Football coach wins religious speech claim at Supreme Court

In sustaining a football coach's right to publicly pray at the 50-yard line after the high school football game, the Supreme Court has expanded the reach of the Free Exercise Clause, rejected a longstanding precedent guiding the Establishment Clause, and employed language that might make it easier for public employees to win their free speech cases.

The case is Kennedy v. Bremerton School District, issued on June 27. The facts may appear to be simple, but the majority and dissenters spent much more time on the evidence than your average single-employee wrongful discharge case. As the majority sees it, after previously praying with students and even opposing players following the games, he began praying on the field alone after the school district told him to keep the students out of it, as the district did not want to risk an Establishment Clause violation. He was fired after he prayed alone post-game at the 50-yard line, still on duty. "The District disciplined him only for his decision to persist in praying quietly without his players after three games in October 2015." (The dissent says the case law requires the court to consider plaintiff's entire history of praying on the field, including when he prayed with students).

The 6-justice majority notes the tension between the Free Exercise Clause (protecting religious freedom) and the Establishment Clause (ensuring the public does not associate prayer with a governmental institution), but it says the clauses have "complimentary purposes," "not warring ones where one Clause if always sure to prevail over the others." This is new language from the Court, which is trying to ease the tension between the clauses. While the school district worried the public might think the district was endorsing the coach's prayer, drawing from the Supreme Court's 1971 ruling, Lemon v. Kurtzman, the Court now says Lemon (much maligned over the years by the conservative Justices) is no longer the operative test and that the new framework reads like this:

In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by “reference to historical practices and understandings.”  “[T]he line” that courts and governments “must draw between the permissible and the impermissible” has to “accor[d] with history and faithfully reflec[t ] the understanding of the Founding Fathers.” An analysis focused on original meaning and history, this Court has stressed, has long represented the rule rather than some “exception” within the “Court’s Establishment Clause jurisprudence.”

The conservative majority has been framing many constitutional standards these days in the context of original intent and what the constitutional framers had in mind in 1787, when the Constitution was drafted. Under this analysis, since there no evidence that plaintiff coerced students to pray with him, and no students joined in the prayer after the school told plaintiff to leave the students out of it, and the district permitted secular speech at the games, plaintiff wins the case.

We have some free speech language here. Under the Supreme Court's ruling in Garcetti v. Ceballos (2006), a public employee engages in protected speech when he speaks as a citizen, not as a government employee pursuant to his job duties. That language has scaled back many speech claims over the years, as courts have broadly interpreted Garcetti to include much work-related speech as unprotected. The Court this time around emphasizes that plaintiff's prayer did not owe its existence to his responsibilities as a public employee, stating:

It seems clear to us that Mr. Kennedy has demonstrated that his speech was private speech, not government speech. When Mr. Kennedy uttered the three prayers that resulted in his suspension, he was not engaged in speech “ordinarily within the scope” of his duties as a coach. He did not speak pursuant to government policy. He was not seeking to convey a government-created message. He was not instructing players, discussing strategy, encouraging better on-field performance, or engaged in any other speech the District paid him to produce as a coach. Simply put: Mr. Kennedy’s prayers did not “ow[e their] existence” to Mr. Kennedy’s responsibilities as a public employee.

We find it unlikely that Mr. Kennedy was fulfilling a responsibility imposed by his employment by praying during a period in which the District has acknowledged that its coaching staff was free to engage in all manner of private speech. That Mr. Kennedy offered his prayers when students were engaged in other activities like singing the school fight song further suggests that those prayers were not delivered as an address to the team, but instead in his capacity as a private citizen. Nor is it dispositive that Mr. Kennedy’s prayers took place “within the office” environment—here, on the field of play.  Instead, what matters is whether Mr. Kennedy offered his prayers while acting within the scope of his duties as a coach. And taken together, both the substance of Mr. Kennedy’s speech and the circumstances surrounding it point to the conclusion that he did not.

I wonder how this reasoning affects cases from the Court of Appeals that have scaled back public employee speech rights. My guess is that it will not based on the unique facts of this case and the religious connection, which rarely applies in the public employee context.

Supreme Court strikes down NY's concealed-carry gun control law

The Supreme Court yesterday struck down a New York law that requires citizens to prove a "special need" in order to carry a handgun in public. The ruling expands the scope of the Second Amendment and devises a new legal standard for resolving constitutional challenges to gun regulations.

The case is New York State Rifle & Piston Assn. v. Bruen, issued on June 23. The law in New York going back decades is that you have to prove that "proper cause exists" to "have and carry" a weapon outside the home. The understanding was that a general need to protect yourself from street crime is not "proper cause," and that you need a more particularized reason to carry a weapon in public.

Prior to 2008, the Second Amendment was not interpreted to confer an individual right; it was understood to only protect militias. In the Heller ruling that year, the Court narrowly ruled for the first time that the Second Amendment does provide an individual right. Since that time, the courts have come up with legal standards to apply Heller in the context of actual cases. In the Second Circuit, where this case originated, the Court created a two-part test, first asking whether the challenged activity  regulates Second Amendment activity, and if so, asking "how close the law comes to the core of the Second Amendment right and the severity of the law's burden on that right." This balancing test weighed competing interests: the rights of gun owners and the social interest in regulating guns. The Second Circuit held in upholding this law that the core Second Amendment right is limited to self-defense in the home. That is the case that reached the Supreme Court.

The Supreme Court, in a 6-3 vote, rejects the Second Circuit's test for a simpler framework:

When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation. Only then may a court conclude that the individual's conduct falls outside the Second Amendment's "unqualified command."

So the new equation does not have a balancing test, which often applies in constitutional cases involving other amendments, including free speech, equal protection, due process, and search and seizures. This test is more absolute than other legal standards that the Court has devised in resolving constitutional disputes. 

In justifying this new standard, Justice Thomas writes that the Court has adopted this approach in other constitutional contexts, including the First Amendment, which places the burden on the government justify speech restrictions and, "in some cases  . . . asks whether the expressive conduct falls outside the category of protected speech," usually requiring some historical evidence. I will say that constitutional litigation is more complex than that. Most constitutional tests and frameworks involve multipart factors, including a balancing test that weighs the individual right against the governmental interest, and many speech regulations are actually upheld as constitutional. (The dissenting Justices agree with me on this). What is important here is that the Constitution does not provide legal standards for interpreting it. For me, it is always interesting when the Court comes up with a new framework to assist in deciding cases. Six Justices have settled upon this test for Second Amendment cases.

The Court proceeds to strike down the New York law requiring a limited "probable cause" requirement to carry a gun in public. It determines after extensive historical review that the country has not traditionally held gun owners to such a restricting carry requirement. In other words, the majority says, New York has not met its burden to "identify an American tradition justifying the State's proper-cause requirement." This ruling allows "law-abiding citizens with ordinary self-defense needs [to] exercise[] their right to keep and bear arms." My guess is that, under the new test, many other gun regulations will also be struck down.

The three liberals dissent. If you want the latest statistics about gun violence in America, as well as the many ways that guns have impacted daily life in America, take a look at Justice Breyer's dissent, noting among other things that 227 reported mass shootings have taken place since the start of 2022, more than one per day, and that we have nearly 400 million guns in the U.S., more than one per person. Approaching this issue under a different methodology, he concludes:

In my view, when courts interpret the Second Amendment, it is constitutionally proper, indeed often necessary, for them to consider the serious dangers and consequences of gun violence that lead States to regulate firearms. The Second Circuit has done so and has held that New York’s law does not violate the Second Amendment. 

 

No speech retaliation claim for school employee who asked about dangerous student

It's always been the rule that public employees cannot suffer retaliation for speaking out on matters of public concern. But that rule was modified in 2006, when the Supreme Court issued the Garcetti ruling, which said the employee must speak as a citizen to have protection; workers who speak pursuant to their job duties are not protected. Ever since, the volume of such cases has dwindled as plaintiffs and their lawyers know these cases are vulnerable since the best workplace speech usually arises from the employee's job duties, i.e., the comptroller who exposes embezzlement. I have thus noticed that fewer and fewer employee speech cases are being decided by the Court of Appeals. This is such a case, but the plaintiff loses.

The case is Henderson v. Greenville Central School District, a summary order issued on June 22. The plaintiff loses not because she did not speak as a citizen but because her speech was not on a matter of public concern: it addressed her private grievance, something the public would not generally care about.

Plaintiff was an aide/monitor who spoke up about a potentially dangerous student at the high school. On its face, that would constitute public concern speech, as anyone would be concerned about this. But that was not free speech but a private grievance because, in context, plaintiff was concerned about the dangerous student's relationship to her son. She did not want this student near her kids. This may be important speech, but it is not speech on a matter of public concern, as her primary motive in speaking was to protect her children, not to inform the public at large about the dangerous student. 

But there is also a larger problem with her speech, the Court of Appeals (Newman, Cabranes and Bianco) states:

The problem is plaintiff lacked firsthand knowledge about the dangerous kid, including his first name. Rather, plaintiff said, she "sought only to 'gather information'" and "she felt compelled to inquire a second time because 'as a parent, [she] wanted to get some advice from somebody that [she] . . . kn[e]w.' Her search for personal comfort—'to get to the bottom of this . . . situation'—may be 'understandable,' but it does not suggest that her fact-gathering inquiries should be 'elevated . . . to a matter of public concern.'”

This is a summary order, which means it lacks full precedential value, but the holding in this case is actually unique. The reasoning above represents an angle on public concern speech that I have not seen before. But the Court of Appeals believes the facts are not so unique that the case deserves a full opinion, as the facts still fall within the public concern framework.

Without early qualified immunity, religious freedom case against federal prison will proceed

The Court of Appeals holds that two practicing Muslims may proceed with their lawsuit against a federal correctional facility for disallowing them from praying in accordance with the requirements of their religion. The Court throws in some language about how qualified immunity is often inappropriate at the motion to dismiss stage.

The case is Sabir v. Williams, issued on June 17. Plaintiffs argue that they have to pray five times a day. If you review Second Circuit religious freedom cases, you've seen that allegation before. The federal prison system certainly knows about that requirement. But it told plaintiffs they could not pray in the prison auditorium and could only do so in the prison chapel. But plaintiffs argue that the chapel is frequently unavailable. To avoid discipline, plaintiffs refrained from their religious rituals. Hence this lawsuit, brought under the First Amendment and the Religious Freedom Restoration Act.

The state moved to dismiss the case pre-discovery, claiming they are protected by qualified immunity, which says you can't sue government defendants if the law was not clearly-established, as defined by Second Circuit and Supreme Court authority. The Court of Appeals (Sack, Walker and Carney) notes that it said in 1993 that "it is well established that prisoners have a constitutional right to participate in congregate religious services." That language dooms the qualified immunity argument. Moreover, plaintiff satisfied their pleading burden in claiming the prison's rules substantially burden their religious exercise, as they had to choose between honoring their religious beliefs or being sent to solitary confinement. (The Court notes that the minimum-security prison gives inmates much autonomy and they can walk around and partake in fitness classes, card games, a weight room and a music room, so solitary confinement is going to be a real bummer).

For defendants to win this case, they have to show the prayer rules are the least restrictive means of furthering a compelling state interest. That's the Religious Freedom Restoration Act for you, enacted in 1993 after the Supreme Court scaled back religious freedom rights under the First Amendment. Since the complaint does not concede the government can make out that defense, the Court cannot say with any certainty that the prison had to restrict plaintiffs' prayer rights. Maybe discovery will shed light on that issue, but not pre-discovery when all we have is the complaint. 

As for qualified immunity, the Court reminds us that this defense is not really suitable for Rule 12 motion practice. Yes, the government can win this immunity this early if it is clear there is no clearly-established right, but that is the exception. "Such a defense faces a formidable hurdle ... and is usually not successful," the Court says. On the facts as alleged by plaintiffs, immunity cannot attach, and it's off to discovery we go.

Controlled postal delivery results in qualified immunity on false arrest claim arising from drug package.

This case involves a controlled mail delivery that led to the plaintiff's arrest for drug possession. The police knew that a package containing drugs from India was on its way to a White Plains apartment. With drug enforcement and postal agents waiting on the sidelines, law enforcement arrested the guy who accepted the package. The charges against plaintiff were eventually dismissed, and the federal court allowed his false arrest case to proceed to trial. But the Court of Appeals finds the arresting officer has qualified immunity and the case is dismissed.

The case is DuBois v. Cunningham, a summary order issued on June 17. The guy who came to the door, Williams, when the Post Office came to deliver the package had a bad ankle and could not go downstairs to get it. Then DuBois offered to help get the package, and he signed his name "George Andrews." The package was addressed to Onan Andrews. DuBois was arrested once he signed the delivery slip. But Williams accepted responsibility for the package, and the charges against DuBois were dropped.

Can DuBois sue for false arrest? The district court said Yes because there was a factual dispute whether plaintiff had identified himself as Onan Andrews or took possession of the package. That analysis does not satisfy the Court of Appeals (Lohier, Sullivan and Lee), which reminds us about "arguable probable cause," which allows the police to win qualified immunity when a reasonable officer mistakenly thinks the suspect committed a crime. 

Cunningham is immune from suit because the postal inspector told him that DuBois took possession of the drug package. The fact that DuBois denies that he took possession of the package does not matter under the arguable probable cause analysis. What matters is that Cunningham was told that DuBois did so. Since one police officer is allowed to rely on information from a fellow officer, and there is nothing in the record to suggest that Cunningham should not have relied on the postal inspector, Cunningham gets qualified immunity.

Racial discrimination claim is revived on appeal

This case involves an allegation of racial discrimination by two white state workers who claim they were denied a position because the state wanted to promote a Black employee instead. The Court of Appeals finds the plaintiffs have stated a claim that allows them to proceed to discovery.

The case is Florence v. Seggos, a summary order issued on June 7. Plaintiffs were passed over for the position of Director of Law Enforcement (DLE) for the Department of Environmental Conservation. One plaintiff earned the highest civil service test score. The other ranked second. The interim position was given to Rivers, a Black man who had failed the test. 

What happened next gives rise to this case. The department petitioned the state to reclassify the position so that applicants who did not pass the test could be considered for the position also. According to the decision, "One of the Department’s professed reasons for seeking the change was that it could attract a more diverse pool of applicants if a test were no longer required. During this period  of  time,  Rivers  
allegedly  confirmed  that  someone  on  the  staff  of  then-Governor Andrew Cuomo 'was advocating for [him] from an affirmative action standpoint.'” The state agreed to drop the test requirement and Rivers got the position.

The district court disallowed this claim from proceeding, but the Court of Appeals (Chin, Sullivan and Bianco) reverses, and the case returns to the docket. The Court reasons:

Plaintiffs, who were majors, had superior rank to Rivers, who was a captain. They also allege that they were assigned to units with greater responsibilities and that they registered the highest scores on a test designed to measure aptitude – a test that Rivers failed. As for the Department’s purported discriminatory motivation, Plaintiffs allege that the Department openly acknowledged that its request to reclassify the DLE position was designed to bypass the all-white list of test-passing candidates that existed when the DLE position became vacant. When viewed together, these facts easily suffice to “provide ‘at least minimal support for the proposition that the employer was motivated by discriminatory intent.’”

The Court cites Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72 (2d Cir. 2015), and Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015), for this proposition, still the go-to cases for motions to dismiss under Rule 12. 

How did the state try to defend the district court's ruling? One argument was that plaintiffs were not comparable to Rivers in terms of qualifications for the position because Rivers had been acting DLE. But the Court notes that plaintiffs alleged that Rivers was not properly performing his duties and, besides, his seven months' experience as DLE was not substantial enough to place him in a different category of candidates than plaintiffs. 

 

When do your actions in the district court moot your appeal?

You learn something new every day. What I learned in this case is that an appeal can become moot if you take certain actions in the district court while the appeal is pending Too bad for plaintiff, as he raised an interesting civil rights issue relating to his religious freedom and jailhouse food practices.

The case is Tripathy v. McClowski, a summary order issued on June 9. Plaintiff is a Muslim who is incarcerated at Fishkill Correctional Facility. He originally sought injunctive relief in the district court to prevent the jail from requiring him from coming into close contact with beef products. That would mean plaintiff cannot eat food containing beef products that was cooked in the same kitchen, with the same utensils and cooks, as the religion-compliant food they were preparing for him. While the district court said plaintiff's religious freedom claim was likely to succeed on the merits, he still could not get an injunction because his proposed relief would dramatically restructure how the jail operates, affecting security, finances, and architecture. But the district court did order the state to confer with plaintiff on a viable remedy.

Plaintiff appealed that order, and also told the district court that he was unsatisfied with the outcome of the inmate-management conferences on food preparation, et al. 

That appeal will not be heard on the merits, however. Why? Because plaintiff next amended his complaint in April 2022 to request new injunctive relief. This maneuver moots his prior request for a preliminary injunction. Citing a Second Circuit case from 1977 as well as cases from the Seventh and Ninth Circuits, the Court of Appeals (Pooler, Sack and Park) notes that "an amended complaint ordinarily supersedes the original and renders it of no legal effect." While the new complaint seeks the same injunctive relief that he requests on appeal, since "the district court has not yet considered whether the newly requested injunctive relief is appropriate, . . . there is no decision for [plaintiff] to appeal at this time." Appeal is therefore dismissed.