The Volokh Conspiracy

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Free Speech

May School Choice Programs Restrict Religious Schools' Ability to Select Teachers Based on Religion, Sex, Etc.?


In Hosanna-Tabor v. EEOC (2012), the Supreme Court unanimously held that religious institutions have the constitutional right to freedom in selecting their clergy and religious teachers, notwithstanding federal or state antidiscrimination law. In Our Lady of Guadalupe School v. Morrisey-Berru (2020), the Court held (by a 7-2 vote) that this principle applies broadly as to all teachers whose job includes, even in part, "educating their students in the faith."

But does this also apply when the institution gets government funds, to which a nondiscrimination condition is attached? The question is complex, because analogies to other constitutional rules yield mixed results.

For instance, in the era when the Court recognized a constitutional right to abortion, it nonetheless upheld rules that say that abortions can't be performed on government property (even when they are done by a private physician who has privileges at the hospital). Likewise, Christian Legal Society v. Martinez (2010) upheld a rule that required student groups at public universities, as a condition of access to certain public funding and other public resources, accept all applicants as members or officers.

On the other hand, some of the Court's leading Free Exercise Clause cases, such as Sherbert v. Verner (1963), held that religious freedom rights do apply within government benefits programs (such as unemployment compensation systems). And  the Court has held that the First Amendment bars public universities and other government entities that create generally accessible benefit programs from excluding based on the viewpoints that participants seek to express.

Friday's decision by Judge Daniel D. Domenico (D. Colo.) in Darren Patterson Christian Academy v. Roy addresses this issue, and says that religious schools likely do maintain this right to select their religious teachers, even when they are funded by a generally available school choice program:

This academic year Colorado implemented its new Universal Preschool Program—a program that allows certain preschoolers to attend the preschool of their choice for free. Plaintiff is a private, Christian preschool currently participating in the program.

As a condition of participating in the program, schools like Plaintiff must agree not to discriminate on the basis of a number of statuses, including religion, gender, sexual orientation, and gender identity. Pursuant to its faith, however, Plaintiff refuses to hire employees who do not share its faith …. Plaintiff seeks a preliminary injunction allowing it to continue participating in the program while abiding by its internal policies regarding hiring ….

Here, Defendants have made no argument on the substance of any of Plaintiff's First Amendment claims. In their response to the preliminary-injunction motion, Defendants' arguments regarding this first injunction factor exclusively focused on standing and ripeness. The same is true in their reply. While Defendants assert that they "absolutely do not concede the merits and are prepared to defend the merits should this case move forward," they've provided no argument on the merits for purposes of the preliminary injunction motion. Thus, it seems, Defendants have effectively stipulated to Plaintiff's characterization of the law for purposes of the preliminary injunction motion for "merits" issues other than ripeness and mootness.

In any event, Plaintiff has met its burden not only to show standing and ripeness but also a likelihood of success on the substance of its First Amendment claims …. Plaintiff is likely to succeed on its claims arising from the First Amendment religion clauses.

First, the Department's non-discrimination policy likely violates Plaintiff's rights by interfering with the school's selection of key employees in accordance with its religious convictions under the "ministerial exception." See Our Lady of Guadalupe Sch. v. Morrissey-Berru (2020). "Among other things, the Religion Clauses protect the right of churches and other religious institutions to decide matters 'of faith and doctrine' without government intrusion."

One such area protected from government intrusion is the selection, employment, or dismissal of those "entrusted with the responsibility of 'transmitting the [Christian] faith to the next generation.'" The Supreme Court has twice applied this ministerial exception in the context of teachers at religious schools. In those cases, the Court held 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 the mission" of a religious school. Those responsibilities, therefore, tend to render an employee a "minister" for purposes of this exception to anti-discrimination laws.

Plaintiff's teachers, like the teachers in Our Lady and Hosanna-Tabor, are likely to qualify as religious ministers. Its teachers are "committed to mentoring and discipling students in the Christian faith" and "expected to integrate Biblical principles I the study of all subjects in all reason the curriculum and in all co-curricular activities." Defendants make no argument challenging this characterization. Plaintiff explicitly bases its hiring decisions on religious criteria and cannot put aside those criteria without abandoning its religious beliefs. Requiring the school to hire its teachers or other ministers without discriminating on the basis of religion, therefore, would likely violate Plaintiff's free exercise of religion, as protected by the ministerial exception.

Second, Plaintiff has the right to expressive association which the State's hiring rules likely violate. The First Amendment protects the rights of a group to "associate with others in pursuit of … educational [and] religious … ends." The freedom to associate with others also includes the freedom not to associate with others if doing so would compromise the associating group's expression of beliefs….  Plaintiff here argues that, as an "evangelistic school," it is an expressive organization. Plaintiff further argues that the Department's non-discrimination hiring policies would require that the school hire those who disagree with its religious expression and evangelistic mission. This is likely a significant burden on the Plaintiff's religious expression and triggers strict scrutiny. See Slattery v. Hochul (2nd Cir. 2023) (holding that state law disallowing hiring discrimination based on employee's "reproductive health decision making" violated anti-abortion non-profit's free association right to hire only anti-abortion employees).

Third, the Department's rules also force Plaintiff to choose between adhering to religious beliefs and risking exclusion from the program or complying with the Department's rules. In the specific context of excluding religious schools from participation in educational benefits programs, the Supreme Court has thrice held that a state may not exclude religious observers from receiving otherwise available educational  funding because of a school's religious status or practice. Carson v. Makin (2022) ("By condition[ing] the availability of benefits in that manner, Maine's tuition assistance program … effectively penalizes the free exercise of religion."); Espinoza v. Montana Department of Revenue (2020) ("A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious."); Trinity Lutheran Church of Columbia, Inc. v. Comer (2017) ("To condition the availability of benefits upon a recipient's willingness to surrender his religiously impelled status effectively penalizes the free exercise of his constitutional liberties.").

Plaintiff seeks to hire only coreligionists …. [This policy violates] the Department's non-discrimination standards for participating preschools. Like in Trinity Lutheran, Plaintiff asserts its "right to participate in a government benefit program without have to disavow its religious character." But the Department's policies infringe on that right, which forces Plaintiff into the unconstitutional choice of abandoning religiously motivated practices or foregoing otherwise available public funding. The First Amendment forbids imposing such a choice.

Fourth, the State's rules are likely not neutral and generally applicable. They allow both categorical and individualized exemptions that would undermine the government asserted interests, and thereby trigger strict scrutiny. See Fulton v. City of Philadelphia (2021) ("A law is not generally applicable if it invite[s] the government to consider the particular reasons for a person's conduct by providing a mechanism for individualized exemptions.") (internal quotation marks omitted)….

[T]he Department allows categorical exemptions from its admission policies for preschools operated by houses of worship that seek to reserve seats for members of the school's "congregation." Because such houses of worship can impose requirements on their congregations—including, presumably, the same sorts of rules that Darren Patterson imposes on its staff and students—"congregations" may be able to exempt themselves from the anti-discrimination rules in this way. There appears to be some disagreement about whether Plaintiff can qualify as a "congregation" under this exemption process as discussed at the hearing, but so far the Department has refused to provide Plaintiff any exemptions for its policies.

The statute itself empowers the Department to grant exemptions from the quality standards (including standards pertaining to non-discrimination) if doing so is "necessary to ensure the availability of a mixed delivery system within a community." Such a broad grant of discretion to provide exemptions, standing alone, may be sufficient to render the anti-discrimination laws no longer generally applicable. See Fulton (holding that law granting "sole discretion" to city commissioner to exempt antidiscrimination laws was not generally applicable even where city never granted an exemption).

Here, seemingly in contrast with Fulton, the Department has provided exemptions to others—or expressed a willingness to do so—while denying an exemption for Plaintiff. The fact that the state recognizes conditions could exist in which it would exempt a preschool from the quality standards, but does not consider Plaintiff's religious convictions sufficiently compelling to do so here, triggers strict scrutiny. Tandon v. Newsom (2021) ("government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise").

In light of these unrefuted arguments, the Department's policies must survive strict scrutiny. The policies fail that exacting standard. "[H]istorically, strict scrutiny requires the State to further 'interests of the highest order' by means 'narrowly tailored in pursuit of those interests.'" At this stage, the state has not really attempted to proffer a compelling interest of the highest order, nor has it shown that it narrowly tailored its policies to pursue any interest.

Defendants argue, in the context of a separate preliminary-injunction factor, that "Colorado has a compelling interest in eliminating discrimination in hiring as well as in educational access." Even assuming that this is true, such an interest is not "of the highest order" such that the anti-discrimination rules can survive.

In Fulton, the Supreme Court analyzed a city non-discrimination policy that excluded a Catholic organization from matching foster children with prospective foster parents. The Court held that the city could not rely on "broadly formulated" interests in equal treatment or maximizing the number of foster parents. The Court asked "not whether the City has a compelling interest in enforcing its non-discrimination policies generally, but whether it has such an interest in denying an exception" to the plaintiff. As in this case, the City of Philadelphia had created a system of individualized exemptions but could provide no compelling reason why it denied the plaintiff's specific request for one. Id. ("The creation of a system of exceptions under the contract undermines the City's contention that its non-discrimination policies can brook no departures.").

Here, the Department has not, and likely cannot, provide an interest sufficiently compelling to justify an infringement on Plaintiff's Free Exercise rights. The laws therefore likely would not survive strict scrutiny, and Plaintiff is likely to succeed on its religion-based First Amendment claims.

Note, though, that the precedential force of this case is likely to be lessened in some measure by the state's decision not to raise any substantive First Amendment arguments (see here and here).

The decision also concludes that the schools are entitled to an exemption from the state's rules related to use of students' preferred pronouns; I discuss that in a separate post.

David Andrew Cortman, Jacob Ethan Reed, Jeremiah Galus, and Ryan Jeffrey Tucker (Alliance Defending Freedom) represent plaintiff.