Category Personnel/Employment
Title Another Test of the Ministerial Exception
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Another Test of the Ministerial Exception

By Ron Reynolds, CAPSO  

A recent ruling by the U.S. Court of Appeals for the Seventh Circuit has further fleshed out the application of the U.S. Supreme Court's 2012 decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. In that landmark ruling, handed down in a unanimous decision by the nation's High Court, the so-called "Ministerial Exception" doctrine became enshrined in law.  The Ministerial Exception is, in essence, a legal principle that bars employees deemed ministers of the faith from advancing most employment-discrimination claims against their religious employers.

In framing its Hosanna-Tabor decision, the U.S. Supreme Court stopped short of specifying a rigid series of tests to be used to determine whether an employee must, or must not be regarded as a minister of the faith.  Instead, the Court provided certain guiding principles, but left it to lower courts to apply them, albeit with a degree of flexibility, on a case-by-case basis.  Disputes over the applicability of the Ministerial Exception thus turn on a court's determination of whether an employee can, or cannot be deemed a minister of the faith.  

The most recently decided case involving the application of the Ministerial Exception further demonstrates the complexities involved when the right of individuals to seek redress for alleged acts of workplace discrimination comes into conflict with Establishment Clause protections guaranteeing the free exercise of religion.  The case, Miriam Grussgott v. Milwaukee Jewish Day School Inc., revolves around an employee who claimed that at the time of her termination she was employed merely as a teacher of Hebrew language, and had no work-related responsibilities of a religious nature.  Miriam Grussgott conceded that she discussed Jewish content and taught about various Jewish subjects, but claims to have done so from a cultural and historical, rather than a religious perspective.  She further directed the court's attention to the fact that the school's policies did not require teachers to be Jewish, and that the school maintains an anti-discrimination policy that expressly bars discrimination on the basis of religion.

In 2013, Ms. Grussgott underwent treatment for a brain tumor, and returned to work in June of the following year.  According to the court's account of events:

"During a March 2015 telephone call from a parent, Grussgott was unable to remember an event, and the parent taunted her about her memory problems. Grussgott's husband (a rabbi) then sent an email, from Grussgott's work email address, criticizing the parent for being disrespectful. The school terminated Grussgott after the incident. Grussgott then sued the school under the Americans with Disabilities Act, claiming that she was terminated because of her cognitive issues resulting from her brain tumor."

Ms. Grussgott's employer, the Milwaukee Jewish Day School Inc., moved for summary judgment, citing the Ministerial Exception, and the District Court agreed, meaning there was no cause for that court to consider the merits of Ms. Gussgott's ADA claim.  The teacher then appealed the District Court's ruling, and the U.S. Court of Appeals for the Seventh Circuit took up the matter.  In upholding the ruling of the lower court, the Seventh Circuit offered several important findings.

"...not only is this type of religious line-drawing incredibly difficult, it impermissibly entangles the government with religion."

In her appeal, Ms. Grussgott claimed that her employer did not qualify as a religious institution, "...because it does not adhere to Orthodox principles, employs a rabbi only in an advisory (rather than supervisory) capacity, and has a nondiscrimination policy."  The court rejected these assertions, and established that, "there is no requirement that an organization exclude members of other faiths in order to be deemed religious"  and, "...a religious institution does not waive the ministerial exception by representing itself to be an equal-opportunity employer."

The appellate court next turned to the critical question of whether Ms. Grussgott's role in the school could be deemed ministerial.  In so doing, the following four considerations, identified by the U.S. Supreme Court in the Hosanna-Tabor case, were considered:  "(1) 'the formal title' given by the Church, (2) 'the substance reflected in that title,' (3) '[the teacher's] own use of that title,' and (4) 'the important religious functions she performed for the Church.'"

When brought to bear in the current case, the Seventh-Circuit panel of judges found that the second and fourth factors supported the applicability of the Ministerial Exception, while the first and third considerations suggested otherwise. This 2-2 "tie," set the stage for the Court's decisive finding:

"In this case, at most two of the four Hosanna-Tabor factors are present. But even referring to them as 'factors' denotes the kind of formulaic inquiry that the Supreme Court has rejected. And surely it would be overly formalistic to call this case a draw simply because two 'factors' point each way. As the district court concluded, the 'formalistic factors are greatly outweighed by the duties and functions of [Grussgott's] position.' The school intended Grussgott to take on a religious role, and in fact her job entailed many functions that simply would not be part of a secular teacher's job at a secular institution."

The ruling went on to state:

"We read the Supreme Court's decision to impose, in essence, a totality-of-the-circumstances test. And it is fair to say that, under the totality of the circumstances in this particular case, the importance of Grussgott's role as a 'teacher of [ ] faith' to the next generation outweighed other considerations."

The court's other key assertion relates to Ms. Grussgott's claim that her teaching was of a cultural and, therefore, secular nature, rather than religious.  In light of this line of argumentation the panel held that:

"...there may be contexts in which drawing a distinction between secular and religious teaching is necessary, but it is inappropriate when doing so involves the government challenging a religious institution's honest assertion that a particular practice is a tenet of its faith." As the Seventh Circuit panel saw it, when it comes to drawing distinctions between what constitutes teaching about religion, and what constitutes religious instruction, "...not only is this type of religious line-drawing incredibly difficult, it impermissibly entangles the government with religion."

It has now been six years since the Hosanna-Tabor ruling.  Only a handful of subsequent cases have put the High Court's prescriptions to the test.  But the trend - small as the sample size may be - appears to favor greater flexibility and permissibility in applying the invocation of the Ministerial Exception in favor of religious employers.  That being said, the next case could reverse the trend.  Time will tell.  

Reprinted with permission from the California Association of Private School Organizations, CAPSO Midweek E-Mailer, April 25, 2018, Volume 11, Number 9    

New Mexico Supreme Court Hears Textbook Case...Again

by Counsel for American Private Education  

On June 27 of last year, the Supreme Court of the United States (SCOTUS) vacated a 2015 decision by the New Mexico Supreme Court that disallowed the provision of textbooks by the state to students in private schools, including religious schools. It did so the day after it ruled in Trinity Lutheran Church of Columbia, Inc. v. Comer that another state, Missouri, could not exclude a religious school from a grant program to enhance playground safety merely because the school was religious. SCOTUS returned the textbook case to the New Mexico court "for further consideration in light of Trinity Lutheran."  

Fast forward to May 7, 2018, when New Mexico's highest court revisited its 2015 decision and considered once again the question of whether the state's Instructional Materials Law (IML) is constitutional. The case involves the New Mexico Association of Nonpublic Schools, a state affiliate of CAPE.   

Not Just Blaine

First to argue before the court at the May hearing was Frank Susman, a Santa Fe attorney representing parties who oppose the textbook loan program. Susman tried to distinguish the New Mexico court's 2015 ruling from Trinity Lutheran by arguing that in the Missouri matter, religious identity was the sole criterion for denying the grant. Susman reasoned that the New Mexico law is more inclusive and neutral in that it applies to all private schools, not just religious. He also argued that in addition to the state's Blaine language, which in Article XII, Section 3 of the New Mexico Constitution prohibits the use of state funds "for the support of any sectarian, denominational or private school," two other provisions of the constitution effectively ban the state from lending textbooks to students in private schools. Article IV, Section 31 prohibits appropriations "for charitable, educational or other benevolent purposes to any person, corporation, association, institution or community, not under the absolute control of the state." And Article IX, Section 14 says the state shall not "lend or pledge its credit or make any donation to or in aid of any person, association or public or private corporation."  

These provisions, said Susman, are "clear as day." They "say what they mean and they mean what they say." But one justice quipped, "If that were true, we wouldn't be here today."   


Eric Baxter, from the Becket Fund for Religious Liberty, argued on behalf of the New Mexico Association of Nonpublic Schools. He was quick to recount the anti-Catholic animus that prompted enactment of the state's Blaine Amendment.  

Addressing Susman's argument that religious schools were not the sole target of a constitutional provision that encompasses all private schools, Becket's response brief detailed the historical record demonstrating the anti-religious purpose of the provision, which puts it at odds with U.S. Supreme Court precedent. As the brief put it, "Trinity Lutheran underscored that laws that 'single out the religious for disfavored treatment' violate the Free Exercise Clause." Adding "private" to "sectarian" and "denominational" in the state's Blaine provision does not shield it from Trinity Lutheran in that the Supreme Court "affirmed that even a 'facially neutral' law is invalid if it has 'a discriminatory purpose' aimed at 'some or all religious beliefs' and imposes a 'special disabilit[y]' for religious observers."  

Becket's brief also addressed plaintiff's claim that the IML violated two other provisions of the state's constitution, stating that "neither of these provisions apply to the IML because the state retains both control and ownership of the textbooks and merely utilizes the schools as agents to facilitate its efforts to lend textbooks for the benefit of students."   

What is Support?

One thread of discussion during the oral arguments focused on what constitutes support for an institution. Questioning Mr. Susman's assertion that the lending of state-owned textbooks to students attending private schools constitutes support for those schools, one justice asked whether the state's temporary back-to-school sales tax moratorium on school supplies should also be considered aid to private schools.   

Elephant in the Room Another recurring theme was the religious bigotry that prompted the state's Blaine language. Justice Charles Daniels decided to address "the elephant in the room" by recalling that the prohibition on aid to religious schools was added to the state constitution because New Mexico was required to do so as a condition of statehood. He said the ban was "dressed up a little bit" by being extended to all private schools, but that the underlying motivation at the time was anti-religious animus. "Can we ignore that?" he asked.    

Reprinted with permission from Counsel for American Private Education, CAPE Outlook, June 2018, Number 436    

LLU 29.1

Notice: This article is designed to provide accurate and authoritative information in regard to the subject matter covered. It has been provided to member schools with the understanding that ACSI is not engaged in rendering legal, accounting, tax, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought. Laws vary by jurisdiction, and the specific application of laws to particular facts requires the advice of an attorney.  

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