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,

v.

Petitioner,

BREMERTON SCHOOL DISTRICT,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR STATES OF NEW YORK, CALIFORNIA,

DELAWARE, HAWAI‘I, ILLINOIS, MAINE, MARYLAND,

MASSACHUSETTS, MICHIGAN, MINNESOTA,

NEW JERSEY, NEW MEXICO, AND OREGON, AND

THE DISTRICT OF COLUMBIA AS AMICI CURIAE

IN SUPPORT OF RESPONDENT

LETITIA JAMES

Attorney General

State of New York

BARBARA D. UNDERWOOD*

Solicitor General

ANISHA S. DASGUPTA

Deputy Solicitor General

ESTER MURDUKHAYEVA

Assistant Deputy

Solicitor General

28 Liberty Street

New York, New York 10005

(212) 416-8020

barbara.underwood@ag.ny.gov

*Counsel of Record

(Counsel listing continues on signature pages.)

i

TABLE OF CONTENTS

Page

Table of Authorities ....................................................... ii

Interests of Amici States ............................................... 1

Statement ....................................................................... 3

A. State and Local Governments Employ

and Educate Millions of People with

Diverse Religious Views. .............................3

B. States Offer Substantial Religious

Accommodations in Schools and

Workplaces. ..................................................5

Summary of Argument .................................................. 8

Argument...................................................................... 10

I. The First Amendment Affords State and Local

Governments Substantial Latitude in Managing

Their Workforces. .............................................. 10

II. State and Local Governments Should Not Be

Compelled to Incorporate Religious Speech in

School Events. ................................................... 16

A. Allowing a Public-School Employee to

Engage in Religious Speech During

School Events Creates a Substantial

Risk of Coercion. .........................................16

B. The Use of Prayer in School Settings

Undermines Religious Freedom. ...............19

C. Public Employers Must Retain

Authority to Address Disruptive

Conduct on School Property. .....................22

Conclusion .................................................................... 25

ii

TABLE OF AUTHORITIES

Cases

Page(s)

Board of Educ. of Ind. Sch. Dist. No. 92 of

Pottawatomie Cnty. v. Earls, 536 U.S. 822

(2002) .................................................................... 10

Board of Educ. of Westside Cmty. Schs. (Dist.

66) v. Mergens, 496 U.S. 226 (1990) .................... 17

Borough of Duryea v. Guarnieri, 564 U.S. 379

(2011) .................................................................... 10

Connick v. Myers, 461 U.S. 138 (1983) ..................... 10

Doe v. Duncanville Indep. Sch. Dist., 994 F.2d

160 (5th Cir. 1993) ............................................... 17

Edwards v. Aguillard, 482 U.S. 578 (1987) ......... 17,20

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

Engquist v. Oregon Dep’t of Agric., 553 U.S.

591 (2008) ............................................................. 10

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

Janus v. American Fed. of State, Cnty. & Mun.

Emps., Council 31, 138 S. Ct. 2448 (2018) .......... 11

Lane v. Franks, 573 U.S. 228 (2014) ......................... 11

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

Mahanoy Area Sch. Dist. v. B.L., 141 S. Ct.

2038 (2021) ............................................................. 9

Illinois ex rel. McCollum v. Board of Educ. of

Sch. Dist. No. 71, Champaign Cnty., Ill.,

333 U.S. 203 (1948) ......................................... 21,24

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

Mueller v. Allen, 463 U.S. 388 (1983) ....................... 16

New Jersey v. T.L.O., 469 U.S. 325 (1985) ............... 22

iii

Cases

Page(s)

Phillips v. City of Dawsonville, 499 F.3d 1239

(11th Cir. 2007) .................................................... 12

Pickering v. Board of Educ. of Twp. High Sch.

Dist. 205, Will Cnty., 391 U.S. 563 (1968) ............. 8

Prince v. Massachusetts, 321 U.S. 158 (1944) .......... 20

Renken v. Gregory, 541 F.3d 769 (7th Cir. 2008) ..... 11

Ross v. Breslin, 693 F.3d 300 (2d Cir. 2012)........ 11,13

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

(2000) .......................................................... 16,17,19

School Dist. of Abington Twp. v. Schempp, 374

U.S. 203 (1963) ..................................................... 17

Shanley v. Northeast Indep. Sch. Dist., Bexar

Cnty., 462 F.2d 960 (5th Cir. 1972) ..................... 22

Wallace v. Jaffree, 472 U.S. 38 (1985) ................. 16,19

Waters v. Churchill, 511 U.S. 661 (1994) ................. 10

Weintraub v. Board of Educ. of City Sch. Dist.

of City of N.Y., 593 F.3d 196 (2d Cir. 2010) ........ 12

Williams v. Dallas Indep. Sch. Dist., 480 F.3d

689 (5th Cir. 2007) ............................................... 11

Laws & Regulations

Cal. Gov’t Code

§ 12926 .................................................................... 7

§ 12940 .................................................................... 6

Del. Code Ann. tit. 19, § 711 ....................................... 6

D.C. Code

§ 2-1401.11.............................................................. 6

§ 2-1402.41.............................................................. 6

Haw. Rev. Stat. § 378-2 ............................................... 6

iv

Laws & Regulations

Page(s)

Haw. Code R. § 12-46-155 ........................................... 8

Ill. Comp. Stat. ch. 775, § 5/2-102 ............................... 6

Mass. Gen. Laws, ch. 151B, § 4................................... 6

Me. Rev. Stat. Ann. tit. 5, § 4572 ................................ 6

Md. State Gov’t Code Ann. § 20-606 ........................... 6

Mich. Comp. Laws § 37.2202 ...................................... 6

Minn. Stat. Ann.

§ 363A.08 ................................................................ 6

§ 363A.13 ................................................................ 6

N.J. Stat. Ann. § 10:5-12 .......................................... 6,7

N.M. Stat. Ann. § 28-1-7.............................................. 6

N.Y. Educ. Law

§ 12 .......................................................................... 6

§ 224-a..................................................................... 6

§ 342-a..................................................................... 6

§ 809 ........................................................................ 6

§ 3210 ...................................................................... 6

N.Y. Exec. Law § 296 ............................................. 5,6,7

Or. Rev. Stat.

§ 659a.030 ............................................................... 6

§ 659A.033 .............................................................. 7

Miscellaneous Authorities

D.C. Dep’t of Human Res., Reasonable Accommodation of Religious Observance or Practices

(Mar. 22, 2022),

https://edpm.dc.gov/issuances/reasonableaccommodation-religious-observance-orpractice-march-2022/.............................................. 8

v

Miscellaneous Authorities

Page(s)

D.C. Pub. Schs., Anti-Discrimination Policy:

Students (Oct. 2021),

https://dcps.dc.gov/sites/default/files/dc/sites/dc

ps/page_content/attachments/AntiDiscrimination-Policy_Students.pdf........................ 6

Donald Sabo et al., High School Athletic

Participation and Postsecondary Educational

and Occupational Mobility: A Focus on Race

and Gender, 10 Socio. of Sport J. 44 (1993) .......... 18

Jean M. Williams et al., Factor Structure of the

Coaching Behavior Questionnaire and Its

Relationship to Athlete Variables, 17 Sport

Psychol. 16 (2003) ................................................... 18

John M. Barron et al., The Effects of High School

Athletic Participation on Education and Labor

Market Outcomes, 82 Rev. of Econ. & Stat. 409

(2000) ....................................................................... 18

Kelly P. Troutman & Mikaela J. Dufur, From

High School Jocks to College Grads: Assessing

the Long-Term Effects of High School Sport

Participation on Females’ Educational Attainment, 38 Youth & Soc’y 443 (2007) ........................ 18

Kris Bryant, Take a Knee: Applying the First

Amendment to Locker Room Prayers and

Religion in College Sports, 36 J. Coll. & Univ.

L. 329 (2009) ........................................................... 18

N.Y. Att’y Gen., Civil Rights Bureau, Religious

Rights in the Workplace (2020),

https://ag.ny.gov/sites/default/files/religious_ri

ghts_in_the_workplace.pdf ...................................... 8

vi

Miscellaneous Authorities

Page(s)

N.Y. Governor’s Office of Emp. Relations,

Procedures for Implementing Reasonable

Accommodation of Religious Observance or

Practices for Applicants and Employees (Oct.

2020),

https://goer.ny.gov/system/files/documents/202

0/10/reasonableaccommodationreligion.pdf ............ 8

National Ctr. for Educ. Statistics, Fast Facts: Backto-school statistics (2021),

https://nces.ed.gov/fastfacts/display.asp?id=372 .... 4

National Ctr. for Educ. Statistics, State Education

Practices (2017),

https://nces.ed.gov/programs/statereform/tab1_

2-2020.asp ................................................................. 3

Nicholas Holt et al., Benefits and Challenges

Associated with Sport Participation by

Children and Parents from Low-Income

Families, 12 Psychol. of Sport & Exercise 490

(2011) ....................................................................... 18

Pew Research Ctr., In U.S., Decline of

Christianity Continues at Rapid Pace (2019),

https://www.pewforum.org/2019/10/17/in-u-sdecline-of-christianity-continues-at-rapid-pace/ ..... 4

Pew Research Ctr., Religious Landscape Study

(2014), https://www.pewforum.org/religiouslandscape-study/age-distribution/ ........................ 4,5

Public Religion Research Inst., The 2020 Census

of American Religion (2021)

https://www.prri.org/wpcontent/uploads/2021/07/PRRI-Jul-2021Religion.pdf ............................................................ 4,5

vii

Miscellaneous Authorities

Page(s)

Sara Pedersen & Edward Seidman, Team Sports

Achievement and Self-Esteem Development

Among Urban Adolescent Girls, 28 Psychol. of

Women Q. 412 (2004) ............................................. 18

Sarah J. Donaldson & Kevin R. Ronan, The

Effects of Sports Participation on Young

Adolescents’ Emotional Well-Being, 41

Adolescence 369 (2006)........................................... 18

U.S. Dep’t of Labor, Bureau of Lab. Statistics, The

Employment Situation-February 2022 (Mar. 4,

2022),

https://www.bls.gov/news.release/archives/emp

sit_03042022.htm ..................................................... 3

U.S. Dep’t of Labor, Off. of the Ass’t Sec’y for

Admin. & Mgmt., Religious Discrimination

and Accommodation in the Federal Workplace

(n.d.),

https://www.dol.gov/agencies/oasam/civilrights-center/internal/policies/religiousdiscrimination-accommodation................................ 8

INTERESTS OF AMICI STATES

Amici are the States of New York, California,

Delaware, Hawai‘i, Illinois, Maine, Maryland,

Massachusetts, Michigan, Minnesota, New Jersey,

New Mexico, and Oregon, and the District of Columbia.

Amici have an interest in this case as public employers

that are governed by the First Amendment with respect

to their management of employees, and as regulators of

elementary, secondary, and postsecondary publicschool systems. Collectively, amici employ more than

2 million people and oversee the education of more than

17.5 million children and more than 5.8 million college

and graduate students.

Amici are proud of the extensive religious diversity

in our communities. Amici have adopted multiple legislative, regulatory, and policy-based measures to ensure

that employees and students who engage in religious

observance are able to fully participate in their workplaces and schools without fear of discrimination. At

the same time, amici have an obligation to ensure that

schools and workplaces operate safely and effectively

and that no religious views are prioritized above others.

Accordingly, amici have developed accommodation

procedures that respect the religious views of publicschool students and government employees without

undermining or interfering with the operation of

schools and workplaces that serve millions of people

daily. Amici have developed these practices in substantial reliance on this Court’s precedents holding that the

First Amendment permits great latitude to state and

local governments in creating workforce-management

and school-administration policies.

A ruling in favor of petitioner would undermine

amici’s interests in multiple ways. First, petitioner asks

2

this Court to strip governmental employers of the ability to rely on an objective evaluation of an employee’s

speech in relation to his or her job duties when considering what constitutes government rather than private

speech. Petitioner offers no alternative legal standard

on which employers and courts can rely to distinguish

between private and governmental speech and therefore

introduces substantial uncertainty in an important and

frequently litigated area of the law.

Second, petitioner seeks a ruling that would harm

amici’s interests in promoting religious freedom in

public education. Petitioner asks this Court to permit a

public-school employee to incorporate prayer into a

public-school event. Such a ruling creates a substantial

risk that students who hold different religious views

would feel either chilled from participation in the event

or coerced into expressing the same religious views.

Petitioner acknowledges that governments have an

important interest in avoiding coercion and concedes

that at least one student felt pressured into participating in petitioner’s religious speech. Yet petitioner

offers no legal standard or limiting principle that would

effectively address the substantial risk of coercion.

Moreover, allowing a public-school employee to use

prayer in a school event risks shaming, alienating, or

angering family members and other members of the

community who do not share the same religious beliefs.

The purpose of the First Amendment is to protect

rather than undermine religious pluralism.

Finally, petitioner seeks to restrict the ability of

amici and other public employers to discipline employees engaged in disruptive conduct on school property.

Amici often place reasonable restrictions on access to

and use of spaces like high school football fields to

prevent crowding, disorder, or other public disruptions.

3

Petitioner repeatedly acknowledges that he was

“pugilistic” in his efforts to engage in publicly visible

and audible religious speech on a high school football

field and celebrates the “pugilistic response” from the

community to his behavior, which among other things

included a melee on the field that threatened the safety

of students. A ruling in petitioner’s favor would unduly

prioritize a particular individual’s demand to express

religious speech in exactly the manner that he wants

over amici’s interests in protecting the safety of other

staff, students, families, and members of the public.

STATEMENT

A. State and Local Governments Employ

and Educate Millions of People with

Diverse Religious Views.

State and local governments employ approximately

19.5 million people, or more than 13% of the American

nonfarm workforce.1 More than half of state and local

government employees (approximately 10.6 million

people) work in elementary, secondary, or postsecondary educational settings.2

All States have compulsory education laws

mandating school attendance for children, typically

from the ages of 6 to 18.3 Approximately 49.4 million

children in the United States attend public elementary

1 U.S. Dep’t of Labor, Bureau of Lab. Statistics, The Employment Situation—February 2022, tbl. B-1 (Mar. 4, 2022) (internet).

2 Id.

3 National Ctr. for Educ. Statistics, State Education Practices,

tbl. 1.2 (2017) (internet).

4

or secondary schools; this figure represents approximately 90% of school-aged children.4 States and local

governments also educate over 70% of college and

graduate students in the United States: approximately

14 million students attend public colleges and universities.5

The composition of American public schools and

public workforces reflects the demographic characteristics of the communities in which these schools and

workforces are located. Overall, the United States

contains an astounding diversity of religious views:

recent surveys show that among U.S. adults, 43%

identify as Protestant, 26% identify as atheist, agnostic, or as “nothing in particular,” 20% identify as

Catholic, 2% each identify as Mormon or Jewish, and

1% each identify as Muslim, Buddhist, and Hindu, with

another approximately 4% of adults identifying with

another Christian or non-Christian faith.6 Religious

diversity is especially stark among Americans under

the age of 50.7

Amici States are home to communities with even

greater religious diversity: nine of the ten most religiously diverse counties in the country are located in

amici States, with four of the most diverse counties

located in New York, 2 counties located in Maryland,

4 National Ctr. for Educ. Statistics, Fast Facts: Back-to-school

statistics (2021) (internet).

5 Id.

6 See Pew Research Ctr., In U.S., Decline of Christianity

Continues at Rapid Pace (2019) (internet).

7 See Public Religion Research Inst., The 2020 Census of

American Religion (“PRRI Census”) 11 (2021) (internet); see also

Pew Research Ctr., Religious Landscape Study (2014) (Age Distribution) (internet).

5

and 1 county located in each of California, Hawai‘i and

New Jersey.8 Each of New York’s 62 counties has

greater religious diversity than the national average,

as is true in 8 other amici States as well as the District

of Columbia.9 For example, among adults in Kings

County (i.e., Brooklyn) in New York, approximately

35% are Protestant or identify with another nonCatholic Christian faith, 27% identify with no religious

affiliation, 19% are Catholic, 12% are Jewish, 4% are

Muslim, and 1% each are Hindu and Buddhist.10 Similarly broad ranges of religious diversity can be found in

communities across the country including Los Angeles,

Detroit, Minneapolis, and the District of Columbia.11

B. States Offer Substantial Religious

Accommodations in Schools and

Workplaces.

Amici States are proud of the religious diversity in

our communities and have taken extensive measures to

protect our residents from religious discrimination in

the workplace and in schools. For example, the New

York State Human Rights Law prohibits all employers

(including public employers) from discriminating

against employees based on their religious practices and

observances, including discrimination based on clothing

or facial hair worn in accordance with an employee’s

religion. N.Y. Exec. Law § 296(10). Other amici likewise

8 PRRI Census, supra, at 21-23.

9 Id.

10 Id. (detailed maps).

11 See, e.g., Pew Research Ctr., Religious Landscape Study

(2014) (Geography) (internet).

6

provide protections against workplace discrimination

based on religion.12

Amici also protect students from discrimination by

educational institutions based on religion. For example,

Minnesota prohibits discrimination “in the full utilization of or benefit from any educational institution”

based on religion. See Minn. Stat. Ann. § 363A.13(1).

The District of Columbia Public Schools Anti-Discrimination Policy prohibits discrimination based on “[a]

person’s actual or perceived shared ancestry or ethnic

characteristics, including membership in a religion that

may be perceived to exhibit such characteristics (such

as Hindu, Jewish, Muslim, and Sikh individuals).”13

New York’s Education Law protects public school students who are required to miss classes, assignments, or

tests due to religious observance as well as students who

are harassed or bullied because of religious practices.

See, e.g., N.Y. Educ. Law §§ 12(1), 224-a, 342-a(1),

809(4), 3210(b). Amici have enacted various other state

laws to protect students from religious discrimination

in school settings. See, e.g., D.C. Code § 2-1402.41; N.Y.

Exec. Law § 296(4).

While amici are committed to protecting religious

freedoms, it is also the case that state and local

governments perform numerous crucial functions and

12 See, e.g., Cal. Gov’t Code § 12940; 19 Del. Code Ann. § 711;

D.C. Code § 2-1401.11(a); Haw. Rev. Stat. § 378-2; 775 Ill. Comp.

Stat. 5/2-102; Me. Rev. Stat. Ann. tit. 5, § 4572; Md. State Gov’t

Code Ann. § 20-606; Mass. Gen. Laws, ch. 151B, § 4; Mich. Comp.

Laws § 37.2202; Minn. Stat. Ann. § 363A.08; N.J. Stat. Ann. § 10:512; N.M. Stat. Ann. § 28-1-7; Or. Rev. Stat. § 659a.030.

13 D.C. Pub. Schs., Anti-Discrimination Policy: Students 5

(Oct. 2021) (internet).

7

must be available to serve the interests of their constituents. To that end, amici’s antidiscrimination laws

generally provide that both private and public employers may balance the interests of their employees in

religious observance with the interests of their workplaces. For example, New York’s Human Rights Law

provides that an employer must make a “bona fide

effort” to grant an employee’s request for a religious

accommodation, but it permits the employer to deny

such a request or to offer an alternative accommodation

if the requested accommodation would cause an undue

hardship. N.Y. Exec. Law § 296(10)(a), (d). And under

New York’s law, an accommodation necessarily constitutes an undue hardship if it significantly interferes

with the safe and efficient operation of the workplace

or leaves the employee unable to perform the essential

functions of the position in which he or she is employed.

Id. Other amici have similarly structured laws. See,

e.g., Cal. Gov’t Code § 12926(u); N.J. Stat. Ann. § 10:512; Or. Rev. Stat. § 659A.033.

Through their many years of experience with

managing a diverse workforce, amici have developed

comprehensive accommodation policies that respect the

religious views and practices of individual employees

while ensuring that governments can continue to

provide crucial public services and conform with their

constitutional obligation not to endorse any particular

religion. Effective accommodation policies require collaboration, flexibility, and respect for the unique considerations applicable to government employment. Reasonable accommodations should be tailored to the nature

of the underlying request and may include scheduling

changes, exceptions to dress codes, or the designation

8

of a specific work location for private prayer.14 In

amici’s experience, government employers have been

able to accommodate their employees’ religious

practices without sacrificing effective government

operations by working with employees to come up with

nondisruptive but meaningful accommodations.

Formal accommodations policies also provide

detailed processes and procedures which help both

employers and employees carefully approach sensitive

discussions. For example, several of amici’s policies for

their employees provide that certain requests for routine accommodations can be made and granted informally, set forth procedures and timelines for written

accommodation requests of a more complicated nature,

and notify employees of available remedies if they are

dissatisfied with the employer’s decision to deny or

modify an accommodation request.15

SUMMARY OF ARGUMENT

In the First Amendment context, “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. Board of Educ. of

14 See, e.g., N.Y. Att’y Gen., Civil Rights Bureau, Religious

Rights in the Workplace (2020) (internet); Haw. Code R. § 12-46155; see also U.S. Dep’t of Labor, Off. of the Ass’t Sec’y for Admin.

& Mgmt., Religious Discrimination and Accommodation in the

Federal Workplace (n.d.) (internet).

15 See, e.g., N.Y. Governor’s Office of Emp. Relations, Procedures for Implementing Reasonable Accommodation of Religious

Observance or Practices for Applicants and Employees (Oct. 2020)

(internet); D.C. Dep’t of Human Res., Reasonable Accommodation

of Religious Observance or Practices (Mar. 22, 2022) (internet).

9

Twp. High Sch. Dist. 205, Will Cnty., 391 U.S. 563, 568

(1968). Accordingly, it is well settled that the First

Amendment does not bar governmental employers

from disciplining public employees for statements the

employees make pursuant to their official duties.

Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). Here, the

court of appeals correctly found that petitioner Joseph

Kennedy, a high school football coach, was speaking

while carrying out his job duties when he prayed on the

field surrounded by students immediately following

games. Kennedy’s arguments to the contrary are based

on strawmen analogies and make a hash out of the

straightforward Garcetti standard.

Even if Kennedy were speaking as a private citizen

subject to First Amendment protections, “courts must

apply the First Amendment ‘in light of the special

characteristics of the school environment.’” Mahanoy

Area Sch. Dist. v. B.L., 141 S. Ct. 2038, 2044 (2021)

(quoting Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S.

260, 266 (1988)). “[T]here are heightened concerns with

protecting freedom of conscience from subtle coercive

pressure in the elementary and secondary public

schools.” Lee v. Weisman, 505 U.S. 577, 592 (1992). In

this case, allowing Kennedy to hold a public prayer as

part of a school event would risk chilling participation

in the underlying event by students whose religious

views differed from Kennedy’s, and could cause students to feel compelled to partake in the religious

speech as a perceived condition of participation on the

football team: issues that the record shows had actually

occurred in the past, with respect to one student who

felt “compelled to participate” in Kennedy’s prayers

because he feared that he otherwise “wouldn’t get to

play as much.” (J.A. 234; see Pet. App. 21.)

10

Finally, state and local governments have an

obligation to “maintain[] discipline, health, and safety”

in school settings. Board of Educ. of Ind. Sch. Dist. No.

92 of Pottawatomie Cnty. v. Earls, 536 U.S. 822, 830

(2002). Respondent Bremerton School District offered

Kennedy several accommodations that would permit

his religious observance without creating a disorderly

public spectacle. Kennedy categorically refused the

accommodations and instead engaged in disruptive onfield conduct that resulted in a melee on at least one

occasion. The First Amendment does not require public

employers to set aside their legitimate public safety

interests in favor of an employee’s desired form of

speech.

ARGUMENT

I.

The First Amendment Affords State and

Local Governments Substantial Latitude

in Managing Their Workforces.

This Court has long recognized that governmental

entities have a significant interest in avoiding disruptions in government workplaces and therefore are

entitled to considerable constitutional leeway when

acting as employers as opposed to sovereigns. See, e.g.,

Borough of Duryea v. Guarnieri, 564 U.S. 379, 386

(2011); Engquist v. Oregon Dep’t of Agric., 553 U.S. 591,

598-600 (2008); Garcetti, 547 U.S. at 417-20; Waters v.

Churchill, 511 U.S. 661, 671-75 (1994) (plurality op.)

(discussing additional examples). “Government employers, like private employers, need a significant degree of

control over their employees’ words and actions; without it, there would be little chance for the efficient

provision of public services.” Garcetti, 547 U.S. at 418;

see also Connick v. Myers, 461 U.S. 138, 142 (1983).

11

In Garcetti, this Court held that “when public

employees make statements pursuant to their official

duties, the employees are not speaking as citizens for

First Amendment purposes, and the Constitution does

not insulate their communications from employer discipline.” 547 U.S. at 421. See also Janus v. American Fed.

of State, Cnty., & Mun. Emps., Council 31, 138 S. Ct.

2448, 2474 (2018) (“[W]hen public employees are performing their job duties, their speech may be controlled

by their employer.”).

Garcetti created a straightforward test: if a government employee is speaking “pursuant to his duties” or

as “part of what he, as a [government employee] was

employed to do,” the First Amendment does not apply,

and the government employer retains full discretion to

discipline the employee as it deems appropriate. 547

U.S. at 421.

Although individual applications of Garcetti are

typically fact-bound, courts have developed readily

administrable legal standards that give both employers

and employees sufficient clarity when determining

whether speech is pursuant to a public employee’s

duties. Courts generally look to “the nature of the plaintiff’s job responsibilities, the nature of the speech, and

the relationship between the two” as well as “[o]ther

contextual factors.” Ross v. Breslin, 693 F.3d 300, 306

(2d Cir. 2012). “The critical question under Garcetti is

whether the speech at issue is itself ordinarily within

the scope of an employee’s duties, not whether it merely

concerns those duties.” Lane v. Franks, 573 U.S. 228,

240 (2014).

Speech is pursuant to a public employee’s official

job duties when it is “undertaken in the course of performing one’s job,” Williams v. Dallas Indep. Sch. Dist.,

12

480 F.3d 689, 694 (5th Cir. 2007); aids in the fulfillment

of official responsibilities, Renken v. Gregory, 541 F.3d

769, 773 (7th Cir. 2008); or is part and parcel of carrying out job requirements, Weintraub v. Board of Educ.

of City Sch. Dist. of City of N.Y., 593 F.3d 196, 202 (2d

Cir. 2010). Because “a public employee’s duties are not

limited only to those tasks that are specifically designated,” Phillips v. City of Dawsonville, 499 F.3d 1239,

1242 (11th Cir. 2007), speech can be pursuant to official

responsibilities “even though it is not required by, or

included in, the employee’s job description, or in

response to a request by the employer,” Weintraub, 593

F.3d at 203. The inquiry turns on whether the challenged speech “owes its existence to a public employee’s

professional responsibilities.” Garcetti, 547 U.S. at 421.

The court of appeals’ decision in this case is a clearcut application of Garcetti and its progeny. The parties

did not dispute that Kennedy’s official duties as a football coach “encompassed his post-game speeches to students on the field” and Kennedy himself conceded that

he remained on duty at the conclusion of football games

until players were released from the locker room. (Pet.

App. 15-17; see also Pet. App. 32 (op. of Christen, J.).)

Kennedy’s prayer therefore constituted “expression on

the field—a location that he only had access to because

of his employment—during a time when he was generally tasked with communicating with students.” (Pet.

App. 15.) Contrary to Kennedy’s assertion (Br. for Pet.

at 34), the court did not hold that every word uttered

by a public-school employee while on duty constitutes

government speech under Garcetti. Rather, the court

concluded, based on undisputed facts, that Kennedy’s

postgame prayers were delivered in the course of his job

responsibilities.

13

Kennedy’s arguments to this Court turn Garcetti’s

objective inquiry on its head. While Kennedy concedes

that he was employed by the school district “to engage

in some forms of speech on the field, such as calling

plays, communicating with referees, and giving motivational talks,” he contends that his prayer was intended

to be purely private conduct akin to “calling home or

making a reservation for dinner at a local restaurant.”

Br. for Pet. (“Pet. Br.”) 28-29 (quotation marks omitted). By no stretch of the imagination was Kennedy’s

speech private: as the court of appeals observed below,

“Kennedy insisted that his speech occur while players

stood next to him, fans watched from the stands, and

he stood at the center of the football field.” (Pet. App.

15.) Although Kennedy insists that his proximity to

students “make[s] little difference” to whether his

speech was part of his official duties (Pet. Br. 33), a

football coach’s job duties must be defined at least in

part by his relationship with athletes. Even the most

casual observer of sports (or sports movies, for that

matter) would understand that Kennedy’s postgame

speeches to players are “part and parcel” of his job

duties, see Ross, 693 F.3d at 305, while phone calls to

his home or a local restaurant might not be. While

Kennedy denies that this case is about “employ[ing]

prayer or religious content during a post-game speech

to students on the field” (Pet. Br. 31), that is in fact the

very conduct in which Kennedy engaged and the

specific conduct for which he was disciplined (Pet. App.

22). Simply put, Kennedy’s midfield prayers with

players immediately following football games were

undertaken while he was discharging his responsibilities as a football coach. The form of Kennedy’s

speech “owes its existence” to his official job duties and

14

is not protected by the First Amendment. See Garcetti,

547 U.S. at 421.

If accepted, Kennedy’s contrary position would

frustrate the efficiency and effectiveness of government

employers by dramatically expanding the scope of their

potential First Amendment liability. Kennedy offers no

functional test by which an employer or a court can

evaluate whether an employee is speaking pursuant to

his official capacities. Instead, Kennedy argues that the

factors on which the court of appeals relied are insufficient. Pet. Br. 29-35. But these factors—namely,

Kennedy’s job duties and responsibilities as a coach

(Pet. App. 14-15), the temporal context in which

Kennedy’s speech occurred (Pet. App. 16-17), and the

fact that he was surrounded by students when engaging in audible prayer (Pet. App. 15-16)—are exactly the

kinds of objective factors that an employer and court

should examine to determine whether speech is private

or public under well-settled law. Kennedy offers no

alternative factors or legal standards that would

preserve the important distinction drawn by Garcetti or

offer any meaningful clarity to governmental employers

making managerial and disciplinary decisions.

As an alternative to a legal standard, Kennedy

appears to argue that prayer is by necessity private

speech irrespective of the context in which it is delivered. See Pet. Br. 29-35. Such a rule simply jettisons

Garcetti’s chief holding that speech by government

employees is different from speech by private citizens,

and it circumvents the requirement that courts first

determine whether an employee was speaking in a

public or private capacity before engaging in First

Amendment analysis. The fact that religious speech

might be protected in other contexts is irrelevant to the

inquiry of whether the expressions of a government

15

employee in particular circumstances constitute public

or private speech.

A blanket exception to Garcetti for what Kennedy

terms “private prayer” is also unworkable in practice

because it offers employers no standard by which they

can distinguish purportedly private religious observance from state-sponsored prayer led by government

officials, the latter of which is unquestionably barred

by the Establishment Clause. See Lee, 505 U.S. at 58789. As the Bremerton School District notes (Br. for

Resp. at 22-23), Kennedy’s subjective characterization

of his prayer as “brief” and “private” does not accord

with an objective view of the undisputed record

evidence of his actual behavior. Among other things,

the record contains Kennedy’s admissions to the Equal

Employment Opportunity Commission that his prayers

were “audible” and that the number of players that

joined in the prayers “grew to include a majority of the

team” (J.A. 126), as well as several photographs of

Kennedy praying in the middle of the field while

surrounded by many students (J.A. 82, 97-98). If the

application of the First Amendment in employment

settings turns on an employee’s subjective beliefs

rather than objective fact, government employers may

be restricted in limiting many categories of problematic

conduct, such as a teacher who engages in audible but

purportedly private prayers while students are in the

classroom or a school librarian who sits in the middle

of a room surrounded by children while reading Bible

stories aloud in a way that she (but not others)

perceives as private. The distinction between private

and public speech rightfully rests on objective criteria

about an employee’s duties, and not on the subjective

views of the speaker.

16

II. State and Local Governments Should Not

Be Compelled to Incorporate Religious

Speech in School Events.

A. Allowing a Public-School Employee to

Engage in Religious Speech During

School Events Creates a Substantial

Risk of Coercion.

State and local governments have a strong

“interest in facilitating education of the highest quality

for all children within [their] boundaries.” Mueller v.

Allen, 463 U.S. 388, 395 (1983) (quotation marks omitted). As discussed above (at 3-5), the United States has

considerable religious diversity, and public schools often

serve students from many different religious backgrounds. The government’s ability to protect the right

of every student “to choose his own creed” and “to refrain

from accepting the creed established by the majority” is

integral to the state interest in public education.

Wallace v. Jaffree, 472 U.S. 38, 52 (1985). Public schools

cannot protect religious diversity if they must permit

their employees to subject students to religious speech

as an explicit or implied condition of participation in

school activities—whether a class, a sport, a dance, a

recital, or a yearbook club.

Prayers that “are authorized by a government

policy and take place on government property at government-sponsored school-related events” raise substantial

concerns regarding religious coercion. Santa Fe Ind.

Sch. Dist. v. Doe, 530 U.S. 290, 303 (2000) (holding that

policy permitting prayer at the beginning of football

games violates the Establishment Clause). The unique

nature of the public-school setting—including statemandated attendance, the age of students, and the in

loco parentis role that schools often play—means that

17

“the line between voluntary and coerced participation

may be difficult to draw.” Board of Educ. of Westside

Cmty. Schs. (Dist. 66) v. Mergens, 496 U.S. 226, 261-62

(1990) (Kennedy, J., concurring in part). Accordingly,

the incorporation of prayer or other forms of religious

speech in school events has long been understood to

place students in the impermissible position of choosing

between attending and participating in school activities, or not attending to avoid religious rituals to which

they object. See, e.g., Lee, 505 U.S. at 593; Santa Fe, 530

U.S. at 311-12.

Concerns about coercion are increased when school

officials and employees direct or participate in the

religious speech. See Edwards v. Aguillard, 482 U.S.

578, 584 (1987) (noting that “students emulate[e]

teachers as role models”). When a teacher or coach prays

while interacting with students at a school event, there

is “public pressure, as well as peer pressure, on attending students” to participate in that prayer. Lee, 505

U.S. at 593. See also Doe v. Duncanville Indep. Sch.

Dist., 994 F.2d 160, 165 (5th Cir. 1993) (holding that the

Establishment Clause prohibits middle school basketball coach from holding postgame prayers with students). Students who hold different religious views are

placed “in the dilemma of participating, with all that

implies, or protesting” and exposing themselves to the

risk of opprobrium from school officials and peers. Lee,

505 U.S. at 593. See also School Dist. of Abington Twp.

v. Schempp, 374 U.S. 203, 289-90 (1963) (Brennan, J.,

concurring).

Although considerations of coercion are prevalent

in elementary and secondary school settings generally,

they are especially potent in athletics. The ability to

participate in high school sports is extremely important

for many students. Participation in athletics can be a

18

crucial path to economic mobility and is associated with

many positive economic and educational outcomes,

including higher graduation rates, higher college

attendance rates, and higher future wages.16 Participation in sports also has many social, physical, and

mental health benefits, including increased confidence

and self-esteem and the development of teamwork,

leadership, and discipline skills.17 At the same time,

coaches play a powerful and influential role over a

student-athlete’s development, including control over

playing time and assistance in college recruitment and

future professional sport or nonsports careers.18 It is

not difficult to see how a student’s understandably

strong desire to participate in sports combined with the

16 See, e.g., Kelly P. Troutman & Mikaela J. Dufur, From High

School Jocks to College Grads: Assessing the Long-Term Effects of

High School Sport Participation on Females’ Educational Attainment, 38 Youth & Soc’y 443 (2007); John M. Barron et al., The

Effects of High School Athletic Participation on Education and

Labor Market Outcomes, 82 Rev. of Econ. & Stat. 409 (2000);

Donald Sabo et al., High School Athletic Participation and

Postsecondary Educational and Occupational Mobility: A Focus on

Race and Gender, 10 Socio. of Sport J. 44 (1993).

17 See, e.g., Nicholas Holt et al., Benefits and Challenges Associated with Sport Participation by Children and Parents from LowIncome Families, 12 Psychol. of Sport & Exercise 490 (2011); Sarah

J. Donaldson & Kevin R. Ronan, The Effects of Sports Participation

on Young Adolescents’ Emotional Well-Being, 41 Adolescence 369

(2006); Sara Pedersen & Edward Seidman, Team Sports Achievement and Self-Esteem Development Among Urban Adolescent Girls,

28 Psychol. of Women Q. 412 (2004).

18 See Kris Bryant, Take a Knee: Applying the First Amendment to Locker Room Prayers and Religion in College Sports, 36 J.

Coll. & Univ. L. 329, 355-56 (2009); Jean M. Williams et al., Factor

Structure of the Coaching Behavior Questionnaire and Its Relationship to Athlete Variables, 17 Sport Psychol. 16, 16 (2003)

(describing coach as “the most important person in determining

the quality and success of an athlete’s sport experience”).

19

unique relationship between a coach and studentathlete can create an atmosphere of extreme susceptibility to coercion.

Religious coercion harms students in many ways.

For example, students (or their parents) who object to

the religious speech of a teacher or coach may decide

not to participate in a class or activity simply to avoid

the speech. Such a decision would unfairly deprive

objecting students of access to educational or extracurricular opportunities, including programs associated

with college scholarships, job and skills training, and

social development. Other participants in these classes

and activities would likewise be deprived of the unique

perspectives and contributions of the objecting students. Alternatively, and often much more likely,

students who object to the religious speech of a particular teacher or coach may find themselves implicitly or

explicitly pressured to participate in the religious activity. For example, the record here shows that at least

one student in fact felt coerced into participation in

Kennedy’s prayers because of a fear about reduced

playing time. (Pet. App. 21; J.A. 234.) Even if the participation of students in any given event or class

theoretically could be characterized as voluntary, the

incorporation of school-sanctioned prayer in that event

“has the improper effect of coercing those present to

participate in an act of religious worship.” Santa Fe,

530 U.S. at 312.

B. The Use of Prayer in School Settings

Undermines Religious Freedom.

“[T]he individual freedom of conscience protected

by the First Amendment embraces the right to select

any religious faith or none at all.” Wallace, 472 U.S. at

53. “When the government puts its imprimatur on a

20

particular religion, it conveys a message of exclusion to

all those who do not adhere to the favored beliefs.” Lee,

505 U.S. at 606 (Blackmun, J., concurring).

The introduction of prayer in school events erodes

key constitutional protections because “[w]hen 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). Religious

speech at school events also undermines the public’s

faith in the integrity of the public school system because

families “condition their trust [in public schools] 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, 482 U.S. at 584. Absent the presence of

competing state concerns about health and safety, children have the right to exercise their own religion and

parents have the right to give their children their own

preferred religious training (or no religious training at

all). Prince v. Massachusetts, 321 U.S. 158, 166 (1944).

Petitioner characterizes his requested relief as

merely a demand for religious tolerance. Pet. Br. 23.

Amici strongly support the values of religious tolerance

in schools and workplaces. See supra at 5-6. But, as this

Court has noted, “what might begin as a tolerant

expression of religious views may end in a policy to

indoctrinate and coerce” and “[w]hat to most believers

may seem nothing more than a reasonable request that

the nonbeliever respect their religious practices, in a

school context may appear to the nonbeliever or

dissenter to be an attempt to employ the machinery of

the State to enforce a religious orthodoxy.” Lee, 505

U.S. at 592.

21

It is undisputed that Kennedy’s prayers evolved

over time to include students, opposing coaches and

players, and even members of the community. (Pet.

App. 20-21.) On at least one occasion, Kennedy

“actively sought support from the community in a manner that encouraged individuals to rush the field to join

him and resulted in a conspicuous prayer circle that

included students.” (Pet. App. 21.) The court of appeals

correctly concluded that the school district’s acceptance

of such conduct could easily be construed as state

endorsement of Kennedy’s particular brand of religious

speech, and that this understanding would be evident

to both those persons who share Kennedy’s views and

those who do not. (Pet. App. 22-23.)

Petitioner’s amici suggest that a school district can

avoid giving the impression of endorsement by “explaining that tolerance of religious views and practices does

not constitute endorsement.” Br. for Twenty-Seven

States as Amici 14-15. But it is difficult to see how this

solution could work in practice. It would hardly promote

mutual respect for diverse religious views if the school

district distributed flyers or made announcements on

the loudspeaker at every football game disclaiming

association with Kennedy’s postgame prayers. Indeed,

attempts at distancing the school from religious speech

may result in threats to government officials and other

school staff—and the record shows such threats did

occur in this case—which exacerbate rather than reduce

the harm caused by such speech. Amici’s proposed

solution would only further entangle a public school

with religious speech in direct contravention of the First

Amendment. See Illinois ex rel. McCollum v. Board of

Educ. of Sch. Dist. No. 71, Champaign Cnty., Ill., 333

U.S. 203, 216-17 (1948) (op. of Frankfurter, J.).

22

C. Public Employers Must Retain Authority

to Address Disruptive Conduct on School

Property.

This Court has recognized in a variety of different

contexts that the government’s substantial interest in

maintaining discipline in the classroom and on school

grounds requires flexibility in the application of constitutional principles. New Jersey v. T.L.O., 469 U.S. 325,

339-40 (1985). “[D]ue to the special features of the

school environment, school officials must have greater

authority to intervene before speech leads to violence”

and disruption. Morse v. Frederick, 551 U.S. 393, 425

(2007) (Alito, J., concurring). Thus, speech and expressive acts in high schools, whether undertaken by students or by others, are subject to restrictions greater

than those that the First Amendment normally

permits, precisely because of the paramount governmental interests in promoting order and discipline.

Shanley v. Northeast Indep. Sch. Dist., Bexar Cnty., 462

F.2d 960, 969 (5th Cir. 1972).

In this case, the Bremerton School District was

justified in disciplining Kennedy because his conduct

grew increasingly disruptive and threatened the safety

and well-being of students, staff members, and district

officials. Kennedy’s social media posts and media

appearances about the district’s request that he stop

engaging in public midfield prayer after football games

resulted in the school district being “flooded with thousands of emails, letters, and phone calls from around

the country . . . many of which were hateful or threatening.” (Pet. App. 5 (quotation marks omitted).) Certain

school employees felt physically threatened (Pet. App.

2), including another football coach who did not reapply

for a coaching position because of the unsafe situation

23

that Kennedy’s actions had created for staff and

students (J.A. 347).

In late October 2015, Kennedy’s actions escalated

when he gave numerous media interviews about his

intent to pray after the next scheduled football game

notwithstanding the school’s directive. The school

district became so alarmed about public reaction to

Kennedy’s media appearances (including an announcement from a Satanist group that it intended to conduct

a ceremony on the field at the same time) that the

district arranged for security with the Bremerton Police

Department, made and posted signs restricting access

to the field, and made robocalls to parents advising

them that postgame access to the field would be

restricted. Despite these precautionary measures,

Kennedy’s prayer at the conclusion of the next game

triggered a crush of spectators jumping the fence to join

Kennedy on the field. The melee resulted in several

students being knocked over and the principal later

testified that the school was unable to keep pupils safe

during this event. (Pet. App. 7-9.)

Kennedy’s refusal to participate in a good-faith

accommodations process further justified the district’s

remedial actions. As described above (at 6-8), amici

have extensive experience crafting accommodations

that allow employees to engage in religious observance

without interfering with or undermining the safe operation of the workplace. Here, the Bremerton School District offered Kennedy several such accommodations,

including private locations for prayer within the school

building, athletic facility or press box, or the ability to

return to the field to pray after students had left the

field; the district also invited Kennedy to suggest other

accommodations. (J.A. 94, 306-307.) Kennedy instead

demanded to continue his desired practice of praying at

24

midfield immediately after games. (J.A. 307.) But the

risk to public safety would not have ceased even if the

school district had acceded to Kennedy’s demands,

because, among other things, additional religious groups

(such as the Satanist organization) were reasonably

likely to demand to conduct similar religious exercises

on school property. Such requests would likely have

stoked even more public attention, anger, and concern.

The events that occurred in this case are not

surprising; courts have long understood that “overt

religious exercise in a secondary school environment” is

divisive by its nature. Lee, 505 U.S. at 588; see also

McCollum, 333 U.S. at 227-28, 231 (op. of Frankfurter,

J.). Indeed, Kennedy emphatically endorses his “pugilistic” response to the school district’s efforts to manage

the disruptive conduct of a public-school employee and

asserts that all school districts “should expect a pugilistic response” when seeking to restrict religious speech

on school property. Pet. Br. 42; see id. at 23. In essence,

Kennedy argues that school districts are powerless to

restrict religious speech on school property no matter

the capacity of such speech to incite disruption and

disorder. But nothing in this Court’s First Amendment

jurisprudence requires state and local governments to

set aside their interests in public safety to elevate an

employee’s demand to express religious speech in a

particular way. To the contrary, this Court has

repeatedly held that the interest in safety and discipline in school settings trumps an inflexible application

of constitutional doctrines.

In sum, a rule that requires public employers to

accept any and all demands by their employees for

religious expression, regardless of corresponding risks

to safety and workplace operations, would substantially jeopardize the ability of government to properly

25

function and would threaten public welfare. Such a rule

would be especially dangerous in public school settings,

where religious speech is always a matter of substantial public attention and concern, and where the student population is particularly young and vulnerable.

CONCLUSION

The judgment of the United States Court of

Appeals for the Ninth Circuit should be affirmed.

Respectfully submitted,

LETITIA JAMES

Attorney General

State of New York

BARBARA D. UNDERWOOD*

Solicitor General

ANISHA S. DASGUPTA

Deputy Solicitor General

ESTER MURDUKHAYEVA

Assistant Deputy

Solicitor General

barbara.underwood@ag.ny.gov

April 2022

* Counsel of Record

(Counsel listing continues on next page.)

26

ROB BONTA

Attorney General

State of California

1300 I St.,

Sacramento, CA 95814

MAURA HEALEY

Attorney General

Commonwealth of

Massachusetts

One Ashburton Pl.

Boston, MA 02108

KATHLEEN JENNINGS

Attorney General

State of Delaware

820 N. French St.

Wilmington, DE 19801

DANA NESSEL

Attorney General

State of Michigan

P.O. Box 30212

Lansing, MI 48909

HOLLY T. SHIKADA

Attorney General

State of Hawai‘i

425 Queen St.

Honolulu, HI 96813

KEITH ELLISON

Attorney General

State of Minnesota

75 Rev. Dr. Martin Luther

King Jr. Blvd.

St. Paul, MN 55155

KWAME RAOUL

Attorney General

State of Illinois

100 West Randolph St.

Chicago, IL 60601

MATTHEW J. PLATKIN

Acting Attorney General

State of New Jersey

25 Market St.

Trenton, NJ 08625

AARON M. FREY

Attorney General

State of Maine

6 State House Station

Augusta, ME 04333

HECTOR BALDERAS

Attorney General

State of New Mexico

P.O. Drawer 1508

Santa Fe, NM 87504

BRIAN E. FROSH

Attorney General

State of Maryland

200 Saint Paul Pl.

Baltimore, MD 21202

ELLEN F. ROSENBLUM

Attorney General

State of Oregon

1162 Court St. N.E.

Salem, OR 97301

(Counsel listing continues on next page.)

27

KARL A. RACINE

Attorney General

District of Columbia

400 6th St., NW

Washington, D.C. 20001