Conservative
Type 40
A regional official of the National Labor Relations Board has ruled that Saint Xavier University, a Roman Catholic institution in Illinois, is not sufficiently religious to fall outside that agency's jurisdiction, and has cleared the way for the institution's roughly 240 adjunct faculty members to hold a unionization vote.
In a ruling issued last week, Joseph A. Barker, the director of the NLRB's regional office for the Chicago area, held that Saint Xavier "is not a church-operated institution" under the terms of a key 1979 U.S. Supreme Court decision that defined what characteristics make an institution religious enough that any federal oversight of its labor relations would violate the First Amendment's clauses separating church and state.In both the Manhattan College ruling and last week's decision involving Saint Xavier University, which operates a main campus in Chicago and a satellite campus in Orland Park, Ill., the regional directors based their determinations mainly on the Supreme Court's 1979 ruling in National Labor Relations Board v. Catholic Bishop of Chicago. In that decision, the Supreme Court held that the NLRB cannot exercise jurisdiction over parochial schools that are focused on the propagation of religious faith because doing so would cause it to run afoul of the First Amendment's clauses barring the government from establishing religion or prohibiting its free exercise. That decision, which the NLRB applies to colleges on a case-by-case basis, opened the door for the NLRB to develop a test for determining whether educational institutions are of a "substantial religious character."
Labor Board Rejects Religious Exemption for Saint Xavier U. and Says Adjuncts Can Unionize - Faculty - The Chronicle of Higher Education
Makes sense to me.
Does this then?
The schools challenged the Board's orders in petitions to the Court of Appeals for the Seventh Circuit. That court denied enforcement of the Board's orders. 559 F.2d 1112 (1977). [Footnote 8] The court considered the Board's actions in relation to its discretion in choosing to extend its jurisdiction only to religiously affiliated schools that were not "completely religious." It concluded that the Board had not properly exercised its discretion, because the Board's distinction between "completely religious" and "merely religiously associated" failed to provide a workable guide for the exercise of discretion:
"We find the standard itself to be a simplistic black or white, purported rule containing no borderline demarcation of where 'completely religious' takes over or, on the other hand, ceases. In our opinion, the dichotomous 'completely religious -- merely religiously associated' standard provides no workable guide to the exercise of discretion. The determination that an institution is so completely a religious entity as to exclude any viable secular components obviously implicates very sensitive questions of faith and tradition. See, e.g., [ 406 U. S. ] Yoder, . . . 406 U. S. 205 [(1972)]."
Id. at 1118.
The Court of Appeals recognized that the rejection of the Board's policy as to church-operated schools meant that the Board would extend its jurisdiction to all church-operated
Page 440 U. S. 496
schools. The court therefore turned to the question of whether the Board could exercise that jurisdiction, consistent with constitutional limitations. It concluded that both the Free Exercise Clause and the Establishment Clause of the First Amendment foreclosed the Board's jurisdiction. It reasoned that, from the initial act of certifying a union as the bargaining agent for lay teachers, the Board's action would impinge upon the freedom of church authorities to shape and direct teaching in accord with the requirements of their religion. It analyzed the Board's action in this way:
"At some point, factual inquiry by courts or agencies into such matters [separating secular from religious training] would almost necessarily raise First Amendment problems. If history demonstrates, as it does, that Roman Catholics founded an alternative school system for essentially religious reasons and continued to maintain them as an 'integral part of the religious mission of the Catholic Church,' Lemon \[v. Kurtzman, 403 U. S. 602], 403 U. S. 616 [(1971)], courts and agencies would be hard-pressed to take official or judicial notice that these purposes were undermined or eviscerated by the determination to offer such secular subjects as mathematics, physics, chemistry, and English literature."