Reversing a precedent set by the Obama-era National Labor Relations Board, President Trump’s appointed board on Wednesday said it doesn’t have jurisdiction over faculty members at religious colleges and universities.
The decision, concerning Bethany College, a Lutheran liberal arts institution in Kansas, heartened some religious education groups and First Amendment hawks who believe that the NLRB, a government entity, should have no say in how religiously affiliated campuses are run.
“In terms of the reasoning, this is 300 percent right,” said Harry I. Johnson III, an attorney with Morgan, Lewis & Bockius who previously served on the NLRB. “This is right on the law, right on the matter of practicality and right on the matter of agency deference to courts.”
Shirley Hoogstra, president of the Council for Christian Colleges and Universities, said the decision was a good one.
"It bolsters the belief that government can correct itself when it makes a mistake," she said. "A democracy isn’t perfect. But the system of checks and balances allows government to do redo loops. That’s what happened here."
On the flip side, the decision, which walks back a major 2014 decision by the NLRB concerning Pacific Lutheran University, alarmed many other scholars and union advocates who described it as its own brand of overreach.
William Herbert, executive director of the National Center for the Study of Collective Bargaining in Higher Education and the Professions at Hunter College of the City University of New York, for instance, called the Bethany decision a “reductionist step backward on the issue of labor rights at religiously affiliated institutions.”
Rather than “grapple with the complexity of the issues,” he said, “the NLRB board chose an agenda-driven simplicity to reach its decision.”
The Pacific Lutheran decision (on which Johnson dissented when he was a board member) established that adjuncts at a religiously affiliated institution could unionize through NLRB channels if they didn’t serve a specific religious function as part of their job.
The decision was seen as a victory for unions, and for many adjuncts. But it has been criticized as incompatible with the First Amendment, most recently by the U.S. District Court of Appeals in Washington, in a case concerning adjuncts at Duquesne University.
The current NLRB cited the Duquesne case in its opinion this week, saying that it’s not the board's place to decide whether or not faculty members perform a religious duty as part of their job.
The “exercise of board jurisdiction over religious schools in matters involving faculty members will inevitably involve inquiry into the religious tenets of these institutions,” the unanimous three-member opinion, written by board chair John F. Ring, states. “We agree that such inquiry would impermissibly present a significant risk that the protections set forth in the religion clauses of the First Amendment of the Constitution would be infringed.”
Instead of the Pacific Lutheran test, the board adopted a jurisdictional test established in 2002 by the federal appeals court in Washington, D.C., in a case concerning the University of Great Falls.
The Great Falls test has three parts, according to the NLRB’s analysis, which cites the 2002 decision. The board must decline jurisdiction over faculty members at an institution that 1) “holds itself out to students, faculty, and community as providing a religious educational environment,” that 2) is “organized as a nonprofit,” and that 3) is “affiliated with, or owned, operated, or controlled, directly or indirectly, by a recognized religious organization, or with an entity, membership of which is determined, at least in part, with reference to religion.”
Johnson said the board, on which he served, attempted to balance the National Labor Relations Act with the Constitution in the Pacific Lutheran decision, but that the flaw in such an approach is that the Constitution supersedes all other statutes. There should be no balancing in those circumstances, he said.
Still, Johnson said that the scope of the decision was relatively narrow.
“One thing that this does is affirm religious freedom in the U.S,” he said. "But it doesn’t have much of a macroeconomic implication for faculty-labor issues in higher education nationwide, because if you were to put them all in a pie graph, I think the vast, vast majority of colleges and universities have no religious affiliation.”
There is still a strong legal precedent against collective bargaining rights for tenure-track and tenured faculty members teaching at private institutions, who are largely considered managers.
Hoogstra said that the board "appropriately followed the lead of federal courts, protected First Amendment principles of religious autonomy and preserved the kind of healthy separation of church and state that all Americans can support."
Herbert, meanwhile, said the “impact of the decision goes far beyond Bethany College and its faculty. It provides religious institutions with the freedom to terminate faculty for exercising fundamental workplace rights and to suppress faculty unionization, despite the mandate of the NLRA.”
Even so, Herbert thought it was unlikely most religious institutions of higher education will interpret the decision as a “license to suppress fundamental labor rights.”
Instead, he said, the decision “might be the catalyst for an informed discussion among individuals and institutions of goodwill to create a non-NLRB procedure and process that protects collective labor rights, as well as legitimate concerns about the impairment of the free exercise of religion.”
Bethany’s legal counsel declined an immediate comment on the decision. The case there concerned two former assistant professors in history, Lisa Guinn and Thomas Jorsch, a married couple. They complained to the NLRB that Bethany terminated them in violation of the NLRA, after Jorsch raised concerns about what he considered to be Bethany’s overly broad confidentiality rules and reached out to the American Association of University Professors in its advocacy capacity. He and Guinn also later said that professors at Bethany were prohibited from discussing a proposed tenure plan and general employment terms and conditions among each other. (Guinn and Jorsch were previously terminated at Upper Iowa University, amid non-tenure-track faculty cuts and after speaking out against proposed curricular changes there.)
An administrative law judge at the NLRB sided with Guinn and Jorsch in 2017 and ordered Bethany to cease and desist from "discharging" and retaliating against employees for engaging in protected activities, and from telling employees they couldn’t discuss their working conditions.
The college denied the couple’s claims of retaliation and of muzzling faculty members and appealed to the NLRB’s full board, which sided with Bethany.
Christopher N. Grant, an attorney for the couple, who are both now teaching at institutions in Oklahoma, said via email late Wednesday, “We are disappointed with the decision. We are currently reviewing it and our options. I suspect this fight for labor rights at colleges and universities is not over.”