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Relief, If Not Celebration
By Rev. Dennis Holtschneider, CM
One doesn’t celebrate winning a fight one should never have had. It is a relief, nonetheless, to acknowledge an important success after many years of common effort.
Unions will seek to organize faculty and staff on our campuses from time to time. A number of our institutions welcome unions, and ACCU sees these as just one of a number of ways our campuses can give faculty and employees voice in the decisions that concern them. The National Labor Relations Board (NLRB), however, having been repeatedly told by the federal courts that it did not have jurisdiction over these matters (Catholic Bishop of Chicago vs. NLRB (S. Ct.) , Great Falls vs. NLRB (D.C. Cir.) , and Carroll Coll., Inc. v. NLRB (D.C. Cir.) ), devised and tested a novel — and ultimately unacceptable — approach to asserting jurisdiction over our institutions.
In short, the NLRB skirted the Supreme Court’s prohibition by asserting its own “standards” of what constituted a religious university, declared these institutions or the faculty role as “non-Catholic” by their sole judgment, and then dictated that these institutions enter into bargaining sessions. Carroll College, Duquesne University, Manhattan College, and Saint Xavier University (IL) were all targeted for this analysis and, thankfully, stood their ground. Suits were filed. The cases took years and were supported by ACCU as we filed amicus briefs at each level of appeal.
Just a few months ago, in September 2020, the D.C. Circuit refused to reconsider a January 2020 ruling in favor of Duquesne University and in rejection of the NLRB’s intrusive approach. That case is concluded. And on January 26, 2021, the D.C. Circuit refused an initial request by the union in the Manhattan College case for the full court to reconsider the D.C. Circuit’s precedent. That ruling bodes well for both Manhattan College and Saint Xavier University in the D.C. Circuit, where both cases are technically still pending and petitions for Supreme Court review in those cases remain a possibility. There was no petition to the Supreme Court following the Duquesne decision, however.
Collectively, these rulings by the D.C. Circuit are a very big win for religious freedom in the United States.
Collectively, these rulings by the D.C. Circuit are a very big win for religious freedom in the United States. They reinforce that no government agency should, of its own initiative, pick and choose among various characteristics and then itself decide if we are sufficiently “faith-based” to claim the title.
The universities deserve our thanks for holding firm through years of expensive litigation. These rulings help secure the bright-line test established in the Great Falls case, whereby courts will take a hands-off approach to attempts by the government to decide for itself if our institutions are “Catholic enough” to qualify as faith-based institutions. For those of you who are interested in the details and background, the National Law Review has a very good explanation of the bright-line test and the relevant cases.
Many of our campuses enjoy very good relationships with unions that represent various groups of employees. For all campuses, these cases are a good reminder to reach out to faculty, who perform an essential function on our campuses and are so much more than mere functionaries.
- Bolster relationships with all faculty, including adjunct faculty. Help them feel enfranchised, appreciated, and included in the decisions that affect them.
- Be clear about the role of all faculty in regard to the religious mission of your institution. As we learned in the case of Carroll College — which did not proceed through multiple appeals, as did the others —language in faculty handbooks that describes faculty members’ key role in delivering the institution’s mission is helpful. Faculty play a fundamental role in breathing life into the Catholic identity of our institutions. As Pope Emeritus Benedict XVI wrote, “In every aspect of their education, students need to be encouraged to articulate a vision of the harmony of faith and reason capable of guiding a lifelong pursuit of knowledge and virtue.” (Address to the Bishops of the United States of America [Regions X-XIII] on Their “Ad Limina” Visit, Rome, May 5, 2012.)
Please join me in thanking Carroll College, Duquesne University, Manhattan College, and Saint Xavier University, as well as to all those Catholic college and university presidents who served on the ACCU Board over these many years, and who stood up together to protect our institutions from government intrusion and overreach. If our Catholic commitment to labor justice remains intact, so does our ability to define for ourselves the ways in which we will shape the Catholic identity of our institutions.