Key Points on Supreme Court’s Espinoza Ruling on Public Benefits for Catholic Education

The following summarizes the June 30th Supreme Court ruling in Espinoza v. Montana Department of Revenue. Educators should consult their attorneys for professional legal advice.

Bottom Line: The Espinoza ruling effectively nullifies “Blaine amendments” in state constitutions, ensuring that Catholic schools and colleges have equal access to public benefits. Caution is strongly urged to avoid entanglements that jeopardize the mission of Catholic education.

Ruling: “The application of [Montana’s] no-aid provision discriminated against religious schools and the families whose children attend or hope to attend them in violation of the… Constitution.”

Focus on religious character: The Court finds that Montana excluded schools from its tuition program “solely because of their religious character,” triggering strict scrutiny per Trinity Lutheran Church of Columbia, Inc. v. Comer (2017). Under strict scrutiny, “must advance ‘interests of the highest order’ and… be narrowly tailored in pursuit of those interests” (McDaniel v. Paty, 1978).

Not focused on religious use: The Court rejects Montana’s claim that its no-aid provision targets only the use of public benefits for religious education, per Locke v. Davey (2004). The Court questions the value of such a distinction, but it declines to resolve the matter. “None of this is meant to suggest that we agree with [Montana] that some lesser degree of scrutiny applies to discrimination against religious uses of government aid.” Locke prohibited funds only for clergy training, a narrow exclusion based on “historic and substantial” concerns.

Nullifies Blaine amendments: The Court rejects Montana’s appeal to its state constitution and no-aid provisions adopted by more than 30 states. It notes that many no-aid provisions were “born of bigotry” in the 1870s Blaine Amendment and were targeted against Catholics.

Recommendation:

Prioritize Catholic identity: As desperate as the need for funding may be, avoid entanglements that may jeopardize the mission of Catholic education. Accept no compromise with nondiscrimination provisions that violate Catholic teaching.

Prioritize Catholic formation: School choice and scholarship programs can be very helpful to schools and families in need, but admissions procedures should accept only students whose parents embrace the mission of Catholic education. Preserve strong Catholic formation.

Catholic Identity Standards Project: The Newman Society is working on policy standards to help Catholic schools and colleges protect and strengthen Catholic identity. This work depends on the assistance of a large number of expert reviewers. If you would like to assist, please contact Michael Kenney, director of Catholic Identity Standards Project, at mkenney@cardinalnewmansociety.org.

Key Points on Supreme Court’s Our Lady of Guadalupe Ruling on Ministerial Exception

The Cardinal Newman Society is working on detailed guidance to help Catholic schools and colleges strengthen their ability to claim the “ministerial exception” in light of the July 8th Supreme Court ruling in Our Lady of Guadalupe School v. Agnes Morrissey-Berru (combined with St. James School v. Darryl Biel, as Personal Representative of the Estate of Kristen Biel). The following summarizes our current understanding of the ruling. Educators should consult their attorneys for professional legal advice.

Bottom Line: The ministerial exception can help protect Catholic education, but only if employee standards clearly require fidelity and religious duties for all positions and across the full curriculum. Institutions that compromise Catholic identity and have weak policies risk being left unprotected.

Ruling: “The First Amendment’s Religion Clauses foreclose the adjudication of… employment-discrimination claims” by two Catholic elementary school teachers who taught several courses including a religion course. They are within the “ministerial exception” as affirmed by the Court in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012).

Focus on duties: The Court rejects the Ninth Circuit’s arguments that an employee must be a religious “leader” and that “an employee’s duties alone are not dispositive under Hosanna-Tabor’s framework.” Justice Alito writes, “What matters, at bottom, is what an employee does. …educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school.”

No strict test: The Court rejects any “rigid formula” for applying the ministerial exception. Hosanna-Tabor considered four factors: the employee’s title, training, public standing, and job duties. But Guadalupe finds that “a variety of factors may be important” and clarifies that the Hosanna-Tabor ruling “did not mean that [the four factors in that case] must be met—or even that they are necessarily important—in all other cases.” The Court finds that three of the Hosanna-Tabor factors are not decisive in this case: neither teacher is titled “minister” (although the Court does note that the Archdiocese of Los Angeles describes all teachers as “catechists”), minimal prior religious training (although the Court notes employer-sponsored training), and one teacher’s failure to “hold herself out to the public as a religious leader or minister.”

Other factors: The Court notes the following factors (in no particular order): employment agreement and handbook requiring religious instruction and witness, taught many subjects including religion, taught religion daily using Catholic catechism textbook, tested students on religion, prepared and accompanied students for Mass and Confession, selected students for Mass readings and bringing gifts at Mass, took students on annual trip to cathedral, prayed with students daily, taught prayers, took religious education courses at school’s request, attended Catholic education conference, attended faculty prayer services, directed Passion play, taught in fidelity to Catholic teachings, infused classes with Catholic values and teachings, included religious displays in the classroom, and performance reviews according to religious standards.

Deference: The Court regards the religious employer or church’s determination of what constitutes religious duties to be “important” to its application of the ministerial exception.

In a country with the religious diversity of the United States, judges cannot be expected to have a complete understanding and appreciation of the role played by every person who performs a particular role in every religious tradition. A religious institution’s explanation of the role of such employees in the life of the religion in question is important.

In a nod to Catholic Church authority, the Court notes:

In the Catholic tradition, religious education is “‘intimately bound up with the whole of the Church’s life.’” Catechism of the Catholic Church 8 (2d ed. 2016). Under canon law, local bishops must satisfy themselves that “those who are designated teachers of religious instruction in schools . . . are outstanding in correct doctrine, the witness of a Christian life, and teaching skill.” Code of Canon Law, Canon 804, §2 (Eng. transl. 1998).

Scope of exception: The Court’s ruling rests on whether employee is a “teacher of religion.” Schools will need to demonstrate that all teachers (not only those who teach designated religion courses) and non-teachers (including school administrators, coaches, guidance counselors, and support staff) are truly teaching religion or have other essential religious functions. The Newman Society is developing additional guidance on this point.

Limitations: Employees not covered by the ministerial exception are still subject to employment discrimination claims, including those under the Bostock ruling regarding homosexuality and transgender status. The ministerial exception does not protect against discrimination claims by students, parents and others that are unrelated to employment (including Title IX claims).

Recommendations:

Strengthen Catholic identity: Firmly ground all employment policies in Catholic teaching, require all teachers to include Catholic instruction across the curriculum, and require religious duties of non-teaching employees. Require all employees to evangelize in fidelity to Catholic teaching and the mission of Catholic education. Consider all factors cited above to improve ministerial exception claims. Strong Catholic identity overall (faith integrated across curriculum, sacraments, prayer, student activities, etc.) will help increase employees’ ministerial activity.

Nondiscrimination policies: Avoid listing any protected categories, but especially do not include sexual orientation or gender identity. Declare your legal right as a religious entity to make decisions based on religion; do not promise nondiscrimination on “religion.” Develop policies and arbitration for resolving discrimination claims and other disputes with ministerial employees.

Employee benefits: Check employee benefits to ensure fidelity to Catholic moral teaching.

Catholic Identity Standards Project: The Newman Society is working on policy standards to help Catholic schools and colleges protect and strengthen Catholic identity. This work depends on the assistance of a large number of expert reviewers. If you would like to assist, please contact Michael Kenney, director of Catholic Identity Standards Project, at mkenney@cardinalnewmansociety.org.

 

us supreme court

Key Points on Supreme Court’s Bostock Ruling on Sex Discrimination

The Cardinal Newman Society hosted a webinar on June 17, 2020, for Catholic education leaders, in which Gregory Baylor, senior counsel and director of the Center for Religious Schools at Alliance Defending Freedom, offered a brief assessment of the June 15th Supreme Court ruling in Bostock v. Clayton County, Georgia. The following summarizes our understanding of what we learned from that webinar and other experts. Educators should consult their attorneys for professional legal advice.

Ruling: “An employer who fires an individual merely for being gay or transgender violates Title VII,” the federal law banning employment discrimination in categories including sex.

Definition of “sex”: The Court did not explicitly reject the understanding of “sex” as male and female, as some activists hoped. It is therefore incorrect to say that the Court “redefined sex” to include multiple “genders.” The Court found that identification as homosexual or transgender is a matter related to biological sex, and so they fall within the scope of sex discrimination. The Court did not address “other genders” or uncertain gender.

Scope of sex discrimination: Previously the Court has interpreted Title VII to forbid only adverse discrimination that is unwarranted and a double standard for men or women. But this ruling finds that homosexuality and transgender identification are protected categories, even though employment standards be applied equally to men and women.

Status vs. conduct: The Court ruling fails to distinguish homosexual or transgender inclination or identification from expression and conduct—a distinction that is central to Catholic teaching.

Statutory: The ruling interprets Title VII but identifies no new constitutional rights.

Religious exemption: Title VII includes an exemption for a “religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion…” This should allow a Catholics-only hiring policy, but not every baptized Catholic is a suitable employee. Unless the exemption is strengthened, it is uncertain whether courts will allow moral and doctrinal criteria for employment, which are essential to faithful Catholic education.

Education law: Title VII has tended to guide interpretations of Title IX (on sex discrimination in education), but the Title IX religious exemption is much stronger. Although not required, several institutions have obtained prior determinations from the Education Department that they are exempt; those that have not should weigh the merits of doing so, while there is an administration that is favorable to the granting of such exemptions. COVID relief loans under the Paycheck Protection Program put schools and colleges under Title IX until the loan is forgiven or returned, but Baylor sees little reason for changing direction on PPP loans. Sex discrimination is not a statutory barrier to Title IV funding.

Legal defense: A Catholic school or college that is charged with illegal sex discrimination may have recourse to the following defenses.

Religious exemption: As noted, religious exemptions in Title VII and Title IX.

Ministerial exception: This will not cover all employees. A Supreme Court ruling on its scope is expected this month. The exception is not statutory; it is based on the First Amendment.

Religious Freedom Restoration Act: Must prove that a government action is a “substantial burden” on religion; seems to apply here, but courts may disagree. Government must then show that it could not achieve its purpose in a way that is less burdensome to religion.

First Amendment: Arguments for free exercise of religion, freedom of association, freedom from compelled speech.

Recommendations:

Strengthen Catholic identity: Firmly ground all policies in Catholic teaching and explain in writing why policies are necessary according to religious beliefs. Baylor cautions against the opposite strategy: laying low and downplaying Catholic identity, which weakens a religious freedom defense. Explicitly state expectations for employees and what will happen if violated. Always justify policies according to Catholic beliefs.

An institution’s religious identity, under the law, is whatever the institution declares to be its own deeply held beliefs. A “Catholic” label is neither enough nor necessary. Put into writing the school or college’s Catholic beliefs, especially those that are likely to be challenged, and clearly identify authoritative sources of the school’s beliefs (such as Catechism of the Catholic Church).

Nondiscrimination policies: Avoid listing any protected categories, but especially do not include sexual orientation or gender identity. Do not promise nondiscrimination on “religion”; declare your legal status as a religious entity with freedom to make decisions based on religion.

Employee benefits: Check employee benefits to ensure no support for “gender reassignment,” same-sex marriage, etc. Any compromise can weaken a religious freedom defense.

Language: Clarify language in all policies, especially employment documents, that is vague, confusing, or in conflict with Catholic teaching regarding sexuality and gender.

Lobby Congress: Consult your legal counsel; generally nonprofits can lobby on matters that directly affect them. Urge Congress to protect religious education and, if possible, to amend law to reverse Bostock ruling. Oppose Equality Act, which is highly dangerous: would enshrine Bostock in law, embrace gender ideology, remove religious exemption, and end RFRA application to sex discrimination. Oppose Fairness for All Act, which would enshrine Bostock in law (an immoral law) in exchange for religious exemptions that are unlikely to survive.

Catholic Identity Standards Project: Please know that the Newman Society is working on policy standards to help Catholic schools and colleges stay firmly grounded in Catholic identity while establishing the best protection against legal threats. This work depends on the assistance of a large number of expert reviewers. If you would like to assist by commenting on draft documents, please contact Michael Kenney, director of the Catholic Identity Standards Project, at mkenney@cardinalnewmansociety.org.

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…

U.S. Policy Priorities for Catholic Education

Catholic education provides many important benefits to American society. At a cost substantially less than public schools, Catholic elementary and secondary schools provide an outstanding education to nearly 2 million students, who tend to score high on national tests and succeed in college and career. More than 200 Catholic colleges and universities educate nearly 1 million students, preparing them to serve society in a wide variety of fields.

While business leaders lament the decline of communication, thinking, and problem-solving skills among job candidates, Catholic educators have maintained a strong emphasis on the core liberal arts and intellectual development.

Most importantly, graduates of Catholic schools are integrally formed in mind, body, and soul to give generous service to their fellow citizens. They exhibit strong character and virtue in an increasing secular and self-centered culture.

Nevertheless, Catholic educators face serious threats to their religious freedom emanating from their state and local governments and Washington, D.C. These have escalated significantly under the Obama administration, but some began much earlier. We now look with great hope to the incoming Trump administration and Congress to correct the many injustices and take lasting actions that will uphold Catholic educators’ First Amendment right to teach and witness to the Catholic faith by word and deed.

For that, Catholic educators and families would be most grateful and relieved, eager to focus on the essential task of raising young Americans to fulfill God’s calling and “make America great again.”

The following policy recommendations were developed by The Cardinal Newman Society, which promotes and defends faithful Catholic education, following substantial consultation with Catholic and other Christian education leaders, policy experts, and legal advisers. The proposals especially represent the concerns and needs of the Catholic schools recognized by the Newman Society’s Catholic Education Honor Roll and the Catholic colleges and universities recommended in our Newman Guide. These are institutions for which the freedom to teach and witness to the Catholic faith is essential to their mission and survival.

Elementary and Secondary Education Act

Overview
President Trump has proposed a $20 billion federal voucher program, while encouraging states to spend another $110 billion on vouchers. The program would aid students from low-income families and would likely redirect funds under Title I of the Elementary and Secondary Education Act, which are currently block-granted to states.

The school choice proposal could aid thousands of families attending or wishing to attend Catholic schools, but it also poses significant challenges for religious education. Schools must be allowed to freely maintain religious standards for education, and vouchers must not be permitted to open the door to substantial federal and state government regulation that would stifle diversity and religious values in education.

Already Catholic schools have struggled to preserve their unique identity and superior academic quality under the national Common Core movement. Although Catholic schools are not required to adopt state standards, many have yielded to the pressure to conform to standardized education and testing. Ending federal interference in school standards is an important step toward restoring diversity and innovation in education.

Action: Expand school choice without regulation
School choice presents a wonderful opportunity to help families afford a Catholic education—but only if it preserves the religious identity and quality of Catholic education, without opening the door to government regulation and coercion.

  • Legislative action: Reform Title I and IDEA (disabilities funding) to allow the funds to follow low-income students to the schools of their choice, but ensure that the aid does not impose new regulations and restrictions on religious education. Allow funds to go only to states that protect religious education and allow true school choice, including religious schools and homeschooling.

Action: End federal push for career- and college-focused standards
The federal incentives that the Obama administration used to coerce states to embrace the Common Core standards—the Race to the Top funds and waivers from No Child Left Behind—are already gone. But while the Every Student Succeeds Act (ESSA) prohibits ED from “federal mandates, direction, or control” over state standards for education, ED has plenty of opportunities to influence standards and testing. It is essential that the federal government gets out of the way, lets states work their way out of the Common Core stranglehold on innovation, and focus on state-level improvements that don’t nationalize education.

  • Executive action: Ensure that ED refrains from interference in education standards and testing, and instead promotes state-level and local innovation. Dismantle any remaining programs that promote a utilitarian view of education with emphasis on career and college instead of healthy student formation and learning for its own sake.

Higher Education Act

Overview
There has been a longstanding injustice in ED’s regulation of colleges based on the handling of student aid under Title IV of the Higher Education Act. In 1984, the U.S. Supreme Court ruled in Grove City College v. Bell (465 U.S. 555) that a college that does not receive direct federal aid—but its students do receive aid for college education under Title IV—can be regulated under Title IX of the Education Amendments of 1972. Title IX applies only to colleges that receive federal financial assistance.

The clear intent of Title IV is to support the needs of students, not particular institutions.  It is the students who are awarded the aid and who choose which institutions will receive the funds for tuition and expenses. Title IV is a form of “school choice” for needy college students; the aid can make it possible for students to choose among a wide variety of colleges that would otherwise be inaccessible.

The Grove City decision opened to door to substantial federal regulation of higher education. For religious colleges, this excessive government regulation invites conflicts with religious freedom. (See discussion of Title IX below.)

Another way Title IV funding opens the door to federal interference in higher education is by ED’s regulation of accrediting agencies, creating potential conflicts with the religious freedom of religious colleges. Under the Higher Education Act, accrediting associations determine which colleges a student may attend to receive Title IV aid. This politicizes accreditors, distorts their purpose as independent promoters of excellence in higher education, and invites ED regulation by its recognition of accreditor-gatekeepers. With regard to Title IV aid, the only remedy for a college that is unfairly treated by an accreditor is to request revocation of the accreditor’s standing with ED.

In addition to requirements under Title IX that violate religious freedom, other federal regulation and coercion poses concerns for religious colleges. The regulation of teacher preparation programs tends to diminish diversity and ignore the particular needs of schools and colleges, including religious institutions. Federal policies that disadvantage students who choose to focus their studies in the liberal arts or “humanities” are a misguided form of social engineering that disregards the great benefits of a religious, liberal-arts education.

Action: De-link student aid from Title IX
The U.S. Supreme Court has determined that the receipt of Title IV funds triggers a college’s obligation to comply with Title IX. Given attempts to redefine “sex” in Title IX to include “gender identity,” the link between student aid and Title IX is a serious threat to religious higher education.

  • Legislative action: Amend the Higher Education Act to ensure that Title IV funds are not considered federal support for educational institutions with regard to enforcement of Title IX.

Action: De-link accreditation from Title IV funding
Accrediting associations are the gatekeepers for federal aid under Title IV of the Higher Education Act. Currently the law (20 U.S. Code §1009 (b)) includes minimal protection for religious colleges by requiring that the accreditor “consistently applies and enforces standards that respect the stated mission of the institution of higher education, including religious missions.” The only remedy for religious colleges that may be unjustly discriminated against by an accreditor is to request revocation of the accreditor’s standing with the U.S. Department of Education.

  • Legislative action: Amend the Higher Education Act to ensure that accrediting bodies are no longer gatekeepers to Title IV funds.
  • Legislative action: Amend the Higher Education Act to allow a private right of action against an accreditor by a college that is unjustly discriminated against in the course of accreditation.

Action: Deregulate teacher preparation
Religious educators strive to comply with state and accreditor expectations for teacher preparation, but federal government regulation of teacher preparation programs interferes with the independence of such programs and state decision making. It also raises concerns for religious freedom in programs that reside within religious colleges. In late 2016, ED issued regulations to increase federal oversight of teacher preparation.

  • Executive action: Repeal Obama-era regulations expanding federal interference in teacher preparation (see 34 CFR Parts 612, 686).

Action: Refrain from discriminating against liberal arts majors
Federal policy proposals to disadvantage college students who focus their studies in the liberal arts or “humanities” are a misguided form of social engineering that disregards the great benefits of a religious, liberal-arts education. Complaints that liberal arts graduates have low earning potential have been greatly exaggerated and are often inaccurate. Many business executives prefer graduates with strong communications and reasoning skills. Regardless, liberal arts graduates contribute greatly to society and culture beyond simple measures of career success.

Threatening to control Title IV expenditures by discriminating against liberal arts majors or limiting students’ choices of college major and career is neither wise nor beneficial. It also disproportionately impacts students at religious colleges, who often concentrate their studies in the liberal arts.

  • Executive action: Refrain from interference in students’ choice of college studies and limitations of Title IV student aid for liberal arts majors.

Title IX of Education Amendments of 1972

Overview
Title IX of the Education Amendments of 1972 (20 U.S.C. §§ 1681–1688) forbids sex discrimination at schools and colleges that accept federal funds, but the law has recently been reinterpreted by the U.S. Department of Education (ED) in ways that harm women and violate religious freedom.

The clear intent of Congress, when it enacted Title IX in 1972, was to prohibit discrimination against the two “sexes”—male and female. This is indicated in the law. Enforcement of Title IX has emphasized parity for males and females, as in school and college athletics programs.

However, the EEOC and ED have recently forced an ideological reinterpretation of “sex” in Title IX to include “gender identity”—even a person’s choice of gender that is different from their biological sex at birth. Far from advancing the original intent of the law, this “gender ideology” threatens women’s athletics and other activities by permitting biological males to join and potentially dominate those activities. It also threatens women’s privacy and safety by permitting male access to women’s bathrooms, showers, locker rooms, and residences.

ED’s reinterpretation of Title IX to include gender identity unfairly prejudices Catholic educators who teach and witness to the Catholic faith.  Catholics believe that man is created male or female, a fact of natural law and the will of God.  Human sexuality is properly ordered toward marriage between a man and a woman.  A faithfully Catholic school or college must conform to an individual’s biological sex and expects students and employees to practice chastity outside of marriage.  Although Title IX provides an exemption for religious education, ED’s reinterpretation of “sex discrimination” unfairly indicates that religious institutions discriminate against women, and this can have a “trickle down” impact on state policy, accreditation, private funding, etc.

Moreover, Title IX’s religious exemption is not certain for many religious schools and colleges. ED has asserted its authority to pre-certify or deny eligibility for the exemption, a practice that is not indicated by the law. The law’s language describing the exemption could be unfairly interpreted to exclude independent and nondenominational religious institutions that are not legally controlled by an established church.

And still more, those institutions that receive ED’s preapproval for religious exemption—an exemption that is clearly indicated in the law—are being persecuted by advocacy groups, states, and ED itself.

Action: Clarify Title IX religious exemption
20 U.S. Code § 1681 (a) (3) provides a religious exemption to Title IX: “…this section 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…”

It is important to clarify the words “controlled by a religious organization” to protect institutions that are “controlled” by religious beliefs but have no legal ties to a church.  For instance, most Catholic colleges and many Catholic schools—even the most faithful to Catholic teachings—have no legal ties to the Catholic Church.  There are also many nondenominational Christian schools and colleges that are strongly religious but not affiliated with any formal church.

  • Executive action: Issue an executive order to clarify language in 20 U.S. Code § 1681 (a) (3) to ensure that no religious school or college can be excluded from the Title IX religious exemption.
  • Legislative action: Amend the law to replace or clarify language in 20 U.S. Code § 1681 (a) (3) to ensure that no religious school or college can be excluded from the Title IX religious exemption.

Action: Uphold Title IX religious exemption
The religious exemption to Title IX (20 U.S. Code § 1681 (a) (3)) suggests automatic exemption for a qualifying school or college, if and when there may be a conflict with Title IX: “…this section 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…”

Although not indicated by the law, ED has inappropriately asserted authority to pre-certify or deny a religious institution’s exemption to Title IX.  A process has been established whereby an institution applies for an advance ruling from ED, which by its sole discretion may refuse to “approve” an exemption if, in its opinion, a school or college does not meet the standard of being “controlled by a religious organization.”

This puts ED in the position of potentially limiting an exemption that is clearly indicated by law; courts and the public may be prejudiced if ED rejects or even delays its ruling.  It also suggests that exemption from Title IX depends on an institution’s assertion of the exemption prior to a dispute; in fact, the law demands exemption for religious institutions in every case of a religious conflict with Title IX, whether or not the exemption is claimed prior to the conflict or even at the time of the conflict.

Moreover, ED has recently been publishing on its website the names of institutions that it “approves” for Title IX exemptions.  This has been done at the urging of states and advocacy groups that wish to shame and persecute religious institutions for obtaining these legally valid exemptions.  In 2016, California legislators attempted to withhold state Cal Grants from religious colleges that appear on ED’s list of “unapproved” institutions. This is a form of persecution; religious organizations should not be punished or denigrated for their beliefs and for protecting their religious freedom against an ED reinterpretation of Title IX that is inconsistent with the law’s original purpose.

  • Executive action: End the U.S. Department of Education’s policy of approving or denying advance rulings for religious educational institutions that claim the exemption to Title IX in 20 U.S. Code § 1681 (a) (3).
  • Executive action: End the U.S. Department of Education’s policy of publishing a list of religious educational institutions that claim the religious exemption to Title IX in 20 U.S. Code § 1681 (a) (3).
  • Executive action: Issue an executive order to forbid retaliation by any federal agency against religious educational institutions that claim the religious exemption to Title IX in 20 U.S. Code § 1681 (a) (3) (cf. non-retaliation provision in S. 815, the proposed Employment Non-Discrimination Act of 2013: “It shall be an unlawful employment practice for a covered entity to discriminate against an individual because such individual—(1) opposed any practice made an unlawful employment practice by this Act; or (2) made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this Act”).
  • Legislative action: Amend the law to forbid retaliation by any state or other entity or individual against religious educational institutions that claim the religious exemption to Title IX in 20 U.S. Code § 1681 (a) (3) (cf. non-retaliation provision in S. 815, proposed Employment Non-Discrimination Act of 2013: “It shall be an unlawful employment practice for a covered entity to discriminate against an individual because such individual—(1) opposed any practice made an unlawful employment practice by this Act; or (2) made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this Act”).

Action: Restore original meaning of Title IX
As noted above, ED and EEOC have reinterpreted “sex discrimination” to force acceptance of new concepts of gender and sexual orientation.  This ideological reinterpretation of the law threatens the religious freedom of religious schools and colleges.

  • Executive action: Rescind any “Dear Colleague” letters, administrative rules, executive orders, or regulations (see 34 CFR Part 106) which re-interpret the law to define “sex” and “gender” as referring to anything other than the biologically-defined sex (male or female) of an individual at birth, or that require admittance of the opposite sex to gender-exclusive bathrooms, locker rooms, shower facilities, residences, and other facilities.
  • Executive action: Issue an executive order defining “sex” and “gender” for the purposes of Title IX to refer only to the biologically-defined sex (male or female) of an individual at birth.
  • Legislative action: Amend the law to define “sex” and “gender” for the purposes of Title IX to refer only to the biologically-defined sex (male or female) of an individual at birth.

Action: Deregulate higher education by eliminating Title IV trigger
Federal student loans and grants under Title IV of the Higher Education Act are intended to expand individuals’ access to higher education according to their need, but not to directly support educational institutions. They are “school choice” programs for postsecondary education.

Nevertheless, ED and the courts have determined that Title IV student aid is a trigger for federal regulation of colleges under Title IX and other ED regulations, the same as direct federal aid to colleges.  Title IV is the “hook” that allows expansive federal regulation in higher education, which opens the door to conflicts over religious freedom at religious colleges.  (See more explanation under “Higher Education Act” above.)

  • Legislative action: Amend the Higher Education Act to ensure that Title IV funds are not considered federal support for educational institutions with regard to enforcement of Title IX.

Title VII of the Civil Rights Act of 1964

Overview
Title VII forbids discrimination in employment on the basis of sex, race, color, national origin, and religion.  The clear intent of Congress, when it enacted the Civil Rights Act, was to prohibit discrimination against the two “sexes”—male and female.

However, the EEOC and federal agencies have recently forced an ideological reinterpretation of “sex” in Title VII to include “gender identity”—even a person’s choice of gender that is different from their biological sex at birth. Far from advancing the original intent of the law, this “gender ideology” threatens women’s activities and employment opportunities (by permitting access to males) and women’s privacy and safety in the workplace (by permitting male access to women’s bathrooms, showers, locker rooms, etc.).

“Sex discrimination” is also being redefined for ideological purposes to forbid discrimination on the basis of “sexual orientation.”  This was not the original intent of the law, but because attempts to legislate protection for “sexual orientation” have failed, the EEOC has simply reinterpreted existing law.

Finally, “sex discrimination” is being used to mandate employee health benefits that cover contraception and sterilization, regardless of medical benefit or necessity.  While Title VII does not mandate abortion coverage in health plans, it does forbid employers from considering an employee’s participation in abortion when making employment decisions—even a religious employer with deeply held convictions against abortion and moral standards for employees.

Under this reinterpretation of Title VII, the religious freedom of Catholic educators to teach and witness to the Catholic faith is being violated.  Catholics believe that man is created male or female, a fact of natural law and also the will of God.  Human sexuality is properly ordered toward marriage between a man and a woman.  A faithfully Catholic school or college must conform to an individual’s biological sex and expects students and employees to practice chastity outside of marriage.  Abortion, sterilization, and contraception are serious offenses.

Title VII provides an exemption for religious employers with regard to religious discrimination, but it is unclear whether this exemption protects religiously-motivated personnel decisions that might be characterized as “sex” discrimination.

Action: Restore original meaning of Title VII
As noted above, federal agencies have reinterpreted “sex discrimination” to force acceptance of new concepts of gender and sexual orientation and to mandate support for contraception, sterilization, and abortion.  This ideological reinterpretation of the law violates the religious freedom of religious schools and colleges.

  • Executive action: Rescind any “dear colleague” letters, administrative rules, executive orders, or regulations (see 34 CFR Part 106) which re-interpret the law to define “sex” and “gender” as referring to anything other than the biologically-defined sex (male or female) of an individual at birth; require admittance of the opposite sex to gender-exclusive bathrooms, locker rooms, shower facilities, residences, and other facilities; or refer in any way to expanded benefits or accommodations for contraception, sterilization, or abortion.
  • Executive action: Issue an executive order defining “sex” and “gender” for the purposes of Title VII to refer only to the biologically-defined sex (male or female) of an individual at birth and never to contraception, sterilization, or abortion.
  • Legislative action: Amend the law to define “sex” and “gender” for the purposes of Title VII to refer only to the biologically-defined sex (male or female) of an individual at birth and never to contraception, sterilization, or abortion.

Action: Expand Title VII religious exemption
Given the attempts by federal agencies, courts, and legislators to redefine “sex discrimination” for ideological purposes, the threat posed by Title VII to religious organizations is significant. Unlike Title IX of the Higher Education Act, there is uncertain protection for religious employers under Title VII with regard to sex discrimination.

  • Legislative action: Amend Title VII to explicitly exempt religious employers with regard to sex discrimination if the application of the law is inconsistent with the religious tenets of the employer.

Patient Protection and Affordable Care Act (Obamacare)

Overview
In regulations implementing the Affordable Care Act, HHS has mandated coverage for sterilization and contraceptives, including some that can cause abortion, in health insurance plans. The “HHS mandate” does not exempt most religious employers.

In 2016 in Zubik v. Burwell, the U.S. Supreme Court unanimously overturned lower court rulings upholding the “HHS mandate” against the Little Sisters of the Poor and other challengers. The Court instructed the lower courts to seek “an approach going forward that accommodates the petitioner’s religious beliefs.” However, the matter has yet to be resolved by the courts.

HHS has also issued regulations under the Affordable Care Act that forbid covered health-related entities to discriminate on the basis of race, color, national origin, sex, age, or disability; included in the Department’s definition of sex (consistent with the EEOC) is “gender identity.” The regulations create a “transgender mandate,” under which covered entities—including religious colleges that receive HHS funds for medical education programs—must accept a person’s choice of gender that is different from their biological sex at birth. Legal experts also believe that the regulations prohibit most private health insurers—including those providing health benefits to employees of religious organizations—from categorically excluding coverage related to “gender transition” and from denying claims for “transgender” services that are comparable to other covered services. (For instance, if a hysterectomy is covered for serious medical reasons, it must be permitted for “transgender” purposes.)

The HHS also defines sex to include “termination of pregnancy.” Legal experts believe that the new HHS regulations may prohibit health insurers—including those providing health benefits to employees of religious organizations—from denying coverage for elective abortion.

In addition, HHS has refused to enforce federal law against states that violate religious freedom by mandating abortion benefits in state-regulated health plans, even for religious employers.

Action: End “HHS mandate”
In regulations implementing the Affordable Care Act, HHS has mandated coverage for sterilization and contraceptives, including some that can cause abortion, in health insurance plans. The “HHS mandate” does not exempt most religious employers.

  • Executive action: Repeal regulations (26 CFR Part 54, 29 CFR Parts 2510 and 2590, 45 CFR Parts 147 and 156) mandating health insurance coverage for sterilization and contraception.
  • Legislative action: Amend the Affordable Care Act to ensure that HHS cannot mandate health insurance coverage for sterilization or contraception.

Action: Exempt all religious organizations from “HHS mandate”
The “HHS mandate” for coverage for sterilization and contraceptives, including some that can cause abortion, in health insurance plans does not exempt most religious employers. HHS has offered various forms of “accommodation” to many but not all religious employers (26 CFR 54.9815-2713A, 29 CFR 2590.715-2713A, 45 CFR 147.131); those “accommodations” still force many employers to violate their deeply held religious beliefs.

  • Executive action: Amend regulations (26 CFR Part 54, 29 CFR Parts 2510 and 2590, 45 CFR Parts 147 and 156) to exempt all religious organizations from mandatory health insurance coverage for sterilization and contraception if it conflicts with their religious beliefs.
  • Legislative action: Amend the Affordable Care Act to ensure that HHS cannot require any individual or entity to purchase health insurance coverage that conflicts with the purchaser’s moral or religious beliefs.

Action: End abortion and transgender mandate
In regulations implementing Section 1557 of the Affordable Care Act and prohibiting sex discrimination, HHS has defined “sex” as including “gender identity” and “termination of pregnancy.” Not only does this directly impact covered religious entities, including religious colleges that receive HHS funds for medical education programs, but it also impacts most health insurers, including those that serve religious schools and colleges.

  • Executive action: Issue an executive order defining “sex” and “gender” for the purposes of the Affordable Care Act to refer only to the biologically-defined sex (male or female) of an individual at birth and never to contraception, sterilization, or abortion.
  • Executive action: Amend the regulations implementing Section 1557 of the Affordable Care Act to define “sex” and “gender” to refer only to the biologically-defined sex (male or female) of an individual at birth and never to contraception, sterilization, or abortion.
  • Legislative action: Amend the Affordable Care Act to define “sex” and “gender” for the purposes of Section 1557 to refer only to the biologically-defined sex (male or female) of an individual at birth and never to contraception, sterilization, or abortion.

Action: Exempt religious organizations from abortion and transgender mandate
In HHS regulations implementing Section 1557 of the Affordable Care Act and prohibiting sex discrimination—by which “sex” is defined to include “gender identity” and “termination of pregnancy”—there is no exemption for covered religious entities or for individuals and employers that may have religious objections to the mandated coverage.

  • Executive action: Amend the regulations implementing Section 1557 of the Affordable Care Act to exempt all religious organizations from enforcement of any provision that conflicts with their religious beliefs.
  • Legislative action: Amend Section 1557 of the Affordable Care Act to exempt all religious organizations from enforcement of any provision that conflicts with their religious beliefs.

Action: Enforce Weldon Amendment against state mandates
In 2014, California interpreted the state Knox-Keene Act to mandate abortion coverage in state-regulated health insurance plans, with no exemption for religious employers.

Although the Federal Refusal Clause (the “Weldon amendment”) in the federal appropriations act for the Department of Health and Human Services (Consolidated Appropriations Act of 2012, Pub. L. No. 112-74, div. F, tit. V, § 507(d)(1), 125 Stat. 786, 1111 (2011)) prohibits federal, state, and local governments from “discrimination” against a health-care entity—including a health insurance plan—that “does not provide, pay for, provide coverage of, or refer for abortions,” HHS has refused to enforce the Weldon amendment against California. This invites other states to also ignore the law.

  • Executive action: Require HHS to enforce the Weldon amendment by demanding that California rescind its mandate for abortion coverage in state-regulated health insurance plans.

Internal Revenue Service

Overview
The federal tax code provides substantial benefits that help families afford a Catholic education. Tax exemption for religious schools and colleges helps lower costs, and the loss of tax exemption because of political or ideological biases would be devastating. Tax advantages that help Catholic families pay for Catholic education are valuable opportunities to promote “school choice” without opening the door wide to federal regulation.

Action: Protect tax exemption for religious education
In 2015, during oral argument before the Supreme Court in the Obergefell v. Hodges case, the U.S. Solicitor General acknowledged that the tax-exempt status of religious organizations could be threatened if they fail to recognize same-sex marriages.

  • Executive action: Ensure that the Internal Revenue Service (IRS) does not threaten the tax-exempt status of religious organizations, regardless of their beliefs about marriage.
  • Executive action: Issue an executive order stating that with regard to tax status, licensing, government grants, and contracts, no entity of the federal government may penalize someone for acting on their conviction that marriage is between a man and a woman.
  • Legislative action: Amend the Internal Revenue Code to protect the tax-exempt status of religious organizations, regardless of their beliefs about marriage.

Action: Increase tax benefits to support education expenses
Coverdell Education Savings Accounts allow money to grow tax-deferred, to be used tax-free for most elementary, secondary, and postsecondary education expenses. But since 2002, Congress has capped the amount that can be contributed per child to $2,000 per year. Section 529 plans allow prepayment of college education expenses and tax-advantaged savings; withdrawals for college tuition expenses are tax-free. The American Opportunity Tax Credit allows a federal income tax credit of up to $2,500 of college expenses per year; up to 40 percent of the credit is refundable.

  • Legislative action: Increase or lift the $2,000 annual cap on contributions to Coverdell Education Savings Accounts to help families supporting students in schools and colleges, including religious institutions. Expand the program to cover homeschool expenses.
  • Legislative action: Expand Section 529 plans to allow savings for elementary and secondary education expenses, including homeschooling.
  • Legislative action: Increase the $2,500 American Opportunity Tax Credit to help families supporting students in college, including religious institutions. Expand the credit to also cover elementary and secondary education expenses, including homeschooling, thereby achieving President Trump’s promise of increasing school choice without inviting federal regulation of religious schools.

Equal Employment Opportunity Commission

Overview
The Equal Employment Opportunity Commission (EEOC) has issued opinions that endanger the religious freedom of religious employers. It has pressed the redefinition of sex discrimination to cover “gender identity,” family planning and abortion, and “sexual orientation.”

In 2009, the EEOC ruled that Belmont Abbey College in North Carolina—a faithful Catholic college—discriminated against women because it refused to cover contraception in its employee health plan, in accordance with the Catholic faith.

Action: Appoint defenders of religious freedom to EEOC
President Trump has an early opportunity to name a new chair of the EEOC (as of July 1, 2017), giving Republicans a 3-2 majority on the Commission, and he can immediately replace the departing legal counsel. The commissioner whose term is up next, Chai Feldblum in July 2018, is a former Georgetown University law professor whose advocacy for homosexual issues has been a grave threat to religious employers.

  • Executive action: Appoint EEOC commissioners and staff members who respect religious freedom and will not misinterpret sex discrimination laws and regulations according to “gender ideology” and LGBT advocacy.

National Labor Relations Board

Overview
Despite the U.S. Supreme Court’s 1979 ruling in NLRB v. Catholic Bishop of Chicago, which forbids the National Labor Relations Board (NLRB) to assert jurisdiction over employee relations in religious education, the NLRB has for decades asserted jurisdiction at the behest of labor unions.

In 2014, the Board abandoned its long-held policy of unconstitutionally determining the religious quality of colleges where unions sought to organize faculty members, but it took up a new unconstitutional test of the religious functions of particular employees. Since then, the NLRB has used its new test to declare jurisdiction over faculty members at Seattle University and Saint Xavier University, with the exception of those teaching theology or religious studies. This still violates NLRB v. Catholic Bishop of Chicago.

Action: Appoint defenders of religious freedom to NLRB
President Trump has an immediate opportunity to fill two vacant positions at the NLRB, giving Republicans a 3-2 majority on the Board. However, reports have indicated that Trump intends to delay his appointments until the spring or summer of 2017, which would leave a pro-union Democrat majority in place until the Senate confirms his appointments in late 2017.

Commissioner Philip Miscimarra has been a strong but lone defender of NLRB v. Catholic Bishop of Chicago; his term expires in December 2017. That will end the 3-2 majority on the Board until he is re-appointed or replaced.

The NLRB general counsel’s term expires in November 2017.

  • Executive action: Appoint NLRB commissioners and staff members who respect religious freedom and will uphold the Supreme Court’s 1979 ruling in NLRB v. Catholic Bishop of Chicago. Immediately fill the two vacancies without delay. Reappoint Philip Miscimarra to another term.

District of Columbia

Overview
Under the protection of President Obama’s veto, the District of Columbia has been able to trample on the rights of religious schools and colleges without action from Congress. The successful D.C. voucher program has also been allowed to lapse.

Action: Repeal D.C. Human Rights Amendment Act
The Human Rights Amendment Act, approved by the District of Columbia (D.C.) Council in 2014, repealed the “Armstrong Amendment”— a provision of the D.C. code that Congress enacted in 1989 to ensure that religious schools and colleges could not be forced to officially endorse, fund, or provide other benefits to advocates of homosexual identity and conduct. Catholic schools and colleges are now under the threat of District action if they uphold Catholic teaching on sexuality and marriage.

  • Legislative action: Repeal the D.C. Human Rights Amendment Act of 2014.

Action: Repeal D.C. Reproductive Health Non-Discrimination Act
In 2015, the U.S. House of Representatives voted to halt a District of Columbia law from going into effect, but the Senate failed to block it. The Reproductive Health Non-Discrimination Amendment Act expands the District’s definition of discrimination to include an employee’s “reproductive health” decisions, including family planning and abortion, without exemption for religious employers. This prevents Catholic schools and colleges from upholding standards of morality that are consistent with Catholic beliefs.

  • Legislative action: Repeal the D.C. Reproductive Health Non-Discrimination Act of 2015.

Action: Restore D.C. Opportunity Scholarship Program
Until President Obama stopped including it in his budget after 2011, the D.C. Opportunity Scholarship Program provided vouchers to children from low-income families in the District of Columbia. It covered tuition and expenses at private schools.

  • Legislative action: Restore the D.C. Opportunity Scholarship Program, supporting families’ choices of religious education and homeschooling.

First Amendment Protection

Overview
In its 2015 ruling in Obergefell v. Hodges, the U.S. Supreme Court ruled that same-sex couples have a Constitutional right to civil marriage. The implications for Catholics are not yet certain, but there is reason to be concerned that the ruling will be used to restrict religious freedom for those who support traditional marriage.

Action: Protect Americans who support traditional marriage
The First Amendment Defense Act ensures that the federal government “shall not take any discriminatory action against a person, wholly or partially on the basis that such person believes or acts in accordance with a religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage.” President-elect Trump has pledged that he would sign the bill if approved by Congress.

  • Legislative action: Pass the First Amendment Defense Act.
  • Executive action: Issue an executive order stating that with regard to tax status, accreditation, licensing, government grants, and contracts, no entity of the federal government may penalize someone for acting on their conviction that marriage is between a man and a woman.

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

A. 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.

  1. 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

  1. 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

  1. 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

B. 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

  1. 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

  1. 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.

C. 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

A. 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:

  1. 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.

  1. 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

  1. 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

  1. 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

  1. 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

  1. 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

  1. 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

  1. 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.

  1. 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

  1. 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

B. 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:

  1. 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.

  1. 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.

 

 

 

Protecting Catholic Colleges from External Threats to Their Religious Liberty

Federal and state laws are increasingly being used to coerce religious institutions into actions and commitments that violate deeply held religious convictions and moral principles.1  Some of these laws require employee and student health insurance that covers contraception, and mandate employee benefits for same sex couples.

Catholic colleges and universities and other Catholic organizations are not immune from emerging threats to their religious liberty and Catholic identity, but can take steps to minimize the danger.

This paper will briefly outline some of the major forms of these threats related to:

  • acceptance of federal student aid and grants, thus triggering federal Title IX’s sex discrimination prohibitions and federal research grant conditions;
  • Title VII’s prohibitions on employment discrimination;
  • the recently enacted Patient Protection and Affordable Care Act healthcare overhaul; and
  • various state-level laws and regulations.

After explaining the ways the application of these laws and regulations can threaten a Catholic college or university’s Catholic identity, the paper will propose steps each institution may take to mitigate the danger.

It must be noted, however, that any available exemptions for religious institutions will not apply if a college that was founded as a religious institution has become largely secular.  It is therefore vital that Catholic colleges and universities maintain their Catholic identity in all of their programs in order to best protect their religious character and mission.

Catholic colleges and universities have an advantage over other religious institutions in that the Catholic Church’s Canon Law and the Apostolic Constitution Ex corde Ecclesiae lay out the requirements for a college to be considered Catholic.  While Church law is beyond the purview of this paper, it should be noted that a college that does not faithfully adhere to and apply the Catholic Church’s own law might find it difficult if not impossible to convince a secular court that it is a Catholic institution deserving protection.

THREATS TO THE RELIGIOUS IDENTITY OF CATHOLIC HIGHER EDUCATION

Accepting Federal Funding

Federal funding generally takes the form of research grants or student financial aid.  The laws and regulations governing these funds prohibit discrimination based on sex, which may require insurance plans to cover prescription contraception.  But there is an exemption for religious organizations.

Research Grant Conditions

Religious discrimination is conspicuously absent from a list of prohibitions on discrimination that circumscribes the actions of grantees of direct grant programs from the Department of Education.  Religious institutions’ ability to receive such grants is conditioned on their compliance with the following:  Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, and the Age Discrimination Act.  Thus, grantees cannot discriminate on the basis of:  race, color, national origin, sex, handicap, or age.2  A direct grant is broadly conceived, and eligibility for each individual grant is governed by its particular authorizing statute and implementing regulations.3

Faith-based organizations are eligible to receive the direct grants, and the Code clearly establishes that the Department of Education awarding these grants will not discriminate against faith-based organizations.  These organizations are not forced to abandon their religious character, expression, or autonomy in order to receive these funds.4 To the extent that a religious educational institution seeks to provide a program or service for which a direct grant is available, the Department extends this opportunity to receive aid without compromising the school’s distinctively religious mission.  But religious educational institutions must carefully examine the procurement criteria for any particular research grant in order to determine whether accepting the federal funds will adversely affect their particular religious mission.

Federal Title IX’s Prohibition on Sex Discrimination in Education

Although Title IX prohibits sex discrimination5 in schools that receive federal financial assistance, it has an exemption for religious organizations.6  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.7  But it is clearly limited to differentiating on the basis of sex.8Title IX only applies to schools that receive federal financial assistance. Most Catholic colleges and universities receive federal financial assistance in the form of Federal Student Aid,9 which enables students10 to afford expensive post-secondary education.  Students apply for this aid by completing the Free Application for Federal Student Aid (FAFSA).  Formerly, student loans were offered under both the Federal Family Education Loan (FFEL) Program and the William D. Ford Federal Direct Loan (Direct Loan) Program.  FFEL loans involved the federal government guaranteeing the loans of private lenders, but with Direct Loans, students borrow directly from the U.S. Department of Education.  In 2010, among other changes,11 the Health Care and Education Reconciliation Act (“Reconciliation Act”)12 eliminated the FFEL Program, and now these loans13 will all be funded by the Direct Loan Program.

The Code of Federal Regulations, which governs the interpretation of Title IX, defines federal financial assistance in the context of student loans broadly.14  The Supreme Court has likewise concluded that the definition of federal financial assistance includes both direct and indirect student loans.15

An institution’s receipt of federal funds actually subjects the entire institution to government regulation under Title IX.16  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.17

Two additional notes for educational institutions attempting to determine if they are receiving federal financial assistance:  (1) it appears that tax exempt status does not constitute receiving federal funds;18 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.19

But if an institution does receive federal funds, Title IX has an exemption for religious organizations.20  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.”21

In order to qualify for this exemption, an educational institution must be “controlled by a religious organization.”  An educational institution that could be classified as a religious institution itself would also meet this requirement.22

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.23  These clearly qualify for the exemption.24  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.

Catholic schools that do not train priests and other ministers should also be concerned about Title IX’s prohibition on sex discrimination.  For instance, schools that provide medical insurance for students may violate Title IX if they fail to provide coverage for prescription contraception coverage.  Failure to do so has been ruled sex discrimination.25  Schools could also face complaints about single-sex residence halls and related activities restricted to hall residents of the same gender.

So qualifying for the religious exemption to Title IX is important for all Catholic colleges and universities.  Although this exemption is narrow,26 Catholic schools stand the best chance of qualifying because they are institutionally connected to a particular religious denomination.27

Courts apply religious exemptions by weighing the facts carefully, not merely taking a school’s assertion that it is religious at face value.28  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.

Prohibition on Discrimination in Employment Pursuant to Federal Title VII

Catholic colleges and universities, regardless of whether they receive federal funds, may be subject to federal laws prohibiting discrimination in the workplace.  Despite the law’s broad exemption for religious organizations, the Equal Employment Opportunity Commission (“EEOC”) is increasingly inclined toward regulating Catholic employers without due consideration for religious liberty, especially with regard to health insurance mandates that conflict with Catholic morality.  For instance, Belmont Abbey College in North Carolina is currently being investigated by the EEOC because its health insurance does not cover prescription contraception for its female employees.

Title VII of the Civil Rights Act of 1964 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.29  Unlike Title IX, the application of Title VII does not depend on whether or not an employer receives federal funds.  But Title VII includes a broader exemption for religious organizations.30

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.31  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 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.32

If a Catholic college or university qualifies for the religious exemption, it may require its employees to all be Catholic and live a life consistent with Catholic teaching.  If the school does not qualify for a religious exemption, it can still consider religion for certain positions that require someone of a particular faith, often referred to as a bona fide occupational qualification.  For instance, being Jesuit was considered a bona fide occupational qualification for a full-time faculty position at Loyola University of Chicago.33

The Pregnancy Discrimination Act

Title VII was amended in 1978 to prohibit discrimination against pregnant women  – often referred to as the Pregnancy Discrimination Act.34  This was interpreted by the EEOC in 2000 as requiring employers to provide prescription contraception coverage in health insurance plans that include prescriptions.35 This mandate neglects the First Amendment rights of Catholic employers who must be faithful to Catholic teaching on the immorality of artificial contraception.

In 2009, the EEOC District Office in Charlotte, N.C., charged Belmont Abbey College in North Carolina with discrimination for not covering birth control pills in its employee health plan, which would compromise the college’s Catholic mission.  The college has filed an appeal with the EEOC national office in Washington, D.C., but has not received a reply.

The EEOC appears to be headed toward additional conflicts with religious employers.  Newly appointed EEOC commissioner Chai Feldblum, a former professor at Georgetown University Law Center and advocate for same-sex marriage, has argued that “sexual rights” should trump First Amendment religious rights when the two conflict.

The EEOC action against Belmont Abbey College indicates the extent to which Title VII can be used to impose personnel policies that may conflict with Catholic identity.  Contraception mandates could lead to abortion mandates in employee health insurance.  Antidiscrimination measures regarding sexual orientation could force benefits for same-sex couples and recognition of same-sex unions.  Catholic colleges and universities must be careful to require their employees to subscribe to the Catholic teaching on contraception if they do not want to be forced to provide similar coverage to their employees.

Employment Non-Discrimination Act

Another potential threat to Catholic colleges and universities is the continued effort in Congress to amend Title VII by passing some form of the Employment Non-Discrimination Act (ENDA).  By designating “sexual orientation” a protected class under Title VII, ENDA could pose problems for Catholic institutions when hiring or firing employees by limiting employers’ ability to consider homosexual activity or activism that is opposed to Catholic doctrine.  It may also limit employers’ ability to enforce dress codes, and could require employers to provide benefits to same-sex couples.  Some observers also note that ENDA may be a first step toward federal redefinition of marriage to include same-sex unions, which could further pose conflicts with personnel policies at Catholic colleges and universities.  As with sex discrimination, the best defense against this is to qualify for the religious organization exemption and require all employees to subscribe to Catholic teaching.

Patient Protection and Affordable Care Act

The recently passed Patient Protection and Affordable Care Act (PPACA) may pose a serious threat to conscience rights of Catholic colleges and universities.  But the manner in which PPACA will be implemented is confusing and indeterminate.  PPACA generally mandates that employers provide one of several options of health insurance to their employees.  But PPACA also grants sweeping powers to the Secretary of the Department of Health and Human Services (HHS) and other administration agencies, making it distinctly possible that they may mandate coverage of contraception, in vitro fertilization, and even abortion in an employer’s coverage options.  Institutions opting to simply not provide health coverage for their employees will face stiff tax consequences.  This paper below discusses religious schools’ options for avoiding the requirements of the PPACA as well as potential grounds for protecting religious freedom through litigation.

General State-Level Threats

Some states such as Wisconsin have begun mandating contraception coverage in employee health insurance plans.  Not all of them have exceptions for religious organizations and when they do, it is sometimes unclear how to qualify as a religious organization.  A thorough analysis of the various and differing state laws is beyond the limited scope of this paper.  The Becket Fund for Religious Liberty has an excellent analysis of this issue with proposals for protecting Catholic institutions from this threat titled, Implications of Mandatory Insurance Coverage of Contraceptives for Catholic Colleges and Universities.  It is available at www.CatholicHigherEd.org.  A summary of state contraception mandates titled Contraceptive Mandates and Immoral Cooperation can also be found at the same site.

Some states also have constitutional provisions called “Blaine Amendments” that prohibit any state funds from being used by pervasively religious organizations.  At least four Supreme Court Justices have opined that Blaine Amendments – originally enacted as a result of anti-Catholic bigotry – are unconstitutional and the use of “pervasively sectarian” is outdated.36  Moreover, the Tenth Circuit Court of Appeals in Denver ruled that making distinctions between schools for purpose of state scholarship funding based on whether they are “pervasively sectarian” or merely “sectarian” actually violates the First Amendment Establishment Clause due to excessive entanglement of government with religion.37   This case may be the beginning of a successful effort to eliminate Blaine Amendments.  Nevertheless, Catholic schools should be aware that emphasizing their religious mission and theology may result in disqualification for some state funding programs until provisions that discriminate against pervasively sectarian organizations can be successfully challenged in court.

Potential Threats on the Horizon

The future may bring additional government threats to the religious liberty of Catholic colleges and universities.  While their scope and impact are yet uncertain, recent developments suggest the added importance of protecting against potential threats as well as current realities.

On October 29, 2010, the U.S. Department of Education issued new regulations on student aid that encourage tighter state controls over higher education.  The Higher Education Act requires state authorization of colleges and universities that participate in federal student aid programs, which until this year was often assumed absent an adverse ruling by a state agency.   The Education Department now expects state approval of institutions “by name” and a state process “to review and appropriately act on” complaints about any approved institution.

Associations concerned with religious higher education – including The Cardinal Newman Society, the Association of Jesuit Colleges and Universities, and the Council of Christian Colleges and Universities – have raised concerns about expanded state oversight which could be politicized and could erect barriers to religious colleges seeking state charters and access to federal student aid.  The Education Department acknowledged that it had received complaints from college leaders that “a State’s role may extend into defining, for example, curriculum, teaching methods, subject matter content, faculty qualifications, and learning outcomes.”  Others feared that states might “impose homogeneity upon institutions that would compromise their unique missions.”  In response, federal officials agreed that the new regulations do “not limit a State’s oversight of institutions.”

In a July 30, 2010, letter to the Education Department, William Armstrong, former U.S. Senator from Colorado and now President of Colorado Christian University, warned that the new rules would “almost guarantee that states will have to cope with noisy arguments over teaching methods, degree requirements and culture wars over textbooks, evolution versus Intelligent Design, phonics versus whole language, campus ROTC, climate change, family policy, abortion, race, gender, sexual orientation, etc.”

It should be noted that the law does not prevent the federal government from also imposing restrictions on Catholic colleges and universities that participate in federal student aid programs.  Regulations that could be tied to federal aid might affect employee benefits, hiring policies, accreditation practices, and other unforeseen areas that potentially conflict with religious identity.  Thus far the federal government has been notably restrained in interfering with higher education.

STEPS TO PROTECT CATHOLIC COLLEGES AND UNIVERSITIES

Demonstrating a College is Religious

In short, many religious educational institutions, particularly colleges and universities which were founded on purposes tied to goals of educating in conformity to religious teaching –especially when the ties are denominationally specific or 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.38  It will therefore not be able to require that its staff, faculty, and student body agree with, and abide by, its religious mission and theology.

Some Catholic schools have purposely minimized their religious ties for fear of being considered “pervasively sectarian,” and being disqualified for state funding by Blaine Amendments as indicated above.  Emphasizing their religious mission and theology is helpful for avoiding federal regulation, but it may adversely affect the school’s ability to participate in state scholarship programs – at least until those discriminatory provisions can be eliminated.

The cases indicate courts will consider 10 factors when determining whether a school is a religious organization.39  A college or university is much more likely to be able to qualify for an exemption to anti-discrimination laws if it satisfies all of them.  They are:

1. Whether the entity operates for a profit

This factor is not an issue for most secondary schools, but there are some for-profit colleges and universities.  “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.”  Dent, supra note 25, at 563.  Non-profit status definitely weighs in favor of being considered a religious organization.

2. Whether it produces a secular product

Many religious schools offer secular degrees in addition to religious.  This does not preclude them from being considered religious institutions.  For instance, Samford University offers a plethora of secular degrees,40 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.”41

3. 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.42  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.43

4. 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 seven percent of its annual budget from the Southern Baptist Convention.44

5. 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.45

6. 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.46  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, ….’”47

7. 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.48  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.49

8. 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….”50  Whereas, Samford University actually has a divinity school that trains clergy.

9. 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.51  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.52

10. 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.53  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.”54

This factor may be particularly significant for universities and colleges that are affiliated with a particular denomination that specifically proscribes religious tenants that must be followed.  For instance, Catholic schools should adhere to the Canon Law requirements for their institutions, including the Church’s Apostolic Constitution Ex corde Ecclesiae, which applies directly to Catholic universities.55

Protection from PPACA

This section discusses religious schools’ options for avoiding the requirements of the Patient Protection and Affordable care Act (“PPACA”) as well as potential grounds for protecting religious freedom through litigation.  Schools should consult legal counsel to determine what their specific options will be under the PPACA regime.  Some potential options are as follows:

Lobby for amendments addressing conscience protection issues

Members of Congress are aware of the deficiencies in the PPACA, and several are proposing amendments to fix the shortcomings.  Representative Joseph Pitts (R-PA) introduced H.R. 5111, which would close the loopholes threatening to make abortion coverage mandatory.  Various proposed amendments would protect against requisite coverage of objectionable services in general.  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 PPACA’s employee-coverage mandate substantially burden its religious beliefs by forcing it to cover objectionable practices, the institution may be able to file a lawsuit alleging that PPACA’s mandate as applied to them violates the federal Religious Freedom Restoration Act (“RFRA”).   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.  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 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 colleges and universities are prohibited from discriminating on sex and religion by Title IX and Title VII.56  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 college 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.  It is unclear how this new law will affect schools and other religious organizations that object to certain types of healthcare, such as abortion and in vitro fertilization.  But 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.

Finally, direct funding from the federal government may contain some prohibitions on a school’s ability to hire faculty and recruit students that agree with its religious teachings.  The procurement criteria for each direct grant should be examined closely to be sure the school is not foregoing its ability to maintain its religious character.