Free Speech

Was Church Excluded from Maryland School Choice Program Because of "Problematic" Views on Marriage?

That's the question in a First Amendment lawsuit, which a federal judge has allowed to go forward.

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From Thursday's opinion by Judge Stephanie A. Gallagher in Bethel Ministries, Inc. v. Salmon (D. Md.):

The facts are derived from Bethel's Complaint, and are accepted as true for purposes of this Motion. All reasonable inferences to be drawn therefrom are drawn in Bethel's favor….

Bethel is a Pentecostal Christian Church located in Savage, Maryland. As part of the Church's mission, it operates Bethel Christian Academy, a private school for students in preschool through eighth grade. Bethel is "unabashedly Christian," and outwardly shares its Christian beliefs with prospective applicants.

Bethel summarizes its religious beliefs and related practices in its Parent/Student Handbook. The handbook contains a "statement of nondiscrimination," which states, in relevant part, that Bethel "does not discriminate on the basis of race, color, national and ethnic origin in administration of its educational policies, admissions policies, scholarship and loan programs, and athletic and other school-administered programs." Bethel does not include sexual orientation or gender identity in its statement of nondiscrimination. In the next paragraph, the handbook says, "It should be noted, however, that Bethel Christian Academy supports the biblical view of marriage defined as a covenant between one man and one woman, and that God immutably bestows gender upon each person at birth as male or female to reflect his image … faculty, staff, and student conduct is expected to align with this view."

Irrespective of any language in the handbook, Bethel does not consider sexual orientation in the admissions process. Admissions at Bethel is a competitive process based on a formal entrance exam, an evaluation of previous grades, and a pre-enrollment interview. Once students are admitted, the school's policies apply equally, regardless of a student's sexual orientation or sexual attraction. For example, the student conduct policy prohibits any communication of a sexual nature and any harassment, physical contact, or public displays of affection….

Maryland's legislature established the BOOST program in 2016, and has reauthorized funding in each subsequent year…. BOOST provides scholarships for students to attend nonpublic schools in Maryland. However, only students that are eligible for the free or reduced-price lunch program may receive scholarships.

Additionally, scholarships can be used only at schools that meet certain eligibility requirements. Participating schools must sign an assurance stating that they "will not discriminate in student admissions on the basis of race, color, national origin, or sexual orientation." Even so, the nondiscrimination requirement explicitly states that schools are not required "to adopt any rule, regulation, or policy that conflicts with its religious or moral teachings." Bethel signed the assurance, and started participating in BOOST during the program's inaugural year. Ultimately, seventeen Bethel students received BOOST scholarships for the 2016-2017 academic year, and the number increased to eighteen students for the 2017-2018 academic year.

In the fall of 2017, MSDE began investigating participating schools to verify their compliance with the nondiscrimination requirement. When MSDE specifically requested that schools provide their student handbook, Bethel sent its Parent/Student handbook for the 2017-2018 academic year. Throughout the first half of 2018, Bethel corresponded with MSDE about its handbook and related admissions practices. For example, on March 5, 2018, MSDE asked Bethel how its statement on marriage and biological sex was consistent with the school's assurance that it does not discriminate in admissions based on an applicant's sexual orientation. Bethel responded with a letter, on March 13, 2018, explaining that the school does not consider sexual orientation in admissions, and that all students are forbidden from engaging in any sexual conduct. Bethel has reiterated numerous times to MSDE and to the Advisory Board that it complies with their nondiscrimination provision.

The Advisory Board met on May 3, 2018 to discuss Bethel's eligibility for BOOST. At this meeting, Board Member Matthew Gallagher … made several derisive comments about Bethel and its views. For example, he described the school's view of marriage as "problematic" and suggested that its policy on biological sex violated the nondiscrimination provision. After the May 3 meeting, Defendants requested more information from the school. In response to a follow-up letter from MSDE, Bethel stated that any student who can meet its academic standards is welcome to join the community, regardless of religious beliefs, same-sex attraction, beliefs about marriage, or beliefs about sexual morality.

On June 21, 2018, the Advisory Board met again to consider Bethel's eligibility for BOOST. Without stating a reason for doing so, the Advisory Board members went into closed session. In fact, Defendant Gallagher noted that, prior to the June 21 meeting, the Board had not gone into closed session for three years. Following the closed session, the Advisory Board members voted to exclude Bethel from the BOOST program. On the same day, they voted to deem Broadfording Christian Academy and Grace Academy eligible for BOOST, even though both schools shared Bethel's beliefs and policies on marriage and sexual conduct. On December 12, 2018, MSDE sent a letter (1) notifying Bethel that it was disqualified from BOOST for the 2018-2019 and 2019-2020 academic years, and (2) demanding repayment of $102,600, for the years Bethel had participated in the program. Due to this disqualification, and the resulting lack of funding, at least six students were forced to leave Bethel. Moreover, other families were left scrambling to find alternate sources of financial aid….

Bethel has plausibly alleged that Defendants violated several of its First and Fourteenth Amendment rights in the course of deeming the school ineligible for BOOST. The nondiscrimination provision passed by the Maryland legislature states, in relevant part, that schools participating in BOOST cannot discriminate on the basis of sexual orientation "in student admissions." Critically, Bethel has consistently maintained that the school does not discriminate in student admissions on the basis of sexual orientation. The Advisory Board corresponded with Bethel for more than a year about its admissions process and, specifically, about whether the school was compliant with BOOST's nondiscrimination requirement. Bethel explained, in several written responses, that it does not consider sexual orientation or sexual attraction when evaluating applications for admission.

In fact, Defendants have not identified any student that Bethel has discriminated against in admissions on the basis of sexual orientation. As such, Bethel alleged in its complaint—which this Court accepts as true at this stage—that it "has not, and will not, discriminate against a student in admissions based on an applicant's sexual orientation." Despite these assertions, Defendants voted to deem Bethel ineligible for BOOST, based on a perceived lack of compliance with the nondiscrimination provision.

If, as it alleges, Bethel has not discriminated on the basis of sexual orientation in admissions, then it has plausibly alleged that Defendants infringed upon several of its constitutional rights. Namely, Bethel has presented a plausible case that the Advisory Board's determination of ineligibility was motivated by the school's religious affiliation. Bethel is "unabashedly Christian," and has invoked Christian values in all of its materials that are distributed to prospective applicants and their families. Bethel has plausibly alleged that Defendants deemed it ineligible for BOOST not because of evidence of discrimination in admissions, but because of this Christian identity.

In other words, it is plausible that the Advisory Board, in determining that Bethel violated the nondiscrimination provision, unjustly conflated the school's religious beliefs with discriminatory behavior. This possibility is evinced by the Advisory Board's decision to consider Bethel's eligibility in a closed session, a maneuver that Bethel alleges was a departure from normal procedures.

If the Advisory Board was in fact motivated by Bethel's religious affiliation, then Defendants took several actions that may have infringed upon its First and/or Fourteenth Amendment Rights. For instance, the Complaint alleges that Defendants sent Bethel a document containing examples of how the school might revise its handbook language to retain BOOST eligibility…. Bethel has plausibly alleged that Defendants regulated the text of the handbook based on its religious character and content. When the government imposes a financial burden on entities because of the content of their speech, such an action may infringe upon their Free Speech rights under the First Amendment. See, e.g., Agency for Int'l Dev. v. Alliance for Open Soc'y Int'l, 570 U.S. 205, 214 (2013).

Additionally, … Bethel has plausibly alleged that Defendants discriminated against it because of the school's religious beliefs, in violation of its rights under the Equal Protection Clause…. Defendants concede that two other schools, Broadfording Christian Academy and Grace Academy, were deemed eligible for BOOST on the same day that Bethel was deemed ineligible. Moreover, according to the Complaint, Broadfording Academy, Grace Academy, and Bethel all have similar beliefs and policies on marriage and sexual conduct. As such, Bethel alleges that Defendants treated its school differently, without any justification. {It is not obvious at this stage whether Defendants discriminated against Bethel and, if so, whether any such discrimination was based on religion or on a different characteristic. Thus, it is unclear whether strict scrutiny or rational basis review would apply. However, Bethel has made its required showing at this stage, regardless of the level of scrutiny.}

For similar reasons, Bethel has met its burden with respect to the other counts in the Complaint. The Complaint provides several examples in which Bethel made clear that sexual orientation is not considered in its admissions process. As noted above, in ruling on Defendants' Motion to Dismiss, this Court must take as true that Bethel has not discriminated in admissions on the basis of sexual orientation, and thus, must reasonably infer that Bethel has complied with the nondiscrimination provision enforced by Defendants.

Accordingly, Bethel has pled facts amounting to a plausible showing that Defendants deemed the school ineligible for BOOST because of its religious affiliation, thereby depriving it of rights under the Free Exercise Clause …, Due Process Clause for vagueness …, Due Process Clause for interference with parental rights …, and the Establishment Clause ….