Law & Courts

Next Up at Supreme Court: Employment Rights of Parochial School Teachers

By Mark Walsh — May 07, 2020 7 min read
A woman walks past the U.S. Supreme Court, which is hearing oral arguments via livestreamed telephone due to the coronavirus pandemic.

The U.S. Supreme Court will hear arguments Monday in a pair of cases that will likely determine whether tens of thousands of teachers at religious schools are protected by the nation’s employment-discrimination laws.

Advocates and allies for two Roman Catholic schools in the Los Angeles area say it is a matter of religious freedom that such laws not interfere with the right of churches and religious schools to choose their ministers, which includes not just those who preach from the pulpit but also those who teach the faith.

“The claim that employment-discrimination laws must apply fully to teachers in parochial schools reflects a misunderstanding of those laws, and of the secular government’s limited authority over essentially religious matters,” said Richard Garnett, a law professor and director of the program on church, state, and society at the University of Notre Dame.

But lawyers for two teachers who allege they were fired from the Catholic schools for discriminatory reasons say lay teachers with minimal religious duties are not “ministers” for the purposes of the “ministerial exception” to the civil rights laws that the Supreme Court recognized for religious employers in a 2012 case.

“Religious employers sincerely believe that virtually all of their employees perform important religious functions,” says a brief for the two teachers. “An unduly broad conception of the ministerial exception may invite the use of the First Amendment to shield otherwise prohibited employment decisions from legitimate scrutiny.”

Garnett, who has joined a friend-of-the-court brief supporting the schools, said in reference to the ministerial exception that “the parties on both sides of these cases understandably believe that it’s vitally important to get some clarity and guidance from the court about the scope and reach of this right.”

Part of Telephone Argument Session

In the 2012 decision, Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, the Supreme Court held that church and religious school employers are exempt from anti-discrimination laws with regard to their workers who are deemed to be ministers of the faith.

The justices did not establish a specific test for determining when an employee was covered by the ministerial exception, ruling that courts must examine the specifics of each case. The court held that the Lutheran church and school in the case could claim the ministerial exception in the disability-discrimination suit filed by a teacher because the teacher was a called minister of the Lutheran faith, basing the determination on her title and the religious functions she performed.

Lower courts have been hashing out the limits of the exception, with seven federal appeals courts and the highest courts of at least six states relying on a “ministerial function” approach, in which the employee’s job duties are the key factor in determining whether the employee falls under the ministerial exception.

But in decisions involving the Los Angeles-area Catholic schools, two separate panels of the U.S. Court of Appeals for the 9th Circuit, based in San Francisco, held that the employees’ religious duties alone were insufficient to invoke the ministerial exception, and that the exception was ordinarily applied to those with “religious leadership” roles.

Those decisions would have reinstated the fired teachers’ lawsuits, but that is on hold as the Supreme Court granted review of the schools’ appeals. The cases are Our Lady of Guadalupe School v. Morrissey-Berru (No. 19-267) and St. James School v. Biel (No. 19-348).

The cases are consolidated and will be argued May 11 during the second of two weeks of historic livestreamed telephone arguments being heard by the justices because of the coronavirus pandemic.

The case from Our Lady of Guadalupe School, in Hermosa Beach, Calif., involves teacher Agnes Morrissey-Berru, who taught 6th grade beginning in 1999 and later 5th grade, 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.

In the case involving St. James School, in Torrance, Calif., a former 5th grade teacher, Kristen Biel, 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 the school would not renew her contract because the teacher’s classroom management was “not strict” and that “it was not fair ... to have two teachers for the children during the school year,” court papers say. Six months earlier, Biel had received a largely positive evaluation from the principal.

Biel sued under the Americans with Disabilities Act of 1990, which bars employment discrimination based on disability. The school moved for summary judgment based on the ministerial exception.

Biel died last year and her case for damages is being carried on by her husband.

Not the Janitor or IT Person

The schools argue in court papers that both teachers were themselves Catholic and were regularly involved in imparting the Catholic faith to their students in daily lessons in religion and throughout other subjects, as well as through prayer, devotion, and Bible reading.

“They taught the Catholic faith to 5th-graders four-five days a week, covering a wealth of religious doctrine in a devotional manner intended not just to educate their students but to inculcate the faith in them,” the schools’ brief says.

The schools also say that the 9th Circuit’s view that the performance of religious functions by a teacher is not enough on its own to invoke the ministerial exception cannot be squared with the Hosanna-Tabor decision.

Eric C. Rassbach, a vice president and senior counsel of the Becket Fund for Religious Liberty, a Washington-based organization that is representing the schools, said the religious-function test would not necessarily sweep in all employees of a religious school.

“It’s not about all teachers at a religious school,” Rassbach said in an interview. “It’s just about those teaching religion. If someone is just the janitor, or just the IT person, or maybe the part-time art teacher, that person is not going to end up coming within the exception.”

The schools have many allies that have filed friend-of-the-court briefs in the case, including President Donald Trump’s administration, numerous religious organizations, religious liberty scholars, and others.

One friend-of-the-court brief filed in support of the schools by Paul D. Clement, a former U.S. solicitor general under President George W. Bush, notes that Jewish schools have faced conflicting rules on ministerial exception for their teachers.

“In Judaism, there is no concept of ‘called’ teachers, nor any requirement of formal commissioning, ordination, or extensive theological training before someone can teach Jewish doctrine to children,” Clement said in the brief.

Garnett, the Notre Dame scholar, said: “These cases are about protecting the civil and constitutional rights of religious institutions to decide religious questions for themselves.”

‘Strong Medicine’

Lawyers for the teachers urge the Supreme Court to reject the schools’ religious-function test.

“The ministerial exception is strong medicine” that gives religious employers “blanket immunity to violate employment laws regardless of any religious motivation,” says the brief signed by, among others, Jeffrey L. Fisher, a Stanford University law professor who will argue the teachers’ case.

The teachers’ side urges the court to stick with several factors emphasized in Hosanna-Tabor, which, besides religious function, included formal indications of ministerial status, such as a title, training, and whether the individual was held out as a spiritual leader.

Fisher says in the brief that the schools’ test would encompass not just lay teachers who sometimes instruct students in religious doctrine, but other teachers, counselors, and coaches who infuse religious principles and are required to act as role models.

“If the court adopts the schools’ test, there is little doubt that religious organizations will argue that every lay employee who works in any type of elementary or secondary schools, whether as teachers, directors, administrators, or auxiliary staff is performing a vital religious function,” Fisher says in the brief.

In a friend-of-the-court brief supporting the teachers, the National Women’s Law Center and the Leadership Council on Civil & Human Rights argue that religious employers have been seeking ever broader scope for the ministerial exception, raising it in employment suits by receptionists, technicians, and support staff. Also, they have asserted it against a broad array of claims, including sexual harassment and occupational safety.

“The ministerial exception affords religious employers an extraordinary immunity at great cost to their employees and society at large,” says the brief, which was signed by the American Federation of Teachers and National Education Association among other groups. “This court should apply the Hosanna-Tabor factors so that women, people of color, older workers, workers with disabilities, LGBTQ workers, immigrant workers, and those with multiple and intertwining protected identities, are afforded critical civil rights protections.”


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