Court Says State Civil Rights Commission Has Jurisdiction Over Homeschooling Organization

In Fishers Adolescent Catholic Enrichment Society, Inc. ["FACES"] v. Bridgewater, (IN Ct. App., May 29, 2013), an Indiana appeals court affirmed most of the decision of an administrative law judge in a suit brought by the Indiana Civil Rights Commission against FACES, a non-profit group created to provide enrichment opportunities for home schooled children.  The Civil  Rights Commission became involved when one family complained that FACES refused to make health-related dietary accommodations for their daughter at a masquerade ball sponsored by the organization.  Then the family was expelled from FACES after it filed the civil rights complaint, and they supplemented their complaint with a retaliation claim. (See prior related posting.) FACES argued, among other things, that permitting the state civil rights commission to intervene would constitute religious entanglement in violation of the Establishment Clause. The court disagreed:

Homeschooling and religion are two areas in which people can largely expect to be free of government regulation, and often they are intertwined. Parents have many reasons for choosing to homeschool their children, but a common reason is a desire to provide moral or religious instruction. In this instance, parents make a conscious choice to place themselves outside state authority as it relates to their child’s education.... We are sensitive to this and wary of intruding upon their freedom to do so. And yet we believe that a group—even a religious one—may take certain steps to place itself within the purview of the ICRC in this state. ...

The ICRC inquired into FACES’ accommodation of Alyssa’s dietary needs and retaliatory expulsion of the Bridgewater family. There is simply no religious entanglement issue here—there is no evidence that either of these inquiries resulted in governmental interference with the tenets of the Catholic faith.

The administrative law judge and the court held for plaintiffs only on the retaliation claim. The ALJ ordered in part that the family be reinstated into membership in FACES.  FACES argued that this order is not permissible under the Supreme Court's Hosanna-Tabor ministerial exception decision because it interferes with the group's ministering to one another. The Indiana court disagreed, saying: "This is not an employment case, FACES is not a religious employer, and the ICRC is not ordering FACES to make anyone a minister." The court also rejected FACES' expressive association claim. However it reversed the ALJ's order that the ALJ's decision be posted on all websites on which FACES has communicated information regarding this case.

Judge Bailey wrote a separate opinion concurring in the result, but arguing that the majority in dicta interpreted the Civil Rights Commission's authority too broadly. He said in part:

I do not think the reach of the ICRL extends so far as to encompass a social activity like the Masquerade Ball. Put more simply: I do not think, based upon the language of the ICRL, that the ICRC would have properly had subject matter jurisdiction over the Bridgewaters’ complaint were it not for FACES’s retaliatory conduct.

The Indianapolis Star reports on the decision.