The Catholic University of America
 
 

FEDLAW

 

Civil Rights Act of 1964 (Title VII)

Clergy Housing Allowance Clarification Act

December 2016 Guidance on The Religious Land Use and Institutionalized Persons Act*

(see also the DOJ page on RLUIPA)

 

Recent Case law


 

 NLRB cases

 

Marywood University, Case Number: 04-RC-173160, Regional Director's Decision and Order, 5-11-16.

The Marywood University Faculty Association, representing full-time and pro-rata Marywood faculty, but not adjuncts, brought a collective bargaining petition against their employer, Marywood (PA) University. Applying the test in Pacific Lutheran, the Region 4 Office of the NLRB dismissed the petition despite finding that Marywood was unable to make the requisite showing for a religious exemption that would have denied the Board jurisdiction. The NLRB nonetheless found that the petition should be dismissed because the faculty members were managerial employees excluded from the benefits of collective bargaining under the National Labor Relations Act.

Religious exemption unavailable. Under Pacific Lutheran, generalized statements that faculty are expected to support an employer's mission are insufficient to qualify for a religious exemption. A university must show that its faculty members perform “a specific role in creating or maintaining the school’s religious educational environment.” While the Board said it would “not look behind a school’s description of faculty responsibilities,” it gave weight to the Faculty Handbook’s guarantee of academic freedom and the observation that nearby non-religious colleges promoted similar values as those cited by Marywood (respect, empowerment, service, and excellence) without citing a religious basis for them. Without a showing “that faculty members are expected to integrate the schools’ religious teachings into coursework” or serve in explicitly religious roles, a school is unlikely to prevail under Pacific Lutheran. The University presented testimony from its leadership about the religious source for its mission statement and “core values” but the NLRB concluded that they were “expressed largely in non-religious terms” and had no real impact on the teaching obligations of the faculty.

Management analysis. The Board distinguished this case from Pacific Lutheran in finding that Marywood faculty were managerial employees. The members of the proposed unit in Pacific Lutheran had yearly contracts, were not permitted to participate in faculty committees, and had a very limited voice in university governance. Marywood faculty members lacked similar limitations on their employment relationship and had a significant role in determining major university policies, including heavy participation on dozens of committees and substantial if not conclusive involvement on key matters of academics (“the faculty largely determine the product”) and enrollment. This case has limited applicability to the typical petition regarding adjunct or part-time faculty, because the organizers in this case represented a unit comprised overwhelmingly of full-time faculty (168) and a small number of “pro-rata” (part-time) faculty (17) and it expressly excluded adjuncts.
 

Manhattan College and Manhattan College Adjunct Faculty, Case No. 02-RC-023543, Supplemental Decision and Order, August 26, 2015.

This case was heard on remand from the NLRB. The Region 2 Director ordered the election to proceed finding adjunct faculty not exempt from oversight of the Board, applying  Pacific Lutheran University (361 NLRB No. 157). The Director found the College met part one of the Pacific Lutheran test, that the College holds itself out as providing a religious education environment. In reaching this finding, the Director wrote seven pages of the opinion looking at the religious nature and environment of the College and its faculty. The decision hinged on part two of the Pacific Lutheran test, "how the institution holds out the petitioned for employees" and whether or not they perform a "specific religious function". The College argued this two pronged test entails the same improper inquiry discussed and found unconstitutional in NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979). In the case of Manhattan College, the regional director found that although the adjunct faculty were all informed they must support and respect the Catholic College's identity;  were given a copy of a book explaining the Catholic Culture of the College, and required to  sign a mission statement agreeing to abide by the document, along with similar language in the Salary Agreement, this was not enough for the regional director to find the faculty were held out as performing a specific religious function.


Seattle University and SEIU, Case No. 19-RC-122863
, 2nd Supplemental Decision and Order, August 17, 2015*

Applying the test in Pacific Lutheran instead of the test in Great Falls, (D.C. Circuit in Univ. of Great Falls v. NLRB, 278 F. 3d 1335 (D.C. Cir. 2002)), the Region 19 Office of the NLRB found that the contingent faculty do not perform a religious function at the University. This included the faculty in the School of Theology and Ministry. The University was founded by the Jesuits, and is listed in the registry of U.S. Catholic Universities maintained by the Catholic Church. Quoting Pacific Lutheran, the Regional Director set forth a dichotomy of academic freedom versus religious identification and sectarian influence. (see page 10) In applying this standard, where faith and reason cannot co-exist, the NLRB found that the Employer had not established that non-tenure track faculty, even those teaching in the School of Theology and Ministry, serve a specific role in creating or maintaining a religious educational environment, and thus the NLRB can assert jurisdiction.  Seattle University will appeal the decision.

Duquesne University of the Holy Spirit and United Steelworkers, Region 6 NLRB decision, June 2015.

Order from Region 6 of the National Labor Relations Board (Board) holding that adjunct faculty at Duquesne University of the Holy Spirit (University) may unionize on the grounds that the adjunct faculty were not held out as performing a specific role in maintaining the University's religious educational environment. In reaching this decision, the Board applied the two-pronged test from Pacific Lutheran University, which held that the Board would exercise jurisdiction over an employee unless the employer could demonstrate that: (1) it holds itself out as providing a religious educational environment; and (2) the employer holds the petitioned-for employees out as performing a specific role in creating or maintaining the university's religious educational environment. To determine if the adjuncts were performing specific religious duties, the Board looked at the adjuncts' contracts, courses, and orientation, as well as the University's hiring practices. For updates see the Duquesne U web page and the NLRB web page, which includes the April 10, 2017 Board Decision  to grant the request to overrule the Regional Director solely with regard to the inclusion of the Department of Theology adjunct faculty. 

St. Xavier University, NLRB Region 13 Decision and Order June 2015
Order by Region 13 of the National Labor Relations Board (Board) finding that, with limited exceptions, ballots for adjuncts at Saint Xavier University (University) should be counted in a union election because the University failed to demonstrate that adjuncts play a specific role in creating its religious educational environment. The case was remanded to Region 13 in light of Pacific Lutheran University, in which the Board held that it would exercise jurisdiction over an employee unless the employer could demonstrate that: (1) it holds itself out as providing a religious educational environment; and (2) the employer holds the petitioned-for employees out as performing a specific role in creating or maintaining the university's religious educational environment.

 Seattle University and Service Employees International Union, Local 925 (April 17, 2014)

The Regional Director in Seattle held non-tenure-eligible faculty (excluding faculty in the law school and college of nursing) at Seattle University are eligible to vote on whether to form a union because they are not managers and they share a community of interest. In addition, he held that this Jesuit University was not sufficiently religious to fall under the Board's substantial religious character test as he interprets NLRB v. Catholic Bishop of Chicago. Ignoring University of Great Falls and Carroll College, the Director stated as follows at page 13: 

As noted by the Employer, the D.C. Circuit has repeatedly refused to enforce Board decisions asserting jurisdiction based on the "substantial religious character" standard and instead has adopted its own three-part test. See Univ. of Great Falls, 278 F.3d at 1343; Carroll College, Inc., 588 F.3d 568. However, the Board has not adopted the D.C. Circuit's test and therefore it does not govern my decision here.

Seattle University filed a request for review.
*********

Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, No. 10-553, Decided Jan. 11, 2012, U.S. Supreme Court
In a unanimous decision, the S. Ct.reaffirmed the application of the ministerial exception under Title VII. In this case, the Hosanna-Tabor Evangelical Lutheran Church (Church) hired a subsitute teacher to replace a commissioned minister teacher (Cheryl Perich) who had been on half the year with narcolepsy. When Perich stated she was ready to return to the classroom, the principal advised they had contracted with another teacher and also expressed concern about Perich's readiness to return to the classroom. The congregation offered to pay part of her health insurance in exhange for her resignation. Perich instead filed a claim with the EEOC alleging disability discrimination. The EEOC brought suit against the Church alleging that Perich had been fired in retaliation for threatening to file and ADA lawsuit. The Church has a principle of internal dispute resolution and responded that the suit was barred by the First Amendment as this claim concerned an employment relationship between a religious institution and one of its ministers. While the 6th Circuit Court of Appeals held for the teacher, the U.S. Supreme Court reversed and held for the Church. Excerpts from the decision follow.

Perich taught kindergarten during her first four years at Hosanna-Tabor and fourth grade during the 2003–2004 school year. She taught math, language arts, social studies, science, gym, art, and music. She also taught a religion class four days a week, led the students in prayer and devotional exercises each day, and attended a weekly school-wide chapel service. Perich led the chapel service herself about twice a year. 

*****

By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.

******

We cannot accept the remarkable view that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers.

****

 

Having concluded that there is a ministerial exception grounded in the Religion Clauses of the First Amendment, we consider whether the exception applies in this case. We hold that it does.

Every Court of Appeals to have considered the question has concluded that the ministerial exception is not limited to the head of a religious congregation, and we agree. We are reluctant, however, to adopt a rigid formula for deciding when an employee qualifies as a minister. It is enough for us to conclude, in this our first case involving the ministerial exception, that the exception covers Perich, given all the circumstances of her employment.

To begin with, Hosanna-Tabor held Perich out as a minister, with a role distinct from that of most of its members. When Hosanna-Tabor extended her a call, it issued her a “diploma of vocation” according her the title “Minister of Religion, Commissioned.” App. 42. She was tasked with performing that office “according to the Word of God and the confessional standards of the Evangelical Lutheran Church as drawn from the Sacred Scriptures.” Ibid. The congregation prayed that God “bless [her] ministrations to the glory of His holy name, [and] the building of His church.” Id., at 43. In a supplement to the diploma, the congregation undertook to periodically review Perich’s “skills of ministry” and “ministerial responsibilities,” and to provide for her “continuing education as a professional person in the ministry of the Gospel.” Id., at 49.

Perich’s title as a minister reflected a significant degree of religious training followed by a formal process of commissioning. To be eligible to become a commissioned minister, Perich had to complete eight college-level courses in subjects including biblical interpretation, church doctrine, and the ministry of the Lutheran teacher.

****

In light of these considerations—the formal title given Perich by the Church, the substance reflected in that title, her own use of that title, and the important religious functions she performed for the Church—we conclude that Perich was a minister covered by the ministerial exception.

****

The EEOC and Perich suggest that Hosanna-Tabor’s asserted religious reason for firing Perich—that she violated the Synod’s commitment to internal dispute resolution—was pretextual. That suggestion misses the point of the ministerial exception. The purpose of the exception is not to safeguard a church’s decision to fire a minister only when it is made for a religious reason. The exception instead ensures that the authority to select and control who will minister to the faithful—a matter “strictly ecclesiastical,” Kedroff, 344 U. S., at 119—is the church’s alone.

For an in depth analysis by two attorneys from Wiley Rein who filed an amicus brief in the case on behalf of religious groups see *The Broad First Amendment Rights of Religious Groups.* See also *Hosanna in the Highest* by Michael Stokes Paulsen, Jan. 13, 2012, The Witherspoon Institute Public Discourse.

Banzhaf v. Garvey;  DC Office of Human Rights.Docket No. 11-343-EI 11/29/11
Professor John Banzhaf III, a law professor at George Washington University, filed a complaint of discrimination on July 8, 2011 against President John Garvey, President of The Catholic University of America, in his individual capacity. The complaint alleged that eliminating mixed gender dorms on the CUA campus and requiring students to live in single sex dorms constituted gender discrimination under the DC Human Rights Act. Respondent  requested dismissal of the complaint on the grounds that the University had not engaged in or aided and abetted unlawful sex discrimination by institution of the single sex dorm policy. Respondent also asserted that Title IX allows for same sex dormitories.  The University also asserted that the policy was implemented for legitimate reasons, including to advance the University's religious mission.

The DC Office of Human Rights granted Respondent President Garvey's motion to dismiss, and stated as follows: 

After examining the legislative history of the Act, District case law, Title IX, and other
applicable federal precedent, OHR finds that Complainant fails to state a claim for which relief
can be granted under the Act because same-sex dormitories do not constitute unlawful
discrimination. We hold that the DCHRA does not forbid colleges and universities from making
sex-based distinctions between students. We agree that to follow Complainant's reasoning would
include a prohibition on same-sex bathrooms, locker rooms, and sports teams, which would lead
to absurd results. ****

Finally, we heavily base our decision on Title IX. This law specifically states that same-sex
housing policies on college campuses do not constitute "discrimination" on "the basis of sex."
See 20 U.S. C.§ 1686.

 

Alpha Delta Chi et al. and Every Nations Ministry at San Diego State v. Reed (9th Cir. Ct. Appeals) August 2, 2011, Case No. 09-55299. Plaintiffs, a Christian sorority and fraternity, challenged the SD State denial of official recognition by the University, because of the requirement that members profess their belief in Christianity. The University took the position the membership requirement conflicted with the San Diego State non-discrimination policy, which states as follows: 

On-campus status will not be granted to any student organization whose application is incomplete or
restricts membership or eligibility to hold appointed or elected student officer positions in the campus recognized chapter or group on the basis of race, sex, color, age, religion, national origin, marital status, sexual orientation, physical or mental handicap, ancestry, or medical condition, except as explicitly exempted under federal law.

The court held the San Diego State policy was viewpoint neutral as written, relying upon Christian Legal Society. However, the case was remanded to the lower court to determine if the policy was discriminatory as applied. The lower court is to consider whether: San Diego State has (1) exempted certain student groups from the nondiscrimination policy; and (2) declined to grant Plaintiffs such an exemption because of Plaintiffs’ religious viewpoint.

St. Xavier University and St. Xavier University Adjunct Faculty Organization, IEA-NEA, Case 13-RC-22025, NLRB, Region 13, decided May 26, 2011.  The NLRB declined to follow , and ruled that St. Xavier was secular and thus the NLRB granted a petition for formation of a collective bargaining unit by adjunct faculty. For more see commentary by the Cardinal Newman Society and a paper titled the NLRB's Assault on Religious Liberty.

Brief by Badger Catholic in Opposition

Brief by American Council of Education in support of University of Wisconsin

Petition and Brief in Support


Manhattan College v. Manhattan College Adjunct Faculty Union, New York State United Teachers, AFT/NEA/AFL-CIO, NRLB, Region 2, Case No. 2-RC-23543, January 10, 2011.
In this case, the Acting Regional Director for Region 2 decided to ignore the law established by Carroll College Inc. v. NLRB and University of Great Falls v. NLRB (which both relied upon a US Supreme Court decision NLRB v. Catholic Bishop of Chicago (1979). The Director held that it was permissible for the NRLB to undertake the task of judging just how Catholic Manhattan College is. The three part test from Great Falls states that a school is exempt from NLRB jurisdiction if it 1) holds itself out to students, faculty and the community as providing a religious educational environment; 2) is organized as a *nonprofit*; and 3) is affiliated with or owned, operated or controlled, directly or indirectly, by a recognized religious organization, or with an entity, membership of which is determined, at least in part, with reference to religion. Manhattan Collge met this test, but the NLRB did not see it that way.

The NRLB judge would not accept the position that  religious identity could co-exist with academic freedom. See the January 13, 2011 letter from Dr. Brennan O'Donnell, President of Manhattan College, protesting the decision. This letter contains an excellent summary of the law and the issue of Catholic identity. The legal issues are also outlined in the November 9th letter from the President, on the Manhattan College web page on the case.

 Christian Legal Society v. Wu, No. 06-15956; Order on remand to 9th Circuit Court of Appeals, Nov. 17, 2010.The issue before the court was whether or not the pretext issue of selective enforcement of the nondiscrimination policy raised by CLS was preserved. The court found it was not, as it was not included in the opening brief, and also CLS stipulated that the nondiscrimination policy was applied to all organizations. Thus, the argument not having been preserved, no further consideration was warranted.  The court left open the possibility of new litigation if Hastings applies the policy in a discriminatory way.


Badger Catholic Inc. v. Walsh, et a
l
., Nos. 09-1102 & 09-1112, 7th Cir. Ct. Appeals, decided Sept. 1, 2010.

In a follow up to University of Wisconsin v. Southworth, 529 U.S. 217 (2000) the University of Wisconsin-Madison was met with another challenge to how student fees would be allocated for university activities. Badger Catholic was recognized as a registered student organization in 2007. To obtain reimbursement for expenditures, each group must submit a budget for approval by the student government and then the administration. Badger Catholic's budgets have been rejected on the grounds that the speech was religious in character. The UW would not pay for three categories of speech: worship; proselytizing, and religious instruction. However, student activity fees could be used for discussion or debate from a religious perspective.

At issue were several programs, including a mentoring for busy students program that involved meeting with a spiritual director, including Catholic nuns and priests, and another program, a summer retreat, that included three masses and four prayer sessions. The UW denied funding for these programs on the grounds that it was against their policy. The district court concluded that reimbursing the expenses of religious speakers, through a program equally available to secular speakers, does not violate the Establishment Clause, and that having established a public forum (see Southworth above) the University must not exclude speakers who want to use the forum for worship.

The Court of Appeals agreed, holding that if the University of Wisconsin chose to pay for student led counseling, it could not exclude counseling that features prayer. The court reaffirmed that once the University creates a public forum, it must accept all comers, and is not free to shape the speech of Badger Catholic. The court stated there can be no doubt after Christian Legal Society  that the University's activity fee must cover the six contested programs if similar secular programs are funded. The Court of Appeals noted that they believed the approach set forth in Widmar, Rosenberger v. Rector, and Southworth remained in place post Christian Legal Society, i.e. universities must make recognition and funding decisions without regard to the speaker's viewpoint. 
   

Christian Legal Society Chapter v. Martinez, Leo P, et al. Docket No. 08-1371, Decided June 28, 2010

The question presented was:

"Whether the Ninth Circuit erred when it held, directly contrary to the Seventh Circuit's decision in Christian Legal Society v. Walker, 453 F.3d 853 (7th Cir. 2006), that the Constitution allows a state law school to deny recognition to a religious student organization because the group requires its officers and voting members to agree with its core religious viewpoints."

The suit was filed under 42 USC 1983, alleging Hastings School of Law's refusal to grant Registered Student Organization (RSO) status to the Christian Legal Society (CLS) violated the First and Fourteenth amendment rights of the group to free speech, expressive assocation, and free excercise of religion.

The Christian Legal Society is an association of Christian lawyers and law students. The issue in this case arose when the Hastings chapter of the CLS was denied formal RSO recognition due to the CLS requirement that had recently been adopted by the national organization, and which the Hastings group sought to apply to members at the law school. CLS was denied registration on the grounds that the group impermissibly discriminated on the basis of religion and sexual orientation. The facts are stated in Justice Alito's dissent: 

The events that gave rise to this litigation began in 2004, when a small group of Hastings students sought to register a Hastings chapter of CLS, a national organization of Christian lawyers and law students. All CLS members must sign a Statement of Faith affirming belief in fundamental Christian doctrines, including the belief that the Bible is “the inspired Word of God.” App. 226. In early 2004, the national organization adopted a resolution stating that “[i]n view of the clear dictates of Scripture, unrepentant participation in or advocacy of a sexually immoral lifestyle is inconsistent with an affirmation of the Statement of Faith, and consequently may be regarded by CLS as disqualifying such an individual from CLS membership.” Id. , at 146. The resolution made it clear that “a sexually immoral lifestyle,” in CLS’s view, includes engaging in “acts of sexual conduct outside of God’s design for marriage between one man and one woman.” Ibid . It was shortly after this resolution was passed that the Hastings chapter of CLS applied to register with the law school.

In the end, the case ended up being decided upon a stipulation agreed to by the lawyers as to just what the policy was with respect to student groups at the Hastings College of Law. The lawyers for the Christian Legal Society ended up stipulating to the policy being an *accept all comers* policy, meaning that no one could be turned away by any group. A review of the oral argument transcript below will show that the facts of the case were unclear to the Justices, who at least at oral argument seemed to want to go beyond the stipulation and get at the contested facts as to whether or not the policy was really an *accept all comers* policy or if that statement had come about in response to the litigation.

In a 5-4 decision, Justice Ginsburg delivered the opinion of the Court. The Court affirmed the holding of the District Court and Court of Appeals and held that Hastings non-discrimination policy was a reasonable, viewpoint-neutral condition on access to the student organization forum.

Following are excerpts from the Court's majority decision: 

 

Through its “Registered Student Organization” (RSO) program, Hastings extends official recognition to student groups. Several benefits attend this school-approved status. RSOs are eligible to seek financial assistance from the Law School, which subsidizes their events using funds from a mandatory student-activity fee imposed on all students. Id., at 217. RSOs may also use Law-School channels to communicate with students: They may place announcements in a weekly Office-of-Student-Services newsletter, advertise events on designated bulletin boards, send e-mails using a Hastings-organization address, and participate in an annual Student Organizations Fair designed to advance recruitment efforts. Id., at 216–219. In addition, RSOs may apply for permission to use the Law School’s facilities for meetings and office space. Id., at 218–219. Finally, Hastings allows officially recognized groups to use its name and logo. Id., at 216. ****   In exchange for these benefits, RSOs must abide by certain conditions.

The Law School’s Policy on Nondiscrimination (Nondiscrimination Policy), which binds RSOs, states:

“[Hastings] is committed to a policy against legally impermissible, arbitrary or unreasonable discriminatory practices. All groups, including administration, faculty, student governments, [Hastings]-owned student residence facilities and programs sponsored by [Hastings], are governed by this policy of nondiscrimination. [Hasting’s] policy on nondiscrimination is to comply fully with applicable law.

“[Hastings] shall not discriminate unlawfully on the basis of race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation. This nondiscrimination policy covers admission, access and treatment in Hastings-sponsored programs and activities.” Id., at 220. ***

 Hastings interprets the Nondiscrimination Policy, as it relates to the RSO program, to mandate acceptance of all comers: School-approved groups must “allow any student to participate, become a member, or seek leadership positions in the organization, regardless of [her] status or beliefs.”

Alito noted in diseent that CLS was the only student group at Hastings  whose application for registration had ever been rejected, and that the history of registered student organizations at Hastings had in the past allowed the restriction of membership to those who shared the groups' views.

The following statements made in the case will prove helpful to IHEs seeking to exercise their decisions as to student activities and programming: 

A college’s commission—and its concomitant license to choose among pedagogical approaches—is not confined to the classroom, for extracurricular programs are, today, essential parts of the educational process. See Board of Ed. of Independent School Dist. No. 92 of Pottawatomie Cty. v. Earls , 536 U. S. 822, 831, n. 4 (2002) (involvement in student groups is “a significant contributor to the breadth and quality of the educational experience” (internal quotation marks omitted)). Schools, we have emphasized, enjoy “a significant measure of authority over the type of officially recognized activities in which their students participate.” Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens , 496 U. S. 226, 240 (1990) .

 7/30/10 Motion on Remand filed by the Christian Legal Society in the 9th Circuit Court of Appeals seeking an order in the Christian Legal Society case remanding the case to the District Court for further proceedings on the issue of whether Hastings's College of Law selectively enforced its "all comers" rule regarding membership in the RCOs. Hastings filed on 8/9/10 a motion in oppostion, and the Society filed a response on 8/19/10.

Briefs filed in the case (ABA web page)

Transcript of oral argument in the case from April 19, 2010.

Christian Legal Society v. Martinez wiki page (links to podcasts of oral arguments)

Final Rule, Regulation for the Enforcement of the Federal Health Care Provider Conscience Protection Laws, 76 Fed. Reg. 9968, Feb. 23, 2011, effective March 25, 2011.This rule rescinds in part and revises the Dec. 19, 2008 final rule on this topic.  The rule clarifies at 45 CFR § 88.2 the process for handing complaints by health care providers that they have been discriminated against on the basis of their religion under these rules. OCR will received the complaints.

These rules, known collectively as the "Church Amendments" are codified at 42 USC § 300a-7. There are five separate conscience provisions contained in the US Code, set forth in sections a-e. The Public Health Service Act at 42 USC § 238n prohibits the federal government and state and local governments receiving federal financial assistance from discriminating against a health care entity that  exercises its religious principles and refuses to undergo training in or make arrangements for abortions. The related Weldon Amendment has been repeatedly readopted in appropriations bills. This amendment (apparently not codified) provides as follows: 

"[n]one of the funds made available in this Act [making appropriations for the Departments of Labor, Health and Human Services, and Education] may be made available to a Federal agency or program, or to a state or local government, if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.’’

In addition, the Patient Protection and Affordable Care Act contains new health care provider conscience protections within health insurance exchanges. See Section 1303(b)(4) of the Act. See also Executive Order 13535, Ensuring Enforcement and Implementation of Abortion Restrictions in the Patient Protection and Affordable Care Act.

Recent Statutory Changes

HEOA change to Accreditation Text in 10 USC 1099b which protects religious mission 

See text in blue below to see the change that became effective August 14, 2008, and is geared toward protection of the IHE's stated mission, including religious mission. (note: entire text of 20 USC 1099b is not printed here.) See also the NAICU page on Accreditation and HEA.

1099b. Recognition of accrediting agency or association
(a) Criteria required

No accrediting agency or association may be determined by the Secretary to be a reliable authority as to the quality of education or training offered for the purposes of this chapter or for other Federal purposes, unless the agency or association meets criteria established by the Secretary pursuant to this section. The Secretary shall, after notice and opportunity for a hearing, establish criteria for such determinations. Such criteria shall include an appropriate measure or measures of student achievement. Such criteria shall require that-- 
(1) the accrediting agency or association shall be a State, regional, or national agency or association and shall demonstrate the ability and the experience to operate as an accrediting agency or association within the State, region, or nationally, as appropriate;
 

(2) such agency or association-- 

(A)(i) for the purpose of participation in programs under this chapter, has a voluntary membership of institutions of higher education and has as a principal purpose the accrediting of institutions of higher education; or

(ii) for the purpose of participation in other programs administered by the Department of Education or other Federal agencies, has a voluntary membership and has as its principal purpose the accrediting of institutions of higher education or programs;
 
(B) is a State agency approved by the Secretary for the purpose described in subparagraph (A); or
 
(C) is an agency or association that, for the purpose of determining eligibility for student assistance under this subchapter and part C of subchapter I of chapter 34 of Title 42, conducts accreditation through (i) a voluntary membership organization of individuals participating in a profession, or (ii) an agency or association which has as its principal purpose the accreditation of programs within institutions, which institutions are accredited by another agency or association recognized by the Secretary;
 
(3) if such agency or association is an agency or association described in--
 
(A) subparagraph (A)(i) of paragraph (2), then such agency or association is separate and independent, both administratively and financially of any related, associated, or affiliated trade association or membership organization;
 
(B) subparagraph (B) of paragraph (2), then such agency or association has been recognized by the Secretary on or before October 1, 1991; or
 
(C) subparagraph (C) of paragraph (2) and such agency or association has been recognized by the Secretary on or before October 1, 1991, then the Secretary may waive the requirement that such agency or association is separate and independent, both administratively and financially of any related, associated, or affiliated trade association or membership organization upon a demonstration that the existing relationship has not served to compromise the independence of its accreditation process;
 
(4)(A) such agency or association consistently applies and enforces standards that respect the stated mission of the institution of higher education, including religious missions, and that ensure that the courses or programs of instruction, training, or study offered by the institution of higher education, including distance education or correspondence courses or programs, are of sufficient quality to achieve, for the duration of the accreditation period, the stated objective for which the courses or the programs are offered; and

(B) if such agency or association has or seeks to include within its scope of recognition the evaluation of the quality of institutions or programs offering distance education or correspondence education, such agency or association shall, in addition to meeting the other requirements of this subpart, demonstrate to the Secretary that--
(i) the agency or association's standards effectively address the quality of an institution's distance education or correspondence education in the areas identified in paragraph (5), except that--
 

(I) the agency or association shall not be required to have separate standards, procedures, or policies for the evaluation of distance education or correspondence education institutions or programs in order to meet the requirements of this subparagraph; and

(II) in the case that the agency or association is recognized by the Secretary, the agency or association shall not be required to obtain the approval of the Secretary to expand its scope of accreditation to include distance education or correspondence education, provided that the agency or association notifies the Secretary in writing of the change in scope; and
 
(ii) the agency or association requires an institution that offers distance education or correspondence education to have processes through which the institution establishes that the student who registers in a distance education or correspondence education course or program is the same student who participates in and completes the program and receives the academic credit;

 

Executive Order 13279

Equal Protection of the Laws for Faith Based and Community Organizations 

This Executive Order signed by the President on Dec.12, 2002 insures equal protection for faith-based and community organizations administering social service programs supported with federal funds. Guidlines principles for federal agencies administering the programs are contained in the order, including the principle that no organization is to be discriminated against on the basis of religion or religious belief in the distribution of federal financial assistance under social service programs. Executive Order 11246 is amended by this Executive Order. The religious organization exemption that exists in EO 11246 is expanded to clarify that religious corporations, associations, educational institutions and societies that are federal contractors or subcontractors are allowed to exercise a preference in hiring for co-religionists. This exemption is the same as the religious exemption that exists in Title VII. As there has from time to time been confusion about the nature of the Title VII exemption, EO 13279 serves to clarify the breadth of the Title VII exemption.

 This order was amended by EO 13403

Selected Cases Under Religious Issues

 

 
 
updated 7/1/11 to add St. Xavier