Category Personnel/Employment
Title Goldilocks Test of Religiosity Suffers Another Legal Setback
Preview Goldilocks Test of Religiosity Suffers Another Legal Setback

Goldilocks Test of Religiosity Suffers Another Legal Setback
by Nathan A. Adams IV

Remember the story "Goldilocks and the Three Bears": one bowl of porridge was too cold for her, one too hot, but the third just right? Federal or state regulations that utilize a similar test to distinguish private schools according to their religiosity suffered another setback recently when Carroll College (College) in Waukesha, Wisconsin, prevailed over the effort of the National Labor Relations Board (NLRB or Board) to order the College to collective bargaining. The Board claimed that the school was not religious enough to be exempt from the National Labor Relations Act (Act), in Carroll College v. National Labor Relations Board, No. 07-1315, 07-1383, 2009 WL 635114 (D.C. March 13, 2009). This case about a school that was "too cold" complements last year's ruling about a school the state of Colorado excluded from a scholarship program because it was allegedly "too hot," in Colorado Christian Univ. v. Weaver, 534 F. 3d 1245 (10th Cir. 2008). In both cases, the court held unconstitutional the very inquiry into which schools are "just right"; however, neither addressed discrimination against too-religious schools that may be required by a state constitution.

Too Cold

Multiple times now, federal courts have held that the NLRB's exercise of jurisdiction over religious schools impinges upon religious orthodoxy, but the Board has sought to exert authority anyway by refining its religiosity test. In Carroll College, the NLRB found that the school was not within the exception to the Act because its mission statement and Statement of Christian Purpose were merely "aspirational." The mission statement provides that the school will "demonstrate Christian values by ... example" and the Statement of Christian Purpose declares that the school's mission is to provide "a learning environment devoted to academic excellence and congenial to Christian witness." But the Board was unconvinced of "actual religious influence or control over the college or the education it provides." The Board also rejected the College's argument that the College is a "church-operated" school by virtue of its affiliation with the Synod of Lakes and Prairies of the United Presbyterian Church of the U.S.A. (Synod), because the Synod did not "sponsor" the College, own its campus, or "have any right of ultimate control over it."

Why concern ourselves with schools that the state considers inadequately religious to be exempt from a federal regulation? As the Supreme Court held in NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979), the first reason is that "it is not only the conclusions that may be reached by the Board which may impinge on rights guaranteed by the Religion Clauses, but also the very process of inquiry leading to findings and conclusions" (emphasis added). Because a federal agency may not "[ask] how effective the institution is at inculcating its beliefs," the District of Columbia Court of Appeals reaffirmed its holding from University of  Great Falls v. NLRB, 278 F. 3d 1335 (D.C. Cir. 2002), that to be exempt from the Act, a school need only show that it

  1. "'holds itself out to students, faculty and the community' as providing a religious educational environment," ...
  2. "is organized as a 'nonprofit'" ... and
  3. "is affiliated with, or owned, operated, or controlled, directly or indirectly, by a recognized religious organization, or with an entity, membership of which is determined at least in part, with reference to religion." (formatting added)

The court held that the three-part inquiry was easily met in this case, First, the court found, under Catholic Bishop, that the Board may not "[ask] how effective the institution is at inculcating its beliefs" and thereby question the sincerity of the school's public representations. The public representations themselves are the market safeguard against shams, inasmuch as not all students will be attracted to religious schools. Second, the court held that the College is a nonprofit institution. Third, the court found that the articles of incorporation of the College state that it is "related" to the Synod. The court held that this is adequate without ownership, operation, or control to demonstrate affiliation with a religious organization.

Too Hot

Another reason to be concerned about religious tests is that they could easily be used to identify institutions that are "too hot." For example, in Weaver, the Colorado Commission on Higher Education (Commission) found Colorado Christian University (CCU) too religious to participate in a state voucher program. Conditions of eligibility required the Commission to decide whether any theology courses required by CCU "tend to indoctrinate or proselytize." Without explanation, it decided that syllabi for an Early Christian Literature course failed this test. Likewise, the Commission was required to determine if the governing board of the institution reflected membership limited to persons of any particular religion. To do this, the Commission looked at the policies and decisions of the CCU board to see whether they "have the image or likeness of a particular religion."  The Commission also examined whether the institution has students, faculty, trustees, or funding sources that are exclusively, primarily, or predominately of "one religious persuasion" or a "particular religion." Last, it examined whether the institution is committed to academic freedom.

The U.S. Court of Appeals for the Tenth Circuit rejected this "intrusive religious inquiry" and "specter of government censorship" as a violation of the federal Establishment Clause's prohibition on excessive entanglements with religion: "It is not for the state to decide what Catholic—or evangelical, or Jewish—'polic[y]' is on educational issues. That is a question of religious doctrine on which the State may take no position without entangling itself in an intrafaith dispute." The court concluded, "We do not mean to say that states must allow universities to be the final judge of their own eligibility for state money ... However, if the State wishes to choose among otherwise eligible institutions, it must employ neutral, objective criteria rather than criteria that involve the evaluation of contested religious questions and practices."

Unfortunately, the tenth circuit did not in Weaver directly resolve a conflict that is shaping up around the country over whether discrimination against religious schools can be justified under state establishment clauses balled Blaine amendments that are more restrictive than their federal counterpart. In Weaver, the court found no conflict with Colorado's Blaine amendment, in contrast to the conflict identified by Florida's First District Court of Appeals between the Florida Blaine amendment and participation by Christian schools in Florida's Opportunity Scholarship program. Consequently, the tenth circuit left for another day the question whether a state constitution may justify excluding religious schools from a scholarship program on the basis of a Goldilocks test, notwithstanding federal constitutional guarantees.

Just Right

At least in the absence of a Blaine amendment, the inquiry into which institutions express their religiosity in a manner that is "just right" is unconstitutional under federal law. To maximize their liberty under the Act, as well as improve their defenses available in Title VII and employment litigation, schools should examine carefully their course catalogues, mission statements, student bulletins, website content, articles of incorporation, bylaws, employment documents, and other public documents to make sure that they consistently hold out the institution to the public as religious and consistently specify a clear affiliation with a church or other religious organization. The documents should be integrated and should thoughtfully articulate a theology of education identifying the special role of each staff person in advancing the school's religious purposes. Under these circumstances, the ability of the NLRB or another public agency to inquire skeptically into the school's religiosity may be circumscribed. Unfortunately, less firmly established is whether a state agency can discriminate against religious schools by utilizing a Goldilocks test that is unambiguously required by a Blaine amendment.

Editor's note: You can investigate further the cases mentioned in this article by doing a general Internet search. Simply use the case titles as your key words.

Nathan A. Adams, IV, is Senior Counsel with the international law firm of Holland & Knight LLP in its Tallahassee, Florida, office, practicing in appellate and general litigation and specializing in religious and educational institutions. You may contact him at 850.425.5640 or

LLU 20.1

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