Tuesday, May 24, 2016

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‘Huge Victory,’ ‘Opportunity’ for Religious Colleges in Labor Board’s Ruling

The National Labor Relations Board (NLRB) last week abandoned its longstanding, unconstitutional practice of measuring how religious a college appears to be before exempting it from federal oversight, but opted instead for a new test that considers whether individual employees perform religious functions.

Although the Board’s landmark ruling continues to assert authority over employee relations at some religious colleges—in this case, Pacific Lutheran University in Tacoma, Wash.—it moved considerably toward avoiding First Amendment conflicts and may be forced by federal courts to correct its practices even further.

Moreover, the NLRB’s new approach is likely to encourage an important conversation that The Cardinal Newman Society has pressed in Catholic higher education: Should all professors at a Catholic college have a specifically religious function, with the expectation that they will uphold Catholic values and doctrine and advance the college’s Catholic mission?  The Newman Society has argued they should.

“For the most part, this is a huge victory for The Cardinal Newman Society, religious colleges and all who have challenged the NLRB’s violations of religious freedom over the past 35 years,” said Patrick J. Reilly, president of The Cardinal Newman Society.  “The NLRB has been forced to retreat from an unconstitutional practice to an even weaker position—acknowledging our First Amendment concerns but still failing to comply with the Supreme Court’s ruling in NLRB v. Catholic Bishop of Chicago.”

“This also presents a wonderful opportunity,” Reilly said.  “The conversation that the NLRB has forced—considering whether all professors at a religious college hold an essentially religious function—is one that we enthusiastically welcome in Catholic higher education.”

The Newman Society has been a leading opponent of the NLRB’s harassment of Catholic colleges, several of which joined the Society’s amicus brief in the Pacific Lutheran case in March.

“Religious organizations have the right of autonomy over their internal governance, the right to be treated the same as all other religious groups and denominations by the government, and the right to be free from government meddling and intrusion in their operations and beliefs,” wrote attorneys for the Alliance Defending Freedom on behalf of the Newman Society and faithful Catholic colleges.

In its ruling, the NLRB several times cites “PLU and supporting amici” as influential in its newfound awareness that it “must not impinge on a university’s religious rights and must avoid the type of intrusive inquiry forbidden by Catholic Bishop.”  That 1979 Supreme Court ruling found that the National Labor Relations Act (NLRA) does not give the Board authority to regulate employee relations in Catholic education.  Although the Court declined to rule whether such interference is unconstitutional, it strongly indicated that it would violate the First Amendment, because Catholic teaching and practices would necessarily be considered when determining a Catholic school’s personnel policies and employee expectations.

Nevertheless, the NLRB has for 35 years asserted jurisdiction over religious colleges—first claiming that Catholic Bishop applies only to elementary and secondary schools, then shifting to its intrusive test of whether a college has a “substantial religious character.”  The test required the government agency to weigh whether a college was sufficiently religious for exemption by prying into matters of worship, curriculum, teaching, hiring policies and student recruitment.

Oddly, it was the AFL-CIO and the Service Employees International Union (SEIU) which finally convinced the NLRB to drop its “substantial religious character” test in its Pacific Lutheran ruling.  Although eager to organize PLU faculty members, the unions agreed with religious colleges that the NLRB’s practices were unconstitutional.  They urged the Board to abandon its test, noting that it “raises the specter of a wide-ranging, constitutionally problematic inquiry into whether a school is ‘sufficiently religious.’”

In its amicus brief with Catholic colleges, The Cardinal Newman Society called on the NLRB to follow federal court precedents and rely “on the institution’s own statements and behavior, rather than on the Board’s evaluation of it,” to determine whether a college is religious and exempt from federal oversight.  It was an argument with which the AFL-CIO and SEIU, as well as many religious colleges and leaders, fully agreed.

Nevertheless, the AFL-CIO and the SEIU proposed a new test: while accepting a college’s claim to be religious, the NLRB would instead determine whether particular professors perform explicitly religious duties.  If they did not, the Board could assert jurisdiction over union organizing of those employees.

The suggestion that certain professors’ duties might be more religious than others was part of an AFL-CIO official's testimony to Congress in 2012.  Christian Sweeney, deputy director of the organizing department of the AFL-CIO, testified that:

[I]n NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979), the Supreme Court created an implied exemption from NLRA coverage for primary and secondary school teachers at religious schools in order to avoid a serious constitutional question under the First Amendment.  The Court did so on the grounds that teaching at that level would inevitably involve some degree of religious instruction, no matter what formal subject matter was being taught.  The Board has extended Catholic Bishop to exempt certain college teachers.

In acknowledging that the Supreme Court had ruled that all Catholic school teachers “inevitably” engage in religious instruction, but nevertheless limiting the Court’s ruling to only “certain college teachers,” Sweeney appeared to hint at the AFL-CIO’s claim that many professors at the college level have primary secular functions—even when teaching at a religious college.

In its ruling against Pacific Lutheran University, the NLRB seems to agree with that position:

After careful consideration of applicable case law, as well as the positions of the parties and amici, we have decided that we will not decline to exercise jurisdiction over faculty members at a college or university that claims to be a religious institution unless the college or university first demonstrates, as a threshold matter, that it holds itself out as providing a religious educational environment.  Once that threshold requirement is met, the college or university must then show that it holds out the petitioned-for faculty members as performing a religious function.  This requires a showing by the college or university that it holds out those faculty as performing a specific role in creating or maintaining the university’s religious educational environment.

What distinguishes the NLRB’s new approach from what the AFL-CIO and SEIU advocated, is that the NLRB rightly chooses not to replace its intrusive investigation of colleges’ religiosity with a similarly intrusive test of whether particular jobs are “substantially religious.”  That, it says, could just be a new form of entanglement with religion.

Instead, the NLRB has opted to consider only whether a college “holds out” certain positions as having a religious function.  It finds that PLU does not do so for many faculty positions, but it remains to be seen what is necessary for a religious college to meet the NLRB’s new test.

For instance, the Vatican’s constitution on Catholic higher education, Ex corde Ecclesiae, requires that:

All teachers and all administrators, at the time of their appointment, are to be informed about the Catholic identity of the Institution and its implications, and about their responsibility to promote, or at least to respect, that identity.

And also:

In ways appropriate to the different academic disciplines, all Catholic teachers are to be faithful to, and all other teachers are to respect, Catholic doctrine and morals in their research and teaching.

If a Catholic college forthrightly claims to adhere to Ex corde Ecclesiae and expects all its faculty—even non-Catholic professors—to participate in its mission of Catholic education, that  may be sufficient for exemption from NLRB oversight.

If not, then Catholic colleges should have strong grounds for new lawsuits in federal court to block NLRB interference.  Any attempt by the Board to dispute a college’s assertion of religious duties or to regulate union negotiations with religious colleges would engage the Board in the very entanglement with religion that it has rejected in its Pacific Lutheran ruling and would violate the First Amendment.

Signers to The Cardinal Newman Society’s amicus brief in March included Aquinas College in Nashville, Tenn.; Benedictine College of Atchison, Kan.; DeSales University of Center Valley, Penn.; Holy Spirit College of Atlanta, Ga.; Ignatius-Angelicum Liberal Studies Program; John Paul the Great University of Escondido, Calif.; Thomas Aquinas College of Santa Paula, Calif.; Thomas More College of Liberal Arts in Merrimack, N.H.; University of St. Thomas in Houston, Tex.; and Wyoming Catholic College of Lander, Wyo.  All of these institutions are recommended in The Newman Guide for their strong Catholic identity.

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.

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