The Volokh Conspiracy

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Peculiar Religious Discrimination

A charter school seeking contractors to provide art instruction can't exclude companies just because their web site has religious references.


From Judge Otis Wright's opinion Tuesday in Our Peculiar Family v. Inspire Charter Schools (C.D. Cal.):

Plaintiffs are a religious, family-run business offering art instruction "to individuals ranging in age from nine to adult." Plaintiffs promote their art lessons on their website. "Although Plaintiffs express their religious identity in their website, the services they provide are nonsectarian." The following is one example of religious content on Plaintiffs' website:

"We have come to realize that our eyes see beauty that others sometimes miss. In that beauty we see purpose and meaning. From a decrepit old building or the many colors found on a rusty old car, to the barren stillness of our desert valley to a wondering child's face, we believe the world around us reflects the beauty and glory of its Creator."

Inspire operates charter schools throughout California, receives public funding, and "partner[s] with vendors in providing students with various products and services." Jones is employed by Inspire as the "Vendor Support Team Lead." "Vendors who are approved enter into a private contractual relationship with Inspire, but do not provide outsourced governmental functions as independent contractors." To be approved as a vendor, applicants must complete Inspire's application survey.

In August 2019, Plaintiffs completed one such survey, attempting to contract with Inspire to provide art instruction. Plaintiffs then received an email from Jones rejecting the application, stating "the services appear to be religious in nature or have religious inclinations." After Plaintiffs asked for clarification, Jones responded that the "decision was based upon the content included on your website." He continued: "All services and content on websites must be secular in nature for a vendor to be eligible for enrichment funds."

After Plaintiffs requested clarification concerning what content was preventing approval of their application, Jones advised that Plaintiffs must remove Bible verses and references to "the Creator" on their website to have their application approved. Jones later advised that "[i]f all services are secular and [i]f you were willing to remove this content from your website, we could continue the approval process." ….

Plaintiffs' version of the facts, taken in a light most favorable to Plaintiffs and reading the [Complaint] liberally, sets out a violation of Plaintiffs' First Amendment rights.

Plaintiffs applied to provide nonsectarian art instruction to Inspire and Jones rejected that application due to religious content on Plaintiffs' website. Jones then conditioned Plaintiffs' eligibility to contract with Inspire on removing this content from the website, regardless of any potential impact the content may have on Plaintiffs' art instruction.

Defendants maintain that denial of Plaintiffs' application was permissible due to California Education Code section 47605(d)(1), which provides in part: "In addition to any other requirement imposed under this part, a charter school shall be nonsectarian in its programs, admission policies, employment practices, and all other operations." In other words, Defendants argue that their obligation to be "nonsectarian" in administering a school program required them to exclude any vendor that publicly espoused religious views. Defendants are incorrect. Trinity Lutheran Church of Columbia, Inc. v. Comer, (2017).

In Trinity Lutheran, Missouri instituted a nonprofit grant program to replace playground surfaces. Missouri's Department of Natural Resources had a "strict and express policy of denying grants to any applicant owned or controlled by a church, sect, or other religious entity." Id. Missouri thus denied Trinity Lutheran's application solely because it was a church. The Supreme Court concluded that Missouri had violated the Free Exercise Clause of the Constitution because it had expressly discriminated against Trinity Lutheran based on its status as a religious organization. The Supreme Court concluded, "the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution … and cannot stand."

Defendants' policies here are even more preclusive than the unconstitutional policies in Trinity Lutheran. Not only do Defendants' policies exclude all churches from providing services, they apparently preclude all services by any potential vendor with religious statements on their website. Defendants do not explain how institution of such a categorical requirement is in keeping with their obligation to facilitate "nonsectarian" services, nor do they offer facts to support that Plaintiffs' application implicated Establishment Clause concerns.

Instead, without addressing controlling Supreme Court precedent or offering authority of their own, Defendants maintain that by allowing Plaintiffs "to become an approved vendor without modifying its website to remove sectarian references, Inspire could potentially be favoring plaintiffs' religious views in violation of the No Preference and Establishment Clauses." The Supreme Court in Trinity Lutheran rejected similarly vague citation of religious establishment concerns, stating that "[i]n the face of the clear infringement on free exercise before us, that interest cannot qualify as compelling." And like in Trinity Lutheran, the policy here "expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character" and therefore "imposes a penalty on the free exercise of religion that triggers the most exacting scrutiny." …

I think the charter school could require that contract art teachers not include religious messages in their lessons; the teachers would be viewed as speaking on the school's behalf, and could be told by the school to teach the way the school wants. But the school can't exclude such teachers because their out-of-school speech is religious.