Labor ruling has ‘religious’ colleges shaking

February 10, 2011

A small Catholic college in Riverdale, New York, recently got some
news that sent shivers through many religious schools: part-time faculty
have a right to form a union on campus. But that wasn't the worst of
it. The National Labor Relations Board also isn't convinced that the
Catholic school is actually Catholic.

According to Elbert Tellem,
the NLRB's acting regional director, Man­hattan College can't prohibit
adjunct faculty from unionizing because the school's core purpose isn't
religious enough to trigger a labor law exemption.

Claiming an
infringement of religious liberty, the school is appealing the decision.
Observers say the case could have  implications well beyond the
picturesque campus at the northern tip of the Bronx.

Religious
colleges, like their secular counterparts, increasingly rely on adjunct
faculty in a bid to contain payroll costs, according to the Council of
Independent Colleges. Nearly one in every four teachers at CIC schools
has adjunct status, and a wave of unionization could drive up education
costs if and when adjuncts demand higher pay and benefits.

"All
colleges . . . [that] are trying to figure out a way to make college
affordable for students are going to be watching how this develops,"
said Michael Galligan-Stierle, president of the Asso­cia­tion of
Catholic Colleges and Uni­versities. "Adjuncts are part of the
equation."

The ramifications, however, could go deeper than
finances. Religious colleges are being warned, observers say, to show
that their core purpose is to "propagate religious faith" or else be
treated as secular enterprises. That could pose a special problem for
liberal religious organizations, which seldom require students and
faculty to endorse specific creeds or doctrines.

"If the basis for
the ruling is that you have to be really sort of in-your-face Catholic
in order to claim the exemption, that's going to cause a huge incentive
for every college in the Catholic tradition to start acting more on the
conservative end of the Catholic spectrum," said Eric Rassbach, national
litigation director for the Becket Fund, a non­profit law firm that
defends religious rights.

When Manhattan College was founded in
1853, the Brothers of the Christian Schools ran the college and held the
majority of faculty positions. That changed over time. Now most of its
faculty members are laypeople, and they aren't required to profess
Catholicism.

The NLRB ruling, which noted the change in January,
said federal oversight would not compromise the school's religious
freedom because its "stated purpose does not involve the propagation of a
religious faith, teachers are not required to adhere to or promote
religious tenets, [and] a religious order does not exercise control over
hiring, firing, or day-to-day operations."

If the school were
more doctrinaire, the reasoning goes, then it would need freedom to
employ only faithful Catholic faculty, and NLRB involvement would
entangle a government agency in religious affairs.

Manhattan
president Brennan O'Don­nell argued in an open letter that the school is
being penalized for embracing the spirit of the Second Vatican Council
(1962–1965) through "intellectual openness" and a "welcoming spiritual
environment."

O'Donnell continued: "The ruling suggests that the
regional NLRB believes that the primary hallmarks of an authentic
Catholic college or university are exclusionary hiring, a proselytizing
atmosphere, and dogmatic inflexibility in the curriculum."

Manhattan College officials declined to comment further.

Some
religious liberty activists see the ruling as an ominous new level of
government intrusion. The case marks the first time an NLRB body has
tried to force a religious institution to allow unions, Rassbach said.

In
his view, regulators shouldn't be in the awkward position of
adjudicating whether a self-described Catholic college is in fact
Catholic. That's a decision for church authorities to make, he said. The
Archdiocese of New York recognizes Manhattan College as a Catholic
institution, as does the Association of Catholic Colleges and
Universities.

Others see little threat in the ruling. The regional
NLRB is simply applying to adjunct faculty a legal standard for
church-state separation that's been in place for decades, according to
Michael Broyde, an expert on church-state law at Emory University School
of Law.

What's new, Broyde suggested, is that Catholic colleges
are being held accountable for letting their schools become more
secular. "There are more and more—particularly Catholic
institutions—that are broadening their missions profoundly so that
you'll have an institution where neither the students nor the faculty
are Catholic," Broyde said.

Manhattan's case now heads to the
national NLRB offices in Washington as the school's adjunct teachers are
petitioning the school to drop its appeal.

Meanwhile, observers are debating what lessons religious colleges should derive from Manhattan College's experience.

"I'm
not that concerned about this ruling because there's an easy way to
avoid it: stay true to your religious mission and don't drift away from
it," said Kevin Theriot, senior counsel for the conservative Alliance
Defense Fund, which provides legal representation in religious liberty
cases. "The question for liberal organizations is: Are they staying true
to their theological purposes?"

The Cardinal Newman Society,
which polices orthodoxy on Catholic campuses, says the Manhattan case is
a dangerous example of government overreach, but the group's president,
Patrick Reilly, sees a potential upside. "These [government] actions
are forcing Catholic institutions to reevaluate what it means to be a
genuinely religious institution," Reilly said. "That may be a healthy
thing."