In the fourth of a series of reports on the Common Core State Standards (CCSS) published by The Cardinal Newman Society, two legal experts on religious freedom issues explain that Catholic schools must “maintain their religious mission in all their programs—including standards, methods, and curriculum—if they want to avoid” government threats to their Catholic identity.
Authors Kevin Theriot and Jeremy Tedesco are senior legal counsel for the Alliance Defending Freedom (ADF), which has played a key role in court battles to halt the HHS mandate and has worked closely with The Cardinal Newman Society to advise Catholic school and college leaders on protecting their religious freedom.
The report is part of the Newman Society’s Catholic Is Our Core project to help key stakeholders in Catholic education – Catholic families, pastors, teachers, principals, superintendents and bishops – know and evaluate concerns about the Common Core and its potential impact on Catholic education.
Theriot and Tedesco address federal statues which can be used to undermine a school’s religious identity. For schools seeking to avoid restrictions by claiming First Amendment protection or religious exemptions, the authors list 10 characteristics commonly cited by courts to determine if an organization has a strong enough religious character to merit an exception. In the past, courts have considered:
1. Whether the entity operates for profit
2. Whether it produces a secular product
3. Whether the entity’s articles of incorporation or other pertinent documents state a religious purpose
4. Whether it is owned, affiliated with or financially supported by a formally religious entity such as a church or synagogue
5. Whether a formally religious entity participates in the management, for instance by having representatives on the board of trustees
6. Whether the entity holds itself out to the public as secular or sectarian
7. Whether the entity regularly includes prayer or other forms of worship in its activities
8. Whether it includes religious instruction in its curriculum, to the extent it is an educational institution
9. Whether its membership is made up by coreligionists
10. Consistent compliance with religious beliefs.
Educators and parents have expressed concerns that the Common Core—which rests on entirely secular standards that are sometimes at odds with Catholic schooling rooted in a classical approach to education—could impact the Catholic identity of Catholic schools, if they voluntarily conform their curricula, textbooks and testing to the Common Core. This, suggests the analysis by Theriot and Tedesco, could lead to problems with protecting Catholic schools’ religious freedom.
To the extent that a religious school departs from its historic religious ties, it may be in danger of losing its ability to claim that it is a religious employer exempted from civil rights legislation disallowing even religious discrimination. To minimize regulation, such institutions should firmly maintain their religious identities and should exercise caution when accepting federal funds or allowing their students to accept federal financial assistance.
Schools also can anticipate difficulty avoiding problematic requirements of the Affordable Care Act. Catholic schools must either bring about a change in the law which expands conscience rights or bring successful lawsuits against the HHS in which they demonstrate “that it actually has a sincere religious belief against providing or facilitating coverage for certain objectionable practices, and that forcing it to do so will substantially burden its belief because it would select non-objectionable health coverage if it could.” Catholic Education Daily recently reported that Catholic schools associated with the health plan for the Michigan Catholic Conference, University of Dallas, University of Saint Francis and Aquinas College are among a recent list of colleges and schools that have been awarded temporary relief from the HHS mandate.
Catholic Education Daily is an online publication of The Cardinal Newman Society. Click here for email updates and free online membership with The Cardinal Newman Society.