Christian teacher fired over trans student names can sue

CHICAGO - A federal appeals panel will give an Indiana teacher another chance to sue his former employer for forcing him to call his transgender students by the names listed in the school's student enrollment database, over the teacher's objections based on his Christian faith.

Brownsburg High School orchestra director John Kluge said he believed his Christian faith prevented him from using first names conflicting with a student’s biological sex.

As an accommodation, he asked to use students’ last names “like a sports coach,” rather than the first names appearing in a school database.

After one year, students, teachers and parents complained, after which the school rescinded the accommodation. Given the choice of calling students by their first name or being fired, Kluge resigned before the 2018-2019 school year and filed a Title VII discrimination lawsuit.

Kluge is represented in the action by attorneys with the constitutional rights legal advocacy organization, the Alliance Defending Freedom.

Although Kluge initially lost in federal district court and at the U.S. Seventh Circuit Court of Appeals, a 2023 U.S. Supreme Court opinion, Groff v. DeJoy, increased the burden for employers to prove the hardships that come with denying a religious accommodation. The parties filed briefs discussing the impact on Kluge’s complaint and the Seventh Circuit vacated its earlier decision and remanded the complaint to district court.

U.S. District Judge Jane Magnus-Stinson again granted summary judgment to the school district, prompting Kluge to appeal.

Judge Michael Brennan wrote the majority opinion, filed Aug. 5; Judge Amy J. St. Eve concurred. Judge Ilana D. Rovner dissented.

When the case returned to Judge Magnus-Stinson, she didn’t reconsider his retaliation claim, looking only at whether the district met its burden of showing the hardships of exempting a teacher from its policy under the heightened standard.

“The court first concluded that Brownsburg’s ‘business’ was ‘educating all students,’ which the school asserted it achieved by ‘foster(ing) a safe, inclusive environment for all’ students,” Brennan wrote. “It continued that ‘two specific students were affected by’ Kluge’s accommodation, and that ‘other students and teachers complained.’ And last, the ‘emotional harm’ is ‘likely to be repeated each time a new transgender student joins’ Kluge’s class.”

Brennan noted Magnus-Stinson considered irrelevant “the larger orchestra department’s success during the 2017-2018 school year, and that other students ‘did not perceive any problems in’ Kluge’s classes. To the court, these facts were immaterial because if any number of students are affected, the school is unable ‘to meet the needs of all of its students.’ ”

The majority said Magnus-Stinson erred by defining the school district’s mission but also noted Kluge improperly relied on First Amendment principles that apply to students but not school employees. Still, even “assuming Brownsburg’s characterization of its mission, it still has not produced undisputed facts demonstrating an ‘excessive’ or ‘unjustifiable’ hardship on its mission of ‘fostering a safe, inclusive learning environment for all.’ ”

While agreeing concerns about student safety can establish undue hardship, Brennan noted “The record does not conclusively show that any student’s safety was in jeopardy. There were no allegations of threatened physical harm or verbal abuse. The only evidence from students centers on their discomfort. Specifically, that the accommodation made them feel ‘alienated, upset and dehumanized,’ and ‘made the classroom environment very awkward.’ ”

Groff requires an employer to show how an accommodation would result in substantial increased costs, Brennan noted, and the majority held “there is conflicting evidence” whether Kluge calling students only by their last names caused the emotional distress the students alleged.

“The transgender students said it was Kluge’s failure to abide by the accommodation and other students’ assumptions about the motivation behind it that added to their distress,” Brennan wrote.

But the record included other allegations regarding how Kluge spoke to and about students. Those “additional actions, beyond simply calling students by their last names, are disputed. Because of this factual dispute, whether the last-name-only accommodation and Kluge’s related actions were the cause of the students’ emotional distress is a question for the jury.”

In her dissent, Rovner said the majority’s decision “is setting a perilous precedent for employers” because it means no longer deferring “to an employer’s good-faith assessment of how an employee performed in the workplace” in a manner that bucks longstanding precedent, including by considering testimony proffered to third parties during litigation years after a precipitating employment decision.

“Without exception, we have always said that an employer’s honest, non-discriminatory assessment of its worker’s performance will carry the day, even if it strikes us as wrong-headed,” she wrote. “Today the court invites a jury to do what we have always said a federal court will not do, which is to sit as a super-personnel department and second-guess the employer’s good-faith reasoning.”

Brennan framed Rovner’s position as shielding employers from liability even if relying on incorrect information.

“Even if the students suffered subjective emotional injury, those injuries must be objectively reasonable to rise to the level of undue hardship,” Brennan wrote. “Other areas of education and employment law, including in the Title VII context, routinely require some form of objective harm — not just subjective emotional distress.”

The majority also held Brownsburg didn’t adequately show how granting Kluge’s accommodation would expose it to an unreasonable risk of Title IX liability and said there was a material dispute over the sincerity of Kluge’s belief. The school’s only argument on that point was an awards ceremony at which Kluge used first names the students had registered in PowerSchool. Kluge called his choice a “good faith effort” for “such a formal event” and said he still felt using the names was “sinful.”

Brennan said the court would not revisit Kluge’s claim the district retaliated against him, noting that in a supplemental briefing he stated “Groff does not speak” to that claim, which constituted a waiver of the right to press that issue. The majority reversed the summary judgment Judge Magnus-Stinson granted to the district and remanded the complaint for further proceedings on the degree of hardship the district would face for retaining Kluge’s accommodation while granting her discretion on whether to reopen discovery.

Rovner also disagreed with the majority’s position on Brownsburg’s mission statement, noting “many employers will be surprised to learn that their ability to define their own missions is restricted to formal policies prepared long before an employment dispute arrives in court.” She further noted the importance of the district putting Kluge’s requested accommodation in place as opposed to litigation where the employer rejects a request from the outset.

The district, she wrote, “allowed events to play out over a period of four months with the accommodation in place, and rescinded the accommodation only after it had the opportunity to see how well Kluge performed under the accommodation and what effects the accommodation had on his students, his fellow teachers, and on the learning environment generally. Just as it would in making any other employment decision, Brownsburg heard from multiple sources in making these assessments: teachers, staff members, students, and parents. It necessarily had to evaluate the plausibility and relevance of each bit of information reported to it. To the extent accounts conflicted, it had to make credibility judgments. And it had to weigh what it was hearing about Kluge’s last-names-only practice in light of its mission as an educational institution, its duty to the students in its care and custody, and its accountability to parents and to the broader community. These were not easy assessments to make, and they were necessarily informed by the experience and expertise of Brownsburg’s leadership, the policies it had developed with respect to transgender students, its familiarity with the school’s staff and student body, and its history and relationship with the community.”

Rovner also said she believed the district, as a matter of law, met the new Groff hardship standard. She noted many Title VII accommodation requests, such as not being scheduled to work certain days, involve decisions that don’t implicate a colleague’s civil rights. But schools have different legal obligations to staff and students, as well as to the larger community, she noted, adding she agreed with the district’s concerns about potential litigation under Title IX and other avenues.

“Given the undisputed facts before us, Brownsburg did not discriminate against Kluge on the basis of his religion,” Rovner wrote. “It did what it could do to accommodate Kluge, and it rescinded the accommodation to his religious beliefs only after it proved harmful and disruptive in practice. The consequences of the accommodation were ‘excessive’ and ‘unjustifiable.’ There is nothing here for a jury to decide. Brownsburg is entitled to summary judgment, and the district court’s judgment should be affirmed.”

Following the ruling, Alliance Defending Freedom's senior counsel and vice president of U.S. litigation, attorney David Cortman said: “Title VII requires the government to accommodate its employees’ freedom to live and work according to their religious beliefs. The Brownsburg school district ignored this right, deciding instead that Mr. Kluge’s religious views couldn’t be tolerated. It revoked his religious accommodation based on the complaints of a few, forcing him to resign or be fired.

"We look forward to proving at trial that Brownsburg discriminated against Mr. Kluge," Cortman said.