Religious Freedom and Schools: A Time of Change. Welcome. Religious Freedom Roundtable

Transcription

1 Welcome The webinar will begin soon. We are not yet transmitting audio. If you d like to submit a question for our panelists, you can do so by clicking the question mark icon and typing your question into the text field. Religious Freedom and Schools: A Time of Change Religious Freedom Roundtable 1

2 Audio If you re experiencing audio issues, please check to make sure the volume on your computer speakers is turned up. If that doesn t resolve the issue, click the question mark icon and type your question into the text field. Legal Information This presentation addresses general issues and principles. Nothing in this presentation should be understood to provide legal advice or create an attorney-client relationship. Participants are encouraged to consult with an attorney licensed in their jurisdiction to determine how local law applies to specific circumstances Brotherhood Mutual Insurance Company. All Rights Reserved. 2

3 Michael Allison, JD, CPCU Vice President and Chief Counsel at Brotherhood Mutual Juris Doctorate from Indiana University School of Law Licensed attorney in Indiana Has been with Brotherhood Mutual for over 25 years, serving 10 years overseeing claims litigation and 15 years leading the company s legal department Previous education committee chair and board member at a Christian school in Fort Wayne, Indiana Steve Case, JD, CPCU Assistant Vice President and Senior Corporate Counsel at Brotherhood Mutual Juris Doctorate from University of Toledo Licensed attorney in Indiana and Ohio Worked as an insurance defense litigator for five years before joining Brotherhood Mutual Serves as the Growth Group Director at his church 3

4 Kyle Johnson, JD Associate Attorney at Brotherhood Mutual Juris Doctorate from Indiana University McKinney School of Law Licensed attorney in Indiana Assists ministries with risk management, focusing in the areas of faith-based decisions, child protection, worker screening, and church governance Religious Freedom and Schools: A Time of Change Religious Freedom Roundtable 4

5 Q: What types of religious freedom topics are beginning to emerge within schools? Emerging Religious Freedom Issues Areas of potential school liability associated with sincerely held beliefs include: Gender identity issues Targeted governmental actions Faith-based employment decisions Facility use considerations 5

6 Offering Facilities for Use If a ministry rents its facilities to the general public for a fee, courts are more likely to require the ministry to rent the facility to all who seek to reserve it The risk of losing a lawsuit in this area can be viewed in terms of a continuum *There could be tax ramifications, including challenges to tax-exempt status, if no fee is charged to a for-profit entity. Ministry leaders are encouraged to work with a locally licensed attorney and/or tax professional when developing any policy or procedure to ensure compliance with all applicable laws. Q: What should administrators know about Sexual Orientation and Gender Identity (SOGI) issues as they become more prevalent in schools? 6

7 Current SOGI Laws Historically, sexual orientation and gender identity have not been recognized as protected classes Recently, federal departments and agencies have sought to align sexual orientation and gender identity discrimination with sex discrimination More than 20 states and over 200 cities/counties/townships now have sexual orientation and/or gender identity non-discrimination laws At least 13 states have adopted laws prohibiting discrimination in schools on the basis of sexual orientation and/or gender identity Title IX of the Educational Amendments of 1972 In recent years, the U.S. Department of Education has sought to add SOGI protections into Title IX 2014: Dept. of Ed. extended discrimination claims to include gender identity 2016: Dept. of Ed. required accommodation of transgender students in restrooms, locker rooms, athletics, etc. 2017: New administration rescinded guidance in order to further and more completely consider the legal issues involved 7

8 Constitutional Protections for Christian Schools Religious institutions are generally free to limit involvement by offering certain accommodations, and may also generally prohibit an individual s involvement The 2000 Supreme Court decision in Boy Scouts of Am. v. Dale protects ministries that view sexual orientation/gender identity as being counter to their purpose Seventeen years later, it s unclear how the Supreme Court would rule on this same issue today Q: How concerned should schools be about targeted governmental actions? 8

9 Targeted Governmental Actions A large percentage of litigation related to religious freedom is actually initiated by governmental agencies In recent years, governmental agencies have sought uniform application of anti-discrimination laws in all institutions This has created a clash between the First and Fourteenth Amendments to the U.S. Constitution Targeted Governmental Actions There s growing concern religious organizations will be targeted, especially their tax exempt status: In Obergefell, the U.S. Solicitor General said that tax exemptions of some religious institutions would be in question if they opposed same-sex marriage Two days after the Obergefell decision, Time magazine published an article entitled, Now s the Time To End Tax Exemptions for Religious Institutions* *Oppenheimer, Mark. Now s the Time To End Tax Exemptions for Religious Institutions Time Ideas. Time Inc., 28 June Web. Accessed 3 July

10 Targeted Governmental Actions Other potential governmental challenges include: State and local property tax exemptions Education-related benefit, such as financial aid, scholarships, and accreditation Health insurance and other employee-benefit mandates Trinity Lutheran Church v. Comer Chief Justice Roberts holding: [T]he exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand. Justice Breyer concurring opinion: [C]utting off church schools from such general government services as ordinary police and fire protection is obviously not the purpose of the First Amendment. Here, the State would cut Trinity Lutheran off from participation in a general program designed to secure or to improve the health and safety of children. 10

11 Q: How can administrators address employment issues if an employee s belief or conduct doesn t align with the ministry? Faith-Based Personnel Decisions Laws generally prohibit discrimination in employment based on race, color, religion, gender, or nationality The ministerial exception permits Christian schools to make hiring and firing decisions based on an employee s beliefs and practices Whether Christian schools can take an individuals beliefs and practices into account for non-ministerial positions is a more difficult question 11

12 Faith-Based Personnel Decisions For ministerial and non-ministerial employees, Christian schools can take steps to ensure they are protected Weave beliefs into operational documents given to employees and volunteers Be consistent in applying policies Document all interactions Consult with an attorney Q: In what other specific situations can religious freedom issues arise within schools? 12

13 Update Governing Documents Purpose Statement: States the spiritual and religious beliefs of the ministry Update Operational Documents Marriage, Gender, and Appropriate Behavior Provision: States beliefs with respect to marriage, gender, and interpersonal relationships 13

14 Student/Parent and Employee Handbook Policies Morals Clause: States expectations for students in your student/parent handbook Consider Response Respond with sensitivity Train your clergy, staff, and volunteers to approach individual needs and requests with empathy Consider training frontline staff and volunteers on conflict resolution Can help reduce level of anxiety to encourage discussion and peaceful resolution Consult with a local attorney A local attorney can ensure that your ministry complies with all applicable federal, state, and local laws 14

15 Student Admission and Discipline Issues Consider how your school would respond to these types of issues: An administrative assistant receives a call where the caller simply asks, Will you accept my transgender child into your school? During the application process, you learn that an applicant s parents are in a committed same-sex relationship that does not comply with your morals clause One of your students begins to live a lifestyle and espouse beliefs that are contrary to your school s sincerely held beliefs Other Student Activity Issues Consider how your school would respond to these types of issues: What restroom can a transgender person use? What locker room can a transgender athlete from a visiting team use? 15

16 Q: If a ministry is sued for standing up for its beliefs, will insurance coverage be available? Brotherhood Mutual s Approach: Religious Freedom Protection SM Coverage Provides liability coverage and additional protections, including: Coverage for claims arising out of religious communications, religious activities, or belief-based decisions Offers funds to defend a ministry when its belief-based decisions and practices are attacked, or the ministry s tax-exempt status is challenged Offers funds to help respond to targeted actions by government agencies Provides reimbursement for declaratory judgments that you initiate to protect your sincerely held beliefs 16

17 Educational Institution Extension Brotherhood Mutual has introduced a new endorsement that helps pay to defend educational institutions from financing and accreditation challenges, like challenges to: Financial aid for students Academic and sporting scholarships Accreditation for the school itself Final Thoughts Regarding Religious Freedom 17

18 Legal Assist A free service for ministries, from Brotherhood Mutual Responses to common questions Quick response service Attorney referral service Legal resources Q&A The responses you receive during this Q&A session are insurance risk management recommendations and should not be understood or relied upon as legal advice. Please consult a local attorney for legal advice specific to your church s operations and local jurisdiction. 18

19 Religious Freedom Protection Website Visit our website for the most up-to-date information and resources Website features: White paper: Religious Freedom Protection, Shepherding Ministries in a Changing Landscape Helpful articles and sample policy forms Webinar: Five Legal Trends Affecting Churches and Ministries Connect with Brotherhood Mutual Receive updates from Brotherhood Mutual, including information about upcoming webinars, by following us online: Facebook Twitter (@BrotherhoodIns) LinkedIn 19

20 Thank You We appreciate the opportunity to serve you and your ministries as you serve your communities. You can find additional information about a variety of risk management topics specifically oriented to churches and related ministries in the Resources section of BrotherhoodMutual.com. This presentation addresses general issues and principles. Nothing in this presentation should be understood to provide legal advice or create an attorney-client relationship. Participants are encouraged to consult with an attorney licensed in their 2017 Brotherhood Mutual Insurance Company. All Rights Reserved. 20