Schools

Legal Developments

Court: ADA Case Brought Against Religious School Allowed to Proceed

A federal court refused to dismiss a mother’s lawsuit, stating the school’s denominational ties—and possible exemption from the federal law—must be proven.

Richard R. Hammar, Attorney, CPA
Bio

Key Point 8-14.2 . The federal Americans with Disabilities Act (“ADA”) prohibits discrimination against disabled persons by privately owned places of public accommodation. The Act exempts religious organizations from this provision. Some states and cities have enacted laws prohibiting discrimination against disabled persons in some places of public accommodation, and these laws may apply to religious organizations.

A federal court in Louisiana ruled that a student with cerebral palsy could proceed with the lawsuit she brought against a religious school under the Americans with Disabilities Act (ADA), even though the ADA generally exempts religious organizations from its requirements.

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Plaintiff requested help with accommodations

A student with cerebral palsy and periventricular leukomalacia (PVL) (“Plaintiff”) attended the school for eight years, and then was home-schooled for the seventh grade during the COVID-19 pandemic. She then sought to again attend the school for the eighth grade.

During her previous attendance at the school, the Plaintiff said she received accommodations for her physical disabilities, including being accompanied every day by an aide compensated by her family. This aide helped her with daily activities, including navigating the hallways between classes, carrying her materials to and from classes, carrying her lunch tray, helping her cut her food, and assisting her in using the bathroom.

In addition to her physical limitations, the Plaintiff’s PVL has caused a brain injury that makes it difficult to retain and quickly recall math facts. Up through the sixth grade, the school accommodated this disability by allowing her to use a basic, four-function calculator during math classes.

During the seventh grade, the Plaintiff’s mother arranged for home-schooling because the Plaintiff’s cerebral palsy made her exceptionally vulnerable to COVID-19, and no vaccine was available at the time.

When her mother reached out to the school to make arrangements for the eighth grade, officials informed her that the Plaintiff would have to re-apply for admission.

Officials also said the Plaintiff would need to take the Independent School Entrance Exam (“ISEE”)—and without the use of a calculator because the school eliminated calculator use as an accommodation for any disabled students—and the Plaintiff had previously been allowed to use one only because she was “grandfathered in.”

Administrators for the ISEE specifically authorize the calculator as an accommodation for persons with disabilities such as the Plaintiff’s. When this fact was brought to the school’s attention, officials said the school would permit the Plaintiff to use it for the ISEE test, but if admitted, she could not use it for her future course work or tests at the school.

Plaintiff’s mother alleged that the school did not want to provide physical accommodations for her disabled daughter and denied the calculator accommodation to make it impossible for her to attend and succeed there.

The Plaintiff subsequently filed a lawsuit under the ADA in a federal court in Louisiana.

Learn more about how public accommodations statutes and court decisions across the country do—or don’t—affect churches in Church Law & Tax’s 50-State Public Accommodations Laws Report.

School: Religious affiliation exempts it from ADA

The school asked the court to dismiss the lawsuit, arguing that because it is a religious institution, it is not subject to the ADA. As a part of the request, the school asked the court to take “judicial notice” of the school’s website, which the school believes demonstrates its affiliations with the Episcopal Church.

Under Rule 201 of the Federal Rules of Evidence, a court can take judicial notice of “a fact that is not subject to reasonable dispute.”

The court first noted the way the religious exemption works under the ADA:

Title III of the ADA provides that “no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” Private elementary and secondary schools are encompassed by the statute. However, religious schools are exempted from the ADA. … The religious exemption is read broadly:

‘The ADA’s exemption of religious organizations and religious entities controlled by religious organizations is very broad, encompassing a wide variety of situations. Religious organizations and entities controlled by religious organizations have no obligations under the ADA. Even when a religious organization carries out activities that would otherwise make it a public accommodation, the religious organization is exempt from ADA coverage.

Thus, if a church itself operates a day care center, a nursing home, a private school, or a diocesan school system, the operations of the center, home, school, or schools would not be subject to the requirements of the ADA. … The religious entity would not lose its exemption merely because the services provided were open to the general public.

The test is whether the church or other religious organization operates the public accommodation, not which individuals receive the public accommodation’s service.’

The court then turned its attention to the school’s request for judicial notice about its religious affiliation, which would then presumably make it exempt from the ADA.

The central issue for establishing the religious exemption in this case, according to the court, “is whether the face of the complaint establishes that (the school) is operated by the Episcopal Church.”

The court concluded:

A review of the complaint demonstrates that that fact is not established on its face. Seemingly acknowledging this, (the school) requests the court to take “judicial notice” of its website, which it contends reflects its close connection to the Episcopal church. … The court declines to take judicial notice of facts contained in the website because the defendant’s website does not meet the reliability standards required [for judicial notice].

In large part a marketing and recruitment tool, it is not in the nature of the official government or agency websites of which courts typically take judicial notice. Accordingly, (the school) is not entitled to dismissal of the ADA claim.

The types of judicial notice allowed under the rules of evidence instead must be ones “generally known” within its jurisdiction or ones “accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”

The school “seeks to introduce the website to establish a fact which is in issue — whether (the school) is operated by a religious entity — which is not resolved on the face of the complaint. Accordingly, (the school) is not entitled to dismissal of the ADA claim.”

What this means for churches

Title III of the ADA prohibits discrimination against disabled persons by privately owned places of public accommodation. The ADA states that “no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.”

The ADA defines the term public accommodation to include 12 types of facilities, including auditoriums or other places of public gathering, private schools (including nursery, elementary, secondary, undergraduate, and postgraduate), and day care centers.

The ADA defines discrimination in public accommodations broadly to include denying an individual the opportunity to use the accommodations on the basis of a disability, and failure to make reasonable modifications in policies, practices, or procedures, if necessary to make the accommodations available to disabled individuals.

The ADA specifies that its public accommodation provisions “shall not apply to … religious organizations or entities controlled by religious organizations, including places of worship.” Accordingly, most types of religious organizations are excluded from the prohibition of discrimination in places of public accommodation.

While religious organizations are exempt from the public accommodation provisions of ADA, some may still consider making certain accessibility-related changes. For more information, see Church Law & Tax’s article, “Preparing the Way.”

The House Report to the ADA at the time of the law’s passage specifies that “places of worship and schools controlled by religious organizations are among those organizations and entities which fall within this exemption.”

The House Report further specifies that “activities conducted by a religious organization or an entity controlled by a religious organization on its own property, which are open to nonmembers of that organization or entity are included in this exemption.”

The federal court’s decision in Louisiana does not necessarily mean the school is not exempt from the ADA, although the decision certainly creates such a possibility.

Instead, the school now must go further into the litigation in order to provide evidence establishing facts that show it is operated by the Episcopal Church. Churches that operate schools, as well as religious schools with ties to denominations, should consult with qualified local legal counsel about the specific ways to publicly demonstrate their religious affiliations beyond merely marketing and recruitment tools, such as websites and brochures.

It is also important to note that, while religious organizations are not subject to the ADA’s public accommodation provisions, they still may be subject to similar provisions under state or local law. Local legal counsel can help determine the existence of religious exemptions, and the steps needed to comply with the laws in the event no exemptions exist.

E.R. v. St. Martin’s Episcopal School, 2022 WL 558168 (E.D. La. 2022)

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Legal Developments

‘Ecclesiastical Abstention’ Fails to Prevent School Employee’s Discrimination Lawsuit

The “ecclesiastical abstention doctrine,” which bars the courts from resolving issues of internal church governance, did not prevent a church’s preschool director from suing the church for disability discrimination.

Richard R. Hammar, Attorney, CPA
Bio


Key point 9-07. The First Amendment allows civil courts to resolve internal church disputes so long as they can do so without interpreting doctrine or polity.

A Kentucky appeals court ruled that the “ecclesiastical abstention doctrine,” which bars the courts from resolving issues of internal church governance, did not prevent a church’s preschool director from suing the church for disability discrimination.

In 2000, a woman (the “plaintiff”) was named director of a preschool and daycare center operated by a church. In her role as director, the plaintiff oversaw operation of the center on a daily basis; she was responsible for purchasing food, classroom materials, and toys using an account set up specifically for the center and separate from the church’s operating accounts; and she managed the center’s employees, including all scheduling, discipline, training, and payroll tasks in accordance with the center’s employee handbook, which was written separately from any church directive or policy.

As a condition for receiving federal education funds, the center was prohibited from posting religious materials and artifacts in the classrooms. Throughout her tenure, the plaintiff had no association with the church, had no religious duties, and made no religious decisions of any kind.

Beginning in June of 2009, the plaintiff was supervised by the church’s newly appointed head pastor. The pastor did not attend functions, teach, or have any connection with the center apart from his supervisory role over the church. He indicated that the plaintiff ran the center “in isolation” from the church, did not have a religious education, was not a minister, did not teach the Methodist faith, and was not involved with the church’s governance or any church committee.

On December 31, 2009, the plaintiff’s husband passed away. The church permitted her to take an extended leave of absence to grieve for her husband. She struggled with bouts of depression and anxiety. When she returned to the center, she initially worked part-time, occasionally arriving late, leaving early, or missing whole days. The church continued paying her full-time salary. Between February and November 2010, the pastor and an associate pastor often spoke with the plaintiff regarding her absences, tardiness, and other issues stemming from her depression and anxiety. No disciplinary actions were instituted or documented.

On November 9, 2010, the pastor summoned the plaintiff to a meeting regarding an injury sustained by one of the center’s students the previous day. Following the meeting, the plaintiff was placed on suspension. This was the first adverse employment action against the plaintiff in her 20 years with the center. On November 15, 2010, the pastor signed a letter on behalf of the church terminating the plaintiff’s employment. As reasons for her firing, the church alleged the plaintiff had forced children to go through a drain pipe resulting in injury to a child, frequently yelling at the children, physically grabbing and poking the children, and leaving the children unsupervised. Believing these allegations were demonstrably false and merely pretexts for her dismissal, on January 25, 2011, the plaintiff sued the church, alleging disability discrimination in violation of state law. At trial, the jury found in favor of the plaintiff and awarded her damages for lost wages and emotional distress. In addition, the plaintiff’s motion for attorney’s fees was granted.

The church appealed the decision on two grounds. First, it claimed the trial court erred in not dismissing the case on the basis of the ecclesiastical abstention doctrine, which generally bars the civil courts from interfering with internal church disputes pertaining to issues of faith, polity, and doctrine. And second, it claimed the trial court erred in failing to dismiss the case on the basis of the church’s discovery following the plaintiff’s termination of misconduct that would have warranted her termination had it been known.

The appellate court ruled that the ecclesiastical abstention doctrine did not require a dismissal of the plaintiff’s lawsuit:

That a church is a party to a suit does not immediately deprive our courts of the ability to adjudicate the dispute. The mere inclusion of a religious organization as a party to a suit does not necessarily implicate the ecclesiastical-abstention doctrine. Secular courts are not prohibited from hearing cases involving religious organizations where the dispute can be resolved by the application of neutral principles of secular law. We reiterate that the intent of ecclesiastical abstention is not to render civil and property rights unenforceable in the civil court simply because the parties involved might be the church and members, officers, or the ministry of the church.

The court noted that the related “ministerial exception” applies to “employment claims—especially discrimination claims—asserted against a religious institutional employer by an employee who is directly involved in promulgating and espousing the tenets of the employer’s faith.”

The court concluded that neither doctrine applied to this case:

[This] case involves nothing more than an employment termination dispute which can be easily and fully resolved by resort to neutral principles of secular law. No internal church governance is at issue. Further, as previously stated, the church utterly failed to present an adequate basis upon which the trial court could rely to rule in its favor. Even today, no evidence exists that the daycare center was a religious institution nor that the plaintiff was involved in promulgating and espousing the tenets of the employer’s faith. In fact, the proof is just the opposite—the two entities were separate. The church’s tardy attempt to support its position is unavailing. Timing is everything, and the church has been late to the ball since it first received the invitation. We will not accept the request to save it from its own mistakes. The trial court did not err in denying the motion to dismiss.

What this means for churches

This case illustrates what many courts call the “ecclesiastical abstention” doctrine. Under this doctrine the civil courts are barred by the First Amendment religion clauses from resolving most internal church disputes. While not using the terminology “ecclesiastical abstention,” the United States Supreme Court described the basic principle in a 1976 ruling in which it noted that the civil courts lack jurisdiction over internal church disputes that are “strictly and purely ecclesiastical in [their] character … a matter which concerns theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them.” Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976).

As this case demonstrates, the “ecclesiastical abstention” doctrine does not preclude civil courts from resolving all internal church disputes. While the courts may not exercise jurisdiction “over matters concerning theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them,” many courts have ruled that they can resolve internal church disputes so long as no inquiry into church doctrine is involved. United Methodist Church v. the plaintiff, 2018 WL 480532 (Ky. App. 2018).

Legal Developments

School Not Responsible for Student’s Suicide

Court ruled that a parochial school was not responsible for the suicide of a freshman student who was a victim of relentless bullying.

Richard R. Hammar, Attorney, CPA
Bio


Key point 10-11. A church may be legally responsible on the basis of negligent supervision for injuries resulting from a failure to exercise adequate supervision of its programs and activities.

Key point 10-17.1. Punitive damages are monetary damages awarded by a jury “in addition to compensation for a loss sustained, in order to punish, and make an example of, the wrongdoer.” They are awarded when a person’s conduct is reprehensible and outrageous. Most church insurance policies exclude punitive damages. This means that a jury award of punitive damages represents an uninsured risk.

Editor’s note: The following Recent Development contains offensive slurs regarding sexual orientation. These details are facts from the case and are included here to help church leaders understand both the nature and severity of the situation, and the types of factors that can contribute to potential litigation.

The federal Court of Claims ruled that a parochial school was not responsible for the suicide of a freshman student who was a victim of relentless bullying.

In his freshman year as a student at a Catholic high school, a freshman student (the “victim”) was allegedly abused and harassed while on campus. He was called “faggot,” “fag,” “gay,” and suffered other sexually oriented and derogatory verbal abuse. The victim’s mother identified three male students as primarily responsible for the abusive behavior, which included advice for the victim to “go home and kill himself.” Students also hit the victim with belts. Tragically, the victim later committed suicide.

The victim’s mother (the “plaintiff”) sued the school, claiming that it was responsible for her son’s death because of its failure to enforce its own anti-bullying policy. The trial court granted the school’s motion to dismiss all claims, concluding that the plaintiff had failed to demonstrate that the school was negligent, and failed to show that she was entitled to punitive damages. The plaintiff appealed.

The appeals court agreed with the trial court’s dismissal of the lawsuit. It noted that a claim of negligence requires proof of the following elements: (1) a duty of care owed by the defendant to the plaintiff; (2) conduct by the defendant falling below the standard of care amounting to a breach of that duty; (3) an injury or loss; and (4) the injury or loss was reasonably foreseeable “by a person of ordinary intelligence and prudence.” The court concluded that the victim’s suicide was not reasonably foreseeable and so the school was not responsible for it:

If a school is aware of a student being bullied but does nothing to prevent the bullying, it is reasonably foreseeable that the victim of the bullying might resort to self-harm, even suicide… . Thus, to allege successfully that the victim’s suicide was foreseeable [the plaintiff’s] complaint should have included facts alleging that the school was aware of the abuse and harassment the victim experienced. The complaint fails to make such allegations. The fact that the students responsible for bullying him had a history of this behavior does not establish the school’s knowledge that they continued to be bullies or that the victim was their new victim. The plaintiff provides no facts that any teacher saw or heard the bullying, that [she or her son] told anyone at the school what was happening, or any other fact to support an inference that the school had any knowledge of the situation.

A school with no knowledge of bullying has no reason to believe the anti-bullying policy needs enforcement, let alone that failure to enforce the policy may result in a student’s death. Therefore, we cannot conclude that the harm giving rise to the lawsuit could have reasonably been foreseen or anticipated by a person of ordinary intelligence and prudence.

The appeals court also agreed with the trial court’s rejection of punitive damages:

Under state law [the plaintiff] would be eligible for punitive damages only if the district court found that the school acted recklessly. A person acts recklessly when the person is aware of, but consciously disregards, a substantial and unjustifiable risk of such a nature that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances. The trial court found that the plaintiff failed to allege facts showing that the school was aware the victim might try to hurt himself, or that it was aware but consciously disregarded the risk, and therefore decided punitive damages were not appropriate. The plaintiff points to no facts explaining why the decision to deny punitive damages was an abuse of the trial court’s discretion, beyond claiming that the court’s determination on the question of recklessness was incorrect. This claim was properly dismissed.

What this means for churches

This case is instructive for the following reasons. First, it is one of the few cases to address the liability of a religious organization for bullying activities. The court concluded that a religious organization is not responsible for deaths or injuries caused by bullying unless it was aware of the bullying activities that led to the injury or death and failed to intervene. Second, the court concluded that punitive damages were not appropriate in this case, even if the school had been negligent, since its conduct did not meet the high threshold of punitive damages—reckless behavior or gross negligence.

The implication is clear. Church leaders that know about bullying activities have a duty to intervene, and failure to do so may lead to liability based on negligence, and, possibly, punitive damages. It should be noted that punitive damages are monetary damages awarded by a jury “in addition to compensation for a loss sustained, in order to punish, and make an example of, the wrongdoer.” They are awarded when a person’s conduct is reprehensible and outrageous. Most church insurance policies exclude punitive damages. This means that a jury award of punitive damages represents an uninsured risk. Tumminello v. High School, 678 Fed.Appx. 281 (6th Cir. 2017).

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Legal Developments

Court Says Ecclesiastical Abstention Prevents Ruling on Student’s Denied Admission to Religious School

Church Law and Tax Report Court Says Ecclesiastical Abstention Prevents Ruling on Student’s Denied Admission

Church Law and Tax Report

Court Says Ecclesiastical Abstention Prevents Ruling on Student’s Denied Admission to Religious School

Key point 9-07. The First Amendment allows civil courts to resolve internal church disputes so long as they can do so without interpreting doctrine or polity.

A Michigan court ruled that it was barred by the “ecclesiastical abstention” doctrine from resolving a claim that a church school committed unlawful discrimination in denying a disabled student admission.An adolescent female (the “plaintiff”) attended seventh and eighth grades at a church-affiliated private school. She claimed that she had been assured by school personnel that if she enrolled at the school for seventh and eighth grade, she would be guaranteed placement in ninth grade. However, plaintiff was denied admission to ninth grade. Some two months after being denied admission, the plaintiff was diagnosed with certain learning disabilities. Thereafter, the plaintiff sued the school for discriminating against her based on her disability. She alleged that despite being “long aware that she had a learning disability,” the school denied her admission to ninth grade and “consistently relied upon her learning disability as a justification” for doing so.

The First Amendment allows civil courts to resolve internal church disputes so long as they can do so without interpreting doctrine or polity.

The school argued that the civil courts lack subject-matter jurisdiction over this claim pursuant to the protections of the First Amendment. The trial court disagreed, and the school appealed. The appeals court observed: “It is well settled that courts, both federal and state, are severely circumscribed by the [First Amendment guarantee of religious freedom] in the resolution of disputes between a church and its members,” and that “whenever the court must stray into questions of religious doctrine or ecclesiastical polity the court loses jurisdiction … . This limitation on civil court jurisdiction is referred to as the ‘ecclesiastical abstention doctrine.'”

The court quoted with approval from an earlier case in which three families sued a parochial school after their children were denied admission. Dlaikan v. Roodeen, 522 N.W.2d 719 (Mich. App. 1994). The court in the previous case concluded that review of the school’s admission decision fell outside the jurisdiction of civil courts, explaining:

When the claim involves the provision of the very services (or as here refusal to provide these services) for which the organization enjoys First Amendment protection, then any claimed contract for such services likely involves its ecclesiastical policies, outside the purview of civil law. In this regard there can be no distinction between a church providing a liturgical service in its sanctuary and providing education imbued with its religious doctrine in its parochial school. A civil court should avoid foray into a “property dispute” regarding admission to a church’s religious or educational activities, the essence of its constitutionality protected function. To do so is to set foot on the proverbial slippery slope toward entanglement in matters of doctrine or ecclesiastical polity.

The Dlaikan court explained that some activity by an ecclesiastical organization may be governed by civil law alone, such as “entering into a contract to buy or sell property or interact some other way with the secular world.” However, claims regarding admission to a church school were “so entangled in questions of religious doctrine or ecclesiastical policy that the civil courts lack jurisdiction to hear them.”

The Michigan court agreed with the previous case:

Here, as in Dlaikan, the plaintiff is suing a parochial school after she was denied admission. Thus, the claim, whether it is premised on a breach of contract as in Dlaikan or disability discrimination as is the case here, “involves the provision of the very services (or as here refusal to provide these services) for which the organization enjoys First Amendment protection.” Pursuant to Dlaikan, “a civil court should avoid foray into a ‘property dispute’ regarding admission to a church’s religious or education activities.”

What This Means For Churches:

This is one of the few cases to address the application of the ecclesiastical abstention doctrine to admissions decisions by church-affiliated schools. According to this court, the civil courts cannot resolve claims of disability discrimination by students denied admission at a church school. Winkler v. Marist Fathers, 2015 WL 7079054 (Mich. App. 2015).

Legal Developments

Pennsylvania Teacher Granted Unemployment

Court rules that teacher terminated from church-affiliated school is eligible for unemployment benefits.

Richard R. Hammar, Attorney, CPA
Bio

Key point. Employees of churches and church-affiliated schools are ineligible for unemployment benefits in most states.

A Pennsylvania court ruled that a terminated employee of a church-affiliated school was eligible for unemployment benefits since her employment was not exempt from coverage.

A common question for any church that operates a school or preschool is the application of state unemployment laws to its employees. Are employees entitled to unemployment benefits if they resign or are terminated? This question was addressed by a Pennsylvania court. An assistant (the "plaintiff") to the principal of a religious school was terminated, and she applied for unemployment compensation benefits under state law. A state agency determined that she was ineligible for benefits because she did not have sufficient wages entitling her to benefits. In reaching this conclusion, the agency excluded wages from her employment with the school since it considered such employment to be excluded from the definition of "employment" under the unemployment compensation law on the basis of the following exemption:

Service performed in the employ of (i) a church or convention or association of churches or (ii) an organization which is operated primarily for religious purposes and which is operated, supervised, controlled or principally supported by a church or convention or association of churches.

The plaintiff appealed this ruling to a state unemployment compensation board of review, which reversed the agency's determination that the plaintiff's services were exempt from the definition of covered employment under the unemployment compensation law. The board cited the following facts that had been established in this dispute:

The board determined that the school is a nonprofit organization legally separate from its founder (the church), and operated primarily for educational purposes. The board also found that the school received no funding from the church, and, even though it rented a facility from the church when the plaintiff began employment, the school later purchased its own facility. The board concluded that, based on these circumstances, the school did not constitute a church or convention or association of churches or an organization that is operated primarily for religious purposes and that is operated, supervised, controlled or primarily supported by a church, or convention or association of churches. As a result, services performed by the plaintiff constituted covered employment, and wages earned for the school were to be considered in determining financial eligibility for unemployment benefits. The school appealed to the civil courts. The Commonwealth Court of Pennsylvania affirmed the board's determination that the plaintiff's employment with the school was covered employment under the unemployment compensation law.

The court quoted the above-cited exemption of services performed for religious organizations from the definition of "employment" in determining eligibility for unemployment benefits, and concluded that it did apply to the school in this case:

Here, the record … includes little evidence of the extent to which the religious underpinnings pervade the curriculum. Instead, it appears that the board's factual finding that the school is "operated primarily for educational purposes with a strong religious influence" is almost a verbatim quote from school's witness. Unfortunately, the employer's witness provided nothing further of substance. Accordingly, this case comes down to the board's fact finding …. We give primacy to the board's finding that the school "operated primarily for educational purposes." Therefore, we conclude that the board did not err in determining that the plaintiff's employment is not exempt from coverage under the Law because the school does not operate primarily for religious purposes based on the Board's findings. Imani Christian Academy v. Unemployment Compensation Board of Review, 42 A.3d 1171 (Pa. Common. 2012).

Legal Developments

Invasion of Privacy

Court rules that school’s sale of a recorded school play does not invade students’ privacy.

Richard R. Hammar, Attorney, CPA
Bio

Key point 4-04. Many states recognize "invasion of privacy" as a basis for liability. Invasion of privacy may consist of any one or more the following: (1) public disclosure of private facts; (2) use of another person's name or likeness; (3) placing someone in a "false light" in the public eye; or (4) intruding upon another's seclusion.

A New Jersey court ruled that a school that sold videos of a student play did not invade the privacy of the students.

A private school provided education for students in kindergarten through eighth grade. At the beginning of each school year, the parents executed and submitted forms to the school consenting to the videotaping, photographing or sound recording of their children "in classroom, playground, auditorium activities and productions." The form provided in part that "this consent is given with the knowledge that these might appear in the media or be used in conjunction with exhibits, publicity and public relations."

The school sponsored a play in which 80 students participated. The play lasted one hour. On the night of the play, an announcement was made that individuals could purchase copies of the videotape through the PTA. One of the student actors ("Emily") saw the videotape of the performance, but did not want a copy because she had tripped during the performance.

Emily's mother sued the school for invasion of privacy as a result of the use of her daughter's performance for commercial gain and the "mental anguish" that she and Emily had suffered as a result of the sale of the videos. She also claimed that the school had "exploited" the students, and that it was her obligation as a parent to protect students from what could happen in the future. She also noted that she did not want the tape "out there" in case Emily "became older and got a name for herself" because it was not one of her best performances.

The trial court dismissed the invasion of privacy claim on the ground that the school acted with "a charitable, rather than commercial purpose." The mother appealed.

A state appeals court noted that invasion of privacy "encompasses four distinct kinds of invasion of four different interests of the plaintiff." These include:

These four separate kinds of invasion of privacy "have almost nothing in common except that each represents an interference with the right of the plaintiff to be left alone."

Appropriation of another's likeness for commercial gain

In this case, the mother asserted that the school had committed the fourth kind of invasion of privacy—the appropriation of her daughter's likeness for commercial gain as a result of the sale of the videotapes of the school play. The court described this kind of invasion of privacy as follows:

One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his [or her] privacy." Restatement (Second) of Torts § 652C. Accordingly, to establish a case for invasion of privacy by appropriation of likeness, a plaintiff must establish: (1) the defendant appropriated the plaintiff's likeness, (2) without the plaintiff's consent, (3) for the defendant's use or benefit, and (4) damage … [The courts] have consistently required plaintiffs to show that defendants received a commercial benefit through the unauthorized use of plaintiff's likeness.

The court rejected the mother's claim that all she had to establish to prevail on her invasion of privacy claim was mental anguish over the videotaping of her daughter's play. Instead, she was required to show that the school used Emily's likeness for a commercial purpose. The mere act of recording the school play was not enough to establish an appropriation of likeness claim.

"Incidental" use of another's image

The court noted that "there is no appropriation of likeness when the use of an individual's image is merely 'incidental' to the total presentation." In other words, the school's sale of recordings of the play could not amount to an appropriation of Emily's likeness for commercial gain unless that gain was directly associated with Emily's likeness. The fact that she was one of 80 students depicted on the recording, and that few if any persons purchased the video because of her likeness, defeated any invasion of privacy claim.

The court rejected the mother's claim that every unauthorized recording amounts to an unlawful appropriation of another's likeness. The court concluded:

The record is devoid of any evidence that the school used Emily's likeness to obtain a commercial or trade benefit, or that her personal appearance in the play was used to any greater degree than other students in the performance. Nor did the mother produce any evidence to show how she or Emily was damaged as a result of the videotaping. The mother alluded to the possibility that the tape could hurt Emily in the future. However, she cites no legal authority to support her apparent position that the damage element can be satisfied on such contingent grounds.

Because the mother failed to establish that the school used Emily's image in a manner that furthered a commercial or trade purpose, that Emily's likeness was used in anything more than in an incidental manner, and that she was damaged by the school's conduct, we affirm the trial court's dismissal of this case.

What this means for churches

This case is of special relevance to churches, since so many churches publish images of members in pictorial directories, brochures, slides, or on web sites. As this case illustrates, such photos may expose a church to invasion of privacy claims. The use of someone's likeness without permission has been deemed to be an invasion of privacy by some courts. This risk goes way up if (1) the image is used for commercial purposes (in a money making venture, even if by a nonprofit entity), or (2) you use the image in connection with demeaning text (for example, an image of an adolescent in an article on victims of child abuse).

If neither of these two factors is present, then the risk of invasion of privacy is reduced significantly, but not eliminated. A church can easily address this by obtaining express or implied consent. Express consent is written consent by a parent. Implied consent may occur if a church, for example, inserts notices in the church bulletin or newsletter a few times each year advising members that the church will use candid photos of various church activities on its website from time to time, and members not wanting their photos depicted (or those of their children) should so inform the church office. The church office can then create a list of persons whose photos are not to be displayed. However, any photo of children should contain no personally identifiable information.

Another legal risk associated with the use of images of church members is the posting of images of minors on a church's website with personally identifiable information. This becomes globally circulated among the pedophile community, and allows child molesters to solicit and seduce these children. Jeffries v. Whitney E. Houston Academy 2009 WL 2136174 (N.J. Super.A.D. 2009).

Legal Developments

Church Preschool Sued for Failing to Accommodate Autistic Child

Seek legal counsel before deciding to exclude a disabled child from a school or preschool.

Richard R. Hammar, Attorney, CPA
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Church Law & Tax Report

Church Preschool Sued for Failing to Accommodate Autistic Child

Seek legal counsel before deciding to exclude a disabled child from a school or preschool.

Richard R. Hammar, J.D., LL.M., CPA

Key point 8-14.2. The federal Americans with Disabilities Act prohibits discrimination against disabled persons by privately-owned places of public accommodation. The Act exempts religious organizations from this provision. Some states and cities have enacted laws prohibiting discrimination against disabled persons in some places of public accommodation, and these laws may apply to religious organizations.

A federal court in Mississippi ruled that a church did not violate the Americans with Disabilities Act by failing to accommodate an autistic child in its preschool program, but may have violated the federal Rehabilitation Act. From the time he was fifteen months old until age four, a child was enrolled in a church preschool. When he was three years old, the child was diagnosed as developmentally delayed, and shortly before he turned four he was diagnosed as autistic. At some point following the autism diagnosis the church informed the boy’s mother (the “plaintiff”) that the school and its teachers were not qualified, trained or equipped to educate the child and that he therefore would not be allowed to re-enroll for the following school year. The plaintiff withdrew her son from the preschool and enrolled him in a preschool program at a public elementary school. The plaintiff sued the church on several grounds, including:

The church asked the court to dismiss all of the plaintiff’s claims.

American with Disabilities Act (ADA)

Title III of the ADA prohibits discrimination “on the basis of disability in the full and equal enjoyment of the … accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” Places of public accommodation under the ADA include schools and preschools. However, the ADA exempts “religious organizations or entities controlled by religious organizations, including places of worship,” from the ADA’s public accommodation protections.

The plaintiff conceded that the church was a religious organization, but insisted that the exemption did not apply to it because it failed to plead the exemption as an “affirmative defense” in its answer to the plaintiff’s lawsuit. Generally, affirmative defenses are waived if not asserted in an answer to a lawsuit. The court acknowledged that “the courts have consistently held that statutory exemptions, particularly from remedial statutes, must be pled as affirmative defenses.” However, it added that a failure to plead an affirmative defense in answering a lawsuit will not always lead to a wavier of the defense. It quoted from a federal appeals court ruling:

While it is true that failure to [plead an affirmative defense] leads to waiver, there is some play in the joints. A defendant must plead an affirmative defense with enough specificity or factual particularity to give the plaintiff fair notice of the defense that is being advanced. The concern is that a defendant should not be permitted to lie behind a log and ambush a plaintiff with an unexpected defense. Where the [affirmative defense] is raised in the trial court in a manner that does not result in unfair surprise, however, technical failure to [plead an affirmative defense] is not fatal. More specifically, a defendant does not waive an affirmative defense if it is raised at a pragmatically sufficient time, and [the plaintiff] was not prejudiced in its ability to respond. Passa v. City of Columbus, 2007 WL 3125130, 5 (S.D. Ohio 2007).

The court, in dismissing the ADA claim, ruled that there was no unfair surprise or prejudice to the plaintiff, since she was well aware that she was suing a church, and that churches are clearly exempted from the public accommodations provisions of the ADA.

The Rehabilitation Act

Plaintiff also sued the church under Section 504 of the Rehabilitation Act based on its refusal to re-enroll her son for the succeeding school year once it learned that he had been diagnosed with autism. She contends the refusal to accommodate her son’s autism constituted discrimination in violation of the Rehabilitation Act.

Section 504 of the Rehabilitation Act states: “No otherwise qualified individual with a disability in the United States … shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” “Program or activity” is defined to include the operations of a private organization “which is principally engaged in the business of providing education.”

The church asked the court to dismiss the Rehabilitation Act claim on the ground that it did not receive any federal financial assistance and therefore was not covered by the Act. The plaintiff claimed that the church was receiving federal funds by virtue of the fact that her son’s tuition was paid, in part, by a child care certificate issued pursuant to a federally-funded subsidy program. The church countered that the child care certificate program, though partially federally funded, was administered by the state for the benefit of low-income families, and that the recipient of federal funds was therefore the state, or ultimately, the family that received the assistance. But the church itself was not a direct recipient of federal financial assistance and therefore it was not subject to the Rehabilitation Act. The court disagreed:

There is no question but that [the church] did receive federal funds indirectly in the form of vouchers or certificates which paid a portion of [the plaintiff’s] tuition payments. An entity that does not receive federal financial assistance directly may nevertheless be covered by the Rehabilitation Act if it receives federal financial assistance indirectly …. However, that an entity merely indirectly “benefits” from federal aid, or is “inextricably intertwined” with the actual recipient, is not sufficient to support coverage of the Act ….

Here, the parties are at odds over whether the church was merely enjoying indirectly the benefits of federal assistance to plaintiff, in which case it did not receive federal financial assistance within the meaning of the Rehabilitation Act, or whether the church is itself an intended recipient of the subject federal funds, in which case it is a recipient of federal funds and therefore subject to the requirements of the Act.

The court concluded that the church as the child care provider “did not merely benefit economically from the financial assistance provided the families, but in the court’s opinion, was an intended recipient itself, particularly considering that a purpose of the [federal assistance] was to improve the quantity and quality of child care available to low income families.” As a result, the court rejected the church’s request to dismiss the plaintiff’s Rehabilitation Act claim.

Breach of Contract

The gist of plaintiff’s breach of contract claim was that the church, with full knowledge of her son’s disability, promised and assured her that it was equipped, trained and qualified to provide the educational services the child required, and promised to do all that was necessary to provide him with an appropriate education for his disability. She claimed that on the basis of the church’s promises and assurances, she made the decision to keep her son at the church’s preschool instead of accepting the free public education to which her son was entitled under federal law. But, she claimed, the church failed to live up to its promise to plaintiff and ultimately admitted that it was not capable of providing the educational services it promised to provide her son. Plaintiff claims that she and her son were entitled to be compensated for these breaches.

The court rejected the church’s request to dismiss the breach of contract claim. It concluded:

It appears the only promise or representation made to plaintiff was that the school would provide a teacher for her son who had experience working with children like him. In fact, the school did provide a teacher who had experience working with children like the plaintiff’s son. And according to plaintiff’s testimony, her son made great progress during the time she worked with him. In plaintiff’s words, this teacher, Ms. Watkins, was “like a miracle.” The problem arose, evidently, when Ms. Watkins left the school …. Accepting as true plaintiff’s testimony that defendant promised it would hire/ provide a teacher for her son so that he could remain enrolled at the preschool, then arguably, it was in breach of such alleged agreement for that limited period of time following Ms. Watkins’s departure when the church failed to provide an experienced teacher. Accordingly, the court will deny the church’s [motion to dismiss this claim].

Application. This case is significant for several reasons, including the following:

First, the case illustrates that the ADA’s prohibition of disability discrimination by places of public accommodation does not apply to religious organizations. Note that the ADA also prohibits discrimination by covered employers against certain disabled persons. Religious organizations are not automatically exempt from this prohibition, though they are permitted in some cases to prefer members of their own faith in making employment decisions.

Second, this case demonstrates the importance of pleading “affirmative defenses” in answers to lawsuits. Failure to do so may lead to a waiver of otherwise viable defenses.

Third, the court adopted a broad definition of “federal financial assistance” making it more likely that the church violated the federal Rehabilitation Act by failing to adequately accommodate the child’s autism. The court concluded that the Act applies to indirect as well as direct recipients of federal financial aid.

Fourth, the court’s ruling underscores the importance of verbal representations made by church schools regarding the services they provide. A failure to comply with any such representations may lead to liability based on breach of contract.

Given these complexities, churches that operate a school or preschool should obtain legal counsel before reaching a decision to exclude a child based on a disability. Spann ex rel. Hopkins v. Word of Faith Christian Center Church, 589 F.Supp.2d 759 (S.D. Miss. 2008).

This Recent Development first appeared in Church Law & Tax Report, November/December 2009.

Legal Developments

Church Preschool Sued for Spanking Incident

Be careful to supervise employees who work with small children.

Richard R. Hammar, Attorney, CPA
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Church Law & Tax Report

Church Preschool Sued for Spanking Incident

Be careful to supervise employees who work with small children.

Richard R. Hammar, J.D., LL.M., CPA

Key point 10-09.1. Some courts have found churches liable on the basis of negligent supervision for a worker’s acts of child molestation on the ground that the church failed to exercise reasonable care in the supervision of the victim or of its own programs and activities.

Key point 10-17.1. Punitive damages are monetary damages awarded by a jury “in addition to compensation for a loss sustained, in order to punish, and make an example of, the wrongdoer.” They are awarded when a person’s conduct is reprehensible and outrageous. Most church insurance policies exclude punitive damages. This means that a jury award of punitive damages represents an uninsured risk.

A trial court in Ohio awarded nearly $6 million to the parents of a 2-year-old child who was spanked with a ruler by a teacher in a church-operated preschool. A family’s two minor children were enrolled in a church-operated preschool. One evening, after the father picked up his children from the preschool, he observed numerous fresh cuts, welts, and red marks on his two-year-old son’s back, buttocks and thighs. The marks were consistent with being hit by a ruler. The boy told his father that a male preschool employee had “spanked” him with a “knife.” The worker was a 58-year-old male who had served in various compensated and volunteer positions in the church, and who served on an “as needed” basis in the church’s school and preschool. Though he was not a licensed teacher and never had a prior job that required him to work with young children, he was occasionally assigned by the church to work at the school or preschool. Because of ratio requirements and the large number of children in the preschool program, at least one other adult always was working with him.

At home, upon being shown pictures of various objects, the boy pointed to a ruler as the object used to “spank” him. After the boy’s mother arrived home and looked at the marks on her son, she spoke with their pediatrician and the police, who advised her to take the child to a hospital. The emergency physicians found the boy’s injuries to be consistent with physical abuse, and the matter was forwarded to the local Division of Family Services and police for investigation. When the preschool director was shown photos of the boy’s injuries, she was “shocked” and provided no explanation. The boy’s parents attempted to speak with preschool employees to ascertain what happened. They soon received a letter from the church ordering them not to come on the property and threatening them with criminal prosecution for trespass if they returned to the preschool. The parents had no further contact with church or preschool staff.

The parents, on behalf of their minor son, sued the church and the male preschool worker who the boy claimed had spanked him (the “defendants”). The parents asserted claims of battery and intentional infliction of emotional distress against the preschool worker and claims of negligent supervision and intentional infliction of emotional distress against the church. Following a seven-day jury trial, the jury returned verdicts against both defendants, and awarded the parents compensatory damages of $134,865 and punitive damages of $100,000 against the preschool worker, and compensatory damages of $764,235 and punitive damages of $5 million against the church. The jury also found plaintiffs entitled to attorney fees of nearly $700,000 from the church. These damages were later reduced by the trial court to $3 million. The defendants appealed.

Negligent supervision

The court noted that for the parents to prevail on their claim of negligent supervision against the church, they had to establish (1) the existence of an employment relationship between the church and the perpetrator; (2) the perpetrator had a propensity to physically harm or abuse minors in his care; (3) the church had actual or constructive knowledge of this propensity; (4) the perpetrator’s act or omission caused the injuries; and (5) the church’s negligence supervising the perpetrator was the cause of the victim’s injuries. The defendants only challenged the third element—that the church knew or should have known of the perpetrator’s propensity to abuse minors. The court noted that the perpetrator had been left alone with children in the preschool on only two occasions. On the first such occasion, a three-year-old child sustained a fractured skull. The perpetrator claimed that the child had “bumped heads” with another child, but the other child exhibited no evidence of such a collision. The second incident, a few months later, was the injury in this case. The church acknowledged that it was aware of the first incident, but had no way of knowing that it was due to child abuse rather than an accident. As a result, it had no elevated duty of supervision. The court disagreed:

The record also indicates that although its administration knew [the other child] was seriously injured while in [the perpetrator’s] sole care [the church] conducted no investigation of the incident, did not make further inquiries of [the perpetrator] concerning the matter, did not provide him with further training to prevent serious injury from occurring to another child, and, most importantly, did not change how it supervised [the perpetrator] after the incident. Approximately three months later, the very next time the church permitted him to be alone with the young children [he] physically abused the victim.

Based on such evidence, the jury reasonably could infer that the circumstances surrounding [the other child’s] injury were suspicious: he received a skull fracture and concussion when he purportedly “bumped heads” with another boy who suffered no apparent injury. Moreover, not only did the church’s witnesses provide inconsistent and contradictory testimony surrounding the incident, but the church failed to investigate the incident, to provide the incident report to [the other boy’s] mother upon her request, and to inform any of the other [children’s] parents about the serious injury to [the other child]. With that evidence, the jury reasonably could conclude that the church knew or strongly suspected that he had something to do with [the other child’s] serious injury but nevertheless again allowed the perpetrator, without further training or more supervision, to be the sole care provider for the young children.

The court further noted that the church “engaged in a concerted effort to cover up what had happened. Immediately after it became aware of the allegations of physical abuse [church officials] spoke with church employees and allowed them to coordinate their stories before the formal investigations began.”

Emotional distress

The court noted that prior to the incident, the victim was a happy, easy-going, content child who was independent, fully potty trained, did not mind being alone, and shut the door when he went to the bathroom. After the incident, his personality changed. He was often unhappy, became frantic if separated from his parents or other family members, was fearful of being in a room alone, was clingy and wanted to be held, often wet the bed, and would not shut the door when he went to the bathroom. A treating psychologist opined that the child was suffering from post-traumatic stress disorder.

The court concluded that there was substantial evidence to affirm the trial court’s findings of “extreme and outrageous conduct” by the church that led to the victim’s extreme emotional distress.

Punitive damages

Most of the monetary damages the jury awarded were based on punitive damages. The court noted that punitive damages are recoverable if there is clear and convincing evidence that a defendant in a civil case acted with malice. Malice is defined as either (1) a state of mind under which a person’s conduct is characterized by hatred, ill will or a spirit of revenge, or (2) a conscious disregard for the rights and safety of others that has a great probability of causing substantial harm. Actual malice “can be inferred from conduct and surrounding circumstances which may be characterized as reckless, wanton, willful or gross.” The court concluded that the following factors supported the conclusion that the church acted with malice in this case:

Application. This case is instructive for the following reasons:

1. The injury in this case probably would not have occurred had the church not violated its own “two adult” policy that mandated the presence of a second adult when preschool children were present. Church leaders should understand that courts and juries will expect churches, like any other organization, to abide by their policies. A failure to do so may be used as evidence of negligence.

2. The perpetrator in this case was a 58-year-old male who had no prior experience working with preschool children, and was not a licensed teacher. This arrangement was irregular at best.

3. The church’s liability for both negligent supervision and emotional distress was based almost entirely on the church’s failure to respond adequately to the prior head-bumping incident. The court faulted the church for not investigating that incident adequately; not increasing its supervision of the perpetrator (in whose sole custody the accident had occurred); and failing to enforce its two-adult policy following the head-bumping incident. The court also cited the following additional factors in support of its ruling: The church failed to adequately investigate the second incident involving the victim in this case; failed to notify the parents of other children in the preschool program that children in the classroom were seriously injured; failed to notify parents when allegations of physical abuse were made against a staff member who cared for their children; and refused to have any contact or communication with the victim’s parents.

4. The court concluded that the church’s actions supported the punitive damages verdict. This is significant for two reasons. First, punitive damages generally are not covered under any insurance policy, since insuring against the “malicious” conduct that supports such damages would be contrary to public policy. Second, the malice standard that supports punitive damages is similar to the standard that supports personal liability of church board members. Every state has a law that provides limited immunity to uncompensated officers and directors of nonprofit organizations. This immunity is “limited” in the sense that it does not apply in cases of willful or wanton misconduct or gross negligence. As a result, punitive damages and personal liability of church board members may go hand in hand.

5. This case illustrates the importance of retaining legal counsel when handling any claim of personal injury, especially to a child. Churches should immediately notify their insurer of such claims. In most cases, the insurer will promptly appoint legal counsel to advise the church. 2008 WL 5423454 (Ohio App. 2008).

For more information on keeping children safe in your ministry, go to ReducingTheRisk.com.

This Recent Development first appeared in Church Law & Tax Report, November/December 2009.

Legal Developments

The Ministerial Exception and Disability Discrimination

The First Amendment generally bars courts from resolving church employment disputes.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

The Ministerial Exception and Disability Discrimination

The First Amendment generally bars courts from resolving church employment disputes.

Richard R. Hammar, J.D., LL.M., CPA

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.

A federal court in Michigan ruled that it was barred by the “ministerial exception” from resolving a disability discrimination claim brought by a teacher against a church-operated school. The court began its opinion by observing that “for the ministerial exception to bar an employment discrimination claim, the employer must be a religious institution and the employee must have been a ministerial employee.” There was no dispute in this case that the school was a religious institution and so the focus shifted to the question of whether the teacher was a ministerial employee. The court concluded that she was. It noted that the exception “most clearly applies to clergy and ordained ministers,” but “it is not limited to such employees.”

To determine if other employees fall within the exception, courts consider whether “the employee’s primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship.” Accordingly, “an employee may be considered ministerial, although not ordained, depending on the function and actual role of his or her position in the religious institution.” The court concluded that the duties of the teacher in this case clearly made her a ministerial employee to whom the ministerial exception applied:

The separation of church and state in the United States has made federal courts inept when it comes to religious issues; the inquiry into the value of an employee in furthering a religious institution’s sectarian mission is no different. The lack of clarity in federal court cases regarding elementary school teachers should not hinder churches from valuing teachers as important spiritual leaders and deciding who will fill those positions as ministerial employees, subject, of course, to inappropriate uses of the title “minister” as subterfuge. For these reasons, it seems prudent in this case to trust [the school’s] characterization of its own employee in the months and years preceding the events that led to litigation. Because it considered the teacher to be a “commissioned minister” and the facts surrounding her employment in a religious school with a sectarian mission support this characterization, the court concludes that the teacher was a ministerial employee. If, on these circumstances, the Court were to conclude otherwise, it would risk infringing upon the school’s right to choose its spiritual leaders.”

Having found that the school was a religious institution, and the teacher was a ministerial employee, the court concluded that it had no alternative but to dismiss the case. E.E.O.C. v. Hosanna-Tabor Church and School, 582 F.Supp.2d 881 (E.D. 2008).

This Recent Development first appeared in Church Law & Tax Report, September/October 2009.

Legal Developments

Minister’s Racial Discrimination Claim Dismissed

Court rules that the First Amendment bars it from resolving the claim.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

Minister’s Racial Discrimination Claim Dismissed

Court rules that the First Amendment bars it from resolving the claim.

Richard R. Hammar, J.D., LL.M., CPA

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.

A federal appeals court ruled that it was barred by the “ministerial exception” from resolving a racial discrimination claim brought by a minister against his church. An ordained priest (the “plaintiff”) claimed that his supervising bishop misapplied canon law in denying him a promotion and, ultimately, in terminating him. The plaintiff, who is African-American, also claimed his termination was racially discriminatory in violation of Title VII of the Civil Rights Act of 1964. The court concluded that the lawsuit was clearly barred by the ministerial exception, since:

The court concluded that “the presumptively appropriate remedy in a Title VII action is reinstatement, but it would surely be unconstitutional under the First Amendment to order the Catholic Church to reinstate, for example, a priest whose employment the Church had terminated …” Rweyemamu v. Cote, 520 F.3d 198 (2nd Cir. 2008).

This Recent Development first appeared in Church Law & Tax Report, September/October 2009.

Legal Developments

The Ministerial Exception and Sex Discrimination

The First Amendment generally prevents courts from resolving church employment claims.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

The Ministerial Exception and Sex Discrimination

The First Amendment generally prevents courts from resolving church employment claims.

Richard R. Hammar, J.D., LL.M., CPA

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.

A federal court in Texas ruled that it was barred by the ministerial exception from resolving a dismissed seminary professor’s claim that her dismissal was a result of unlawful sex discrimination in violation of Title VII of the Civil Rights Act of 1964. A religious seminary hired a female professor (the “plaintiff”) in its School of Theology. She soon was elevated to the rank of assistant professor, which was a tenure-track position. The plaintiff was the only female to teach in the School of Theology. In 2003 the seminary hired a new president. The president met with the plaintiff, and assured her that his appointment would not jeopardize her position. Some of the members of the seminary’s board of trustees expressed concern over whether hiring a woman to teach in the School of Theology was consistent with the church’s teaching that “while both men and women are gifted for service in the church, the office of pastor is limited to men as qualified by scripture.” The plaintiff’s employment was the result of a compromise between members of the board of trustees that resulted in placement of a limitation on her scope of employment to the teaching of Hebrew and Aramaic grammar, syntax, and exegesis. The compromise included an expression that the purpose of her position was “to help students gain facility in the handling of the Hebrew and Aramaic text of the Old Testament.” The courses plaintiff taught during her employment as a non-tenured member of the faculty were limited pursuant to the compromise. Even with the compromise, there were members of the board of trustees who opposed her presence on the faculty.

In 2006 the plaintiff was informed by the seminary that “her contract was terminated, effective December 31, 2006.” The plaintiff alleged that the president informed her that his reason for not renewing her contract and for not recommending her for tenure was that she was a woman. The chair of seminary’s board of trustees later informed a local newspaper that hiring a woman to teach men was a “momentary lax of the parameters.”

The plaintiff sued the seminary, claiming that her termination constituted unlawful sex discrimination in violation of Title VII of the Civil Rights Act of 1964. The court dismissed the plaintiff’s claims on the basis of the ministerial exception as well as the broader “ecclesiastical abstention doctrine”:

The courts are prohibited by the First Amendment from involving themselves in ecclesiastical matters, such as disputes concerning theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required. If the claim challenges a religious institution’s employment decision, an important inquiry is whether the employee is a member of the clergy or otherwise serves a ministerial function. If the answer is “yes,” the “ministerial exception” applies, thus preventing court review of the employment decision without further question as to whether the claims are ecclesiastical in nature. The court has concluded that a review by this court of the employment decision of [the seminary] concerning plaintiff’s employment is prohibited by the ecclesiastical abstention doctrine as well as the ministerial exception.

The record clearly establishes that seminary is a “church” and that plaintiff is a “minister” as contemplated by the ministerial exception doctrine. Moreover, the record establishes as a matter of law that the employment decision made by defendants concerning plaintiff was ecclesiastical in nature. If the court were to allow plaintiff’s claims to go through the normal judicial processes, the procedural entanglements would be far-reaching in their impact upon seminary as a religious organization. The substantive implications of resolution by the courts of a dispute such as the one presented by the instant action would constitute an inappropriate state intrusion into an area where seminary has a legitimate claim to autonomy in the elaboration and pursuit of its own beliefs and practices ….

The court is satisfied … that the decision … to terminate plaintiff was religiously motivated. No rational finder of fact could make a finding to the contrary. The employment decision was the product of a sincerely held religious belief on the part of members of the Board of Trustees; and, the summary judgment record so strongly supports such a finding that no reasonable finder of fact could find otherwise. There is no counterbalance that would outweigh the interest evidenced by the First Amendment in protecting the sanctity of the decision-making of defendants that resulted in the termination of plaintiff’s employment. The seminary must be free to decide for itself, free of interference of the courts, matters of church governance, such as the identities of those who will be permitted to teach courses in the preparation of students for church ministry.

The plaintiff alleged several other claims against the seminary besides sex discrimination, including breach of contract, fraud, and defamation. The court ruled that these claims were also barred by the ministerial exception. 543 F.Supp.2d 594 (N.D. Tex. 2008).

This Recent Development first appeared in Church Law & Tax Report, September/October 2009.

Legal Developments

Church Childcare Program Forced to Seek License

Court concluded that licensing law did not violate church’s rights.

Richard R. Hammar, Attorney, CPA
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Church Law & Tax Report

Church Childcare Program Forced to Seek License

Court concluded that licensing law did not violate church’s rights.

Richard R. Hammar, J.D., LL.M., CPA

Key Point 13-02.1 In the Smith case (1990) the Supreme Court ruled that a neutral law of general applicability is presumably valid and need not be supported by a compelling government interest to be consistent with the first amendment, even if it interferes with the exercise of religion.

A Tennessee court ruled that a state law requiring church childcare agencies to be licensed did not violate the constitutional rights of a church-run program that refused to seek a license. A church operated a “Bible School” from 6:00 a.m. to 6:00 p.m., Monday through Friday, during the regular school year. Children arrived and left at various times throughout the day and could stay for any number of hours based on their parents’ needs. The Bible School enrolled children ages one to sixteen, and school-aged children were transported to and from their schools by church staff members. On days when schools were closed, the children could stay at the church all day. The Bible School enrollment mostly consisted of children of church members, but a few children were non-members who attended other churches. The church charged a weekly fee per child that varied by age. If the child only stayed at the church before or after school, the rates are reduced. While at Bible School, children learned Bible stories, scriptures, and songs, created Bible related arts and crafts projects, participated in learning centers, improved their writing, math, and reading skills, received help with their school homework, played inside and outside, took naps, and ate meals and snacks.

The church began operating the Bible School in 2000. In 2004, the church’s pastor contacted the fire department to determine whether the church’s facilities were in compliance with local fire codes. A fire inspector determined that the Bible School was subject to “daycare occupancy” standards of the safety code, and found a number of fire code violations during the inspection. The fire department also informed the Department of Human Services that the church appeared to be operating a childcare facility without a license.

A few weeks later, members of the Department of Human Services (“DHS”) visited the Bible School. They observed 36 preschool-aged children being cared for, and they were informed that older children would be returning from school that afternoon, for a total of 61 children enrolled that day. The DHS evaluators concluded that the church was operating a childcare agency subject to licensure pursuant to state law. Tennessee law requires any “childcare agency” to be licensed by the state, and defines a childcare agency as “any place or facility operated by any person or entity that provides childcare for 3 or more hours per day for at least 13 children who are not related to the primary caregiver.”

A letter was hand-delivered to the pastor, informing him of DHS’s conclusion and the applicable licensing laws. The letter stated that if the church continued to operate the Bible School without a license beyond a specified date, DHS would pursue a court-ordered injunction. The church did not apply for a license, and DHS representatives observed children being dropped off at the Church the following week. As a result, DHS filed a complaint seeking injunctive relief against the Bible School, its director, and the pastor (the “defendants”). Specifically, the complaint alleged that the defendants could keep no more than four children for more than three hours per day without some type of license, and that DHS staff had observed 36 children at the church and were told that 61 were enrolled for that day. Therefore, DHS claimed that the defendants were operating a childcare agency without a license in violation of state law.

The church insisted that its Bible School qualified for one of the exemptions from licensing: for “nurseries, babysitting services and other children’s activities that are not ordinarily operated on a daily basis.” It also claimed that the First Amendment guaranty of religious freedom barred the state from interfering with the operation of the Bible School. A trial court concluded that the church’s Bible School met the definition of a “child care center” and as such was subject to the licensure requirement; that none of the licensure exemptions applied to the Bible School since the church was providing long-term child care while the exemptions contemplated short-term care; and, that “religiously motivated conduct” is subject to reasonable control.

The court issued a restraining order prohibiting the Bible School from “opening or operating any child welfare agency without a proper active license issued by the Tennessee Department of Human Services.” When the church continued to operate the Bible School without a license, the trial court found the defendants in contempt of court. The defendants thereafter agreed to discontinue operation of its Bible School, but appealed the trial court’s rulings to a state appeals court. The church’s main argument was that the licensing requirements violated its constitutional right to freely exercise its religion. Specifically, the church asserted that becoming a licensed “daycare” would violate its religious beliefs because it believed that Jesus Christ is the founder of the church, and that the church should not be assigned to an entity such as the state of Tennessee.

A state appeals court rejected the church’s arguments, and ruled that the trial court acted properly in ordering the church to discontinue the operation of its unlicensed Bible School. It noted that the United States Supreme Court has ruled that “neutral laws of general applicability,” that apply to equally to all organizations and do not single out religion for unfavorable treatment, are presumptively constitutional without the need for the state to prove a compelling interest. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993). To permit otherwise “would allow the professed doctrines of religious belief to be superior to the law of the land, and in effect permit every citizen to become a law unto himself.” As a result, “claims based on religious convictions do not automatically entitle persons to unilaterally establish the terms and conditions of their relations with government, and our constitutions do not give individuals veto power over government actions.”

The court concluded that the licensing law in this case was a neutral law of general applicability, and as such it did not violate the church’s constitutional rights. It was “a reasonable means of promoting a legitimate public purpose, and we must uphold it.”

The court acknowledged that some other states have enacted childcare licensing laws containing an exemption for church-run programs, but concluded that such exemptions, while constitutionally permissible, were not constitutionally required. It also pointed out that there are several states that “do not exempt religious entities from childcare licensing laws, and these license requirements have been upheld against [constitutional] challenges similar to the one in this case.” It referred to the following cases: North Valley Baptist Church v. McMahon, 893 F.2d 1139 (9th Cir. 1990) (California law); Darrell Dorminey Children’s Home v. Georgia Department of Human Resources, 389 S.E.2d 211 (Georgia 1990); State ex rel. Pringle v. Heritage Baptist Temple, Inc., 693 P.2d 1163 (Kansas 1985); State, Michigan Department of Social Services v. Emmanuel Baptist Preschool, 455 N.W.2d 1 (Michigan 1990); Health Services Division v. Temple Baptist Church, 814 P.2d 130 (New Mexcio 1991); State v. Corpus Christi People’s Baptist Church, Inc., 683 S.W.2d 692, 695 (Texas 1984).

The court also rejected the church’s proposal that it be allowed to “register” with the state as a less intrusive alternative to licensure, noting that such an alternative had been “considered and rejected as an insufficient means of serving the states’ interests in protecting the health, safety, and welfare of children in childcare centers.” Department of Human Services v. Priest Lake Community Baptist Church, 2007 WL 1828871 (Tenn. App. 2007).

This Recent Development first appeared in Church Law & Tax Report, March/April 2008.

Legal Developments

Risk of Injury on Church Property

A variety of defenses are available to a church that is sued as a result of an injury occurring on its premises.

Richard R. Hammar, Attorney, CPA
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Church Law & Tax Report

Risk of Injury on Church Property

A variety of defenses are available to a church that is sued as a result of an injury occurring on its premises.

Richard R. Hammar, J.D., LL.M., CPA

Key point 7-20.4. A variety of defenses are available to a church that is sued as a result of an injury occurring on its premises.

* A New York court ruled that a boy who was injured when a large hole on a schoolyard basketball court caused him to fall and injure himself could not sue the school because the danger was open and obvious. Many churches have basketball courts or recreational equipment on their property that is used by neighborhood children during the week. Church leaders often are concerned about potential liability to the church for injuries that occur to minors using the church’s facilities, and wonder how this risk may be reduced or eliminated. Some wonder if the risk is too great to justify the use of recreational facilities. A recent case in New York is instructive. A 14-year-old boy was injured while playing basketball with several friends at a schoolyard owned by a public school. A hole in the surface of the basketball court caused him to fall. The boy estimated that the hole was two feet wide and two inches deep. He testified that he generally played basketball twice a week at one of several locations including the location where he was injured. He further testified that he had been playing basketball at the schoolyard where the injury occurred for approximately 40 minutes prior to the accident. The boy’s parents sued the school, claiming that it was responsible for their son’s injuries on the basis of negligence.

A trial court rejected the school’s request that the case be dismissed, and the school appealed. A state appeals court ruled that the trial court erred in not dismissing the case. It concluded: “A person who voluntarily participates in a sport or recreational activity is deemed to consent to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation. This includes those risks associated with the construction of the playing surface and any open and obvious condition on it …. [The school established that it was entitled to have the case against it dismissed] by demonstrating that the victim voluntarily participated in the basketball game and that the hole in the surface of the court constituted an open and obvious condition.” Casey v. Garden City Park-New Hyde Park School District, 837 N.Y.S.2d 186 (N.Y.A.D. 2007).

Legal Developments

Zoning and Substantial Burden

An Oregon court ruled that a county did not violate RLUIPA by denying a church permission to construct a parochial school on its premises.

Richard R. Hammar, Attorney, CPA
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Church Law & Tax Report

Zoning and Substantial Burden

An Oregon court ruled that a county did not violate RLUIPA by denying a church permission to construct a parochial school on its premises.

Richard R. Hammar, J.D., LL.M., CPA

Key point. The federal Religious Land Use and Institutionalized Persons Act prohibits state and local governments from imposing a land use regulation in a manner that imposes a substantial burden on the exercise of religion unless the regulation is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest.

* An Oregon court ruled that a county did not violate RLUIPA by denying a church permission to construct a parochial school on its premises. A Baptist church was founded in 2001. The church used a converted single-family dwelling for its offices and for small meetings and rented space in the local high school and in other churches for Sunday and midweek services. In 2005, the church began operating a school for the congregation’s children in a separate leased facility; the school had 19 students.

In 2004, the church purchased seven acres of property for $500,000. The property is zoned AF-5 (Agriculture-Forest, 5-acre minimum lot size). The following year the church sought approval to build a 20,000-square-foot, single-story building that would serve as a combined church sanctuary, day care facility, and school. The church represented that the school would serve 50 children from kindergarten through grade 12, would have five staff members, would be housed in a large multipurpose room within the proposed church building, and would operate from Monday through Friday, from 8:00 a.m. to 4:00 p.m. A county zoning board (the “county”) recommended approval of special uses of the property for a church and a day care facility. However, it recommended denial of the school use since the students did not come predominantly from rural areas as required by the zoning ordinance. The county concluded that its decision did not violate the Religious Land Use and Institutionalized Persons Act (RLUIPA) since it did not impose a “substantial burden” on the church’s religious practice. The county based this conclusion on the fact that the church had not made a “sufficiently diligent effort” to locate suitable property within the area where school use would be permitted. The county also concluded that the church failed to show that operating the school on a site separate from the church imposed a substantial burden on its religious practice, because evidence in the record showed that the church and the school currently were operating in separate locations.

The church appealed, claiming that the county’s refusal to allow the school violated RLUIPA, which provides: “No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a … religious assembly or institution, unless the government demonstrates that imposition of the burden … (A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest.”

“Substantial burden on religious exercise”

The court concluded that the central question was whether the county’s refusal to allow the church to use its property for school purposes imposed a “substantial burden on religious exercise.” It reviewed several of the leading definitions of “substantial burden,” and concluded that the courts have reached two conclusions: “On the one hand, courts routinely find substantial burdens where compliance with a statute itself violates the individual’s religious beliefs and noncompliance may subject him or her to criminal sanctions or the loss of a significant government privilege or benefit. On the other hand, courts often have been more reluctant to find a violation where compliance with the challenged regulation makes the practice of one’s religion more difficult or expensive, but the regulation is not inherently inconsistent with the litigant’s beliefs.” The court summarized several prior cases defining this important term in the context of zoning laws:

The court concluded that the availability of other land in the area was a significant factor in determining whether a substantial burden exists. However, addressing this issue was difficult in this case because the church “made little effort to clearly define its property selection criteria or to explain how the failure to satisfy those criteria would require it to forgo its religious precepts.” For example, there was no evidence that, in the absence of access to particular property the church “would be required to forgo its religious precepts. Said another way, there was insufficient evidence that the church’s religious exercise would have been substantially burdened by buying one of the 29 properties on the market.”

The court acknowledged that requiring a church to find and purchase alternative property would constitute a substantial burden on religious exercise if doing so would create an “unreasonable economic burden.” It cited the following cases for this conclusion: (1) Living Water Church v. Charter Township, 384 F.Supp.2d 1123 (W.D. Mich. 2005) (substantial burden found where the church was “a small church with limited funds”); (2) Greater Bible Way Temple v. Jackson, 708 N.W.2d 756 (Mich. 2005) (substantial burden found where a church submitted evidence showing that it could not afford to purchase different property).

The court concluded that the church had taken the position that “the need to look for and acquire other property is itself a substantial burden, because such a search would be time consuming and costly.” The court rejected this argument since there was no evidence that “a reasonable search and acquisition would have required the interruption or cessation of the church’s present activities; it merely would have required a delay and some unknown expense.”

The court concluded, “Because the church failed to demonstrate that upholding the county’s land use decision would force it to forgo its religious precepts, we conclude that it failed to show that the county has imposed a substantial burden under RLUIPA.”

Application. In many communities churches are required to obtain a special use permit in order to purchase and use property for religious purposes. When a local zoning board denies a church’s request for a special use permit, the church may be able to challenge the denial on the basis of RLUIPA if it is able to demonstrate that the denial imposed a substantial burden on its religious exercise that was not justified by a compelling governmental interest. In such cases, the key question often is whether the burden on the church’s religious exercise was “substantial.” This case contains an extensive discussion of this important issue. Note the following points:

1. This case represents a narrow interpretation of RLUIPA’s protections. The court relied on several cases for the proposition that zoning ordinances that restrict a church’s use of property do not violate RLUIPA if the church could reasonably locate and acquire an alternative site for its desired purposes. The court noted, for example, that there were 29 other properties available for sale that could have served as a location for the church’s school.

2. The court acknowledged that requiring a church to find and purchase alternative property would constitute a substantial burden on religious exercise if doing so would create an “unreasonable economic burden.”

3. The court stressed that the church “made little effort to clearly define its property selection criteria or to explain how the failure to satisfy those criteria would require it to forgo its religious precepts.” In other words, the church’s legal position would have been strengthened had it presented evidence that the county’s actions forced it to “forgo its religious precepts.”

4. One judge dissented from the court’s ruling. The dissenting judge argued that the county violated RLUIPA since the church was being “pressured” to give up the church and day care facility on the property it owns, or “abandon its religious precept of operating a church and religious school on the same property.” Timberline Baptist Church v. Washington County, 154 P.3d 759 (Ore. App. 2007).

Legal Developments

Liability for Ex-Employees

Churches generally cannot be liable for the acts of employees that are committed in their own residences apart from an official church activity, or after the termination of their employment.

Richard R. Hammar, Attorney, CPA
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Liability for Ex-Employees

Churches generally cannot be liable for the acts of employees that are committed in their own residences apart from an official church activity, or after the termination of their employment.

Richard R. Hammar, J.D., LL.M., CPA

Key point. Churches generally cannot be liable for the acts of employees that are committed in their own residences apart from an official church activity, or after the termination of their employment.

* A New York court ruled that a church was not liable for the molestation of a young girl by a church’s youth pastor that occurred after his employment was terminated, and in his own home. A minor female was sexually molested by a youth pastor. She sued her church, claiming that it was responsible on the basis of negligent hiring, negligent retention, and negligent supervision for the youth pastor’s wrongful acts. A trial court dismissed the lawsuit, and a state appeals court affirmed this ruling. It concluded that the church could not be liable for the youth pastor’s acts since he was no longer employed by the church at the time he abused the victim. Further, the court pointed out that the abuse occurred in the youth pastor’s apartment, and so “there was no connection between his employment and the abuse of the plaintiff, as it was severed by time, place, and the intervening independent acts of the youth pastor.”

Application. This case is important for two reasons. First, it illustrates the general rule that a church is not liable for the acts of employees committed after the termination of their employment. Second, it demonstrates that a church generally is not liable for the acts of an employee committed in his or her own home, and unconnected to any official church activity. Farrell v. Maiello, 831 N.Y.S.2d 506 (N.Y.A.D. 2007).

* See also the feature article “Church Liability for the Sexual Molestation of Minors” in this newsletter.

Legal Developments

Child Care Licensing Requirements

Church-operated after school programs may be subject to licensing requirements imposed by state law.

Richard R. Hammar, Attorney, CPA
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Child Care Licensing Requirements

Church-operated after school programs may be subject to licensing requirements imposed by state law.

Richard R. Hammar, J.D., LL.M., CPA

Key point. Church-operated after school programs may be subject to licensing requirements imposed by state law.

* A Connecticut court ruled that a church-operated after school program was not subject to a license requirement under state law. A church received a notice from a public health agency informing it that its after-school program for children constituted “an illegal child day care center” since it was operating without a license. The church’s program was an after school program that focused on children at risk. It provided a variety of services, including homework help, that were designed to provide friendship, positive discipline, hope, and meaning for the children.

State law requires child day care centers to be licensed, and defines a child day care center as “any organization that provides care to more than twelve related or unrelated children outside their own homes on a regular basis.” There are a few exceptions to the license requirement, including “recreation operations such as … boys’ and girls’ clubs, church-related activities, scouting, camping or community-youth programs.” The agency insisted that the church’s child care program was not eligible for this exemption, since “circle time for reading aloud, creative projects, weekly meetings for discussion and occasional trips to museums or other places of interest are not primarily recreational activities for children.”

The church sued the state, claiming that its after school program was exempt from licensure. First, it argued that child day care centers have historically been viewed as being limited to programs for children who are not attending school, and not to after school programs that provide services to school-age children. The court rejected this argument on the ground that the licensing law defined child care centers broadly enough to include after school programs.

Second, the church argued that its after school program was exempt because it was a church-related activity. The court acknowledged that church-related programs were exempt from licensure, but concluded that this exemption did not apply to the church in this case because its after school program “has no religious connotation whatsoever. It is church-related only in that the church feels that a part of its mission is to provide such recreational opportunities to young people in its area, and in that it is physically housed in the church’s building. There is no religious instruction, and many of the children who participate are not from families who are members of the church.”

Third, the church argued that its after school program was exempt from licensure as a church-related “recreational operation.” The state had concluded that the after school program’s “circle time for reading aloud, creative projects, weekly meetings for discussion and occasional trips to museums or other places of interest are not primarily recreational activities for children.” The court found this to be an excessively narrow interpretation of the law that was “clearly erroneous.” It noted that “one cannot escape the conclusion that [the state] viewed the concept of recreation as activity in which the using of one’s mind is not a significant component. In this benighted view, sports and games would quite clearly qualify, but reading, discussing, visiting museums and other activities of the mind apparently would not.”

The court did not disagree with the state’s conclusion that to be exempt, an after school program must be primarily recreational in nature. It did disagree, however, “that a program with components that might also be viewed as educational cannot still be primarily recreational in nature.” The court concluded: “The only sensible way to read a requirement that recreational programs with educational components must be licensed is that to the extent that they involve significant periods of formal instruction, they cross the line from learning by exposure to stimuli such as art, books, dance, museums and the like and into the realm of pedagogy. At that point, it can fairly be said, a program is no longer primarily recreational, but rather has become an instructional or educational program.”

The court concluded: “A review of the activities of [the after school program] reveals nothing that exceeds the bounds of the recreational. Although time is set aside for homework, this was presented merely as an opportunity to do such work on one’s own at the church, rather than waiting until arriving home in the evening, and the alternative projects were presented only as activities to stimulate the minds of those who had no homework assignments. In short, [the after school program] is a recreational operation that is exempt from licensure.”

Application. Many churches have started after school programs for children in their community. Many others are considering such a program. This case demonstrates that such programs may be subject to licensure requirements under state law. It is imperative for church leaders to determine whether such a program must be licensed. This should be done before the program is implemented. As this case illustrates, licensure laws typically contain one or more exemptions that may apply to church-based after school programs. Of special interest was the church’s conclusion that the program in this case did not qualify for exemption as a church-related activity since it had “no religious connotation whatsoever,” and was church-related “only in that the church feels that a part of its mission is to provide such recreational opportunities to young people in its area, and in that it is physically housed in the church’s building. There is no religious instruction, and many of the children who participate are not from families who are members of the church.” This characterization would not be true for some church-operated after school programs that make religious instruction an integral component. Episcopal Church of St. Paul v. Galvin, (Conn. Super. 2006).

Legal Developments

Age Discrimination Claims

Age discrimination requires proof that age was the basis for an adverse employment decision.

Richard R. Hammar, Attorney, CPA
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Church Law & Tax Report

Age Discrimination Claims

Age discrimination requires proof that age was the basis for an adverse employment decision.

Richard R. Hammar, J.D., LL.M., CPA

Key point 8-09. The federal Age Discrimination in Employment Act prohibits employers with 20 or more employees, and engaged in interstate commerce, from discriminating in any employment decision on the basis of the age of an employee or applicant for employment who is 40 years of age or older. The Act does not exempt religious organizations. Many states have similar laws that often apply to employers having fewer than 20 employees.

* A federal appeals court ruled that a church school had not violated a federal age discrimination law in its treatment of a custodian. The custodian complained that over a period of about five years he was subjected to several adverse employment actions as a result of his age. As examples, he asserted that he was harassed and criticized by his supervisor because of his age; he was unfairly sent home and docked pay on two occasions; he was denied overtime opportunities that went to younger employees; he was transferred to a less desirable shift; and was laid off with others on his new shift. The custodian claimed that these actions amounted to discrimination in violation of the federal Age Discrimination in Employment Act

The court noted that Under the ADEA, it is “unlawful for an employer to … discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” The court concluded that the school had “legitimate, non-discriminatory reasons” for each of its actions involving the custodian. First, he was not singled out when he was terminated, but rather was laid off as part of the school’s decision to “outsource” the entire custodial department to save money. Six out of the eight employees discharged were less than 40 years old. Second, the custodian had been sent home early from work as part of his supervisor’s efforts to discipline or motivate him after he performed unsatisfactorily on two occasions. Third, the custodian’s loss of overtime was attributable to the regular seasonal decrease in demand for custodial overtime work due to school being out of session during the summer months, and gym classes being held outside (leaving the gymnasium largely unused) during early Fall.

Application. This case illustrates that age discrimination requires proof that age was the basis for an adverse employment decision. An employer that dismisses an employee who is 40 years of age or older will not be guilty of age discrimination if it can prove a nondiscriminatory basis for its action. In this case, the court concluded that the school established that its actions involving the custodian were all based on legitimate, nondiscriminatory reasons dealing with the performance of his duties as well as cost-cutting decisions by the school. Abraham v. Abington Friends School, 2006 WL 3793380 (3rd Cir. 2006).

Legal Developments

Building Rental for Church Use

A federal court in South Carolina ordered a public school district to continue allowing a church to rent a school building for weekly worship services.

Richard R. Hammar, Attorney, CPA
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Building Rental for Church Use

A federal court in South Carolina ordered a public school district to continue allowing a church to rent a school building for weekly worship services.

Richard R. Hammar, J.D., LL.M., CPA

Key point 14-05. The First Amendment permits religious congregations to use public property for church services so long as the use is temporary and the congregation pays fair rental value.

* A federal court in South Carolina ordered a public school district to continue allowing a church to rent a school building for weekly worship services, and rejected the school district’s arguments for discontinuing the arrangement. A church used a public school building to conduct weekly services pursuant to a school district policy that allowed “recognized nonprofit community organizations” to use school facilities. The school district initially granted the church permission to use the school for a three month period. The church paid a rental fee of $250 per week and $15 per hour for the services of a custodian who was present at the school as required by the policy. At the end of the three month term, the school district granted the church permission to use the school for an additional three months. At the end of this second three month term the church asked for an additional three months since it was still finalizing arrangements to hold services at another location. However, the school district informed the church that its occupancy would not be extended. A school district officer explained that the district did not want to set a precedent by allowing the church to use school facilities for an extended period because then other “undesirable” groups such as religious cults would want to use the facilities.

The church asked a court to issue a preliminary injunction allowing it to use the school for an additional three months. The court noted that in deciding whether or not to issue a preliminary injunction it had to consider four factors: (1) the likelihood of “irreparable harm” to the plaintiff if the preliminary injunction is denied; (2) the likelihood of harm to the defendant if the requested relief is granted; (3) the likelihood that the plaintiff will succeed on the merits; and (4) the public interest. The court concluded that the first factor was met, since a denial of the injunction would prevent it from exercising its First Amendment rights of speech and religion. The court agreed, noting that “the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”

The school district insisted that the second factor required the court to reject the church’s request for an injunction. It noted that an injunction would harm the school district in three ways: (1) An injunction would expose the school district to potential penalties under the Fair Labor Standards Act as a result of the church asking the school custodian to be present several hours each week in addition to his regular 40-hour job. (2) An injunction would expose the school district to potential violations of the Americans with Disabilities Act since the church used a wheelchair ramp to store various items used during its Sunday worship services. (3) An injunction would expose the school district to a violation of the First Amendment ban on an establishment of religion since it would “subsidize” religion by allowing the church to continue using public property at a “below market” rental fee. The court rejected all of these examples of harm to the school district. It pointed out that any violation of the Fair Labor Standards Act’s overtime requirement could be remedied by ensuring that the church complies with the law. Similarly, the alleged ADA violation could be avoided by requiring the church to comply with the rental agreement which prohibited any storage of materials on the premises. The court further noted that all users of school property were charged the same amount, and so no “subsidy” was being provided to religion. Any “harm” to the school district “was a result of its own actions.”

The court next addressed the third and fourth factors to be considered in deciding whether to issue a preliminary injunction. It concluded that both factors supported the issuance of the injunction. Gracepointe Church v. Jenkins, 2006 WL 1663798 (D.S.C. 2006).

Legal Developments

Release Forms Usefulness

Release forms should not be relied upon, and certainly should not be viewed as a substitute for sound risk management.

Richard R. Hammar, Attorney, CPA
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Release Forms Usefulness

Release forms should not be relied upon, and certainly should not be viewed as a substitute for sound risk management.

Richard R. Hammar, J.D., LL.M., CPA

Key point 10-16.6. A release form is a document signed by a competent adult that purports to relieve a church from liability for its own negligence. Such forms may be legally enforceable if they are clearly written and identify the conduct that is being released. However, the courts look with disfavor on release forms, and this has led to several limitations, including the following: (1) release forms will be strictly and narrowly construed against the church; (2) release forms cannot relieve a church of liability for injuries to minors, since minors have no legal capacity to sign such forms and their parents’ signature does not prevent minors from bringing their own personal injury claim after they reach age 18; (3) some courts refuse to enforce any release form that attempts to avoid liability for personal injuries on the ground that such forms violate public policy; and (4) release forms will not be enforced unless they clearly communicate that they are releasing the church from liability for its negligence.

* A court in the Virgin Islands ruled that a release form signed by a mother of a minor child who attended a church-operated school did not absolve the school from liability for injuries the child sustained when injured during an after-school program. A minor (the “victim”) was injured when he was karate kicked by another student during an after-school program at a church-operated private school they both attended. The victim’s mother sued the church and school (the “church defendants”), claiming that they were responsible on the basis of negligent supervision for her son’s injuries.

The church defendants claimed that they could not be held liable for the victim’s injuries since his mother had signed a release form at the start of the school year absolving them of any liability. The release, signed by the mother, stated:

In making application for my child it is my desire to have him complete the school year. It is also my understanding that the policy of the school is to make no refunds on registration fees. I also give permission for my child to take part in all school activities, including sports and school sponsored trips away from the school premises, and absolve the school from liability to me or my child because of any injury to my child at school or during any school activity.

The church defendants insisted that the form signed by the mother was an enforceable release of any future claims that she or her child might have for injuries sustained, including those due to negligence, while at the school or during any school activity. Both the mother and the church defendants agreed that a release must be clear and unequivocal to provide protection to the church defendants for their negligence. They disagreed, however, whether the release form the mother signed was sufficiently clear and unequivocal and whether the specific term negligence must be used.

The court concluded that the release form was “ambiguous on the issue of whether it releases the liability of the school … for negligence in the supervision of the after-school program.” It noted several reasons for finding the clause to be ambiguous, or susceptible to at least two different interpretations:

First, although there are circumstances where an “any or all liability” provision has been interpreted to protect a party from actions based on the party’s own negligence, such a determination relied on other language within the agreement or circumstances that made the intent clear from the context …. Second, the release only purports to protect the school … not its agents or employees. While the release form may be read to protect all such entities, that is neither the only permissible reading, nor the most reasonable …. Third, the release is susceptible to at least two interpretations on the nature of the negligence covered by the agreement. While the church defendants urge that if the release was construed to exclude coverage of their negligence it would be “meaningless because the school is not otherwise liable where it is not negligent,” this interpretation of the law is not comprehensive. The first interpretation, admittedly, is that the release protects the school from actions based on its own future negligence. A second reading is that the release only protects the school from actions based on an individual theory of active negligence; there is no mention of the agents or employees of the school and thus an imputed negligence theory premised on their actions may be outside the scope of this agreement. Finally, it is unclear whether an injury purportedly suffered during an after-school program would qualify as “at school or during any school activity.” While it is possible that such an agreement may cover any activity on school grounds regardless of time, it is equally possible that the agreement covers only activities occurring during the school day.

The court concluded that the release form was not enforceable.

Application. What is the significance of this case to church leaders? It illustrates that release and assumption of risk forms are disfavored by the courts and will be narrowly construed. Such forms should not be viewed as a solution to legal risks. The courts will avoid such agreements whenever possible, often in unexpected ways. As this case illustrates, they may be invalidated on the basis of ambiguity. Such forms should not be relied upon, and certainly should not be viewed as a substitute for sound risk management. Churches should never use release or assumption of risk agreements that are not prepared or reviewed by legal counsel. Joseph v. Church of God (Holiness) Academy, 2006 WL 1459505 (V.I. Super. 2006).

Legal Developments

Personal Injuries on Church Property and During Church Activities – Part 5

The Iowa Supreme Court ruled that a school could be sued by the father of a ninth-grade boy who had been sent home alone on a bus after being caught smoking

Richard R. Hammar, Attorney, CPA
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Key point 10-06. A church may be legally responsible on the basis of negligent selection for injuries resulting from the acts of a minister or other worker not involving sexual misconduct.
Negligence as a Basis for Liability

The Iowa Supreme Court ruled that a school could be sued by the father of a ninth-grade boy who had been sent home alone on a bus after being caught smoking a cigarette in a hotel room while on an out-of-town school band trip. It is every youth pastor's nightmare to have a minor on an out-of-town trip who flagrantly violates the rules. In some cases, minors are sent home. Such a decision may expose a church to legal risk, no matter how justified it may seem. Consider a recent case involving a public school in Iowa. The school adopted a "zero tolerance" policy concerning students' use or possession of tobacco, alcohol, and drugs. A ninth grader was caught with cigarettes while on an out-of-town school band trip in Texas, and was taken to a Greyhound bus station at midnight and placed on a bus for the trip home. The trip included stops and layovers in Dallas, Tulsa, Kansas City, Des Moines, and Iowa City. A teacher remarked that "if we hadn't acted on it, I'm afraid that we would have had other rules broken, possibly more serious rules, possibly more serious consequences."

The youngster survived the 1,100-mile journey, but his distraught father sued the school for "negligent endangerment" and other alleged wrongs. The boy's father never challenged school officials' right to punish his son for his misbehavior. He insisted, however, that in exercising its disciplinary function, the school and its employees breached a duty of due care for his son's safety and were guilty of negligent supervision. The school asserted that it had a wide latitude in disciplining students, especially while on field trips, and that its actions were a legitimate exercise of discipline. It noted that school field trips often present greater, not lesser, challenges to school officials trying to maintain order and discipline than do the relatively orderly confines of a school.


Application
. This case suggests that sending a minor home while participating on a church-sponsored out-of-town trip may expose a church to liability, no matter how dangerous or unacceptable the minor's behavior may be. Other, less restrictive, options must be considered. These would include (1) sending the child home accompanied by two adults; (2) asking the minor's parents to come and take him or her home; (3) calling the local public school administration to find out what policies they follow in similar cases. Ette v. Lin-Mar Community School District, 2002 WL 31828114 (Iowa 2002).

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