"The Hardest Year": Understanding the Contract Disputes in San Francisco

Over the last few weeks the Catholic schools of the archdiocese of San Francisco have brought their 2014-15 school terms to a close. Proud teachers and parents have watched as graduates have received their diplomas, their eyes turned now to broader horizons.

But for the teachers of the four archdiocesan schools of San Francisco, the focus remains very firmly in the here and now, as their contracts continue to be negotiated. This year marked the first time since Archbishop Salvatore J. Cordileone took over in 2012 that the teachers’ contracts have been up for renegotiation. And as part of that process the archbishop made two unexpected moves: first, he added a section to the faculty handbook listing a set of “truths” that every staff member was expected to “affirm and believe.” (The original addendum, which the archbishop is currently having rewritten, can be found here. My original analysis of that material can be found here.)

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At the same time in the contract itself the archbishop added language that identified all teachers as “ministers.” Dr. Melanie Morey, who has recently come onto the archdiocesan staff as the director of a new Office of Catholic Identity Assessment and Formation for the schools, well summarizes the archdiocese’s thinking: “Everybody who works in a Catholic school contributes to its mission. Its religious mission cannot be parsed out as if it were an ornament on a tree. It is essential.”

And as such, whether they are lay faculty or clergy, Catholic or non-Catholic, teaching theology or home ec, all teachers are ministers. Says Morey: “People do not have to be ordained ministers to do that, they are contributing to it. They have to understand it, they have to have respect for it. And they have to know that everything they do, everything they do, will either support and amplify that mission, or destruct it.”

(An extensive interview with Morey can be found here.)

On the surface, that change might not seem altogether controversial. Most people who work in Catholic schools do so because they’re invested in the schools’ mission. “I have my California credential,” explains Paul Hance, English teacher and union representative at Junípero Serra High School, “but I’ve never worked in anything but a Catholic school because I do believe in the mission of the schools. We have a unique way of forming the whole person, spiritually and academically.”

At Marin Catholic, English teacher and union rep Gina Jaeger says much the same: she teaches at Marin “because I believe in the mission of the school, I believe in the Catholic principles that we operate within. I’m a product of Catholic education, I’ve seen the value in educating students here. Yes, I teach the English curriculum, but I also believe in educating the whole person, and the Catholic faith plays a role in that.”

But the use of the term “minister” in a contract today has serious legal implications. Say you get fired from your job, and you think the dismissal was unjustified, that there was some form of discrimination at work. Ordinarily, you’d have the right to present a lawsuit and make your case, right?

If you’re a minister working in a religious institution, the answer is, maybe not. Because if a court were to overturn a religious institution’s decisions regarding who it employs as ministers, in effect it could be interfering with the religious identity of that institution, a major First Amendment violation.

In general the courts don’t want to get anywhere near that. So for some decades now lower courts have been debating this idea that there must be a “ministerial exception” to the normal legal proceedings.

In 2012, the Supreme Court affirmed this concept, saying in the matter of Hosanna-Tabor Evangelical Lutheran Church vs. the Equal Employment Opportunity Commission, “Requiring a church to accept or retain an unwanted minister...intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.”

A number of dioceses and other religious groups have tried to use Hosanna-Taber and the ministerial exception to get wrongful termination lawsuits dismissed. In some cases, there was a doctrinal element involved—the Archdiocese of Cincinnati fired a non-Catholic computer technology teacher after she became pregnant out of wedlock. The Diocese of Fort Wayne-South Bend likewise fired a married language arts teacher when it was discovered that her pregnancy involved in vitro fertilization. 

Other cases have had nothing to do with religion. In 2012 the Diocese of Erie was sued for age discrimination by three female teachers—each with over thirty years of experience in the schools—after they were not rehired when their school was consolidated with two others. The case had no doctrinal component, but the diocese still cited ministerial exception in a bid to get the case thrown out.

Now in point of fact the Diocese of Erie lost that motion, and the subsequent case. So did Cincinnati and Fort Wayne-South Bend, in part because they were unable to establish that those teachers really could be construed as ministers. And last year the Kentucky Supreme Court ruled that the lawsuit of a tenured biblical studies professor at an evangelical seminary who was fired for cost cutting reasons could not be dismissed on the grounds of ministerial exception because his case, too, had nothing to do with religious issues. So the legal thinking continues to evolve.

But even so, to Catholic teachers in San Francisco the archdiocese’s decision to use the term “minister” in their contract looks like a move meant to enable the archdiocese to fire any teacher for any reason without threat of legal recourse. The teachers’ union (also the city’s Board of Supervisors and a number of state lawmakers) immediately contested the change in language, and the archbishop quickly agreed to remove the word “minister.” But every subsequent revision has continued to push that way of thinking. “The terms are gone, but the concepts still remain,” says Jaeger. “The issue of ministerial exception still exists in the current proposal, and that’s what we’re struggling with. There’s no way we can agree to that.”

University of Nevada, Las Vegas, lawyer Leslie Griffin, who has been advising the Catholic teachers, agrees: “You can be a minister even if the contract doesn’t say ‘minister.’ If the contract says you’re doing a religious job and you’re serving a religious mission, then they can say I guess you’re a minister because you’re doing a religious job.”

The archdiocese’s recent and unexpected creation of the Office of Catholic Identity Assessment and Formation has added further fuel to these concerns. Director Morey says one main goal of the new office is to help teachers add a religious dimension to their curriculum, no matter what they’re teaching. “There are components and aspects where the Catholic intellectual tradition can be woven into almost all disciplines.” “A true Catholic education is not an education that has a religion department and a campus ministry,” she argues, “but an education that that engages the Catholic intellectual tradition everywhere in some way, shape or form.”

Considering new ways that Catholic schools might be able to bring God and faith into their classrooms and conversations could be quite valuable. But in the current context it also looks to teachers like another way for the archdiocese to legally establish that all of them, no matter what they teach, should be viewed as ministers.

Asked about this, Morey had this to say: “I’m not a lawyer, I don’t look at it from a legal perspective. Those who make that claim, those are their issues, not mine.”

“Am I looking at it as a legal means by which someone can be terminated? Absolutely not. I am not interested in terminating people at all. I am interested in their development, the professional development of staff and faculty at institutions in the full range of their capacity to serve the mission.”

The archbishop has likewise tried repeatedly to reassure people he’s not instituting a doctrinal witch hunt, he’s not interesting firing anyone, that the archdiocese will continue to be just in its interactions with its employees.

For their part, the teachers wonder why then make all these moves, which each seem to reinforce the archdiocese’s possible legal claims, all at once. Jaeger and Hance both note, these seem like the steps a diocese would undertake in response to serious errors or breaches of responsibility on the part of teachers. But according to the Western Catholic Educational Association that accredits them, none of the archdiocesan schools are on any sort of probation. And union representatives know of no such problems, either. “There are four different campuses, human beings make mistakes,” acknowledges Hance. “But by no means are we aware that there was any kind of gross behavior that was outside of the norm. In my time at Serra, we haven’t witnessed any of that. Being one of the union reps, when someone is disciplined we’re a part of the process, and we haven’t experienced anything like that," adding that in his opinion the schools and the teachers have been entirely orthodox.

Jaeger agrees. “I think that in all of my twenty three years of experience of Catholic education as a student [at Marin Catholic] and as an educator, I’ve never heard or witnessed any overt contradictions to church teaching. It has not been my experience. So this creation of an Office of Catholic Assessment, this proposal for handbook language, the proposal for contract language all seems like a concerted effort to address a problem that does not exist. People are not confused about the mission of Marin Catholic, they’re not confused about their role as Catholic educators on this campus.”

The contract negotiations continue. And where they’ll end up is still unclear. For now, teachers find themselves anxious and also hurt. “I’ve served with several archbishops,” says Hance, yet he's never seen “this kind of language" or the "normal mechanisms [for dealing with teachers] gone around." 

“People have made this commitment [to teach here as].. an act of faith. It doesn’t seem fair that you can then use that act of faith to say no, you don’t have civil liberties.”

“It has been the hardest year,” agrees Jaeger. “People are exhausted.”

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John Placette
3 years 6 months ago
Sounds as though San Francisco is over legalized. I have worked all my life in jobs that are at-will. Never once have I feared termination. The debate is being driven by people who are less than enthusiastic about the church's mission and teachings. It is nothing less than a denunciation of the church. The situation has nothing to do with civil liberties.
C Lewis
3 years 6 months ago
There was no debate until the text for the revised Faculty Handbook was released for review. As the article reiterated, there have been no complaints or charges against teachers' behavior, methods or curricula in the classroom until the establishment of the "OCIA" and the new "hearts and mind" compliance demand. A problem was created by demanding conformation to the Archbishop's apparent agenda of turning the clock back to 1955 -- or perhaps forcing compliance with JPII's 1998 apostolic letter AD Tuendam Fidem. This letter modified Canon Law to require the infamous Profession of Faith meant for everyone ordained and/or holding an office in the Church (including theology professors). Perhaps Cordileone wants to get ahead of the game and require this same level of conformity from high school faculty -- the more mind control, the better, right? The Profession of Faith states in general what the Handbook detailed in grim detail -- Google it. When the Handbook was first presented, it was accompanied by explanatory emails from the OCIA, including a brief FAQ regarding violations of required compliance, "investigations" of same and possible disciplinary actions, including termination. The "investigations" relied heavily on incidents being reported, establishing a tattle-tale system of enforcement, which has nothing to do with respect, privacy, the rights of conscience and the rest of the pesky qualities one might expect to find in a Catholic Christian environment. Only a fool would assume these restrictions come without threat of enforcement -- if they're not going to be enforced, why even mention them? There is no benefit of the doubt in this situation. Cordileone has an agenda established for him by BXVI, and Catholic schoolteachers marching in lockstep under iron-fisted dogma and doctrine behavioral compliance is one piece of the agenda. The teachers are right to be very, very wary of this and future demands that violate religious and civil rights.
ed gleason
3 years 6 months ago
Cynthia L has it nailed about "establishing a tattle-tale system of enforcement' .My add would be that there is no need to 'establish a tattle tale system' '.... It exists now ..just look at comments on conservative blogs. , In the recent past 'calling laypeople 'ministers' was a moral sin in conservative minds. Apostolates was the political correct term for lay ministry, that is till the Supreme Court gave them a tool to rid themselves of the presumed 'unfaithful' . Imagine the Trads now getting their theology creds from the Supreme Court?
John Barbieri
3 years 6 months ago
Was heresy being taught at the four high schools? If not, there is nothing that needs to be rectified. This whole episode appears to have been contrived to serve some other purpose.
David Hopper
3 years 6 months ago
“Am I looking at it as a legal means by which someone can be terminated? Absolutely not. I am not interested in terminating people at all. I am interested in their development, the professional development of staff and faculty at institutions in the full range of their capacity to serve the mission.” If that is the case, then the legitimate concerns of the teachers could be substantially eliminated by the simple insertion into the handbook of a statement to the effect that "Notwithstanding anything else contained in this Handbook, Employer does not consider its teachers to be engaged in ministry for purposes of the ministry exception to applicable employment laws set forth in Hosanna-Taber and its progeny." If the diocese won't agree to do that, it gives the lie to the claim that they aren't looking at it from the effect on their ability to insulate the diocese from liability for wrongful termination.
Kathryn Hamaker
3 years 6 months ago
Since it's probably more or less clear what physical actions would be the basis for termination from employment by the San Francisco Archdiocese perhaps the Office of Catholic Identity should also publish a list of those organizations to which membership in or financial contributions to could result in employment termination.As a Catholic living my whole life in San Francisco and being to quote Winnie the Pooh a bear of small mind, I no doubt have many times in my life given money to or did volunteer work for numerous wrong organizations simply because never before has the archdiocese had an office assessing the Catholicity of Catholics. Added footnote if anyone in the hierarchy doesn't realize that the entire S.F. Bay Area Catholic and non Catholic is discussing the "situation" in the S.F. Archdiocese they're in for a rude awakening. I brought my car into a S.F. auto body shop yesterday (June 12) and had an extended conversation with the co-owner of the shop on whether the Catholic high schools would continue to exist.No doubt the owner had family and extended family who hope to utilize the schools.

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