Last November, the Mattone Center co-hosted a regional conference of the International Consortium for Law and Religion Studies. The conference, “Education, Religious Freedom, and State Neutrality,” brought together scholars and jurists from the United States and Europe to compare approaches to these subjects in their respective countries. Participants were invited to submit short reflections. Alessandra Lazzarini (University of Padua) submitted the following reflection, which we are delighted to publish here.
- Introduction
The contention over the dismissal of faculty members in U.S. religiously-affiliated universities suggest that the scholarship and the case law on academic and religious freedom do not seem to provide a roadmap to reconcile the claim of academic freedom of professors with the autonomy of religious institutions. Unlike the strong protection of religious freedom offered by the First Amendment, academic freedom is the offspring of the decades-long efforts of the AAUP (American Association of University Professors) and of the ambivalent case law of the Supreme Court of the United States.
Academic freedom has two dimensions: individual academic freedom, which is the freedom of the individual faculty members; and institutional academic freedom, which is the freedom of the institution to pursue its mission and to be free from outside control. Thus, both the university and its professors possess (at least in theory) academic freedom as well as religious freedom; sometimes these protections overlap or align, but other times they clash. For example, in 2016 Wheaton College dismissed Professor Hawkins because she said publicly “I stand in religious solidarity with Muslims because they […] are people of the Book” and wore a headscarf as a symbol of solidarity. While this statement was perceived by many as inclusive, Wheaton College regarded it as raising significant theological concerns and as inconsistent with, if not contrary to, the institution’s mission and vision. Professor Hawkins and the College later reached an agreement outside of court.
In this short piece, I consider what happens when such disputes are actually litigated by reflecting on the tensions between the institutional academic freedom through which religious universities preserve their mission and the individual academic freedom of professors in U.S. dismissal cases, with a focus on the so called “ministerial exception” doctrine.
- Individual and institutional academic freedom
The most authoritative and consequential statement on academic freedom in the United States issued by a private institution is the 1940 Statement on Academic Freedom of the AAUP. The Statement does not mention the institutional dimension and reports the three principal aspects of the individual academic freedom of faculty members: “full freedom in research and in the publication of the results,” “freedom in the classroom in discussing their subject,” and freedom from “institutional censorship or discipline» when they «speak or write as citizens.” The 1940 Statement, however, did not require religious institutions to adopt this conception of academic freedom. In fact, the Statement simply reads: “Limitations of academic freedom because of religious or other aims of the institution should be clearly stated in writing at the time of the appointment.” Hence, the “Limitations Clause” allowed religious colleges and universities to implement autonomous principles and policies, provided that such restrictions were explicitly disclosed in advance.
However, subsequent attempts by the AAUP to refine this position generated more tensions between individual and institutional academic freedom. In 1970 the AAUP added a footnote to the Limitations Clause of the 1940 Statement: “Most church-related institutions no longer need or desire the departure from the principle of academic freedom implied in the 1940 Statement, and we do not now endorse such a departure.” From this moment on, the distance between the position of the AAUP and the right of religious universities to uphold their faith has been widening. In 1988 a subcommittee of the AAUP stated that “an institution has no ‘right’ under the 1940 Statement simultaneously to invoke the Limitations Clause and to claim that it is an institution of learning to be classed with institutions that impose no such restriction.” Hence, the Limitations Clause works as a switch: universities relying on it lose the status of member of the higher education community. Furthermore, through the decades the AAUP has conducted numerous investigations of religious colleges and universities to ensure respect for the principles of academic freedom, and these institutions continue to be included in the “censure list,” often with no regard for the religious institution’s need to preserve its own identity. In a few words, the AAUP has progressively espoused an “all or nothing” view that sees individual and institutional academic freedom as alternatives. This view has exacerbated political controversies and criticism whenever a professor is dismissed by a religious higher education institution, as the AAUP has constantly sided with the former without advocating any real protection to the latter.
The Supreme Court first recognized the principle of individual academic freedom during the McCarthy era when it affirmed that it “is a special concern of the First Amendment,” thus providing some protection to communist professors from unjustified dismissal and pressures. The Supreme Court’s decisions in the field have grounded academic freedom in freedom of expression, but they have been more rhetorical than practical, as they did have not provided a clear understanding of what this right actually guarantees to professors. Furthermore, because of the “state action” doctrine, the First Amendment can limit the internal authority of a university only if its administrators can be characterized as exercising state powers. Therefore, only faculty members of state universities enjoy substantial and procedural constitutional rights against their institutions. Since the 60% of higher education institutions in the United States is private and one in five U.S. colleges has ties to a religious organization, the First Amendment’s jurisprudence cannot afford a real protection for faculty members of private institutions, particularly in cases of dismissal from denominational universities.
The Supreme Court has never pivoted around the concept of individual academic freedom. The Court has instead developed an institutional model of academic freedom. In the Court’s case law, institutional academic freedom guarantees “the exclusion of governmental intervention in the intellectual life of a university” and includes a university’s “four essential freedoms”: ‘to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.'” Furthermore, the lower Courts have repeatedly echoed this approach and affirmed that the institutional dimension should prevail and that the individual one has never been endorsed by the Supreme Court: “The Supreme Court […] appears to have recognized only an institutional right of self-governance in academic affairs. […] It was not focusing on the individual rights of teachers.” Thus, the existing jurisprudence on academic freedom offers no meaningful protection in cases of dismissal, especially since it does not shield even faculty members at public universities. In order to warrant some protection to academics, the lower Courts have begun to apply the Supreme Court’s jurisprudence on the free speech rights on the workplace of public employees, with ambivalent results.
- The ministerial exception
For the First Amendment, religious organizations, including those of higher education, must be free to pursue their mission. Put differently, through its Free Exercise and Establishment Clauses, the First Amendment guarantees the institutional academic freedom of religious colleges and universities. Yet, the very mechanism that protect this autonomy, i.e. the ministerial exception, overrides the individual academic freedom of professors. Furthermore, this legal doctrine was primarily developed by the Supreme Court in the context of K-12 education, where individual academic freedom is not a recognized value.
The ministerial exception bars an individual from suing for employment-related discrimination if a religious institution employs the individual and deems him or her to be a “minister.” In 2012, the Supreme Court in Hosanna-Tabor Lutheran Church and School v. EEOC recognized for the first time the exception grounding it on both the Establishment and the Free Exercise Clauses. Eight years later, the Court reaffirmed and reinforced its approach in Our Lady of Guadalupe School v. Morrissey-Berru. Both cases concerned teachers dismissed by a religious elementary school and the central legal question was when the teacher could be considered a “minister.” In Hosanna-Tabor the Court did not adopt a “rigid formula” in order to decide if the plaintiff (whom the school considered as a ‘called’ teacher) was a minister. However, it took into account four factors: “(1) she had the title of “minister,” (2) her position had a significant degree of religious training, (3) she held herself out as a minister, and (4) her duties reflected the Church’s message.” The Court stated that because of her status of called teacher, she should be considered a minister and that «by imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According to the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions».
In Our Lady of Guadalupe the Court reasoned that, while they did not have the title of “minister,” the teachers still served as ministers for purposes of the ministerial exception because they carried out certain teaching responsibilities that were within the scope of a “minister” and analogous to those employed by the teacher in Hosanna-Tabor. Furthermore, the Court stressed that “What matters is what an employee does. Implicit in the Hosanna-Tabor decision was a recognition that educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of a private religious school’s mission.”
In the years following Hosanna-Tabor and Our Lady of Guadalupe, lower courts have applied these decisions in numerous dismissal cases involving professors and their religious universities (see some examples here, here, and here). However, the outcomes have been quite divergent, highlighting the difficulty of applying jurisprudence originally developed for the K–12 education system to the context of higher education and the resulting discretion left to the courts. Amid this uncertainty, in 2022 the Supreme Court denied certiorari in Gordon College v. DeWeese-Boyd, a case litigated in the Massachusetts state courts which involved an affiliated religious higher education institution and its professor, who had been denied promotion to full professor. The Massachusetts Supreme Judicial Court stressed that the U.S. Supreme Court in Hosanna-Tabor and Our Lady of Guadalupe adopted a “functional analysis” for determining whether an employee is a minister within the meaning of the exception. And it stated that DeWeese-Boyd “was, first and foremost, a professor of social work. She taught classes on sustainability and general social work practice and oversaw practicums.” Furthermore, unlike the Hosanna-Tabor and Our Lady of Guadalupe cases, DeWeese-Boyd had no obligation to engage in specifically religious duties. Finally, the Court noted that “a faculty member with DeWeese Boyd’s responsibilities at Gordon is significantly different from the ordained ministers or teachers of religion at primary or secondary schools in the cases that have come before the Supreme Court” and it concluded that “the significant expansion of the ministerial exception doctrine requested by Gordon is not dictated nor, do we believe, directed by existing Supreme Court precedent. It is our understanding that the ministerial exception has been carefully circumscribed to avoid any unnecessary conflict with civil law.”
In 2022, the Supreme Court denied certiorari to the aforementioned ruling and, in a statement “Respecting the denial of certiorari”, Justice Alito, joined by Justices Thomas, Kavanaugh, and Barrett, commented on the merits of the case. In this statement the Court described as “troubling and narrow” the vision of religious education developed by the Massachusetts JSC. Furthermore, in the Court’s arguments there is an evident shift from a focus on the minister’s figure to the “autonomy” of the religious institution in defining the content and method of its religious instruction. Quoting Our Lady of Guadalupe the Court stated: “The Religion Clauses of the First Amendment sometimes forbid courts to intervene in employment disputes involving teachers at religious schools who are entrusted with the responsibility of instructing their students in the faith.'” Thus, the Court’s criterion consists in the total deference to the higher education institution.
- Conclusions
The individual academic freedom of professors emerges as an important value in legal scholarship but lacks support in the First Amendment’s jurisprudence. Conversely, the Supreme Court has repeatedly recognized the institutional academic and religious freedom of religious institutions. The AAUP’s emphasis on the individual freedom of faculty members overlooks the institutional perspective, while the ministerial exception’s jurisprudence does not consider the specificities of institutions of higher education. Indeed, if the Court’s reasoning prevails, faculty members at religious institutions would be left without meaningful legal protections. As employees of private institutions, they would not benefit even from the already weak guarantees of academic freedom. Nor could they seek protection under anti-discrimination laws, since the university has unilaterally classified them as “ministers”.
Two significant steps seems to be available to safeguard both individual academic freedom and the institution’s confessional identity. First, the AAUP may reconsider their position and appreciate that the institutional dimension of academic freedom is an essential feature of the First Amendment. Second, courts could diversify the K-12 education system from the higher education context in their decisions. Indeed, college students are no lo longer children. They have the possibility to choose which university to enroll in, and even whether to attend university in the first place. Furthermore, mature students should be engaged in critical thinking. The Supreme Court has long acknowledged these positions in its broader academic freedom jurisprudence (for example here, here, and here); applying them to the dismissal cases in denominational universities could fundamentally transform how courts evaluate the rights of university faculty.