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The United States Supreme Court hears arguments Wednesday in a major case testing the rights of teachers in religious schools. At rock bottom, the issue is who is a minister and when, if ever, that individual is exempt from the nation's civil rights laws.
Civil rights statutes do provide some exceptions for religious institutions. The laws allow religious organizations to prefer their own believers in hiring, for instance, and they allow churches and other religious organizations to require their employees to adhere to certain religious tenets. But what happens when a parochial school fires a teacher because she invokes her rights under the Americans with Disabilities Act, the law that bars discriminating against the disabled? The answer to that question could have huge implications.
Cheryl Perich began teaching at the Hosanna-Tabor Lutheran Church school in 1999 as a contract teacher. She became what is known as a "called teacher," with tenure, after she completed a course of study at a Lutheran university. At Hosanna-Tabor, in Redford, Mich., Perich taught primarily nonreligious subjects, like math and science. In addition, both as a contract teacher and as a called teacher, she led her classes in prayer, gave the homily in chapel several times a year and taught a religion class, for a total of 45 minutes of religion-related instruction each day.
At the beginning of the 2004-2005 school year, Perich was hospitalized and went on disability leave. In December, she told the school principal that she had been diagnosed with the sleep disorder narcolepsy, that treatment had begun, and that her doctor expected her to be able to return to full-time work in two to three months. The following month, the school changed its health insurance policy, hired another teacher and suggested that Perich resign. When she refused and threatened to sue under the Americans with Disabilities Act, she was fired.
She sued the school under the provision of the ADA that bars retaliatory firing.
The school does not dispute that it fired Perich for threatening to sue. It maintains that she is a minister of the church, and that church doctrine teaches that all such disputes must be resolved internally, within the church.
"It doesn't matter why she was discharged," says the school's lawyer, University of Virginia law professor Douglas Laycock. "What matters is that she was performing ministerial functions, and churches get to decide for themselves who their ministers ought to be."
But Walter Dellinger, representing Perich, counters that "this is not a case in which anybody is deciding for a church who their ministers can be." He points out that all of Perich's duties, including her religious duties, can be and are performed by teachers who are not "called," or even Lutheran.
"The duties that she's performing are not those that the church or the school had reserved to people with any particular religious status," Dellinger argues.
Laycock, representing the school, says that is simplistic. "We're not saying that this is a majority of her job," he says. Rather, "it is a majority of the religious instruction that these children are going to get, even if they go to Sunday school." In short, he says in his brief, Perich was the "primary instrument for communicating the faith to her students."
Being a called minister, he argues, is much like being a nun, and Perich, he contends, was like a nun who teaches nonreligious subjects in a parochial school. She too had specialized training and an ecclesiastical office in the Lutheran church as a called teacher, a position that he says is just as religiously significant in the Lutheran tradition as being a nun is in the Catholic tradition.
He concedes that means called teachers will not have the right to go to court under the ADA, or other civil rights laws.
Dellinger calls that a "radical proposition" that would exempt from the nation's civil rights laws hundreds of thousands of teachers and administrators, and potentially millions of employees who work not just for schools but for other organizations with religious affiliations.
Taken to its logical conclusion, Dellinger contends, it would mean that a religious organization could bar its employees from reporting to civil authorities that children are being sexually abused, or that health and safety violations are taking place. "A religious organization has no such constitutional entitlement to become a law unto itself," he argues.
A decision in the case is expected later in the term.