Key Points

  • The ministerial exception protects religious employers from government interference in internal employment disputes involving the selection, supervision, and removal of individuals who play an important role relative to the core mission of the institution.
  • To determine whether the ministerial exception applies in a specific case, courts must assess the nature of the duties or functions performed by the employee for the religious institution.
  • Employees of religious institutions who are designated as performing functions vital to the core mission and that fall within the scope of the ministerial exception cannot pursue an employment claim.
  • The Supreme Court stated: “When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teacher threatens the school’s independence in a way that the First Amendment does not allow.”
  • This exception may apply to other lay employees of religious employers.


Continue Reading SCOTUS Decision Impacts Discrimination Claims Against Religious Employers

On June 30, 2020, the Supreme Court, in Espinoza v. Montana Department of Revenue, ruled that states must allow religious schools to participate in programs that provide scholarships to students attending private schools.

Background of Espinoza Case

The Montana Legislature established a program that granted tax credits to people who donated to organizations that award scholarships for private school tuition. However, the Montana Constitution contains a “no-aid provision” that prohibits government aid to flow to any school “controlled in whole or in part by any church, sect, or denomination.” To reconcile the program with this state constitutional provision, the Montana Department of Revenue (“Department”) promulgated a rule that prohibited families from using tax credit program scholarship money at religious schools. When the Department’s rule prevented three mothers from using the scholarship money at Christian schools, they sued the Department and alleged that the Rule discriminated on the basis of their religious views and the religious nature of the schools they had chosen. The Montana Supreme Court held that the tax credit scholarship program, without the rule, violated Montana’s no-aid provision and invalidated the program entirely.


Continue Reading Supreme Court Rules on Religious Schools Case: Espinoza v. Montana Department of Revenue

Title VI Obligations

School districts have an obligation under Title VI not to discriminate on the basis of race, color or national origin. They cannot intentionally discriminate – that is, for example, treat African-American students differently than white students on the basis of race – or engage in practices that have a disparate impact on

A few weeks ago, the United States District Court of Massachusetts issued its long-awaited decision in the lawsuit brought by Students for Fair Admissions, Inc. (“SFFA”) against Harvard University (“Harvard”).  In a 130-page decision, the court found in favor of Harvard, holding that Harvard’s race-conscious admissions process was lawful.
Continue Reading Harvard Race-Conscious Admissions Process is Lawful

On May 16, 2019, Students for Fair Admissions (SFFA), an anti-affirmative action group, filed yet another lawsuit against the University of Texas at Austin (the University). This is the third such suit SFFA has filed against the University. The new lawsuit alleges the University violates the Equal Rights Amendment of the Texas Constitution by considering race in the admissions process. A similar lawsuit between the parties was dismissed in April due to a lack of standing.

Top Ten Percent Plan

Texas passed a law in 1997 known as the “Top Ten Percent Plan” (TTPP) which requires public state universities to admit all applicants from Texas who rank in the top 10% of their high school graduating class. This law was modified in 2009 for the University to allow for automatic admission of 75% of the incoming freshman class, with the remaining 25% to be chosen based on admissions criteria. Currently, students in the top 6% of their graduating class are eligible for automatic admission at the University in this 75% group.
Continue Reading Affirmative Action Again Under Fire in Admissions

The U.S. Supreme Court has agreed to decide whether a federal law prohibiting employers from discriminating because of sex also protects LGBTQ individuals.

Background of Pending Cases

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against an individual “because of” that individual’s “race, color, religion, sex, or national origin.” In two consolidated cases—Bostock v. Clayton County and Zarda v. Altitude Express—the Court will decide whether Title VII’s ban on “sex” discrimination also prohibits employment discrimination based on an individual’s sexual orientation. And in a third case—R.G. & G.R. Harris Funeral Homes v. EEOC—the Court will decide whether the sex discrimination ban also prohibits discrimination based on an individual’s status as transgender. All three cases will be argued on October 8, 2019.
Continue Reading A Look Ahead: Supreme Court to Review Prohibition of Discrimination Based on Sexual Orientation and Gender Identity

On January 7, 2019, the Supreme Court of the United States denied certiorari in Ferguson-Florissant School District v. Missouri Conference of NAACP.  This case involves the Ferguson-Florissant School District (“FFSD”), a St. Louis area school district created after a 1975 desegregation order required the original FFSD to annex two neighboring school districts “to achieve a meaningful desegregation” within one unified district. United States v. Missouri, 515 F.2d 1365, 1366 (8th Cir. 1975) (en banc).

This lawsuit challenged FFSD’s method of electing school board members. The suit alleged that the at-large, popular vote, system, in which people only vote once for a candidate, was racially biased against African-American candidates.  This lawsuit was originally filed in 2014, when six of the seven school board members were Caucasian, even though about four-fifths of FFSD’s student population was African-American and approximately fifty percent of its voting age population was African-American.
Continue Reading U.S. Supreme Court Declines Review of Ferguson-Florissant School District v. Missouri Conference of NAACP

men women bathroomWithin the last couple of weeks, two decisions were issued that relate to transgender students’ use of facilities in public schools.  In Grimm v. Gloucester County School Board, on remand from the U.S. Supreme Court and the U. S. Court of Appeals for the Fourth Circuit, a federal district court judge denied the Gloucester County school board’s motion to dismiss the plaintiff’s amended complaint. The plaintiff, a transgender student named Gavin Grimm, alleges the school board’s policy prohibiting his use of the bathroom that corresponds to his gender identity, rather than his biological sex, is unconstitutional. Likewise, in Doe v. Boyertown Area School District, the U.S. Court of Appeals for the Third Circuit unanimously rejected an appeal from the denial of a preliminary injunction seeking to block the school district’s policy allowing students to use sex-segregated facilities corresponding to their gender identity.
Continue Reading Update on Federal Courts Addressing Transgender Issues in Schools: Grimm v. Gloucester County School Board and Doe v. Boyertown Area School District

On October 30, 2017, a national, Washington-based civil rights group, the Lawyers’ Committee for Civil Rights Under Law, issued a reminder to state attorneys general that all students, regardless of immigration status, have the constitutional right to enroll in K-12 public schools.
Continue Reading New Initiative to Ensure Access to Education for Immigrant Children

question-marksiStock_000015706066_LargeIt has been over one month since Secretary of Education Betsy DeVos was confirmed by the Senate. Secretary DeVos and the Trump Administration have already had a lot of impact on schools during the past month in office, including withdrawing Obama-Era Transgender Guidance and providing guidance on consolidated state plans related to the Every Student Succeeds Act.

However, one item on Secretary DeVos’ agenda that she has not accomplished—identifying a nominee for the important position of Assistant Secretary of Education for Civil Rights. This person ultimately would head the U.S. Department of Education’s Office for Civil Rights (OCR), including its twelve offices nationwide.
Continue Reading Playing the Waiting Game: Trump Administration Has Yet to Nominate an Assistant Secretary for Civil Rights