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October 31, 2017
  Buxton v. Kurtinitis -- Fourth Circuit
A Dream Deferred for Performance or Denied for Religion?

Areas of Law: Constitutional Law, First Amendment Law, Civil Law

Issues Presented: (1) Whether the district court erred in determining the Free Speech Clause has no application in the context of speech expressed during a competitive admissions interview? (2) Whether the district court properly granted summary judgment to the defendants in determining that denying admission to the plaintiff did not violate the Establishment Clause?

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit held the district court's dismissal of plaintiff's First Amendment retaliation claim was proper because the plaintiff failed to satisfy the first element of such a claim. The Fourth Circuit also held that the district court properly granted summary judgment to the defense because the plaintiff failed to show that the defendants' actions violated any elements of the Establishment Clause.

Extended Summary: In 2013 and 2014, Dustin Buxton applied to the Radiation Therapy Program (RTP) at the Community College of Baltimore County (CCBC), a competitive program that weighs numerous factors when admitting approximately 15 students each year. To gain admission to the RTP, applicants must pass two application stages, receiving an individual score at each stage. At the first stage, applicants are scored based on (1) their GPA and (2) their observation day at a local hospital. If the applicants pass the first stage, they are then invited to a second stage, which consists of a logic exam, a writing sample, and a panel interview. In 2013, Buxton was invited to the second stage, but did not gain admission to the RTP. This decision was made for various reasons including: Buxton's poor feedback on his observation day; his failure to fully read the questions on the writing sample and supply an appropriate response; and his perceived lack of interpersonal skills for this field. In his written review of his application, Adrienne Dougherty, the Director of the RTP at the CCBC, also stated that "[Buxton] brought up religion a great deal during the interview. Yes, this is a field that involves death and dying; but religion cannot be brought up in the clinic by therapist [sic] or students." Buxton applied to the program again in 2014, but he did not make it through the application process because his first stage score was not high enough to move on to the second stage.

Buxton brought this action against Dougherty and other CCBC employees alleging violation of the Free Speech Clause, the Establishment Clause, and the Equal Protection Clause. He claimed that he was discriminated against because he expressed his religious beliefs during his interview. The United States District Court for the District of Maryland dismissed the Free Speech claim and granted summary judgment in favor of the defendants on Buxton's Establishment Clause and Equal Protection claims. Buxton appealed the dismissal of his Free Speech claim and the grant of summary judgment on his Establishment Clause claim to the Fourth Circuit.
The Fourth Circuit affirmed the district court's dismissal of Buxton's Free Speech claim finding that Buxton failed to satisfy the first element for a First Amendment retaliation claim. The Fourth Circuit also upheld the district court's grant of summary judgment because Buxton failed to show that the CCBC's actions violated any elements of the Establishment Clause.

The court first analyzed the retaliation claim. In order for Buxton to succeed in a First Amendment retaliation claim, the following elements must be satisfied: (1) Buxton engaged in protected First Amendment activity, (2) the defendants took some adverse action that affected Buxton's First Amendment right, and (3) there was a cause and effect relationship between Buxton's protected activity and the defendants' conduct. Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 499 (4th Cir. 2005) (citing Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 686 (4th Cir. 2000)).

To amount to protected activity under the first prong, Buxton's First Amendment claim had to fall within one of three recognized categories: (1) employment; (2) public forum; or (3) a case "where the government is providing a public service that by its nature requires evaluations of, and distinctions based upon, the content of speech." The court found that Buxton's speech did not fall into the first two categories. Buxton's speech in the interview room was not an employment case because his speech was related to a personal interest for admission to CCBC. Buxton's speech also did not fall into the public forum framework because public forum cases deal with the government restricting access to a forum by preventing speech happening all together. In this case, there was no restriction on Buxton's speech since it already occurred in the interview room. Having rejected application of the first two categories, the court determined the most relevant category to examine Buxton's speech was the final category of cases where the government is providing a public service that by the competitive nature of the process required the government to make speech-based distinctions. Examining this category, the court ruled that the defendants did not violate Buxton's right to free speech. This determination was made by examining prior cases where the government was permitted to use content-based distinctions to judge the relative excellence of prospective art projects. Such distinctions are also permitted where the government is providing a public benefit that was allocated to a limited number of persons through a competitive process. In this case, the court reasoned that the CCBC must judge the excellence of prospective students who apply for admission to the finite number of available slots open in the RTP program. Narrowing the candidates using the interview process necessarily required content-based distinction to be made on the applicants' speech. Accordingly, the Fourth Circuit affirmed the district court's dismissal of Buxton's Free Speech claim.

The court then analyzed Buxton's Establishment Clause claim. The court applied the Lemon test to determine whether the CCBC violated the Establishment Clause. For the government's conduct to comply with the Establishment Clause, it must (1) have a secular purpose; (2) have a primarily secular effect; and (3) not foster excessive entanglement between government and religion. The court found that the defendants had the secular purpose of identifying the best qualified candidates for the RTP and Buxton was not among the best qualified candidates. Second, using the topics discussed by interviewees during their interviews as a means of determining interpersonal skills was not improper and could not be construed as inhibiting religion. Last, since the third prong of this test dealt with the excessive entanglement from the government's "invasive monitoring," the court found that this prong was irrelevant. The court concluded that the district court properly granted summary judgment in the defendants' favor on Buxton's Establishment Clause claim.

To read the full opinion, click here.

Panel: Circuit Judges Traxler, Floyd, and Harris

Argument Date: 05/10/2017

Date of Issued Opinion: 07/07/2017

Docket Number: 16-1826

Decided: Affirmed by published opinion.

Case Alert Author: Nneka Adibe, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Carly Farrell Gammill, AMERICAN CENTER FOR LAW & JUSTICE, Franklin, Tennessee, for Appellant. Peter Stephen Saucier, KOLLMAN & SAUCIER, P.A., Timonium, Maryland, for Appellees. ON BRIEF: Abigail A. Southerland, Franklin, Tennessee, Michelle K. Terry, Greenville, South Carolina, Francis J. Manion, AMERICAN CENTER FOR LAW & JUSTICE, New Hope, Kentucky; John Garza, GARZA LAW FIRM, P.A., Rockville, Maryland, for Appellant. Clifford B. Geiger, Bernadette M. Hunton, KOLLMAN & SAUCIER, P.A., Timonium, Maryland, for Appellees. Thomas C. Berg, Religious Liberty Appellate Clinic, UNIVERSITY OF ST. THOMAS SCHOOL OF LAW, Minneapolis, Minnesota; Kimberlee Wood Colby, CENTER FOR LAW AND RELIGIOUS FREEDOM, Springfield, Virginia, for Amici Curiae.

Author of Opinion: Circuit Judge Floyd

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 10/31/2017 11:10 AM     4th Circuit  

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