Ave Maria Law School invokes ministerialexceptioninwrongfultermination suit

Wed Jul 1 14:04:07 PDT 2009

In trying to understand FAIR and how it might fit, even if awkwardly, with the Supreme Court's other freedom of expression precedents, I think the factor of limited access that Mark Scarberry notes, along with others, is essential to appreciate the limited impact of FAIR in nearly every other context that we can imagine.  To be sure, the force of FAIR is enhanced by the Court's statement that the government could impose the requirement of access to military recruiters directly.  But that same factor also places parameters on the ruling, given the Court's emphasis on the constitutional authority of the government to raise the military.

In a recent essay, I argued that "three factors are essential understanding the FAIR decision:  the military recruitment purpose and judicial deference to the military, the incidental and minimal expressive implications raised by ordering equal access for military recruiters, and the limited nature of the intrusion occasioned by those recruiters' transient presence on campus."  Returning to the PruneYard:  The Unconstitutionality of State-Sanctioned Trespass in the Name of Speech, 32 Harv. J.L.& Pub. Pol'y 389 (2009).  I try to develop each of these narrowing factors further, following in part the path of other scholars who have analyzed the FAIR decision such as Paul Horwitz and Dale Carpenter,  Taken together, I think these factors presage a fairly narrow future path for FAIR (or so I do hope).  In addition, FAIR did not involve a hybrid Free Exercise/Free Speech claim, such as an objection by a religiously-affiliated pacifist university (as the Solomon Amendment excepted such institutions), which might have shifted the constitutional balance in the other direction.

That being said, I certainly do not mean to suggest any validity to the invocation of the ministerial exception by Ave Maria to try to avoid judicial review of the alleged wrongful dismissal of a tenured faculty member.  As someone who teaches at a Catholic law school, I take very seriously the prerogative of an educational institution to have a mission, including a religious one, that is integrated into its teaching.  Under Title VII and ABA and AALS accreditation/membership rules, a religiously-affiliated law school may with prior open notice take religion into account as a factor in hiring, not as a matter of exclusivity but preference.  Beyond hiring, I might imagine extreme circumstances in which post-hiring hostile conduct by a faculty member related to a law school's faith-based mission would justify a negative evaluation or action regarding a faculty member.  But, while the nature of a faith-based mission itself should be beyond a court's authority to define or critique, questions about whether a faculty member's dismissal or adverse action was justified by that mission and especially whether faith-based mission factors played any meaningful role (as opposed to other administrative intent) would not thereby be made altogether non-justiciable.  Moreover, the law school's stated policies about tenure, justifications for adverse action, religious diversity, etc. would properly be considered.  In any event, I see no plausibility to the argument that tenured faculty at an ABA-accredited law school qualify as "ministers" in the Catholic Church whose primary responsibility is religious and thus who would fall within the First Amendment-based ministerial exception.

Gregory Sisk
Orestes A. Brownson Professor of Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
gcsisk at stthomas.edu
http://personal2.stthomas.edu/GCSISK/sisk.html
Publications:  http://ssrn.com/author=44545

________________________________
From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Wednesday, July 01, 2009 12:59 PM
To: Law & Religion issues for Law Academics
Subject: RE: Ave Maria Law School invokes ministerialexceptioninwrongfultermination suit

I stand (or to be perfectly correct, sit, here at my computer) corrected by both Eugene's and Mark's posts. I should have reread the opinion before responding. I suppose one might raise the realist point that the case did involve a funding condition, whether or not the Court treated the condition as important in its analysis. In any case the important distinction is the one raised by David, that a faculty member is a (somewhat) permanent member of the community, whereas a recruiter is not. The Court did place very substantial weight on that point in its discussion of the law school's associational rights:

"Recruiters are, by definition, outsiders who come onto campus for the limited purpose of trying to hire students-not to become members of the school's expressive association. This distinction is critical. Unlike the public accommodations law in Dale, the Solomon Amendment does not force a law school ' "to accept members it does not desire." ' Id., at 648 (quoting Roberts, supra, at 623). The law schools say that allowing military recruiters equal access impairs their own expression by requiring them to associate with the recruiters, but just as saying conduct is undertaken for expressive purposes cannot make it symbolic speech, see supra, at 16, so too a speaker cannot 'erect a shield' against laws requiring access 'simply by asserting' that mere association 'would impair its message.' 530 U. S., at 653." [Quoting taken from opinion on Court's web page]

Eugene does seem right to argue that the school would have to show that somehow the professor's views or actions impaired the school's message, and that it is hard to see how blowing the whistle on alleged improprieties does so (unless the school's message is that it is a place that acts with integrity?).

Mark Scarberry

Pepperdine

________________________________
From: religionlaw-bounces at lists.ucla.edu on behalf of Mark Tushnet
Sent: Wed 7/1/2009 9:26 AM
To: Law & Religion issues for Law Academics; Law & Religion issues for Law Academics
Subject: RE: Ave Maria Law School invokes ministerialexceptioninwrongfultermination suit

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
>
>
> _______________________________________________
> To post, send message to Religionlaw at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
> Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
> _______________________________________________
> To post, send message to Religionlaw at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
> Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
_______________________________________________
To post, send message to Religionlaw at lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.ucla.edu/pipermail/religionlaw/attachments/20090701/7909631f/attachment.htm>