Ave Maria Law School invokes ministerial exception inwrongfultermination suit

[Robert Tuttle]

Ave Maria may have an expressive association claim, as Rick says, but
that's very different from the jurisdictional immunity conferred by
the ministerial exception, especially in the context of a dispute over
contract-based rights.  Ave Maria might be able to claim that the
professor breached his contract, and thus deserves revocation of
tenure, by failing to teach in accordance with the mission of the
school, but it is highly unlikely that any court would allow the
school to assert the ministerial exception and decline to give any
reason for its termination.

Bob

On Wed, Jul 1, 2009 at 8:31 AM, Rick Duncan<nebraskalawprof at yahoo.com> wrote:
> I think the distinction Prof. Cruz makes is correct.
>
> Religious schools are expressive associations that come together for the
> purpose of teaching about the world from a faith-based point of view.
>
> Of course, the school needs to establish how forced inclusion of the teacher
> impairs its ability to say what it wishes to say and to refrain from saying
> what it wishes not to say. But there are no "secular" subjects and
> "religious" subjects. A religious school will often have a religious
> perspective on any and all subjects. As my daughter's high school says in
> its motto, Lincoln Christian School exists "to teach about God's world from
> God's word."
>
>  Teachers are also role models who express their faith by example throughout
> the school day. The way a math teacher handles a disciplinary problem in
> class reflects her faith and teaches by example. The way she conducts
> herself when coaching the math club reflects her faith and teaches by
> example.
>
> The easiest case would be a teacher in, say, a Christian K-12 school who
> loses her faith and now presents as an atheist. How can an atheist speak
> within the curriculum for a Christian school? How can she be a role-model of
> the Christian walk through life? I think Dale is directly in point.
>
> Rick Duncan
> Welpton Professor of Law
> University of Nebraska College of Law
> Lincoln, NE 68583-0902
>
>
> "And against the constitution I have never raised a storm,It's the
> scoundrels who've corrupted it that I want to reform" --Dick Gaughan (from
> the song, Thomas Muir of Huntershill)
>
> --- On Tue, 6/30/09, David Cruz <dcruz at law.usc.edu> wrote:
>
> From: David Cruz <dcruz at law.usc.edu>
> Subject: Re: Ave Maria Law School invokes ministerial exception
> inwrongfultermination suit
> To: stevesan at umich.edu, "Law & Religion issues for Law Academics"
> <religionlaw at lists.ucla.edu>
> Cc: "Law & Religion issues for Law Academics" <religionlaw at lists.ucla.edu>
> Date: Tuesday, June 30, 2009, 10:55 PM
>
> Writing only of Steve's Rumsfeld argument, the Court did there note that
> recruiters did not become a permanent part of a law school community.  That
> could distinguish a tenured or tenure-track faculty member (though I express
> no opinion herein about whether that distinction should lead to a different
> outcome).
>
> David B. Cruz
> Professor of Law
> University of Southern California Gould School of Law
> Los Angeles, CA 90089-0071
> U.S.A.
>
> On Jun 30, 2009, at 9:51 PM, "stevesan at umich.edu" <stevesan at umich.edu>
> wrote:
>
>> Didn't the Court reject a similar sort of expressive association argument
>> in Rumsfeld v. FAIR, the military recruiters case?  I seem to recall it said
>> that an asserted right by a law school not to be forced to associate with
>> people or ideas it found disagreeable was simply too attenuated from the
>> primary purpose of the First Amendment in the higher education context: to
>> protect a robust marketplace of ideas.
>>
>> Steve Sanders
>>
>> Sent via BlackBerry from T-Mobile
>>
>> -----Original Message-----
>> From: Rick Duncan <nebraskalawprof at yahoo.com>
>>
>> Date: Tue, 30 Jun 2009 21:28:17
>> To: Law & Religion issues for Law Academics<religionlaw at lists.ucla.edu>
>> Subject: Re: Ave Maria Law School invokes ministerial exception in
>> wrongful
>>    termination suit
>>
>>
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-- 
Robert Tuttle
Professor of Law
David R. and Sherry Kirschner Berz Research Professor of Law & Religion
GWU Law School