In states that have adopted the Neutral Principles Doctrine in non-religious issue church disputes employment contracts with non-clergy are enforceable in court. A church can contractually impair or limit the First Amendment Ecclesiastical Abstention Doctrine and the Ministerial Exception Doctrine. The financial aspect of the contract will typically not be deemed ecclesiastical even if reinstatement as a remedy is not available under these Doctrines. Courts will be reluctant to try to force reinstatement on a religious organization even for non-clergy and prefer a financial remedy. But, the remedy could be technically available.
In Saint Augustine School v Cropper, Slip Op. (KY 2017), the very brief opinion of the state supreme court did not explain why the elementary school “lay administrator” was in fact “lay.” The “lay administrator” was rehired under a written contract but then shortly after that terminated in what the court seemed to describe as a reduction in force required by a financial downturn at the school or the church. The opinion was silent as to any other reason for termination. The lower court granted summary judgment to the church based on the Ecclesiastical Abstention Doctrine. The Ministerial Exception Doctrine was not asserted by the church. Thus, the Kentucky Supreme Court reversed the lower court on neutral principles grounds.
Written employment contracts are two edged swords. Churches should use them as do businesses to reduce their exposures. But, doing it badly or autonomically usually leads to unintended consequences. Most states in the west have adopted the “at will” employment doctrine. It applies when there is no written or implied contract. State law regarding “at will” employment doctrine should be considered in the evaluation of the need for and contents of an employment contract. Written employment contracts should have a limited duration, typically short, and expressly state renewal is not automatic even if employment continues beyond expiration. There are many other considerations.
It seems accepted that churches are shielded by the Ecclesiastical Abstention Doctrine and most cases against them will simply be dismissed. The outer edge of the doctrine is still uncertain at times. The para-church organization must be proven to be religious in purpose and operation to be shielded by the Doctrine.
In the opinion styled In Re Episcopal the Episcopal School of Dallas, Inc., Slip Op. (Tex. App. 5th, 2017), the Plaintiff was a student. The Plaintiff allegedly left campus during lunch without permission, parked in front of a residence and smoked Marijuana, denied it even though the other student involved confessed, refused to allow a search of his car, substituted another student’s sample for his urine for a drug test, and failed a drug test once the right urine was tested. The student was dismissed from the school. The trial court refused to dismiss the case. The Plaintiff argued to the trial court that the school was not owned or operated by a church and that the dispute was governed by the admissions contract between the school and the student thus making the Ecclesiastical Abstention Doctrine inapplicable. The Court of Appeals, however, examined the school’s articles of incorporation, composition of its governing board, worship service schedule, faculty, and determined there was “only one reasonable conclusion.”
The Court of Appeals held that the school was a “religious school” or a “faith based institution.” The school had on the faculty Episcopal priests that led the student body in daily worship. The Bishop of the Diocese sometimes officiated. There was mandatory religious instruction. The student’s claims derived “solely from the calculus of the school’s internal policies and management of its internal affairs.” The school’s lack of a formal affiliation with a church or denomination did not make inapplicable the Ecclesiastical Abstention Doctrine. The “secular contract approach” urged by the student “did not apply when the claimed breach of contract arises from an enrollment agreement at a faith based institution.” That the dispute was not in all respects about religious doctrine was not the test. Enough of the dispute was entangled in religious considerations to require application of the Doctrine.
In order to determine if federal employment discrimination statutes apply to the employee of a para-church organization, a court will look to the descriptions of the employment both sides tender into evidence. On a Motion to Dismiss at the beginning of a case, this may be a very limited inquiry. Typically, motions to dismiss look only to the Plaintiff’s allegations in the Complaint or Petition and to any documents attached. On a Motion for Summary Judgment filed after discovery the range of admissible facts and exhibits may be quite broader.
In Lishu Yin v Columbia International University, Order and Opinion, (D. SC – Columbia, 2017), the Plaintiff attached an employment contract to the Complaint and made certain allegations about her employment role. The Court overruled the Motion to Dismiss. The Court determined that the description of the Plaintiff’s job in the employment contract did not establish that Plaintiff was a minister such that the case barred pursuant to the First Amendment’s Ministerial Exception. The employment contract described the job as “associate professor” and “faculty of the ministry.” The Plaintiff self-described her role as a full time resident faculty member in the “Masters of Teaching English as a Foreign Language” program. The Court held that these descriptions were not sufficient to persuade that Plaintiff was a “minister” triggering the Ministerial Exception.
The employment handbook of the institution and the employment contract cannot alone trigger the Ministerial Exception if they do not describe the ministry the jobholder is to perform. Further, the description should reflect the age or maturity level of the students, not simply be overly general boilerplate, and the handbook and contract should dovetail by referring to each other’s latest version, even if the version is not stated.
This review of church law has now been ongoing long enough to occasionally note developments in individual cases. In the post titled The Finger in the Dike, July 6, 2017, the Supreme Court of Michigan’s opinion in Winkler v Marist Fathers of Detroit, Inc., Slip Op. (Mich. 2017), was summarized. In that case, 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 and that the disability was unknown to the church school at the time the admission decision was made.
The Supreme Court revised its own prior pronouncements that the Ecclesiastical Abstention Doctrine was jurisdictional and indicated it was not jurisdictional. If a dispute could be decided on neutral principles that did not require an inquiry into ecclesiastical decisions, then the dispute could be resolved by a Michigan court according to the Michigan high court. As we noted when we summarized the decision, the smaller and weaker the Ecclesiastical Abstention Doctrine is defined the more likely it becomes that a court, even a well meaning one, will simply ignore ecclesiastical sensibilities. Another risk is that churches will be required to comply with laws intended to govern for-profit businesses and local governmental subdivisions, even though churches have a more fragile financial base. Thus, the Michigan Supreme Court reversed the intermediate appellate court decision and ordered it to consider the arguments it had not reached. The applicability of the Ecclesiastical Abstention Doctrine was left for the trial court to determine.
In Winkler v Marist Fathers of Detroit, Inc., Slip. Op. (Mich. App., September 21, 2017), the Court of Appeals ruled that Michigan laws requiring schools not to discriminate on the basis of disability applied to church schools, too. The law allowed church schools to discriminate on religious grounds, i.e., exclude a student that was not an adherent to the beliefs of the church school but not based on disability. Thus, the case was remanded to the trial court to determine whether there was any ecclesiastical issue barring consideration of the dispute and whether the school based its admission decision on the alleged disability of the Plaintiff.
Another implication that might arise is the financial burden on the church school. If the trial court decides there is no ecclesiastical issue it could also decide the only issue is whether the admission decision was discriminatorily based on disability. To avoid such an issue in the future, or because it is enjoined or otherwise prohibited from making admission decisions based on academic performance for fear that lurking within is an undisclosed disability, the church school might also be forced to admit an academically challenged student and then might be forced to allocate accommodation resources (e.g., lower performance expectations, tutors, learning disability professionals). The taxpayers have been unwilling in most places to fund these accommodations in public schools and public budgets have only been able to pay lip service to these needs. As a result, public school systems struggle to meet these requirements and usually fail. Church schools might get the opportunity to fail as well because donated money may be no more plentiful than public money.