9th Circuit: Ministerial Exception Doctrine Does Not Bar Parochial School Teacher's Suit

In Biel v. St. James School, (9th Cir., Dec, 17, 2018), the U.S. 9th Circuit Court of Appeals in a 2-1 decision held that a 5th grade teacher at a Catholic elementary school is not a "minister" for purposes of the ministerial exception doctrine. At issue was a suit under the Americans for Disability Act brought by a teacher whose contract was not renewed.  The majority said in part:

A contrary rule, under which any school employee who teaches religion would fall within the ministerial exception, would not be faithful to Hosanna-Tabor or its underlying constitutional and policy considerations. Such a rule would render most of the analysis in Hosanna-Tabor irrelevant. It would base the exception on a single aspect of the employee’s role rather than on a holistic examination of her training, duties, title, and the extent to which she is tasked with transmitting religious ideas.

Education Week reports on the decision.

NY Catholic Schools Say They Will Ignore New State Review System

As previously reported,  last month the New York State Education Department issued guidelines for Substantial Equivalency Review of the curriculum of non-public religious and independent schools.  According to the Albany Times Union earlier this week:

In a major rebuke to the state, leaders of New York's more than 500 Catholic schools say they will boycott a proposed new review system in which local public school officials are supposed to inspect the parochial schools and determine whether they offer a “substantially equivalent” education.

“The parents who choose our schools can have great confidence in the academic rigor of our schools,” said James Cultrara, executive secretary of the state Council of Catholic School Superintendents.

But, he added, “We simply cannot accept a competing school having authority over whether our schools can operate.”

Earlier, some Hasidic Jewish yeshivas had expressed defiance of the new rules. (See prior posting.) [Thanks to Steven H. Sholk for the lead].

Irish State Funded Catholic Schools Can No Longer Admit With Religious Preferences

CNN today reports on the change in school admission policies in Ireland that take effect this school year.  Some 90% of state-funded primary schools in Ireland are Catholic.  In the past, they have given priority to children who have been baptized as Catholic.  This has led some parents to have their children baptized only so they can be admitted into a high quality school.  In July, the Irish parliament passed a law prohibiting this favoritism

Teacher May Sue Catholic School For Pregnancy Discrimination

In Crisitello v. St. Theresa School, (NJ App., July 24, 2018), a New Jersey state appellate court reversed a trial court's dismissal of a discrimination suit brought against a Catholic parochial school by a former preschool lay teacher who had been fired for engaging in premarital sex. The teacher was terminated for violating the Church's ethical standards when it was found that she was pregnant and unmarried. Plaintiff sued under New Jersey's Law Against Discrimination, claiming pregnancy discrimination. The court said in part:

To be clear, in this case, plaintiff does not raise any challenge to defendant's religious doctrines or its right to specify a code of conduct for its employees based on that doctrine. Rather, she seeks an adjudication of her claim that she has been singled out for application of that doctrine as a pretext for impermissible discriminatory reasons. If proven, such conduct by defendant would be a violation of secular law protecting against discrimination....

In a case involving the firing of a pregnant employee, evidence of how male employees were treated is particularly useful in determining whether unmarried pregnant women are treated differently. Absent evidence that men are treated the same way as women who are terminated for engaging in premarital sex, a religious institution violates LAD because if "'women can become pregnant [and] men cannot,' it punishes only women for sexual relations because those relations are revealed through pregnancy." 

Canada's House of Commons Calls on Pope and Church To Respond To Residential Schools Settlement

On Tuesday, Canada's House of Commons by a vote of 269-10 called on the Catholic Church and Pope Francis to respond to recommendations in the 2015 Report of Canada's Truth and Reconciliation Commission.  The Commission was created as part of a settlement of lawsuits exposing abuses by the Residential School System which had operated for decades in Canada and had separated Aboriginal children from their families. CTV News reports on this week's action in Parliament:

Among the 94 calls to action by the Truth and Reconciliation Commission was a request for an apology -- to be delivered in Canada by the pontiff himself -- for the church's role in the residential school abuse of First Nations, Inuit and Metis children. An estimated 150,000 of children were forced to attend the schools, many of which were operated by the Roman Catholic Church.

But in March, the Canadian Conference of Catholic Bishops said that while the Pope acknowledged the commission's findings and expressed regret for past wrongs, he "felt he could not personally respond."

The Pope's decision pushed NDP MPs to launch the motion soon after, which also calls on the Catholic Church to pay money owed to residential school survivors and to turn over relevant documentation regarding the government-sponsored schools.

The House of Commons Journals for May 1 sets out the full text of the Motion and details of those voting on it [scroll down].

Puerto Rico Supreme Court Stays Seizure of Catholic Church Assets In Teacher Pension Dispute

AP reports that Puerto Rico's Supreme Court yesterday temporarily stayed a ruling entered earlier in the day by a trial court judge against the Catholic Archdiocese of San Juan. At issue is a lawsuit by Catholic school teachers seeking to preserve $4.7 million in pensions owed to them.  In 2016, the Archdiocese canceled pensions for current and former teachers because payouts exceeded contributions. The pension plan, created in 1979, did not require contributions by the teachers. Nearly half of the 80 schools operating in 1979 have now closed. The lower court had ordered seizure of any money or property owned by the Church in Puerto Rico to satisfy the pension liabilities. [Thanks to Scott Mange for the lead.]

Negligent Hiring Suit Against Catholic Diocese May Proceed

In Doe v. Norwich Roman Catholic Diocesan Corp., 2018 Conn. Super. LEXIS 45 (CT Super. Ct., Jan. 5, 2018), a Connecticut trial court refused to dismiss a suit alleging childhood sexual abuse of plaintiff at a Catholic school. The court said in part:

[P]laintiff has alleged negligent hiring and supervision of Brother Paul in his role as a school administrator, executive director, and teacher. Even if the plaintiff had alleged that Brother Paul was a priest ..., the "theological perceptions" of Brother Paul are irrelevant for the purposes of his fitness for ministry. Instead, any determination of whether the defendants evaluated Brother Paul's fitness for acting as a priest and teacher at the Academy center on his criminal conduct and/or propensity for the same.... [B]ecause the plaintiff has broadly alleged a secular negligent hiring and supervision claim as to Brother Paul's role as a school administrator, executive director, and teacher, the defendants' motion to dismiss ... is denied.

Civil Rights Suit By Catholic School Principal Dismissed Under Ministerial Exception Doctrine

In Nolen v. Diocese of Birmingham in Alabama, (ND AL, Sept. 1, 2017), an Alabama federal district court invoked the ministerial exception doctrine to dismiss a suit by a former principal of a Catholic elementary school who was fired from her position.  Plaintiff claimed she was fired for protecting Hispanic students and families from racial discrimination. Defendant claimed she was fired for embezzling funds.  After dismissing plaintiff's civil rights and breach of contract claims under the ministerial exception doctrine, the court dismissed her remaining state law defamation and interference with contract claims without prejudice so they could be refiled in state court.

Trial Judge Upholds Catholic School's Refusal To Re-enroll Students After Disruptive Year

NJ Advance Media reports that a New Jersey trial court judge yesterday, in a three-hour long decision read from the bench, upheld a Catholic school's refusal to re-admit two girls for this year after their father sued the school to get one of the girls on the boy's basketball team. The judge agreed with school officials that the parents had been disruptive to the school community, saying that the court does not have the authority "to meddle" in the school's ecclesiastical decision. The Archdiocese of Newark issued a statement on the decision.

Catholic School Teacher Stripped of Tenure May Sue

In Mis v. Fairfield College Preparatory School, 2017 Conn. Super. LEXIS 3741 (CT Super., June 20, 2017), a Connecticut trial court refused to dismiss a suit by a tenured teacher at a Jesuit prep school whose employment was terminated by the president of the school. The president insisted that teacher Jason Mis engaged in "moral misconduct" when he took an unauthorized ride in a golf cart at a country club during a fundraising fashion show for the school.  Mis requested a committee hearing on his dismissal, as provided for in the school's handbook.  The hearing committee concluded that Mis had not engaged in moral misconduct, and that termination of his tenure was not supported.  Nevertheless the school terminated Mis, who then sued for breach of contract and defamation.  The court rejected the school's attempt to raise the ministerial exception as a bar to jurisdiction.  It went on to hold that the suit may be adjudicated using neutral principles of law without deciding between competing definitions of moral misconduct.

2nd Circuit: Ministerial Exception Requires Dismissal of Sex Discrimination Claim By Catholic School Principal

In Fratello v. Archdiocese of New York, (2d Cir., July 14, 2017), the U.S. 2nd Circuit Court of Appeals held that the principal of a Catholic elementary school is barred by the "ministerial exception" doctrine from pursuing her claim that gender discrimination accounted for the school's refusal to renew her contract. The court said in part:

... [T]he plaintiffʹs claims are barred because she is a minister within the meaning of the exception.  Although her formal title was not inherently religious, the record reflects that, as part of her job responsibilities, she held herself out as a spiritual leader of the school and performed many religious functions to advance its religious mission.

The court noted some of the tensions inherent in the doctrine:

The irony is striking.  We rely in part on Fratelloʹs supervisorsʹ and faculty officialsʹ prior praise of her performance of her religious responsibilities as proof that she could be fired for the wrong reason or without any reason at all.... This case thus lies at the center of the tension between an employerʹs right to freedom of religion and an employeeʹs right not to be unlawfully discriminated against. The ministerial exception, as we understand it to be interpreted by the Supreme Court, resolves that tension in this case against Fratello and in favor of the Archdiocese, the Church, and the School.

New York Law Journal, reporting on the decision, says plaintiff will seek en banc review.

In Unusual Church Autonomy Dispute, Catholic School Can Require Immunization of All Students

In a case with an unusual twist, a Florida state appeals court yesterday upheld the policy of a Catholic school requiring immunization of all students, even when a parent has religious objections to immunization.  In Flynn v. Estevez, (FL App., June 27, 2017), the appeals court held that under the church autonomy doctrine, a civil court cannot require a religious school to comply with the provision in Florida law that allows parents to object on religious grounds to immunization of their children. It said in part:

...[T]he application of the statutory exemption to the Diocese is problematic due to the intramural ecclesiastical kerfuffle that underlies this dispute. The Diocese has a religiously-based immunization policy with which one of its members disagrees; Mr. Flynn seeks the power of the State to compel the Diocese to depart from its point-of-view and admit his non-immunized son. But doing so would further his own religious views at the expense of the Diocese’s on the topic of immunizations. We are convinced that a secular court should not be making the judgment as to which side’s religious view of immunization is to be respected.... Unlike other church autonomy cases, the unique feature of this one is that both parties assert Catholic religious doctrine as the basis for their litigation positions, which cautions against a secular court wading into the squabble.... 

Mr. Flynn claims the Diocese’s vaccination policy must be actually rooted in a specific religion doctrine, tenet, or text, and that its “general concern about the ‘common good’” is a religiously ineffectual basis for invoking the abstention doctrine. Though the trial court wasn’t presented with the specific religious basis for the Diocese’s new policy, we find no fault in its conclusion that “immunizations of children attending Catholic schools is an issue of faith, discipline, and Catholicism [that] can only properly be determined by the church and not by the civil courts.” Courts are in no more of a position to compel the Diocese to provide a sufficient quantum of passable proof that its view of immunization is consistent with the Catholic faith than to do so as to Mr. Flynn’s personal views of Catholic doctrine on the very same subject.

News Service of Florida reports on the decision.

Teacher's Defamation Verdict Against Archdiocese Upheld

In Gallagher v. Archdiocese of Philadelphia, 2017 Phila. Ct. Com. Pl. LEXIS 148 (PA Com. Pl., April 11, 2017), a Pennsylvania Common pleas court upheld a $508,000 jury verdict in a defamation suit by a 6th grade "lay teacher" in a Catholic school against the Archdiocese of Philadelphia.  The school administration had accused plaintiff Cindy Gallagher of unethical teaching practices in connection with a study guide she compiled to prepare her students for a standardized test. The court held that it was not required to defer to religious authorities because "the cheating incident was not conceived as an ecclesiastical matter only appropriate for religious resolution." It also concluded that the "ministerial exception" doctrine does not apply because Gallagher was a lay teacher, saying in part:

labeling Appellee as a minister of the church based on her role in prayer with her students and her participation in obtaining mandatory religious credits to be a teacher at the school would expand the scope of the ministerial exception beyond its intended purpose.

Canadian Provinces May Not Fund Non-Catholic Students In Catholic Schools

Canada's Constitution Act of 1867 (Sec. 93) guarantees Catholics and Protestants in the three Canadian provinces of Alberta, Saskatchewan and Ontario the right to petition the provincial government to create a separate denominational school for them when they comprise a minority in a school attendance area. In Good Spirit School Division No. 204 v. Christ the Teacher Roman Catholic Separate School Division No. 212, (QB Sask., April 20, 2017), a Saskatchewan trial court in a 230-page opinion held that it is a violation of Canada's Charter of Rights and Freedoms for the provincial government to provide funding for non-Catholic students at government-supported Catholic schools.  The court held that Catholic separate schools have no constitutional right to receive funding for non-Catholic students and that it violates the province's duty of religious neutrality, as well as guarantees of equality, to fund non-minority faith students in denominational schools.  Global News reports on the decision.

Trump Emphasizes His Call For School Choice

As reported by the Orlando Sentinel, yesterday President Trump visited St. Andrew Catholic School in Orlando, Florida as part of a trip focusing on school choice. In his remarks (full text) prior to a closed-door round table, the President said in part:

St. Andrews Catholic School represents one of the many parochial schools dedicated to the education of some of our nation's most disadvantaged children.  But they're becoming just the opposite very rapidly through education and with the help of the school choice programs.  This month, we commemorate the thousands of peaceful activists for justice who joined Martin Luther King on the march from Selma to Montgomery.  And that day, Reverend King hoped that inferior education would become, as he said, "a thing of the past."  And we're going to work very much for the future and what he predicted would be with the future.  As I've often said in my address to Congress and just about anyplace else I can speak, education is the civil rights issue of our time.  And it's why I've asked Congress to support a school-choice bill.  

Catholic Principal's Suit Dismissed On Ministerial Exception Ground

In Ginalski v. Diocese of Gary, 2016 U.S. Dist. LEXIS 168014 (ND IN, Dec. 5, 2016), an Indiana federal magistrate judge dismissed employment discrimination claims brought by a former principal of a Catholic high school whose contract was not renewed. The principal contended that she was fired because of her sex, age and disability.  The court held that the ministerial exception requires dismissal of her claims, saying:

requiring Andrean High School to reinstate Ginalski as principal or by punishing it for not renewing her contract would violate Andrean High School's freedom under the Religion Clauses to select its own ministers.

Church Entitled To Hearing On Religious Liberty Defense To Day Care Licensing

In Our Lady of Victory Catholic Church v. Department of Human Services, (PA Commonw. Ct., Oct. 31, 2016), a 3-judge panel of the Pennsylvania Commonwealth Court held that the Pennsylvania Department of Human Services has authority to issue cease and desist orders to enforce its regulations requiring any daycare center that cares for seven or more children to obtain a certificate of compliance.  However the court remanded for an evidentiary hearing the church's claim that requiring a certificate of compliance for its preschool (which it claims is part of its religious ministry) infringes its free exercise rights under the federal and state constitutions and under Pennsylvania's Religious Freedom Protection Act.  The Legal Intelligencer reports on the decision.

Gay Student Sues Catholic High School That Barred His Bringing Same-Sex Date To Homecoming

Lance Sanderson, a former student at Memphis, Tennessee's Christian Brothers High School, filed suit in a Tennessee state court on Tuesday alleging that the private Catholic boy's school-- which receives federal funds-- violated Title IX when it prohibited him from bringing his same-sex date from another school to the school's Homecoming Dance.  NBC News reports that the suit seeks $1 million in damages for breach of contract, intentional infliction of emotional distress, negligent training and a violation under Title IX of the 1972 Education Amendments.  The Obama administration, and several courts, have recently concluded that Title IX is broad enough to include sexual orientation discrimination. IdentitiesMic has more details on the failed attempts by the school to work out a compromise with Sanderson, and its ultimate policy statement that technically would have allowed him to bring a same-sex date from his own school.

Student's Complaint Over Expulsion From Catholic High School Dismissed Under Ecclesiastical Abstention Doctrine

In In re St. Thomas High School, (TX App., May 1, 2016), a Texas state appellate court held that the ecclesiastical abstention doctrine requires dismissal of a breach of contract lawsuit against a Catholic high school brought by a 16-year old student who was expelled and by his parents. The expulsion came after the parents sent the school a letter about the handling of a grade dispute.  The letter complained that the teacher involved had not called the parents as they had requested.  It alleged that when the teacher told the student the reason for failing to call-- he was too busy preparing for a romantic night with his wife to celebrate their wedding anniversary-- that this amounted to engaging in a discussion with the student "in a sexually harassing fashion."

The school concluded that the false accusations of sexual harassment against the teacher, made it impossible for other teachers to teach the student without fear of similar charges. The court said in part:

we conclude that St. Thomas’s status as a Catholic high school does not place it outside the ecclesiastical abstention doctrine’s reach. No less than a Catholic church, St. Thomas is a religious institution enjoying First Amendment protection for the free exercise of religion....

This record belies any contention that spiritual standards and religious doctrine play no role in the parties’ dispute. Plaintiffs expressly relied on the Catholic nature of a St. Thomas education to justify their demands....  In addition ... this record also demonstrates impermissible interference with St. Thomas’s management of its internal affairs and encroachment upon its internal governance.

Catholic School Principal's Title VII Suit Dismissed Under "Ministerial Exception"

In Fratello v. Roman Catholic Archdiocese of New York, (SD NY, March 29, 2016), a New York federal district court held that the "ministerial exception" to Title VII of the 1964 Civil Rights Act precludes the former lay principal of a Catholic elementary school from suing for employment discrimination.  Plaintiff alleged that her employment was terminated as a result of gender discrimination and retaliation. In relying on the ministerial exception doctrine as set out in the U.S. Supreme Court's 2012 Hosanna-Tabor decision, the district court said in part:

There is no dispute that Plaintiff is not a member of the clergy and that she would not be considered a minister for purposes of Church governance. But the issue here is one of U.S., not canon, law, and “minister” for purposes of the ministerial exception has a far broader meaning than it does for internal Church purposes.