By Bruce Ledewitz
Adjunct instructors at Manhattan College have voted on unionization but the ballots have not been counted because the Catholic college is challenging the application of federal labor laws to it as a potential violation of religious liberty under the federal constitution. While the case is undeniably important in light of efforts in many states to restrict collective bargaining rights of public and even private workers, legal analysis of the potential issues is tangled and complicated.
First, we should be clear as to what is not at stake. The application of federal labor law to faculty at religiously oriented universities can no longer seriously be considered a violation of the free exercise clause of the federal constitution. The reason for this is in 1990, in a case that has proven highly controversial, the United States Supreme Court held that free exercise claims cannot be raised against generally applicable laws. The majority opinion in the case, Employment Division v. Smith, was written by Justice Antonin Scalia. Federal labor laws are just such generally applicable laws and under Smith may certainly be applied to religious colleges.
What is also not at stake is whether, under principles of social justice, a Catholic college ought to recognize the collective bargaining rights of workers. If as a matter of law, federal labor law does not apply to the college, there is almost no practical way for the college to decide on its own that a union should be recognized. The legal issue cannot readily be ignored. Eventually the susceptibility of the college to federal labor law would have to be resolved.
There are three legal aspects to this case and other labor cases involving religiously oriented colleges. First, the prevailing Supreme Court precedent in this area, NLRB v. Catholic Bishop of Chicago, held that because the National Labor Relations Board (NLRB) jurisdiction over Catholic secondary schools posed a significant risk of violating the Church’s religious liberty, the Court would assume that Congress did not intend federal labor law to reach religious schools. Although the case was decided in 1979, before Smith weakened the protections of the free exercise clause, there is no question that the case is still binding law in interpreting the National Labor Relations Act.
Second, although Smith did weaken the protections of the free exercise clause, Congress enacted legislation, the Religious Freedom Restoration Act of 1993, that restored much of the prior protection for religious institutions. RFRA cannot constitutionally be applied to states and local governments, but it still binds agencies of the federal government, such as the NLRB. Thus, the NLRB must be wary of intruding on the religious rights of religiously-affiliated colleges, even though these colleges have little constitutional protection.
Finally, government discrimination among religious institutions is clearly constitutionally sensitive. Thus insofar as the NLRB takes the position that some religiously-oriented colleges are insufficiently religious to avoid NLRB jurisdiction, its action will draw heightened judicial scrutiny, especially if the agency’s judgment seems subjective or if the decision requires agency inquiry into the details of a school’s religious mission.
Applying all these factors at a distance is of course impossible. But just reading press accounts, it seems that the NLRB decision upholding its jurisdiction over Manhattan College has involved consideration of internal factors that the courts may not permit.
One test used in this field to determine whether the NLRB has jurisdiction in a case involving religion is that adopted by the D.C. Circuit in 2002 in University of Great Falls v. NLRB. In that case, the Circuit Court concluded that the NLRB should not be looking at internal school matters, such as the degree to which a school’s religious mission influences its curriculum or whether the faculty is predominantly Catholic in composition, but should instead apply a more objective three part test: does the institution hold itself out to students, faculty and the community as providing a religious educational environment; is the school a nonprofit organization; and is the school affiliated with a recognized religious organization? Since the latter two factors are obviously satisfied by Manhattan College, the issue of NLRB jurisdiction would rest on whether the college holds itself out as religious.
In his decision upholding NLRB jurisdiction over Manhattan College, the acting NLRB regional director noted that while the NLRB has not adopted the Great Falls test, Manhattan College would fail the test anyway because in a number of instances it has not held itself out as a religious organization. While Great Falls is not literally binding outside the D.C. Circuit, other courts are likely to apply a similar kind of test emphasizing objective factors in order to avoid a government investigation into the pervasiveness of an institution’s religious mission.
I cannot predict how the courts will rule in the Manhattan case. I can say, however, that whether a school holds itself out as religious is not the same as whether it is in fact particularly religious. If the NLRB was looking at the latter issue, even in part, the courts may well reverse its assertion of jurisdiction over Manhattan College.
We are a long way from what the issues ought to be: justice for workers and the proper relationship of government and religious organizations. To me it seems that the proper rule should be that religiously-oriented colleges are just as subject to federal labor law as they are to health and safety rules. Nevertheless, that is not the current legal context. In that context, it is far from clear that adjunct faculty at Manhattan College have the right to organize.
Bruce Ledewitz is Professor of Law at Duquesne University School of Law and author of the forthcoming book Church, State, and the Crisis in American Secularism. Ledewitz is a recognized expert in the fields of constitutional law and criminal law.
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