SOMETIMES FREE SPEECH

Because youth pastors and leaders frequently are asked by young energetic believers what rules apply to the expression of religious belief in various settings, today we will step slightly outside the lane in which these reports generally stay.  Young believers are required to attend school, and school order and discipline must be maintained, but even there the First Amendment reaches within reasonable time and place restrictions.  On college campuses, one might expect fewer time and place restrictions outside of classrooms because many students reside on campus.  However, suppression of First Amendment rights are sometimes more prevalent on college campuses.  Discouragement of speech that is contrary to certain sensibilities gets the worst treatment.

In Uzuegbunam v Preczewski, Slip Op. (US 2021), the United States Supreme Court reversed the 11th Circuit and the trial court.  The issue the opinion primarily dealt with was whether a claim for nominal dollar damages, rather than compensatory damages, could alone preserve standing to pursue a First Amendment rights claim.  The Court held that standing to sue was preserved by a claim for nominal damages.  The Plaintiff was a student at Georgia Gwinnett College, a “public college,” and decided to “witness” or share his faith on campus.  The Plaintiff did so and had tracts to hand out, too.  But, campus law enforcement made him stop.  The college policy permitted free speech activities on .0015 percent of the campus by allowing it only two designated free speech zones, and then only after securing the necessary permit from the administration.  The Plaintiff applied for the permit and received it.  The Plaintiff went to the free speech zone and began speaking and tracting during the time allowed by his permit.  Campus law enforcement told him to stop.  The policy also prohibited speech that “disturbs the peace and / or comfort of person(s).”  Plaintiff was informed that there had been complaints about his speech which triggered the policy.  Initially, the college defended the claim alleging the Plaintiff’s speech constituted “fighting words” but “quickly abandoned that strategy.”  The college abolished the policy.  The trial court and 11th Circuit held the case was thereafter moot and dismissed it.  However, as noted above, because the Plaintiff sought “nominal damages” in addition to injunctive relief, the lawsuit could not be dismissed.  The lone dissent suggested that if the college allowed a stipulated judgment for nominal damages in the case, the case would end without further proceedings.

Reasonable time and place restrictions on speech may be enforceable but draconian restrictions intended to suppress free speech are not enforceable.  The youth pastor or leader needs to ask the student to obtain a copy of their student handbook which usually contains the rules.  The opinion was silent on the issue of attorney fee awards to the Plaintiff.  That is the real financial risk in a civil rights case because the damages sought are almost always going to be nominal, impossible to quantify, or in the proof only modest amounts.  Dismissal ended that risk in the reported case.  On remand to the trial court, especially after a successful appeal to the United States Supreme Court, an expensive type of appeal, that risk might be resurrected.

CHURCH PROPERTY REVERSION

Denominational church property reverts to the denomination if the local church ceases to exist or becomes no longer viable.  That is because most denominations include reversionary clauses in their organizational documents.  Local churches often also have such reversionary clauses in their organizational documents.  Not all deeds to property contain reversionary clauses.

In Central/Southern Illinois Synod of the Evangelical Lutheran Church in America v Trinity Lutheran Church of Kankakee, 2021 IL App 3d 190292-U, the appellate court affirmed summary judgment in favor of the denomination under the organizational document reversionary clause even though the property deed contained no reversionary clause.  The membership of the local church had dwindled to a dozen and the denomination had provided $400,000 in subsidies.  When a member of the local church changed the locks on the building and locked out the pastor appointed by the denomination, and rented the building to another church, the denomination invoked the reversionary clauses in the organizational documents.

PARSONAGE WARS – YES, THEY STILL HAPPEN

Generally, the “parsonage” is an obsolete tool of compensation because most ministers with families came to understand in the 20th century that home ownership was the largest and best investment working people could make.  Parsonages were useful to some churches with high ministerial turnover and as an in-kind compensation tool.  Nevertheless, some churches still use parsonages for a variety of good reasons.

In West Michigan Annual Conference of the United Methodist Church v City of Grand Rapids, Slip Op. (Mich. App. 2021), the city was so desperate for revenue it decided to deny parsonage status, and therefor exemption from ad valorem taxes, to the parsonage inhabited by the District Superintendent over 91 churches.  The assessed value was under $100,000.  The city argued the District Superintendent was an ordained minister but did not supervise a particular church making the parsonage ineligible.  The Court of Appeals affirmed the appeals board of the city in holding that the statute did not require that the minister be “over a particular church” and contained no such qualifying language.

Churches faced with a rogue local government attempting to impose taxation without justification or legal basis should not challenge the taxation without counsel.  A lawyer with a little experience with the local government in question can save a church a lot of money and consternation.  It is very rare that such questions arise and are litigated to this extent.  But, sometimes, even stupid lawsuits take on a life of their own and are impervious to common sense.

WHISTLEBLOWER CLAIMS

In the first published decision of 2021 that meets our criteria for reporting, we are confronted with some familiar facts and some new ones.  As the history of the last two decades has made clear, retaliation against whistleblowers by church leadership is often a path to escalating accusations and finally legal consequences possibly out of proportion to the fault of the church.

In Rehfield v Diocese of Joliet, Slip Op. (ILL., 2021), the Plaintiff was a church school principal.  A parent allegedly sent threatening emails to a teacher that resulted in a report to the pastor and eventually law enforcement.  The conduct was admonished but allegedly the parent escalated the communications that led to an arrest warrant.  The principal was allegedly instructed by the church not to alert other parents about the conduct of the errant parent.  However, when the photo of the parent was circulated to alert faculty and staff persons unknown leaked it to news media.  The news media report induced other parents to be upset they were not likewise notified.  The church terminated the employment of the principal but continued to pay her pursuant to her written employment contracts.  The opinion did not indicate a reason for termination from the record before the Court.  The plaintiff sued alleging a retaliatory discharge and violation of the Illinois Whistleblower Act.  The trial court dismissed the case, the intermediate appellate court affirmed and the Supreme Court of Illinois affirmed.  The retaliatory discharge claim was dismissed because the claim was only available to “at will” employees and not contract employees like Plaintiff.  The Whistleblower Act case was dismissed because the claim was held barred by the Ministerial Exception of the Ecclesiastical Abstention Doctrine arising from the First Amendment.  The Illinois Supreme Court relied on Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Comm’n, 565 U.S. 171 (2012) and Our Lady of Guadalupe School v. Morrissey-Berru, 591 U.S. ___, 140 S. Ct. 2049 (2020), both reported herein, regarding the analysis of the issue of whether the principal was a ministerial employee.  The Illinois Supreme Court held the principal was a ministerial employee because the evidentiary record below was uncontradicted.

Because the church reportedly paid out the employment contract of the principal, which may have resulted in full pay for a school year beyond the termination, the monetary damages claim would have been somewhat muted if the claim had been allowed to proceed.  In any event, the more important issue is that whistleblower claims by employees classified as ministerial by the evidence in the case are likely barred.  Certainly, because history has shown that schoolteachers may be held to be ministers, school principals seem more likely to be.  As history has also shown, churches that strike down whistleblowers may face societal condemnation.