Dustin Buxton v. Sandra Kurtinitis, 862 F.3d 423

Dustin Buxton applied to the Community College of Baltimore County’s Radiation Therapy Program (RTP) in 2013 and 2014 and was denied admission both times after a multi-stage competitive selection (GPA, observation day, logic/writing, interview).
In 2013 Buxton ranked 36th of 44 after scoring poorly on writing, observation, and interview; program director Adrienne Dougherty’s written review criticized his interpersonal skills and noted he “brought up religion a great deal” during the interview.
In 2014 CCBC limited interviews to the top 36 by combined GPA and observation-day scores; Dougherty gave Buxton a 0 for observation day (as did other low scorers), so he was not invited to interview and was not admitted.
Buxton sued, alleging First Amendment free-speech retaliation, Establishment Clause violation, and Equal Protection claims; the district court dismissed the Free Speech claim and later granted summary judgment to Dougherty on the Establishment Clause and Equal Protection claims.
Buxton appealed the dismissal of his Free Speech claim and the grant of summary judgment on his Establishment Clause claim; the Fourth Circuit affirmed both rulings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether speech in a competitive admissions interview is protected First Amendment activity for a retaliation claim	Buxton: being penalized for discussing religion in his interview is retaliation for protected speech	Dougherty/CCBC: interview speech in a competitive selection is not protected by Free Speech Clause for admissions consequences because content/viewpoint-based distinctions are inherent to competitive evaluations	Court: Free Speech Clause does not apply to speech in a competitive admissions interview; claim dismissed
Whether denying/penalizing an applicant for raising religion in an interview violates the Establishment Clause	Buxton: penalization for discussing religion shows religious discrimination/establishment problem	Dougherty/CCBC: the decision was driven by secular purpose (selecting candidates with appropriate interpersonal skills), had no primary effect of advancing/inhibiting religion, and did not entangle government with religion	Court: Lemon test satisfied (secular purpose, no primary effect, no excessive entanglement); summary judgment for Dougherty affirmed

Nat’l Endowment for the Arts v. Finley, 524 U.S. 569 (government may make content-based judgments in competitive allocation of benefits)
Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666 (editorial discretion and programmatic selection may require viewpoint-based choices)
United States v. American Library Assn., Inc., 539 U.S. 194 (public institutions have discretion to make content-based collection/placement decisions)
Locke v. Davey, 540 U.S. 712 (selective educational programs are not public fora for viewpoint-diversity claims)
Lemon v. Kurtzman, 403 U.S. 602 (Establishment Clause test: secular purpose, primary effect, excessive entanglement)
Schware v. Board of Bar Examiners, 353 U.S. 232 (state may not exclude applicants by invidious or arbitrary discrimination; decision analyzed on due process grounds)
Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474 (elements of First Amendment retaliation claim)
Keeton v. Anderson-Wiley, 664 F.3d 865 (academic/clinical selection decisions may permissibly consider applicants’ fitness or competencies)