Supreme Court Endorses "Ministerial Exception"

On Wednesday the Supreme Court decided that that First Amendment protected a religiously-affiliated elementary school from having to defend claims that it fired a teacher for reasons that discrimination on the basis of her disability. The Court concluded that because the teacher's job included religious instruction, the school's right to religious freedom precluded the application of antidiscrimination law. This decision is reportedly the first time that the Supreme Court has affirmed the concept of a "ministerial exception" to employment discrimination laws, though lower courts have applied this concept in the past -- including in cases involving discrimination on the basis of sex.

No Retaliation Remedy for Parochial School Teacher

Aado Kommendant was a teacher and girls' softball coach at St. John Vianney High School in New Jersey until the school decided in 2004 not to renew his contract. The school claimed that Kommendant was fired for appropriating school property and misusing funds, but the coach believed he was fired in retaliation for filing a Title IX complaint the Office for Civil Rights about inequitable treatment of the softball team. He sued the Diocese of Trenton, which operates the school, claiming that the school's decision was wrongful discharge under New Jersey common law. An appellate court recently affirmed the lower court's decision to dismiss Kommedant' suit against the school and its officials.

Because St. John Vianney High School is a private school that does not receive federal funds, it is outside the scope of Title IX. Therefore, the court reasoned, Kommendant's complaint to OCR about inequitable treatment of the girls' softball team is not entitled to protection from retaliation under NJ law. This reasoning highlights an important distinction between federal retaliation law, including that of Title IX, and comparable doctrines under state law. Under Title IX, an employee is protected from retaliation if employee reasonably believed that he was complaining about a violation of law. Under state law, at least in New Jersey, the employee only gets protection for complaining about actual violations of law. Whether Kommendant reasonably believed Title IX applied to St. John's or not, he is not protected under state law for complaining about Title IX violations.

I think that protecting employee's reasonable belief, as Title IX does, is superior to the state's more rigid approach. Employees will rarely be certain that their complaint addresses actual violations of law, and will likely be deterred by the threat of retaliation against speaking out against perceived violations of law.

Decision is: Kommendant v. Diocese of Trenton, 2010 WL 1526262 (Apr. 13, 2o1o, N.J. Super. Ct. App. Div.)

Philly girls finally get championship

This story about girls' basketball in Philly really struck me. In the early 80s, a girls' basketball coach, Lurline Jones, said that girls should have a city championship like the boys who had been playing a city championship since 1938. (The championship was a match-up between the Catholic League and the Public League.) So Jones filed a Title IX lawsuit charging discrimination against the girls who wanted to play their own championship. The archdiocese of Philadelphia decided just to cancel the City Title championships rather than fighting the lawsuit or hosting a championship for the girls.

Let me reiterate--the archdiocese cancelled the boys' championships. But Jones got all the crap.

Even today as she is recognized for being an invaluable advocate for girls' basketball in the city, some still hold her at fault as evidenced by this "praise" from a fellow coach:

"Everybody was upset for a lot of years," said Greco, who had two stints as the head coach of the Central boys' team and recently completed his 11th season as the school's girls' coach. "Everyone pointed the finger at her. But, getting past that, what she did for girls' basketball in Philadelphia was remarkable. She deserves a lot of credit."

Getting past that? As if it's some black mark on her record that she fought for gender equity and came across the rather staunch patriarchy known as the Catholic Church.

Jones retired but this year the city finally reinstated the championship--for boys and girls. Only took 29 years!

Religious Employer Immune from Title IX Claim

A federal district court recently confirmed that religious educational institutions are exempt from Title IX when making employment decisions affecting clergy. The case involves the claims of a former nun, Lynette Petruska, who was demoted from her position as chaplain at Gannon University and forced to resign after she blew the whistle on a priest's affair. Title VII, the basis for her initial claim, was deemed inapplicable to Gannon by the Third Circuit Court of Appeals because of the ministerial exception to Title VII, which derives from the institution's First Amendment freedom of religion.

Petruska sought leave to amend her complaint to include a Title IX claim, since Title IX duplicates Title VII's protection of school employees from sex discrimination, but (as we predicted), the court held the ministerial exception to Title VII is equally applicable to Title IX. It doesn't matter which statute offers protection from discrimination, reasoned the court, because the exception "is rooted in a source of law higher than legislative enactments--namely, the First Amendment of the Constitution."

Citation: Petruska v. Gannon University, 2008 WL 2789260 (W.D. Pa. Mar 31, 2008).

Interview with Pat Griffin

Two of my favorite bloggers contributed to the current "Pride Month" issue of the Beacon Broadside. Helen Wheelock of Women's Hoops Blog interviewed Dr. Pat Griffin, of It Takes A Team about homophobia in sport. Griffin has recently been involved in some very interesting work on the role of religion in college sports, which can intersect with and contribute to discrimination against gay and lesbian student-athletes. I'm glad Wheelock asked her about it (among other things):

....What challenges do gay athletes face when sports and religion intersect? How can coaches, even coaches at schools with policies that forbid homosexual conduct, support their gay and lesbian athletes?

....Coaches have a responsibility to create and maintain a religion-neutral environment on their teams, but some coaches invite or pressure athletes to attend chapel or Bible studies, to pray together or listen to Biblical quotes as part of their coaching. I think this is wrong, not only because it places lesbian and gay athletes at risk, but it also alienates anyone on the team who does not share the coach's particular faith. College and high school sports are not church leagues.

I support every athlete's and coach's right to their personal religious or spiritual beliefs as well as their right to individually express that belief, but I think there is a little too much tolerance in athletics for mixing evangelical Christianity with athletics. I would hope that even in religious schools where homosexuality is specifically condemned that coaches and athletes would treat gay and lesbian teammates with respect.

On other topics with Title IX relevance, Griffin praised the NCAA for incorporating a more inclusive message into its athlete training workshops, and pointed out the particular vulnerability of female coaches to direct discrimination and tactics like negative recruiting.

Belmont Abbey College Faculty Challenge Exclusion of Contraception from the Health Care Policy

Update 2/25. We have heard that, contrary to the media report cited herein, the faculty and their counsel are not planning to challenge the college's contraception policy under Title IX. Rather, they have filed a complaint with the EEOC under Title VII, and they are challenging the school's policy under state law that requires insurers that offer prescription drug coverage to include coverage for contraceptives -- a law that, like Title IX, makes an exception for religious institutions.

Faculty at Belmont Abbey College, a Benedictine college in North Carolina, are considering whether to file a lawsuit to challenge the College's decision to exclude coverage for contraception from the health care plan offered to its faculty. They argue that the exclusion of contraception is sex discrimination in violation of Title IX.

Should the faculty file suit, their lawyers at the National Women's Law Center will have to contend with the religious exemption from Title IX, 20 U.S.C. § 1681(a)(3), which provides that the statute “shall not apply to an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization.” Belmont Abbey College, of course, insists that contraception is inconsistent with its religious tenants. But interestingly, according to NWLC, the College's articles of incorporation do not stress an overtly religious purpose. And what's more, the College has in the past successfully litigated its eligibility for state scholarship funding reserved for secular institutions. There are no judicial decisions interpreting Title IX's religious exemption, so it's unknown how much weight a court would give to evidence that seemingly contravenes the College's stated position on its religious tenets.

The contraception question itself is also interesting. The College could defend that the health care policy withholds contraception from both male and female faculty and thus is not discriminatory. (Of course, this argument would fail if the policy covered, say, vasectomies, but not birth control pills.) The Eighth Circuit recently endorsed this position in a case construing Title VII, the statute that prohibits discrimination on the basis of sex (among other characteristics) by private employers. Union Pacific, 479 F.3d 936 (8th Cir. 2007). The faculty would have to contend that lack of access to contraception disproportionately impacts women, or argue that access to contraception is required under Title IX's express prohibition of discrimination on the basis of pregnancy, or make the case that the health care policy's exclusion of contraception results in women receiving fewer health benefits on the whole.

California Judge Holds Christian High School Exempt from State Civil Rights Law

The principal of California Luthern High School did not violate civil rights of two female students when he expelled them on suspicion of their lesbian relationship, said a California judge earlier this week. Specifically, Judge Gloria Trask held that the state's Unruh Civil Rights Act, which governs private entities who are employers or provide public accommodations, does not cover private, religious schools.

According to this report in the North County Times, Judge Trask reasoned that the First Amendment protects a school's right to educate students on the basis of Christian beliefs and that their freedom of association trumps civil rights law. The paper also reports that the students' lawyer plans to argue on appeal that the Unruh Act applies because the school is in the business of providing education for a fee.

It will be interesting to see what happens to this case on appeal, especially if it the dispute really is about freedom of association. The conflict between a private organization's freedom of association and the public's interest in civil rights is controversial area of law. The Supreme Court has ruled that the Boy Scouts' associational right to promote among its members its beliefs about homosexuality trumps a scoutmaster's right not to be fired on the basis of his sexual orientation. But courts generally approach these conflicts in a very case-specific way, asking how strong is the particular associational interest in question and how intrusive it would be for the association to comply with the antidiscrimination law in question (the Second Circuit's decision in the Chi Iota case is illustrative). A private Christian school can likely make a persuasive case that it has a strong interest in promoting Christian values among its members. But it's not so clear that it is necessary to expel suspected lesbian students -- who, unlike a scoutmaster, are not in a "role model" position -- in order to promote that belief.