The Application of Labor Relations and Discrimination Statutes to Lay Teachers at Religious Schools: The Establishment Clause and the Pretext Inquiry

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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. …


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