Seminary Professor Unable to Sue for Racial Discrimination

Key point 2-04.1. Most courts have concluded that they are barred by the First Amendment guarantees of religious freedom and nonestablishment of religion from resolving challenges by dismissed clergy to the legal validity of their dismissals.

Key point 8-10.1. The civil courts have consistently ruled that the First Amendment prevents the civil courts from applying employment laws to the relationship between a church and a minister.

The Kentucky Supreme Court ruled that the "ministerial exception," which bars the civil courts from resolving employment discrimination claims between churches and clergy, prevented a seminary professor from suing his seminary for racial discrimination, but did not prevent him from suing the seminary for breach of contract. Founded in 1865, originally as the College of the Bible on the campus of Transylvania University, Lexington Theological Seminary is "an accredited graduate theological institution of the Christian Church (Disciples of Christ)." The stated mission of the Seminary is "to prepare faithful leaders for the church of Jesus Christ and, thus, to strengthen the church's participation in God's mission for the world." In executing its mission, the aim of the Seminary is "to prepare women and men of varied backgrounds and traditions for ordained and other forms of ministry." Consistent with this mission and the tenets of the Christian Church (Disciples of Christ), the Seminary is intentionally ecumenical with nearly half of its enrollment coming from other Christian denominations.

The Seminary's Faculty Handbook detailed the procedure for termination of tenured faculty. Proceedings to dismiss a tenured professor could only be instituted by the president, the dean, or a member of the faculty. "The only grounds for dismissal of a tenured faculty member are moral delinquency, unambiguous failure to perform the responsibilities outlined in this Handbook, or conduct detrimental to the Seminary." Employed on an annual probationary basis, non-tenured faculty members may only be dismissed for cause, as well.

The Seminary began experiencing severe financial problems in 2009 amidst a nationwide economic downturn. During the period of July 2007 to January 2009, the Seminary saw its endowment shrink from roughly $25 million to $16 million. At that time, the Seminary had 10 full-time professors, 21 other full-time staff members, and a number of part-time instructors. To survive this "tsunami of economic disasters," the Seminary decided to abolish a number of faculty and staff positions. The Board of Trustees approved eliminating tenured faculty. One of these was a tenured professor (the "plaintiff") who had taught at the seminary for 15 years. Before terminating his employment, the Seminary offered him a severance package which offered an additional year's employment with a year's salary, conditioned upon the release of all potential claims against the Seminary. The plaintiff declined the offer. The Seminary restructured its curriculum and mission in an attempt to weather the financial chaos, opting to "emphasize practical training for clergy in areas such as financial management, conflict resolution and the use of technology … rather than … theology and biblical studies."

Following his termination in 2009, the plaintiff sued the Seminary for breach of contract, breach of the implied duty of good faith and fair dealing, and discrimination based on race. The trial court dismissed all claims on the ground that they were barred by the "ministerial exception." A state appeals court agreed, and the plaintiff appealed to the state supreme court.

The ministerial exception
The court began its ruling by affirming the ministerial exception: "Simply stated, the ministerial exception is a judicially created principle whereby the secular courts have no competence to review the employment-related claims of ministers against their employing faith communities." The court noted that the ministerial exception has been applied to lay employees, seminary professors, hospital workers, press secretaries, musicians, and many others. It further noted that the United States Supreme Court, in a case unanimously affirming the ministerial exception in 2012, declined "to adopt a rigid formula for deciding when an employee qualifies as a minister." Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C., 132 S.Ct. 694 (2012). The Court concluded that a called teacher in a Lutheran school was a minister under the ministerial exception in light of "the formal title given her 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."

The plaintiff was a ministerial employee to whom the ministerial exception applied
In deciding whether the plaintiff was a ministerial employee, the court applied the four-factor test applied by the United States Supreme Court in the Hosanna-Tabor case:

1. the formal title given by the religious institution,
2. the substance reflected in that title,
3. her own use of the title, and
4. the important religious functions performed for the religious institution.

The court declined to "adopt a categorical rule regarding Seminary professors or any other class of individuals who may be considered ministers under the ministerial exception." But, it concluded that the plaintiff was a minister: "[The plaintiff] is not ordained … but that is not dispositive. Given his extensive involvement in the Seminary's mission, religious ceremonies, and the subject matter of his teaching, it is clear that he is a ministerial employee." The court pointed to the following facts:

• As a member of the faculty, the plaintiff was tasked with carrying out the mission of the Seminary to prepare students for the ministry of Jesus Christ.
• The plaintiff's teaching focused on "helping students understand what the basic socio-ethical issues are and the nature of the Christian (or Christ-like) response." Some of the courses he taught included "Introduction to Christian Social Ethics," "The Church and the Urban Poor," "The Cultural Context of Ministry," and "The Black Religious Experience in America."
• During his employment at the Seminary, the plaintiff participated in chapel services, convocations, faculty retreats, and other religious events. He preached on numerous occasions at both his own CME congregation and various Christian Church (Disciples of Christ) congregations.

The court concluded that the plaintiff "was closely connected to the tenets of the faith espoused by the Seminary and actively involved in the promotion of the Seminary's mission. As a professor at an ecumenical Seminary, instructing on Christian principles, he served as a representative of the Seminary's message. He has, on multiple occasions, served as the Seminary's official representative, ambassador, and voice to the faithful."

Discrimination claim
The court concluded that the ministerial exception barred the plaintiff's race discrimination claim: "In Hosanna-Tabor, the Supreme Court made clear that the ministerial exception bars employment discrimination suits. And, in addition, the pre-Hosanna-Tabor case law regarding the interplay between anti-discrimination statutes and the ministerial exception is clear: these claims are barred. As a result, the plaintiff's claim [of race discrimination] ends with the determination that he is a ministerial employee."

The court observed, "Employment discrimination laws require employers to meet certain fairness standards in hiring and firing employees. Enforcing these laws on religious institutions, possibly against the religious institution's sincerely held beliefs, goes to the core of the purpose behind the ministerial exception because the government would deprive the church of control over the selection of those who will personify its beliefs. A religious institution may hold beliefs that are discriminatory under a particular anti-discrimination statute and the ministerial exception acts to protect the religious freedom of those institutions no matter how distasteful society may find it or how strong the societal interest may be."

Breach of contract claim
The court ruled that the plaintiff could pursue his breach of contract claim against the Seminary since: "(1) the enforcement of the contractual arrangement between the Seminary and the plaintiff does not arouse concerns of government interference in the selection of ministers, and (2) the contract does not involve any matters of ecclesiastical concern that would otherwise bar the suit under the ecclesiastical abstention doctrine."

The court noted that "when deciding whether a claim is barred by the ministerial exception, it is important to remain mindful of the ministerial exception's underlying purpose: to allow religious institutions, free from government interference, to exercise freely their right to select who will present their faith tenets. Although state contract law does involve the governmental enforcement of restrictions on a religious institution's right or ability to select its ministers, those restrictions are not governmental restrictions. Simply put, the restrictions do not arise out of government involvement but, rather, from the parties to the contract, namely, the religious institution and its employee."

The court stressed that "we are not presented with a situation where the government is inappropriately meddling in the selection of who will minister to the congregation. Limits on a religious institution's ability to choose—or the criteria for choosing—who will minister to its faithful are not being foisted on the religious institution. The government had no role in setting the limits on how the Seminary's tenured professors may be terminated. Instead, this is a situation in which a religious institution has voluntarily circumscribed its own conduct, arguably in the form of a contractual agreement, and now that agreement, if found to exist, may be enforced according to its own terms. That cannot breach church autonomy. Arguably, instead, this exemplifies religious autonomy because religious institutions are free to set forth policies that align with their respective mission."

The court concluded:

The Seminary "willingly made a decision to offer tenure—a wholly secular concept—in exchange for professorial services. Providing substance to the offer of tenure, the Seminary explicitly stated in writing that it would only terminate a tenured professor on three grounds: (1) "moral delinquency," (2) "unambiguous failure to perform the responsibilities outlined in [the Faculty] Handbook," and (3) "conduct detrimental to the Seminary." Of course, under the First Amendment, and the ministerial exception for that matter, the Seminary enjoys the right to excuse ministers as it sees fit. But here, the Seminary circumscribed its right to excuse faculty, ministers or not. The Seminary agreed to only express its First Amendment right under limited conditions."

While the court permitted the plaintiff to pursue his breach of contract claim, it stressed that "reinstatement is an unavailable remedy because that would entail a secular court deciding who speaks for the church. That we cannot do."

What This Means For Churches:

This case is relevant for two reasons. First, the court applied a four-factor test, first announced by the United States Supreme Court in the Hosanna-Tabor case, in determining if a person is a "minister" to whom the ministerial exception applies.

Second, the court concluded that while the ministerial exception bars discrimination claims by current or dismissed ministers, it does not bar breach of contract claims. The court concluded that the provisions of the Seminary's Faculty Handbook pertaining to tenured positions was a "contract" between the plaintiff and Seminary, and the Seminary could be liable on the basis of breach of contract for violating its provisions. This, the court concluded, was not a matter of a civil court meddling in employment decisions between a Seminary and its faculty. Instead, it was simply a civil court enforcing the agreement privately entered into between the Seminary and plaintiff.

Not all courts will agree that breach of contract claims between churches and clergy are not barred by the ministerial exception. But, this possibility will exist in some states, which makes it imperative for church leaders to obtain legal review of employment handbooks and other contractual documents to ensure that they will not give rise to breach of contract claims that the civil courts may agree to adjudicate. Through careful drafting, this risk can be significantly reduced, if not eliminated. Kirby v. Lexington Theological Seminary, 426 S.W.3d 597 (Ky. 2014).