Three quick questions about this week's Hosanna-Tabor case


After posting that snippet about whether Wednesday’s Hosanna-Tabor case decision applies to higher education, I still had the feeling that some professors at religiously affiliated colleges will be asking themselves: Will this affect me?

(You may remember that the Supreme Court ruling essentially allows religious schools to classify certain employees as “ministers,” leaving them exempt from federal employment-discrimination laws.)

I talked to University of St. Thomas law professor Thomas Berg, who filed an amicus brief (above) with the Supreme Court over the matter. (His previous piece in the Northwestern University Law Review Colloquy supported the school.)

A number of his statements seemed based on how he synthesized the various opinions of the justices, so there didn’t seem to be many hard-and-fast statements he could make.

(In any case, discrimination suits at religious colleges may be pretty uncommon. Berg said he couldn’t think of any Minnesota examples.)

His main message to me:

“The large majority of professors at most institutions are not going to be classified as ministers because of this decision. But it leaves open the possibility at colleges where bringing religion into the classroom is really emphasized.”

He elaborates a little in response to three main questions:

Will the ruling change many professors’ status at colleges, giving them the “minister” exemption?

“It shouldn’t change much, although we don’t know how broad the definition of “minister” will be in cases that emerge after this one, because the court didn’t give us an overall test for determining who’s a minister. (According to the court) somebody can be a teacher teaching secular subjects and still count as a minister. So that can have some implications for professors at colleges and universities.”

Note: Berg later said that’s “only if that person also has important responsibilities for teaching the school’s religious message.”

I think the main question, then, is how those responsibilities are defined. That still seems unclear.

In future rulings, how important will the strength of a college’s ties to a religion be? Could schools with tenuous church ties abuse the ruling by applying the term “minister” to employees out of convenience?

(I was thinking about schools that have old religious ties but aren’t known as religious colleges.)

His answer:

“(A college must make) a good-faith assertion that this person is a minister. If some school that has not taken religious ties seriously for years suddenly tries to claim that professors who have been teaching secular subjects — and not really teaching religion — are really ministers, it’s going to get laughed out of court. … So I’m not too worried about abuse of the title of ‘minister.'”

How would the protections of tenure affect the situation?

“I don’t think this affects tenure claims. … This opinion says it doesn’t apply to breach-of-contract claims by a teacher, and tenure is essentially a contract. … If the school wants to hold professors to the tents of the faith and still have tenure, it needs to qualify its tenure status.”