There is an important ruling this month out of the United States Court of Appeals for the Seventh Circuit, which ruled against former high school music teacher John Kluge for refusing to comply with the school’s pronoun policy for religious reasons. What is most curious about the ruling is the timing. The Seventh Circuit opinion from April 7th is particularly interesting given the oral argument in the Supreme Court in Groff v. DeJoy only 11 days after the appellate ruling. Groff could gut the underlying standard used by the Seventh Circuit in its ruling for the school district. The opinion also puts the appellate court in conflict with the United States Court of Appeals for the Sixth Circuit in its recent Meriweather decision.
Kluge sought an accommodation in using just the last names of the students “like a sports coach” and had another teacher hand out gender-based band uniforms. However, he sought to compromise in formal settings by using both names:
In May 2018, as part of the curriculum, Kluge participated in an orchestra awards ceremony. R. 120-3, at 32–33. At the ceremony, he addressed the students, including the transgender students, by their first and last names as they appeared in PowerSchool. … Kluge explained that he did this because “it would have been unreasonable and conspicuous to address students in such an informal manner at such a formal event as opposed to the classroom setting where teachers refer to students by last names as a normal form of address.”
We have discussed the last name option in earlier posts, including the settlement in the Meriwether case. In Ohio, Shawnee State University Professor Nicholas Meriwether, won a major appeal before the Sixth Circuit, which reversed a lower court that initially upheld his punishment for not using a student’s designated pronoun choices. The school had refused Meriwether’s suggested compromises to just use the last name of the complaining student or use chosen pronouns after adding a personal disclaimer on the syllabus.
These are admittedly difficult cases. On one hand, you have the religious beliefs of a teacher who feels that the use of these pronouns contradicts a core element of faith. On the other hand, you have a school district that believes that the refusal to use the student’s preferred gender and name is emotionally and developmentally harmful.
These questions come down legally to the level of accommodation required under federal law and the Constitution. That is precisely the issue in Groff that is now awaiting a decision of the Supreme Court. Gerald Groff was fired as a postal worker after refusing to work Sundays to observe his Sabbath.
Under Title VII, it is “an unlawful employment practice for an employer—(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin[.]” 42 U.S.C. § 2000e-2(a)(1).
In Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977), the Supreme Court held “[t]he intent and effect of this definition was to make it an unlawful employment practice under [sec. 2000e-2(a)(1)] for an employer not to make reasonable accommodations, short of undue hardship, for the religious practices of his employees and prospective employees.” The Court held that “[t]o require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship.” That de minimis test is at issue now in Groff and the Court is likely to change or dispense with the test, in my view.
The Seventh Circuit relied on Hardison in ruling for the district, finding that it initially tried the accommodation of using last names but decided that it was not sufficient to protect the mental health of students:
The school stretched to accommodate Kluge with a facially neutral accommodation of using last names only; nonetheless, the undisputed evidence showed that the practice resulted in genuine harm to students and real disruption to the learning environment. Moreover, Kluge’s practice was contrary to the preference of not only the school and the students, but also the students’ parents and healthcare providers, who had decided that it was in the best interest of these children to be addressed in a particular manner, with their PowerSchool names and pronouns.
It is interesting that the Seventh Circuit did not wait for the Groff decision, but it is not required to do so. There is also now a split in the circuits on the pronoun question with the unanimous opinion in the Meriwether case. (The Seventh Circuit does not discuss the opposing case).
Even if the Supreme Court does not negate the basis for the Seventh Circuit decision by changing the underlying test, the split in the circuits would militate in favor of a review of the pronoun controversy by the Court.
As we prepare for the Groff decision, I wanted to share the Seventh Circuit opinion.
Here it is: Kluge v. Brownsburg Community School Corp.