It seems that the National Labor Relations Board is now in the business of judging whether Christian colleges and universities are sufficiently serious about their Christian commitment to warrant the full protections of religious liberty from the First Amendment’s free exercise clause. The matter in question is whether the NLRB can force Christian institutions of higher learning to accept unionization similar to that which afflicts state and secular private schools, and enforce other “non-discrimination” aspects of federal labor law (e.g, can Christian institutions be forced to hire or retain employees who are clearly living at variance with Christian moral expectations?).
According to Patrick J. Reilly, in Are Catholic Colleges Catholic Enough? – WSJ.com, the case hinges
on the Supreme Court’s ruling in NLRB v. The Catholic Bishop of Chicago, et al. (1979), which found that the NLRB had violated the First Amendment’s free exercise clause by requiring Catholic schools to comply with federal labor laws, thereby possibly interfering with religious decision-making. But that ruling didn’t stop the NLRB from claiming authority over most Catholic colleges and universities by arguing that Catholic Bishop protects only “church-controlled” institutions that are “substantially religious,” a phrase taken from Chief Justice Warren Burger’s majority opinion in the case. Many of the nation’s 224 Catholic colleges and universities are legally independent of the Catholic bishops or the religious orders that founded them.
So the NLRB has put itself in the position of judging schools’ religious character, and it has concluded over the years that many Catholic institutions are inconsistent in their application of Catholic principles to teaching, course requirements, campus life and faculty hiring. It’s a serious overreach by the government, though many Catholics would agree that colleges and universities often demonstrate inconsistent religious observation.
The erosion of religious identity in Catholic higher education over the past 50 years has been marked by theological dissent, hostility toward the bishops, and increasingly liberal campus-life arrangements such as co-ed dorms and lax visitation rules. These issues fueled the 2009 confrontation at Notre Dame, for example, when pro-life Catholics objected to the school honoring President Barack Obama.
The temptation to please the world is always there in Christian higher education. Many initiatives undertaken by ostensibly Christian universities seem to be very similar to those that get excited attention at secular schools, but there are things that Christian higher ed talks about less and less (abortion-on-demand, for example) while it holds countless workshops on hot topics like human sex trafficking (as if there was something controversial about it, as if there was someone, somewhere, who thought it was a good thing).
Catholic educators are now awaiting the result of Manhattan College’s appeal to the NLRB regulators in Washington. Their appeal relies heavily on an argument put forward in 1986 by future Supreme Court Justice Stephen Breyer. Writing for half the members of an evenly divided D.C. Circuit Court of Appeals, Judge Breyer argued that the NLRB had contravened the Catholic Bishop ruling by establishing a “substantial religious character” test to determine whether a college meets sectarian standards.
The D.C. Circuit has formally embraced Justice Breyer’s reasoning twice over the past decade, instructing the NLRB to stop interfering with any college or university that “holds itself out to students, faculty and community as providing a religious educational environment.” In ruling against St. Xavier University and Manhattan College, NLRB regional staff seem to have ignored that instruction.
Protestant and evangelical Christian colleges and universities, take note: the candidate of hope and change you helped elect, possibly as part of your diversity initiatives, has his sights set on making you follow the same federal employment rules as any other school. You may be forced to hire people who do not “model the Christian life” for students… unless, of course, your notion of the Christian life has recently undergone radical revision.