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

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE WASHINGTON STATE

SCHOOL DIRECTORS’ ASSOCIATION AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

SAMUEL L. BRENNER

EVA HELLWIG

SAVANNA ARRAL

ROPES & GRAY LLP

Prudential Tower

800 Boylston Street

Boston, MA 02199

ANI-RAE LOVELL

CAROLINE MCHUGH

ROPES & GRAY LLP

1211 Avenue of the

Americas

New York, NY 10036

DOUGLAS HALLWARD-DRIEMEIER

Counsel of Record

ANDREW J. HOSEA

ROPES & GRAY LLP

2099 Pennsylvania Avenue, NW

Washington, DC 20006

(202) 508-4600

Douglas.Hallward-Driemeier

@ropesgray.com

NICOLE G. BRAMBILA

ROPES & GRAY LLP

Three Embarcadero

Center

San Francisco, CA 94111

Special Assistant Attorneys General and Counsel for The

Washington State School Directors’ Association

TABLE OF CONTENTS

Page

Interest of amicus curiae ................................................. 1

Summary of the argument .............................................. 3

Argument:

I. The Garcetti test appropriately balances First

Amendment concerns for public employees

engaged in public duties........................................... 4

II. Within the context of First Amendment speech

protection, there should not be special

treatment for religious speech as opposed to all

other speech ............................................................. 10

A.

This Court has wisely provided equal

First Amendment protection to all

forms of highly protected speech,

including both political and religious

speech ............................................................. 11

B.

Creating a carve-out to Garcetti

whenever a public school employee

claims to be engaged in religious

exercise would be unworkable.................... 15

1. School districts need to be able to

control their curricula and

message .................................................... 15

2. School districts need to be able to

prevent public school students from

being exposed to religious coercion ....... 19

(I)

II

Table of Contents—Continued:

Page

3. A religious speech carve-out to

Garcetti would require allowing all

religious speech, no matter how

inconsistent with the district’s

curriculum ................................................. 21

C.

Weakening or creating a religious

exception to Garcetti would both put

school districts at risk of liability

under discrimination laws and harm

students.......................................................... 23

Conclusion........................................................................ 28

III

TABLE OF AUTHORITIES

Page(s)

Cases:

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

Ct. 2067 (2019) ........................................................ 5

Arnett v. Kennedy, 416 U.S. 134 (1974) .................... 6

Borden v. Sch. Dist. of Twp. of E. Brunswick, 523

F.3d 153 (3d Cir. 2008) ......................................... 21

Borough of Duryea, Pa. v. Guarnieri, 564 U.S.

379 (2011) ................................................... 11, 13, 14

Capitol Square Rev. & Advisory Bd. v. Pinette,

515 U.S. 753 (1995) ............................... 5, 10, 12, 22

Christian Legal Soc. Chapter of the Univ. of Calif.,

Hastings Coll. of the L. v. Martinez, 561 U.S.

661 (2010) ............................................................... 27

Cloutier v. Costco Wholesale Corp., 390 F.3d 126

(1st Cir. 2004) ........................................................ 25

Connick v. Myers, 461 U.S. 138 (1983) ..................... 6

Cutter v. Wilkinson, 544 U.S. 709 (2005)................ 22

Edwards v. Aguillard, 482 U.S. 578 (1987) ............ 19

EEOC v. Abercrombie & Fitch Stores, Inc., 575

U.S. 768 (2015) ...................................................... 24

Engel v. Vitale, 370 U.S. 421 (1962) ........................ 20

Everson v. Bd. of Educ., 330 U.S. 1 (1947) ............. 21

Faragher v. City of Boca Raton, 524 U.S. 775

(1998) ...................................................................... 24

Garcetti v. Ceballos, 547 U.S. 410 (2006) ....... passim

IV

Case—Continued:

Page(s)

Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S.

274 (1998) ................................................................ 24

Gonzales v. O Centro Espírita Beneficente União

do Vegetal, 546 U.S. 418 (2006) ............................ 22

Griffin v. Thomas, 929 F.2d 1210 (7th Cir. 1991).... 12

Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260

(1988) ........................................................... 16, 17, 19

Houston Cmty. Coll. Sys. v. Wilson,

No. 20-804, 2022 U.S. LEXIS 1671 (2022).......... 12

Janus v. Am. Fed’n of State, Cty., & Mun. Emps.,

Council 31, 138 S. Ct. 2448 (2018) ....................... 24

Johnson v. Poway Unified Sch. Dist., 658 F.3d 954

(9th Cir. 2011) ................................................... 16, 21

Lee v. Weisman, 505 U.S. 577 (1992) .................. 11, 21

Lee v. York Cty. Sch. Div., 484 F.3d 687 (4th Cir.

2007)......................................................................... 17

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

477 (7th Cir. 2007) .................................................. 16

McDonald v. Smith, 472 U.S. 479 (1985)............ 11, 12

Milliken v. Bradley, 418 U.S. 717 (1974) ................... 6

Morse v. Frederick, 551 U.S. 393 (2007) ............. 13, 22

Peloza v. Capistrano Unified Sch. Dist., 37 F.3d

517 (9th Cir. 1994) .................................................. 21

Perry Educ. Assoc. v. Perry Local Educators’

Assoc., 460 U.S. 37 (1983) ..................................... 23

V

Case—Continued:

Page(s)

Pickering v. Bd. of Educ. of Twp. High Sch. Dist.

205, 391 U.S. 563 (1968)........................................... 5

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) ....... 10

Roberts v. Madigan, 921 F.2d 1047

(10th Cir. 1990) ................................................. 16, 21

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

515 U.S. 819. (1995)................................................ 23

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

(2000) ................................................................. 20, 21

Shelton v. Tucker, 364 U.S. 479 (1960) ..................... 15

Sweezy v. New Hampshire, 354 U.S. 234

(1957) ............................................................. 6, 16, 18

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393

U.S. 503 (1969).......................................................... 9

United States v. Ballard, 322 U.S. 78 (1944) ........... 25

Ward v. Hickey, 996 F.2d 448 (1st Cir. 1993) .......... 17

Waters v. Churchill, 511 U.S. 661 (1994) ................... 6

Widmar v. Vincent, 454 U.S. 263 (1981) ............ 13, 23

William v. Rhodes, 393 U.S. 23 (1968) ..................... 12

Constitutional amendment and statutes:

U.S. Const. Amend I .......................................... passim

1947 Wash. Sess., ch. 169, § 1 ....................................... 2

Every Student Succeeds Act, 20 U.S.C. 6301 et

seq. (2015) .................................................................. 8

Wash. Rev. Code Ann. § 28A.305.130 ......................... 8

VI

Statutes—Continued:

Page(s)

Wash. Rev. Code Ann. § 28A.345.020 ......................... 2

Wash. Rev. Code Ann. § 28A.345.030 ......................... 2

Miscellaneous:

Frank T. Brogan, Assistant Sec’y for Elementary

and Secondary Educ., U.S. Dep’t of Educ.,

Dear Colleague Letter: State Plan

Amendments, School Identification,

Reporting, and Technical Assistance (Oct. 24,

2019), https://www2.ed.gov/admins/lead/

account/stateplan17/schoolidandamendments10

2419.pdf ..................................................................... 8

John Dayton et al., Protected Prayer or Unlawful

Religious Coercion? Guarding Everyone’s

Religious Freedom in Public Schools by

Understanding and Respecting the Difference,

358 Ed. Law Rep. 673 (2018)................................ 19

Paul Forster, Teaching in a Democracy: Why the

Garcetti Rule Should Apply to Teaching in

Public Schools, 46 Gonz. L. Rev. 687 (2011) ...... 14

Daryl Johnson, Hate In God’s Name, Southern

Poverty Law Ctr. (Sept. 25, 2017),

https://www.splcenter.org/20170925/hategod%E2% 80%99s-name ....................................... 21

Seattle Public Schools, 2021-2022 Adopted Budget,

https://www.seattleschools.org/wpcontent/uploads/2021/08/ adopted22.pdf (last

visited Mar. 22, 2022) .......................................... 7, 8

VII

Miscellaneous—Continued:

Page(s)

The Washington State Board of Education,

Update on School Recognition and

Accountability (2019), https://www.sbe.wa.

gov/sites/default/files/public/meetings/Nov2019/1100s_SCHOOL%20REC

OGNITION%20AND%20ACCOUNTABILIT

Y_0.pdf ...................................................................... 8

U.S. Dep’t of Just.:

Combating Religious Discrimination Today

(July 2016), https://www.justice.gov/crt/file/

884181/download ............................................... 26

Resolution Agreement Between U.S. and

DeKalb County School District (May 2013),

https://www.justice.gov/sites/default/files/cr

t/legacy/2013/05/09/dekalbagree.pdf .............. 26

Washington Office of Superintendent of Public

Instruction, Notification of Discipline Actions,

https://www.k12.wa.us/educator-support/

investigations/notification-discipline-actions

(last visited Mar. 17, 2022)...................................... 7

In the Supreme Court of the United States

NO. 21-418

JOSEPH A. KENNEDY, PETITIONER

v.

BREMERTON SCHOOL DISTRICT

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE WASHINGTON STATE

SCHOOL DIRECTORS’ ASSOCIATION AS AMICUS CURIAE IN SUPPORT OF RESPONDENTS

INTEREST OF AMICUS CURIAE 1

Founded in 1922, the Washington State School Directors’ Association (WSSDA) is a statewide association

of all 1,477 locally elected school board directors from

Washington State’s 295 public school districts, including

the Respondent, Bremerton School District. Washington’s school districts serve more than 1.1 million students and employ more than 110,000 people. Nationwide, school districts like those represented by WSSDA

Both parties have filed blanket consent to the filing of amicus

curiae briefs. No counsel for any party authored this brief in whole

or in part, and no person or entity, other than amicus curiae or its

counsel, made a monetary contribution intended to fund the preparation or submission of this brief.

1

(1)

2

employ over 6 million teachers and another approximately 6 million non-certificated staff, including

paraprofessionals, custodians and other building maintenance personnel, school psychologists and social workers, bus drivers, and food service workers. Taken as a

whole, public school districts are the nation’s single largest government employer.

In 1947, the Washington State Legislature, recognizing “[t]he public necessity for the coordination of programs and procedures pertaining to policy making and

to control and management among the school districts of

the state,” authorized WSSDA as a state agency. 1947

Wash. Sess., ch. 169, § 1. WSSDA is governed by a board

of directors drawn from, and elected by, its statewide

membership. Wash. Rev. Code Ann. §§ 28A.345.020.030. WSSDA promotes efficient and effective school

district governance by, among other things, providing

Washington’s elected school board directors with a

broad array of trainings, leadership development, model

policies and procedures, and policy and legal guidance.

WSSDA is dedicated to the improvement of public

education in America and has long been involved in advocating for a reasonable balance between the obligation

of public schools to promote the efficiency of the public

education system and the private interests of employees

affected by governmental action. WSSDA regularly

represents its members’ interests before legislatures

and courts and has participated as amicus curiae in many

cases involving all aspects of public education, including

the Ninth Circuit’s decision below.

Amicus submit this brief to emphasize the significant adverse impact that reversing the Ninth Circuit's

3

decision would have on the operation of our nation’s public schools, including the schools in Washington State.

SUMMARY OF THE ARGUMENT

The framework established by this Court in Garcetti

v. Ceballos, 547 U.S. 410 (2006), to balance the First

Amendment interests of public employees with the

needs of public employers to control their own messages,

properly applies to this case. Petitioner’s statements

and communicative actions were spoken aloud, visible to

and inclusive of students and other school community

members while petitioner was on duty during a schoolsponsored event held on school grounds. Petitioner

therefore gained access, authority, and an audience only

available to him because of his public employment; as a

result, the school district—petitioner’s employer—had

both an interest and need to exercise control over his behavior. There can be little doubt that had petitioner, immediately after the game with players gathered around

him, used his coaching position to advocate for drug use,

or something else contrary to school policy, the school

would have had authority under Garcetti to discipline

him—even though such speech would be protected by

the First Amendment were he speaking outside the context of his employment. The school district’s interest in

controlling the message of its employees within the

scope of their employment remains the same regardless

of the topic or motivation of that speech.

A public school district’s instructional employees

speak for their employer as part of their everyday duties. Unlike other public employees, moreover, they often speak to a captive student audience. While school

district employers generally have no interest in regulat-

4

ing the religious or other constitutionally protected personal speech of their employees, that is not true when

speech is communicated in conjunction with the employees’ duties. Those duties, which include teaching the

curricula set by school districts, are integral to the educational mission of public schools.

This Court in Garcetti created an effective and appropriate rule governing whether and when public employers can regulate the speech of public employees.

Garcetti already applies to speech—including political

and religious speech—that deserves the highest level of

First Amendment protection. There is no basis for carving out a religious-speech exception to Garcetti to provide more protection for such speech than for all non-religious speech, no matter how important. Nor would it

be useful to do so. To the contrary, preventing school

districts from controlling what public employees teach

and how they interact with students—whenever these

employees articulate a religious basis for doing so—

would create an unworkable system and expose school

districts to liability for actions they are forbidden to control.

ARGUMENT

I.

THE GARCETTI TEST APPROPRIATELY BALANCES

FIRST AMENDMENT CONCERNS FOR PUBLIC EMPLOYEES ENGAGED IN PUBLIC DUTIES

In Garcetti v. Ceballos, 547 U.S. 410, 421-422 (2006),

this Court created a test for all speech that appropriately balances the First Amendment concerns of public

employees with the needs of their employers. This test

already addresses the exact situation presented in this

5

case: when and how public employers, like school districts, may regulate the religious speech of public employees. Under that test, First Amendment protection

applies only where public employees are speaking as private citizens, rather than as part of their official duties.

As this Court has made clear, the First Amendment’s Free Speech Clause protects all speech, both religious and non-religious. “[P]rivate religious speech, far

from being a First Amendment orphan, is as fully protected under the Free Speech Clause as secular private

expression.” Capitol Square Rev. & Advisory Bd. v. Pinette, 515 U.S. 753, 760 (1995) (citations omitted). Accordingly, “private religious speech [has been treated]

on an equal basis with secular speech.” American Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2093 (2019)

(Kavanaugh, J., concurring) (noting religious and secular

speech are treated equally in the context of public forums). Because highly protected speech, whether religious or non-religious, is treated the same, the constraints that apply to secular speech in a governmentcreated context must also apply to religious speech.

Consequently, regardless of whether speech is political, religious, or something else, the First Amendment’s

free speech protections for public employees apply only

when a public employee is engaged in speech as a private

citizen, rather than as part of their public duties. Garcetti, 547 U.S. at 421-422; see also Pickering v. Bd. of

Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563, 568

(1968). This framework allows a public employer, like a

school district, to control the messages of its employees

within the context of their employment, which is critical

for the employer’s ability to perform its vital functions.

After all, public employers “hire employees to help do

6

those tasks as effectively and efficiently as possible,”

and, therefore, when an employee “begins to do or say

things that detract from the agency’s effective operation, the government employer must have some power

to restrain [him or] her.” Waters v. Churchill, 511 U.S.

661, 675 (1994) (plurality opinion). Critically, the Garcetti framework strikes an appropriate balance by preserving “the liberties [that] employees enjoy in their capacities as private citizens” while off-duty. Garcetti, 547

U.S. at 419.

In the context of our nation’s public schools, the Garcetti test allows school districts to swiftly discipline or

terminate employees who put student education at risk

by failing to execute their responsibilities in the manner

prescribed by public officials. Such authority is consistent with case law that has long recognized the power

of school districts to control their policies and rules governing the employment and retention of teachers and

school staff. See, e.g., Milliken v. Bradley, 418 U.S. 717,

741 (1974) (Powell, J., concurring); Arnett v. Kennedy,

416 U.S. 134, 168 (1974). In fact, a school district’s educational control is of such crucial importance that Justice

Frankfurter noted that three of the four “essential freedoms” of a public educational institution were “to determine for itself on academic grounds who may teach, what

may be taught, [and] how it shall be taught.” Sweezy v.

New Hampshire, 354 U.S. 234, 263 (1957) (Frankfurter,

J., concurring). Not only is the Garcetti test necessary

for maintaining an appropriate degree of control by

school districts over their employees, it protects school

districts (and taxpayers) from undue First Amendment

claims because school districts “could not function if

every employment decision became a constitutional matter.” Connick v. Myers, 461 U.S. 138, 143 (1983). The

7

authority and clarity offered by Garcetti and its progeny

are therefore essential for school districts and other public employers nationwide.

The Garcetti framework, and the stability it provides, is even more important for public school districts

in an era of budget shortfalls. Public school districts rely

on limited governmental resources, which must be carefully allocated to pay for, among other things: safe and

adequate educational facilities, quality instructional materials and programs, competitive compensation to attract qualified teachers and staff, and other operating

expenses necessary for maintaining quality schools.

Like all employers, public school districts incur significant legal expenses defending against employee lawsuits. For example, in 2019-2020, Seattle Public Schools,

the largest public school district in Washington State,

spent $4,878,654 on districtwide legal costs, including

employee-related suits, despite having fewer than

11,000 public employees. Seattle Public Schools, 20212022 Adopted Budget 58, 13 https://www.seattleschools.org/wp-content/uploads/2021/08/adopted22.pdf

(last visited Mar. 22, 2022). Public school districts still

expend substantial resources related to employee misconduct even when lawsuits fail to materialize. 2 Frequently, these funds come from a school district’s general revenue treasury, the category of unrestricted mon-

2

Washington State conducted approximately 207 investigations resulting in educators’ licenses being surrendered, suspended,

or revoked in the five-year period beginning in 2012. Washington

Office of Superintendent of Public Instruction, Notification of Discipline Actions, https://www.k12.wa.us/educator-support/investig

ations/notification-discipline-actions (last visited Mar. 17, 2022).

8

ies usually directly tied to instructional resources, including textbooks, educational programming, and

teacher salaries. See, e.g., id. at 6, (noting that in 20212022 legal costs, in addition to other aspects of “Central

Administration,” amount to 6.1% of the Seattle Public

School’s General Fund, or roughly $68.5 million, while

teaching activities and support amount to approximately

71% of the General Fund, or roughly $798 million).

School districts are also increasingly subject to

higher expectations from both taxpayers and the federal

government, further underscoring the need for public

school districts to maintain control of their messages and

their employees. See, e.g., Frank T. Brogan, Assistant

Sec’y for Elementary and Secondary Educ., U.S. Dep’t

of Educ., Dear Colleague Letter: State Plan Amendments, School Identification, Reporting, and Technical

Assistance (Oct. 24, 2019), https://www2.ed.gov/adm

ins/lead/account/stateplan17/schoolidandamendments10

2419.pdf. Every state has passed some form of performance-based accountability—setting the standards for

content to be taught in the classroom, state-wide testing,

targets for student outcomes, and critically, sanctions or

remedial supports that are put in place if those outcomes

do not meet expectations. See, e.g., Wash. Rev. Code

Ann. § 28A.305.130 (the Washington State Board of Education’s purpose includes the “implement[ation of] a

standards-based accountability framework”); The

Washington State Board of Educ., Update on School

Recognition and Accountability 20-30 (2019),

https://www.sbe.wa.gov/sites/default/files/public/meeti

ngs/Nov-2019/1100s_SCHOOL%20RECOGNITION%

20AND%20ACCOUNTABILITY_0.pdf (discussing accountability measures). Performance-based accountability at the state level is also a linchpin of the Every

9

Student Succeeds Act, 20 U.S.C. 6301 et seq. (2015). Because academic achievement is inextricably tied to classroom instruction, this accountability presumes that

school districts can effectively manage employees and

the messages conveyed to students.

Of course, teachers and coaches have the right to exercise their religious beliefs when they are acting privately and not in their roles as public employees in leading students. Cf. Tinker v. Des Moines Indep. Cmty.

Sch. Dist., 393 U.S. 503, 506 (1969). Indeed, Garcetti, as

well as the Ninth Circuit’s decision below, permits public

employees to engage in a robust range of religious expression while on campus. Among other things, employees may: discuss their religious views with colleagues

near the water cooler in the teachers’ lounge, verbally

acknowledge their religious identities (e.g., Catholic,

Muslim, Jewish, atheist, etc.) to students if asked, pray

privately before a meal or during a designated break

from supervisory duties, or wear religious symbols that

do not interfere with their duties.

Nonetheless, once an employee’s speech becomes

government speech that bears the government’s imprimatur and influences students, such as when a teacher

speaks in the classroom or a coach interacts with players

on the football field, school districts must be able to regulate the employees’ conduct in order to fulfill their educational mission. The Free Exercise rights of individual

public employees should not be permitted to undermine

a public institution’s ability to carry out its mandate.

The Garcetti test therefore strikes an appropriate

balance: teachers and coaches are entitled to exercise

their personal religious beliefs when they are acting pri-

10

vately, but not when they are acting in their roles as public employees in leading and teaching students. Permitting teachers or coaches to lead prayers within the conduct of their public duties would frustrate the school district-employer’s ability to communicate its own message, risk coercing students to participate, and potentially expose school districts to liability for religious discrimination.

II. WITHIN T HE CONTEXT OF FIRST AMENDMENT

SPEECH PROTECTION, THERE SHOULD NOT BE

SPECIAL TREATMENT FOR RELIGIOUS SPEECH AS

OPPOSED TO ALL OTHER SPEECH

This Court’s jurisprudence has consistently treated

all forms of highly protected speech, including religious

and political speech, equally, providing each with the

highest form of First Amendment protection. As this

Court has explained, “[c]ore political speech occupies the

highest, most protected position” under the First

Amendment. See, e.g., R.A.V. v. City of St. Paul, 505

U.S. 377, 422 (1992) (Stevens, J., concurring). In turn,

“private religious speech * * * is as fully protected under

the Free Speech Clause as secular private expression.”

Capitol Square Rev. & Advisory Bd. v. Pinette, 515 U.S.

753, 760 (1995) (citations omitted).

Creating a religious-speech exception to Garcetti

would upset this longstanding balance by prioritizing religious speech over all other forms of speech, including

the most highly protected political speech. Such a carveout would create an unworkable system that would unduly burden school districts across the United States.

Among other things, this would prevent school districts

from exercising control over what teachers teach and

how public employees interact with students while on

11

campus or in the classroom. Such an exception would

also put school districts at heightened risk of legal liability by constitutionalizing employment disputes and hampering the ability of school districts to police discriminatory conduct by public employees—so long as those employees claim to be engaged in religious exercise.

A. This Court has Wisely Provided Equal First

Amendment Protection to All Forms of

Highly Protected Speech, Including Both Political and Religious Speech

All forms of highly protected speech are entitled to

equal protection under the First Amendment, particularly in the context of government employers (such as

school districts) and employees. See pp. 4-9, supra.

This Court has long declined to prioritize certain

First Amendment rights over others. For example, this

Court has treated the Free Speech Clause and the Petition Clause “with equal force,” even though these rights

may differ “in their mandate or their purpose and effect.” Borough of Duryea, Pa. v. Guarnieri, 564 U.S.

379, 388-389 (2011). Such equal treatment is based in

part on the fact that the United States’ different First

Amendment rights were “inspired by the same ideals of

liberty and democracy,” which have made these rights

“inseparable” from one another. See McDonald v.

Smith, 472 U.S. 479, 485 (1985). These rights include

“[t]he Free Exercise Clause[, which] embraces a freedom of conscience and worship * * * parallel[ed by] the

speech provisions of the First Amendment.” See Lee v.

Weisman, 505 U.S. 577, 591 (1992). Accordingly, as this

Court has recognized time and time again, “there is no

sound basis for granting greater constitutional protection” to certain First Amendment clauses than “other

12

First Amendment expressions.” See McDonald, 472

U.S. at 485. A different approach would establish,

“among first amendment expression rights, a hierarchy

of labels,” something which “[t]he Supreme Court [has]

emphatically eschewed establishing.”

Griffin v.

3

Thomas, 929 F.2d 1210, 1213 (7th Cir. 1991).

Protecting religious speech more than other speech,

such as political speech, would contradict the longstanding understanding of this Court that political speech is

at the core of the First Amendment, and thus entitled to

the highest level of protection. As this Court observed

in William v. Rhodes, 393 U.S. 23, 32 (1968), political debate “is at the core of our electoral process and of the

First Amendment freedoms.” And just this term, this

Court reiterated that, “ ‘[w]hatever differences may exist about interpretations of the First Amendment, there

is practically universal agreement’ that it was adopted

in part to ‘protect the free discussion of governmental

affairs.’ ” Houston Cmty. Coll. Sys. v. Wilson, No. 20804, 2022 U.S. LEXIS 1671, at *16 (2022) (quoting Mills

v. Alabama, 384 U. S. 214, 218 (1966)). A religiousspeech exception to Garcetti would instead mean that

political speech is not entitled to the highest level of

First Amendment protection. But there is no basis for

Contrary to petitioner’s claims, a majority of this Court has

never held that religious speech should receive more protection

than all non-religious speech—even speech, such as political speech,

calling for the highest level of First Amendment protection. Compare Capitol Square Rev. & Advisory Bd. v. Pinette, 515 U.S. 753,

760 (1995) (majority opinion emphasizing that private religious

speech is “as fully protected under the Free Speech Clause as secular private expression”), with id. at 767 (plurality opinion remarking

that private religious expression may “receive preferential treatment under the Free Exercise Clause”).

3

13

such a holding in the Constitution, this Court’s case law,

or even the understanding of the framers. Cf. Federalist

No. 51 (James Madison) (“In a free government the security for civil rights must be the same as that for religious rights.”). 4

Elevating certain First Amendment rights over

others is not only unmoored from our Constitution’s text

and history, it would be impractical. After all, “[a] different rule for each First Amendment claim would * * *

add to the complexity and expense of compliance with

the Constitution” and “burden the exercise of legitimate

authority.” Guarnieri, 564 U.S. at 393, 391. Relevant

here, requiring public employers to delineate between

different First Amendment claims, tests, and types of

speech would overburden public school districts, which

are already struggling to manage daily operations and

fulfill a multitude of public missions. School administrators are not “lawyers” and “the law should not demand

that they fully understand the intricacies of our First

Amendment jurisprudence.” Morse v. Frederick, 551

U.S. 393, 427 (2007) (Breyer, J., dissenting in part). After all, even federal courts, including this one, have

struggled to discern which First Amendment right specifically applies in some contexts. See, e.g., Widmar v.

Vincent, 454 U.S. 263, 269 n.6 (1981) (finding no clear line

between religious speech under the Free Exercise and

Free Speech clauses, and cautioning that doing so would

“inevitably [] entangle the State with religion in a manner forbidden by our cases”).

As discussed further below, such a distinction would not be

administrable given that a speaker’s position on almost any political

topic can be informed or motivated by religious belief. See p. 17,

infra.

4

14

Complicating matters, injecting additional judicial

scrutiny into employment matters could “raise serious

federalism and separation-of-powers concerns” if courts

were routinely asked to intervene in the employment decisions of public entities such as school districts. Guarnieri, 564 U.S. at 391; see also Paul Forster, Teaching in

a Democracy: Why the Garcetti Rule Should Apply to

Teaching in Public Schools, 46 Gonz. L. Rev. 687, 700701 (2011) (“The federal courts should not be made a ‘super-personnel department’ for teachers.”). Public employers must “manage [their] internal affairs,” “including working conditions, pay, discipline, promotions,

leave, vacations, and terminations * * * [b]udget priorities, personnel decisions, and substantive policies,” but

cannot do so effectively if faced with “invasive judicial

superintendence.” Guarnieri, 564 U.S. at 390-391. A religious-speech exception to Garcetti would do just that

by interfering with the efficient administration of public

entities, unduly complicating (and constitutionalizing)

employment disputes, and requiring school administrators (for example) to become adjudicators of multiple

arenas of constitutional law.

The rule in Garcetti, which is appropriate to protect

the First Amendment rights of public employees engaged in political speech at the core of the First Amendment, is similarly appropriate to protect the First

Amendment rights of those same employees engaged in

religious speech. Regardless of whether an employee’s

speech is religious or non-religious, school district employers should have the power to regulate that speech

15

while the employee is on duty, and when the speech is

public, on campus, and involves students. 5

B. Creating a Carve-Out to Garcetti Whenever a

Public School Employee Claims to Be Engaged in Religious Exercise Would Be Unworkable

Carving out speech that an employee claims as religious exercise from Garcetti would be unworkable, for at

least three reasons. First, school districts need to be

able to exercise appropriate control over curricula,

teachers, and coaches, so as not to muddy the district’s

own message. Second, school districts need to regulate

employee speech to ensure that students are not exposed to religious coercion. And third, creating a Garcetti carve-out for religious speech would require school

districts to permit all religious speech engaged in by

public employees, regardless of the speaker or how inconsistent the speech is with the district’s curriculum.

1. School Districts Need to Be Able to Con-

trol Their Curricula and Message

As this Court has recognized, the state “has a vital

concern” in what teachers teach, as they are “shap[ing]

the attitude of young minds towards the society in which

they live.” See Shelton v. Tucker, 364 U.S. 479, 485

(1960). States and school districts therefore unquestion-

5

Though the school district is correct that religious speech may

violate the Establishment Clause (which political speech would not),

this brief does not argue that a school district must regulate religious speech more heavily than other types of protected speech,

only that schools must be able to regulate religious speech to the

same degree as political speech.

16

ably have the right and responsibility to create curriculum guidelines governing “what may be taught” and

“how it shall be taught.” Sweezy v. New Hampshire, 354

U.S. 234, 263 (1957) (Frankfurter, J., concurring) (concerning universities). But without the power to regulate

the on-duty speech and expression of employees, school

districts would lack the ability to dictate what is

taught—and would thus be unable to carry out this vital

function. Put simply, teachers and coaches, when engaged in public duties, must stick to and abide by the

curriculum set by the school district, even though they

retain their rights to speak freely in other contexts. See,

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

477, 478-480 (7th Cir. 2007) (noting that the First

Amendment does not entitle teachers to cover topics or

advocate for views that depart from the curriculum).

Teachers, coaches, and other staff are the embodiments of the school district and thus convey the district’s

message in their work with students. When employees

speak with students, they speak with the voice of the

school district and they stand as the district’s representatives in the everyday work of schools, as academic and

life lessons are imparted in classrooms and on athletic

fields. In other words, teachers and other school employees “necessarily act as teachers * * * when at school

or a school function, in the general presence of students,

[and] in a capacity one might reasonably view as official.”

Johnson v. Poway Unified Sch. Dist., 658 F.3d 954, 968

(9th Cir. 2011) (citation omitted). Even apart from the

need to control the curriculum itself, school districts

need the authority to regulate employee speech that

“bear[s] the imprimatur” of the school. See Hazelwood

Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 271 (1988); Roberts

v. Madigan, 921 F.2d 1047, 1059 (10th Cir. 1990) (holding

17

that a school’s ban of the fifth-grade teacher’s display of

religious décor and classroom reading of the Bible was

proper because it might reasonably be perceived to bear

the imprimatur of the school); Ward v. Hickey, 996 F.2d

448, 453 (1st Cir. 1993) (“Courts have long recognized the

need for public school officials to assure that * * * the

views of the individual speaker are not erroneously attributed to the school.”).

A religious exercise carve-out to Garcetti would

raise the prospect of teachers, coaches, and other school

staff claiming a right to teach in accordance with their

religious beliefs—regardless of what their school district

actually requires. Under petitioner’s view, a school

would have to allow a football coach to engage in a religious prayer in the middle of the football field following

a game even if students were participating. Nonetheless, if that same coach stopped praying and instead gave

a political speech or held a political sign with students

participating, the school could regulate that behavior to

avoid “associat[ing] the school with any position other

than neutrality on matters of political controversy.” Hazelwood Sch. Dist., 484 U.S. at 272. Yet if that same

coach went to the middle of the field after the game and

involved students in a prayer for a particular politician

to win an election or for a particular political outcome, it

would be entirely unclear which rule would apply. This

lack of clarity is magnified by the fact that a person’s

faith likely informs that person’s views on many important issues, including their political positions. Not

only would this result in substantial disparities and confusion regarding the regulation of employee speech,

school districts would lose control of their curricula and

their educational messages. See Lee v. York Cty. Sch.

18

Div., 484 F.3d 687, 700 (4th Cir. 2007); see also Sweezy,

354 U.S. at 255, 263-264.

Though there are innumerable examples, contemplating a few more may be illustrative. For example,

consider a science teacher who insists on questioning the

scientific basis for the theory of evolution, though that is

part of the curriculum.

Or imagine a comparative religion teacher who informs his students that only one faith is correct and that

believers in all other faiths will go to hell. A student

writing a research paper for that class will reasonably

fear that failing to incorporate those views would risk

their standing in the class.

In situations like these, promptly correcting or sanctioning employees who are unwilling to meet the heightened expectations of today’s schools is imperative. But

these functions would be severely impeded if public employees could assert that any employment or managerial

decision they disagreed with was in retaliation for their

on-duty religious expression involving students.

A Garcetti carve-out would do just that. If religious

exercise was exempted from Garcetti, school districts

would be unable to control what teachers and coaches

are doing in these examples because the districts would

be unable to draw the line between which employee

speech may be regulated and which may not. Even if

school districts could draw the line, districts may fear

the operational disruptions and litigation costs arising

from new and uncharted First Amendment claims.

Should a school district seek to discipline any of these

teachers for failing to follow the district’s chosen curriculum, the teachers could assert costly claims against the

19

school. Even if such claims are unsuccessful, that prospect would necessarily impact the school district’s behavior and the educational experience of students.

2. School Districts Need to Be Able to Prevent

Public School Students from Being Exposed to

Religious Coercion

Just as importantly, school districts must be free to

control the speech of employees engaged in public duties

to ensure that students are not exposed to religious coercion. What might be seen as personal religious expression for some may veer into proselytization for others,

who feel compelled to go along with what their teachers

and coaches say. Such situations would endanger the

trust that families put in schools to educate their children “on the understanding that the classroom will not

purposely be used to advance religious views that may

conflict with the private beliefs of the student and his or

her family.” Edwards v. Aguillard, 482 U.S. 578, 584

(1987). At the very least, schools would no longer “retain

the authority to refuse to * * * associate the school with

any position other than neutrality” in sensitive or controversial matters such as religion. See Hazelwood Sch.

Dist., 484 U.S. at 272.

Of course, not all religious speech by public school

employees engaged in their official duties is necessarily

coercive—but it has the capacity to be. Because of compulsory attendance laws, impressionable students are a

captive audience left vulnerable to the “great authority

and coercive power” that teachers and coaches wield as

the mouthpiece of the State. Edwards, 482 U.S. at 584.

And importantly, they only have this authority “because

they are acting as teachers and coaches, not because

they are acting as private citizens.” John Dayton et al.,

20

Protected Prayer or Unlawful Religious Coercion?

Guarding Everyone’s Religious Freedom in Public

Schools by Understanding and Respecting the Difference, 358 Ed. Law Rep. 673, 688 (2018). The potential for

coercion, as this Court has recognized, applies beyond

the classroom due to the “immense social pressure, or

truly genuine desire, felt by many students to be involved in extracurricular event[s] [such as] American

high school football.” Santa Fe Indep. Sch. Dist. v. Doe,

530 U.S. 290, 292 (2000) (citation omitted)).

The potential for coercion, and the school’s need to

properly regulate it, is particularly important for a

school district’s ability to safeguard the education of religious minorities in a pluralistic society. This Court has

consistently noted that when “the power, prestige and

financial support of government is placed behind a particular religious belief, the indirect coercive pressure

upon religious minorities to conform to the prevailing officially approved religion is plain.” Engel v. Vitale, 370

U.S. 421, 431 (1962). While religious endorsement or coercion by public school employees may not be apparent

to all, it is “obvious to members o[f] minority faiths who

are made to feel like religious outsiders in their own

schools and communities.” Dayton, 358 Ed. Law Rep. at

692. These students “must choose between turning their

backs on their own family faith or on their

teacher/coach,” “risking their relationship with the

teacher/coach, their social standing, and even their

safety.” Id. at 692-693. To protect these students,

schools must be able to prevent “students [from facing]

the difficult choice between attending these [activities]

and avoiding personally offensive religious rituals.”

Santa Fe Indep. Sch. Dist., 530 U.S. at 312 (citation omitted).

21

For these reasons, among others, this Court and the

courts of appeals have wisely rejected on-campus religious expressions by public school employees towards

students in order to avoid the inevitable disruptions and

divisions that would result from these practices. See,

e.g., Santa Fe Indep. Sch. Dist., 530 U.S. at 316-317; Lee,

505 U.S. at 598-599; Johnson v. Poway Unified Sch.

Dist., 658 F.3d 954, 968 (9th Cir. 2011); Borden v. Sch.

Dist. of Twp. of E. Brunswick, 523 F.3d 153, 174-179 (3d

Cir. 2008); Peloza v. Capistrano Unified Sch. Dist., 37

F.3d 517, 522-523 (9th Cir. 1994); Roberts, 921 F.2d at

1059.

3.

A Religious Speech Carve-Out to Garcetti

Would Require Allowing All Religious

Speech, No Matter How Inconsistent with the

District’s Curriculum

If this Court creates a religious-speech carve-out to

Garcetti for public employees, public school districts will

have to permit almost all religious speech—regardless of

how antithetical it is to the school’s curriculum or policies. After all, the government cannot “prefer one religion over another.” See, e.g., Everson v. Bd. of Educ.,

330 U.S. 1, 15 (1947). Schools would undoubtedly face

additional litigation costs and difficulties if they permit

some religious expressions and not others.

But some religious speech is, at the very least, seriously in tension with, if not directly contrary to, the

school’s educational mission. For example, certain

groups claiming to be religious state that some races are

superior to others. See, e.g., Daryl Johnson, Hate In

God’s Name, Southern Poverty Law Ctr. (Sept. 25,

2017), https://www.splcenter.org/20170925/hate-god%E

2%80%99s-name. As Justice Thomas has observed, the

22

Ku Klux Klan itself cloaks its racial bigotry in a religious

message, claiming “to establish a Christian government

in America.” Capitol Square Rev., 515 U.S. at 771

(Thomas, J. concurring). Indeed, throughout history,

many religions have advocated for the persecution of or

violence towards those who refuse to subscribe. Many

religions may advocate other positions—such as the use

of psychedelic drugs, or even the worship of evil—that

are directly antithetical to a school district’s mission, policies, and curriculum. See, e.g., Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418 (2006)

(concerning ritual use of a Schedule I controlled substance by a religious organizations); Cutter v. Wilkinson, 544 U.S. 709 (2005) (holding that facilities that

accept federal funds cannot deny prisoners accommodations necessary to engage in “nonmainstream” religions,

including Satanism).

With respect to at least one such example, this

Court has concluded that schools may penalize a student’s speech “promoting illegal drug use,” notwithstanding a potential religious association. See Morse,

551 U.S. at 403 (upholding punishment for student who

displayed banner reading “BONG HiTS 4 JESUS”).

While a school could undoubtedly order teachers or

coaches engaged in their duties to refrain from promoting illegal drug use, if there was a Garcetti carve-out for

religious speech, the school could no longer do so if those

teachers or coaches were promoting illegal drug use as a

matter of religious expression. The same would presumably hold true for religious speech expressing other

ideas antithetical to the district’s policies and curriculum. A religious-speech exception to Garcetti would

23

therefore prevent school districts from regulating harmful speech and further jeopardize a school district’s ability to regulate its own message.

As a further complication, additional religious expression on campus runs the risk of community members

of all religions claiming school grounds as a public forum

where they can make similar demonstrations of their

faith. 6 That is just what happened in this case, when Satanists sought to engage in religious demonstrations after the football games at question. J.A. 99-100, 181. The

administrative burden of fielding such requests, along

with ensuring the safety and constitutionality of such

demonstrations, is an unwarranted interference with the

school district’s mission.

C. Weakening or Creating a Religious Exception

to Garcetti Would Both Put School Districts

at Risk of Liability under Discrimination

Laws and Harm Students

Given that public institutions are liable for the actions of their employees, the Garcetti standard recognizes that school districts must be able to control the distasteful speech of their employees. Garcetti thus provides valuable guidance and a clear framework for school

If the government opens the school for private expression, it

risks becoming a “limited” public forum, at which the school would

have a more difficult time justifying any regulation of speech. See

Perry Educ. Assoc. v. Perry Local Educators’ Assoc., 460 U.S. 37,

46-47 (1983). If, as petitioner asserts, the speech of public school

employees is private expression, the government risks converting

the football field to a public forum at which other private individuals

may consequentially be entitled to speak. See Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 828-831. (1995); Widmar v. Vincent, 454 U.S. 263, 267-268 (1981).

6

24

districts that must police the discriminatory remarks of

those employees or face legal liability.

As employers, school districts may be subject to liability when their employees engage in discriminatory

behavior within the scope of their employment, including for religious discrimination. See, e.g., Faragher v.

City of Boca Raton, 524 U.S. 775, 807 (1998) (“employer

is subject to vicarious liability” under Title VII); EEOC

v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 771

(2015) (employers may be sued for religious discrimination); Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S.

274, 290 (1998) (school can be liable for sexual harassment by teacher with actual notice). This liability is consistent with this Court’s recent observation that,

“[w]hen an employee engages in speech that is part of

the employee’s job duties, the employee’s words are really the words of the employer.” Janus v. Am. Fed’n of

State, Cty., & Mun. Emps., Council 31, 138 S. Ct. 2448,

2474 (2018). For example, if a coach, still present on the

field with at least some players following a game, were

to use racially derogatory or sexually explicit language

towards a student, the school district—and not just the

employee—could be subject to liability.

As Garcetti recognizes, school districts would be

well within their rights to discipline employees for such

speech, even if that same speech, spoken off campus,

might be protected. In fact, the school would likely be

subject to liability for not responding to the coach’s

speech, given that the coach was within the scope of his

or her employment. The same liability concerns would

be present when a coach engages in discriminatory behavior or speech during a prayer. What if the coach engaged in a prayer saying his or her God is the one true

25

god and the believers of other faiths are doomed to eternal damnation? What if the prayer proclaimed that Jews

killed Jesus? What if a coach said one race was superior

to another, but claimed it was part of his religious expression? See pp. 21-22, supra.

A weakened Garcetti framework, such as a Garcetti

carve-out for religious expression, would treat discriminatory conduct differently based on whether an employee claims it was rooted in religious exercise. 7 This

would put school districts in the untenable position of

choosing between their legal responsibility to protect

students and employees from the discriminatory speech

of public employees and unlawfully punishing discriminatory speech by those same public employees when the

speech is part of a claimed exercise of religion. Apart

from the unfairness and unworkability of such a situation, school districts would waste their limited resources

on strenuous line-drawing exercises and lengthy legal

battles.

It would be no answer to permit school districts to discipline

religious expression that is discriminatory, because some core religious tenets necessarily discriminate between those who (in the

eyes of that religion) adhere to the true faith and those who do not.

Regardless, such a rule would require schools and courts to evaluate

the contents of an employee’s religious speech, thus presenting additional and inappropriate grounds upon which to litigate. See generally United States v. Ballard, 322 U.S. 78, 87-88 (1944) (concluding

that the government lacks power to judge the truth of religious beliefs); see also Cloutier v. Costco Wholesale Corp., 390 F.3d 126, 132

(1st Cir. 2004) (“Determining whether a belief is religious is more

often than not a difficult and delicate task, one to which the courts

are ill-suited.” (internal quotation marks and citation omitted)).

7

26

Diminishing the ability of school districts to police

religious discrimination would also further expose students to religious harassment—already a problem in our

nation’s public schools. In a 2016 Department of Justice

report, the Department found that “teachers may play

[a role] in contributing to or otherwise perpetuating student harassment.” U.S. Dep’t of Just., Combating Religious Discrimination Today 13 (July 2016),

https://www.justice.gov/crt/file/884181/download.

Among other things, the report recognized that “promot[ing] one or more religions as being superior could

foster an environment in which harassment of students

based on their religion or perceived religion was deemed

acceptable.” Ibid. This is all the more problematic given

that religious minorities are already subjected to substantial harassment in public schools. For example, the

Department intervened in a lawsuit in 2003 brought by

a father against a school district for allegedly suspending

a sixth-grader for wearing a hijab in school. Consent Order, Hearn v. Muskogee Pub. Sch. Dist. 020, No. 03-cv598 (E.D. Okla., May 2004), https://www.justice.gov

/sites/default/files/crt/legacy/2010/12/14/hearnokor2.pdf.

This resulted in a six-year consent order and confidential

damages settlement. Ibid. In 2012, the Department investigated a complaint alleging that a middle school student in Atlanta, Georgia had been repeatedly targeted

with verbal and physical harassment because of his Sikh

faith. U.S. Dep’t of Just., Resolution Agreement Between U.S. and DeKalb County School District (May

2013), https://www.justice.gov/sites/default/files/crt/leg

acy/2013/05/09/dekalbagree.pdf. As a result, the Department entered into a resolution agreement with the

school district. Ibid.

27

A Garcetti carve-out for religious expression would

exacerbate instances of religious harassment like those

detailed above and make it harder for school districts to

prevent such harassment in the first place. Not only

would this hamper the ability of school districts to maintain a welcoming educational atmosphere, it would upset

the trust that students, parents, and taxpayers place in

our public school systems.

* * * * *

The Garcetti standard provides school districts and

public employees with a clear set of standards for managing employee speech on campus, whether such speech

is religious or secular. A religious exception to Garcetti

would prioritize religious speech above all other speech,

prevent public schools from fulfilling their educational

missions, and potentially subject students to additional

religious coercion, discrimination, and harassment. Such

an exception would also inject schools into new legal battlegrounds and thrust courts into endless employment

disputes that school districts are better equipped to handle. See Christian Legal Soc. Chapter of the Univ. of

Calif., Hastings Coll. of the L. v. Martinez, 561 U.S. 661,

686 (2010) (stating “judges lack the on-the-ground expertise and experience of school administrators”). This

Court should therefore preserve its ruling in Garcetti,

which already appropriately balances when public employers may regulate employee speech.

28

CONCLUSION

For the foregoing reasons, the judgment of the court

of appeals should be affirmed.

Respectfully submitted,

DOUGLAS HALLWARD-DRIEMEIER

SAMUEL L. BRENNER

ANI-RAE LOVELL

ANDREW J. HOSEA

NICOLE G. BRAMBILA

CAROLINE MCHUGH

EVA HELLWIG

SAVANNA ARRAL

ROPES & GRAY LLP

APRIL 2022

Special Assistant Attorneys General

and Counsel for The Washington

State School Directors’ Association