Clerk: SJC 129 88,
Margaret DeWeese-Boyd V Gordon College.
-: Attorney Baxter. Good morning.
-: Good morning, Chief Justice Budd,
and may it please the court.
At issue in this case is whether plaintiff Deweese-Boyd
has an important religious function at Gordon College,
such that the First Amendment's ministerial exception
applies to her employment.
To decide that question,
the court need look no further than her own actions.
She admits that Gordon expected her to participate actively
in the spiritual formation of its students
and to help them apply biblical principles
to their vocations.
When she applied at Gordon,
she touted her seminary training and mission work as
of particular benefit to students,
and promised to provide a distinctly Christian education.
In seeking advancements, she consistently described her work
as integrally Christian, as furthering the kingdom of God,
and as participation in the ministry
of Christian reconciliation.
Student reviews confirmed that she did a great job,
incorporating religion in her lessons
and that she was extremely effective in awakening
and strengthening their Christian faith.
Even now--
-: So, Mister Baxter, these are all good points
and we're going to delve into them. (mumbles)
and even our case with (mumbles).
I'm going to suggest that you don't have a rigid test,
I don't know how they use these words.
It's not rigid test, it's more of a totality
of the circumstance we can get at
whether or not this particular teacher
is entrusted with the responsibility
of instructing students in whatever the faith might be.
And plaintiff's point (mumbles).
And they're going to marshal with that
just the opposite way.
We're not going to take time to go through it.
I'm sure the plaintiff's attorney will.
But just by way of example, teaching sociology,
she's not teaching anything about religious worship
as you do in the three other cases I mentioned.
And there's a long list going the other way.
I'm not going to go through it.
So when we are trying to figure out what it means
whether a teacher is entrusted with responsibility
for instructing students in faith.
And we have to take into account the AG's brief
of religion or is what it's about.
Where do we look to for (mumbles)
How do we grab onto something here?
-: So in Our Lady of Guadalupe,
the court said in those situations you look
to the school's expectations.
Is the school's expectation that they're teaching
in a devotional manner in a way that increases faith
and conveys the faith?
Or are they just being asked to teach about religion?
Now, the court acknowledged that
if they're just teaching about religion,
that's not sufficient to trigger the ministerial exception
but here there's no question
that plaintiff was teaching in a devotional manner.
And she herself acknowledged that.
She acknowledges that 149 through 50 of the appendix
that that was the expectation
that she would be forming students in the faith,
helping them discern how to apply Christian teachings
in their chosen careers.
That she actually did that.
In all of her reviews she described her work
as teaching in a specifically Christian way.
She said that she chose social work over political science
because it was value assertive, not value neutral.
And she could work to reform society in a Christian way.
She said, you can, I could do scholarship
in a Christian way that you can't do
at a secular university.
And then the student reviews of course confirmed
that they perceived her as doing this
in a way that strengthen their faith.
And in those situations, the court has to defer--
-: Can I ask a question about that?
So if she were teaching math,
it's my understanding that you would be arguing even
if she were a math teacher,
you would still be covered by the ministry except,
because she's (mumbles) instance
and even the math (mumbles) am I misreading your brief--
-: So to conc...
-: (mumbles) that people who are teaching math
or (mumbles) engineering (mumbles).
-: Under the ministerial exception,
each case has to be considered on its own merits.
And if the teacher is teaching
a more secular subject like math or engineering,
it's going to be a much harder case
than a subject where there is an inherently value-laden
and as plaintiff herself described it.
Now there may be some religious institutions
where there's a combination of roles
or professors take on voluntarily to teach a religion class.
There may be ways that they do that.
Incorporate religion to their classroom
is going to be a much harder case
in a subject like math or engineering
than in the case of a social worker
who touted her religious experience,
her seminary training, her mission experience.
The group's got court held
that we're a plaintiff touts, their religious experience,
that that's an indication
of the ministerial exception applies.
-: If you have to capture adequate can I asked you,
one of the Amicus briefs from the AAUP
and they're very concerned,
rule number one about academic freedom.
But also this idea that as just this chapter says,
the math teacher could be deemed a minister
under the circumstance.
And you may say now
that everything has to be looked at on their own facts.
But in fact the record in the case shows
that the college is contemplating at this point
that all the teachers are falling
under the ministerial exception
and the teachers are quite concerned about.
So it's not an abstract question.
-: There's no question that Gordon College expects all
of it's employees to play important religious roles
to help students convey,
learn the faith when they interact with them.
But the Gru's court or the I'm sorry,
the Our Lady Court held that,
there has has to be a key role
in conveying the faith, which would be for example,
teaching the principles of the doctrine,
helping students learn how to apply them.
And there has to be evidence that it's actually happening.
So I think it is...
-: What do you mean that there
has to be evidence exactly happening?
-: Well there has to be evidence that the function
actually involves conveying the religious teachings so--
-: But your argument really is
that she's not conveying the religious material
that you want her to convey.
So, so it's not in a sense happening
under that reasoning, isn't it?
-: That's not correct, she was...
That was not ever Gordon's conclusion
that she wasn't doing a good job.
In fact her reviews were consistent
that she was doing the gosh, she wasn't--
-: She wasn't teaching consistent with Gordon's principles.
-: No she was denied promotion.
If you look at the reasons why she denied promotion,
it was because she had not performed any scholar,
she had not published anything since 2008,
and she was cited as not adequate performing
within the...
providing internal institutional service.
-: So then this is not a ministerial,
I mean it's not really ministerial exception case,
just basically a basic academic promotion.
-: Well when an employer-- -: (Cypher) And you really not
in that area, is that true?
-: I disagree Your Honor.
The ministerial exception when
an employee plays a ministerial role
or has an important religious role,
the ministerial exception allows...
Bars the court from interfering
in the employment decision regardless of the reason
for the adverse employment action.
Now the broader religious autonomy doctrine
would apply anytime there's a religious reason,
even if someone did not have a religious role.
But here at-- -: I'm confused (mumbles).
And I didn't really appreciate it because (mumbles).
You are saying he is doing a good job
in her minesterial responsibilities
but you're allowed to terminate her
because she is doing an inadequate job
or academic responsibilities separate
and apart from the ministerial responsibilities (mumbles).
Scott and Eric: That is...
-: Your Honor, that is the ruling in Hosanna-Tabor
and the Our Lady of Guadalupe cases,
where the court said that
if an employee plays an important religious function
at the university, the establishment clause
and the free exercise clause create a structural bar
against court's interference and who they select
and how they supervise those who are performing
these important religious roles.
And the court that those roles especially include,
leading an organization, conducting worship
or conveying the faith.
-: I just want (mumbles)
but were those cases were...
Those cases were the performance
of the ministerial (mumbles),
you're sort of suggesting that not here
that he did a great job on missionary
or the ministerial work
but it wasn't a very good enough stroller to get promoted.
Do we have to treat this a little differently
if the ministerial issue is not even in play,
I mean (mumbles) the US Supreme Court that exact issue?
-: Yes, it did Your Honor,
and Our Lady of Guadalupe specifically said
that there a religious--
-: Could you give me a page reference for that?
Eric: I don't have the page reference on of...
But Our Lady does say that religious reason
for termination is not necessary.
And in both Hosanna-Tabor and Our Lady,
the allegations were non-religious allegations
and the school, the termination decisions were made
not directly for religious reasons.
But when, for example, if you have a pastor,
it doesn't matter what the reason is,
the ministerial exception forbids the court
from interfering in that decision.
And that's true for any religious institution
for what are Our Lady said,
any employer who...
Any employee who plays a key religious role
including serving as a messenger of the faith.
-: But not your math teacher?
-: That's correct Your Honor. Cypher: Okay.
One other question that I'm concerned about with this is,
it's a very tricky issue in the circumstances
of your case of this particular case,
because embedded throughout everything
is our agreements that you signed,
or codes of conduct that were required of everyone.
So there's such a heavy influence here
of obligation on the part of the scriptures,
on the part of the students,
on the part of the staff to hear this.
I don't understand how you make the distinction
of how everybody in this school
is not under the ministerial exception.
-: Well again, it depends
on what they are doing in the classroom.
I mean, there are--
-: But they're supposed to be,
according to what I understood it in the classroom
no matter what you're teaching in integrating their faith.
So why aren't all the teachers then ministers?
-: If a teachers were effective at doing that at a seminary
for example, that you might be teaching a range of subjects
but all of those professors
are there to prepare people to serve in the ministry.
And Gordon College's own documentation says it's there
to prepare students for ministry
for special forms of Christian work.
But it's going to depend on a case by case basis,
much more difficult in a situation
where teaching secular subjects
as opposed to a value-laden subject
by an employee who touted her religious experience.
I'm sorry? -: Yeah I was just thinking
about value-laden, value-laden (mumbles).
Dalila: Is that what you're teaching then,
that it's a value-Laden subject?
-: That is an important distinction of value-laden subject
and an employee who touted her religious experience.
She used that to train students.
The students said that they were in the classroom,
that their faith was strengthening--
-: So for example if I could stop you.
So if there's a Biology teacher doing stem cell research,
that might be a secular subject
as to which there's value-laden implications
and so that person would be a minister?
-: There would have to be evidence
that the professor was there,
was using her teaching to convey the faith
and to form students in the faith.
which is going to be again,
I think much more difficult in the situation
of a Bio-Sciences professor than an a social site
where professor DeWeese-Boyd herself said that,
everything she did was working towards reforming,
applying Christian principles to reform society,
to build the kingdom of God.
She saw it.
Gordon expected her to...
That's important as in Our Lady,
that's important the school's expectations
but also that she embraced those expectations
and specifically brought her religious training
and experience to bear to accomplish that mission.
-: I really didn't find this differentiation
in your brief (mumbles) thought that there was a lot
of reliance on the integration requirement
but for all teachers integrate Christian principles
to scholarship but there is a lot
of reliance on the faculty handbook
where everyone's expected to actively engage
in spiritual formation (mumbles)
biblical and faith away at the (mumbles)
and that would include a math teacher
and this limiting principle that you are articulating now
that seems to fold into some
of the language (mumbles) Our Lady of Guadalupe.
I just didn't see that in your brief.
That's eliminating principle you're articulating.
-: Well I think Your Honor it's inherent in all
of our arguments and especially in the Our Lady
and Hosanna-Tabor citations that the court said
that the actual performance is at the heart
of what defines the ministerial exception.
And so you have to look at the actual performance.
Now it also just point out that the court made
a significant legal error in this case
by applying the wrong legal standard.
It reached out and applied an outdated standard
from Kentucky where it said you had
to have formal liturgical functions.
And in Our Lady of the court specifically rejected that.
-: So to be fair, Our Lady came out after this case, right?
-: That's correct.
But the standard that it applied to us,
and in fact the court because
of the wrong standard it applied if you look
at footnote 16 of its opinion,
it failed to consider evidence of plaintiff's performance,
saying that it was not relevant
at this stage of the proceeding.
That was a mistake of law-- -: (mumbles) both parties agree
to bifurcation,
didn't you both agree to bifurcate this issue?
-: Absolutely agreed to bifurcation,
but the issue of bifurcation was what
was the evidence of ministerial performance.
And her performance was evidence of that.
The court admitted the evidence and it was not hearsay
but he said he found it not helpful
because performance was not relevant
at this stage of the litigation, which was a legal error.
So at the very least the court
has to apply the correct legal standard.
And we think there's enough for Gordon College to win
into that correct legal standard,
but the very least the court should remand
and direct the superior court to consider all
of the relevant evidence of her ministerial status.
(Dalila mumbles)
Your Honor I don't believe that's necessary
for the court to rule in Gordon College's favor
because of the expectations
and plaintiff's embrace of those expectations
and the student reviews which show what she did.
But the court said he wasn't considering all
of that evidence.
And he applied a standard that
is outdated now under Our Lady.
And so at the very least there should be a reconsideration
under the correct legal standard.
-: Can I ask what, is your holding essentially
that you want us to adopt that professor
in an evangelical college teaching a value-laden course
or value-laden subject from a...
It just (mumbles) is covered by the ministerial exception.
I'm just trying to get a sense where the holding is.
Its moving from the brief a little bit
as Justice Lowy pointed out.
So, is the holding (mumbles).
A professor of the evangelical college,
teaching a value-laden course
from a religious perspective covered
by the ministerial exception,
is that what you're asking us to hold?
Because I'm just trying to get a sense
of what you're asking us to rule,
because this thing is hard to pin down.
-: We're asking Your Honor
for even a narrower ruling that this plaintiff
because of her function, her activities in the classroom,
the evidence that students saw her as performing a minister.
That they were strengthened in their faith that they left.
They said that she was an integral part
of a department that incorporated biblical principles
into every classroom, that she was instrumental
in developing a intellectual foundation
of a mature Christian faith.
She embraced that it was consistent
with Gordon's expectations and the evidence shows.
And so we're just asking that this plaintiff
be identified as having an important religious role
that triggers the ministerial exception.
-: I have two more questions if it's okay with the chief.
One is can you address one of the Amicus races,
that there's really a difference
between elementary school or middle school
or even high school teachers and college professors.
Can you address that argument
that we shouldn't extend it that far to college professors?
-: So Our Lady applies
to all religious educational institutions
where the court said that the whole purpose
of a religious educational institution
is to form students in the faith.
It doesn't matter if-- -: But Our Lady was dealing
with high school or was it middle school something.
-: Elementary school. Cypher: Elementary school.
-: So there's certainly a difference
in Our Lady and Hosanna-Tabor.
In both cases the schools were Catholic schools,
so different faith tradition teaching a different age.
So they approached the teaching differently.
Both of those cases, there was teaching
by rote memorization at the catechism
and participation in formal rituals.
At a college level students have already affirmed,
signed a statement of faith
that they share Gordon's conviction
in the evangelical Protestant faith.
And it's a much more sophisticated way of teaching
but this court, a court can't decide that one level...
One religious institutions' way
of teaching is better than another.
That would entangle the court in religious affairs of the...
-: I understand that then.
And then my final question, I think is,
it keeps flipping my mind but (chuckles) I want to ask.
With regard to what you are alleging,
what (mumbles) moment.
She alleges she's discharged...
Or she was not promoted because of discriminatory reasons.
Your allegation or response to that is no that's not true,
you're deficient filing,
right? -: Correct.
Cypher: And then we reached the stage of
regardless of those two allegations that are differing,
we're now litigating this question
of whether she falls within the ministerial exception.
And if she does, that will also eliminate any claim
that she can't even defend that this is a deficient filing,
is that correct?
-: That's correct.
The actual merits of the reason for her,
you know not being promoted, she's still a tenured professor
just not promoted to full professor.
The merits of that decision are not before the court.
All that's before it is whether
as someone who played an important religious role,
the ministerial exception applies.
And that would apply even to our contract claims
where courts have said where you have
are seeking the same relief for the same reasons
without a specific provision that suggests any waiver
that the ministerial exception applies
to the breach of contract claims as well.
And, you know the court's decisions
and Petrus court, Gru's court even this court's own decision
in Williams vs Episcopal diocese all indicate
that you can't, when there's a religious reason
or a religious function involved,
the courts won't look to, you know, internal handbooks
of religious institutions
to decide the scope of whether or not,
you know, the terms, you know, vague terms
of the contract remand.
Here plaintiff hasn't identified any specific provision
that suggest a waiver or a provision,
like a liquidated damages provision
that would be triggered regardless of the reason
for firing that might suggest a way
around the ministerial exception.
Cypher: Thank you.
-: Mister Baxter you put a lot of weight
onto these letters of recommendation
that are involved in a fraction of the students,
who the plaintiff's had in class for a year
And I want to utilize that example
that it gets to the issue that (mumbles) was raising
about this college as opposed
to an elementary school or (mumbles) like Temple Emmanuel.
And I agree that's not positive,
but yeah Gordon called it promoting academic (mumbles)
they talk about diversity of ideas.
When we're looking at...
well, let's look at the (mumbles) test here,
not putting too much weight
onto a few letters of recommendation.
You understand that you can't just cherry pick love bats,
we have to analyze the plaintiff's facts too
when I'm still having a hard time from your brief
and argument figuring out in any way where that (mumbles)
other than looking at Justice Alito's comment
about look at bottom what the teacher done.
-: Well first of all Your Honor,
with regard to the number of reviews,
it's important to note that for every review
of a student praising plaintiffs integration
of faith into the classroom.
That means that there was a whole classroom
of students that heard that.
So the fact that only one out of 10
or one out of whatever appreciated that,
does not change the religious significance
of what she was doing.
And the other, you know,
Our Lady said there has to be significant deference given
to religious institutions where there's a clear expectation,
where the professor embraces that expectation
and performs in accordance with that expectation.
The Gru's court held that there may be
on the margin some differences of like how far did she go,
or how much was it?
Those are issues that courts can't get into
because you would then be getting entangled
into a religious question.
And so we think that there's more than sufficient evidence
for this court to defer to Gordon College's expectations
of what this particular professor was doing
in the classroom.
-: Thank you very much.
Attorney Schwab.
-: Good morning Your Honors.
may it please the court.
My name is Hillary Schwab and I represent the plaintiff,
Professor Margaret DeWeese-Boyd.
The Supreme court articulated a clear
and unequivocal standard
for when the ministerial exception applies
in the Our Lady of Guadalupe case.
What matters is what an employee does.
And what did professor DeWeese-Boyd do?
She was a social work professor.
She taught Social work topics.
She researched and wrote on social work.
her interest included, community development, poverty,
social issues, grassroots movements,
all secular social work topics.
And what she did not do was any
of the quote vital religious duties
that the court held relevant
in the Our Lady of Guadalupe case.
The record is replete with it
and so I won't go into too much detail.
But it's clear she never led sermons,
she never led chapel services,
she never was involved in any sort of religious teaching,
she never led her students...
-: Council, can I ask you a question,
why isn't it enough that she was required to
and actually did integrate
the evangelical Christian belief into her teaching?
-: Because the integration at Gordon College
was the integration of a religious perspective
but attendant to that was no requirement
about any sort of religious duties.
And the touchstone is what an employee does.
It is significant that this
is an institution of higher learning
and also that it is not a religious school.
And by that I don't mean whether
or not it's a religious institution,
although we argue that it's not,
but it is not a religious school.
A religious school is one where the sole purpose
as this court recognized
in Temple Emmanuel is the instruction
in religion of the students
or as the court held in Guadalupe,
the very reason for existence of the school
is a religious education.
Now I know each side has cherry picked what they like
from the record in terms of what type of entity it is,
but it is undisputed that while Gordon College identifies
as a Christian community, it quote is distinguished
from other Christian communities
by its primary commitment
to provide a liberal arts education.
And-- -: Let's take a step back
and get to the the argument
that judge Carr applied the wrong standard
looking at Kant Kirby versus Lexington theological seminary
because you seem to be putting a lot
of weight into the issue of the plane if not teaching
or participating in religious worship with the students.
-: Yes Your Honor, on the issue
of whether the superior court applied the correct standard,
frankly I think the superior court was prescient
in the standard that he applied rather
than applying the four factors from Hosanna-Tabor.
Only the superior court also applied a quote totality
of the circumstances standard
from the Kentucky Supreme court
which emphasized a functional approach.
And the superior court even quoted statements
from justice Alito in the Hosannah-Tabor case
that forecast the standard that was ultimately applied
in Our Lady of Guadalupe.
So I don't--
-: And he also raised concerns about the ninth circuit
that standard that was reversed,
but nonetheless in your argument right now
you're putting a lot into the lack of participation
in teaching religion, teaching religious worship.
When we have a school
and a handbook that is emphasizing the spiritual formation
of the students
and I think the words are Godly, biblical
and Christian ambassadors and that in the application,
in the requests for tenure
and in her description of what she's doing,
she's emphasizing every step of the way her seminary degree
and her incorporation of religion into her teach.
-: Well Your Honor, it's actually factually inaccurate
that she emphasized the seminary degree.
That was not part of her promotional package
but the point still stands Your Honor,
I understand what you're saying.
Gordon College has dual purposes.
It emphasizes a Godly perspective
in a liberal arts education similar to what you would get
from any secular liberal arts college.
And while it is true--
-: That's really an understatement, isn't it?
I mean Gordon College wouldn't...
They're emphasizing the evangelical aspect
to their education.
This is different from a lot of other colleges
that may have a religious origin.
But this is a different kind of college.
Schwab: Your Honor-- -: It was recruiting
a different kind of professor.
I think we have to confront the hard facts here as well.
To simplify this, I think is not really to do with justice.
This is an integration of, you know,
Evangelical Christian beliefs with teaching.
I just think we have to confront that.
You can't just sort of compartmentalize it
the way you're trying to do it.
-: Your Honor respectfully,
the school does not incorporate evangelical teachings.
It incorporates an evangelical perspective
within the framework of academic freedom.
The professors at Gordon College
are expected to be experts in their field.
And the field for professor DeWeese-Boyd was social work.
They are not expected to be experts
in any sort of religious duties.
There's a chaplain, there's a chaplain's department,
there's a chapel.
Those are the places where students seek out religious life.
Now, is it true--
-: I don't know how you say that
with an the integration requirement means
that not just the sociology teacher,
but presumably the math teacher
and the engineering teacher are required to integrate faith
into their academic teaching,
integrate faith into their academic teaching.
-: The quote from the handbook is the development
of a Christian perspective
within the faculty members academic discipline.
That same handbook also emphasizes academic freedom.
I understand what Your Honors are saying.
It is true that professor DeWeese-Boyd
had a Christian perspective.
We're not trying to deny that.
But what the Supreme court focused on
was not what an employee thinks, but what an employee does.
And in fact, in the Our Lady of Guadalupe case,
one of the plaintiffs said,
"I'm not even a practicing Catholic.
"It's not possible for me to be a minister."
The court said,
"No, regardless of your religious affiliation
"we're looking at what you do ."
And listed...
I don't know, 19, 20 things that they did.
None of which professor DeWeese-Boyd comes
even close to doing.
The functional approach is an approach that looks
at what the employee does.
And what professor DeWeese does is teach social work.
The perspective is a Christian perspective.
She's a Christian academic.
We don't deny that. -: What does that,
What does that mean?
Because the US Supreme court is also cautioning us not to,
you know, try to be careful when we get
into these kinds of distinctions between what is, you know,
what is the secular component of what she does
and what is the religious component of what she does?
Because we don't know what we're doing in this area.
So, I mean, because you know we're not religious experts.
So how do we...
I feel like we're treading into dangerous territory here.
If we don't risk, you know,
if we start deciding what her secular aspects are
and what her religious aspects are
in a school that doesn't draw those distinctions.
-: Well Your Honor, that's precisely
why the Supreme court wisely focused
on an employee's duties, not the employee's perspective.
And the employee's duties
in this case are teaching social work.
Now as to the record--
-: But her duty is to teach social work and integrate
and even it sounds like proselytize a little bit.
And her teaching and social work has a component,
you know that it is different from math.
Again isn't she supposed to bring
that religious perspective, those religious values
into how she's teaching social work?
-: Your Honor no.
There are no such requirements.
And in fact the bylaws guiding principle
for the organization says it is
about education, not indoctrination.
There is no requirement
that any professor Gordon College proselytize.
Professor DeWeese-Boyd approaches her work
from a Christian perspective
and the way she views that as she states it,
is to look at issues and looking at their ethical
and moral significance beyond just the teach.
-: But counsel that brings us
right back to Justice Kafker problem.
And that is that we can't look at that
and they, Oh, you know, that's ministerial and that's not,
this is partly your faith being infused and integrated
but that doesn't count for ministerial work.
I mean, that's really not what we can do.
-: Right Your Honor you're absolutely right
that you should not look at what she thinks,
you should look at what she does.
And the record does not include her doing anything
other than teaching (mumbles)
Kafker: What do we make of those student evaluations
where they said that she helped them do just...
She helped them develop their faith in this area...
I mean, what do we do with that?
Because that's, I mean,
and that was part of her duty, right?
And that's why she was being evaluated on that.
-: Okay. As the student reviews,
the student comments were six comments
out of thousands in a 20 year teaching career.
I cannot emphasize highly enough
how diminimous the student comments were.
Moreover in terms of her evaluation,
on the student evaluations there were 19 questions.
One of them alludes briefly to Christian perspective
and that's the question
that elicited six out of thousands of comments.
And as my brother recently stated in his argument,
she was not evaluated on any religious
or ministerial duties in her application for promotion.
The school itself has no standards
for evaluating religious duties.
There's no requirement that one open class with a prayer,
that there are any religious imagery in the classroom.
None of that, none of the stuff that was present
in the Our Lady of Guadalupe case.
-: Miss Schwab I'm just going to state the obvious.
We all understand it but I'm going to state the obvious.
We do not have a blank piece of paper here.
We're dealing with the United States constitution
that provides a bottom of protection
for the free exercise clause.
And we've got a statement in Lady of Guadalupe
about when a school with a religious mission
entrust the teacher with the responsibility of educating
and forming students of faith
that we have to be very concerned
about traditional intervention.
And I am concerned about both sides (mumbles)
but in response to the issue of tenure,
in 2009 your client submit the paper reflections
on Christian scholarship
and this indicate how he follows (mumbles)
on all of her work,
and that it plays out in the method in which I teach
and which I interact with students.
So I'm gonna take the time to repeat that.
What she says in her tenure paper
is that the issue that is the responsibility
of professors that Gordon College plays out in the method
in which I teach and how I interact with students.
We are walking right into the bullseye of Lady of Guadalupe.
Help me understand what we do with that.
-: Sure. Well to address the substantive issue,
that is one statement that she made in 2009,
in as I said a 20-year teaching career.
And that statement speaks to her perspective,
to what she thinks, to how she approaches her work.
Attendant with that is no evidence of religious duties,
no evidence of any activity in the chapel,
I mean, I don't want to repeat myself over and over again
but what matters at bottom is what an employee does.
And she does none of the vital religious duties
that are said to be relevant in Our Lady of Guadalupe.
But I also want to address this issue
of what this court can look at.
And it is very important for the court
to keep in mind that the ministerial exception
is not boundless.
It is tailored,
it is focused and that's a quote from Guadalupe.
It is tailored, it applies only to those who are essential
to performing key religious activities.
The court has to make that determination
and focusing on duties rather than intent,
allows the court to do so without making a determination
about what constitutes a religious ethos
in somebody's approach to work.
So whether a value-laden topic is one that is religious
or just ethical and moral,
isn't a question that the court should be engaging in.
Instead the court should look at what the employee does.
A court should not just defer to what the institution says
in its briefing is the reason,
you know, is its reason for being,
because by that standard,
anybody who just asserts the ministerial exception,
it would automatically apply.
And I want to be clear
on the attorney general touches on this
in its Amicus brief as well.
When applied the ministerial exception
has incredible breadth
and allows an employer to discriminate
against an employee openly,
for any reason, for reasons of race, gender, disability.
It allows carte blanche
to violate the anti-discrimination laws.
And that's why it's so important that
as the Supreme court said,
the ministerial exception is applied
in a tailored and focused way.
And the court has to engage in that inquiry
and do so based on the record before it.
-: Could you summarize your holding for us here?
if you're writing what the key paragraph
in our decision here, given the facts we've got,
which is the professor at the evangelical college,
required to integrate her Christian perspective
into her teaching of social work.
How does your holding read?
She is not, she's not a minister because, go ahead,
could you summarize that for us?
-: She's not a minister because she performs none
of the vital religious duties held
to be determinative in the Our Lady of Guadalupe case.
To hold otherwise would allow the exception--
-: Can you (mumbles) first sentence,
none of the religious duties, which are...
-: None of the vital religious duties
which the court held to be determinative
in Our Lady of Guadalupe.
-: Which are what? Go ahead.
-: Okay, I'll go through with them.
Leading chapel services,
taking students to chapel services,
praying with students,
leading students in prayer,
teaching students about religion, delivering sermons,
selecting liturgy, hymns,
or other content for chapel services,
conducting Bible studies,
having a public role as a minister or religious
or spiritual relieving leader,
preaching,
motivating or encouraging students
to participate in religious life.
-: Counsel, one more thing though it says,
is that, in the opinion that when a school
with a religious mission,
would you agree that Gordon College has religious mission?
-: I do not agree that it
has an exclusively religious mission.
And we argue that it is not a religious institution,
but for purposes of your question, I understand the purpose.
-: The Supreme court says that when a school
has a religious mission, entrust the teacher
with the responsibility of educating and forming students
in the faith, judicial intervention into dispute
between the school and the teacher,
threatens the school's independence
in a way that the first amendment does not allow.
Now that's a broader statement
than the factors that were listed.
So I don't believe those factors are exclusive.
And that if you take a conclusory sentence like this
and think about Gordon College
and all that it's put out on it's website
and everything that's in the record pending,
it's hard to understand how she's not
performing their faith or helping in that way.
-: First of all Your Honor,
the court did make that statement
while leading up to its analysis,
the court stated that what matters at bottom
is what an employee-- -: What they do.
Schwab: And look at the vital religious duties.
Moreover, in talking about religious schools,
the court identified religious schools
as those for whom the very reason
for existence was religious education.
That is not the case for Gordon College.
Gordon College is a liberal arts college
that grants academic freedom, which is significant.
And as Your Honor referenced,
is discussed in the American Association
of University Professors Amicus brief,
that academic freedom and the liberal arts mission,
the primary liberal arts mission
of Gordon College separates it from a school.
The purpose of which is to send your kid in,
so they know how to practice the religion
and that they come out knowing the religious rights
knowing how to practice those rights.
That is not what Gordon College is about.
-: But you could look at that a different way.
You could say, oh Gordon College is different
from the average garden variety liberal arts colleges
because it also has this Christian mission.
So I don't really put any weight on your last statement.
I mean, Gordon College has
and it's articles for organization,
its bylaws, is a clearly religious mission.
So the notion that we're going to look at whether
or not it also teaches math and engineering
and other things and conclude because of that,
it's a liberal arts college, not a religious institution,
seems to me a little short-sighted.
-: But whether or not it's a Christian entity
and whether or not the plaintiff is Christian,
both of which are reasonably undisputed.
The fact remains, that's not all that's required
for the ministerial exception.
The ministerial-- -: We are not talking
about the religious institution aspect of it, prong one.
-: Understood. And Your Honor our position on that
is that at a minimum, the fact
that there are these dual purposes,
informs the analysis of the second prong
-: Certainly, but Our Lady of Guadalupe knows schools
also taught all their other subjects
in addition to religion, it didn't make them unqualified
for the ministerial exception.
-: But the quoting Guadalupe very reason
for existence of the school was religious education.
And that's simply not the case for Gordon College
-: But didn't Gordon College--
Dalila: (mumbles) organization for that?
-: Sorry, I didn't hear the question.
Dalila: Can we look at the articles
of organization for that?
Schwab: Absolutely.
And the articles...
For every article of organization
that emphasizes a Christian perspective,
there is an article of organization
that emphasizes the importance of education.
And that's why between our two briefs,
we have the entire all the bylaws and all the purposes
because they focused on the Christian ones
and we focused on liberal arts ones.
But when you look at it, there are dual purposes
and those purposes are incredibly significant
because they guide the functions that the employees have
and the duties that are assigned to them
which are the duties
of teaching in their academic discipline
and researching and writing in their academic discipline.
-: So if I'm a college prep, elementary school
or through middle school and high school
and I emphasize college prep
but I'm also a Catholic school, that makes me unqualified
for the religious institution aspect
of the ministerial exception?
-: What matters Your Honor is what you do.
So it depends.
I don't have enough information
about what you do day to day.
If you're taking the students to chapel,
if you're leading sermons,
if you're choosing hymns, liturgy et cetera,
then I think under Guadalupe, you would be a minister.
But if you are teaching in a school
that might have a cross hanging behind you and that's all,
no, that's not enough.
-: Any other questions?
Okay, thank you, oh, go ahead I'm sorry.
Dalila: No.
-: I just want to clarify one thing if I could
before we leave which is,
you mentioned that you're contesting that Gordon College
is a religious institution.
That could decide what the articles
of organization say in the faculty handbook.
That's what judge Carr found
and that issue hasn't been raised.
You have an appeal?
-: Well Your Honor, this court looks at the application
of the ministerial exception de novo
and can affirm for any reason including reasons
not ruled on by the superior court.
So this court...
the question is does the ministerial exception apply or not?
This court could rule on the first prong or the second prong
and still affirm the superior courts.
-: Okay. Thank you.
Schwab: Thank you Your Honor.