The Application of Labor Relations and Discrimination Statutes to Lay Teachers at Religious Schools: The Establishment Clause and the Pretext Inquiry

Abstract:     
The most significant First Amendment Establishment Clause concerns related to the application of labor relations and discrimination statutes to lay teachers at religious schools arise when a religious school raises a religious defense to a charge of anti-union or discriminatory conduct. Once the defense is raised, the government must determine if it is pretextual. This inquiry into pretext has been found to raise a danger of excessive entanglement.

The courts’ decisions addressing this Establishment Clause concern are inconsistent. This article sets out an accommodation that reconciles the case law and provides a bright line rule that protects both lay teachers and the religious integrity of the schools. The article suggests separating the behavioral and doctrinal aspects of the inquiry into pretext, and prohibiting inquiry into doctrine while allowing inquiry into whether the school has behaved in a manner consistent with its religious defense. The article fully explains both doctrinal and behavioral inquiries into pretext and shows how separating these two inquiries will protect religious schools.

Number of Pages in PDF File: 46

Keywords: First Amendment, Establishment Clause, excessive entanglement, labor relations, discrimination, lay teachers, religious schools

Accepted Paper Series