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High court bias ruling in favor of religious schools won’t end disputes

parochial school

Last week’s U.S. Supreme Court ruling holding that a “ministerial exception” protects a pair of parochial schools from federal age and disability discrimination charges in connection with the firing of two teachers leaves gray areas, experts say.

Issues such as whether other religious institution employees are protected under federal discrimination laws will likely have to be resolved by future rulings, they say.

In its 7-2 decision in Our Lady of Guadalupe School v. Morrissey-Berru, the high court cited its 2012 Hosanna-Tabor Evangelical Lutheran Church vs. Equal Employment Opportunity Commission ruling, which said a religious school can claim a ministerial exception to a discrimination charge under the Americans with Disabilities Act.

Last week’s ruling involved two underlying court decisions. In Morrissey-Berru v. Our Lady of Guadalupe, Agnes Morrissey-Berru contended her termination violated the Age Discrimination in Employment Act.

In the second case, St. James School v. Darryl Biel, the estate of Kristen Biel, who died last year, claimed disability discrimination because she was terminated shortly after asking for a leave of absence to obtain treatment for breast cancer.

In both cases, the 9th U.S. Circuit Court of Appeals in San Francisco overturned lower courts and ruled in favor of the plaintiffs.

In ruling the ministerial exception applied, the Supreme Court’s majority opinion written by Justice Samuel Alito said, “the selection and supervision of the teachers upon whom the schools rely … lie at the core of their mission,” and judicial review of this “would undermine the independence of religious institutions in a way that the First Amendment does not tolerate.”

The dissenting opinion by Justice Sonia Sotomayor, who was joined by Justice Ruth Bader Ginsburg, said the majority opinion followed a “simplistic approach” that “strips thousands of schoolteachers of their legal protections.”

Mark E. Chopko, chair of the nonprofit and religious organizations practice group at Stradley, Ronon Stevens & Young LLP in Washington, said, “In the Hosanna-Tabor case, the Supreme Court relied on the person’s job title and the fact that the faith community had (teacher Cheryl Perich) go through a form of ministry credentialing,” and she took a tax deduction available to ministers under the tax code. 

“The Supreme Court said, ‘This is an easy case’ because even she thinks she’s a minister,” Mr. Chopko said.

But some courts subsequently ruled that unless plaintiffs had the same characteristics as Ms. Perich, they could not be considered ministers, “which seemed to me and to others as demonstrably wrong,” he said.

Mr. Chopko said that when he defends similar cases the key issue is the relationship between the person’s position and the religious institution’s evangelizing, reach or preaching mission. “That was certainly reflected” in the majority opinion, he said.

The teachers taught in a religious primary school “and the teachers in parochial schools, especially primary schools, have long been held to be integral to the transmission of the faith,” Mr. Chopko said.

In its rulings in the underlying cases, the 9th Circuit identified several factors and, “essentially, in a fairly formulaic way, checked boxes,” said Nathan A. Adams IV, a partner with Holland & Knight LLP in Tallahassee, Florida.

The Supreme Court said it wanted to “give some flexibility to religious institutions to determine whether those positions are really core to inculcating the faith,” Mr. Adams said. The court essentially said it was going to be less formulaic about applying the legal doctrine, he said. 

Had the cases gone to a jury, it could have led to an employee’s reinstatement, Mr. Adams said. The court said, “in effect, we would be compelling a religious institution to hire somebody” who was “not inculcating the faith,” he said.

The ruling “should have been expected,” said Douglas Laycock, a professor of religious studies at the University of Virginia in Charlottesville, who had represented the church in the Hosanna-Tabor case and was among a group of professors who submitted amicus briefs on the schools’ behalf in the current case. 

The Supreme Court ruling is “not an expansion of the earlier decision. It really just implements it,” he said. “These teachers do the same things as the teacher” in the Hosanna-Tabor case, including teaching religious class and leading prayer.

The Supreme Court “had to do what they did” and instead look at the job functions, Mr. Laycock said.

“Some churches will abuse this freedom,” he said. But, “we cannot have juries second-guessing religious decisions about people who are teaching the faith.”

“It’s a pretty extraordinary doctrine,” said Dylan B. Carp, a principal with Jackson Lewis P.C. in San Francisco. “It shelters potentially discriminatory employment actions on the theory that there’s a constitutional right against excessive engagement by courts in employment-related decisions” for religious institutions. 

The ruling leaves unanswered questions, some experts say. Damian R. Cavaleri, a partner with Hoguet Newman Regal & Kenney LLP in New York, said the ruling leaves “an even more expansive (ministerial) exception but still without any sort of real borders.”  

“There will be further cases trying to clarify what those borders are,” he said.

Mr. Carp said, “It remains to be seen whether an employee’s role may be so trivial in terms of religious education that” he or she could still be protected if they don’t fall into the exception.

“It’s also still to be determined what other types of employees might be covered by the exception, even if they have no role at all in educating,” given that so far the Supreme Court rulings have involved educators, he said.

“Not every employee that works for a religious organization is precluded from bringing a discrimination claim,” said Eric B. Meyer, a partner with FisherBroyles LLP in Philadelphia, who represents employers.

Custodians, for instance, and administrative assistants at religious institutions might still win a discrimination claim, although there will be gray areas, Mr. Meyer said. For example, a head of human resources may hold a secular role, but his or her job includes hiring employees involved in inculcating the religion, he said.

Subsequent cases will be decided on a case-by-case basis, looking at the parochial school employees’ duties and job contracts and the other aspects of their employment, said Erin L. Hoffman, a partner with Faegre Drinker Biddle & Reith LLP in Minneapolis.

“It’s not clear where on the spectrum any particular employee might fall, simply because the court reiterated it is not making a formulaic test, but rather reviewing the circumstances of each person’s employment,” she said.

Mr. Cavaleri said religious institutions “should pay close attention” to the terminology used in the decision and “evaluate what the roles are of the various individuals in understanding whether there’s a ministerial exception to apply.”

Religious institutions “ought to be clear with the people they’re bringing on board as employees that they are considered by the hiring authority to be ministers, so that there’s no question, and explain why,” Mr. Chopko said. 

The orientation process should make clear that the teacher is “vital to the faith formation of the next generation” and that they have a “really important job to do,” he said.