Appeals court guts religious accommodations for teachers that SCOTUS may soon strengthen: lawyers

7th Circuit used precedent that SCOTUS could end in June to approve firing teacher who used students' last names rather than transgender preferred names.

Published: April 24, 2023 11:31pm

A week before the Supreme Court heard arguments in a case that could force employers to more freely grant religious accommodations, a federal appeals court determined that calling all students by their last names for the sake of religious conscience was a fireable offense.

A three-judge panel of the 7th U.S. Circuit Court of Appeals ruled this month that Indiana's Brownsburg Community Schools Corp. had a "legitimate, nondiscriminatory reason" for firing music teacher John Kluge: He caused "emotional harm" and disrupted the learning environment by not addressing transgender students by preferred names and pronouns.

Kluge's lawyers asked the full court Friday for an en banc rehearing before all 11 judges, arguing the panel had made federal protections against employment discrimination "null and void" in its jurisdiction of Illinois, Indiana and Wisconsin and should have waited for guidance from SCOTUS.

The high court is considering whether to abandon or modify the standard it created in a footnote to a 1977 ruling known as Hardiman, which said employers can reject religious accommodations under Title VII of the Civil Rights Act that impose "more than a de minimis cost" on their business.

Evangelical postal worker Gerald Groff, who was fired for refusing to work Sundays to observe his Sabbath, drew wide support in his challenge to the de minimis standard from advocacy groups for major world religions but also those fighting COVID-19 vaccine mandates.

The 7th Circuit is also now at odds with the 6th Circuit, which covers Ohio, Michigan, Kentucky and Tennessee. 

In a nearly identical case that's not mentioned at all in the 7th Circuit's April 7 ruling, which spans 134 pages between majority and concurring opinions, the 6th Circuit ruled in 2021 that a public university could not force a Christian professor to use a student's preferred pronouns or threaten to punish them "any time their speech might cause offense." 

Shawnee State University initially agreed to Nicholas Meriwether's suggested compromise — calling the female student who identified as a man by last name only — but rescinded that option after the student complained again. It settled with Meriwether for $400,000 a year ago. 

Kluge's requested accommodation from Brownsburg's name-and-pronoun policy, also based on his Christian beliefs, was not specific to the two students in his classes who identified as the opposite sex, according to the 7th Circuit summary.

He proposed addressing all his students by last name, saying that if anyone asked he would tell them "we're a team" and he is "like a sports coach," and assigning another teacher to distribute sex-specific orchestra uniforms. The district granted these requests in writing ahead of the 2017-2018 school year.

But the faculty adviser to the Equality Alliance Club and parents of the transgender students started complaining to the school about Kluge, saying the students felt "isolated and targeted." The parties agree that "Kluge would occasionally slip up and use first names or gendered honorifics," and various students claimed they didn't believe their teacher's "team" explanation, the 7th Circuit said. Five teachers also complained about Kluge, and one trans student quit orchestra.

Principal Bret Daghe unsuccessfully pressured Kluge that December and January to resign at the end of the school year, owing to the ongoing complaints. When the school told all faculty the last-name option would not be renewed the following year, Kluge protested that the change would violate his individual written agreement. He resigned anyway to avoid a promised termination proceeding.

The 7th Circuit panel said the district made a good-faith effort to accommodate Kluge's religious beliefs, noting it let him continue his last-names practice through the end of the school year despite determining that it "proved harmful to students and the learning environment." He has given no evidence that the stated basis for threatened termination was a "pretext" for religious discrimination.

While it repeatedly invokes the 1977 Hardiman ruling that created the "de minimis" standard, the panel didn't attempt to explain why it must issue a ruling now rather than wait for SCOTUS to evaluate the standard in postal worker Groff's case.

It waited "over 14 months" to issue a ruling despite SCOTUS agreeing to hear Groff's challenge in January, meaning the "sole" basis for the 7th Circuit's ruling could be gone by June when the high court concludes its term, Kluge's lawyers at the Alliance Defending Freedom wrote in their en banc petition.

The filing cites the partial dissent from Judge Michael Brennan, who said the decision means "being offended by an employee's religious practice [is] enough" to waive religious accommodations altogether.

The majority let the district off the hook by citing "some allegations that the accommodation did not work and caused tension and discomfort" while ignoring the teacher's "countervailing evidence" and "credibility issues on both sides," which should have gone to trial, Brennan wrote. He only agreed with the majority on dismissing Kluge's retaliation claim.

"The panel decision is not just wrong but gravely so," the alliance's April 21 filing says, citing 22 conflicting SCOTUS and appeals courts precedents including last year's ruling for a Washington football coach who was fired for praying on the field after games.

The majority "misconstrues what evidence is relevant in Title VII discrimination and retaliation cases" and "gives public schools free reign to deny any religious accommodation whatsoever," the brief argues.

The alliance, which also represented Meriwether in the Shawnee State case, cited similar facts that undermine each school's portrayal of the teacher's practices as harmful to students' academic performance.

Kluge's students "performed better than ever in competitions, excelled on their AP exams, and participated in extracurricular activities at a high rate," while the district never faced "student protests, written complaints, or cancelled classes," the public interest law firm said. The "few" complaints mainly came from Equality Alliance Club meetings.

The panel majority cited nothing more than "ideological complaints of offense, awkwardness, stigma, or emotional harm" as evidence of the "undue hardship" Kluge caused the district, failing even the Hardiman standard, the alliance said. Other circuits have rejected the denial of accommodations based on employee "grumbling" or "general sentiment" against unpopular religious groups.

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