School Liable for Principal’s Sexual Harassment of School Employees

Don’t ignore accusations of sexual misconduct.

Church Law and Tax 1997-11-01

Sexual Harassment

Key point. Churches may be liable for sexual harassment if they do not respond promptly and effectively to employee allegations of sexual harassment.

! A federal appeals court ruled that a church—operated school was guilty of sexual harassment as a result of its failure to address its principal’s offensive behavior with several female employees. A denominational agency operated a residential school for emotionally and physically impaired children. Over the course of several years, the principal of the school was accused on many occasions of sexual harassment by female employees. There was substantial evidence that school officials were aware of many of these complaints. In 1993, school officials launched an investigation into the sexual harassment charges. They found that there was a significant basis to the harassment complaints. The school suspended the principal for five days without pay, ordered him to submit to a psychological assessment and placed him on three months’ probation. It also invited an outside consultant to conduct several days of seminars on sexual harassment. Even after this corrective action, there were several instances of inappropriate behavior involving the principal. During this same year, the principal was given a satisfactory performance evaluation and a raise. Several female employees who had been harassed by the principal sued the denominational agency on the ground that it was legally responsible for the principal’s acts because of its failure to respond adequately to the accusations against him. The women claimed that school officials “moved slowly” in dealing with the principal because he was African—American, and they were concerned about being sued for racial discrimination. In fact, the principal threatened on numerous occasions to file a discrimination complaint with the Equal Employment Opportunity Commission. A trial court ruled in favor of the women, and awarded them $300,000 in damages.

A federal appeals court upheld this ruling. It referred to the “long—term, ostrich—like failure” by denominational and school officials to “deal forthrightly with [the principal’s] treatment of female employees.” The court observed that “the jury was entitled to conclude that [the agency] not only looked the other way for many years but that its corrective action was woefully inadequate, as demonstrated by [the principal’s] later conduct.”

Application. This case illustrates the importance dealing promptly with complaints of sexual harassment. Letting years pass without addressing complaints of harassment will only increase significantly a church’s risk of liability. The agency finally acted in 1993-by suspending the principal for five days, ordering a psychological assessment, imposing a three—month probationary period, and inviting consultants to conduct sexual harassment training. These acts may seem thorough and adequate, but the court concluded that they were not sufficient to avoid liability for sexual harassment, because (1) the complaints against the principal had occurred over so many years; (2) the principal’s acts of harassment were so pervasive; (3) the agency waited years before acting; (4) the agency’s response was insufficient, since the principal continued to engage in harassment even after he was disciplined; and (5) the principal received a satisfactory employee evaluation and a raise during the same year that he was disciplined for harassment. These are “warning signals” that church leaders should heed. Also, note that the court acknowledged that the agency had “moved slowly” in responding to the complaints against the principal out of a fear of being sued for racial discrimination. However, the court not only rejected the relevance of such a concern, but suggested that it helped prove the victims’ claims of harassment. The lesson is clear-employers should not delay responding to allegations of sexual harassment on the ground that the alleged offender is a member of a protected group. Jonasson v. Lutheran Child and Family Services, 115 F.3d 436 (7th Cir. 1997). [Title VII of the Civil Rights Act of 1964, Application of Federal Labor and Discrimination Laws to Private Schools]

Defamatory Statements

Expressions of opinion cannot be considered defamation.

Church Law and Tax 1997-09-01

Libel and Slander

Key point. To be defamatory, an utterance must contain a false statement of fact rather than an expression of an opinion.

A Massachusetts court ruled that statements made by a pastor about a member of a church committee could not be defamatory since they were mere expressions of opinion. A member of a church was elected to the Christian Education Committee of the church for three consecutive three—year terms. During the course of her service on the committee, the member and the church’s pastor developed a personality conflict and clashed on several occasions on a variety of church—related issues. The pastor communicated her opinion on the member’s job performance to the church congregation, and distributed a book entitled “Antagonists of the Church” to members of the church’s nominating committee for their consideration in evaluating the member’s suitability for renomination at the end of her current term on the committee. The church’s nominating council did not renominate the member for another term on the Christian Education Committee and, as a result, she filed a lawsuit against her pastor alleging defamation. She claimed that the pastor had defamed her by giving a copy of the book “Antagonists in the Church” to the nominating committee and by telling them that the book “might be helpful … in their decision making” regarding her reappointment to the education committee. A trial court dismissed the case, and the member appealed. A state appeals court upheld the trial court’s dismissal of the case. The court noted that “to recover for defamation the plaintiff must establish (a) a false and defamatory statement of fact concerning another; (b) an unprivileged publication to a third party; (c) fault amounting at least to negligence on the part of the publisher; and (d) … harm caused by the publication.” The court concluded that the pastor’s communications were not defamatory since they were mere expressions of opinion rather than statements of fact as required to support a defamation claim.

Application. This case illustrates an important point-most courts have limited defamation to false statements of fact as opposed to expressions of opinion. Therefore, in deciding whether or not communications made by church leaders to members of the congregation are defamatory, most courts will first determine if the communications contained statements of fact as opposed to expressions of opinion. Of course, even if the communications contained statements of fact, they cannot be defamatory unless they were “published” or communicated publicly, they were false, and they injured someone’s reputation. DeLong v. Giles, 1996 WL 224477 (Mass. App. 1996). [Officer of the Church Corporation]

Teacher Seduces High School Student

School found not liable on the basis of negligent supervision.

Church Law and Tax 1997-07-01

Sexual Misconduct by Clergy and Church Workers

Key Point. An employer is not liable on the basis of negligent supervision for an employees misconduct that could not have been anticipated or discovered through the normal exercise of reasonable care.

The Minnesota Supreme Court ruled that a school was not liable on the basis of negligent supervision for the sexual seduction of a high school student by a female teacher. The teacher used a counseling relationship with a male student as the basis for a sexual relationship that continued for several months. Most of the sexual encounters occurred during regular school hours on school premises. The victim later sued the school, claiming that it was responsible for his injuries on the basis of negligent supervision. In rejecting the victims claim that the school was guilty of negligent supervision, the court observed:

[The school] performed standard teacher evaluations of [the teacher]. In addition to the evaluations [school officials] made several unannounced visits to [the teachers] classrooms. Because the school had no public address system, all messages were hand—delivered by staff and students to classrooms throughout the course of the school day. Even with all of this interaction during the school day, the [secret] relationship between teacher and student was never observed.

A school cannot be held liable for actions that are not foreseeable when reasonable measures of supervision are employed to insure adequate educational duties are being performed by the teachers, and there is adequate consideration being given for the safety and welfare of all students in the school. The safety and welfare of the students in a school setting is paramount. However, in this case, closer vigilance would not have uncovered the relationship because both participants worked hard to conceal it.

We hold that in this case the [school] is not liable for the intentional [wrongs] of its employee even though the acts occurred within work—related limits of time and place, where such acts were unforeseeable and were unrelated to the duties of the employee.

Application. This case illustrates that churches and schools are not “guarantors” of the safety of minors on their premises. Some injuries cannot be avoided no matter how much supervision is exercised. This court recognized that this is particularly true in cases of sexual misconduct, which are actively concealed from others. Churches are held to a standard of reasonable care in the supervision of their programs and activities. If this standard is met, then a church ordinarily cannot be liable on the basis of negligent supervision for injuries that occur. This case will be a useful precedent to any church that is sued on the basis of negligent supervision for an injury to an adult or child, if it exercised reasonable care in supervising its facilities and programs. The decision is of special significance because it came from a state supreme court. P.L. v. Aubert, 545 N.W.2d 666 (Minn. 1966). [Seduction of Counselees and Church Members, Negligence as a Basis for Liability]

Prayer in School Board Meetings

Court rules that this practice does not violate the First Amendment.

Church Law and Tax 1997-07-01

Freedom of Religion

Key Point. The first amendments nonestablishment of religion clause does not prevent all accommodations of religious practice. Prayers before meetings of governmental or public bodies are an example of a practice that has been upheld by many courts.

A federal court in Ohio ruled that a school boards practice of opening each meeting with prayer did not violate the first amendment. The administration of Cleveland’s public schools has been characterized by divisiveness and rancor among board members and superintendents for most of the past two decades. Often, meetings of the school board would be filled with so much hostility among both members and the attending public that little business was accomplished. The citizens elected several new members in 1991, and the new board president immediately announced that board meetings would “henceforth begin with prayer.” At the very next meeting, a minister recited the following prayer:

Eternal Creator of us all, we come before you this night, grateful for the new year, and a new day of hope for the education of Cleveland’s children. While we give you special thanks for the new majority, we pray for a unanimous spirit to endeavor on behalf of children who too often have small voices, and little chance without champions in this important moment. Oh God of history, remind us here, this night, that human experience proves, that if there is no reaffirmation, then there will be revolution. Enable those entrusted with the leadership of this place, to be goaded into reaffirmation. Help them to amend the rules that protect the status quo, amend the rules that enforce-while not allowing for what should be; amend the rules which draw the cameras to this place, to refocus the lens and the light on the daily human triumphs taking place in the classrooms across the City. Oh God, who offers reaffirmation in each of the voters, be in the hearts and minds of the decision makers in this place, that their choices will be acceptable in your sight, and which in all things will enable teachers to teach, and students to learn in excellent, loving, productive and positive city schools. Amen.

Since the school board began opening the public meetings with prayer, a more businesslike and professional decorum has occurred. Both members of the school board and attendees have taken on a greater respect for the process. The board has been able to undertake more business than was true in the past. Prayers have been offered by representatives of the Protestant, Roman Catholic, Jewish and Muslim faiths. In January of 1996, a minister became president of the board. Since that time, rather than recruiting someone else to offer a prayer, the president has personally offered a prayer or requested a moment of silence.

Two persons objected to the offering of prayers at the beginning of board meetings. One was a public school math teacher who stated that he avoided rising for the prayer or saying “Amen” or “in some other fashion I go out of my way to avoid full participation in the prayer.” Nevertheless, he still felt “humiliated, demeaned and physically coerced into attending and participating in these prayers.” The teacher sued the school board, seeking a court order outlawing prayer at board meetings. A federal court refused to do so, and ruled that such prayers do not violate the constitution. It began its opinion by noting that

The very week the first congress approved the bill of rights, including the establishment clause, it also enacted legislation providing for paid chaplains for the House and the Senate. That Congress included seventeen draftsmen of the Constitution. As the Supreme Court [has observed]: “Clearly the men who wrote the first amendment religion clauses did not view paid legislative chaplains and opening prayers as a violation of that amendment, for the practice of opening sessions with prayer has continued without interruption ever since that early session of Congress.” Within a few days of voting to accept the Bill of Rights, the House of Representatives passed a resolution asking President George Washington to issue a Thanksgiving Day proclamation. The resolution asked the President to “recommend to the people of the United States a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God, especially by affording them an opportunity peaceably to establish a form of government for their safety and happiness.” President Washington complied, and his proclamation recommended that November 26, 1789, be devoted “to the service of that great and glorious Being who is the beneficent author of all the good that was, that is, or that will be; that we may then all unite in rendering unto Him our sincere and humble thanks for His kind care and protection of the people of this country previous to their becoming a nation … the civil and religious liberty with which we are blessed.” The tradition of an annual presidential Thanksgiving Day proclamation has carried forward to the present day. There are countless examples of government deference to religion in our history. In addition to paid chaplains for the House and Senate, the government provides chaplains for the military forces, and state legislatures have employed chaplains as well. Thanksgiving and Christmas Day are national holidays based upon religious observations. Our national motto is “In God We Trust,” and that motto appears on our currency. Meetings of public bodies often commence with the Pledge of Allegiance to the American flag, a pledge which includes the language “one nation under God.” Congress has directed the President to proclaim an annual National Day of Prayer. The Supreme Court and other federal courts have opened with the invocation “God save the United States and this Honorable Court” since the days of Chief Justice Marshall. Thus the nation has a tradition of “accommodation of all faiths and all forms of religious expression, and hostility toward none.”

The court then observed that in 1983 the Supreme Court ruled that it is permissible for state legislatures to hire paid chaplains to offer prayer at the beginning of legislative sessions. Marsh v. Chambers, 463 U.S. 783 (1983). It conceded that “a board of education is more administrative than legislative in nature,” and so the Marsh case is not directly relevant. However, it pointed out that the Supreme Court in the Marsh case did not restrict itself solely to the context of legislatures. Rather, the Court noted, “the opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country.”

The court concluded: “Because the prayer at issue is the prayer of a public deliberative body and occurs in a fundamentally adult atmosphere, rather than in a student or school oriented atmosphere, the case fits most closely into the Supreme Court’s Marsh analysis. As such, the practice of opening prayer does not violate the establishment clause of the Constitution ….” Coles v. Cleveland Board of Education, 950 F. Supp. 1337 (N. D. Ohio 1996). [The Establishment Clause, Prayer on Public Property]

School Custodian Dismissed for Prior Conviction

It’s a good idea to perform background checks on anyone with access to minors.

Church Law and Tax 1997-05-01

Sexual Misconduct by Clergy and Church Workers

Key point. Custodians often may have unsupervised access to minors, and so churches should not overlook them when screening youth and children’s workers.

An Ohio court ruled that a school could dismiss a custodian on account of a prior conviction for public indecency, since he was a person having responsibility for the “care, custody, or control” of children. An individual applied for work as a part-time custodian at a public elementary school. He failed to reveal on his employment application that he had been convicted of public indecency some twenty years earlier. The school hired the custodian, subject to a criminal records check mandated by state law. The records check disclosed the prior conviction, and the school terminated the custodian on the basis of a state law specifying that no public school “shall employ a person responsible for the care, custody, or control of a child if the person previously has been convicted of or pleaded guilty to” a designated crime (including public indecency). The custodian appealed his dismissal, and a court ordered the custodian reinstated since he “clearly was not in a position as a person responsible for the care, custody, or control of a child.” School officials appealed this ruling, and a state appeals court upheld the school’s dismissal of the custodian. The court noted that the custodian worked five-hour shifts, beginning at 2:30 in the afternoon, and that he reported to work as students were being dismissed. While his duties consisted of cleaning and maintaining school property, he had contact with students as they were leaving the school and with students who were in the school after regular school hours retrieving books and participating in after-school activities. A school official further noted that custodians were expected to intervene if they observed a student engaging in conduct that is dangerous or in violation of school rules. And, in an emergency, custodians could be entrusted with the care of children. These facts persuaded the court that the custodian was a person responsible for the care, custody, or control of a child, and accordingly the school was required by state law to dismiss him when it learned of his previous criminal conviction.

Application. This case illustrates an important point-custodians often have unsupervised access to minors. This makes them a potential risk to the safety of children. Churches that screen youth workers often overlook some positions in their screening process, including custodians. This may represent a dangerous “gap” in a church’s screening program. The case also illustrates the value of a criminal records check. The custodian in this case did not mention his prior conviction on his employment application. The conviction was discovered only when the criminal records check was performed. Finally, note that the custodian was terminated though his previous crime occurred some twenty years ago. The fact that a crime occurred many years ago does not necessarily make the applicant a lesser risk. Prete v. Akron City School District, 667 N.E.2d 73 (Ohio App. 1995). [Negligence as a Basis for Liability]

Public Prayers at High School Graduations

Prayers may violate the First Amendment.

Church Law and Tax 1997-05-01

Freedom of Religion

Key point. Student-initiated and led prayers at public high school graduation ceremonies may violate the first amendment’s nonestablishment of religion clause, even if the senior class votes in favor of a prayer and a notice is placed in graduation programs informing attendees that the prayer is not endorsed by the school.

A federal appeals court ruled that a graduating senior could not recite a prayer at a public high school graduation ceremony, even though the senior class voted to include the prayer. A public high school adopted a policy allowing the senior class to conduct a poll of the graduating class to determine whether it wanted “a prayer, a moment of silence, or nothing at all” to be included in the graduation ceremony. The senior class elected to include a prayer, and a graduating senior was selected to give the prayer. School policy mandated that a disclaimer be printed in the official graduation program explaining that the prayer did not reflect the views of the school. A few weeks before the graduation ceremony, a student asked school officials for permission to have a representative of the ACLU address “safe sex” and condom distribution at the ceremony. When this request was denied, the student and ACLU sued the school arguing that the proposed student-led prayer violated the first amendment’s nonestablishment of religion clause. A federal district court ruled that the prayer would violate the first amendment, and the school appealed. A federal appeals court upheld the lower court’s ruling. The court based its decision on a 1992 Supreme Court ruling holding that a prayer offered by a minister at a public high school graduation ceremony was unconstitutional. Lee v. Weisman, 505 U.S. 577 (1992). In the Lee case the Supreme Court stressed the following two factors: (1) state officials directed the performance of a formal religious exercise at a public high school graduation, and (2) students who objected to the prayer had no real choice but to attend, since they could not be expected to miss their own graduation ceremony. The appeals court concluded that both factors were present in this case as well. First, the school exercised a “high degree of control” over the contents of the graduation ceremony, despite the fact that the senior class was allowed the option of including prayer: “Delegation of one aspect of the ceremony to a plurality of students does not constitute the absence of school officials’ control over the graduation. Students decided the question of prayer at graduation only because school officials agreed to let them decide that one question.” Second, the court concluded that students’ participation in the prayer was “coerced,” since they had no real alternative but to be present for the prayer. The court quoted with approval from the Lee case:

What to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the state to enforce a religious orthodoxy …. The undeniable fact is that the school district’s supervision and control of a high school graduation ceremony places public pressure, as well as peer pressure on attending students to stand as a group or, at least, maintain respectful silence during the invocation and benediction. This pressure, though subtle and indirect, can be as real as any overt compulsion …. For the dissenter of high school age, who has a reasonable perception that she is being forced by the state to pray in a manner her conscience will not allow, the injury is … real.

The court concluded: “References to, and images of, religion are to be found throughout this society. Yet, the prevalence of religious beliefs and imagery cannot erode the state’s obligation to protect the entire spectrum of religious preferences from the most pious worshipper to the most committed atheist. Those preferences are the business of the individual, not the state nor the public schools it maintains. The first amendment does not allow the state to erect a policy that only respects religious views that are popular because the largest majority cannot be licensed to impose its religious preferences upon the smallest minority.”

Four judges dissented from the court’s opinion, noting that another federal appeals court had ruled that student-led and initiated prayers at public high school graduation ceremonies do not violate the nonestablishment of religion clause.

Application. The legal validity of prayers at public high school graduation ceremonies remains unresolved. The Supreme Court ruled in 1992 that local clergy cannot offer prayers at such events. The court in this case extended this ruling to student-initiated and led prayers. However, as the dissenting judges pointed out, another federal appeals court has ruled that student-initiated and led prayers are permissible. The court’s decision is binding only in the third appellate circuit, which covers the states of Delaware, New Jersey, and Pennsylvania. The opposite view applies in the fifth appellate circuit, which covers the states of Louisiana, Mississippi, and Texas. Jones v. Clear Creek Independent School District, 977 F.2d 963 (5th Cir. 1992). ACLU v. Black Horse Pike Regional Board of Education, 84 F.3d 1471 (3rd Cir. 1996). [Wallace v. Jaffree, The Establishment Clause, Prayer on Public Property]

School Dismisses Unmarried, Pregnant Teacher

Court rules that it did not violate federal law.

Church Law and Tax 1997-03-01

Employment Practices

Key point. Under federal law, and the corresponding laws of some states, religious organizations have the right to discriminate in employment decisions on the basis of the religious affiliation of applicants.

Key point. Churches and religious schools can discriminate against employees on the basis of religion, but they must be able to demonstrate that religion is not a pretext of discriminating against a protected group of workers. If the school only dismissed female workers who engaged in sex outside of marriage, the religious exemption would not apply.

A federal appeals court ruled that a church—operated preschool did not violate federal law when it dismissed an unmarried, pregnant preschool teacher. The school, which was affiliated with the Church of Christ, expects that its teachers will adhere to its religious tenets. All teachers are required to be Christians, and preference is given to those who are Church of Christ members. The school uses as its religious tenets the teachings of the New Testament, including the prohibition against sex outside of marriage. The dismissed worker knew that the school was a church—related school and indicated on her employment application that she had a Christian background and believed in God. The worker insisted that she was never told that she would be terminated if she engaged in sex outside of marriage. However, the school’s faculty handbook (given to worker after she was hired) reads: “Christian character, as well as professional ability, is the basis for hiring teachers at [the school]. Each teacher . . . is expected in all actions to be a Christian example for the students.” When school administrators learned that the unmarried worker was pregnant, a decision was made to terminate her employment. However, the woman was informed that she would be eligible for re—employment if she married the father of the child. The school’s president claimed that the woman was dismissed not because of pregnancy, but because the facts indicated that she engaged in sex outside of marriage. The woman filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging sex discrimination based on pregnancy. The EEOC investigated the claim and issued a “right to sue letter” to the woman, indicating that it felt she had a viable claim. The woman then filed a lawsuit in federal court, claiming that the school committed unlawful sex discrimination when it fired her. A federal district court rejected the woman’s claim, and she appealed.

A federal appeals court agreed with the district court that the school had not violated federal law by dismissing the pregnant worker. It noted that Title VII of the Civil Rights Act of 1964 prohibits certain employers (those with at least 15 employees that are engaged in interstate commerce) from discriminating against any employee on the basis of race, color, national origin, religion, or sex. While sex discrimination includes discriminating against employees on the basis of pregnancy, Title VII specifically permits religious organizations to discriminate in employment decisions on the basis of religion. The court concluded that the school dismissed the woman solely on account of her violation of its religious teachings against premarital sex and not because she was pregnant. The court rejected the woman’s claim that the school applied its policy against premarital sex in a discriminatory way that was more strict when women were involved. The court observed that “although Title VII requires that [the school’s] code of conduct be applied equally to both sexes, [the school] presented uncontroverted evidence . . . that [the administrator] had terminated at least four individuals, both male and female, who had engaged in extramarital sexual relationships that did not result in pregnancy.”

Finally, the court acknowledged that the school’s policy occasionally may have been violated because the administrator was unaware of every instance of premarital sex by his staff, but it insisted that “isolated inconsistent application” of the policy “was not sufficient to show that [the school’s] articulated nondiscriminatory reason was not the real reason for [the woman’s] termination.”

There a number of points to note about this decision:

1. Who is covered by Title VII? The court never addressed the question of why the school was subject to Title VII. While it probably had at least 15 employees, was it engaged in interstate commerce? If not, then Title VII would not apply.

2. Religious discrimination is permissible. The case illustrates that religious organizations and schools that are subject to Title VII can discriminate in employment decisions on the basis of religion. However, there are a few very important qualifications here that were mentioned by the court:

The discrimination must in fact be based no religion. Religion cannot be a “pretext” to discriminate on the basis of sex, pregnancy, or some other protected category.

The dismissed worker’s supervisor informed her that the reason she was being terminated was because she was “pregnant and unwed.” While this appeared to make pregnancy the basis for the school’s decision, the court noted that the supervisor used the phrase “pregnant and unwed” to mean that the dismissed worker engaged in sex outside of marriage in violation of the school’s religious principles. Further, the court pointed out that the supervisor lacked the authority to dismiss the worker. Only the school’s president could do so. Accordingly, the supervisor’s statements regarding the basis for termination were not relevant.

While a religious school can discriminate on the basis of religion, it must do so in a way that does not adversely impact a protected group of employees. The dismissed worker insisted that the school dismissed only females who were pregnant and unwed as opposed to persons generally engaging in sex outside of marriage. The court stressed that the evidence in this case demonstrated that the school had consistently discharged both male and female employees who engaged in sex outside of marriage.

3. Information known to subordinate workers. The dismissed worker claimed that her supervisor was aware that she had suffered a miscarriage in the past. She insisted that this knowledge proved that the school did not uniformly follow its policy of condemning sex outside of marriage, and that “religion” was merely a “pretext” to disguise sex discrimination. The court disagreed. It pointed out that knowledge by the supervisor of the worker’s prior miscarriage was never communicated to the president who alone could make a decision to dismiss an employee. Boyd v. Harding Academy of Memphis, Inc., 88 F.3d 410 (6th Cir. 1996). [Title VII of the Civil Rights Act of 1964]

Student Molested in School Bathroom

School found liable on the basis of negligence.

Church Law and Tax 1997-03-01

Sexual Misconduct by Clergy and Church Workers

Key point. Churches may be liable on the basis of negligent supervision for acts of child molestation occurring in restrooms.

A New York court found a school liable on the basis of negligence for the molestation of a kindergarten student in a school restroom. The court’s ruling will be relevant to churches and church—operated schools. The student was permitted to go to the bathroom alone, where he was molested by an older student at the school. The child’s parents sued the school, and a jury found that the child’s kindergarten teacher had been negligent in allowing the child to go to the bathroom unaccompanied. The child was awarded $500,000 in damages. The school appealed, and state appeals court upheld the finding of negligence. The court began its opinion by noting that “[w]hile we recognize the general rule that educational institutions are not the insurers of the safety of their students and cannot be held liable for every instance in which one pupil injures another, schools are, however, under a duty to adequately supervise their students and are liable for foreseeable injuries which are [directly] caused by the absence of such supervision.” The court noted that this duty “derives from the fact that the school, once it takes over physical custody and control of the children, effectively takes the place of their parents and guardians.”

The court noted that in this case the child was sent from his classroom (while class was in session) to the school bathroom, alone and unsupervised, where the assault occurred. Further, “[t]his was done despite two separate school memoranda, circulated amongst the school’s staff, which are explicitly provided security procedures to the contrary.” The first memoranda stated that “teachers are instructed to send all pupils under third grade to the bathroom with a partner.” The second memorandum stated that “to further insure security any child leaving your room or corridor area must have a pass. Young children should go in pairs.” A school principal testified that the reason for these rules is to make young children more secure from attack by older students. She also stated that she considered the bathroom to be a place where young children “are particularly vulnerable.”

The court concluded that the school “did not act with ordinary prudence in allowing the five—year old plaintiff to proceed to the bathroom alone.” The school insisted that it could not have been negligent since it was not aware of any previous acts of molestation occurring in its bathroom. The court disagreed. It acknowledged that schools generally must have notice of prior similar misconduct to be liable for assaults upon older students, since school personnel “cannot reasonably be expected to guard against all of the sudden, spontaneous acts that take place among students daily.” However, in the case of a young child who is sent by his teacher to a public bathroom unescorted, the potential danger to the child “can be reasonably foreseen and could have been prevented by adequate supervision of the school.” As a result, “while it would be reasonable to allow high school students to go to a public bathroom unaccompanied, the same practice surely does not apply to a five—year old child, who is unable to resist, is defenseless against attack, and poses an easy target for sexual molestation or other assaults. Stated another way, even the most prudent parent will not guard his or her teen at every moment in the absence of some foreseeable danger of which he or she has notice; but a five— year old child in a public bathroom should be supervised or, at the very least, be accompanied by another child.”

What is the relevance of this case to churches and church schools? Consider the following: First, it illustrates the risk that churches and schools face when sending young children to the restroom unescorted. The court suggested that sending young children to the restroom in pairs will reduce the risk of negligence. Second, the court placed great emphasis on the fact that the school had adopted policies prohibiting young children from going to the restroom unescorted. This demonstrates the importance of adhering to policies-especially when violation of a policy may lead to personal injury. Third, the court acknowledged that schools (and presumably churches) cannot be responsible for the safety of older children at every moment, and that sending adolescents to a restroom unescorted will not constitute negligence absent knowledge of prior assaults occurring in the restroom. Fourth, churches and schools can be liable on the basis of negligence for the molestation of young children who are sent to a restroom unescorted, even if there is no knowledge of prior assaults occurring in the restroom, since “where the duty to supervise is mandatory, notice is not an issue.” Garcia v. City of New York, 646 N.Y.S.2d 508 (A.D. 1996). [ Negligent Supervision]

Former Teacher Sues School for Breach of Contract

Court rules that teacher may sue former employer.

Church Law and Tax 1997-03-01

Employment Practices

Key Point. In some states, a religious organization’s decision to dismiss an employee may be subject to civil court review if the employee performed no “ministerial functions.”

Key Point. Employee handbooks can limit an employer’s legal right to dismiss “at will” an employee hired for an indefinite term.

Key Point. Federal age discrimination law prohibits discrimination in employment decisions on the basis of the age of an applicant or employee who is 40 years of age or older. This law applies to some religious organizations.

A federal appeals court ruled that a church school could be sued on the basis of breach of contract by a teacher who was dismissed. The facts of the case are simple. A second grade teacher was informed, after 23 years of teaching at a parochial school, that her school was being closed and that she was not going to be offered a teaching position in another parochial school. The teacher sued the school and diocese, claiming that her dismissal amounted to age discrimination in violation of federal law. She also asserted that the school and diocese had breached her contract of employment. A jury rejected the teacher’s age discrimination claim, but agreed with the teacher that the school and diocese had breached her employment contract and awarded her $83,000 in damages. Specifically, the jury found that the school’s “teachers’ handbook” was part of the teacher’s employment contract and that the school breached this contract by failing to follow a provision requiring it to objectively evaluate each teacher according to specified criteria. The school and diocese appealed. Their main argument was that the court’s resolution of the breach of contract claim was prohibited by the first amendment’s nonestablishment of religion clause, which prohibits entanglement between church and state. The court disagreed, noting that “[r]eligious groups … are generally not immune from all governmental regulation of their employment relationships, or from court enforcement of those laws.” The court concluded:

[T]he judicial enforcement of state employment contract law generally requires little intrusion into the functioning of religious institutions. Furthermore, the only reference to religion made by the diocese is its conclusory allegation that [the teacher] was not hired at [another school] because she “did not adequately prepare children for the sacraments.” We believe that this allegation … did not put into issue the validity or truthfulness of Catholic religious teaching. The diocese’s entanglement argument must be rejected.

The court conceded that there may be cases of age discrimination where “the relationship between employee and employee is so pervasively religious that it is impossible to engage in an age—discrimination inquiry without serious risk of offending the [nonestablishment of religion] clause.”

This case illustrates two important points. First, churches and church schools will be less vulnerable to discrimination and breach of contract claims if they create job descriptions emphasizing the spiritual aspects of each position. Many courts have ruled that teachers parochial schools are performing a vital religious function. Unfortunately, this was not adequately documented or argued in this case. Second, the case illustrates the importance of following those procedures (such as periodic employee evaluations) mandated by an employee manual or handbook. If these policies are clearly set forth, but then ignored, a church or school risks being sued for breach of contract. Gargano v. Diocese of Rockville Centre, 80 F.3d 87 (2nd Cir. 1996). [Discharge and Discipline of Teachers, Application of Federal Labor and Discrimination Laws to Private Schools]

12-Year-Old Raped After Leaving School Outing

Court rules that the school is not liable.

Church Law and Tax 1997-03-01

Sexual Misconduct by Clergy and Church Workers

Key point. Churches that fail to adequately monitor or supervise children’s activities may be legally responsible for resulting injuries on the basis of negligent supervision. However, they may be excused from liability for injuries occurring as a result of unforeseeable criminal activity.

A New York court found a school not liable on the basis of negligent supervision for the rape of a 12—year—old girl that occurred when she left a school outing without permission. The victim and her class of 30 students were attending a school outing at a public park. She left the group to have lunch at a nearby pizza restaurant. Upon returning to the park, she discovered that her class had left. Instead of returning to school, she walked home. While walking home she was abducted and raped by two adolescent males. The victim sued the school, claiming that her injuries were caused by its negligent supervision of the class outing. A jury found the school negligent, and awarded the victim $3 million in damages. The verdict was based in part on the testimony of an expert in school safety that the school had departed from “safe and common practices.” In particular, he noted the following: (1) there should have been at least one more adult supervising the group of 30 elementary—age children (only two adults were present during the outing); (2) students were not “paired off” as buddies; (3) arrangements were not made to have the class meet together at least once each hour while at the park; (4) students were not told that they could not leave the park alone; and (5) students were not told that they would only be dismissed from the outing after they returned to school. The safety expert also testified that the teacher in charge of the outing should have taken several steps immediately upon discovering that a child was missing. These included: (1) notifying the school immediately to seek guidance from his superiors; (2) notifying the park police; (3) asking another teacher to take the children back to school so he could continue the search for the missing child; (4) remaining in the park until shortly before dismissal time, to give the victim more time to return; and (5) notifying school officials upon his return that the victim was still missing.

The school appealed, and a state appeals court reversed the jury verdict and ruled that the school was not responsible for the victim’s injuries. It concluded that even if the school had negligently supervised the outing it could not be responsible for the victim’s injuries since “the unforeseeable conduct of [the two rapists] constituted a superseding tortious act that absolved the [school] of any culpability for [the victim’s] injuries.” In other words, if an organization is negligent in supervising a children’s activity, its negligence may not be a basis for liability if a child is injured as a result of an unforeseeable criminal act. The criminal act is a “superseding, intervening cause” of the victim’s injuries and absolves the organization of liability even though it may have been negligent. Bell v. Board of Education, 646 N.Y.S.2d 499 (A.D. 1996). [ Negligent Supervision]

Can Parents Claim “Educational Malpractice” Against a School?

Usually not, Colorado court says.

Church Law and Tax 1995-01-01 Recent Developments


Key point: Church-operated schools ordinarily cannot be sued for “educational malpractice.”

A federal court in Colorado dismissed a parent’s lawsuit alleging that a church-operated high school and several affiliated denominational agencies were guilty of educational malpractice. The parent was opposed to certain teachings and activities at the school that he claimed were in violation of church teachings. The court dismissed these claims on the ground that “Colorado does not recognize a claim for educational malpractice” and that courts in other states have “consistently refused to recognize educational malpractice” claims. Further, the court insisted that the parent’s claim that his child received a “substandard Biblical Christian education” because of various alleged teachings and practices could not be resolved by the civil courts. It observed that any resolution of whether the child “was provided an adequate Biblical Christian education in accordance with the tenets of [her church] is barred by the first amendment [guaranty of religious freedom].” Finally, the court rejected the parent’s claim that his daughter had been subjected to an “atmosphere of sexual harassment” at the school in violation of Title VII of the Civil Rights Act of 1964. The court observed that Title VII only applies to the employer-employee relationship, and not to teachers and students. Houston v. Mile High Adventist Academy, 846 F. Supp. 1449 (D. Colo. 1994).

See Also: Incorporation and Tax Exemption

Schools’ Liability for Teachers’ Sexual Misconduct

What responsibility does an employer have for an employee’s acts?

Church Law and Tax 1994-11-01 Recent Developments

Sexual Misconduct by Clergy and Church Workers

Key point: A church will not necessarily be responsible for every incident of sexual molestation that occurs on church premises, even behind locked doors. The church must be shown to have been negligent.

A New York state court ruled that a public school district was not legally responsible for a teacher’s acts of sexual misconduct. The superintendent of a public school system received a telephone call from a person identifying herself as a former student. She alleged that a male teacher (whom she identified) had engaged in inappropriate sexual contact with two female high school students. The superintendent immediately met with the teacher who denied the accusations. A short time later one of the alleged victims informed her father who called the police. This led to the teacher’s arrest and conviction for the crime of endangering the welfare of a child. He was sentenced to prison. The father sued the school district arguing that it was responsible for his daughter’s injuries on the basis of the doctrine of “respondeat superior” (an employer is responsible for acts of its employees committed within the scope of their employment) and negligence. A trial court dismissed the case and the father appealed. A state appeals court upheld the dismissal of the case against the school district. With regard to liability based on respondeat superior, the court observed:

A school district, like any other employer, may be held vicariously liable under the doctrine of respondeat superior for a tort committed by an employee in the course of the performance of the employee’s duties …. Here it is undisputed that on several occasions … the teacher molested [the victim] who was then a junior in the district’s high school. Although these acts occurred on school property during school hours, they were clearly outside the scope of the teacher’s employment as they were wholly personal in nature and certainly not done in the furtherance of the district’s business. Therefore we conclude that, as a matter of law, the doctrine of respondeat superior is inapplicable to this case.

The court also rejected the father’s claim that his daughter’s injuries were caused by the school district’s negligence. Specifically, the father alleged that the district was guilty of negligent supervision. The court rejected this theory of liability as well, noting that:

It is well established that a school district has the duty to exercise the same degree of care and supervision over the pupils under its control as a reasonably prudent parent would exercise under the same circumstances. The standard for determining whether this duty was breached is whether a parent of ordinary prudence placed in the identical situation and armed with the same information would invariably have provided greater supervision.

[The father] maintains that the district breached this duty by permitting the teacher to meet with the student behind locked doors. We disagree. The harm posed by the teacher’s proclivities to engage in inappropriate sexual conduct with students was not known or foreseeable at the time these incidents happened. Without such knowledge, there would have been no reason for a parent of ordinary prudence to prevent his or her child from meeting privately with the teacher during school hours, given the degree of trust reposed in teachers and the fact that such meetings are an integral part of the educational process.

This case will be a useful precedent for churches that are accused of responsibility for the sexual molestation of minors on church premises on the basis of negligent supervision or respondeat superior. Mary KK v. Jack LL, 611 N.Y.S.2d 347 (A.D. 3 Dept. 1994). [PCL12A1, PCL12A3]

See Also: Vicarious Liability | Negligent Supervision

Age Discrimination and Religious Schools

Court rules that federal age discrimination law applies to church-run school.

Church Law and Tax 1994-07-01 Recent Developments

Employment Practices

Key point: Federal age discrimination law prohibits discrimination in employment decisions on the basis of the age of an applicant or employee who is 40 years of age or older. This law applies to some religious organizations.

A federal appeals court ruled that federal age discrimination law applied to a church school. A Catholic parochial school did not offer a teaching contract to a math teacher who had taught at the school for 5 years. The school noted that the teacher did not open classes with prayer and did not attend Mass with students. The former teacher sued the school for age discrimination. A federal district court dismissed the lawsuit, concluding that a religious school is exempt from federal age discrimination law. The teacher appealed, and a federal appeals court reversed the district court and ruled that the school was subject to the age discrimination law. The court began its opinion by noting that the federal Age Discrimination in Employment Act makes it unlawful for an employer to discriminate on the basis of age against any applicant or employee who is at least 40 years of age. The Act applies to any employer that is “engaged in an industry affecting commerce who has twenty or more employees.” The Act does not specifically say whether religious employers are subject to or exempt from its provisions. The school argued that subjecting it to the provisions of the Act would create an “excessive entanglement” between church and state in violation of the first amendment. The court disagreed on the basis of the Supreme Court’s 1979 decision in N.L.R.B. Catholic Bishop of Chicago, 440 U.S. 490 (1979). In the Catholic Bishop decision, the Supreme Court ruled that in deciding whether of not a federal law applies to religious organizations, a civil court first must ask if applying the law “would give rise to serious constitutional questions.” If it would, then the law cannot be applied to religious organizations without an “affirmative expression of congressional intent” to apply the law to such organizations. The federal appeals court noted that

[t]he majority of courts considering the issue have determined that application of the [Age Discrimination in Employment Act] to religious institutions generally, and to lay teachers specifically, does not pose a serious risk of excessive entanglement. These courts have recognized … the limited inquiry required in anti-discrimination disputes …. [Age discrimination] actions do not require extensive or continuous administrative or judicial intrusion into the functions of religious institutions. The sole question at issue … is whether the plaintiff was unjustifiably treated differently because of his age …. The Supreme Court has stated that “routine regulatory interaction which involves no inquiries into religious doctrine, no delegation of state power to a religious body, and no detailed monitoring and close administrative contact between secular and religious bodies, does not of itself violate the [Establishment Clause’s] nonentanglement command.” Hernandez v. Commissioner, 490 U.S. 680 (1989). Application of the [Act] to the case at bar requires just such routine regulatory interaction between government and a religious institution.

The court acknowledged that the Act is not applicable to claims brought by members of the clergy against their religious employers, since these cases involve “the pervasively religious relationship between a member of the clergy and his religious employer.” The court conceded that “[t]here may be cases involving lay employees in which the relationship between employee and employer is so pervasively religious that it is impossible to engage in an age-discrimination inquiry without serious risk of offending the [first amendment]. This is not such a case.”

The court noted that even if this case did present serious entanglement concerns, “we would still find the [Act] applicable under the reasoning of Catholic Bishop because … we are convinced that Congress implicitly expressed an intention to apply the [the Act] to religious institutions.” It based this conclusion on the fact that Congress modelled the Act after Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment decisions on the basis of race, color, national origin, gender, or religion. While Title VII specifically exempts religious organizations from the ban on employment discrimination based on religion, it does not exempt them from the other forms of discrimination (based on race, color, national origin, or gender). The court continued:

As several courts have noted, the legislative history of Title VII makes clear that Congress formulated the limited exemptions for religious institutions to discrimination based on religion with the understanding that provisions relating to non-religious discrimination would apply to such institutions. Given that Congress intended to apply Title VII to religious institutions, and that Congress modelled the [Age Discrimination in Employment Act’s] coverage upon that of Title VII, we are convinced that they also intended to apply the [Act] to such institutions.

The court sent the case back to the trial court for a trial on the issue of whether the school did not renew the teacher’s contract as a result of age, or religion. The court expressed confidence that “the able district judge will be able to focus the trial upon whether [the teacher] was fired because of his age or because of failure to perform religious duties, and that this can be done without putting into issue the validity or truthfulness of Catholic religious teaching.” DeMarco v. Holy Cross High School, 4 F.3d 166 (2nd Cir. 1993). [PCL10E1]

See Also: Age Discrimination in Employment Act

School Facility Use

Court rules that school may not forbid the use of its gymnasium for a baccalaureate service.

Church Law and Tax 1994-05-01 Recent Developments

Freedom of Religion

Key point: Public high school baccalaureate services may be permissible on school property if the school has created an “open forum” by allowing other community groups to utilize its facilities.

A federal court in Wyoming ruled that a public high school board of education violated the constitution by forbidding the school gymnasium to be used for a baccalaureate service. A group of graduating students asked school officials for permission to rent the school gymnasium for a private baccalaureate service. The service was to be privately sponsored, open to the public, and completely unrelated to school activities. Participation by graduating seniors would be completely voluntary. After receiving verbal approval for their private baccalaureate service, the students had the graduation announcement changed to identify the place, date and time of the baccalaureate ceremony. The school board, on the advice of the state attorney general, later decided not to allow its gymnasium to be used for a baccalaureate ceremony on the ground that such a use would violate the first amendment’s nonestablishment of religion clause. The students made alternative arrangements, and then sued the school board for violating their constitutional rights of assembly, speech, and religion. With regard to their free speech claim, the students argued that the school had created an “open forum” by allowing a wide variety of other community groups to rent the gymnasium, and therefore it could not deny the same right to the students solely on the basis of the religious content of the ceremony. The school board defended its decision by insisting that the baccalaureate service was not truly voluntary and that the school was involved in the ceremony indirectly because of the following factors: (1) the graduation announcement referred to the ceremony; (2) the school choir and orchestra were to perform at the ceremony (there was additional evidence that members of the choir and orchestra were required to participate in the ceremony under penalty of a failing grade); (3) a letter from the school principal to students and parents informing them of the ceremony; and (4) some 75 percent of graduating students planned to participate in the ceremony (an amount so large that it constituted an indirect form of pressure on students to participate). The court concluded that the school board, by denying students the right to rent school property for a baccalaureate ceremony, violated the students’ constitutional right of free speech. It observed: “The United States Supreme Court has determined that a public school district rule barring use of school facilities by groups whose subject matter has a religious purpose or a religious viewpoint when all other groups are allowed such use violates the first amendment.” It rejected the school board’s argument that the ceremony was not voluntary and included indirect school participation, noting that “although the board’s disassociation from the baccalaureate ceremony could have been more unequivocal, the evidence also clearly demonstrated that baccalaureate was being sponsored by a private group of parents and students and that the event was not being sponsored by the school district itself.” The very fact that the school board was vigorously resisting the efforts of the students to conduct the ceremony on school property “aids in disseminating the message to the community that the board is not endorsing or sponsoring religion by renting [the gymnasium] to the [students] for the purpose of holding a privately sponsored baccalaureate service.” The court referred to the Supreme Court’s recent decision banning prayers at public high school graduation ceremonies, and noted that “it is evident that the dangers to be avoided are state sponsorship and endorsements of activities which compel or coerce participating in a particular religious orthodoxy.” It referred to a statement by one of the Justices in the Supreme Court’s decision that “pointedly suggested a privately sponsored baccalaureate for students who desire to express their religious feelings at the time of their graduation.” Shumway v. Albany County School District, 826 F. Supp. 1320 (D. Wyo. 1993).

See Also: Use of Public Property for Religious Purposes

Church Daycares and Non-Establishment of Religion

Court rules that city’s ordinance does not violate the First Amendment.

Church Law and Tax 1994-03-01 Recent Developments

Child care

Key point: A city ordinance may exempt church-operated child care facilities from a requirement that child care facilities obtain a special permit before operating in residential neighborhoods.

A federal appeals court ruled that a city ordinance that allowed churches to operate child care facilities in residential neighborhoods, but required other facilities to obtain a special use permit to do so, did not violate the first amendment prohibition of the establishment of religion. A woman who was denied a permit to open a secular child care center in a residential neighborhood challenged the constitutionality of the city ordinance that exempted churches from the permit requirement. A district court agreed that the ordinance constituted the establishment of religion in violation of the first amendment, noting that it conferred a benefit upon churches that is unavailable to others who wish to operate child care centers in residential areas. The court awarded the woman nearly $1 million in damages. The city appealed, and a federal appeals court ruled that the ordinance did not violate the first amendment. The court applied the Supreme Court’s three-part Lemon test for determining whether or not the ordinance constituted an impermissible establishment of religion. Under this test, first announced in a 1971 decision (Lemon v. Kurtzman), a law or government practice challenged as an establishment of religion will be valid only if it satisfies the following three conditions—a secular purpose, a primary effect that neither advances nor inhibits religion, and no excessive entanglement between church and state. The court concluded that the ordinance satisfied all three of these conditions. It observed that “the ordinance has the secular purpose of minimizing governmental meddling in religious affairs notwithstanding that the ordinance does not explicitly state that nursery schools (or day care centers) operated in churches in residential areas must give care or instruction defined as ‘religious.'” The court added, “we are wary of holding that the … ordinance would pass muster under Lemon’s purpose requirement only if it stated that nursery school and day care center activities must be ‘religious’ in nature …. [I]t is not up to the legislatures (or to courts for that matter) to say what activities are sufficiently ‘religious.’ Any legislative or judicial attempt at such a definition would surely fail. Worse, it would almost certainly undercut the neutral posture required of every branch of government under the [nonestablishment of religion clause of the first amendment].” The court also concluded that the ordinance met the second Lemon requirement—a primary effect that does not advance religion—so long as only nonprofit child care facilities operated by churches were exempted from the permit requirement. Finally, the court concluded that the ordinance did not foster an excessive entanglement with religion, and accordingly satisfied Lemon’s third requirement. The court added “[i]ndeed, as construed, the ordinance effectuates a separation between the two and avoids intrusive inquiry into religious belief and practice.” This case is important for two reasons. First, it is a strong recognition of the inadvisability of legislatures and courts attempting to define what is religious. The woman who brought the lawsuit against the city conceded that church-operated child care facilities that were “religious” or “taught religion” could legitimately be exempted from the permit requirement, but not those that were “secular” in their operation. The court wisely chose to avoid such a distinction, relying in part on a 1987 decision of the Supreme Court rejecting a claim that religious organizations can discriminate in employment decisions on the basis of religion only with respect to “religious” (and not “secular”) positions. The Supreme Court observed in that decision that “it is a significant burden on a religious organization to require it, on pain of substantial liability, to predict which of its activities a secular court will consider religious. The line is hardly a bright one, and an organization might understandably be concerned that a judge would not understand its religious tenets and sense of mission. Fear of potential liability might affect the way an organization carried out what it understood to be its religious mission.” Corporation of Presiding Bishop v. Amos, 483 U.S. 327 (1987). Second, the court recognized that “it is clear that the legitimate purpose of minimizing governmental interference with the decision making processes of a religious organization can extend to seemingly secular activities of the organization.” Cohen v. City of Des Plaines, 8 F.3d 484 (7th Cir. 1993).

See Also: Child Care Facilities

State Regulations for Schools

Court rules that regulations do not violate an organization’s religious freedom.

Church Law and Tax 1994-01-01 Recent Developments


Key point: Reasonable regulation of church-operated schools and children’s homes, in an effort to ensure safety and health, do not violate the constitutional guaranty of religious freedom.

The Mississippi Supreme Court ruled that the first amendment guaranty of religious freedom was not violated by the closing of a church-operated children’s home for failure to comply with state regulations. In 1989, the State of Mississippi enacted a law requiring children’s homes to be licensed by the state. Letters were sent to children’s homes informing them of the law and instructing them to begin compliance with the licensing requirement. A church-operated children’s home received this letter, but the administrator (an ordained minister) did not respond. He later testified that he “threw the letter in the trash because the home and children are none of the state’s business.” The church’s failure to comply with the licensing requirements concerned state officials, especially because of the numerous reports of child abuse by the administrator and his staff that the state had received in the past. The state later asked a court to close the children’s home and forbid the administrator from providing any care of children. The administrator maintained that the state had no jurisdiction over the home since the home had “elected to maintain a common law master-servant relationship with our Lord Jesus Christ [and] therefore the State of Mississippi has no lawful authority to interfere in any way with the relationship or to invade the privacy of the congregation or any individual member.” A trial court summarily rejected the administrator’s defenses, ordered the home closed, and sentenced the administrator to 5 months in jail for contempt. The state supreme court affirmed the trial court’s decision on appeal. It noted that the licensing law was enacted to ensure that the operators of children’s homes maintain minimum standards of health, nutrition, cleanliness, and sanitation. It did not permit the state to regulate religious curriculum of ministry. Under these circumstances, the application of the licensing law to a church-operated home did not violate the constitutional guaranty of religious freedom. The court observed, “nothing in the Act can be deemed an interference with his or the congregation’s freedom to establish their religion or to exercise their religious beliefs.” Fountain v. State ex rel. Mississippi Department of Health, 608 So.2d 705 (Miss. 1992). [PCL13K]

See Also: Safety and Health Regulations

Church Rental of School Facilities

Court rules that schools cannot exclude churches from renting facilities.

Church Law and Tax 1994-01-01 Recent Developments

Freedom of Religion

Key point: A public school that allows a wide range of community groups to rent its facilities cannot deny the same privilege to churches.

A federal district court in Nevada ruled that a public school policy that permitted a wide variety of community groups to rent school facilities, but denied the same opportunity to churches, violated the first amendment guaranty of free speech. A local church asked for permission to rent a portion of a public high school building for Sunday services. A public school official informed the church’s pastor that the school facilities were not rented to churches. School board regulations and state law permitted school facilities to be rented for “public, literary, scientific, recreational, or educational meetings, or for the discussion of matters of general or public interest.” Rental to religious organizations is not specifically prohibited, but school authorities interpreted the law and regulations to prohibit religious use. The church sued the school district, claiming that its constitutional rights were violated by the school policy. A federal district court agreed. It observed that the school district had created a “limited public forum,” meaning that it had opened its facilities to some but not all community groups. The court acknowledged that “when a school district creates a limited public forum, the property remains a nonpublic forum as to all unspecified uses.” But it cautioned that “if a school district wishes to exclude a category of speech or speakers … access to the forum must be limited by well-defined standards tied to the nature and function of the forum.” The court concluded that the school district failed this test, since its policy of excluding only religious speech “does not contain narrowly circumscribed guidelines.” Further, in practice the school district had allowed a number of groups to use school facilities for religious purposes, and this undermined its claim that its guidelines were “well-defined and consistently applied.” The court rejected the school district’s claim that it was compelled by the first amendment’s prohibition of an establishment of religion to deny churches access to its properties. It noted that the school district “has no compelling state interest in for excluding use of the forum by a group with a religious message.” The court acknowledged that the school district “does not have a legal or constitutional obligation to open its school buildings to the public.” Wallace v. Washoe County School District, 818 F. Supp. 1346 (D. Nevada 1992).

See Also: Use of Public Property for Religious Purposes

Charges for Use of School Facilities

Court rules that a school cannot charge churches more than other groups for the use of its facilities.

Church Law and Tax 1994-01-01 Recent Developments

Freedom of Religion

Key point: A public school that permits any community group to rent its facilities cannot charge churches a higher rental fee in order to encourage them to build their own facilities.

A federal district court in Virginia ruled that a public school policy of charging churches more rent than other community groups for the use of school facilities violated the constitutional guaranty of free speech. A public school board allowed virtually any community group to rent school facilities. As many as 9,000 community groups and individuals rent some 180 school facilities each year. The school board adopted a policy that treats churches differently from any other group. For the first five years, churches pay the same rent as any other nonprofit organization. In the sixth year, they pay twice the nonprofit rate. In the seventh year they pay three times the nonprofit rate. In the eighth year they pay four times the nonprofit rate. After the eighth year they pay five times the nonprofit rate. Further, unlike any other nonprofit organization, churches are required to provide public school authorities with “satisfactory evidence of progress towards the construction or acquisition of a church site.” School authorities defended this special treatment of churches by arguing that allowing church groups “to use school facilities on a long-term basis, at a low rental rate, would constitute the establishment of religion.” A church that had rented school facilities for 11 years sued the school board for a violation of its constitutional rights. It also demanded a refund of some $235,000 (plus interest) in excess rental fees that it was forced to pay because of the school board’s discriminatory treatment of churches. A federal district court agreed with the church, and ordered the struck down the school board’s discriminatory policy. It observed that by allowing any community group (including religious groups) to rent school facilities, the school had created an “open forum.” Accordingly, the first amendment guaranty of free speech prohibited the school from discriminating against any group solely on the basis of the content of its speech. Since the school board discriminated against churches solely on the basis of the religious content of their speech, its policy of charging churches higher rental rates violated the first amendment. The court quoted from a previous decisions of the United States Supreme Court: “Religious institutions need not be quarantined from public benefits that are neutrally available to all.” The court rejected the school board’s claim that charging churches the same rent as any other nonprofit group had the “primary effect” of advancing religion in violation of the first amendment’s ban on the establishment of religion. The court observed: “Allowing religious groups to meet in an open forum like any other group, and pay the same rent as other groups, does not have the primary effect of advancing religion. It both allows and promotes the free exchange of ideas and speech.” The court acknowledged that the church received an incidental benefit by being able to rent school facilities, but it noted that the Supreme Court had concluded in a similar case that “a religious organization’s enjoyment of merely incidental benefits does not violate the prohibition against the primary advancement of religion.” The court deferred ruling on the church’s demand for a refund of $235,000 plus interest until the parties had an opportunity to file briefs on this issue. Fairfax Covenant Church v. Fairfax County School Board, 811 F. Supp. 1137 (E.D. Va. 1993).

See Also: Use of Public Property for Religious Purposes

“Equal Pay Act” and Church-Run Schools

Do federal labor laws apply to church schools?

Church Law and Tax 1992-07-01 Recent Developments

Employment Practices

A federal district court in Indiana ruled that the “Equal Pay Act” applies to a church-operated school. A Baptist church operated a private school. The federal Equal Employment Opportunity Commission (“EEOC”) sued the church for alleged violations of the Equal Pay Act. The EEOC alleged that the church unlawfully paid higher wages and benefits to male teachers than to a class of female teachers performing equal work, and further that the church unlawfully reduced the male teachers’ wages in an attempt to comply with the Equal Pay Act. The Equal Pay Act was enacted in 1963 as an amendment to the Fair Labor Standards Act (the federal minimum wage and overtime law). The Equal Pay Act provides that no employer covered by the Act shall discriminate … between employees on the basis of sex by paying wages to employees … at a rate less than the rate at which he pays wages to employees of the opposite sex … for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions …. provided, that an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee.

The church claimed that the EEOC had no jurisdiction over the school, since the Equal Pay Act did not apply to church schools. The church claimed that Congress did not intend for the Fair Labor Standards Act, or the Equal Pay Act, to apply to churches or church-operated schools. Accordingly, the church claimed that neither the EEOC nor the federal court had “jurisdiction over the church” under either the Fair Labor Standards Act or the Equal Pay Act. The church relied primarily on a 1979 decision of the United States Supreme Court (NLRB v. Catholic Bishop) addressing the applicability of the National Labor Relations Act to church-operated schools. The National Labor Relations Act is a federal law guarantying the right to organize labor unions. The Supreme Court devised a test for determining the applicability of the Act to church schools. The test (known as the Catholic Bishop test) provides that if the exercise of jurisdiction by a federal agency over a religious organization would give rise to serious constitutional questions under the first amendment religion clauses, then the agency may not exercise jurisdiction without showing an “affirmative intention of the Congress clearly expressed” to confer such jurisdiction. The EEOC rejected the application of the Catholic Bishop test, arguing that it applied to the National Labor Relations Act and not the Fair Labor Standards Act or Equal Pay Act. It pointed out that every federal court that has addressed the Equal Pay Act’s applicability to church-operated schools has found that such organizations are subject to the Act and that no court has extended the holding in Catholic Bishop to the Equal Pay Act or Fair Labor Standards Act.

The court agreed with the EEOC’s interpretation of the Catholic Bishop case. It noted that the Catholic Bishop case addressed the National Labor Relations Act—a statute without expressed congressional intent with respect to church-operated schools. Further, the Supreme Court, in the Catholic Bishop case, pointed out the significant risk of infringement upon the first amendment guaranty of religious freedom in applying the Act to church-operated schools. The Court also found that neither the Act’s language nor its legislative history disclosed any “affirmative intention of the Congress clearly expressed” to subject church-operated schools to the Act.

The court noted that the Fair Labor Standards Act does specifically apply to church-operated schools. It “explicitly includes schools (public or private) and other not for profit organizations within the definition of `enterprises’ subject to that statute.” It referred to several court decisions reaching this same conclusion. Moreover, the court noted that “when parties have relied on Catholic Bishop as a basis for the argument that the Fair Labor Standards Act is not applicable to churches or church-operated schools, federal courts have rejected that position.” The court concluded:

Accordingly, the court rejects the church’s contention that Catholic Bishop deprives this court of the subject matter jurisdiction to entertain actions against church-operated schools brought under the Equal Pay Act. Catholic Bishop addressed the National Labor Relations Act and no other federal statute. Moreover, several courts addressing the applicability of Catholic Bishop to the Fair Labor Standards Act have found the Court’s holding distinguishable. The courts that have been faced with Equal Pay Act complaints brought against church-operated schools by the EEOC or the Department of Labor have found the jurisdiction to hear those claims.

Accordingly, the court upheld EEOC jurisdiction over the church-operated school. Equal Employment Opportunity Commission v. First Baptist Church, 1991 WL 270110 (N.D. Ind. 1991 unpublished).

See also the feature article in this issue entitled “Liability of a Church and Parent Denomination for Acts of Sexual Harassment by Clergy.”

See Also: Fair Labor Standards Act

Legal Requirements for Church Child Care Centers

Court rules that state law requiring church-operated child care facilities to be licensed, and prohibiting spanking, do not violate a church’s constitutional rights.

Does a state law requiring church-operated child care facilities to be licensed, and prohibiting spanking, violate a church's constitutional rights?

No, said a New Mexico appeals court. A Baptist church operated a child care center pursuant to a state license for many years. The church has a policy, which it believes is mandated by the Bible, permitting teachers to spank children who misbehave. Ultimately, however, the church's pastor concluded that submitting the child care center to state licensure amounted to a subordination of the center to the secular state rather than to Jesus Christ.

Accordingly, the pastor refused to renew the center's license. The state filed suit against the church, seeking a court order prohibiting the church from any further operation of the center without a license. The church responded by arguing that application of the child care licensing law to the church's facility violated the first amendment's guaranty of religious freedom. A trial court disagreed with the church's position, and the church appealed.

A state appeals court also rejected the church's position and agreed with the state that the church could not operate its child care facility without a state license. The court relied on a 1990 decision of the United States Supreme Court (Employment Division v. Smith). Prior to 1990, the courts generally allowed interference with religious practices only if a "compelling state interest" could be shown. However, in Smith, the Supreme Court said that a compelling state interest is not required to justify the application of "neutral laws of general applicability" to religious organizations.

The New Mexico appeals court concluded that the state law requiring child care centers to be licensed was a neutral law of general applicability that could be applied to a church without any need to demonstrate a "compelling state interest." The same conclusion applied to the law's anti-spanking provision. The court refused to address the church's claim that its rights under the New Mexico Constitution were violated by the licensing requirement, since this argument had not made at trial and "was made so late in the appellate process." Health Services Division v. Temple Baptist Church, 814 P.2d 130 (N.M. App. 1991).

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