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The application of labor relations and discrimination statutes to lay teachers at religious schools: the Establishment Clause and the pretext inquiry.

I. INTRODUCTION AND BACKGROUND

The courts have not dealt consistently with the First Amendment excessive entanglement concerns that arise when lay teachers at religious elementary and secondary schools are covered by a state labor relations act or an anti-discrimination statute. Some courts have held that the application of these statutes to lay teachers violates the Establishment Clause.(1) Those courts that have upheld the constitutionality of applying these statutes to lay teachers have not clearly defined the limits of permissible jurisdiction. Setting clear and appropriate limits on the application of these statutes will support the constitutionality of applying them to lay teachers. Appropriate limits will also effectively balance the state's interests in protecting lay teachers from anti-union conduct and discrimination with the need to protect religious schools from excessive intrusion into their religious mission. The need for a clear rule is of increasing importance because of the greater numbers of lay teachers and the potential resurgence in attendance at religious schools due to voucher and tax credit proposals that subsidize private school education.(2)

In the fall of 1997, more than five million children in the United States were enrolled in private elementary and secondary schools.(3) Of these, 84.3% were enrolled in religious schools.(4) While this article applies to all religious schools, the case law tends to focus on Catholic schools, which account for 58.8% of all children attending religious schools.(5) More importantly, Catholic school teachers have the largest and most organized unions6 and Catholic school leaders have opposed the government's efforts to exercise jurisdiction to protect lay teachers from anti-union and discriminatory conduct.(7)

There has been a revival in Catholic school education during the last decade.(8) Catholic schools had the greatest enrollment in 1964.(9) At that time, more than 5.6 million children attended 13,000 Catholic elementary and secondary schools.(10) While the number of Catholic school students has decreased to less than half the number in 1964,(11) enrollment has increased by more than 64,000 in the past ten years.(12) There are hundreds of new schools(13) and more than 42% of Catholic elementary and secondary schools have waiting lists for admission.(14)

The increasing enrollment is likely to continue if states pass "voucher or tax credit proposals [that] subsidize private school education."(15) Many states are currently considering these programs.(16) Subsidizing private school education would also lead to an increase in non-Catholics attending Catholic schools.(17) Currently, 13.4% of students attending Catholic schools are not Catholic.(18)

There has also been an enormous increase in the number of lay teachers in Catholic schools.(19) During the 1967-1968 school year, 43.3% of the 161,315 teachers in Catholic schools were lay teachers.(20) By the 1999-2000 school year, 93% of the 157,134 teachers in Catholic schools were lay teachers.(21) While the total number of Catholic school teachers declined, the number of lay teachers increased by more than 76,000.(22)

The most significant risk of excessive entanglement related to the application of labor relations and discrimination statutes to lay teachers arises when a religious school raises a religious defense to a charge of anti-union or discriminatory conduct. Once the defense is raised, the government must determine whether the religious defense is the real motivating cause for the school's actions or is a pretext to cover anti-union or discriminatory conduct. It is this inquiry into pretext that entangles the government in religious issues concerning the school.(23)

The earliest court decisions concerning the application of labor relations statutes to lay teachers prohibited any inquiry into pretext due, in part, to concern that this inquiry would lead to an examination of religious doctrine. The more recent trend in labor relations and discrimination cases has been to allow the government to inquire into certain aspects of the religious school's behavior to determine pretext while prohibiting inquiry into doctrine.(24) None of the cases concerning labor relations or discrimination statutes clearly defines either the scope of permissible inquiry into pretext or the impermissible inquiry into doctrine.

This article suggests an accommodation that reconciles the case law and clearly sets the boundaries of permissible governmental jurisdiction. The article recommends separating the behavioral and doctrinal aspects of the pretext inquiry and only allowing inquiry into behavior. This article defines both inquiries and demonstrates the use of some behavioral inquiries in the case law.

By clearly defining the permissible and impermissible inquiries, the rights of both lay teachers and religious schools can be better protected. The state can only effectively exercise its jurisdiction if it is aware of the permissible scope of inquiry. Otherwise, the state may excessively restrict its questioning into pretext to avoid First Amendment concerns. Correspondingly, if the parameters of impermissible inquiry are clearly defined, the risk of interfering with the doctrinal concerns of the schools is minimized. The government would be aware of what questioning to avoid and the religious schools would be fully apprised of the types of questions they can legitimately refuse to answer.

This article deals with labor relations and discrimination cases together because the issues relating to the application of these statutes to lay teachers are very similar. Both the labor relations and discrimination cases refer to each other in developing their analyses, and the central issue in all of these cases is the pretext inquiry. Therefore, the current trends can only be fully understood by examining both.(25)

Part II of this article discusses the procedures followed in labor relations and discrimination cases and explains why the government only becomes involved in religious issues when determining whether a religious defense raised by the schools is pretextual.(26) Part III discusses the development of the case law in this area and highlights the inconsistencies and conflicts in the cases.(27)

Part IV discusses the more recent trends in the case law and proposes an accommodation that sets coherent guidelines regarding permissible and impermissible inquiries into pretext.(28) The article suggests limiting the pretext inquiry to questions concerning whether the school has behaved in a manner consistent with its religious defense. The article also recommends prohibiting inquiry into doctrine and defining this prohibition to include inquiry into the existence, plausibility or validity of doctrine. This section also demonstrates how this accommodation is consistent with the principles already set out in the case law. Finally, Part V explores the societal importance of applying labor relations and discrimination statutes to lay teachers at religious schools.(29)

II. THE PROCEDURES GOVERNING LABOR RELATIONS AND DISCRIMINATION CASES LIMIT THE GOVERNMENT'S DIRECT INVOLVEMENT IN RELIGIOUS ISSUES TO THE PRETEXT INQUIRY

A. Labor Relations Statutes

The danger of excessive entanglement in the labor relations area arises from the requirement that religious schools engage in collective bargaining with teacher unions and from the proscription against retaliatory discharge of teachers for engaging in union activities. A refusal to engage in collective bargaining or the discharge of a teacher can result in charges against a religious school and cause the school to justify its actions by raising a religious defense. The procedures followed by state labor relations boards(30) help ensure that the states' involvement in religious issues is limited to determining whether the religious defenses raised by the school are pretextual.

1. Collective Bargaining

A school's good faith in bargaining with the teachers' labor union can only become an issue before the state's labor relations board if the union or an individual member alleges that the school has engaged in one or more of the unfair labor practices in the state's labor relations act.(31) The state labor relations boards do not initiate unfair labor practice proceedings on their own.(32) All of the unfair labor practices are secular and, when a labor relations examiner investigates a charge, he or she will be investigating the issues directly pertaining to the unfair labor practices set forth in the charge. Similarly, if a hearing is held, the Administrative Law Judge must limit the scope of the hearing to the issues pertaining to the unfair labor practices before him or her.(33) The order in a case where the employer refused to bargain collectively, would merely require the employer to bargain in good faith about wages, hours and other terms and conditions of employment.(34) The government cannot compel a party to make any concessions or to agree to any substantive contractual provision.(35)

Because all of the unfair labor practice charges are secular, a religious issue can only arise if the employer raises a religious motive as a defense to a charge. Thus, it is initially up to the employer, rather than the government, to determine whether any religious issues are involved and to define the parameters of any religious defense.

For example, if during collective bargaining, the union asked the school to include medical coverage for abortions in the union's health insurance plan, the religious school might refuse to bargain on this issue. The union might then file an unfair labor practice charge with the government charging that the school is refusing to bargain in good faith regarding the union's health insurance, a mandatory subject of bargaining. When the government investigated the charge, the school would inform the government that it was acting in good faith but was unable to bargain on this issue due to its religious beliefs. Once the school raised this religious defense, the government would have to determine whether the religious belief raised in the defense was the real motivating cause for the school's refusal to bargain or was merely a pretext to justify the refusal to bargain.

2. Discharge Cases

Similarly, a religious issue might arise in the context of an alleged retaliatory discharge of a teacher for engaging in pro-union activities. As the Seventh Circuit wrote, the issue might arise regarding
 For example an unfair labor practice charge [which follows] the dismissal
 of a teacher either for teaching a doctrine that has current favor with the
 public at large but is totally at odds with the tenets of the Roman
 Catholic faith, or for adopting a lifestyle acceptable to some, but
 contrary to Catholic moral teachings.(36)


Here, again, the religious issue would be raised by the school as a defense to the charge of retaliatory discharge.
 "The [government] in processing an unfair labor practice charge would
 necessarily have to concern itself with whether the real cause for
 discharge was that stated or whether this was merely a pretextual reason
 given to cover a discharge actually directed at union activity."(37)


B. Discrimination Statutes

The same type of pretext determination would arise in determining whether the discharge of a lay teacher at a religious school was discriminatory. As with state boards, the Equal Employment Opportunity Commission (hereinafter "EEOC") cannot independently initiate actions to enforce Title VII of the Civil Rights Act of 1964 (hereinafter "Title VII"), or the ADEA;(38) rather, these actions "must be initiated by an employee filing charges with the Commission."(39) Once a charge of discrimination is filed with the EEOC, the EEOC is required to investigate and potentially prosecute the charge.(40) Because the discrimination provisions are all secular, a religious issue will only arise if the school raises a religious reason for the discharge.(41) If a religious defense is raised, the EEOC is then required to determine whether the defense was the real motivating cause for the discharge or was merely a pretext to cover discriminatory conduct.(42)

Because religious issues are defined and addressed in relation to the pretext inquiry, the courts have generally emphasized this inquiry in their establishment clause analyses. The courts' reasoning regarding the pretext inquiry has, however, never been fully developed or clearly defined.

III. THE COURTS' FAILURE; TO FOLLOW A CONSISTENT PATH

The courts discussing labor relations cases have generally dealt with collective bargaining and discharge cases separately. With respect to collective bargaining, some courts has found that the terms and conditions of a teacher's employment and the school's doctrine are so interconnected that mandating bargaining impermissibly affects management decisions on ecclesiastical concerns.(43) Other courts have determined that the government can limit its involvement to the secular aspects of a teacher's employment.(44) None of these cases have dealt directly with concerns that may arise if the school raises a religious defense to justify a failure to bargain in good faith concerning a specific term or condition of employment.

With respect to discharge cases regarding anti-union and discriminatory conduct, the courts have focused on the pretext inquiry.(45) Some courts have found that allowing inquiry into the good faith of a religious defense will impermissibly involve the state in an examination of church doctrine.(46) Some have found that even the "process of inquiry" may violate the Establishment Clause.(47) Other courts have allowed limited inquiry into pretext and some have not indicated whether there should be any restriction on the inquiry at all. A review of the major cases will reveal the confusion in this area and more fully illustrate the areas of concern.

A. Catholic Bishop v. National Labor Relations Board

The first circuit court to address the constitutionality of applying a labor relations act to lay teachers at a religious school was the Seventh Circuit in Catholic Bishop v. National Labor Relations Board.(48) In Catholic Bishop, the Seventh Circuit held that the application of the National Labor Relations Act ("NLRA") to lay teachers in church-operated schools would violate the Religion Clauses of the First Amendment.(49) In making its determination, the court analyzed collective bargaining and the discharge of teachers separately.(50) The Seventh Circuit only addressed the pretext inquiry with respect to the discharge of teachers.(51)

In addressing collective bargaining, the Seventh Circuit did not discuss the labor relations process or deal with its procedural protections. Rather, the Seventh Circuit found that the conditions of a teacher's employment and the doctrinal concerns of a religious school are so interconnected that requiring the schools to engage in collective bargaining would inevitably lead to negotiation of doctrinal matters.(52) The Seventh Circuit held that a collective bargaining requirement would cause excessive entanglement by impermissibly affecting the bishops' decisions concerning matters of ecclesiastical concern.(53) The court wrote:
 The real difficulty is found in the chilling aspect that the requirement of
 bargaining will impose on the exercise of the bishops' control of the
 religious mission of the schools. To minimize friction between the Church
 and the Board, prudence will ultimately dictate that the bishop tailor his
 conduct and decisions to "steer far wider of the unlawful zone" of
 impermissible conduct.(54)


With respect to the discharge of teachers,(55) the Seventh Circuit recognized that a religious issue would only arise if the school raised a religious defense to an unfair labor practice charge.(56) The court found that, once a religious defense was raised, the National Labor Relations Board ("NLRB") would have to determine "whether the real cause for discharge was that stated or whether this was merely a pretextual reason given to cover a discharge actually directed at union activity."(57) The Seventh Circuit held that this inquiry into pretext would violate the First Amendment because it would involve an examination of "the validity as a part of church doctrine of the reason given for the discharge."(58)

The Seventh Circuit rejected the possibility of an accommodation that would require the NLRB to decide parochial school cases involving unfair labor practices "without regard to the merits of the alleged doctrinal issues."(59) The court found that if a church-operated school raised a religious defense to an unfair labor practice charge, the bishop would necessarily become involved in "explanation and analysis, and probably verification and justification, of the doctrinal precept involved, all of which would itself erode the protective wall afforded by the [First Amendment]."(60) The court also rejected the possibility of an accommodation because, under the NLRA, a teacher can be reinstated if the teacher's discharge was motivated even partially by union activities.(61) Therefore, a religious school might be forced to reinstate a teacher who acted contrary to the school's religious dictates.(62)

On appeal, the Supreme Court did not decide the First Amendment issues but rather relied on a theory that enabled the Court to avoid directly addressing the First Amendment concerns.(63) The Court held that, if the NLRB's exercise of jurisdiction would give rise to "serious constitutional questions,"(64) there must be a "clear expression of an affirmative intention of Congress that teachers in church-operated schools should be covered by the Act."(65)

In deciding that the NLRB's exercise of jurisdiction would give rise to serious constitutional questions, the Supreme Court relied heavily on the Seventh Circuit's opinion. The Supreme Court indicated that the terms and conditions of a teacher's employment could be related to almost everything that takes place at the school and that bargaining about these terms and conditions would affect the position taken by management.(66)

The Supreme Court also briefly addressed the question of pretext and found that even inquiring into the good faith of a religious defense could raise First Amendment concerns.(67) The Court wrote:
 The resolution of such charges [brought] by the [National Labor Relations]
 Board, in many instances, will necessarily involve inquiry into the good
 faith of the position asserted by the clergy-administrators and its
 relationship to the school's religious mission. It is not only the
 conclusions that may be reached by the [NLRB] which may impinge on rights
 guaranteed by the Religion Clauses, but also the very process of inquiry
 leading to findings and conclusions.(68)


Despite finding "serious First Amendment questions" potentially involved in an NLRB proceeding, the Supreme Court did not find that the exercise of jurisdiction by the NLRB over church-operated schools would result in a First Amendment violation.(69) Rather, the Court concluded that the NLRB lacked jurisdiction over church-operated schools because "[o]ur examination of the [NLRA] and its legislative history indicates that Congress simply gave no consideration to church-operated schools."(70)

B. Catholic High School Association v. Culvert

Six years later, in Catholic High School Ass'n v. Culvert,(71) the Second Circuit held that the application of the New York State Labor Relations Act ("SLRA") to lay teachers at church-operated schools did not violate the Religion Clauses of the First Amendment.(72) The Supreme Court's decision in Catholic Bishop was not controlling in this case because, unlike the NLRA, the unequivocal language and legislative history of the SLRA left no doubt that the Legislature intended to include lay teachers within the scope of the Act.(73) Catholic High School, did not, therefore, involve the jurisdictional issues decided by the Supreme Court in Catholic Bishop.

In its opinion, the Second Circuit addressed the entanglement concerns raised by the Seventh Circuit and the Supreme Court in Catholic Bishop concerning collective bargaining and discharge cases.(74) With respect to collective bargaining, the Second Circuit defined the issue as whether the Catholic high school "would be required to bargain with lay teachers on religious subjects."(75)

The Second Circuit found that the state's role in collective bargaining is limited to requiring that the school engage in collective bargaining on issues concerning the terms and conditions of a teacher's employment--the mandatory subjects of bargaining.(76) The Second Circuit described the bargaining process as follows:
 It is a fundamental tenet; of... collective bargaining that government
 brings private parties to the bargaining table and then leaves them alone
 to work through their problems. The government cannot compel the parties to
 agree on specific terms. All it can do is order an employer who refuses to
 bargain in good faith to return and bargain on the mandatory bargaining
 subjects, all of which are secular.(77)


The Second Circuit directly disagreed with the Seventh Circuit's determination that the terms and conditions of a lay teacher's employment are so interconnected with doctrinal concerns that mandating bargaining will result in a First Amendment violation.(78) The court found that, although the bargaining process might result in some discussion of religious issues, the state would not become involved in these issues.(79)

The Second Circuit then addressed the concern that the bargaining process would affect decisions made by the church leaders. The court found that, because the terms and conditions of employment are secular, the state can protect the employees' rights without implicating the First Amendment.(80) The Second Circuit wrote: "[t]hat faculty members are expected to serve as exemplars of practicing Christians does not serve to make the terms and conditions of their employment matters of church administration and thus purely of ecclesiastical concern."(81) The Second Circuit had more difficulty with the issue of whether the New York State Labor Relations Board ("SLRB")(82) could become involved in the discharge of lay teachers without becoming excessively entangled in religious concerns. The court found that, if the parochial school asserted that a teacher was fired for religious reasons while the teacher asserted that he or she was fired for antiunion reasons, there was a real possibility of excessive administrative entanglement.(83) In reaching this conclusion, the court focused on the pretext inquiry.

The court found that, if the school raised a religious defense to justify firing a lay teacher, "`the bishop ... would have to eliminate the pretextual aspect of claimed justification which would involve the matter of showing the validity [as part of church doctrine] of the claimed doctrinal position advanced.'"(84) The court concluded that imposing such an obligation on the bishop would violate the Establishment Clause.(85)

Despite this conclusion, the Second Circuit found that the SLRB could exercise jurisdiction in discharge cases? The court adopted an accommodation designed to address the concerns of the Seventh Circuit and the Supreme Court in Catholic Bishop. The Second Circuit allowed the SLRB to exercise jurisdiction, but "prohibit[ed] the [SLRB] from inquiring into an asserted religious motive to determine whether it is pretextual."(87)

The Second Circuit recognized, however, that the state board would become a "`toothless tiger'" if it could not make any determination concerning whether the religious defense motivated the discharge,(88) Therefore, the court constructed an accommodation that allowed the SLRB "to determine, using a dual motive analysis, whether the religious motive was in fact the cause of the discharge."(89) The "dual motive analysis" was intended to restrict the state board's questioning to avoid inquiry into doctrine.(90) The court also restricted reinstatement of a lay teacher to those cases where the teacher "would not have been fired otherwise for asserted religious reasons."(91) This restriction would prevent reinstatement of a teacher whose discharge was based "`in part'" on anti-union animus.(92)

The problem with the court's accommodation is that it is unworkable. The court's opinion does not contain an explanation of the "dual motive analysis" nor does it explain how the SLRB can determine whether a religious motive is the real cause for a discharge without examining "pretext."(93)

Due to the lack of clarity in the court's opinion, the SLRB resorted to determining cases in which a religious motive was raised to justify the firing of a lay teacher by assuming that the religious motive was, in fact, the reason for the discharge. For example, in St. John's Preparatory School and Lay Faculty Ass'n, Local 1261,(94) the Catholic school claimed that it could not reinstate several teachers because their conduct during the subject strike "`conflicted with the role of teachers at a catholic school.'"(95) The SLRB noted in its decision that, in Catholic High School, "the Second Circuit made it clear that we are prohibited from `inquiring into an asserted religious motive to determine whether it is pretextual.'"(96) Relying on its interpretation of the Second Circuit's decision, the SLRB concluded that, based on the school's defense, it could not direct St. John's to reinstate these teachers.(97) Thus, simply by raising a religious motive for the discharge, the school ensured that the discharge of these teachers would not be questioned.(98)

The Second Circuit's decision also fails to deal with the fact that a religious motive can be raised as a defense to a charge that the employer refused to bargain in good faith concerning the mandatory subjects of bargaining. For example, a Catholic school might raise as a defense to an unfair labor practice charge that it was unable to bargain about medical coverage for abortions in the union's health insurance plan due to Catholic doctrine. Once this religious defense was raised, the SLRB's inquiry would lead to the same concerns as in a discharge case. The SLRB would have to determine whether the school's defense was merely a pretext to avoid bargaining in good faith.

C. Dayton Christian Schools, Inc. v. Ohio Civil Rights Commission

In Dayton Christian Schools, Inc. v. Ohio Civil Rights Commission, the Sixth Circuit(99) and the Supreme Court(100) were squarely presented with the issue of whether the application of anti-discrimination provisions to teachers at a religious school would violate the First Amendment.(101) In that case, the school raised a religious defense to the state civil rights commission's sex discrimination charge.(102) The school was pervasively religious and the hiring of teachers was based on religious criteria.(103) The Sixth Circuit found that the Commission's exercise of jurisdiction over the school would violate the First Amendment.(104) In reaching this decision, the Sixth Circuit focused on the pretext inquiry.

Dayton Christian Schools, Inc. (hereinafter Dayton) is a private, non-profit corporation that provides education at the elementary and secondary school levels.(105) Each teacher is required to be a "born-again Christian" and to subscribe to a particular set of religious beliefs including a belief in "the internal resolution of disputes through the `Biblical chain of command."'(106) This doctrine requires the teachers "to present any grievance they may have to their immediate supervisor, and to acquiesce in the final authority of the [school] board, rather than to pursue a remedy in civil court."(107) Dayton sought to ensure that the teachers complied with this internal dispute resolution doctrine "by making it a contractual condition of employment."(108)

Linda Hoskinson was employed as a teacher at Dayton.(109) In 1979, she informed her principal that she was pregnant and was told that her employment contract would not be renewed "because of Dayton's religious doctrine that mothers should stay home with their preschool age children."(110) Instead of appealing this decision through the biblical chain of command, Ms. Hoskinson contacted an attorney who threatened the school with litigation based on federal and state discrimination laws if she were not rehired.(111) Thereafter, Dayton terminated Ms. Hoskinson's employment on the ground that she violated the internal dispute resolution doctrine.(112) The school board stated that this was the sole reason for her termination and it rescinded its earlier decision not to renew her contract because "she had not received adequate prior notice of the doctrine concerning a mother's duty to stay home with her young children."(113)

Ms. Hoskinson then filed a complaint with the Ohio Civil Rights Commission alleging sex discrimination.(114) After a preliminary investigation and an attempt to settle, the commission issued a complaint,(115) Dayton answered the complaint by asserting that "the First Amendment prevented the commission from exercising jurisdiction over it since its actions had been taken pursuant to sincerely held religious beliefs."(116) Dayton also sought an injunction in federal court.(117)

The Sixth Circuit found that the commission's exercise of jurisdiction would result in excessive state/church entanglement based primarily on the commission's need to determine issues of "good faith and motivation."(118) The court explained that the commission would have to decide whether the religious defense was the real reason for the dismissal or was a pretext to cover discrimination.(119) The Sixth Circuit concluded that the fact that the commission would "often be required to decide questions of intent, motive, causation, and pretext necessarily involves the state in assessing religious decisions."(120)

In reaching its decision, the Sixth Circuit addressed the district court's determination that, at this stage of the proceedings, only a hearing was involved.(121) The Sixth Circuit cited the Supreme Court's decision in Catholic Bishop to support its determination that it is not only the ultimate decision of the commission, but also the "very process of inquiry leading to findings and conclusions" that may violate the First Amendment.(122) Based on its finding that the process of inquiry during an investigation and hearing would cause excessive entanglement, the Sixth Circuit enjoined the commission from exercising jurisdiction over Dayton and emphasized that if the commission were not enjoined from holding a hearing, the school would suffer irreparable harm.(123)

On appeal,(124) the Supreme Court remanded the case for a hearing before the commission and held that the federal court must abstain from interfering with the pending state administrative proceeding because important state interests were involved and the federal plaintiff would have a full and fair opportunity to litigate its First Amendment claims during or after the proceedings.(125)

Interestingly, the Court did not explicitly address the Sixth Circuit's finding that "the mere process of inquiry" during the investigation and hearing would, itself, pose First Amendment concerns.(126) The Court only wrote that "the Commission violates no constitutional rights by merely investigating the circumstances of [the teacher's] discharge in this case, if only to ascertain whether the ascribed religious-based reason was in fact the reason for the discharge."(127)

This language, and the Supreme Court's determination that the federal courts should abstain during the administrative process, apparently means that the "mere process of inquiry" does not violate the First Amendment. Otherwise, the federal courts could not abstain to allow an unconstitutional process to go forward.(128)

It is surprising that the Court would issue such an important decision without addressing the concerns raised in its prior opinion in Catholic Bishop and in the lengthy and detailed opinion of the Sixth Circuit, especially because the decision was made in a case where religious issues would necessarily arise during the hearing. Dayton is pervasively religious, the hiring of teachers was based on religious criteria, and the school had already raised a religious defense to the commission's discrimination charge. It is also surprising that the Court would issue only an implicit finding concerning an inquiry into pretext without directly determining whether questioning concerning Dayton's religious beliefs and defenses could create constitutional concerns. Given the case law discussing the First Amendment concerns related to inquiring into doctrine, including the Supreme Court's own decision in Catholic Bishop, it is unlikely that the Court's decision was intended to determine that the pretext inquiry is unlimited and can include inquiry into doctrine.

D. Aftermath of Dayton

In Christ the King Regional High School v. Culvert,(129) the Second Circuit expanded the holding in Dayton to labor relations cases. In Christ the King, as in Catholic High School Ass'n v. Culvert, the plaintiff school claimed that the application of the New York State Labor Relations Act to lay teachers employed by the school violated the Religion Clauses of the First Amendment.(130) As in Catholic High School and Dayton I, the school argued that the First Amendment prohibited the agency from exercising jurisdiction.(131)

Relying on Dayton II, the Second Circuit held that, since the SLRB had not yet "conducted its formal hearing or imposed any sanctions," the district court should have abstained from interfering with the state administrative proceedings.(132) In reaching its decision, the Second Circuit also necessarily determined that the "mere exercise of jurisdiction" by the SLRB in conducting an investigation and holding a hearing would not, in and of itself, result in a First Amendment violation. Indeed, the Second Circuit noted that the Supreme Court had rejected Dayton's "claim that the mere exercise of jurisdiction by the Commission over the school would violate the first amendment."(133)

IV. AN ACCOMMODATION LIMITING THE PRETEXT INQUIRY TO ENSURE MINIMAL ENTANGLEMENT WHILE PROVIDING LAY TEACHERS SOME PROTECTION FROM ANTI-UNION AND DISCRIMINATORY CONDUCT

The courts can protect both the lay teachers and the religious integrity of the schools by limiting the government's inquiry into pretext. By separating the permissible and impermissible inquiries in the courts' decisions and identifying the salient characteristics of each, a consistent pattern becomes apparent. By identifying this pattern, an accommodation can be formulated that clearly distinguishes between permissible and impermissible inquiries, reconciles the case law, and creates a bright line demarcation to be applied in future cases.

A. The Pretext Inquiry and Discharge Cases

When a religious defense is raised by a religious school in the context of a discrimination or labor relations case to justify firing a lay teacher, the pretext inquiry is made to determine if the religious motive advanced by the school is the true reason for the action or whether the defense was made to cover anti-union or discriminatory conduct.(134) The pretext inquiry consists of two parts, one is doctrinal and the other is behavioral.

The doctrinal inquiry focuses on the underpinnings of the religion. Is there any religious doctrine concerning the religious beliefs expressed in the defense? How is the school's defense connected to the religious dogma? Does the religious dogma justify the school's defense?(135) Is the claimed religious belief too extreme or implausible?(136)

The behavioral inquiry focuses on whether the school's behavior is consistent with the school's religious justification. This inquiry is very different. It assumes that the school's professed belief is valid and consistent with the religious dogma of the group. Instead, the inquiry focuses on whether the school has behaved in a manner that is consistent with its professed religious defense.(137)

While the courts have used different terminology, the courts that have allowed limited inquiry into whether a school's religious defense to alleged discrimination or anti-union conduct was pretextual have recognized this distinction. These courts have allowed inquiry into some aspect of behavior while prohibiting inquiry into doctrine.(138)

The courts that have prohibited inquiry into doctrine are not always clear about what an inquiry into doctrine would entail. This article adopts the broad definition in Geary v. Visitation of the Blessed Virgin Mary Parish School,(139) and suggests that any inquiry into the "validity, existence or `plausibility' of a proffered religious doctrine" should be prohibited.(140)

1. The Behavioral Inquiry

To avoid inquiry into doctrine, the Second Circuit found in DeMarco v. Holy Cross High School,(141) that the "fact-finder will necessarily have to presume that an asserted religious motive is plausible in the sense that it is reasonably or validly held."(142) An inquiry into behavior avoids violating the First Amendment for exactly the reason set forth in DeMarco. The inquiry assumes that the religious belief asserted in the defense is valid and then focuses on whether the school's actions are consistent with the alleged defense.

In DeMarco, the Second Circuit found that a plaintiff will usually challenge a religious defense to a discriminatory employment act by focusing on whether 1) the defense is consistent with defendant's policies and rules,(143) 2) the reason for the action has been uniformly applied,(144) and 3) the defendant only mentioned the religious reason after the plaintiff's claim of discrimination.(145) The Second Circuit found that these factual questions will not generally pose First Amendment concerns.(146) The three inquiries listed in DeMarco are all behavioral; they require the agency to examine the school's behavior to determine whether the school's actions have been consistent with the beliefs alleged in the religious defense. Pretext can only be established if the school is not consistently following its own professed religious justification. The scope of inquiry is limited to questions concerning the behavior of the school based upon uncontested acceptance of the claimed religious doctrine. These three behavioral inquiries provide a good summary of the inquiries found permissible under the First Amendment.

For example, in Geary v. Visitation of the Blessed Virgin Mary Parish School(147) the Third Circuit gave as an example of a permissible inquiry, an examination into whether the religious justification was uniformly applied.(148) This inquiry is the same as the second inquiry listed by the Second Circuit in DeMarco.(149)

In Geary, a lay teacher claimed that she was fired because of her age in violation of the ADEA.(150) The church-operated elementary school claimed that she was fired for marrying a divorced man in violation of church doctrine.(151) The teacher attempted to demonstrate that the defense was pretextual by showing that another teacher who had married a divorced man was still employed at the school.(152)

The record demonstrated, however, that the other teacher was ten years older and had remarried her former husband.(153) The school explained that, since the parties had remarried each other, the church did not consider that this teacher had married a divorced man.(154) The Third Circuit wrote:
 As the hearing officer's findings indicate, this avenue for showing pretext
 only required the hearing officer to apply uncontested Church doctrines
 regarding marriage to conclude that Visitation School's justification was
 in fact the reason for the termination. Had Visitation School been unable
 to explain the allegedly disparate treatment of Geary and of her
 "comparator," the officer might have rendered, without entanglement, a
 different conclusion regarding the school's motive for termination.(155)


In Catholic High School Ass'n v. Culvert,(156) the Second Circuit described a situation very similar to the one in Geary. The court noted that the SLRB might be required to determine pretext if a lay teacher claimed that she had been fired due to her union activities and the school claimed that she was discharged for marrying a non-Catholic and refusing to raise her children Catholic.(157) The Second Circuit found that an examination of pretext would impermissibly involve the state board in determining the validity of the defense as a part of church dogma.(158)

Yet, later in the decision, the court found that the state board could exercise jurisdiction to determine that an alleged religious defense was not the real motivating cause for anti-union conduct if the SLRB limited its inquiry by using the "dual motive analysis."(159) The court gave as an example of the "dual motive analysis" that the "asserted reason was not [the] motivating cause because others had engaged in the same misconduct and had not been disciplined."(160) This type of inquiry is an example of the second inquiry listed by the Second Circuit in DeMarco v. Holy Cross High School:(161) whether the reason for the action has been uniformly applied.

Applying this type of inquiry to the example given in Catholic High School, if the state board found that a church-operated school employed many lay teachers who had married non-Catholics and refused to raise their children Catholic, yet only the lay teacher engaged in union activities had been discharged, the state board could properly find that the school had engaged in an unfair labor practice. Limiting the board's role in determining pretext to a behavioral examination of whether the school's religious justification is uniformly applied avoids inquiry into church doctrine because the validity of the church doctrine is assumed.(162)

The New York Court of Appeals in New York State Employment Relations Board v. Christ the King Regional High School(163) used facts that fall within the third inquiry listed in DeMareo, to justify its holding.(164) While not explicitly finding pretext, the court allowed reinstatement of a lay teacher based on the timing of a religious defense.(165) In that case, the SLRB found that the Catholic school discharged the teacher due to his union activities and ordered that he be reinstated.(166) The school claimed that the teacher was discharged for "unchristian behavior."(167) The New York Court of Appeals found that the teacher could be reinstated without violating the First Amendment because the school had not raised its religious defense or offered any proof during the lengthy administrative proceedings to substantiate its claim that the teacher might not be an appropriate role model or able to conduct himself consistent with the religious principles of the school.(168) The court's reliance on the timing of the defense did not require that the court examine anything more than the school's behavior.(169) The court did not even need to be apprised of the church doctrine upon which the defense was based.(170)

Dayton Christian Schools, Inc. v. Ohio Civil Rights Commission(171) provides an example of what the first inquiry into pretext listed in DeMarco, i.e. whether the asserted reason comports with the defendant's policies and rules,(172) might entail. In Dayton, the school withdrew a religious defense because the teacher had no notice of the school's policy or rules.(173) In that case, the plaintiff was discharged because she was pregnant and the school claimed that its religious doctrine mandated that mothers stay at home with their preschool age children.(174) After the plaintiff contacted an attorney, the school withdrew this religious defense because the plaintiff "had not received adequate prior notice of the doctrine concerning a mother's duty to stay home with her young children."(175)

By voluntarily withdrawing the defense,(176) the school recognized the significance of having rules and policies notifying the teachers of its doctrinal position. The first behavioral inquiry would enable the government to determine pretext by inquiring into whether a school's rules and policies were consistent with its religious defense.(177) This would involve an inquiry into the promulgated rules and policies and not an inquiry into whether the doctrine behind the alleged defense was valid.

While the three DeMarco inquiries provide a good summary of the behavioral inquiries found permissible in the cases, there may be other permissible behavioral inquiries. For example, in Geary v. Visitation of the Blessed Virgin Mary Parish School,(178) the Third Circuit found that a lay teacher allegedly fired for marrying a divorced man in violation of church doctrine might prove pretext by demonstrating that she never married.(179) In that case, the actions of the school in discharging her would not be justified by the uncontested religious doctrine prohibiting divorce.

2. Reconciling the Case Law

Limiting the inquiry into pretext to behavioral inquiries would address the concerns raised by the Seventh Circuit and the Supreme Court in NLRB v. Catholic Bishop of Chicago and by the Sixth Circuit in Dayton I. The Seventh Circuit, and the Supreme Court in Catholic Bishop, focused on the potential for inquiry into church doctrine. The Seventh Circuit was concerned that once a school raised a religious defense to an unfair labor practice charge, the school would become involved in "explanation and analysis, and probably verification and justification, of the doctrinal precept involved."(180) The Supreme Court reiterated this concern by finding that a religious defense "in many instances, will necessarily involve inquiry into the good faith of the position asserted by the clergy-administrators and its relationship to the school's religious mission."(181)

The Seventh Circuit rejected an accommodation that would have required the NLRB to decide unfair labor practice cases "without regard to the merits of the alleged doctrinal issues."(182) The court found that this restriction could not prevent inquiry into pretext, which would necessarily involve the validity of doctrine.(183) The Second Circuit in Catholic High School Ass'n v. Culvert attempted to meet this concern by limiting the inquiry into pretext to the "dual motive analysis."(184) The behavioral inquiry is an expansion of what the Second Circuit was attempting to accomplish with the "dual motive analysis." It is a clear delineation of the permissible scope of inquiry into pretext and limits that inquiry to avoid any analysis, verification or justification of the doctrinal precept involved in a religious defense. The agency would be required to examine pretext based on uncontested acceptance of the belief expressed in the defense.

As the Third Circuit wrote in Geary, an inquiry into "whether a sincerely held religious belief actually motivated the institution's actions ... is no more onerous than is the initial burden of any institution in any First Amendment litigation to advance and explain a sincerely held religious belief as the basis of a defense or claim."(185) In fact, the behavioral inquiry would be even less burdensome because the agency would be prohibited from determining "the validity, existence or `plausibility"' of the religious belief raised in the defense.(186) The behavioral inquiry only requires the school to explain a religious belief to the extent necessary to enable the government to determine if the religious defense has been consistently applied by the school. (187)

In Dayton, the Sixth Circuit was concerned that determining pretext would "necessarily involved[]the state in assessing religious decisions."(188) Again, the behavioral inquiry assumes that the religious decisions are valid.(189) There would only be an inquiry into whether the school's actions were consistent with its own religious justification.(190) This is not an assessment of religious decisions but rather a neutral examination of behavior to determine pretext. The behavioral inquiry protects the religious school from inquiry into, and justification of, its doctrine while enabling agencies to provide some protection to lay teachers from anti-union and discriminatory conduct.

B. The Pretext Inquiry and Collective Bargaining

The state labor relations acts only mandate that the religious schools engage in collective bargaining concerning the terms and conditions of employment.(191) An unfair labor practice proceeding can only be initiated if a union or individual alleges that the school has engaged in an unfair labor practice listed in the state's labor relations act.(192) All of the unfair labor practices are secular.(193) It is well settled that a state can be involved in the secular aspects of school administration.(194)

In Catholic Bishop, the Seventh Circuit found that the secular and sectarian aspects of a teacher's employment are so interconnected that a mandatory bargaining requirement will inevitably lead to negotiation of doctrinal matters.(195) However, if a doctrinal matter does arise, the school can refuse to bargain on that issue.(196) If the teachers' union files an unfair labor practice complaint with the state labor relations board alleging that the school is refusing to bargain in good faith, the school can raise the defense that it is refusing to negotiate concerning that issue due to its religious beliefs.

In Catholic Bishop I, the Seventh Circuit was concerned that requiring a religious school to bargain collectively would impermissibly chill the school's decisions concerning its religious mission.(197) The chilling effect of collective bargaining is only an Establishment Clause issue insofar as it affects the doctrinal concerns of the school. Because the school can refuse to bargain concerning issues relating to church doctrine, the chilling effect of the bargaining requirement results from the state labor relations board's jurisdiction to determine if the school's justification for refusing to bargain is pretextual.

The Supreme Courts of New Jersey(198) and Minnesota(199) both found that requiring religious schools to collectively bargain with their lay teachers did not violate the First Amendment.(200) Both, however, restricted the inquiry into pretext to avoid inquiry into doctrine. In South Jersey, the Supreme Court of New Jersey wrote that "[c]ourts can decide secular legal questions in cases involving some background issues of religious doctrine, so long as they do not intrude into the determination of the doctrinal issues."(201)

While these courts explicitly limited the inquiry into doctrine, they did not explain what type of inquiry would be permissible. Under the analysis set forth above, the state labor relations boards should be limited to the behavioral inquiry in determining whether a school's religious defense is pretextual. This would prevent any inquiry into the "existence, validity or plausibly" of doctrine.(202)

The behavioral inquiry in collective bargaining cases will be very similar to the behavioral inquiry in discharge cases. The board will only determine whether the school's actions are consistent with the religious justification. For example, if the school claimed that it was unable to bargain concerning coverage for contraception or abortion in its health insurance, the board could determine if the school had previously negotiated coverage of these aspects of health insurance. This inquiry into whether the religious justification has been uniformly applied is similar to the second inquiry in DeMarco. The other behavioral inquiries set out in DeMarco would also be relevant because the state board would be focused on a religious defense raised by the school in response to a secular unfair labor practice charge. Thus, the state board could consider the timing of the defense and whether the defense is consistent with the rules and policies of the school.

If the state board's inquiry into pretext is limited to a behavioral inquiry, the chilling effect on the school's ecclesiastical concerns will be minimal.(203) The school need only raise a religious defense to justify a refusal to bargain and, perhaps, provide information to demonstrate that its actions have been consistent with the beliefs raised in the defense. Unless the school's behavior is inconsistent with its professed religious beliefs, the state labor relations board should support the school's refusal to bargain on the issue raised in the defense. By more clearly defining permissible inquiry and prohibiting inquiry into doctrine, the behavioral inquiry will limit the scope of any litigation and significantly curtail any chilling effect on ecclesiastical decisions.

As the Supreme Court of Minnesota wrote in Hill-Murray, the collective bargaining requirement "will not alter or impinge upon the religious character of the school. The first amendment wall of separation between church and state does not prohibit limited governmental regulation of purely secular aspects of a church school's operation."(204)

C. Other Concerns

After the Supreme Court's decision in Catholic Bishop, several cases attempted to distinguish the First Amendment concerns related to exercising jurisdiction over religious schools in discrimination cases from those cases involving unfair labor practices. For example, in DeMarco v. Holy Cross High School,(205) the Second Circuit referred to the "ongoing government supervision of all aspects of employment required under labor relations statutes," and compared this supervision to the "limited inquiry required in anti-discrimination disputes."(206) The court noted that the NLRB is `"continuously involved in the enforcement of collective bargaining agreements and resolution of labor disputes"' and that this involvement would extend to "nearly everything that goes on in a school."(207) The Second Circuit distinguished this "extensive [and] continuous administrative or judicial intrusion into the functions of religious institutions" from an age discrimination case where the sole issue "is whether the plaintiff was unjustifiably treated differently because of his age."(208) Similarly, in Geary v. Visitation of the Blessed Virgin Mary Parish School,(209) the Third Circuit distinguished between "on the one hand, the Board's pervasive jurisdiction in Catholic Bishop and, on the other hand, the simple prohibitions of the ADEA."(210)

A careful examination of the procedures in labor relations cases, however, reveals that the scope of jurisdiction is not that different from a discrimination case. With respect to discharge cases, labor relations cases and discrimination cases are almost identical. The sole inquiry in a labor relations discharge case is whether the employee was unjustifiably fired for anti-union reasons.(211) The jurisdiction of the state labor relations board involves no more ongoing interference or entanglement with religion than a discriminatory discharge case.(212)

With respect to collective bargaining, the state labor relations board is restricted to determining whether the school has engaged in an unfair labor practice.(213) Moreover, the unfair labor practice charge must be initiated by an individual or the teachers' union; the board cannot initiate unfair labor practice charges on its own.(214) The state boards' jurisdiction is even more limited with respect to religious issues, which can only be raised by the schools as a defense to an unfair labor practice charge.(215) While the potential issues that may be heard by the state labor relations boards are more varied than in a discrimination case,(216) the state boards' jurisdiction with respect to religious issues is very limited and should not cause constitutional concerns, especially if the state boards are limited to the behavioral inquiry.(217)

Two other issues deserve mention here. First, a religious school should not be forced to bargain concerning an issue raised in a religious defense or to reinstate a teacher who was fired for reasons related to Church doctrine unless the religious defense is found to be pretextual based on the school's behavior. This should be the rule even if the school was motivated in part by anti-union or discriminatory animus. Otherwise, the school may be forced to reinstate a teacher who would have been fired for religious reasons or to negotiate concerning issues that are contrary to the school's religious doctrine.(218)

Second, in Dayton Y, the Sixth Circuit was concerned that the schools might be ordered to engage in activities prohibited by their religious tenets.(219) Schools can, however, refuse to comply with the orders of state labor relations boards and the EEOC on religious grounds. The religious schools are fully protected because neither the state boards nor the EEOC can enforce their own orders. They can only issue an order and, if necessary, request that the court enforce it. Thus, a school cannot be forced to comply with an order unless and until the order has been enforced by a court following a full judicial review which would include all constitutional defenses.(220)

V. THE SOCIETAL INTERESTS IN APPLYING LABOR RELATIONS AND DISCRIMINATION STATUTES TO LAY TEACHERS AT RELIGIOUS SCHOOLS

Applying labor relations and discrimination statutes to lay teachers at religious schools is particularly sensitive due to the unique role of a teacher. The courts have consistently upheld the constitutionality of applying labor relations and discrimination statutes to lay employees who are not teachers and who are performing essentially secular functions at church-operated institutions.(221) The courts have also held that labor relations and discrimination acts should not be applied to employees performing purely religious functions, such as ministers and priests.(222) Lay teachers are in a unique position because they perform the essentially secular function of educating children but have a profound role in shaping ideas and attitudes.(223) The courts have found that this unique role creates a special danger of violating the Establishment Clause.(224)

As set forth in Part IV, by limiting inquiry concerning religious issues, the important rights of lay teachers to be protected from anti-union and discriminatory' animus can be safeguarded without violating the rights of religious schools. There are particularly important reasons for ensuring that lay teachers at religious schools have these protections. The labor relations acts promote a harmonious educational environment for the children at religious schools by encouraging the peaceful resolution of disputes. The anti-discrimination provisions help ensure that children are not exposed to divisive discriminatory practices in a school setting, that children are exposed to diverse views that help prevent future discrimination and that discriminatory values are not perpetuated by example. Indeed, the courts have found a compelling interest in eliminating discrimination(225) and in applying labor relations statutes to lay teachers.(226)

A. The Importance of Applying Labor Relations Statutes to Lay Teachers

The labor relations acts did not create the rights of employees to unionize or to strike. These rights have long been recognized at common law.(227) Moreover, the First Amendment's protection of freedom of association has been held to extend to labor union activities such as the right to solicit union members and the right of union members to assemble and discuss their own affairs.(228)

Neither the common law nor the First Amendment, however, imposes a legally enforceable duty on an employer to recognize and deal with a bargaining agent selected by his employees.(229) Consequently, before the enactment of labor relations statutes, employees frequently had to resort to strikes and picketing to compel their employers to negotiate. As the Supreme Court wrote, "[r]efusal to confer and negotiate has been one of the most prolific causes of strife."(230)

Labor relations statutes impose a duty on the employer to bargain collectively with the employee. If the lay teachers and their chosen bargaining representatives are excluded from the coverage of the labor relations acts and their employers refuse to bargain voluntarily, they will be forced to revert to strikes to resolve their labor disputes or to negotiate with their employers on an individual basis. A strike, or the failure to amicably discuss the teachers' needs, may cost the schools more than money. It may affect the goodwill, credibility and trust that must be present between teachers and administrators and among teachers to maintain a productive environment in the schools.(231)

B. The State's Interests in Applying Discrimination Statutes to Lay Teachers

The courts have consistently emphasized the importance to society of eliminating discrimination in employment.(232) Eliminating discrimination is especially important where teachers are involved. If religious schools are allowed to engage in discrimination unrelated to religious beliefs, the students will be "educated in an atmosphere of discrimination."(233) Teachers and schools impart values and interpret historical messages. Society has a strong interest in ensuring that discriminatory values are not imparted by example to the next generation.(234) Protecting teachers against discrimination also helps ensure that students receive more varied and diverse views of the world. This also helps prevent future discrimination.

The importance of applying anti-discrimination and labor relations statutes to lay teachers is underscored by the unique role of the teacher in shaping "the attitude of young minds towards the society in which they live."(235) This role can be best performed in a discrimination-flee atmosphere that provides for the peaceful resolution of employment disputes.

VI. CONCLUSION

The most significant Establishment Clause concerns related to the application of labor relations and discrimination statutes to lay teachers at religious schools arise when a religious school raises a religious defense to a charge of anti-union or discriminatory conduct. Once the defense is raised, the government can determine if the defense is pretextual. It is this inquiry into pretext that raises the danger of excessive entanglement.

These entanglement concerns can be addressed by separating the behavioral and doctrinal aspects of the inquiry into pretext and only allowing inquiry into whether the school has behaved in a manner consistent with its religious defense. This limitation would avoid constitutional problems by preventing inquiry into religious doctrine. Restricting the permissible inquiry would also limit litigation and minimize any chilling effect on ecclesiastical concerns.

Upholding the application of labor relations and discrimination statutes to lay teachers would protect the rights of lay teachers to unionize and be free of discrimination. Protecting the lay teachers would correspondingly benefit the many children attending religious schools by providing an atmosphere of cooperation between faculty and management and by prohibiting invidious discrimination.

(1) This article focuses on the Establishment rather than the Free Exercise Clause of the First Amendment because the courts have relied on the Establishment Clause in determining whether labor relations and discrimination statutes should be applied to lay teachers in religious elementary and secondary schools since the Supreme Court's decision in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990). See Geary v. Visitation of the Blessed Virgin Mary Parish Sch., 7 F.3d 324, 326 (3d Cir. 1993) (applying Establishment Clause analysis to the application of the Age Discrimination in Employment Act [hereinafter "ADEN"] to a lay teacher at a church-operated elementary school); DeMarco v. Holy Cross High Sch., 4 F.3d 166, 168-72 (2d Cir. 1993) (applying Establishment Clause analysis to the application of the ADEA to lay teachers at a Catholic high school); Hill-Murray Fed'n of Teachers v. Hill-Murray High Sch, 487 N.W.2d 857, 863 (Minn. 1992) ("In accordance with Smith ... [t]he application of the [Minnesota Labor Relations Act] to labor relations [involving lay teachers at a Catholic high school] does not violate the free exercise clause of the Federal Constitution"); S. Jersey Catholic Sch. Teachers Org. v. St. Teresa of the Infant Jesus Church Elem. Sch., 696 A.2d 709, 721 (N.J. 1997) (citing Smith for the proposition that requiring church-operated elementary schools to bargain collectively with lay teachers does not violate the Free Exercise Clause); New York State Empl. Relations Bd. v. Christ the King Reg'l High Sch., 682 N.E.2d 960, 964 (N.Y. 1997) (stating that "the core teaching of Smith and the assemblage of associated authorities and lines of analysis cogently bring us to the conclusion that appellant's free exercise claim [involving the application of a state labor relations statute to lay teachers], invoked with sweeping, threshold cloakage, cannot prevail").

In Smith, the Supreme Court held that the Free Exercise Clause does not apply to laws of general applicability that are not specifically directed to religious practices. See Smith, 494 U.S. at 890 (holding that the state may deny unemployment benefits to a person who was dismissed for drug use, but who claimed that the drug was used for religious practices). The labor relations acts are valid neutral laws of general application intended to preserve labor peace by encouraging collective bargaining. The labor relations acts neither regulate religious beliefs nor burden conduct because of religious expression or motivation. See Hill-Murray, 487 N.W.2d at 862-63 ("There is no dispute that the [Minnesota Labor Relations Act] is a valid law of general applicability and does not intend to regulate religious conduct or beliefs."); S. Jersey, 696 A.2d at 721 ("Because the state constitutional provision [governing labor relations] is neutral and of general application, the fact that it incidentally burdens the free exercise of religion does not violate the Free Exercise Clause."). As noted by the New York Court of Appeals:
 The State Labor Relations Act is a facially neutral, universally applicable
 and secular regulatory regimen. It is intended to improve labor relations
 by encouraging good-faith collective bargaining. The Act in no way
 implicates religious conduct or beliefs; nor does it purport to impose any
 express or implied restriction or burden on religious beliefs or
 activities.


NYSERB, 682 N.E.2d at 964 (citation omitted).

Prior to Smith, to determine if a statute affecting conduct conflicted with the Free Exercise Clause, the courts balanced the burden the statute imposed on religion against the state's interests in enforcing the act. The New York State Labor Relations Act ("SLRA") was found by the Second Circuit not to violate the Free Exercise Clause even under this "traditional" test. See Catholic High Sch. Ass'n v. Culvert, 753 F.2d 1161, 1171 (2d Cir. 1985) (finding that the "indirect and incidental burden on religion [by applying the SLRA to lay teachers at parochial schools] is justified by a compelling state interest"); cf. Douglas Laycock, :Towards a General Theory of the Religion Clauses: The Case of Church Labor Relations and the Right To Church Autonomy, 81 COLUM. L. REV. 1373, 1416-17 (1981) (arguing that the Free Exercise Clause, rather than the Establishment Clause, should apply to church labor relations cases because the Establishment Clause "forbids support of religion, not interference with religion").

(2) It should be noted that several lawsuits have challenged the constitutionality of voucher and tax credit programs. Some courts have found these programs to be unconstitutional while others have upheld their constitutionality. Compare Simmons-Harris v. Zelman, 72 F. Supp. 2d 834 (N.D. Ohio 1999) (holding that the Ohio voucher program violates the Establishment Clause and permanently enjoining the state from administering the education voucher program), and Chittenden Town Sch. Dist. v. Dep't of Educ., 738 A.2d 539 (Vt. 1999), cert. denied, 120 S. Ct. 626 (1999) (holding that reimbursement of tuition for sectarian schools by the state of Vermont violated the state constitutional prohibition against taxpayer support of religious worship, while the United States' constitution's Free Exercise clause was not implicated), with Strout v. Albanese, 178 F.3d 57 (1st Cir. 1999), cert. denied, 120 S. Ct. 329 (1999) (holding that the Maine statute providing tuition grants to non-sectarian schools did not violate the First and Fourteenth Amendments to the United States Constitution), and Kotterman v. Killian, 972 P.2d 606 (Ariz. 1999), cert. denied, 120 S. Ct. 283 (1999) (holding the Arizona state tuition tax credit was a neutral adjustment mechanism used to equalize tax burdens and encourage educational spending), and Bagley v. Raymond Sch. Dep't., 728 A. 2d 127 (Me. 1999), cert. denied, 120 S. Ct. 364 (1999) (holding that the Maine tuition program specifically exempting religious schools did not violate the Establishment Clause), and Jackson v. Benson, 578 N.W.2d 602 (Wis. 1998) (holding that Milwaukee's voucher program did not violate federal and state constitutions).

(3) NATIONAL CENTER FOR EDUCATION STATISTICS, U.S. DEP'T OF EDUC., DIGEST OF EDUCATION STATISTICS 71 (1999).

(4) See id.

(5) See id.

(6) See David L. Gregory & Charles J. Russo, The First Amendment and the Labor Relations of Religiously-Affiliated Employers, 8 B.U. PUB. INT. L.J. 449, 453-54 (1999) (stating that teachers' unions in Catholic schools are "the largest and most organized segment of church-operated schools in the United States").

(7) See Robert J. Pushaw, Jr., Note, Labor Relations Board Regulation of Parochial Schools: A Practical Free Exercise Accommodation, 97 YALE L.J. 135, 135 (1987) ("The Catholic Church has steadfastly resisted efforts by labor relations boards to protect the statutory rights of parochial school teachers who have attempted to organize and bargain collectively.") (footnote omitted); cf. Gregory & Russo, supra note, 6, at 457 n.41 ("Of course, several members of the Catholic hierarchy are principled and forthright champions of workers' rights."). See generally Geary, 7 F.3d at 325 (demonstrating the Catholic high school's defense against applying the ADEA to religious schools); DeMarco, 4 F.3d at 168 (demonstrating the Catholic High school's opposition to age discrimination cases).

(8) See Timothy Egan, The Changing Face of Catholic Education, N.Y. TIMES, Aug. 6, 2000, [sections] 4A at 28 (stating that "[n]early 10 years after many educators had written them off for dead, Roman Catholic schools in America are in the midst of an extraordinary revival").

(9) Id. at 30.

(10) Id.

(11) See NATIONAL CATHOLIC EDUCATIONAL ASS'N, UNITED STATES CATHOLIC ELEMENTARY AND SECONDARY SCHOOL STATISTICS 1999-2000, SYNOPSIS OF THE ANNUAL STATISTICAL REPORT ON SCHOOLS, ENROLLMENT AND STAFFING, EXECUTIVE SUMMARY (2000), available at http://www.ncea.org/PubPol/databank.html [hereinafter CATHOLIC SCHOOL STATISTICS] ("Total Catholic school student enrollment for the 1999-2000 academic year [was] 2,653,038 [consisting of] 2,013,084 elementary/middle school students [and] 639,954 secondary school students.").

(12) Id.

(13) Egan, supra note 8, at 28; see also CATHOLIC SCHOOL STATISTICS, supra note 11 (noting that during the 1999-2000 school year, "[t]here [were] 8,144 Catholic schools [consisting of] 6,923 elementary (usually pre-K-8) [and] 1,221 secondary (usually 9-12)").

(14) CATHOLIC SCHOOL STATISTICS, supra note 11.

(15) Egan, supra note 8, at 29. See CATHOLIC SCHOOL STATISTICS, supra note 10 ("[W]here diocesan and privately funded scholarship support is available in inner-city [Catholic] schools, long waiting lists for lottery-like selection processes have resulted.").

(16) See Egan, supra note 8, at 29 ("This fall, California will vote on a voucher program that Catholic educators say could lead to waiting lists for nearly every Catholic school in the state."); see also Jamie Steven Kilberg, Note, Neutral and Indirect Aid: Designing a Constitutional School Voucher Program finder the Supreme Courts Accommodationist Jurisprudence, 88 GEO. L.J. 739, 739 n.2 (2000) ("Wisconsin, Ohio, Arizona, and Florida have all passed voucher legislation."); id. at 739 n.3 (containing a list of the states that have pending legislation or are expected to introduce legislation regarding vouchers or tuition tax credits); id. at 739 n.4 (listing states that have "defeated voucher legislation in their respective legislatures").

(17) See Egan, supra note 8, at 29.

(18) Id. ("A record 13.4 percent of the 2.6 million students are non-Catholic--more than four times the percentage of 30 years ago.").

(19) It should be emphasized that the lay teachers do not always deal with church officials regarding their employment concerns. The management of Catholic schools often acts independently of the Church. See Gregory & Russo, supra note 6, at 454 n.12 (finding that, although Catholic schools "are often described as a 'system,' [they] are more analogous to loose groups of largely autonomous institutions where individual principals wield significant authority"); see also Christ the King Reg'l High Sch. v. Culvert, 644 F. Supp. 1490, 1492 (S.D.N.Y. 1986), aff'd on other grounds, 815 F.2d 219 (2d Cir. 1987) (noting that all of the members of the Catholic school's Board of Trustees, except one, were laymen).

(20) NATIONAL CATHOLIC EDUCATIONAL ASSOCIATION, CATHOLIC SCHOOL DEMOGRAPHICS (2000), available at http://www.ncea.org.

(21) Id.

(22) Id.

(23) This article is not addressing the religious concerns that would arise if the religious school's doctrine itself prohibited unionization or mandated certain types of discrimination. In this regard, it should be noted that the Catholic Church has never contended that the Catholic religion prohibits collective bargaining or would require discharging an employee who engaged in union activity. Indeed, "the Encyclicals and other Papal Messages make clear that the Catholic Church has for nearly a century been among the staunchest supporters of the rights of employees to organize and engage in collective bargaining." Catholic High Sch. Ass'n v. Culvert, 753 F.2d 1161, 1170 (2d. Cir. 1985). The Catholic Church has also recognized the important role of government in protecting the rights of employees to unionize. See National Conference of Catholic Bishops, Ad Hoc Committee on Catholic Social Teachings and the U.S. Economy, Pastoral Letter on Catholic Social Teaching and the U.S. Economy, Nov. 15, 1984, pt. I, [sections] II (Wash. D.C. 1984) ("All people have a right to employment to just wages and to collective bargaining."); id. ("All church institutions must fully recognize the rights of employers to just wages and to organize and bargain collectively through whatever association or organization they freely choose."); Pope John XXIII, Mater et Magistra, in SEVEN GREAT ENCYCLICALS 224, [subsections] 20-22 (Paulist Press 1963) (emphasizing that unions play an essential part in defending the rights of workers and recognizing the government's duty to "safeguard the rights of all citizens, but especially the weaker, such as workers...."); Pope John Paul II, Laborem Exercens, in THE PAPAL ENCYCLICALS 1958-1981 (1981) (noting that Pope John Paul II stressed the importance of unions in defending "the essential interests of workers in all sectors in which their rights are concerned"); Pope Leo XIII, Rerum Novarum, in SEVEN GREAT ENCYCLICALS [subsections] 31-38 (Paulist Press 1963) (noting that the state must not forbid workers from forming associations); Labor Reform Act of 1,977: Hearing Before the Subcomm. on Labor-Management Relations of the House Comm. on Education and Labor, 95th Cong. 454-58 (1977) (testimony of Monsignor George G. Higgins, Secretary for Research of the United States Catholic Conference) (noting that the United States Catholic Conference has always supported the National Labor Relations Act's basic goal of protecting workers' efforts to organize). These statements by the Church demonstrate that the Catholic schools' concern regarding the application of labor relations statutes to lay teachers is that the state will interfere with Church decision making regarding ecclesiastical matters, not that the mandates of these statutes will contravene the dictates of the Catholic religion.

(24) See infra notes 134-90 and accompanying text (discussing the more recent cases).

(25) The accommodation suggested in this article would also apply to the application of unemployment provisions to lay teachers and to other statutes that affect the employment of lay teachers where a religious school might raise a religious defense at a hearing to explain its actions. See Baltimore Lutheran High Sch. Ass'n v. Employment. Sec. Admin., 490 A.2d 701, 714 (Md. 1985) (holding that a church-affiliated school was subject to the state's unemployment insurance law); see also Dole v. Shenandoah Baptist Church, 899 F.2d 1389, 1397-99 (4th Cir. 1990) (holding that application of the Fair Labor Standards Act to lay teachers and support staff at church-operated schools did not violate the religion clauses of the First Amendment); Mitchell v. Pilgrim Holiness Church Corp., 210 F.2d 879, 884 (7th Cir. 1954) (holding that a church corporation was subject to the provisions of the Fair Labor Standards Act, which requires that employees be paid at least the minimum wage set forth in the Act).

(26) See infra notes 30-42 and accompanying text.

(27) See infra notes 43-133 and accompanying text.

(28) See infra notes 134-220 and accompanying text.

(29) See infra notes 221-235 and accompanying text.

(30) The following states have labor relations boards: Connecticut, Hawaii, New York, Oregon, Pennsylvania, Rhode Island, Utah, and Vermont. See CONN. GEN. STAT. ANN. [subsections] 31102 (West 1997); HAW. REV. STAT. [subsections] 377-2 (1993); N.Y. LAB. LAW [sections] 702 (McKinney 1988 & Supp. 1999); OR. REV. STAT. [subsections] 663.005-663.295 (1999); PA. STAT. ANN. tit. 43 [subsections] 211.4 (West 1992); R.I. GEN. LAWS [subsections] 28-7-4 (Supp.1999); UTAH CODE ANN. [subsections] 34-20-3 (1997); VT. STAT. ANN. tit. 21, [sections] 1543 (1987). The following states have labor commissions: Massachusetts, New Jersey, North Dakota, and Wisconsin. See MASS. ANN. LAWS ch. 150A, [sections] 2 (Law. Co-op. 1999); N.J. STAT. ANN. [subsections] 34:13A-5.2 (West 2000); N.D. CENT. CODE [subsections] 34-12-08 (1987); Wis. STAT. ANN. [subsections] 111.02 (West 1997). Colorado has a director of the Division of Labor, Minnesota has a Bureau of Mediation Services, and South Dakota has a Department of Labor that oversees labor practices. See COLO. REV. STAT. [sections] 8-3-104 (2000); MINN. STAT. ANN. [subsections] 179.02 (West 1993); S.D. CODIFIED LAWS [sections] 60-9A-5 (Michie 1993).

(31) Unfair labor practices are secular in nature. See, e.g., COLO. REV. STAT. [sections] 8-3-108 (2000); CONN. GEN. STAT. ANN. [sections] 31-105 (West 1997); HAW. REV. STAT. [sections] 377-6 (1993); KAN. STAT. ANN. [sections] 75-4333 (1997); MASS. ANN. LAWS. ch. 150A, [sections] 4 (Law. Co-op. 1999); MICH. STAT. ANN. [sections] 17.455(16) (Callaghan 1989); MINN. STAT. ANN [sections] 179.12 (West 1993); N.J. STAT. ANN. [sections] 34:13A-5.4 (West 2000); N.D. CENT. CODE [sections] 34-12-03 (Supp. 1999); N.Y. LAB. LAW [sections] 704 (McKinney 1988); OR. REV. STAT. [sections] 663.120 (1999); PA. STAT. ANN. tit. 43 [sections] 211.6 (West 1992); R.I. GEN. LAWS [sections] 28-7-13 (1995); UTAH CODE ANN. [sections] 34-20-08 (1997); VT. STAT. ANN. tit. 21 [sections] 1621 (1987); W. VA. CODE ANN. [sections] 21-1A-4 (Michie 1996); WIS. STAT. ANN. [sections] 111.06 (1997).

(32) A complaint, charge, or petition must be filed by the union or employee(s). See, e.g., COLO. REV. STAT. [sections] 8-3-110(2) (2000); CONN. GEN. STAT. ANN. [sections] 31-107(a) (West 1997); HAW. REV. STAT. [sections] 377-9(b) (1993); KAN. STAT. ANN. [sections] 75-4334(a) (1997); MASS. GEN. LAWS ANN. ch. 150A, [sections] 6(b) (Lexis 1999); MICH. STAT. ANN. [sections] 17.455(16)(a) (Callaghan 1989); MINN. STAT. ANN. [sections] 179.06(1) (West 1993); N.J. STAT. ANN. [sections] 34:13A-5.4(c) (West 2000); N.D. CENT. CODE [sections] 34-12-08 (1987); N.Y. LAB. LAW [sections] 706(2) (McKinney 1988); OR. REV. STAT. [sections] 663.180(1) (1999); PA. STAT. ANN. tit. 43, [sections] 211.8(b) (West 1992); R.I. GEN. LAWS. [sections] 28-7-21 (1995); UTAH CODE ANN. [sections] 34-20-10(3) (1997); VT. STAT. ANN. tit. 21, [sections] 1622(a) (1987); W. VA. CODE ANN. [sections] 21-1A-6(b) (Michie 1996); WIS. STAT. ANN. [sections] 111.07(2)(a) (West 1997).

(33) See generally 2 AM. JUR. 2D Administrative Law [sections] 302 (1994) (stating an administrative hearing "must be tailored, in light of the decision to be made, to the particular circumstances of those who are to be heard, in order to insure that the hearing is meaningful").

(34) See Catholic High Sch. Ass'n v. Culvert, 753 F.2d 1161, 1167 (2d Cir. 1985) (stating that "[a]ll [the government] can do is order an employer who refuses to bargain in good faith to return and bargain on the mandatory bargaining subjects, all of which are secular"); Hill-Murray Fed'n of Teachers v. Hill-Murray High Sch., 487 N.W.2d 857, 864 (Minn. 1992) ("The obligation imposed upon Hill-Murray by the application of the [Minnesota Labor Relations Act] is the duty to bargain about hours, wages, and working conditions.").

(35) See Catholic High Sch., 753 F.2d at 1167 (stating that "[i]t is a fundamental tenet of the regulation of collective bargaining that government brings private parties to the bargaining table and then leaves them alone to work through their problems"); see also Hill-Murray, 487 N.W.2d at 864 (declining to categorize the obligation to bargain about hours, wages, and working conditions "as excessive entanglement").

(36) Catholic Bishop I, 559 F.2d 1112, 1125 (7th Cir. 1977), aff'd on other grounds, 440 U.S. 490 (1979).

(37) Id.

(38) See 42 U.S.C. [sections] 2000e-5(b) (1994) (stating that, after a charge is filed, the Commission "shall serve a notice of the charge ... on such employer ... and shall make an investigation" into the matter); 29 U.S.C. [sections] 626(d) (1994) (stating that after a charge of unlawful discrimination is filed, the Commission shall notify all persons named in the charge and shall seek to eliminate any alleged unlawful practice by "informal methods of conciliation, conference, and persuasion").

(39) EEOC v. Pac. Press Publ'g Ass'n, 676 F.2d 1272, 1282 (9th Cir. 1982). States also have civil rights commissions that protect against discrimination. State civil rights commissions use similar procedures. In general, discrimination actions are initiated by employees. See, e.g., CAL. GOV'T CODE [sections] 12960 (West 1992) (stating the correct procedure for the prevention and elimination of unlawful employment practices is to have an aggrieved person file a verified complaint in writing); N.Y. EXEC. LAW [sections] 297 (McKinney 1993) (allowing "[a]ny person claiming to be aggrieved by an unlawful discriminatory practice... [to] file with the division a verified complaint"); S.C. CODE ANN. [sections] 1-13-90 (Law. Co-op. 1986) (noting that the Commissioner may only assist an individual in preparing a written complaint alleging a discriminatory employment practice).

(40) 42 U.S.C. [sections] 2000e-5(b) (requiring the Commission to serve a notice of the charges on the employer within ten days of the filing of the complaint and then to proceed with an investigation); 29 U.S.C. [sections] 626(a)-(b) (granting the power to undertake investigations, but requiring the Commission to "attempt to eliminate the discriminatory practice ... through informal methods of conciliation, conference, and persuasion" before instituting further action).

(41) The ADEA and Title VII have been found to apply to lay teachers at religious schools. See Geary v. Visitation of the Blessed Virgin Mary Parish ach., 7 F.3d 324, 331 (3d Cir. 1993) (stating "the structure of the ADEA suggests that Congress intended a general application" that includes "lay teachers at religious restitutions"); DeMarco v. Holy Cross High Sch., 4 F.3d 166, 172 (2d Cir. 1993) (concluding that the ADEA applies to claim of lay teacher at religious institution); see a/so EEOC v. Fremont Christian Sch., 781 F.2d 1362, 1365 (9th Cir. 1986) (applying Title VII to employment practice of religious school); Rayburn v. Gen. Conference of Seventh-Day Adventists, 772 F.2d 1164, 1166-67 (4th Cir. 1985) (stating that Congress did not exempt the religious employer from title VII); Press Publ'g Ass'n, 676 F.2d at 1277 (stating "[e]very court that has considered Title VII's applicability to religious employers has concluded that Congress intended to prohibit religious organizations from discriminating ... on the basis of race, sex or national origin); EEOC v. Miss. Coll., 626 F.2d 477, 485 (5th Cir. 1980) (concluding that Congress intended to regulate the employment relationship between a religious school, its faculty and staff through Title VII). It should be noted, however, that some state statutes exempt religious schools from the jurisdiction of state civil rights commissions. See FLA. STAT. ANN. [sections] 760.10(9) (West 1997) (stating that the section does not apply to any religious educational institution); 775 ILL. COMP. STAT. ANN. 5/2-101(B)(2) (West 1993) (exempting religious educational institutions from jurisdiction); S.C. CODE ANN. [sections] 1-13-80(h)(5) (Law. Co-op. 1986) (stating that the chapter does not apply to religious educational institutions).

(42) Under McDonnell Douglas Corp. v Green, 411 U.S. 792 (1973), there is a three-step mode of analysis in Title VII cases. See id. at 802. First, the plaintiff must present a prima facie case of discrimination. See id. The defendant then has the burden of articulating some legitimate, nondiscriminatory reason for the adverse action. See id. Finally, the plaintiff must be "afforded a fair opportunity to show that [defendant's] stated reason ... was in fact pretext." Id. at 804.

(43) See e.g., Catholic Bishop I, 559 F.2d 1112, 1130 (7th Cir. 1977), aff'd on other grounds, 440 U.S. 490 (1979).

(44) See e.g., Catholic High Sch. Ass'n v. Culvert, 753 F.2d 1161, 1167-68 (2d Cir. 1985).

(45) See id.; Dayton Christian Sch., Inc. v. Ohio Civil Rights Comm'n, 766 F.2d 932 (6th Cir. 1985) [hereinafter Dayton 1].

(46) See Dayton I,, 766 F.2d at 961.

(47) See NLRB v. Catholic Bishop, 440 U.S. 490, 502 (1979) [hereinafter Catholic Bishop II].

(48) 559 F.2d 1112 (7th Cir. 1977) aff'd other grounds, 440 U.S. 490 (1979).

(49) See id. at 1130-31. The Seventh Circuit did not differentiate between the Establishment and Free Exercise Clauses in its opinion. The court wrote: "[o]ur treatment of the Religion Clauses jointly has been because of our belief that there has been some blurring of sharply honed differentiations." Id. at 1131.

(50) See id. at 1123, 1125.

(51) See id. at 1125, 1130. The Seventh Circuit did recognize that a religious issue might arise during collective bargaining. The court wrote that a religious issue might arise if, for example, the bishop "should refuse to renew all lay faculty teacher contracts because he believed that the union had adopted policies and practices at odds with the religious character of the institutions, or because he wanted to replace lay teachers with religious-order teachers who had become available...." Id. at 1123-24. The court did not, however, discuss the pretext inquiry with respect to religious issues raised during bargaining. See id. at 1124.

(52) See id. at 1123. The court wrote:
 First, the matter of salaries is linked to the matter of workload; workload
 is then related directly to class size, class size to range of offerings,
 and range of offerings to curricular policy. Dispute over class size may
 also lead to bargaining over admissions policies. This transmutation of
 academic policy into employment terms is not inevitable, but it is quite
 likely to occur.


Id. (quoting Ralph S. Brown, Collective Bargaining in Higher Education, 67 MICH. L. REV. 1067, 1075 (1969)). The court went on to state:
 "[T]he necessity of bargaining and negotiating with faculty members on
 conditions of employment inevitably involves conflicts concerning the
 religious program of the schools and infringement of the First Amendment
 Religion Clauses. Inevitably some of a lay teacher's responsibilities must
 hover on the imprecise border between religious and secular orientation."


Id. at 1127.

(53) Id. at 1123.

(54) Id. at 1124 (citing Speiser v. Randall, 357 U.S. 513, 526 (1958)).

(55) The Seventh Circuit refers to the "discharge or failure to hire" teachers. See Id. at 1129. This article focuses on the discharge of teachers because all the examples in the cases concern discharges rather than hiring decisions. The suggestions in this article would apply equally to hiring decisions.

(56) See id. at 1129.

(57) Id. at 1125.

(58) Id. The Court found that, to make decisions concerning pretext, "the Board inevitably must assay the moral teachings of the Church there at issue and delve into two thousand years of religious tradition." Id.

(59) Id.

(60) Id. at 1129.

(61) See id at 1130 (stating that even the "existence of a valid ground for discharge is not sufficient, if the discharge was based in part on an unlawful ground") (emphasis added).

(62) See Id. at 1129-30.

(63) See Catholic Bishop II, 440 U.S. 490, 504 (1979). In his dissenting opinion in the 5-4 decision, Justice Brennan emphasized that the constitutional issue should have been addressed. "[W]hile the resolution of the constitutional question is not without difficulty, it is irresponsible to avoid it by a cavalier exercise in statutory interpretation which succeeds only in defying congressional intent." Id. at 518 (Brennan, J., dissenting)..

(64) Id at 501.

(65) Id. at 504.

(66) See id. at 502-503.

(67) It is not clear from the decision whether the Court's brief discussion of an inquiry into the good faith of a religious defense referred to religious defenses that could be raised to unfair labor practice charges related to collective bargaining and the discharge of lay teachers, or whether the Court was following the Seventh Circuit and only addressing this inquiry with respect to discharge cases. Id.

(68) Id. at 502.

(69) Id. at 504.

(70) Id.

(71) 753 F.2d 1161 (2d Cir. 1985).

(72) See id. at 1171.

(73) In 1968, section 715 of the SLRA was amended to remove employees of charitable, educational, and religious institutions from the list of workers excluded from coverage. 1968 N.Y. Laws 890. Section 715 now reads:
 The provisions of this article shall not apply to: (1) employees of any
 employer who concedes to and agrees with the board that such employees are
 subject to and protected by the provisions of the national labor relations
 act or the federal railway labor act; or (2) employees of the state or of
 any political or civil subdivision or other agency thereof.


N.Y. LAB. LAW [sections] 715 (McKinney 1988) (footnotes omitted).

(74) The Second Circuit dealt separately with the Establishment and Free Exercise Clauses. The Free Exercise Clause will not be discussed in this Article. See supra note 1. The Second Circuit's discussion of the Free Exercise Clause relies heavily on the reasoning set forth in its discussion of the Establishment Clause. Catholic High Sch., 753 F.2d at 1169. In determining whether the New York State Labor Relations Board's ("SLRB's") exercise of jurisdiction violated the Establishment Clause, the court applied the three-pronged test set forth in Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). With respect to the first two prongs, the parties did not dispute that the SLRA "has a secular purpose and that its primary effect is not to advance or inhibit religion." Catholic High Sch., 753 F.2d at 1166. The Second Circuit focused on the third prong, whether the exercise of jurisdiction by the SLRB results in excessive administrative entanglement with religion. See id. Although the Lemon test has been questioned, the test is still valid. See Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 395 n.7, 398-400 (1993) (Scalia, J., concurring) (discussing the application of the Lemon test in Establishment Clause jurisprudence). The Supreme Court's most recent decisions involving aid to religious schools have examined only the first and second Lemon factors and recast the entanglement factor as one criterion relevant to determining the second factor. See Mitchell v. Helms, 120 S. Ct. 2530, 2540 (2000); Agostini v. Felton, 521 U.S. 203, 222-23, 232-33 (1997). It is unclear whether this recasting only relates to cases concerning aid to religious schools. If this new way of looking at the entanglement factor were to apply to all cases involving the relationship between government and religion, then Lemon's primary effect prong would have to be analyzed based upon the potential entanglement concerns.

(75) Catholic High Sch., 753 F.2d at 1166 (citing to district court opinion).

(76) A labor dispute is defined as:
 any controversy between employers and employees or their representatives as
 defined in this section concerning terms, tenure or conditions of
 employment or concerning the association or representation of persons in
 negotiating, fixing, maintaining, changing, or seeking to negotiate, fix,
 maintain or change terms or conditions of employment, or concerning the
 violation of any of the rights granted or affirmed by this article,
 regardless of whether the disputants stand in the proximate relation of
 employer and employee.


N.Y. LAB. LAW [sections] 701(8) (McKinney 1988)

(77) Catholic High Sch., 753 F.2d at 1167.

(78) See id. (declining to follow a "slippery slope" that "misconceives the State's role in [the bargaining] process").

(79) Id. The Second Circuit also found that the procedural protections in the SLRA help ensure that the SLRB will not become entangled in church doctrine. See id. The procedural protections cited by the Second Circuit include: 1) the SLRB cannot initiate unfair labor practice proceedings on its own, 2) the unfair labor practices in the SLRA are all secular, 3) the investigation and hearing must be related to the unfair labor practice charges, and 4) the SLRB cannot enforce its own orders. See id.

(80) Id.

(81) Id. at 1167-68 (quoting EEOC v. Miss. Coll., 626 F.2d 477, 485 (5th Cir. 1980)).

(82) Effective July 1, 1991, the New York State Mediation Board and the SLRB merged to become the Employment Relations Board ("ERB"). 1991 N.Y. laws ch. 166 (codified as amended at N.Y. LAB. LAW [sections] 702(7) (McKinney Supp. 2000)). The ERB exercises the same jurisdiction over unfair labor practice complaints and has the same responsibilities under the SLRA as the SLRB had prior to July 1991. N.Y. LAB. LAW [sections] 702(7) (McKinney 1988). For simplification, the ERB and SLRB will both be referred to in this Article as the SLRB.

(83) Catholic High Sch., 753 F.2d at 1168.

(84) Id. (quoting Catholic Bishop I, 559 F.2d 1112, 1129 (7th Cir. 1977), aff'd on other grounds, 440 U.S. 490 (1979)). The court found that allowing questioning of a church school regarding a religious defense would be more intrusive than an inquiry into whether the beliefs of an individual are sincerely held because of "the possibility of recurrent questioning of whether a particular church actually holds a particular belief." Id.

(85) Catholic High Sch., 753 F.2d at 1168.

(86) Id. at 1168-69.

(87) Id. at 1168.

(88) Id.

(89) Id. The Second Circuit's only attempt to explain "dual motive analysis" is to refer to National Labor Relations Board v. Transportation Management Corp., 462 U.S. 393, 404 (1983), for the proposition that the "asserted reason was not [the] motivating cause because others had engaged in the same misconduct and had not been disciplined." Id. The Second Circuit does not explain how this analysis would avoid "inquiry into an asserted religious motive." Catholic High Sch., 753 F.2d at 1168.

(90) The Second Circuit also appears to be suggesting using a dual motive analysis to determine pretext. There is a distinction between "pretext" and "dual motive" cases. Dual motive cases are also known as mixed motive cases. Behring Int'l, Inc. v. NLRB, 675 F.2d 83, 86 n.3 (3d Cir. 1982). In these cases, the "employer acts with a legitimate and illegitimate motive." Southwest Merchandising Corp. v. NLRB, 53 F.3d 1334, 1339 n.7 (D.C. Cir. 1995). "Mixed motive cases arise when the employer admits that considerations of the employees' race or protected speech, for example, played a part in the employer's decision, but the employer claims that because of other, legitimate considerations, it would have reached the same employment decision anyway." Godden v. Neal, 17 F.3d 925, 930 (7th Cir. 1994) (Lay, J., dissenting). On the other hand, pretext cases have been defined as those "where the employer's purported legitimate basis for action is not a factor at all." Southwest Merchandising Corp., 53 F.3d. at 1399 n.7. "Where pretext is implicated, the trier of fact is faced with an `all or nothing' situation. For example, the employee claims that she was fired because of her protected speech or for racial reasons, while the employer contends that such factors had nothing to do with the firing. One or the other is telling the truth, and the trier of fact must choose." Gooden, 17 F.3d at 930. In sum, the difference between the two is that "in pretext cases the employer's reasons are discredited or otherwise rejected, leaving only the impermissible reason, while in a mixed motive case, the relative causative force of the employer's reasons is compared against the impermissible reason to determine whether the latter is the moving cause behind the discharge." Behring Int'l Inc., 675 F.2d at 86 n.3

The Second Circuit suggested that a dual motive analysis be used to determine "whether the religious motive was in fact he cause of the discharge." Catholic High Sch., 753 F.2d at 1168. The court gave as an example of a dual motive inquiry that the "asserted reason was not [the] motivating cause because others had engaged in the same misconduct and had not been disciplined." Id. Determining whether the motive is "in fact the cause of the discharge" is a pretext inquiry. The Second Circuit is suggesting that the trier of fact decide whether the religious motive should be discredited rather than, as in a mixed motive case, comparing the "relative causative force" of the employer's religious motive against the employer's illegitimate motive.

The Second Circuit also wrote that a teacher could not be reinstated unless the "teacher would not have been fired `but for' the unlawful motivation." See id. at 1169. The court explained that a teacher could not be reinstated "even if the school administration was also partly motivated by anti-union animus" if the teacher "otherwise would have [been] fired for religious reasons." See id. This is an example of a dual motive case. In this case, the school is motivated by an illegitimate motive, the anti-union animus, and a legitimate motive, the religious reason. The Second Circuit found that, in a dual motive case revolving lay teachers, the asserted religious reason must prevail unless it can be discredited. See id.

(91) Catholic High Sch., 753 F.2d at 1169.

(92) See id. (concluding that "an order based on [the `in part' test] would violate the First Amendment").

(93) As stated by the Sixth Circuit:
 The [Second Circuit in Catholic High Sch.] further reached the inexplicable
 Conclusion that although "the First Amendment prohibits the State Board
 from inquiring into an asserted religious motive to determine whether it is
 pretextual," the Board "is still free to determine, using a dual motive
 analysis, whether the religious motive was in fact the cause of the
 discharge." Since pretext is essentially an inquiry into causation, this
 appears to be a distinction without a difference.


Dayton I, 766 F.2d 932, 960 n.49 (6th Cir. 1985) (quoting Catholic High $ch., 753 F.2d at 1168).

(94) 49 S.E.R.B. No. 51 (N.Y. 1992).

(95) Id. at 3.

(96) Id. (quoting Catholic High Sch., 753 F.2d at 1168).

(97) Id.

(98) See Dayton I, 766 F.2d at 960 n. 49 ("Once [the agency] is denied the authority to inquire into issues such as pretext it becomes a `toothless tiger' rendering any exercise of jurisdiction illusory since such jurisdiction would be meaningless."). It should be noted, however, that in St. John's Preparatory School, although the SLRB did not order reinstatement of the teachers included in the religious defense, the SLRB did order the placement of fifty-two other teachers on a preferential hiring list. See 49 S.E.R.B. No. 51 at 5-6. The SLRB also ordered, inter alia, that St. John's bargain collectively with the Lay Faculty Association, refrain from interfering with its employees' right to unionize and furnish certain benefit policies to the Union. See id. at 4-5. Thus, the religious defense made the labor board a "toothless tiger" only with respect to those issues raised in the religious defense.

(99) 766 F.2d 932 (6th Cir. 1985).

(100) Ohio Civil Rights Comm'n v. Dayton Christian Sch., Inc., 477 U.S. 619 (1986) [hereinafter Dayton II].

(101) Dayton I, 766 F.2d at 956.

(102) See id. at 934.

(103) See id. 936 (noting that all teachers were required to be born again Christians and expected to bring their "religious fervor" to the classroom to educate students about Christian life).

(104) The Sixth Circuit applied the Lemon test to determine whether there was a violation of the Establishment Clause. See id. at 957. The court summarily found that the Ohio Civil Rights Act has a secular legislative purpose and that its primary effect does not enhance or inhibit religion. See id. The court then focused on whether there was excessive entanglement with religion and found that the application of the state civil rights act in this instance "impermissibly entangles the state in issues of faith in violation of the Establishment Clause of the First Amendment." See id. at 961. The Sixth Circuit also determined that the exercise of jurisdiction by the Ohio Civil Rights Commission violated the Free Exercise Clause. See id. at 955.

(105) Dayton II, 477 U.S. at 622.

(106) Id. at 622-23.

(107) Id. at 623.

(108) Id.

(109) Id.

(110) Id.

(111) Id.

(112) See Dayton I, 766 F.2d at 934 (stating that "Hoskinson was terminated because she had consulted [with] an attorney").

(113) Dayton II, 477 U.S. at 623.

(114) Id. at 623-24.

(115) See id. at 624 (stating that there was probable cause to believe that Hoskinson was the victim of discrimination based on her sex).

(116) Id.

(117) Id. at 624-25.

(118) Dayton I, 766 F.2d at 961. The Sixth Circuit emphasized the inquiry into pretext in reaching its decision that the exercise of jurisdiction by the commission would cause excessive entanglement. See id. at 960-961. However, the court also relied on "the pervasively religious nature of the Christian school, the particularly sensitive role of the teacher in explicitly and implicitly fostering the religious beliefs and values that, appellant-parents seek for their children, and the fact that religious considerations pervade the hiring scheme employed by [Dayton]." Id. at 961.

(119) See id. at 960 (contemplating the commission will conduct investigations and hearings when making the pretext inquiry).

(120) Id. at 959.

(121) See id. at 961 (noting that "[t]he district court discounted this prospective state/church entanglement on the ground that only a hearing was involved").

(122) Id. at 960 (quoting NLRB v. Catholic Bishop, 440 U.S. 490, 502 (1979)).

(123) Id. at 962.

(124) Dayton II, 477 U.S. 619 (1986).

(125) See id. at 629.

(126) See id. at 628 (discussing the legitimacy of the Ohio Civil Rights Commission's exercise of jurisdiction only for purposes of determining whether the Sixth Circuit should have abstained from hearing the case).

(127) Id.

(128) Indeed, Justice Stevens wrote in his concurring opinion, "[l]ike the majority, I agree with the District Court that neither the investigation of certain charges nor the conduct of a hearing on those charges is prohibited by the First Amendment." Id. at 632 (Stevens, J., concurring).

(129) 815 F.2d 219 (2d Cir. 1987), cert. denied, 484 U.S. 830 (1987).

(130) Christ the King Regional High School (in contrast to the schools that were part of the Catholic High School Ass'n) is a church-affiliated school rather than a church-operated school. Id. at 220. This difference was not significant because, in NLRB v. Bishop Ford Central High School, 623 F.2d 818 (2d Cir. 1980), the Second Circuit decided that the Supreme Court's decision in Catholic Bishop II, which involved church-operated schools, applied to Bishop Ford Central High School, a church-affiliated school, with a lay Board of Trustees. The Second Circuit wrote: "Ford Central is obviously not a public or nonreligious school, and is therefore within the [Supreme] Court's own conception of a church-operated school." Id. at 823.

(131) See Christ the King, 815 F.2d at 220.

(132) Id. at 224.

(133) Id.

(134) Black's Law Dictionary defines pretext as "[a] false or weak reason or motive advanced to hide the actual or strong reason or motive." BLACK'S LAW DICTIONARY 1206 (7th ed. 1999).

(135) A determination of sincerity in an individual case is similar to a determination of pretext. "Sincerity analysis seeks to determine an adherent's good faith in the expression of his religious belief. This test provides a rational means of differentiating between those beliefs that are held as a matter of conscience and those that are animated by motives of deception and fraud." Patrick v. Lefevre, 745 F.2d 153, 157 (2d Cir. 1984) (citation omitted). Two cases on sincerity, both involving individual beliefs, provide some good examples of inquiries into doctrine. See Patrick, 745 F.2d at 155 (stating testimony included texts upon which a Five Percenter relies for religious instruction, nature of superior being, and description of religious beliefs); Stevens v. Berger, 428 F. Supp. 896, 902 (E.D.N.Y. 1977) (including testimony describing religious beliefs).

(136) The cases on sincerity also provide some good examples of determinations that a belief was so extreme or implausible that the courts found sincerity lacking. See Barbara L. Kramer, Reconciling Religious Rights & Responsibilities, 30 LOY. U. CHI. L.J. 439, 450 n.54 (1999) (citing McCrory v. Rapides Regional Medical Center, 635 F. Supp. 975, 979 (W.D. La.), aff'd mem., 801 F.2d 396 (5th Cir. 1986) (holding that the Baptist religion did not hold adultery as a sincere belief), and Brown v. Pena, 441 F. Supp. 1382, 1384-85 (S.D. Fla. 1977), aff'd, 589 F.2d 1113 (5th Cir. 1979) (holding as frivolous a plaintiffs claim that his `"personal religious creed"' held that a certain type of cat food contributed to his work ability)).

(137) In Reconciling Religious Rights d3 Responsibilities, the author explained an inquiry into the sincerity of an employee's beliefs. Kramer, supra note 136, at 450. The author wrote: "[w]hen the sincerity of an alleged belief is contested, the court examines the consistency with which the employee has acted with respect to that belief and the maintenance of his or her system of beliefs." Id. (footnote omitted). The behavioral inquiry examines the school's actions to determine if they are consistent with the alleged religious justification. The behavioral inquiry would not involve an inquiry into the maintenance of a system of beliefs.

(138) In Dayton II, the Supreme Court determined that the federal courts should abstain from interfering with a proceeding before the state civil rights commission concerning the alleged discriminatory discharge of a teacher at a religious school. Dayton II, 477 U.S. 619, 625 (1985). With respect to the inquiry into pretext, the Court noted only that the state civil rights commission would not violate the First Amendment by inquiring into whether the "ascribed religious-based reason was in fact the reason for the discharge." Id. at 628. The Supreme Court did not impose or discuss any limitations on the scope of this inquiry. Given the plethora of case law discussing the First Amendment concerns related to inquiring into doctrine, including the Supreme Court's own decision in Catholic Bishop, it is unlikely that one sentence was intended to determine that the inquiry into doctrine is unlimited and can include inquiry into doctrine.

(139) 7 F.3d 324 (3d Cir. 1993). In Geary, a lay teacher claimed that she was fired by a church-operated elementary school due to her age. Id. at 326. The school claimed that she was discharged for marrying a divorced man which violated Church doctrine. Id. The teacher instituted an action with the Equal Employment Opportunity Commission and, thereafter, the school canceled her health insurance coverage. Id. The teacher then filed an ADEA case in federal court alleging age discrimination and retaliation. Id.

(140) Id. at 330. "[W]hen the pretext inquiry neither traverses questions of the validity of religious beliefs nor forces a court to choose between parties' competing religious visions, that inquiry does not present a significant risk of entanglement." Id; see also DeMarco v. Holy Cross High Sch., 4 F.3d 166, 171 (2d Cir. 1993) (prohibiting inquiry into whether a school's religious defense to alleged discrimination was "implausible, absurd or unwise.").

(141) 4 F.3d 166 (2d Cir. 1993). In DeMarco, a lay teacher commenced an action under the ADEA alleging age discrimination. Id. at 168. In its summary judgment motion, the Catholic high school claimed that the teacher had been discharged for "reasons unrelated to his age, including failure to begin his classes with prayer and failure to attend Mass with his students." Id.

(142) Id. at 171.

(143) Id.

(144) Id. (citing Grant v. Bethlehem Steel Corp., 635 F.2d 1007, 1014-15 (2d Cir. 1980), which found pretext where a policy applied to the plaintiff, who was black, was not applied equally to whites).

(145) Id. (citing Sabree v. United Brotherhood of Carpenters & Joiners Local No. 33, 921 F.2d 396, 404 (1st Cir. 1990), which found that actions post hoc are not a sufficient rebuttal of plaintiffs prima facie case).

(146) See id. at 172.

(147) 7 F.3d 324 (3d Cir. 1993).

(148) See id. at 329-330.

(149) See DeMarco, 4 F.3d at 171 (determining "whether the rule applied to the plaintiff has been applied uniformly").

(150) See Geary, 7 F.3d at 326 (stating that the plaintiff was dismissed after she turned fifty and after nearly twenty-nine years at the school as a lay teacher).

(151) See id.

(152) Id. at 329.

(153) See id. (quoting findings from the hearing officer's examination of the record).

(154) Id. at 329-330.

(155) Id. at 330. The Third Circuit also gave other examples of permissible inquiries including "that similarly remarried persons had not been fired, that she did not in fact marry, or that [the] School's explanation did not emerge until late in the litigation." Id. at 332. All of these are examples of inquiries that focus on the behavior of the school in relation to its uncontested religious doctrine expressed in the defense.

(156) 753 F.2d 1161 (2d Cir. 1985).

(157) Id. at 1168.

(158) See id (noting that the examination of pretext by the SLRB would ultimately "lead to the degradation of religion," which the Establishment Clause sought to avoid).

(159) See id. (concluding that despite the First Amendment prohibition from inquiring into asserted religious motives to determine pretext, state boards are still free to use a dual motive analysis to determine "whether the religious motive was in fact the cause of the discharge").

(160) Id.

(161) 4 F.3d 166 (2d Cir. 1993).

(162) See Catholic High Sch., 753 F.2d at 1168.

(163) 682 N.E.2d 960 (1997).

(164) See id. at 966 (noting that the school's stated religious reason was not offered at an appropriate time); DeMarco v. Holy Cross High School, 4 F.3d 166, 171 (2d Cir. 1993) (inquiring whether the defendant only mentioned the religious reason after plaintiff's claim of discrimination).

(165) NYSERB, 682 N.E.2d at 966 (noting that the school had not provided proof of its claim at the "appropriate, earliest, [or] timely administrative stages").

(166) Id.

(167) Id.

(168) See id.

(169) See id.

(170) See id. at 966-67.

(171) 766 F.2d 932 (6th Cir. 1985).

(172) DeMarco, 4 F.3d at 171.

(173) See Dayton I, 766 F.2d at 934 (withdrawing the initial reason for termination and replacing it with failure to follow the "Biblical Chain-of-Command").

(174) See id. (stating that the plaintiff informed the principal that she was

pregnant, and later the principal sent the plaintiff a letter advising her that she would not be welcomed back the following fall because of the expectation that she would stay at home with her young children).

(175) Dayton II, 477 U.S. 619, 623 (1986). The school then fired the plaintiff for contacting an attorney to resolve her dispute with the school rather than taking her dispute through the "Biblical chain of command." Id; see also Dayton I, 766 F.2d at 934-35 (providing a full description of the facts).

(176) Dayton I, 766 F.2d at 934.

(177) The Ohio Civil Rights Commission ("OCRC") did inquire into the school's rules and policies but it is unclear whether the agency was looking for evidence of a "biblical chain of command" policy or for policies relating to a mother's duty to stay at home with her preschool age children. See id. at 935.

(178) 7 F.3d 324 (3d Cir. 1993).

(179) Id. at 332.

(180) Catholic Bishop I, 559 F. 2d 1112, 1129 (7th Cir. 1977).

(181) Catholic Bishop II, 440 U.S. 490, 502 (1979).

(182) Catholic Bishop I, 559 F.2d at 1125.

(183) See id. at 1125-30.

(184) See Catholic High Sch. Ass'n v. Culvert, 753 F.2d 1161, 1168 (2d Cir. 1985).

(185) Geary v. Visitation of the Blessed Virgin Mary Parish Sch., 7 F.3d 324, 330 (3d Cir. 1993).

(186) Id.

(187) In Catholic Bishop II, the Supreme Court gave an example of an inquiry into doctrine to demonstrate the "sensitivity" of applying the NLRA to lay teachers at Catholic schools. The inquiry was as follows:

Q. [by Hearing Officer] Now, we have had quite a bit of testimony already as to liturgies, and I don't want to beat a dead horse; but let me ask you one question: If you know, how many liturgies are required at Catholic parochial high schools; do you know?

A. I think our first problem with that would be defining liturgies. That word would have many definitions. Do you want to go into that?

Q. I believe you defined it before, is that correct, when you first testified?

A. I am not sure. Let me try briefly to do it again, okay?

Q. Yes.

A. A liturgy can range anywhere from the strictest sense of the word, which is the sacrifice of the Mass in the Roman Catholic terminology. It can go from that all the way down to a very informal group in what we call shared prayer. Two or three individuals praying together and reflecting their own reactions to a scriptural reading. All of these--and there is a big spectrum in between those two extremes--all of these are popularly referred to as liturgies.

Q. I see.

A. Now, possibly in repeating your question you could give me an idea of that spectrum, I could respond more accurately.

Q. Well, let us stick with the formal Masses. If you know, how many Masses are required at Catholic parochial high schools?

A. Some have none, none required. Some would have two or three during the year where what we call Holy Days of Obligation coincide with school days. Some schools on those days prefer to have a Mass within the school day so the students attend there, rather than their parish churches. Some schools feel that is not a good idea; they should always be in their parish church; so that varies a great deal from school to school. NLRB v. Catholic Bishop, 440 U.S. 490, 507-08 (1979).

If the state labor boards were limited to the behavioral inquiry, this type of inquiry into doctrine would be prohibited. Even if a school raised as a defense to an unfair labor practice charge that a lay teacher was fired for not participating in sufficient liturgies, the focus of the inquiry would be different. The only relevant inquiry would be the number of liturgies that were required by this particular teacher and whether the teacher complied with the school's religious requirement. The details of the church's dogma would be irrelevant. See Geary, 7 F.3d at 330 (finding that the "murky inquiry into the definition of a Catholic liturgy" cited in Catholic Bishop II would be unlikely in an ADEA case). It should also be noted that, even in Catholic Bishop II, this inquiry regarding liturgies was made to determine whether the Catholic school was completely religious or just religiously associated because the NLRB had determined it would only exercise jurisdiction over religiously associated schools. Catholic Bishop II, 440 U.S. at 502. The inquiry was not made in relation to pretext. Moreover, the Seventh Circuit determined that the distinction between completely religious and religiously associated schools was unworkable. Catholic Bishop v. NLRB, 559 F.2d 1112, 1118 (7th Cir. 1979).

(188) Dayton I, 766 F.2d 932, 959 (6th Cir. 1985).

(189) See supra notes 137-88 and accompanying text.

(190) See supra notes 137-38 and accompanying text.

(191) See supra Part II. A.

(192) See supra notes 31-32 and accompanying text.

(193) Nee supra note 31.

(194) See Wolman v. Walter, 433 U.S. 229, 240 (1977) (stating the state may require church-affiliated schools to only employ teachers with adequate academic and other qualifications and may examine both teachers and pupils to ensure that certain standards of instruction are being met); Wisconsin v. Yoder, 406 U.S. 205, 236 (1972) (noting that state compulsory education requirements may be applied to most religious groups even if such requirements would violate the tenets of the group); Bal. of Educ. v. Allen, 392 U.S. 236, 245-46 (1968) (asserting that state may require that religious schools offer a minimum number of hours of instruction and a curriculum comparable to that provided in public schools); N. Valley Baptist Church v. McMahon, 696 F. Supp. 518, 536 (E.D. Cal. 1988), aff'd 893 F.2d 1139 (9th Cir. 1990) (stating that licensing of religious pre-schools does not affect "the religious objectives" of the school and thus, should be permitted).

(195) Catholic Bishop I, 559 F.2d 1112, 1129 (7th Cir. 1977). It is interesting to note that lay teachers and religious schools have negotiated for long periods of time without any religious issues arising. See Catholic High School Ass'n v. Culvert, 753 F.2d 1161, 1167 (2d Cir. 1985) ("In this ease, the record demonstrates that the [lay teachers'] Union had not brought a[n unfair labor practice] charge [against the Catholic high school] during a decade of collective bargaining."). The court also noted:
 The Board and Union argue that during the fourteen years that the Act's
 provisions have applied to church-operated schools, the Board has handled
 many representation and unfair labor practice proceedings involving lay
 teachers at parochial schools and none of these cases have involved a
 religious question or have required it to inquire into or interfere with
 religious beliefs.


Id. at 1165 (footnote omitted); see also Hill-Murray Fed'n of Teachers v. Hill-Murray High Sch., 487 N.W.2d 857, 866 (Minn. 1992) (finding that the Catholic high school's assertion that "negotiations about conditions of employment will lead to negotiations about religion" is "remote and an insufficient basis to exempt Hill-Murray from the regulatory laws of the state"); S. Jersey Catholic Sch. Teachers Org. v. St. Teresa of the Infant Jesus Church Elem. Sch., 696 A.2d 709, 716 (N.J. 1997) (noting for thirteen years, the lay high school teachers and the Diocese "negotiated a series of collective bargaining agreements concerning the lay high-school teachers employed by the Diocese of Camden"); Pushaw, supra note 7, at 146 (noting that "in Philadelphia, ten years elapsed between the advent of unionism [at parochial schools] and the first arbitration").

(196) Courts have successfully differentiated between the secular and sectarian aspects of the work performed by lay teachers and have determined the non-doctrinal claims without implicating religious concerns. For example, in Reardon v. Lemoyne, 454 A.2d 428 (N.H. 1982), a Catholic School principal filed a petition for a declaratory judgment requesting the court to construe the employment contracts of three nuns who were teachers at the school. Id. at 431. The New Hampshire Supreme Court found that, because the employment contract claims were "outside the doctrinal realm," the court could accept jurisdiction and render a decision without violating the First Amendment. Id.
 To the extent that the contract specified, and the defendants alleged, any
 secular reasons for non-renewal or dismissal, the court could properly have
 ruled on the sufficiency of such reasons. Such grounds could, for example,
 include a teacher's alleged failure to get State certification. However,
 other contractual grounds for non-renewal or dismissal may be found to
 involve doctrinal judgments which are clearly beyond the judicial sphere of
 authority.


Id. at 433; see also Gargano v. Diocese of Rockville Ctr., 80 F.3d 87, 90 (2d Cir 1996) (upholding enforcement of state employment contract law to a lay teacher at a Catholic elementary school); Avitzur v. Avitzur, 446 N.E.2d 136, 138-39 (N.Y. 1983) (finding secular terms of a Ketubah, an agreement prepared and executed under Jewish law and tradition, could be enforced by the courts because the dispute concerning the Ketubah did "not entail consideration of doctrinal matters"); Waters v. Hargest, 593 S.W.2d 364, 365 (Tex. Civ. App. 1979) (holding controversy involving a pastor's alleged employment contract could be resolved by the courts). If the courts can differentiate between the secular and sectarian aspects of lay teachers' employment, certainly the schools will be able to determine when an issue relates to doctrine. See S. Jersey, 696 A.2d at 718 ("[T]here are some secular terms such as wages and benefit plans that the Diocese can negotiate while preserving its complete and final authority over religious matters.").

(197) See Catholic Bishop I, 559 F.2d at 1123.

(198) S. Jersey, 696 A.2d at 709.

(199) Hill-Murray Fed'n of Teachers v. Hill-Murray High Sch., 487 N.W.2d 857 (Minn. 1992). 200 New Jersey does not have a labor relations board with jurisdiction over private employees. See N.J. STAT. ANN. [sections] 34:13A-5.4 (West 2000) (limiting labor commission to regulating public employers and employee organizations). The lay teachers in South Jersey requested relief under article 1, par. 19 of the New Jersey Constitution, which provides, in relevant part, that "[p]ersons in private employment shall have the right to organize and bargain collectively." S. Jersey, 696 A.2d at 713. The New Jersey Supreme Court found that there was less risk of "undue interference [with] ecclesiastical concerns" in New Jersey than in states like New York and Minnesota because the legal relief sought by the lay teachers must come from the courts rather than a labor relations board. Id. at 723 In Hill-Murray, the Minnesota Supreme Court relied partially on the fact that, under Minnesota law, "[n]egotiable terms and conditions of employment are limited to exclude matters of inherent managerial policy." Hill-Murray, 487 N.W.2d at 866. The court found that "matters of religious doctrine and practice at a religiously affiliated school are intrinsically inherent matters of managerial policy." Id. This provision in the Minnesota law does not limit the persuasive value of the Minnesota Supreme Court's decision. The Minnesota law is simply a codification of decisions concerning the NLRA. Collective bargaining does not divest an employer of managerial rights. See 29 U.S.C. [sections] 158(d) (1994) (stating that the "obligation [to bargain collectively] does not compel either party to agree to a proposal or require the making of a concession"); H.K. Porter Co. v. NLRB, 397 U.S. 99, 106 (1970) (noting that a party need not concede its position if the position is maintained in good faith and the NLRB cannot compel an employer or union to agree to any substantive provision); NLRB v. Borg-Warner Corp., 356 U.S. 342, 348-49 (1958) (holding that under the NLRA, neither management nor the union is required to negotiate in good faith with respect to matters other than `"wages, hours, and other terms and conditions of employment'").

(201) S Jersey, 696 A.2d at 723 (quoting Elmora Hebrew Ctr., Inc. v. Fishman, 593 A.2d 725, 729 (N.J. 1991)); see also Hill-Murray, 487 N.W.2d at 865 ("Because we believe judicial intervention into the determination and interpretation of religious beliefs warrants caution, we will recognize the presence of a sincerely held religious belief.").

(202) Geary v. Visitation of the Blessed Virgin Mary Parish Sch., 7 F.3d 324, 330 (3d Cir. 1993).

(203) See Hill-Murray, 487 N.W.2d at 864 ("The obligation imposed upon [the Catholic high school] by the application of the [Minnesota Labor Relations Act to its lay teachers] is the duty to bargain about hours, wages, and working conditions."). The court "decline[d] to categorize this minimal responsibility as excessive entanglement." Id In South Jersey, the court stated:
 By limiting the scope of collective bargaining [between lay teachers and
 Catholic elementary schools] to secular issues such as wages and benefit
 plans, neutral criteria are used to insure that religion is neither
 advanced nor inhibited. We also perceive that the extent of the State's
 involvement would be minimal at most.


696 A.2d at 718; see a/so New York State Employment Relations Bd., v. Christ the King Reg'l High Sch., 682 N.E.2d 960, 967 (N.Y. 1997) ("The First Amendment's metaphorical wall of separation between church and State does not per se prohibit appropriate governmental regulation of secular aspects of a religious school's labor relations operations.").

(204) Hill-Murray, 487 N.W.2d at 864; see also Catholic High Sch., 753 F.2d at 1167-68 (`"That faculty members are expected to serve as exemplars of practicing Christians does not serve to make the terms and conditions of their employment matters of church administration and thus purely of ecclesiastical concern."' (quoting EEOC v. Miss. Coll., 626 F.2d 477, 485 (5th Cir. 1980)); S. Jersey, 696 A.2d at 719 ("`[R]eligious institutions do not enjoy an absolute immunity from worldly burdens."' (quoting Market St. Mission v. Bureau of Rooming and Boarding House Standards, 541 A.2d 668, 670 (N.J. 1988)) (alteration in original).

(205) 4 F.3d 166 (2d Cir. 1993).

(206) Id. at 169.

(207) Id. at 169-70 (quoting Lukaszewski v. Nazareth Hosp., 764 F. Supp. 57, 60 (E.D. Pa. 1991) and citing NLRB v. Catholic Bishop, 440 U.S. 490, 503 (1979)).

(208) Id. at 170.

(209) 7 F.3d 324 (3d Cir. 1993).

(210) Id. at 328.

(211) See supra Part IV.A.2.

(212) Indeed, in Dayton I, the Sixth Circuit found that there was a danger of comprehensive state surveillance in discrimination cases. See Dayton Christian Sch. v. Ohio Civil Rights Comm'n, 766 F.2d 932, 958-59 (6th Cir. 1985) (finding that the exercise of jurisdiction by the OCRC in a discrimination case would create "a continuing relationship, rather than a onetime state-church encounter" and that the OCRC's subpoena power and the types of records it was seeking created "the likelihood that allowing the Commission to exercise jurisdiction will result in `comprehensive, discriminating and continuing state surveillance."' (citing Lemon v. Kurtzman, 403 U.S. 602, 619 (1971))).

(213) See Catholic High Sch. Ass'n v. Culvert, 753 F.2d 1161, 1167 (2d. Cir. 1985).

(214) See id.

(215) See id.

(216) The issues that can be heard in a labor relations case are arguably more varied because the state labor boards can hear unfair labor practice charges related to failure to bargain in good faith concerning the terms and conditions of employment. Discrimination cases, however, also have very varied issues. Unlawful employment practices under Title VII include "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, religion, sex or national origin; or to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. [sections] 2000e-2(a) (1994).

(217) See EEOC v. Pac. Press Publ'g. Ass'n, 676 F.2d 1272 (9th Cir. 1982). In that case, the Ninth Circuit held that Title VII could constitutionally be applied to employees at a religious publishing house. Id. at 1279. The court attempted to distinguish its holding from the Catholic Bishop decision by relying on two procedural aspects of Title VII. The court found that Title VII posed less risk of entanglement than the NLRA because (1) the EEOC "lacks independent authority to initiate actions to enforce Title VII"; rather these actions must be initiated "by an employee filing charges with the Commission"; and (2) the EEOC "cannot issue coercive orders" but must rely on the federal district court to enforce its decisions. Id. at 1282. These EEOC procedures are, however, very similar to the procedures set forth in the state labor relations acts in that: (1) state labor relations boards cannot initiate an unfair labor practice proceeding on their own; and (2) state labor relations boards orders are not sell enforcing--they must be enforced by a court. See Catholic High Sch., 753 F.2d at 1167.

(218) As stated by the Second Circuit:
 Were the Board allowed to apply an `in part' test in addressing an asserted
 religious motive, an order based on such a finding would violate the First
 Amendment. A parochial school might be forced to reinstate a teacher it
 otherwise would have fired for religious reasons simply because the school
 administration was also partly motivated by anti-union animus.


Catholic High Sch., 753 F.2d 1161, 1169 (2d Cir. 1985); see also DeMarco, 4 F.3d 166, 172 (2d Cir. 1993) (noting that an `in part' test is not relevant in the context of an ADEA case "because the ADEA applies only where plaintiffs establish that age-discriminatory animus was the `but for' cause of the challenged employment action"). The court went on to discuss one of the 1991 amendments to Title VII, 42 U.S.C. [sections] 2000e-5(g)(2)(B)(ii), and that it requires proof of "but for" causation in order for a court to impose the equitable remedy of reinstatement. Id.

(219) See Dayton Christian Sch. v. Ohio Civil Rights Comm'n, 766 F.2d 932, 960 (6th Cir. 1985).

(220) The enforcement provisions in the state labor relations acts limit the potential for excessive entanglement by requiring that all orders be enforced by a court. See Catholic High Sch., 753 F.2d at 1167; Hill-Murray Fed'n of Teachers v. Hill-Murray High Sch., 487 N.W.2d 857, 864 (Minn. 1992); see also COLO. REV. STAT. [sections] 8-3-110(10) (2000); CONN. GEN. STAT. ANN. [sections] 31-109 (West 1997); HAW. REV. STAT. [sections] 377-9 (1993); KAN. STAT. ANN. [sections] 75-4323 (1997); MASS. ANN. LAWS ch. 150A [sections] 6 (Law. Co-op. 1999); MICH. STAT. ANN. [sections] 17.455(16) (Callaghan 1989); MINN. STAT. ANN. [sections] 179.14 (West 1993); N.J. STAT. ANN. [sections] 34:13A-5.4 (West 2000); N.D. CENT. CODE [sections] 34-12-08 (Michie 1987); OR. REV. STAT. [sections] 663.210 (1999); PA. STAT. ANN. tit. 43 [sections] 211.9 (West 1992); R.I. GEN. LAWS [sections] 28-7-26 (Michie 1995); UTAH CODE ANN. [sections] 34-20-10 (Michie 1997); VT. STAT. ANN. tit. 21 [sections] 1623 (Equity 1987); W. VA. CODE ANN. [sections] 21-1A-6 (Michie 1996); WIS. STAT. ANN. [sections] 111.07 (West 1997). Similar to state labor relations boards, the EEOC cannot enforce its own orders. 42 U.S.C. [sections] 2000e-5(b) (1994). Both Title VII and the ADEA require that the EEOC's orders be enforced by the court. See 42 U.S.C. [sections] 2000e-5(f) (1994); 29 U.S.C. [sections] 626(c) (1994). State civil rights commissions similarly cannot enforce their own orders. See CAL. GOV'T CODE [sections] 12960 (West 1992); FLA. STAT. ANN. [sections] 760.11 (West 1997); 775 ILL. COMP. STAT. ANN. 5/7-101 (West 1993); N.Y. EXEC. LAW [sections] 298 (McKinney 1993); S.C. CODE ANN. [sections] 1-13-90 (Law. Co-op. 1986).

(221) See NLRB v. Salvation Army of Mass. Dorchester Day Care Ctr., 763 F.2d 1, 4-7 (1st Cir. 1985) (union representing teachers, a janitor, a social worker and a cook at a day care center which provided no religious instruction or training for the children); Denver Post of the Nat'l Soc'y of Volunteers of Am. v. NLRB, 732 F.2d 769, 771-73 (10th Cir. 1984) (union representing counselors at temporary shelters for women and children); St. Elizabeth Hosp. v. NLRB, 715 F.2d 1193, 1196-97 (7th Cir. 1983) (union representing boiler room and maintenance employees at a religiously-affiliated hospital); St. Elizabeth Cmty. Hosp. v. NLRB, 708 F.2d 1436, 1441-43 (9th Cir. 1983) (union representing service and maintenance employees at a church-operated hospital); Tressler Lutheran Home for Children v. NLRB, 677 F.2d 302, 305-07 (3d Cir. 1982) (union representing service and maintenance employees, nursing and physiotherapy assistants, clerks, orderlies, licensed practical nurses and dietary, housekeeping and laundry employees at a church-affiliated nursing home); NLRB v. St. Louis Christian Home, 663 F.2d 60, 63-65 (8th Cir. 1981) (union representing child-care workers, a maintenance employee and a storeroom clerk at a church-operated home for neglected children); NLRB v. World Evangelism, Inc., 656 F.2d 1349, 1353 (9th Cir. 1981) (union representing engineers who spent a substantial portion of their time on the religious organizations' commercial activities); Temple Israel of Lawrence, Inc. v. NY State Labor Relations Bd., N.Y.L.J., Aug. 21, 1984, at 6-7 (N.Y. Sup. Ct. 1984), aff'd, 118 A.D.2d 446 (N.Y. App. Div. 1986) (recognizing jurisdiction over union representing building maintenance workers at a temple); see also Scharon v. St. Luke's Episcopal Presbyterian Hosps., 929 F.2d 360, 363 n.3 (8th Cir. 1991) ("[C]ourts consistently have subjected the personnel decisions of various religious organizations to statutory scrutiny where the duties of the employees were not of a religious nature."); EEOC v. Pac. Press Publ'g Ass'n, 676 F.2d 1272, 1277 (9th Cir. 1982) (concluding that an employee at a religious publishing house was protected by Title VII); EEOC v. Southwestern Baptist Theological Seminary, 651 F.2d 277, 287 (5th Cir. 1981) (holding that maintenance and other non-ministerial support employees are covered by the EEOC).

(222) See EEOC v. Catholic Univ. of Am., 83 F.3d 455, 461 (D.C. Cir. 1996) (declining to permit a Title VII challenge involving the selection of clergy at a school). In Ncharon, the court stated:
 Personnel decisions by church-affiliated institutions affecting clergy are
 per se religious matters and cannot be reviewed by civil courts, for to
 review such decisions would require the courts to determine the meaning of
 religious doctrine and canonical law and to impose a secular court's view
 of whether in the context of the particular case religious doctrine and
 canonical law support the decision the church authorities have made.


Scharon, 929 F.2d at 363; see also Weissman v. Congregation Shaare Emeth, 38 F.3d 1038, 1044 (8th Cir. 1994) (stating that "cases in which clergy sue a religious employer are inapposite to lay employees of religious institutions because such cases deal `with the pervasively religious relationship between a member of the clergy and his [or her] religious employer"' (quoting DeMarco, 4 F.3d at 171)); Whitney Ellenby, Divinity vs. Discrimination: Curtailing the Divine ]leach of Church Authority, 26 GOLDEN GATE U. L. REV. 369, 371 (1996) ("Church authority to discriminate in employing ministers in both pervasively sectarian and religiously-affiliated institutions is undisputed.").

(223) Courts that have upheld the application of labor relations statutes to lay employees of religious institutions, other than teachers, have stressed that the employees involved were performing essentially secular functions and, unlike teachers in religious schools, these employees did not engage in religious training or indoctrination, or in activities that would significantly affect ideas or attitudes. See Salvation Army of Mass. Dorchester Day Care Ctr., 763 F.2d at 6 (noting the day care program "involves no religious instruction, indoctrination, or extracurricular activities"); Denver Post, 732 F.2d at 771 ("[T]he services provided by [the organization's] programs `are social services of a secular nature and are not a promulgation of the [Volunteers of America's] religious doctrine.'"); St. Elizabeth Hosp., 715 F.2d at 1196 (holding that "while St. Elizabeth's health care is administered in a religious atmosphere, that atmosphere is secondary to the hospital's actual physical care, which is comparable to health care furnished by secular hospitals"); St. Elizabeth Cmty. Hosp., 708 F.2d at 1441 ("St. Elizabeth's principal function, unlike a parochial school, is to care and heal, not to indoctrinate and propagate Catholicism."); Tressler Lutheran Home for Children, 677 F.2d at 305 (holding that "the `critical and unique role of the teacher in fulfilling the mission of a church-operated school' ... differs from the main function of those who give personal attention to the elderly and infirm" (quoting Catholic Bishop H, 440 U.S. 490, at 501)); St. Louis Christian Home, 663 F.2d at 64 ("[T]he Home, though sponsored by the Christian Church, does not devote itself to the propagation of religion."); World Evangelism, Inc., 656 F.2d at 1354 ("There has been no showing that recognizing a union would significantly impede [World Evangelism Inc.'s] ability to propagate its beliefs.").

(224) Ambach v. Norwick, 441 U.S. 68, 78-79 (1979) C[A] teacher serves as a role model for his students, exerting a subtle but important influence over their perceptions and values."); Meek v. Pittenger, 421 U.S. 349, 370 (1975) ("Whether the subject is `remedial reading,' `advanced reading' or simply `reading,' a teacher remains a teacher, and the danger that religious doctrine will become intertwined with secular instruction persists."); Adler v. Bd. of Educ., 342 U.S. 485, 493 (1952) ("A teacher works in a sensitive area in a schoolroom [and] [t]here he shapes the attitude of young minds towards the society in which they live."); see also Wolman v. Walter, 433 U.S. 229, 244 (1977); Shelton v. Tucker, 364 U.S. 479, 485 (1960). The Supreme Court's most recent decisions in the area of government funding for services to schools, including religious schools, have upheld "neutral" federal programs that allow public employees to teach remedial classes at private schools, see Agostini v. Felton, 521 U.S. 203, 234-35 (1997), and fund the acquisition and use of instructional and educational materials, including computer software and library services and materials, see Mitchell v. Helm, 147 L. Ed. 2d 660, 671-72 (2000). These cases do not, however, change the basic premise that teachers have a unique role in the classroom that creates a special danger of violating the Establishment Clause.

(225) For a list of some cases finding a compelling state interest in eliminating race and sex discrimination, see Mark F. Kohler, Comment, Equal Employment or Excessive Entanglement? The Application of Employment Discrimination Statutes To Religiously Affiliated Organizations, 18 CONN. L. REV. 581,612-13 nn.185-86 (1986).

(226) See Catholic High Sch. Ass'n v. Culvert, 753 F.2d 1161, 1171 (2d. Cir. 1985) (finding, with respect to applying state labor relations act to lay teachers at Catholic schools, that "it]here is a compelling public interest in finding that all unions and employers have a duty to bargain collectively and in good faith"); S. Jersey Catholic Sch. Teachers Org. v. St. Teresa of the Infant Jesus Church Elem. Sch., 696 A.2d 709, 722 (N.J. 1977) (finding with respect to lay teachers at Catholic elementary schools that "the State of New Jersey has a compelling interest in allowing private employees to unionize and to bargain collectively over secular terms and conditions of employment").

(227) See Amalgamated Util. Workers v. Consol. Edison Co., 309 U.S. 261, 263 (1940); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 42 (1937) (noting that the right to self-organization for collective bargaining has been "an essential condition of industrial peace").

(228) See Thomas v. Collins, 323 U.S. 516, 530-32 (1945) (noting that although the state "has [the] power to regulate labor unions, ... [s]uch regulation ... must not trespass upon the domains set apart for free speech and free assembly"); Teamsters Pub. Employees Union Local No. 594 v. City of West Point, 338 F. Supp. 927, 929 (D. Neb. 1972) (stating that "union membership is protected by the right of association under the First Amendment").

(229) For example, in Building Service & Maintenance Union Local No. 47 v. St. Lukes Hospital, 227 N.E.2d 265 (Ohio Ct. Common Pleas 1967), the court stated:

[W]here a state has a labor relations act which imposes the duty of collective bargaining, but the act expressly exempts from its operations certain types of employers, such as charitable corporations, then the particular labor relation status is relegated to the common law and the exempt employer is under no duty to bargain collectively.

Id. at 271. Also, in Trustees of Columbia University v. Herzog, 53 N.Y.S.2d 617 (N.Y.App. Div. 1945), affd without opinion, 64 N.E.2d 351 (N.Y. 1945), the court stated:
 The [New York] constitutional provision enacted by amendment in 1938
 accords recognition to the right of labor to organize and bargain
 collectively which, in 1935, had found expression in the Labor Relations
 Act. That constitutional amendment was not intended to invalidate existing
 legislation which imposed a duty on employers to bargain collectively with
 employees even though that obligation by reason of certain exemptions or
 exceptions was not in all respects coextensive with the rights of labor.


Id. at 622.

(230) NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 42 (1937).
 Experience has abundantly demonstrated that the recognition of the right of
 employees to self-organization and to have representatives of their own
 choosing for the purpose of collective bargaining is often an essential
 condition of industrial peace. Refusal to confer and negotiate has been one
 of the most prolific causes of strife. This is such an outstanding fact in
 the history of labor disturbances that it is a proper subject of judicial
 notice and requires no citation of instances.


Id.; see also Jeffrey-De Witt Insulator Co. v. NLRB, 91 F.2d 134, 139 (4th Cir. 1937) (holding that refusing to permit collective bargaining is an unfair labor practice).

(231) See Hill-Murray Fed'n of Teachers v. Hill-Murray High Sch., 487 N.W.2d 857 (Minn. 1992). Applying the Minnesota Labor Relations Act to lay teachers at a religious school, the court wrote: "[t]he nature of collective bargaining is unique; other alternatives pale in comparison and remain unable to effectuate the strength of collective action. Collective bargaining allows the individual `David' to negotiate against the employer `Goliath."' Id. at 867.
 In an era of school reform where teacher empowerment is designed to give
 faculties greater voice in the daily exercise of their professional duties,
 a positive response from Church leaders can further serve as a powerful
 example of the effectiveness of shared decision making. By entering into
 labor contract negotiations with teachers' unions over terms and conditions
 of their employment, dedicated lay teachers who staff the schools can be
 made full partners in the enterprise of educating children.


Gregory & Russo, supra note 6, at 467 (footnote omitted); cf. Michael E. Hartmann, Spitting Distance: Tents Full of Religious Schools in Choice Programs, the Camel's Nose o/State Labor-Law Application To Their Relations With Lay Faculty Members, and the First Amendment's Tether, 6 CORNELL J.L. & PUB. POLLY 553, 560 (1997) (stating that "[t]he interest of educational researchers in the overall effect of teacher unionization on education in general is, surprisingly, relatively sparse and, perhaps not surprisingly, seemingly contradictory") (footnote omitted).

(232) See Kohler, supra note 225, at 612-13 nn.185-86 (listing cases finding a compelling state interest in eliminating race and sex discrimination in employment); see also EEOC v. Miss. College, 626 F.2d 477, 488 (5th Cir. 1980) (stating "the government has a compelling interest in eradicating discrimination in all forms").

(233) See Kohler, supra note 225, at 615 ("If the religious organization is allowed to commit unlawful employment practices with regard to its teachers and other educational employees, the students of the religious school are educated in an atmosphere of discrimination.").

(234) See Miss. College, 626 F.2d at 489.
 Although the number of religious educational institutions is minute in
 comparison to the number of employers subject to Title VII, their effect
 upon society at large is great because of the role they play in educating
 society's young. If the environment in which such institutions seek to
 achieve their religious and educational goals reflects unlawful
 discrimination, those discriminatory attitudes will be perpetuated within
 an influential segment of society, the detrimental effect of which cannot
 be emphasized.


Id.; see also Ellenby, supra note 222, at 407 C[A] compelling reason for holding churches accountable for their discriminatory behavior is that religious institutions have enormous capacity to influence behavior and moral convictions far beyond the church polity itself.")

(235) Adler v. Bd. of Educ., 342 U.S. 485, 493 (1952).

Evelyn M. Tenenbaum, Associate Lawyering Professor and Adjunct Professor of Law, Albany Law School. J.D., Cornell Law School; B.A., Northwestern University. The author was formerly an Assistant Attorney General for the State of New York and represented the New York State Labor Relations Board in three of the cases discussed in this article involving lay teachers at parochial schools. The author wishes to thank her husband and her children, Joanna and Karen, for their understanding and patience, her research assistants, Lisa Natoli and Margery Eddy, for their enthusiasm and encouragement, and Albany Law School Documents Librarian Nancy Lenahan, for her valuable research assistance.
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Title Annotation:Catholic school teachers
Author:Tenenbaum, Evelyn M.
Publication:Albany Law Review
Geographic Code:1USA
Date:Dec 22, 2000
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