A three judge panel of the Chicago-based U.S. Court of Appeals for the 7th Circuit ruled on April 7 that the Brownsburg (Indiana) Community School Corporation did not violate Title VII of the Civil Rights Act of 1964 when it told a music teacher at the district’s high school that if he refused to comply with the district’s policy regarding names and pronouns for transgender students he should quit or would be fired. Kluge v. Brownsburg Community School Corp., 2023 WL 2821871, 2023 U.S. App. LEXIS 8328 (7th Cir., April 7, 2023).
The teacher, John M. Kluge, protested the policy on religious grounds when it was first announced. He and three other teachers approached the high school’s principal, Dr. Bret Daghe, presenting a seven-page letter expressing their religious objections to “transgenderism,” arguing that the school “should not treat gender dysphoria as a protected status, and urged the school not to require teachers to refer to transgender students by the names or pronouns that the teachers deemed inconsistent with the students’ sex recorded at birth,” wrote Circuit Judge Ilana Rovner in her opinion for the majority of the panel.
The school maintained an official student database, called “Power-School,” which included names and gender markers, preferred pronouns and other data. Kluge claims that Dr. Daghe told the teachers that he had resisted pressure to change the students’ names in Power-School, but that he “would make this change if it would resolve the teachers’ concerns regarding how to address transgender students,” Kluge later testified. The other three teachers who had signed Kluge’s letter agreed to use the names and pronouns as shown in the Power-School database, but Kluge hanged tough, insisting that he had a right to assert his religious views and refuse to comply. Somehow, Kluge walked away from the meeting thinking that he had Dr. Daghe’s permission to continue using students’ “legal names” and that “we would not be promoting transgenderism in our school.”
He was mistaken, according to Dr. Daghe, as the district leadership decided to require teachers to use the PowerSchool names and pronouns. Transgender students could change their names and pronouns in PowerSchool by presenting two letters, one from a parent and one from a healthcare professional, regarding the need for changes. Assistant Superintendent Dr. Kathryn Jessup explained in testimony that this fulfilled two goals: it established a clear rule for faculty members to follow, and “it afforded dignity and showed empathy toward transgender students who were considering or in the process of gender transition.” The leadership considered it “important for transgender students to receive, like any other student, respect and affirmation of their preferred identity, provided they go through the required and reasonable channels of receiving and providing proof of parental permission and a healthcare professional’s approval.”
This policy was communicated to teachers by a guidance counselor using emails at the beginning of the 2017-18 school year, and Kluge was notified that that he would have two transgender students in his music classes. He expressed shock, and interpreted the emails as being “permissive, not mandatory,” determined to use only “legal names” for his students. He met with Dr. Daghe, once again raising his religious objections. After consulting the Superintendent of Schools, Daghe told Kluge that he had three options: comply with the policy, resign, or be suspended pending termination. When he refused either to comply or resign, he was suspended and sent home. When he came back to the school a few days later to meet with administrators, he was presented with a written directive requiring him to state either that he would or would not comply with the school’s rule.
Kluge responded by proposing an “accommodation” to his religious beliefs. He wanted to be allowed to address all students by their last names and not use pronouns, and to have somebody else hand out the gender-specific uniforms for students in the orchestra. This was agreed to, but in the long run, it didn’t work out because it became obvious to the students what was going on. The transgender students felt demeaned and many of their classmates were upset as well. Other teachers expressed concern. Kluge slipped up at times and was inconsistent in his naming and pronoun practices. The faculty advisor to the school’s “Equality Alliance Club” reported to Dr. Daghe that complaints about Kluge were frequently voiced at club meetings. Parents of transgender students complained to the school in writing as well. Non-transgender students reported that the way Kluge was acting was making them uncomfortable. One transgender student was so upset that he ended up withdrawing from the orchestra program entirely.
This summary of what happened drastically truncates the lengthy and detailed narrative provided by Judge Rovner in her opinion, a factual record that led a majority of the appellate panel to conclude that the school had a legitimate basis to go back to Kluge at the end of the school year and inform him that the “accommodation” was not working, and that he would have to resign or he would be fired. He resigned under protest and filed this lawsuit
Represented by lawyers from Alliance Defending Freedom (ADF), the conservative religious law firm, Kluge sued the Brownsburg school corporation in the Indiana federal district court, claiming violations of the Constitution and invoking the statutory ban on religious discrimination under Title VII. District Judge Jane Magnus-Stinson dismissed Kluge’s constitutional claims and various other state law claims, and ruled against Kluge’s claim that his forced resignation violated his rights under Title VII, either as outright discrimination or as retaliation for his protest against the school’s policy.
Kluge appealed only his Title VII discrimination and retaliation claims, so the 7th Circuit decision does not address the constitutional claims. Title VII makes it illegal for an employer to discriminate against an employee because of his religion, and requires employers to “reasonably accommodate” an employee’s religious beliefs and practices. The duty of reasonable accommodation is limited by Supreme Court precedents, however. An accommodation that would impose an “undue hardship” on the employer’s business cannot be required. The statute also prohibits an employer from retaliating against an employee for engaging in activity protected under the statute.
The district court concluded that Kluge established a prima facie case of failure to accommodate his religious belief, but that the school had proven that Kluge’s naming/pronoun accommodation imposed an “undue hardship” on the school’s “business,” and the majority of the 7th Circuit panel agreed.
“As a public school,” wrote Judge Rovner, “Brownsburg’s ‘business’ is its constitutional and statutory charge to educate all students who enter its doors.” The court described students as a “captive audience” because education is “compulsory.” Students must attend public school unless their parents are willing to pay for private schools or make the time commitment for home schooling. The court quoted from an earlier decision “noted in the First Amendment context”: “Children who attend school because they must ought not be subject to teachers’ idiosyncratic perspectives.” It should be up to the politically accountable school boards (or in the case of this school district, the elected trustees of the education corporation), not the teachers, to determine issues about what goes on in the classrooms. “At least the board’s views can be debated openly,” the court had written, “and the people may choose to elect persons committed to neutrality on contentious issues. The Constitution does not entitle teachers to present personal views to captive audiences against the instructions of elected officials.”
Here, the school claimed that Kluge’s naming practices, including the so-called last name accommodation, had imposed two undue hardships on the school: first, it “frustrated” the school’s efforts to “educate all students” because it “negatively impacted students and the learning environment for transgender students and other students as well”; and second, it exposed the school district to potential loss of federal funding and damages if transgender students filed discrimination claims with the federal government under Title IX, a law that prohibits discrimination because of sex against students at schools that receive federal funds. At the time of this lawsuit, the 7th Circuit had recently ruled in a lawsuit by a transgender boy excluded from the boys’ restrooms in another Indiana school district, holding that this violated Title IX. Thus, 7th Circuit precedent supported the school’s concern about potential liability if it allowed Kluge to continue his contested practices.
Judge Rovner declared, “A practice that indisputedly caused emotional harm to students and disruptions to the learning environment is an undue hardship to a school as a matter of law.” The court also found that there was no other accommodation available in this case, because Kluge was the school’s only music teacher, so students could not be transferred to another classroom to be able to participate in the music program without having to deal with Kluge (and, the court commented, “if we assume that transfer to another classroom would not be equally stigmatizing”).
As to Kluge’s retaliation claim, the court found that he “failed to produce evidence that established a but-for causal link between protected activity and the adverse action, and so failed to make out a prima facie case of retaliation.” The court found Kluge’s briefing on this point insufficient, failing to cite relevant evidence for his claim, for example, that he was subjected to a “hostile environment” because of his religious beliefs after he protested the naming policy during the summer of 2017. And, of course, the school’s “undue hardship” defense would counter any liability for retaliation, because the court found that the school was justified in revoking the “accommodation” agreement, having correctly concluded that it was not working.
Judge Michael Brennan agreed with the majority of the panel on the retaliation claim, but he dissented from the ruling on direct Title VII liability, arguing that the religious accommodation claim “comes down to a fact-intensive inquiry: Did the School District demonstrate that Kluge’s gender-neutral accommodation of calling all student by only their last name causes undue hardship – that is, more than a de minimis cost? The majority opinion says ‘yes,’ but it sidesteps Kluge’s countervailing evidence, failed to construe the record in his favor, and overlooks credibility issues on both sides, which are reserved for resolution by the factfinder.” Brennan argued that there should have been a trial to determine whether Kluge’s “accommodation” had actually posed an undue hardship. Judge Rovner’s opinion sharply disputed this, finding the record overwhelming supported the school’s decision to end the “accommodation agreement.”
This panel opinion may not be the last word on Kluge’s discrimination claim. ADF has a practice of appealing any adverse ruling as far as they can take it, since it is a policy-driven organization that is dedicated to establishing maximum religious freedom through the courts.
This three-judge panel was made up entirely of judges appointed by Republican presidents. Judge Rovner was appointed by President George H.W. Bush in 1992, while both Judge Brennan and the other judge on the panel, Amy St. Eve, were appointed by President Trump. ADF may seek reconsideration by the full ten-judge 7th Circuit bench, which tips 7-3 in Republican appointees. (There is one vacancy in this Circuit, and President Biden has not announced a nomination for the vacant seat.)
ADF might alternatively directly seek Supreme Court review. This term the Court is reconsidering the issue of religious accommodation in another case. If ADF were to file a petition with the Court, is likely that the Court would delay deciding whether to grant the petition until it releases an opinion in the other case and if, as widely expected, the Court’s decision strengthens the accommodation requirement, to then send this case back to the lower courts for reconsideration in light of the new standard.