ave_maria

In an ongoing wrongful termination lawsuit in Washtenaw County Circuit Court, Catholic philanthropist Tom Monaghan and the Ave Maria School of Law (AMSL) that he founded are claiming that the school is a purely religious organization and therefore exempt from court scrutiny of its hiring and firing decisions.

The suit was filed by Stephen Safranek, a tenured professor at AMSL who taught primarily contract law. Safranek was fired by the school in 2007 for reporting various violations to the Michigan Attorney General and to the American Bar Association. He and two other fired professors from the school filed suit for wrongful termination later that year (see the legal complaint here).

AMSL is now asking the court to grant summary judgment in the case in their favor by invoking what the courts call the “ministerial exception” based upon the “ecclesiastical abstention doctrine.” This is a doctrine which states that, because of the First Amendment requirement of separation of church and state, the government cannot interfere with the internal workings of churches or some other types of religious organizations.

The brief (PDF) filed last week with the court by Ave Maria argues:

The employment-related tort claims…therefore give rise to application of the “ministerial exception,” which has its roots in the Establishment and Free Exercise of religion clauses of the First Amendment to the United States Constitution (as extended to the states by the Fourteenth Amendment). The “ministerial exception” “bars any inquiry into a religious institution’s underlying motivation for a contested employment decision.” See Weishuhn v Catholic Diocese of Lansing.

The brief argues that professors at AMSL are “ministerial employees” akin to priests and therefore the court cannot interfere in decisions to hire or fire them. Safranek’s reply brief (PDF) on this motion argues that the law school’s argument conflicts with statements made by its leaders:

The pending motion takes a position so untenable it is difficult to absorb on one reading. In the motion, Defendants argue that the First Amendment shields them from liability because they are a religious body and Plaintiff Stephen Safranek was their spiritual guide. But invocation of religious beliefs is only a convenient new development in this employment dispute. In thousands of pages of depositions, tens of thousands of pages of documents exchanged, and half a dozen sets of interrogatories, no has ever asserted that Safranek was a “ministerial” employee, or that his termination had anything whatsoever to do with ecclesiastic matters. Nor has Ave Maria School of Law (AMSL) ever taken the position that Safranek, a tenured contracts professor, was the type of employee whose employment was subject to or in any way part of Church discipline or governance. In fact, founder and financier of AMSL, Tom Monaghan, testified that AMSL was always intended to be “independent” of Church governance. And Dean Bernard Dobranski has publicly stated that AMSL is “not a seminary; we’re a law school… we never lose sight of the fact that our primary responsibility is to train people to be good lawyers.”

Beyond this, Dobranski represented to the American Bar Association (ABA) and the public at large that AMSL is open to all faiths; AMSL intends to abide by laws banning religious discrimination; AMSL agrees that tenure applies to its professors as in all other accredited law schools; AMSL does not require its faculty to be Catholic; and AMSL understands and expects that its professors will not only hold beliefs different from the Catholic Church, but will express those beliefs as part of their scholarship. Finally, AMSL’s Faculty Handbook — which Dean Dobranski fully expects faculty to rely on — specifically creates just cause only termination and guarantees that ABA accreditation rules will apply, including tenure rules. If the Court is to grant this motion, it must find that all of this is a giant sham.

Safranek’s brief argues that the subject he taught, contract law, is “a secular subject” that is “utterly unrelated to Catholic thought” and that he “never gave his students religious instruction.” The brief also argues that AMSL has made explicit representations to the American Bar Association that clearly conflict with their claim now to be a religious organization exempt from the very laws they agreed to comply to when seeking ABA accreditation.

The ABA prohibits discrimination in employment, including discrimination on the basis of religion. The ABA likewise requires accredited law schools to guarantee tenure (good cause only termination) and academic freedom (e.g., freedom of thought, expression). Notably, AMSL agreed to honor these standards very intentionally. Early in the process of forming AMSL, Monaghan made very clear that he did not support tenure, and he requested that there would be no tenure guarantee at AMSL. Dobranski insisted, “it was not possible. The ABA in effect demanded that schools have tenure and (I told Monaghan) that we would have tenure. And he said, ‘Well, okay. If we have to, we’ll have it.’ And we did.”

Since then, AMSL has directly represented to the ABA and its Faculty that it “does not discriminate on any basis proscribed by federal, state or local law” and is “open to persons of all religious faiths who respect the goals of the Law School.” To gain ABA accreditation, AMSL also represented to the ABA that there is “no rule or practice at the law school…denying employment of otherwise qualified faculty or staff because of…religion.” Finally, and perhaps most directly contrary to the positions Defendants take in this motion, Dobranski represented to the ABA that AMSL “is committed to academic freedom and understands that the faculty members may have views on various issues that differ from those of the Catholic Church.”

In a discussion of this case on the ReligionLaw listserv, an email list of legal scholars with a specialty in church/state law, the prevailing opinion was that AMSL had little chance of winning that argument. Douglas Laycock, a highly respected First Amendment scholar from the University of Michigan Law School, cited several court rulings where this argument had been rejected by the courts, including EEOC v. Mississippi College.

In that case, a discrimination suit was filed against a college affiliated with the Southern Baptist Convention. The appeals court ruled that the ministerial exception could not insulate the college from application of federal anti-discrimination laws because “the College is not a church and its faculty members are not ministers.”

“Professors of theology and seminary faculty are within the ministerial exception,” Laycock wrote. “Faculty in secular subjects have been held outside it, and it is hard to see how law professors would be any different.”

Robert Tuttle of the George Washington University Law School agreed, writing, “There are a number of cases involving religious high schools that have made similar claims about teachers of generally secular subjects — arguing that all teachers in the school are expected to infuse religious values into all subjects — but as far as I know those schools have uniformly lost.”

Washtenaw County Circuit Court Judge Melinda Morris will rule on this motion for summary judgment within 30 days.