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 FOR AASA, THE SCHOOL SUPERINTENDENTS ASSOCIATION, ET AL.

AS AMICI CURIAE SUPPORTING

RESPONDENT

PAUL W. HUGHES

MICHAEL B. KIMBERLY

McDermott Will &

Emery LLP

500 N. Capitol Street,

NW

Washington, DC 20001

CHARLES A. ROTHFELD

Counsel of Record

ANDREW J. PINCUS

Mayer Brown LLP

1999 K Street, NW

Washington, DC 20006

(202) 263-3000

crothfeld@mayerbrown.com

(Counsel continued on inside cover)

Counsel for Amici Curiae

EUGENE R. FIDELL

Yale Law School

Supreme Court Clinic

127 Wall Street

New Haven, CT 06511

i

TABLE OF CONTENTS

Page

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

INTRODUCTION AND SUMMARY OF

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

ARGUMENT .............................................................. 6

I.

II.

III.

Kennedy’s speech had coercive and

disruptive effects. ............................................ 6

A.

Kennedy recited audible and

obtrusive prayers while he acted

in his capacity as a school coach. ......... 7

B.

The record demonstrates that the

District acted reasonably. ................... 12

Religious conduct like Kennedy’s

undermines public schools’ educational

mission. .......................................................... 17

A.

School officials have a duty to

ensure that schools are safe and

productive learning

environments. ..................................... 18

B.

Superintendents and principals

must be able to impose

reasonable limits on employees’

religious activity. ................................ 19

C.

A rule permitting conduct like

Kennedy’s would be impossible to

administer and would remake the

nation’s classrooms. ............................ 25

Kennedy’s First Amendment claims fail. ..... 29

ii

TABLE OF CONTENTS—continued

Page

CONCLUSION ......................................................... 33

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Abington Twp. Sch. Dist. v. Schempp,

374 U.S. 203 (1963) .............................................. 31

Allen v. Sch. Bd. for Santa Rosa Cnty.,

Fla.,

782 F. Supp. 2d 1304 (N.D. Fla.

2011) ..................................................................... 20

Am. Humanist Ass’n, Inc. v. Douglas

Cnty. Sch. Dist. RE-1,

328 F. Supp. 3d 1203 (D. Colo. 2018) ............ 20, 21

Am. Humanist Ass’n. v. S.C. Dep’t of

Educ.,

108 F. Supp. 3d 355 (D.S.C. 2015)....................... 23

Am. Legion v. Am. Humanist Ass’n,

139 S. Ct. 2067 (2019) ......................................... 31

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

Brunswick,

523 F.3d 153 (3d Cir. 2008) ........................... 30, 31

Cal. Parents for the Equalization of

Educ. Materials v. Torlakson,

973 F.3d 1010 (9th Cir. 2020) .............................. 22

Doe v. Duncanville Indep. Sch. Dist.,

994 F.2d 160 (5th Cir. 1993) ................................ 24

Doe v. Duncanville Indep. Sch. District,

70 F.3d 402 (5th Cir. 1995) .................................. 31

Engel v. Vitale,

370 U.S. 421 (1962) .............................................. 31

iv

TABLE OF AUTHORITIES—continued

Page(s)

Espinoza v. Mont. Dep’t of Revenue,

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

Exxon Co., U.S.A. v. Sofec, Inc.,

517 U.S. 830 (1996) .............................................. 13

Faulkner v. Univ. of Cincinnati,

173 F. Supp. 3d 575 (S.D. Ohio 2016) ................. 22

Freshwater v. Mt. Vernon City Sch. Dist.

Bd. of Educ.,

1 N.E.3d 335 (Ohio 2013)............................... 21, 22

Garcetti v. Ceballos,

547 U.S. 410 ................................................... 29, 30

Graver Tank & Mfg. Co. v. Linde Air

Prods. Co.,

336 U.S. 271 (1949) .............................................. 13

Knight v. Connecticut Dep’t of Pub.

Health,

275 F.3d 156 (2d Cir. 2001) ................................. 30

Kountze Indep. Sch. Dist. v. Matthews

ex rel. Matthews,

No. 09-13-00251-CV, 2017 WL

4319908 (Tex. App. Sept. 28, 2017) ..................... 23

Lamb’s Chapel v. Ctr. Moriches Union

Free Sch. Dist.,

508 U.S. 384 (1993) .............................................. 31

Lee v. Weisman,

505 U.S. 577 (1992) .................................. 23, 25, 31

Lee v. York City School Div.,

484 F.3d 687 (4th Cir. 2007) ................................ 30

v

TABLE OF AUTHORITIES—continued

Page(s)

Mahanoy Area Sch. Dist. v. B. L. ex rel.

Levy,

141 S. Ct. 2038 (2021) .......................................... 24

Marchi v. Bd. of Coop. Educ. Servs. of

Albany,

173 F.3d 469 (2d Cir. 1999) ........................... 29, 32

A.M. ex rel. McKay v. Taconic Hills

Cent. Sch. Dist.,

510 F. App’x 3 (2d Cir. 2013) ............................... 23

New Jersey v. T. L. O.,

469 U.S. 325 (1985) .............................................. 19

Nurre v. Whitehead,

580 F.3d 1087 (9th Cir. 2009) .............................. 23

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

Sch. Dist. 205,

391 U.S. 563 (1968) ........................................ 30, 31

Ryan v. Mesa Unified Sch. Dist.,

195 F. Supp. 3d 1080 (D. Ariz. 2016) .................. 25

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

530 U.S. 290 (2000) .............................................. 31

The Monrosa v. Carbon Black, Inc.,

359 U.S. 180 (1959) .............................................. 17

Warnock v. Archer,

380 F.3d 1076 (8th Cir. 2004) .............................. 22

vi

TABLE OF AUTHORITIES—continued

Page(s)

Other Authorities

Kristen Taketa, California to Remove

Mayan Affirmation from Ethnic

Studies after Lawsuit Argues It’s a

Prayer, L.A. TIMES (Jan. 18, 2022),

https://tinyurl.com/ecfkymyu ............................... 22

Stephen Shapiro, et al., SUPREME COURT

PRACTICE (11th ed. 2019) ..................................... 17

BRIEF FOR AASA, THE SCHOOL SUPERINTENDENTS ASSOCIATION, ET AL.

AS AMICI CURIAE SUPPORTING

RESPONDENT

INTEREST OF THE AMICI CURIAE1

AASA, The School Superintendents Association

(AASA), founded in 1865, is the professional organization for some 10,000 educational leaders in the

United States and throughout the world. AASA

members range from chief executive officers, superintendents, and senior level school administrators to

cabinet members, professors, and aspiring school

system leaders. Throughout its more than 150 years,

AASA has advocated for the highest quality public

education for all students, and provided programing

to develop and support school system leaders. AASA

members advance the goals of public education and

champion children’s causes in their districts and nationwide.

The National Association of Elementary School

Principals (NAESP) is the leading advocate for elementary and middle-level principals in the United

States and worldwide. NAESP believes principals

are the primary catalyst for creating a lasting foundation for learning, driving school and student performance, and shaping the long-term impact of

school improvement efforts.

Pursuant to Rule 37.6, amici affirm that no counsel for a party authored this brief in whole or in part and that no person

other than amici and their counsel made a monetary contribution to its preparation or submission. The parties have submitted blanket letters of consent to the filing of amicus briefs.

1

2

The National Association of Secondary School

Principals (NASSP) is the leading organization of

and voice for middle level principals, high school

principals, and other school leaders across the United States. NASSP seeks to transform education

through school leadership, recognizing that the fulfillment of each student’s potential relies on great

leaders in every school committed to the success of

each student.

The Washington Association of School Administrators (WASA) is an organization for professional

administrators that is committed to leadership in

providing equity and excellence in student learning.

WASA’s membership includes more than 1,900

members and is open to all educational administrators in central office, building management, and educational agency positions.

The issue in this case is one of enormous practical importance to amici, and to all educators who are

responsible for maintaining a safe and effective system of public education. The rule embraced by petitioner inevitably will lead to disruption and coercion

in public schools, while embroiling schools in lengthy

and expensive litigation; the result predictably will

harm students and undermine education. Because

amici have extensive experience with, and a deep interest in, the resolution of such issues, they submit

this brief to assist the Court with the resolution of

this case.

3

INTRODUCTION AND

SUMMARY OF ARGUMENT

A. Imagine the example of a public high school

teacher, Ms. Chichester, who teaches a senior chemistry lab that meets during eighth period. Ms. Chichester’s school learned that, over a period of years, she

recited audible Christian prayers in her classroom

with her chemistry students. When the superintendent expressed concern about this practice, Ms.

Chichester informed the school that her religious beliefs “compel [her] to ‘give thanks through prayer’ at

the conclusion of each [lab] ‘for what the [students]

had accomplished’ and ‘for the opportunity to be part

of their lives through [chemistry].’” Pet. Br. 4 (citations omitted). Because, “like many religious individuals, [Ms. Chichester] sought to make [her] personal religious acknowledgement in situ, immediately before or after an undertaking” (id. at 28), she insisted that she must recite the prayers while

kneeling in the center of her classroom, and must do

so when the lab is complete but the students remain

in the room and have not yet removed their schoolassigned protective goggles or cleaned their workstations. Virtually all the students in the class typically gathered around Ms. Chichester while she was

praying and joined in her classroom prayers, although some (including those who are not Christian)

informed their parents that they did so unwillingly,

and only because they not want to stand out or run

the risk that Ms. Chichester would dock their grades

for failure to participate.

Ms. Chichester also invited other teachers and

their classes to come to her classroom at the end of

eighth period and join in her post-lab prayers, and

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some did. Because Ms. Chichester had posted to Facebook about her practice of in-class praying, members of the public who were present in school at the

end of eighth period also rushed to join the prayers.

In the confusion and tumult, students who were leaving class or on their way to other classes were

knocked to the floor of the school’s hallway. Meanwhile, community members who were concerned that

Ms. Chichester would be denied the ability to pray

threatened violence, forcing the school to hire additional security personnel.

Faced with this disruption, the school offered Ms.

Chichester ways to accommodate her religious faith

that would be less problematic. It told her that she

could pray silently; or could pray audibly in place after the students had left the classroom; or could pray

in the faculty lounge or other spaces adjacent to her

classroom, at any time consistent with her work responsibilities. And it invited her to propose other

ways to accommodate her religious interests with the

school’s practical concerns. But she refused to engage

with the school, insisting that she would continue

her current course unchanged into the future.

B. It hardly seems possible that the First

Amendment gives Ms. Chichester the right to behave

in this way—that is, that the Constitution requires a

public school to allow a teacher to audibly pray, in

the classroom, while her responsibilities to her class

have not yet terminated, surrounded by students

who join the prayer, in a manner that some students

and parents find coercive, and in a way that causes

broader disruption to school operations and injury to

students. But that is this case. When coach Joseph

Kennedy prayed, he was (1) on duty as a school foot-

5

ball coach, whose players had not yet removed their

uniforms or left the field; (2) positioned in the center

of the field; (3) surrounded by his team, who joined in

his audible prayers, sometimes joined by the other

team and by members of the public who had rushed

onto the field; (4) in circumstances that some

Bremerton players found coercive; and (5) the cause

of extraordinary disruption. Kennedy’s assertion that

he actually sought only to pray quietly and by himself is not supported by the record, and this case

therefore does not present the question how the First

Amendment affects such hypothetical unobtrusive

in-school religious displays.

C. In-school religious activity like Kennedy’s often threatens to disrupt education and generate conflict, as persons of widely divergent religious beliefs

operate in the same small space. Examples of such

activity are myriad. To protect students, ensure a

productive learning environment, and avoid Establishment Clause liability, administrators therefore

must be able to institute reasonable accommodations

that safeguard employees’ free exercise of religion,

even as they limit student-facing religious activity.

D. Tested under the proper standard, Kennedy’s

claim must fail. Kennedy spoke as an on-duty public

employee, meaning that his speech—whether religious, political, or of any other character—could be

limited, restricted, or altogether prohibited by his

employer. But even if his speech is thought to enjoy a

measure of constitutional protection, the District’s

interest in imposing reasonable limits on that speech

should prevail. Kennedy’s conduct was disruptive

and coercive; it likely put the District in violation of

the Establishment Clause; and the District made

6

every effort to accommodate Kennedy’s religious beliefs.

ARGUMENT

I.

Kennedy’s speech had coercive and disruptive effects.

Kennedy asks the Court to decide whether the

Bremerton School District violated his First

Amendment rights when he “los[t] his job” because

“he knelt and said a quiet prayer by himself” after a

football game. Pet. Br. i. But that question is not

presented in the case: As both courts below found after a close review of the record, the conduct at issue

is not “quiet prayer”; it is not Kennedy’s attempt to

“pray[] by himself”; and Kennedy did not “lose his

job” for doing those things. Instead, for eight years

Kennedy often prayed audibly with students while

on duty as a football coach, in a manner that had a

coercive effect on players and that ultimately caused

significant harm and disruption to the school. Yet

the District still went to extraordinary lengths to accommodate Kennedy’s religious practices, specifically

and repeatedly offering him an opportunity to pray

either quietly or by himself—that is, exactly what he

now says he wanted to do.

Because the Court cannot, on this record, decide

the question presented by Kennedy, it should dismiss

the petition as improvidently granted. And if the

Court does resolve the case on the merits, it should

do so with regard for Kennedy’s actual behavior: that

of an intransigent public-school employee whose conduct infringed the rights of students, detracted from

his school’s educational mission, and placed the District in an impossible bind.

7

A. Kennedy recited audible and obtrusive

prayers while he acted in his capacity as

a school coach.

In early September 2015, the District’s administrators learned that Kennedy, then an assistant

coach for the school’s varsity football team, had for

several years been praying, before and after games,

with students under his supervision. JA24-29, JA4041. After games, his practice was to stand at midfield

on the 50-yard line and pray aloud, surrounded by “a

majority of [his] team,” often kneeling with their

heads bowed. JA40, JA126. Sometimes Kennedy

would invite opposing teams and their coaches to

gather around him as he gave religious speeches.

JA77, JA229. The District’s administration became

concerned that Kennedy’s prayers, on school property and surrounded by students Kennedy supervised,

undermined safety at District events, threatened the

religious-liberty rights of students and families, and

“expos[ed] the District to significant risk of liability.”

JA41; see JA81, 95, 106.

After a game on Friday, September 11, Bremerton’s athletic director observed Kennedy’s post-game

prayer and shook his head. JA269-271. That night,

Kennedy posted on Facebook: “I think I just might

have been fired for praying.” JA271. Kennedy’s Facebook post touched off a firestorm. An “explosion” of

angry calls and emails poured into the school, denouncing the purported decision to fire Kennedy.

JA256. Bremerton’s principal, athletic director, and

head football coach were flummoxed by these events.

None of them had told Kennedy that he had been or

would be fired. JA228, 230.

8

On September 17, the District’s superintendent,

Aaron Leavell, wrote Kennedy a first email of official

guidance. Leavell told Kennedy that, while on duty,

he was “free to engage in religious activity, including

prayer, so long as it does not interfere with [his] job

responsibilities.” JA45. Leavell added that any such

prayer should be “physically separate from any student activity, and students may not be allowed to

join such activity.” JA45. If Kennedy allowed students to join him in prayer, there was a risk of “alienation” among players who did not wish to pray.

JA44. This “risk” was real; a parent subsequently

told the District that their football-player son had

felt “compelled to participate” in Kennedy’s prayers.

JA234.

Kennedy initially followed Leavell’s instructions.

The motivational speech he gave after Bremerton’s

September 18 game was secular. JA53, 364. Kennedy

told a local newspaper that, as was perfectly acceptable under Leavell’s guidance, he had returned

to pray at midfield after students had left. JA53.

Consequently, the coach cancelled a meeting that

Leavell had proposed to hold with Kennedy about the

latter’s concerns, writing: “Not a big deal [to meet]

anymore. * * * Proud of BHS!!!!! Go Knights!” JA58.

No students visibly prayed with Kennedy at football

games over the next month. JA356. From the District’s perspective, the matter was resolved.

On Wednesday, October 14, however, Kennedy’s

posture appeared to shift. Newly hired attorneys

wrote to the District, declaring that at the next game

Kennedy would “continue his practice of saying a

private, post-game prayer at the 50-yard line.” JA62-

9

72. The letter demanded that the District rescind

Leavell’s September 17 guidance. JA62-72.

As the District knew from Kennedy’s past behavior, however, the practice he sought to “continue”

was not one of private prayer; indeed, Kennedy had

stated that his intention was to continue to pray

“audibly” with any student who joined him. JA63,

JA70-71. The District therefore reasonably understood from Kennedy’s demand that he “had specifically expressed his intention to pray with students

on the field.” JA354. “At no point” “did Mr. Kennedy

or his representatives ever modify” that demand.

JA354. In fact, Kennedy later stated that “I wasn’t

going to stop my prayer because there was kids

around me.” JA295. Against this background, as

Judge Smith noted below, it was a “deceitful narrative” for Kennedy’s counsel to represent that their

client would be “continu[ing]” past practice by saying

a “private” prayer, given that Kennedy had “added

an increasingly public and audible element to his

prayers over * * * seven years.” Pet. App. 41.

The District wrote back to Kennedy, reiterating

its desire to find a solution that allowed him to heed

his religious conscience, while shielding students

from pressure to engage in a prayer that might not

correspond to their or their parents’ faith. JA76-81.

Despite the District’s overtures, Kennedy publicly

announced he would resume his post-game practices.

JA74; see Pet. App. 138.

And he did. Following the final whistle at the October 16 game, Kennedy began to pray at midfield,

out loud, “in the midst of” players. JA82, 297; Pet.

App. 41. In addition, many adults—including a state

representative—rushed out of the stands to join him

10

in prayer, knocking over members of the school band

and cheer team. JA298, 354. Representatives of the

news media added to the crowd.

Parents of students who had been knocked to the

ground complained. JA181. Bremerton’s head coach

became concerned that his players, as well as cheerleaders and band members, would be unsafe at future games if Kennedy’s behavior drew nonplayers

onto Bremerton’s field. JA347. The head coach and

other staff also stated that they themselves felt

“physically threatened” in the wake of the stampede

to join Kennedy and in the generally tense atmosphere that had come to surround the school’s football

program. Pet. App. 3; see JA347. Concerns for student and staff safety forced the District to arrange

with the Bremerton Police to keep adults off the

field, and to issue several communications indicating

that public access to the field would not be allowed.

JA181.

(In addition to protecting its students, the district feared that allowing the public to join Christian

prayer on the field would require granting similar

access to school property for other religious groups.

JA101, 180-81. Satanists had notified the District

that they intended to conduct ceremonies on the field

after games if Kennedy and members of the crowd

were allowed to pray at midfield. JA100-101.)

For a third time, Superintendent Leavell wrote

Kennedy, asking that he stop praying where he was

observable by students and the public while on duty.

JA90-95. Leavell again assured Kennedy that his beliefs “can and will be accommodated” and offered to

reserve any of several areas, such as “a private location within the school building, athletic facility or

11

press box” where Kennedy could pray before and after games. JA93-94. Leavell also reiterated that he

would be happy for Kennedy to propose other accommodations. JA93-94. And Leavell emphasized

that the District “does not prohibit prayer or other

religious exercise by employees while on the job,”

although it was concerned that “a court would almost

certainly find” the coach’s public, demonstrative

prayers “to constitute District endorsement of religion in violation of the United States Constitution.”

JA91, 93.

In fact, the District believed that “any reasonable

observer” would view Bremerton as sanctioning

Kennedy’s conduct—thus threatening Establishment

Clause liability—if he were allowed to pray in the

way that he demanded. JA93,106-107. That was so

because:



Kennedy was widely recognized to be on

duty until “the last kid leaves” the game.

JA92, 276.



Bremerton students had crowded around

Kennedy as he prayed and made his religiously themed motivational speeches.

JA126.



Kennedy’s religious conduct happened at

the expressive focal-point of the field on

which Kennedy was allowed “solely by virtue of [his] employment by the District,”

and while he was wearing “BHS-logoed attire.” JA92.

Kennedy did not respond to Leavell’s proposed

accommodations. JA306. Nor did he respond to the

District’s suggestion that he propose his own suitable

12

accommodations. Instead, the coach informed the

media that he planned to continue his public prayers, in the way he always had (i.e. “audibly,” surrounded by students and possibly community members, to whom his comments would at least partially

be directed). See JA106.

After Kennedy prayed at midfield twice more,

again joined on the field by unauthorized members of

the public, Leavell wrote him a fourth letter about

his conduct. JA102-103, 238. Unlike the first three,

this communication was disciplinary: Leavell placed

Kennedy on paid administrative leave for repeatedly

defying District directives. JA103. Even so, however,

Leavell declared yet again that “the District remains

willing to discuss ways of accommodating your private religious exercise.” JA103. Meanwhile, players’

parents thanked the District for ending “awkward

situations where [members of the team] did not feel

comfortable declining to join with the other players

in Mr. Kennedy’s prayers.” JA359.

As he had in prior weeks, however, Kennedy refused to engage with his employer. Instead, he spent

his leave on a media circuit, seeming to maintain his

demand that the District abandon any oversight of

his on-duty religious practices. JA190, 354. Later,

Kennedy ignored repeated attempts by the District

to schedule an end-of-year evaluation. JA359. When

his contract expired, Kennedy did not apply to coach

the following season. JA178.

B. The record demonstrates that the Dis-

trict acted reasonably.

1. Against this background, Kennedy paints a

very different picture of his behavior. He insists over

and

over

again,

in

intemperate

terms—

13

“remarkabl[e]”! “[e]ven more remarkabl[e]”! (Pet. Br.

1)—that he sought to recite a “quiet prayer by himself” (id. at i), but was denied “all rights to individual

expression on school grounds.” Id. at 2.

But Kennedy cannot prove his case by yelling

loudly and larding his argument with adjectives, and

his picture of events is belied in key respects by the

record and the findings of both courts below. Those

courts determined that there was “no dispute” that

Kennedy was on the job when he prayed. Pet. App.

15; see id. at 148-49. They also found that Kennedy

refused to engage with the District’s reasonable accommodations. See id. at 10, 139. Absent the most

“obvious and exceptional showing of error”—which

Kennedy has not even attempted to make—it is this

Court’s practice to accept as definitive such “concurrent findings of fact by two courts below.” Graver

Tank & Mfg. Co. v. Linde Air Prods. Co., 336 U.S.

271, 275 (1949); see Exxon Co., U.S.A. v. Sofec, Inc.,

517 U.S. 830, 841 (1996).

And the findings below are confirmed by the record, which demonstrates that, in all material respects, Kennedy acted just like our hypothetical Ms.

Chichester:

Kennedy did not pray privately. Kennedy’s

prayers often were not private or silent; to the contrary, they were audible, demonstrative, and overtly

religious. As the photos included in Bremerton’s brief

illustrate, the prayers came to include dozens of persons, including most members of Bremerton’s team,

players from other teams, and members of the public.

See Resp. Br. 4, 8. This is a far cry from Kennedy offering “a quiet prayer by himself.”

14

Kennedy’s religious display was coercive.

Kennedy declares that he did not “coerce[]” students

to join his prayers, by which he evidently means that

he did not expressly instruct or request players to

pray. Pet. Br. 5 (internal quotation marks omitted).

But his prayer practice surely had a coercive impact

on players. He engaged in religious speech on the

field, immediately after games, at a time when he

was acting in his role as coach; as the district court

explained, “[a]ll of the evidence, including Kennedy’s

own testimony, confirms that his job responsibilities

extended at least until the players were released after going to the locker room.” Pet. App. 17 (internal

quotation marks omitted). Kennedy himself

acknowledged that he was on duty post-game “until

the last kid leaves” and maybe even an “hour after

that.” JA276; see also JA287 (Kennedy agreeing that

he had “responsibilities for the players” in those situations in which he “had been joined by [his] players

and players from the other team and [he was] holding up the helmets.”).

Even in the most benign circumstances, religious

speech offered by such a figure, on school grounds, in

the presence of the entire team, has a powerful impact on students; as the district judge noted when

denying Kennedy’s request for a preliminary injunction, coaches “can be monumental figures in a kid’s

life.” Pet. App. 286. Kennedy agreed: “for some kids,

the coach might even be the most important person

they encounter in their overall life.” JA323-325.

And here, the impact was not wholly benign. Unavoidably, a student in such circumstances will feel

compelled to join in a coach’s or other teacher’s religious speech so as not to alienate a figure who has

15

authority over the student’s academic or athletic

lives, and so as not to stand apart from teammates or

classmates. That danger was hardly hypothetical:

players and their parents complained to the school

(but, revealingly, not directly to Kennedy) that students felt pressured to participate in Kennedy’s

prayers. It is unlikely to be coincidental that numerous students prayed with Kennedy on repeated occasions, but that none felt moved to visibly pray after

games when Kennedy did not pray in front of them.

Pet. App. 157.

Kennedy’s prayers were disruptive. Kennedy’s

religious speech was profoundly disruptive of regular

school operations. His practice of praying audibly, at

midfield, immediately after games, with the invited

participation of the opposing team, ultimately involved dozens of participants, as members of the

public rushed onto the field and knocked students to

the ground. The on-field assembly took on the character of an uncontrolled political rally; the tumult

required the District to add additional security. Indeed, the disruption ultimately forced Bremerton’s

head football coach to leave his own position, “withdraw[ing] from the program and student-athletes

[he] had been devoted to for eleven years,” because of

the “negative,” “unsafe situation” caused by Kennedy’s conduct. JA346-347.

The disruption also led Kennedy to abandon his

school responsibilities. Although Kennedy had been

told, and agreed, that he remained on duty after

games, the District received indications that he neglected his job duties to instead attend to the media

and public. The head coach, for example, found that

“Mr. Kennedy failed to supervise student-athletes af-

16

ter games due to his interactions with media and

community. * * * Prior to his public defiance of district directions, Mr. Kennedy had assisted in student

supervision. However, most of the season he did not

supervise student-athletes after games.” JA114.

Kennedy also missed practices for press conferences

and media interviews. JA189.

The District repeatedly sought to accommodate Kennedy’s religious beliefs. Finally, Kennedy’s suggestion that he was denied “all rights to individual expression on school grounds” (Pet. Br. 2)

bears no resemblance to the District’s actual approach. Bremerton went to extraordinary lengths to

accommodate Kennedy’s interest in praying on

school property and in close proximity to the football

field, informing him in at least four separate exchanges that his beliefs “can and will be accommodated”; allowing him to pray on the field after games

when students had left; indicating that the school

would reserve any of several areas, such as “a private location within the school building, athletic facility or press box” for him to pray before and after

games; and inviting him to propose other accommodations that he would find suitable. JA93-94. But

Kennedy first rejected and then simply ignored these

offers, insisting on “continuing” to do just what he

wanted, no matter the adverse effects on coerced

students, the school’s operations, and the educational

environment.

2. That Kennedy’s description of the case departs

so far from the record strongly suggests his awareness that he cannot prevail if the Court takes account of what actually happened. In such circumstances, amici urge the Court to dismiss the petition

17

as improvidently granted: “‘Examination of a case on

the merits, on oral argument, may bring into proper

focus a consideration which, though present in the

record at the time of granting the writ, only later indicates that the grant was improvident.’” Stephen

Shapiro, et al., SUPREME COURT PRACTICE 5-51 (11th

ed. 2019) (quoting The Monrosa v. Carbon Black,

Inc., 359 U.S. 180, 184 (1959)). See id. at 5-52 – 5-53

(citing cases). That is the circumstance in this case,

where, on a review of the record, Kennedy has no

plausible challenge to the decision below.

But if the Court instead resolves the case, the

nature of Kennedy’s demands and the District’s proposed accommodations makes the answer easy: as

explained by respondent and further addressed below, a public school employee whose religious interests have been substantially protected may not demand free license to disrupt and undermine his

workplace.

II. Religious conduct like Kennedy’s undermines public schools’ educational mission.

Kennedy pitches his case as one that involves a

public employee whose religious rights have been

suppressed for no good reason. In fact, Kennedy’s circumstances illustrate a very different problem: the

enormous practical difficulties faced by school districts whose employees insist on engaging in disruptive, coercive, and situationally inappropriate speech.

All agree—Bremerton certainly did—that school

employees have important free-exercise rights, which

sometimes permissibly may be exercised inside their

classrooms. But school administrators also have a

duty to ensure that schools are safe and productive

learning environments. Administrators therefore

18

must have the leeway to impose reasonable limits on

employee speech of all kinds, including religious and

political speech, that threatens to disrupt learning or

subject students to coercive pressure.

Kennedy asks the Court to deny administrators

that essential flexibility. He would require school officials to determine that a teacher or coach is acting

in a personal capacity—and therefore may engage in

visible religious activity—even though that employee

is (a) interacting with her students (b) on school

grounds (c) during school events (d) in her school uniform (e) immediately adjacent to her official duties.

Yet Kennedy offers no practical guide to how administrators should determine whether speech offered in

such circumstances is personal in nature. As a consequence, his approach would have wide-ranging

pernicious effects, as schools’ fear of drawing the line

in the wrong place—and thus finding themselves

mired in costly, time-consuming litigation—would

lead officials to err on the side of permitting divisive

in-school speech, both religious and political. As

Kennedy’s own example demonstrates, that approach

also would countenance disruptive employee speech

that undermines schools’ central educational mission

and places coercive pressure on students.

A. School officials have a duty to ensure

that schools are safe and productive

learning environments.

Amici have a particular understanding of the

ways in which Kennedy’s conduct undermines

schools’ educational mission: superintendents, principals, and other administrators are responsible for

ensuring that schools are safe, orderly, and productive learning environments.

19

Superintendents are responsible for setting educational goals and ensuring that students meet those

goals. Among other things, they oversee all employees of the school district who regularly interact with

students. Superintendents and principals typically

are responsible for hiring, evaluating, and, when

necessary, firing employees.

Though pulled in multiple directions, superintendents and principals have one duty that guides all

the others: ensuring maintenance of an environment

where children are able to learn and develop into responsible adults. It therefore is paramount that

schools be safe, healthy, and productive spaces, free

of unnecessary disruptions. “Without first establishing discipline and maintaining order, teachers cannot begin to educate their students.” New Jersey v. T.

L. O., 469 U.S. 325, 350 (1985) (Powell & O’Connor,

J.J., concurring).

Maintaining environments conducive to students’

development—whether in the chemistry lab, the theater, or the hockey rink—often requires school administrators to make difficult judgments. To do so,

administrators rely on years of educational experience, an understanding of their students’ needs, and

knowledge of the relationships between students,

teachers, and coaches.

B. Superintendents and principals must be

able to impose reasonable limits on employees’ religious activity.

Against this background, amici’s experience

teaches that employees’ in-school religious activity

often threatens to disrupt education and generate

conflict, as persons of widely varying religious beliefs

operate in the same small space. To protect students,

20

ensure a productive learning environment, and avoid

Establishment Clause liability, administrators therefore must be able to institute reasonable accommodations that safeguard employees’ free exercise of religion even as they limit student-facing religious activity.

1. To begin with, the practical problems—of coercion, disruption, hard feelings, and liability—that

may be posed by public employees who seek to undertake demonstrative religious activity in schools

cannot be overstated. Examples abound.

In one school alone, employees’ unlawful religious activity included

teacher-led after-school student religious

meetings with Bible readings and prayer;

teachers and other school officials extolling

their faith to students during schoolsponsored events and in class; teachers assigning religiously oriented school work and

encouraging students to attend religious student clubs; a teacher preaching to students

before school in the parking lot with the use

of a bullhorn; and teachers inviting students

to lead prayers before or during sporting

events and other school activities.

Allen v. Sch. Bd. for Santa Rosa Cnty., Fla., 782 F.

Supp. 2d 1304, 1310 & n.6 (N.D. Fla. 2011) (listing

conduct that led a Florida school to agree to a consent decree limiting religious activity).

In Colorado, principals and teachers at an elementary school used their school email accounts to

solicit funds for a religious mission trip to Guatemala. Am. Humanist Ass’n, Inc. v. Douglas Cnty. Sch.

21

Dist. RE-1, 328 F. Supp. 3d 1203, 1207-1208, 1209

(D. Colo. 2018), remanded from 859 F.3d 1243 (10th

Cir. 2017). They sent students home with flyers in

their backpacks asking parents to donate and explaining that the school was partnering with a Christian organization. Ibid. A mother of two students

successfully objected on Establishment Clause

grounds. Id. at 1214-1215.

It is often difficult for school administrators to

restrict—or even to know about—efforts by teachers

to introduce religion into school spaces. For example,

over the course of fifteen years, Ohio administrators

sought to prevent an eighth-grade science teacher

from exposing students to his religious beliefs, even

as he tried to elude the schools’ restrictions. Freshwater v. Mt. Vernon City Sch. Dist. Bd. of Educ., 1

N.E.3d 335, 339 (Ohio 2013), cert. denied, 574 U.S.

816 (2014). First, administrators stopped the teacher

from distributing to his students a pamphlet that,

citing Genesis, advocated creationism. Id. at 340.

Later, a parent complained that his son had brought

home another handout—authored by a Christian organization advocating intelligent design—that the

teacher apparently distributed and unsuccessfully

tried to collect before the end of class. Id. at 341-342.

As parents lodged other complaints, school administrators asked the teacher to remove the Ten Commandments from the classroom window and to move

a Bible from his desk, advising him that he was free

to take out and read the Bible as he pleased during

his lunch hour when students weren’t present. Id. at

343-344. In defiance of these requests, the teacher

put up more public, student-facing religious displays,

22

arranging copies of the Oxford Bible and Jesus of

Nazareth for view on a lab table. Id. at 344.2

2. Schools face the constant threat of litigation as

they navigate employees’ Free Exercise rights, students’ rights under both the Establishment and Free

Exercise Clauses, and the need to maintain a productive learning environment—all against the background of shifting and uncertain First Amendment

doctrine. Schools face lawsuits when parents feel

that the curriculum or instruction favors (or disfavors) certain religions3; when employees include

prayer or religious material in employee meetings4;

and, in an adjacent context, when students desire to

2 After a nearly two-year administrative hearing that produced

6,000 pages of transcript (1 N.E.3d at 350), followed by more

than three years of litigation, the Ohio Supreme Court upheld

the school’s decision to terminate the teacher for insubordination. Id. at 355. The court held that the school’s order to remove

a personal Bible violated the teacher’s free-exercise rights (id.

at 344), but that no such rights were implicated by asking him

to remove the student-facing material, which he displayed

merely “to make a point once [the] controversy began.” Id. at

355.

3 See, e.g., Cal. Parents for the Equalization of Educ. Materials

v. Torlakson, 973 F.3d 1010, 1014 (9th Cir. 2020), cert. denied,

141 S. Ct. 2583 (2021); Kristen Taketa, California to Remove

Mayan Affirmation from Ethnic Studies after Lawsuit Argues

It’s

a

Prayer,

L.A.

TIMES

(Jan.

18,

2022),

https://tinyurl.com/ecfkymyu.

4 See, e.g., Warnock v. Archer, 380 F.3d 1076, 1079-81 (8th Cir.

2004) (finding an Establishment Clause violation when the

school superintendent led prayers at mandatory teacher trainings); Faulkner v. Univ. of Cincinnati, 173 F. Supp. 3d 575 (S.D.

Ohio 2016) (upholding school’s decision to prevent an employee

from making overt Christian references during off-campus

leadership trainings attended by school employees).

23

communicate

events.5

religious

messages

during

school

Avoiding litigation and legal liability is not administrators’ only, or even central, worry when faced

with such employee conduct. Rather, employees’ inschool religious activity is a particular concern because of its singular potential to disrupt students’

learning, subject students to coercion, and provoke

division among students, teachers, and parents. As

the Court has explained: “Divisiveness * * * can attend

any

state

decision

respecting

religions * * * [But] [t]he potential for divisiveness is of

particular relevance * * * [when] it centers around

an overt religious exercise in a secondary school environment where * * * subtle coercive pressures exist.” Lee v. Weisman, 505 U.S. 577, 587-88 (1992));

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

2067, 2093 (2019) (Kavanaugh, J., concurring) (noting Lee’s reliance on the coercive effect of “govern5 Compare, e.g., A.M. ex rel. McKay v. Taconic Hills Cent. Sch.

Dist., 510 F. App’x 3, 9 (2d Cir.) (upholding school officials’ decision to remove religious language from a student’s speech in order to avoid Establishment Clause liability), cert. denied, 571

U.S. 828 (2013), and Nurre v. Whitehead, 580 F.3d 1087, 109399 (9th Cir. 2009) (upholding a high school’s decision to reject

students’ choice to play an instrumental version of “Ave Maria”

at graduation), cert. denied, 130 S. Ct. 1927 (2010), with Am.

Humanist Ass’n. v. S.C. Dep’t of Educ., 108 F. Supp. 3d 355, 359

(D.S.C. 2015) (upholding a school policy that allowed a student

selected on neutral criteria to voluntarily say a prayer during

graduation), vacated in part by Am. Humanist Ass’n v. Greenville Cnty. Sch. Dist., 652 F. App’x 224 (4th Cir. 2016). and

Kountze Indep. Sch. Dist. v. Matthews ex rel. Matthews, No. 0913-00251-CV, 2017 WL 4319908 (Tex. App. Sept. 28, 2017) (upholding cheerleaders’ ability to display biblical messages on

run-through banners at football games).

24

ment-sponsored prayer in public schools”). Administrators have an obligation to prevent this sort of disruption and pressure “that materially disrupts

classwork or involves substantial disorder or invasion of the rights of others.” Mahanoy Area Sch. Dist.

v. B. L. ex rel. Levy, 141 S. Ct. 2038, 2045 (2021) (citation omitted).

In particular, preventing coercion is imperative.

As this case illustrates, implicit pressure to participate in public religious activity is unavoidable whenever that activity is led or encouraged by an authority figure in a school setting. And that is triply so in

the sports context. Social pressure is acute on youth

sports teams. See, e.g., Doe v. Duncanville Indep.

Sch. Dist., 994 F.2d 160, 161-163 (5th Cir. 1993)

(twelve-year-old girl participated in coach-led prayers “she was uncomfortable with * * * and opposed

to * * * out of a desire not to create dissension,” and

was heckled by a spectator when she eventually

stood by herself while the team prayed). Moreover,

as petitioner’s amici themselves rightly note, coaches

hold enormous moral authority over their players.

See Bowden amicus Br. 2, 16-17. And coaches often

wield significant actual authority over students

whose future prospects—including college admissions and scholarships—requires staying, or starting,

on the coach’s team.

Yet coercion that results from individual employees’ actions rather than a school policy is particularly

likely to go unreported. For the same reason that

students feel pressured to participate in religious

acts against their will or in violation of their conscience, they may be reluctant to report such pressure to parents or administrators. But recent cases

25

indicate that the coercion felt by Bremerton football

players (see pages 8, 12, supra) was not an outlier.

For example, in Arizona, three female varsity

softball players at a public high school complained

that, before each game, a group of players who

shared the coach’s denomination conducted a prayer

in the outfield. Ryan v. Mesa Unified Sch. Dist., 195

F. Supp. 3d 1080, 1083 (D. Ariz. 2016). Although the

coach denied it, other players who did not share the

coach’s faith said that the coach encouraged the

praying, going so far as to appoint “prayer leaders.”

Ibid. The plaintiff-players claimed that their decision

not to participate in the prayer, and eventually to

put an end to the prayer once they were leaders on

the team, was one of the reasons the coach removed

them from the team. Id. at 1089-92.

School officials must have the tools to address

coach or teacher conduct that has such destructive

effects. School administrators are particularly wellsuited to engage in the “delicate and fact-sensitive”

inquiry necessary to judge whether students might

be at risk of coercion because of their coach’s actions.

Cf. Lee v. Weisman, 505 U.S. at 597.

C. A rule permitting conduct like Kenne-

dy’s would be impossible to administer

and would remake the nation’s classrooms.

Experience therefore shows that conduct of the

sort engaged in by Kennedy poses conflicting interests; it implicates the employee’s religious rights, but

also may—and, in this case, did—harm students and

disrupt the educational environment. Faced with this

conflict and obligated to protect student safety, it is

imperative that school administrators be given the

26

leeway to make reasonable judgments about how

best to accommodate these concerns—that is, to determine when a coach or teacher is speaking in their

capacity as school employee and when particular

types of conduct or speech are intolerably disruptive.

But Kennedy takes the opposite tack: he proposes a

novel, impossible-to-administer rule that allows administrators no breathing room.

To appreciate the rule that Kennedy asks this

Court to adopt, it is important to recall what he actually did. He did not always pray silently or in private. Instead, he visibly and audibly recited prayers,

on school grounds, surrounded by his team, in a

manner that was coercive and disruptive. He refused

the accommodations offered by the District, which

would have permitted him to pray silently in place;

or to pray audibly on the field after he no longer had

supervisory responsibilities; or to pray in a private

space elsewhere on school grounds.

Kennedy argues that he had an absolute right to

engage in his preferred behavior because—even

though he was on school grounds, only moments after the last whistle, in his school uniform, holding a

team helmet, and interacting with his stilluniformed players—he was somehow acting in his

personal capacity. It evidently is Kennedy’s submission that this was so because, while praying, he was

not calling plays, which is practically all that a

school football coach does while on duty. See Pet. Br.

26-27.

But to say this test suffers from a fatal linedrawing problem understates its flaws significantly.

There are any number of scenarios where, in Kennedy’s view, it would be impossible to determine

27

(1) when, much less why, a school employee suddenly

sheds her official capacity while interacting with

students, or (2) what activity would be permissible in

those moments:



Imagine that the Arizona softball team,

see page 25, supra, is traveling for an

away game. The coach surely is entitled to

pray privately in his hotel room. But could

the coach claim that, notwithstanding his

responsibility to oversee his students

while on the road, in the evenings he takes

off his coach’s hat and can thus hold prayer sessions with his players in the hotel

lobby? If non-participating students again

complained of coercion and retaliation,

could the school lawfully stop him?



Consider the eighth-grade Ohio science

teacher. See pages 21-22, supra. The

school permitted him to read his Bible privately during his lunch hour. Under Kennedy’s proposed rule, could a teacher also

demand the right to read audibly from the

Bible in the school cafeteria during lunch?

Could he read responsively with students?

Could students join a Muslim history

teacher for daily prayer at midday in the

history classroom?



Recall the Colorado teachers who solicited

funds for a Christian mission trip. See

page 20-21, supra. Under the Kennedy

rule, could these teachers conduct fundraising in class if they used personal email

accounts and printed the flyers on their

home printers? If students reported feeling

pressured to participate—and thus to

28

promote a religion to which they did not

subscribe—could the school stop the

teachers’ activity?



And again consider Ms. Chichester, and

her impact on students who object to being

in a class with a teacher that prays. Would

such students have to—indeed, would they

have a First Amendment right to—switch

classes? Would the school have to accommodate a requested change, so that Ms.

Chichester’s favored religious practices

dictate student assignments? What if Ms.

Chichester teaches the school’s only AP

Chemistry class, so there is no equivalent

alternative teacher? Once reasonable accommodations like Bremerton’s are rejected, there are no obvious answers to these

questions.

These examples only begin to show the impossibility

of translating Kennedy’s defense into workable policy.

It may be that not all of these cases must, or

should, come out the same way. But the proper

treatment in any case, and the one that best reconciles the competing interests, must take account of

the details of the employee’s duties and assignments;

the nature of the employee’s specific interactions

with students and other school personnel; and the

likely effect of the employee’s speech on students and

the learning environment. Divining the appropriate

result will call upon the expertise and experience of

the on-the-spot administrators. And the complexity

of these interactions—plainly visible in this case—

means that the governing rules must allow for some

29

“‘play in the joints’ between what the Establishment

Clause permits and the Free Exercise Clause compels.” Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct.

2246, 2254 (2020) (citation omitted). In particular, as

Judge Newman wrote for the Second Circuit, a school

district “must be accorded some breathing space to

regulate in this difficult context.” Marchi v. Bd. of

Coop. Educ. Servs. of Albany, 173 F.3d 469, 476 (2d

Cir. 1999). Kennedy would deny school districts that

necessary room.

III. Kennedy’s First Amendment claims fail.

Viewed under the proper standard, Kennedy’s

claim must fail. He sought to pray while he was a

school employee who was exercising his duties as a

coach. The District offered him accommodations that

were more than reasonable. And his conduct impeded both the performance of his duties and the regular

operations of his school.

At the outset, as the District explains, Kennedy

spoke as an on-duty public employee, with the consequence that his speech—whether religious, political,

or of any other character—could be limited, restricted, or altogether prohibited by his employer. Resp.

Br. 21-27; see Garcetti v. Ceballos, 547 U.S. 410, 421

(2006). Kennedy himself acknowledged that he was

on duty until “the last kid leaves” the game and

maybe even “an hour after that” (JA276), which

means that he was involving students in prayer

while he was supervising them and exercising his

authority as coach. Both courts below therefore concluded that Kennedy was acting in his official capacity as a coach while involving the team in prayer.

Such speech, “at the center of the field, under bright

lights, in front of the bleachers, at a time when the

30

general public could not access the field,” is “uniquely tied to the job” and “owes its existence to [Kennedy’s] coaching position.” Pet. App. 151-51 (quoting

Ceballos, 547 U.S. at 421).

But even if that is not so and Kennedy’s speech is

thought to have had a measure of constitutional protection, the District’s interest in imposing reasonable

limits on that speech must prevail. It is settled that

“the State has interests as an employer in regulating

the speech of its employees that differ significantly

from those it possesses in connection with regulation

of the speech of the citizenry in general.” Pickering v.

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

563, 568 (1968). Although the Court developed this

doctrine in cases involving public employees who

seek to “speak as a citizen addressing matters of

public concern” (Garcetti, 547 U.S. at 417), the same

considerations govern employees who engage in religious rather than political speech. See e.g., Borden v.

Sch. Dist. of Twp. of E. Brunswick, 523 F.3d 153, 159

(3d Cir. 2008); Lee v. York City School Div., 484 F.3d

687, 694-97 (4th Cir. 2007); Knight v. Connecticut

Dep’t of Pub. Health, 275 F.3d 156, 163-65 (2d Cir.

2001).

In such circumstances, a government employer

must be able to exercise “a significant degree of control over their employees’ words and actions” so that

it can provide “efficient provisions of services.” Garcetti, 547 U.S. at 418. And in this case, the District’s

interest in imposing reasonable limits on Kennedy’s

speech and conduct is inarguable. As described

above, his public prayers disrupted a school event,

led to chaos on the football field, created a coercive

environment for the team, and distracted him from

31

his post-game responsibilities; it “impeded the * * *

proper performance of his daily duties” and generally

“interfered with the regular operation of the

school[].” Pickering, 391 U.S. at 572-733.

And Bremerton had good reason to fear that

Kennedy’s conduct would expose it to liability under

the Establishment Clause, a concern for all school

districts whose employees engage in public religious

speech. As the Court has held, governmentsponsored prayers in schools are unconstitutional.

Engel v. Vitale, 370 U.S. 421 (1962); Abington Twp.

Sch. Dist. v. Schempp, 374 U.S. 203 (1963). That

prohibition extends to prayers at graduation ceremonies (Lee v. Weisman, 505 U.S. 577 (1992)), and football games. Santa Fe Indep. Sch. Dist. v. Doe, 530

U.S. 290 (2000). Lower courts, applying this doctrine,

have consistently held that a school practice of allowing coaches to initiate prayers before or after games

risks violating the Establishment Clause. See Borden, 523 F.3d at 160, 175-76; Doe v. Duncanville Independent School District, 70 F.3d 402, 404 (5th Cir.

1995).

To be sure, the Court’s Establishment Clause

doctrine is unsettled. See, e.g., Am. Legion v. Am.

Humanist Ass’n, 139 S. Ct. at 2080. But that uncertainty is reason to give districts more breathing room

in devising reasonable accommodations that balance

the mandates of the Establishment and Free Exercise Clauses. After all, “the interest of the State in

avoiding an Establishment Clause violation may be a

compelling one.” Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 394 (1993) (alteration and internal quotation marks omitted). Yet

“[t]he decisions governmental agencies make in de-

32

termining when they are at risk of Establishment

Clause violations are difficult, and, in dealing with

their employees, they cannot be expected to resolve

so precisely the inevitable tensions between the Establishment Clause and the Free Exercise Clause.”

Marchi, 173 F.3d at 476. Here, the District’s proposed accommodations were reasonable; Kennedy’s

intransigence was not.

33

CONCLUSION

The decision of the court of appeals should be affirmed.

Respectfully submitted.

PAUL W. HUGHES

MICHAEL B. KIMBERLY

McDermott Will &

Emery LLP

500 N. Capitol St., NW

Washington, DC 20001

CHARLES A. ROTHFELD

Counsel of Record

ANDREW J. PINCUS

Mayer Brown LLP

1999 K Street, NW

Washington, DC 20006

(202) 263-3000

crothfeld@mayerbrown.com

EUGENE R. FIDELL

Yale Law School

Supreme Court Clinic6

127 Wall Street

New Haven, CT 06511

Counsel for Amici Curiae

APRIL 2022

The representation of amici by a Clinic affiliated with Yale

Law School does not reflect any institutional views of Yale Law

School or Yale University.

6