Maguire v. Marquette University

• Decision Date: 12 February 1986
• Docket Number: Civ. A. No. 84-C-711.
• Citation: 627 F. Supp. 1499
• Court: U.S. District Court — Eastern District of Wisconsin
• Parties: Dr. Marjorie Reiley MAGUIRE, Plaintiff, v. MARQUETTE UNIVERSITY, Defendant.

627 F. Supp. 1499

Dr. Marjorie Reiley MAGUIRE, Plaintiff, v. MARQUETTE UNIVERSITY, Defendant.

Civ. A. No. 84-C-711.

United States District Court, E.D. Wisconsin,

February 12, 1986.

Walter F. Kelly, Milwaukee, Wis., for plaintiff.

John G. Hill, Jr., Gen. Counsel, Milwaukee, Wis., for defendant.

DECISION AND ORDER

REYNOLDS, Chief Judge.

This case presents a very interesting question and that is whether or not federal judges should decide who is eligible to teach in the theology department of a religious university—in this case, Marquette, which is run by the Jesuits of the Roman Catholic Church. The Court is troubled by the fact that both parties seem to agree that this Court should have something to say about plaintiff's eligibility to teach in Marquette's theology department.

Setting aside the question of the competence of this Court to decide who is and who is not a good Catholic, I think for the reasons stated in this decision that Title VII and the First Amendment to the United States Constitution, which provides for the separation of church and state, preclude this Court from assuming jurisdiction of the subject matter of this action.

Plaintiff alleges that Marquette University refused to hire her as an associate professor of theology because she is a woman and because of certain of Marquette's agents' "perceptions and/or misperceptions ... concerning the plaintiff's views repecting the moral theology of abortion and/or the public policy of abortion ...." (plaintiff's supplemental complaint, par. XIV-A, filed July 25, 1985). Jurisdiction allegedly arises under 28 U.S.C. §§ 1331 and 1343 for her Title VII sex discrimination claim. The court has pendent jurisdiction over her state law claim that she was denied the academic freedom that Wisconsin law protects. The facts are taken from the parties' submissions.

Plaintiff brought this action in May of 1984. She successfully sought the recusal of two federal judges, and the case was then assigned to me in May of 1985. There are currently two motions before the Court. The plaintiff seeks leave to supplement her complaint and the defendant has moved for partial summary judgment. The defendant does not oppose the motion to supplement the complaint and that motion will be granted.

In its motion for partial summary judgment, the University seeks a court ruling that its policy of reserving half the teaching positions in the theology department for Jesuits is exempt from Title VII attack, that all of plaintiff's allegations of discrimination arising before April 7, 1980, are untimely, and that plaintiff's claims to academic freedom be dismissed because she was never a member of the school's faculty.

The defendant appears willing to go to trial on the question of whether it discriminated against the defendant in regard to that half of the theology department positions that are not reserved for Jesuits. Although it is apparent to the Court that summary judgment is also appropriate on that question, the defendant has failed to request it.

The principle question before the Court was barely alluded to in the defendant's moving papers and would remain even if Marquette is successful on its motion for summary judgment. It is whether a federal court is the appropriate forum in which to decide who should teach in the theology department at a Catholic University. Because I find that it is not, the defendant's motion for partial summary judgment will be construed as a motion for summary judgment and be granted. The Court's basis for decision renders the other issues the defendant has raised moot.

FACTS

Marquette University takes its name from Pere Jacques Marquette, a Jesuit missionary who explored New France, Wisconsin, and the Mississippi river in the 17th Century. The University was formally opened in Milwaukee, Wisconsin, in 1881 under the auspices of the Society of Jesus, the Jesuits. Marquette University currently consists of thirteen colleges, schools and programs, and offers both graduate and undergraduate degrees to the roughly ten thousand students enrolled at its sixty-eight acre campus. Undergraduate students in business administration, education, engineering, journalism, liberal arts, medical technology, nursing, physical therapy, and speech complete courses for credit in theology.

Marquette informs the Court that its basic goals and principles are as follows:

Marquette's primary reason for being is a shared conviction on the part of its sponsors and sustainers that their Catholic belief has dimensions pertinent to and salutary for higher education, and that those dimensions can best be celebrated in distinctly Catholic institutions. In other words, a Catholic university is one of the inumerable witnesses Catholics may give of their faith. It surely is that a part of Catholic belief is the necessity of conforming life to faith, i.e., to be integral. For some the life to be made whole is the life of higher education, and Catholic universities are an expression of this drive to integrity.

("University and Catholic: Final Report of the Special Committee on the Christian Character of Marquette University," at 1, dated July 1, 1977. The report is an abbreviated version of a 1969 report entitled: "University and Catholic").

Article I of the Amended By-Laws of Marquette University provides, in relevant part, that "The University shall be governed as an independent private corporate entity of the State of Wisconsin, conducted under the auspices, and consonant with the educational principles, of the Society of Jesus." Article II, Section 1 of those by-laws sets up a governing board of twenty-nine trustees, eight of whom are to be Jesuits. Three-fourths of the trustees must vote affirmatively to elect a trustee or to change the by-laws. This gives the Jesuit trustees, if they vote as a block, the power to deny the other trustees the authority to make such changes without Jesuit approval.

Marquette University contracts with the Marquette Jesuit Associates, Inc. The Associate's headquarters serves as the residence for the seventy Jesuits who work for Marquette University. This organization receives the salaries of its members, uses the money to defray the members' expenses, and returns the surplus to the University for its unrestricted use. In fiscal year 1983-84 the associates returned $250,000. Each year the group is one of the largest financial contributors to the University. In his affidavit in support of Marquette's motion, the Executive Vice President of the University states that although they welcome the financial support, "Even more cherished ... is the moral and intellectual contribution which these Jesuits make to the purpose and mission of the University." Affidavit of Quentin L. Quade at 4, September 24, 1984.

The University has adopted an affirmative action plan, which plan includes a clause in which the University reserves the right to "grant preferences in its employment practices to Jesuits to perform any work connected with the carrying on by Marquette University of its activities." Marquette University Affirmative Action Program, Article II(c), November 1980. In the instant action the plaintiff questions the validity of this preference as it is applied to the hiring of Jesuits in the theology department.

The plaintiff is a white woman who has unsuccessfully applied for a position as an associate professor of theology specializing in the area of systematics. The head of the Marquette theology department informs the court that systematics has been defined as "the total theological enterprise as this has been unified by the architectonic reason ... it seeks to articulate all the constituent elements of Theology in a coherent whole ..." Affidavit of Rev. William Kelly, September 24, 1984, quoting from John Macquarrie, Principles of Christian Theology, at 39 (1977). The plaintiff seeks damages for wages and benefits she would have received had she been hired. She also asks this Court to order the University to hire her for that position.

Approximately half of the current members of the theology department are Jesuits who are, by definition, male. Only one of the 27 full-time positions is held by a woman. That figure is apparently lower than numbers found in the theology departments of comparable institutions. Plaintiff has provided the Court with deposition testimony that female candidates are asked different questions than male candidates and that department members have on occasion made sexist comments.

The Jesuits are particularly influential in the theology department. In fact, they run it. At the time plaintiff was applying, the advisory/hiring committee was appointed by the head of the theology department, a Jesuit, who was himself appointed by the Jesuit Dean without an election by the faculty. The Jesuit chairman of the theology department would then appoint two other Jesuits and one non-Jesuit to the advisory/hiring committee. Jesuits take a vow to obey their superiors, and department chairmen and deans are considered to be superiors in the departments that they oversee.

Plaintiff applied for positions on at least six occasions over several years, and she questions whether her earlier applications were even considered. She claims that although she is a Catholic and qualified to fill the position, the University has refused to hire her because she is a woman and because of the beliefs of certain of the defendant's agents respecting plaintiff's views on the moral theology of abortion.

In its motion for partial summary judgment, the University seeks a ruling that it may give preference to Jesuits in making its hiring decisions, but, as indicated before, Marquette is apparently planning to go to trial on the question of whether the plaintiff was discriminated against with regard to hiring for the roughly fifty-percent of theology positions that are not reserved for Jesuits. Defendant's briefs and plaintiff's supplemental...