Five Defenses for Catholic Education

You’re going to court—it’s almost inevitable.

Hopefully, your Catholic school or college has done all it can to protect itself from legal threats. It has adopted clear and consistent policies and employment resources, explaining its devotion and obligations to your Catholic mission. It’s done its best to avoid misunderstandings and head off lawsuits by students and employees.

But in today’s secular and often hostile culture—in which even many Catholics seem confused about topics like abortion, contraception, marriage, sexuality, and gender—discrimination lawsuits are bound to happen. And their frequency is likely to increase in the coming years.

So how does Catholic education defend itself in court?

During The Cardinal Newman Society’s recent three-part webinar series, Protecting Religious Freedom in Catholic Education, Luke Goodrich, a vice president and senior counsel at Becket Law, shared five key legal defenses available to Catholic educators. None is sufficient in itself, but together they offer powerful protection

1. Ministerial exception

According to Goodrich, the ministerial exception bars federal courts from interfering in a church’s choice of its ministers. Under the First Amendment to the U.S. Constitution, the government has no business telling a religious organization who’s going to fill a “ministerial” role, including teaching the Catholic faith. If an employee of a Catholic school or college has substantial religious functions, the institution may be shielded from that employee’s discrimination lawsuit, according to the U.S. Supreme Court’s rulings in Our Lady of Guadalupe School vs. Morrissey-Berru (2020) and Hosanna-Tabor Evangelical Lutheran Church and School vs. EEOC (2012). This likely does not apply to every employee.

2. Title VII religious exemption

Many employee lawsuits are filed under Title VII of the federal Civil Rights Act, which prohibits employment discrimination based on race, color, religion, sex, or national origin. Religious employers, however, are generally exempted from Title VII when they make employment decisions based on religion.

This is especially important following the U.S. Supreme Court ruling in Bostock v. Clayton County (2020), which redefined sex discrimination to include biases against “sexual orientation” and “gender identity.” To better qualify for the Title VII religious exemption, Catholic schools and colleges should give clear mission-centered reasons for their employment decisions—such as the necessity of ensuring faithful Catholic instruction and formation, a teacher’s willingness to teach Catholic doctrine regarding marriage and sexuality, and the importance of witnessing to Catholic moral teaching—without expressing personal approval or disapproval of an employee’s sexual or gender preferences and behaviors.

Title IX, the federal law that prohibits sex discrimination in schools and colleges that receive federal funds, also is being interpreted by the Biden administration to include “sexual orientation” and “gender identity.” But Title IX has an exemption that applies broadly to religious institutions. To defend against the Administration’s threats and lawsuits regarding athletics, restrooms, employment, and more, Catholic educators should be prepared to assert this exemption.

3. Religious Freedom Restoration Act

A near-unanimous Congress approved the Religious Freedom Restoration Act of 1993 to ensure that, even when the government has a “compelling public interest” to act in a way that impacts religious activity, it must do so in a manner that allows the greatest religious freedom. Courts have used RFRA to exempt religious organizations from federal laws—such as mandated insurance coverage for contraceptives—when the exemption does not substantially thwart the broad impact of the law.

Today some in Congress are trying to undermine RFRA. The proposed Equality Act, for instance, would remove RFRA as a protection for religious employers against the bill’s provisions regarding sexuality and gender identity. According to Goodrich, the Equality Act is a legalistic Trojan horse that would coerce both individuals and religious organizations into violating their religious beliefs.

4. Church autonomy

Federal courts prefer to resolve legal disputes by applying clear statutes rather than Constitutional claims, but Catholic educators should vigorously assert their freedom of religion. The Free Exercise and Establishment Clauses of the First Amendment guarantee the rights of religious organizations to control their internal affairs and make important internal decisions based on their religious beliefs. Because they are religious institutions, Catholic schools and colleges have the right and obligation to uphold Catholic teachings in their policies and practices. Because their mission is religious education, Catholic schools and colleges have the right and obligation to form the minds and souls of students in accord with Catholic beliefs, including moral teachings and Christian anthropology.

5. Expressive association

Beyond religious activity, the First Amendment protects free speech generally, including the right of expressive association. This means that the government cannot normally interfere with people gathering or otherwise associating to express opinion, even when that opinion may be unpopular. In Boy Scouts of America v. Dale (2000), the U.S. Supreme Court found that a non-religious organization was nevertheless permitted to establish membership requirements forbidding homosexuality. It is important that Catholic schools and colleges not only define their mission as the task of education but also that they firmly state their purpose within the Church’s own mission of evangelization. Catholic schools and colleges are communities devoted to professing the Catholic faith and preaching the salvation found only in Christ. Catholic education, therefore, has the right of association, to express a shared belief and worldview.

Additional Steps

Goodrich encouraged Catholic educators to have a clear picture of the religious nature of the roles within their organization. Write down the specific duties for each position, articulate them during the hiring process, and incorporate them into training, supervision, and employee evaluations. Incorporate the Catholic faith into the teaching of every subject.

Goodrich advises that school administrators clearly know Church teaching. He told the story of a Catholic school principal encouraging an employee to receive in vitro fertilization treatment, unaware that it violated Catholic Church teaching. This put the school in a bad legal position.

Catholic education leaders who were unable to register for this three-part webinar series but would like the video recordings can request them at (703) 367-0333 x128 or jmcclain@cardinalnewmansociety.org