Kennedy v. Bremerton School District
Oral argument transcript · No. 21-418 · October Term 2021 · argued April 25, 2022 · the petitioner won
Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court
Advocates
- Paul D. Clement, Washington, D.C., for the petitioner
- Richard B. Katskee, Washington, D.C., for the respondent
Transcript
From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.
Chief Justice Roberts: We'll -- we'll hear argument first this morning in Case 21-418, Kennedy versus Bremerton School District. Mr. Clement. ORAL ARGUMENT OF PAUL D. CLEMENT ON BEHALF OF THE PETITIONER
Paul D. Clement: Mr. Chief Justice, and may it please the Court: When Coach Kennedy took a knee at midfield after games to say a brief prayer of thanks, his expression was entirely his own. That private religious expression was doubly protected by the Free Exercise and Free Speech Clauses. When the School District fired him for that fleeting religious exercise out of endorsement concerns, it not only violated the First Amendment, but it -- it ignored a veritable wall of this Court's precedents that make clear that a school does not endorse private religious speech just because it fails to censor it. As much as the District would like to Official 1 change the subject, the record is clear that Coach Kennedy was fired for that midfield prayer, not for any earlier practices. And the record is equally clear that the District's sole reason for its actions was out of endorsement concerns, not concerns for band members' safety or how many players joined the coach in the prayer. In fact, Coach Kennedy was disciplined for events at two games in particular, October 23 and October 26. At the first of those games, it is undisputed that no one joined the coach in his prayer. Nonetheless, that solo prayer was Exhibit A in his firing. Exhibit B was the October 26 game, when no players joined him in the prayer. Yet, nonetheless, the District, throughout this case, both contemporaneously and to the EEOC and in deposition, has confirmed that the sole driving force behind its actions has been avoiding endorsement. The Ninth Circuit held that the District's actions not only comply with the First Amendment but are compelled by it. That decision is flatly inconsistent with this Official 1 Court's precedents. The Ninth Circuit's government speech holding ignores this Court's statement in Garcetti that -- that -- to avoid overly broad job descriptions. And the Ninth Circuit's Establishment Clause holding fails to grasp a basic teaching of this Court's cases that has been said over and over again and is simple enough for even young students to understand, that the government does not endorse all private religious speech just because it takes place on the school side of the gates. I welcome the Court's questions.
Justice Thomas: Mr. Clement, just so I'm clear, are you pursuing -- below, you had a free exercise claim and you had a free speech claim. Which are you pursuing? Are you pursuing both now, or are you pursuing them separately, or is this a -- sort of a hybrid claim argument you're making?
Paul D. Clement: So, Justice Thomas, we are pursuing them both. They're both fully preserved in this Court, but I do think you're right in the sense that this is a hybrid-type case in which the Free Speech Clause and the Free Exercise Clause reinforce each other, and I Official 1 think it directly enforces how -- it reinforces how the Court should approach the case because, when a government acts not because it's trying to maintain discipline in the school or maintain order or avoid disruption, but it's taking action precisely because the speech is religious and the school fears endorsement concerns, that's a case where strict scrutiny applies, and it's not just a case for ordinary Pickering balancing.
Justice Thomas: So where does Garcetti fit in? It seems as though that's muddying the water a little bit because you would not normally think of a free exercise claim as being amenable to Garcetti.
Paul D. Clement: Well, I think that's a fair point, Justice Thomas. I guess, if the -- if the -- if the statement really is the government's own speech, then I don't think you'd have the basis for either a free speech claim or a free exercise claim. It may be, though, that in deciding whether or not the coach's speech is his own speech or the government's speech, you might apply a slightly different test in the free Official 1 exercise context than you would in the free speech case. But either way, I think we are comfortably on the private side of the Garcetti inquiry because the Garcetti inquiry asks whether this is part of the coach's jobs -- job duties.
Justice Thomas: Well, we know it's not a part of his job, especially since the School District didn't know anything about it initially and it objected to it. So it can't be a part of his job.
Paul D. Clement: Well, that's music to my ears, Justice Thomas. And I would say, even beyond that, we know it's not part of his job duties for at least two other reasons. First of all, his job duty was not some all-encompassing responsibility for the players after the final whistle blew because the record is clear that he was able to have a private conversation, greet a spouse, and do things like that --
Justice Thomas: But how could you make a free exercise claim and say it's a part of his job?
Paul D. Clement: We're not. So we're -- Official 1 we're saying this isn't part of his job, so it's private speech, and, therefore, under free speech principles, it's subject to -- in our view, ultimately, because the government's action is religiously based, it's subject to strict scrutiny. But we'd also say, because it's not part of his job, it's private religious activity that's protected by the Free Exercise Clause.
Justice Sotomayor: Mr. Clement, I -- I -- I have been trying to parse this out in a similar way to Justice Thomas, but let me just give you a certain number of hypotheticals, and tell me what's -- when it becomes private and when it's still public. A teacher begins each of her classes with a silent prayer and an audible prayer. Now, when I say "begin," the bell rings, students are coming in, they sit down, teacher says the prayer privately or publicly. Is that within her duties as a teacher?
Paul D. Clement: I -- I would think so, Justice Sotomayor.
Justice Sotomayor: Why?
Paul D. Clement: Because it's -- it's Official 1 during instructional time. It's during a time where she has instructional duties --
Justice Sotomayor: How about before the bell rings?
Paul D. Clement: So the --
Justice Sotomayor: Students are coming in. She's reading the Bible. She's reading it out loud before the bell. Is it the bell that makes it within the time or not within the time?
Paul D. Clement: Well, I would say the bell is what makes your first hypothetical a relatively straightforward one. As to your second hypotheticals, because I think there's two things there, I think, if the -- if the -- if the teacher were, before the bell, reading her Bible at her desk either silently or barely audibly, that would be private speech. That would be protected. If before the bell but while the students are all there she's reading out loud to the class, I think that's -- that's kind of the -- the edge case, because there --
Justice Sotomayor: So let's take it to the end of the class. Class -- the students Official 1 are getting up. It is part of everyday life that as students leave they stop and they talk to the teacher. She gives them some answers to their questions about the lesson. But, instead of doing that, instead of waiting for those questions, she decides, I'm going to say a prayer. Is that within her duties to -- to -- is that personal, or is that still something that will be perceived as part of her work there?
Paul D. Clement: So, Justice Sotomayor, I think that's closer to the edge case, and I think what it would -- it would depend on, again, first of all, if, after the bell rings, she's reading the -- the Bible, because she's free to do whatever she wants, and she chooses to read the Bible and she does it either silently --
Justice Sotomayor: But she's not free to do everything she wants. She's required as part of her duties to be available to the students and answer their questions.
Paul D. Clement: Well, then it might be a situation where the -- in -- in that hypothetical, where she is essentially supposed Official 1 to be continuing to have some instructional obligations to the kids and she's not free to text her spouse --
Justice Sotomayor: Well, then --
Paul D. Clement: -- check her email --
Justice Sotomayor: -- let's take that, okay? She's not free to do that because it's personal, she could do it, but it's personal speech, not religious speech, to text her husband or to check the Internet. Could she be fired for texting her husband during school hours?
Paul D. Clement: Well, I -- I -- I think, if I'm understanding the hypo right, if it's a neutral rule, doesn't single out religious expression --
Justice Sotomayor: No -- no neutral rule. This is, if she does something that's private on office hours, this is her employer, her employer says to her, don't do private things when you're working, and she does it anyway, can she be fired?
Paul D. Clement: So that is a neutral rule as you're explaining it to me. I think that's important to my answer. Official
Justice Sotomayor: Any rule.
Paul D. Clement: So I just want to --
Justice Sotomayor: But -- but --
Paul D. Clement: -- I just want to make sure that's common ground. It's a neutral rule that you can't do anything private.
Justice Sotomayor: But why does it have to be a neutral rule? Meaning -- and -- and this is why I'm getting to this example. She's on duty. She's on duty in the classroom. And the duty is not from the beginning of the bell to the end of the bell. The duty is while she's in the classroom. So why can't an employer tell an employee what they're permitted to do, personal or otherwise, during that time? And I ask this question because I'm analogizing it to this situation. I found it odd in your brief that you just kept saying the coach wasn't on the field during the game. But I have a dozen or more statements by your coach telling and admitting that his duties as coach didn't -- weren't just during the game. He had an obligation to remain behind for two hours after the game finished. That was Official 1 part of his duties. He had a duty to make sure that he escorted all the players off the field. He had a duty to make sure the other team got off the field. He had a duty to do a post-game wrap-up both with the players and the coach. He had a duty to clean up and to make sure that the gym was left in good order. So I guess what I'm asking is, if he had all these duties and your employer says to you, these are the duties that you have and that's all I want you to do, why can't it choose to say, and the one duty I don't want you to do is to do this one because you are an example to your players? You admit that that's part of your duties. If it's not part of his duties to set the example the school wants, why can't the school fire a coach who decides to put a Nazi swastika on their arm and go to the middle of the field and pray? If someone comes up and says, that's part of my religion, could the school say no to them?
Paul D. Clement: So, Justice Sotomayor, I think there were maybe three different hypotheticals there, and I'm going to try to Official 1 deal with them as best I can. If somebody wants to have sort of a Nazi emblem, but it's not religious, and --
Justice Sotomayor: Assume it's religious.
Paul D. Clement: But, if it's not religious --
Justice Sotomayor: Assume it's religious.
Paul D. Clement: I'm happy to assume it's religious. If it's religious, that might be -- if it's claimed to be religious, that might be one of the rare cases where you question the sincerity of the religious belief because I'm not really aware of that religion myself, but assuming it's a sincere religious belief, there's no basis to discriminate on the basis of religion, and so the -- the -- the -- the -- the school might have to address that through a neutral policy, avoiding disruption, and if it's a neutral policy and doesn't single it out because it's religious, then that's something that would be evaluated under Pickering.
Justice Kagan: Mr. Clement --
Chief Justice Roberts: Mr. -- Official
Justice Kagan: -- can I --
Chief Justice Roberts: -- Mr. Clement, what if the -- the activity on the field did not consist of this kneeling down briefly but something more extensive, standing up on the 50-yard line, you know, arms outstretched, engaging in audible prayer? Is -- is your analysis and answer still the same?
Paul D. Clement: It's not exactly the same, Mr. Chief Justice. I think the -- the difficulty with the sort of audible prayers or some of the practices that the coach candidly admitted he engaged in previously, where he's holding up the helmets for both teams and sort of talking to the players, is there's an instructional component to that that I think that a -- that a school district could say that -- that since you're engaged in instructional activity, and that's what the core of what coaches and teachers do, we're going to -- we're going to treat that as government speech. I think that --
Chief Justice Roberts: Well, he's not speaking to the players as in the, you know, Official 1 example you gave, but he's praying to God.
Paul D. Clement: So, if -- if he's not -- if there's not an instructional component too, if the players are -- are -- are, you know, doing their own thing in the end zone, for example, then I think it really becomes what -- the school is -- is -- is able to have a neutral rule. And this was part of my answer to another component of Justice Sotomayor's question, which is the -- the school has a fair amount of flexibility to determine what the duties of the coach are. Here, they did not say that his duties were an all-encompassing supervisory role. And I suppose, if the school district had one coach whose whole job was to watch those kids after the bell like a hawk and make sure they didn't get into any trouble, even a brief religious exercise by that individual might be inconsistent with their neutral job duties and a basis for the school to do something. But, here, it's -- it's in the record and I think undisputed that the -- that the coach could do other things, other private Official 1 things of a comparable amount of time because this is a fleeting religious exercise. Even the School District described it as fleeting. So --
Justice Barrett: But would Pickering apply, Mr. Clement, if, in the Chief Justice's hypothetical, let's say he says the Our Father with arms outstretched and it starts causing a lot of havoc in the stands, a lot of the things that, you know, your opponents, your friends on the other side say that happened, that, you know, the band members were being rushed, the head coach feared for his life. If his prayer of the Our Father caused that kind of chaos, would Pickering apply, if they said for reasons of efficiency and school safety we just can't have this?
Paul D. Clement: So, if -- if -- if they came up with a neutral policy that tried to deal with that situation, I think you would test the neutral policy based on Pickering.
Justice Breyer: All right. Well --
Paul D. Clement: I think, if they tried to adopt the neutral policy for the sole reason of stopping the Our Father, I think that's a case where you'd say, no, that's pretextual and Official 1 that's still going to be subject --
Justice Breyer: Is this what --
Paul D. Clement: -- to strict scrutiny, but I -- but -- but, if I could just get it on the table, but I also think, if -- if what -- if the hypothetical is that kind of audible prayer, you -- you do have the -- the argument at least that that would be instructional and might be a different case. I'm sorry, Justice Breyer.
Justice Breyer: One of my problems in this case was the parties seem to have different views of the facts, so I'd like to get the -- this may be a case about facts and not really much about law, and that's why I wanted to try this. I'll list six facts that I got out of the record, and just tell me if they're right or wrong. That's all. If you want to say they're wrong, I'll go back to it. If you want to say they're right, good, I don't have to go back to it. Right? Okay. One, for a long time, Kennedy would go after the game, Coach Kennedy would go to the 50-yard line and he spoke out loud a prayer of Official 1 thanksgiving and he allowed students to join him. Two, when the District learned about that, it wrote to him or told him: You are free to engage in religious activity, including prayer, but it has to be physically separate from student activity and it has to be non-demonstrative, okay, if they're involved, if the students are nearby. Three, his lawyers, Kennedy's lawyers, then sent him a letter that seemed less accommodating. It said, beginning on October 16, Kennedy will continue his practice of saying audibly just after the game by himself at the 50-yard line an audible, verbal prayer, and students could come. And Kennedy said, I'm not going to stop my prayer because kids are around me. Four --
Paul D. Clement: So am I supposed to stop you when something's not quite right in my --
Justice Breyer: Yeah. Yeah.
Paul D. Clement: So on --
Justice Breyer: Just make -- note that. Official
Paul D. Clement: I think it's important if you look at the demand letter that was sent on October 14 --
Justice Breyer: I'm about to do that.
Paul D. Clement: No, no. That's what you were just talking about.
Justice Breyer: No, no, I'm not. This is -- this is before, I'm saying -- oh, correct, you're right.
Paul D. Clement: So, in that October 14 letter --
Justice Breyer: Yeah.
Paul D. Clement: -- it didn't say that we want to pray with students around. It specifically said that the coach shouldn't have to flee from students if they --
Justice Breyer: Yeah.
Paul D. Clement: -- independently and voluntarily come near him because the students also have First Amendment rights.
Justice Breyer: Correct. But Kennedy in his letter said, I am not going to -- in his deposition, I will not stop my prayer because there was kids around me.
Paul D. Clement: Yes. Official
Justice Breyer: Okay.
Paul D. Clement: He said -- that's Joint Appendix --
Justice Breyer: Okay.
Paul D. Clement: -- page 295, I'm not going to stop my prayer --
Justice Breyer: Exactly.
Paul D. Clement: -- mid-prayer that I start by myself --
Justice Breyer: All -- all right. I'll --
Paul D. Clement: -- just because --
Justice Breyer: -- read -- go back and read that. I'll check it because I'm going to go back and read it. Four, he then advertised his plan to pray at the 50-yard line at the October 16 game, and the media all found out about it and made a big deal about it, and he was surrounded by players and a large number of spectators who rushed to the field.
Paul D. Clement: Well, and -- and the important --
Justice Breyer: That's on October 16.
Paul D. Clement: October 16, important to Official 1 note that the only players that joined him on October 16 were players from the opposing team.
Justice Breyer: Okay. So opposing team, got it. Five, afterwards, the District said to Kennedy: Well, you cannot engage in demonstrative religious conduct while you are on duty for the District. Okay? But, if it's not going to be perceived as District endorsement, we'll accommodate it. For example, pray privately or inside the school building or on the athletic facility somewhere or in the press box, and you can do that before or after games. And the development of accommodation is an ongoing process, and we will discuss further accommodations. And the final thing, six, is Kennedy never answered that letter. Okay. You've got the six.
Paul D. Clement: So should I --
Justice Breyer: Have you taken --
Paul D. Clement: -- correct you on six?
Justice Breyer: -- them in? Because there are a lot of them, and I'm sorry about that. But are they basically right with your Official 1 exceptions that you see?
Paul D. Clement: Well, and -- and I was just about to add Exception 6 --
Justice Breyer: Yeah.
Paul D. Clement: -- which is --
Justice Breyer: Seven.
Paul D. Clement: Well, no, no, but, on -- on 6, the -- the -- the record -- it's not in the record because these kind of interactions wouldn't necessarily be in the record, but there were efforts by Kennedy's lawyer to negotiate with the School District, and they would not respond. And we pointed that out in a footnote in -- in a reply at the cert stage. So this is not a situation where there is some asymmetry here that, you know, they were wonderfully accommodating and -- and we just refused to deal with them. There are lots of other facts that are in the record that I think are highly relevant here, including that no student joined him on the field on October 23, even though that's one of two specific incidents for which he was disciplined, that no players joined him on the 26th, which is the other game where he was Official 1 specifically sort of signaled out for his being fired. It's also, I think, important to recognize that after the game on the 16th, the letter was sent on the 23rd, didn't say anything about safety concerns, band member safety. It talked eight times about endorsement. And then, at the next home game, the only other home game in the record here, the 23rd, because the School District made clear that there weren't supposed to be people on the field, they didn't have a replication of the events on the 16th. It's also true and --
Justice Kagan: Mr. Clement --
Paul D. Clement: -- I think important --
Justice Kagan: -- I want to -- I mean, finish your sentence, but --
Paul D. Clement: Sure. I just had one more thing, which is that there were a number of these games, you know, contemporaneously right before then where the record is clear that he did engage in these kind of prayers when the -- when the players were singing in the end zone, and many of them were at away games, and there was no rushing the field, no circus, no Official 1 incidents.
Justice Kagan: I -- I take it from your earlier answers that you're not contesting the right of the School District to discipline Coach Kennedy if he had been praying during the official, if you will, post-game talk?
Paul D. Clement: I think that's right. We don't -- I mean --
Justice Kagan: Correct?
Paul D. Clement: -- we don't take an issue with that --
Justice Kagan: So -- so that's like --
Paul D. Clement: -- he discontinued that practice.
Justice Kagan: -- if he were praying -- if he were a math teacher and he prayed in math class, same? If he's a coach and he prays during the post-game talk, that the school can discipline him for?
Paul D. Clement: That's right because --
Justice Kagan: And -- and --
Paul D. Clement: -- it would be government speech.
Justice Kagan: -- just briefly, why? Official
Paul D. Clement: Because it would be government speech.
Justice Kagan: Well, how -- I don't really quite know why that's the -- the operative question. I mean, really, why? Why can the school discipline him? And I'm going to just sort of suggest and -- and -- and find out whether you agree that if you look at our prayer cases, the idea of why the school can discipline him is that that puts a kind of undue pressure, a kind of coercion on students to participate in religious activities when they may not wish to, when their religion is different or when they have no religion. Is that correct?
Paul D. Clement: So, look, I think it's simpler than that, quite frankly. I think it --
Justice Kagan: You see, I think a lot of this Garcetti stuff is not -- is -- is just not getting to the heart of what we care about, what our cases have long cared about in thinking about these questions, which is coercion on students and having students feel that they have to join religious activities that they do not wish to join, that their parents do not wish Official 1 them to join.
Paul D. Clement: So I -- I do think it's -- it really is as simple as the government speech, but I also want to be clear, again, as we're talking about the record here, this is not a case where the government took action because of coercion concerns. The record is crystal-clear that they were concerned about endorsement and --
Justice Kagan: Yeah, I -- I mean, endorsement, coercion, I mean, you're requiring a lot of a school board to try to figure out exactly which box in the Establishment Clause to put this in.
Paul D. Clement: I -- I -- with all due respect, I don't think it's asking that much for a school district to understand what this Court has said repeatedly and said that even young students will understand --
Justice Kagan: Okay. Assume that the School District had said the right things. They had said, we don't really like this because it is a form of pressure, a form of coercion. We're worried that the -- that students will feel -- he gets to put me into a football game Official 1 or not. He gets to, you know, give me an A in math class or not. And this is a kind of coercion that's improper for 16-year-olds.
Paul D. Clement: So, Justice Kagan, in the hypothetical where the coach is giving the post-game talk, I think those kinds of concerns about real coercion may well be well placed. But, when the coach is by himself at the midfield giving a 15-second fleeting prayer, those kinds -- if you -- if you call that coercion, you are making an important category mistake.
Justice Kagan: I -- I see that point. So let me give you a hypothetical. So the hypothetical is you have a coach and he has historically been giving prayers in his post-game talk. And then the school says don't do that. And let's say that the school uses the right words and says don't do that because we think it poses a coercion problem. And he says, okay, I won't do that. And -- but instead he says, you know what, I'm going to start the post-game talk a minute later than I usually do, and in the meantime, I'm going to pray, and, please, you know, join me if Official 1 -- if -- if -- if you are so moved. What's a student to think at that point?
Paul D. Clement: I think, in that hypothetical, there well may be a coercion concern, but if instead the coach says, all right, I'm going to go to midfield, I'm going to do this at 15 seconds, I'm going to try to pick a time when most of the players are in the end zone doing something else, and if anybody asks whether they can join, I'm going to tell them it's a free country, you don't have to, but do what you want, that's this case. And that's not coercion that counts under the Establishment Clause.
Justice Kagan: So is -- is -- is that the question of this case, whether the facts are my facts or your facts?
Paul D. Clement: That's one of the questions in this case, but why it matters -- and, honestly, I think the record's crystal-clear on this. I mean, we have a record this time around. I don't think the Joint Appendix and the rest of the record is ambiguous on this point. Official 1 But the reason the factual difference is important is because, if you don't distinguish between the two situations, then you're leaving teachers and coaches in a position where there's no material room for their free exercise of religion or their free speech, and that's exactly what this Court said is not the case in Tinker. And so -- and -- and, again, the concerns -- the reason it gets back to government speech at least in my view is because one technique that the Ninth Circuit used to approve this is one of these excessively broad job descriptions. And I think, with all due respect to Justice Sotomayor, her hypothetical built in this idea. If -- if you say the job description of teachers and coaches is to be mentors, and if the mentors are religious, the students who depend on them for playing time and grades and all of the rest are going to want to curry favor and they're going to engage in their own religious practices or conform or at least feel pressure to do so.
Justice Sotomayor: Mr. Clement -- Official
Paul D. Clement: That's a recipe for no free speech rights at all.
Justice Sotomayor: -- I -- I do understand a claim that how adults respond to things is not often relevant. We don't have a heckler's veto in our First Amendment jurisprudence, but we have had it in our school prayers under the recognition of what Justice Kagan talked about, the fact that 16-year-olds can't be expected to be adults. What do I do with the fact that parents complain that their children wouldn't follow their directives not because they wanted to pray but because they felt pressure to pray? What do I do with the fact that when the coach was -- the school explicitly said students don't have to come if they don't want, many of them didn't? Some still did, but many of them didn't. And what do we do with the fact that a coach from another team was the one who brought this to the school's attention because your client asked him and his players to join in the prayers? Does -- don't those facts suggest the very coercion that Justice Kagan was talking Official 1 about?
Paul D. Clement: So, Justice Sotomayor, to the extent they suggest any coercion, it's only vis-à-vis the pre-September 17th practices that were discontinued as soon as there was a candid discussion between the coach and the School District. And --
Justice Sotomayor: But, Mr. Clement --
Paul D. Clement: -- I think it's --
Justice Sotomayor: -- the problem I have is your client is the one who publicized this debate. He had a right to. But, once he did and it created the disruption it did, why is the school estopped from saying this activity on the center field of the 50-yard line has created a problem where people believe that our continuing to do this -- students believe permitting you to do this is interfering with our work as a school? I don't understand why a school can't do that.
Paul D. Clement: Well, a school can't do that because it sounds like -- awful lot like they would be sort of either retaliating against Official 1 his protected speech --
Justice Sotomayor: No, they were --
Paul D. Clement: -- or at least saying --
Justice Sotomayor: -- willing to let him speak -- pray anywhere he wanted in the school. After the game, come back. He's the one who chose to publicize his prayer by doing it on the 50-yard line. He didn't do it on the side. He didn't just bow his head. He got on a knee at the very center of the field. I -- I don't know of any other religion that requires you to get at the 50-yard line, the place where post-game victory speeches are given. What religion requires you to do it at that spot?
Paul D. Clement: So the coach's religion, and he felt -- and -- and nobody's questioned the sincerity of his religious beliefs --
Justice Sotomayor: That he had to thank God. But why there?
Chief Justice Roberts: Briefly, Mr. Clement.
Paul D. Clement: His -- his religious beliefs, he felt compelled to -- to -- to make his prayer there. And I don't think there's Official 1 anything unusual about that. I mean, if a -- if a soccer player scores a goal, the soccer player will do a religious exercise, or Tim Tebow scores a -- a touchdown, they do the religious exercise there. There -- there are spectators watching it, but that doesn't -- that's not what's driving the religious exercise. What's driving the religious exercise is that's where the event that the religious adherent is thankful for took place.
Chief Justice Roberts: Thank you. Justice Thomas, anything further?
Justice Thomas: No.
Chief Justice Roberts: Justice Breyer?
Justice Breyer: One quick question, I think, from prior cases. The -- the problem of prayer in school has been the fact that -- that there are 54 different religions in the United States now, and so what -- going back to the 18th Century, 17th Century, what we're worried about is maybe it's -- here, it was the Satanists, but, I mean, it could be, you know, the Catholics, Protestants, Jews, Shintos, Official 1 Mohammedans, and one group thinks why this group is being favored by the school, the other one thinks what about this one and so forth. So we have a kind of neutrality. Now it's the same question. Right after the game, right before the bell rings in the morning, the teacher, the coach, says let us pray, prays out loud, and students join. And, indeed, this one told all the press, so there were going to be a lot of people there. But leaving that out, this doesn't seem like a new problem. It just seems like a line-drawing problem about 50-yard line just after the game when the school said don't do it on the 50-yard line, do it 10 minutes later, and -- and do you see what's bothering me? And am I right about how to see the case?
Paul D. Clement: So I -- I -- I see what's bothering you, but I don't think you're right to perceive the case through that lens. There is a big difference between a teacher leading students in prayer out loud and allowing a benevolent neutrality and tolerance for a variety of views. Obviously, the school district says Official 1 it's fine to take a knee after the game, but it's not fine to turn to Mecca. Or the student that's -- the Muslim student that scored and bowed towards Mecca is going to be disciplined but not the Christian student that took a knee after scoring a touchdown. Those are problems. That's discrimination. But to allow individual religious exercise in the normal places -- if you tell a kid that is about to kick the potential game-winning field goal that they can't cross themselves on the field in front of 50,000 or a thousand, but what they can do, don't worry, you can -- you can go in, you could rush up to the press box, we'll put the whole thing on hold, you can do it in our prayer booth, where nobody can see you, and then you can come down and kick the field goal. Nobody thinks that's sensible. And the one thing I would point out is the very fact that the accommodations that were offered by the School District were to leave the field and go somewhere else and do your prayer and come back demonstrates beyond all doubt that he did not have all-encompassing supervisory Official 1 responsibilities after the game. Sure, he was on duty in a loose sense, but he was not on duty in a real sense or they would not have given him those accommodations.
Chief Justice Roberts: Justice Alito? Justice Sotomayor, anything further? Justice Kagan? Justice Gorsuch?
Justice Gorsuch: Mr. Clement, one of the difficulties of this case is getting one's hands around the District's rationale, and as I understood, it was based on kind of our Lemon endorsement test. And you're arguing, as I -- as I hear you, that that's -- that was a mistaken test and a mistaken way to think about what the Establishment Clause requires. You had a colloquy about coercion as an alternative, and I'd -- I'd just like your thoughts on that subject generally.
Paul D. Clement: I -- I -- I appreciate the question. I don't think -- I mean, you know, people are trying to dispute this record. I think it is very clear on what motivated the District, and it was endorsement, endorsement, Official 1 endorsement, endorsement again. If you --
Justice Gorsuch: Not -- not coercion?
Paul D. Clement: Not coercion. If you look at their first letter after the October 16th game, Joint Appendix page 90 to 95, there are eight references to endorsement or endorsing, zero references to either coercion or player safety. If you look at their letter to the EEOC, which is around Joint Appendix page 130, there are again eight references to endorsement, endorsing, no references to coercion. So it is clear what motivated their policy. As to what the right concern would be, I mean, I -- I do think real coercion from government action is something that this Court has historically looked to in the context of Establishment Clause cases, but, as Justice Scalia pointed out in his Good News concurrence and in other opinions, it's very important to distinguish between real coercion coming from the government and the kind of peer pressure, if you will, that comes from private individuals being able to engage in speech. And I think the record is clear here Official 1 that we only have the latter going on here and not the former. It's certainly not what motivated the District because, in -- contemporaneously, when they put out a newsletter to their -- their constituents, they said there's no evidence that any student was coerced here.
Justice Gorsuch: So what do we do about that, though? Many school districts and municipalities around the country continue to operate on this endorsement idea, and there are certainly some strains of it in our case law, as you're familiar, dating back to Lemon.
Paul D. Clement: So I -- I -- I think the fact that school districts continue to make this mistake even though you have said over and over and over again that tolerating private religious speech is not endorsement is an excellent, excellent reason to be as emphatic as possible in overruling endorsement cases. If it requires formally overruling Lemon and the endorsement tests that come from that, I think that would be very helpful. But what -- what continues to happen is that there is overt discrimination on the Official 1 basis of religion, as is evidenced in the record here, by school districts, who aren't evil. It's just they're doing it out of misguided endorsement concerns. And I think the time has come to be as clear as possible to make clear that that's not a proper part of Establishment Clause analysis.
Chief Justice Roberts: Justice Kagan?
Justice Kagan: Do you want to --
Chief Justice Roberts: No? Justice --
Justice Kagan: If -- if -- if you would go back to the coercion part of your answer to Justice Gorsuch, if I understood you correctly, you were saying, well, real coercion is where the government does it. And I -- I want to understand that. Are -- are you suggesting that a teacher in a classroom can say: Well, you can't charge me with coercion because he separates himself from the School District?
Paul D. Clement: That's where I think the Garcetti line comes in because, if it's the individual -- if it's government speech, instructional role, then that -- no matter what Official 1 they say to try to distance themselves, the teacher and the coach can still be a source of coercion. But, if it's really private speech --
Justice Kagan: Okay. Even though he says, you know, this isn't the School District's speech and even though everybody knows that, actually, I mean, there must be countless times when a coach in the post-game talk or a teacher in math class, where people would totally believe them if they said, I'm doing this as -- as just me, I'm not doing this because the school district says it, but, for me, this is super-important to me, this prayer, and I hope you'll join me. Now that seems to me to be coercive of 16-year-olds regardless if they know that it's him and not the school district. He's the one who's going to give me an A or not.
Paul D. Clement: I -- I guess it just depends -- I mean, if -- if you're saying this -- that this happens in the middle of class, I might believe you. But, if you're just saying -- I mean, look, take a familiar example. It's Ash Wednesday. A teacher goes to morning Official 1 mass, comes in with a big black mark on his or her forehead. Is that coercive?
Justice Kagan: No, because nobody's asking the students to participate at that point. They don't have a choice of participating at that point.
Paul D. Clement: But it's a very popular teacher, and they're going to have that -- that teacher in the afternoon's class, and there's a noon mass that they might be able to get to and get their own black mark, and then they'll be favored students, and that teacher is the one --
Justice Kagan: I --
Paul D. Clement: -- they put a recommendation for --
Justice Kagan: -- I think we can draw lines like that, you know?
Paul D. Clement: What's that?
Justice Kagan: I think we can draw lines like that and know the difference between those two things, but know the difference when a teacher who has historically tried to bring prayer into a classroom setting says, you know what, you know, I -- I understand that there are all these Supreme Court cases against me, so Official 1 what we're going to do is we're going to have a little bit of a break, five minutes of a break, so we can all regroup, and -- and I'll be praying during that time.
Paul D. Clement: So, Justice Kagan, obviously, there's going to be room in the jurisprudence for pretext going both ways. And I also think there ought to be room for understanding that in this area, given the current state of this Court's jurisprudence, there are -- there's room for -- for mistakes on both parts. So I think it would be profoundly mistaken to say, well, another coach, Coach Kennedy prime, he could engage in this exact same religious exercise, but because he engaged in this previous exercise and candidly cooperated with the District, we're going to say that there's some sort of like a taint of prior practice, and he can't engage in the religious exercise. So I --
Chief Justice Roberts: Justice Kavanaugh?
Justice Kavanaugh: I want to pick up on Justice Kagan's and Justice Gorsuch's Official 1 questions. The District said the sole reason it was doing this was to avoid Establishment Clause problems, correct?
Paul D. Clement: Correct. And was specific to endorsement.
Justice Kavanaugh: Okay. And then, to pick up on Justice Gorsuch, the Lemon endorsement test, that has not been applied by this Court in several decades in cases like Van Orden, Town of Greece, American Legion. At least I've said I don't think there is such a test in our case law anymore, the Lemon endorsement test, correct?
Paul D. Clement: Sure, but it's a -- it -- it's a stubborn -- it's a stubborn fruit, and I don't think just pushing a pencil through it has done the trick. I mean, you really have to slice it in half and make clear to everybody --
Justice Kavanaugh: Right. There have been individual opinions, but let's -- we haven't applied it in the cases. I take your point, but -- but I think Justice Kagan's point is there's a whole separate body of cases involving schools, and so Engel, Lee versus Weisman, and Santa Fe. And Santa Fe is the Official 1 football case, and so that's the most relevant one here, I think. And the question here, I think, is what's different about this from an Establishment Clause perspective than the prayer over the loudspeaker, which I think was a key fact, in Santa Fe? How would we distinguish Santa Fe from this case?
Paul D. Clement: So Santa Fe is readily distinguishable. It is an endorsement case. So you might want to be clear that at least to that extent, it's no longer good law, but, here -- it's distinguishable. The loudspeaker is a huge part of it. But, if you'll remember the Santa Fe case, I mean, one of the issues is the school district argued, hey, this is a facial challenge to our policy, and under the policy, it's possible for the student to give a non-religious solemnization, and so this can't possibly be invalid on its face. And the Court's response to that argument was to focus on the state action, the government's own involvement in a majoritarian election for the opportunity to give the prayer Official 1 over the loudspeaker. So, as I reread Santa Fe, I was struck by how much of the Court's analysis turned on the election aspect of the school's policy, which has no analogue here whatsoever. But, to -- to -- to give a concrete example, I do think, if -- if -- if the coach goes to the loudspeaker after the game, there's a much stronger argument that that's government speech. And --
Justice Kavanaugh: And -- and, also, there's -- just to pick up on Justice Kagan's point, then you have the captive audience that seems to be at the heart of Engel, Lee versus Weisman, and Santa Fe, and the question really is, what's different here? You can answer that in any way you want, but just --
Paul D. Clement: Yeah, but -- but -- but I think that, you know, the loudspeaker sort of ties this audience back to the government speech and ties it all together. I think, you know, when -- when Mohamed Salah, you know, has a religious exercise after a goal at Anfield, the fact that the crowd is there is incidental. It's not a captive audience in that sense. It's not -- it's not he who brought them there. So I Official 1 think it kind of comes back to government speech in that respect. And I think, when the coach takes this 15-second fleeting prayer at the end of the game with no loudspeaker, barely audible, it's radically different from the use of the loudspeaker and is much similar to Mohamed Salah, Tim Tebow, all of those things. Or think about what happens when a player gets injured on the field. I mean, it's common practice at all levels of the game, public school, private school, you take a knee. The coach takes a knee. The players take a knee. Many of them presumably are praying for the player's health. Some of them are not. Some of them are -- have their own religious traditions. But none of that is coercion, not in a real sense, and none of it violates the Establishment Clause.
Justice Kavanaugh: What about the player who thinks, if I don't participate in this, I won't start next week, or the player who thinks, if I do participate in this, I will start next week, and the player's, like -- wants to start? Official
Paul D. Clement: So that's -- that's where I think making a clear message that that's inappropriate, that this doesn't matter for those purposes, that's -- that's how you deal with those problems. And if there is a coach or a teacher --
Justice Kavanaugh: But how -- how will you -- how will you ferret that out? Because every player's trying to get on the good side of the coach, and every parent is worried about the coach exercising favoritism in terms of the starting lineup, playing time, recommendations for colleges, et cetera.
Paul D. Clement: I -- I -- I think the school district, if it has that concern, and I'm not saying it's not a legitimate concern, just makes it as clear that it's school policy that nothing turns on that. But that concern, although legitimate, isn't even specific to religion. I mean, if -- if --
Justice Kavanaugh: I agree with that.
Paul D. Clement: -- I mean, if -- if the coach is always wearing a Packers jersey, I Official 1 mean, there's -- there's -- there's an incentive for the -- for the -- for the players to follow on. And it's not just coaches because, for most kids, frankly, the teacher is going to be the -- the -- the avenue towards collegiate success, not -- not the coach. It's both, but -- but -- but that's why if you take that -- if instead saying the way to deal with that is you punish -- if any -- if any coach or teacher does it, shame on them and they should be punished. And you make clear that that's not supposed to happen and can't happen in this school.
Justice Kavanaugh: And I -- I guess the -- the problem at the heart of is it you're not going to know because the coach is probably not going to say anything, like the reason I'm starting you is that you were -- you knelt at the 50-yard line. You're never going to know, and that -- that leads to the suspicions by parents, I think -- I'm just playing out what the other side is saying here -- the suspicion by parents that the reason Johnny's starting and you're not is he was part of the prayer circle. And, you know, that suspicion I don't Official 1 think you can get around. That's a real thing out there, and, you know, that's going to be a real thing in situations like this. I don't know how to deal with that, frankly, though.
Paul D. Clement: Well, if it's a real thing, then there's really -- as I see it, there's sort of two alternatives, right? You can work really hard to dispel it.
Justice Kavanaugh: Mm-hmm.
Paul D. Clement: Or you can say, well, that's a possibility. It's not limited to coaches, it's not limited to religion. So we're going to effectively overrule Tinker and say that, you know, if you're a teacher, you can't do anything sufficiently expressive that students could try to mimic it in a way that curries favor.
Justice Kavanaugh: One last question, and you -- you mentioned this. It's not just religious speech that would trigger issues; it's others. So, to your argument that this is private speech and therefore Garcetti, how do you handle the hypothetical again of the coach who goes out and wants to unfurl the political banner at the 50-yard line -- Official
Paul D. Clement: Well --
Justice Kavanaugh: -- or wants to put on a political message at the 50-yard line after the game?
Paul D. Clement: So -- so, if it's -- if the reason that the school district is acting is because of disruptive or even just because it's political speech and it wants to take action, that's Pickering. They can do that. So that -- those are sort of an easy case. I also think, like, flags are kind of -- I know they're -- they're fun hypos, but they're easy cases because those are -- there's kind of no reason to unfurl a flag other than to communicate with your message -- your -- your audience, and that's not true of this kind of -- of prayer. It may be very important to somebody to do it in the place where the activities took place. It may be that incidentally there's an audience there, but it's nothing inherent in the event for it to be sort of shown off to the audience. And I don't think you can really say that about unfurling a flag.
Justice Kavanaugh: Thank you. Official
Chief Justice Roberts: Justice Barrett?
Justice Barrett: Let me pick up on that, Mr. Clement. This is, as Justice Thomas asked you at the beginning, both a free exercise and free speech claim. Who is he communicating to? God? Like, where is the -- the speech?
Paul D. Clement: I -- I -- I think he is communicating to God.
Justice Barrett: And so that would trigger the First Amendment protection?
Paul D. Clement: Under both --
Justice Barrett: He doesn't have to be --
Paul D. Clement: -- the Free Speech Clause and the Free Exercise Clause, in our view.
Justice Barrett: Well, I understand the free exercise part of it, but, you know, even if he's not communicating to an audience, so he's completely silent, he just takes the knee, that's protected speech even if he's not trying to communicate to anyone around him, just to the Almighty? Official
Paul D. Clement: Absolutely.
Justice Barrett: Okay.
Paul D. Clement: It's expressive conduct, it's -- or speech.
Justice Barrett: Second question is to this coercion point. Let's imagine that Coach Kennedy runs a Young Life group and he has many players, you know, and many other kids in the school, but many of his players, because they really admire Coach Kennedy, come to his home for these Young Life meetings. And many of the concerns that Justice Kavanaugh is identifying are present. You know, a lot of the players come because they think they're going to get more playing time if they -- if they come and show up and participate in this Christian youth group. I take it your position would be that that's entirely private speech, and even if there's a coercive component to it, that the school can have nothing to say?
Paul D. Clement: Well, I -- I think that if the school has a concern about that kind of activity, after-school activity, wholly off the school grounds, I mean, I think the way, if it Official 1 really had a concern with that, it could try to deal with it through some kind of neutral policy. If it said, well, we're sufficiently concerned about that, we're not going to let any teachers have any kind of outside events at their house or something, then I think that -- that would be a neutral policy. Somebody could try to test whether that's consistent with Smith or whether Smith's good law, but -- but those are all different issues. But I think, you know, another way that the school can deal with these kind of issues, if it's not pretextual and just designed to root out religion, is to have neutral rules that say, okay, like, we get it, there are some concerns. But the one thing I think that's clear from this Court's cases is that you can't have a prophylactic rule that says, you know, there might be some problems, and so the way we're going to solve the problem is to forbid a lot of protected speech. I mean, Ashcroft against Free Speech Coalition, among -- among other cases, says that that's verboten.
Justice Barrett: And I -- I guess I'm Official 1 gathering from your response that you would treat that Young Life example as basically subject to the same kind of analysis as Justice Kagan's examples of, you know, a disclaimer before class, this isn't instructional -- or maybe it's before the bell, like Justice Sotomayor asked you before, purely private speech, not endorsement, nobody could mistake it for government speech, and any coercion would be -- you know, maybe it's there, maybe it's not, just as, in the Young Life group, maybe it's there, maybe it's not?
Paul D. Clement: I -- I -- I think that's right. And, again, if there's a lingering concern, the option, I think, that's still on the table is a neutral rule that sort of avoids those situations because, again, I mean, it -- it really, as -- as -- as you sort of articulate it, if -- if there's a concern, it really isn't a concern that's specific to religion in any way, shape, or form. I mean, you could have the same thing for any after-school activity if the idea is, well, you know, people are going to kind of curry favor with the teacher and participate in Official 1 that, then maybe you have a rule about it, but, of course, you know, you can have that already, right? I mean, you know, think you're going to get a better math grade if you go out for the math team. So, at a certain point, the responsibilities of the school is to teach the important lesson that private speech is protected even for teachers and coaches.
Justice Barrett: Thank you.
Chief Justice Roberts: Thank you, counsel. Mr. Katskee. ORAL ARGUMENT OF RICHARD B. KATSKEE ON BEHALF OF THE RESPONDENT
Richard B. Katskee: Mr. Chief Justice, and may it please the Court: No one doubts that public school employees can have quiet prayers by themselves at work even if students can see. If that were the issue, there wouldn't be a case here because the District allowed that. But that wasn't good enough for Mr. Kennedy. He insisted on audible prayers at the 50-yard line with students. He announced in the Official 1 press that those prayers are how he helps these kids be better people. And after the District closed the field to the public, he expressly permitted legislators and others to join him. Under Garcetti, those are the functions of a coach, not a private citizen. But even if not, under Pickering, Kennedy's rights would still have to be balanced against the District's interest in controlling its events and messages, protecting the religious freedom rights of the students and their parents, and managing the workplace. Some of these kids were just 14 years old. Mr. Kennedy's actions pressured them to pray and also divided the coaching staff, sparked vitriol against -- against school officials, and led to the field being stormed and students getting knocked down. When Mr. Kennedy repeatedly ignored sincere efforts to accommodate personal prayers, what was the District to do? If a math teacher knelt and said -- said audible prayers in class just before the bell, the School District could act. Official 1 Coaches have far more power and influence, especially at the time and place of those traditional post-game speeches. To win, Mr. Kennedy would need this Court to whittle Garcetti to nothing and toss Pickering aside and disregard students' rights and ignore the need to maintain control over school events. Doing any of that on Kennedy's hypothetical facts would be ill-advised. To do all of it would be extraordinary. I welcome the Court's questions.
Justice Thomas: Counsel, would -- if the coach, instead of taking a knee for prayer, took a knee during the National Anthem because of moral opposition to racism, would -- how would your school district respond? Would that be a Garcetti -- would that be government speech?
Richard B. Katskee: Well -- well, Justice Thomas, if, for instance, the Court -- the coach goes to the center of the field in front of everyone during the National Anthem, absolutely, that is government speech. But, on -- but, on Mr. Kennedy's theory, it's private speech and more than that -- Official
Justice Thomas: How is that government speech? Would you explain that to me?
Richard B. Katskee: Sure. In -- in Garcetti, this Court made clear that the test for government speech is a functional test, not a formalistic one, to determine whether the speech is pursuant to one's job. That has to entail looking at the manner, the time, and the place of the speech, and how reasonable observers would see it, whether they would view that as -- as speech as a government employee. And so, in the hypothetical that -- that you just gave, that's the sort of thing given the -- given that moment during the National Anthem in the center of the field and making -- making this public act and public statement, that would be regulable, but under -- but -- excuse me.
Justice Thomas: But what if the School District, as it did here, objected to that conduct before it took place? How could that be government speech? I'm -- normally, when I think of government speech, the government has a message Official 1 and someone is communicating that message. How would it be government speech if, as it's happened in this case, the government objected beforehand?
Richard B. Katskee: A -- a -- a couple of responses, Your Honor. The first is that what the government speech test gets at is -- is the recognition that school districts and other governmental entities have to be able to control their programs, and when they hire somebody to run that program, they have to make sure that it is their message that's being communicated. And -- and under Mr. Kennedy's test, not only would so many things qualify as private, just because the -- just because the job description doesn't say, gee, if you go out to the center of the field during the National Anthem, you're not -- you are allowed or are not allowed to -- to make political speeches, that becomes private, and it gets even worse for this reason. On Mr. Kennedy's theory, if the motivation for -- for that act, that act of protest against police misconduct is to -- is Official 1 political, then it's subject to Pickering balancing and yet, if it is -- the motivation is religious, it gets strict scrutiny. That make no -- makes no sense, and it is also inconsistent with this Court's consistent holdings that -- that political and religious speech have to be treated the same way. Political speech gets strict scrutiny in other -- in other contexts, but government employees are different. There -- there has to be a balancing, and to have a different rule for -- for religious speech would be impermissible viewpoint discrimination.
Justice Thomas: Thank you.
Richard B. Katskee: The --
Chief Justice Roberts: Counsel, here -- here this morning your opening argument and in your brief as well, you focused a lot on the facts, Coach Kennedy publicizing the dispute, announcing in advance his plans, some of the consequences that came from that, the -- the -- what -- what if all that were off the table? It's simply the coach going out to midfield, kneeling -- taking a knee, and that's it? No Official 1 dispute about who's responsible for cutting off the negotiations. Take out the media stuff. Would the school have any problem in that case? Or would the case be just the same?
Richard B. Katskee: Well, Your Honor, that is -- that is certainly a closer question if there's no history, no practice, no expectations of the students, but given -- if it is -- if the prayer is still going on at the time and in the place of those -- those critical post-game speeches, then, at that moment, we think that's government speech. Now, if I'm wrong about that, then -- then there has to be Pickering balancing, and then the question is -- is taking really seriously Mr. Kennedy's, in that case, if it's private, free speech and free exercise rights, but also bearing in mind how this affects the -- the religious freedom rights of the students and their parents --
Chief Justice Roberts: Well, what -- I gather that's --
Richard B. Katskee: -- and --
Chief Justice Roberts: I'm sorry, go ahead. Official
Richard B. Katskee: Oh, excuse me. I was going to say and -- and all the other concerns, like the question whether this could be disruptive of the event, could it cause a stampede or not. All those things have to figure in. And that's why both Garcetti and Pickering are practical tests, they're functional tests that deal with the realities that school administrators and governmental entities have to face every day in dealing with potentially complicated problems.
Chief Justice Roberts: I guess my question is trying to focus on the legal argument. If those facts were not the case, if nobody had complained, if there was no press conferences, there was no dispute, would your position be the same, or would it be different?
Richard B. Katskee: Well, if --
Chief Justice Roberts: Both with respect to Garcetti and with respect to the Establishment Clause concern.
Richard B. Katskee: Well, if -- if, for instance, the coach is kneeling on the sideline or if the coach is -- is going to that place in Official 1 the center of the field when the students are heading back to the -- to the locker room or the bus, like he did for a month after the District's September 17 letter, then -- then that wouldn't be reasonably perceived as -- as government speech, and the District wouldn't have substantial interests in regulating it. But -- but the -- but the situation here directly implicates the power and authority of the coach, which is -- which is awesome. The coach determines who makes varsity, who gets playing time, who gets recommended for college scholarships. The students know you have to stay in the good graces of the coach if that's -- if you have those aspirations. And so coaches, even when coaches say, oh, there's an optional -- an optional workout on Monday, Tuesday, and Wednesday afternoons after school, you can bet that, to the students, that's not really optional and especially not if the -- if the coach has gone to the media and said: Having daily workout -- daily optional workouts is how I make these kids better players or better people.
Justice Kavanaugh: Counsel, I -- I Official 1 appreciate a lot of what you just said there, but we have to analyze our Establishment Clause precedents first because I think the district court said that the District's sole reason for doing this was to avoid an Establishment Clause violation, right?
Richard B. Katskee: That is what the district court said. That was incorrect, Your Honor. But also --
Justice Kavanaugh: But let me just take it there --
Richard B. Katskee: Yes.
Justice Kavanaugh: -- for a second. On the Establishment Clause point, the Lemon endorsement test, we haven't applied -- I don't think that is a test anymore. We haven't applied that in two decades, and so I don't think that helps on the Establishment Clause side. On the schools cases, Santa Fe ultimately, I think, is the case. And Mr. Clement was saying this goes beyond Santa Fe in terms of extending the Establishment Clause because it's not over the public address system, it's not the same facts situation that we had in Official 1 Santa Fe, where it was to everyone in the crowd by the school over the public address system. So we shouldn't, I think he's saying, shouldn't extend Santa Fe, which itself extended Lee versus Weisman, which extended Engel. We shouldn't extend it further to this situation. Can you respond to that?
Richard B. Katskee: Certainly, Justice Kavanaugh. In the first instance, yes, this situation is different because this is the coach. That was a student speaker in Santa Fe, and that has to make all the difference in the world. It's not -- it doesn't mean that there -- that the -- that a coach has no free speech or free exercise rights, but it does mean that the -- the pressure to conform at that moment of those critical post-game speeches --
Justice Kavanaugh: But I think --
Richard B. Katskee: -- and with a seven-year -- excuse me.
Justice Kavanaugh: Wouldn't those cases suggest, though, that there's a difference between the coach in the locker room? I got it there. The coach in the huddle? I got it there Official 1 as well. But, when the players are dispersing after the game, I guess I'm not sure how it's that much different from Establishment Clause perspective than Justice Barrett's hypothetical about the coach who has the -- has -- is part of a group that has meetings off campus. I guess I'm not sure from Establishment Clause purposes how those two things are distinct.
Richard B. Katskee: Well, in -- in the first instance, this wasn't after the students were dispersing. Those were -- that was when Mr. Kennedy had prayers from September 17 through his letter, his demand letter, on October 14. And what that demand letter said is, I have a -- I've had a practice that didn't substantially change for seven years, and I want to continue that. And he spent what's a page and a half in the Joint Appendix in that letter saying: And students have to be able to join there too. Take the 10/26, the last game, as an example. And we don't even have to go to homecoming, where the crowd stormed the field. But Mr. Kennedy there went out -- Official
Justice Kavanaugh: This wasn't --
Richard B. Katskee: -- occupied --
Justice Kavanaugh: -- this -- I'm sorry to interrupt. This wasn't, you know, "huddle up, team," you know, which is a common coach phrase. That wasn't this, right?
Richard B. Katskee: No, but does the coach have to say that for the students to miss that? And there's something else going on too, which gets back in part to government speech and in part to -- and in part to the religion clause concerns, is that what Mr. Kennedy did at that -- at that October 26th game is he -- he, in a -- ahead of time, gave special permission to two legislators and some other people to come onto the field to have a prayer circle with him on the 50-yard line. Students -- it was fully visible to students. And then, as part of the arrangement, was to turn around and have one of those state legislators address the team, which he did.
Justice Alito: Mr. Katskee, let me ask you to give me your analysis of the following set of facts. Forget about all of the complicated facts in this case. Official 1 A football game ends. The coach is not required at that point to go to the locker room with his students. It's not part of his duties at that time. He is allowed to remain on the field for a period of time. He is allowed to walk onto the field. He does that by himself. He goes to the 50-yard line. He kneels down and he prays. He doesn't invite anybody to go with him, but he also doesn't tell people who are also permitted on the field to go away. And all of this is visible to people in the stands. Is that a violation of the -- can he be fired for engaging in those activities?
Richard B. Katskee: Well, Your Honor, it's necessary to start with the question whether that's government speech. And it would -- it would seem, given the -- given the -- the facts that you gave, Justice Alito, not to be government speech. So then the question is the -- the question comes under Pickering balancing, and if -- and if the team, for instance, is not there so that there's not a -- there's not a fear of coercion and if it doesn't cause material Official 1 disruptions, then the District doesn't have a substantial --
Justice Alito: Those are the only --
Richard B. Katskee: -- interest in regulating it.
Justice Alito: -- those are the only facts, okay? So --
Richard B. Katskee: Yes.
Justice Alito: -- under those circumstances, there would not be a violation of the First Amendment. Now you're talking about this in relation to the Free Speech Clause, but the Petitioner also has a Free Exercise Clause claim. So if, on that set of facts, the school district were to say you can go out to the center of the field and you can kneel down to protest the Russian invasion of Ukraine or make a statement about climate change or about racial justice or any other issue that is of interest to you, but you can't pray, would that be consistent with the Free Exercise Clause?
Richard B. Katskee: The school district -- not -- not -- the school district doesn't have a substantial interest in discriminating. But it Official 1 is also the case that the school district gets to script its event. So the question has to be whether he is -- has to start with whether he's acting as a -- as a government official or not. I take it from the example that -- that you gave, Justice -- Justice Alito, that the -- the players aren't around, there's not a concern about pressure. But it is the case that if -- if the players were, for instance, the School District has ample authority, whether it's religious coercion or political coercion or social coercion, to adopt any particular view. The School District has a legitimate interest --
Justice Alito: And I -- I take it your answer to that question is they couldn't discriminate based on the religious or secular motivation of what the coach did?
Richard B. Katskee: Correct. But what's interesting about that is Mr. Kennedy's test requires different treatment for religious and secular speech, and that just as a practical matter doesn't make any sense.
Justice Alito: Well, you know, this is an employment -- you've -- you've talked about all sorts of facts, and it is complicated. Official 1 Coach Kennedy did a lot of things over a period of time. The School District said a lot of things over a period of time. But it's an employment discrimination case. And what do we do in an employment discrimination case where the employee says, I was unlawfully fired? We look at the employer's reason for the action that was taken. And if the reason that is given is an unlawful reason, then the employee wins. We don't say, well, you know, he did all sorts of other things before the event that the school district or whatever the employer is said was the reason for the termination. He did all sorts of other things. He could have been fired for all of that, all sorts of other things. We look at the reason that was given. What was the reason that you gave here?
Richard B. Katskee: The -- although the reason in the last letter was about religion -- was about religion concerns, it isn't the case that the Court looks only at the -- only at the given reason. In fact, it's quite the opposite. This Court made clear in St. Mary's against Official 1 Hicks and Reeves against Sanderson that it's necessary to look at the whole record to determine whether -- whether a -- an employment action was improper and that that goes for both the employer and the employee. And, here, there was -- there was an enormous pile of evidence that the school district acted on other concerns: safety of the students, control of its program and message, and the worry about the storming of the field. Let me list just five -- five places in the Joint Appendix for that as examples. It's in the Joint Appendix pages 50 -- page 51, pages 92 and 93 --
Justice Alito: I know that you want to make this very complicated, but, seriously, it's your argument that if the -- if the employer gives an unlawful reason that the employer can nevertheless -- nevertheless win because the employer could have given all sorts of other lawful reasons for the -- for the action.
Richard B. Katskee: We don't -- we don't at all think that it was -- this was an unlawful reason under the Establishment Clause. We think Official 1 that it was required. We think that at the very least the District had the discretion to take those concerns into account. But there are lots of reasons that a -- that a -- that an employment action letter might not include all the reasons that the District acted. For example, here, the District over and over again in every one of its letters said, come talk to us, we'd like to work this out, tell us what you want. And the District might have -- might well or a -- an employer might well think: I don't want to pile on because we really want to find a solution to this problem, and a solution to the -- to the problem of religious coercion would also solve all of the other issues. And, by the way, that gets to the -- that gets to the -- the fact that the District did have specific -- did specifically name coercion concerns, which gets to questions that Justice Gorsuch and Justice Kavanaugh said.
Justice Breyer: There are a lot of reasons. Why are you shying away from -- or maybe you're not -- the simple reason of establishment? Official
Richard B. Katskee: Yes.
Justice Breyer: I mean, suppose -- isn't it -- isn't it -- I think this is true, but tell me if it's not. A teacher is given a notice from 5 to 9, until 9:15 every morning, we want a current affairs event where the students can discuss anything, and they can discuss religion too. There's nothing wrong with discussing religion or its history or what it's about. But one thing you cannot do is actually pray, all right? And the teacher prays purposely, deliberately. It's nothing wrong with prayer. It might be a great thing. It is. But the District doesn't want prayer between 9 and 9:15 is all, though every other thing can be discussed. Does that violate something in the Constitution or the law? And why not?
Richard B. Katskee: Absolutely not.
Justice Breyer: It does not violate -- it does not violate anything. All right. Why not?
Richard B. Katskee: Well, for -- for a couple of reasons. I will -- I will start with Official 1 -- I will start with the Establishment Clause, but I want to work backwards to the issue of government speech as well.
Justice Breyer: I mean, it's -- I mean, in other words, you have no -- no -- no reason not to turn to the Establishment Clause. And the cases that you would cite would be what?
Richard B. Katskee: Well, starting with Engel, Engel against Vitale, and, by the way, Pierce against Society of Sisters as well because the -- the Court made clear there and consistently since then that the -- that -- that parents have the right to determine the religious upbringing of their children, and government officials can't interpose themselves and interfere with that.
Justice Breyer: Okay. So one of your points is we don't have to reach all these complicated issues either.
Richard B. Katskee: Correct.
Justice Breyer: We can simply say the question is whether, just after the game, on the 50-yard line, the coach praying is sufficiently like the teacher praying between 9 and 9:15 in the morning that there is an Establishment Official 1 Clause problem and that is a legitimate reason for bringing in discipline when it's not followed. Now, if we don't agree with that, you're going to go to 10 other things. Okay, I've got this right?
Richard B. Katskee: Yes, and -- and, Justice Breyer, this was in the particular context of that long history of his conduct and the expectation and the pressure on students.
Justice Kavanaugh: But it's not -- it's not audible to all the players. And so you're relying on, I think, being visible here, correct?
Richard B. Katskee: Audible, also, Your Honor. The -- the --
Justice Kavanaugh: Not to all the players because they don't -- they're not all there. They don't have to be there. It's not a team event in terms of a huddle, locker room situation. You're relying on it being visible. And then the question is, how far does that go? The coach does the sign of the cross right before the game. Is that -- could a school fire the coach for the sign of the cross Official 1 right before the game?
Richard B. Katskee: If -- if the coach is doing it while not making himself the center of attention at the center of the field, it's perfectly fine. If he was instead --
Justice Kavanaugh: Well, the coach is standing -- standing. The team is out there for the -- for let's say a basketball game or let's stick with football -- football game, everyone -- teams are out there and the coach is visible to everyone and very publicly makes the sign of the cross. Can the school fire the coach for that?
Richard B. Katskee: If the coach is -- is addressing the team and that's the way he starts it, the District can act, but districts don't have an interest in --
Justice Kavanaugh: No, no.
Richard B. Katskee: -- firing people willy-nilly.
Justice Kavanaugh: Addressing the team loads the -- the hypothetical. He is visible to everyone in the crowd and to the players, standing a little bit on the field from Official 1 the sideline, as coaches do, and very visibly does the sign of the cross.
Richard B. Katskee: The -- the reason that both Garcetti and Pickering involve -- involve flexibility is to take account of the line-drawing here. And that one doesn't -- doesn't seem so hard if it is -- if it is the coach not making himself the center of attention, not -- not addressing the team.
Justice Kavanaugh: I don't know -- sorry.
Richard B. Katskee: Then it would be -- then it would be -- then it would be permissible and it's -- and it's protected if it's not government speech.
Justice Kavanaugh: I don't know how we could write an opinion that would draw a line based on not making yourself the center of attention as the head coach of a game.
Richard B. Katskee: What -- what this Court has said, what this Court has made clear about government speech actually gives that line, which the Court said -- the Court has made clear that the functional analysis requires -- requires looking at the manner, the place, the Official 1 time of the speech and how a reasonable observer would perceive it. And, yes, that is -- that's -- that's not a categorical absolute but for good reason, because the real practical problems on the ground that -- that school districts and other government employers have to deal with don't lend themselves to -- to absolutes. And they certainly don't lend themselves to absolutes where this -- the very same conduct by an employee can be either subject to -- either subject to -- either government speech or subject to balancing if it is -- if it's political but is -- is sort of categorically private and -- and protected by strict scrutiny if it's religious. Nobody's saying you can't --
Justice Barrett: So why would Pickering apply to Justice Kavanaugh's crossing himself example? Your -- I -- I guess let's imagine it's just a free exercise claim. Have we ever applied Pickering balancing? I don't think anybody -- let's just posit that in Justice Kavanaugh's example, the coach visibly crosses himself, visible to Official 1 everyone, but that no one would mistake that for government speech. It's quite clearly just the private devotional practice of the coach. Why would Pickering apply? Have we ever applied Pickering just to straight-up free exercise claims?
Richard B. Katskee: No, but this Court has -- has made clear that that's the mode of analysis for all First Amendment claims. It's done it not just with the Free Speech Clause but also with the Petition Clause by way of example. And to -- to draw a different line would yield bizarre, impossible results. Let me give a couple of examples of what that might mean. You know, suppose that an assistant district attorney objects to the -- the DA's request for the death penalty in a case and so writes a letter to the editor -- a letter to the editor complaining and calling the district -- district attorney out for that. Now, on Mr. Kennedy's test, that would be a classic Pickering example if it's a political view or a social view, but it would be subject to strict scrutiny if the motivation for that same letter is -- is religious. Official
Justice Alito: Suppose that everything about this case is exactly the same as it was in reality, with this one difference: When Coach Kennedy went out to the center of the field on these two occasions, all he did was to wave a Ukrainian flag. Would you have fired him?
Richard B. Katskee: It's -- it's not a question of firing, and, in fact, he was put on paid leave.
Justice Alito: Would you have done to him --
Richard B. Katskee: But the question is whether --
Justice Alito: -- what you -- would you have done to him what you did to him here?
Richard B. Katskee: Then --
Justice Alito: Would you have treated that case differently?
Richard B. Katskee: That's absolutely something that can and should be disciplined because the School District doesn't -- doesn't want its event taken over for political speech.
Justice Alito: Where is the -- a School District rule that says that? Official
Richard B. Katskee: The -- the School District has to be able to manage its activities and events. And that's clear under this Court's jurisprudence.
Justice Alito: What -- what reason is there to believe that you would have treated that case the same way?
Richard B. Katskee: There -- there's -- there's -- not only is there nothing to suggest that it wouldn't have, but it would be -- it would be absurd to think that -- that a -- a teacher or coach could take over the biggest school event of the year and, in front of the students, be pumping for a political -- for a political cause or agenda. The School District has to be able to say --
Justice Alito: Well, what is there in your explanation for the adverse action that you took that would support doing whatever you did to Mr. Kennedy in that situation?
Richard B. Katskee: Well, there was -- there was an entire course of conduct here, right? The -- the -- the School District sent Mr. Kennedy a letter on September 17 saying you can Official 1 pray, including where it's visible to students; just don't pray with and to the students. For a month, he was having prayers at the games and it wasn't a problem. Then he sent the letter on the 14th demanding to go back and do what I was doing before, which is audible prayers. Students have to be able to join. The -- and then -- and then he went to the press and he said, this is how I make these kids better people, and then came the game on the -- on the 16th. The idea that the School District couldn't do something when a zoo was created on the field is -- is unimaginable --
Justice Alito: Can the school --
Richard B. Katskee: -- that it doesn't need a --
Justice Alito: -- can a school -- can a school district take adverse action against a coach or a teacher because the coach or the teacher, on purely private time, not on school premises, not when the coach or teacher is discharging any official duties, is very, very visibly religious, posts all sorts of religious messages on YouTube? Maybe this coach is -- is Official 1 an ordained minister and preaches. And the school district says this goes too far, this is not the kind of mentor we want for our students. Can they -- can the district do that?
Richard B. Katskee: Usually, no, but it's not an absolute, and that's why Pickering is flexible. Let me give an example for why that would be the case, because, look, students don't -- students' views of what is official and what is compulsory --
Justice Alito: I mean, your district came really close to -- the Ninth Circuit --
Richard B. Katskee: Pardon?
Justice Alito: -- in its earlier opinion thought that that was a justification for what the School District did.
Richard B. Katskee: What the --
Justice Alito: Kennedy's not a good mentor for the students.
Richard B. Katskee: -- what the Ninth Circuit -- the Ninth Circuit clarified in its second opinion what it meant in its first. But the real point is that, to students, whether the coach is acting as a coach doesn't turn on the niceties of government speech doctrine. Suppose Official 1 that the coach, on his personal Facebook page, says, in my 20 years as a coach, I have never had a student do well or make varsity who doesn't pray with the team before every game. That's a situation that it's -- it's surely private, but it's also surely coercive. It raises Establishment Clause concerns --
Justice Alito: Well, that's a different --
Richard B. Katskee: -- and all sorts of other concerns.
Justice Alito: -- that's different from -- that's different from my example.
Richard B. Katskee: Pardon?
Justice Alito: That's different from my example, because there, there's quite an express statement that you better -- you better pray and -- and -- and agree with my religious beliefs or you're not going to get a starting position on the team.
Richard B. Katskee: What -- what that shows, though, is that there certainly can be -- can be private speech that -- that -- that puts -- puts improper pressure on students to conform religiously or otherwise, and also -- and -- and Official 1 that's why the -- the test has to be practical and functional. There can't be this categorical -- on Mr. Kennedy's view, there would be -- that's -- that's not just private, but there's also strict scrutiny, and that would make an impossible standard for school districts to deal with these real problems.
Justice Alito: Well, I don't really understand --
Richard B. Katskee: The answer --
Justice Alito: -- your answer. Suppose the coach has got all sorts of political signs on the front lawn of the coach's house. Can they fire him for that reason?
Richard B. Katskee: No, but no one would -- no one would view that as government speech, number one, and no one would view that as a message being conveyed to students, something that they're -- that they might benefit from or are supposed to go along with.
Justice Alito: No? No student could -- no student could think that? No student could think that if -- boy, if I don't agree with -- if I don't say things in class, write things in my papers that agree with the coach or Official 1 if I -- the teacher or I say something that's contrary to what this teacher feels really strongly, that's going to hurt me.
Richard B. Katskee: The question would be --
Justice Alito: No -- no -- no student could think that?
Richard B. Katskee: The question isn't whether no student can think it. It -- the question is whether -- whether a reasonable observer should think it. It's an objective test. And compare that situation with, for example, the teacher putting up those signs in the classroom. That -- that shows that that -- the -- the school district could certainly be concerned about that -- that pressure on the students, that they feel like if they don't voice the opinion that's up on the wall there, that they might be penalized for it, and the district can make the decision that it -- that it is going to regulate that, which -- which will require, on the one hand, if -- if that is private, recognizing the -- the very serious First Amendment interests of the employee, but also recognizing the need to -- not to have Official 1 material disruptions in class, the need to avoid coercing the -- coercing students to adopt a particular political or social view or interjecting the dissension in the school that that may cause.
Chief Justice Roberts: Justice Thomas, anything further?
Justice Thomas: Just a -- a minor question. Initially, I asked you about someone -- the coach taking a knee during the National Anthem, and you said that, of course, that could be regulated. Do you have any examples where, in fact, that has been done in your school district?
Richard B. Katskee: That situation has never arisen, Justice Thomas. And that gets to the attempt to call this -- to call this religious discrimination because the particular act that the School District had to deal with happened to involve -- happened to involve religious expression.
Justice Thomas: Actually, what I'm talking about is the --
Richard B. Katskee: But -- Official
Justice Thomas: I'm interested in something that we agree --
Richard B. Katskee: Yes.
Justice Thomas: -- could be regulated --
Richard B. Katskee: Yes.
Justice Thomas: -- and whether or not there has been disciplinary actions.
Richard B. Katskee: So far as I'm aware, the situation -- that situation hasn't presented itself. But it is also --
Justice Thomas: It hasn't presented itself or it hasn't been addressed?
Richard B. Katskee: No, hasn't presented itself, Your Honor. There are certainly situations in any school district where there are things that warrant -- that warrant discipline, but -- but there -- there was nothing so far as I am aware and certainly nothing in the record to suggest that anything like that ever happened here.
Chief Justice Roberts: Justice Breyer, anything? Justice Alito? Justice Sotomayor? Official 1 Justice Kagan? Justice Gorsuch?
Justice Gorsuch: Counsel, I just want to make sure I understand the -- the school policy. A minor point, but on Joint Appendix 28, it appears that teachers are forbidden from either encouraging or discouraging private student prayer. Is that right?
Richard B. Katskee: Yes, Justice Gorsuch.
Justice Gorsuch: So the coach was forbidden from discouraging private student prayer?
Richard B. Katskee: Absolutely.
Justice Gorsuch: Okay. And then suppose -- do you -- well, let me just ask you this on the Establishment Clause. Do you think the right question that we're supposed to ask is whether the activity was coercive of students?
Richard B. Katskee: The --
Justice Gorsuch: You've mentioned coercion many times in these remarks.
Richard B. Katskee: Yes, both -- both coercion and endorsement have mattered since Engel. But let me give some of the places that -- that show coercion in the record. Official
Justice Gorsuch: Well, if you think -- I -- I -- I understand you think the --
Richard B. Katskee: Or, excuse me, the District expressing concerns about coercion. But please. I'm sorry.
Justice Gorsuch: Let me ask you a hypothetical then --
Richard B. Katskee: Yes.
Justice Gorsuch: If you think both are relevant.
Richard B. Katskee: Yes.
Justice Gorsuch: Let's say this Court in a case saw evidence that the School District was focused solely on Lemon and the endorsement test and not coercion, and suppose the Court thought that Lemon had been buried. What -- what then should we do if we thought coercion were the appropriate test but hadn't been applied by the School District or by the court below?
Richard B. Katskee: Remand for the lower courts to decide that question. And, here, there would be plenty of basis to show the School District's contemporaneous and expressed concerns for coercion. That would not be a Official 1 basis to decide for Mr. Kennedy. This was on summary judgment. It would be -- there -- then there would be fact questions for -- for -- presumably for trial about what the coercion was.
Justice Gorsuch: Why -- why is it that the School District so emphasized Lemon? I understand your point that it -- there might be -- it's in the record otherwise, but, as Justice Kavanaugh has pointed out, this Court for decades now has resisted attempts to rely on Lemon in cases like this. And it does seem like there's an awful lot of record suggesting reliance on Lemon.
Richard B. Katskee: Well, this -- this -- the School District was -- was following the -- the precedents of this Court that -- that continue to be precedents and haven't changed. But -- but, again, it very much had in mind -- and, for instance, in its September 17 letter at JA 44, it specifically mentions that the talks needed to be to the -- to -- needed to be secular "to avoid alienation of any team member." That's talking about coercion. The Official 1 School District referred to indirect coercion as well in the question-and-answer document and in the earlier statement to the community at the times -- at the times of the September 17 letter to Mr. Kennedy and the September -- October 28th letter.
Justice Gorsuch: Well, in the October 22nd letter, for example, it does speak about how a reasonable observer might perceive government endorsement of religion, even though it had pretty clearly disavowed Mr. Kennedy's activities by that point. What do we do about that?
Richard B. Katskee: Well, in -- in the first instance, as I said earlier, this Court has made clear that in employment cases one never just looks -- one has to look at the whole record.
Justice Gorsuch: I'm -- I'm talking about in the Establishment Clause, counsel.
Richard B. Katskee: Yes. And -- and the District had and expressed other Establishment Clause concerns as well of all -- as all of its other -- other concerns, and those were substantial. The coach is an amazingly powerful Official 1 figure with immense -- with immense coercive authority.
Justice Gorsuch: I think we appreciate that, as all teachers do. And -- and we're concerned about implicit coercion as well as explicit coercion for lots of things. To get a good grade, you maybe feel like you have to participate in after-school activities or -- or write an essay in a way that you think will appeal to the teacher's sensibilities or even politics sometimes. But that's not really my question. My question is, if we thought that the School District misunderstood the Establishment Clause teachings of this Court, what should we do?
Richard B. Katskee: Well, we -- we still think that -- that -- that -- that two things should -- that the case at that point should be remanded because of the -- of the contemporaneous evidence of coercion and also all the other reasons that the District acted.
Justice Gorsuch: If we think the other reasons the District acted are post hoc rationalizations that weren't presented below or Official 1 at least the district court found the sole reason was this Establishment Clause reason, what do we do about that?
Richard B. Katskee: Well, this was on summary judgment. The district court made what Mr. Kennedy's reply brief calls a factual finding at a time when a factual finding is improper. There was -- there was plenty of record evidence of all the other reasons that the district acted and -- and -- and expressions either to Mr. Kennedy or to the community of concerns. And, really, how could a district not be concerned about the zoo that was created on the field and students getting knocked over -- over on the 16th or having -- or having an organized prayer circle with state legislators who were addressing the kids on the -- on the 26th. These are the things that the -- the superintendent's amicus brief describes all the concerns that school administrators have to deal with in the school context.
Justice Gorsuch: So the district court that ruled -- Official
Richard B. Katskee: -- and that has to be --
Justice Gorsuch: -- ruled in the District's favor is -- was mistaken when -- when the district court found it was the sole reason?
Richard B. Katskee: It wasn't mistaken for this reason. The -- the -- the Establishment Clause concerns and the way that the district court found, ruled in favor of the District, was correct. If this Court disagrees, then -- then it isn't a basis to grant summary judgment for Mr. Kennedy because, at that point, all factual inferences on summary judgment have to be drawn in the favor of the School District, which means it certainly isn't possible to just ignore all the record evidence. That's what would create fact questions requiring a trial.
Justice Gorsuch: Thank you.
Justice Breyer: Is Lemon in this case? I mean, do we have to decide Lemon? The reason I ask, honestly, is because, if you see Lemon, despite its imperfections, as an effort to take from other cases, and the first part of the First Amendment, establishment is there first, an effort to prevent the country from Official 1 becoming more divisive, certainly an effort that remains valid, to prevent it from being more divisive there on the basis of religion. Now, if that's reconsidered, I mean, you're -- you've read a lot on this, how many cases will we be calling into question if that part of it is reconsidered?
Richard B. Katskee: That -- that would seem to -- that would seem not only to call into question -- I -- I don't even know how many cases since Lemon but also the cases before.
Justice Breyer: Not since Lemon. I'm thinking --
Richard B. Katskee: Before.
Justice Breyer: -- before and after --
Richard B. Katskee: Yes.
Justice Breyer: -- on the theme --
Richard B. Katskee: Yes.
Justice Breyer: -- of preventing division on the basis of religion.
Richard B. Katskee: Yes. That -- that would -- that would certainly apply to, I think, all the -- at least all the school cases that the Court has had. Official 1 And -- and I want to say some -- I -- I -- I think that that's particularly pertinent because, if the Court looks, for instance, at the amicus brief of the members of the Bremerton community and what dissension it caused there, or look at the amicus brief of the -- of the East Brunswick School District personnel for the immense horrible divisions and attacks that were caused there, or look at the footnote in Santa Fe, where the Court described the -- the need of the district court to -- to order people to stop trying to find out what -- who the -- who the -- the Catholic and Mormon families in that case who were pseudonymous plaintiffs to figure out who they are because of the -- because of the harassment risks. So all those things matter. And I think it factors into every case, not to the same degree, but in schools, it figures overwhelmingly both in this Court's cases and in the lower court's cases.
Justice Gorsuch: Would it be overruling Lemon not to apply it since we haven't applied it in, I don't know, 20 or 30 years?
Richard B. Katskee: It -- it -- Official
Justice Gorsuch: We've been asked to many times and we haven't done it in 20 or 30 years.
Richard B. Katskee: It -- it wouldn't be overruling --
Justice Gorsuch: It would be doing exactly what we've been doing, right?
Richard B. Katskee: Yes, but, here, what that -- what -- what -- what then that would mean is that the Court should still be looking at -- at coercion --
Justice Gorsuch: At coercion, right. We --
Richard B. Katskee: -- and we think endorsement also.
Justice Gorsuch: -- we agree on that. We agree on that. All right.
Chief Justice Roberts: Justice Kavanaugh?
Justice Kavanaugh: Just to follow up on that, my understanding of what you're saying here is that the Establishment Clause rationale was based on two distinct concerns, one endorsement, the other coercion. Is that accurate? Official
Richard B. Katskee: Yes, although they're -- they are related, but yes.
Justice Kavanaugh: Okay. And on endorsement, as Justice Gorsuch says, we have not used endorsement in Van Orden, Town of Greece, American Legion, in a long time. So let's put that to the side for the moment and I take your arguments about that. But, on coercion, and just to follow up on the endorsement point, we did not apply Lemon in Lee versus Weisman, for example, the schools case that extended Engel to graduation prayer, so that didn't happen there. On the coercion side, there are different forms of coercion, as you've been talking about. There's actual you are compelled to be -- to say the prayer. That's not happening here. You're compelled to be present at an event where prayer will be spoken. That is Engel. That is Lee versus Weisman. That is Santa Fe. But I think you're not saying that here either. You're saying there's kind of an implicit peer pressure, subtle coercion, implicit coercion. If I'm wrong about that, Official 102 tell me. But that seems a different concern than the Lee versus Weisman, Engel, Santa Fe concern and seems to run into the line-drawing problems that you and I were discussing earlier. So whatever you want to say in response to all that.
Richard B. Katskee: This Court in -- the term that this Court used in Engel was "indirect coercion." And this Court very much said that in the public schools, indirect coercion matters to -- indirect coercion of students, I believe it said, of -- of members of minority faiths to -- to conform to a religious practice is an Establishment Clause violation. That was not -- that was not, if you don't join the prayer, you'll be off the team. That was -- that was the sort of situation where students can reasonably understand, and, here, very much students and parents understood that you have to go along to get along. That's what it means to play football. To -- to determine otherwise, to say that that isn't coercion would -- would require getting rid of cases all the way back to Engel and Schempp, and it would also -- Official
Justice Kavanaugh: I guess I -- I guess I --
Richard B. Katskee: -- cast serious doubt on --
Justice Kavanaugh: I'm going to stop you there and challenge you on that. I don't see why the Court couldn't say -- and I'm not saying this is what we should do, just as -- but on the line-drawing -- Engel, Lee versus Weisman, Santa Fe all remain in place. And Santa Fe applies, you know, logically to locker room or huddle speech, but we're not going to extend Santa Fe to something beyond that really for the line-drawing reasons. The sign of the cross example, you had -- we had a discussion about that and there would be many other hypotheticals. We just can't have center of the attention be the line for Establishment Clause purposes, for example.
Richard B. Katskee: The -- the -- the line -- the line that this Court drew in Garcetti for government speech would solve the problem completely without any need to get to any of these questions because this was government speech. Official 104 Otherwise, it shouldn't be necessary to -- to decide conclusively an Establishment Clause question, though we think it is easy and clear under Santa Fe and Lee and Engel and Schempp and Pierce against Society of Sisters, as a free exercise case pointing in the same direction, because of the fact that in -- under Pickering, the analysis takes very seriously the employee's free speech and free exercise rights, but it also takes account of everyone else's free exercise and -- everyone else's free exercise rights, the students' and their parents', and all the necessary concerns about managing an event and everything else. On Mr. Kennedy's test, the -- the Court would ignore all of that. Nobody's -- nobody's religious freedom rights count except for -- except for the employee's. That's an exceedingly peculiar result for a context that is a government employee who was hired to and charged with -- with teaching and educating students.
Justice Kavanaugh: Thank you.
Chief Justice Roberts: Justice Barrett? Official
Justice Barrett: I just want to clarify one thing about your argument related to that last point. If we disagree with you that this was government speech, so if we think this was private speech, we don't even get into the Establishment Clause because there's no state action, right? So we're not asking these questions about coercion for purposes of discerning whether there was an Establishment Clause violation, but we would be merely doing the Pickering analysis, which arguably might bring in things that -- you know, Justice Gorsuch said let's assume we think some of those were post hoc rationalizations. We would need to get into all of that because we wouldn't be doing a straight-up Establishment Clause coercive analysis.
Richard B. Katskee: Well, the -- the place to start is -- is -- certainly, the right frame of analysis is Pickering. But -- but it is not -- but it isn't and we think can't be correct that there's no situation in which -- in which conduct that is deemed private under Garcetti by a school official is -- is not an Establishment Official 106 Clause violation like the example that I gave to -- I believe it was Justice Alito, about the coach who posts on the Facebook I've never seen anybody who makes --
Justice Barrett: That's state action?
Richard B. Katskee: No, I'm saying that it isn't, and yet it still poses an Establishment Clause problem of coercion.
Justice Barrett: Because it would be government speech?
Richard B. Katskee: No, I -- no.
Justice Barrett: But where's the state action? I mean, I see that there's coercion, but you could have coercion in all -- from all kinds of private sources.
Richard B. Katskee: There --
Justice Barrett: Where's the state action there?
Richard B. Katskee: There -- there -- there shouldn't need to be state action for an Establishment Clause violation even though it -- it would be rare when one would have a violation without state action. There is -- here, of course, there is state action not only because he's a public employee performing his duties in Official 107 a place and time where only he can and in a way that the students expected that to be, but also the School District has conferred authority on him which everybody there knows. All that being said, though, we think the real point is that not only does it not need to be -- not necessarily have to be functioning as a -- as a government employee at the time of the speech for it to raise Establishment Clause concerns, but it also raises all sorts of other concerns that, under Pickering, the School District has to be --
Justice Barrett: I get --
Skatskee: -- able to address also. Yes?
Justice Barrett: -- I get your Pickering argument. I just --
Richard B. Katskee: I'm sorry.
Justice Barrett: -- didn't understand how there could be the Establishment Clause violation absent state action. But thank you. You answered.
Chief Justice Roberts: Thank you, counsel.
Richard B. Katskee: Thank you, Your Honor. Official
Chief Justice Roberts: Rebuttal, Mr. Clement? REBUTTAL ARGUMENT OF PAUL D. CLEMENT ON BEHALF OF THE PETITIONER
Paul D. Clement: Thank you, Mr. Chief Justice. Just a few points in rebuttal. First, in terms of the correct test, I don't think the correct test when the government explicitly discriminates on the basis of religion is Pickering. Religion is different. In the context of free speech, we're used to saying, well, if you just spoke over there, you had alternative methods of communication, time, place, and manner, there's some flexibility on that. That doesn't happen in religion because it's a compelled, sincere religious belief. If you tell a Muslim if they could just reorient themselves in the other direction, you're denying them their religious exercise. So you need a test that is fit for religion cases, and strict scrutiny provides that. If you want to give courts and district courts -- rather, school districts guidance, the last thing you should do is Official 109 replace jurisprudence that's becoming clearer and could be made clearer in this case about discrimination against religion and the Establishment Clause and replace it with Pickering. A balancing test doesn't provide guidance. The only thing worse than Pickering, I suppose, would be a center of attention test. And that doesn't actually capture the real world examples anyways. Right after Mohamed Salah scores the goal, he is, of course, the center of attention and he engages in a religious exercise. Right after Tim Tebow scores the touchdown, he's absolute the center of attention. Yet, he engages in a religious exercise. It's private, it's permissible, and the government can't stop it. Second, in terms of Santa Fe, we've discussed this a bunch, but my friend on the other side does say, well, wait, this is worse, this is coach speech, not student speech. But you can't strip away all the context of Santa Fe. If everything else were the same, sure, the fact that it was coach speech would be worse. But it's not all the same. Official 110 That case, the student was using the loudspeaker as the winner of a majoritarian election to be the designated spokesperson for the school. This case, it's the coach engaged in his private religious exercise. He happens to pick that point at the -- the center of the field. He's actually not the center of attention if you look at the videos, which are in the record, but -- because there's lots of other activity going on, but that's his religious exercise. It's protected. Now, third, the record here -- I mean, the -- people seem like they dispute everything, but the record speaks for itself on this case. There are three games that are particularly relevant. The 16th, the homecoming game, that's what my friends describe as the circus, the media circus, people coming onto the field. Well, there was a letter sent in response to that game in particular. It's at Joint Appendix pages 90 to 95. It uses the phrase "endorse and endorsing" and raises endorsement concerns eight times. It talks about safety concerns zero times. It talks about coercion concerns zero times. That's the Official 111 16th. Then, by the 23rd, that's a game that is one of the two games on which the actual discipline turns. That's a prayer where no one -- no one joins the coach in his prayer. The 26th is then the next home game. They have a much better security system that time. They've addressed that pretextual problem, and there's a prayer. No prayer -- no player joins it from either team on the 26th. Yet, the 23rd and the 26th are the prayers where he's disciplined. He was not disciplined for having a state legislator on the field. That's simply not what happened in this case. And, again, the record speaks for itself not just contemporaneously. As I said, the score in the letter sent after the 16th game is 8 to 0. Endorsement, 8; other concerns, 0. But then, when they lawyer up and have their lawyer send a letter to the EEOC at pages Joint Appendix 132 to 142, what concern did they express as their stated sole driving consideration? It is, again, endorsement, 8 to 0. Eight mentions of endorsement. Nothing else Official 112 is mentioned. So I'll finish with this point. Please do not remand to the Ninth Circuit for an application of the coercion test. There's no evidence of coercion contemporaneously. Joint Appendix 105, the school itself stressed no evidence of actual coercion. The only evidence that showed up later was a couple of parents complaining about their students who had to turn their back on the team or separate themselves from team activity, obviously directed at the pre-September 17th activity that's no longer at issue in the case. There's no evidence of coercion in this record. But, worse still, I mean, my client has already waited six years to get his job back. And if you imagine the parallel for this is a race case where the lower courts, both lower courts, said the sole reason the government acted was because of race, but yet we think it's okay because there's this compelling interest. If this Court took that case up and said there's nothing to the compelling interest, it wouldn't send it back down to see if there was some other reason when the courts had Official 113 already found the sole basis for the action was on the basis of race. Here, the record is clear. Two courts that didn't agree with much of what we said said the sole basis for the government's reaction -- actions here were religion. That is not something that should stand. Thank you.
Chief Justice Roberts: Thank you, counsel. The case is submitted. (Whereupon, at 11:48 a.m., the case was submitted.)