Civil Rights – Applicant Had No ‘Free Speech’ Right

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Buxton v. Kurtinitis (Lawyers Weekly No. 001-151-17, 20 pp.) (Floyd, J.) No. 16-1826, July 7, 2017; USDC at Baltimore, Md. (Motz, J.) 4th Cir.

Holding: Although the director of admissions for a community college radiation therapist program said plaintiff applicant “brought up religion a great deal during the interview” for admission to the program, plaintiff does not have a First Amendment retaliation claim arising from his rejection based on a multi-factor analysis of applicants; the 4th Circuit affirms dismissal of the suit.

Free Speech

Most First Amendment retaliation claims arise in the public employment context. Here, it is clear that plaintiff’s speech in the interview room was a matter of personal interest: his admittance to the program. He was not a public employee, nor was he interviewing to be one. The district court properly found that this line of cases was inapplicable to the present case. In Locke v. Davey, 540 U.S. 712 (2004), the Supreme Court already has rejected efforts to force claims like plaintiff’s into the public forum framework.

Plaintiff 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.

We hold that the Free Speech Clause has no application in the context of speech expressed in a competitive interview. Plaintiff 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. 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.

Religion Reference

The appropriate test for plaintiff’s Establishment Clause claim is found in Lemon v. Kurtzman, 403 U.S. 602 (1971). We first ask whether the government’s action was driven in part by a secular purpose. The secular purpose for the decision not to admit plaintiff to the program is clear from the record: the director sought to identify the best qualified candidates, with strong interpersonal skills, for a competitive admissions program and plaintiff 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 college used to distinguish between potential applicants, in 2013, plaintiff ranked below average. The only metric in which he scored in the top 15 was the logic test, where he placed 7th. The director specifically noted the interview panel thought plaintiff “was not a good fit for this field” and “lacked interpersonal skills.” 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. It was not plaintiff’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.

Nothing about the committee using topics discussed by interviewees as a means of determining their level of interpersonal skills can be construed as inhibiting religion. And there was no “excessive entanglement” with religion. Having satisfied all three prongs of Lemon, defendant’s actions do not violate the Establishment Clause.

Judgment for defendants affirmed.