Lawsuits against church schools regarding federal employment law claims (and most state employment law claims) were addressed in the prior post about the most recent United States Supreme Court pronouncement.  Apparently, the ecclesiastical abstention doctrine may also apply to expulsions from church schools.

In Doe v Archdiocese of Galveston – Houston, Slip Op. (Tex. Civ. App., 1st Dist., 2020), the church school expelled a first grader and a pre-kindergartener.  The first grader had behavioral problems that, while they might have been a bit more tempestuous than the average first grader with such problems, were not insoluble.  Nothing was said in the opinion about the behavior of the pre-kindergartener.  Nevertheless, the parents and the first grade teacher were not on the same page so the parents installed in the first grader’s pants a recording device so the parents could either, both were allegedly, (1) catch the teacher verbally abusing the child or (2) record the child’s misbehavior for further study and intervention.  The recording device was discovered when the child complained that his pants were uncomfortable.  The expulsion followed.  The appellate court affirmed dismissal of the case on ecclesiastical abstention grounds and the appellate court affirmed.  The opinion contained a rather broad statement of Texas law:  “The parties do not dispute that both St. John Paul II School and the Archdiocese are faith-based institutions, that [the principle and teacher] were employees of the school, and that [the school coordinator] acted on behalf of the Archdiocese.  Therefore, all the defendants are protected from governmental interference by the Free Exercise clause of the First Amendment to the United States Constitution.”

There should not have been a lawsuit in which allegedly dysfunctional parents were pitted against an allegedly dysfunctional church school.  The case should have been dismissed for failure to state a claim, even in Texas, without resort to the First Amendment.  Further, for the behavioral problems, rather than simply complaining weakly to the parents, that may not have been effectively parenting for a variety of reasons, the church school should have engaged an outside licensed professional counselor for consultation with the parents.  The idiocy of turning a child’s pants into a surveillance device might never have come about.  An archdiocese as large as this one had those resources at hand, probably for free or a nominal charge, and even the smallest church school can locally obtain those services in this day and age.  To use the lofty ideal of church state separation to end this lawsuit was demeaning, even if correct.

Nevertheless, every employee of the archdiocese and their conduct was shielded from review in a tort lawsuit about allegedly secular behavior (no mention religious directed misbehavior per se was listed in the opinion).  The result is that litigation against church schools in Texas will be highly problematic no matter what the underlying reason.

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