School Law and Religious Liberty John S. (Jay) Mercer, J.D. MERCER BELANGER, P.C. 1500 One Indiana Square Indianapolis, IN 46204
Religious Liberty In today s world, religious freedom is more often affirmed than put into practice. It is often threatened, and not infrequently violated. The serious outrages against this fundamental right are a source of serious concern, and need to be confronted at the global level. Pope Francis 6-8-2013 In the Untied States religious liberty established in the Federal and State Constitutions.
First Amendment Amendment I. Freedom of speech, press, assembly, petition of government. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof
Erosion of Religious Liberty In recent months we have seen an unprecedented erosion of the religious liberties and attacks on religious exercise and expression. The State of Illinois threatened to close a small-town pharmacist s business because he refused to sell the morning-after pill. HHS Mandates private health insurance plans cover surgical sterilization procedures and birth control (including IUD, morning-after pills and abortioninducing drugs)
Erosion of Religious Liberty A principal of a public school in Indiana withholding permission for a student to pass out religious flyers to other students that contained an e-mail address and website where students could submit prayer requests, although other students had been allowed to pass out flyers with secular content. States ending government contracts for adoption and foster care services with Catholic Charities because the Charities refused to place children with same-sex couples or unmarried opposite-sex couples who cohabit.
U.S. Supreme Court redefining marriage to include same sex couples. Erosion of Religious Liberty Indiana judge finding that a teacher in a Catholic school is does not qualify for the ministerial exception. States requiring adoption agencies, as a part of their licensing requirements, to place children with same-sex couples or unmarried opposite-sex couples who cohabit. Executive Order 13672 making it illegal for federal contractors, including Catholic Charities, from discriminating in employment on the basis of sexual orientation and gender identity.
What s the real threat to religious liberty? Compelled Association: The government forces religious institutions to retain as leaders, employees, or members those who maintain a life style at odds with Catholic teachings and moral values. The government compels a Catholic school to recognize a transgender student and permit the student to dress and act in the preferenced gender. Compelled Provision of Special Benefits: The government forces religious institutions to extend any special benefits, such as providing spousal health benefits, to a same-sex "married couples.
What s the real threat to religious liberty? Punishment for Speech: Preaching, political action, or conversation reflecting moral opposition to same-sex "marriage" represents actionable "harassment" or "discrimination," or forbidden "hate speech". Concerns for the loss of tax exempt status as the result of a Church/ school advocating discrimination or denying admission based on sexual orientation or gender identity.
What s the real threat to religious liberty? Exclusion from Government Funding, Religious Accommodations, and Other Benefits: Those who adhere to the definition of marriage or discriminate in employment against individuals based sexual orientation or gender identity are excluded from receiving government grants and contracts to provide secular social services, and from various tax exemptions. Exclusion from Accreditation and Licensure: Those who adhere to Catholic teachings in defining services offered, such as limiting adoptions to heterosexual married couples, are excluded from participation in highly regulated professions and quasi-governmental functions, as licenses are revoked and religious institutions lose accredited status.
Free Exercise Case Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, (2012), case in which the Court unanimously ruled that federal discrimination laws do not apply to religious organizations' selection of religious leaders. Ministerial Exception
Ministerial Exception The ministerial exception, as defined by Hosanna- Tabor, is intended to protect the freedom of religion by exempting religious institutions from anti-discrimination laws in hiring employees. In other words it allows a religious organization to select who will teach the Gospel and religious beliefs. It also protects a "church's right to decide matters of governance and internal organization" and the Establishment Clause forbids "excessive government entanglement with religion."
Indiana Federal Court Narrowly Applies Hosanna-Tabor In Herx v. Diocese of Ft. Wayne-South Bend, Inc., 2014 BL 243910, at *8 (N.D. Ind. Sept. 3, 2014), the court found a lay teacher was not subject to the ministerial exception, despite the fact that the teacher in Hosanna Tabor performed many of the same duties.
Acknowledging and accepting the religious and moral nature of the Church's teaching mission, the undersigned agrees to conduct herself or himself at all times, professionally and personally, in accordance with the episcopal teaching authority, law and governance of the Church in this Diocese. Charges of immoral behavior, or of conduct violative of the Teachings of the Church shall ultimately be resolved exclusively by the Bishop, or his designee, as provided in the Diocesan Educational Policies Herx v. Diocese of Ft. Wayne-South Bend The Diocese hired Mrs. Herx in August 2003 to teach junior high language arts at St. Vincent School in Fort Wayne. Herx's employment that provided:
Herx v. Diocese of Ft. Wayne-South Bend Ms. Herx when undergoing a second round of in vitro fertilization treatments she learned the procedures violated Church teachings. She proceeded with the treatments. Her teaching contract for the next year was not renewed. Ms. Herx filed suit for gender and pregnancy discrimination. The Diocese defended the action under the ministerial exception.
Herx v. Diocese of Ft. Wayne-South Bend The Diocese claimed that while Mrs. Herx wasn't employed as a religion teacher, she qualified as a minister because the Church and the School, expected and relied on her to perform the function of a minister every day while teaching her students. According to the Diocese, even Mrs. Herx agreed that she was to provide students with an example of how to live their faith to share her devotion to God whenever she could. The Diocese pointed out to the Court that Ms. Herz admitted that: she was to provide students with an example of how to live their faith to share her devotion to God whenever she could
Herx v. Diocese of Ft. Wayne-South Bend In denying the exception the court found that: 1. Ms. Hetx was not an ordained minister; 2. Never lead a Mass, and 3. Was not required to have religious training.
Federal RFRA The Free Exercise Clause of the First Amendment states that Congress shall not pass laws prohibiting the free exercise of religion. Supreme Court interpreted this language as banning laws that burdened a person's exercise of religion, even if the burden results from a rule of general Applicability.
Federal RFRA Strict scrutiny test: 1. The law must be based upon a compelling governmental interest; and 2. The law must be the least restrictive way in which to further the government s interest.
Federal RFRA In 1990 the Supreme Court in Employment Division v. Smith, abandoned the strict scrutiny test. The Court shifted to the statutory exemption model that stated that any law that was of general applicability and happened to burden religion, it was up to the legislature to create exemptions for religious beliefs.
Federal RFRA In 1993, the Religious Freedom Restoration Act was adopted by Congress with only 3 dissenting votes. The law reinstated the strict scrutiny test: 1. The law must be based upon a compelling governmental interest; and 2. The law must be the least restrictive means in which to further the government s interest.
Federal RFRA In 1998, the Supreme Court held that the RFRA did not apply to State laws. After this decision 31 states passed their own RFRA laws.
Indiana RFRA In 2015 the Indiana Senate enacted Senate Bill 50 that adopted the strict scrutiny test for application to a statute, law, regulation or governmental rule. This was a good law, but the message was hijacked by opponents labeling it a license to discriminate. This intentional misrepresentation of the law was extremely well coordinated.
Indiana RFRA Unprepared for the attacks, the Republican leadership passed an amendment. The amendment is a complete distortion of the original law. As amended, Indiana RFRA draws fictitious lines that exempts some individuals from the ability to exercise their religious beliefs in public and deprives them of protections granted to other citizens.
Indiana RFRA Indiana RFRA is not applicable to persons that offer or provide services, facilities, use of public accommodations, goods, employment, or housing to the general public, unless the person is: (1) A church or other nonprofit religious organization or society, including an affiliated school, that is exempt from federal income taxation under 26 U.S.C. 501(a), as amended (excluding any activity that generates unrelated business taxable income (as defined in 26 U.S.C. 512, as amended)). (2) A rabbi, priest, preacher, minister, pastor, or designee of a church or other nonprofit religious organization or society when the individual is engaged in a religious or affiliated educational function of the church or other nonprofit religious organization or society. persons.
Federal Statutes and Regulations On July 21, 2014, President Obama signed an Executive Order 13672 making it illegal for federal contractors to discriminate on the basis of sexual orientation and gender identity. Only pertains to contractors, no grant recipients.
Federal Statutes and Regulations USCCB is recommending that if a religious employer is renewing or entering into a federal contact that contains a FAR clause 52.222-26, it is recommended that the religious employer submit the disclaimer language
Disclaimer Pursuant to federal law, including the Religious Freedom Act of 1993, we believe that we are exempt from full compliance with FAR clause 52.222-26. However, we intend to comply with FAR clause 52.222-26 to the extent that it does not require us to violate Church teaching.
Laws Pertaining to Disabilities ADA: Americans with Disabilities Act (1990) Applies to students and employees. IDEA: Individuals with Disabilities Education Act (1990) (IDEIA, 2004) Applies to students. Section 504: Rehabilitation Act of 1973 Applies to students and employees.
Laws Pertaining to Disabilities The Archdiocese is currently under a Compliance Agreement with the EEOC that requires any person involved in the hiring or termination of employees to have received reasonable accommodation training. There is a video that I prepared. All of you should have viewed by now.
Contract Law Contract law is the predominant law governing private schools. Three primary sources of Contract Law 1. Teacher/Administrator contracts 2. Faculty/Personnel Handbook (to be regard as rules and policies not a contract) 3. Student/Family Handbook (to be regard as rules and policies not a contract) 4. rator
Teacher/ Administrators contract Primary document governing relationship between employer and employee. States wages, number of days worked per year, teaching and non-teaching duties, probationary period, at will clause. Violation of Church s teaching is cause for dismissal. (Current case involving a teacher being dismissed for invitro fertilization in violation of Catholic teachings. Use job description to define religious values ).
Faculty Handbooks Philosophy, Mission, Vision, Goals, Objectives Teaching duties: curriculum guides, lesson plans/instruction, communication with parents, supervision, grading scale & reporting, professionalism (relationships/boundaries). Non-teaching duties: attendance at school meetings, extra-curricular expectations, student discipline. Personnel issues: dress code, leaving building during school day, sick leave policy, Bishops safe environment with signature page Supervision & evaluation policies: Formative/summative, written documentation and employee right to respond.
Student Handbooks This is agreement between student/family and school. Have student/family read and sign handbook signature page each year indicating they have read and agree to handbook policies. Handbook must be promulgated. Policies which are not promulgated are not enforceable. Can t include everything in Handbook, so use phrase such as the principal is the final recourse in all disciplinary situations and may waive any disciplinary rule for just cause at his or her discretion.
Navigating the new laws and religious liberty 1. We need to make sure our ministry has the broadest religious liberty protections under the law. 2. Proactive steps to prepare for challenges that are now more likely to come as a test of new laws and legislation. 3. Convey publicly and educate the others on our Catholic beliefs and stance on moral social issues.
Tools to prepare for our future challenges Prepare mission statements that demonstrate the mission of the organization and how faith and Catholic faith and teachings are at the core of the mission. Prepare statements of Catholic Moral Standards that help to educate and affirm the Church's teachings on moral issues. Redraft job descriptions which incorporate how the job relates to the mission and Catholic nature of the entity.
Tools to prepare for our future challenges Prepare employee handbooks that reinforce the hiring practices that give preference to practicing Catholics. Prepare student / parent handbooks that educate and reinforce that Catholicity of our schools and the expectation of students and parents to live a Christian life. Establish admission criteria and policies that are supportive of the School s philosophy, objectives and education standards, which are distinctively Catholic in nature.
Summary Religious liberty is under attack- we need to work together to avoid the traps.
In the very near future we will be preparing many of the documents that we have discussed.
Summary The small print is more important than ever.
Why the Religious Freedom Restoration Act Works Questions and Answers In 1993, President Bill Clinton signed into law the federal Religious Freedom Restoration Act (RFRA). The bill passed both the United States House and Senate with nearly unanimous bipartisan support. RFRA provides a balancing test when the government attempts to restrict the free exercise of religion. Twenty states have legislatively adopted their own versions of RFRA, and another eleven states have RFRA-like protections provided by state court decisions. The federal RFRA and its state counterparts have worked well to provide appropriate protections for people of faith who seek to live out their faith in daily life. Answers to possible questions about RFRA follow. 1. Does RFRA provide a license to discriminate against gay people? No. RFRA provides a day in court for people with conscientious objections to general laws, allowing a more careful balancing of rights. It is not a license for anything, because important limiting principles and safeguards are built into it. And in situations involving actual unjust discrimination against anyone whether based on same-sex attraction or otherwise claims of religious freedom are virtually certain to fail. But RFRA allows those important distinctions to be made with temperance and care. Experience of the last twenty years with the federal RFRA, as well as similar (and even more protective) state laws, bears this out. Speculative and extreme hypotheticals to the contrary, which lack any basis in this long experience, do not support the false claim that RFRA is a license to discriminate, but instead underscore the need to expand the sober balancing RFRA facilitates. 2. What are the safeguards built into RFRA? There are mainly two. First, a burden on religious exercise must be substantial mere inconvenience or increased cost will not do. The classic case is when a matter of conscience is at stake. Many RFRA claims fail on this basis. Second, the burden is still permitted if the government can show that the burden represents the means least restrictive of religious exercise to serve a compelling government interest. These are highly fact-specific inquiries, and so broad statements about what the law will forbid or allow are simply misplaced. Sometimes the religious believer will win, and sometimes the religious believer will lose, but RFRA provides a better framework to make sure all competing interests receive due consideration.
3. Why is any RFRA necessary at all? The U.S. Congress passed RFRA in 1993 in response to a decision by the U.S. Supreme Court (called Employment Division v. Smith) that made it more difficult for religious believers to challenge laws that affected their ability to live out their faith. The Smith case involved Native Americans who were fired from their jobs because they used peyote as part of their religion. People of all faiths and all political persuasions came together to ask Congress to pass a law that would, in effect, reverse the Smith decision. Americans simply wanted a return to the deference that the law had given to the free exercise of religion as guaranteed by the First Amendment of our Constitution, prior to the Smith decision. RFRA sailed through an otherwise divided Congress and was signed by President Clinton. 4. Since there is already a federal RFRA, why do states need their own? From 1993 to 1997, the federal RFRA applied to actions by both the federal government and state governmental entities. But in 1997, the U.S. Supreme Court decided that RFRA could not apply to state government actions. In response, many states passed their own versions of RFRA that would apply within their states. To date, about twenty states have passed such legislation. An additional eleven states have state court decisions interpreting their state constitutions to provide similar protection. Hence, at this point, the federal government, the District of Columbia, and more than thirty of the fifty states have provided, in one form or another, protections for religious freedom akin to RFRA. 5. Who really benefits from RFRAs? Members of minority faiths have been the primary beneficiaries of federal and state RFRAs. Recent examples include the following: In March 2015, the federal government returned eagle feathers it had previously seized from a Native American religious leader. The Native American had appealed the seizure of the feathers on RFRA grounds. In January 2015, the U.S. Supreme Court unanimously ruled in favor of a Muslim inmate in an Arkansas state prison who sought to wear a half-inch beard in accordance with his faith. (The case was decided under the Religious Land Use and Institutionalized Persons Act, a federal law that applies to prisoners but contains the same legal standard as RFRA.)
In November 2014, the federal government settled a case under RFRA involving a Sikh employee who was told to go home from her job in a federal building because she carried a kirpan, an emblem resembling a small knife with a blunt, curved blade that reminds Sikhs of their commitment to justice. In June 2014, the U.S. Supreme Court decided that the federal government violated RFRA when it attempted to force family-owned businesses like Hobby Lobby to provide abortion-inducing drugs in their employee health plans. Hobby Lobby s owners had faced the choice of violating their Christian faith or paying onerous fines. A Native American kindergartner was told that he would have to cut his hair in order to comply with his public school s grooming policy. His parents applied for a religious exemption but were denied. The boy and his parents won their case in 2010, as the court found that the school district had violated Texas s RFRA. 6. Are you saying RFRA has no impact at all on current debates over same-sex marriage and laws prohibiting sexual orientation and gender identity discrimination? No. RFRA has a small but valuable and important impact on these areas, which has been exaggerated and distorted in recent political fights over state-level RFRAs. In general, RFRAs help people of minority faiths who cannot secure specific legislative exemptions for themselves. As a result, most cases arising under RFRA look like the ones listed above. Sometimes, however, strongly held religious beliefs that are considered in the mainstream more broadly such as the view that marriage is only the union of one man and one woman have fallen into the minority in some local contexts. As a result, local laws are passed to penalize conduct based on those deeply-held beliefs with insufficient religious exemption, and sometimes none at all. Recent examples, particularly in the context of marriage, include the florist in Washington State, the photographer in New Mexico, and the bakers in Colorado and Oregon. Their conscientious objections to state or local antidiscrimination laws do not amount to unjust discrimination, and in fact, rightly deserve the strong protection of the law. Without RFRA, they are unprotected, but with RFRA, they have a fair opportunity to make their case. Although they should win, there is no guarantee they will under RFRA; but at least they will have their day in court. Once again, this is not a license to discriminate, but instead a reasonable attempt to achieve fairness for all.