Catholic Student Policies Protect Students, Educators

In faithful Catholic education, we don’t just teach skills, facts, and figures. We strive for “integral Christian formation,” helping students know, love, and serve God in this life and enjoy eternity with Him in the next. Our student policies, therefore, should promote virtue and holiness.

The formation in Catholic education is integral because it engages the whole student as a unity of mind, body, and spirit. We cultivate the human power of reason, train the will for moral action, and order the passions toward true goodness. We don’t adopt harmful practices, and we don’t permit harmful behaviors.

Our formation is Christian, because it embraces the dignity of every student as made in the image and likeness of God, called to communion with Him through redemption in Jesus Christ.

This agitates modern sensibilities. Today, families are constantly exposed to the rhetoric of division and resentment inspired by critical race theory, DEI (diversity, equity, and inclusion), and gender ideology. Some consciously adopt these non-Catholic worldviews, while others succumb over time to the unrelenting pressure of media and entertainment, especially on the internet and social media. They may even sue Catholic educators to force changes that compromise Catholic teaching and prevent true Catholic formation.

Of course, all this presents opportunities for us to present the Gospel and God’s loving plan for His children. As educators, we don’t shrink from proclaiming this message. Instead, we take up our role in the Church’s mission of evangelization.

One way to counter the ever-pressing culture is to produce and implement truly Catholic policies related to student formation and student conduct. The clarity of such policies and their consistent implementation will not only avoid conflicts and lawsuits, but will give the school or college strong credibility when claiming rights of religious freedom.

Start with Admissions

To conduct a review of your student policies, a logical place to start is admissions. Sharing the mission and vision of a school and its accompanying behavioral expectations in introductory meetings can greatly reduce the likelihood of moral confusion, sinful behavior, or future scandal. In cases of students struggling with same-sex attraction or gender dysphoria, policies should ensure attendance is an option if and only if the student is open to formation aligned with Christian anthropology and does not promote or overtly express disordered inclinations.

Human Sexuality Policies

Human sexuality policies can help guide school operations and interactions with students and all members of the educational community. These policies should explain that the institution will relate to all persons according to their biological sex at birth and maintain appropriate distinctions between males and females, especially in matters of facilities use, athletics teams, uniforms, and nomenclature.

Catholic educators teaching about human sexuality should ensure that all materials and instruction are carefully vetted for fidelity to Church teachings, taught by qualified and committed Catholics, and targeted to the appropriate age and developmental stage of the student. These materials should be shared in advance with parents, giving them ample time to withdraw their child from the program should they so choose.

Also included in these policies should be a prohibition against advocating for moral behavior at odds with Catholic Church teaching or participating in activities that tend to encourage immoral behavior.



Policies related to athletics are also critically important, as sports uniquely involve the whole person—mind, body, and spirit. In addition, while sporting activities often cast the broadest net for interaction and are highly valued in our culture, we have seen how they can be distorted to promote a disintegration of the mind, body, and spirit. These are most evident in today’s gender-ideology-fueled controversies. Catholic education sports policies must be articulated to address these concerns.

Policies should guard against exploitation or idolatry related to the body and protect the body not only from physical injury but also from any attack on its physical, spiritual, and psychological integrity.

Policies should also ensure that all personnel and players are formed in a Christian and virtue-based approach to sport. Introducing virtues such as justice, with its emphasis on fair play and respect, or temperance, with its emphasis on modesty and self-control in action and speech, especially in moments of pain and tension, provides lessons carried far beyond the playing field.

The benefits derived from well-written student policies are increasing. Not only do they help form a Christian community by setting clear expectations for student conduct, but they also differentiate Catholic education from secular options, all too willing to adopt the moral whims of the day. In this aspect, policies are tools of evangelization.

If you’ve procrastinated writing or refreshing your school policies, delay no longer! Clear Catholic policies will serve as pillars supporting your claim to religious freedom when a lawsuit arrives.



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

Understanding the Ministerial Exception

Will the ministerial exception help protect your Catholic school or college?

Short answer: It depends on you.

Ever since the Supreme Court’s rulings in Hosanna-Tabor (2012) and Our Lady of Guadalupe School (2020), the term “ministerial exception” has become common parlance for Catholic educators. But there is much about the exception that is misunderstood and remains undetermined. Benefitting from this powerful legal protection requires some effort to understand its intricacies.

One thing is certain: the ministerial exception depends on an employee’s real and documented religious duties. When such duties are not obvious to a secular court—as they might otherwise be in the case of a priest, nun, or religious teacher—the determination of an employee’s “ministerial” status may hinge on how clearly and convincingly an employer has defined a position and the strength of the institution’s overall religious identity.

Powerful protection, limited scope

The ministerial exception is not found in any law or regulation.

It is a legal principle derived from the First Amendment’s Free Exercise Clause, which bars government interference in religion. It also follows from the Establishment Clause, which forbids government to select religious leaders or set the criteria for their selection. Therefore, if an employee of a church or religious organization is deemed “ministerial” and sues for employment discrimination, a federal court will simply refuse to hear the case rather than risk unconstitutional entanglement with religion.

According to the Supreme Court in Hosanna-Tabor, federal courts must “ensure that the authority to select and control who will minister to the faithful—a matter strictly ecclesiastical—is the church’s alone.” This is at the heart of America’s “first liberty,” the freedom of religion.

Although the ministerial exception clearly applies to clergy and women religious, in 2020 the Supreme Court affirmed that a Catholic school religion teacher is also a “minister” of the Catholic Church for legal purposes, because teaching the Catholic faith is a sacred duty. The Court considered a number of factors—job title, job description, religious activities, job qualifications, training—none of which, it said, is determinant in itself. Since then, other federal court rulings have applied the ministerial exception to bar claims by school leaders and guidance counselors as well as parish employees.

The ministerial exception is powerful, because it can protect Catholic schools and colleges from lawsuits over abortion, “gender identity,” or “sexual orientation.” It not only protects employers, but it also avoids the cost and publicity of a trial.

It is not, however, a perfect shield for Catholic education. Many legal experts doubt that it applies to every employee, such as support and maintenance staff, but it depends on their religious duties. If even a small portion of employees are not covered by the exception, then a Catholic school or college still needs clear and consistent policies that explain the institution’s religious obligations and help employees understand expectations, so that the institution can avoid lawsuits and claim other religious protections when a suit goes to court.

The ministerial exception depends on an employee’s real and documented religious duties.

The ministerial exception also causes a serious dilemma for Catholic education: it leaves ministerial employees without any recourse to the courts in cases of discrimination based on race, sex, age, etc. A very important task for Catholic dioceses, schools, and colleges will be to ensure fair solutions for employees, such as arbitration—but the arbiter must be familiar with and fully devoted to protecting the mission of Catholic education and upholding Catholic teaching.

Looking for answers

There are still many questions about the ministerial exception that remain unresolved by federal courts, such as:

  • Does the exception prevent lawsuits related to all employment issues—hostile workplace, employee benefits, wage and hour policies—or only related to hiring and firing?
  • What duties, other than teaching religion, qualify someone as a minister—and what portion of an employee’s job must be devoted to religious activity?
  • Does the exception apply only to religion teachers or also to other teachers who are required to integrate the Catholic faith into their courses?
  • Does the ministerial exception apply equally to higher education as to elementary and secondary education?
  • Does the exception apply to support staff, if they are assigned religious duties and are selected according to religious criteria?

Until these questions are answered, it will be important for Catholic schools and colleges to fight for every inch of protection under the ministerial exception. It would be dangerous to assume the exception’s broad scope until courts have affirmed it, but it would also be self-defeating to accept a narrow reading of the First Amendment.

Meanwhile, even outside these legal considerations, there is a lack of consistency among Catholic educators about the moral and religious responsibilities of teachers and other employees in service to the mission of Catholic education. To help address this concern, The Cardinal Newman Society has just released Policy Standards on Moral Expectations of Employees in Catholic Education, our new recommended standards for employee policies in Catholic schools and colleges.

Recommended practices

To increase the likelihood that courts will apply the ministerial exception to certain school or college employees, consider doing the following:

  • Clearly tie employee duties to the Catholic mission of the school or college—not only the formation of students but also evangelization—and to any Church source or document that indicates the ministerial basis for the position.
  • Ensure that job descriptions, employee contracts, performance reviews, etc., clearly identify religious duties associated with each employment position.
  • Indicate ministerial status in employee titles when possible.
  • Job qualifications and training should reflect the ministerial importance and nature of the position.
  • Clearly communicate religious duties on job applications, during interviews, and in hiring communications.
  • Promote and support ministerial activity through continuing education and training with emphasis on the Catholic mission of the school or college and employees’ religious duties.

These recommendations are drawn from The Cardinal Newman Society’s work with legal experts and our own study of the issue, but we are not legal professionals. Employers should not act without the counsel of an attorney who is familiar with First Amendment law.

Promoting Employee Faithfulness in the Face of Increasing Employment Regulation and an Increasingly Hostile Culture

The Cardinal Newman Society seeks to promote and defend faithful Catholic education. This mission is particularly urgent at a time when Catholic and other religious educators face increasing challenges to remain faithful to their beliefs. Changes in employment law present a fundamental threat to a religious institution’s ability to require faithfulness of its leaders, faculty, and employees. After roughly 50 years of tension regarding government regulation of employment at Catholic schools and other religious employers, focused primarily on the proper boundaries of Church autonomy, the law has taken a more directly hostile turn as sexual orientation and gender identity (“SOGI”) issues have become paramount in the modern pantheon.

On June 15, 2020, in Bostock v. Clayton Cty., Georgia, 140 S. Ct. 1731 (2020), the U.S. Supreme Court found that sexual orientation and gender identity discrimination were encompassed by “sex” discrimination in Title VII of the Civil Rights Act of 1964 (“Title VII”). Within the first 18 months after the Bostock decision:

  • federal judges in Indiana and North Carolina allowed Catholic schools to be sued for sexual orientation discrimination under Title VII even though it was undisputed: (1) Title VII allows religious schools to discriminate on the basis of religion; (2) both plaintiffs were fired for sexual behavior that violated Catholic teaching; and (3) both plaintiffs were aware their jobs depended on living in a manner consistent with the Catholic faith;1
  • a three-judge panel of the Seventh Circuit Court of Appeals found that a Catholic parish’s music director was a ministerial employee, but he could still sue the Church for hostile work environment claims based on sexual orientation and disabilities;2 and
  • the Massachusetts Supreme Court found even though a professor testified that she was required to live, teach, and engage in scholarship consistent with and integrating the Christian faith, she was not a ministerial employee because she did not teach theology or “take students to religious services” and “[s]he never viewed herself or held herself out as a minister . . . .”3

Of course, hope is not lost and God is not mocked. The Church has survived and thrived amid earthly persecution by the Roman empire and communist China. Even in the short-term, several decisions have already been reversed and others are pending on appeal. However, Catholic schools—whether elementary, secondary, or postsecondary institutions—must remain shrewd as serpents and simple as doves in the face of increasingly hostile regulation of employment.

While Bostock was important, thirty-two states and the District of Columbia had adopted statutes protecting SOGI rights before the Supreme Court’s decision. And it does not appear that the dominant culture’s movement away from the Church will soon abate. These dramatic shifts, adopted at lightning speed compared to the laws’ ordinary pace of change, have created new questions and ambiguities that necessitate care and preparation by all institutions that seek to remain faithful.

All of these factors present unique challenges to educational institutions that exist to integrate their Catholic faith and beliefs in all aspects of education and student formation, from academics to activities and relationships outside the classroom. The objective of this Guide is to provide Catholic institutions with a better understanding of the current statutory and regulatory frameworks that may impact their right to hire and fire employees based on faith, and practical tools and strategies to avoid lawsuits and government investigations and to extricate themselves quickly in the event an employment dispute arises.4

The Guide proceeds in three parts. Part I sets out the pertinent federal equal employment statutes and exemptions and discusses state and local employment law and retaliation statutes. Part II describes the exceptions from discrimination statutes mandated by the U.S. Constitution. Part III provides strategies and best practices to strengthen faithfulness within an institution in order to minimize legal risk.5


Challenges to Religious Exemption in Title IX

The Cardinal Newman Society hosted a webinar on April 29, 2021, for selected Catholic college leaders, in which Gregory Baylor, senior counsel and director of the Center for Religious Schools at Alliance Defending Freedom, provided an update on challenges to the religious exemption in Title IX of the Education Amendments of 1972.

The following summarizes the Newman Society’s understanding of what we learned from this webinar and other sources. Educators should consult their attorneys for professional legal advice.

Title IX and Religious Exemption

Title IX is a federal civil rights law that bans sex discrimination in “any education program or activity receiving Federal financial assistance,” including aid to students. The law exempts religious organizations, to the extent that the “application” of the law conflicts with their religious beliefs.

The exemption states, “this section shall not apply to an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization.”

Equality Act

The Equality Act (H.R.5) was approved by the U.S. House and has been sent to the Senate. In his speech to Congress on April 28, President Biden urged passage. The bill would effectively bypass the religious exemption in Title IX by allowing students and employees to file sex discrimination lawsuits against Catholic schools and colleges under Title VI, which regulates all recipients of federal funding and has no religious exemption. The bill would also:

  • amend several civil rights laws including Titles II, III, IV, VI, VII, and IX, the Fair Housing Act, and others to include protection for “sexual orientation” and “gender identity;”
  • expand the definition of “public accommodations” to include schools and colleges; and
  • prevent any appeal to the Religious Freedom Restoration Act (RFRA) with regard to the Equality Act’s provisions.
Hunter v. U.S. Department of Education

Current and former students from 25 Christian and Mormon colleges (none Catholic) have sued the U.S. Education Department in federal court, claiming that the religious exemption in Title IX is unconstitutional. 1) It violates the Establishment Clause by giving preference to religious institutions. 2) It violates the Equal Protection Clause of the 14th Amendment by allowing federal funding for institutions that discriminate based on “sexual orientation and gender identity.” The second claim rests on precedent barring funds for institutions that practice racial discrimination.

Alliance Defending Freedom is representing three Christian colleges that have moved to intervene in the case to ensure a strong defense of Title IX. The concern is that the Biden administration will provide a weak defense, readily agree to a settlement, or even decline to defend the law.

Maxon v. Fuller Theological Seminary

Fuller Theological Seminary is a multidenominational Christian seminary with campuses in Pasadena, Houston, and Phoenix. Two students who were expelled for violating the seminary’s rules against same-sex marriage and extramarital sexual activity sued the seminary, but in October 2020 a U.S. district court dismissed the case. It has been appealed to the U.S. Court of Appeals for the Ninth Circuit. Among other claims, the plaintiffs are asking the court to rule that the religious exemption in Title IX does not apply to independent and nondenominational institutions that are not legally controlled by an established church. The Cardinal Newman Society and several Catholic colleges will be joining an amicus brief that argues for the exemption.

Challenges to Religious Exemption in Title IX

Efforts to dismantle or undermine the Title IX exemption focus on three key areas:

  • Control: The exemption can be interpreted to exclude nondenominational and independent religious colleges (the latter includes most Catholic colleges) that have no legal ownership by established churches. This, however, raises constitutional concerns, since the interpretation would discriminate against religions based on their ecclesiology.
  • Beliefs: A plaintiff could argue that certain activities related to “sexual orientation and gender identity” are not, in fact, violations of the institution’s religious tenets. This too raises constitutional concerns if a court is asked to determine an institution’s beliefs.
  • Timing: The Education Department could refuse to apply the religious exemption if an institution has not previously applied to the Department for a determination of religious status—a procedure that some religious institutions completed in recent years.


  • Strengthen Catholic identity: Firmly ground policies in Catholic teaching and explain in writing why they are necessary according to Catholic teaching. Clearly state expectations for employees and what will happen if violated.This allows a strong appeal to religious freedom.
  • Sexuality policies: Be explicit about the institution’s religious beliefs and policies regarding “sexual orientation and gender identity.” Avoid listing “sexual orientation,” “gender identity,” or religion in nondiscrimination statements, and declare your legal right to base decisions on religion. No employee benefits for “gender reassignment” or same-sex unions.

Catholic Identity Standards Project: The Newman Society is working on policy standards to help Catholic schools and colleges stay firmly grounded in Catholic identity while establishing the best protection against legal threats. This work depends on the assistance of a large number of expert reviewers. If you would like to assist, please contact the Newman Society.

New Threats to Religious Freedom Under Biden Administration

The Cardinal Newman Society hosted a webinar on February 17, 2021, for diocesan and Catholic education leaders, in which Eric Kniffen, legal counsel to the Newman Society and a former attorney for the Becket Fund and the U.S. Department of Justice, assessed early and proposed actions of the Biden administration that could affect Catholic schools. On February 15, 2021, the Newman Society hosted a similar webinar for Catholic college leaders, featuring Gregory Baylor, senior counsel and director of the Center for Religious Schools at Alliance Defending Freedom.

The following summarizes the Newman Society’s understanding of what we learned from those webinars and other sources. Educators should consult their attorneys for professional legal advice.

Executive Order 13988 on Sexual Orientation, Gender Identity

On his first day in office, Jan. 20, 2021, President Biden issued an “Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.” The order applies the “reasoning” of the Supreme Court’s Bostock ruling—finding that Title VII of the Civil Rights Act of 1964 includes “transgender” and homosexual within the scope of sex discrimination—to Title IX of the Education Amendments of 1972, the Fair Housing Act, and other laws concerned with sex discrimination. The Order specifically raises concerns about children being “denied access to the restroom, the locker room, or school sports” because of gender identity.

While the Order signals the Biden administration’s intention to press gender ideology under Title IX and other laws, it does not change the laws. Courts still need to work out whether the Bostock ruling’s reasoning regarding employment discrimination applies to education and other areas. The Order does not diminish existing religious exemptions in Title IX and Title VII.

Fair Housing Act

On Feb. 11, 2021, the Department of Housing and Urban Development issued a directive interpreting the Fair Housing Act to include “sexual orientation” and ‘gender identity” within the scope of sex discrimination. This may allow the Act to be construed to require allowing biological males access to women’s campus residences.

Equality Act

President Biden strongly supports the Equality Act, which was introduced in the House on Feb. 18, 2021 (H.R.5, 223 cosponsors). The House approved a version in the last session. The bill would:

  • amend several civil rights laws including Title IX, Title VII, the Fair Housing Act, and others to include protection for “sexual orientation” and “gender identity;”
  • expand the federal definition of “public accommodations” under Title II of the Civil Rights Act to include schools and colleges;
  • effectively bypass the strong religious exemption in Title IX by allowing students and employees to file lawsuits against Catholic schools and colleges under Title VI, which regulates all recipients of federal funding and has no religious exemption; and
  • prevent any appeal to the Religious Freedom Restoration Act (RFRA) with regard to discrimination suits based on “sexual orientation” or “gender identity.”

The Equality Act is likely to pass the House. Senate majority support is also likely. The fate of the bill may depend on whether the Senate retains the filibuster, effectively requiring 60 votes.

Do No Harm Act

Sen. Kamala Harris introduced the Do No Harm Act in the last session of the Senate (S.593, 33 cosponsors), and it was also introduced in the House (H.R.1450, 215 cosponsors). If reintroduced this session, the bill would prohibit application of the Religious Freedom Restoration Act to any provision of the Civil Rights Act or sex discrimination under the Fair Housing Act, as well as employment decisions and benefits, health plans and services, and government funds and services.

Affordable Care Act

The Biden administration may interpret the Affordable Care Act to require doctors to perform “gender reassignment” procedures and force insurers to cover such procedures. However, on Jan. 19, 2021, a federal district court in North Dakota issued an injunction preventing such a mandate for the University of Mary and others, including members of the Catholic Benefits Association.

National Labor Relations Board

Last year, the National Labor Relations Board finally agreed to abide by the Supreme Court’s 1979 ruling that prohibits the NLRB from interfering with Catholic education. In January 2020, the D.C. Circuit Appeals Court blocked NLRB oversight of Duquesne University. Nevertheless, Biden appointees are reversing NLRB policies and may reassert authority over collective bargaining.


  • Strengthen Catholic identity: Firmly ground policies in Catholic teaching and explain in writing why they are necessary according to Catholic teaching. Clearly state expectations for employees and what will happen if violated. This allows a strong appeal to religious freedom.
  • Nondiscrimination policies: Avoid listing “sexual orientation,” “gender identity,” or religion in protected categories. Declare your legal right to base decisions on religion.
  • Employee benefits: No benefits for “gender reassignment” or same-sex unions.
  • Lobby Congress: Urge Congress to protect religious education, preserve the filibuster, and oppose the dangerous Equality Act and Do No Harm Act.

Catholic Identity Standards Project: The Newman Society is working on policy standards to help Catholic schools and colleges stay firmly grounded in Catholic identity while establishing the best protection against legal threats. This work depends on the assistance of a large number of expert reviewers. If you would like to assist, please contact the Newman Society.

Key Points on Supreme Court’s Espinoza Ruling on Public Benefits for Catholic Education

The following summarizes the June 30th Supreme Court ruling in Espinoza v. Montana Department of Revenue. Educators should consult their attorneys for professional legal advice.

Bottom Line: The Espinoza ruling effectively nullifies “Blaine amendments” in state constitutions, ensuring that Catholic schools and colleges have equal access to public benefits. Caution is strongly urged to avoid entanglements that jeopardize the mission of Catholic education.

Ruling: “The application of [Montana’s] no-aid provision discriminated against religious schools and the families whose children attend or hope to attend them in violation of the… Constitution.”

Focus on religious character: The Court finds that Montana excluded schools from its tuition program “solely because of their religious character,” triggering strict scrutiny per Trinity Lutheran Church of Columbia, Inc. v. Comer (2017). Under strict scrutiny, “must advance ‘interests of the highest order’ and… be narrowly tailored in pursuit of those interests” (McDaniel v. Paty, 1978).

Not focused on religious use: The Court rejects Montana’s claim that its no-aid provision targets only the use of public benefits for religious education, per Locke v. Davey (2004). The Court questions the value of such a distinction, but it declines to resolve the matter. “None of this is meant to suggest that we agree with [Montana] that some lesser degree of scrutiny applies to discrimination against religious uses of government aid.” Locke prohibited funds only for clergy training, a narrow exclusion based on “historic and substantial” concerns.

Nullifies Blaine amendments: The Court rejects Montana’s appeal to its state constitution and no-aid provisions adopted by more than 30 states. It notes that many no-aid provisions were “born of bigotry” in the 1870s Blaine Amendment and were targeted against Catholics.


Prioritize Catholic identity: As desperate as the need for funding may be, avoid entanglements that may jeopardize the mission of Catholic education. Accept no compromise with nondiscrimination provisions that violate Catholic teaching.

Prioritize Catholic formation: School choice and scholarship programs can be very helpful to schools and families in need, but admissions procedures should accept only students whose parents embrace the mission of Catholic education. Preserve strong Catholic formation.

Catholic Identity Standards Project: The Newman Society is working on policy standards to help Catholic schools and colleges protect and strengthen Catholic identity. This work depends on the assistance of a large number of expert reviewers. If you would like to assist, please contact Michael Kenney, director of Catholic Identity Standards Project, at

Key Points on Supreme Court’s Our Lady of Guadalupe Ruling on Ministerial Exception

The Cardinal Newman Society is working on detailed guidance to help Catholic schools and colleges strengthen their ability to claim the “ministerial exception” in light of the July 8th Supreme Court ruling in Our Lady of Guadalupe School v. Agnes Morrissey-Berru (combined with St. James School v. Darryl Biel, as Personal Representative of the Estate of Kristen Biel). The following summarizes our current understanding of the ruling. Educators should consult their attorneys for professional legal advice.

Bottom Line: The ministerial exception can help protect Catholic education, but only if employee standards clearly require fidelity and religious duties for all positions and across the full curriculum. Institutions that compromise Catholic identity and have weak policies risk being left unprotected.

Ruling: “The First Amendment’s Religion Clauses foreclose the adjudication of… employment-discrimination claims” by two Catholic elementary school teachers who taught several courses including a religion course. They are within the “ministerial exception” as affirmed by the Court in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012).

Focus on duties: The Court rejects the Ninth Circuit’s arguments that an employee must be a religious “leader” and that “an employee’s duties alone are not dispositive under Hosanna-Tabor’s framework.” Justice Alito writes, “What matters, at bottom, is what an employee does. …educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school.”

No strict test: The Court rejects any “rigid formula” for applying the ministerial exception. Hosanna-Tabor considered four factors: the employee’s title, training, public standing, and job duties. But Guadalupe finds that “a variety of factors may be important” and clarifies that the Hosanna-Tabor ruling “did not mean that [the four factors in that case] must be met—or even that they are necessarily important—in all other cases.” The Court finds that three of the Hosanna-Tabor factors are not decisive in this case: neither teacher is titled “minister” (although the Court does note that the Archdiocese of Los Angeles describes all teachers as “catechists”), minimal prior religious training (although the Court notes employer-sponsored training), and one teacher’s failure to “hold herself out to the public as a religious leader or minister.”

Other factors: The Court notes the following factors (in no particular order): employment agreement and handbook requiring religious instruction and witness, taught many subjects including religion, taught religion daily using Catholic catechism textbook, tested students on religion, prepared and accompanied students for Mass and Confession, selected students for Mass readings and bringing gifts at Mass, took students on annual trip to cathedral, prayed with students daily, taught prayers, took religious education courses at school’s request, attended Catholic education conference, attended faculty prayer services, directed Passion play, taught in fidelity to Catholic teachings, infused classes with Catholic values and teachings, included religious displays in the classroom, and performance reviews according to religious standards.

Deference: The Court regards the religious employer or church’s determination of what constitutes religious duties to be “important” to its application of the ministerial exception.

In a country with the religious diversity of the United States, judges cannot be expected to have a complete understanding and appreciation of the role played by every person who performs a particular role in every religious tradition. A religious institution’s explanation of the role of such employees in the life of the religion in question is important.

In a nod to Catholic Church authority, the Court notes:

In the Catholic tradition, religious education is “‘intimately bound up with the whole of the Church’s life.’” Catechism of the Catholic Church 8 (2d ed. 2016). Under canon law, local bishops must satisfy themselves that “those who are designated teachers of religious instruction in schools . . . are outstanding in correct doctrine, the witness of a Christian life, and teaching skill.” Code of Canon Law, Canon 804, §2 (Eng. transl. 1998).

Scope of exception: The Court’s ruling rests on whether employee is a “teacher of religion.” Schools will need to demonstrate that all teachers (not only those who teach designated religion courses) and non-teachers (including school administrators, coaches, guidance counselors, and support staff) are truly teaching religion or have other essential religious functions. The Newman Society is developing additional guidance on this point.

Limitations: Employees not covered by the ministerial exception are still subject to employment discrimination claims, including those under the Bostock ruling regarding homosexuality and transgender status. The ministerial exception does not protect against discrimination claims by students, parents and others that are unrelated to employment (including Title IX claims).


Strengthen Catholic identity: Firmly ground all employment policies in Catholic teaching, require all teachers to include Catholic instruction across the curriculum, and require religious duties of non-teaching employees. Require all employees to evangelize in fidelity to Catholic teaching and the mission of Catholic education. Consider all factors cited above to improve ministerial exception claims. Strong Catholic identity overall (faith integrated across curriculum, sacraments, prayer, student activities, etc.) will help increase employees’ ministerial activity.

Nondiscrimination policies: Avoid listing any protected categories, but especially do not include sexual orientation or gender identity. Declare your legal right as a religious entity to make decisions based on religion; do not promise nondiscrimination on “religion.” Develop policies and arbitration for resolving discrimination claims and other disputes with ministerial employees.

Employee benefits: Check employee benefits to ensure fidelity to Catholic moral teaching.

Catholic Identity Standards Project: The Newman Society is working on policy standards to help Catholic schools and colleges protect and strengthen Catholic identity. This work depends on the assistance of a large number of expert reviewers. If you would like to assist, please contact Michael Kenney, director of Catholic Identity Standards Project, at


us supreme court

Key Points on Supreme Court’s Bostock Ruling on Sex Discrimination

The Cardinal Newman Society hosted a webinar on June 17, 2020, for Catholic education leaders, in which Gregory Baylor, senior counsel and director of the Center for Religious Schools at Alliance Defending Freedom, offered a brief assessment of the June 15th Supreme Court ruling in Bostock v. Clayton County, Georgia. The following summarizes our understanding of what we learned from that webinar and other experts. Educators should consult their attorneys for professional legal advice.

Ruling: “An employer who fires an individual merely for being gay or transgender violates Title VII,” the federal law banning employment discrimination in categories including sex.

Definition of “sex”: The Court did not explicitly reject the understanding of “sex” as male and female, as some activists hoped. It is therefore incorrect to say that the Court “redefined sex” to include multiple “genders.” The Court found that identification as homosexual or transgender is a matter related to biological sex, and so they fall within the scope of sex discrimination. The Court did not address “other genders” or uncertain gender.

Scope of sex discrimination: Previously the Court has interpreted Title VII to forbid only adverse discrimination that is unwarranted and a double standard for men or women. But this ruling finds that homosexuality and transgender identification are protected categories, even though employment standards be applied equally to men and women.

Status vs. conduct: The Court ruling fails to distinguish homosexual or transgender inclination or identification from expression and conduct—a distinction that is central to Catholic teaching.

Statutory: The ruling interprets Title VII but identifies no new constitutional rights.

Religious exemption: Title VII includes an exemption for a “religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion…” This should allow a Catholics-only hiring policy, but not every baptized Catholic is a suitable employee. Unless the exemption is strengthened, it is uncertain whether courts will allow moral and doctrinal criteria for employment, which are essential to faithful Catholic education.

Education law: Title VII has tended to guide interpretations of Title IX (on sex discrimination in education), but the Title IX religious exemption is much stronger. Although not required, several institutions have obtained prior determinations from the Education Department that they are exempt; those that have not should weigh the merits of doing so, while there is an administration that is favorable to the granting of such exemptions. COVID relief loans under the Paycheck Protection Program put schools and colleges under Title IX until the loan is forgiven or returned, but Baylor sees little reason for changing direction on PPP loans. Sex discrimination is not a statutory barrier to Title IV funding.

Legal defense: A Catholic school or college that is charged with illegal sex discrimination may have recourse to the following defenses.

Religious exemption: As noted, religious exemptions in Title VII and Title IX.

Ministerial exception: This will not cover all employees. A Supreme Court ruling on its scope is expected this month. The exception is not statutory; it is based on the First Amendment.

Religious Freedom Restoration Act: Must prove that a government action is a “substantial burden” on religion; seems to apply here, but courts may disagree. Government must then show that it could not achieve its purpose in a way that is less burdensome to religion.

First Amendment: Arguments for free exercise of religion, freedom of association, freedom from compelled speech.


Strengthen Catholic identity: Firmly ground all policies in Catholic teaching and explain in writing why policies are necessary according to religious beliefs. Baylor cautions against the opposite strategy: laying low and downplaying Catholic identity, which weakens a religious freedom defense. Explicitly state expectations for employees and what will happen if violated. Always justify policies according to Catholic beliefs.

An institution’s religious identity, under the law, is whatever the institution declares to be its own deeply held beliefs. A “Catholic” label is neither enough nor necessary. Put into writing the school or college’s Catholic beliefs, especially those that are likely to be challenged, and clearly identify authoritative sources of the school’s beliefs (such as Catechism of the Catholic Church).

Nondiscrimination policies: Avoid listing any protected categories, but especially do not include sexual orientation or gender identity. Do not promise nondiscrimination on “religion”; declare your legal status as a religious entity with freedom to make decisions based on religion.

Employee benefits: Check employee benefits to ensure no support for “gender reassignment,” same-sex marriage, etc. Any compromise can weaken a religious freedom defense.

Language: Clarify language in all policies, especially employment documents, that is vague, confusing, or in conflict with Catholic teaching regarding sexuality and gender.

Lobby Congress: Consult your legal counsel; generally nonprofits can lobby on matters that directly affect them. Urge Congress to protect religious education and, if possible, to amend law to reverse Bostock ruling. Oppose Equality Act, which is highly dangerous: would enshrine Bostock in law, embrace gender ideology, remove religious exemption, and end RFRA application to sex discrimination. Oppose Fairness for All Act, which would enshrine Bostock in law (an immoral law) in exchange for religious exemptions that are unlikely to survive.

Catholic Identity Standards Project: Please know that the Newman Society is working on policy standards to help Catholic schools and colleges stay firmly grounded in Catholic identity while establishing the best protection against legal threats. This work depends on the assistance of a large number of expert reviewers. If you would like to assist by commenting on draft documents, please contact Michael Kenney, director of the Catholic Identity Standards Project, at

Protecting Your Right To Educate: How Catholic Education Can Defend Against Emerging Legal Threats

Half a century into a sexual revolution that has upturned notions of sexual morality and even gender identity, Catholic education is under attack like never before. Religious schools and colleges are facing protests and lawsuits, while presidential candidates are promising to revoke schools’ tax-exempt status—all because Catholic educators hold fast to Church teachings that were considered common sense even a decade ago.

Catholic schools and colleges have not sought out and do not want this confrontation. They exist to form young people to serve and worship God and to spread love and hope to others, rooted in the Church’s teaching on the dignity of the human person and God’s design for human sexuality. But educators are finding that, due to forces beyond their control, their freedom to operate according to conscience and mission is shrinking.

As legal and cultural pressures continue to swell, Catholic school leaders must decide now how they will respond. Many Catholic schools decided a long time ago to assimilate with changes in modern culture. Others have tried to placate critics by offering limited compromise to pressure from students, parents, or outsiders.

Instead, Catholic educators ought to take a different approach by viewing the current crisis as a call to deepen and strengthen their organizations’ religious identity.[1]  The good news is that there is much that Catholic educators can do to help protect their ability to continue serving the public and operate according to mission. Despite the cultural trends, our nation has retained its strong founding commitment to religious liberty. But like Jesus, who has little patience for the lukewarm, the strongest religious liberty protections are available to those schools that communicate and live out their convictions—boldly, clearly, and consistently.

The first part of this Issue Bulletin provides context, illustrating some of the legal conflicts and other pressures on religious organizations from new and emerging standards in culture and law that conflict with their convictions.

The second part outlines practical steps that Catholic education leaders can take to prepare to meet these challenges. Most importantly, this part urges schools and colleges to undertake a mission audit that will help leaders identify where their convictions are likely to be challenged and help them better articulate their convictions in light of these challenges. The audit proposes a series of strategic decisions that help religious organizations understand present and anticipated conflicts, improve religious liberty protections, and prepare themselves for the challenges that may come.

The audit outlined here draws from the author’s experience working on such audits with dozens of Christian schools and major national Catholic ministries. This proven process not only improves legal defenses, it also helps invigorate the apostolate by giving community members a new and stronger sense of their calling and how they relate to the organization’s religious mission.

Religious liberty threats to Catholic education

To properly discern the path forward, Catholic school and college leaders must begin with a sober assessment of today’s cultural context and the legal pressures that are being brought to bear on religious organizations that are holding fast to Christian anthropology.[2]

The Supreme Court’s 2015 decision in Obergefell v. Hodges must feature prominently in any retelling of where Catholic educators in America find themselves today.[3] In one sense, the declaration that the Constitution protects the right to same-sex marriage was simply the latest in a long line of Supreme Court decisions, stretching back to Griswold v. Connecticut, 318 U.S. 479 (1965), that have developed a constitutional right to self-determine one’s sexual identity and sexual activity without consequences, a right that invariably is exercised by striking down laws and policies seeking to preserve the nuclear family and traditional sexual morality.[4]

Yet the Obergefell decision is much more than just another step down the same road the Supreme Court has been on for fifty years. It marked an important and ominous turning point in the relationship between sexual liberties and religious freedom. Rather than satisfying the cultural left, Obergefell has led to increasing hostility against Christian values and institutions that hold fast to their traditional views and resist cultural trends. Traditional views and even the concept of “religious liberty” itself have come under increasing attack.

In the years before Obergefell, the pitch for redefining marriage was often made on libertarian grounds. Same-sex couples were merely seeking a legal status that would give them hospital visitation rights[5] and alleviate tax penalties.[6] On the flip side, religious conservatives were pushed to answer how expanding marriage would affect their own lives.[7] The clear implication was that it would not at all.

But in June 2015, when the Supreme Court announced a constitutional right to same-sex marriage, the narrative changed abruptly and progressives began attacking religious institutions. The same day the Court dropped its opinion, the ACLU announced its opposition to religious freedom laws.[8] Two days later, The New York Times religion columnist Mark Oppenheimer called for an end to tax exemptions for religious institutions that disagree with the new public policy resulting from the Obergefell decision.[9]

The following year, the U.S. Commission on Civil Rights concluded a three-year study of the balance between religious liberty and nondiscrimination laws with a report, “Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties.” The Commission concluded that, for the most part, this “peaceful coexistence” will be achieved by forcing religious liberty claims to yield before emerging civil liberty claims.[10] The most incendiary part of the report is the statement of Commission Chairman Martin R. Castro, who said that “[t]he phrases ‘religious liberty’ and ‘religious freedom’ will stand for nothing except hypocrisy so long as they remain code words for discrimination, intolerance, racism, sexism, homophobia, Islamophobia, Christian supremacy or any form of intolerance. . . . This generation of Americans must stand up and speak out to ensure that religion never again be twisted to deny others the full promise of America.”[11]

The recent attacks on religious liberty have not been confined to rhetorical flourishes but have taken place in the courtroom as well. In many of these lawsuits, progressives have claimed the moral high ground by arguing that discrimination on the basis of sexual orientation or gender identity is akin to race discrimination. For example, in Craig v. Masterpiece Cakeshop, Christian baker Jack Phillips argued that he had not discriminated against a homosexual couple “because of” their sexual orientation, but because of their intended conduct—entering into a same-sex marriage.[12] The Colorado court rejected this argument. It said that while “Masterpiece thus distinguishes between discrimination based on a person’s status and discrimination based on conduct closely correlated with that status,” “the United States Supreme Court has recognized that such distinctions are generally inappropriate.”[13] In another Christian wedding vendor case, this time involving a florist, the Washington Supreme Court made a direct analogy to the civil rights era, asserting that “[w]e agree with [the plaintiffs] that this case is no more about access to flowers than civil rights cases in the 1960s were about access to sandwiches.”[14]

Many of these legal and cultural attacks have focused on faithful Catholic schools and colleges:

  • In 2009, before the Obama administration implemented the HHS Mandate, the EEOC said that Belmont Abbey College, a Catholic liberal arts school near Charlotte, N.C., was guilty of sex discrimination because its employee health plan did not cover contraceptives.[15]
  • In 2011, a Catholic school in Fort Wayne, Indiana, dismissed a junior high school language arts teacher, Emily Herx, when she continued with in vitro fertilization treatments after the pastor informed her that this violated Church teaching and asked her to stop. Ms. Herx alleged that this constituted sex discrimination, and the EEOC agreed. In December 2014, the jury found for Herx and awarded her $1.9 million in damages.[16]
  • In 2014, a Catholic school in Macon, Georgia, dismissed its music teacher after he announced on Facebook his upcoming same-sex wedding. In March 2015, the EEOC determined that this was sex discrimination under Title VII. On June 29, the day after the Obergefell decision, the plaintiff filed his Title VII lawsuit against the Catholic school.[17]
  • In 2016, the California Assembly took up proposed legislation, SB 1146, that aimed at stigmatizing and punishing religious colleges and universities that expect their students to adhere to the school’s traditional beliefs on sexual identity and sexual morality. The bill, in its strongest form, opened up such religious schools to civil lawsuits from LGBT students and blocked students who wanted to attend such schools from receiving Cal Grants, California’s need-based aid system.[18] The bill’s sponsor, California Senator Ricardo Lara, wanted “to shed light on the appalling and unacceptable discrimination against LGBT students at these private religious institutions throughout California.” Another California legislator, Assemblyman Evan Low, called colleges claiming a religious exemption from Title IX “the worst of the worst in terms of institutions that discriminate.”

The attacks on faithful Catholics have only intensified over the past year:

  • In late 2018, Democrats in the Senate Judiciary Committee contended that a judicial nominee should be rejected simply because he belonged to the Knights of Columbus.[19]
  • In May 2019, the House of Representatives passed the “Equality Act,” a bill that would make it illegal to discriminate on the basis of “sexual orientation” or “gender identity” while eliminating religious liberty protections.[20] Fortunately, the bill died in the Senate.
  • In September, Secretary of Education Betsy DeVos came under attack for visiting a Catholic school in Pennsylvania that is not inclusive of transgender students and staff and has a strict policy against “sex reassignment.”[21]
  • In October, presidential candidate Beto O’Rourke called for stripping churches and schools of their tax-exempt status if they oppose same-sex marriage.[22]
  • Also in October, the Supreme Court heard three cases that ask the Court to redefine “sex discrimination” under Title VII, the federal employment nondiscrimination law, to include both “sexual orientation” and “gender identity.” The Supreme Court is expected to decide these cases by June 2020.[23]

In 2019 alone, Catholic schools have faced lawsuits for terminating employees for premarital sex,[24] entering a same-sex union,[25] and for publicly advocating for same-sex couples.[26] Leaving aside school-teacher conflicts, Catholic schools have faced backlashes within the Catholic community for refusing admission to the child of a same-sex couple[27] and for refusing to celebrate a same-sex wedding in the campus chapel.[28]

Catholic education leaders must decide now how they will respond to this crisis.

As these pressures mount, Catholic educators must decide now how they will respond to the aggressive pressures being brought to bear on religious institutions that hold fast to their convictions. School and college leaders with little appetite for conflict or budget for protracted litigation will likely prefer an approach that would allow them to sidestep these conflicts. But the options here are not promising. Instead, Catholic educators are urged to undertake a mission audit to help them develop and implement strategies to strengthen their religious identity and their religious liberty defenses.

Attempts to avoid conflict are either futile or involve compromises inconsistent with the mission of a Catholic school.

Catholic school and college leaders would rather focus on education and evangelism than on costly and time-consuming legal and public relations battles. But there are good reasons to think that efforts to avoid conflict or placate the Church’s critics are either impractical or unprincipled.

One option, to simply agree to conform policies and personnel matters to the emerging consensus, is a non-starter for schools and colleges that take seriously the mission of Catholic education as articulated by Vatican II and recent popes.[29] Nor is it realistic for Catholic educators to simply hope that this cultural moment will pass them by without incident. Underlying this reality, the 2019 lawsuits mentioned above were filed in Kansas and Indiana, Midwestern states far from the coasts.

Another option would be to make some compromises with the culture in the hopes of brokering a peace. The pervasive attacks on traditional moral teaching have led some religious leaders to try to compromise and thereby win some good will from gender and sexuality activists. Mormon and Evangelical leaders have tried this approach in recent years, with decidedly mixed results. In 2015 the Mormon Church threw its weight behind the “Utah Compromise,” an attempt to broker a truce in the culture war by pairing new civil rights protections with religious-liberty protections for faith-based organizations.[30] At the end of 2018, major Evangelical Christian groups—including the Council for Christian Colleges and Universities and the National Association of Evangelicals—endorsed their own version of this compromise approach under the slogan “Freedom for All.” Here, as in Utah, the policy of giving progressives some of what they wanted was sold as a political strategy to preserve religious liberty.[31] One supporter described the effort in these terms:

As Christian higher educators, we are increasingly persuaded that the most viable political strategy is for comprehensive religious freedom protections to be combined with explicit support for basic human rights for members of the LGBT community.[32]

So far, however, there is little reason to call the “Fairness for All” approach a success. While progressive activists celebrated what they were able to accomplish in Utah, they quickly signaled that it was not enough, and that they would push for more whenever they had the opportunity.[33] Advocates specifically complained that the “Utah Compromise” yielded too much so-called “religious liberty.” As noted above, the left has come to see “religious liberty” as a code word for bigotry; there is no reason to think that religious conservatives can change people’s minds on this by compromising on nondiscrimination law.

Some Catholic universities have also demonstrated the weakness and futility of the compromise approach to these culture war battles over sexual morality. The University of Notre Dame has extended spousal benefits to same-sex partners[34] and covers most FDA-approved contraceptives in its health plans,[35] yet it was still sued for refusing to fund abortifacients[36] and its student body president is calling for the school to abandon single-sex dorms and parietals on the basis that they are “heteronormative” and discriminate against transgender and same-sex attracted students.[37] Marquette University hosts a student “Pride Prom”,[38] yet like Notre Dame is still facing pressure over its “outdated” single-sex dorm policies.[39]

If compromising Catholic principles in order to placate progressive critics is a flawed political strategy, it is perhaps an even worse legal strategy. At one point, Notre Dame told a federal judge that, consistent with Ex Corde Ecclesiae, it was prohibited from paying for, providing, or facilitating access to contraceptives.[40] But in 2014, the University reversed course and voluntarily began complying with the HHS Mandate.[41] This sort of inconsistency invites courts to probe as to whether a school’s stated religious convictions are sincere, a key inquiry in religious liberty cases. Perhaps even worse, it encourages protestors and plaintiffs by giving them reason to hope that Catholic institutions will cave if only the heat is turned up hot enough.

Catholic schools and colleges are instead urged to undertake a mission audit to strengthen their religious identity and religious liberty defenses.

Rather than trying to appease the Church’s critics, Catholic organizations should instead look to clarify and strengthen their religious identity. This is the best way for Catholic schools and colleges to embrace their distinctive mission. In his 2008 address to Catholic educators at The Catholic University of America, Pope Benedict XVI identified an “educational emergency” and urged leaders to fulfill the mission of Catholic education:

A particular responsibility, therefore, for each of you and your colleagues, is to evoke among the young the desire for the act of faith, encouraging them to commit themselves to the ecclesial life that follows from this belief. It is here that freedom reaches the certainty of truth. In choosing to live by that truth, we embrace the fullness of the life of faith which is given to us in the Church.[42]

As The Cardinal Newman Society has stressed, the Church calls Catholic educators “to remain vigilant in their mission” by resisting the temptation to conform to the world. Schools and colleges must do this “by preserving a Catholic culture which proclaims essential truths about the nature and dignity of the human person.”[43]

Fortunately, this ecclesial mandate is also a strong and wise legal strategy. While the challenges facing churches and religious organizations are daunting, our nation’s bedrock commitment to religious liberty remains strong. This historical commitment continues to live in the First Amendment’s protections for religious and expressive freedom, broad religious liberty statutes, and specific exemptions found in a number of laws.[44]

In order to best protect their religious liberty, it is imperative that Catholic schools and colleges understand and take full advantage of these protections. To do so, Catholic educators should undertake a mission audit to help them understand where they are likely to face challenges and to ensure that they have an architecture in place to protect their freedom to minister and work in accordance with their faith.

Just as a general audit helps an organization understand its financial soundness, a mission audit will help a religious organization understand how its religious convictions affect its work and how these convictions may face conflict. The proposed mission audit outlines the kind of practical steps religious institutions can take to avoid such conflicts, improve their ability to claim religious liberty protections, and prepare themselves for potential challenges.

Often organizations are initially motivated to undertake a religious mission audit for defensive reasons: because they are acutely aware that distinctly Christian educators and employers are in legal and cultural crosshairs and want to know how to best protect their institution and its mission against attacks. But the audit has positive aspects as well. Over the past six years, our firm’s religious institutions group has helped dozens of Christian schools, several dioceses, and large religious organizations through this audit process to help them strengthen their legal protections by strengthening their religious identity. In our experience, religious organizations find the audit process revealing and instructive. The process helps Catholic schools and colleges:

  • Better articulate their charism inside and outside their community;
  • Clarify and implement this charism as it relates to their various programs, departments, and positions; and
  • Better steward their school’s charism and resources.


  1. Quick steps to protect mission

Many school and college leaders see the need for a mission audit but want to know what steps they should be taking in the short term. The mission audit we recommend begins with getting leaders around a table to make sure they have clarity about their mission and convictions.

Building on this consensus, leaders should ask some high-level questions to get a sense about what they need in order to accomplish their mission and whether documents and policies adequately convey these requirements. The most important areas to review are employee expectations, student expectations, nondiscrimination statements, and facilities use policies. Schools may also want to make sure they understand the nondiscrimination requirements they are subject to through professional or extracurricular organizations like sports leagues.

In undertaking this overview, school leaders may find it helpful to refer to guides that have been prepared and made available by religious liberty groups.[45]

  1. Mission audit overview

While publicly available guides and templates can be a good start, most schools and colleges should invest in a more detailed and individualized strategy. Every organization’s circumstances are different, and sophisticated entities should not entrust their legal exposure to an online resource any more than they would forego individualized financial advice.

Each organization’s process will need to take into account the challenges in its locality, as well as the religious liberty provisions specific to the organization type and location. The audit outlined below is a sizable undertaking, but such planning is necessary as a matter of stewardship and prudent leadership. While each such audit must be tailored to the particular entity, every organization’s process should involve three basic steps.

              a. STAGE ONE: Clarifying the audit’s scope and objectives

The first step in the audit process is for school and college leaders, together with legal counsel, to discuss the institution’s general concerns and establish the scope of the audit. Most mission audits should address the following subject areas:

  • Corporate Documents
    • Is the school or college taking advantage of available opportunities to establish its identity as a religious organization under relevant laws?
  • Public Accommodations
    • Does the school or college have policies and procedures for facility use and rental? If so, does its process properly balance reasons for renting its facilities with its ability to control how the campus is used?
  • Nondiscrimination Policies
    • Do nondiscrimination policies—in handbooks, policy manuals, and elsewhere—accurately reflect how the school or college makes decisions?
  • Student Conduct Issues
    • Do promotional materials, enrollment process, student handbook, disciplinary process and procedures, etc., appropriately communicate and secure consent regarding the community’s standards and their connection to the religious identity of the school or college?
  • Employee Conduct Issues
    • Does the school or college understand how available religious liberty protections apply to each position? Has it laid the proper groundwork so that it is able to invoke available religious liberty protections when necessary?
  • Sexual Abuse
    • Do policies and procedures for handling allegations of sexual abuse or misconduct reflect best practices? Is the school or college well-positioned to handle allegations in a manner that balances justice and mercy and that prepares it to address related public relations and legal challenges?

      b. STAGE TWO: Audit current policies and procedures

The second stage of the audit involves reviewing how the school or college operates at present. The audit usually begins with a document review and continues with follow-up questions and conversations. A thorough document review typically involves the following:

  • Corporate documents;
  • Human resources documents;
  • Student-related documents;
  • Sexual abuse policies and procedures;
  • Facility rental policies and procedures; and
  • Documents related to third-party obligations, including sports leagues, grants, and government contracts.

           c. STAGE THREE: Developing recommendations to protect the organization

While the first two stages of the audit help a school or college understand where it stands, this final stage is the most important. Here, educators will identify and implement strategies to help them continue to pursue their mission despite the present and emerging threats to religious liberty.

The first goal is to identify obstacles that can be avoided. The school or college could seek to:

  • Eliminate unnecessary legal conflicts;
  • Eliminate peripheral activities;
  • Reduce dependence on government funding; or
  • Reduce oversight from licensing or accrediting organizations.

For those conflicts that are not easily avoidable, religious organizations should work to improve their ability to claim crucial protections for religious liberty. By one scholar’s count, there were 2,000 religious exemptions in state and federal law in 1992.[46] The audit should help educators identify the religious liberty protections most relevant to their activities and identify ways to reshape policies, practices, and documentation in light of these protections.

Here the audit will aim to:

  • Strengthen or clarify the school’s or college’s relationship to its religious tradition or to a religious authority;
  • Clarify the organization’s status as an “expressive association;” and
  • Strengthen the educators’ ability to claim exemptions from employee discrimination laws (including the ministerial exception, Title VII’s bona fide occupational qualification, and Title VII’s religious organization exception).

Finally, the audit recommends ways for the school or college to avoid controversy. While positioning itself to qualify for religious liberty protections, a religious organization should not overlook some simple, practical things it can do to avoid controversy. It should do everything it can to treat employees well and to apply moral standards consistently.


Undertaking a mission audit is a crucial task for Catholic schools and colleges today. This Issue Bulletin has explained why a Catholic school or college should undertake an assessment that will help identify challenges and religious liberty protections specific to its locale and activities and then make adjustments to better protect itself from challenges. Failure to act promptly to identify and address legal and institutional weaknesses can have enormous consequences for Catholic educators’ ability to fulfill their calling.

While a thorough audit is a time-intensive and resource-intensive process, such planning is necessary in today’s environment as a matter of stewardship and prudent leadership. To reduce the cost of the audit, many schools and colleges choose to undergo an audit with others that they recognize as peers. This approach not only saves money, but it also helps schools and colleges learn from each other’s insights, struggles, and successes.

Catholic educators should carefully choose the legal counsel that will guide them through this process. A thorough mission audit is best undertaken with counsel that is familiar with religious organizations and with religious liberty issues, as such familiarity will help guide the school or college through the complex moral, religious, and practical problems facing religious education today.


Eric Kniffin is an attorney in Colorado Springs, Colorado specializing in religious institutions. He is a partner with the law firm of Lewis Roca Rothgerber Christie LLP and can be reached at 719-386-3017 or


[1] DISCLAIMER: This paper should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and readers are urged to consult their own lawyers concerning particular situations and any specific legal questions they may have.

[2] For a more detailed survey of the cultural and legal threats against Christian institutions in the wake of Obergefell v. Hodges, see Eric N. Kniffin, Protecting Your Right to Serve: How Religious Ministries Can Meet New Challenges without Changing Their Witness, Heritage Foundation (Nov. 9, 2015) at 3-7,

[3] 135 S. Ct. 2584, 2594 (2015).

[4] For a helpful overview of this line of Supreme Court cases and the sexual revolution, see Helen Alvaré, Religious Freedom Versus Sexual Expression: A Guide, 30 J. L. & Religion 475 (2015). See also Helen Alvaré, With Power Comes Responsibility: The Rise of Sexual Expressionism and the Decline of Children’s Interests, Cambridge Univ. Press (2017).

[5] See Human Rights Campaign, Hospital Visitation Guide for LGBTQ Families,

[6] Bill Mears, Same-sex marriage and DOMA: 5 things we learned from oral arguments, CNN (March 28, 2013),

[7] See Ethics & Religious Liberty Comm’n, How will gay marriage impact your marriage? (Aug. 4, 2014),

[8] Louise Melling, ACLU: Why we can no longer support the federal ‘religious freedom’ law, Washington Post (June 26, 2015),

[9] Mark Oppenheimer, Now’s the Time to End Tax Exemptions for Religious Institutions, Time (June 28, 2015),

[10] U.S. Commission on Civil Rights, Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties (Sept. 7, 2016),

[11] Id. at 29.

[12] 370 P. 3d 272, 280 (Colo. App. 2015).

[13] Id. at 280-81 (collecting cases).

[14] State v. Arlene’s Flowers, Inc., No. 91615-2, 2017 WL 629181, at *16 (Wash. Feb. 16, 2017) (quotation and alteration omitted).

[15] Charlotte Allen, The Persecution of Belmont Abbey (Oct. 26, 2009),

[16] Rebecca S. Green, “Jury sides with fired teacher,” The Journal Gazette (Dec. 20, 2014),; Herx v. Diocese of Fort Wayne-South Bend, Inc., 48 F. Supp. 3d 1168 (N.D. Ind. September 13, 2014) (denying diocese’s ministerial exception defense).

[17] Dr. Susan Berry, Gay teacher files federal discrimination lawsuit against Catholic school, Brietbart (July 1, 2015),

[18] See California Legislative Information, SB-1146 Discrimination: postsecondary education, Bill Analysis, Aug. 1, 2016,; Jane Adams, California bill takes aim at religious colleges that seek to bar transgender students, EdSource (May 31, 2016),

[19] Ed Condon, Judicial nominee faces Senate scrutiny over Knights of Columbus membership, Catholic News Agency (Dec. 21, 2018),

[20] Despite religious freedom concerns, House passes Equality Act, Catholic News Agency (May 17, 2019),

[21] Caitlin O’Kane, Secretary of Education Betsy DeVos visits school with anti-transgender policy, CBS News (Sept. 19, 2019),

[22] Tobias Hoonhout, Beto O’Rourke Calls for Stripping Churches of Tax-Exempt Status If They ‘Oppose Same-Sex Marriage’, National Review (Oct. 11, 2019),

See also Eric Kniffin’s recent interviews with Drew Mariani: Drew Mariani Show, Beto O’Rourke Proposes Yanking Tax Status on Churches (Oct. 11, 2019),; Drew Mariani Show, Religious Liberty and the 2020 Presidential Election (Nov. 11, 2019),

[23] Adam Liptak, Supreme Court Considers Whether Civil Rights Act Protects L.G.B.T. Workers, NY Times (Oct. 8, 2019),

[24] Associated Press, Former Kansas City Catholic school teacher says she was fired for being pregnant and unmarried, KMBC News (Aug. 20, 2019),

[25] Arika Herron, Cathedral fired a gay teacher. Brebeuf protected one. They are married to each other, lawyer says, Indianapolis Star (July 10, 2019),

[26] Mary Farrow, Archdiocese faces third discrimination complaint over same-sex marriage policy, Catholic News Agency (Oct. 29, 2019),

[27] Christine Hauser, Catholic School in Kansas Faces a Revolt for Rejecting a Same-Sex Couple’s Child, The New York Times (March 8, 2019),

[28] Thomas O’Neil-White, D’Youville grad says college denied her same-sex wedding, WBFO 88.7, (Oct. 21, 2019),

[29] See Cardinal Newman Society, Church Vision for Catholic Education,

[30] Laurie Goodstein, Utah Passes Antidiscrimination Bill Backed by Mormon Leaders, The New York Times (March 12, 2015),

[31] J.C. Derrick, Boards back SOGI compromise, World Magazine (Dec. 12, 2018),

[32] Id.

[33] Zack Ford, The ‘Utah Compromise’ Is A Dangerous LGBT Trojan Horse, ThinkProgress (Jan. 29, 2016),

[34] Rosa Salter-Rodriguez, Notre Dame same-sex benefits rile bishop, The Journal Gazette (March 16, 2016),–1U13HACU.

[35] Emma Green, Notre Dame Switches Its Position on Birth-Control Coverage – Again, The Atlantic (Feb. 7, 2018),

[36] Gina Cherelus, Notre Dame students sue school, White House over birth control policy, Reuters (June 26, 2018),

[37] Ellie Gardey, Student leaders fight “heteronormativity’ at Notre Dame, The College Fix (Sept. 16, 2019),

[38] Caroline White, Marquette’s Pride Prom to go on as planned despite backlash, petition, National Catholic Reporter (April 13, 2018),

[39] Antiquated housing policies cause stress, burdens, MarquetteWire (Oct. 8, 2019),

[40] Univ. of Notre Dame v. Sebelius, 988 F. Supp. 2d 912, 915 (N.D. Ind. 2013).

[41] Joan Frawley Desmond, Notre Dame’s Student Health Plan Will Cover Contraceptives, Abortifacients, National Catholic Register (Sept. 4, 2014),

[42] Pope Benedict XVI, Meeting with Catholic Educators (April 17, 2008),

[43] Cardinal Newman Society, Catholic Identity in Education: Selected Church Documents for Reflection,

[44] For an overview of these religious liberty protections, see Kniffin, Protecting Your Right to Serve at 9-13.

[45] See, e.g.:

[46] Douglas Laycock, Regulatory Exemptions of Religious Behavior and the Original Understanding of the Establishment Clause, 81 Notre Dame L. Rev. 1793, 1837 (2006) (citing James E. Ryan, Smith and the Religious Freedom Restoration Act: An Iconoclastic Assessment, 78 Va. L. Rev. 1407, 1445 & n.215 (2015)).