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Monday, July 06, 2009

Law Schools and the Freedom of the Church

As most legal academics undoubtedly know, three fired faculty members (one tenured) from Ave Maria Law School have sued the school for wrongful termination on a variety of tort and contract theories, litigation that has been going on for almost two years and has cost the school a great deal of money. The blog Ave Watch has closely monitored the litigation and the controversy, as well as being a general source of criticism for the school and founder Tom Monaghan. Rick and the rest of the folks at Mirror of Justice issued a joint statement two years ago, warning of the effects of the controversy there on Catholic legal education generally.

Last month, the school moved to dismiss the claims as to all defendants for lack of subject matter jurisdiction under the Church Autonomy Doctrine (or Ecclesiastical Abstention Doctrine) and its employment off-shoot, the ministerial exemption. There was oral argument a couple of weeks ago and a decision is expected, perhaps this week.

Some thoughts after the jump.

1) I again wish the parties and the court would not speak about this as a jurisdictional issue. Michigan courts are courts of general jurisdiction, meaning they can hear all claims arising under secular law, regardless of source. The plaintiffs have brought straight-forward tort and contract claims under Michigan law, plainly within the court's adjudicative authority. The Church Autonomy Doctrine prohibits secular law from controlling religious institutions and their management of ecclesiastical matters, such as selection and supervision of ministerial employees. The First Amendment limits the scope and reach of secular law. If applicable, the Doctrine defeats the merits of the plaintiffs' claims--they have no right under secular law to be free from certain actions at the hands of a religious institution and they cannot sue religious institutions under secular law for firing them. So, to the extent the school is right about being protected by Church Autonomy, particularly in the realm of employment cases, I wish we can start talking about this as a merits issue, not a jurisdictional one. Because this case arises in state court, it seems like a good vehicle for recognizing the truly substantive nature of the doctrine.

Actually, there is fairly limited Michigan law applying the ministerial exemption to this sort of wrongful termination, so the defendants rely on a lot of federal cases involving the ministerial exemption from Title VII, which is the subject of large circuit split on the substantive merits/jurisdiction question. Ironically, one of the cases that the defendants rely on is Petruska v. Gannon University, is a leading case for the merits view of the exemption.

2) There is case law applying the doctrine to bar a Title VII claim by a nun who was denied tenure in the Canon Law Department at Catholic University. But that case involved a Church-operated school, evaluation of explicitly religious teaching and scholar, and a plaintiff who herself was a member of an Order and thus subject to a high degree of Church control.

But this would be a very new and expansive application of Church Autonomy for two reasons. First, Ave Marie is not owned, operated, or controlled by the Catholic Church; it identifies itself as a "Catholic law school." In order to receive this designation, the school needed approval from the Diocsese of Lansing and Ave Maria insists this designation requires it to abide by certain ecclesiastical doctrines. But the Church exercises no control or authority over the school, including any role in evaluating whether the school or individual professors were comporting themselves with that purportedly pervasive Catholic vision. School officials make those determinations. Second, the professors did not teach religious or canonical classes; the school was founded with the goal of bringing the Catholic intellectual tradition to bear on every aspect of instruction, although it is not clear from the briefing papers how that was carried out or how that affected the nature of classroom instruction or the evaluation of professors. Interestingly, canon law experts believe this would be an inappropriate application of the doctrine.

3) I would love to hear from Rick and others who study Catholic legal thought and Catholic education (especially legal education) about this case. What is the link between Catholic legal education and the Freedom of the Church? At what point should the Catholic or religious nature of a law school (whose core job, of course, is to teach secular law and to train future lawyers) be deemed so pervasive that every faculty member becomes, at some level, a teacher of religious doctrine or religious ideas? Would a secular inquiry into that professor's performance thus involve evaluation of sectarian matters? In other words, imagine a prawf who teaches civil procedure, but nevertheless is obligated to bring some canon law or Church doctrine into the classroom. Does satisfaction and performance on the religious component become part of the evaluation of her teaching, such that a secular inquiry into the circumstances of any adverse employment action necessarily requires a forbidden inquiry into sectarian matters? And would it be different if that faculty member's teaching package includes Canon Law?

Posted by Howard Wasserman on July 6, 2009 at 06:47 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Life of Law Schools | Permalink

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Comments

Rick:

Thanks for the comments. Quick point on the jurisdictional thing (I did not get into it in this post, but it is at the heart of my scholarly interest in the subject): The exemption is indeed "jurisdictional," but the jurisdiction at issue is the *prescriptive" jurisdiction of legislatures (and courts as Common Law rulemakers). It is a limit on the reach of substantive secular law, which translates to a limit on the claims that can be brought (successfully) under substantive law. But such limits translate to defeats on the merits, not to limits on the adjudicative jurisdiction of the courts. So my objection is that, if the court accepts Ave Maria's arguments, the court would dismiss for lack of SMJ, whereas I believe the dismissal should be on the merits.

Posted by: Howard Wasserman | Jul 7, 2009 11:46:29 AM

Howard, thanks for this post. I'd been *meaning* to say something about Monaghan's claim, but . . . the best laid plans and all that. Your questions are important ones. In my view, (i) both the church-autonomy idea generally and the "ministerial exception" specifically are vital aspects of religious freedom; (ii) from this idea and this exception it does not follow that every employee of a Catholic law school is a covered "minister" or that such a law school's contractual relationships with its employees are *all* beyond the reach and review of secular courts; (iii) a Catholic law school (or, for that matter, a University) is not merely an institution where many Catholics happen to study, teach, and write and is not merely a place that happens to offer a course or two in a "Catholic" topic; (iv) it could be true *both* that the Catholic vision appropriately inspires everything that happens in a Catholic law school *and* that tenured faculty are not all "ministers" for purposes of the ministerial exception. That is, while I understand the concern that the "exception" might "swallow the rule" if "everything is part and parcel of faith", it is not clear to me that, in order to save the rule, one has to deny that, at the end of the day, everything *is* "part and parcel of faith."

Also, with respect to the issue of using the term "jurisdictional", I see your point, Howard. At the same time, "jurisdictional" does, it seems to me, emphasize (what I think is) the fact that the immunity at the heart of the "ministerial exception" is not best regarded as a concession or accommodation by secular authority; some things really are, in an important way, beyond the law-saying reach and power of a (just) constitutional government. (Ed.: Fine, then where's the line? RG: Good question.)

Posted by: Rick Garnett | Jul 7, 2009 9:57:50 AM

Your first sentence goes to the point of my post--if everything is part-and-parcel of faith, then everything is subject (or should be subject) to the ministerial exemption. If that swallows the rule, so be it? The Court hinted at this in *Bishop of Chicago,* which held that the NLRA (and the authority of the NLRB) does not reach Catholic schools, even as to the organization of lay persons teaching secular subjects, based on the avoidance of First Amendment/Freedom of the Church concerns.

Posted by: Howard Wasserman | Jul 6, 2009 2:10:21 PM

This may not be helpful, but I have thought that the very point of Catholic education is that there is no area of teaching (or of thought in general) which can be divorced from the Faith--- not even third-grade arithmetic. Obviously, the legal rule can't follow the theology here (the exception would swallow the rule), but it is because the secular authorities have final say here: not because there are actually areas where Catholic teaching is neutral.

Posted by: AndyK | Jul 6, 2009 1:29:43 PM

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