Do Civil Rights Laws Apply To Parochial Schools?

Oct 4, 2011

The United States Supreme Court hears arguments Wednesday in a major case testing the rights of teachers in religious schools. At rock bottom, the issue is who is a minister and when, if ever, that individual is exempt from the nation's civil rights laws.

Civil rights statutes do provide some exceptions for religious institutions. The laws allow religious organizations to prefer their own believers in hiring, for instance, and they allow churches and other religious organizations to require their employees to adhere to certain religious tenets. But what happens when a parochial school fires a teacher because she invokes her rights under the Americans with Disabilities Act, the law that bars discriminating against the disabled? The answer to that question could have huge implications.

Cheryl Perich began teaching at the Hosanna-Tabor Lutheran Church school in 1999 as a contract teacher. She became what is known as a "called teacher," with tenure, after she completed a course of study at a Lutheran university. At Hosanna-Tabor, in Redford, Mich., Perich taught primarily nonreligious subjects, like math and science. In addition, both as a contract teacher and as a called teacher, she led her classes in prayer, gave the homily in chapel several times a year and taught a religion class, for a total of 45 minutes of religion-related instruction each day.

At the beginning of the 2004-2005 school year, Perich was hospitalized and went on disability leave. In December, she told the school principal that she had been diagnosed with the sleep disorder narcolepsy, that treatment had begun, and that her doctor expected her to be able to return to full-time work in two to three months. The following month, the school changed its health insurance policy, hired another teacher and suggested that Perich resign. When she refused and threatened to sue under the Americans with Disabilities Act, she was fired.

She sued the school under the provision of the ADA that bars retaliatory firing.

The school does not dispute that it fired Perich for threatening to sue. It maintains that she is a minister of the church, and that church doctrine teaches that all such disputes must be resolved internally, within the church.

"It doesn't matter why she was discharged," says the school's lawyer, University of Virginia law professor Douglas Laycock. "What matters is that she was performing ministerial functions, and churches get to decide for themselves who their ministers ought to be."

But Walter Dellinger, representing Perich, counters that "this is not a case in which anybody is deciding for a church who their ministers can be." He points out that all of Perich's duties, including her religious duties, can be and are performed by teachers who are not "called," or even Lutheran.

"The duties that she's performing are not those that the church or the school had reserved to people with any particular religious status," Dellinger argues.

Laycock, representing the school, says that is simplistic. "We're not saying that this is a majority of her job," he says. Rather, "it is a majority of the religious instruction that these children are going to get, even if they go to Sunday school." In short, he says in his brief, Perich was the "primary instrument for communicating the faith to her students."

Being a called minister, he argues, is much like being a nun, and Perich, he contends, was like a nun who teaches nonreligious subjects in a parochial school. She too had specialized training and an ecclesiastical office in the Lutheran church as a called teacher, a position that he says is just as religiously significant in the Lutheran tradition as being a nun is in the Catholic tradition.

He concedes that means called teachers will not have the right to go to court under the ADA, or other civil rights laws.

Dellinger calls that a "radical proposition" that would exempt from the nation's civil rights laws hundreds of thousands of teachers and administrators, and potentially millions of employees who work not just for schools but for other organizations with religious affiliations.

Taken to its logical conclusion, Dellinger contends, it would mean that a religious organization could bar its employees from reporting to civil authorities that children are being sexually abused, or that health and safety violations are taking place. "A religious organization has no such constitutional entitlement to become a law unto itself," he argues.

A decision in the case is expected later in the term.

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Transcript

LYNN NEARY, host: This is MORNING EDITION from NPR News. I'm Lynn Neary. Steve Inskeep is away.

RENEE MONTAGNE, host: And I'm Renee Montagne.

The U.S. Supreme Court hears arguments, today, in a major case testing the rights of teachers in religious schools. At the heart of the issue is what defines a minister, and when is that individual exempt from the nation's civil rights laws?

Those laws do provide some exceptions for religious institutions. For example, the law allows religious organizations to give preference to their own believers in hiring. In this case, a religious school fired a teacher because she invoked her rights under the Americans with Disabilities law? NPR legal affairs correspondent Nina Totenberg has more on a question that could have huge implications.

NINA TOTENBERG: Cheryl Perich began teaching at the Hosanna-Tabor Lutheran church school in 1999 as a contract teacher. She became what's known as a called teacher, with tenure, after she completed a course of study at a Lutheran university. At Hosanna-Tabor in Redford, Michigan, Perich taught primarily non-religious subjects like math and science.

In addition, both as a contract teacher and a called teacher, she led her classes in prayer, gave the homily in chapel several times a year, and taught a religion class, for a total of 45 minutes of instruction related to religion each day.

In the fall of 2004, Perich was hospitalized and went on disability leave. In December, she told the school principal that she'd been diagnosed with narcolepsy, that treatment had begun and that her doctor expected her to be able to return to full time work in two to three months.

The following month the school made its health care insurance plan less generous, hired another teacher, and suggested Perich resign. When she refused and threatened to sue under the Americans with Disabilities Act, she was fired. She filed a lawsuit under the provision of the ADA that bars retaliatory firing.

The school does not dispute that it fired Perich for threatening to sue. It maintains that she is a minister of the church and that church doctrine teaches that all such disputes must be resolved internally within the church.

University of Virginia law Professor Douglas Laycock represents the school.

DOUGLAS LAYCOCK: Our position is it doesn't matter why she was discharged. What matters is she was performing ministerial functions, and churches get to decide for themselves who their ministers ought to be.

WALTER DELLINGER: This is not a case in which anybody is deciding, for a church, who their ministers should be.

TOTENBERG: Walter Dellinger, representing Perich, points out that all of Perich's duties, including her religious duties, can be and are performed by teachers who are not called, or even Lutheran.

DELLINGER: The duties that she's performing are not those that the church or the school had reserved to people with any particular religious status.

TOTENBERG: But the school's Professor Laycock says that's simplistic.

LAYCOCK: We're not saying that this is a majority of her job. It is a majority of the religious instruction that these children are going to get, even if they go to Sunday school and church on Sunday.

TOTENBERG: Being a called minister, he argues, is much like being a nun.

LAYCOCK: Lots of nuns teach the whole secular curriculum.

TOTENBERG: And Cheryl Perich, he argues, has specialized training and an ecclesiastical office in the Lutheran church as a called teacher, a position that he says is just as religiously significant in the Lutheran tradition, as being a nun is in the Catholic tradition. What that means for called teachers, he contends, is that they are not covered by the protections of the Americans with Disabilities Act.

LAYCOCK: They will have internal remedies, but they will not be covered by a right to go to court.

TOTENBERG: Walter Dellinger calls that a radical proposition that would exempt from the nation's civil rights laws, hundreds of thousands of teachers and other employees who work for enterprises that are religiously affiliated. It's a proposition, he adds, that would have huge ramifications for other laws as well.

DELLINGER: It would really be an extraordinary proposition to hold that religious organizations could fire anyone who complied with the child abuse reporting statutes by reporting to civil authorities that children were being abused, or could fire any employee who called health and safety violations to the attention of civil authorities.

TOTENBERG: In short, the question is where to draw the line between religious law and civil law.

Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright National Public Radio.