Supreme Court Narrows Employment Protections for Parochial School Teachers

By Mark Walsh — July 08, 2020 8 min read
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[Updated Wednesday 4:30 p.m.]

The U.S. Supreme Court ruled 7-2 on Wednesday that the First Amendment’s religion clauses foreclose federal courts from hearing employment-discrimination claims from teachers at religious schools who have at least some role in teaching the faith.

“When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teacher threatens the school’s independence in a way that the First Amendment does not allow,” Justice Samuel A. Alito Jr. wrote for the court in Our Lady of Guadalupe School v. Morrissey-Berru (No. 19-267) and St. James School v. Biel (No. 19-348).

Justice Sonia Sotomayor, in a dissent joined by Justice Ruth Bader Ginsburg, said that the majority takes a “simplistic approach [that] has no basis in law and strips thousands of schoolteachers of their legal protections.”

Two Roman Catholic schools in the Los Angeles area invoked the ministerial exception to claim immunity from employment-discrimination lawsuits filed by two lay teachers.

The teachers in the two cases before the court were themselves Catholic and taught lay subjects to 5th graders at their schools, but they also had responsibilities to lead daily religious lessons or participate in prayer services.

Agnes Morrissey-Berru taught at Our Lady of Guadalupe School, in Hermosa Beach, Calif., beginning in 1999, court papers say. Her contract was not renewed after the 2013-14 school year, after the school says she had a problem keeping order in her classroom and later meeting expectations under a new reading and writing program. Her principal asked the teacher, then in her mid-60s, if she wanted to retire. Morrissey-Berru filed a suit alleging age bias under the Age Discrimination in Employment Act of 1967.

Kristen Biel taught at St. James School, in Torrance, Calif. She alleged that she was fired after informing administrators that she had breast cancer and would have to take time off for surgery and chemotherapy. The principal told Biel her contract was not being renewed because of classroom management problems. Biel sued under the Americans with Disabilities Act of 1990, which bars employment discrimination based on disability.

Biel died last year and her case for damages was being carried on by her husband, James Biel.

Lawyers for the schools invoked the ministerial exception to block the lawsuits at an early stage.

In its 2012 decision in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, the Supreme Court said lower courts should look to factors such as the formal title of the employee, the substance and uses of that title, and the religious functions the employee performed, to determine whether the ministerial exception applied.

Alito had written a concurrence in Hosanna-Tabor, joined by Justice Elena Kagan, that suggested the exception should apply to positions of “substantial religious importance.”

On Wednesday, in his opinion for the court in Our Lady of Guadalupe, Alito said, “What matters, at bottom, is what an employee does. And implicit in our decision in Hosanna-Tabor was a recognition that educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school.”

His opinion was joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Stephen G. Breyer, Kagan, Neil M. Gorsuch, and Brett M. Kavanaugh. Thomas wrote a concurrence, joined by Gorsuch.

Sotomayor, in her dissent, said the majority reached its result “even though the teachers taught primarily secular subjects, lacked substantial religious titles and training, and were not even required to be Catholic.”

The court’s decision “portends grave consequences” for more than 100,000 “secular” teachers in religious schools, she said.

“And that says nothing of the rights of countless coaches, camp counselors, nurses, social-service workers, in-house lawyers, media-relations personnel, and many others who work for religious institutions,” Sotomayor said. “All these employees could be subject to discrimination for reasons completely irrelevant to their employers’ religious tenets.”

A Mix of Strong Reactions

Douglas Laycock, a law professor at the University of Virginia and a leading expert on the the First Amendment’s religion clauses, said he viewed the decision as an application of the Hosanna-Tabor ruling and not an expansion of the ministerial exception.

“I think this decision draws the line pretty much where the lower courts had drawn it before Hosanna-Tabor,” said Laycock, who joined a friend-of-the-court brief supporting the Catholic schools in the case. “The lower court cases were not unanimous, but whether the teacher taught religion was a key variable. I don’t think the [Supreme] Court will expand this to say that those who teach only secular subjects are ministers, even if they are expected to be role models.”

Laycock said he believed that most teachers in religious elementary schools may be considered ministers, because they teach the whole curriculum, including religion. But most teachers in religious middle schools and high schools will not be, “because they each teach a particular subject, and most of those subjects are secular,” Laycock said.

Adrian Alarcon, a spokesperson for the Archdiocese of Los Angeles Catholic Schools, which oversees Our Lady of Guadalupe and St. James schools, said in a call with reporters that “Catholic school teachers play an essential role in teaching and inspiring and advancing the faith. The threat of government intervention in our schools, and decisions about who may or may not teach the faith to our students went to the very heart of the mission of Catholic education. But today we are blessed that the Supreme Court of the United States has confirmed that Catholic schools have the right to choose who may teach the faith.

Eric C. Rassbach, a vice president and senior counsel at the Becket Fund for Religious Liberty, who argued the schools’ case before the court, said “this is a huge win for all faiths.”

The court said “if you are teaching religion at a religious school, then you fall within this ministerial exception,” he said. A significant factor is what teachers “do all day,” he said. “If one of the things they do is teach Catholic school kids what to believe about Catholicism, then the government really needs to stay out of it.”

Sunu P. Chandy, the legal director of the National Women’s Law Center, which filed a friend-of-the-court brief supporting the teachers, lamented that the decision gives a “blank check” to religious employers to discriminate.

“This is a very unhelpful and dangerous decision for workers’ civil rights protections,” said Chandy, who co-wrote the brief that was also signed by numerous other groups including the American Federation of Teachers and the National Education Association.

The decision will be far-reaching for teachers in religious schools, the majority of whom are women, she said. But the court’s opinion offers little that would limit it to the education context, Chandy said. And besides the age and disability discrimination alleged in the two cases before the court, the ruling would extend to any protected area, such as sex discrimination, sexual orientation or gender identity bias, or even such matters as wage and hour protections, she said.

“It is open season now for religious employers to continue to discriminate on all of these grounds,” Chandy said.

Rachel Laser, the president and CEO of Americans United for Separation of Church and State, said the decision “elevates a distorted notion of religious freedom over fundamental civil rights.”

“The ministerial exception is meant to apply only to genuine faith leaders,” Laser said in a statement. “It should not be exploited to justify discrimination against math, gym, and computer teachers, who clearly aren’t ministers.”

Contraceptive-Mandate Exemption Decision

In a separate decision Wednesday, the court also sided with religious employers in upholding the Trump administration’s rules providing religious and moral exemptions from the contraceptive-coverage mandate of the Affordable Care Act.

The court ruled 7-2 in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania (No. 19-431) that the administration had the authority to offer the exemptions and followed proper administrative procedures in promulgating them.

Legal fights over the contraceptive mandate and the exemptions have been raging for years, and in an earlier case before the Supreme Court, several religious high schools and colleges were among the religious institutions that objected on faith grounds to playing any role in facilitating contraceptive coverage for their employees.

Writing for five members of the majority, Justice Clarence Thomas said that for the past seven years, the Little Sisters, “like many other religious objectors who have participated in the litigation and rulemakings leading up to today’s decision ... have had to fight for the ability to continue in their noble work without violating their sincerely held religious beliefs.”

His opinion was joined by Roberts, Alito, Gorsuch, and Kavanaugh. Kagan concurred in the outcome on other grounds, in an opinion joined by Breyer.

Ginsburg wrote a dissent, joined by Sotomayor. that said the court “leaves women workers to fend for themselves, to seek contraceptive coverage from sources other than their employer’s insurer, and, absent another available source of funding, to pay for contraceptive services out of their own pockets.”

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A version of this news article first appeared in The School Law Blog.