The Bremerton School District prohibited Coach Kennedy from “engag[ing] in demonstrative religious activity, readily observable to (if not intended to be observed by) students and the attending public.” App. 37, 81. The District suspended Coach Kennedy for violating this directive when he offered a prayer by himself on a football field in view of students. App. 49– 50, 81. The Ninth Circuit ruled that Coach Kennedy’s private act of prayer could be interpreted as government speech and that the District was therefore justified in curtailing Coach Kennedy’s religious expression.

…By concluding that Coach Kennedy acted as a public employee rather than a private citizen when kneeling and praying on the football field, the Ninth Circuit impermissibly expanded his job description in a way that leaves teachers and other public employees in the Ninth Circuit questioning what counts as public as opposed to private speech. The Ninth Circuit’s holding not only curtails the private religious expression of public employees, but it also contradicts well-settled precedent of this Court. The opinion countenances use of the Establishment Clause as a “sword for governments to defeat” Free Exercise Claims, instead of a “shield for individual religious liberty.” App. 94 (O’Scannlain, J., respecting the denial of rehearing en banc).

If left unreviewed, the Ninth Circuit’s decision threatens to curtail First Amendment liberties and in turn, deter individuals from seeking public employment. This will have grave effects on public employees and employers alike, especially within the realm of public education.

As Judge O’Scannlain recognized, the decision below is “at odds with Free Speech, Free Exercise, and Establishment Clause jurisprudence all at once[.]” App. 79. Such a case certainly warrants this Court’s review.

…First, the Ninth Circuit interpreted Garcetti v. Ceballos in a way that impermissibly curtails public employees’ right to express themselves as citizens. 547 U.S. 410 (2006). Although public employees “are not speaking as citizens for First Amendment purposes” when they “make statements pursuant to their official duties,” id. at 421, this Court has warned that employers cannot define an employee’s official duties so broadly as to unduly restrict employee expression, id. at 424; see also Lane v. Franks, 573 U.S. 228, 240 (2014) (“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.”).

…Second, by expanding the definition of employee speech, the Ninth Circuit panel also expands public employers’ potential liability for that speech. Because official communications have official consequences, including potentially binding a public employer or subjecting a public employer to liability, it is of vital importance that public employers can look to an employee’s actual job duties to distinguish messages communicated in a public capacity from the private speech of employees acting outside their duties. See, e.g., Roe v. Nevada, 621 F. Supp. 2d 1039, 1051 (D. Nev. 2007) (school district could be held liable for verbal and physical abuse within the scope of a teacher’s employment); Duyser by Duyser v. Sch. Bd. of Broward Cnty., 573 So. 2d 130, 131 (Fla. Dist. Ct. App. 1991) (school board not liable when teacher performed satanic rituals on students because the conduct was “definitely not authorized or incidental to authorized conduct”); McIntosh v. Becker, 314 N.W.2d 728, 732 (Mich. Ct. App. 1981) (school could not be held liable for alleged racial and sexual slurs made by teacher outside the scope of employment); Tall v. Bd. of Sch. Com’rs of Balt. City, 706 A.2d 659, 668 (Md. Ct. Spec. App. 1998) (school board could not be held liable for teacher who beat special education student because such acts were outside the scope of employment). It is simply not feasible—let alone constitutional—for a public employer to regulate every observable message (both verbal and nonverbal) that its employees communicate or that would not occur but for the public employment. With this limitation in mind, courts have, until now, cabined statements and conduct made in a public capacity to those within the scope of the employee’s actual job duties. The Court should grant review to restore that limitation.

…In addition to the problems already identified with the Ninth Circuit’s free speech analysis, the court’s opinion also turns the Establishment Clause on its head. The Ninth Circuit concluded that even if Kennedy’s prayers are private, protected speech, the District’s fears of Establishment Clause liability could justify discriminating against him based on the religious content of that speech. App. 17. That conclusion contravenes this Court’s precedent. See Widmar v. Vincent, 454 U.S. 263, 276 (1981). A government employer like the District can avoid violating the Establishment Clause while continuing to respect its employees’ rights to free speech and free exercise of religion. Respecting the proper balance not only ensures that individual constitutional rights are not infringed, but also protects government employers from the distasteful duty of policing their employees’ every word and deed.

Because the District targeted Coach Kennedy’s post- game prayers due to their religious nature, its actions must be “justified by a compelling governmental interest and must be narrowly tailored to advance that interest.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531–32 (1993). Preventing Establishment Clause liability may qualify as a compelling government interest, but “achieving greater separation of church and State than is already ensured under the Establishment Clause” never does. Widmar, 454 U.S. at 276; see also Good News Club v. Milford Cent. Sch., 533 U.S. 98, 112–13 (2001). By accepting the District’s justification here, the Ninth Circuit has “subvert[ed] the entire thrust of the Establishment Clause, transforming a shield for individual religious liberty into a sword for governments to defeat individuals’ claims to Free Exercise” and freedom of expression. App. 94 (O’Scannlain, J., respecting the denial of rehearing en banc). Read more»

Ken Paxton et al | In the Supreme Court of the United States, Kennedy v. Bremerton School District, Petition for Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit | No. 21-418

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