Expanding Role and Dwindling Protection for Private Religious School Teachers During the Pandemic: Rethinking the Ministerial Exception After 'Morrissey-Berru' [open pdf - 0B]
From the Document: "The pandemic has created a class of private school teachers who are not leaders and decision-makers when it comes to how the school handles the pandemic, but who are, according to the Supreme Court, 'ministers' when it comes to fulfilling the schools' religious educational mission. These decisions affect the teachers directly and, arguably, impact the spiritual enrichment of students. This Essay explores this incongruity: courts will deem a private school secular-subjects teacher with no say in fashioning pandemic teaching policies (based on the academic and spiritual needs of students) a minister under the ministerial exception. [...] This Essay briefly discusses teachers' role during the pandemic and then looks at the Court's decision in 'Our Lady of Guadalupe School v. Morrissey-Berru' and how it curtails these teachers' legal protection against workplace discrimination. This Essay offers a description of the ministerial exception as it relates to teachers and proposes two solutions for remedying the current challenges with the ministerial exception test. Ultimately, this Essay argues the exception should apply only to the religious institutions' decision-makers, i.e., those who decide how to apply religious doctrine, which religious ceremonies should occur, which music should accompany ceremonies to fulfill religious mission, and, in religious schools, which curriculum should be taught to fulfill the schools' religious mission. The question becomes with whom does 'the buck stop' when it comes to religious missions of the organization and matters of religious ceremony and faith. The exception should apply to only those employees who are religious decision-makers."
2021 Maxine Goodman
UC Davis Law Review: https://lawreview.law.ucdavis.edu/
UC Davis Law Review Online (2021), v.54, p. 61-88