Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, September 15, 2014

More on the Herx case and the ministerial exception

A few days ago, I put up a short post on the Herx case -- having to do with a discrimination lawsuit against a Catholic school by a teacher -- and characterized the trial court's ruling -- rejecting the school's ministerial-exception argument -- as misguided.  (I didn't post the link to the opinion, but it is here.  Reading it again, I continue to think it is off-the-mark.)

A reader wrote in with some questions and -- with permission -- I'm posting some of them, and saying a bit in response, here . . .

I’d be interested in reading in the future your response to the judge’s distinction between the Herx and Perich, the teacher in Hosanna-Tabor. I think his approach is quite sound.

I think the trial judge read Hosanna-Tabor far too narrowly and incorrectly focused simply on the question whether the teacher in question is "ordained" or is instead a "lay teacher."  Under the terms of her contract, it is quite clear (to me) that she is expected to be, and is held out as being, charged with the formation in the faith -- through example, teaching, and witness -- of the school's students.  That she is not an ordained minister or a theology teacher should not end the inquiry.  The trial judge's approach is, it seems to me, closer to the one employed by the Sixth Circuit in Hosanna-Tabor than by the one employed by the (unanimous) Supreme Court.

I’d also be interested in reading more about your proposed presumption that K-8 teachers in parochial schools are ministers. I’ve had kids on the younger end of that spectrum in religious school (probably not parochial since the school was affiliated with a Catholic university run by a religious order) and it frankly never occurred to me that the teachers were all “ministers” unless that term is defined very broadly such that the cafeteria staff, janitors, etc. are also included.

I think it is easy to draw a line between "teachers" and "cafeteria staff, janitors, etc."  In my view, given the mission of Catholic parochial schools as it is described in the writings on Catholic education by recent popes and by the relevant USCCB bodies, a teacher (lay or ordained) at a Catholic school is a "minister" of the Church within the meaning of Hosanna-Tabor.  Whether or not courts will agree with me is, of course, an open question.  I suspect, in the current climate, many will not.

My reader's question does underscore for me the importance of making as clear as possible -- and of making more clear than some Catholic schools have done in the past -- how the school conceives of its mission and of its teachers' role.

Getting more specific, would you apply this presumption to Herx (who did not teach religion classes and had a contract different from teachers who did)? How about a teacher who did not share the parochial school’s religious affiliation (Herx and Perich did but I think you’ll agree that this fact pattern does arise)? What if the parochial school didn’t have any religion classes or chapel services at all or had special teachers, perhaps more recognizable as “ministers,” lead them? In other words, how would the presumption be overcome, if indeed it could be overcome and is not simply a “church always wins” rule?

I would apply the "presumption" to any teacher in a K-8 school, regardless of whether that teacher is a Roman Catholic or not.  (Again, I'm assuming that every teacher's contract does, or should, speak clearly about the school's mission and the teachers' role.)  A Catholic school should not lose the right to make mission-related decisions in the hiring context simply because, in some cases, the school decides that a non-Catholic can advance that mission.  (I think it is obvious that, in many cases, non-Catholics support and advance the distinctly Catholic mission of Catholic schools.)

If a "parochial school didn’t have any religion classes or chapel services at all," then I'd think it wasn't much of a parochial school.  I'd be surprised if many, or any, K-8 Catholic schools fit this description.

I'm thinking that the "presumption" could be overcome if, in the circumstances of a particular case, it was clear that the teacher was not expected by the school to play any role in the formation of the students and this fact was made clear to the teacher as well as to the relevant parents.  But, yes, in cases involving a "parochial school" -- that is, a traditional K-8 meaningfully Catholic school -- the school should usually win.

To be clear . . . none of this means that the school is behaving well, or fairly, or justly, or that a particular decision cannot be criticized on moral or fairness grounds.  As I wrote here, and in more detail here. . .



Garnett, Rick | Permalink