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Richard B. Katskee

Defender of religious freedoms named Appellate Litigation Clinic director

Richard B. Katskee, a veteran lawyer and advocate whose career has focused on protecting First Amendment freedoms and defending anti-discrimination laws, joined Duke Law School June 26 as assistant clinical professor and director of the Appellate Litigation Clinic

Katskee previously was vice president and legal director of Americans United for Separation of Church and State, having served in that role since 2015. In April 2022 he argued before the U.S. Supreme Court in Kennedy v. Bremerton School District, representing a school district in a case involving a coach who conducted midfield prayers at high school football games. 

Katskee began a long association with Mayer Brown in 1998 and has been counsel in its Supreme Court and appellate practice twice over his career. He also served at Americans United for two separate seven-year periods. A nationally recognized expert in education law, Katskee also was legal advisor to the assistant secretary for civil rights in the U.S. Department of Education, where he led the development of policy implementing the federal laws barring discrimination on the basis of race, sex, and disability in the nation’s schools, colleges, and universities. He is an elected member of the American Law Institute.

“Richard Katskee’s distinguished record of public interest practice and appellate advocacy will enrich our clinical offerings,” said Ryke Longest, the John H. Adams Clinical Professor of Law and director of clinical programs. “Students and clients alike will be well served by his leadership of our Appellate Litigation Clinic.”

A career transition to teaching has been in mind for some years, said Katskee, who has taught classes in law and religion at American University Washington College of Law, political theory at Harvard College, and professional ethics at Harvard’s Kennedy School of Government.

“I really wanted to reach out to the next generations of lawyers and help them find their paths,” Katskee said. “What caught my eye about Duke’s Appellate Litigation Clinic is the chance to combine appellate lawyering with training students to do that work and teaching in the classroom. It pulls together all the threads of the things that I love as a lawyer and a teacher.” 

Katskee is “one of the most outstanding and creative appellate lawyers in the country,” said James E. Coleman, Jr., the John S. Bradway Distinguished Professor of the Practice of Law, who founded the clinic. 

“His commitment to the public interest will be an inspiration, not just for the students in his clinic, but for students generally. His appointment cements Duke’s position as one of the top law schools for the development of complex litigation skills.”

Katskee holds a bachelor’s degree in political science from the University of Michigan, a master’s degree in political science from Harvard University, and a JD from Yale Law School. He clerked for Judge Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit and Judge Guido Calabresi of the U.S. Court of Appeals for the Second Circuit, and in 2001 he began his career in private practice as an associate at Mayer Brown. 

In 2004 Katskee became assistant legal director at Americans United, a non-profit organization that works with an interfaith coalition of religious leaders to protect equality and religious freedom through advocacy and litigation. His first matter was Kitzmiller v. Dover Area School District, a landmark case in which Americans United joined with the American Civil Liberties Union and private counsel to represent parents suing to overturn a Pennsylvania school board’s resolution to present intelligent-design creationism as an alternative to the scientific theory of evolution in the high-school biology curriculum. A district judge ruled for the plaintiffs, writing in a strongly-worded opinion that the resolution had violated the establishment clause of the First Amendment. 

“Our clients were seven families with different beliefs and different religious traditions,” Katskee recalled. “They all came together because they felt that they, their families, and their houses of worship should be the ones to decide what religious instruction their children received; the public schools shouldn’t be making those choices and forcing others’ beliefs — or even their own — on their children.

“Finding people of many faiths, as well as nonbelievers, coming together to stand up for the religious freedom of everyone – that’s really what motivated me in the work that I did at Americans United.”

Other recent litigation responded to attempts to use religious claims in the workplace and the marketplace to get exemptions from laws barring discrimination based on sexual orientation, gender identity, race, and disability, as well as efforts to impose religious beliefs through legislation limiting reproductive rights. 

Career echoes themes of early experience

Working at the intersection of education, religion, and anti-discrimination law drew together themes that Katskee said have run through his life since his childhood in Omaha, Nebraska, where he and his sister were the only Jewish students in their elementary school. 

“That experience had a lot to do with how I came to think about what religious freedom means,” he said. “Accommodating religion, religious belief, and religious practice is enormously important. But when it’s done in ways that impose on others the costs and burdens of my belief or my religious practice, or when I try to use the power and the levers of government to force my beliefs and practices on others, that’s when religious freedom is being harmed.”

His formative years in Omaha also shaped Katskee’s views on diversity, equality, and opportunity, when a court order to desegregate the district’s racially imbalanced schools brought in new third-grade students who became lifelong friends. 

“I remember the vice principal telling us that a group of new kids was coming from Lothrop Elementary, which had been an all-Black school, and helping us figure out how to welcome them and make them feel at home. I also remember that there were people who were worried about race riots at the high school. The juxtaposition of that worry with the experience of these new friends in school helped define the way that I see the world,” Katskee recalled.

“It was only later, when I began the academic study of these sorts of issues, that I realized that a lot of my core values and principles came out of that experience. Throughout my career I’ve been trying to create opportunities to expand and diversify the legal community and the legal world the way that my world was expanded. That’s something that I very much want to continue at Duke.”

Conscious since early in his career of the low numbers of women, people of color, and first-generation students in appellate litigation, Katskee said he has paid particular attention to recruiting diverse staff members, fellows, and interns, providing opportunities for meaningful contributions to litigation work as well as guidance to ensure that they develop and progress in their careers. He is a mentor with The Appellate Project, which works to increase representation of people of color as appellate attorneys and judges.

Katskee also brings to students in the Appellate Litigation Clinic a passion and talent for legal writing. In Monkey Girl, a 2008 book about the Kitzmiller case, author Edward Humes praised Katskee’s “elegantly written briefs” as “veritable beach reading in a field better known for its ponderous prose.” In 2020 he won the Education Law Association’s August Steinhilber Award for outstanding brief writing in an appellate case.

“The judges I clerked for and the folks I learned from when I was starting in private practice were spectacular writers who cared about every word, every sentence, and every paragraph. That became part of who I am too, and it’s something that I want to share with students,” Katskee said.

“I’ve seen the results, both in court and in having people out in the world be able to understand the legal arguments. If we as lawyers can write in ways that regular people can understand, we are doing a better job for our clients, a better job for the courts to whom we owe obligations, and a better job for the world as well.”

Student-attorneys in the Appellate Litigation Clinic research, brief, and argue on behalf of clients in federal appeals, typically in the Third, Fourth, and D.C. Circuits, on a wide range of civil and criminal matters. 

In addition to building on the clinic’s past successes, Katskee plans to expand the range of matters it handles to accommodate a range of student interests, from non-discrimination work and reproductive justice to criminal law. 

“Criminal law is not something that I’ve really done in my career yet. But there’s a huge underserved population that needs good legal representation. And for the students to see that the work can be rewarding would be a victory.” 

He and his wife Rachel Toker, a senior attorney at DLA Piper and founder of an urban land trust who holds a master’s degree from Duke’s Nicholas School of the Environment, are nature lovers who look forward to exploring the forests and trails around Durham with their two school-aged children. A trumpet player who practices daily, he also is interested in the Triangle music scene.

“The other thing I found, in addition to the Duke community and everybody doing such interesting work, was that everyone is so friendly and warm and welcoming,” Katskee said of moving to North Carolina. “The faculty have been tremendously generous with their time. And that makes me incredibly excited to be here.”

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Fall 2023
Volume 42 No. 2