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Kluge v. Brownsburg Community School Corp.

United States District Court, S.D. Indiana, Indianapolis Division

January 8, 2020

John M. Kluge, Plaintiff,
v.
Brownsburg Community School Corporation, James Snapp, Phil Utterback, Jodi Gordon, and Bret Daghe, Defendants.

          ORDER

          HON. JANE MAGNTTS-STINSON, CHIEF JUDGE

         John M. Kluge, a former music and orchestra teacher at Brownsburg High School (“BHS”), filed this action against Brownsburg Community School Corporation (“BCSC”) and several of its employees, alleging that he was discriminated against and ultimately forced to resign because his sincerely-held religious beliefs prevented him from following a school policy that required him to address transgender students by their preferred names and pronouns. [Filing No. 15.] Defendants have filed a Motion to Dismiss all of Mr. Kluge's claims. [Filing No. 44.] In addition, Indiana Youth Group, Inc. (“IYG”), an organization that supports LGBTQ youth in Indiana, has moved to intervene as a defendant in this action, [Filing No. 22], and has sought leave to file its own motion to dismiss, [Filing No. 55]. These motions are now ripe for the Court's decision.

         I. Defendants' Motion to Dismiss A. Standard of Review

         The Federal Rules of Civil Procedure require only a “short and plain statement of the claim showing that the pleader is entitled to relief.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Fed.R.Civ.P. 8(a)(2)). To that end, the complaint need only provide the defendant with “fair notice of what the . . . claim is and the grounds upon which it rests.” Erickson, 551 U.S. at 93 (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007)) (internal quotation marks omitted). In order to survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the complaint must contain allegations that collectively “state a claim to relief that is plausible on its face.” Id. (internal quotations omitted) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).

         In reviewing the sufficiency of a complaint, the Court must accept all well-pled facts as true and draw all permissible inferences in favor of the plaintiff. Alarm Detection Sys., Inc. v. Vill. of Schaumburg, 930 F.3d 812, 821 (7th Cir. 2019). This review is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Munson v. Gaetz, 673 F.3d 630, 633 (7th Cir. 2012).

         B. Background

         Consistent with the standard of review described above, the following allegations from Mr. Kluge's Amended Complaint are accepted as true for purposes of deciding Defendants' Motion to Dismiss. The allegations in this section are those common to all of Mr. Kluge's claims, and his additional, claim-specific allegations will be recounted as necessary in relation to each of his claims below.

         Mr. Kluge became employed by BCSC as a music and orchestra teacher at BHS in August of 2014, and throughout his employment has received positive performance evaluations and met and exceeded BCSC's legitimate expectations. [Filing No. 15 at 5.] His students have received multiple awards for their musical performances. [Filing No. 15 at 6.]

         Mr. Kluge “is a professing evangelical Christian who strives to live by his faith on a daily basis, ” and has practiced that faith since before he was employed by BCSC. [Filing No. 15 at 5-6.] His “faith governs the way he thinks about human nature, marriage, gender, sexuality, morality, politics, and social issues, and it causes him to hold sincerely-held religious beliefs in these areas” that are “drawn from the Bible.” [Filing No. 15 at 6.] Specifically, “Mr. Kluge believes that God created mankind as either male or female, that this gender is fixed in each person from the moment of conception, and that it cannot be changed, regardless of an individual's feelings or desires.” [Filing No. 15 at 6.] “Mr. Kluge also believes he cannot affirm as true ideas and concepts that he deems untrue and sinful, as this would violate Biblical injunctions against dishonesty, lying, and effeminacy.” [Filing No. 15 at 7.]

         During the summer of 2017, BCSC began to allow transgender students and students experiencing gender dysphoria[1] to use the restroom of their choice and to change their names and genders in the BCSC database known as PowerSchool. [Filing No. 15 at 7.] Name changes in the PowerSchool database required a letter from the student's parent(s) and a letter from a healthcare professional. [Filing No. 15-4.][2] BCSC employees, including Mr. Kluge, were instructed to refer to students using the names and genders listed in the PowerSchool database, which Mr. Kluge believes constitute preferred names “based upon the students' gender dysphoria.” [Filing No. 15 at 7; Filing No. 15-4 at 6.]

         In July 2017, Mr. Kluge informed BCSC Superintendent Dr. James Snapp that the requirement that he use the students' names as listed in PowerSchool (“the Policy”) conflicted with his religious beliefs against affirming gender dysphoria, and Dr. Snapp responded that Mr. Kluge could either “use the transgender names, say he was forced to resign from BCSC, or be terminated without pay.” [Filing No. 15 at 7-8.] Because Mr. Kluge refused to use the names listed in PowerSchool, Dr. Snapp initiated an administrative leave of absence for Mr. Kluge and Dr. Bret Daghe, the principal of BHS, “issued Mr. Kluge an ultimatum . . . mandating the use of transgender preferred names, and giving Mr. Kluge [three days] to decide if he would comply.” [Filing No. 15 at 8.] Mr. Kluge then requested “an accommodation for his religious beliefs, ” and proposed the solution of “addressing all students by their last names only, similar to a sports coach.” [Filing No. 15 at 8.] Dr. Snapp and Jodi Gordon, the BCSC Human Resources Director, agreed in writing to allow Mr. Kluge to address all students by their last names only (“the last-names-only arrangement”) and assigned someone to distribute gender-specific uniforms to students so Mr. Kluge would not have to. [Filing No. 15 at 8; Filing No. 15-1.] Despite this agreement, the school board retroactively administered a two-day suspension in response to Dr. Snapp's previous action. [Filing No. 15 at 8.]

         On December 13, 2017, Mr. Kluge met with Dr. Daghe, at which time Dr. Daghe informed Mr. Kluge that the last-names-only arrangement had created “tension” and that Mr. Kluge should resign by the end of the school year. [Filing No. 15 at 9.] However, Mr. Kluge alleges that the last-names-only arrangement created no undue hardship for Defendants, and no Defendant identified in writing any undue hardship that was purportedly caused. [Filing No. 15 at 9.] Instead, he asserts, “nothing dramatic occurred” between July and December 2017, and there were no student protests, written complaints, classroom disturbances, or cancelled classes. [Filing No. 15 at 9.] Instead, that last-names-only arrangement “worked as intended and Mr. Kluge's students excelled, ” with his extra-curricular program experiencing “record numbers of participation” and his students winning awards and gold ratings. [Filing No. 15 at 9.]

         According to Mr. Kluge, “Defendants simply decided not to accommodate or tolerate [his] sincerely-held religious beliefs any longer, ” and Ms. Gordon informed him that the last-names-only arrangement was being withdrawn because “students were offended at the use of last names.” [Filing No. 15 at 9-10.] Mr. Kluge asserts that Ms. Gordon provided no evidence that students were offended and maintains that he “never told his students why he was referring to them by their last names.” [Filing No. 15 at 10.] Mr. Kluge again attempted to explain “that he believes encouraging students to present themselves as the opposite sex by calling them an opposite-sex first name is sinful and potentially harmful to the students, ” but Ms. Gordon advised him that he could either resign by May 1, 2018 and be paid over the summer or be fired without pay. [Filing No. 15 at 10.] He states that Defendants' contentions that the last-names-only arrangement created tension or offended students were not based in fact but were simply pretexts for religious discrimination. [Filing No. 15 at 14.]

         Mr. Kluge alleges that Ms. Gordon “agreed that he could submit a conditional resignation” and agreed that his resignation, which he submitted on April 30, 2018, “would not be processed or shown to anyone, including any administrator, until May 28, 2018.” [Filing No. 15 at 10-11.] On May 25, 2018, Mr. Kluge delivered a time-stamped rescission of his resignation, and, despite receiving the rescission, Ms. Gordon “processed” Mr. Kluge's resignation anyway. [Filing No. 15 at 11.] Mr. Kluge alleges that when Defendants told him that he could submit a conditional resignation, then accepted his conditional resignation, “they had no intention of honoring the conditions he attached to his resignation, but instead planned on treating [his] resignation as unconditional upon receipt and claiming that he voluntarily resigned his position.” [Filing No. 15 at 11.] BCSC and the School Board accepted Mr. Kluge's resignation as if it was submitted unconditionally. [Filing No. 15 at 11.] On May 25, 2018, Defendants locked Mr. Kluge out of all BCSC buildings, revoked his access to the school's internet, and posted his job as vacant. [Filing No. 15 at 12.]

         Mr. Kluge alleges that most of BCSC's policies and practices relating to students with gender dysphoria are “informal and unwritten.” [Filing No. 15 at 12.] Furthermore, he asserts that the policies provide “few objective guidelines, standards, or criteria for school employees . . . to use when deciding what constitutes gender dysphoria or gender discrimination, thereby granting Defendants overbroad discretion to restrict expression.” [Filing No. 15 at 12.] He states that, at a faculty meeting in early 2018, BCSC distributed an 11-page document titled “Transgender Questions, ” which identifies BCSC's policies regarding transgender students and provides answers to questions submitted by faculty members. [Filing No. 15 at 12.] That document is attached to the Amended Complaint. [Filing No. 15-4.] According to Mr. Kluge, no earlier written policy with the same title was issued. [Filing No. 15 at 12.]

         Mr. Kluge asserts that the “Transgender Questions” policy is “vague and overbroad in many respects, ” and cites as an example the fact that the policy allows “fully transitioned” students to use the dressing room of their chosen gender but does not define “fully transitioned” or instruct faculty as to whether to require some proof from a student who claims to be “fully transitioned” or simply take the student's word. [Filing No. 15 at 12-13.] Mr. Kluge also points out that the policy instructs faculty to use names that the “students choose as part of their gender dysphoria” and quotes the following information from the policy, in question and answer format:

Are we allowed to use the student's last name only?
We have agreed to this for the 2017-2018 school year, but moving forward it is our expectation that the student will be called by the first name listed in PowerSchool;
Can teachers refuse to call the student by his/her preferred name?
Staff members need to call students by name in PowerSchool;
How do teachers break from their personal biases and beliefs so that we can best serve our students?
We know this is a difficult topic for some staff members, however, when you work in a public school, you sign up to follow the law and the policies/practices of that organization and that might mean following practices that are different than your beliefs.

[Filing No. 15 at 13-14; Filing No. 15-4 at 9-10.] According to Mr. Kluge, the “Transgender Questions” document establishes that BCSC's “formal policy was not to allow [Mr.] Kluge's last-name only accommodation-not because it created any undue hardship but because it violated the policy.” [Filing No. 15 at 14.]

         Mr. Kluge asserts that all of Defendants' formal and informal policies concerning transgender students “attempt to regulate and compel the expression of individual faculty members . . . beyond any quantifiable need in educating students.” [Filing No. 15 at 15.] He alleges that “Defendants, by policy and practice, apply their speech code policies to regulate all interactions faculty members have with students in the classroom or within the school.” [Filing No. 15 at 15.] He asserts that “Defendants' directive . . . that he either communicate [BCSC's] ideological message regarding gender dysphoria, resign, or be fired” left him to make an “untenable choice” between following his sincerely-held religious beliefs or maintaining his employment, and that Defendants' removal of his “successful” last-names-only arrangement based on the alleged complaints of students “does not amount to hardship, but is an impermissible ‘heckler's veto.'”[3] [Filing No. 15 at 15.]

         Based on these allegations, Mr. Kluge asserts thirteen claims for relief: (1) religious discrimination based on failure to accommodate under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; (2) retaliation under Title VII; (3) hostile work environment under Title VII; (4) retaliation under the First Amendment; (5) content and viewpoint discrimination under the First Amendment; (6) compelled speech under the First Amendment; (7) violation of his right to the free exercise of religion under the First Amendment; (8) violation of the right to be free from unconstitutional conditions; (9) violation of the right to due process under the Fourteenth Amendment; (10) violation of the right to equal protection under the Fourteenth Amendment; (11) violations of the rights of conscience and free exercise of religion under the Indiana Constitution; (12) intentional infliction of emotional distress under Indiana common law; and (13) fraud under Indiana common law. [Filing No. 15 at 17-31.] Defendants have moved to dismiss all thirteen claims. [Filing No. 44.]

         C. Discussion

         At the outset, the Court notes that Mr. Kluge has conceded that dismissal of his claims against the individual Defendants in their official capacities and his equal protection claim against all Defendants is warranted. [Filing No. 57 at 11-12; Filing No. 57 at 31.] Accordingly, all claims against the individual Defendants in their official capacities are DISMISSED. In addition, the equal protection claim against all Defendants is also DISMISSED. The remaining claims against BCSC will be addressed in turn, although, in the interest of clarity, they will be in different order than presented in the Amended Complaint.

         1. First Amendment Speech Claims (Counts 4, 5, and 6)

         Mr. Kluge asserts three separate claims for violations of his right to freedom of speech under the First Amendment. First, in Count 4, Mr. Kluge alleges that, by punishing and threatening to punish him “for expressing his views regarding gender dysphoria, ” BCSC retaliated against him for engaging in protected speech. [Filing No. 15 at 19.] Second, in Count 5, Mr. Kluge asserts that BCSC discriminated against him by disciplining him due to the content and viewpoint of his speech. [Filing No. 15 at 20-22.] Finally, in Count 6, he alleges that, by punishing or threatening to punish him “for refusing to communicate a school corporation-mandated ideological message regarding gender dysphoria, ” BCSC compelled him to communicate messages about gender dysphoria with which he disagreed. [Filing No. 15 at 22.]

         In relevant part, BCSC argues that all of Mr. Kluge's First Amendment speech claims fail because his refusal to address students by the names and genders listed in PowerSchool is not protected speech under the First Amendment. [Filing No. 45 at 13-18.] Specifically, it argues that, as a matter of law, Mr. Kluge was speaking in his capacity as a public-school teacher-not as a private citizen-when addressing students. [Filing No. 45 at 14-16.] Furthermore, according to BCSC, addressing students in the classroom does not constitute a matter of public concern. [Filing No. 45 at 16-17.]

         Mr. Kluge responds that his speech is indeed protected under the First Amendment. [Filing No. 57 at 21; Filing No. 57 at 26.] Specifically, he argues that “[i]n speaking and refusing to speak on the mental disorder known as gender dysphoria, [he] spoke as a citizen on a matter of public concern.” [Filing No. 57 at 21.] He asserts that “gender identity” is a matter of great public importance, and his official teaching duties did not include the use of “transgender names” or “a school-mandated message approving ‘affirmance therapy' by the use of transgender names which were not students' legal names.” [Filing No. 57 at 21-22.] He further asserts that neither his ability to teach music and orchestra nor his method of teaching hinged on the use of students' first or last names, pronouns, or honorifics. [Filing No. 57 at 22.] Mr. Kluge also argues that BCSC cannot now claim that using the first names listed in PowerSchool was part of his official duties, because it agreed to allow him to address students by last names only for a period of time. [Filing No. 57 at 22-23.]

         In reply, BCSC reiterates the arguments raised in its initial brief, and asserts in relevant part that requiring faculty to address students in a consistent manner is “plainly related to [BCSC's] pedagogical interest in having classroom instruction proceed efficiently.” [Filing No. 60 at 8-9.]

         “When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom.” Garcetti v. Ceballos, 547 U.S. 410, 418 (2006) (citation omitted). Nevertheless, “[t]he [Supreme] Court has made clear that public employees do not surrender all their First Amendment rights by reason of their employment.” Id. at 417 (collecting cases). “Rather, the First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern.” Id. The determination of whether a public employee's speech is constitutionally protected is a question of law. E.g., Kubiak v. City of Chicago, 810 F.3d 476, 481 (7th Cir. 2016).

         In Pickering, the Supreme Court considered whether the termination of a public-school teacher based on a letter he wrote to a local newspaper violated the First Amendment. Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, Will Cty., Illinois, 391 U.S. 563, 565-66 (1968). In doing so, the Court sought to balance “the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Id. at 568. The Court characterized the statements contained in the teacher's letter as concerning issues “currently the subject of public attention, ” which were critical of his employer but were “neither shown nor . . . presumed to have in any way either impeded the teacher's proper performance . . . or to have interfered with the regular operation of the schools, ” and, therefore, “the interest of the school administration in limiting teachers' opportunities to contribute to public debate [was] not significantly greater than its interest in limiting a similar contribution by any member of the general public.” Id. at 572-73. Accordingly, firing the teacher based on the contents of his letter violated the First Amendment. Id. at 573-75.

         From Pickering and its progeny, the Supreme Court has distilled a two-part inquiry to analyze the constitutional protection accorded to public employee speech. Garcetti, 547 U.S. at 418. The first step is to determine whether the employee spoke as a citizen on a matter of public concern. Id. (citation omitted). If the answer is “no, ” the employee has no First Amendment cause of action based on the employer's reaction to the speech. Id. (citation omitted). If the answer is “yes, ” then the possibility of a First Amendment claim arises, and the second step is to determine whether the government entity had an adequate justification for treating the employee differently from any other member of the general public. Id. (citation omitted).

         When considering whether an employee spoke as a private citizen, the fact that the employee spoke inside his workplace, rather than publicly, is not dispositive. Id. at 420. Neither is the fact that the speech “concerned the subject matter of [his] employment.” Id. at 421. However, “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Id. Determining the official duties of an employee requires “a practical inquiry into what duties the employee is expected to perform.” Houskins v. Sheahan, 549 F.3d 480, 490 (7th Cir. 2008) (citation omitted).

         In Wozniak v. Adesida, 932 F.3d 1008, 1010 (7th Cir. 2019), the Seventh Circuit Court of Appeals concluded that a university professor acted “in his capacity as a teacher” when he “interrogated” students about their failure to recommend him for an award and posted information about the students online. Id. at 1010. Recognizing that such conduct did not involve the professor's “core academic duties” such as running his classroom, grading exams, or assisting students in writing papers, the Court determined that “how faculty members relate to students is part of their jobs.” Id. (emphasis in original).

         In assessing whether speech addresses a matter of public concern, courts look to the “content, form, and context” of a given statement. Chaklos v. Stevens, 560 F.3d 705, 712 (7th Cir. 2009) (quoting Connick v. Myers, 461 U.S. 138, 147-48, 148 n.7 (1983)). Though none of these factors is singularly dispositive, content is the most important of the three. Milwaukee Deputy Sheriff's Ass'n v. Clarke, 574 F.3d 370, 377 (7th Cir. 2009) (citation omitted). Furthermore, when examining the context of speech, the employee's motive for speaking is a relevant consideration. Id. (citations omitted). To that end, motive “matters to the extent that even speech on a subject that would otherwise be of interest to the public will not be protected if the expression addresses only the personal effect upon the employee, or if the only point of the speech was to further some purely private interest.” Id. (emphasis in original) (internal quotations and citation omitted).

         Here, Mr. Kluge has failed to state any claim under the First Amendment because, as a matter of law, the speech at issue is not constitutionally protected. Importantly, he is not asserting that he was disciplined for criticizing or opposing the Policy, but that he was disciplined for refusing to follow it in his classroom by refusing to call students by the first names listed in PowerSchool. Mr. Kluge's own allegations establish that the way in which he addresses students is part of his official duties as a teacher. Mr. Kluge expressly alleges that BCSC sought to regulate his interactions with students inside school and in the context of the school day or school activities. [Filing No. 15 at 15 (alleging that BCSC applies its “speech code policies to regulate all interactions faculty members have with students in the classroom or within the school”).] While addressing students by name may not be part of the music or orchestra curriculum, it is difficult to imagine how a teacher could perform his teaching duties on any subject without a method by which to address individual students. Indeed, addressing students is necessary to communicate with them and teach them the material-as the Seventh Circuit has stated, how teachers relate to students is part of their jobs, and running a classroom is a “core academic dut[y].” Wozniak, 932 F.3d at 1010. Thus, the speech at issue was part of Mr. Kluge's official duties, and this alone is sufficient to preclude any free speech claim under the First Amendment.

         However, the Court also concludes that Mr. Kluge's choice as to how to address a given student did not involve a matter of public concern. To be sure, issues relating to the treatment of individuals based on their gender identity are of great public importance. See Janus v. Am. Fed'n of State, Cty., & Mun. Employees, Council 31, 138 S.Ct. 2448, 2476 (2018) (recognizing that “gender identity” is a “sensitive political topic[]” that is “undoubtedly [a] matter[] of profound value and concern to the public”). However, Mr. Kluge was not conveying a message concerning such matters when he refused to call students by their names as listed in PowerSchool or referred to students by last name only, because the act of referring to a particular student by a particular name does not contribute to the broader public debate on transgender issues. Instead, choosing the name to call a student constituted a private interaction with that individual student and a private statement about Mr. Kluge's subjective perception of that student. In addition, according to Mr. Kluge's own allegations, the only point of his speech was to address students. He did not tell students that he had opinions about using transgender students' preferred names or explain why he was using last names only. [Filing No. 15 at 10.] Thus, Mr. Kluge's speech-merely stating (or refusing to state) names and pronouns without explaining that his opposition to “affirming” transgender students was the reason for doing so- adds little to the public discourse on gender identity issues, and therefore is not the kind of speech that is valuable to the public debate. Cf. Garcetti, 547 U.S. at 420 (acknowledging that underlying the public concern inquiry is “the importance of promoting the public's interest in receiving the well-informed views of government employees engaging in civic discussion”).

         Because the speech at issue was pursuant to Mr. Kluge's official duties as a public employee and did not involve a matter of public concern, he cannot maintain a cause of action for his employer's regulation of or reaction to his speech. See id. at 418. Accordingly, BCSC's Motion to Dismiss is GRANTED as to Mr. Kluge's claims for retaliation, content and viewpoint discrimination, and compelled speech under the First Amendment, and those claims (Counts 4, 5, and 6) are DISMISSED.

         2. First Amendment Free Exercise Claim (Count 7)

         Mr. Kluge asserts in his Amended Complaint that his “views and expression related to gender dysphoria are motivated by his sincerely-held religious beliefs, are avenues through which he exercises his religious faith, and constitute a central component of his sincerely-held religious beliefs.” [Filing No. 15 at 23.] Accordingly, he alleges, expressing BCSC's “mandated message regarding gender dysphoria” by using the names listed in PowerSchool would require him to violate his sincerely-held religious beliefs. [Filing No. 15 at 23.] Moreover, he alleges that BCSC's “transgender policies and related practices” are neither neutral nor generally applicable because they “represent a system of individualized assessments” and allow BCSC to specifically target religious expression and express hostility toward such expression. [Filing No. 15 at 23.] Mr. Kluge also asserts that the policies and practices are under-inclusive because they prohibit some expression while allowing “other expression equally harmful to [BCSC's] asserted interests.” [Filing No. 15 at 23.] He alleges that BCSC's discipline of him “for communicating his views on issues related to gender dysphoria” violated his religious beliefs and his right to free exercise of religion. [Filing No. 15 at 24.]

         BCSC argues that the policy requiring faculty to address students by the names listed in PowerSchool-which is the only specific policy that Mr. Kluge challenges-is both neutral and generally applicable. [Filing No. 45 at 20.] Specifically, it applies to all faculty, not just to faculty members of a certain religion, and there is no indication that, in imposing the requirement, BCSC intended to discriminate based on any religion. [Filing No. 45 at 20.] BCSC further argues that the purpose of the policy was to provide the faculty with an easy-to-follow rule for addressing students, and Mr. Kluge does not claim that the rule lacks a legitimate purpose. [Filing No. 45 at 20-21.]

         In response, Mr. Kluge reiterates the allegations stated in his Amended Complaint, states that these allegations must be taken as true, and asserts that they state a claim for violation of his right to free exercise of religion. [Filing No. 57 at 28.]

         BCSC replies that Mr. Kluge's reiterated allegations contain legal conclusions, which the Court is not required to accept as true, and maintains that the free exercise claim should be dismissed. [Filing No. 60 at 10.]

         “[N]o Free Exercise Clause violation results where a burden on religious exercise is the incidental effect of a neutral, generally applicable, and otherwise valid regulation, in which case such regulation need not be justified by a compelling governmental interest.” Vision Church v. Vill. of Long Grove, 468 F.3d 975, 998 (7th Cir. 2006) (quoting Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 763 (7th Cir. 2003)) (internal quotations omitted); see also Employment Div., Dep't of Human Res. of Oregon v. Smith, 494 U.S. 872, 879 (1990) (“[T]he right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).'”) (citation omitted).

         However, the Supreme Court has “been careful to distinguish such [neutral and generally applicable] laws from those that single out the religious for disfavored treatment.” Lutheran Church of Columbia, Inc. v. Comer, 137 S.Ct. 2012, 2020 (2017). For example, the Court has struck down “facially neutral” city ordinances prohibiting certain forms of animal slaughter after concluding that the ordinances were not in fact neutral or generally applicable but instead had a discriminatory purpose of prohibiting residents from performing sacrificial rituals integral to their practice of the Santeria religion. Id. at 2021 (citing Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 533-33 (1993)). Summarizing its Free Exercise Clause jurisprudence, the Supreme Court reiterated that laws may not discriminate against religious beliefs, regulate or outlaw conduct because it is religiously motived, or impose special disabilities based on one's religious status. Trinity, 137 S.Ct. at 2021 (citations omitted).

         Here, Mr. Kluge's allegations and supporting documentation demonstrate that the Policy was neutral and generally applicable: every teacher, regardless of religious belief, was required to address every student by the name listed in PowerSchool, regardless of what that name was or why. Furthermore, Mr. Kluge does not allege that any of BCSC's policies or practices were developed to target any particular religious belief, affiliation, or activity, and, to the contrary, he alleges that these policies and practices were part of an effort to “affirm childhood gender dysphoria.” [Filing No. 15 at 6.] Although he asserts that the Policy required individual assessments, is under-inclusive, and permits other “harmful” speech, these allegations are conclusory, unsupported, and inconsistent with his allegations demonstrating that the Policy was straightforward and clear in the sense that it requires teachers to refer to students by the names listed in PowerSchool-nothing more, nothing less, and without room for individualized judgments. Notably, no other BCSC policy is alleged to be the basis of his discipline. Because the Policy is neutral and generally applicable and Mr. Kluge has not alleged facts showing that it targeted or otherwise was motivated by an animus toward any particular religion or religious belief, he has not stated a claim for violation of the Free Exercise Clause. Accordingly, BCSC's Motion to Dismiss is GRANTED as to this claim (Count 7), which is DISMISSED.

         3. Unconstitutional Conditions (Count 8)

         In the Amended Complaint, Mr. Kluge asserts that, by conditioning his employment on his willingness to surrender his constitutional rights, BCSC imposed an unconstitutional condition upon him in violation of the First Amendment. [Filing No. 15 at 24.] Specifically, he asserts that BCSC's “transgender policies in practices and the[] enforcement of those policies and practices” require faculty members to surrender their constitutionally-protected rights to freedom of speech, free exercise of religion, due process, and equal protection as a condition to their receipt of a state benefit in the form of continuing employment as a public school teacher. [Filing No. 15 at 25.]

         BCSC asserts that the unconstitutional conditions claim fails because: (1) Mr. Kluge has not alleged facts showing that BCSC violated the Constitution; and (2) the unconstitutional conditions doctrine has not been extended beyond the context of political patronage as a condition of public employment. [Filing No. 45 at 19.]

         Mr. Kluge responds that the unconstitutional conditions doctrine logically extends to other First Amendment violations, including claims based upon speech and religious exercise. [Filing No. 57 at 29.] He maintains that he has ...


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