Apr 5, 2022
by Lisa Soronen, J.D., State and Local Legal Center
The State and Local Legal Center (SLLC) filed the amicus brief in Kennedy v. Bremerton School District. Citing previous U.S. Supreme Court decisions, the brief argues the First Amendment does not protect a public employee’s speech when the employee is engaged in official duties.
In Kennedy v. Bremerton School District, former assistant football coach Joseph Kennedy and the school district disagree over precisely why he was put on administrative leave. According to Kennedy, he wanted to say a “brief, quiet prayer by himself while at school and visible to students.”
According to the school district, “Kennedy made a spectacle of delivering midfield prayers at the immediate conclusion of games and insisted that students must be allowed to join.”
Kennedy claims his religious beliefs required him to pray at the end of each game, which he did for years. Students eventually joined him as he kneeled and prayed for about 30 seconds at the 50-yard line. When the school district found out, the superintendent directed Kennedy not to pray with students. After widely publicizing his plan, Kennedy announced he would pray after games even if students joined him, which they continued to do. He was ultimately put on administrative leave.
In Garcetti v. Ceballos (2006), the Supreme Court held that when government employees speak “pursuant to their official duties,” the First Amendment doesn’t protect their speech. Kennedy argues his speech was private and protected by the First Amendment.
The SLLC argues in its amicus brief that Kennedy’s praying was part of his official job duties, writing, “He prayed on duty while players were still in his charge, and contextual factors show that players would have reasonably viewed [his] prayers as a continuation of his earlier practice of delivering motivational religious speeches at the same time and location.”
More generally, the SLLC brief encourages the Court to recognize this “basic principle”: “[A]n employee speaks pursuant to his official duties if he speaks while on duty in a context aligning with the employee’s written or unwritten responsibilities and objective factors do not make it evident that the employee is speaking in his private capacity. The employee’s subjective intent that his speech further[s] private aims is not controlling. Nor is the fact that the employee’s speech expresses private beliefs that contradict the employer’s desired message.”
If the Court concludes Kennedy wasn’t speaking as an employee, the school district may still win. The school district argues it wins under Pickering balancing, which requires weighing the employer’s interests in regulating the speech and employee’s interest in speaking. The district argues it had multiple reasons for limiting Kennedy’s prayer including maintaining safety and order at district events and protecting the religious liberty interests of players who didn’t want to pray.
Kennedy argues that strict (fatal) scrutiny applies to the district’s decision to regulate his prayer because of Establishment Clause concerns and that he wins applying this analysis. “The notion that the government does not endorse private speech that occurs on the schoolhouse grounds just because it does not suppress it is not just a straightforward principle that students can understand. It is bedrock constitutional law.”
The SLLC agrees Pickering should apply but argues if the Court applies strict scrutiny, the school district wins. According to SLLC, “Governments have a responsibility to refrain from giving official approval to their employees’ religious expression, in order to avoid the appearance of favoring some religions over others (or religion over non-religion) and to avoid placing coercive pressure on others to participate.”
Michael Dreeben, Ephraim McDowell and Jenya Godina of O’Melveny & Myers wrote the SLLC brief, which the following organizations joined:
- National League of Cities,
- U.S. Conference of Mayors,
- International City/County Management Association,
- International Municipal Lawyers Association,
- International Public Management Association for Human Resources, and
- National Public Labor Employer Labor Relations Association.