Courthouse Steps Oral Argument Webinar: Kennedy v. Bremerton School District

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On April 25, 2022, the U.S. Supreme Court will hear oral argument in Kennedy v. Bremerton School District.

Bremerton School District in Washington state removed Coach Joe Kennedy from his job as a public high school football coach after kneeling in brief, quiet prayer on the field after football games. Coach Kennedy filed suit alleging that the school district’s ban on “demonstrative religious activity” violated his First Amendment rights under the Free Speech and Free Exercise Clauses.

In 2019, on appeal of the denial of a preliminary injunction, the U.S. Supreme Court declined the petition for review, allowing further factual development. Justice Alito, joined by Justices Thomas, Gorsuch, and Kavanaugh, issued a statement respecting the denial of certiorari, writing that the “Ninth Circuit’s understanding of the free speech rights of public school teachers is troubling and may justify review in the future.”

This year, the Supreme Court granted cert on two questions concerning the interplay of the Free Speech, Free Exercise, and Establishment Clauses:

  1. Whether a public-school employee who says a brief, quiet prayer by himself while at school and visible to students is engaged in government speech that lacks any First Amendment protection.
  2. Whether, assuming that such religious expression is private and protected by the Free Speech and Free Exercise Clauses, the Establishment Clause nevertheless compels public schools to prohibit it.

We will break down the argument on the same day, April 25, 2022.


Stephanie Taub, Senior Counsel, First Liberty

Note: Coach Kennedy is represented by Kirkland & Ellis and First Liberty Institute. 


As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript

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Nicholas Marr:  Welcome everyone to this The Federalist Society virtual event as this afternoon, April 25, 2022, we’re having a Courthouse Steps Oral Argument Webinar on a case argued this morning called Kennedy v. Bremerton School District. I’m Nicholas Marr, Assistant Director of Practice Groups here at The Federalist Society. As always, please note that expressions of opinion on our call today are those of our expert. We’re very glad to be joined this afternoon by Stephanie Taub. She’s Senior Counsel at First Liberty Institute. A quick note, First Liberty and Kirkland and Ellis represented Coach Kennedy in this case and in these arguments. This morning, the case was argued by Paul Clement at the Supreme Court for Kennedy, and we’ll get more details on who argued what and a review of the case, a review of the arguments, and where the case might go from Stephanie. So Stephanie, thanks very much for being with us. The floor is yours.


Stephanie Taub:  All right. Wonderful. Thank you, Nick. And thank you to everyone who is listening in today. We’re going to talk about the oral argument that happened this morning, just a few hours ago, before the Supreme Court. And as Nick mentioned, the case was Kennedy v. Bremerton School District. So in a very short summary of the case for anyone that hasn’t been following it, we have a high school football coach who lost his job after taking a knee for brief, quiet prayer after football games.


So a brief history, in 2008, before his very first game at Bremerton High School in Washington, he made a commitment to God to give a prayer of thanksgiving after every game, and he did so for around seven years. He started praying alone at first, and then over the years, students asked to join him. And he told them that it was a free country. In 2015, the school district told him to stop involving students, and he complied. But the school district fired him anyway, explaining that they were removing him from his job because they were concerned about Establishment Clause liability, specifically concerns that allowing the coach’s fleeting religious expression would be seen as official endorsement of religion. And they specifically banned him because this was religious activity. So he brought a religious discrimination lawsuit under the Free Speech and Free Exercise Clauses of the U.S. Constitution.


So this case has the potential to impact teachers and coaches, First Amendment rights across the country. And it really could help clarify the law with respect to the Establishment Clause, which, as I’m sure most of you know, is in need of clarification. So my firm is the First Liberty Institute, and we, along with Kirkland and Ellis, represent Coach Joe Kennedy. Paul Clement, former Solicitor General of the United States, argued on behalf of the coach this morning. And Americans United for Separation of Church and State represent the school district. Richard Katskee argued for the respondent, the school district.


All right. So let’s jump right into the argument analysis. So big picture, today’s argument was very philosophical. The questions were trying to get at the heart of the First Amendment issues here and address the potential tensions that we see sometimes between the Free Exercise Clause, the Free Speech, and the Establishment Clause. So I wanted to touch on the main key issues that keep coming up. All right. And so, the first one is the free speech argument.


So the main threshold issue here is whether this is government speech or private speech. When Coach Kennedy, immediately after football games, goes and takes a knee in a quiet prayer, is that -- should that be considered the government speaking, or should that be considered his own private speech? So the argument from the school district has been that the coach still has responsibilities after the game. He still has general -- or he still is on duty. He has the responsibility to make sure that the team players get to their next location appropriately. And so, the school district’s lawyer said you have to look at the time, place, manner of the speech and look at whether the objective observer would think that the speech is government speech or private speech.


And the main argument from Coach Kennedy, from our side, is that not everything you do during the school day should be considered government speech. And Paul Clement pointed to Garcetti’s caution against overly broad job descriptions. So if the government is allowed to make its employees’ job descriptions so broad that it encompasses everything you do every second from the moment you arrive to the moment you leave work, then that could be too far and infringe on the First Amendment rights of teachers, coaches, and other government employees. After all, Tinker has been clear that teachers, as well as students, don’t lose their First Amendment rights when they step through the schoolhouse gates.


So some of the questions that were notable from the argument this morning get at – well, Thomas asked -- or I guess he phrased it as a statement -- we know that this isn’t part of his job because the school didn’t know about Coach Kennedy’s religious expression for years. And then, when they did find out, they told him not to do this. So that gets at the question of how can this be government speech if the school clearly does not endorse it, clearly does not want to send this message, has been very public about not wanting to send this message. So it’s odd to think that Coach Kennedy is sending a government message when he is kneeling in private prayer.


And then some of the questions from Kavanaugh and Barrett pose an interesting hypothetical to test the limits of the school district’s argument is if you made the sign of the cross, for example, right before games, it would be strange to see that as government speech rather than private speech because you have a fleeting action that’s clearly -- it’s clearly religious and personal in nature, and it’d be really odd for an observer to think that what they’re doing is somehow speaking on behalf of the school district. So that’s the first main tension here in this case -- is whether this is going to be considered government speech or private speech. If it is government speech, then the school has much more leeway to exercise control and censorship.


But if it’s private speech, that gets into the next set of questions, which is if it’s private speech -- so let’s say Coach Kennedy, when he kneels at the 50-yard line after games, is speaking on his own behalf. When he’s just saying a 15- to 30-second prayer, you can see that he’s religious; he’s just speaking on his behalf. Okay, then what? How should courts analyze this? Should they apply the Pickering balancing test like it does for political speech? Or should it apply strict scrutiny because this is religious discrimination, a discrimination against religious speech similar to the kinds that you see against students that the Court has been clear is religious discrimination in Rosenberger, Good News Club, things like that—cases like that.


Barrett asked the question -- Justice Barrett asked the question, “Have we ever applied Pickering to straight up Free Exercise claim when we’re talking about religious discrimination?” And the school district’s attorney, Katskee, said no, that this Court hasn’t done that. He argued that the Court has applied Pickering to a Petition Clause claim, but it hasn’t done so in the Free Exercise context. So there’s a really fundamental question of if this is private speech, which test should apply. And the school district’s argument was he didn’t think that political speech should be given more protection than religious speech. That was one point that he made a few times.


And on the other side, Coach Kennedy points out, “Well, strict scrutiny is a better fit because it provides this framework to evaluate the specific sincerely held religious belief of the employee and then to look at that in the context of whether the school has a compelling interest.” And so, if you’re concerned about workability -- Paul Clement said, “Please don’t replace the Establishment Clause or endorsement jurisprudence with Pickering balancing because then you’re just going to encounter a lot of the same workability, lack of predictability concerns that you have when you’re talking about -- that are kind of coming up in one of the frequent criticisms of Establishment Clause case law in this area.” And so, Justice Barrett also asked a very interesting question. If we think this is private speech, is there an Establishment Clause issue because what’s the state action? If the employee is speaking on his own behalf and not on behalf of the school, can it be an Establishment Clause question? What’s the state action -- which is a very interesting way of thinking about it, 


And that leads us to the second main fundamental bucket of issues that we’re talking about. So the first one was what do you do with -- how do you look at the free speech question that’s going on here. Is it public or -- or is it private versus government speech? And then, if it’s private speech, which test applies? And then, the other set of questions, and probably the most interesting takeaway of the oral argument this morning—which, if you haven’t had a chance to listen to it, is just fascinating for the Establishment Clause issues that came up—some of the justices want to clarify what the Establishment Clause is really getting at and which test to use.


So some of the justices, notably Gorsuch, Kavanaugh -- Kavanaugh made the point that the Supreme Court hasn’t used the Lemon endorsement test in two decades. Lower courts are still applying Lemon, are still applying endorsement test, particularly in school context. But SCOTUS’s cases have been much more focused in on the history and tradition of the Establishment Clause. You can look at Van Orden. You could look at Town of Greece. You can look at American Legion. And Kavanaugh said this. And then Gorsuch took that and said, “Okay, one of the difficult things in this case is the rationale that the school district gave for its discipline of Coach Kennedy was its fear of endorsement concerns.” They didn’t list any other -- they didn’t list anything else, really. The main concern was the endorsement concerns. They listed it eight times in their letters that were explaining the reason why they were suspending Coach Kennedy and not planning on rehiring him. Gorsuch asked, “What do we do if we think that the school district applied the wrong test?”


They fired him for endorsement concerns. But endorsement hasn’t been the test for decades. They really should have been looking at the Court’s most recent jurisprudence, which is much more in line of American Legion, not in line of endorsement. And even Breyer explained that Lemon has -- or acknowledged that Lemon has imperfections. But Breyer, on the other hand -- Justice Breyer was explaining that the Establishment Clause—or his view of the Establishment Clause—is that it’s there to prevent the country from becoming more divisive on the basis of religion, and he worries about the workability or how many -- he specifically asked how many cases would it be calling into question if you jettisoned Lemon -- if you jettisoned the Lemon test.


So these back-and-forths really get at -- it’s possible we could see something in the opinion that clarifies that the endorsement test is not good law. It’s not the framework that schools should be using to decide cases like this. In fact, if you’re looking at a case like this, they could say that endorsement is not appropriate, or they could say that Lemon in this context is not appropriate. But that would be a game-changer if the Court could clarify some of these issues.


And then the other main Establishment Clause concern was raised by Sotomayor and Justice Kagan, specifically when Kagan was talking about -- she asked specifically what the point of the Establishment Clause is. If you look at the school district -- the school prayer cases, what is it getting at? And in her perspective, it was getting at this issue of student coercion. She made the point, okay, you’re not contesting the right. So Coach Kennedy is not contesting the right of a school district to discipline Coach Kennedy if it prayed during the official post-game talk, which he is not. He has agreed with the school district to keep religion out of his post-game talk. I mean, he’s still just looking to kneel for a brief 15- to 30-second prayer on the field. But if you look -- and so, Justice Kagan responded, so why? Why is that not okay, but what you’re asking for is okay? In her perspective, if you look at the prayer cases, the idea of when a school can discipline him, it emphasizes coercion and whether there is undue pressure to participate in religious activities.


And Paul Clement, over the course of the argument, had a few different responses to that. So the first response is, “Well, this really isn’t about -- if you look at the record of this case, the record’s clear that it’s not about coercion, that this school was concerned about endorsement.” They said the word endorsement over and over and over again. They acknowledged in their letter that there has been no coercion, that all of the student activity has been voluntary, that the coach’s activity was fleeting, and that he never coerced anyone, so that -- if you look at the contemporaneous evidence of the time. So that would the first response. And then the other one is there’s a difference between direct coercion, which everyone agrees is wrong and violates the rights of students, and there’s a difference between that and what could be called implicit peer pressure, which is the term that Kavanaugh used.


So the really interesting point is that this isn’t an issue that’s -- so it’s certainly possible that students could feel pressure to agree with their teachers or their coaches on a variety of issues, and that’s not specific to religion. And so, that was an interesting point. And so, maybe there are certain responses to that. Schools should work really hard to eliminate coercion. But if you want to go so far as to eliminate even the specter of this sort of implicit peer pressure, you might have to go so far as to overrule Tinker, get rid of teacher expression altogether because anything that’s sufficiently expressive—any sort of teachers’ speech—could have that sort of effect. So really, why are you treating religion differently from a variety of different other sorts of concerns? And so, that’s an interesting tension, and we’ll see how the Court responds to that.


And Kavanaugh -- so he was taking a look at the Establishment Clause school prayer cases, and he pointed out to Engel, Lee v. Weisman, and Santa Fe. And he was saying that there are different kinds. There are the kinds where you are compelled to say the prayer or compelled to be present, which is Engel, Lee, Santa Fe, and that Santa Fe is really one of the more directly analogous because it has to do with football, or at least seems on point on this case. Paul Clement’s response was that Santa Fe can be distinguished in a variety of ways. A lot of the case turned on the school’s official sponsorship of an election, where the school put forth an election for all of the students to pick a designated representative that could have the opportunity to give a prayer, which is a lot more government involvement than you have here. And then this also has the prayers given out over the loudspeaker, which is certainly not what’s going on here.


So for taking a step back in a prediction for what the opinion might say, it’s not dispositive, of course, but a helpful starting point to look at how the case might break down is to look at the last time this case came before the Supreme Court. So the last time, the case went all the way up in 2019 on a preliminary injunction stage, and the Court denied cert at the time in order to allow for more development of the factual record. In there, four justices joined an opinion dissenting from the denial of cert—so that was Alito, Kavanaugh, Thomas, and Gorsuch. So that’s not dispositive, of course, of how they’ll rule in this case, but it does show that at least a few years ago, they had serious concerns about the Ninth Circuit’s reasoning below. They called the reasoning troubling and were very concerned about creating a broad rule or rubberstamping -- or condoning a broad rule that would allow schools to consider virtually everything a teacher does to be school speech and therefore subject to school censorship. So because of that we have those four, and then a lot of eyes are going to be on Justice Barrett and Chief Justice Roberts to see how they’re going to vote in this case.


So it’s hard to read into Justice Roberts based on his questioning here. But Justice Barrett seemed very engaged and asked some pointed questions of the other side. So we’re optimistic that this case could be a win for teacher rights, for the freedom of expression, that teachers do not abandon their First Amendment rights when they sign up to be public school teachers and coaches. So a very exciting moment. Will the Court finally put an end to Lemon or just another stake in Lemon? Will the Court finally put an end to the endorsement test? Could the Court clarify that, just like Rosenberger and Good News Club line of cases, schools do not discriminate against private teacher speech on the basis of religion? And will the Court clarify Tinker’s promise that teachers as well students don’t lose their First Amendment rights when they walk through the schoolhouse gates? And so, I welcome all of your questions.


Nicholas Marr:  Great. Thanks, Stephanie. That was a great overview. So we’re looking to you, the audience, for questions now. Please submit them via chat or Q&A chat. We’ll take them as they come in. But my first question, Stephanie—I like to ask it when we are on the heels of any oral argument—anything particularly surprising to you? Anything unexpected? Did anything like that stand out to you?


Stephanie Taub:  Well, honestly, the focus on Lemon was interesting because the Court doesn’t -- Breyer made the point that the Court doesn’t necessarily have to go there. But some of the justices—Gorsuch, Kavanaugh—seemed very intent on clarifying the law in that area. And because this case did turn on the school district’s stated rationale, which was based in the endorsement rationale, it could provide a perfect opportunity for the Court to say, “Well, the school district was saying that we’re afraid that a reasonable observer would see this as endorsement.” And the Court says, “Schools don’t have to worry about that anymore because XYZ is now the proper test.” An opinion could say something like that. So that’s an exciting line of questioning.


Nicholas Marr:  So if the Court were to go that way, what should replace the endorsement test?


Stephanie Taub:  Yeah, so that’s a great question. I mean, we talked about coercion, actual coercion. But that really is derived from the American Legion, Town of Greece history and tradition. So you have to look at what the purpose of the Establishment Clause was, how it was applied at the founding, and the maybe six buckets of concerns that the founders had at the beginning for what makes something an establishment of religion. What was the kind of activities that they were concerned about that would create an establishment of religion? So that’s the kind of questions that the Court really should be asking.


Nicholas Marr:  Very interesting. Just curious, we don’t have any audience questions yet. Just a reminder, please submit them via the chat, and we’ll take them as we can. And actually, let’s see. One just popped up. Well, you kind of addressed this at the end. But what is the future of Lemon, the Lemon test? Do we think the Court might finally do away with it? Maybe a quick primer for people who don’t know about it. The Lemon test, what is it? What are the prongs? And then, what’s the future of it?


Stephanie Taub:  Yeah. The Lemon test is a test that’s been around for decades, that it was trying to come up with a -- it was a very ambitious project to try to describe what constitutes an Establishment Clause violation. And so one of the prongs of the Lemon test -- so you look at the purpose of the activity. You look at whether it’s endorsing religion and whether the principle effect is going to be supporting or against religion. So that’s Lemon in a nutshell. And it’s been very unworkable. The majority of the Court, at various points in time, has had a lot of criticisms about it, how it’s trying to be -- it kind of was pulled out of thin air and is trying to be a guidelines for courts but really just turns into a framework that is stacked against religion primarily because of the endorsement test. And then it’s also very malleable that leads to really inconsistent arguments in the different cases.


And then the endorsement test is kind of like Lemon-lite. So it is just one prong of Lemon but sometimes is used as dispositive. So you don’t look at anything else. You just look at whether a reasonable observer would see this as a government endorsing or favoring religion or non-religion or one particular religion over others. And if that’s the case, then game over, and it’s an Establishment Clause violation. And so, that can lead school districts across the country to have a very hostile position toward religion. They can see their -- school district lawyers often—when we encounter them—they can see their role as to scrub the campus of anything that even partakes of the religious on campus. And that can lead to infringing on the personal independent rights of teachers or students. You see that sometimes. If you have this overzealous interpretation of the Establishment Clause, which has been fed by these older endorsement cases, it can lead to schools just overcorrecting and going and infringing on the private First Amendment rights of teachers and students.


I point you to the Notre Dame brief, amicus brief supporting Coach Kennedy, which talks about the endorsement test and some of the problems that it’s had in administrability and how some schools across the country that encountered the same question can come out on very different sides of any particular issue. That’s a great amicus brief to look at.


Nicholas Marr:  Yeah. Good point. Staying on the matter of tests for a second, is the Gordon test in this context simply based on the age of students, the young age, I suppose? Without that presumption, what’s the ground of coercion? How could one gauge it, if or when a child is coerced?


Stephanie Taub:  Yeah. So there are -- I mean, that’s a good question. Some of the Supreme Court’s cases have held this coercion concerns are stronger when you’re talking about younger children than when you’re talking about college-aged or high-school-aged children. The concerns might not be as strong. That didn’t really play a lot in the oral arguments today. They didn’t talk much about the age of the children. But everyone did agree that if there was evidence of direct coercion or of being forced to participate in religious activity, then that would not -- that would clearly be shameful and not allowed.


Nicholas Marr:  This question is about the facts of the case. Several of the justices raised questions regarding whether the facts are sufficiently clear. For example, Justice Breyer asked Paul Clement to respond to many—the questioner says six—statements of fact. How likely is it that a majority of the Court might dismiss the case as improvidently granted or remanded for clarification of the facts?


Stephanie Taub:  Right. So that’s a good question. Justice Breyer did raise those -- made a point that there were facts in dispute. But I mean, if you look at the -- so it’s true. If you read both sides’ briefs, which is true in probably virtually every case, there’s very different stories being told. But if you look at the actual facts of what happened on any particular day, it was substantial agreement on everything that’s main. And so, the real reason why there’s this difference in the stories is because it’s, “What are we deciding to focus on?” For instance, some of the school district’s focus has been on Coach Kennedy’s previous practice before the school told him to not involve students. But Paul Clement said you have to look at the reason the school gave at the time for why they disciplined Coach Kennedy. And they pointed to two particular games. And on both of those games, he was not praying with the Bremerton students, and that’s not really in dispute. So the factual issues, once you break them down, are not as much in dispute as you might think from just a quick reading of the brief.


Nicholas Marr: That makes sense. Well, staying on this questioner from [inaudible 28:47] for a second. The questioner asks that Clement seemed very forceful in urging the justices not to remand back to the Ninth Circuit. Do we really think you might have a majority that would remand the case, and if so, what reason would they give?


Stephanie Taub:  I’m not sure. It’s interesting to note that the case was put up to en banc, a vote, the Ninth Circuit before, and it just barely didn’t have enough votes for en banc review. And there were quite a few good opinions. I guess Judge O’Scannlain’s opinion dissenting from the denial of en banc review, that’s really worth looking at. How likely is it that the case will be remanded back to the Ninth Circuit? I mean, it’s hard to tell. If the Court really digs into the record and looks at the reasons that were given at the time, which is pretty clear is concerned about endorsement -- it said it wasn’t concerned. It said there was no coercion. It said the activity was voluntary. there’s emails from the school district officials that say that the issue is not about praying with the players anymore. It’s about a coach’s personal right to pray. I’m hoping that the Supreme Court – I mean, the Supreme Court has enough. They can rule on this. They can set a clear rule, and we’ll just have to see what happens.


Nicholas Marr:  I was just thinking out loud here. Would the rule in this case be based on the Establishment Clause concerns of the school or, let’s say, the Free Exercise rights of the coach?


Stephanie Taub:  Yeah.


Nicholas Marr:  Or could it be either or both?


Stephanie Taub:  Yeah. So the coach brought a Free Speech claim and a Free Exercise claim. So the Free Speech claim, you have to look at whether it’s government speech or private speech. And I think it’s pretty clear that it’s private speech. And then you have to look at which case law applies, whether you apply strict scrutiny or the Pickering balancing test. And so, if you apply strict scrutiny, you can rule in favor of the coach, and you don’t even have to address the question of -- you don’t even have to address the question of the Establishment Clause and what test could apply. But if you want to have a home run here and say that Lemon is dead or at least that the endorsement test is no longer good law, that would be fantastic and just clarify that the only -- the only or main reason that the school district gave is not still good law. So school districts should not stop relying on the endorsement test.


Nicholas Marr:  Okay. This has come up in a couple of our questions. I’m going to try to kind of pull them together. Let’s say the Court does rule against the coach, and let’s say it goes to Free Speech route, one considers a speech—let’s say government speech, so that’s limited by his role or his office—how might that kind of ruling affect teachers’ abilities in other contexts? A couple of the examples that have come up—without getting into the weeds of them—are fights over the curriculum or whether students should be wearing masks or things like that. How might that kind of ruling, if at all, affect those other areas?


Stephanie Taub:  Yeah. I mean, we could see a real crackdown on teacher expression. And the concern there would be whether it’s going to be applied equally across the board. Because I could easily see school districts saying, “Oh, we’re not allowing teacher expression on paper,” and then if you look in practice, there are ways or kinds of expression that are still being discriminated against. So that’s really something to look out for. And then, one question that didn’t come up in my talk that I’m reminded of is a lot of the concerns that the school districts might have could be addressed by imposing a neutral rule.


So Paul Clement mentioned multiple times that this is an option for schools. So if they are concerned that something might be disruptive, for example, or that -- they can address some of these concerns by putting in place a rule that’s neutral toward religion, that just says, “Okay, these certain times are when you’re clearly on duty and you need to be actively engaging in these certain activities. And this is not a time for private activities,” or like a neutral rule when you’re talking about -- one of the questions that justice Barrett had was afterschool clubs that took place off-campus, that it seemed to be private and if there was some reason for concern about limiting those kinds of clubs, a school could put in place teachers cannot sponsor afterschool clubs at their homes or something like that. That would be an example of a religion-neutral rule that would probably be permissible. But you have to look at the particulars of the circumstances.


Nicholas Marr:  Yeah, interesting. Searching for the neutral principles, I suppose. Oh, this is good. We have a question trying to get in the weeds of how the justices might apply these kinds of tests. Can you speak to the potentially disruptive effect of the prayer when there’s—from the questioner—“so much public contention, cameras, local politicians, et cetera”? How, if in any way, does that set up -- maybe you might say it’s not disruptive or let’s say that, perhaps, it is disruptive -- how does that kind of consideration weigh into an application of any kind of endorsement test or coercion test or the prongs of the Lemon test?


Stephanie Taub:  Yeah. So that is an interesting question. As we said before, the school didn’t rely on that, that they were saying that their explanations was not because of disruption but because of endorsement concerns. And then also, there’s one game that the school district complains about—or their attorneys now complain about—as being disruptive. But if you look at the two games that followed it, there wasn’t disruption. There wasn’t any sort of -- there’s not even alleged to be disruption. So this is the sort of thing that could blow over. But we’ll see if – oh, I guess, we’ll see what they have to say about this particular question. I think you really have to go back what the school said contemporaneously at the time, that they said that that’s not what this case is about. This case is about whether -- about endorsement, and specifically because he could be seen doing something that is religious, the school thought that they had the obligation to censor him.


Nicholas Marr:  Well, one of our questioners, going right off this asked—and this might get right to the heart of things—can the Court decide the case on coercion grounds if it sees that in the facts, even if the parties see only endorsement? I mean, a decision like that could go either way. But what’s the -- I guess the question really is about the relationship between the facts, what the parties are arguing, and then what the justices can do.


Stephanie Taub:  Yeah. I mean, that kind of would be a -- I mean, the Court kind of has ability to do quite a lot of things. So I wouldn’t say that the Court can’t do something like that. So could they decide it on those grounds? They could. They could say this is what the proper test is, and this is how it should be applied in this circumstance, whether you’re talking about coercion or whether you’re talking about American Legion, and just go ahead and apply the facts to the law in that case. Another interesting point is that this is summary judgment. There are cross motions for summary judgment. Summary judgment was granted against Coach Kennedy. So to the extent there is a dispute on the facts, they have to be viewed in the light most favorable to Coach Kennedy.


Nicholas Marr:  Good. We got another question. This questioner says—this might touch on some questions asked already, but I’ll go to it anyways—how far could we see required non-endorsement go in schools if Kennedy’s speech is considered endorsement or, I suppose, it’s considered that the school endorses his speech by allowing him to pray in this manner? The example that comes to mind is kind of an extension of Justice Barrett’s point. Would simply wearing a crucifix necklace, could that be considered endorsed by the school if a teacher’s just wearing that?


Stephanie Taub:  It’s not an unheard-of argument. I mean, if you look at the state of Oregon, they had bans on teachers wearing religious garb—specifically, a teacher brought a case before the Oregon Supreme Court who was wearing a turban. That rule was not changed until maybe a decade ago, 2010, which is really, really recent to have. So these sorts of -- this argument that -- allowing teachers to do anything or wear anything that shows that they are religious could have some sort of a coercive pressure and indirect coercive pressure in various lights, and therefore, we’re going to censor it. We’ve seen it before. It could certainly happen again. One of my main worries is, is it going to be applied consistently, or is it just going to be applied against the disfavored groups? Whatever part of the country you’re looking at, you might see a disfavor in different groups. But either way, obviously, you don’t want that to happen.


So we’re kind of in this world right now in that schools right now are very afraid of being sued by groups like Americans United for Separation of Church and State, and they’re not as afraid of being sued for violating religious rights of students and teachers. And so, the Supreme Court has over and over and over and over again said that when you’re opening a forum, for example, when you’re talking about student speech, you can’t just single out religion and say you can’t come at it from a religious viewpoint. So the real hope here is that when we’re talking about teachers and teachers’ private speech, and something that is clearly private when you’re just kneeling for 30 seconds in prayer, that teachers are entitled to have that religious viewpoint and not be singled out for disciplinary treatment solely because this is a religious activity. And so, we’ve seen it over and over and over again in the student context. And now, we hope that they can apply it in the teacher context.


Nicholas Marr:  Great. I think we’ve gotten to most of these questions here. Any thoughts you have as we prepare to wrap up here. Anything you didn’t get to, any points of the case you didn’t cover? This is the obvious one. What do you think the decision will be?


Stephanie Taub:  I think it’ll be a decision in favor of Coach Kennedy. I think it’ll be a decision that clarifies that this is private speech and that, just like student speech, they can’t discriminate against private speech, private religious speech of teachers. And I hope that along the way, they can pepper in some clarification about the Establishment Clause law, but that would be a cherry on top. So that’s my prediction.


Nicholas Marr:  Great. Well, on behalf of The Federalist Society, Stephanie, I want to thank you very much for the benefit of your valuable time and expertise speaking to our audience about this case. Thank you to our audience for calling in your great, great questions. As always, keep an eye on your email and our website for announcements about upcoming events like this one, especially as the Supreme Court term winds down, we’ll be covering most of these big decisions in the coming months. So keep an eye out for that. Until next time, we are adjourned.




Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at