A Crucial Line of Defense for Catholic Education

Catholic education could face severe hardships should the religious protection that is built into Title IX — the federal law banning sex discrimination — be taken away. And that is exactly what some activists and the Biden administration hopeto do.

The Administration and some federal courts now interpret Title IX as a ban on teaching and upholding authentic gender, sexuality and marriage. But since the law was first enacted in 1972, Title IX has exempted religious schools and colleges from any application of the law that conflicts with their religious beliefs. Predictably, LGBT activists are now striving to undo that exemption.

For Catholics, it should be a top priority to hold that line. It doesn’t mean that we should focus only on exempting religion from bad laws while our culture collapses. But ultimately winning the culture war requires that we form young people in faith, reason and wisdom — all of which are in short supply today. I see no path to a renewal of the Church and culture without a renewal of faithful Catholic education.

We must carve out protection for Catholic education if we are ever to win the larger battle. If the religious exemption to Title IX falls, Catholic schools and colleges will probably fall also, and even Catholic homeschooling may be targeted. That’s because the impact will be felt far beyond restrictions on federal money for education, which is the trigger that subjects an institution to Title IX. Even more, a collapse of the Title IX religious exemption is likely to cascade into anti-Catholic bigotry in state law, accreditation, academic associations, athletic leagues, etc., until there is minimal tolerance for any form of truly Catholic education.

 

Lawsuits target exemption

Among the threats to the Title IX religious exemption are two lawsuits which are unlikely to succeed — but if they do, the consequences could be devastating.

One of the lawsuits seeks to exploit a narrow interpretation of the Title IX exemption itself. The exemption states that Title IX “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.”

Two students who were expelled from Fuller Theological Seminary for violating rules against same-sex unions have asked the Ninth Circuit Court of Appeals to deny the seminary access to the Title IX exemption, because Fuller is nondenominational and independent of any organized religion. This, they argue, is not within the scope of institutions that are “controlled by a religious organization.”

The danger to Catholic education is enormous, should this argument prevail. Most Catholic colleges and many lay-established Catholic schools in the U.S. are not legally owned by the Church. They have independent boards of trustees that legally control the institutions. If the Title IX exemption is interpreted to exclude such independent operations, many of our Catholic schools and colleges as well as America’s nondenominational Christian institutions would no longer be protected.

Just last month, the Cardinal Newman Society and a number of faithful Catholic schools and colleges joined an amicus brief urging the Ninth Circuit to acknowledge that an institution controlled by a board of trustees that is committed to certain religious beliefs is, in fact, “controlled by a religious organization” for the purposes of Title IX. That is precisely how the U.S. Department of Education has always interpreted the exemption. The regulations implementing Title IX exempt any “educational institution [that] has a published institutional mission that is approved by the governing body of an educational institution and that includes, refers to, or is predicated upon religious tenets, beliefs, or teachings.”

But there’s another lawsuit that takes aim at the entire Title IX exemption. A group of students and alumni from various Christian colleges have filed a lawsuit against the U.S. Department of Education, calling for the religious exemption in Title IX to be struck down as unconstitutional because, by protecting religious institutions, it creates an “establishment of religion.” This contradicts longstanding practice of the Education Department and religious exemptions throughout federal law.

 

Stand firm

If the religious exemption to Title IX were struck down, Catholic schools and colleges could be forced to give up federal aid and, much worse, face a growing number of legal and social obstacles that could render Catholic educators unable to promote and educate their students in the eternal truths of the Church, both moral and academic.

Meanwhile, the Biden administration is pursuing an end run around the Title IX exemption that could have similar consequences. By promoting the Equality Act — which was approved in the House and has been introduced in the Senate — the Administration has pinned its hopes on expanding the definition of discrimination under the separate Title VI and thereby opening the door to lawsuits and restrictions against religious education.

Catholic schools should be prepared to defend against these ever evolving and worrisome attacks on religious freedom. Courts have historically turned a kinder eye to institutions that maintain a sincere and consistent adherence to their professed moral beliefs. The best defense against these attacks, then, is for Catholic schools and colleges to consistently uphold the truths of the Church in their teaching, policies and activities.

The Church is used to weathering attacks. It has endured far worse than agenda-driven activists and lawyers seeking to overturn U.S. civil rights law. And recent court victories for religious freedom offer hope that the latest attacks will fail. But the attacks are worrisome nonetheless because of their direct opposition to religious freedom, and if they succeed, they could hurt thousands of Catholic families.

This article first appeared at the National Catholic Register.

‘Fulton’ Ruling Teaches Important Lesson to Catholic Educators

A leading attorney for the defense of religious freedom says Catholic educators can learn an important lesson from the Supreme Court’s recent Fulton ruling, which allowed Catholic Social Services of the Archdiocese of Philadelphia to uphold its faithfully Catholic practices. The lesson: Have courage and stand firm in the Faith.

Like Catholic social and medical services, Catholic education faces growing threats from the Biden administration and many states and localities because of Catholic beliefs about the sanctity of life, the human person and marriage. While educators may be tempted to compromise on programs like women’s athletics or on policies like moral standards for teachers, doing so violates the very mission of Catholic education, and there is no escaping confrontation with gender ideology. The best legal protection is to be consistently and firmly committed to the Catholic faith.

“As Fulton shows, religious freedom is stronger when Catholic apostolates are standing in a long historical tradition and have the courage of their convictions,” says Eric Kniffin, legal adviser to The Cardinal Newman Society and attorney with Lewis Roca Rothgerber Christie LLP. He also worked previously for the Becket Fund and the Civil Rights Division of the U.S. Department of Justice.

“On the contrary,” he warns, “if Catholic schools disregard their calling and lose their saltiness, they will have a much harder time convincing students, parents and judges that they need religious accommodations.”

The Court’s June 17 ruling in Fulton v. City of Philadelphia protects the right of Catholic Social Services to continue receiving City of Philadelphia funding, without yielding to the City’s demand that it place children for foster care with same-sex couples. The Court’s deference to Catholic Social Services’ mission and beliefs, says Kniffin, is heartening given the Biden administration’s efforts to impose broad accommodations for homosexuality and transgender behavior in schools and colleges by twisting the nondiscrimination provisions of the federal Title IX education law.

Last Wednesday, the Biden administration released a “Dear Educator” letter insisting that “Title IX’s protection against sex discrimination encompasses discrimination based on sexual orientation and gender identity,” despite the fact that Congress never intended the law to have such a meaning. On Monday, the Court declined to consider a Virginia school board’s appeal to preserve the privacy of boys’ and girls’ bathrooms, leaving educators vulnerable to the Administration’s gender ideology.

The Education Department’s letter last week indicated that it expects schools and colleges to allow students to choose athletic teams based on their stated “gender identity” and give them access to the bathrooms and locker rooms of their choice. Moreover, the Department indicated that it would mandate what educators can believe and teach about sex, warning against a scenario in which “the teacher tells the class that there are only boys and girls and anyone who thinks otherwise has something wrong with them.”

Good for education

But the Fulton decision offers some hope of protection for religious education, to the extent that the Supreme Court respected Catholics’ right to uphold fundamental truths about human nature and sexuality.

“One of the most important victories for the Catholic Church in Fulton is that the Supreme Court voted unanimously in favor of a religious entity that believes that ‘marriage is a sacred bond between a man and a woman,’” Kniffin says. “Some on the left have argued that such a statement is akin to racial bigotry. The Court’s unanimous decision is a strong repudiation of that analogy.”

Instead, the Court remained consistent with its Obergefell ruling in 2015, which said, “Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here.”

In his majority opinion in Fulton, Chief Justice John Roberts took notice of the Catholic Church’s long history of serving children as an extension of its religious exercise, not apart from it. Catholic education is no different. This was a point that Kniffin made in the amicus brief he authored last year for the U.S. Conference of Catholic Bishops (USCCB) and the Pennsylvania Catholic Conference.

“This history was important in the Fulton case, because the City and its allies claimed that foster care has now become a ‘public service,’ which means that the contracts at issue here had no more religious significance than contracts for ‘road maintenance,’” Kniffin explains. His brief for the USCCB noted that the Court had already rejected this line of argument with respect to Catholic education in the 2012 Hosanna-Tabor ruling, which affirmed the ministerial exception for certain Catholic school teachers. In that case, the federal Equal Employment Opportunity Commission made the outrageous argument that the First Amendment does not apply to Catholic schools providing a “socially beneficial service … in compliance with State compulsory education laws.”

Just as Hosanna-Tabor helped the Archdiocese of Philadelphia make its case, the Fulton ruling gives Catholic education an even stronger argument for religious freedom, Kniffin says. “While caring for orphans falls under the corporal works of mercy, the work of Catholic schools falls under the spiritual works of mercy. When carried out as the Catholic Church intends … Catholic schools are carrying out a core religious exercise.”

On the other hand, the Fulton ruling is also a reminder of how fragile such rights can be in today’s secular society. Although the Supreme Court had the opportunity with this case to overturn its 1990 ruling in Employment Services v. Smith, it avoided the issue, thereby allowing states and cities like Philadelphia to attempt further discrimination against Catholic organizations as long as their laws and rules are generally applicable without exceptions. Catholic Social Services may soon have to return to court to protect its foster care services and force a review of Smith— or that review might occur because of a case involving Catholic education, which faces challenges with licensing, school choice funding, accreditation, participation in athletic conferences and other state and local attempts to impose gender ideology despite Catholic beliefs.

“The good news is that five justices in Fulton said that they believe that the Free Exercise Clause protects more religious liberty than the Smith decision might indicate,” Kniffin says. “Hopefully, this consensus will help dissuade government from even stronger efforts to force Catholic schools to abandon their convictions on matters of sexual morality and the human person. But if they do, the Court seems poised to protect the First Amendment right to free exercise.”

As for federal programs like college student loans and aid for textbooks and busing, Catholic education is protected by the religious exemption in Title IX — except that the Biden administration wants to maneuver around that exemption with the harmful Equality Act. Activists are also attempting to dismantle the Title IX exemption in court. To counter their arguments, the Cardinal Newman Society recently joined an amicus brief with the Christian Legal Society, several groups representing various religious beliefs, and Catholic schools and colleges that are recognized by the Newman Society for their faithful education.

By standing firm and refusing to yield our religious freedom, Catholic educators can hopefully continue to win in court. Moreover, the formation that Catholic education provides young people — if it remains consistently faithful to the teachings of the Church — can eventually renew society and restore respect for truth.

This article first appeared at the National Catholic Register.

Protecting Your Right to Educate: How Catholic Education Can Defend Against Emerging Legal Threats

Editor’s Note: The article below is included in the forthcoming spring 2021 edition of the Newman Society’s Our Catholic Mission magazine.

Half a century into a sexual revolution that has upturned notions of sexual morality and even gender identity, Catholic education is under attack like never before. Religious schools and colleges are facing protests, lawsuits and other serious threats—all because Catholic educators hold fast to Church teachings that were considered common sense even a decade ago.

Catholic schools and colleges have not sought out and do not want this confrontation. They exist to form young people to serve and worship God and to spread love and hope to others, rooted in the Church’s teaching on the dignity of the human person and God’s design for human sexuality. But educators are finding that, due to forces beyond their control, their freedom to operate according to conscience and mission is shrinking.

No option for compromise

As legal and cultural pressures continue to swell, Catholic school leaders must decide now how they will respond. Many Catholic educators decided a long time ago to assimilate with changes in modern culture. This is a non-starter for schools and colleges that take seriously the mission of authentic Catholic education. Nor is it realistic for Catholic educators to simply hope that this cultural moment will pass them by without incident.

Another option would be to make some compromises with the culture in the hopes of brokering a peace. The pervasive attacks on traditional moral teaching have led some religious leaders to try to compromise and thereby win some good will from gender and sexuality activists. Mormon and Evangelical leaders have tried this approach in recent years, with decidedly mixed results.

In 2015 the Mormon Church threw its weight behind the “Utah Compromise,” an attempt to broker a truce in the culture war by pairing new civil rights protections with religious-liberty protections for faith-based organizations. At the end of 2018, major Evangelical Christian groups—including the Council for Christian Colleges and Universities and the National Association of Evangelicals—endorsed their own version of this compromise approach under the slogan “Fairness for All.” One supporter described the effort to World Magazine in these terms:

As Christian higher educators, we are increasingly persuaded that the most viable political strategy is for comprehensive religious freedom protections to be combined with explicit support for basic human rights for members of the LGBT community.

So far, however, there is little reason to call the “Fairness for All” approach a success. While progressive activists celebrated what they were able to accomplish in Utah, they quickly signaled that it was not enough, and that they would push for more whenever they had the opportunity. Advocates specifically complained that the “Utah Compromise” yielded too much so-called “religious liberty.” The Left has come to see the battle between progressive goals and religious liberty as a zero-sum game, and increasingly decries “religious liberty” as a code word for bigotry. There is little reason for religious conservatives to believe they can change people’s minds on this by compromising on nondiscrimination law.

If compromising principles in order to placate progressive critics is a flawed political strategy, it is perhaps an even worse legal strategy. At one point, the University of Notre Dame told a federal judge that, consistent with Ex corde Ecclesiae, it was prohibited from paying for, providing, or facilitating access to contraceptives. But in 2014, the University reversed course and voluntarily began complying with the HHS Mandate. This sort of inconsistency invites courts to probe as to whether a school’s stated religious convictions are sincere, a key inquiry in religious liberty cases. Perhaps even worse, it encourages protestors and plaintiffs by giving them reason to hope that Catholic institutions will cave if only the heat is turned up hot enough.

Adopt strong Catholic policies

Rather than trying to appease the Church’s critics, Catholic organizations should instead look to clarify and strengthen their religious identity. This is the best way for Catholic schools and colleges to embrace their distinctive mission.

As The Cardinal Newman Society has stressed, the Church calls Catholic educators “to remain vigilant in their mission” by resisting the temptation to conform to the world. Schools and colleges must do this “by preserving a Catholic culture which proclaims essential truths about the nature and dignity of the human person.”

Fortunately, this ecclesial mandate is also a strong and wise legal strategy. While the challenges facing churches and religious organizations are daunting, our nation’s bedrock commitment to religious liberty remains strong. This historical commitment continues to live in the First Amendment’s protections for religious and expressive freedom, broad religious liberty statutes, and specific exemptions found in a number of laws.

Conduct a Mission Audit

In order to best protect their religious liberty, it is imperative that Catholic schools and colleges understand and take full advantage of these protections. To do so, Catholic educators should undertake a Mission Audit to help them understand where they are likely to face challenges and to ensure that they have an architecture in place to protect their freedom to minister and work in accordance with their faith. A Mission Audit also helps schools implement strong Catholic standards, such as those developed by the Newman Society, in every aspect of Catholic education.

Just as a general audit helps an organization understand its financial soundness, a Mission Audit will help a religious organization understand how its religious convictions affect its work and how these convictions may face conflict. The proposed mission audit outlines the kind of practical steps religious institutions can take to avoid such conflicts, improve their ability to claim religious liberty protections, and prepare themselves for potential challenges.

Many school and college leaders see the need to make improvements along these lines but struggle to understand where to begin and what steps they should be taking in the short term. The Mission Audit that I have guided dozens of school, colleges, and other religious institutions through begins with getting leaders around a table to make sure they have clarity about their mission and convictions. Building on this consensus, leaders should ask some high-level questions to get a sense about what they need in order to accomplish their mission and whether documents and policies adequately convey these requirements. The most important areas to review are employee expectations, student expectations, nondiscrimination statements, and facilities use policies. Schools may also want to make sure they understand the nondiscrimination requirements they are subject to through professional or extracurricular organizations like sports leagues.

In undertaking this overview, school leaders may find it helpful to refer to guides that have been prepared and made available by religious liberty groups. But while publicly available guides and templates can be a good start, most schools and colleges should invest in a more detailed and individualized strategy. Every organization’s circumstances are different, and sophisticated entities should not entrust their legal exposure to an online resource any more than they would forego individualized tax advice.

Each organization’s process will need to take into account the challenges in its locality, as well as the religious liberty provisions specific to the organization type and location. The audit outlined below is a sizable undertaking, but such planning is necessary as a matter of stewardship and prudent leadership. While each such audit must be tailored to the particular entity, every organization’s process should involve three basic steps:

1. Clarify scope and objectives

The first step in the audit process is for school and college leaders, together with legal counsel, to discuss the institution’s general concerns and establish the scope of the audit. Most Mission Audits should address the following subject areas:

Corporate documents

Is the school or college taking advantage of available opportunities to establish its identity as a religious organization under relevant laws?

Public accommodations

Does the school or college have policies and procedures for facility use and rental? If so, does its process properly balance reasons for renting its facilities with its ability to control how the campus is used?

Nondiscrimination policies

Do nondiscrimination policies—in handbooks, policy manuals, and elsewhere—accurately reflect how the school or college makes decisions?

Student conduct issues

Do promotional materials, enrollment process, student handbook, disciplinary process and procedures, etc., appropriately communicate and secure consent regarding the community’s standards and their connection to the religious identity of the school or college?

Employee conduct issues

Does the school or college understand how available religious liberty protections apply to each position? Has it laid the proper groundwork so that it is able to invoke available religious liberty protections when necessary?

Sexual abuse

Do policies and procedures for handling allegations of sexual abuse or misconduct reflect best practices? Is the school or college well-positioned to handle allegations in a manner that balances justice and mercy and that prepares it to address related public relations and legal challenges?

2. Audit policies and procedures

The second stage of the audit involves reviewing how the school or college operates at present. The audit usually begins with a document review and continues with follow-up questions and conversations. A thorough document review typically involves the following: corporate documents; human resources documents; student-related documents; sexual abuse policies and procedures; facility rental policies and procedures; and documents related to third-party obligations, including sports leagues, grants, and government contracts.

3. Develop recommendations

While the first two stages of the audit help a school or college understand where it stands, this final stage is the most important. Here, educators will identify and implement strategies to help them continue to pursue their mission despite the present and emerging threats to religious liberty.

The first goal is to identify obstacles that can be avoided. The school or college could seek to: eliminate unnecessary legal conflicts; eliminate peripheral activities; reduce dependence on government funding; or reduce oversight from licensing or accrediting organizations.

For those conflicts that are not easily avoidable, religious organizations should work to improve their ability to claim crucial protections for religious liberty. By scholar Douglas Laycock’s count, there were 2,000 religious exemptions in state and federal law in 1992. The audit should help educators identify the religious liberty protections most relevant to their activities and identify ways to reshape policies, practices, and documentation in light of these protections.

Finally, the audit recommends ways for the school or college to avoid controversy. While positioning itself to qualify for religious liberty protections, a religious organization should not overlook some simple, practical things it can do to avoid controversy. It should do everything it can to treat employees well and to apply moral standards consistently.

Mission Audits can be conducted with other peer organizations to save on costs and should be done through trusted legal counsel.

Undertaking a Mission Audit—and implementing strong Catholic standards like the Newman Society outlines on the following pages—will go a long way in helping Catholic schools strengthen their mission and defend against legal threats.

 

Eric Kniffin is legal advisor to The Cardinal Newman Society and a partner with Lewis Roca Rothgerber Christie LLP in Colorado Springs, Colo., where he specializes in protecting religious institutions. This article is adapted from a paper published at the Newman Society’s website. It should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only.

The Biden Administration Poses New Threats to Catholic Education

In just the first months of the Biden administration, Catholic educators have been confronted by serious threats to their freedom to teach and witness to the Catholic faith.

We knew the storm was coming. Over the last four years, schools and colleges enjoyed a brief respite before the anticipated return of Obama-era policies like the mandate for contraception coverage in healthcare plans and attempts to open bathrooms and locker rooms to students of the opposite sex.

The new threats loom even larger. Catholics face radical attempts to erode protections for our schools, colleges, homeschooling, and all models of Catholic education to fulfill their mission to uphold the moral law and other Catholic teaching. In particular, the Biden administration seems determined to force Catholic schools and colleges—and all religious organizations—to embrace gender ideology or close their doors.

President Biden has promised to sign the dangerous Equality Act in his first 100 days. At this time, the Equality Act has passed the House and is awaiting a vote in the Senate, where its fate may depend on whether the Senate ends the filibuster and requires only a majority vote. Meanwhile, some Republicans have floated a false compromise—misnamed “Fairness for All”—that would only partly delay the collapse of religious freedom.

Continue reading at Crisis Magazine…

Nick Sandmann

Justice for Nick Sandmann — and All of Us

Last year during a Catholic school trip to the March for Life in Washington, D.C., Nick Sandmann and his peers were bullied by shameless activists and then belittled by shameless activist journalists. Now justice has begun.

CNN has agreed to some type of settlement with Sandmann for its reckless and false reporting, after the boy and his family filed an $800 million lawsuit against the television news company, The Washington Post and NBC Universal. Reality is about to hit the latter two companies also, and rightly so.

I am delighted to see this boy and his family defeat Goliath — and it’s a win for all of us, especially those who brave the weather each year to attend the March for Life as well as the West Coast Walk for Life, only to be heckled by those who defend the most abhorrent practices and (worse) largely ignored by the media.

The persecution of Sandmann and the Covington Catholic School students could easily happen to any of us — and not just in Washington, D.C., but at any restaurant or supermarket across the U.S. Although American libel laws are woefully inadequate to protecting anybody deemed a “public figure” by the courts, we can be grateful that the laws still protect the average citizen — people like Nick Sandmann, simply exercising his free speech in an extraordinarily restrained manner.

God bless you, Nick, for taking your fight to the courts! You fight for Americans everywhere.

The witness of young Catholics

The news of the CNN settlement arrives just two weeks before this year’s March for Life on Jan. 24 and the West Coast Walk for Life on Jan. 26, when thousands of Catholic school and college students will gather once again, countering a culture of death.

Is it any surprise that, when Americans gather to protest an atrocity as evil as abortion, evil retaliates with insults, attacks and unpredictable situations?

We expect it, but there was a time not so long ago when adults refrained from targeting young people, because of a general respect for their innocence and the space they need to grow and mature. Even if the Covington boys had acted improperly — and from what I have seen on the videos, not every boy had the composure that Sandmann displayed — it was simply wrong for national media to destroy boys’ reputations for reacting to angry and drum-banging political activists.

Sure, some of the Covington Catholic School boys were wearing “Make America Great Again” hats, and the most hardened “never Trumper” thinks that makes them fair game for protest. But these were young tourists, excited to support their president and the dignity of babies. School boys are not appropriate targets for nasty political protests.

Unlike the activists who confronted him, Sandman acted commendably by keeping his cool in a confusing and hostile situation. School and college students—and all others, young and old—who are traveling to this year’s March for Life would do well to follow Sandmann’s lead when faced with the inevitable hatred of pro-abortion protestors. From what I have seen in past years, the young people at the March for Life do an outstanding job of keeping it positive and celebrating life, even while protesting the horrors of abortion.

Indeed, pro-life students from across the U.S. cheerfully overcome all sorts of obstacles when attending the March for Life under wintry conditions. In 2016, there was a different flurry of media attention after the March for Life, when buses returning to Midwest schools, colleges and parishes were hit with a massive snowstorm. Some groups were stranded on the Pennsylvania Turnpike for more than 24 hours.

These included students, faculty and staff from the University of Mary in Bismarck, North Dakota, a faithful Newman Guide college. One student told The Cardinal Newman Society that being stuck in the snow had its perks, because it brought much-needed media attention to the March for Life. Media coverage revealed the joy and optimism of the group, and it “showed the dedication of the students for this issue,” the student explained.

The nation’s media should be ashamed that snowstorms and activist attacks on young people are the only way the March for Life gets substantial attention. Hopefully this year is different.

A chastised media?

This month, as every year, Catholic students will travel in buses from across the country to march against abortion. They will brave the cold weather and sleep on the floors of gyms and churches. They will do their part to make a stand for life!

Keep an eye out for Franciscan University of Steubenville, Ohio, which is sending eight buses with nearly 500 students. At least five buses and more than 250 students from Benedictine College of Kansas will travel more than 1,000 miles. Presidents from both colleges and leaders and students from several other faithful Catholic colleges will March for Life.

Christendom College in Virginia always closes campus for the day, so students, faculty and staff can attend the March. Other Catholic colleges that typically cancel classes during the March include The Catholic University of America, The Thomas More College of Liberal Arts and Magdalen College of the Liberal Arts.

The story of what will happen at this year’s March for Life is yet to be written, and a chastised media might think about highlighting the example of the extraordinary young people who come to the March each year. Catholic students are numerous at the March, and they witness to the dignity of human life all year long. May God bless them for their witness!

This article first appeared at The National Catholic Register.

School of Athens

The Trouble with Charter Schools

In the last few decades, many alternatives to public schooling have become popular, including charter schools of a “classical” framework. However, despite their impressive results in many important areas, we cannot forget what can only be accomplished at an authentic Catholic school – one that embraces its identity and mission with gusto.

At The Catholic World Report, Dr. Dan Guernsey writes:

As principal of a “classical” Catholic school and a lifelong advocate for the liberal arts, I am excited by the growing classical school movement—which now has reached even many public charter schools. Catholic families are understandably attracted to charter schools’ free tuition and classical schools’ commitment to established curricula, teaching methods and virtue development.

But a secular school can never be a worthy substitute for authentic Catholic education and some parents seem to be either unaware or unconvinced of the Church’s reasons for requiring them to choose Catholic education if it is available.

Continue reading at The Catholic World Report…

Maintain Schools’ Religious Character to Protect Religious Freedom

This is part of a series of research reports on the Common Core State Standards Initative and its potential impact on Catholic education.

Introduction

It is vital that religious educational institutions maintain their religious mission in all their programs—including standards, methods, and curriculum—if they want to avoid being subjected to federal civil rights laws and the federal control that comes with them. Civil rights laws threaten the ability of religious educational institutions, including primary and secondary schools, to preserve their religious character.1 For instance, Title VII prohibits religious discrimination by employers, including educational institutions,2 and Title IX prohibits discrimination on the basis of sex in educational programs.3 And in a concerning development for religious schools, both statutes have recently been interpreted to prohibit gender identity discrimination. In order to maintain their religious character, educational institutions must be able to employ faculty and recruit students who will faithfully promote the schools’ religious educational missions, and comply with their doctrinal teachings.

To do so, religious schools must operate in a manner that affords them the protection of key exemptions from these federal civil rights statutes for religious organizations. But those exemptions do not apply if a school that was founded as a religious institution has become largely secular. A key factor, among many others, in a religious educational institution proving it has maintained its religious character is demonstrating that its curriculum includes instruction in the religious beliefs of the institution. Thus, religious educational institutions must resist governmental attempts to interfere with and control the content of their curriculum.

I. THREATS TO THE RELIGIOUS IDENTITY OF RELIGIOUS SCHOOLS

Title VII’s Prohibition on Employment Discrimination

Title VII bars certain employers from discriminating on the basis of religion and other protected characteristics.4 Unlike Title IX, discussed in Section I.B., below, Title VII’s applicability does not depend on whether an employer receives federal funds.  Also, Title VII includes a much broader exemption for religious organizations than does Title IX.

Title VII Applicability

Title VII prohibits employers of 15 or more employees from discriminating in hiring and firing employees on the grounds of race, color, religion, sex, or national origin.5 These employers may not “limit, segregate, or classify” employees or applicants (again, on the bases of race, color, religion, sex, or national origin) in such a way as to deprive them of opportunities or negatively affect their status.6

Title VII Exemption

Title VII does not apply to religious discrimination by religious organizations.7 Title VII does not statutorily define what constitutes a religious educational institution or religious organization, but the exemption is broad: all of a religious organization’s activities are exempt, not just those activities that are specifically religious. General principles of interpretation of the exemption caution that it is fact specific.8 Because of the sparse nature of the statute, courts have varied not only in their decisions about whether certain organizations are religious but also in the factors they apply.

In a case particularly relevant to the religious nature of Catholic educational institutions, the Oklahoma Federal District Court found that St. Pius X School was entitled to make employment decisions on the basis of religion under Title VII’s religious employer exemption. The Court stressed the following facts in arriving at its conclusion: (1) The school required participation in daily prayer and religious instruction for all students; (2) The pastor of the parish supervised some school decisions, including whether to renew teacher contracts; (3) The St. Pius student handbook described the school as “first and foremost a Catholic school [that] embraces the Catholic traditions of mass, personal prayer and stewardship” and required students to “actively show your faith by: respecting the Eucharist, participating in the prayer and social life of the church school community, and treating classmates, teachers and visitors with the respect they deserve”; and, (4) The school permitted students of any faith to enroll but gave preference to members of the St. Pius X Parish and the Catholic faith.9

In another important case related to religious educational institutions, the Eleventh Circuit Court of Appeals concluded that Samford, a Baptist university, was a religious educational institution which can consider religion when making employment decisions. The court described the following as relevant to its conclusion:  (1) Samford was originally founded as a theological institution by the Alabama Baptist State Convention; (2) The vast majority of its trustees had been Baptist; (3) The Baptist convention contributed over four million dollars to Samford; (4) All Samford’s faculty who taught religion were required to subscribe to a particular Baptist statement of faith; and, (5) Samford’s charter described its purpose in explicitly religious terms.10 Additional courts have also ruled that particular religious educational institutions were entitled to Title VII’s religious employer exemption.11

Title VII and Gender Identity Discrimination

In a concerning development for religious institutions, the federal EEOC and a number of courts have held that Title VII’s ban on sex discrimination forbids discrimination on the basis of gender identity.12 Accordingly, religious educational institutions ought to have written policies outlining their religious views on gender identity and explaining what they plan to do if confronted by an applicant, student, or employee who challenges those views. Such written policies will put religious institutions in the best position to avail themselves of Title VII’s religious employer exemption and First Amendment defenses if the need should arise.13

Title IX’s Prohibition on Sex Discrimination in Education

Although Title IX prohibits sex discrimination14 in schools that receive federal financial assistance, it has an exemption for religious organizations.15 If an educational institution is both “controlled by a religious organization” and if prohibiting sex discrimination would “not be consistent with the religious tenets of such organization,” then the school may be able to discriminate.16 But it is clearly limited to differentiating on the basis of sex.17

Funding Trigger: Federal Financial Assistance under Title IX

Title IX only applies to schools that receive federal financial assistance. Most religious colleges and universities receive federal financial assistance in the form of Federal Student Aid,18 thereby subjecting them to Title IX’s mandates. But religious schools at the primary and secondary level are far less likely to receive federal funding in this or any other form. Thus, it is not very likely that Title IX will apply to such schools.

For educational institutions attempting to determine if they are receiving federal financial assistance, it is important to note the following:  (1) it appears that tax exempt status does not constitute receiving federal funds;19 and (2) use of small amounts of federal funds has been held to not be enough to classify the school as a recipient of federal financial assistance under Title IX.20 But at least one federal court has found that one Catholic high school’s receipt of federal financial assistance through the National School Lunch Program triggered the applicability of Title IX to all schools within the Diocese.21

Should a religious school cross Title IX’s federal financial assistance threshold, the entire institution will be  subject to government regulation under Title IX. For example, Title IX applies to religious colleges and universities if their students are receiving federal loans to pay for their education. But they must actually receive federal financial assistance rather than merely benefit from another entity’s receipt of federal funds.22 If federal financial assistance is actually received, subjecting the school to Title IX, there are virtually no methods of institutional structuring which will allow it to maneuver around these regulations.23

Title IX’s Religious Exemption

Title IX’s exemption for religious organizations is far narrower that the Title VII exemption discussed earlier. It is found at 20 U.S.C. § 1681(a)(3), and is also referenced in similar language in § 1687(4).  The procedure for obtaining this exemption requires the highest ranking official of the educational institution seeking the exemption to submit a written statement to the Director of the Department of Education “identifying the provisions of this part [Title IX] which conflict with a specific tenet of the religious organization.”24 Thus, unlike the Title VII exemption, the Title IX exemption must actually be affirmatively pursued by the institution.

In order to qualify for this exemption, an educational institution must be “controlled by a religious organization.”25 An educational institution that could be classified as a religious institution itself would also meet this requirement.26

On one end of the spectrum, a religious educational institution which is in fact a seminary will generally be considered controlled by a religious organization (or actually may be a religious organization) for the purposes of Title IX exemption. Such a school would then need to establish that, according to its religious tenets, sex discrimination was necessary. Many religious faiths believe in either differing vocational roles for men and women generally or at least, reserve ministerial ordination for men only. These faiths can establish their beliefs based on their interpretation of their sacred texts and foundational documents.27 These are exactly the type of institutions this exemption benefits.28 To the extent that an educational institution which trains religious leaders can establish that its faith does differentiate in particular ways based on sex, it should be able to allow its students to receive federal financial assistance without coming under the sway of government regulations prohibiting the type of role differentiation it practices.

But it is important to understand that the Title IX exemption is quite narrow. A religious primary or secondary school, unlike the seminary above, faces a difficult task in establishing that it is a religious institution or controlled by a religious organization. And it faces an even more difficult challenge in establishing that it has a religious rationale for sex discrimination. A Supreme Court case involving Grove City College demonstrates this difficulty. Grove City objected to signing an Assurance and Compliance form required by the Department of Education, which would have subjected the school to continual governmental oversight, potentially requiring responses to both past and future discrimination. The court found Grove City was not exempted as a religious institution, even though it was committed to the Christian faith since its founding in 1876 and its religious beliefs clearly permeated its educational programs.29 Nevertheless, religious schools which are institutionally connected to particular religious denominations and organizations, like Catholic parochial schools, stand the best chance of fulfilling this requirement.30

Courts apply religious exemptions by weighing the facts carefully, not merely taking a school’s assertion that it is religious at face value.31 Importantly, a religious past does not speak for a religious present.  Straying from an historic religious character cuts decisively against being regarded as religious or controlled by a religious organization.

Compelled Health Insurance Coverage Under the Patient Protection and Affordable Care Act

The Patient Protection and Affordable Care Act (ACA) poses some serious threats to conscience rights of religious schools. The ACA generally mandates that employers provide one of several options of health insurance to their employees. The ACA also grants sweeping powers to the Secretary of the Department of Health and Human Services (HHS) and other administration agencies, which they have used to adopt regulations mandating coverage of contraception, sterilization, and even abortion in an employer ’s coverage options. The regulations grant an exemption for religious employers, but it is extremely narrow. It is limited to “churches, their integrated auxiliaries, and conventions or associations of churches” and “the exclusively religious activities of any religious order.”32 Most religious schools likely do not qualify for this exemption.

The regulations do provide an “accommodation” for religious organizations that do not qualify for the exemption. Under the accommodation, religious employers must obtain an insurer or third-party claims administrator and submit a form that causes that insurer or third-party administrator to arrange payment for the health care items and services to which the employer objects. A religious organization may believe (and many do)33 that the “accommodation” substantially burdens its religious beliefs because employees obtain access to the objectionable items and services as a direct consequence of their employment with the religious organization and of their participation in the health insurance benefits it provides. Institutions that attempt to avoid the conscience-violating requirements of the ACA by not providing health coverage for their employees will face stiff financial penalties. Section II(B) below discusses religious schools’ options for avoiding the requirements of the ACA as well as potential grounds for protecting religious freedom through litigation.

II. STEPS TO PROTECT THE RELIGIOUS CHARACTER OF SECTARIAN

Demonstrating A School is Religious

In short, many religious educational institutions, particularly religious primary and secondary schools which were founded on purposes tied to goals of educating in conformity to religious teaching – especially when the ties are denominationally specific or specific to an individual church – should be exempted from federal prohibitions on sex and religious discrimination. But an educational institution that veers from a religious founding will probably not be able to demonstrate it is a religious organization.34 It will therefore not be able to require that its staff, faculty, and student body agree with its religious mission and theology.

The cases indicate courts will consider ten factors when determining whether a school is a religious organization.35 A primary or secondary school is much more likely to be able to qualify for an exemption if it satisfies all of them. They are:

Whether the entity operates for a profit

This factor is not an issue for most religious primary and secondary schools, as few if any operate for-profit. “Nothing in the statute or case law says a for-profit corporation can not [sic] be a ‘religious corporation,’ but every reported claim for that status by a for-profit corporation has been denied.”36 Non-profit status definitely weighs in favor of being considered a religious organization.

Whether it produces a secular product

Many religious schools teach secular subject matters in addition to religious. This does not preclude them from being considered religious institutions (indeed, typically the “secular” subject matter is taught from the religious perspective of the school). For instance, Samford University offers a plethora of secular degrees, but was still considered a religious institution because, among other things, its chief purpose was “the promotion of the Christian Religion throughout the world by maintaining and operating … institutions dedicated to the development of Christian character in high scholastic standing.”37

Whether the entity’s articles of incorporation or other pertinent documents state a religious purpose

All indications are that the governing documents of an organization are important to it being considered religious. No cases were found where an organization was deemed religious even though no religious purpose was stated in its founding documents.38 On the other hand, Samford’s charter reflected its chief purpose of promoting the Christian Religion throughout the world, and that was a significant factor in the court’s determination that the university was religious.39

Whether it is owned, affiliated with or financially supported by a formally religious entity such as a church or synagogue

Though not determinative, this factor certainly figures strongly into the calculation when assessing whether a school is religious. The Court found it significant that Samford University received 7% of its annual budget from the Southern Baptist Convention.40

Whether a formally religious entity participates in the management, for instance by having representatives on the board of trustees

This factor is very helpful for determining a school is religious if it is not directly affiliated with a church or other religious body. For instance, in LeBoon, a Jewish Community Center was considered a religious organization even though it was not directly affiliated with any synagogue, because several rabbis were advisory, non-voting members of its board.41

Whether the entity holds itself out to the public as secular or sectarian

This is one of the most important factors. A school in Hawaii that required its teachers to be Protestant was not religious, due in part to the fact that the school’s introductory pamphlet and course catalogue did not list any religious purpose of the school.42 Conversely, another court found it significant that “Samford’s student handbook describes Samford’s purpose this way: ‘to foster Christianity through the development of Christian character, scholastic attainment, and a sense of personal responsibility.’”43

Whether the entity regularly includes prayer or other forms of worship in its activities

Students at Samford University are required to attend chapel—which figured favorably in the court’s determination that it is a religious organization.44 But this factor did not help a school in Hawaii due in large part to the fact that most of the religious activities were optional for students.45

Whether it includes religious instruction in its curriculum, to the extent it is an educational institution

Sectarian schools must be careful to ensure that religious courses do something more than just teach about religion—which is allowed even in public schools. For instance, this factor weighed against the Hawaii school that was found not to be religious because its curriculum “consist[s] of minimal, largely comparative religious studies….”46 Whereas, Samford University actually has a divinity school that trains clergy.

Whether its membership is made up by coreligionists

In the school context, this factor obviously has to do with the composition of the student body and faculty. It is not necessary that students and teachers be limited to individuals of a particular religion. Although Samford students are required to attend chapel, the court made no mention of a requirement that they be Southern Baptist, and determined the school was religious anyway. And only instructors who taught religion courses were required to subscribe to a particular statement of faith.47 The court did favorably mention another case where the fact that 88% of the student body and 95% of the faculty were Baptist was significant in determining the school was religious.48

Consistent compliance with religious beliefs

Courts have held that a school or entity is no longer religious, even though it once was, because of lack of effort to comply with its original religious teachings. For instance a court found that a home for troubled youth originally established with a religious purpose and governed by church-member trustees was presently secular because it no longer included religion in its programming and attendance at religious services was optional.49 Likewise, a school in Hawaii originally established as a Protestant institution was not religious because “the record reveals the purpose and emphasis of the School[] have shifted over the years from providing religious instruction to equipping students with ethical principles that will enable them to make their own moral judgments.”50

This factor may be particularly significant for primary and secondary schools that are affiliated with a particular denomination that specifically proscribes religious tenants that must be followed. For instance, all Catholic educational institutions are bound by Canon Law. And universities in particular are also bound by the Church’s Apostolic Constitution Ex Corde Ecclesiae.51

Protection From the ACA

This section discusses religious schools’ options for avoiding the requirements of the ACA as well as potential grounds for protecting religious freedom through litigation. Schools should consult legal counsel to determine what their specific options are under the ACA regime. Some potential options are as follows:

Lobby for amendments addressing conscience protection issues

Members of Congress are aware of the deficiencies in the ACA, and several are proposing amendments to fix the shortcomings. Representative Joseph Pitts (R-PA) introduced H.R. 940, the Health Care Conscience Rights Act, which would prohibit the federal government from requiring employers to buy insurance coverage that includes items or services against which they have deeply held moral or religious objections. Institutions concerned about the formidable new threats to their conscience rights must lobby for broad protection at both the federal and state levels.

Sue HHS under the Religious Freedom Restoration Act.

In a specific case where all of an institution’s options for fulfilling the ACA’s employee-coverage mandate substantially burden its religious beliefs by forcing it to cover objectionable practices, or arrange and facilitate that coverage through the accommodation, the institution may be able to file a lawsuit alleging that the ACA’s mandate as applied to them violates the federal Religious Freedom Restoration Act (“RFRA”).52 The act prohibits the government from “substantially burden[ing] religious exercise without compelling justification.” Health coverage is an important employee recruiting and retention tool for employers. Having to choose between not providing health coverage and compromising religious values is likely the type of burden RFRA was meant to protect against.53 The success of any such claim will depend on the specific facts of an institution’s circumstances. The institution should be able to assert that it actually has a sincere religious belief against providing or facilitating coverage for certain objectionable practices, and that forcing it to do so will substantially burden its belief because it would select non-objectionable health coverage if it could.

Conclusion

Religious primary and secondary schools are prohibited from discriminating on religion and sex by Title VII and Title IX.54 There are exemptions for religious organizations in both of these statutes, but schools can only take advantage of these exemptions if they satisfy multi-factored tests that require them to consistently follow their religious convictions. To the extent that a religious school departs from its historic religious ties, it may be in danger of losing its ability to claim that it is a religious employer exempted from civil rights legislation disallowing even religious discrimination. To minimize regulation, such institutions should firmly maintain their religious identities and should exercise caution when accepting federal funds or allowing their students to accept federal financial assistance.

Religious schools are also subject to new requirements for providing health insurance to employees.  Federal regulations implementing this law require employers to provide coverage for items and services to which religious schools may object, such as contraception and abortion. School officials should begin consulting with counsel as soon as possible to determine if there will be any conflict between this law and the school’s religious teachings.