Published Online: October 3, 2011

Court Case Puts Focus on Parochial-School Teachers

As the U.S. Supreme Court opens its new term this week, one of the first cases the justices will hear pits churches and religious schools against the federal government and civil rights groups.

The high court is being asked to decide whether teachers at parochial schools—at least those who have a role in the religious formation of children—fall under a doctrine that exempts church ministers from protection under federal anti-discrimination laws.

The justices could rule narrowly on the scope of the “ministerial exception,” a legal principle developed in lower courts over many years but never ruled on by the high court. Or—as the U.S. solicitor general has urged—they could issue a broad decision that no such categorical exception exists, and that discrimination disputes between churches and employees with religious functions should be examined by courts on a case-by-case basis.

“This is a very important religious-freedom case,” said Richard W. Garnett, a law professor at the University of Notre Dame, who helped write a friend-of-the-court brief on the side of a number of church-related organizations. “This case gives the court the chance to affirm some very important principles at the heart of the separation of church and state.”

There are some 314,000 teachers in U.S. religious schools at the precollegiate level, the National Center for Education Statistics said in a report this year. However, it’s not clear under current court interpretations whether all of those teachers would fall under the ministerial exception.

The case of Hosanna-Tabor Lutheran Church and School v. Perich (No. 10-553) is the only one on the court’s 2011-12 docket, so far, that directly involves a school. But the justices will other hear other cases of interest to educators, and other important K-12 legal issues could yet be added this term, such as students’ Internet speech rights and affirmative action in college admissions.

Concerns Over Narcolepsy

The church case involves Hosanna-Tabor, a Lutheran congregation in Redford, Mich. The school hired Cheryl Perich, now 57, as a lay kindergarten teacher in 1999. By 2000 she had become a “called teacher”—one with formal training in Lutheran doctrine and selected by the local congregation as a “commissioned minister.”

All Rise

The U.S. Supreme Court term that opens this week so far includes disputes with implications for teachers’ unions, children, and users of copyrighted works.

Knox v. Service Employees International Union (No. 10-1121)
The justices will return to the complex area of the law involving public-employee-union “agency fees”—service fees charged to nonunion members who benefit from collective bargaining. Court precedents require an annual notice to payers justifying that the fee went to authorized expenses. This case, involving a unit of the SEIU that represents California state employees, challenges the lack of a notice for a special assessment the union charged to members and nonmembers to battle two anti-labor ballot initiatives in 2005. The court’s decision will affect teachers’ unions and could put a crimp in plans by unions to spend more freely on elections in 2012.

Federal Communications Commission v. Fox Television Stations Inc. (No. 10-1293)
A long-running legal battle over fines to broadcasters for permitting “fleeting expletives” to air at a time when children were in the TV audience returns to the high court. This time, the justices have signaled they plan to rule on the constitutionality of the FCC’s rules aimed at keeping indecency off the broadcast airwaves. Some analysts have suggested the court may be prepared to reconsider some key precedents for an era when cable channels and the Internet, which don’t face the same speech restrictions as broadcasters, are just as pervasive in the lives of children.

Golan v. Holder (No. 10-545)
The justices will review a 1994 act of Congress that restored copyright protection to many foreign works—books, music, and movies—that had been in the public domain. The case is being watched by some educators and entities such as Google Inc. and Creative Commons, which have worked to increase the availability of public-domain works on the Internet.

In 2004, Ms. Perich was teaching 4th grade, focused mostly on secular subjects, such as mathematics and language arts. But she also taught a religion class four times a week and attended weekly chapel services with her students, court papers say.

That year, Ms. Perich fell ill and was hospitalized, and as the new school year loomed, school officials suggested she take a disability leave while doctors tried to figure out what was wrong. She was later diagnosed with narcolepsy.

By January 2005, Ms. Perich told her principal that her treatments for the condition were making progress and that she was almost ready to return to work, and said in an email that her doctor had assured her “he will be able to get me fully functional.”

In a reply, Principal Stacey Hoeft voiced surprise that Ms. Perich would be able to return so soon, noting that Ms. Perich was not permitted to drive because of her condition, yet “can be responsible for the safety of a classroom of children. You can see why I’d be concerned.”

Dispute Escalates

Hosanna-Tabor church leaders tried to get Ms. Perich to resign voluntarily. The teacher resisted, and after further medical progress, she showed up at the school to reclaim her job on Feb. 22, 2005, when her leave was about to expire. The principal sent her home.

Later that day, in a phone call with the principal, Ms. Perich told the principal that while trying to work with her and the school’s board of education, she also had been talking to an attorney and intended to assert her legal rights.

Scott Salo, the chairman of the church’s school board, sent the teacher a letter on March 19 of the same year, indicating that the congregation was about to rescind her call because of “insubordination and disruptive behavior.”

“We are also requesting this because we feel that you have damaged, beyond repair, the working relationship you had with the administration and school board by threatening to take legal action” against the church, Mr. Salo said in the letter.

The congregation soon after rescinded Ms. Perich’s call, effectively firing her. She filed a charge with the federal Equal Employment Opportunity Commission, alleging a violation of, and retaliation under, the Americans with Disabilities Act of 1990.

In 2007, the EEOC sued Hosanna-Tabor solely on a claim that the church and school had retaliated against Ms. Perich over her threat to go to court.

“Exhibit A is the [March 19, 2005] letter they sent her—an out-and-out admission that they were dismissing her because she threatened to sue,” said James E. Roach, one of Ms. Perich’s lawyers. “They came up with these purported defenses well after the onset of litigation.”

‘Conflict of Rights’

Among Hosanna-Tabor’s defenses is that the teacher disregarded the Lutheran Church’s teachings that church members resolve disputes internally instead of using the courts, though Ms. Perich’s lawyers contend such religious concerns were never mentioned at the time of her dismissal. The church also contends that the teacher’s suit is barred by the ministerial exception because called teachers, such as Ms. Perich, have important religious functions within the church.

“She’s actually the teacher of the religion class, and she’s a commissioned minister of the church,” said Douglas Laycock, a professor of law and religion at the University of Virginia, who is representing Hosanna-Tabor before the Supreme Court. “We claim that if you teach the doctrines of the faith, you are a minister.”

While a federal district court ruled for the church, a panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, held unanimously in 2010 that Ms. Perich was essentially a secular teacher at the school and thus did not fall under the ministerial exception.

Hosanna-Tabor is asking the Supreme Court to endorse the ministerial exception recognized by the lower courts and to rule that under the First Amendment’s religion clauses, courts may not get involved in such internal church matters as selection of their ministers.

“There can’t be a right to be a Lutheran minister, except on Lutheran terms,” said Mr. Laycock. “Yes, there is some conflict of rights here, but there are very strong reasons for not having these cases decided in civil courts.”

Related Blog

Numerous religious denominations and organizations have filed friend-of-the-court briefs on the side of Hosanna-Tabor. They include the church’s parent, the Lutheran Church-Missouri Synod, with nearly 1,100 schools employing 9,800 teachers, and the U.S. Conference of Catholic Bishops, representing diocesan leaders who oversee some 7,100 parochial schools with 143,000 professional educators.

The Catholic bishops’ brief notes that courts have applied the ministerial exception to—besides teachers—a church organist, a choir director, a Kosher-food supervisor, and others whose functions consist of worship, governance, or teaching.

Major civil rights groups including the NAACP Legal Defense Fund and the Disability Rights Legal Defense Fund are on Ms. Perch's side.

No ‘Exception’

In a far-reaching argument that surprised some legal observers, the federal government has urged the Supreme Court not to endorse the principle of the ministerial exception at all.

“Experience shows that religious employers invoking the ministerial exception as a defense in employment discrimination lawsuits often take a very broad view of which employees qualify as ‘ministers,’ ” U.S. Solicitor General Donald B. Verrilli Jr. says in a court brief. “To lend near dispositive weight to a religious employer’s characterizations could well result in unnecessarily depriving large numbers of employees of the statutory protections Congress intended to afford them.”

The government calls, instead, for courts to examine discrimination claims of a church employee on a case-by-case basis, with dismissal of a case required only when the court would be forced in a particular dispute to interpret church doctrine or rule on a religious matter.

Eric Schnapper, a University of Washington law school professor who has argued frequently in the Supreme Court on behalf of employees alleging job bias and retaliation, says Hosanna-Tabor and other churches may end up worse off than before if the justices decline to endorse the ministerial exception.

“They gambled the very existence of the ministerial exception by asking the court to decide the extent of it,” Mr. Schnapper, who helped write a friend-of-the-court brief supporting Ms. Perich, said of the church.

Mr. Garnett, of the Notre Dame law school, whose brief in support of Hosanna-Tabor represents organizations of Baptists and evangelical Christians, among other religious groups, said the government’s position against recognizing the ministerial exception is “strikingly extremist.”

“The principle of church-state separation, properly understood, really does require some type of a ministerial exception,” said Mr. Garnett. “This is not a new or bizarre idea.”

Vol. 31, Issue 06

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