Archive for: Research and Analysis

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.

Recommendations:

• 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.

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 8^th 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).

Recommendations:

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 mkenney@cardinalnewmansociety.org.

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]

2. 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.

Conclusion

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 ekniffin@lrrc.com.

[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, https://www.heritage.org/civil-society/report/protecting-your-right-serve-how-religious-ministries-can-meet-new-challenges.

[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, https://www.hrc.org/resources/hospital-visitation-guide-for-lgbt-families

[6] Bill Mears, Same-sex marriage and DOMA: 5 things we learned from oral arguments, CNN (March 28, 2013), https://www.cnn.com/2013/03/27/us/new-york-doma-windsor/index.html

[7] See Ethics & Religious Liberty Comm’n, How will gay marriage impact your marriage? (Aug. 4, 2014), https://erlc.com/resource-library/articles/how-will-gay-marriage-impact-your-marriage.

[8] Louise Melling, ACLU: Why we can no longer support the federal ‘religious freedom’ law, Washington Post (June 26, 2015), http://www.washingtonpost.com/opinions/congress-should-amend-the-abusedreligious-freedom-restoration-act/2015/06/25/ee6aaa46-19d8-11e5-ab92-c75ae6ab94b5_story.html.

[9] Mark Oppenheimer, Now’s the Time to End Tax Exemptions for Religious Institutions, Time (June 28, 2015), http://time.com/3939143/nows-the-time-to-end-tax-exemptions-for-religious-institutions/.

[10] U.S. Commission on Civil Rights, Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties (Sept. 7, 2016), http://www.usccr.gov/pubs/Peaceful-Coexistence-09-07-16.PDF.

[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), https://www.washingtonexaminer.com/weekly-standard/the-persecution-of-belmont-abbey.

[16] Rebecca S. Green, “Jury sides with fired teacher,” The Journal Gazette (Dec. 20, 2014), http://www.journalgazette.net/news/local/courts/Jury-sides-with-fired-teacher-4094706; 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), http://www.breitbart.com/big-government/2015/07/01/gay-teacher-files-federal-discrimination-lawsuit-against-catholic-school/.

[18] See California Legislative Information, SB-1146 Discrimination: postsecondary education, Bill Analysis, Aug. 1, 2016, https://leginfo.legislature.ca.gov/faces/billAnalysisClient.xhtml?bill_id=201520160SB1146#; Jane Adams, California bill takes aim at religious colleges that seek to bar transgender students, EdSource (May 31, 2016), https://edsource.org/2016/california-bills-take-aim-at-religious-colleges-that-seek-to-bar-transgender-students/564869.

[19] Ed Condon, Judicial nominee faces Senate scrutiny over Knights of Columbus membership, Catholic News Agency (Dec. 21, 2018), https://www.catholicnewsagency.com/news/senators-quiz-nominee-about-membership-of-extreme-knights-of-columbus-78683

[20] Despite religious freedom concerns, House passes Equality Act, Catholic News Agency (May 17, 2019), https://www.catholicnewsagency.com/news/despite-religious-freedom-concerns-house-passes-equality-act-71069.

[21] Caitlin O’Kane, Secretary of Education Betsy DeVos visits school with anti-transgender policy, CBS News (Sept. 19, 2019), https://www.cbsnews.com/news/betsy-devos-education-secretary-transgender-school-visiting-harrisburg-catholic-policy-transgender-students/.

[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), https://www.nationalreview.com/news/beto-orourke-calls-for-stripping-churches-of-tax-exempt-status-if-they-oppose-same-sex-marriage/.

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), https://relevantradio.com/2019/10/beto-orourke-proposes-yanking-tax-status-on-churches/; Drew Mariani Show, Religious Liberty and the 2020 Presidential Election (Nov. 11, 2019), https://relevantradio.com/2019/11/is-a-new-democratic-candidate-jumping-in/.

[23] Adam Liptak, Supreme Court Considers Whether Civil Rights Act Protects L.G.B.T. Workers, NY Times (Oct. 8, 2019), https://www.nytimes.com/2019/10/08/us/politics/supreme-court-gay-transgender.html.

[24] Associated Press, Former Kansas City Catholic school teacher says she was fired for being pregnant and unmarried, KMBC News (Aug. 20, 2019), https://www.kmbc.com/article/former-kansas-city-catholic-school-teacher-says-she-was-fired-for-being-pregnant-and-unmarried-michelle-bolen/28759819#.

[25] Arika Herron, Cathedral fired a gay teacher. Brebeuf protected one. They are married to each other, lawyer says, Indianapolis Star (July 10, 2019), https://www.indystar.com/story/news/education/2019/07/10/cathedral-teacher-fired-same-sex-marriage-sues-indianapolis-archdiocese-identifies-himself/1694669001/.

[26] Mary Farrow, Archdiocese faces third discrimination complaint over same-sex marriage policy, Catholic News Agency (Oct. 29, 2019), https://www.catholicnewsagency.com/news/archdiocese-faces-third-discrimination-complaint-over-same-sex-marriage-policy-48517.

[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), https://www.nytimes.com/2019/03/08/us/kansas-catholic-school-same-sex-parents.html.

[28] Thomas O’Neil-White, D’Youville grad says college denied her same-sex wedding, WBFO 88.7, (Oct. 21, 2019), https://news.wbfo.org/post/dyouville-grad-says-college-denied-her-same-sex-wedding.

[29] See Cardinal Newman Society, Church Vision for Catholic Education, https://cardinalnewmansociety.org/church-vision-catholic-education/.

[30] Laurie Goodstein, Utah Passes Antidiscrimination Bill Backed by Mormon Leaders, The New York Times (March 12, 2015), https://www.nytimes.com/2015/03/12/us/politics/utah-passes-antidiscrimination-bill-backed-by-mormon-leaders.html.

[31] J.C. Derrick, Boards back SOGI compromise, World Magazine (Dec. 12, 2018), https://world.wng.org/2018/12/boards_back_sogi_compromise.

[32] Id.

[33] Zack Ford, The ‘Utah Compromise’ Is A Dangerous LGBT Trojan Horse, ThinkProgress (Jan. 29, 2016), https://thinkprogress.org/the-utah-compromise-is-a-dangerous-lgbt-trojan-horse-db790ad3b69e/.

[34] Rosa Salter-Rodriguez, Notre Dame same-sex benefits rile bishop, The Journal Gazette (March 16, 2016), https://www.journalgazette.net/news/local/Notre-Dame-same-sex-benefits-rile-bishop–1U13HACU.

[35] Emma Green, Notre Dame Switches Its Position on Birth-Control Coverage – Again, The Atlantic (Feb. 7, 2018), https://www.theatlantic.com/politics/archive/2018/02/notre-dame-switches-its-position-on-contraception-coverage-again/552605/.

[36] Gina Cherelus, Notre Dame students sue school, White House over birth control policy, Reuters (June 26, 2018), https://www.reuters.com/article/us-usa-health-birth-control/notre-dame-students-sue-school-white-house-over-birth-control-policy-idUSKBN1JM2I9.

[37] Ellie Gardey, Student leaders fight “heteronormativity’ at Notre Dame, The College Fix (Sept. 16, 2019), https://www.thecollegefix.com/student-leaders-fight-heteronormativity-at-notre-dame/.

[38] Caroline White, Marquette’s Pride Prom to go on as planned despite backlash, petition, National Catholic Reporter (April 13, 2018), https://www.ncronline.org/news/people/marquettes-pride-prom-go-planned-despite-backlash-petition.

[39] Antiquated housing policies cause stress, burdens, MarquetteWire (Oct. 8, 2019), https://marquettewire.org/4018762/opinion/editorial-antiquated-housing-policies-cause-stress-burdens/.

[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), http://www.ncregister.com/daily-news/notre-dames-student-health-plan-will-cover-contraceptives-abortifacients.

[42] Pope Benedict XVI, Meeting with Catholic Educators (April 17, 2008), http://w2.vatican.va/content/benedict-xvi/en/speeches/2008/april/documents/hf_ben-xvi_spe_20080417_cath-univ-washington.html.

[43] Cardinal Newman Society, Catholic Identity in Education: Selected Church Documents for Reflection, https://cardinalnewmansociety.org/principles-catholic-identity-education/church-documents-reflection/.

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

[45] See, e.g.:

• Alliance Defending Freedom, “Protecting your Ministry,” https://www.adflegal.org/forms/download-protect-your-ministry (accessed Dec. 18, 2019)
• Christian Legal Society, “Church Guidance for Same-Sex Issues,” https://www.clsnet.org/document.doc?id=852 (accessed Dec. 18, 2019);
• First Liberty Institute, “Religious Liberty Protection Kits,” https://firstliberty.org/religious-liberty-protection-kits/ (accessed Dec. 18, 2019).

[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)).

This Issue Brief takes a look at the new¹ “Notice of Proposed Rulemaking” issued on February 1, 2013, by the Department of Health and Human Services concerning the federal mandate that health insurance plans, including those provided or arranged by non-exempt Catholic high schools, must include coverage of early abortion pills, contraception, sterilization, and related education and counseling for women with a reproductive capacity.

What was the government’s intent with the February 1^st  “Notice of Proposed Rulemaking”?

The Notice of Proposed Rulemaking (“NPRM”)² sets forth a proposed (not final) structure for public comment on whether or how the government will respect religious objections to its coverage mandate of early abortion pills, contraception, and sterilization.  It concerns three categories of entities with objections to the mandate.  Generally, these categories are: (1) houses of worship; (2) all other religious non-profits; and (3) all other objectors.

Is this the final rule?

No, it will be finalized by August 1, 2013.  The public may submit comments by April 8, 2013.

Who would be exempt from the mandate under the NPRM?

The NPRM proposes that basically only houses of worship would be exempt from the mandate.  Exempt entities are called “religious employers,” and these must be either “churches, their integrated auxiliaries, and conventions or associations of churches,” or “the exclusively

religious activities of any religious order.” These categories are narrow and well-established in Internal Revenue Code section 6033(a)(3)(A)(i) and (iii). Many Catholic high schools might not fall into these categories.  They should consult with an attorney or tax advisor to review whether or not they qualify.

Is this a change from the existing exemption?

In one respect, the NPRM proposes a change from the existing mandate exemption. Under the existing exemption, houses of worship are still the only entities eligible for an exemption, but in addition those houses of worship must function to inculcate beliefs, and must primarily hire and serve only those of their own faith. The NPRM proposes to remove the latter three requirements from the definition of exempt “religious employers,” but retain the fourth criteria by which the entity must be a house of worship, church, religious order, or the like as listed above.  The NPRM insists that this change is a clarification, not a broadening of the exemption. Since houses of worship are still the only entities that qualify for an exemption, the NPRM’s changes “would not expand the universe of employer plans that would qualify for the exemption beyond that which was intended” in the existing rule.

In another respect, the new proposal appears to be worse for entities such as Catholic high schools. Under last year’s regulations, it was suggested that if a school’s employees received insurance from a diocese’s health plan, the school’s coverage would fall under the diocese’s exempt status as a church. See 77 Fed. Reg. 16,502. But the new proposed exemption intentionally removes this possibility and says employers will be treated separately: only if a school is itself a church or integrated auxiliary thereof will it be exempt, even if its employees use the diocesan health plan. 78 Fed. Reg. at 8,467. Thus, many schools that are affiliated with churches, but not integrated auxiliaries thereof, may lose their access to exempt insurance.

Is this a very narrow definition of “religious employer,” or one that is used commonly by the federal government?

This definition is extremely narrow compared to other federal laws providing for conscience exemptions.  The 40-year-old bipartisan standard established throughout federal law, including in health and insurance coverage of items such as contraception, is to exempt any person or group with moral or religious objections.  The Religious Freedom Restoration Act in particular requires the federal government to exempt any religious objector from rules such as this Mandate. The administration has instead constrained religious freedom by using a category in tax law that has no relationship to conscience, but instead relates to whether a group files its own 990 tax form. Even within that code section, the administration gerrymandered this rule by selecting subparts (i) and (iii) but not (ii) which includes other nonprofits.  The administration apparently selected a category with the smallest possible scope it could find.  This is consistent with its view that religious freedom really only inheres in worship and not in the exercise of religion outside a house of worship.

How would the NPRM deal with objections from colleges and other non-profits?

The NPRM proposes to apply the coverage mandate to all non-exempt entities, including religious groups. But for some religious non-profit groups, the NPRM proposes to accomplish this through what it calls an “accommodation.” The accommodation is a complex arrangement designed to create the impression that the religious organization is not involved in giving its employees access to objectionable items such as early abortion pills, while at the same time insisting that the employees will receive those items seamlessly with their employer’s own provision of coverage.

Their employees would still receive objectionable coverage from those groups’ own insurers or plan administrators, and would receive it “automatically,” so that the employees could not opt out of the coverage for themselves or their female family members.

What qualifies an organization for this “accommodation”?

The NPRM applies its accommodation to non-exempt “eligible organizations.”  These should not be confused with exempt “religious employers” discussed above.  (Exempt religious employers—houses of worship—are not subject to the accommodation scheme.)  A non-exempt “eligible organization” is one that meets the following criteria:

The organization opposes providing coverage for some or all of the contraceptive services required to be covered under section 2713 of the PHS Act on account of religious objections.

The organization is organized and operates as a nonprofit entity.

The organization holds itself out as a religious organization.

Again, these “religious organizations” are those that do not fall within the exempt category of houses of worship discussed above.

How does the “accommodation” work for non-exempt “eligible organizations”?

The organization must sign a certification asserting that it meets the above-described criteria, keep the certification in its records “for examination upon request so that regulators, issuers, third party administrators, and plan participants and beneficiaries,” and provide the certification to the insurance issuer(s) and/or its self-insurance plan administrator(s) that the group pays for their ordinary duties.

Under the accommodation, once the religious group’s insurer or administrator receives that certification, the insurer or administrator is required to “automatically” provide the religious group’s employees and plan beneficiaries with insurance covering the objectionable items.

If the religious group uses an insurer, that insurer also becomes the insurer for the objectionable items.  The NPRM claims that this insurance plan will be “separate” and will not be charged to the religious group.  But it admits that there are up-front costs to the items, and it claims that these costs will be offset by the benefits of the primary insurance that the religious group is paying for (since, it theorizes, fewer childbirths will lead to lower costs).

What about self-insured non-profit religious groups?

If the religious group is self-insured, the NPRM proposes that it be required to use a plan administrator (even if it does not presently have one).  When that plan administrator receives the certification it will take on the additional duties of finding an external insurance company to “automatically” issue insurance coverage of objectionable items to the religious group’s employees.  The NPRM does not address the privacy implications of releasing employee health information to an insurance company with which the religious group never contracted, for a purpose to which the religious group objects.

The NPRM proposes that the costs of the objectionable items will be offset by rebates that the federal government will offer those insurers in the health “exchanges” otherwise implicated by the Affordable Care Act.

Is the NPRM correct that the “accommodation” does not implicate an objecting entity?

The NPRM imposes what is essentially a moral judgment that the “accommodation” frees objecting entities from culpability for coverage of objectionable items.  Entities are not allowed to disagree with this moral judgment set forth by the government. Several factors might lead objecting entities to differ from the government’s moral viewpoint. Under the accommodation, the Affordable Care Act will still be requiring objecting entities with 50 or more full-time employees to provide health insurance coverage, and that coverage will be the trigger for the objectionable items to flow to its employees.  The objectionable coverage will come from the same insurers or plan administrators that the religious group is paying. The provision of objectionable coverage will be triggered specifically by the religious group’s mandated delivery of its religious certification to its insurer or plan administrator.  For insured entities, the costs of the objectionable items will allegedly be offset by the main plan the objecting entity is buying. For self-insured entities, the NPRM does not fully explain how costs will be offset.  Unprecedented burdens and fiduciary duties will fall on insurers and plan administrators with whom religious groups contract, because of that contract.  The NPRM does not fully explain how these additional burdens will not eventually be reflected in the ability of religious groups to contract with insurers or administrators in the first place.

What religious freedom allowances does the NPRM provide to other objectors?

None.

Neither an exemption nor a feigned accommodation is provided under the NPRM for: employees of religious non-profit groups who do not want free abortion-pill, contraception, sterilization and counseling coverage for themselves, their spouses       or their daughters; non-profit groups that object to abortion-pills or contraception for non-religious reasons; insurance companies or plan administrators that object; religious families that earn a living running a business; or individuals that arrange for their own insurance coverage not through an employer.

Notably, the Affordable Care Act uses secular reasons to refrain from applying this mandate to tens of millions of other Americans, such as because a plan is “grandfathered” from many ACA regulations.  Yet the government refuses to exempt most religious objectors.

Is the NPRM still subject to comment?

Yes.  The NPRM is not final and the government will accept public comments until April 8, 2013, about any aspect of the proposal. The Alliance Defending Freedom work with The Cardinal Newman Society to prepare a formal comment and other institutions are welcome to join that comment. Individual organizations may also submit their own electronic comments to www.regulations.gov. All comments should reference file code CMS–9968–P.

If I have more questions, whom do I contact?

General questions can be address to Bob Laird at the Cardinal Newman Society’s Catholic High School Honor Roll, (703) 367-0333 x 106 or blaird@CardinalNewmanSociety.org.  Specific questions about legal actions should be directed to Matt Bowman at Alliance Defending Freedom, 1-800-835-5233.