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
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
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
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
[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
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
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.
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.