‘Ministerial exception’ not available to college in former prof’s suit

A college in Massachusetts cannot avail itself of an affirmative defense grounded in the First Amendment’s religion clauses known as the “ministerial exception” in a discrimination suit brought by one of its former professors, a Massachusetts Superior Court judge ruled on April 2.

In her suit, plaintiff Margaret DeWeese-Boyd, a former social work professor, claims Gordon College, President D. Michael Lindsay and Provost Janel Curry discriminated against her after she vocally and publicly opposed the college’s alleged discriminatory policies relating to LGBTQ+ individuals.

DeWeese-Boyd says she was denied a promotion to full professor in February 2017, despite receiving the unanimous recommendation of the faculty senate.

Judge Jeffrey T. Karp’s decision came in response to cross-motions for summary judgment asking the court to determine whether the ministerial exception prohibited DeWeese-Boyd’s employment discrimination and other claims.

Founded in 1889, Gordon College is an evangelical Christian undergraduate and graduate college in Wenham.

According to its formal mission statement, “Gordon College strives to graduate men and women distinguished by intellectual maturity and Christian character, committed to lives of service and prepared for leadership worldwide.”

All Gordon undergraduate students are required to complete the college’s core curriculum, which “explores the liberal arts and sciences from a Christian perspective.”

According to the faculty handbook, faculty members “are expected to be fully prepared in all facets of their tasks as Christian teachers and advisors, both inside and outside the classroom.” They also “are expected to strive to engage students in their respective disciplines from the perspectives of the Christian faith and to teach with accuracy and integrity.”

Gordon does not require that its professors have any specific formal religious training prior to starting their employment. However, when applying to work at Gordon College, all faculty, administrators and trustees must sign a memorandum of understanding, agreeing to “support the goals and objectives of Gordon College as a distinctively Christian institution of higher learning.”

Employees also acknowledge personal agreement with the school’s “Statement of Faith” and agree to abide by the standards set forth in the “Statement of Life and Conduct at Gordon College.”

Among other things, the Statement of Life and Conduct sets forth certain faith-based “behavioral standards” applicable to students, faculty and staff alike.

Prior to joining Gordon, DeWeese-Boyd received a master’s degree in general theological studies from Covenant Theological Seminary in St. Louis. She performed mission work in the Philippines in addition to her seminary training.

DeWeese-Boyd first contacted Gordon about a tenure-track faculty position in its social work department on Feb. 25, 1998, and was formally hired a few months later.

Gordon promoted DeWeese-Boyd to associate professor in 2004, and approved her for tenure in September 2009.

As faculty members progress through the promotion and tenure application processes at Gordon, they are required to describe in detail how they integrate faith and teaching, which DeWeese-Boyd did.

After her promotion in 2004, DeWeese-Boyd’s formal title was “associate professor of social work, with tenure.”

Key to the issue at hand, she averred that she never held herself out as a minister inside or outside Gordon, and she never regarded herself as a minister.

When Curry notified DeWeese-Boyd that she was declining to recommend DeWeese-Boyd for promotion, she said that DeWeese-Boyd’s scholarly productivity “did not reach acceptable levels” for a Gordon faculty member, and that her professionalism and follow-through on institutional projects about which she may not feel passionate were lacking.

However, DeWeese-Boyd believes the real reason Gordon College denied her promotion was because she had been one of the most outspoken faculty critics of the college’s policies and practices concerning LGBTQ+ individuals and the college’s prohibition against sexual activity outside of marriage between one man and one woman.

Gordon argued that because DeWeese-Boyd was responsible for integrating its faith-based beliefs into her teachings, she qualified as a ministerial employee and thus the ministerial exception, which the U.S. Supreme Court first recognized in a 2012 decision, Hosanna-Tabor Evangelical Lutheran Church & School v. E.E.O.C., applied.

DeWeese-Boyd countered that she was not a ministerial employee because her title did not suggest any ministerial or religious role, she did not hold herself out as a minister, and she did not perform any religious functions of a minister.

Karp noted that soon after Hosanna-Tabor was decided, the Massachusetts Supreme Judicial Court applied the ruling to hold that the ministerial exception prohibited discrimination claims asserted by a teacher that “taught religious subjects at a school that functioned solely as a religious school, whose mission was to teach Jewish children about Jewish learning, language, history, traditions, and prayer” in Temple Emanuel of Newton v. Massachusetts Comm’n Against Discrimination.

Karp explained that, for the ministerial exception to apply as a bar to an employment discrimination claim, the employer must demonstrate both that it is a “religious institution,” as the law defines that term, and that the employee is a ministerial employee.

Karp found that while Gordon College qualified under the first prong of the test, DeWeese-Boyd did not under the latter.

In Hosanna-Tabor, the Supreme Court identified four “considerations” it found relevant to the determination: the employee’s “formal title,” “the substance reflected in that title,” the employee’s “use of that title,” and “the important religious functions [the employee] performed.”

While saying that DeWeese-Boyd’s application of the Hosanna-Tabor factors was too strict and inconsistent with precedent, Karp nonetheless decided DeWeese-Boyd is not a minister for purposes of the exception.

Karp applied a “functional approach” along with a framework established by the Kentucky Supreme Court in the 2014 case Kirby v. Lexington Theol. Seminary to conclude that DeWeese-Boyd did not qualify as a ministerial employee “for several reasons.”

“In sum, although DeWeese-Boyd had a seminary degree when hired, she did not have a religious title at Gordon, she did not represent herself as a minister, she did not play an integral (or any) role in religious services, she did not convey Christian doctrine to the Gordon community, she did not lead her students in prayer, and she did not perform any religious functions,” he wrote.

Karp added, “Although she was responsible for integrating the Christian evangelical faith into her teaching and advancing Gordon College’s distinctively Christian perspective and worldview, ‘the primary focus under the law is on the nature of the particular employee’s work for the religious institution.’”

On Aug. 2, 2018, Superior Court Judge Salim R. Tabit had ordered that discovery be bifurcated to allow the issue of whether the ministerial exception applied to be fully explored.

Now that that issue has been resolved in DeWeese-Boyd’s favor, the case is set to proceed to discovery on the substance of the dispute.

The 54-page ruling in DeWeese-Boyd v. Gordon College, et al., Lawyers Weekly No. 12-018-20, can be found here.