One of the more fascinating areas of law, is the issue arising when a parochial school claims that an educator is a minister. We discussed that issue way back in 2012 in this blog entry. While the Supreme Court there said that a minister was involved, it couldn’t figure out the standard to use. Now, we get a very interesting decision from the Ninth Circuit on December 17, 2018, Biel v. St. James School, where they held that the ministerial exception did not apply. As usual, the blog is divided into categories and they are: facts taken directly from opinion; majority’s reasoning; dissent’s reasoning; my application of Hosanna-Tabor; and takeaways. The reader is free to concentrate on any or all of the categories.
Facts Taken Directly from Opinion
Biel received a bachelor’s degree in liberal arts and a teaching credential from California State University, Dominguez Hills. After graduating in 2009, Biel worked at two tutoring companies and as a substitute teacher at several public and private schools. St. James, a Roman Catholic parish school within the Archdiocese of Los Angeles, hired Biel in March 2013 as a long-term substitute teacher. At the end of that school year, St. James’s principal hired Biel as the school’s full-time fifth grade teacher. Biel is herself Catholic, and St. James prefers to hire Catholic teachers, but being Catholic is not a requirement for teaching positions at St. James. Biel had no training in Catholic pedagogy at the time she was hired. Her only such training was during her tenure at St. James: a single half-day conference where topics ranged from the incorporation of religious themes into lesson plans to techniques for teaching art classes.
Biel taught the fifth graders at St. James all their academic subjects. Among these was a standard religion curriculum that she taught for about thirty minutes a day, four days a week, using a workbook on the Catholic faith prescribed by the school administration. Biel also joined her students in twice-daily prayers but did not lead them; that responsibility fell to student prayer leaders. She likewise attended a school-wide monthly Mass where her sole responsibility was to keep her class quiet and orderly.
Biel’s contract stated that she would work “within [St. James’s] overriding commitment” to Church “doctrines, laws, and norms” and would “model, teach, and promote behavior in conformity to the teaching of the Roman Catholic Church.” St. James’s mission statement provides that the school “work[s] to facilitate the development of confident, competent, and caring Catholic-Christian citizens prepared to be responsible members of their church[,] local[,] and global communities.” According to the school’s faculty handbook, teachers at St. James “participate in the Church’s mission” of providing “quality Catholic education to . . . students, educating them in academic areas and in . . . Catholic faith and values.”9 The faculty handbook further instructs teachers to follow not only archdiocesan curricular guidelines but also California’s public-school curricular requirements.
In November 2013, Biel received a positive teaching evaluation from St. James’s principal, Sister Mary Margaret, measuring her performance in aspects both secular (e.g., her lesson planning strategies) and religious (e.g., displaying Church symbols in her classroom). The principal’s written evaluation praised Biel’s “very good” work promoting a safe and caring learning environment, noted that she adapted her teaching methods to accommodate her students’ varied learning styles, and observed that she encouraged social development and responsibility. The principal also identified some areas for improvement: for instance, Biel’s students had many items on their desks and two students were coloring in the pages of their books.
Less than six months after that evaluation—which was her first and only formal evaluation at St. James—Biel learned that she had breast cancer and informed the school administration that her condition required her to take time off to undergo surgery and chemotherapy. Sister Mary Margaret told Biel a few weeks later that she would not renew Biel’s contract for the next academic year, citing her belief that Biel’s “classroom management” was “not strict” and that “it was not fair . . . to have two teachers for the children during the school year.”
Biel sued St. James in the United States District Court for the Central District of California, alleging that her termination violated the ADA, which prohibits employment discrimination based on disability. See 42 U.S.C. § 12112(a). Following discovery, St. James moved for summary judgment, arguing that the First Amendment’s ministerial exception to generally applicable employment laws barred Biel’s ADA claims. The district court agreed and granted summary judgment for St. James.
Majority Reasoning Saying Ministerial Exception Does Not Apply
- Hosanna-Tabor is the only case where the Supreme Court applied the ministerial exception.
- The factors the United States Supreme Court considered included: 1) whether the employer held the employee out as a minister; 2) whether the employee’s title reflected ministerial substance and training; 3) whether the employee held itself out as a minister; and 4) whether the employee’s job duties included important religious functions. The test is a totality of the circumstances test.
- Biel in this case does not have the credentials, training, or ministerial background of the plaintiff in Hosanna-Tabor.
- There was no religious component to the Biel’s liberal studies degree or to her teaching credential.
- The school had no religious requirement for Biel’s teaching position.
- Even after Biel began working, her training consisted of only a ½ day conference whose religious substance was limited.
- Unlike the plaintiff in Hosanna-Tabor, Biel appears to have taken on teaching work wherever she could find it including: tutoring companies; multiple schools; another Catholic school; and even a Lutheran school.
- James did not hold Biel out as a minister by suggesting that she has special expertise in church doctrine, value, or pedagogy beyond that of any practicing Catholic.
- Her job title was grade 5 teacher and there is nothing religious in that title.
- Her employment was at will and on a year-long renewable contract and was not at all similar to how contract oversight was set up in Hosanna-Tabor.
- Nothing in the record indicated that Biel considered herself a minister or presented herself as one to the community. She described herself as a teacher and claimed no benefits available only to ministers.
- Biel did teach religion in the classroom. She taught lessons on the Catholic faith four days a week. She also incorporated religious themes and symbols into her overall classroom environment and curriculum as required by the school. Nevertheless, Hosanna-Tabor cannot be read to say the ministerial exception applies only if this particular characteristic is present. To say that would mean that most of the analysis in that case would be irrelevant dicta.
- In Hosanna-Tabor, the United States Supreme Court emphasized the importance of assessing both the amount of time performing religious functions and the nature of the religious functions performed. Here, Biel’s role in Catholic religious education was limited to teaching religion from a book required by the school and incorporating religious themes into her other lessons. She did not orchestrate student daily prayers and did not teach, lead, or plan those devotions herself. Her responsibilities at mass were only to accompany her students and to make sure the kids were quiet in their seats. None of this amounts to the close guidance and involvement in the spiritual lives of her students that the plaintiff in Hosanna Tabor had.
- With respect to other cases cited by the defendant, all of those plaintiffs had responsibilities involving pronounced religious leadership and guidance, which is not the case here.
- At most, only one of the four Hosanna-Tabor factors weighs in defendant’s favor.
- A rule stating that any school employee teaching religion falls within the ministerial exception is not faithful to Hosanna-Tabor or to its underlying constitutional and policy considerations. Such a rule would render most of Hosanna-Tabor’s analysis irrelevant. It means focusing on a single aspect of the employee’s role rather than on a totality of the circumstances involving her training, duties, title, and the extent to which he is asked to transmit religious ideas.
- Looking at the historical backdrop to the First Amendment, it is clear that the ministerial exception does not extend to every employee whose job has a religious component.
- While the handbook has references to a religious role by Biel, the defendant did not rely on the faculty handbook in support of its motion for summary judgment. Perhaps, because the handbook’s force and effect were contested. Further, it is unclear what role, if any, the handbook played at the school, and whether it actually reflected with teachers at the school were expected to do in practice.
- Congress did not exempt religious organizations from title I of the ADA. Accordingly, that choice combined with the presumption of constitutionality enjoyed by congressional legislation means it is especially difficult to invalidate unnecessarily vast swaths of federal law as applies to many employees of religious organizations.
- On remand, the defendant does get to argue that it was pedagogical and classroom management concerns and not Biel’s medical condition that was the basis for decision not to renew Biel’s contract.
Dissent’s (Judge Fisher), Reasoning
- Biel did teach 30 minute religion classes four days a week using a curriculum from a Catholic textbook chosen by the school principal. Using that curriculum, Biel taught and tested students in her religion class about the Catholic sacraments, the lives of Catholic saints, Catholic prayers, Catholic social teaching, gospel stories, and church holidays.
- In her secular classes, she was expected to incorporate Catholic teachings.
- As required by the school, Biel attended a one day conference at the Los Angeles religious education Congress covering methods of incorporating God into lessons.
- The faculty handbook contains many references to the religious aspect of her teaching.
- Performance reviews at the school included a section evaluating Catholic identity factors.
- The ministerial exception is an affirmative defense.
- The ministerial exception is grounded in the First Amendment and operates independently of any exception granted by Congress. So, it doesn’t matter if the ADA’s title I provisions apply to a religious entity for the exception to apply.
- Justice Alito and Justice Kagan said that the critical factor should be the employee’s function rather than his or her title ordination status. Plenty of functions here indicate a religious nature.
- Justice Thomas’ view that the ministerial exception applies to any good-faith understanding of who qualifies as a minister is also applicable and is met in this case.
- The Hosanna-Tabor test is a totality of the circumstances test.
- The dissent comes out with two factors weighing in favor of the ministerial exception and two factors weighing against application of the ministerial exception. In that situation, it is overly formalistic to call it a draw. Accordingly, the court is free to decide which of the four factors come to the forefront. In this case, the dissent believed the importance of Biel’s role as a teacher of faith to the next generation outweighed other considerations.
- It is important to not make the mistake of tying the ministerial exception too close to the Protestant Christian concept of ministers.
- The ministerial exception should be given a broad application if it is to provide sufficient protection for religious freedom.
My Application of Hosanna-Tabor To These Facts:
- Justice Roberts focused on the training of the employee and the title that the employee has. Applying that test leads to the conclusion that Biel is probably not a minister. Her title was a grade 5 teacher. Her training was not particularly religious.
- Justice Thomas focuses on whether the religious organization had a good faith belief that the person is a minister based on a sincere determination of the religious entity that the person was a minister. As I mentioned when discussing this case the first time, I find this test very problematic because it gets into the issue of evaluating the good faith and sincerity of a religious entity’s belief. Nevertheless, applying this test, it is hard to believe that a Catholic institution could have a good faith belief based on a sincere determination that Biel was a minister considering all that goes into being a minister in the Catholic faith.
- Justice Alito and Justice Kagan focus on the functions of the employee. This particular test is a much harder call. It may even depend upon the personal baggage that a judge brings to it. Looking at the facts laid out by the majority opinion and applying it to this particular test, I get an even split of five factors indicating a ministerial employee and five factors indicating that she was not a ministerial employee. Interestingly enough, that leaves me in the same place as the dissenting judge who also reached the conclusion that there was an even split. Fortunately, I am not the judge. If I were, I might look to the faculty handbook in the contract being very much a matter of dispute. I might also look to much of the performance review having nothing to do with the Catholic faith as well as the suspicious timing of the termination. However, if I came to the case from a very different perspective in terms of how I grew up, what I have come to believe in terms of my religious beliefs, and my identity as a person with a disability, I might reach a very different conclusion.
- If this case shows anything, it shows that deciding whether the ministerial exception applies is a big mess. All of the tests put forward by the Justices in Hosanna-Tabor have their strengths and weaknesses. For example, a person’s religious training can be properly evaluated. However, job titles can easily be manipulated. Focusing on whether a religious organization has a good faith belief based upon a sincere determination of the religious entity becomes very problematic because then one is essentially applying a reasonable person test to the entity’s determination that a minister exists. That reasonable person who is applying the test may go very different places depending upon his or her background. The function test has a lot of appeal, but as we see in this case, functions can be spun by advocates. Also, even assuming judges will recognize spinning and they probably would, what do you do when it ties? Both the dissenting judge and myself found ourselves in that predicament.
- The case also stands for the proposition that regardless of what a faculty handbook says, what actually happens on the ground is dispositive.
- The ministerial exception is an affirmative defense.
- Look for lots and lots of litigation over the ministerial exception. The difference now is that we have two new justices on the Supreme Court (Justice Gorsuch and Justice Kavanaugh). Justice Gorsuch is a big religious freedom person. I have not looked into Justice Kavanaugh’s jurisprudence on this issue. I have no idea what tests from Hosanna-Tabor Justice Gorsuch and Justice Kavanaugh will adopt. It may be a while before they take on a case like this since you can’t really say a conflict ever exists because any of several different standards might be in play. So, I would not expect the confusion generated by the various views expressed in Hosanna-Tabor of when the ministerial exception occurs to be resolved anytime soon.