first amendment right to take a knee on the field at the end of the game and say i silent prayer that last fifteen to thirty seconds i hate to interrupt you with your starting point but that's what you indicated field with games played because kennedy sincerely held religious beliefs compel this brief private religious expression and i want to go through some facts as i understand the from the record i want to have to read a little bit this me at least terms of my analysis of the case and like you tell me what portion of what i'm going to read if any is incorrect first of all on october fourteenth two thousand fifteen hiram sasser deputy chief counsel of the liberty institute and also for mr kennedy stated as following in the last part of his letter beginning on october sixteenth two thousand and fifteen coach kelly will continue his practice of saying a private post game prayer at the fifty yard line secondly mr kennedy let it be known to numerous people personally and on social and other media what he intended to do on october sixteen two thousand and fifteen promptly after the conclusion of the game on all of october sixteenth two thousand and fifteen coach kelly went to the fifty yard line but was surrounded by by my count looking at the photo attaches exhibit one of the defendants response the plaintiff's motion for a preliminary injunction surrounded by twenty one football players sixteen other adults four of whom were using video cameras to photograph the event he prayed audibly  a letter dated october twenty third two thousand and fifteen superintendent aaron lavelle organize that right superintendent of the school district gave mr kennedy the following admonition while on duty for the district as an assistant coach you may not engage in demonstrative religious activity readily observable to if not intended to be observed by students in the attending public you may not repeat your conduct of october sixteenth two thousand and fifteen for the reasons discussed in the letter given the severity and likelihood of liability faced by the district in the event of further violations of these activities any further violations will be grounds for discipline up to and including discharge from the district employment it is my hope that you will choose to honor these expectations and continue your positive word it would to be h s football program for the remainder of the season i'm almost done here and october twenty eighth superintendent lavelle  sent mr kennedy a letter in which he said in part rather than contact me or use any of the offered accommodations on october twenty third two thousand and fifteen while still on duty you need on the field and prayed immediately following the bars football game further on october twenty sixth two thousand and fifteen while still on duty as the head coach of the junior varsity you neal but on the field in trade immediately following that game while your players were still engaged in post game traditions you then rejoined your players for a post game talk your conduct on both occasions was in direct violation of the directive set forth in my october twenty third letter effective immediately pending further district review of your conduct you were placed on paid administrative leave from your position as an assistant coach with the rammer verisign high school football board apologize for that long recitation but i think for all of our purposes it's important to get what the facts are out so first of all is anything that i said inaccurate ok so given that fact is what happened on october sixteenth two thousand and fifteen what he means by his right to encroach pray quietly and alone no your honor it's not and i'm glad you brought up the october sixteenth picture i'd like to address it directly we think the way that the disc the school district has tried to characterize this particular picture is misleading the districts own statements made clear that coach kennedy was suspended for kneeling on the field and trained by himself that's on the record at one seventy nine one eighty two that's what your honor just so we bound by what the district concedes from your perspective no you are of course not this court conducts its own constitutional analysis however the school districts contemporaneous descriptions of the facts i think are electorate speaking specific so point number one would be your honor the only there briefing certainly argues that they had agreed to an accommodation which is that coach kennedy could engage in this prayer after the players had been dismissed from the locker room after the fans had gone home so basically when the stadium wasn't full of people anymore and now you're saying you're characterizing this as a silent prayer where he where he is alone but alone surrounded by fans in this thank god if i could clarify one point the district have never actually offered  accommodation for coach kennedy to prey on the field at a particular point in time the accommodations they offered were for him to go to the press box or the athletic building further away from his students and then return to the field but like i'm sorry forgive me for interrupting but wasn't there a time in the sequence where he was aware of the school districts concerns and so he was playing in a way you describe on the field after the fans had left the stadium and after the players left the locker room got it there was a brief period of time where coach skated the tried to leave the field and then come back hours later in order to pray he came to the conclusion that that was inconsistent with the religious commitment that he had made let me speak specifically  alone my understanding is that on the day that we're talking about that photo you just described that is playing along but he was surrounded by several hundred people so can you clarify that for me absolutely you are speaking specifically to october sixteenth and i'd like to october twenty third which is the letter that judge smith friend read from earlier the reason the photo of the super six tame again exists the one that's in the record the one the district relies on extraordinarily heavily here is that after that game coach kennedy was joined by the other team it's not alone the point is that and there are fans in the stands and that's part of your honor and the october sixteenth conduct is not the conduct for which coach kennedy was suspended after the october sixteenth  game on october twenty third in the record at one seventy nine and one eighty two coach kennedy knelt by himself silently and alone on the fifty yard line while his players were engaged elsewhere in other  postgame activities when he wasn't by himself though that's what we're having trouble with he was surrounded by several hundred people right no your honor not in direct proximity he waited to engage he understood the district's directives not to involve students in his religious expression and he complied by the school district's own admission he complied with those directives because coach can that he has no religious conviction that requires him to pray with students when he spoke to other people and social district is that part of the religious conviction or you simply saying i believe what i believe and i'm going to do it no not jollier i the only press city we would submit here associated with this case is the direct result of the school district attempt to ban his religious expression by himself since the fact that i have in the record the council stated that and the accommodation that did not allow kennedy the spotlight on the fifty yard line immediately following games would be unacceptable to him right out of that's not the conduct that we've got such a vindicate with a preliminary injunction and it's certainly not the conduct that's banned by the district courts rule below let's assume for a moment that the injunction is not part of this and we're just looking at this have an issue if coach kennedy's said i it doesn't matter what you say my religious convictions require me to pray on the fifty yard line immediately following the games i won't bring anybody else can stop me and within the constitutional limits is that is that a correct understanding of his position now you're on i don't think so because the the inquiry that is instructed at step two of the ng analysis if i could back up just for a moment to the antecedent question the question the critical question at step two is whether this speech at issue is within the ordinary scope of coach kennedy's job responsibilities that he lets them readily at the time he did it there's no dispute that coach kennedy was employed by the district at the time of the religious expression and was he observed by other people in the senate there's no dispute about that your honor kind of scratch you have one related question i think refers to him as coach kennedy repeatedly with the also a teacher on the faculty or just a coach on the field he was a coach your honor and part time coaching position thank you could any private citizen do what he wanted to do and not be an employee of the district of the record thank clear about that the answer probably turns on the specific time period at issue the district had a practice of opening a field previously for members of the community to come on to the field at some point they stop that practice that is now it was it not because the satanist group wanted to come on and do the same thing and they said i can't do that yes your honor but respectfully the satanists group have nothing to do with the conduct at issue here because this court has specifically instructed that public employees speech analysis does not turn on the forum not to be critical i get that but when you look at johnson and what happened there i guess what it really boils down to is how we construe the role of a coach just like the district judge did most all of us played sports we've had coaches does our analysis turn then on our view whether a coach is ever in quotes off duty when in this case he is in the school grounds around the players around the stadium and so on got to rethink the question is not whether he is on or off duty and we think that is exactly the error that the district court committed in the district court how that because coach kennedy was on the job when he knelt to pray that his speech was unprotected but whether he was on the job does not answer the question that is compiled by the supreme court's decision in lane which is whether his speech what was within the scope of his ordinary job responsibilities right in to that point i think i think you make a really interesting point right to teach camaraderie and teamwork and sportsmanship for example it's a really different path that he's wearing doesn't that cut in favor of the opposing counsel argument that everything not on the facts of this case what this court held dalia is that it is insufficient to rely on a broad court created job description that is a political to every member of our profession i don't mean to suggest it's just the job description but i'm talking about this speech in particular another words where he was still shepherding his team as they were still you know during the game and then off they go to the i think the correspondents indicates the district said until the tell the players go back to the locker room in their discharge from the locker room you're still being a coach right i think that was the district position do you want to respond to rethink the district court openly refuse to apply binding precedent the reason the district court doesn't conduct an analysis about the scope of coach kennedy's job responsibilities is because he said i just think that case doesn't apply so what the district court instead did is take his role as a coach and treat that as quote determinative of the issue here that's in the record of forty four and twenty four when i was actually here on the issue though of the circumstances don't we have to consider for example the coach kennedy in fact prayed with players for over thirty years in the locker room prayed with them out on the on the feel i frankly have some questions for the other side about that i was stunned that nobody said anything but the reality is that's what happened don't we take that into account in our analysis of what was happening here got right step four of the inquiry which go to tell you what the reso i understand you're absolutely right that the reasonable observer would know the full history but it would know the full history not the selective version that the school district has tried to put forward how do the full his tree help you on the phone history absolutely how obsessed because it demonstrates the coach kennedy complied with the school district's directives not to involve students in his religious expression the reason molds are for well i also understand that there is no evidence that any students were ever coerced or actively encouraged to participate i didn't see any evidence that students were actively course to or i agree with that but your first sentence was that your first statement was that there's no evidence that he prayed with the students and i thought that there was evidence that in earlier in the locker room that he did audibly play with the student if i said that your honor i misspoke what i intended to say was that coach kennedy complied with the district's directive not to pray with the students this is when he got to the recent events in these office after correspondence but he has gone on for several years to  this point is that right that's exactly right ron and this story is a is essentially a story of a lay person who was learning about the law in pieces so the district title can not to involve the students and he complies and that is fully consistent with his personal religious conviction which is simply to kneel silently for fifteen seconds on the field after the game matter what the religious conviction is you're going to have no doubt sincerely held beliefs about him pray if he were muslim for example and he went out there and got a prayer rug and faced mecca and prayed would it make any difference no your honor we think it would and we think the rule that the district court articulated here would equally perhaps it anyone from wearing religious garb or engaging in thank you let me know if it doesn't work i can hear it now this case asks whether a federal court should order a local school district to surrender control of it football stadium and its post game traditions by allowing an employee to include in the post game ceremonies against the wishes of the district a display of unmistakably religious conduct at the center of the football stadium well clothed in the school insignia council before you get too much rather have to ask this i used to represent school districts in part when i was practicing in private law  and i when i read that coach kennedy met with his players and prayed with them in the locker room and was out in the field doing what you're saying he's doing now and nobody said anything to the contrary stunned i'm frankly stunned and what was said was somebody from another district made a comment about it what role if any in our analysis of whether what coach kennedy did was improper should be influenced by the fact that the district in effect did nothing for the same conduct or more for over eight years i don't know if it has any role in your analysis as to whether the district had done something previously or not i think there's no dispute the district did not was not aware of it whether it was i find it hard to believe in the in the superintendent of the football games i believe so well then why didn't he sees that coach  was out on the field well i think what happened after the games in those days was that the players would gather and sometimes players from the opposing team and coach kenny would give basically an inspirational speech that segues into prayer and i think he admitted that it more or less amounted to prayer but from an outside observer it just looked like an inspirational speech with a coach held to helmets up and i think that's what the district response was i think what it shows is that the district certainly was not looking for a problem here it wasn't out searching for some way to squelch anyone's religious and i respect i respect that but i am troubled by the fact that what i understand from the record to be an official from another school district observed the very same thing that your school district superintendent and others observed and thought it was a problem how do we deal with that there's no constitutional stoppel as far as i know but if there were that would create a problem for you and certainly if there was sort of a stop it would create a problem but i think the record here is that when the district found out about it it acted so if we if we find it incredible that they didn't know about it what do we do with that i don't think i don't know that there's anything that you do with it i don't think you can create a doctrine of a stop all based on that belief but there's certainly no evidence to support  other than the fact that it seems unlikely that the district knew about this and actively did not care i mean when it came up the district responded there's never been anything in all the controversy that grew up about this nobody ever stepped forward and said well you know we talked about this five years ago and you didn't do anything about it that that's never come up and believe me this is generated a ton of heat if that information was out there somebody would stepped forward and said and called the district on and it hasn't happened now i read it and i represent school districts sometimes on a day to day fashion but more often in litigation coun and the same i had the same response maybe twenty years ago somebody might not have noticed it but it is now a days and i hate to interrupt you les as selling out coach has a special role with respect to students and the sense  coach is a mentor and so this want to be accepted is there anything he could say that would be outside the scope of his duties as a coach that therefore would be protected well i think there's things he could say but it's all context sensitive and i think this is why there's such a long discussion about that in the johnson whether he's in a official role at the time or not i think all those factors you could you could create hypotheticals where the coach for instance if he's doing some sort of basically chores for the district  of striping the field or something he's not acting as a coach and some students happened to come by i think that's a much different situation than when he's on the field in his coaching year in one of these few occasions ten occasions a year where there's a post game celebration that they he came back to the football field what's crucial to the context of your argument i think it shows that the district had no opposition to him using the field at a different time and place but the time and place that he chose was so highly public and so much in the vicinity of the students that it did create the risk of an establishment if i might i think opposing counsel raises a really good argument at the same hypothetical i've been kicking around with my locker for the last few weeks and that is a public employee whose duty as a teacher is to monitor the lunch room if that teacher sits down to eat her own lunch but bowed her head to give thanks for her meal surrounded by students is that going to cross the line first i don't believe so i think we would need more facts to see what exactly was going on there interrupting but your time is ticking it sounds like one hypothetical is a more private moment because the teacher's doing this it's a prayer the hypothetical not an audible prayer but it's but it's a prayer and it's in front of the students but there isn't a request that the students join i think the prayer in front of the issue has been litigated in other cases and the holdings have been that even that creates a subtle s particular scenario crossed the line i think this crossed obliterated line in many many different respects if there had been no history if a new coach showed up next week at thi s coach left off so there's no history and there's no audible prayer but the coach did everything else the same that what i think would mean wearing school colors and playing on the fifty yard line and playing while the fans are still around but not the players that cross the line i think absolutely absolutely and can you tell me why because the business of the coach the reason he's hired is to communicate ideas to the players that is of shorthand for everything as he does model behavior give inspirational speeches teach football techniques he's he's really just like a teacher but i believe a coach is a teacher plus ok so in this hypothetical i have the players gone the players have left the field but the fans haven't that change your answer and other words i'm trying to figure out how important is to you that th team is headed towards the locker room the one coach just lag behind from that let's say on the fifty yard line but but in front of the other students and then out and the fans what happened then well i think there's two pieces of that one is the establishment clause question and i think there still is a danger of an establishment clause violation there because he nonetheless is a coach acting in his kicks in his gear occupying the public space to the exclusion of all other private speakers i think that's an establishment clause violation but i believe that what you're trying to get at is whether or not he's speaking as a public employee or a private citizen and can i get my card to a part of that i ask opposing counsel about whether a private citizen could go on the field and do what coach kennedy bit about what the satanist group at zama to tell me what the school district has done particularly to exclude and prevent in quotes private citizens from going on the field to do what coach kennedy did well there were several things and it took some preparation because the district initially wasn't really prepared to deal with a crowd control situation like that what the district did was basically just send out notices to its normal means security that had signs created and posted around the field saying that the public was not allowed on the field after games and it put this direction in writing to it told mr kennedy that the field was definitely not  coach kennedy's counsel wrote saying he's going to go to the fifty yard line going to praise silently he did so the school district said you know you can't do that you're going to be disciplined during that time period after october sixteen did the robo calls you sent notices put some in the papers on the like that that said hey private citizens can't go on the field right that might some of that might have started before but i believe the bulk of it the great bulk of it was afterwards and so after that point when the coach went on the field and prayed let me get the dates right here  are here i think it was the twenty third and it doesn't want you know that's right the twenty six one hundred twenty third and twenty six that's right so by that point the public could clearly been stopped from going on coach kennedy could have only done what he did by being an twenty three years it's certainly extraordinary fact in that case but it didn't implicate the constitutional analysis and anyway so from your perspective the fact that coach kennedy had followed substantially the same practice except for no warnings in the locker room and out on the field for eight years doesn't matter no and and couldn't one of the point looking for prospective relief here we're talking we're talking about something that is an ongoing violation of the establishment clause and certainly no matter how long it's been going on the court shouldn't be putting in place further into the future and it has to judge christians question about the  hypothetical about the lunchroom i would point out that in roberts roberts against matt again in the tenth circuit that court found that a in that case a teacher was silently reading a bible during class time instructional time and the court ruled that the school district could prevent that from occurring because you have the teacher is model is a model role model for the students right but what about the teacher there's a hypothetical where it really is a private moment in other words if but for the history people might not even recognize that the coach was playing for after all we're talking about fifteen to thirty seconds so if there hadn't been the history and go back to that the lunchroom if you would first a teacher on duty surrounded by establishment clause and and it's harder because unlike in this case you don't have that history as your honor pointed out and so then the question really is is is what this teacher is doing communicating a message that the  so so two things in the term in terms of them personally i think it wouldn't and that's because you're dealing with someone who is an ambiguously a representative of the school district and i don't and if we're speaking about this case as as as was discussed already there wasn't an open forum or at least there isn't now an open forum on the football field for anyone to come on so for the school district to allow one person to come on whether they disclaim it or not is still an endorsement by the school district of whatever conduct is ongoing there because they're giving him access to the field right because i mean even if it weren't imagined in this context that the disclaimer so going to tell you just a disclaimer it's not even the coach at all is lots packed in there yes that's absolutely correct it's the reasonable observer would have to know that it is a prayer it is a religious act and so i think i think it's quite clear in this case that everyone's aware of that for your purposes the second prong of ang is further buttressed by the fact that coach kennedy is in fact a coach which is if you were all a teacher plus and because of the nature of being a coach he has a special duties cate into young people's values and so on and the district can't be seen from your perspective as including it religious component is that correct that's correct and they actually brings me back to the second point to judge christians hypothetical earlier which is that whether or not this is the lunchroom hypothetical whether or not that violates the establishment clause definitively certainly the teacher is on duty at that moment and so the school district could ask the teacher not to do it even if it doesn't necessarily about the seven clause and that's again under the second prong of because the teacher is it really your position that any time during the eight hour nine hours that a teacher is at school that no matter how private a prayer is that that's going to be an establishment problem at all so two things first is when you say no matter how private if it's truly private if there are students around that's a totally different nothing wrong with the teacher taking it  right thing and right to truly private private area meaning alone nobody is there when i say alone i mean nobody's there not a problem i am absolutely and that's and that's what the school district offered in this case of course as well and just the second point as a pro clarification that that's really just a matter of that's not even a matter of establishment clause law that's just a question of government employees speech so we have a couple of minutes left but i just want to point out that this is really going to cause problems  occurring especially once you have students joining in that that's one reason the pilot is that was one clause but it also violate the establishment clause because of that message of endorsement that's being communicated on behalf of the school district we have to find an establishment clause violation or just have to find the school was motivated try to avoid one that the latter your honor court said fairly clearly and johnson that and on honest interest in ensuring a tragedy was enough it's really just under the fourth a balancing analysis and school districts have to be able to operate the schools and they can't really function if they have to tolerate everything that if they don't tolerate i violation and ban everything that if they don't then it is a violation of this court has called it navigating skill and career this and that's nothing that the school districts are required to do and so the reason that this issue is so important to the amaechi is because it's a public schools must be tolerant and welcoming places for students of all faiths the list a number of examples in our brief and just mickey's concurrence in the board decision show that when a public school abdicated its responsibility to ensure religious neutrality you can really have ugly rifts erupting in the school community when members of religious minorities complain about or even simply separate themselves from a religious practice that's going on in the school and so what the burlington school district did here was not just within their right but it was it was their duty not just on the constitution but their duty to their students to the school to the entire community of the school district opportunity here to teach students about religious tolerance and to teach students about the constitution do you know of any case where a school district has made a public statement whether it's an election on a football field that the school doesn't endorse any contacts sort of disclaimer but it's not cases where the cases like this one where you have as i said the coach has this privileged position to come on to the field it's not open to the public when you have is in cases like hills you have a there's a limited public forum that's being opened up so in that case it was about third party organizations have flyers that they were distributing in the schools and the court said the school district in disclaim that they can say you know these fliers aren't from us they don't represent us and different organizations can then put the flyers in the schools and similarly in prince which dealt with student clubs student student groups and there's an issue with a christian student group in the course that again you have a limited public forum for student groups and it's not it's not there's no teacher involvement it's not school sponsored it's entirely student led student initiated and so that's another place where it's appropriate for a disclaimer when it's when it's the employee of the school district in a privileged position a disclaimer coach kennedy could do on the job that would be protected by the first amendment he answered if i understood correctly which basically no if there is conduct that he engages in that may be incidentally observed by a student the district edition of that may be proscribed without constitutional protection that is a radical rule your honor it is a radical expansion or rather an undermining approach them in the protection for public employees the court on bank in dol you have made clear that employers cannot restrict employee rights by creating effectively bryde job description and i think back to what the district has tried to do here by characterizing coach kennedy as a teacher plus irony here your honor that they are trying to use his stature in the community to justify a rule that stripped him of all constitutional protection and the robot they've articulated would equally prohibit a teacher from would be coach going to be kneeling on the field for fifteen seconds the reasonable observer would it most conclude if you can gauge any personal moment of silence i understand a big no reasonable observer would view that that act as a state endorsement of religion and you know that your honor you can simply look at what the district itself has said here the district concedes in its papers below that it is without sufficient knowledge to admit or deny whether coach kennedy prayed at all stop at step two on the question of insubordination though your honor it's very important to note that the district has abandoned any argument they've never in the course of this litigation made any arguments that sound dereliction of his duty was the justification for their actions here they've leaned only on the establishment clause one final point your honor about be in response to judge christians question about the disclaimer going to this court has said expressively in the hills case that the desirable approach is not for students to throw up their hands it is far better to teach students about the first amendment about the difference between private and public action about why we tolerate divergent views the school's proper response is to educate the audience rather than squelch the speaker boehner we respectfully ask you to reverse thank you on behalf of the court we want to thank all of counsel i know some of you're probably acting pro bono we particularly appreciate that and we also if you will celebrate the rule of law this is how we resolve serious disputes in a court of law where people can come and make their arguments with swords without guns or with knives and we will resolve this issue based of on the law as we understand it we respect all of you we respect the fact that this process is incredibly important for our country incredibly important for the parties and we commend the lawyers for the excellent job they have done in their arguments in their briefing and the