Ave Maria Law School invokes ministerial exception inwrongfultermination suit

[Volokh, Eugene]

            Dale might be on point to the atheist teaching in a religious school, or vice versa.  But that's because the school can easily explain how the teacher's out-of-school speech disclosing his beliefs would undermine the message the school is trying to teach.  But can Ave Maria really make a plausible claim that a professor's blowing the whistle on alleged illegalities by the administration is inconsistent with the ideology that the school is teaching, to the point that retaining the teacher would burden the school's ability to convey this ideology?

            And, as I mentioned, the right to expressive association defense wouldn't apply to the breach of contract claims in any event.

            Eugene

From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Rick Duncan
Sent: Wednesday, July 01, 2009 5:32 AM
To: Law & Religion issues for Law Academics
Subject: Re: Ave Maria Law School invokes ministerial exception inwrongfultermination suit

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</mc/compose?to=stevesan at umich.edu>" <stevesan at umich.edu</mc/compose?to=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</mc/compose?to=nebraskalawprof at yahoo.com>>
>
> Date: Tue, 30 Jun 2009 21:28:17
> To: Law & Religion issues for Law Academics<religionlaw at lists.ucla.edu</mc/compose?to=religionlaw at lists.ucla.edu>>
> Subject: Re: Ave Maria Law School invokes ministerial exception in wrongful
>    termination suit
>
>
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