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 Conn. 2017) (unpublished) (quoting).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.
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.
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.
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.