How much free-speech protection does a college applicant have? This federal court says: Zero.



In a troubling ruling, a federal district court says college admission decisions are essentially impervious to free-speech challenges -- even if the college admits that it rejected an applicant based on the religious views expressed in his interview.

Brandon Jenkins sued the Community College of Baltimore County for refusing to admit him to a radiation therapist degree program because he made a remark during his admissions interview indicating that he is religious. 

But on March 20, U.S. District Judge Ellen Lipton Hollander threw out Jenkins' free-speech claim, finding that the college could lawfully discriminate based on the applicants' viewpoints -- even though the First Amendment normally disfavors viewpoint-based preferences. 

The case began in April 2013, when five college employees interviewed Jenkins to assess his application. During the interview, Jenkins was asked "what is the most important thing to you," and he answered: "My God." According to Jenkins' lawsuit, that was the only time religion came up.

Although the college had non-speech-based reasons for rejecting Jenkins -- he had a criminal record that, the evaluators believed, would limit his chances of finding employment in the field -- a college administrator sent Jenkins a smoking-gun email acknowledging that his mention of religion was held against him:

I understand that religion is a major part of your life and that was evident in your recommendation letters, however, this field is not the place for religion. We have many patients who come to us for treatment from many different religions and some who believe in nothing at all. If you interview in the future, you may want to leave your thoughts and beliefs out of the interview process.

While that remark alone should have gotten Jenkins in front of a jury -- to decide whether, even in the absence of the unlawful speech-motivated reason, the college would have rejected him anyway -- Judge Hollander pulled the plug and granted the college's motion to dismiss the free-speech claim.

Judge Hollander said colleges must be free to consider applicants' viewpoints -- otherwise, CCBC could not have rejected Jenkins even if he said something reflecting obvious unfitness for the profession (for instance, that he would treat only children and not adults). But the analogy does not hold. 

In the context of employment discrimination, it's legal to discriminate if the viewpoint or the religious belief is itself an essential job qualification. Churches don't have to hire clergy who don't believe in God. Democratic officeholders can reject even the best-credentialed Republican aides. That is, at the very least, the burden that the college should have been required to satisfy here: To show that enthusiastically religious people are disqualified from being radiation therapists.

Judge Hollander purported to be relying on a 2009 ruling from a California district court, Association of Christian Schools International v. Stearns, that found no First Amendment violation when a public university refused to afford applicants credit for religion classes they took at private Christian high schools.

But that case doesn't support the Jenkins result. In the Stearns case, the court did find that a viewpoint-discriminatory college admission decision can violate the First Amendment, but concluded that the college had justified the decision with a legitimate, educationally based reason having nothing to do with hostility to religion. Judge Hollander's ruling indicates that no justification is necessary, and that even an unreasonable and viewpoint-discriminatory rejection is immune from a free-speech challenge.

The judge explicitly left undecided the more important question of whether the Constitution forbids viewpoint-based admission decisions when the speech addresses a political issue. It was unnecessary to decide that larger issue, because Jenkins' speech addressed purely private, personal matters. But the court's conclusion -- "the Free Speech Clause does not prohibit content-based or viewpoint-based decisionmaking in competitive admissions processes" -- opens the door for mischief. Now that viewpoints are more transparent and more easily detected by admissions committees than ever before -- thanks, Mark Zuckerberg -- colleges predictably will take the court's invitation to "ding" applicants who seem like potential boat-rockers.

As worrisome as Judge Hollander's conclusions are, an appeal may be years off -- or, more probably, will never occur. That's because the judge refused to dismiss Jenkins' alternative claim that the rejection violated the Establishment Clause of the First Amendment by establishing a preference for non-religion over religion.

The judge was persuaded to allow Jenkins to proceed because his evidence showed that the college changed its story on the importance of his criminal record -- first reassuring him it was no problem and encouraging him to apply, then citing the arrests as a disqualifier only after Jenkins sued. That was enough, the judge found, for a jury to disbelieve the college and infer religious discrimination.

Because Jenkins still has a case, he cannot appeal the free-speech ruling now. And because Jenkins still has a case, the college will be motivated to settle. If that happens, the district court's errant ruling will remain on the books unchallenged. 

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