Federal Rulings Against Catholic Colleges Raise Hard Truths

By Patrick Reilly ( bio - articles - email ) | Jun 03, 2011

After years of urging from the Vatican and the bishops to renew Catholic identity in Catholic higher education, it seems the U.S. government is forcing the issue.

The lesson? A college or university can’t be Catholic and secular at the same time. Too bad we need the secularists to drive this point home.

On May 26th, regional staff of the National Labor Relations Board (NLRB) ruled that St. Xavier University in Chicago is not particularly Catholic and therefore not entitled to First Amendment exemption from federal labor law. This follows a NLRB regional finding in New York that the Christian Brothers’ Manhattan College is also not substantially religious.

Although the NLRB has clearly overstepped its bounds by interfering with religious education, the agency’s conclusions about St. Xavier University and Manhattan College should greatly trouble Catholics. Manhattan has appealed for a reversal—and rightly deserves one—but it remains to be seen what, if anything, might be done within the Church to follow upon the NLRB’s embarrassing analysis of these institutions’ Catholic identity.

As I explain in my analysis “The NLRB’s Assault on Religious Liberty,” the NLRB has long infringed on the rights of Catholic educators. The 1979 Supreme Court ruling in NLRB v. The Catholic Bishop of Chicago, et al. stopped the NLRB from forcing Catholic parochial schools to comply with federal labor law, but the Board continued to assert authority over Catholic colleges and universities—even after the federal D.C. Circuit Court instructed the agency in 2002 and 2008 to leave religious higher education alone.

The legal problem is that NLRB jurisdiction over Catholic colleges and universities—even those that compromise the faith in significant ways—opens the door to potential government entanglement with religion. That’s a First Amendment concern, as is any federal investigation and judgment as to whether a college is religious “enough.”

Meanwhile, the federal Equal Employment Opportunity Commission (EEOC) has not relented in its 2009 finding that Belmont Abbey College—a faithful Catholic college in North Carolina—discriminates against women by refusing employee benefits to cover prescription contraceptives.

Belmont Abbey appealed the regional decision, but the national EEOC has not yet responded. One can only guess what the inclination of President Barack Obama’s appointees to the Commission will be. One of them, a former Georgetown University professor, has argued that sexual liberty trumps religious liberty.

There are other potential federal threats to authentic Catholic education with regard to health care, student aid and homosexual rights.

All of which lead attorneys at the Becket Fund for Religious Liberty to recommend that Catholic institutions ensure that their religious identity is “bona fide” and “sincerely held,” so they can be more certain of eligibility for First Amendment exemptions to federal laws and regulations. Kevin Theriot, Senior Counsel at the Alliance Defense Fund, advises Catholic colleges to demonstrate their compliance with Vatican rules for Catholic higher education, as found in the 1990 apostolic constitution Ex corde Ecclesiae.

One cannot, of course, fail to observe the irony in all of this:

• Over the last 50 years, many Catholic colleges and universities have compromised their Catholic identity, driven in some measure by the desire to ensure eligibility for government grants, tax-exempt bonds and student aid. Now the same institutions face federal scrutiny for claiming a religious identity.
• Federal agencies are violating religious liberty by inappropriately evaluating colleges’ Catholic identity. That role belongs to the Church—which still has no formal process for evaluating colleges’ Catholic identity.
• In the 1990s, critics of Ex corde Ecclesiae warned that it would lead to lawsuits and other legal problems for Catholic institutions. Now compliance with Ex corde Ecclesiae is recommended for their legal protection.

Last month, The Cardinal Newman Society proposed a thoroughly American, voluntary method for improving and documenting a college or university’s Catholic identity. The self-assessment tool helps college leaders consider their institutions’ compliance with Ex corde Ecclesiae by answering open-ended questions. The results are useful when relating to the two institutions most feared by Catholic educators: the bishops and the government, probably in that order.

But Catholic college and university leaders have become accustomed to having one foot outside the Church and one foot inside. One wonders if they realize what happens when the door is shut?

Patrick J. Reilly is President of The Cardinal Newman Society (CNS), a national organization to help renew and strengthen Catholic identity in Catholic higher education.