ “underrecruitment of the [prefrontal cortex],” which helps

govern emotional responses, this sensitivity to emotional facial cues may alter adolescent behavior. Id.

at 421. A coach’s approving glance at a player who

has joined the prayer—or disapproving eye towards

one who has not—may trigger these responses and

drive still more players to join the coach.

A coach’s status as an authority figure and mentor

complements his capacity to provide both tangible and

socioemotional rewards and increases the likelihood

17

that players feel pressure to follow his lead. Psychological research shows that adolescents—especially

younger adolescents—are “inclined toward obedience”

and “authority figures.” Adolescence, supra, at 256.

In one line of research, for instance, both adolescents

and adults were “presented with vignettes involving

an individual who had gotten into trouble with the law

and then are asked how the individual should handle

different situations . . . .” Id. at 245. This research

shows that “[a]dolescents are more likely than young

adults to make choices that reflect a propensity to

comply with authority figures, such as confessing to

police rather than remaining silent or accepting a

prosecutor’s offer of a plea agreement.” Thomas

Grisso et al., Juveniles’ Competence to Stand Trial: A

Comparison of Adolescents’ and Adults’ Capacities as

Trial Defendants, 27 Law & Hum. Behav., no. 4, 2003,

at 333, 357.

This behavioral finding “do[es] not vary with gender, ethnicity, or socioeconomic status.” Id. A player

may feel pressure to pray with his coach, then, not just

because of the goodwill it could build and the rewards

that may follow, but also simply because a person he

respects—and whom he emulates and follows on a

daily basis—is doing the praying. Such pressure is

especially likely if, as the Ninth Circuit held here, the

coach’s prayer was “intended to send a message to students and parents about appropriate behavior and

what he values as a coach, in line with his job duties

of demonstrative communication as a role model for

players.” Pet. App. 16 (internal quotation marks omitted).

18

The importance of football to culture and student

life at high schools across the country further magnifies a coach’s influence over his players, and indeed

the entire school community. For millions of high

schoolers, autumn evenings under the glare of Friday

night lights are central to the most formative years of

life. Many students—“cheerleaders, members of the

band, and, of course, the team members themselves”—attend football games as an important part

of their high school experiences. Santa Fe, 530 U.S.

at 311. And countless others “feel immense social

pressure, or have a truly genuine desire, to be involved in the extracurricular event that is American

high school football.” Id. “High school home football

games are traditional gatherings of a school community; they bring together students and faculty as well

as friends and family from years present and past to

root for a common cause.” Id. at 312.

As the media coverage of Bremerton High School’s

games shows, football coaches enjoy enormous power

to shape these gatherings, and team, school, and community identity along with them. With that platform

comes the responsibility not to use “social pressure to

enforce [religious] orthodoxy.” Id. (quoting Lee, 505

U.S. at 596). Students attending public high school

football games should be throwing passes, tackling opponents, chanting slogans, blaring fight songs, and

building friendships—not dreading the final whistle’s

call to prayer with the coach.

In the end, contrary to Petitioner’s assertion, Pet.

Br. 27, 30, science provides good reason for the law to

account for the special role that coaches play in student athletes’ lives. Coaches can have extraordinary

influence on adolescent behavior because they are

19

well positioned to offer adolescent athletes rewards

that they value deeply, process intensely, and lack the

neurobiological resources to resist. In addition to all

that, as Petitioner concedes, “students . . . may view

[coaches] as mentors and role models.” Pet. Br. 30.

That position of authority and respect—and a coach’s

ability to define foundational community events—

makes adolescents all the more likely to conform to a

coach’s example, even if the coach does not explicitly

command or pressure them to do so, and even if the

school district declines to endorse the coach’s actions.

“[G]reat authority and coercive power,” after all, may

result from “students’ emulation of . . . role models.”

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

III.

The Influence that Teammates Have on

Each Other Compounds a Coach’s Influence on Adolescent Behavior.

While this Court has recognized the “potent” influence that coaches have on their players, see supra Part

II, the coercive effect of Petitioner’s prayers is amplified by the fact that they occurred in the presence of

many student athletes. Because adolescents are especially prone to peer influence, when some team members join a coach’s prayers as a result of his influence,

the pressure to join becomes even greater for team

members who would prefer not to participate. This

second wave of influence, no less than the first, ultimately traces back to the coach’s decision to pray in

front of his team.

20

A.

Driven By the Desire to Fit In, Adolescents Are More Susceptible to

Peer Influence.

Unlike during early childhood, when children are

primarily influenced by their parents, adolescents are

heavily influenced by their peers. See, e.g., Eva H.

Telzer et al., Neurobiological Sensitivity to Social Rewards and Punishments Moderates Link Between Peer

Norms and Adolescent Risk Taking, 92 Child Dev., no.

2, 2021, at 731, 731 (hereinafter “Neurobiological Sensitivity”). Neurobiological development sets the stage

for that influence.

A “collection of brain regions often referred to as

the social brain” is critical to “enabl[ing] individuals

to recognize others and evaluate their thoughts and

feelings.” Ethan M. McCormick et al., Functional

Connectivity in the Social Brain Across Childhood and

Adolescence, 13 Social Cognitive & Affective Neuroscience, no. 8, 2018, at 819, 819. The “social brain”—

which includes a host of regions, including the amygdala, anterior insula, superior temporal sulcus, prefrontal cortex, temporo-parietal junction, anterior

temporal poles, and medial prefrontal cortex, id. at

819–20—is largely in place by late childhood, id. at

827, though developmental refinement continues into

adolescence, see id.; Sarah-Jayne Blakemore, Development of the Social Brain During Adolescence, 61 Q.J.

Experimental Psych., no. 1, 2008, at 40, 43, 45.4

4 Late childhood, also known as “preadolescence,” is typically de-

fined as the two-year period before the onset of puberty. Childhood, APA Dictionary of Psychology, https://dictionary.apa.org/childhood.

21

Adolescents not only have well-developed “social

brains,” they also spend more time with their peers

and place a greater emphasis on gaining peer acceptance. Adolescents’ focus on their peers places

them at greater risk of “conforming to the norms and

behaviors of their peer group in an effort to enhance

their social belonging.” Neurobiological Sensitivity,

supra, at 731. Adolescents show “heightened sensitivity to social evaluation at various levels of complexity.” Sensitivity to Social Evaluation, supra, at 125.

They, more than other age groups, experience a drive

to gain social rewards (e.g., approval by others) and

avoid social punishments (e.g., disapproval by others),

thus increasing the likelihood with which they will

conform to peer norms. Neurobiological Sensitivity,

supra, at 731.

These two factors—social rewards and social punishments—are so potent that they do not need to be

“directly experienced.” Id. at 732. The “mere threat

of peer rejection is enough to limit group deviance and

increase adherence to social norms.” Id. Put simply,

the desire to fit in (or conversely, the desire not to be

left out) may cause adolescents to engage in behaviors

that they think are “encouraged by the peer group.”

Id.

Behavioral research has confirmed as much. One

study found that “adolescents demonstrated a greater

preference for immediate rewards when with their

peers than when alone.” Lia O’Brien et al., Adolescents Prefer More Immediate Rewards when in the

Presence of Their Peers, 21 J. Rsch. on Adolescence,

no. 4, 2011, at 747, 747. Another confirmed that although all people of varying ages “took more risks and

made more risky decisions in groups than when alone,

22

this effect was more pronounced during middle and

late adolescence than during adulthood.” Margo

Gardner & Laurence Steinberg, Peer Influence on Risk

Taking, Risk Preference, and Risky Decision Making

in Adolescence and Adulthood: An Experimental

Study, 41 Dev. Psych., no. 4, 2005, at 625, 632. Adolescent athletes—and their classmates—are no exception. They are especially likely to follow the lead of

the football coach, and each other, when they are together—as they are, for example, when talking with

teammates, classmates, and opponents, singing the

school fight song, and preparing to exit the field after

a football game.

B.

Adolescents’ Heightened Neurobiological Sensitivity to Rewards in the

Presence of Peers Makes Them Particularly Susceptible to Social Conformity.

Adolescents are more susceptible than adults to

outside influences because of the trajectories of brain

development discussed above. See supra Part I. Adolescents’ heightened sensitivity to rewards in combination with immature cognitive control has especially

profound effects on their behavioral choices when they

are in the presence of their peers.

Researchers have linked the effect of peer presence

on adolescents’ behavior to adolescents’ neurobiological sensitivity to rewards. For example, in one recent

neuroimaging study, researchers found that the introduction of peer presence not only “impact[ed] behavior” of adolescents, but also “increased activation of

the striatum and anterior insula.” Peers Influence Adolescent Reward Processing, supra, at 293. Because

23

these regions of the brain are important parts of the

brain’s “reward-processing circuitry,” the finding indicates that the presence of peers “heighten[s] the salience of anticipated rewards” in adolescents. Id. Moreover, the heightened activation of the ventral striatum and orbitofrontal cortex in adolescents’ brains

when adolescents are “aware that their friends [are]

watching them” is especially stark relative to activation patterns in adult brains. Peers Increase Adolescent Risk Taking, supra, at F7.5 As a result of studies

like these, “few scholars now dispute that adolescence

is a period of peak neurobehavioral sensitivity to social stimuli.” The Teenage Brain, supra, at 115.

The following brain scans are typical of the results

of these neuroimaging studies. They show how activation of the reward-processing regions of the adolescent brain (outlined in yellow in the figure) increases

when peers observe their behavior:

5 Although many of these studies aimed to understand why ado-

lescents engage in risky behavior, their findings are not limited

to that context. Indeed, one recent neuroimaging study “examine[d] age differences in neural engagement during peer observation when participants perform a reward-processing task that

involves no risk taking”—that is, a task in which no course of

action is “inherently more ‘safe’ or more ‘dangerous.’” Ashley R.

Smith et al., Age Differences in the Impact of Peers on Adolescents’ and Adults’ Neural Response to Reward, 11 Dev. Cognitive

Neuroscience 75, 76 (2015). The brain scans “revealed that, compared to adults, adolescents exhibited greater engagement of the

[ventrial striatum]”—again, a key component of the brain’s reward-processing system—“during receipt of reward when their

peers were watching” than when they were not. Id. at 80. That

finding began to “disentangle reward sensitivity from other aspects of risky decision-making that may engage overlapping

brain circuitry.” Id. at 81.

24

Adolescence, supra, at 248 (citing Peers Increase Adolescent Risk Taking, supra).

Further research has revealed how the additive effect of peer presence on adolescent reward sensitivity,

like reward sensitivity itself, is the result of neurobiological phenomena. For example, peer presence affects behavior in adolescent mice just as it does in adolescent humans, suggesting that “human adolescent

reward-seeking may reflect a hard-wired, evolutionary conserved process through which the presence of

agemates increases individuals’ sensitivity to potential rewards in their immediate environment.” Sheree

Logue et al., Adolescent Mice, Unlike Adults, Consume

More Alcohol in the Presence of Peers Than Alone, 17

Dev. Sci., no. 1, 2014, at 79, 79. And “sensation seeking is higher during middle and late adolescence than

before or after” worldwide, consistent with neurobiological findings. Around the World, supra, at 11.

Peer presence also further diminishes adolescents’

already weak ability to resist their predisposition to

25

seek rewards. Recent neuroimaging work shows that

adolescents experience “diminished cognitive control

when presented with positive social cues in a rewarding context and in the presence of peers relative to

when alone,” suggesting that “diminished cognitive

control under contextually exciting and rewarding

conditions may be exacerbated or amplified by the

presence of a peer in teens.” Combined Effects, supra,

at 298 (citations omitted). The effect may be especially strong “in the context of ‘triple arousal’ (i.e.,

peers, rewards, and social cues).” Id.

Adolescents may be especially powerless to resist

this peer presence effect when forced to make decisions under time pressure. Recent work points towards an adolescent “maturity gap” that turns on

whether a particular situation calls for “hot cognition”

or “cold cognition.” Hot cognition includes both “impulse control” and “resistance to peer influence,” and

is used in “affectively charged situations where deliberation is unlikely or difficult.” Adolescents’ Cognitive

Capacity, supra, at 71. Cold cognition, on the other

hand, is “employed in situations calling for deliberation in the absence of high levels of emotion.” Id.

While “cold cognition . . . reaches adult levels during

the midteen years,” “hot cognition” “tend[s] to reach

adult levels into adulthood.” Id. at 79. Thus, among

other factors, “pressure to decide quickly,” particularly in the absence of “adult consultants,” may

“quickly intensif[y] the affective arousal of a situation,” increasing adolescents’ tendency to chase rewards when peers are watching. Id. at 71, 82.

The decision to join a coach in prayer during chaotic postgame festivities is a classic example of hot

cognition. Players have no time to consult with adult

26

advisers, and must decide quickly, lest they lose their

opportunity to reap reward—especially if the prayer

is brief. And as this case shows, postgame prayer may

involve an especially charged environment. See, e.g.,

JA 181 (“At the conclusion of the game on October 16,

a large number of people came on to the field, some to

pray with Mr. Kennedy. There were people jumping

the fence and others running among the cheerleaders,

band and players. Afterwards, the District received

complaints from parents of band members who were

knocked over in the rush of spectators on to the

field.”); JA 347 (describing “fans, strangers, and media rushing on to the field after a game to where Mr.

Kennedy was going to pray”); JA 82 (photograph of

October 16, 2015 postgame prayer in which players,

community members, and media members with cameras surround a praying Coach Kennedy). In that sort

of environment, an adolescent athlete is especially

likely to follow his reward-seeking instincts and join

his coach in prayer.

C.

Adherence to Team-Sport Identity

Amplifies Already-Existing Influences of Social Conformity Among

Teammates.

While adolescents’ drive for social acceptance and

neurobiological development make them especially

likely to conform to the actions of their peers generally, the risk of conformity is even greater in the context of team sports. High school sports teams offer

adolescents an important social context for peer interactions and a key source of personal identity.

Team membership offers a canonical example of

this phenomenon along two different dimensions:

27

cliques and crowds. Cliques—or small groups of

same-age and same-sex peers, such as a group of football players—“provide[] the main social context in

which adolescents interact with one another.” Adolescence, supra, at 127–28. That social context is important, because it offers adolescents an environment

especially rich in social rewards. “Adolescents’ moods

are most positive when they are with their friends”

and “time spent with friends becomes more rewarding

over the course of adolescence.” Id. at 122. In short,

“[p]eer relations are never more salient than in adolescence.” The Teenage Brain, supra, at 116. And sure

enough, adolescents “assign the greatest priority to

peer norms for behavior.” Id.

Just as critically, a high school football team may

also represent a “crowd”—i.e., a “reputation based

cluster[] of youths” that “help[s] solidify young people’s social and personal identity” and confers “important influence on [the youth’s] behavior, activities,

and opinions about others.” Adolescence, supra, at

128, 132 (internal quotation marks omitted) (quoting

B. Bradford Brown & James Larson, Peer Relationships in Adolescents, in 2 Handbook of Adolescent Psychology, Contextual Influences on Adolescent Development 74, 85 (Richard Lerner and Laurence Steinberg eds. 2009)). Classic examples of a crowd include

“nerds,” “populars,” and—most salient here—“jocks.”

Adolescence, supra, at 128. Indeed, as members of the

“jocks” crowd, high school football players are often

able to establish certain “social norms—that is, values

and expectations—that members” of the crowd “strive

to follow.” Id. at 132. And when players “behave in

ways that are consistent with these norms, they are

28

reinforced”—that is, they are rewarded by fellow

crowd members for doing so. Id.

Whether considered a “clique” or “crowd” (or both),

the team, and the sense of identity it conveys, underscore the heightened influence that peers—and more

specifically, teammates—have on one another. In one

study, “athletes whose sense of self-concept was more

closely tied to sport team membership . . . were more

readily shaped by teammate influence.” Scott A.

Graupensperger, et al., Everyone Else Is Doing It: The

Association Between Social Identity and Susceptibility

to Peer Influence in NCAA Athletes, 40 J. Sport & Exercise Psych., no. 3, 2018, at 117, 123. And those “athletes with strong social identities [in team membership] altered their anticipated behavior to fit what

they believed to be stereotypical behaviors of the

group”—regardless of whether they were shown “bogus normative behaviors of teammates.” Id. In other

words, the “preexisting standards” or “values that

teams identify around” are likely to “influence behavior.” Id.

Petitioner’s actions contributed substantially to

the peer pressure placed on student athletes. When

Petitioner did not visibly pray, none of his players did,

either. JA 181. But when Petitioner did pray publicly, a majority of the team would join, whether “to

avoid being separated from the rest of the team or to

ensure playing time.” Pet. App. 136; see also JA 126,

JA 149, JA 169, JA 186, JA 356. That some players

“did not feel comfortable declining to join with the

other players in Mr. Kennedy’s prayers,” JA 359, underscores that the stated or unstated social norms of

the team, such as joining the coach in prayer, were

norms that the individual members of the team

29

“strive[d] to follow.” And, more critically, in following

those social norms, the student athletes were rewarded for their conformity.

Petitioner is just as responsible for the indirect coercive effect facilitated by these peer-to-peer dynamics as he is for the direct coercive effects of his public

postgame prayers. He set the tone for the team, and

the natural and expected result of his prayers was the

domino effect that in fact followed them. Some players—perhaps including those concerned about their

playing time, Pet. App. 71, 136—succumbed to the direct pressure created by Petitioner’s actions. And

once they did, others were compelled to join in to adhere to the team norm Petitioner had successfully catalyzed.

CONCLUSION

Petitioner’s actions—coupled with the student athletes’ behavioral and neurobiological predisposition to

fit in with their peers and their team—created pressure to which adolescent student athletes would likely

succumb, even if doing so were contrary to their own

beliefs and even if the pressure was never explicit.

The lower courts thus correctly concluded that Petitioner’s postgame prayers at high school football

games violated the Establishment Clause because

they coerced students to participate in acts of religious

worship. The judgment of the Ninth Circuit should be

affirmed.

30

Respectfully submitted,

Mark W. Mosier

Counsel of Record

Sarah Suwanda

Alexander J. Cave

COVINGTON & BURLING LLP

850 Tenth Street N.W.,

Washington, DC 20001

(202) 662-6000

mmosier@cov.com

April 1, 2022

Counsel for Amici Curiae