Ave Maria Law School invokes ministerial exceptioninwrongfultermination suit

Wed Jul 1 09:26:18 PDT 2009

In my view this is a (common) misunderstanding of the decision, which says explicitly that it's not relying on the spending aspect of the case because the government could impose the requirement directly (that is, on everyone regardless of whether they accepted federal funds).

Mark Tushnet
William Nelson Cromwell Professor of Law
Harvard Law School
Areeda 223
Cambridge, MA  02138

ph:  617-496-4451 (office); 202-374-9571 (mobile)

-----Original Message-----
From: religionlaw-bounces at lists.ucla.edu on behalf of Scarberry, Mark
Sent: Wed 7/1/2009 11:16 AM
To: Law & Religion issues for Law Academics
Subject: RE: Ave Maria Law School invokes ministerial exceptioninwrongfultermination suit

Limiting my response, as David did, to Steve's Rumsfeld argument: Isn't a key difference that in Rumsfeld the government demanded that those who receive government funds help further government purposes, with the option of turning down government funds if the institution did not wish to do so? Law schools cannot opt out of laws that prohibit employment discrimination on the basis of religion (at least not without changing their mission, such as by becoming seminaries instead of law schools).

Mark Scarberry
Pepperdine

  _____  

From: religionlaw-bounces at lists.ucla.edu on behalf of Rick Duncan
Sent: Wed 7/1/2009 5:31 AM
To: Law & Religion issues for Law Academics
Subject: Re: Ave Maria Law School invokes ministerial exceptioninwrongfultermination 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" <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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