Category: church universities

CHURCH SCHOOL HANDBOOK LITIGATION PRECLUSION CLAUSES

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 Unpublished (NJ App., 2020), the parents wanted alleged bullying addressed, demanded one child be named 8th grade class valedictorian, and refused to allow a daughter to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.

CHURCH LITIGATION DISCOVERY: CONFESSIONAL PRIVILEGE AND DAUBERT SCREENING

The most expensive components of a lawsuit revolve around the briefing phases necessitated by motions, discovery and discovery disputes, and trial. Discovery, which includes written questions under oath in the form of interrogatories and written depositions, actual forensic depositions before court reporters, and document searches and production. In church litigation, due to First Amendment issues briefing is usually the predominate expense. Also, the matters at issue are often non-economic, or economically fragile, and the parties quickly reach financial exhaustion. Financial exhaustion can cause abandonment of even a good claim and certainly makes non-economic claims, battles over principal, increasingly less attractive. One of the cost elements may be that the money spent on an expert witness may not result in useable testimony. FRCP Rule 702, sometimes referred to as a Daubert challenge because of the case from which the modern application of the rule for the most part emerged, requires a court to act as a gatekeeper to preclude “junk science” and opinions without material basis from contaminating the trial.

In Stevens v Brigham Young University – Idaho, Memorandum Decision and Order (D. Idaho, September 24, 2019), the federal trial court issued another decision regarding discovery disputes. In our May 4, 2019 post we reported the court’s decision regarding certain discovery disputes which included: whether the denomination and the church university had a common interest attorney client privilege, the university’s demand for a psychiatric examination of the Plaintiff because of her claim of emotional injury, and the university’s demand the Plaintiff waive the priest – penitent privilege. In May the court did not find evidence of a common interest, permitted the psychiatric examination, and refused to abate the priest – penitent privilege. In the September order, the court held the denomination, which was a third-party intervenor and not the defendant, was still subject to discovery. In a role reversal, instead of protecting her priest – penitent privilege, the Plaintiff waived it to force “an ecclesiastical leader” of the denomination to answer deposition questions but the denomination sought to impose it to bar the deposition. The Court held the priest – penitent privilege in this situation could only be imposed by the penitent, the Plaintiff, and not the church denomination. The Plaintiff demanded to know the precise amount of financial support the university received from the denomination, but this request was denied by the Court because the university and the denomination stipulated the denomination would pay any judgment against the university making precise answers irrelevant. However, the Court did order the denomination to produce copies of notices to church members of the denomination’s financial support to the university. Also, a friend and confidant of the Plaintiff was prepared for deposition by the denomination and university and they also apparently selected and paid for the friend’s lawyer. The Plaintiff sought discovery of the engagement of the lawyer and the source of funds to pay the lawyer, both of which the Court permitted for whatever impeachment value it might have. Plaintiff’s expert was also vetted by the Court and the expert’s testimony limited to his studies of the denomination’s hierarchal structure. The expert was prohibited from issuing an opinion in Court testimony that the hierarchal structure of the denomination, or its religious teachings, caused the Plaintiff to be sexually manipulated and abused by a university professor. Though this is our second report on this case, it does not appear to be at an end.

The lesson for denominations is that intervention in litigation in which a subordinate church or parachurch organization is a party may subject the denomination to the broader discovery permitted against parties. Also, the Court was applying the newest version of the federal priest – penitent privilege, which can only be asserted by the priest on behalf of the penitent but not on behalf of the priest. Further clash with certain denominations can be expected. The last lesson is about expensive experts in church litigation. Even if they are allowed to report on studies the expert conducted or wrote about the denominational structure or polity, making the inferential leap to causation of the specific harm alleged will likely be deemed speculative or not within the scope of the expert’s credentials.

CHURCH DOCTRINE HIRING AND FIRING

There are as many different doctrinal approaches to gender and sexual orientation issues among church traditions, denominations, and doctrinal pronouncements as there are fall leaves. Further, among some groups, these doctrinal approaches are changing. The development of doctrine in these areas has created tremendous friction in some churches and denominations.

In Garrick v Moody Bible Institute, Memorandum Opinion & Order (ND ILL, ED, 2019) the federal trial court dismissed the faculty Plaintiff’s case, some parts with prejudice and other parts without prejudice which might allow an amendment of the Complaint. The Plaintiff claimed she was terminated as an instructor of communications (a speech teacher) by the defendant religious university after two years of employment because of her advocacy in favor of women serving as clergy members. Plaintiff admitted that the religious school supported a “complementarian doctrine” which precluded women from certain church leadership roles. Indeed, Plaintiff allegedly assisted a student to submit a complaint against Moody based on Title IX of the Education Amendments of 1972. Plaintiff alleged her actions in fostering the complaint resulted in “backlash” from other faculty members in a shared workroom. Plaintiff was placed on internal leave prior to termination and allegedly discussed it with other faculty members and students. Immediate dismissal followed. The case was dismissed because of the entanglement with religious doctrine admitted by Plaintiff in the issues raised by Plaintiff. The court allowed an amended complaint only as to Title VII employment discrimination claims not related to religious doctrine.

Employers like the defendant accomplished nothing by trying to soften an adverse employment action by use of reduced or back office duties except to prolong the organizational agonies and create further opportunities for conflict. This is especially true with a zealous advocate or zealous troublemaker. Take an adverse employment action or do not but do not engage in halfway measures. There are few industries in which “counseling out of the business” actually works. Religious organizations should make hiring decisions consistent with religious doctrine so that they need not make firing decisions based on it. New hires should sign a statement of doctrines, a morals clause, and a statement that their job has a role in implementing the religious doctrine – by example if nothing else.