9th Circuit decision denying ‘ministerial exception’ to Catholic schoolteacher will stand, despite conservatives’ dissent

The 9th U.S. Circuit Court of Appeals will not revisit its decision allowing a Catholic school teacher to sue her former employer over alleged Americans with Disabilities Act violations, despite a vehement dissent from several of the court's more conservative judges.

The dissenters wrote Tuesday the ruling set a precedent at odds with the First Amendment's free exercise and establishment clauses and was in conflict with high court authority.

Judge Ryan D. Nelson, joined by eight other Republican-appointed colleagues, argued in an order declining en banc review that a doctrine known as the "ministerial exception" should have protected a Torrance-based Catholic elementary school facing claims it improperly fired a teacher after she requested a leave of absence to undergo intensive cancer treatment.

U.S. Supreme Court precedent from 2012 limiting application of employment laws under the doctrine to religious institutions required dismissal of the suit, the judge said, and set a different standard than the one used by his colleagues in deciding the case.

"In turning a blind eye to St. James's religious liberties protected by both Religion Clauses, we exhibit the very hostility toward religion our Founders prohibited and the Supreme Court has repeatedly instructed us to avoid," Nelson wrote. Biel v. St. James School, 2019 DJDAR 5725 (9th Cir., June 25, 2019).

In December, a divided three-judge panel of the court said Kristin Biel -- who previously taught 5th grade at St. James School -- could pursue ADA claims against the parochial institution, noting the school did not require its teachers to be baptized in the Roman Catholic faith, Biel played a limited role in the school's religious functions like mass and her professional training was secular in nature.

"[T]he focus on heads of congregations and other high-level religious leaders in the historical backdrop to the First Amendment supports the notion that, to comport with the Founders' intent, the exception need not extend to every employee whose job has a religious component," Judge Michelle T. Friedland wrote in an opinion joined by Judge Paul J. Watford.

Senior Judge D. Michael Fisher, visiting from the 3rd U.S. Circuit Court of Appeals, dissented, pointing to, among other things, contract materials requiring Biel to incorporate the tenets of the Catholic faith into her overall curriculum and pedagogical approach.

"[T]he ministerial exception does apply to Biel in her capacity as the fifth grade teacher at St. James because of the substance reflected in her title and the important religious functions she performed," Fisher wrote.

The 9th Circuit's decision is the latest in a number of federal appeals court decisions wrestling with the application of the doctrine, which in 2012 a unanimous Supreme Court said was fatal to an employment suit brought by a Lutheran teacher who claimed a school at which she once worked saying her termination also violated the ADA. Hosanna-Tabor Evangelical Lutheran Church & School v. E.E.O.C., 565 U.S. 171 (2012).

Chief Justice John G. Roberts Jr. pointed in his opinion to a number of factors that made the plaintiff unique in comparison to other teachers. The plaintiff, Roberts noted, held a title including the word "minister," had undergone specialized religious training directed by Lutheran ministers and regularly involved herself in prayer sessions, unlike other teachers at the school.

Federal appeals courts have since taken under consideration when applying the precedent whether the employer presented the plaintiff as a minister, names used in a job title, aspects of her professional training and specific job duties assigned to a plaintiff.

"They are factors to be considered," Equal Employment Opportunity Commission attorney Susan Ruth Oxford, siding with Biel, told the 9th Circuit during oral arguments nearly a year ago. "It's not a rigid test."

Andrew S. Pletcher, an attorney with JML Law APLC who represents Biel, commended the court for not revisiting its original decision.

"We feel that this is the correct decision," he said in a phone interview Tuesday. "The test really comes down to the totality of the circumstances," he continued, critiquing a theory advanced by Nelson that courts should look at the "substance" of a plaintiff's work when applying the ministerial exception.

Jack S. Sholkoff, a shareholder at Ogletree, Deakins, Nash, Smoak & Stewart PC who represents St. James School, did not respond to a request for comment by press time Tuesday.