tv Justices Hear Case on Football Coachs Prayers Midfield CSPAN May 26, 2022 3:32am-5:25am EDT
district's sole reason for its actions without an endorsement concern, not concerns for band member safety or how many players joined the coach and 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 and his rare. nonetheless, that solo prayer was exhibit a. exhibit b was the october 26 game when no players joined the prayer. nonetheless, the district, throughout this case contemporaneously entity eoc has confirmed that the soul driving force behind its actions has been avoiding endorsement. the ninth circuit held that the district actions not only comply with the first amendment but are compelled by. the ninth circuit governments
speech holding ignores this court statement to avoid overly broad job descriptions and the ninth circuit establishment clause fails to grant a basic teaching of this court's cases that has been sent over and over again. the government does not endorse all private religious speech because it takes place on the school side of the gates. i welcome the courts questions. >> just so i'm clear, are you pursuing a free exercise claim and you've had a free-speech claim. which are you pursuing? are you pursuing both now or them separately? is this a hybrid claim you're making? >> we are pursuing them both. they are fully preserved in this court but i think you are right that this is a hybrid type of case in which the free speech clause in the free exercise
clause reinforce each other and i think it in for -- reinforces how the court should approach the case. when the government acts not to maintain discipline in the school or maintain her or avoid disruption but is taking action precisely because the speech is religious and the school field -- fears endorsement concerns, that's where strict scrutiny complies. >> where it is garcetti fit in? it seems that is muddying the water a little bit. you would not normally think of a free exercise claim is being amenable to garcetti. >> that's a fair point and i guess if the statement really is the governments own speech, i don't think you would have the basis for a free-speech claim or a free exercise claim.
in deciding whether the coach's speech is its own speech, you might supply a different 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. the garcetti inquiry asks whether this is part of the coach job duties. >> we know it's not part of his job especially since the school district did not know anything about it and objected to it so it cannot be part of his job. >> that's music to my ears and i would say beyond that,. his job due to his nuts in all and compass inc. duty after the final whistle live because the record is clear that he was able to have a private conversation, greet his spouse into things like that. >> how can you make a free exercise claim and say it was part of his job? >> we are not.
it isn't part of his job so it's private speech. therefore, under free-speech principles, it's subject, in our view, ultimately because the government's action is religiously based but we would also say because is not part of his job, it's private religious act committee. >> i have been trying to parse this out in a similar way then justice thomas. let me give you a certain number of hypotheticals. tell me when it becomes private and when it's still public. a teacher begins each of her classes with a silent prayer in an audible prayer. when i say "the bell rings, students are coming in and they sit down and the teacher says
privately and publicly. is that the duty of the teacher? >> i would think so. >> why? >> because it's during instructional time and a time where she has >> how about before the bell rings? students are coming in and she's reading the bible. she's reading it out loud before the bell. is it the bell that makes it within the time were not within the time? >> i would say the pellet what makes your first hypothetical relatively straight forward. after your second hypothetical because there are two things there -- if the teacher were reading her bible before the bell at her desk either silently or audibly, that would be private speech and that would be protected. if before the bell but when the students are all there, she is reading out loud to the class, i think that is the edge case. >> let's take it to the end of the class. the students are getting up, it
is part of everyday life that students leave and they speak to the teacher to get some answers to their questions about the lesson. instead of doing that, instead of waiting for those questions, she decides going to say prayer. if that -- is that within her duties? is that personal or is that still something that will be perceived as part of her workday? >> i think that is closer to the edge case and if after the bell rings, she is reading the bible because she is free to do whatever she wants and she chooses to read the bible >> but she's not free to do everything she wants. she is required as part of her duty to be available to the students and answer their questions. >> then it might be a situation where in that hypothetical where
she is essentially supposed to be continuing to have some instructional obligations of the kids and she's not free to text her spouse >> -- let's take that, she is not free. she is not free to do that because it's personal. she could do it but it's personal speech, not religious speech. she can't check the internet, can she be fired or texting her husband during school hours? >> if i'm understanding the hypothetical right, the neutral rule doesn't single out religious expressions. >> if she does something that is private on office hours, this is her employer and her employer says don't do private things when you are working and she does it anyway, can she be fired? >> that is a neutral rule as you were explaining.
>> i want to make sure that's common ground. you can't do anything private step >> why does it have to be a neutral rule? this is why i'm getting to this example. she is on duty. she is on duty in the classroom. 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 stop why can't an employer tell an employee what they are permitted to do during that time? i asked this question so we can get to the situation. i found it odd in your brief you kept saying coach wasn't on the field during the game. i have a dozen or more statements your coach admitting that his duties as coach weren't
just during the game. he had an obligation to remain behind for two hours after the game finished, that was 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 it post game wrap up with the players and the coach. he had a duty to clean up and to make sure the gym was left in order. i guess what i'm asking is, if he had all these duties and your lawyer says to you, these are the duties you have and that's all i want you to do, 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's part of your duty. it's not hard of his duty to set the example the school wants. why can't the school fire code-2 decides to put a 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? >> i think there were maybe three different hypotheticals there and i will try to deal with them as best they can. if somebody wants to have a nazi emblem but it's not religious if it's not religious >> assume its religious. >> i'm happy if it's religious,
its claim to be religious, that might be one of the rare cases where you question the sincerity of the religious elite because i'm not aware of that religion stop assuming it's a sincere religious belief, there is no reason to discriminate so the school might have to address that three neutral policy avoiding disruption and if it's a neutral policy and does not single it out because religious, then that's something that would be evaluated under pickering. >> what if the activity on the field did not consist of this kneeling down briefly but something more extensive, standing up on the 50 yard line, arms outstretched, engaging in audible prayer. is your analysis and answer still the same? >> it's not exactly the same. the difficulty with the audible
prayers were some of the practices the coach candidly admitted he engaged in where he is holding up the helmets for both teams and talking to the players is there is an instructional component to that but i think a school district can say that sincere engagement is the core of what coaches and teachers do and we will treat that. >> he's not speaking to the players in the example you gave but he's praying to god. >> if there is not an instructional component where the school is able to have a neutral rule. the school has a fair amount of flexibility to determine what the duties of the coach are but they did not say his duties weren't all in company -- an all-encompassing supervisory role and if the district had one coach was whole job was to watch
those kids after the bell like a hawk and make sure they didn't get into trouble, even a brief religious exercise by that individual might be inconsistent with their neutral job duties and basis for the school to do something but here, it's in the record and undisputed that the coach could do other things, other private things in a possible amount of time because this is a fleeting religious exercise and even the school district described as fleeting. >> let's say he says the our father with arms outstretched and starts causing havoc. your friends on the other side say the bandmembers members were being rushed and the head coach was involved in this and if his prayer because that kind of chaos, would pickering apply? >> if they came up with a
neutral policy that tried to deal with that situation, i think he would test the neutral policy-based on pickering. if they try to adopt the neutral policy for stopping the our father, i think that's a case where it's pretextual and will be subject to scrutiny. if the hypothetical, you have the argument that that would be instructional and might you different case. >> one of my problems in this case is the parties seem to have different views of the facts. this may be a case about facts. and not really much about law. that's why i wanted to try this. there are six facts that i get out of the record. tell me if they are right or wrong.
if you say they are wrong, i will go back to it. for a long time, kennedy would go up to the -- coach kennedy would go to the 50 year -- 50 yard line and spoke a prayer of thanksgiving and invited anyone to join him. when the school learned about that, they 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 if they are involved. if the students are nearby. kennedy's lawyers sent a letter that seemed less accommodating stuff said beginning october 16, kennedy will continue his practice of saying audibly just after the game by himself at the
50 yard line in audible, verbal prayer and students could come. kennedy said i will not stop my prayer because kids are around . >> am i supposed to stop doing things are not right? >> it's important when you look at the demand letter >> i'm about to do that. this is before. >> the october 14 letter, didn't say we want to pray with students around. it specifically said coach shouldn't have to flee from student if they independently and voluntarily come near because the students have first amendment rights. >> by kennedy in his letter said i am not going to stop my prayer because there was kids around me. >> yes, he said that. >> i will go back and read that.
4, he advertised his plan to pray at the 50 yard line at the october 16 game in the media made a big deal about it and he was surrounded by players in a large number of spec tatars who rushed to the field -- spectators who rushed to the field. >> important to note the only player that joined him on october 16 were players from the opposing team. >> got it. 5, afterwards, the district said to kennedy, you cannot engage in demonstrative religious conduct while you were on duty for the district. ok? but if it is not going to be perceived as an endorsement, we will accommodate it, for example pray privately or inside the school building or on the athletic silly somewhere or in the press box and you can do that before or after game.
the development of accommodation is an ongoing process and we will discuss final accommodations and mr. kennedy never answer that letter. are they basically write with three exceptions? >> in exceptions six, it's not in the record because these kind of interactions would not be in the record but there were efforts by kennedy's lawyer to negotiate with the school district and they would not respond. this is not a situation where we refused to deal with them. there are many other facts in the record that are highly relevant 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 specifically singled out for his being fired. it's important to recognize that after the game on the 16, the letter of the 23rd didn't say anything about safety concerns. at the next home game, because the school district made clear they were not supposed to be people on the field, they didn't have a replication of the events on the 16th. >> let me finish your sentence but >> they were a number of these games right before then where the record is clear he did engage in these kind of prayers when the players were singing in the end zone and many of them were at away games and there was no rushing the field and no
circus. >> i take it from your earlier answers that you're not testing the right of the school district to discipline coach kennedy if he had been praying during the official post came talk. >> i think that's right. if he were a math >> teacher and prayed in math class and he's a coach and played during -- pray during the post game talk, caller: they caller: could discipline host: >> >> why? >> because it would be government speech. >> i don't exactly know why that is the operative question. why can the school discipline him? i would suggest that if you look
at air prayer cases, the idea why the school can discipline him is that puts a kind of undue pressure, a kind of coercion on students to participate in religious activities when they may not wish to. is that correct? >> i think it's simpler than that step >> i think a lot of this garcetti stuff is just not getting to the heart of what we care about in thinking about these questions which is coercion on students and having students feel they have to join religious activities, that they do not wish to join. that their parents do not wish them to join. >> i think it is as simple as the government speech but i want to be clear that this is not the case where the government took
action because of coercion concerns. the record is crystal clear that they were concerned about endorsements. >> you are requiring a lot of the school board to figure out exactly which box in the establishment clause to put this in. >> with all due respect, i don't think it's asking so much to ask for what this school said repeatedly. >> assuming the school district said the right thing, it said we don't really like this because it is a form of pressure, a form of coercion, we are worried that the student will feel pressured. he gets to give me and a math test -- math class were not so this is a kind of coercion that's improper for 16-year-olds. >> in the hypothetical rather
coach is giving the post game talk, i think those kind of concerns about real coercion may well be well-placed. when the coach is by himself at midfield, giving a 15 second fleeting prayer, those -- if you call that coercion, you are making an important mistake. >> i see that point so let me give you a hypothetical. you have a coach and he has historically been giving prayers in his post game talk. then the school says don't do that and let's say the school uses the right word and says don't do that because we think it's a coercion problem. and he says i won't do that. but instead, he says i will start the post game talk one minute later than i usually do and in the meantime, i'm going to pray and please join me if
you are so moved. what's a student to think at that point? >> in that hypothetical, their well may be a conversion concern -- a coercion concern. if the coach says i will go to midfield and do this if teen seconds and he will pick a time when most players are in the end zone doing something else. if anybody asks whether they can join, i will tell them it's a free country, you don't have to but do what you want. that's this case that's not coercion that counts. >> is that the question of this case, whether the facts are my fax or your facts? >> that's one of the questions in this case but why it matters and i think the record is crystal clear on this, we have a record this time around and i don't think the joint appendix and the rest of the record is ambiguous.
the reason the factual differences important is if you don't continue the situation between this two situations, you are leaving coaches in a position where there is no material room for their free exercise of religion or free speech and that's what this works it is not the case in tinker. the reason it gets back to the speech in my view is that one technique ninth circuit used is one of these excessively broad job descriptions. the hypothetical built-in in the idea. if you say the job description of teachers and coaches is to be mentors and the mentors are religious, the students who attend -- depend on them for playing time and the rest are going to want to curry favor and they will engage in their own religious practices or feel pressured to do so. that's a recipe for no free speech rights at all.
>> i understand how adults respond to things is not often relevant. we don't have a heckler's veto in our first amendment. we have had it in our school prayers under the recognition of what justice kagan talked about, the fact that 16-year-olds cannot he expected to be adults. what do i do with the fact that parents complained that their children would not follow their directives, not because they wanted to pray or because they felt pressure to pray. what do i do with the fact that when the coach, the school explicitly said students don't have to come if they don't want but many of them didn't and some still did but many of them didn't. what do we do with the fact that
a coach or another team was the one who brought this to the school's attention? the client asked him and his players to join in the prayer. don't those facts suggest the coercion that justice kagan was talking about? >> the extent they suggest any coercion is only because of the september 17 practices that were discontinued as soon as there was candace -- candid discussion. >> the problem i have is your client is the one who publicized this debate. he had a right to. wednesday did and it created this disruption, why is the school to stop from saying this activity on the centerfield of the 50 yard line has created a
problem where people believe that our continuing to do this, permitting them to do this is interfering with our work as a school? i don't understand why a school can't do that. >> a school can't do that because it sounds an awful lot like they would be either retaliating against his protected speech. >> they were willing to let him pray anywhere in the school after the game. he is the one that chose to publicize his prayer. he did it on the 50 yard line. he didn't do it on the side. he got on a need at the very center of the field. i don't know of any other
religion that requires you to get on the 50 yard line where post game victory screeches are given desk speeches are given. what religion requires you to do it at that spot? >> coaches religion and nobody has question the sincerity of his religious leaves. >> briefly, >> he felt compelled to make his prayer there and i don't think there is anything unusual about that stuff if a soccer player scores a goal, he will do a religious exercise or tim tebow scores a touchdown, they do the religious exercise there. there are spectators watching but that's not what's driving the religious exercise. that's where the event took place. >> justice thomas, anything further? >> in prior cases, the problem
of prayer in school is the fact that there are 54 different religions in the united states now. going back to the 18th century, 17th century, what we are worried out is maybe a satanist but he could be a catholic or apostate or a jew or a shinto and one group thinks why this group is being favored by the school and the others says what about this one so we have a kind of neutrality. 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 and praise out loud. and students join. indeed, there was going to be a lot of people there. leaving that out, this doesn't
seem like a new problem, it just seems like a line drawing problem about the 50 yard line just after the game, don't do it on the 50 yard line, do it 10 minutes later. you see what's bothering me? am i right about how to see this? >> i see what's bothering you but i don't think you are 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 these. the school district says it's fine to take a knee after the game but it's not fine [indiscernible] for the muslim student that scored and bowed toward mecca will be discipline but not the christian student that took a knee after scoring a touchdown. those are problems and that's discrimination but to allow individual religious exercises
in the normal places. if you tell kid that is about to kick the potential game-winning field goal that the kid crossed himself on the field in front of 50,000 but you can do that and rushed up to the press box and we will put the whole thing on hold. then can come down kick the field goal. nobody thinks that's sensible and the very fact that the accommodations that were authored 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 supervisory responsibility after the game stop he was on duty in a loose sense but he was not on duty in a real sense or they wouldn't have given him that accommodation. >> mr. clement one of the
difficulties of this case is having one's hand around the district national -- rationale. as i understood, it was based on our endorsement test and you say that was a mistake in test in a way to think about what the establishment clause requires. you called it coercion and i would like your thoughts on that subject generally. >> i appreciate the question. i don't think people are trying to dispute this record, it's clear what motivated the district and it was an endorsement. >> not coercion? >> not coercion. if you look at their first letter after the october 6 game, there are eight references to endorsement, zero references of either coercion or player safety. if you look at their letter to
the eeoc, there are eight references to endorsement endorsing no references to coercion. as to what the right concerns would be, i think real coercion is something this court has historically looked to in the context of these cases but as justice scalia pointed out in other opinions, it's important to distinguish between real coercion coming from the government and the peer pressure that comes from private individuals being able to engage in speech and i think the record is clear that we only have the latter going on and not the former. is not what motivated the district because contemporaneously, when they put out a newsletter to their constituents, they said there is
no evidence that any student was coerced. >> many school districts and municipalities around the country continue to operate on this endorsement i deal. there are some cases in our law. school districts continue to make this mistake over and over again. it's an excellent reason to be as emphatic as possible in overruling, endorsement cases or if it requires formally overruling the endorsement test, i think that would be helpful. what continues to happen is there is reverse discrimination based on the record by school districts were not people, it's just they are doing it out of misguided endorsement concerns. the time to come has -- is clear
as possible. >> if you would go back to the coercion part of your answer to justice gorsuch. if i understood you correctly, you said real coercion is where the government doesn't. i want to understand, are you suggesting that a teacher in the classroom can say you can't charge me with coercion because he separates himself from the school district? >> that's where i think the garcetti line comes in. if it's government speech, no matter what they say to distance themselves, the teacher and the coach can still be a source of coercion. >> even though he says this is not the school district and
everybody knows that. there must be countless times when a coach in the post game talk or a teacher in math class, where people would believe them if they said i'm doing this as just me, not because the school district does it but for me, this is super important to me, this prayer and i hope you will join me. that seems to be coercive of 16-year-olds regardless if they know it's him and not the school district. he's the one who will give me an a or not. >> if you say this happens in the middle of class, i might leave you but if you take a familiar example, it's ash wednesday and a teacher goes to morning massing comes in with a big lack mark on his or her forehead, is that coercive? >> because nobody's asking the student to participate. >> but it's a very popular
teacher and they will have that teacher in the afternoons class and they might be able to get their own black-market and then they will be favored students. >> i think we can draw lines like that. we can 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 i understand there are all these supreme court cases against me so what we will do is have a break, five minutes of a break so we can all regroup and i will be praying during that time. >> obviously, there will be room in a jurisprudence for pretext going both ways. i also think there ought to be room for understanding that in this area, given the current state of this court's
jurisprudence, there is room for mistakes on both sides. i think it would be profoundly mistaken to say another coach could engage in this exact same religious exercise but because he engaged in this previous exercise and candidly cooperated with the district, we will say there is some sort of taint prior practice and he cannot engage in the religious exercise. >> justice kavanaugh? >> i will pick up on justice kagan and justice gorsuch's questions. the districts of the sole reason it was doing this was to avoid establishment clause problems? >> correct. >> the lemon endorsement test is not been applied by this court in several decades? i don't think there is such a test in her case law anymore.
correct? >> sure, but it's a stubborn fruit i don't think pushing a pencil through it has done the trick is to you really have to slice it in half. >> we have not applied it in cases. i take your point but i think justice kagan's point is there is a whole separate body of cases involving schools. like the santa fe case. that's the most relevant one here i think. the question here i think is what's different about this from an establishment clause perspective then the prayer over the loudspeaker which i think was a key fact in santa fe, how would we distinguish santa fe from this case? >> santa fe is readily distinguishable. it is an endorsement case so at
least to that extent, it's no longer law. loudspeaker is a huge part of this but if you remember the santa fe case, one of the issues is the school district argue this is a facial challenge to her policy and under the policy, it's possible for the student to give a non-religious solemnization so this can't possibly be invalid on its face. the court's response was to focus on the state action, the governments own involvement in a majoritarian election for the opportunity to give the prayer over the loudspeaker. 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 analog or whatsoever but to give a concrete example, if the coach goes to the loudspeaker and after the game, there is a much stronger argument that that's government speech. >> also to pick up on justice
kagan's point, then you have a captive audience that seems to be at the heart of other cases. the question is what's different here? you can answer that anyway you want. >> the loudspeaker ties this audience back to the government speech and ties it together. when mohammed salaad has a religious experience after he goal, it's not he who brought them there so it comes back to government speech in that respect. when the coach takes this 15 second prayer at the end of the game with no loudspeaker and barely audible, it's radically different from the use of the loudspeaker and is more similar to all of those athletes are thinking what happens when a
player gets injured on the field. it's common practice at all levels of the game that you take a knee. the coach takes a knee and the players take a knee. many of them presumably are praying for the players health. some of them have their own religious traditions but none of that is coercion, not in the real sense and none of it violates the establishment clause. >> what about the player who thinks if i don't participate in this, i will start next week or the player things if i do participate, i will start next week and the player wants to start? >> that's where i think making a clear message that that's inappropriate and this does not matter for those purposes, that's how you deal with those problems. >> how do you ferret that out? every player is trying to get on the good side of the coach. every parent is worried about
the coach exercising favoritism in terms of the starting lineup and playing time and recommendations for colleges, etc. >> if the school district has that concern and i'm not saying it not legitimate but it's clear that school policy that nothing turns on that but that concern although legitimate is not specific to religion. >> i agree with that. >> if the coach is wearing a packers jersey, there is an incentive for the players to follow on and it's not just coaches. for most kids, the teacher is going to be the avenue toward collegiate success, not the coach. it's both but that's why if instead you say the way to deal with that that if any coach or teacher does that, they should be punished and you make clear that that's not supposed to happen and cannot happen in this school. the problem is you will not know
and the coach will probably not say anything. you're never going to know that that leads to the suspicions but parents i think. i'm playing out of the other side is saying. they might say the reason that johnny is starting and you are not his he was part of the prayer circle. i don't think you can get around that, that's a real thing out there. that's going to be a real thing in situations like this. i don't know how to deal with that, frankly. >> if it's a real thing, there are two alternatives. you can work really hard to dispel it or you can say that's a possibility and is not limited to coaches or religion so we will effectively overrule tinker and say if you are a teacher, you cannot do anything sick vision leap expressive --
sufficiently expressive that students can mimic it in a way that curries favor. >> it's not just religious speech that would trigger issues. your argument that this is private speech and therefore garcetti, how do you handle the hypothetical of the coach wants to unfurl a political banner at the 50 yard line? or wants to put on a political message on the 50 yard line after the game? [inaudible] >> if the reason the school district is acting is because of disruptive or just because is political speech and wants to take action, that's pickering, they can do that. that's an easy case and i think flags are fun but they are easy cases. there is no reason to unfurl a flight other than to communicate with your audience and that's not true of this kind of prayer.
it may important for somebody to do it where the activity took place and there is an audience there but it's nothing inherent in the event for it to be shown off to the audience. >> thank you. >> let me pick up on that stuff this is about the free exercise and free-speech claim. who his he communicating to god? >> i think he is communicating to god stuff >> so that would trigger the first amendment protection? >> the free speech clause. >> even if he is not communicating to an audience, is completely silent, that's protected speech even if he's not trying to communicate to anyone around him. >> that's expressive conduct or speech. >> second question is to the coercion. let's imagine the coach kennedy
runs a young life and has many players and other kids in the school but many of his players really admire him and they come to his home for the young life meeting and many of the concerns that justice kavanaugh has identified, the players come because they think they will get more playing time if they show up i take it your position would be that that is entirely private speech and even if there is a coercive component to it, that the school can have nothing to say? mr. clement: i think of the school has a concern about that kind of activity, afterschool activity, holy off the school grounds, i mean, i think if it had a concern with that it could deal with it through some kind of neutral policy. it would say we are concerned about that. we are not going to let teachers have any kind of outside events at their house or something. then i think that would be a neutral policy.
somebody could try to test whether that is consistent with smith whether smith is good law, but those are different issues. i think another way the school can do with these kind of issues if it is not pretextual and designed to root out religion, is to have neutral rules that say, ok, we get it. there were some concerns. i think the one thing that is clear from this court's cases is you cannot have a prophylactic rule that says there might be some problems. so the way we are going to solve the problem is for bid a lot of protected speech. ashcroft against free speech coalition says that is verboten. justice barrett: i guess i'm gathering you would treat that young life example as a subject of analysis in adjusting kagan's examples of a disclaimer before class. maybe it is before the bell, like justice sotomayor asked you before. private speech, nobody could
mistake it for government speech, and any coercion would be, you know, maybe it is there, maybe it is not, just as in the young life group? mr. clement: i think that is right. if there is a lingering concern, the option on the table is a neutral rule that avoids those situations. again, as you articulated, if there is a concern and is not a concern that is specific to religion. you could have the same thing for any afterschool activity if the ideas people are going to curry favor with the teacher anticipate in that. of course you can have that already, right? you think you are going to get a better math great if you go out for the math team. at a certain point the responsibilities of the school is to teach important lesson that private speech is protected, even for teachers and coaches. justice barrett: thank you. >> thank you, counsel.
mr. katsky? >> may please the court, no one doubts public school employees can have quiet prayers by themselves at work, even if students can see. if that were the issue there were not be a case here, because the district allows that. that was not good enough for mr. kennedy. he insisted on audible prayers at the 50 yard line, with students. he announced in the press that those prayers are how he helps these kids better people. and after the district close to 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' interest in controlling its events, protecting the rights of
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 divided the coaching staff, sparked vitriol against school officials, and led to the field being stormed and students getting knocked down. when mr. kennedy repeatedly ignored efforts to accommodate personal prayers, what was the district to do? if a math teacher knelt and said audible prayers in class just before the bell, the school district could act. coaches have far more power and influence, especially at the time and place of those traditional post game speeches. mr. kennedy we need this court to whittle garcetti to nothing and toss pickering aside, and disregard student's 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. >> council, if the coach, instead of taking a knee for prayer took a knee during a national anthem because of moral opposition to racism, how would your school district respond? would that be government speech? mr. katskee: well, justice thomas, if, for instance, the coach goes to the center of the field in front of everyone during the national anthem, absolutely that is government speech. but on mr. kennedy's theory it is private speech -- justice thomas: how is that government speech? would you explain that to me? mr. katskee: in garcetti this part made clear the test for government speech is a functional test, not a formalistic one, to determine whether the speeches pursuant to one's job.
that has to entail looking at the manor, the time, and the place of the speech and how reasonable observers would see it, whether they would view that as speech as a government employee. so in the hypothetical that you just gave, that is the sort of thing given that moment during the national anthem, in the center of the field and making this public act and public statement, that would be regular ball. justice thomas: but what if the school district, as it did here, objected to the conduct for took place? how could that be government speech? normally when i think of government speech the government has a message, and someone is communicating that message. how would it be government speech if, as it has happened in this case, the government objected beforehand? mr. katskee: a couple of responses, your honor. the first is that what the government speech test gets that
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 is being communicated. and under mr. kennedy's test, not only would so many things qualify as private just because the job description doesn't say, if he got to the center of the field during the national anthem you are allowed or not allowed to make political speeches. that becomes private and it gets even worse for this reason. on mr. kennedy's theory if the motivation for that act of protest against police misconduct is political, then it is subject to pickering balancing. and yet if the motivation is religious, it gets strict
scrutiny. that makes no skip -- no sense and is inconsistent with this court's consistent holdings that political and religious speech have to be treated the same way. political speech gets strict scrutiny in other contexts, but government employees are different. there has to be a bouncing, and to have a different rule for religious speech would be impermissible viewpoint discrimination. >> here this morning your opening argument in your brief 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. what if all that were off the table? it is simply the coach going out to midfield, taking a knee, and that is it? no dispute about who is
responsible for cutting off the negotiations, take out the media stuff. with the school have any problem in that case? or would the case be just the same? mr. katskee: well, your honor, that is certainly a closer question. if there is no history, no practice, new expectations of the students. given if the prayer is still going on at the time and in the place of those critical post game speeches and at that moment, we think that his government speech. if i'm wrong about that, then there has to be pickering balancing, and then questioning his, taking really seriously mr. kennedy's in that case if it is free speech and private exercise rights, but also bearing in mind how this affects the religious freedom rights of the students. justice roberts: i'm sorry, go ahead. mr. katskee: excuse me, i was going to say, and all of the
other concerns like the question whether this can be disruptive of the event. could because a stampede or not? all of those things have to figure in, and that is why both garcetti and pickering are practical tests. they are functional tests that deal with the realities that school administrators and governmental entities have to face everyday in dealing with potentially-complicated problems. 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? mr. katskee: -- both risk -- both with respect to garcetti and the establishment clause? mr. katskee: if the coaches kneeling on the sideline or if the coach is going to that place in the center of the field when the students are heading back to
the locker room or the bus, like he did for a month after the district's september 17 letter, then that would not be reasonably perceived as government speech. and the district would not have substantial interests in regulating it. but the situation here directly implicates the power and authority of the coach, 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 you have those aspirations. and so coaches, even when coaches say there is an optional workout on monday, tuesday, and wednesday afternoons after school, you can bet that to the students that is not really optional, and especially not if the coach is going to the media and said, having daily workouts,
really optional workouts is how i make these kids better players or better people. >> council, i appreciate a lot of what you just said, but we have to analyze our establishment clause precedents first, because i think the district court said the district's reason to do this was to avoid an establishment clause violation, right? mr. katskee: that is what the district court said. that was incorrect, your honor. >> let me take it on the establishment clause point. the endorsement test, and think that is a test anymore. we have and apply that in two decades, and so i don't think that helps on the establishment clause site. on the school's cases, santa fe ultimately is the case. and mr. clement was saying this goes beyond santa fe in terms of a standing establishment clause, because it is not over the public address system, it is not the same facts, situation we had in santa fe, where it was to
everyone in the crowd, by the school, over the public address system. so we should not think he is saying, should not extend santa fe, which itself extended lee v. weissman. can you respond to that? mr. 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 doesn't mean that a coach has no free speech or free exercise rights, but it does mean that the pressure to conform at that moment of those critical post game speeches and with a seven year -- excuse me? wouldn't those cases -- justice kavanaugh: wouldn't those cases suggest there's a difference between a coach in the locker room, in the huddle, but when players are dispersing after the
game -- i guess i'm not sure how it is that much different from establishment clause perspective than justice barrett's hypothetical about the coach you has -- who is part of a group who has meetings off campus. i guess i'm not sure from establishment clause purposes how those two things are distinct. mr. katskee: in the first instance this was not after the students were dispersing. that was when mr. kennedy had prayers from september 17 through his letter on october 14th. what that demand letter said is, i have had a practice that did not substantially change for seven years and i want to continue that. he spent a page and a half in the joint appendix in that letter saying students have to be able to join too. take the last game as an example. we don't even have to go to homecoming where the crowd
stormed the field, but mr. kennedy there went out justice kavanaugh: justice kavanaugh: -- sorry to interrupt. this was a huddle up team, which is a common coach phrase. that was not this, right? mr. katskee: no, but does the coach have to say that for the students to miss that? there is something else going on too, which gets back to government speech and the religion clause concerns. what mr. kennedy did at that october 26 game is, he ahead of time gave special permission to two legislators and some people to come onto the field to have a prayer circle with him on the 50 yard line. it was fully visible to students. and as part of the arrangement was to turn around and have one of those state legislators address the team, which he did. >> mr. kats -- katskee let me
have your view on the following set of facts. a football game in this, the coach is not required at that point to go to the locker room with the 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 praise. he doesn't invite anyone 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 -- can he be fired for engaging in those activities? mr. katskee: well, your honor, it is necessary to start with the question of whether that is government speech, and it would
seem, given the facts you gave justice alito, not to be government speech. so then the question is, the question comes under pickering bouncing. if the team is not there, so that there is not a fear of coercion, and if it does not cause material disruptions, and the district doesn't have a -- >> those are the only facts, ok? so under those circumstances they would not be a violation of the first amendment. now you are talking about this in relation to the free speech clause. but the petitioner also has free exercise clause claims. 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 yield down -- neil down to protest the russian invasion of ukraine, or make a statement about climate change, or about racial justice, or about any other issue of interest to you, but you can't
pray, would that be the free exercise clause? mr. katskee: the school district doesn't have a substantial interest in discriminating. but it is also the case that the school district gets -- so the question has to be whether he is -- has to start with whether he is acting as a government official or not. i take it from the example that you gave, justice alito, that the players are not around, there is not a concern about pressure. it is the case that if the players were, for instance -- the school district has ample authority, whether it is religious coercion or political coercion, or social coercion to adopt any particular view, the school district -- >> the answer is they cannot discriminate based on their religious or secular motivation of what the coach did? mr. katskee: cracked, but what is interesting about that is mr.
kennedy's test acquires different treatment for religious and secular speech. as a practical matter doesn't make any sense. justice alito: this is important. you have talked about also the facts, and it is complicated. coach kennedy did a lot of things over a period of time. the school district set a lot of things over a period of time. it is an employment discrimination case. and what we do in an employment discrimination case where the employee says, i was unlawfully fired? we look at the employee'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 also some other things. he could have been fired for all
of that all sorts of other things. we look at the reason given. what was the reason that you gave here? mr. katskee: although the reason in the last letter was about religion concerns, it is not the case that the court looks only at the given reason. in fact it is quite the opposite. this court made clear in st. mary's versus hicks that it is necessary to look at the whole record to determine whether an employment action was improper. and that goes for both the employer and the ploy e. here 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. we list five places in the joint appendix for that as examples.
pages 50 two page 51. >> i notice complicated, but seriously it is your argument that if the employer gives an unlawful reason that the employee can never -- nevertheless win? because the employer could have given all sorts of other lawful reasons for the action. mr. katskee: we don't think this was an unlawful reason under the establishment clause. we think it was required. think at the very least the district had the discretion to take those concerns into account . but there are lots of reasons that an employment action letter might not include all of the reasons that the district act did, for example here the district over and over again in every one of its letters said, come talk to us. we would like to work this out. tell us what you want. and the district might well -- an employer might think, i don't want to pylon because we really want to find a solution to this problem, and a solution to the
problem of religious coercion would also solve all the other issues. and by the way, that gets to the fact the district did specifically name coercion concerns, which gets to questions justice corsets and ghost just -- and justice kavanaugh -- >> are you shying away from the simple reason of establishment? i think this is true, but tell me if it is not. a teacher is given a notice from 5:00 to 9:00, until 9:00 -- until 9:15 every morning we want a period where students can discuss anything. and they can discuss religion too. there is nothing wrong with discussing religion or its history. but one thing you cannot do is actually pray. and the teacher praise.
purposely, deliberately. there's nothing wrong with prayer, it might be a great thing. it is. but the district does not want prayer between 9:00 and 9:15 is all. though every elder -- every other thing can be discussed. does that violate the constitution under the law, and why not? mr. katskee: absolutely not. justice breyer: it does not violate anything? going out? mr. katskee: for a of reasons. i will start with the establishment clause, but i want to work backwards to the -- justice breyer: i mean, in other words you have no reason not to turn to the establishment clause. in the cases -- and the cases you would cite would be what? mr. katskee: starting with engel. and appears against society of sisters as well, because the court made clear and consistently since then that
parents have the right to determine the religious upbringing of their children, and government officials cannot interpose themselves and interfere with that. justice breyer: one of your points is, we don't have to reach all of these complicated issues either. you 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 9:00 and 9:15 in the morning, that there is an establishment because -- clause problem and that is a sufficient reason for ringing discipline if that is not followed. now if we don't agree with that you are going to go to 10 other things. mr. katskee: yes, and justice breyer, this was in the particular context of this long history of his conduct and the expectation and pressure on the students. justice breyer: but it is not audible to all the other
players, so you are relying on being visible here, correct? because they are not all there, they don't have to be there, it is not a team event in terms of a huddle, locker room situation. you are relying on it being visible, then the question is, how far does that go? a coach does a sign of the cross before the game? is that -- could the school fire the coach for the sign of the cross before the game? mr. katskee: if the coaches doing it while not making himself the center of attention at the center of the field. justice breyer: the coaches standing, the team is out there for, let's say a basketball game or let's stick with football. the teams are out there in the coach is with everyone and publicly makes the sign of the cross. can the school fire the coach for that? mr. katskee: if the coach is addressing the team and that is the way he starts it, the
district can act. but districts don't have an interest in firing people willy-nilly. >> addressing the team loads the hypothetical. he is visible to everyone. in the crowd and to the players, standing a little bit on the field from the sideline, as coaches do, and very visibly does the sign of the cross. mr. katskee: the reason that both garcetti and pickering involve flexibility is to take account of the line-drawing here. and that one doesn't seem so hard if it is the coach not making himself the center of attention, not addressing the team. then it would be permissible, and it is protected if it is not government speech. justice kavanaugh: i don't know how we could write an opinion that would draw a line on being -- based on not making yourself the center of attention as the head coach of a game. mr. katskee: 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 looking at the matter, -- the manner, the place, the time of speech, and how a reasonable observer would perceive it. and, yes, that is not a categorical absolute, but for good reason. because the real practical problems on the ground that school districts and other government employers have to deal with do not lend themselves to absolutes, and they certainly don't lend themselves to absolutes where the very same conduct by an employee can be either subject to government speech or subject to balancing if it is political, but is swept categorically private and protected by strict scrutiny if
it is religious. >> why would pickering applied to justice kavanaugh's crossing himself example? let's imagine it is a free exercise claim? let's just pause and. in justice kavanaugh's example the coach visibly crosses himself, but no one would mistake that for government speech, it is quite purely a private devotional practice of the coach. why would pickering apply? we've never applied pickering to just a straight up free exercise claim. mr. katskee: no, but the court has made clear that is the mode of analysis for all first amendment claims. it has done it not just with free speech clause, but also with the petition clause by way of example. and to draw a different line would yield bizarre, impossible results. let me give a couple of examples of what that mean. suppose that an assistant
district attorney objects to the da's request for the death penalty in a case, and so writes a letter to the editor complaining and calling the district attorney out for that. now, on mr. kennedy's test that would be a classic pickering example if it is a political view or a social view, it would be subject to strict scrutiny if the motivation for that same letter is religious. >> 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 waive a ukrainian flag. would you have fired him? mr. katskee: it is not a question of firing, and he was put on paid leave. >> would you have done to him what you did to him here? would you have treated the case differently? mr. katskee: that is something
that cannabis should be different -- discipline, because the school district doesn't want its event taken over for political -- justice alito: but where is the school district rule that says that? mr. katskee: the school district has to be able to manage its activities and events, and that is clear -- justice alito: what reason do you believe you would have treated that case the same way? mr. katskee: not only is there nothing to suggest it would not have, but it would be absurd to think that 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 cause or agenda. the school district has to be able to say -- justice alito: what is there in your explanation for the adverse action you took that would support doing whatever you did to mr. kennedy in that situation? mr. katskee: well, there was an entire course of conduct here.
the school district sent mr. kennedy a letter on september 17, saying, you can pray, including when it is 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, and he went to the press and said, this is how i make these kids better people. then came the game on the 16th. the idea of the school district something when a scene was created on the field is unimaginable. >> can a school district take adverse action against a coach or teacher because the coach or teacher, on purely private time, not on school premises, not one
the coach or teacher is discharging any official duties, is very, very visibly religious? poses -- posts all sorts of religious messages on youtube? maybe this coach is an ordained minister and preachers -- and preachers, and the school district says, this goes too far, this is not the kind of mentor we want for our students. can the district to do that? mr. katskee: usually know, but it is not an absolute, and that is why pickering is flexible. you may give an example for that would be the case. students don't -- students' views of what is official -- justice alito: this district thought this was a justification for what the school district did. kennedy is not a good mentor for the student. -- students. mr. katskee: what the ninth
circuit clarified is that to students whether the coaches acting as a coach does not turn on the niceties of government speech doctrine. suppose if the coach on his for that his personal facebook page says, in my 20 years as coach i have never had a student do well or make varsity who does not pray with the team before every game. that is a situation that is surely private, but also surely coercive. it raises establishment clause concerns. justice alito: that is different from my example. mr. katskee: pardon? justice alito: that is different from my example, because there is an express statement that, you better pray, and agree with my religious beliefs or you are not going to get a starting position. mr. katskee: what that shows is that there certainly can be private speech that puts
improper pressure on students to conform religiously, or otherwise, and that is why the test has to be practical and functional. there cannot be this categorical . on mr. kennedy's view, that is not just private, but there is also strict scrutiny. that would make an impossible standard for school districts to deal with these real problems. justice alito: i don't really understand your answers. a coach has all sorts of political signs on the front line -- lawn of the coach's house. can they fire him for that reason? mr. katskee: no, but no one would view that as government speech, number one, and no one would view that as a message being conveyed to students, something they might benefit from or are supposed to go along with. justice alito: no student could think that? no student could think that,
boy, if i don't say things in class, right things in my papers that agree with the coach or i say something that is contrary to what this teacher feels really strongly that is going to hurt me? no student could think that? mr. katskee: the question is not whether no student could think that, it is whether a reasonable observer should think it. it is an objective test. compare that situation with, for example, the teacher putting those signs up in the classroom. that shows that the school district could certainly be concerned about that sure on the students, that they feel like if they don't force the opinion up on the wall they might be penalized for it, and the district can make the decision that it is going to regulate that, which will require on the one hand if that is private recognizing the very serious first amendment interests of the
employee, but also recognizing the need to not have material disruptions in class, you to avoid coursing students to adopt -- coercing students to adopt a political or social, or interjecting the dissension in the school that may cause. >> justice thomas, anything further? justice thomas: just a minor question. initially i ask you about the coach taking a knee during the national anthem, and you said of course that could be regulated. i do have any examples where, in fact, that has been done? in your school district? mr. katskee: that situation has never arisen, justice thomas. and that gets to the attempt to call this religious discrimination because the
particular act from the school district had to do -- had to deal with had to involve -- happened to involve religious discretion. justice thomas: i'm interested in something we agree could be regulated and whether or not there has been disciplinary actions. mr. katskee: so far as i'm aware that situation hasn't presented itself. justice thomas: it hasn't presented itself or it hasn't been addressed? mr. katskee: no, hasn't presented itself, your honor. there are certainly situations in any school district or there are things that warrant discipline. but there was nothing so far as i am aware of and certainly nothing in the record to suggest anything like that ever happens here. >> justice breyer? justice alito? justice sotomayor? justice kagan? >> council, i want to make sure i understand the school policy. on joint appendix 28 it appears
that teachers are forbidden from either encouraging or discouraging private student prayer, is that right? mr. katskee: yes, justice. >> so the coach was forbidden from discouraging private student prayer? mr. katskee: absolutely. >> then suppose -- let me just ask you this. on the establishment clause, do you think the right question we are supposed to ask is whether the activity was coercive of students? you mentioned coercion any times. mr. katskee: both coercion and endorsement have mattered since engel. justice gorsuch: i understand. mr. katskee: the district expressing concerns about coercion. justice gorsuch: do you think both are relevant? let's say this court in a case saw evidence that the school district was focused solely on the endorsement test and not coercion. suppose the court thought that
lemon had been buried what then should we do if we thought coercion where the appropriate test but had not been applied by the school district the court below? mr. katskee: remand for the lower courts to decide the question, and here there would be plenty of basis to show the school district's contemporaneous concerns for coercion. that would not be a basis to decide for mr. kennedy. this was on summary judgment. then there would be fact questions, presumably for trial, about what the coercion was. justice gorsuch: why is that the school district so emphasized lemon? i understand your point it is in the record otherwise, it has 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 is an awful lot of records relying on lemon.
mr. katskee: the school district was following the precedents of this court, they continue to be precedents and have not changed, but, again, iry much had in mind september 17 letter. it specifically mentions that the talks needed to be secular to avoid alienation of any team member. that is talking about coercion. the school district referred to indirect coercion as well in the question and answer document, and in the earlier statement to the community at the time of the september 17 letter to mr. kennedy and the october 28 letter. justice gorsuch: the october 22 letter, for example, does speak about how a reasonable observer might perceive government endorsement of religion, even though it had disavowed his to kennedy's activities by that point. what do we do about that? mr. katskee: in the first instance, as i said earlier,
this court has made clear that in employment cases whenever looks -- one has to look at the whole -- justice gorsuch: i'm talking about the establishment clause, counsel. mr. katskee: yes, and the district had and expressed other establishment clause concerns, as well as all of its other concerns, and those were substantial. the coach is an amazingly powerful figure with immense coercive authority. justice gorsuch: i think we appreciate that, as all teachers do, and we are concerned about implicit coercion as well as explicit coercion, for lots of things. to get a good grade you may feel like you have to participate in afterschool activities or write an essay in a way 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 the school district misunderstood the establishment clause teachings of this court, what should we do?
mr. katskee: we still think that two things should -- that the case at that point should be remanded because of the contemporaneous evidence of coercion, and also all of the other reasons the district acted. justice gorsuch: if we think the other reasons are post hoc rationalizations that were not presented below, or at least the district court found the sole reason was this establishment clause reason, what do we do about that? mr. katskee: this is 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. it was plenty of record evidence of all of the other reasons the district acted, 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 on the 16th?
or having an organized prayer circle with state legislators who were addressing the kids on the 26th? these are the things that -- the superintendent's amicus brief describes all of the concerns that school administrators have to deal with in the school context. justice gorsuch: the district court that ruled in the district's favor was mistaken? mr. katskee: it was not mistaken, for this reason. the establishment clause concerns and the way that the district court found -- ruled in favor of the district was correct. if the court disagrees, then it is not 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 is not possible to ignore all of the record evidence. that is what would create questions requiring trial. justice gorsuch: thank you. >> is lemon in this case?
do we have to decide lemon? the reason i ask, honestly, is 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 their first, an effort to prevent the country from becoming more divisive, certainly an effort that remains valid. to prevent it from being more divisive, they are on the basis of religion. if that is reconsidered, you have read a lot on this. how many cases will we be calling into question? if that part of it is reconsidered? mr. katskee: that would seem to not only call into question -- i don't even know how many cases since lemon, but also the case --
justice breyer: i'm not talking about lemon, i'm talking about before and after on the theme of preventing division on the basis of religion. mr. katskee: yes, that would certainly apply to, i think, at least all of the school cases that the court has had, and i want to say i think that is particular 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 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 ascribed the meat of the district court to order people to stop trying to find out who the catholic and mormon families in the case --
that case, the plaintiffs, to figure out who they are because of the harassment risks. so, all of 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 the lower courts cases. >> it would be overruling them and not to apply and since we haven't applied in 20 or 30 years? we have been asked to many times and we haven't done it in 20 or 30 years. mr. katskee: it would not be overruling. >> we would be doing exactly what we have been doing, right? mr. katskee: yes, but here what then that would mean is the court should still be looking at coercion. justice gorsuch: at coercion, right. we agree on that. sorry. >> justice kavanaugh. justice kavanaugh: just a follow-up on that, my understanding of what you are saying here is that the establishment clause rationale
was based on two distinct concerns. one endorsement, the other coercion. is that accurate? mr. katskee: yes, although they are related. justice kavanaugh: all right, and on endorsement we have not used endorsement in van norton, american legion, in a long time, so let's put that to the site. 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 weissman, the case that extended engl to graduation prayer. soe that not happen there. on the coercion side there are different forms. there is actual, you are compelled to be, to say the prayer. that is not happening here. you are compelled to be present at an event where a prayer will be spoken. that is engle, that is santa fe. i think you are not saying that
here either. you are saying there is kind of an implicit peer pressure, subtle coercion, implicit coercion. if i'm wrong about that, tell me, but that seems a different concern than the lee v. weissman, santa fe concern, and seems to run into the line-drawn problems you and i were discussing. so, whatever you want to say. mr. katskee: the test the court used in engle was in direct coercion. the court said indirect coercion matters too. indirect coercion of students of minority faiths to conform to a religious practice is an establishment clause violation. that was not, if you don't join the prayer you are off the team, that was the sort of situation where students can reasonably understand and hear very much students and parents understood that you have to go along to get
along. that is what it means to play football. to determine otherwise, to say that is not coercion would require getting rid of cases all the way back to engle and schempp. justice kavanaugh: i'm going to stop either and challenge you on that. i don't see why the court cannot say -- and i'm not saying this is what we should do, just to put on a line-drawing. engle and santa fe remain in place, and santa fe applies to a locker room or huddle, but we are not going to extend santa fe to something beyond that, really, for the line-drawing. the sign of the cross example, we had a discussion about that, and there would be many other hypotheticals. you can have the center of attention be the line for establishment clause examples. mr. katskee: the line 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. otherwise it should not be necessary to decide conclusively an establishment clause question, though we think it is easy and clear under santa fe and engle and schempp and pierce against society of sisters as a free exercise case, because of the fact that under pickering the analysis takes very seriously the employee's free speech 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 of the necessary concerns about managing an event and everything else. on mr. kennedy's test, the court would ignore all of that. nobody's religious freedoms rights -- freedom rights account
except for the employees. that is an exceedingly particular result for a context that is a government employee who is hired and charged with teaching and educating students. justice kavanaugh: thank you. >> justice barrett? justice barrett: i want to clarify one thing about your argument related to that point. if we disagree with you that this was government speech, if we think this was private speech, we don't even get into the establishment clause, right? we are not asking these questions about coercion for purposes of discerning whether there was an establishment clause violation, we would be merely doing the pickering analysis, which group they would bring in things like let's assume some of those were postdoc rationalizations. we we need to get into that. mr. katskee: the place to start is certainly the right frame of analysis is pickering, but it is not -- it is not, and we think cannot be correct, that there is
no situation in which conduct that is deemed private under garcetti by a school official is not an establishment clause violation, like the example i gave to, i believe it was justice alito, the coach who posts on facebook. justice barrett: a paid action? mr. katskee: i'm saying it isn't, and yet it still poses an establishment clause problem of coercion. justice barrett: because it would be government speech? mr. katskee: no. justice barrett: but where is the state action? i see it is coercion, you can have coercion from all kinds of private sources. where is the state action there? mr. katskee: there should not need to be state action for an establishment clause violation, what would be where -- be rare. here, of course, there is a state action, not only because he is a public employee performing his duties in a place
in time where only he can and in a way students expect that that to be, it also the district conferred authority on him, which everyone knows. think the real point is not only does it not need to be, not necessarily have to be functioning as a government employee at the time of the speech for teresa establishment clause concerns, but it also raises all sorts of other concerns that under pickering the school district has to be able to address. justice barrett: i get your argument, i just didn't understand how there could be the establishment clause violation without a state action, but thank you for answering. >> thank you, counsel. rebuttal, mr. clement? mr. clement: thank you, mr. chief justice. first, in terms of the correct test, i don't think the correct test when the government discriminates on the basis of delivering -- basis of religion
is pickering. in the context of free speech we are used to saying, he spoke over there, he had alternative methods of communication, time, place, and manner. there is some flexibility on that. that doesn't happen with religion because it is a compelled, sincere belief. if you telling muslim if they could just reorient themselves, you are denying them their religious exercise. 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 place jurisprudence that is becoming clear and could be made clear in this case about discrimination against legend and the establishment clause and replace it with pickering. pouncing test doesn't provide guidance. the only thing worse than pickering would be a center of attention test. that doesn't capture the real world examples anyway. after hamed -- mohammed salah he is the intention of -- center
of attention. after tim tebow scores he is absolutely the center of attention engaging in a religious exercise. it is private and the government can't stop it. in terms of santa fe, we have discussed this a bunch, but my friend on the other sides says this is worse. but you cannot strip away the context of santa fe. if everything else were the same, sure the fact it is coach speech would be worse. it is not the same. that student was using the loudspeaker as the winner of an election to be the designated spokesperson for the school. this case it is the coach engaged in his private religious exercise. happens to pick that point at the center of the field. he is actually not the center of attention if you look at the videos in the record. because there is lots of other activity going on. but that is his religious exercise and it is protected. third, the record here -- i mean, people seem like they have seen everything, but the record
speaks on this case. there are three games that are relevant. that is what my friends described as the media circus, people coming onto the field. there was a letter sent in response to back game. it is joint appendix pages 90 to 95. it uses the phrase indoors and endorsing, and raises endorsement concerns eight times. it talks about safety concerns zero times. talks about coercion concerns zero times. that is the 16th. then by the 23rd, that is a game that is one of the two on which the actual discipline turns. that is 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. they have addressed that pretextual problem. and there is a prayer. no player joins him from either team on the 26th. yet the 23rd and 26 are the prayers were he is disciplined. he was not disciplined for
having a state legislator on the field. that is simply not what happened. again, the record speaks for itself not just contemporaneously. again, the school -- the letter is -- the score in the game is 8-0. then when they lawyer up and have their lawyers send a letter to the eoc at joint appendix 142, what concern did they express as their stated consideration? it is, again, endorsement. 8-0. eight mentions of endorsement. i will finish with this point. please do not remand for the application of the coercion test. there is no evidence of coercion contemporaneously. the school itself stressed no evidence of 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 17 activity that is no longer an issue. there is no evidence of coercion in this record. but worse still -- my client has already waited six years to get his job back. the parallel for this is a race case where both lower courts said the sole reason government acted was because of race. yet we think it is ok because there is this compelling interest. if this court took that case up and said there is nothing to the compelling interest, it would not send it back down to see if there was some other reason when the courts had already found the sole basis for the action was on the basis of race. here the record is clear. two courts that agree with much of what we said, said the sole basis for the government's reactions here were religion. that is not someth
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