Case On Religious Schools, Employment Discrimination At Court The pair of cases is the second time in less than a decade that the court has been asked to consider arguments involving discrimination lawsuits from teachers fired by parochial schools.


Supreme Court Weighs Whether Religious Schools Can Fire Lay Workers

  • Download
  • <iframe src="" width="100%" height="290" frameborder="0" scrolling="no" title="NPR embedded audio player">
  • Transcript


For the second time in a week, religion was at the heart of a case argued virtually in front of the Supreme Court. The question today is whether lay teachers at parochial schools are exempt from fair employment laws. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: Five of the current justices attended Catholic parochial schools. And with the exception of Justice Sonia Sotomayor, their questions today suggested all the conservatives may well be ready to work a sea change in employment practices at religious schools, hospitals, charities and other religiously affiliated institutions.

The cases before the court involve two fifth-grade teachers at Catholic parochial schools in California. One, a veteran of 16 years teaching at her school, contends her firing was a case of age discrimination. The other said she was fired after she told her superior she had breast cancer and would need some time off.

Both schools deny the allegations but maintain that regardless, the fair employment laws of this country do not apply to their teachers because they all teach religion 40 minutes a day. Thus, the schools argue, they're covered under the so-called ministerial exception to the nation's fair employment laws, an exception created by the courts. For decades, the lower courts have not considered lay teachers exempt from those laws, however.

Today in the Supreme Court, the questioning focused on how to draw a line between those who are ministers of the faith and those who are not. Justice Elena Kagan peppered lawyer Eric Rassbach of the Becket Fund for Religious Liberty with hypotheticals. What if a math teacher said a short prayer at the beginning of class? What about a coach who leads her team in prayer? And what about nurses?


ELENA KAGAN: A nurse at a Catholic hospital who prays with sick patients and is told otherwise to tend to their religious needs.

ERIC RASSBACH: I think a nurse doing that kind of counseling and prayer may well fall within the exception.

TOTENBERG: The Trump administration, supporting the religious schools, faced skeptical questions from Justice Ginsburg, who said that definition of who's a minister is so staggering that it would cover any teacher who reports a priest for sexual abuse or harassment. Assistant solicitor general Morgan Ratner replied that when dealing with a teacher at a religious school, the exemption is categorical.

Next up was lawyer Jeffrey Fisher, representing the teachers. He faced this question from Chief Justice John Roberts.


JOHN ROBERTS: We're much more focused on titles, I would think, than whether or not they're performing religious function.

TOTENBERG: Fisher replied that if the court focuses only on function, religious schools will, as they already have been doing, start to write their job descriptions in religious terms so as to scoop up all the employees in the ministerial exception. Justice Ginsburg interjected with a different question.


RUTH BADER GINSBURG: What I find very disturbing in all this is a person can be fired or refused to be hired for a reason that has absolutely nothing to do with religion, like needing to take care of chemotherapy.

JEFFREY FISHER: Anytime a religious employer wants to hire and fire or take other employment action for religious reasons, the statutes themselves let them do that. So the only place the ministerial exception really matters is in a case where the religion is not acting for religious reasons.

TOTENBERG: But the court's conservatives seemed unpersuaded. Justice Alito noted that teaching religion is central to a religious school's mission. And here's Justice Gorsuch.


NEIL GORSUCH: Elsewhere in First Amendment jurisprudence, we don't second-guess those sincerely held religious beliefs. Why would we do it here?

TOTENBERG: Justice Kavanaugh referred to teachers who teach religion from a handbook or workbook.


BRETT KAVANAUGH: But my guess is a lot of religion teachers would say their life is their training.

TOTENBERG: Fisher replied that there just has to be something more than that, or else, he said...


FISHER: It would blow a hole in our nation's civil rights laws and our employment laws in general to say that categorical immunity applies, and so schools can pay people different amounts, use race, sex, other private characteristics, even when they have nothing to do with the religion and the religious values at stake.

TOTENBERG: Nina Totenberg, NPR News, Washington.


Copyright © 2020 NPR. All rights reserved. Visit our website terms of use and permissions pages at for further information.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.