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Published in Print: October 12, 2011, as High Court Takes on Church-Rights Case Related to Schools

Parochial-School Case Gets Airing at Supreme Court

Former Lutheran school teacher Cheryl Perich, center, comments last week after the U.S. Supreme Court hears oral arguments in a case involving her claims that church officials dismissed her after she threatened to bring a lawsuit under federal disability law.
Former Lutheran school teacher Cheryl Perich, center, comments last week after the U.S. Supreme Court hears oral arguments in a case involving her claims that church officials dismissed her after she threatened to bring a lawsuit under federal disability law.
—Maria Matveeva/Americans United
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The U.S. Supreme Court last week struggled with a clash over churches’ rights to make employment decisions about workers with religious functions versus the government’s interest in ensuring a discrimination-free workplace.

In the lawsuit, a church contends that a 4th grade teacher who mostly taught secular subjects but was a “commissioned minister” of the Lutheran faith, violated church doctrine by threatening to take her complaint to civil courts.

“Here what we have is a claim of retaliation, so that she can’t even get a hearing,” Justice Anthony M. Kennedy said about the lawsuit filed by Cheryl Perich, a teacher at a Lutheran school in Michigan who claims church officials dismissed her after she threatened to sue under federal disability law.

“She can’t get a hearing in a civil court,” but she could have gotten one before a Lutheran tribunal, said Douglas Laycock, the lawyer representing the Hosanna-Tabor Lutheran Church and School in Redford, Mich.

No Hearing

The U.S. Supreme Court opened its 2011-12 term last week and denied review in hundreds of appeals, including these education cases:

Moment of Silence

The court declined to take up a case challenging an Illinois law requiring a daily period of “silent prayer or reflection” in the public schools. The law was challenged as a violation of the First Amendment's prohibition against government establishment of religion. A panel of the U.S. Court of Appeals for the 7th Circuit, in Chicago, last year ruled 2-1 to uphold the law, saying there was a secular purpose behind the daily reflection period, specifically of calming students and preparing them for learning. The justices declined without comment to hear the appeal in Sherman v. KochRequires Adobe Acrobat Reader Case No. 10-1191).

Special Education

The high court refused to take up the appeal on behalf of a South Dakota high school student with learning disabilities who was placed in an alternative school for 38 days without a formal hearing after being suspended for fighting and for possessing a pocket knife. His lawyers and other advocates contended that under the individuals with disabilities Education act, he was entitled to a formal hearing for a change in placement that lasted longer than 10 days. But a three-judge panel of the U.S. Court of appeals for the 8th Circuit, in St. Louis, ruled unanimously last year that the decision to place the student in an alternative program was made by his individualized Education Plan team and that the civil rights suit filed on his behalf amounted to a failure to exhaust administrative remedies under the IDEA. The justices declined without comment to hear the appeal in Doe v. Todd County School DistrictRequires Adobe Acrobat Reader (No. 10-1411).

School Outsourcing

The justices, in Jefferson County Board of School Commissioners v. SmithRequires Adobe Acrobat Reader (No. 10-1402), declined to hear the appeal of a Tennessee school district in a case in which three former school employees challenged the district's decision to outsource its alternative school to a private Christian program The full U.S. Court of appeals for the 6th Circuit, in Cincinnati, ruled 11-4 earlier this year that the educators had standing as municipal taxpayers to challenge the school district’s outsourcing plan on establishment-clause grounds.

Her initial claim was that the church violated her rights under the Americans with Disabilities Act of 1990 over its handling of her disability leave for narcolepsy during the 2004-05 school year. The federal Equal Employment Opportunity Commission took up her case solely on the claim that the church had retaliated against her in violation of the ADA. ("High Court to Consider 'Ministerial Exception,' " Oct. 5, 2011.)

“Congress has not unconstitutionally infringed [the church’s] freedom in this case by making it illegal for it to fire a 4th grade teacher in retaliation for asserting her statutory rights,” Leondra B. Kruger, an assistant to the U.S. solicitor general, told the justices during the Oct. 5 arguments in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission (Case No. 10-553).

Government’s Position

The federal government appeared to retreat somewhat from a position advanced in its legal briefs that the high court should not recognize the “ministerial exception”—an exemption from anti-discrimination laws developed in the lower federal courts and applied to a range of church employees, from ordained preachers to religious-school teachers and church music ministers.

“We think that the ministerial exception is one that incorporates the right of association as well as the rights under the religion clauses,” said Ms. Kruger, representing the EEOC and the Obama administration.

But she added that the government has a strong interest in telling the church school “that it may not punish its employees for threatening to report civil wrongs to civil authorities. That is an interest that we think overrides the burden on the association’s religious message about the virtues of internal dispute resolution as opposed to court resolution.”

Both Justices Antonin Scalia and Elena Kagan said they were troubled by the government’s position that a church’s right to dismiss a ministerial employee who defied church teaching was grounded primarily in the First Amendment’s right of association, not in its religion clauses.

Justice Kagan told Ms. Kruger she found it “amazing that you think that neither the free-exercise clause nor the establishment clause has anything to say about a church’s relationship with its own employees.”

The Supreme Court has never ruled on the scope of the ministerial exception. The justices last week seemed inclined to give the principle some degree of approval.

“The ministerial exception is not something new,” said Justice Samuel A. Alito Jr. “It has been widely recognized ... by the courts of appeals going back 40 years.”

Reading the Justices

The argument left little clear about how the court would rule in Ms. Perich’s case, with several justices trying to get the lawyers to define which church employees should fall under the ministerial exception.

The Supreme Court considered a number of school issues during the first week of its new term.
The Supreme Court considered a number of school issues during the first week of its new term.
—J. Scott Applewhite/AP

Walter Dellinger, a Washington lawyer representing Ms. Perich, suggested that the test should hinge on whether a church employee carried out important secular functions, such as a parochial-school teacher who spent most of her time teaching secular subjects.

“That can’t be the test,” Chief Justice John G. Roberts Jr. told him. “The pope is a head of state carrying out secular functions, right? Those are important. So he’s not a minister?”

Justice Alito and others expressed concerns that without a broad ministerial exception, judges and juries would have to get involved in deciding the relative significance of a church’s tenets within that faith.

They might have to ask, “What did Martin Luther actually say … about suing the church?” Justice Alito said.

Ms. Perich, 57, appeared before reporters outside the Supreme Court building last week.

“My situation really had nothing to do with religion,” she said. “I can’t fathom how the Constitution would be interpreted in such a way as to deny me my rights.”

The case will be decided by the end of the court’s term next June.

Vol. 31, Issue 07, Pages 16,18

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