PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-1826
DUSTIN BUXTON,
Plaintiff - Appellant,
v.
SANDRA KURTINITIS, individually and in her official capacity as President of
The Community College of Baltimore County; CAROL EUSTIS, individually and
in her official capacity as Dean of Instruction for the School of Health Professions
at The Community College of Baltimore County; ADRIENNE DOUGHERTY,
individually and in her official capacity as Program Director and Coordinator of
Radiation Therapy at The Community College of Baltimore County; CHARLES
MARTINO, individually and in his official capacity as Academic Advisor for the
School of Health Professions at The Community College of Baltimore County;
EBONY THOMAS, individually and in her official capacity as Coordinator for
Selective Admissions in the School of Health Professions at The Community
College of Baltimore County,
Defendants - Appellees.
--------------------------------------
CHRISTIAN LEGAL SOCIETY; NATIONAL ASSOCIATION OF
EVANGELICALS,
Amici Supporting Appellant.
Appeal from the United States District Court for the District of Maryland, at Baltimore.
J. Frederick Motz, Senior District Judge. (1:14-cv-02836-JFM)
Argued: May 10, 2017 Decided: July 7, 2017
Before TRAXLER, FLOYD, and HARRIS, Circuit Judges.
Affirmed by published opinion. Judge Floyd wrote the opinion, in which Judge Traxler
and Judge Harris joined.
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.
2
FLOYD, Circuit Judge:
Plaintiff-Appellant, Dustin Buxton, applied and was denied admission into the
Radiation Therapy Program (RTP) at the Community College of Baltimore County
(CCBC) in 2013 and 2014. Buxton brought this action alleging that points were deducted
from his application score and that he was denied admission because of his expression of
his religious beliefs during his interview in violation of the Free Speech Clause, the
Establishment Clause, and the Equal Protection Clause. The district court dismissed
Buxton’s Free Speech claim and granted summary judgment in favor of the defendants
on Buxton’s Establishment Clause and Equal Protection claims. Buxton timely appealed
his Free Speech and Establishment Clause claims. We affirm.
I
Dustin Buxton applied to the RTP at the CCBC in 2013 and again in 2014.
Adrienne Dougherty, is the Director of the RTP at the CCBC. The RTP is a competitive
program, and Dougherty limits the number of persons who can be admitted to the RTP
based on the availability of clinical placement opportunities. Around 15 students are
admitted each year.
In order to meet the minimum qualification for consideration, applicants must
have attained a minimum grade point average (GPA) of 2.5 and a grade of “C” or better
in certain prerequisite courses. In one of the prerequisite courses, students complete an
observation day at a local hospital, and radiation therapists working at the hospital
provide Dougherty with feedback about the students they encounter.
3
At the first stage of the application process, applicants receive numerical scores
based on (1) their GPA and (2) their observation day. The top qualified candidates are
then invited to a second stage, which consists of a logic exam, a writing sample, and a
panel interview. Applicants’ final admissions scores are made up of three components:
(1) GPA, worth 30%; (2) interview and observation day, worth 40%; and (3) a writing
sample and critical thinking exam, worth a combined 30%. The candidates with the
highest scores are admitted into the RTP.
Buxton applied for admission to the 2013 RTP and, based on his scores from the
first stage, was invited to participate in the second stage of the application process.
Buxton’s final application score ranked 36th out of the 44 candidates who received an
interview. Buxton’s scores in each individual category were as follows: his writing
sample scored a 6 out of a possible 12 (tied for 36th); his pre-requisite course GPA
scored an 18 out of a possible 30 (tied for 21st); his observation day score was a 7.2 out
of a possible 12 (tied for 35th); his logic exam score was a 15.66 out of a possible 18
(7th); and his interview score was a 9.52 out of a possible 28 points (33rd). See J.A. 144–
51.
Dougherty’s written review of Buxton’s 2013 application states in its entirety:
The student did not receive very good feedback from his observation day.
He told one of the therapists that he assumed he was guaranteed a spot in
the program. He did state that he seemed like a bother to some of the
therapists; however they felt he asked questions at inappropriate times,
interrupting them at times, and were related to the engineering aspect of the
field. In addition, the therapists said that he wrote down/typed everything
they said. It was also noted that during a simulation procedure in which IV
contrast was injected, he stated something along the lines that he did not
sign on for this. This is minor, but the student did not follow directions
4
when asked to initial the admissions process. When responding to the
questions on the written sample, he did not fully read the questions and
respond to them in the role of a student. The interview committee felt he
was not a good fit for this field. His answers to several of the questions
were very textbook and lacked interpersonal skills. When asked about
important characteristics that a therapist should have he responded with
“not to socialize or fraternize” and then in the next sentence he brought up a
sense of levity and that it is good to laugh. He also 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. He mentioned plans to go onto [sic] complete a Dosimetry
Program, but I do not think he has researched this career path fully.
University of Maryland does offer a 1-year program, but they receive
approximately 100 applicants and only have 2 seats available. Physics and
Dosimetry may be a possible career path for him, but he lacks the
interpersonal skills for this field. If this is something he wants to continue
to pursue, I would suggest at least a full week of observation at another
facility. His pre-requisite grades could be more competitive (18/30). Linda
Brothers may be able to assist with his interpersonal skills.
J.A. 36 (emphasis added).
In 2014, applications to the RTP nearly doubled. Of the 72 applicants who met
the RTP’s minimum qualifications for consideration, the CCBC decided to interview only
the 36 highest-scoring candidates. The top 36 candidates were determined by ranking
applicants by their observation day and GPA scores. Dougherty gave Buxton a score of
“0” for his observation day, reportedly because he failed to follow Dougherty’s
recommendation following his 2013 request for feedback that he complete a week of
observation days. Nine other candidates who, like Buxton, initially received observation
day scores less than “10” were also given a “0” for their observation day score.
Once all of the applicants’ observation day and GPA scores were combined and
ranked, Buxton’s scores did not place him among the top 36 candidates; therefore, he did
not receive an interview for the 2014 RTP. No candidate with an observation day score
5
of less than “10” received an interview, thus, even if Buxton would have received the
same observation day score he received in 2013 (7.2), he still would have fallen short of
the interview cutoff.
Buxton then sued Dougherty and a number of other CCBC employees for alleged
violations of the Free Speech Clause, the Establishment Clause, and the Equal Protection
Clause. Buxton alleged that the defendants discriminated against him because of his
expression of his religious beliefs during his interview. In support of this allegation,
Buxton relied heavily on Dougherty’s written review, which stated: “[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.” J.A.
16.
Defendants moved to dismiss the complaint. As relevant here, the district court
dismissed Buxton’s Free Speech claim with prejudice as to all defendants. See Buxton v.
Kurtinitis (Buxton I), Civ. No. 14-2836, 2015 WL 3937930 (D. Md. June 25, 2015).
Buxton was allowed to proceed to discovery on his Establishment Clause and Equal
Protection claims against Dougherty only. Following discovery, Dougherty filed a
motion for summary judgment as to Buxton’s remaining claims, which the district court
granted. See Buxton v. Kurtinitis (Buxton II), Civ. No. 14-2836, 2016 WL 3582004 (D.
Md. June 28, 2016).
Buxton timely appealed the dismissal of his Free Speech claim and the grant of
summary judgment on his Establishment Clause claim. Buxton has not appealed the
grant of summary judgment on his Equal Protection claim.
6
II
We review the district court’s dismissal of Buxton’s Free Speech claim as well as
the district court’s grant of summary judgment as to Buxton’s Establishment Clause
claim de novo. Woollard v. Gallagher, 712 F.3d 865, 873 (4th Cir. 2013); E.I. du Pont
de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011). We address
each claim in turn.
A.
A plaintiff states a valid claim for First Amendment retaliation if the complaint
satisfies the following elements: (1) the plaintiff “engaged in protected First Amendment
activity,” (2) “the defendants took some action that adversely affected [the plaintiff’s]
First Amendment rights,” and (3) “there was a causal relationship between [the
plaintiff’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)). Finding that Buxton’s complaint
has failed to satisfy the first element, we affirm the district court’s dismissal. 1
1
We note here that because Buxton’s Free Speech claim was dismissed by the
district court, our analysis is limited to the facts as alleged in Buxton’s complaint and any
attachments thereto, and does not rely on further facts developed during discovery and
presented to the court with respect to the motion for summary judgment on the
Establishment Clause claim.
7
The district court identified 2 three categories of cases pertinent to understanding
the first retaliation element—whether Buxton engaged in First Amendment protected
activity: (1) employment cases; (2) public forum cases; and (3) cases “where the
government is providing a public service that by its nature requires evaluations of, and
distinctions based upon, the content of speech.” Jenkins, 2015 WL 1285355, at *14
(quoting Ass’n of Christian Sch. Int’l v. Stearns, 679 F. Supp. 2d 1083, 1095 (C.D. Cal.
2008), aff’d 362 F. App’x 640 (9th Cir. 2010)) (internal quotation marks omitted). We
address these in turn.
Most First Amendment retaliation claims arise in the public employment context.
In order to establish a prima facie case under this line of cases, a plaintiff must allege
facts to show that the speech in question was made “as a citizen [speaking] upon a matter
of public concern,” and not “as an employee about a matter of personal interest.” Adams
v. Trs. of the Univ. of N.C.-Wilmington, 640 F.3d 550, 560 (4th Cir. 2011) (quoting
McVey v. Stacy, 157 F.3d 271, 277 (4th Cir. 1998)). Here, it is clear that Buxton’s speech
in the interview room was a matter of personal interest; his admittance to the RTP.
Furthermore, Buxton was not a public employee, nor was he interviewing to be one. As
2
The district court did not directly lay out its reasoning as to Buxton’s Free
Speech claim, but rather incorporated its reasoning from a factually similar case, Jenkins
v. Kurtinitis, Civ. No. 14-1346, 2015 WL 1285355, at *10-25 (D. Md. Mar. 20, 2015).
See Buxton I, 2015 WL 3937930, at *4 (“Therefore, for the reasons explained at length in
Jenkins, incorporated here, I will grant defendant’s Motion . . . .” (citation omitted)). As
such, references to the district court’s reasoning on this issue refer to the reasoning
incorporated from Jenkins.
8
such, the district court properly found that this line of cases was inapplicable to the
present case.
Buxton contends that the appropriate frame of analysis for his complaint is the
public forum framework. This line of cases involves challenges by plaintiffs to
government decisions denying them access to “fora,” usually government property, for
expressive activity. See, e.g., Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473
U.S. 788, 800 (1985) (“Recognizing that the Government, no less than a private owner of
property, has power to preserve the property under its control for the use to which it is
lawfully dedicated, the Court has adopted a forum analysis as a means of determining
when the Government’s interest in limiting the use of its property to its intended purpose
outweighs the interest of those wishing to use the property for other purposes.” (internal
quotation marks and citations omitted)).
Nothing about these cases, however, fits neatly with Buxton’s claim. And the
Supreme Court already has rejected efforts to force claims like Buxton’s into the public
forum framework. In Locke v. Davey, 540 U.S. 712, 720 n.3 (2004), a student denied a
selective government scholarship because he planned to pursue a degree in devotional
theology raised a claim much like Buxton’s, arguing that the denial amounted to an
unconstitutional viewpoint-based restriction on speech in a public forum. The Supreme
Court disagreed. The purpose of selective educational programs, the Court explained, is
“not to ‘encourage a diversity of views from private speakers,’” rendering cases dealing
with speech forums “simply inapplicable.” Id. (quoting United States v. American
Library Assn., Inc., 539 U.S. 194, 206 (2003) (plurality opinion).
9
Moreover, Buxton has not pointed to a single case in which a court applied—as he
requests here—forum analysis to a Free Speech retaliation claim. That is because each
of the public forum cases deal with the government restricting access to a forum—i.e.,
preventing the speech from happening altogether. See, e.g., Good News Club v. Milford
Cent. Sch., 533 U.S. 98, 106 (2001) (evaluating whether the government
“unconstitutionally excluded a private speaker from use of a public form”). On the other
hand, retaliation claims arise after the speech has already happened, presumably after the
speaker has gained access to the forum in question. See, e.g., Constantine, 411 F.3d at
499 (“Constantine alleges that the defendants violated her First Amendment right to free
speech by retaliating against her after she complained . . . .” (emphasis added)).
Excluding a speaker from participating and retaliating against the speaker for his speech
are two different actions, to which we apply different analytical frameworks. Thus, the
public forum framework is not the appropriate frame of analysis in the Free Speech
retaliation context.
The final relevant category of cases has examined situations where the competitive
nature of the process in question inherently requires the government to make speech-
based distinctions. In these cases, “where the government is providing a public service
that by its nature requires evaluations of, and distinctions based upon, the content of
speech,” the Supreme Court has “repeatedly rejected a heightened standard.” Stearns,
679 F. Supp. 2d at 1095 (citing Am. Library Ass’n, 539 U.S. at 204–05; Nat’l Endowment
for the Arts v. Finley, 524 U.S. 569, 580 (1998); Ark. Educ. Television Comm’n v.
Forbes, 523 U.S. 666, 672–73 (1998)).
10
For example, in Forbes, the Supreme Court noted that “the nature of editorial
discretion counsels against subjecting [public] broadcasters to claims of viewpoint
discrimination.” 523 U.S. at 673. “Much like a university selecting a commencement
speaker, a public institution selecting speakers for a lecture series, or a public school
prescribing its curriculum, a broadcaster by its nature will facilitate the expression of
some viewpoints instead of others.” Id. at 674. Applying heightened scrutiny to
broadcasting decisions, the Court found, “would risk implicating the courts in judgments
that should be left to the exercise of journalistic discretion.” Id. The Court reasoned that
scrutinizing a public station’s discretionary decisions would be particularly problematic
because “even principled exclusions rooted in sound journalistic judgment can often be
characterized as viewpoint based.” Id. at 673. 3
Similarly, in American Library, the Supreme Court upheld a federal statute that
required public libraries to install Internet filters to receive federal funding. 539 U.S. at
212–14. The Court recognized the mission of public libraries was to facilitate learning
and thus must have “broad discretion” to decide what material to include in their
facilities. Id. at 204. Thus, library staff “necessarily consider content in making
collection decisions and enjoy broad discretion in making them.” Id. at 205. Such
decisions did not constitute unlawful viewpoint discrimination.
3
Although the Court in Forbes ultimately concluded that a public television
station may not exclude candidates from public debates based on that candidate’s
viewpoint, the Court made clear that this holding rested on a “narrow exception”
presented by debates, which are fora for political speech and, therefore, must be analyzed
under public forum doctrine. 523 U.S at 675–76.
11
Finally in Finley, plaintiffs challenged a provision in the National Foundation on
the Arts and the Humanities Act of 1965, as amended and codified in relevant part at 20
U.S.C. § 954(d)(1). 524 U.S. at 572. This provision required the National Endowment
for the Arts “to ensure that ‘artistic excellence and artistic merit are the criteria by which
[grant] applications are judged, taking into consideration general standards of decency
and respect for the diverse beliefs and values of the American public.’” Id. (quoting 20
U.S.C. § 954(d)(1)). Plaintiffs argued “that the provision is a paradigmatic example of
viewpoint discrimination because it rejects any artistic speech that either fails to respect
mainstream values or offends standards of decency.” Id. at 580. The Supreme Court
disagreed, reasoning that the statute did not violate the Free Speech Clause because “the
Government may allocate competitive funding according to criteria that would be
impermissible were direct regulation of speech or a criminal penalty at stake.” Id. at
587–88. The Court noted that “content-based considerations” are simply “a consequence
of the nature of arts funding,” and that “absolute neutrality is simply inconceivable.” Id.
at 585 (internal quotation marks omitted). Thus, because determinations of “excellence”
are “inherently content-based,” the Court held that a government agency could make
content-based judgments in allocating competitive art funding. Id. at 586.
In perhaps the most closely analogous—albeit non-precedential—case, Stearns,
the court relied on Finley to point out that “[t]he Supreme Court has repeatedly rejected a
heightened standard where the government is providing a public service that by its nature
requires evaluations of, and distinctions based upon, the content of speech.” 679 F. Supp.
2d at 1095. There, several plaintiffs alleged that certain policies established by
12
University of California (“UC”) regarding prerequisite courses for admissions purposes
violated the Free Speech Clause because they were “used to routinely deny courses
submitted by religious high schools” for approval as satisfactory prerequisite courses. Id.
at 1088–89. The court found that, because “the government is providing a public benefit
that is allocated to a limited number of persons through a competitive process,”
heightened scrutiny was inappropriate. Id. at 1097–98. The court then applied rational
basis review, and upheld UC’s admissions standards. Id. at 1098. On appeal, the Ninth
Circuit expressly affirmed the district court’s reliance on Finley and rejection of
heightened scrutiny. Stearns, 362 F. App’x at 643.
We agree with the court in Stearns and find that Finley guides our analysis in this
case. “Like the government agency that must judge the excellence of prospective art
projects, [the CCBC] must judge the excellence of prospective students who apply for”
admission to its programs. See Stearns, 679 F. Supp. 2d at 1097. Just as UC was
“providing a public benefit that is allocated to a limited number of persons through a
competitive process,” see id., so, too, is the CCBC. In the present case, there are a finite
number of available slots open in the RTP program and the CCBC utilizes an interview
process in order to narrow down the best applicants for those slots. As is inherent in any
competitive interview process, this narrowing requires distinctions to be made based on
the speech—including the content and viewpoint—of the interviewee. Indeed, for an
interview process to have any efficacy at all, distinctions based on the content, and even
the viewpoint, of the interviewee’s speech during the interview is required. Would
Buxton argue that the defendants violated his right to free speech if they denied him
13
admission because he said, in his interview, that he views cancer as a punishment from
God that should not be treated? Such a statement is undoubtedly a “viewpoint.” And yet
that would be a perfectly valid reason to deny him admission to a program that trains
students to treat individuals with cancer. Cf. Keeton v. Anderson-Wiley, 664 F.3d 865,
867 (11th Cir. 2011) (holding that requiring a graduate student to complete a remediation
plan in order to participate in the university’s clinical counseling practicum because of
perceived “deficiencies in her ability to be a multiculturally competent counselor,
particularly with regard to working with gay, lesbian, bisexual, transgender, and
queer/questioning (GLBTQ) populations,” did not violate the student’s Free Speech
rights (internal quotation marks omitted)). The government must be able to take the
viewpoints expressed in an interview into consideration when choosing between
candidates in a competitive process.
Accordingly, we hold that the Free Speech Clause has no application in the
context of speech expressed in a competitive interview. This is not to say that
government discrimination in an interview room is immune from constitutional
protections, only that the proper review is not under the Free Speech Clause.
In reaching this holding, we acknowledge the Court’s observation in Finley that it
“ha[d] no occasion . . . to address an as-applied challenge in a situation where the denial
of a grant may be shown to be the product of invidious viewpoint discrimination.” Id. at
587. The Court pointed out that “[i]f the NEA were to leverage its power to award
subsidies on the basis of subjective criteria into a penalty on disfavored viewpoints, then
[the Court] would confront a different case.” Id. But, the Court did not identify what
14
kind of case it would confront, or from which constitutional provision the applicable
protection would originate. As the district court pointed out, “[c]onstitutional protection
against arbitrary government decisionmaking, and against ‘invidious discrimination,’
flows from the Equal Protection Clause of the Fourteenth Amendment, not the Free
Speech Clause of the First Amendment.” Jenkins, 2015 WL 1285355 at *21; see also
Levy v. Louisiana, 391 U.S. 68, 71 (1968) (“While a State has broad power when it
comes to making classifications, it may not draw a line which constitutes an invidious
discrimination against a particular class.” (citation omitted)). 4 Thus, it seems that the
Court in Finley was describing the possibility of future cases involving challenges based
on Equal Protection—not Free Speech. 5
Amici, Christian Legal Society and National Association of Evangelicals, fail to
recognize this distinction and point us to Schware v. Board of Bar Examiners, 353 U.S.
232 (1957), arguing that it supports a finding that the CCBC violated Buxton’s Free
Speech rights. In Schware, the Supreme Court held that membership in the Communist
4
Other constitutional protections—for instance the Free Exercise Clause, the Due
Process Clause, and the First Amendment’s implied right of free association—would no
doubt continue to apply to government discrimination in the context of an interview as
well.
5
We note that even if there were a First Amendment-based prohibition on
“invidious viewpoint discrimination” in the context of competitive admissions to
educational programs, it would not assist Buxton here. As we describe below, in
connection with Buxton’s Establishment Clause claim, Dougherty’s evaluation of
Buxton’s speech was related directly to the purpose of the program in question, intended
to screen for candidates with strong interpersonal skills and other relevant qualifications
rather than to impose a “penalty on disfavored viewpoints,” Finley, 524 U.S. at 585.
15
Party alone did not justify preventing Schware from taking the state bar exam. The Court
stated:
Obviously an applicant could not be excluded merely because he was a
Republican or a Negro or a member of a particular church. Even in
applying permissible standards, officers of a State cannot exclude an
applicant when there is no basis for their finding that he fails to meet these
standards, or when their action is invidiously discriminatory.
Id. at 239. Far from helping Buxton, however, this case confirms the point that the
appropriate cause of action in the present context is not under the Free Speech Clause.
Schware itself was not a Free Speech case; it was decided on Due Process grounds. See
id. at 238-40. Furthermore, each of the examples given in Schware of “obvious”
unconstitutional discrimination, find their constitutional protection in provisions other
than the Free Speech Clause. 6
In sum, Buxton fails to state a claim because the Free Speech Clause does not
protect speech expressed in an admissions interview from admissions consequences in a
competitive process. Although Buxton argues that this conclusion will open the door to a
wide range of discrimination against applicants for government programs or jobs, this
fear is misplaced. That the Free Speech Clause is not implicated in this narrow context
does not open the door to a parade of discriminatory horribles. Several constitutional
protections against discrimination remain in full force even in a competitive application
and interview process; the Free Speech Clause is simply not one of them.
6
Respectively, the First Amendment’s implied right of free association and/or the
Due Process Clause, the Equal Protection Clause, and the Free Exercise (or potentially
the Establishment) Clause.
16
B.
We now move to Buxton’s Establishment Clause claim. Framed as an
Establishment Clause violation, the appropriate test for this claim is found in Lemon v.
Kurtzman, 403 U.S. 602 (1971). For government conduct to survive scrutiny under the
Establishment Clause, (1) it must have a secular purpose; (2) its primary effect must
neither advance nor inhibit religion; and (3) it must not foster excessive entanglement
with religion. See id. at 612–13; Moss v. Spartanburg Cty. Sch. Dist. Seven, 683 F.3d
599, 608 (4th Cir. 2012). “State action violates the Establishment Clause if it fails to
satisfy any of these prongs.” Edwards v. Aguillard, 482 U.S. 578, 583 (1987). Because
Buxton has failed to show that the CCBC’s actions violated any of these prongs, the
district court’s grant of summary judgment was proper.
Applying the first prong of the Lemon test, we ask first whether the government’s
action was “driven in part by a secular purpose.” Moss, 683 F.3d at 608 (emphasis
removed). The secular purpose for Dougherty’s decision not to admit Buxton to the RTP
is clear from the record; Dougherty sought to identify the best qualified candidates, with
strong interpersonal skills, for a competitive admissions program and Buxton was not
among the best qualified candidates.
In a program with only 15 available seats, his application ranked 36th out of 44
candidates. On almost every metric the CCBC used to distinguish between potential
applicants, in 2013, Buxton ranked below average: tied for 21st in GPA; tied for 36th on
the writing sample; tied for 35th in observation day score; and finally, 33rd in interview
score. See J.A. 145. The only metric in which Buxton scored in the top 15 was the logic
17
exam, where he placed 7th. Dougherty also specifically noted that the interview panel
thought that Buxton “was not a good fit for this field” and “lacked interpersonal skills.”
J.A. 36.
Buxton argues that the determination that he lacked interpersonal skills was based,
at least in part, on the fact that he brought up religion during his interview. It is this
narrower act, the alleged penalization of applicants that refer to religion, that Buxton
argues must have a secular purpose in order to survive the first prong of Lemon.
However, even analyzing this narrower action, the secular purpose for
Dougherty’s actions remain clear. Using the topics someone chooses to bring up in a
conversation is a perfectly secular—and perfectly reasonable—metric for determining
that person’s awareness of social norms. Whether an individual brings up religion,
politics, their sex life, or their love of the New York Yankees, the topics broached by an
interviewee are fair, secular metrics for determining that person’s interpersonal skills.
The substance of the topic is not directly relevant; rather, it is the fact that they brought
up the topic at all that serves as a basis for the determination.
Dougherty’s written review of Buxton noted that he “brought up religion a great
deal during the interview.” J.A. 36. As Dougherty noted, her concern with Buxton
bringing up religion with frequency during the interview was that he would do the same
with patients. She believed that this would be problematic, as the topic of religion
“cannot be brought up in the clinic by therapist [sic] or students.” Id. Her concern was
neither unreasonable, nor remarkable, and logically translates to a concern about his
interpersonal skills as they relate to admission to the RTP.
18
Simply put, it was not Buxton’s religious belief that caused his low interview
score, but rather his choice of topic in the interview room that informed the committee’s
determination that he lacked interpersonal skills. This determination was “driven in part
by a secular purpose,” Moss, 683 F.3d at 608, and thus satisfies the first prong of Lemon.
Under the second prong of the Lemon test, we must determine whether the
government’s action has the principal or primary effect of advancing or inhibiting
religion. Moss, 683 F.3d at 608. Here, nothing about Dougherty or the RTP interview
committee using the topics discussed by interviewees as a means of determining their
level of interpersonal skills can be construed as inhibiting religion. This (quite common)
practice may affect the topics broached by interviewees to the RTP, but in no way
inhibits anyone’s religious belief or practice. As such, the second Lemon prong is
satisfied.
We need not dwell long on the third Lemon prong, excessive entanglement with
religion. Moss, 683 F.3d at 608. These cases typically deal with the risk of excessive
entanglement from the government’s “invasive monitoring” of certain activities in order
to prevent religious speech. See, e.g., Bd. of Educ. of Westside Cmty. Sch. v. Mergens ex
rel. Mergens, 496 U.S. 226, 253 (1990). No such monitoring is implicated by the
CCBC’s interview process, and thus, the third Lemon prong is satisfied.
Having satisfied all three of Lemon’s prongs, Dougherty’s actions do not violate
the Establishment Clause. Thus, we conclude that the district court properly granted
summary judgment in Dougherty’s favor on Buxton’s Establishment Clause claim.
19
III
For the foregoing reasons, the orders of the district court are
AFFIRMED.
20