Religious retaliation, accommodation claims to continue against Brownsburg schools

A federal lawsuit alleging Brownsburg schools discriminated against a former teacher who refused to address transgender students by their chosen first names will continue with claims brought under Title VII, though 11 other state and federal constitutional claims against the school district were dismissed. The judge also cautioned both sides against efforts to expand the issues in the case to nonparty students.

Indiana Southern District Chief Judge Jane E. Magnus-Stinson denied Brownsburg Community School Corporation’s motion to dismiss retaliation and accommodation claims brought by John Kluge, a music teacher who says he lost his job because of his sincerely held religious beliefs.

Kluge sued BCSC in June 2019 after he says he was wrongfully terminated in May 2018 for refusing to abide by the transgender student policy at Brownsburg High School, where he taught music and orchestra.

Kluge was hired in 2014 and said he consistently received positive performance reviews. His students, he said, also received awards for their musical performances.

But trouble began when the school district decided in the summer of 2017 to allow transgender students or those with gender dysphoria to use the restroom of their choice and change their names and genders in an online school database known as PowerSchool. Kluge, who describes himself as a “professing evangelical Christian,” told administrators that calling transgender students by the names listed in PowerSchool would conflict with his religious beliefs against affirming gender dysphoria.

Initially, Kluge was told to either abide by the policy, resign or be terminated. But a system was later devised that allowed him to refer to all students by their last names, similar to an athletic coach.

However, in December 2017, administrators told Kluge the last-name policy had created “tension” and had offended some students, so he should resign if he could not abide by the school’s transgender policy. Kluge alleges he was permitted to submit a “conditioned” resignation that would allow him to rescind the resignation, which he did, but his resignation was nevertheless processed in May 2018.

Kluge filed his religious discrimination lawsuit little more than a year later, raising 13 claims under Title VII of the Civil Rights Act, the First and 14^th Amendments, the Indiana Constitution and other state law provisions. He sued the school district and individual employees, but all of the individual-capacity claims were dismissed in Magnus-Stinson’s Wednesday order.

In allowing the retaliation and accommodation claims to continue, the chief judge said she was required to accept as true Kluge’s allegation that “using the names as listed in the PowerSchool database violates his religious belief that ‘encouraging students to present themselves as the opposite sex by calling them an opposite-sex name is sinful.’”

“The Court must also accept as true the allegations that BCSC refused to accommodate Mr. Kluge’s belief where doing so would not result in undue hardship and that this conflict was the basis of BCSC’s demand for his resignation, and together these allegations state a claim for failure to accommodate,” she wrote.

Similarly on the retaliation claim, the chief said she must accept as true the allegation that BCSC gave a pretextual reason when it said it withdrew the last-names policy because of student complaints.

“BCSC’s alternative argument is that it ‘defies logic’ that BCSC would first permit the last-names-only arrangement and then subsequently withdraw that arrangement based on religious animus,” Magnus-Stinson wrote. “However, accepting Mr. Kluge’s allegations as true – which the Court must do – it is plausible that school officials, over time, became less inclined to tolerate Mr. Kluge’s religious beliefs and used the idea of student complaints as a pretext to withdraw the last-names-only arrangement, refused to provide another accommodation to which Mr. Kluge was entitled, and force him to resign.

“Whether Mr. Kluge can produce evidence to support such a contention,” she continued, “is another question entirely, which is not before the Court at this time.”

But in granting the motion to dismiss Kluge’s 11 other claims, Magnus-Stinson said the First Amendment allegations failed because Kluge’s underlying speech was not constitutionally protected.

“Importantly, he is not asserting that he was disciplined for criticizing or opposing the Policy, but that he was disciplined for refusing to follow it in his classroom by refusing to call students by the first names listed in PowerSchool,” she wrote. “Mr. Kluge’s own allegations establish that the way in which he addresses students is part of his official duties as a teacher.”

The chief judge also said the policy did not interfere with his ability to hold his religious beliefs, nor did it interfere with his right to exercise those beliefs outside of his official duties. Further, the chief noted that Kluge’s students won awards while he was teaching them under the transgender policy, thus defeating the hostile work environment claim.

In addition to BCSC, an organization known as Indiana Youth Group moved in August to intervene as a defendant in the litigation. Magnus-Stinson denied IYG’s motions for intervention as of right and for permissive intervention, finding IYG — which represents transgender students — “is not asserting a claim or defense independent of the defenses already asserted by BCSC and indeed is seeking only to dismiss this lawsuit.”

But the chief judge offered cautionary words for IYG and Kluge, who had filed competing declarations from a transgender student who said Kluge’s actions led to bullying and from another student who said the alleged bullying was a false accusation against a Christian student, among other declarations.

“This Court certainly will not adjudicate a dispute concerning the gender identity of a non-party minor student, and reminds the parties of their obligation to maintain a certain level of decorum that does not include assembling a group of different non-parties to criticize a child or weigh in on that child’s gender identity or credibility where the child is not even involved in this action,” Magnus-Stinson wrote. “To that end, the Court finds that the majority of the material contained in the declarations submitted by both parties is either unnecessary or irrelevant to the issue of intervention and borders on inappropriate.”

The chief judge further wrote that the intervention rulings do not preclude IYG from filing an amicus brief. However, she advised that any such brief “should provide the Court with additional helpful theories or insights, not merely reiterate arguments already raised by the parties.”

The case is John M. Kluge v. Brownsburg Community School Corporation, 1:19-cv-2462.