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35 Regent U. L. Rev. 295 (2022-2023)
Personal Foul - Encroachment: How Kennedy v. Bremerton School District Blurs the Line between Government Endorsement of Religion and Private Religious Expression

handle is hein.journals/regulr35 and id is 307 raw text is: PERSONAL FOUL - ENCROACHMENT: HOW KENNEDY V. BREMER TON SCHOOL DISTRICT BLURS THE LINE BETWEEN GOVERNMENT ENDORSEMENT OF RELIGION AND PRIVATE RELIGIOUS EXPRESSION Mallory B. Rechtenbach* TABLE OF CONTENTS INTRODUCTION I. BACKGROUND A. Establishment Clause Doctrine 1. The Original Understanding of the Establishment Clause 2. Modern Establishment Clause Jurisprudence B. The Role of Freedom of Speech as Applied to Public Employees C. The Forgotten Free Exercise Clause D. The First Amendment Rights of Public-School Teachers 1. Kennedy v. Bremerton School District 2. The Ninth Circuit's Categorical Ban on Demonstrative Expression by Teachers When in View of Students II. ANALYSIS A. Categorical Ban on Demonstrative Expression Violates a Teacher's Right to Freedom of Speech 1. Teachers Don't Forfeit All First Amendment Rights at the Schoolhouse Gate 2. The Categorical Approach Would Permit Government Officials to Engage in Wholesale Viewpoint Discrimination 3. The Ninth Circuit's Overly Broad Reading of Garcetti Has Been Explicitly Rejected by the Supreme Court B. The Establishment Clause Does Not Require Personal Demonstrative Religious Expression by Public Employees to be Suppressed 1. An Actual Establishment Clause Violation, Not Mere Fear of a Violation, Is Required to Provide an Adequate Justification to Restrict Speech 2. Private Religious Demonstrative Expression Is Permitted Under the Original Public Meaning of the Establishment Clause and Distinguished from the Formal Religious Activity in Lee and Santa Fe First Year Lawyer Fellow, Alliance Defending Freedom; J.D., University of Nebraska College of Law, 2020.

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