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

No. 21-418

IN THE

Supreme Court of the United States

————

JOSEPH A. KENNEDY,

Petitioner,

v.

BREMERTON SCHOOL DISTRICT,

Respondent.

————

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

————

BRIEF OF THE AMERICAN CIVIL LIBERTIES

UNION AND ACLU OF WASHINGTON

AS AMICI CURIAE

IN SUPPORT OF RESPONDENT

————

David D. Cole

Daniel Mach

Heather L. Weaver

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

915 15th Street, N.W.

Washington, DC 20005

Cecillia D. Wang

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

39 Drumm Street

San Francisco, CA 94111

Nancy Talner

Kendrick Washington

Taryn M. Darling

AMERICAN CIVIL LIBERTIES

UNION OF WASHINGTON

FOUNDATION

P.O. Box 2728

Seattle, WA 98111

Kathleen R. Hartnett

Counsel of Record

K.C. Jaski

COOLEY LLP

3 Embarcadero Center

San Francisco, CA 94111

(415) 693-2000

khartnett@cooley.com

Adam S. Gershenson

Adam M. Katz

Elizabeth A. Trafton

COOLEY LLP

500 Boylston St.

Boston, MA 02116

Patrick J. Hayden

Victoria R. Pasculli

COOLEY LLP

55 Hudson Yards

New York, NY 10001

Counsel for Amici Curiae

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

i

TABLE OF CONTENTS

Page

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

INTRODUCTION AND SUMMARY OF

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

ARGUMENT ............................................................... 4

I.

Petitioner’s Prayers with Students Were

Undertaken Pursuant to His Official

Duties and Are Unprotected Under

Garcetti. ............................................................ 4

II.

Permitting an On-Duty Public School

Football Coach to Lead Students in

Midfield Prayer Immediately After the

Final Play at a School-Sponsored Game

Violates the Establishment Clause. .............. 12

A.

The Establishment Clause

Protects Public School Students

from Religious Indoctrination and

Pressure. .............................................. 15

1.

Establishment Clause

Concerns Are at Their

Zenith in Public Schools. .......... 15

2.

The Speech of On-Duty

School Officials at SchoolSponsored Events Bears

the Strong Imprimatur of

the School. ................................. 17

ii

TABLE OF CONTENTS

(continued)

Page

3.

The Coercive Pressures

Faced by Students Require

Vigilance in Enforcing the

Establishment Clause in

Public Schools. .......................... 18

B.

Petitioner’s On-Duty Prayers with

Students Violated the

Establishment Clause. ........................ 21

C.

Schools Are in the Best Position to

Determine Whether an

Employee’s Behavior Poses a

Serious Risk of Violating the

Establishment Clause. ........................ 28

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

iii

TABLE OF AUTHORITIES

CASES

Berry v. Dept. of Social Services,

447 F.3d 642 (9th Cir. 2006) ................................ 30

Board of Educ. of Westside Community

Sch. v. Mergens,

496 U.S. 226 (1990) .................................. 16, 17, 29

Borden v. Sch. Dist. of Twp. of E.

Brunswick,

523 F.3d 153 (3d Cir. 2008) .............................. 8, 25

Bronx Household of Faith v. Bd. of Educ.

of City of New York,

650 F.3d 30 (2d Cir. 2011) .................................... 29

Capitol Square Review and Advisory Bd.

v. Pinette,

515 U.S. 753 (1995) .............................................. 29

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

911 F.3d 183 (4th Cir. 2018) ................................ 13

Doe v. Duncanville,

70 F.3d 402 (5th Cir. 1995) ............................ 21, 25

Edwards v. Aguillard,

482 U.S. 578 (1987) ........................................ 16, 19

Engel v. Vitale,

370 U.S. 421 (1962) .................................. 14, 20, 26

iv

TABLE OF AUTHORITIES

(continued)

Espinoza v. Montana Dept. of Revenue,

140 S. Ct. 2246 (2020) .......................................... 29

Freedom from Religion Found., Inc. v.

Concord Community Sch.,

885 F.3d 1038 (7th Cir. 2018) .............................. 20

Garcetti v. Ceballos,

547 U.S. 410 (2006) ....................................... passim

Good News Club v. Milford Central Sch.,

533 U.S. 98 (2001) ................................................ 28

Hazelwood Sch. Dist. v. Kuhlmeier,

484 U.S. 260 (1988) .......................................... 6, 17

Lamb’s Chapel v. Center Moriches

Union Free Sch. Dist.,

508 U.S. 384 (1993) .............................................. 28

Lee v. Weisman,

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

Lund v. Rowan Cty., N.C.,

103 F. Supp. 3d 712 (M.D.N.C. 2015), ................. 23

Lynch v. Donnelly,

465 U.S. 668 (1984) .............................................. 13

McCollum v. Board of Education of Sch.

Dist. No. 71,

333 U.S. 203 (1948) .............................................. 17

v

TABLE OF AUTHORITIES

(continued)

McCreary County v. ACLU of Ky.,

545 U.S. 844 (2005) ........................................ 12, 22

Mellen v. Bunting,

327 F.3d 355 (4th Cir. 2003) ................................ 26

Nurre v. Whitehead,

580 F.3d 1087 (9th Cir. 2009) .............................. 30

Peck v. Upshur Cty. Bd. of Ed.,

155 F.3d 274 (4th Cir. 1998) ................................ 29

Rosenberger v. Rector and Visitors of

Univ. of Va.,

515 U.S. 819 (1995) .............................................. 28

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

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

Sch. Dist. of Abington Twp. v. Schemmp,

374 U.S 203 (1963) ......................................... 14, 20

Steele v. Van Buren Pub. Sch. Dist.,

845 F.2d 1492 (8th Cir. 1988) .............................. 25

Stone v. Graham,

449 U.S. 39 (1981) .......................................... 19, 20

Stratechuk v. Bd. of Ed., South OrangeMaplewood Sch. Dist.,

587 F.3d 597 (3d Cir. 2009) .................................. 30

vi

TABLE OF AUTHORITIES

(continued)

Tinker v. Des Moines Indep. Cmty. Sch.

Dist.,

393 U.S. 503 (1969) ........................................ 18, 19

Van Orden v. Perry,

545 U.S. 677 (2005) .............................................. 20

Wallace v. Jaffree,

472 U.S. 38 (1985) ................................................ 14

Widmar v. Vincent,

454 U.S. 263 (1981) .............................................. 28

OTHER AUTHORITIES

Matt Calkins, Why Bremerton Coach

Joe Kennedy’s Stance on Postgame

Prayer is Admirable, Seattle Times

(Oct. 15, 2015) ....................................................... 26

Josh Farley, A Home of Their Own:

Kitsap Muslims Finally Have

Mosque, Kitsap Sun, (Feb. 18, 2017) ................... 23

Steve Gardner, Survey Finds Kitsap the

Seventh Least Religious Area in the

nation, Kitsap Sun (Apr. 13, 2022) ...................... 23

Kitsap Sikh Temple,

https://www.kitsapsikhtemple.com

(last visited Mar. 31, 2022) .................................. 23

INTEREST OF AMICI CURIAE1

The American Civil Liberties Union (“ACLU”) is

a nationwide, nonprofit, nonpartisan organization

with nearly two million members dedicated to the

principles of liberty and equality embodied in the

Constitution and this nation’s civil rights laws. Since

its founding in 1920, the ACLU has appeared before

this Court in numerous free speech and religious

liberty cases, both as direct counsel and as amicus

curiae. The American Civil Liberties Union of

Washington is a state affiliate of the national ACLU.

For more than 100 years, the ACLU has been a

staunch supporter of the free exercise of religion, free

speech, and the Establishment Clause. Most recently,

in an amicus brief filed last year with this Court

addressing the intersection of these rights, we argued

that a city could not deny a Christian group’s request

to fly a flag depicting a Latin cross, where the city had

consistently allowed private parties to temporarily

display flags on a city-owned flagpole. See Amicus Br.

of ACLU, Shurtleff v. City of Boston, No. 20-1800 (U.S.

Sup. Ct. Nov. 22, 2021). In this case, our interest in

ensuring that public schools avoid Establishment

Clause violations, including religious coercion of

students, coupled with our conclusion that the

Petitioner’s on-the-job public prayer is not protected

under this Court’s First Amendment public employee

speech doctrine, leads us to urge that the judgment

below be affirmed.

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

counsel for a party authored this brief in whole or in part, and no

person other than amici and their counsel made a monetary

contribution to this brief’s preparation and submission.

1

2

INTRODUCTION AND SUMMARY OF ARGUMENT

As a football coach at Bremerton High School,

Petitioner engaged in a longstanding practice of

leading student-athletes on his team in prayer before

games in the school’s locker room and immediately

after games on the field. Respondent (the “District”)

expressed concern that Petitioner’s team prayers

violated students’ religious liberty, created a safety

risk for students and others on the field, and

undermined the District’s ability to maintain control

over District events and messages. Though the District

offered various accommodations that would have

allowed Petitioner to pray without religiously coercing

students, endangering safety, or risking a perception

that his religious message bore the school’s

imprimatur, JA 40, Petitioner continued to lead his

student-athletes in virtually identical on-field public

prayers after games.

These were not private moments of quiet

reflection, but on-the-job prayer convened by a school

employee in a position of authority, often at the 50yard line, under the bright lights of the school

stadium, encircled by adolescents under his charge

wearing their team uniforms. As Petitioner continued

to conduct these team prayers on the job, the District

learned that several players felt pressured to

participate in the coach-led religious exercise. When

Petitioner rejected the District’s accommodations and

refused to halt his practice, the District placed him on

administrative leave. While employees have a right to

engage in private prayer in many situations, the First

3

Amendment did not prohibit the District’s response in

this case.

Petitioner’s challenge fails under Garcetti v.

Ceballos, 547 U.S. 410 (2006), without regard to the

Establishment Clause concerns presented here. Just

as the school would have the authority to direct its

coach not to display a “Re-elect Joe Biden” placard on

the 50-yard line after each game, so, too, may the

school direct him not to conduct what amounts to a

team prayer in that setting.

The First Amendment does not protect public

employees’ speech made “pursuant to their official

duties.” Id. at 421. This rule is founded on the

government’s duty to provide efficient services to the

public and its interest in preventing private

viewpoints from assuming an official imprimatur.

Post-game, on-field speeches to players are undeniably

part of what a football coach is paid to do. Only after

Petitioner rejected accommodations that would have

allowed him to pray in private and insisted on

continuing his on-field team prayers did the District

discipline him. Petitioner admits he was on the job

during these prayers.

The First Amendment,

therefore, did not shield him from employee discipline

where, as here, the school had legitimate concerns

about the effect of that conduct on the public and its

students. That conclusion is sufficient to uphold the

District’s actions.

The District’s actions were also justified to avoid

the Establishment Clause violation that occurs when

a coach leads students in midfield prayer while on the

job. For decades, this Court has held that, when it

4

comes to the Establishment Clause, “there are

heightened concerns . . . in the elementary and

secondary public schools.” Lee v. Weisman, 505 U.S.

577, 592 (1992). Public school students—a group of

young individuals of diverse faiths and beliefs—face

inherent risks of coercion from their teachers and

coaches, who serve as authority figures and role

models, and in the case of a football coach, exercise

substantial discretion over their ability to participate

in important extracurricular activities.

Here,

Petitioner crossed the Establishment Clause line: He

gathered his team on the football field to lead public

prayers in the midst of a media blitz, leaving his

players feeling obligated to participate—lest they lose

their coach’s confidence, their playing time, or their

teammates’ support.

Amici recognize that difficult questions can

arise at the intersection of free speech and free

exercise rights and Establishment Clause obligations.

But here, the District was clearly within its authority.

For years, Petitioner included prayer in his game

speeches—which, as he admits, were made pursuant

to his official duties and thus without First

Amendment protection.

The First Amendment

imposed no bar on the District’s disciplinary action—

indeed, the Establishment Clause required it.

ARGUMENT

I.

Petitioner’s Prayers with Students Were

Undertaken Pursuant to His Official Duties and

Are Unprotected Under Garcetti.

Petitioner casts this case as involving a high

school football coach’s “brief, quiet prayer by himself

5

while at school.” Pet’r Br. i. The record shows

otherwise. In reality, Petitioner had a longstanding

practice of leading students, over whom he had

authority and significant influence, in prayer,

including on the field immediately after games. Pet’r

Br. 5; JA 126, 261. During these prayers, Petitioner

was on the clock, on the job, and responsible for

supervising and leading his team. By his own

admission, Petitioner’s “football coaching functions”

continued “until the last kid leaves” after a game. JA

276. Since a football coach’s post-game speeches are

plainly part of his official duties, they lack First

Amendment protection. Therefore, the District had an

entirely independent basis for limiting such speech,

separate and apart from its legitimate Establishment

Clause concerns.

Indeed, because Petitioner’s on-duty speech was

not protected, this case can be resolved without

addressing the Establishment Clause at all. Imagine

a coach who, after each game, huddled his studentathletes together and raised a sign at the 50-yard line

saying, “Math Stinks,” or “Re-elect Joe Biden.” The

school would be fully within its authority to direct him

not to do so while on the job and in such a public place.

Even if the speech raised no Establishment Clause

concerns, under this Court’s holdings, public

employers have authority to direct speech made by

public employees pursuant to their official duties.

In Garcetti, this Court recognized that when

public employees speak “pursuant to their official

duties,” they do not speak “as citizens” and therefore

cannot shield their speech from employer discipline

6

under the First Amendment. 547 U.S. at 421. Garcetti

addresses the government’s interest in avoiding

misattribution by allowing it to control on-duty speech,

while providing some measure of protection for offduty speech. “Government employers, like private

employers, need a significant degree of control over

their employees’ words and actions; without it, there

would be little chance for the efficient provision of

public services.” Id. at 418. The Garcetti inquiry is “a

practical one”—fact-bound and tailored to the specific

circumstances presented in a given case. Id. at 424.

The rule in Garcetti ensures that not every workplace

will become, literally, a federal case. See id. at 418.2

Garcetti also reflects the government’s interest

in regulating speech disseminated under its auspices

and bearing its imprimatur. For similar reasons,

public schools have some authority to regulate certain

expressive activities, such as school-sponsored

publications, “that students, parents, and members of

the public might reasonably perceive to bear the

imprimatur of the school.” Hazelwood Sch. Dist. v.

Kuhlmeier, 484 U.S. 260, 271 (1988) (addressing high

school newspapers). Garcetti recognizes a similar

principle for public employees’ speech in their official

Given the constitutional interests in “academic freedom,” the

Court in Garcetti was careful to note that it did not decide

whether its analysis “would apply in the same manner to a case

involving speech related to scholarship or teaching,” 547 U.S. at

425, which likewise is not at issue in this case.

2

7

capacity because “official communications have official

consequences.” Garcetti, 547 U.S. at 422.3

Applying Garcetti’s “practical” inquiry to the

admitted facts of this case, Petitioner acted “pursuant

to [his] official duties,” Garcetti, 547 U.S. at 421, when

he incorporated prayers into his post-game speeches to

his students—a quintessential responsibility of a

football coach. There is no dispute that, between 2008

and 2015, Petitioner led his athletes in post-game

prayers at midfield, JA 40, 261, and the District’s

September 17, 2015 letter identified this “problematic

practice[]”—along with Petitioner’s pre-game prayers

with players in the locker room—as the basis for its

conclusion that Petitioner’s conduct would “very

likely” be found to violate the Establishment Clause.

JA 40–41.

Petitioner appears to concede that presenting

“post-game speeches” is within his official coaching

duties. See Pet’r Br. 27; see also JA 276 (admitting

that Petitioner was on duty during prayers). No one

could argue otherwise. Football coaches are expected

to address players after games, and since—as

Petitioner testified—a football coach is “the most

For these same reasons—the government’s interest in the

efficient provision of services and its need to control speech issued

under its auspices—government restrictions on public employees’

religious speech do not violate the Free Exercise Clause when

such speech is made pursuant to official job duties. There is no

basis to create a new, broad exception to Garcetti that would

insulate all government employee speech from regulation

whenever it can be cast as religious. Additionally, as discussed

infra, Petitioner’s on-duty religious speech in this case implicated

the District’s obligations under the Establishment Clause.

3

8

important person [students] encounter in their overall

life,” players would not feel free to walk away when

their coach begins such a speech. JA 323; see also Br.

of Former Professional Football Players Obafemdi D.

Ayanbadejo, Sr., Christopher J. Kluwe, and Frank T.

Lambert, and Various Collegiate Athletes & Coaches

as Amici Curiae in Supp. of Resp’t. at 12–14, 18–23. If

writing a memo is part of an attorney’s official

responsibilities, see Garcetti, 547 U.S. at 421, then

leading players in a post-game ritual on the 50-yard

line is part of a football coach’s. See, e.g., Borden v.

Sch. Dist. of Twp. of E. Brunswick, 523 F.3d 153, 171

n.15 (3d Cir. 2008) (holding that, under Garcetti, a

high school football coach’s pre-game prayer with

players “would not be protected because it was made

pursuant to his official duties as a coach of the EBHS

football team”).

Petitioner attempts to distance himself from his

years-long practice of delivering prayers to players and

limit the case to a handful of games in October 2015.

See Pet’r Br. 27. But Petitioner’s longstanding

practice provides the necessary context for

understanding the significance of his post-game

prayers. After discovering that Petitioner had for

years been leading students in prayers in the locker

room before games and on the field immediately after

games,

the

District

offered

him

several

accommodations—including allowing him to “engage

in religious activity” apart from students, App. 6, by

praying in a number of private locations on school

property, JA 94, or returning to the field to pray after

the players had left, JA 224. Petitioner nonetheless

pressed forward with his virtually unchanged practice

9

of leading his student-athletes and staff in public

prayers, on the 50-yard line at the close of games.

A simple side-by-side picture demonstrates

that, other than the media presence, Petitioner’s

October 2015 on-field prayers were virtually identical

to his longstanding practice of leading post-game

prayers with his high school athletes (JA 98, 82):

Pre-Investigation

Prayer

October 16, 2015

Homecoming Game

On October 23, 2015, the District reminded

Petitioner that it had provided him with “directives”

specifically in response to his “prior practices involving

on-the-job prayer with players . . . on the field

immediately following games.” JA 90. But Petitioner

had nonetheless immediately followed the school’s

homecoming game with on-field prayer surrounded by

players, staff, media, and a state representative—in a

scene indistinguishable from the post-game prayers

that Petitioner had led in the past. JA 90; see JA 93

(noting that, “given your prior public conduct,”

reasonable observers would find that Petitioner had

engaged in “overtly religious conduct” while “still on

10

duty, under the bright lights of the stadium”).4 Five

days later, the District reiterated the same points

when it placed Petitioner on administrative leave. JA

102–03.5 Petitioner cannot divorce his years of on-thejob team prayers, or his refusal to comply with his

employer’s directive, from the District’s October 2015

decision to discipline him.

Petitioner claims he has not “sought” to

“resume” the use of prayer in his post-game speeches.

Pet’r Br. 31. But Petitioner was disciplined based both

on what he had already done, and on what he

continued to do after the District directed him to cease:

lead his team in mid-field prayers, in which students

felt compelled to participate, see JA 40.6

Petitioner’s reference to the District’s October 16, 2015,

acknowledgement that he had purportedly “complied with the

District’s directives” misses the point. JA 77; see Pet’r Br. 27.

That very same evening, Petitioner reverted to his prior

activities, engaging in the same on-field prayer with high school

players and staff. See JA 82, 90. It was precisely this conduct

that led the District to conclude that Petitioner had “violated [its]

directives.” JA 102 (emphasis added); see JA 90–95.

4

The District’s October 28, 2015, letter also referred to

Petitioner’s mid-field prayer at an October 26, 2015, home game,

surrounded by school-age children, two state legislators, and

other community members. See JA 102–03; see also JA 97

(photograph of prayer), 312–13.

5

Petitioner’s references to what he has “sought” to do in the

future are of limited relevance for the additional reason that, as

the District noted, Petitioner has since moved to Florida, such

that this case may be moot. See Resp’t Suggestion of Mootness

(Feb. 18, 2022).

6

11

Petitioner also focuses on dicta in the court of

appeals’s ruling, which he reads to construe his

“duties” more broadly than necessary under Garcetti—

for example, in referring to Petitioner as a “mentor” or

“role model.” App. 15. While this language, in

isolation, could raise concerns regarding the

“excessively broad job descriptions” against which

Garcetti warned, 547 U.S. at 424, the court of appeals

appropriately cabined those descriptions by reference

to the context in which Petitioner prayed—

“specifically at the conclusion of a game,” “at the center

of the football field,” “while players stood next to him,”

and while concededly on the job, App. 15.

In sum, this case can be resolved simply by

applying Garcetti. For years, without approval or

knowledge of his employer, Petitioner led his players

in prayer before and immediately after high school

football games. Petitioner concedes that he was on the

job and that these prayers were part of his official

duties as a coach. See JA 40–41, 276. Less than a

month after the District gave Petitioner a directive to

cease these activities, Petitioner engaged in virtually

identical post-game prayers with his athletes. JA 82;

see also JA 97.

Under Garcetti, the District’s

response to this on-the-job speech provides no basis for

a First Amendment claim.

Petitioner could have complied with the

District’s proposed accommodations, as he did on

September 18, when his post-game speech with the

team was nonreligious and he later returned to the

field to pray after the crowd had departed. JA 53, 364.

Or when, during the following month, he took a knee

12

and prayed after games while the players were

otherwise occupied. JA 339–42. In those instances an

onlooker would likely understand his was private

conduct entitled to protection akin to the teacher

“crossing herself before a meal in the lunchroom.”

Pet.’r Br. 26–27.

Instead, Petitioner insisted that he would

continue his “practice of praying with students,” JA

295, making abundantly clear that his speech was not

private, personal prayer, but rather was carried out as

a representative of the school. Petitioner was acting

within his duty as the football coach when he led

students and staff in prayer in the midfield at the close

of games in front of a crowd.

II. Permitting an On-Duty Public School Football

Coach to Lead Students in Midfield Prayer

Immediately After the Final Play at a SchoolSponsored Game Violates the Establishment

Clause.

While Garcetti provides a sufficient basis for

affirmance, the Establishment Clause also supports

this result. This Court’s jurisprudence prohibits

public school staff, acting in their official capacities,

from subjecting students to, or leading students in,

prayer. “[C]ontext” is key to assessing whether

government action violates the Establishment Clause.

McCreary County v. ACLU of Ky., 545 U.S. 844, 868

(2005); see also, e.g., Santa Fe Indep. Sch. Dist. v. Doe,

530 U.S. 290, 315 (2000) (“We refuse to turn a blind

eye to the context in which this policy arose[.]”); Lee,

505 U.S. at 597 (“Our Establishment Clause

jurisprudence remains a delicate and fact-sensitive

13

one[.]”); Lynch v. Donnelly, 465 U.S. 668, 678 (1984)

(“[T]he inquiry calls for line drawing; no fixed, per se

rule can be framed.”).

Few contexts call for closer Establishment

Clause scrutiny than public elementary or secondary

schools. Such schools have an institutional duty to

serve equally students of every religious and nonreligious background. Schools must “acknowledge the

profound belief of adherents to many faiths” and

scrupulously adhere to the “central meaning of the

Religion Clauses of the First Amendment, which is

that all creeds must be tolerated, and none favored.”

Lee, 505 U.S. at 590.

Students are especially vulnerable to coercion

and influence from their teachers and coaches. Public

elementary and high school students face unique,

subtle, and powerful “pressures” to conform to the

expressive conduct of their fellow students and

authority figures and often experience practical

barriers to “avoid[ing] the fact or appearance of

participation.” Lee, 505 U.S. at 588.

Accordingly, public schools face unique

Establishment Clause risks. When on-duty school

officials lead students in prayer or otherwise

participate in religious activities with students at

school-sponsored events, it harms students by

alienating and marginalizing those who do not

subscribe to the favored faith. See, e.g., Deal v. Mercer

Cty. Bd. of Educ., 911 F.3d 183, 188 (4th Cir. 2018)

(elementary school student “suffer[ed] from ongoing

feelings of marginalization and exclusion” as a result

of Bible course operated by public school).

14

Recognizing the harms that school-sponsored

religious practices impose on students, this Court has

held for more than half a century that the

Establishment Clause forbids public schools and their

officials from promoting religious beliefs or organizing,

encouraging, or leading prayer among students. See,

e.g., Santa Fe, 530 U.S. at 308–12 (school could not

allow prayers to be delivered over the loudspeaker

before football games because it sent the message to

nonadherents that the school endorsed the prayers

and nonadherents were outsiders and coerced

students into participating in religious exercise); Lee,

505 at 586 (school could not invite rabbi to offer a

prayer at a graduation ceremony because the prayer

pressured students to participate); Wallace v. Jaffree,

472 U.S. 38, 61 (1985) (state could not enforce statute

that authorized school moment of silence for

meditation or prayer where clear purpose was to

encourage students to pray); Sch. Dist. of Abington

Twp. v. Schemmp, 374 U.S 203, 205 (1963) (state could

not require schools to begin each day with Bible

readings and the Lord’s Prayer); Engel v. Vitale, 370

U.S. 421, 436 (1962) (invalidating statute requiring

public school students to recite morning prayer).

The District faithfully followed this precedent.

The very public setting in which Petitioner delivered

his prayers, coupled with his supervisory role in that

setting, meant that the prayers bore the strong

imprimatur of the school. Moreover, the school had

evidence that some students felt coerced to participate

in the prayers for fear of separation from the team and

the risk of losing playing time if they declined. App.

71; JA 186, 234, 356, 359. This was not, as Petitioner

15

inaccurately claimed, a “brief, quiet prayer by

himself.” Pet. i. The District invited Petitioner to

conduct just such personal prayers.

Instead,

Petitioner traded on his special access to the school’s

football field and students to lead his team members

and staff in prayer while carrying out his official school

duties and representing the school on the football field.

Absent the District’s intervention, the clear message

was that, player discomfort notwithstanding, the

school approved the prayers conducted inside its

stadium, at some of its highest-profile and bestattended events.

The District correctly determined that

Petitioner’s prayers to and among his student

players—on the center of the school’s football field—

violated the Establishment Clause. And given that

these prayers were delivered in the course of the

coach’s official duties at a public school event, at the

very least, the District’s well-founded judgment merits

deference. Schools require a measure of discretion if

they are not to be constantly at risk of violating either

the Establishment Clause or the Free Exercise Clause

in their supervision of their employee’s on-the-job

conduct.

A. The Establishment Clause Protects Public

School Students from Religious Indoctrination

and Pressure.

1.

Establishment Clause Concerns Are at

Their Zenith in Public Schools.

This Court has long made clear that there are

“heightened concerns with protecting freedom of

conscience . . . in the elementary and secondary public

16

schools.” Lee, 505 U.S. at 592; see also, e.g., Board of

Educ. of Westside Community Sch. v. Mergens, 496

U.S. 226, 261–62 (1990) (Kennedy, J., concurring)

(“[S]pecial circumstances . . . exist in a secondary

school where the line between voluntary and coerced

participation may be difficult to draw.”). These

Establishment Clause concerns stem both from the

tendency for speech by school employees at schoolsponsored functions to be viewed as bearing the

school’s imprimatur, and from the “coercive” pressures

of “mandatory attendance” and “peer pressure” facing

students. Edwards v. Aguillard, 482 U.S. 578, 584

(1987). Accordingly, “[t]he Court has been particularly

vigilant in monitoring compliance with the

Establishment Clause in . . . schools.” Id. at 583–84.

Faithful adherence to the Establishment Clause

ensures that students and their families have the

freedom to decide which faith, if any, they will

practice—free from governmental intrusion and direct

or subtle compulsion. By promoting inclusivity over

religious favoritism, public schools also avoid the

divisiveness that often occurs when the government

plays favorites with matters of faith:

The public school is at once the symbol

of our democracy and the most

pervasive means for promoting our

common destiny. In no activity of the

State is it more vital to keep out divisive

forces than in its schools. . . . The great

American

principle

of

eternal

separation . . . is one of the vital

reliances of our Constitutional system

17

for assuring unities among our people

stronger than our diversities.

McCollum v. Bd. of Ed. of Sch. Dist. No. 71 , 333 U.S.

203, 231 (1948).

2.

The Speech of On-Duty School Officials

at School-Sponsored Events Bears the

Strong Imprimatur of the School.

Public schools must welcome students of all

religions and those of none. That obligation is

compromised when school officials take it upon

themselves to convey (whether intentionally or not)

religious messages. Thus, where school officials

participate in “a religious activity, one of the relevant

questions is whether an objective observer,” would

“perceive” that activity as the school’s “endorsement of

prayer.” Santa Fe, 530 U.S. at 308 (quotation marks

omitted). As noted in the context of student speech,

schools may exercise “authority” over “expressive

activities that students, parents, and members of the

public might reasonably perceive to bear the

imprimatur of the school.” Hazelwood, 484 U.S. at

271. And with respect to religion specifically, a school

must not be “a prime participant” in “religious debate

or expression,” for the Framers sought to avoid

“indoctrinat[ion]”

and

“deemed

religious

establishment antithetical to the freedom of all.” Lee,

505 U.S. at 591–92.

Public schools thus have a constitutional duty

to prevent their personnel from engaging in behavior

that will place the school’s imprimatur on religious

doctrine or activity. To be sure, “schools do not endorse

everything they fail to censor,” Mergens, 496 U.S. at

18

250 (plurality op.), and neither students nor teachers

“shed their constitutional rights to freedom of speech

or expression at the schoolhouse gates,” Tinker v. Des

Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506

(1969). Indeed, the District respected this principle

when it offered Petitioner several accommodations

that would permit him to pray. But it does not follow,

as Petitioner suggests, Pet’r. Br. 38–40, that schools

must tolerate on-duty religious activity that will be

reasonably perceived as approved by the school, and

will undermine students’ own religious-freedom

rights.

Schools’ obligation to “accommodate the free

exercise of religion does not supersede the

fundamental

limitations

imposed

by

the

Establishment Clause.” Lee, 505 U.S. at 587. For

while the “Free Exercise Clause embraces a freedom of

conscience and worship, . . . the Establishment Clause

is a specific prohibition on . . . state intervention in

religious affairs.” Id. at 591. That prohibition is

grounded “in the lesson of history that . . . in the hands

of government what might begin as a tolerant

expression of religious views may end in a policy to

indoctrinate and coerce.” Id. at 592.

3.

The Coercive Pressures Faced by

Students Require Vigilance in Enforcing

the Establishment Clause in Public

Schools.

The Establishment Clause also prohibits the

government from coercing individuals into taking part

in religious practices. See Lee, 505 U.S. at 587 (“It is

beyond dispute that, at a minimum, the Constitution

19

guarantees that government may not coerce anyone to

support or participate in religion or its exercise . . . .”).

High school students are especially vulnerable

to this coercion for at least two mutually reinforcing

reasons: (1) they are “impressionable” vis-à-vis other

students and authority figures like teachers and

coaches, and (2) “their attendance” is often

“involuntary,” either in fact or in effect. Edwards, 482

U.S. at 584.

First, it is widely recognized that students tend

to “emulat[e] . . . teachers as role models,” id., and

“[r]esearch in psychology supports the common

assumption that adolescents are often susceptible to

pressure from their peers toward conformity, and that

the influence is strongest in matters of social

convention,” Lee, 505 U.S. at 593 (collecting sources);

see generally e.g., Br. for Psychology and Neuroscience

Scholars as Amici Curiae in Supp. of Resp’t.

Second, school events wield “great . . . coercive

power,” as students—unlike adults in most social

situations—often feel forced to hear, see, or actively

join in religious expression. Edwards, 482 U.S. at 584;

Tinker, 393 U.S. at 515 (observing that school-age

children, “like someone in a captive audience,” are

deprived of the “full capacity for individual choice

which is the presupposition of First Amendment

guarantees”) (Stewart, J., concurring).

As one

illustration, this Court struck down a statute

requiring that the Ten Commandments be posted on

the walls of every public school classroom, where

students would have no choice but to be exposed to the

display every day, Stone v. Graham, 449 U.S. 39

20

(1981), even though it sanctioned public presentations

of the Ten Commandments exhibited in other contexts,

Van Orden v. Perry, 545 U.S. 677, 681, 690 (2005)

(allowing public display of the Commandments on

grounds of Texas Capitol and distinguishing Graham

as involving “the classroom”).

Even when attendance is “not . . . required by

official decree,” this Court has acknowledged the

coercive pressures on students to participate with

teachers, coaches, and peers in school activities from

which they derive “intangible benefits.” Lee, 505 U.S.

at 595; see also, e.g., Abington, 374 U.S. at 224–25

(ability to opt out of school-sponsored prayer practice

does not cure Establishment Clause violation) (citing

Engel, 370 U.S. at 430). This is true not merely for

major milestones like a graduation, see Lee, 505 U.S.

at 596, but also for “extracurricular event[s]” such as

“American high school football” games, Santa Fe, 530

U.S. at 311. The “Constitution demands that schools

not force on students the difficult choice between

attending” school-related functions and “avoiding

personally offensive religious rituals.” Santa Fe, 530

U.S. at 292; see also, e.g., Freedom from Religion

Found., Inc. v. Concord Community Sch. , 885 F.3d

1038, 1048–49 (7th Cir. 2018) (whether a school has a

“policy allowing students to opt out of participating” in

a given activity “is irrelevant,” even when the option

has been “invoked,” because “a choice to participate or

miss out on a significant portion of the [extracurricular

activity] is an unconstitutional one”).

21

B. Petitioner’s On-Duty Prayers with Students

Violated the Establishment Clause.

Under this precedent, the District had a

reasonable basis to conclude that allowing Petitioner

to lead students in prayer while on duty and exercising

supervisory authority over them would violate the

Establishment Clause. A number of key contextual

factors—implicating both the imprimatur of the school

and the coercion of students—properly contribute to

that conclusion.

Location.

The football field is a coach’s

classroom, and team members are especially

susceptible to the coach’s influence. As discussed

above, this Court has made clear that “the risk of

compulsion is especially high” in the classroom setting,

and has recognized this risk translates to

“environment[s] analogous to [that] . . . setting.” Lee,

505 U.S. at 596. That is only more true with respect

to team sports. The field is where coaches, as

authority figures, lead their teams and represent their

schools. And as this Court observed in Santa Fe,

“school sporting events” generally bear the

imprimatur of a school, with “cheerleaders and band

members dressed in uniforms sporting the school

name and mascot,” and a school name “likely written

in large print,” a crowd that “will certainly include

many who display the school colors and insignia on

their school T-shirts, jackets, or hats and who may also

be waving signs displaying the school name.” Santa

Fe, 530 U.S. at 308; see also, e.g., Doe v. Duncanville,

70 F.3d 402, 406 (5th Cir. 1995) (recognizing the

stricture that the government may not “supersede the

22

fundamental

limitations

imposed

by

the

Establishment Clause” is “particularly true in the

instant context of [athletic] practices and games,” as

“[t]he challenged prayers take place during schoolcontrolled, curriculum-related activities that members

of the [sports] team are required to attend” (quotation

marks omitted)).

Professional Duties. Petitioner was responsible

for his athletes when he led them in prayer on the

field. The record is clear that “paid assistant coaches

in District athletic programs are responsible for

supervision of students not only prior to and during

the course of games, but also during the activities

following games and until players are released to their

parents or otherwise allowed to leave.” JA 91–92. The

team’s head coach “confirmed . . . that for over ten

years, all assistant coaches have had assigned duties

both before and after each game and have been

expected to remain with the team until the last

student has left the event.” JA 92. And Petitioner

concedes that he led these prayers while on duty.

Actual Coercion. The concern for coercion was

not abstract here. Students reported that they in fact

felt coerced to pray. App. 71; JA 186, 234, 356, 359.

One player participated—against his own beliefs—

because he feared he would lose playing time if he

declined. JA 234. In any event, this Court does not

“count heads before enforcing the First Amendment.”

McCreary, 545 U.S. at 884 (O’Connor, J., concurring).

That students felt coerced is no surprise, as the

District serves a religiously diverse community.

Kitsap County, where Bremerton is located, is home to

23

Jewish, Muslim, Hindu, Sikh, and Baha'i

congregations. See Assoc. of Religion Data Archives

(ARDA), Kitsap County (2010); www.thearda.com/

rcms2010/rcms2010.asp?U=53035&T=county&Y=201

0&S=Name (last visited Mar. 28, 2022); Josh Farley,

A Home of Their Own: Kitsap Muslims Finally Have

Mosque, Kitsap Sun, (Feb. 18, 2017); Kitsap Sikh

Temple,

https://www.kitsapsikhtemple.com

(last

visited Mar. 31, 2022). And within the Christian faith,

there are numerous denominations represented in the

region, see supra, ARDA, as well as a significant nonreligious population. See Steve Gardner, Survey

Finds Kitsap the Seventh Least Religious Area in the

Kitsap

Sun

(Apr.

13,

2022),

nation,

https://archive.kitsapsun.com/news/local/surveyfinds-kitsap-the-seventh-least-religious-area-in-thenation-ep-416449869-356169571.html.

Press Statements. The District also sensibly

recognized that Petitioner’s press statements made

clear to all that he viewed his prayers not as “an

internal act,” but as an outward-facing prayer meant

“for the benefit of the public.” See, e.g., Lund v. Rowan

Cty., N.C., 103 F. Supp. 3d 712, 728 (M.D.N.C. 2015),

aff’d, 863 F.3d 268 (4th Cir. 2017). Given this

publicity, the pressure on players to bow to the coach’s

avowed desires was all the more palpable—

particularly because they knew their decision to join

or opt out would be captured on video and potentially

broadcast to a wide audience. Petitioner also made

clear these prayer sessions were aimed at students,

stating: “If a kid is wanting to take a knee and a coach

comes over and prays with him, that’s a powerful

thing.

That’s supporting the kid.”

JA 54–55.

24

Petitioner contends that the District punished him for

his media blitz. Pet.’r Br. 18–19. Far from it: The

District properly “refus[ed] to turn a blind eye to the

context in which” Petitioner’s prayer arose. Santa Fe,

530 U.S. at 315.

Accommodations. Petitioner’s refusal to accept

any of the accommodations offered by the District

underscores that his prayers were neither personal

nor private, as he now insists. Indeed, the District

explicitly assured Petitioner it would accommodate his

desire to pray in a manner that would avoid

constitutional problems. In one of its many efforts, a

District representative wrote:

I wish to make it clear that religious

exercise that would not be perceived as

District endorsement, and which does

not otherwise interfere with the

performance of job duties, can and will be

accommodated.

Development

of

accommodations is an interactive

process, and should you wish to continue

to engage in private exercise while on the

job, the District will be happy to discuss

options for that to occur in a manner that

will not violate the law.

JA 93–94.

The fact that Petitioner refused any such

solution and insisted on praying at the 50-yard line

only underscores the reasonableness of the District’s

concern that his speech would be perceived as

endorsed by the school and required for team

members.

25

If an objective high school student “will

unquestionably perceive” pregame student-led prayers

delivered over the public address system or a

graduation invocation given by a rabbi “as stamped

with her school's seal of approval[,]” a coach leading

his players in prayer on the 50-yard line, while he is

still on duty, immediately after a game, will surely

result in the same understanding. See, e.g., Santa Fe,

530 U.S. at 308; Lee, 515 U.S. at 603–04 (Blackmun,

J., concurring); Borden, 523 F.3d at 166; Duncanville,

70 F.3d at 406–07; Steele v. Van Buren Pub. Sch. Dist.,

845 F.2d 1492, 1495 (8th Cir. 1988).

Moreover, that Petitioner apparently did not

explicitly tell his players that they must pray with him

does not change the coercive effect of Petitioner’s

practice: A high school football player would likely feel

pressured (as several explicitly stated) to participate

in these prayers. Football team members do not

lightly spurn post-game talks and huddles with their

coach. Not only do such talks and huddles provide

important physical and psychological togetherness,

but they involve an authority figure whom the players

seek to impress and from whom they seek to learn—a

coach who believes that he is, for some students, “the

most important person they encounter in their overall

life.” JA 323; see generally Br. of Former Professional

Football Players Obafemdi D. Ayanbadejo, Sr.,

Christopher J. Kluwe, and Frank T. Lambert, and

Various Collegiate Athletes & Coaches. And any

player hoping for more playing time or an opportunity

to play in college would, of course, feel obligated to

participate when his coach speaks to the team.

26

Even absent an express directive to pray, the

Establishment Clause prohibits imposing this choice

on students. See, e.g., Engel, 370 U.S. at 430 (“Neither

the fact that the prayer may be denominationally

neutral nor the fact that its observance on the part of

the students is voluntary can serve to free it from the

limitations of the Establishment Clause . . . .”); Mellen

v. Bunting, 327 F.3d 355, 372 (4th Cir. 2003) (in

context of military college, “[t]he technical

‘voluntariness’ of the supper prayer does not save it

from its constitutional infirmities,” as “[i]n the words

of the Supreme Court, ‘the government may no more

use social pressure to enforce orthodoxy than it may

use more direct means’” (quoting Santa Fe, 530 U.S. at

312)). Particularly in the team sports setting where

“all-for-one” is paramount, forcing upon students the

choice of joining in a prayer that does not comport with

their personal religious views, or isolating themselves

from the coach and team members, plainly sends a

“message to members of the audience who are

nonadherents that they are outsiders, not full

members of the . . . community, and an accompanying

message to adherents that they are insiders, favored

members of the . . . community.” Santa Fe, 530 U.S. at

309–10 (quotation marks omitted). As a student on

Petitioner’s team told reporters the day before the

October 16 prayer, commenting on the purpose of

Petitioner’s prayer: “It’s about unity.” Matt Calkins,

Why Bremerton Coach Joe Kennedy’s Stance on

Postgame Prayer is Admirable, Seattle Times (Oct. 15,

2015), https://bit.ly/3Cc9hNl (emphasis added).

To be sure, membership on a high school

football team, “unlike showing up for class, is certainly

27

not required in order to receive a diploma.” Santa Fe,

530 U.S. at 311. Students could simply choose not to

join the team if they wish to avoid Petitioner’s prayer

practice. But this Court’s First Amendment case law

“reaches past” that kind of “formalism”: “To assert

that high school students do not feel immense social

pressure, or have a truly genuine desire, to be involved

in the extracurricular event that is American high

school football is formalistic in the extreme.” Id. As

this Court has explained, the fact that a school activity

“is voluntary in a legal sense does not save the

religious exercise.” Lee, 505 U.S. at 596. “The

constitutional command will not permit the District to

exact religious conformity from a student as the price

of joining her classmates at a varsity football game,”

and it will not permit the Petitioner or the School

District to exact such conformity as the price for

playing on the team. See Santa Fe, 530 U.S. at 312

(quotation marks omitted).

In sum, a reasonable student, “aware of the

history and context” of Petitioner’s prayers, Santa Fe,

530 U.S. at 317 (citation omitted), would understand

that Petitioner used his official position as a coach to

lead his team members in prayer during a schoolsponsored event, on school grounds, and that some

students subjected to this religious practice felt

compelled to participate in it. Those indicia of an

Establishment Clause violation are more than enough

to justify the District’s action. Indeed, this persistent

series of events required the District to take action to

comply with the Establishment Clause and protect the

religious-freedom rights of students subjected to

Petitioner’s prayers.

28

C. Schools Are in the Best Position to Determine

Whether an Employee’s Behavior Poses a

Serious Risk of Violating the Establishment

Clause.

Ignoring the facts, Petitioner invokes a line of

cases standing for the unremarkable proposition that

a government entity “merely tolerating” religious

speech—typically, by permitting students or nonschool groups to pray on school property as part of a

public forum—“does not implicate Establishment

Clause concerns.” Pet’r. Br. 37. But these cases are

inapposite: Not one involved a school employee

speaking or engaging in religious exercise while on

duty and exercising supervisory authority at a schoolsponsored event. See Good News Club v. Milford

Central Sch., 533 U.S. 98 (2001) (private club

unaffiliated with school could meet after school on

school grounds to teach moral lessons from a religious

perspective in program not sponsored by the school);

Rosenberger v. Rector and Visitors of Univ. of Va. , 515

U.S. 819 (1995) (university student group that was

required to inform all third parties with whom the

group dealt that it was completely independent of the

university was entitled to receive school funds to

support printing of publication with a religious

viewpoint); Lamb’s Chapel v. Center Moriches Union

Free Sch. Dist., 508 U.S. 384, 394 (1993) (private group

unaffiliated with school could present after-school

films with religious elements on school grounds);

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

could use school facilities for religious discussion); see

also Capitol Square Review and Advisory Bd. v.

Pinette, 515 U.S. 753 (1995) (private group—the Ku

29

Klux Klan—unaffiliated with Ohio state government

could erect unattended cross on grounds of Ohio

capitol; no mention of schools at all).

Notably, in rejecting an Establishment Clause

claim, Mergens—a foundation of Petitioner’s

arguments before this Court—emphasized that it did

so because the contact between the student religious

group and faculty would be highly limited because the

faculty was prohibited from “participat[ing] in any

religious meetings,” and could not “promote, lead, or

participate in any such meeting.” 496 U.S. at 253

(plurality op.).

No such limitations applied to

Petitioner’s on-duty, on-field prayers, which

Petitioner, a school employee, not only participated in,

but also led. App. 70–71.

The Establishment Clause violation in this case

is clear. But even if it were not, the District is owed

deference in regulating the speech of its employees to

avoid potential Establishment Clause violations.

While “[m]ere speculation” regarding a potential

“violation of the Establishment Clause” is not grounds

to restrict speech, Peck v. Upshur Cty. Bd. of Ed., 155

F.3d 274, 287 (4th Cir. 1998) (citation omitted), it is

“sufficient if the [school] has a strong basis for concern”

that the contested activities “would violate the

Establishment Clause,” Bronx Household of Faith v.

Bd. of Educ. of City of New York, 650 F.3d 30, 40 (2d

Cir. 2011) (emphasis added); see also, e.g., Espinoza v.

Montana Dept. of Revenue, 140 S. Ct. 2246, 2254

(2020) (“We have recognized a play in the joints

between what the Establishment Clause permits and

the free Exercise Clause compels.” (quotation marks

30

omitted)).7 Were schools not entitled to act upon

reasonable Establishment Clause concerns, they

would find themselves on the razor’s edge between

liability for failing to protect the religious-freedom

rights of their students and liability for violating free

speech or free exercise rights of school officials.

In any event, here the line was as clear as the

50-yard line where Petitioner insisted on leading his

students in prayer. As an employer controlling

employee speech, and as a public school district

seeking to prevent an Establishment Clause violation,

the District did not violate Petitioner’s First

Amendment rights.

CONCLUSION

The judgment below should be affirmed.

Respectfully submitted,

David D. Cole

Daniel Mach

Heather L. Weavers

AMERICAN CIVIL

LIBERTIES UNION

FOUNDATION

915 15th St., N.W.

Kathleen R. Hartnett

Counsel of Record

K.C. Jaski

COOLEY LLP

3 Embarcadero Center

San Francisco, CA 94111

(415) 693-2000

See also, e.g., Nurre v. Whitehead, 580 F.3d 1087, 1099 (9th

Cir. 2009) (“The District had a legitimate interest in avoiding

what it believed could cause confrontation with the

Establishment Clause.” (emphasis added)); Stratechuk v. Bd. of

Ed., South Orange-Maplewood Sch. Dist., 587 F.3d 597, 605 (3d

Cir. 2009) (similar); Berry v. Dept. of Social Services, 447 F.3d

642, 651 (9th Cir. 2006) (similar).

7

31

Washington, DC 20005

khartnett@cooley.com

Cecillia D. Wang

AMERICAN CIVIL

LIBERTIES UNION

FOUNDATION

39 Drumm Street

San Francisco, CA 94111

Adam S. Gershenson

Elizabeth A. Trafton

Adam M. Katz

COOLEY LLP

500 Boylston St.

Boston, MA 02116

Nancy Talner

Kendrick Washington

Taryn M. Darling

AMERICAN CIVIL

LIBERTIES UNION OF

WASHINGTON

FOUNDATION

P.O. Box 2728

Seattle, WA 98111

Patrick J. Hayden

Victoria R. Pasculli

COOLEY LLP

55 Hudson Yards

New York, NY 10001

Counsel for Amici Curiae

April 1, 2022