• The Most Famous Elementary School Art Teacher in the United States and What She Has to Teach us About Discrimination
  • February 1, 2019 | Author: Susan E. Schorr
  • Law Firm: McLane Middleton, Professional Association - Manchester Office
  • In the United States, certain religious schools are legally permitted to limit or discontinue student enrollment if:

    the atmosphere or conduct within a particular home, the activities of a parent or guardian, or the activities of the student are counter to, or are in opposition to, the biblical lifestyle the school teaches. This includes, but is not limited to contumacious behavior, divisive conduct, and participating in, supporting, or condoning sexual immorality, homosexual activity or bi-sexual activity, promoting such practices, or being unable to support the moral principles of the school. (Lev. 20:13 and Romans 1:27.)

    Parents are also asked to acknowledge “the importance of a family culture based on biblical principles and embrace biblical family values such as a healthy marriage between one man and one woman.”

    These excerpts are from Immanuel Christian School’s Parent Agreement, a document publicly available on the school’s website. According to the New York Times, employees must also pledge to uphold similar beliefs (https://nyti.ms/2My2AeD). It’s the school where Karen Pence, wife of the Vice President of the United States, just accepted a teaching assignment (and where she previously taught for a dozen years). (And for those whom “contumacious” is not part of your vocabulary, it means “rebellious or willfully disobedient”.)

    Karen Pence’s return to teaching has sparked discussion related to LGBTQ rights in places of employment, and we thought it helpful to take this opportunity to remind us that under certain circumstances, religious schools are legally permitted to discriminate based on sexual orientation and gender identity, when secular employers are not. To put this issue in perspective, of the over 33,500 private K-12 schools in the United States, approximately 13% are “conservative Christian” (as of 2013, according to the U.S. Department of Education). While not every conservative Christian school will have its employees sign a pledge disavowing homosexuality and gender fluidity, there are hundreds of others that might do so.

    Religious employers are afforded this right as an exemption to Title VII of the Civil Rights Act, the federal law that bars workplace discrimination. In 2012, in Hosanna-Tabor Evangelical Lutheran Church and School, the U.S. Supreme Court also upheld the so-called “ministerial exception” to employment discrimination laws, permitting religious employers to have broad leeway in determining who is a “minister” and thus who may be hired or fired based on adherence to the organization’s religious-oriented pledge.

    It is worth remembering that in this context, determining whether an employer is “religious” rests on an assessment of whether the employer is one that is controlled or associated with a church, among other factors. For example, the fictitious “St. Academy,” a school founded on Episcopal principles and that still conducts “chapel” services, but that has no formal affiliation with the Episcopal Church, would not be considered a “religious school.” At least under federal law, St. Academy could thus not lawfully screen in (or out) its employees based on their sexual orientation or gender identity.

    The law continues to evolve, with advocacy groups arguing for more inclusivity and some religious organizations continuing to assert their rights under the Establishment Clause of the First Amendment of the United States Constitution. States laws are also implicated, with approximately 20 states now having “religious freedom laws” on the books, often in states which also do not ban discrimination based on gender identity and sexual orientation.

    Karen Pence just wanted to return to teaching art after a hiatus of a few years. But her return to work at Immanuel Christian School garnered so much attention because she chose to teach at a school that reminds us that non-discrimination laws in this country do not protect all citizens equally. And that such distinctions are lawful.