Category: Church K-12 Schools


Church and parachurch employers, especially church schools, struggle with whether federal discrimination statutes govern their employment decisions.  The First Amendment’s clear language, “shall make no law respecting an establishment of religion,” is constantly in doubt by some jurists.  To them, sweeping freedom cannot possibly be the intent of the draftsman.

In Billard v Charlotte Catholic High School, Order (WD NC, 2021), the Plaintiff started out as a full-time drama teacher and performed as such for over ten years.  During that time the Plaintiff’s heterosexual marriage to a woman ended in divorce.  During that same time, the Plaintiff began a relationship with a male.  The Plaintiff retired from full time teaching but continued as a substitute teacher for two years.  The Plaintiff was not required to sign an employment contract as a substitute teacher.  During that period, the Plaintiff announced on Facebook engagement to a male.  Thereafter, Plaintiff was not recalled to substitute.  Upon inquiring about why no further substitute teaching assignments were forthcoming, Plaintiff was told by an Assistant Principal that Plaintiff could no longer act as a substitute teacher because of the Facebook announcement of same sex engagement.  The federal trial court granted summary judgment to Plaintiff on a Title VII discrimination claim.  Because Plaintiff was a teacher of a secular subject, because the school did not require religious training or duties of such teachers, and because the school did not require the teachers to ascribe to any particular denomination, the federal trial court held the Ministerial Exception did not apply.  The federal trial court held “as of now, religious employers have strong legal protections for hiring and firing employees who have a role in promoting their religion’s message if the employment decision is religiously motivated.”  The Plaintiff, however, had no such duties and the church school was not shielded from Title VII duties or liabilities.

Church schools that intend for their employees to comply with church doctrine should require it in employment contracts.  Those contracts should contain morals clauses.  Those same rules should appear in employee handbooks.  Both should be drafted by lawyer.  The employee should sign a receipt for the handbook.  The absence of both the handbook and the contract in the reported case probably contributed to the outcome.  Another problem arises when a church school cannot make up its mind about whether it is, or is not, denominational, non-denominational, or secular.  In the reported case, the secular subject teachers may have been separated from religious instruction or observance, which seems anachronistic in a church school.


Unlike public schools, private schools in general and church schools specifically, can adopt student handbook clauses that limit the right of students to remain enrolled or re-enroll if their parents or guardians decide to engage in litigation with the school or church.  The reason private schools and church schools can include such a provision is that they are not state actors and no constitutional rights of the student or parent are implicated.  The rights of the private schools and students are contractual at best and the handbook can be part of the contract terms.

In Phillips v Archdiocese of Newark, Slip Op. Unpublished (NJ App., 2020), the parents wanted alleged bullying addressed, demanded one child be named 8th grade class valedictorian, and refused to allow a daughter to play on the boys’ basketball team when insufficient girls volunteered to play preventing team formation.  When their demands were not met, they sued the church and school.  Initially, the children were expelled because of violation of the school handbook litigation preclusion clause but the church and school allowed the students to return.  The trial judge entered an order requiring the school to allow the female student to play on the boys’ basketball team for the remainder of the school year when insufficient players emerged to form a female squad.  A month after the students were allowed back and the judge ordered the student to be allowed to be a player, the parents sought to name eighty members of the school and church as defendants.  The church and school refused to re-enroll the students for the next school year.  It should be noted the church school was a K – 8th grade school.  The trial court refused to order re-enrollment and awarded discovery sanctions against the parents of $16,516 for refusing to answer questions at depositions.

School handbook litigation preclusion clauses are enforceable in many states.  Some courts may attempt to preserve the status quo during the pendency of a case by holding them in abeyance temporarily.  Most will recognize that the litigation has sufficiently disrupted the status quo that preservation is not likely.  Like any regulatory handbook measure, history seems to teach that hesitancy in enforcement merely prolongs the dispute.  Thus, such a clause should be enforced, if it is to be used at all, without delay, second chances or second guessing.


Sitting in the classroom, thinking it’s a drag

Listening to the teacher rap just ain’t my bag

The noon bells ring, you know that’s my cue

I’m gonna meet the boys On floor number two!

Smokin’ in the boys’ room

Smokin’ in the boys’ room

Now, teacher, don’t you fill me up with your rules

But everybody knows that smokin’ ain’t allowed in school.

Brownsville Station, Yeah! (Album), 1973.

The song may not have been ecclesiastical but the rules prohibiting on campus vaping at church schools may be.  Further, other alleged misconduct, such as spraying water all over the boy’s restroom from a broken hose, or stopping up toilets, may also be the subject of rules of conduct that are ecclesiastical as articulated or interpreted.  Finally, the decision to suspend or expel a student may not be reversible by a court because it might require an entanglement of the court in religious beliefs that drive the interpretation of the alleged conduct, or even church membership decisions.

In the case of In Re Prince of Peace Christian School, Slip Op. (Tex. Civ. App., 5th Dist., 2020), two students were ultimately expelled from a church high school.  The students were allegedly part of a “wolf pack” that was allegedly engaged in vaping on campus, a locker room gathering in which genitalia was drawn and “homophobic” comments were made, spraying the bathroom with water from a broken hose and stopping up toilets.  The conduct allegedly violated the school’s “code of conduct” found in the student handbook.  The relationship deteriorated and the students’ parents refused to confer with school administrators regarding the conduct except through their attorney.  The parents threatened litigation if their children were disciplined.  The parents sued and claimed the school breached the contract to educate their children and engaged in tortuous conduct while monitoring their children, especially in the bathrooms.  The trial court denied the motion to dismiss.  The church school sought from the appellate court a mandamus of the trial court to dismiss the case.  Even though the parents denied presenting any theory of recovery that would require review of ecclesiastic pronouncements, the appellate court held that “[w]e cannot divorce Parents’ contentions of abuse, harassment, and failure to report abuse, from Prince of Peace’s supervision and discipline of Students, its investigation of Parents’ complaints, and its ultimate expulsion of Students and their families.”  Therefore, the Court concluded the intrusion of the Court into ecclesiastical issues would represent too great an entanglement and the case was ordered dismissed.

Public schools in most states have protection from litigation micromanagement because sovereign immunity doctrines or statutes limit such litigation to a narrow band of claims.  Indeed, while the limitations on claims arise from different sources, the resulting safe zone of school administration might be similar.  While criminal conduct toward children would never be tolerated in either public or church schools, one might wish the lack of parenting would not be tolerated either.  Sadly, society has not yet developed a solution for the lack of parenting.


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.