Free Exercise Decision
A federal appellate court opinion held that a state association violated the constitutional rights of a religious school by expelling it from all intramural activities after the school forfeited a basketball game against a team with a transgender athlete. The district court had ruled against the school, finding that the association’s enforcement of its rules allowing transgender athletes was a rule of “general application and neutral as to religion.” The appellate panel didn’t reach that question, basing its ruling instead on a finding that the association acted because of hostility against the school’s religious views.
The controversy started in February 2023 when Mid Vermont Christian School girls’ basketball team reached the state playoffs. In the first round of the tournament, the school was scheduled to compete against a public school whose team featured a transgender female student. Mid Vermont initially asked the sponsoring body, the Vermont Principal’s Association, to block the transgender student from playing. The VPA denied the request, citing state law and the VPA’s policy granting students “the opportunity to participate in VPA activities in a manner consistent with their gender identity.”
At that point, Mid Vermont forfeited its game against the public school. In a press release, Mid Vermont explained that it forfeited “because we believe playing against an opponent with a biological male jeopardized the fairness of the game and the safety of our players.” Three weeks later, the VPA expelled Mid Vermont from participating in any VPA extracurricular activity, including not only sports, but also spelling bees, science fairs, drama festivals, and debate competitions. Mid Vermont successfully argued that the VPA had failed to follow its own procedure before banning the school and obtained an administrative appeal. On that appeal, the VPA reaffirmed its decision. Mid Vermont sued in federal court, alleging a violation of its Free Exercise rights and seeking an injunction against the expulsion.
On appeal from the district court’s denial of the injunction, the Second Circuit Court of Appeals ruled in favor of the school. The panel focused on the animus that VPA representatives had exhibited against the school’s position. Specifically, the court noted that two days after the forfeit but before the VPA’s explosion, the VPA Executive Director had testified before a state legislative committee considering a bill to prevent religious schools from receiving public funding.
The VPA director began his remarks with the premise that “we should never provide any tax dollars to schools that . . . look away from the common decency of all students being welcomed.” He then specifically cited Mid Vermont’s forfeiture of its game:
The VPA followed the law, of course, and our policies, and will continue to ensure this child and all transgender student athletes have equal access to educational opportunities the same as all Vermont children should have. Thank goodness the student in question didn’t attend that religious school . . . but what if they did? Would we be okay with that blatant discrimination under the guise of religious freedom?
The appellate court also noted that when the VPA rejected Mid Vermont’s appeal of its expulsion, it dismissed Mid Vermont’s religious objection: “The School’s claim is wrong. Participating in an athletic contest does not signify a common belief with the opponent. . . . This case has nothing to do with beliefs. It has everything to do with actions and their impact on transgender students.”
These statements, according to the appellate court, were “official expressions of hostility to religion” that were “inconsistent with what the Free Exercise Clause requires.” They also indicated that the VPA’s expulsion “was informed by hostility toward certain religious beliefs.” In sum, the court stated, “The VPA’s Executive Director publicly castigated Mid Vermont — and religious schools generally — while the VPA rushed to judgment on whether and how to discipline the school. In upholding the expulsion, the VPA doubled down on that hostility by challenging the legitimacy of the school’s religious beliefs. And as noted above, the punishment imposed was unprecedented, overbroad, and procedurally irregular.” Accordingly, the panel ordered that the district court grant the injunction and reinstate Mid Vermont to full membership in the VPA pending the full resolution of the case.
The takeaway from this case for youth organizations seems to be one of basic civility. Far too many people assume that their opinions on hot-button issues are the only morally correct ones, and it’s not only appropriate but required to treat any disagreement as evil. The VPA Executive Director clearly assumed that no right-thinking person would disagree with his opinion. The fact is that the Constitution requires state actors to treat opponents with respect and analyze their arguments with objectivity, not assume malice that places disagreement beyond the boundaries of polite discussion. Even those of us who do not represent state entities should follow those principles of civil discourse, at least if we want to have civil discourse with each other. Assuming malice at the start of the analysis is counterproductive and, in the case of official state action, blatantly unconstitutional.