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MSDE violated First Amendment in requiring anti-bias statement, judge rules

The Maryland State Department of Education violated the free speech rights of a Christian school by withholding scholarship money for declining to state in its written admissions policy that it does not discriminate on the basis of sexual orientation, a federal judge in Baltimore ruled Friday.

MSDE’s condition for distributing the funds to Bethel Christian Academy in Savage amounted to compelled speech by the government in violation of the Constitution’s First Amendment, U.S. District Judge Stephanie A. Gallagher wrote.

In her decision, Gallagher distinguished the department’s unconstitutional call for an anti-discrimination statement from its permitted authority to withhold scholarship funds from institutions found to have actually discriminated.

The judge noted that MSDE had not presented evidence that Bethel Christian had discriminated against any student or applicant based on sexual orientation before denying the school funds under the state’s Broadening Options and Opportunities or Students Today program – or BOOST — for low-income pupils in nonpublic schools.

“It is a basic First Amendment principle that freedom of speech prohibits the government from telling people what they must say,” Gallagher wrote in her memorandum opinion.

“While the court does not question the (MSDE’s) desire to prevent BOOST-participating schools from engaging in discriminatory conduct, (MSDE) only attempted to accomplish that goal by regulating speech,” Gallagher added. “Put simply, (MSDE) did not demand that Bethel act differently to remain BOOST eligible, they demanded that Bethel speak differently.”

The Maryland attorney general’s office, which represents MSDE, stated Monday that it is “reviewing the decision to determine next steps.”

Bethel, a private Christian school for students in pre-school through eighth grade, is represented by the Alliance Defending Freedom, a nonprofit legal organization that presses religious freedom and free-speech cases.

“The government may not discriminate against religious schools simply because it dislikes their religious beliefs,” Ryan Tucker, ADF’s senior counsel, said in a statement after Gallagher’s decision. “The court was on firm ground to stop the state from targeting and denying children scholarships simply based on the beliefs and policies set out in their school’s parent-student handbook.”

Gallagher issued her ruling in granting summary judgment to Bethel on its claim that MSDE violated the school’s First Amendment right by withholding funds during the 2018-2019 and 2019-2020 school years and in trying to retrieve $102,600 that MSDE had given to the school. In her decision, Gallagher enjoined MSDE from “clawing back” the $102,600.

To receive BOOST funds, schools must refrain from discriminating on the basis of race, color, national origin or sexual orientation. MSDE’s refusal and effort to recover BOOST funds was based on the absence of sexual orientation or gender identity in Bethel’s statement of nondiscrimination on the “Admissions Policy” page of its parent/student handbook.

In her decision, Gallagher noted that MSDE told Bethel in 2020 that its BOOST eligibility could be restored if it revised the language in the handbook, a request the school declined.

“This court does not question (MSDE’s) ultimate motivation to prevent discrimination, but their method of accomplishing that goal involved drawing lines between acceptable and unacceptable speech on certain topics,” Gallagher wrote.

“They advised BOOST-participating schools on what their admissions policies could and could not say on those topics in order to remain BOOST-eligible,” Gallagher added. “The First Amendment is designed to prevent the government from acting as the arbiter of acceptable and unacceptable speech. Whether or not they intended to, (MSDE) assumed that role of arbiter here.”

The case is docketed at the U.S. District Court as Bethel Ministries Inc. v. Karen B. Salmon et al., No. SAG-19-1853.