I thought I'd ask list members what they thought of the opinion
in Buxton v. Kurtinitis, 2016 WL 3582004 (D. Md. June 28, 2016) (excerpted
below). I should note up front that it looks like there were many good reasons
why the plaintiff might have been rejected from the community college
vocational training program. My question, though, is whether the rationale
offered by the court - that college officials can assume that, when "an
applicant brought up his or her religion during an interview, he or she may
also bring it up in communications with a patient" - is permissible.
My tentative sense is that inferring a person's future bad behavior because he
talks about religion in an admissions interview (where such talk is not
forbidden) would be impermissible (even if empirically rational), just as
inferring a person's future bad behavior because he identifies himself as a
devout Muslim or Mormon or Catholic is impermissible. But I'd love to hear
what others think about this.
Also, what do people think of the footnote that the court
included following the "he or she may also bring it up" sentence: "Buxton
apparently is a Christian who practices his religion by going to church two
days a year - on Easter and Christmas." The judge (J. Frederick Motz) didn't
expressly rely on this as part of his argument, but he must have thought it
significant and relevant, or else he wouldn't have mentioned it. Is it quite
right for judges to essentially imply (unless I'm misunderstanding this) that
Christians who don't view church attendance as an important part of their
religiosity should have their arguments discounted on those grounds, or
otherwise be faulted by the government?
Here's the excerpt from the opinion:
Dustin Buxton has brought this action against Adrienne Dougherty, the Program
Director and Coordinator of Radiation Therapy at the Community College of
Baltimore County ("CCBC"). Buxton asserts two claims, one for violation of the
Establishment Clause of the First Amendment and the other for denial of equal
protection....
Buxton applied for admission in 2013 to the Radiation Therapy Program ("RTP")
at CCBC. He again applied to the Program in 2014. The RTP is a very competitive
program, and Dougherty limits the number of persons who can be accepted to the
Program by the number of positions that she believes will be available to
people who complete the Program. Buxton was ranked 36 out of 44 candidates in
2013. In 2014 he was not interviewed....
Dougherty recommended that if he was interested in reapplying to the RTP,
Buxton (1) complete a full week of observation in a new facility; (2) improve
his grades in the pre-requisite courses, and (3) seek assistance from CCBC
employee Linda Brothers to improve his interpersonal skills. Buxton did not
complete any additional observation days or seek assistance from Ms. Brothers.
He did, however, take the pre-requisite courses again and substantially
improved his scores.
In 2014 Buxton was one of 72 applicants for the RTP. Dougherty decided that
only 36, or half of the number of candidates, would be interviewed. The
interviewees for the 2014 round were ranked first by their observation day
score and then by GPA. This approach was caused by the fact that CCBC was
seeking candidates with the interpersonal skills necessary to interact with
patients. Dougherty subscribed a score of zero for the observation day to 10
candidates, including Buxton. Based on his ranking, Buxton did not receive an
interview for the 2014 RTP.
Buxton alleges that the only mention that he made of his faith and religion
during his 2013 observation day was an answer "My faith" in response to
question "What do you base your morals on?" Nevertheless, in a "feedback
statement" that she prepared (and that was shared with Buxton) Dougherty wrote
that he "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 therapists or students." Dougherty apparently made the assumption
that if an applicant brought up his or her religion during an interview, he or
she may also bring it up in communications with a patient....
This is not the stuff of an Establishment Clause or Equal Protection claim....
Dougherty had a secular purpose in making her assessment of Buxton: not to have
religious beliefs expressed to patients, who did not raise the issue. Likewise,
her actions did not have the primary effect of advancing or inhibiting religion
and of excessively entangling church and state. This is particularly true in
light of the fact that Dougherty had no difficulty in having someone discuss
religion with a patient if the patient raised the topic of religion.
Further, the record establishes that Buxton was one of four candidates who made
faith-based statements during the RTP admissions process, and two of those
candidates were graded favorably by Dougherty and selected for the RTP. Thus,
at a general level, it cannot be reasonably inferred that CCBC's RTP admissions
process disfavored candidates for mentioning religion during the admissions
process. Moreover, at the level of specifics, Buxton has failed to establish
that vis-à -vis any other candidates, he was treated unfavorably....
[Footnote:] Dougherty testified on deposition that even if Buxton had been
given a 7.2 score - the score he earned in 2013 - for his observation day
score, he still would not have been interviewed in 2014.
Eugene
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