The application of labor relations and discrimination statutes to lay teachers at religious schools: the Establishment Clause and the pretext inquiry.

AuthorTenenbaum, Evelyn M.
PositionCatholic school teachers

    The courts have not dealt consistently with the First Amendment excessive entanglement concerns that arise when lay teachers at religious elementary and secondary schools are covered by a state labor relations act or an anti-discrimination statute. Some courts have held that the application of these statutes to lay teachers violates the Establishment Clause.(1) Those courts that have upheld the constitutionality of applying these statutes to lay teachers have not clearly defined the limits of permissible jurisdiction. Setting clear and appropriate limits on the application of these statutes will support the constitutionality of applying them to lay teachers. Appropriate limits will also effectively balance the state's interests in protecting lay teachers from anti-union conduct and discrimination with the need to protect religious schools from excessive intrusion into their religious mission. The need for a clear rule is of increasing importance because of the greater numbers of lay teachers and the potential resurgence in attendance at religious schools due to voucher and tax credit proposals that subsidize private school education.(2)

    In the fall of 1997, more than five million children in the United States were enrolled in private elementary and secondary schools.(3) Of these, 84.3% were enrolled in religious schools.(4) While this article applies to all religious schools, the case law tends to focus on Catholic schools, which account for 58.8% of all children attending religious schools.(5) More importantly, Catholic school teachers have the largest and most organized unions6 and Catholic school leaders have opposed the government's efforts to exercise jurisdiction to protect lay teachers from anti-union and discriminatory conduct.(7)

    There has been a revival in Catholic school education during the last decade.(8) Catholic schools had the greatest enrollment in 1964.(9) At that time, more than 5.6 million children attended 13,000 Catholic elementary and secondary schools.(10) While the number of Catholic school students has decreased to less than half the number in 1964,(11) enrollment has increased by more than 64,000 in the past ten years.(12) There are hundreds of new schools(13) and more than 42% of Catholic elementary and secondary schools have waiting lists for admission.(14)

    The increasing enrollment is likely to continue if states pass "voucher or tax credit proposals [that] subsidize private school education."(15) Many states are currently considering these programs.(16) Subsidizing private school education would also lead to an increase in non-Catholics attending Catholic schools.(17) Currently, 13.4% of students attending Catholic schools are not Catholic.(18)

    There has also been an enormous increase in the number of lay teachers in Catholic schools.(19) During the 1967-1968 school year, 43.3% of the 161,315 teachers in Catholic schools were lay teachers.(20) By the 1999-2000 school year, 93% of the 157,134 teachers in Catholic schools were lay teachers.(21) While the total number of Catholic school teachers declined, the number of lay teachers increased by more than 76,000.(22)

    The most significant risk of excessive entanglement related to the application of labor relations and discrimination statutes to lay teachers arises when a religious school raises a religious defense to a charge of anti-union or discriminatory conduct. Once the defense is raised, the government must determine whether the religious defense is the real motivating cause for the school's actions or is a pretext to cover anti-union or discriminatory conduct. It is this inquiry into pretext that entangles the government in religious issues concerning the school.(23)

    The earliest court decisions concerning the application of labor relations statutes to lay teachers prohibited any inquiry into pretext due, in part, to concern that this inquiry would lead to an examination of religious doctrine. The more recent trend in labor relations and discrimination cases has been to allow the government to inquire into certain aspects of the religious school's behavior to determine pretext while prohibiting inquiry into doctrine.(24) None of the cases concerning labor relations or discrimination statutes clearly defines either the scope of permissible inquiry into pretext or the impermissible inquiry into doctrine.

    This article suggests an accommodation that reconciles the case law and clearly sets the boundaries of permissible governmental jurisdiction. The article recommends separating the behavioral and doctrinal aspects of the pretext inquiry and only allowing inquiry into behavior. This article defines both inquiries and demonstrates the use of some behavioral inquiries in the case law.

    By clearly defining the permissible and impermissible inquiries, the rights of both lay teachers and religious schools can be better protected. The state can only effectively exercise its jurisdiction if it is aware of the permissible scope of inquiry. Otherwise, the state may excessively restrict its questioning into pretext to avoid First Amendment concerns. Correspondingly, if the parameters of impermissible inquiry are clearly defined, the risk of interfering with the doctrinal concerns of the schools is minimized. The government would be aware of what questioning to avoid and the religious schools would be fully apprised of the types of questions they can legitimately refuse to answer.

    This article deals with labor relations and discrimination cases together because the issues relating to the application of these statutes to lay teachers are very similar. Both the labor relations and discrimination cases refer to each other in developing their analyses, and the central issue in all of these cases is the pretext inquiry. Therefore, the current trends can only be fully understood by examining both.(25)

    Part II of this article discusses the procedures followed in labor relations and discrimination cases and explains why the government only becomes involved in religious issues when determining whether a religious defense raised by the schools is pretextual.(26) Part III discusses the development of the case law in this area and highlights the inconsistencies and conflicts in the cases.(27)

    Part IV discusses the more recent trends in the case law and proposes an accommodation that sets coherent guidelines regarding permissible and impermissible inquiries into pretext.(28) The article suggests limiting the pretext inquiry to questions concerning whether the school has behaved in a manner consistent with its religious defense. The article also recommends prohibiting inquiry into doctrine and defining this prohibition to include inquiry into the existence, plausibility or validity of doctrine. This section also demonstrates how this accommodation is consistent with the principles already set out in the case law. Finally, Part V explores the societal importance of applying labor relations and discrimination statutes to lay teachers at religious schools.(29)


    A. Labor Relations Statutes

    The danger of excessive entanglement in the labor relations area arises from the requirement that religious schools engage in collective bargaining with teacher unions and from the proscription against retaliatory discharge of teachers for engaging in union activities. A refusal to engage in collective bargaining or the discharge of a teacher can result in charges against a religious school and cause the school to justify its actions by raising a religious defense. The procedures followed by state labor relations boards(30) help ensure that the states' involvement in religious issues is limited to determining whether the religious defenses raised by the school are pretextual.

    1. Collective Bargaining

      A school's good faith in bargaining with the teachers' labor union can only become an issue before the state's labor relations board if the union or an individual member alleges that the school has engaged in one or more of the unfair labor practices in the state's labor relations act.(31) The state labor relations boards do not initiate unfair labor practice proceedings on their own.(32) All of the unfair labor practices are secular and, when a labor relations examiner investigates a charge, he or she will be investigating the issues directly pertaining to the unfair labor practices set forth in the charge. Similarly, if a hearing is held, the Administrative Law Judge must limit the scope of the hearing to the issues pertaining to the unfair labor practices before him or her.(33) The order in a case where the employer refused to bargain collectively, would merely require the employer to bargain in good faith about wages, hours and other terms and conditions of employment.(34) The government cannot compel a party to make any concessions or to agree to any substantive contractual provision.(35)

      Because all of the unfair labor practice charges are secular, a religious issue can only arise if the employer raises a religious motive as a defense to a charge. Thus, it is initially up to the employer, rather than the government, to determine whether any religious issues are involved and to define the parameters of any religious defense.

      For example, if during collective bargaining, the union asked the school to include medical coverage for abortions in the union's health insurance plan, the religious school might refuse to bargain on this issue. The union might then file an unfair labor practice charge with the government charging that the school is refusing to bargain in good faith regarding the union's health insurance, a mandatory subject of bargaining. When the government investigated the charge, the school would inform the government that it was acting in good faith but was unable to...

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