Religious schools need freedom to hire and retain staff that support organizational mission

Written by William C. Duncan

April 6, 2023

Could a PETA spokesperson also host a podcast about how to smoke meat? While that person has a right to free speech, most would recognize that the organization cannot effectively send its message if someone who represents that organization publicly disagrees or exemplifies a competing set of beliefs. Our commitment to the First Amendment principle of free speech requires that we allow organizations to choose their messages and their representatives even if we disagree with that message or would prefer other representatives.

An organization dedicated to promoting an ideal will want not only to have its representatives express that ideal but to model it. In fact, we recognize that the example of adherence to the ideal is often more powerful than mere words.

This is certainly true in the school context. At the recent FREE Forum, co-sponsored by Sutherland Institute and the American Enterprise Institute, Kathleen Porter-Magee of Partnership Schools in New York City explained while discussing a study on character education:

The strongest predictor of . . . what children will do after they graduate is not what the adults in the schools or in their lives told them to do or said, it’s how the adults in their lives lived. So, from a school perspective what it taught in class is the importance of living our values in our school communities every day. I can’t say “you must do this,” I must live that. . . . One of the reasons that I think school choice, and particularly keeping Catholic schools truly private, is so important is because as private institutions we have the ability to live out our values in our school communities in a way that I think is not just important practically but actually has an impact on kids.

Given this, it should not be surprising that a number of recent religious freedom cases have arisen in the private school context:

  • A teacher at a religious school in Michigan, Hosanna-Tabor Evangelical Lutheran Church and School, who was also a commissioned minister filed suit against the school when she lost her job. She argued the school was discriminating against her based on a disability. The school cited her adversarial relationship with the school as the real reason for her firing.
  • A teacher at a Los Angeles Catholic school, Our Lady of Guadalupe School, who taught religion, prayed with students and prepared them to participate in the Mass, sued the school alleging age discrimination after her contract was not renewed. The school said its decision was based on performance.
  • A teacher at another L.A. school, St. James School, similarly challenged the school’s decision not to renew her contract, arguing it was based on disability discrimination. Among her responsibilities was teaching and worshipping with students. The school denied discriminatory motives, alleging that classroom performance was behind its decision.
  • A teacher at a religious school in Colorado, Faith Bible Chapel International, sued the school when he was fired after a presentation on racism that the school determined was at odds with the religious teachings essential to its mission. This case is now before the U.S. Supreme Court which is deciding whether to hear it.

The ability to select the individuals who will teach and represent the school’s mission is an existential issue for religious schools. It is often not adequate for a teacher or other religious representative of the school to not criticize or even to grudgingly teach the message. The success of the school’s religious mission depends on employees, particularly teachers and those with other religious responsibilities, who try to exemplify and promote the mission of the school.

The U.S. Supreme Court has made clear the government does not have a role in assessing whether religious organizations such as schools must employ specific individuals when those individuals are charged with promulgating the organization’s message and exemplifying its principles.

This can be challenging at times. It is disconcerting to learn of someone losing their job, even if that change is the result of a disagreement about fundamental elements of the work. Religious schools surely would rather not let go an employee if that can be avoided. In fact, working to overcome differences is a religious belief of most or all of these schools.

More fundamental to the very nature and purpose of the school, though, is what the children entrusted to their care learn. That requires dedication, even if sometimes imperfect, to the school’s religious mission. If an employee can openly disregard that mission or if government officials can second-guess the importance of the mission to the school or whether a particular employee’s messages or conduct advance that mission, the very purpose of the school could be compromised.

This impacts the school community, students, and the parents who have chosen the school because of its religious message and its potential impact on their child. Like our commitment to the free speech protected by the First Amendment, our commitment to the free exercise clause should be strong enough to allow religious schools to choose what messages they will endorse and teach and their freedom to decide who they will employ to do so.

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