Should a religiously affiliated high school be held responsible for failure to protect a student who is being bullied while in their care if the school asserts that its decisions about how to treat and take care of students were made on the basis of religious doctrine? Or are parents who choose to send their students to these sorts of schools taking on the risk that if their students come to harm, the schools cannot be held responsible? Several recent Texas state court decisions have taken the latter position, relying on the little-known ecclesiastical abstention doctrine to dismiss cases brought against religiously affiliated schools.
The ecclesiastical abstention doctrine, also known as the church autonomy doctrine, is a longstanding common law doctrine that guides courts when a case would require the court to decide a religious question. In its most distilled form, the doctrine counsels that if a case would require a civil court to decide a matter of religious doctrine, the court should either refuse to adjudicate[1] or defer to the relevant religious hierarchy. Watson v. Jones, an 1871 Supreme Court case is often cited as the basis for the doctrine in the United States, and grounds the doctrine in the Free Exercise Clause of the First Amendment.
Two rationales underlie the doctrine. First, that courts do not have the competence or capacity to decide questions of religious doctrine. Second, and perhaps more importantly, that civil courts should not make what amount to religious pronouncements. This second rationale is related to the Free Exercise Clause because this rationale also prevents the state from dictating how people should practice their religion.
Although there may be arguments against the application of the ecclesiastical abstention doctrine wholesale, the doctrine has intuitive appeal in some cases. For example, if the Catholic Church fires a priest because he failed to adhere to Catholic doctrine, the priest may bring a suit against the Church claiming that he was wrongfully terminated. Under the ecclesiastical abstention doctrine, the court will likely refuse to hear the case because to decide if the Church wrongfully terminated the priest, the court would need to determine both the tenants of the Catholic faith and what actions constitute a breach of those tenants. Courts and churches equally do not want courts to decide these religious questions.
On the other hand, not all cases involving a religious institution would require a court to interpret religious doctrine. When a church contracts for repairs, a court can adjudicate a suit over payment without considering religious doctrine. In such a case, the court’s role is the same as in any other party to a breach of contract case; that one of the parties is a church is not relevant.
Between these two extremes, however, lie cases that are less clear cut. Although the doctrine’s scope has never been clearly articulated—in part because various state and federal courts apply it differently—for the most part it has remained limited. The general rule is that a court can adjudicate a case involving a religious organization as long as it can be decided by secular standards without reference to religious doctrine. The court determines this itself: courts do not merely defer to religious institutions’ assertions. Thus, many courts adjudicate cases involving religious doctrine when it only requires applying the church’s own bylaws under the logic that it is no different than interpreting and enforcing any other written legal document. On the other hand, cases that may otherwise rely on secular standards but which both parties transform into an argument over religious doctrine, for example by citing competing biblical passages to support their positions, have been dismissed.
As it has been applied, the ecclesiastical abstention doctrine has attracted relatively minimal attention or criticism. But several recent decisions from the Texas state court system have started to expand the doctrine in disturbing ways.
These cases all involved parents of students who attended private, religiously affiliated (though neither church-owned nor -operated) schools who brought suits under common law causes of action. Texas state courts dismissed all of these cases on ecclesiastical abstention grounds. Two of the cases will suffice as examples of this expansion of the doctrine and its dangers.
The first case, In re Episcopal School, involved a student caught smoking marijuana off-campus who was subsequently expelled. Her parents brought suit against the school under various common law claims, including breach of contract. The school asserted that disciplinary decisions were related to the school’s religious doctrines. Both the trial court and the appellate court held that the case would require the court to decide a matter of religious doctrine by looking into the inner decision-making of the school and dismissed all of the claims. The Texas Supreme Court declined to review the decision.
The second case involved a black student who alleged that he was the victim of continuous and often race-motivated bullying and that the school did nothing to protect him. That bullying allegedly included origami shaped like KKK hoods placed in the student’s locker and apparently resulted in severe emotional damage that lead him to have subsequent personal and educational problems. The plaintiffs claim that even after one of the alleged bullies admitted to the acts the only action taken by the school was to give a one-day suspension and a requirement of a written apology. Eventually, the victim’s parents removed him from the school and brought suit against the school and its officials for negligence and intentional infliction of emotional distress. A district court judge dismissed the case on similar grounds to In re Episcopal School—that the schools disciplinary decisions were sufficiently intertwined with religious doctrine such that the court could not decide the matter.
These cases are cause for concern. They represent an unprecedented expansion of the doctrine. If followed, they could leave students and their parents without remedy or recourse for wrongs committed by religiously affiliated schools.
These cases are a novel extension in multiple ways. First, by applying the doctrine to schools neither owned nor operated by religious institutions, the court’s holding can be viewed as expanding the doctrine to a wide array of actors merely affiliated with religion. Up to this point, the doctrine has remained fairly uncontroversial in part because it has applied only to churches and those institutions operated directly by churches. This a relatively small and distinct class. By applying the doctrine to a school that only has a religious affiliation the court moves into new, difficult to define, and potentially expansive territory.
Moreover, the Texas courts showed substantially more deference than usual to the schools’ claims that the doctrine should apply. Courts generally seek to find a way to rule on secular grounds and use their own judgment to determine whether they can adjudicate the case without deciding matters of religious doctrine. In these cases, however, the courts seemed to find even the mention of religious doctrine sufficient to dismiss. In In re Episcopal, for example, the court focused heavily on the fact that the decision would require looking into the inner decision-making of the institution. But it is unclear why this matters: the school makes many decisions that cannot possibly be based on its religious tenets. Its not even clear that a school that is merely affiliated with a religion can even have religious tenets. But even if one accepts that such institutions can appropriately claim ecclesiastical abstention in some cases, to prevent the doctrine from being used by religiously affiliated schools to escape any and all liability to their students the school should have to do more than put forward perfunctory claims of religious reasoning to escape liability.
Furthermore, the logical underpinnings of the ecclesiastical abstention doctrine don’t easily apply to these expansions. Under the competency argument, there is no reason to think that courts are any less competent to determine whether a school violated it owns disciplinary policy simply because the school is religious. Nor is there reason to think the negligence of a religiously affiliated school is somehow harder for a court to determine than for any other actor. This expansion also doesn’t stand up to the Free Exercise based idea that courts shouldn’t interfere with the free practice of religion. After all, it would seem odd to suggest that a court telling a religiously affiliated school that they must protect their students is the same as telling a church what it means to be sufficiently pious.
More important than the legal validity of this expansion of the doctrine, however, is their practical effect. Because statutory exemptions (for example, under Title IX) already protect these schools from liability, these types of common law tort and breach of contract claims are the only recourse students and their parents have. If a school need only claim religious affiliation and declare that their decision (to discipline students, to protect students, etc.) was based on some vague, undefined religious doctrine to avoid liability, why wouldn’t they do so? If the decision not to protect a student from racial bullying could be based on religious doctrine, what could a school do that would not be considered to be based on religious doctrine? And what other institutions might arguably be equally affiliated with a religion and therefore equally able to claim this protection, for example to combat claims brought by employees?
Thankfully, this sort of expansion use of the ecclesiastical abstention doctrine remains a minority position. However, now that case precedent exists, it is increasingly likely that this will become a litigation strategy for similarly situated entities, meaning more courts (both in Texas and elsewhere) will be faced with the same questions raised in these recent cases. We should all keep a close eye on these attempts to use vague, unsupported claims of religious doctrine and free exercise infringements as justification for acting outside of the parameters of secular laws.
[1] There are debates in the courts and among scholars about whether the ecclesiastical abstention doctrine removes the court’s jurisdiction or is simply an example of court’s using discretionary rights/judgments not to hear cases.
