Reckoning With the Reach of the Ministerial Exception
Charles J. Russo January/February 2024Does this legal doctrine give faith-based schools essential religious liberty protection? Or is it a tool for discrimination?
Controversy continues over the extent to which officials in religiously affiliated schools can require their employees to comply with the teachings of their faiths, especially if employees have agreed to do so in the employment contracts they signed. The most recent dispute arose in New Jersey in Crisitello v. St. Theresa School. The principal, Sister Lee, hired Victoria Crisitello, a former student at the Catholic elementary school, to work part-time in 2011 as a caregiver in the toddler room. At the time she was hired, Crisitello signed a clear statement that she had received and understood various employment documents. Among the documents Ms. Crisitello agreed to abide by were the Archdiocese of Newark’s Policies on Professional and Ministerial Conduct, the first section of which contains its Code of Ethics. This code requires employees to “conduct themselves in a manner that is consistent with the discipline, norms, and teachings of the Catholic Church.”
Three years later, in 2014, a disagreement arose when Sister Lee asked Ms. Crisitello if she would accept a full-time position as a teacher. Crisitello, who was unmarried, responded that she would need a raise if she accepted the new position, as she was pregnant and would soon have to pay for child care. Sister Lee later met with Ms. Crisitello to inform her that, because she had violated the school’s Code of Ethics by engaging in premarital sex, she could not remain on the staff. Ms. Crisitello refused to resign, and so Sister Lee terminated her contract, replacing her with a teacher who was married with children.
Ms. Crisitello initially lodged a complaint with the Equal Employment Opportunities Commission (EEOC), alleging Sister Lee violated Title VII of the Civil Rights Act of 1964, the most significant federal law banning employment discrimination on the basis of a variety of characteristics, including religion. The EEOC responded that while its denial of Crisitello’s complaint did not mean school officials had complied with Title VII, she could still file suit in a federal trial court. Instead Ms. Crisitello sued in a state court under the New Jersey Law Against Discrimination (NJLAD).
Judicial Back-and-Forth
In her state case Ms. Crisitello alleged that Sister Lee discriminated against her in violation of the NJLAD because of both her pregnancy and marital status. She added that the rationale she received for her dismissal, namely, her violation of the tenets of the Catholic faith, was a “mere pretext” for discrimination. A state trial court rejected Ms. Crisitello’s claim, but an appellate panel, while conceding that secular courts cannot resolve purely religious disputes, reversed and remanded in her favor. The panel thought the underlying dispute surrounding why the school terminated Ms. Crisitello contract was “pretextual,” and thus it treated the dispute as subject to the court’s civil jurisdiction.
When the case was remanded to the trial court, it again dismissed Ms. Crisitello’s complaint as lacking merit, but the appellate panel reversed in her favor a second time. The court avoided the ministerial exception in Title VII that affords officials in faith-based schools wide discretion to decide who meets their standards. The court also essentially ignored NJLAD’s analogous “religious tenets exception.” The court denied Sister Lee’s defense that she fired Ms. Crisitello not because of her pregnancy but for violating the Code of Professional and Ministerial Conduct that Ms. Crisitello had freely signed, and for her refusal to comply with church teachings by engaging in sexual relations outside of marriage.
Religious Autonomy Affirmed
On further review, a unanimous seven-member panel of the Supreme Court of New Jersey reversed in favor of St. Theresa School’s leadership, reinstating the original grant of summary judgment and dismissing the complaint.
The court summarily rebutted Ms. Crisitello’s argument that the ministerial exception was inapplicable because, as a lay teacher, she did not perform religious duties. Had the court examined this issue in detail, it would likely have followed earlier cases recognizing that teachers’ actions can be treated as ministerial, especially in faith-based elementary schools where religion is intertwined throughout curricula as teachers regularly lead children in prayer and accompany them to worship services.
At the heart of its analysis, the court observed that along with the constitutional question of the ministerial exception—which is rooted in the First Amendment—statutory considerations of church autonomy under the NJLAD also granted Sister Lee the authority to dismiss Ms. Crisitello. The court determined that, on the facts before it, church doctrine was “inextricably linked” with Ms. Crisitello’s claims, and thus secular adjudication would have interfered with the principal’s religious autonomy and breached the so-called wall of separation between church and state. The court then pointed out that the “religious tenets exception” in the NJLAD, which is akin to its federal counterpart, affords faith-based employers alone the right to establish criteria for staff members, so long as they have first met the burden of proving that their employees engage in ministerial-type duties.
In sum, the court found in favor of school officials for two reasons. First, the court held that officials met their burden of proof under the religious tenets exception by demonstrating that they acted solely on employment criteria adopted pursuant to the tenets of the Catholic faith. Further, because Ms. Crisitello failed to raise a genuine issue of material fact about the applicability of this exception, the court rejected her claim.
Second, the court ruled that there was ample proof that Ms. Crisitello signed a form acknowledging not only that she was bound to comply with the school’s Policies on Professional and Ministerial Conduct, including the Code of Ethics, but also that she was obligated to abide by all their provisions. Thus, the court concluded that there was no basis of which to deny the school’s motion for summary judgment.
Reflections on Crisitello v. St. Theresa School
Two important points stand out as initial matter in reflecting on the significance of Crisitello v. St. Theresa School. First, St. Theresa School follows a line of Supreme Court cases upholding the rights of leaders in faith-based schools, rather than secular bodies such as the EEOC or judges, to decide who qualifies to work on their staffs. These cases affirm that school officials have the sole discretion to enforce employment practices consistent with their religious beliefs, including moral codes of conduct, in contracts freely entered by parties. This protects faith-based schools and their leaders from the government unduly infringing on their autonomy, and thus it is essential that the ministerial, or religious tenets, exception be preserved at both the federal and states levels.
Second, in a closely related vein, statutory exceptions protecting the religious freedom of institutions are not, as Ms. Crisitello and her attorneys alleged, pretexts for discrimination. Rather, these exceptions are grounded in the fundamental First Amendment right to the free exercise of religion.
Regardless of whether it is called the ministerial or religious tenets exception, religious autonomy must be protected. As even the appellate court admitted, some issues are beyond the expertise of secular jurists. These matters are best left to religious officials who bear the burden of proving that staff members engage in ministerial duties, even if they are not ordained. This occurred in St. Theresa School, in which officials proved that Ms. Crisitello’s teaching and other activities were so integrally related to promoting the spiritual and pastoral missions of the school that her duties could be treated as ministerial.
When dealing with teachers and support personnel in religiously affiliated elementary schools in particular, which are designed to inculcate faith to children, officials should not have a difficult time demonstrating that the work of staff members can be treated as ministerial. This is especially true when their employment contracts are clear on these matters. Preserving such a statutory exception protects the constitutional religious-freedom rights of leaders in faith-based schools. It allows them to maintain the religious identity of the school by having the sole authority to hire, retain, or dismiss individuals who are providing witness to their faith, while striving to advance the institutional mission.
It is an equally important point to realize that St. Theresa School involves basic contract law. Ms. Crisitello was a legally competent person who admittedly read, understood, and freely accepted the terms she signed. There should not have been a question as to the authority of school officials to dismiss her for having knowingly violated her contract. Put another way, why should employees in faith-based schools—who sign contracts containing explicit Codes of Ethics—later be able to ignore those agreements if they are no longer willing to abide by those conditions?
Of course, individuals have the right to live as they wish. Yet was it discriminatory, as Ms. Crisitello alleged, for officials to dismiss her for violating a moral precept of the Catholic Church, which she agreed, in writing, to follow? And further, an agreement that was covered by a statutory exception in the NJLAD? The teachings of the Catholic Church on sexual relations outside wedlock are clear. If Ms. Crisitello regarded the contract as discriminatory, why did she sign it in the first place?
At the risk of sounding simplistic, if employees fail to abide by contracts they sign freely, how can they expect to retain their jobs with any employer, let alone with a faith-based employer? If individuals are unwilling to comply with the terms of the contracts they have signed, including such provisions as in St. Theresa’s Policies on Professional and Ministerial Conduct and its Code of Ethics on sexual morality, then perhaps they should avoid working in faith-based schools. There is, after all, no absolute right to do so. If teachers refuse to give witness to the beliefs they are supposed to inculcate in students, then the ministerial exception applies. It protects faith-based educational leaders from having to employ teachers who ask their students to “do as I say but not as I do” when it comes to following the tenets of their religion.
Article Author: Charles J. Russo
Charles J. Russo, M.Div., J.D., Ed.D., is the Joseph Panzer chair in education in the School of Education and Health Sciences, director of its Ph.D. program in educational leadership, and research professor of law in the School of Law at the University of Dayton. He can be reached at crusso1@udayton.edu.