Legal Issues Unique to Religious Educational Institutions

 

Hiring Preferences on the Basis of Religion

 

How preferential hiring mixes with equal opportunity law, even at a religiously-affiliated university, is a complex question.  A common point of confusion is the idea that because equal opportunity law prohibits discrimination on the basis of religion, an employer may not exhibit a preference for someone of a certain religion.  Many people do not realize that an exception exists for religious employers, including religious educational institutions.  Both the United States Constitution and statutory law support this First Amendment right for religious educational institutions to hire members of their own religion on a preferential basis.

 

For a number of years, this topic has been put on the back burner as educational institutions focused more on watching the Supreme Court swing back and forth on what role, if any, religion should play in the availability of federal funding to educational institutions.   That issue is now front and center, as the Supreme Court prepares to address what may be the most important case on the topic in years, Simmons-Harris v. Zelman. The Zelman case involves the question of government-issued vouchers that may be used by families in failing school districts to send their children to a private school of their choice.  In a large percentage of the cases, that choice is a religious elementary or secondary school.  This issue is addressed in depth by Dean Douglas Kmiec of  The Catholic University of Americas (CUA) Columbus School of Law in the online interview of this newsletter. The Zelman case also moves the issue of preferential hiring back into the spotlight. (note from editor: In June 2002 the Supreme Court found the voucher system in the Zelman case constitutional. See Zelman v. Simmons-Harris. )

 

For those higher educational institutions that are Roman Catholic, the Pope's issuance of Ex Corde Ecclesiae in 1990 is another Constitution that must be considered, and another reason that the topic of preferential hiring is now front and center.  Ex Corde Ecclesiae (From the Heart of the Church) is the Apostolic Constitution on Catholic Colleges and Universities issued by Pope John Paul II in 1990.  This Constitution governs the actions of CUA as a religious entity.  Ex Corde Ecclesiae encompasses and discusses the relation­ship of the character of Catholic institutions and their employees, Catholic and non-Catholic, faculty and staff.  On November 17, 1999, the nation's Roman Catholic bishops, by a vote of 223 to 31 with one abstention, approved the Application implementing Ex Corde Ecclesiae. The norms went into effect on May 3, 2001. These religious ordinances apply to all Catholic univer­sities and institutions of higher education in the United States, except for purely ecclesiastical institutions which are governed by different norms. 

 

With respect to the hiring of faculty, the Application provides several guidelines, one of which is the following:

 

In accordance with its procedures for the hiring and retention of professionally qualified faculty and relevant provisions of applicable federal and state law, regulations and procedures, the university should strive to recruit and appoint Catholics as professors so that, to the extent possible, those committed to the witness of the faith will constitute a majority of the faculty. All professors are expected to be aware of and committed to the Catholic mission and identity of their institutions. (Part Two, Article 4, § 4a)

 

This article attempts to give some background information on U.S. civil law that governs preferential hiring, as it may occur at a university like CUA, on the basis of religion.

 

A broad statutory exemption

Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on the basis of race, color, religion, sex or national origin.  Three specific statutory exemptions in Title VII of the Civil Rights Act of 1964 are available to religious universities seeking to defend against a complaint claiming unlawful employment discrimination on the basis of religion.

 

First, 42 U.S.C. § 2000e-1 (the religious corporation exemption) makes the subchapter of the law that requires equal opportunity inapplicable with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by an educational institution or corporation of its activities.  This section of the law has been interpreted by the courts to allow a religious institution to discriminate on the basis of religion (but not race, sex, etc.), assuming of course that the defense is not used as a pretext for discrimination on some other illegal basis.

 

Second, 42 U.S.C. § 2000e-2(e)(1) provides that it is not an unlawful employment practice for an employer to hire and employ employees on the basis of religion when religion is a bona fide occupational qualification (BFOQ) reasonably necessary to the normal operation of that particular business or enterprise.  This is the narrowest of the three exemptions, and it is generally the employer's burden to justify a BFOQ employment action.

 

Third, 42 U.S.C. § 2000e-2(e)(2), (the religious schools exemption) states that it shall not be an unlawful employment practice for an educational institution to hire persons of a particular religion if such school, college or university is, in whole or in substantial part, owned, supported, controlled or managed by a particular religious corporation, association, or society, or if the curriculum is directed toward the propagation of a particular religion.  This provision of Title VII is a specific statutory exemption placed in the law by Congress for the purpose of allowing a religious institution to limit its hiring to coreligionists for all jobs, not merely those jobs connected with the institutions religious activities.  This provision does not allow the institution to discriminate on the basis of race, sex, color, national origin, the other protected classes under Title VII.

 

Case law under this last religious schools exemption is not abundant, but in conjunction with the legislative history of the provision, and an example and commentary from the EEOC Compliance Manual1], it is clear that Congress intended this provision to be broadly construed, that is, covering all employees of the institution. The legislative history shows that at one point in the debate a member of Congress tried unsuccessfully to narrow the applicability of this provision to the hiring only of faculty and instructional staff.

 

For more on the legislative history of the religion exemption from Title VII, see Burchaell, James T., C.S.C., Out of the Heartburn of the Church, 25 Journal of College and University Law 653 (1999). At page 690, in referring to the legislative history, Burchaell states: "The legislative history emphatically excluded any interpretation that might narrow this freedom to appointments requiring specific religious qualification, such as chaplains or theology faculty. The right ran all the way down to janitors"  See also, Araujo, Robert, S.J.,  Ex Corde Ecclesiae and Mission Center Hiring in Roman Catholic Colleges and Universities: To Boldly Go Where We Have Gone Before, 25 Journal of College and University Law 835 (1999). This article contains an exhaustive description of the legislative history of the educational institution exemption. Father Araujo points out that Congress intended, by adding this third exemption, to explicitly cover those universities that may be religiously affiliated, but are also operated for the general purpose of educating on a wide variety of subjects. In other words, the university need not be a religious corporation to come under the protection of the exemption.

 

See 110 Cong. Rec. 2585-93 (1964) for the full debate.  The Catholic University of America is mentioned in the 1964 debates as the type of university Congress was expecting to protect from governmental interference.

 

Supreme Court Jurisprudence

The Free Exercise Clause, as well as the Establishment Clause of the 1^st Amendment both grant religious educational institutions the ability to hire members of their own religion on a preferential basis. With the clear statutory exemption under Title VII, and the protection of the United States Constitution, one wonders why Catholic religious educational institutions have not been bolder, at least from a purely legal perspective, about preferential hiring. This is a complex question, as there are clearly many other considerations, including academic issues. For an excellent history of what has happened over the last 40 years or so with respect to Catholic institutions of higher education, see Out of the Heartburn of the Church, supra.

 

A shorter and less complex answer may be that some educational institutions have been reluctant to exercise the exemption from Title VII due to Supreme Court's confusing jurisprudence on the subject of religion. In the early 1970's several Supreme Court decisions interpreting the Establishment Clause of the First Amendment imposed new restrictions on the ability of religious educational institutions to receive government funds. Most well known and least understood of the restrictions is the doctrine of pervasive sectarianism.

 

The doctrine of "pervasive sectarianism" came into being in the case of Hunt v. McNair, 413 U.S. 734, (1973).  In Hunt the Court stated at p. 743: "Aid normally may be thought to have a primary effect of advancing religion when it flows to an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission or when it funds a specifically religious activity in an otherwise substantially secular setting. "   Although government aid in the form of revenue bonds to a private Baptist college was allowed in the Hunt case, the "pervasively sectarian" test has routinely been applied to the detriment of religious elementary and secondary schools.  No college or university has ever been found by the Supreme Court to be pervasively sectarian, but lower courts have used the doctrine to deny religious colleges government funding.

 

After the adoption of the "pervasively sectarian" test, a number of universities took steps to downplay the religious identity of their institutions, in the fear that failure to do so might result in the loss of federal funding.

 

The U.S. Supreme Court has not resolved the question of public funding to religious institutions. Over the course of the last decade, the Supreme Court has been moving toward the principle that religious institutions may benefit from public assistance that is made available based upon neutral, secular criteria. As was mentioned earlier in this article, the Supreme Court will soon hear the oral arguments in the case of Zelman v. Simmons Harris.[3] The question presented in the case is: "Whether the Establishment Clause of the First Amendment prevents a State from providing tuition aid as part of a general assistance program to the parents of children who attend failing public schools and authorizing the parents to use that aid to enroll their children in a private school of their own choosing, without regard to whether the school is religiously affiliated?" The U.S. Solicitor General has filed a brief arguing that the voucher system at issue in the case does not violate the Establishment Clause. 

 

While it is unclear exactly what the interplay is between the Title VII exemption and the availability of public funding to religious educational institutions, it is clear that a religious hiring preference alone would not amount to a finding of pervasive sectarianism. In the meantime, it is worth noting again that the Supreme Court has never found an institution of higher education to be pervasively sectarian.

 

At The Catholic University of America

Shortly after his arrival at The Catholic University of America in 1998, the President of the University required that all position advertisements and employment contracts include the following paragraph:

 

The Catholic University of America was founded in the name of the Catholic Church and maintains a unique relationship with it.  The University's operations, policies and activities reflect this foundation and relationship and are conducted in accordance with its stated mission.  Regardless of religious or denominational affiliation, all employees are expected to respect and support the University's mission in the fulfillment of their responsibilities and obligations appropriate to their appointment.

 

While respecting the religious liberty of every person, as affirmed by the Second Vatican Council and in the provisions of Ex Corde Ecclesiae, it is the administration's conviction that the University has the right and duty, given its Catholic identity and character, history, tradition and mission, clearly to inform all potential employees of the institution's expectations prior to their appointment so that there is no misunderstanding by either party. 

 

Both Ex Corde Ecclesiae and the Application document implementing its provisions spell that out in careful detail.  With respect to faculty, Ex Corde Ecclesiae, Part II, article 4, paragraph 4 states that "in order not to endanger the Catholic identity of the University & the number of non-Catholic teachers should not be allowed to constitute a majority within the institution, which is and must remain Catholic."  The idea here is that there must be a "critical mass" of Catholic faculty in order to preserve the institution's Catholic character and teaching mission.  To that end, the percentage of Catholic faculty is considered by the institution when teaching appointments are made since, as Ex Corde Ecclesiae, Part II, article 4, paragraph 1 states, "the responsibility for maintaining and strengthening the Catholic identity of the University rests primarily with the University itself."

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