football game had concluded to say a brief silent personal prayer as the players were singing the fight song elsewhere and the crowd was dispersed said no coach kennedy cannot engage in demonstrative religious activity if he's at government sanction against let me just ask you this i i have heard of course and previous personal record but the reality is it is not that a coach can and he approached another coach in two thousand and fifteen asking that he and his players join him in prayer  a minute and then it went on brit hume are so let's be truthful about this the coach the coach didn't have a moment of silent prayer he engaged in here that i think your question your lies and that's the distinction between the conduct that took place between before september th two thousand and fifteen which was when the district gave him a directive that he was not to engage in demonstrative religious activity with students or at the same time students were engaging the other to mustard effectively and i think there's no dispute that after the church going to receive that directive he never again so much involved students that his prayer now i want to come now to the game that took place after after he was told after the game by one of the assistant coaches that they're going to fire he was upset about that he posted that and that went viral and now off did the september investigation that led up to the district's directive on september then the district said no and the line that the district drew was firm and said no demonstrative religious activity readily observable to students in the public while he's on the job and you can look at you are one hundred district's october rd two thousand and fifteen letter and the district recognize the conduct issue and i would direct you to you dr lavelle who is the sole decision maker the district superintendent recognizes that this is that you are sixty seven as well as you are thirty nine for his contemporaneous e mails to members of the school board or the state superintendent in dr lavelle's own words the issue has shifted from leaving we keep hearing out about a brief personal private prayer but they did and i i think this case would change dramatically if i saw facts that told me there was a brief personal private prayer going on so for me this is really pivotal and after i pre state that i have a timeline to i agree with you the timeline is critical to have the seven september th letter but then in october he's he's making media appearances again to tell share the word about what he was doing the seattle times published the  story before they act over th game and then i believe it's pretty clear he continued to pray october th with other people with students and we have the photo showing them all huddled around him with and with media october th october rd and again on anticipating one of my questions about october rd which i appreciate nevertheless i still struggle with this being a brief private personal prayer with the media was present in force and he had talked with the media to tell him this was going to happen at that point it just seems to me very last game when coach kennedy was suspended by the district there was also over twenty four students there is video evidence you look at examples of record two hundred and seventy one when we submitted the videos to the court and you can see coach kennedy meals you have to watch a couple times actually figure out who he is because there's nobody who who comes down to show support he is just taking a quick knee after the handshake is concluded and the distance that that was still using the district recognize that yes i don't know how we take the october i'm not i don't mean to go on a tangent but i don't know how we take the october rd episode out of context of the history of all that's happened here especially because the media was ramped up and players and legislators and members of the public were involved in the whole saga the whole story so ramped up who invited them after that  classic establishment clause concern for that just not at all your honor i want to make two points in response to your question i think point number one it is your question i think blends together are two distinct types of conduct there was the religious conduct with students or at the same time students are here and other types on and we think if anything the distinction between his precepts number seventeen conduct where he's visible doing this with students and the post september conduct where he's bizzle doing this completely separate and apart from students you talk about in the district court talked about while he did this prayer and then he rejoined his team and i think that a reasonable observer watching that and knowing the history would recognize what he's doing something separate personally and then when he rejoins the team that's when he's engaged in expression the official expression that is much closer to within the scope of johnson and thought my understanding please truly correct me if i'm wrong the timeline is so important i believe their parents to come came forward after all this was said and done and said that their kids had helped coerced the pressured investment which is different then took coach kenny kennedy that evidence is not clear what that referring to and more likely than not that evidence is referring to the practice that occurred again i or to that is the director where why do we say more likely than not why do we reach that conclusion place well that just i mean the district declaration they submitted those decorations summary judgment after discovery is closed that those declarations do not say whether that related to coach going to his personal practice of prayer that occur after september rd or whether it was district response again set a clear line and this is the policy of the district said no demonstrative religious activity if you readily observable to students that cannot be the case consistent with the supreme court's direction and that's teachers don't that teachers do not share their st member rights at the schoolhouse gate teachers and coaches for that matter to are frequently visible to members of the public or to other students and simply cannot be the case record that students ever prayed on their own but i don't think that that actually matters when it comes to the analysis here as well because when we're talking about the coersion analysis under the and santa fe the fact that students did not pray separately from october rd video coach kennedy's desire to engage in a personal private prayer the fact that students are separate from him that they're not engaging in any other religious activity that only confirms that the district was wrong that there is anything individuals who come in from the stands to show support for him and throwing around him in the last like five seconds the students are separate look at the video super student athletes are separate they're singing the fight song you can hear it happening offscreen and then they rejoin coach kennedy for his traditional post game pep talk i think that separation if anything goes to show to a reasonable observer that coach going to be is engaged in something separate personal and private and let me say one thing that really reasonable observer think in light of the history you are stressing you know an excerpt from the nd letter and i think viewed in isolation you'd have a a much stronger argument that or if you  similarly if we were just looking at the the october rd game you'd have a much stronger argument because your argument is that that's whips you know sweeps too broadly but what's happening here right is part of a of a of a lot a longer story and the district was engaging in a process trying to find accommodation for him and my understand here's my question my understanding is well there's twenty one is i don't know any basis that would allow us a certain leaning in the case while they were allow us to look at those snapshots out of at that looks at the contents and we're not it's not my argument that you have to divorce this from but i do want to make two points in response to what you just i think what the district seems to be saying is that because for eight years coach  after the game concluded with the district or kicked in the same action under the policy that the announced they would that coach white coach going to would still be at work that coach like coach going to be visible to the students or public to play with that you do not play with students as the superintendent labelle recognized if you look at his correspondence he's not trying to bring with students and more he's trying to engage in a personal private prayer following the district's direct approach to his notice you kno problem if the district wanted to enforce its rules about not letting people onto the field no problem that doesn't interfere at all with coach kennedy's sincere religious beliefs and so my nd question is about and thank why we should be allowed to view it in isolation my follow up question it as i think that statement was made in the process of trying to reach an accommodation and as i read that correspondence back and forth the question is am i correct that coach kennedy insisted that it had to be at center failed under the lights and before the crowd left but i think a couple let me let me parcel under the lights go into but i think yes or no it wasn't that his response you know his response was preying on the fuel immediately after the now whether people were present or not that's irrelevant to him that is irrelevant to his religion well well my understanding is that the at for some period of time earlier that the district allowed him to pray on the field where the game and taken place after his duties were done after the stand had had emptied and in the process at this accommodation i think the and please correct me if i'm wrong my understanding is that the choice he gave the district was that the only combination that was going to be acceptable was on the field under the lights while the france were still there can i got that wrong please i do want to clarify i think you got both of portion of it right everybody leaves coach kennedy is driving home and he felt in his words he felt like he had been ungrateful by delaying the expression of gratitude so that game and that game over he drove back and went ahead and set a prayer afterwards but he was clear that that the leg was incompatible with the sincere which is belief so he didn't do it multiple times and i understand i understand ok and so then we get to become fast forward if you're looking at the nd letter and taking strong issue with the soundbite we've talked about today i'm pushing back about whether we can get that out of context but be that as it may in the process of the district and coach kennedy trying to reach accommodation did he give them a different choice other what what had been said before on well i think this court previously judged that had written that coach kennedy directed his speech to students and numbers and i think that this covers refuted that completely one  go out really paying attention to the forest what if i can go through the chronology a little bit what happened in this situation was mr kennedy started praying on his own some years ago and students started to join him a little bit at a time and eventually they had evolved into a situation where over the years the entire team was gathering around him when he prayed you know ultimately it became a sort of a group prayer when you know other members of other teams came in mr kennedy would hold up a helmet from each team recite a prayer standing in the middle of the circle eventually it came to the attention of the principal one and win over a school official from the other school told them about  infinitely elastic and we have to be concerned about how job descriptions are described i guess but they are defined so is it the is it your position that there is no time where he could step aside the principles that are being applied here i don't know if i can define exactly where it goes our limits are but i would say that what we're dealing with in this case falls far short of the alderman's i don't think there's any question about this particular behavior and i would like to give you you know really right on in your head answer on exactly where the line would be drawn between what he can say or when it's personal where it's not i supreme court has as postulated that as as one would to make a quick phone call home or something walking back to lock around or what have you anyway a temporal opportunity for a quiet moment even though the students are around the other i think might own prayer of thanks and people weren't even aware of it because it involved him simply you know closing his eyes and and and saying his prayer silently what do you think about that and during the coast course of these job days with that would that and i think there are probably moments in the course of a coach's job where he's we're being completely separate again i don't think we come close to a moment  you've got a contractor working in your house and jobs gone bad and you have an angry crushing conversation on the phone in the students around you thinking you're setting an example for the students you think you know that you have to be careful  n being a role model still applies at that point and he agreed he said yes everything we do in front of them so it's an example so well sure it does but but it does that mean that there wouldn't be an opportunity for a coach to give thanks  for what if i'm going out to that part of the deal as a banquet at the end of the season or something like that or d some kind of a celebration where he's giving thanks briefly privately because nobody has been injured for example i think it seems to me that roof we're talking about applying this rule that everything the coach throws in the view of the students when he's on duty and in official capacity is speeches in the course of his job yes i think there's no limits to that and you might be approaching prize in the cafeteria i don't want to take it too far afield but would you really object to that teacher battling her head to give thanks for her i don't think she's acting in her capacity when she's barred to eat her own meal and and and and influencer is a community here at this particular stage of this project you were event the there are only a few of these football games in a year there are only some players never play much some players you know it's only her senior year but there's maybe ten or eleven of these events coaches behavior and those events is much much more under the microscope these are the pinnacle of man that high school know you can call him anything you want me he's the coach and a critical time doing a demonstration in the center of the field and the district can't just disown that by saying on never mind it's not it's not there it's not then weeks later the issue arose again with this letter from his lawyers the position taken by mr kennedy was a civically in that the district had to rescind its previous directives and he was saying that he was going to pray with students if they joined him and he never changed that position and the end of his lawyers made it clear that that was the only acceptable position for him and that's why the prior events inform our understanding of what was going on as the district trying to move forward and and reach some accommodation with with mr kennedy and in response to your question jim smith the district it was a one sided discussion there was never a response other than the terms of our letter are the only acceptable terms of their admission if you will  the superintendent's declaration and i can find it cited for him where he's saying that the responses to the district only came through announcements by the lawyers to the press that that the statements made in interviews or whatever vive the lawyers were all that the district knew about mr kennedy's position there was no direct response and there was no was no change of his position his friend let's put it that way and that there was certainly other than according to the superintendent comments by counsel for mr shelley to the press correct and in his deposition mr kennedy confirmed that if students had joined he would still have prayed with him if they if students had joined him in the field so that the district the district concerns that he was sticking b wanted to resume his prior practice his prior practice started out at him praying alone and then he would pray with whatever students came in wanting to pray with him there was no statement no no sense at all from mr kennedy that he was going to change that and that's the situation then evolved into a group prayer out there with a bunch of students and this is a distressed concern that once some students started praying with the coach who has the power over who plays and who doesn't play other students who feel coerced to join in the prayer to not be left behind and there was no change no statement of changing from th previous evolution that had occurred when he started on him praying alone and then others joined him and this was pointed out in the district court opinion that this was just going to be as he said i'm going to go back to what i was for the district those letters could have been five times as long as they were and they were not of covered everything there was a consideration for the district and i do not exaggerate i believe the judges have enough experience in this world to know the kind of passions their religion and can ignite i'm not exaggerating the concerns that the district had with the evolving situation and its need to do something to protect not just the rights of the students but the students themselves and we have submitted the declaration of the head coach who was approached by people on the sidelines vilely cursing him to his face who was and he spoke to another coach on his way to the field was concerned about being shot from the stands and ultimately quit his job after eleven years he resigned because he didn't want to be part of back and he said in his that he was concerned for the safety of his players to see if you're the band members this if you're the cheerleaders none of that's all laid out in the letters and i said were they there they could have written a legal brief and not covered everything here but the the fact that the district was playing facing a complex solution and doing its best on the fly to handle a situation where the coach insisted on continuing saying he was going to continue his prior practice and refusing to talk to the district at all about what he was about accommodation of or what he was doing the the district i think you can you can put your nose too deep into each line by line of what's in those letters the big picture here is that the district was confronted with a situation if you look at this picture and you are seven thousand four hundred and seventy nine the last picture of the last  the district was faced with a situation where regardless of intention this is what the crowd saw and that conveys a message even without the context of everything it conveys a message strictly in the context of the time the coach and this activity on the field are conveying a message to the stands the fans the sprint theatres the paying spectators from other communities the cheerleaders and grand members and that is where the districts are in a legitimate concern about it's not some isolated private personal event it's taking place it is a sta candidate not subjectively intend to be pressuring the students or inviting them it sounds to me that what you're saying is that this his subjective intent doesn't matter because they look at the what a reasonable preserver would understand but i don't want to put words in your mouth i want to make sure i'm following you are very precisely ron or the concern of the district is look at this picture what do you see not what his intentions are what are the consequences of his and may it please the court there are hard cases that challenge courts to figure out where precisely to draw difficult lines but this just isn't one discovery confirmed what the panel determine last time around the school district had an employee in a position of tremendous authority and influence who was asserting an absolute right to use his public position to express his religious beliefs it did everything it could to accommodate him while upholding its duty to protect the students against religious coercion students who are as young as thirteen and fourteen years old so this case isn't about the heavy hand of government suppressing religion it's about a responsible school district doing what it should to respect everyone's religious freedom coaches and students alike and the facts matter and they are as the panel has has recognized i want to highlight just a couple of them now in the before you do that because we are really familiar with the facts with respect to the supreme court at least for the justices seem to indicate that this is a tougher line to draw do you want to talk about that because i guarantee you we need to engage in that feedback yes your honor and i think that that and i think that that comes down to the facts when it comes down to a number of a number of critical things for instance judge smith brought up the october fourteen letter demand letter from kennedy to the to the school district it's yard two hundred and fifty eight dollars kennedy demanded that he be allowed to continue his practice of autobytel prayers those were his words and actually that practice was years of prayer and religious speeches to both teams on the field so that's the context in which the district had to understand kennedy's demands and balance them against the rights of the students and their families we also have the evidence well the other thing is is is the accommodation efforts kennedy himself testified that the superintendent was sincere and working very hard to accommodate him that's yar three hundred and sixty seven the district offered him a private location to pray before and after the games are one hundred he didn't want that the court has already talked about the he could pray on the field after the event was completed he did that whether it was one sort of few times and then decided it wasn't good enough the superintendent invited him to meet so they could work out other solutions are one hundred and ninety and he wouldn't meet the question is sort of what more could the district have have done there's all there is as far as justice alito is questions about silent devotional acts look in the st instance silent devotional acts can still coerce student participation especially when they're performative acts like being on the fifty yard line now in yelling and clasping your hands in front of the cameras and everything else and when you've gone to the media and announce what you're going to do and when big crowds are attracted like at the october th game and they join you but really the court doesn't even need to engage with any of that because kennedy's again kennedy's october th letter acknowledged that this wasn't silent prayer that wasn't what he was actually asking to do when he made his demand so so so the court doesn't need to worry about that and it speaks to what justice alito was concerned about judge christian you also brought up a question about the job duties earlier and i wanted to say something about that because it least in his brief what kennedy argues is that is something like this praying on the fifty yard line isn't a listed job duty and the school didn't want him to do it so that makes it personal and private sense it's true that her job duty can't be overly expansive but it also can't be that an employee can can do that anything an employee wants to do that the school doesn't want the employee to do is by definition personal and private and if you know what it is and if you know what it means to be a coach on the fifty yard line after the game you know that this isn't one of those situations most are judged myth you brought up a question about look you me and i wanted to speak to that  strict scrutiny apply as under look you me if i'm going to read it the object of the governmental action is to restrict practices because of their religious motivation now that didn't happen here the district acted to protect the religious freedom of all the students by equally regulating all the conduct by teachers and coaches that might put pressure on students with respect to religion on these view so it doesn't that mean council council you're skipping over that pretty quickly you think they want the district wasn't concerned about the religious nature of the speed of the condom yes you are but but that's but that's not the that's not the touchstone for this reason kennedy is for you is something like  policy that teachers should respect all students religious beliefs impermissibly singles out religion because it mentions it that's not what look you me is about it's not what the legal standard is the subject is religion absolutely and that's what and  pointing to but it isn't disfavoring religion nonreligious teachers can't act in ways that would discourage students from practicing their faith either it's religious neutrality it's not animists and that's why the standard is fortenberry rational basis review and more than that it's it's johnson schools have to be entitled to control their own speech and manage their employees to him sure that the school remains religiously neutral and that's and judge smith said earlier comment quick question probed that these were christian prayers so when we think about neutrality whether these are neutral do we know that the ababil press were specifically christian in nature  i don't know that we know the specifics of what he said in in those prayers except that we do know that the prayers in the speeches he is good historically given were religious and christian that's in the record but we also know that there media among other things is he said everybody on the team knows where i stand on matters of faith that c r for fifty two dollars and and fowling kneeling in class from your hands that alone whatever whatever might be said is distinctly christian we talk about that a little bit in our meet this brief in it and in the one we filed last time around as well that's not how people of other faiths pray that is going to be clear to the what the district did wasn't just permissible we think it's required because it's how the constitution protects religious freedom for everyone we don't let public employees do what they want whenever they want not because we disrespect their beliefs not because we  smith appreciate that let me make three points i think on point number one i want to point the court back to what the district actually told coach kennedy and i heard the district say that we're doing cherry picking or  anything like that if you actually look at each of the three pieces of correspondence that were offered by the district on october rd on october th a letter that precipitated his suspension of that one is that you are what is your response to that did he try to reach an accommodation with the brick and if so where is that in the right sure so we sent a letter the district responded offering that you accommodations having a great elsewhere question he said that seeking to exercise their free exercise rights to develop an accommodation and so to the extent there is a narrow tailoring issue here that's a problem that lies with the district policy and again i'll direct what should they have done council i think there was strict scrutiny that that wouldn't it but that would have posed a problem maybe the district will say no that's still a problem because there are still members of the public and students who can see him engage in that activity even if students are there and fundamentally that's the policy that was being forced  kennedy and which prevented him from continuing to serve as a coach and i think the district was consistent and clear that it was the nature of that he was engaged in to monitor religious activity on the job while visible shows up in all the correspondence consistent message it's not referencing a spectacle it's not referencing the fact that he appeared in the media the your wife took its action it thought that in superintendent lavelle's words this small private prayer silent at the fifty yard line