Tag: church schools

CHURCH EMPLOYMENT CONTRACTS

Generally, an employment contract in writing will be enforced even if one of the contracting parties is a church or para-church organization. “A church is always free to burden its activities voluntarily through contracts, and such contracts are fully enforceable in civil court.” Mis v Fairfield College Preparatory School, Slip. Op., 2017 WL 3174422 (Sup. Conn. 2017) (unpublished) (quoting).

The Mis opinion was a trial court order overruling a Motion to Dismiss. Thus, the case continued and the opinion was not the final word. Also, in Connecticut, like most states, obtaining a dismissal is difficult because the factual record has not been developed through any discovery and the Court has only the Plaintiff’s pleading before it which must generally be treated as true regardless of whether it is true unless it is implausible.

In Mis, the Plaintiff was a tenured teacher. The school employment handbook contained a morals clause. For tenured faculty, it also contained a right to a hearing on involuntary termination. The Plaintiff during a school fundraiser was alleged by a church leader to have engaged in immoral conduct, the nature of which was not specified in the Court’s opinion. Upon termination, the teacher demanded the hearing accorded in the handbook. The hearing was conducted and the teacher was exonerated. But, the church terminated the Plaintiff. The opinion of the Court does not explain the reason the church disregarded or overruled the hearing finding, but the Plaintiff sued for breach of contract. The Plaintiff alleged the handbook constituted an employment contract.

One lesson of this opinion might be that a church school should not provide a right to a hearing if the church school does not want to be bound by the outcome of the hearing. Also, the whole concept of “tenure” generally acts to create a contract that has to be limited by specific language in the handbook or contract that would fit tenure to the church school circumstance.

CHURCH SCHOOL MINISTERS

The Ministerial Exception when applicable bars enforcement of most state and federal employment laws against church employers and bars employment claims by most church employees. Church employees are almost always engaged in religious duties in parallel with non-religious duties. Para-church organizations, however, by their hybrid nature force the Courts to inquire more deeply and with some skepticism because the further from the actual church the organization is the murkier the application of the exception probably will be. A church school is a para-church organization if it is a separate corporate or legal entity which for financial and accounting reasons most are.

In Fratello v Archdiocese of New York, 863 F3d 190 (2nd Cir., 2017), the federal appellate court had to decide whether a “lay principal” of a church high school was a “minister” triggering the exception. The Plaintiff’s contract was not renewed for a fifth year as “lay principal.” The Court opinion did not specify the reason for non-renewal. The Plaintiff’s employment contract listed Plaintiff’s job title as “Lay Principal.” But, the courts looked at the actual duties described and performed. Religious instruction by the employee of the students was the primary factor. No formal ordination was required. The Court found that the “lay principal” was delegated religious duties by the local church pastor responsible for the school to the archdiocese. Finding the employee responsible for religious instruction of students triggered the exception and the case was dismissed which the appellate court affirmed.

One lesson from this opinion was that the Court explicitly stated there was no presumption that the principal of a church school was a minister triggering the exception. Counsel with such a case for a church school must convince the church school or its sponsor to search out the record of religious entanglements with the job of the former employee. For example, in Fratello, affidavits or written statements by other school personnel confirmed the Plaintiff’s involvement in religious instruction from the school intercom broadcast of a prayer or other religious message to the actual supervision of religious instruction teachers and classes. There was likely little or no written record of the former and maybe not of the latter.

INTRAMURAL ECCLESIASTICAL KERFUFFLES

It seems astonishing that a church member would, to enforce a claimed religious view of the member, litigate with the member’s own church.  But, that was what the Court called an Intramural Ecclesiastical Kerfuffle in Flynn v Estevez, Slip Op. (FL. App. 1st Dist. 2017).  The Plaintiff was the parent of a child headed to parochial elementary school and sued when the church school would not admit his child without a vaccination.  The Plaintiff sought an injunction to compel the church school to admit the unvaccinated child on the grounds the Plaintiff, as parent, had a right guaranteed by statute to omit vaccinations on religious grounds.  The church school, a church school of the very denomination of which the Plaintiff was a member, considered the requirement of vaccinations compliance with the “public good” and part of the church’s doctrine.

The Court held that the statutory parental right had to give way to the church’s constitutional rights which we by short hand refer to as the Ecclesiastical Abstention Doctrine.  Also, because the dispute was an “intramural ecclesiastical kerfuffle,” i.e., the religious view asserted by the Plaintiff was contrary to the religious view of his own church was, according to the Court, a “devotee’s tail wagging the corpus of church leadership.”  Because it would require discernment of religious doctrine to compare the beliefs of the Plaintiff to the defendant church school to chose between them, under Florida law the Court determined it did not have jurisdiction of the dispute and affirmed dismissal.  The Court went to on to hold, at least in dicta, that the operation of the church school made church school operations as religious as church administration.

While Florida views the Ecclesiastical Abstention Doctrine as a limitation on jurisdiction of the court, as learned a couple of days ago in the article The Finger in the Dike, Michigan does not.  The case reviewed in “Finger” was also a church school case.

THE FINGER IN THE DIKE

From the perspective of church defendants, any weakening in the shield wall of the Ecclesiastical Abstention Doctrine creates concern because the future courts that will operate under the doctrine may further weaken it.  At its best, the Ecclesiastical Abstention Doctrine might be viewed as a limitation on the jurisdiction of the third branch of government, the secular courts.  However, if it is not a limitation on jurisdiction, then the secular courts are free to rule to the full extent of their jurisdiction in any subject an argument can be made that secular law does not interfere with doctrinal freedom.  Moreover, the cost of compliance with secular law can reduce the freedom of religion by indirectly making the free exercise cost too much.  This is especially true in the church school.

In Winkler v Marist Fathers of Detroit, Inc., Slip Op. (Mich. 2017), the student applicant to the church high school asserted she was denied admission due to dyslexia.  The defendant church school claimed the admission was denied because the student’s academic record did not meet the admissions requirements.  Michigan held in 1994 that the Ecclesiastical Abstention Doctrine deprived the secular court of jurisdiction to hear church school admissions cases.  Thus, the Michigan Supreme Court took up the question of jurisdiction only and none of the other questions raised by the facts or parties.  The Michigan Supreme Court reversed the lower courts and held that the Ecclesiastical Abstention Doctrine does not deprive the court of jurisdiction.  The case was remanded for further proceedings.  Indeed, the case might still be dismissed by the lower courts on other grounds such as whether Michigan’s Persons with Disabilities Civil Rights Act applies to church schools and on Ecclesiastical Abstention Doctrine grounds if a religious reason for the denial of admission is revealed in discovery.

However, whereas before in Michigan the case would not have survived long enough to become an independent search for neutral principles under which to decide the case it now could.  Likewise, other cases on other topics could.  “Congress shall make no law respecting an establishment of religion” will be very narrow if it is limited in effect to the ecclesiastical questions and does not limit the larger regulation by government of the day to day affairs of a church, such as operating a church school.  No matter how “good” an idea it may be to force public schools to main stream all disabilities without commensurate adequate additional funding such a financial burden will close most church schools (and does not seem to be doing the public schools much “good”).  As the Ecclesiastical Abstention Doctrine shrinks in scope church schools will find themselves increasingly outside the shield wall.

THE GRAVEL CAN BE UNFORGIVING

Today the United States Supreme Court included the title of this post, which has been quoted here from that opinion, in its opinion determining that the state of Missouri violated the First Amendment by refusing to award grant money to an otherwise eligible non-profit for the replacement of pea gravel playgrounds with rubber matted playgrounds.  The rubber matting is poured and made from the recycling of tires.  The non-profit was a church.  Missouri refused to allow the church to be eligible for the playground grant because the Missouri constitution requires separation of church and state and the court in Missouri deemed playground resurfacing grants as an aid to established religion.

Thus, a non-profit that qualifies for a government benefit cannot be excluded simply because it is a church or para-church organization.  Trinity Lutheran Church v Comer, Slip. Op., ___ US ___ (June 26, 2017).

The church qualified for the grant because it was a non-profit, it served low income children in its school, its school was open to any student of any faith and not just church or denomination members, and the playground was used by the community as well as the school.  And, as the Court noted:  “the gravel can be unforgiving.”

While many will see this decision as both enlightened and fair to taxpayers that happen to be religious rather than permitting those taxpayers to be penalized because they have organized themselves into a church, government money should always be accepted cautiously.  It rarely is freely given and usually comes with compliance obligations.  For example, to qualify, the church also had to make a showing that it was developing or had a recycling program of some type.  While that is probably innocuous, other requirements in other programs might not be.

COMPELLING GOVERNMENT INTEREST IS ALWAYS COMPELLING – ESPECIALLY WHEN IT IS ABOUT TRAFFIC

There is nothing more annoying than when a statute passed to remediate a wrong is simply defined out of existence by judicial fiat.  The Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc et seq is such a statute.  The statute sets forth:

No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that the imposition of the burden . . . (A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest.

One would think the word “compelling,” the word “and” and the word “least” are simple and clear.  But, not so in the United States Court of Appeals for the 6th Circuit.  In the 6th Circuit, in Livingston Christian Schools v Genoa Charter Township, Slip. Op. (6th Cir. 2017), it took 22 pages to sweep these three words out of the way.

In order to deny a church and a religious school a “special use permit” for the school, the governmental interests that were compelling were:  traffic, that the church, not the school because it was a separate entity leasing space from the church, had a “history of failing to comply with its previous special-use permits” by being “disruptive,” and “inconsistency with the single family residential zoning of the surrounding area.”  Compelling these reasons were not by any rational view.

The 6th Circuit has a history of religious organization hostility and proudly recited it in the opinion.  For example, the 6th Circuit held in 2007 that denying a building permit so a church could build a multi-purpose building including a gymnasium was a “mere inconvenience” and not a “substantial burden.”

In the Livingston Christian Schools opinion, the 6th Circuit held that the school had another piece of property available to it that was only 12.1 miles from the subject property.  In other words, parents would have to drive in the morning and in the afternoon 25 miles to cover the round trip during the high traffic times of the day in a suburban traffic setting.  (In Oklahoma City, where I am located, we only have rush thirty minutes but my friends on both coasts are envious.)  I rather suspect that if the traffic was as compelling a governmental interest as the 6th Circuit held it to be, then that mileage would have strangled the school in short order.  The court noted the school had 139 students before its move to the church property, might have had 190 afterwards, but with the uncertainty of location looming because of the permit denial, might have an uncertain future.  That was not, however, “substantial.”

The 6th Circuit was critical of the school for not providing financial records or enrollment records to prove the necessity of its move to the church property it wanted to lease.  Given the enrollment noted above, it is surprising the school had sufficient resources to litigate at all, much less appeal.