[blindlaw] The ADA in churches

Elizabeth Rene emrene at earthlink.net
Sat Sep 8 21:22:34 UTC 2012


Thank you, Daniel and Angie, for writing in response to my last post.

I think that you've both emphasized that the ADA's application to churches
has to be fact-specific.  And it may also depend upon which circuit court of
appeals ends up hearing the case.  Realistically, only the truly big, 
sweeping
cases get to the Supreme Court, and then maybe only if the courts of appeals
too widely disagree.

I have wondered, myself, whether receipt of federal funds or a federal
license shouldn't be taken as a waiver of the ministerial exception by
churches and church related institutions.

I think that seminaries that participate in the federal student loan program
ought to be required to follow the ADA, and it's possible that the US
Department of Education might hold so.  But the seminarian who complains to
the Department of Educations Civil Rights office risks being seen by
ordained faculty and sponsoring religious authorities as rejecting formation
for "life in community" by eschewing internal processes in favor of outside
enforcers.  This seminarian could prevail in ADA litigation against the
school, but then be denied ordination.  The Supreme Court in the Hosanna
Tabor decision, that had analogous facts,  said that this would most likely
not constitute unlawful retaliation, because the very nature of ordained or
commissioned ministry embodies a promise to adhere to church discipline.,
and the courts won't invade that relationship.

Many seminaries do not participate in federal student loan programs.  They
do not embrace the ADA.

The multi-faith, Association for Clinical Pastoral Education (ACPE) is
licensed by the US Department of Education to accredit hospital-based
training centers for the training of hospital chaplains and clinical
pastoral educators, to certify clinical pastoral educators, and to grant
academic credit to clinical chaplaincy interns and residents.  The ACPE has
also obtained pass-through agent status for purposes of hospital Medicare
billing.  Every seminarian must complete one unit of clinical pastoral
education (CPE) to graduate or to be ordained.  But the ACPE does not
consider itself subject to the ADA.  The Sixth Circuit Court of Appeals, in
a case called Hollins vs.. Methodist Health System held that a Catholic
seminarian could not invoke the ADA against a Methodist-hospital CPE program
that dismissed her because of a perceived disability.  The ACPE argued that
acceptance of a federal license did not grant the courts jurisdiction where
there otherwise would be none, and the Sixth Circuit agreed.

Other, faith-based, clinical pastoral training organizations exist to
accredit and certify their own institutions and teachers for the training of
chaplains and seminarians.  But they do not seek federal licensure or
federal funding, and do not hold themselves accountable to the ADA.

Ironically, hospitals that host CPE programs often are federally funded, and
CPE supervisors (clinical educators and CPE program managers) and their
stypended chaplaincy students are hospital employees.  So a CPE intern or
resident could sue a hospital for its CPE program's ADA violation, and win,
but might ultimately and lawfully be denied supervisor certification by the
ACPE, whose processes and authority far overarch the jurisdiction of any
hospital or any one religious denomination.  CPE supervision training lasts
five years beyond seminary.  So the person wanting a career in clinical
pastoral education must think twice about challenging discrimination of any
kind.

You've maybe heard the term, "pyrrhic victory."  Now you know what it means.

The ministerial exception to court jurisdiction doesn't just apply to the
ADA.  That's why the EEOC can't use Title Seven of the Civil Rights Act of
1964 to make the Catholic Church in America ordain women to the priesthood.

Lastly, the First Amendment's words, "Congress shall make no law ..." say
nothing about the granting or waiver of privileges.  They define the
boundary beyond which Congress is forbidden to legislate.  Everything after
that gives us lawyers something to argue about.  And the Thirteenth
Amendment's abolition of slavery in the United States says no one can make
us argue for free unless we want to.

I hope you'll all still want to, and that the NFB will rally around those 
brave souls whose dream and calling is to follow their faith and serve their 
religious communities as ordained and commissioned leaders.

Elizabeth 





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