Kennedy v. Bremerton School District: Throwing a Red Flag for the Public-Employee Speech Arena to Challenge the Court’s Hail Mary

Isabella Henry

Is a public-school football coach permitted to engage in audible prayer at the fifty-yard line immediately after school sponsored games while on the clock and surrounded by impressionable students? Where is the line drawn between public-employee speech that authorizes government regulation and citizen speech on a matter of public concern that necessitates constitutional protection? Apparently, the line is up for interpretation.

In Kennedy v. Bremerton School District, the Supreme Court of the United States considered whether a public-school employee’s prayer at the close of a school sponsored event is constitutionally protected speech, and if so, whether the government is authorized to prohibit such conduct to avoid an Establishment Clause violation. In a 6-3 decision, the Court held that the Constitution neither requires nor permits the government to suppress an employee’s “private” religious speech. Rather, the First Amendment’s Free Speech and Free Exercise Clauses as incorporated by the Due Process Clause of the Fourteenth Amendment protect public employees from government “reprisal.” Accordingly, the Court reversed the Ninth Circuit judgment and deemed Petitioner Joseph Kennedy to be entitled to summary judgment on his First and Fourteenth Amendment claims against Bremerton School District (the “District”).

While Kennedy produces numerous First Amendment issues that are worthy of discussion, this Note will focus on Coach Kennedy’s free speech claim and the ambiguity that surrounds public-school employees’ speech protections. The Court’s holding is erroneous because it distorted precedent and misconstrued the facts of the case to improperly reduce Kennedy’s overt, demonstrative prayer to “private,” constitutionally protected speech. In doing so, the Court disregarded its longstanding recognition of the heightened constitutional concerns within primary and secondary public schools. Even under the majority’s narrow view of the facts, the Court should have recognized the clear indications that the District’s interests in avoiding workplace disruption and an Establishment Clause violation outweighed Kennedy’s speech interests. Further, as the dissenting and concurring opinions properly noted, the Court failed to provide an applicable standard for employee-speech challenges that involve a brief pause in job responsibilities. Consequently, the Court effectively reduced the public-employee speech framework to an arbitrary analysis that neither lower courts nor school administrators can employ with the consistency that the Constitution demands. Thus, Kennedy threatens to further confuse First Amendment jurisprudence in the public-school context.

Considering Vulnerability of Abuse as a Facet of Identity: A Call for Reform in Child Custody Proceedings

Samantha Fitzgerald

For nearly fifty years, the best interest standard has been adopted and applied by all jurisdictions in child custody determinations. The standard aims to impose facially neutral determinations that solely consider the best interest of the child, but many believe that mothers obtain an unfair advantage during these proceedings. A deeper dive into the application and outcomes of courts applying this standard provides that neither aim nor belief is an accurate representation in practice.

Custody proceedings rely on outdated conceptions of patriarchal norms. Under the doctrine of parens patriae, family courts receive exclusive jurisdiction to determine the best interest of the child. The standard relies on the paternal figure, the judge, to use their own discretion when determining what is within the child’s best interest. Judges are often tasked with interpreting situations that are different than their own experiences and outside their areas of expertise. Imposing their own discretion in these matters without relevant training can lead to unintended and harmful outcomes.

The standard’s facial neutrality along with the application of judicial discretion often results in custody outcomes that overlook facets of identity pertinent to a child’s wellbeing. Part I of this Comment will examine case law and research that indicates that courts often leave children vulnerable to abuse by failing to consider how gender, race, and transphobia impact their lives when applying the best interest standard. Part II of this Comment will analyze proposed reforms for the standard and judicial training and take developmental psychology into account to suggest ways to combat inequitable proceedings.

State v. Matthews: Maryland Fails to Measure Up to Its New Expert Testimony Standard

Thomas Kiley

In State v. Matthews, the then-Maryland Court of Appeals considered the admissibility of expert testimony in Kirk Matthews’s trial for a double murder. The forensic scientist presented a conclusion on the height of an individual captured on security camera footage, but did not include multiple variables in her measurement because she could not quantify them. The Court of Appeals had to determine the admissibility of the expert testimony under the new standard adopted in Rochkind v. Stevenson, which adopted the federal Daubert v. Merrill Dow Pharmaceuticals, Inc. standard.

The court found that the testimony was admissible. The expert witness’s inability to calculate the uncertainty of some variables did not make the testimony inadmissible. There was no “analytical gap” between the expert witness’s opinion and the facts and data. The expert witness provided sufficient information to aid the trier of fact, and any issues with accuracy could be handled at trial. Therefore, the trial court did not abuse its discretion in admitting the testimony.

The Matthews decision indicates that Maryland courts are unlikely to properly analyze scientific testimony in future cases. The court failed to recognize an analytical gap between the precise conclusion and unknown variables that should have barred its admission. Additionally, the court did not analyze other factors affecting the testimony’s reliability, nor did it properly frame the scientific method that it was analyzing. As a result, Maryland courts will likely make the same mistakes as other jurisdictions that have adopted the federal expert testimony standard. The proper way to analyze scientific expert testimony has been a consistent problem for courts, and the reasoning of the court in Matthews indicates that Maryland courts will be unlikely to measure up to the task of properly analyzing scientific testimony.