Today s Cultural Changes and the Christian School A Legal and Spiritual Look ACSI Professional Development Forum 2016 Thomas J. Cathey, EdD ACSI Assistant to the President Director for Legal/Legislative Issues
Today s Cultural Changes and The Christian School A Legal and Spiritual Look Thomas J. Cathey ACSI Assistant to the President Director for Legal Legislative Issues June 26, 2015 Chief Justice Roberts Today s decision, for example, creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is -- unlike the right imagined by the majority -- actually spelled out in the Constitution.... There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today. 1
Justice Thomas In our society, marriage is not simply a governmental institution; it is a religious institution as well. Today s decision might change the former, but it cannot change the latter. It appears all but inevitable that the two will come into conflict.... The majority appears unmoved by that inevitability. It makes only a weak gesture toward religious liberty in a single paragraph. And even that gesture indicates a misunderstanding of religious liberty in our Nation s tradition. Religious liberty is about more than just the protection for religious organizations and persons... as they seek to teach the principles that are so fulfilling and so central to their lives and faiths. Religious liberty is about freedom of action in matters of religion generally, and the scope of that liberty is directly correlated to the civil restraints placed upon religious practice. Justice Alito the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected. We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.... By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas. EEOC Commissioner Feldblum There can be a conflict between religious liberty and sexual liberty, but in almost all cases the sexual liberty should win. 2
Gay rights vs. Religious rights Justice Kennedy those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. Legal Complexities Abound 26 States include Sexual Orientation as a Protected Class in State Nondiscrimination Laws (at least 19 include Gender Identity) Public Accommodations Employment Housing 150 Localities have SOGI Laws Source: Movement Advancement Project (www.lgbtmap.org) 3
Scenario: The school could lose tax-exempt status, or donors to the school could be denied credit for a charitable contribution. Corporate Taxes to be paid Sales Taxes to be paid Property Taxes to be paid Donors lose tax deduction Tax Exempt Discussion 1. What could your school do now to help minimize the impact of losing your tax exempt status? 2. What would a new financial model for your school look like? 3. How can you start to build loyalty in your mission now so that donors would want to give whether there was a tax deduction or not? Scenario: In states with voucher or tuition tax credit or educational savings plan programs, schools that resist the Sexual Orientation/Gender Identity (SOGI) agenda could be ruled ineligible. 1. Could/would you still participate in a program that required open admissions but did not limit your hiring rights? 2. What would you have to do in your school to make that change and still be faithful? 3. What are other steps you should be doing in this area? 4
Maryland Voucher, Aging Schools and Book Program A nonpublic school participating in the program may not discriminate in student admissions on the basis of race, color, national origin, or sexual orientation. Nothing herein shall require any school or institution to adopt any rule, regulation, or policy that conflicts with its religious or moral teachings. However, all participating schools must agree that they will not discriminate in student admissions on the basis of race, color, national origin, or sexual orientation. First preventing what happened in Maryland Requires the schools and parents to be aware of legislation and speak up to your legislators. However, if to receive funding you must have a nondiscrimination policy on SOGI then what? Discussion at the board and church levels Nondiscrimination regarding SOGI in admissions 1. What will be included in your code of conduct for students? 2. The interview with families is critical. 3. Communication with current families. 4. Training for teachers and staff. 5
Scenario: Legal challenges could arise with respect to hiring or (especially) firing, if the basis for decisions is sexual behavior outside of traditional marriage, or advocacy of acceptance of such behavior, or a change in gender identity. 1. Has your school reviewed and updated your policies and practices? 2. Are you currently engaged in your state and national legislatures to ensure your voice is being heard? Steps to protect religious hiring We must clearly articulate our religious mission and religious requirements for employment at the school. Have a Biblical statement of faith that employees must adhere to without mental reservations. Steps to protect religious hiring We believe that the term marriage has only one meaning: the uniting of one man and one woman in a single, exclusive union, as delineated in Scripture (Genesis 2:18-25). We believe that God intends sexual intimacy to occur only between a man and a woman who are married to each other (1 Corinthians 6:18, 7:2-5; Hebrews 13:4). We believe that God's command is that there be no sexual intimacy outside of or apart from marriage between a man and a woman. We believe that God wonderfully foreordained and immutably created each person as either male or female in conformity with their biological sex. These two distinct yet complementary genders together reflect the image and nature of God (Genesis 1:26-27). Our Statement of Faith is not exhaustive of all of our beliefs. The Bible, as the inspired and infallible Word of God, speaks with absolute authority regarding the proper conduct of mankind and is the unchanging foundation for all belief and behavior. The School Board holds final interpretive authority on biblical meaning and application with regard to faith, doctrine, policy, practice, and discipline. 6
Steps to protect religious hiring We must clearly articulate our religious mission and religious requirements for employment at the school. Have a Biblical statement of faith that employees must adhere to without mental reservations. Have a mission statement that identifies the school s religious purpose. Have job descriptions that clearly identify the religious qualifications such as being born again and other expectations. Have a lifestyle statement and declaration of moral integrity that articulates what type of life the person must lead to qualify for an employment position in a religious school ministry. (24/7/365) In all your documents, define biblical marriage and the roles of men and women. Steps to protect religious hiring Emphasize that individuals on your staff must serve as Christian role models for your students. This should enable you to require higher standards from applicants and employees than is typical for secular employers. This phrase and concept of Christian role models should be a part of your job descriptions and contracts. Use scripture. Luke 6:40 Emphasize that teaching is a ministry. Steps to protect religious hiring Threat of New SEXUAL ORIENTATION Nondiscrimination Category The Employment Non-Discrimination Act (ENDA) seeks to add sexual orientation as a new non-discrimination category to Title VII. It passed the House of Representatives in the past but not the Senate. Last year, it passed the Senate but it has not passes in the House President Obama s Executive Order. 7
Steps to protect religious hiring The Equality Act Introduced into Congress on July 23, 2015 H.R. 3185 and S. 1858 This bill would add sexual orientation and gender identity as protected categories under the Civil Rights Act. More expansive than ENDA It amends a large number of federal laws making 59 amendments to 8 different federal laws. Would apply not only to employment, but also to public accommodations, public facilities, public education, federal grants and loans, housing, credit transactions, jury duty, and more. NO RELIGIOUS EXEMPTIONS! Steps to protect religious hiring The First Amendment Defense Act S. 1598 and H.R. 2802 Introduced to protect religious persons and institutions from discrimination by the federal government simply on the basis of their belief that marriage is the union of one man and one woman. Prohibits the Federal Government from discriminating against a person based on their religious belief about marriage Prohibits denial of tax exemption Prevents denial of federal grants or licenses Scenario: The school could be denied participation in inter-scholastic sports or other activities with peer institutions. 1. What would you do if you were required to adopt transgender policies in order to compete in an athletic league? 2. What if you had to compete against a team that has transgender athletes on its team? 8
USDE/DOJ Guidance Letter on Transgender Students May 13, 2016 This is not legislation. It is simply a statement and guidance letter. However, it is a strong recommendation to public schools, colleges and universities. It puts schools on notice that USDE is reinterpreting the Title IX prohibition on sex discrimination to include gender identity and transgender status. USDE/DOJ Guidance Letter on Transgender Students What is the immediate impact on Christian Schools? No immediate impact Could have future implications Christian Schools should continue to operate according their biblical mission and standards. USDE/DOJ Guidance Letter on Transgender Students What about Title services and federal programs that are provided to Christian Schools? Title Services provided through the local LEA have not been impacted. These are services provided to teachers and students and are not direct federal funding. erate, CCDBG and National School Lunch Programs have not been affected yet there is caution. 9
USDE/DOJ Guidance Letter on Transgender Students What programs could be affected immediately? Athletics with public schools as they adopt transgender policies Athletic Associations USDE/DOJ Guidance Letter on Transgender Students What should Christian Schools do at this point? Children are created in the image of God Christian Schools should be hospitable places Seek God s Guidance Scenario: The school could lose its accreditation with secular organizations or with states (where that exists) 1. Why as schools do you need secular accreditation? 2. Have you considered accreditation? 10
Scenario: The school could be required to incorporate units favorable to the SOGI agenda in its curriculum for state recognition of your high school diploma. 1. Can Christian school create curriculum that is sensitive to the SOGI agenda? 2. How would you go about this? Scenario: The school could lose Title funding and other federal programs such as free and reduced lunch, e-rate, etc. 1. How much of this funding impacts your school operations today? Could you live without it? Scenario: The school could be considered a public accommodation either in facility rentals or in enrollment. By public accommodation, you would be considered open to the general public and many of the religious protections would not apply to who you allow to enroll or rent to. 1. Have you considered who you rent your facilities to? 2. Have you implemented the changes to your rental policies? 11
Public Accommodation? Property that is open to the public Stores, restaurants, hotels, and theaters No court has yet ruled that a Christian School is a public accommodation But two CA courts have considered it. Facility Use Policies User must sign a written agreement that Use will be consistent with church s or school s doctrine Stewardship Authority of school to make final decision as to doctrine and use Identify who is the authority with the school Only Christian dispute resolution will be used if disagreement arises Today s Changing Culture! In the coming years we will still have religious freedoms but it is likely to look different than it does today. We will have two choices to make when confronted with laws that limit our ability to live out our faith. We can close our doors and stop the ministry of Christian education or we can find ways to work within the limitations we find ourselves under (like in Canada). We need to begin thinking of how Christian education will be different in the coming years and how can we remain faithful. 12
Today s Changing Culture! God is still on the throne and none of this surprises Him! The darker the night, the brighter the light shines! Harmless as doves, but wise as serpents! People need to see the love of God in our lives so that our lights might shine before all men that they may see our good works and glorify our Father in heaven. Tom Cathey tom_cathey@acsi.org 13
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