Coulee Catholic Schools v. Labor and Industry Review Comm.

Decision Date21 July 2009
Docket NumberNo. 2007AP496.,2007AP496.
Citation2009 WI 88,768 N.W.2d 868
PartiesCOULEE CATHOLIC SCHOOLS, Petitioner-Appellant-Petitioner, v. LABOR AND INDUSTRY REVIEW COMMISSION, Department of Workforce Development and Wendy Ostlund, Respondents-Respondents.
CourtWisconsin Supreme Court

For the respondent-respondent, Wendy Ostlund, there was a brief by Dawn Marie Harris and D.M. Harris Law, L.L.C., La Crosse, and oral argument by Dawn Marie Harris.


Wendy Ostlund ("Ostlund") brought a claim alleging that she was terminated from her first-grade teaching position at a Catholic school on the basis of her age in violation of the Wisconsin Fair Employment Act ("WFEA"). The school responded that her position was "ministerial," maintaining therefore, that her suit was barred by the First Amendment of the United States Constitution. The La Crosse County Circuit Court, Dale T. Pasell, Judge, determined that her position was not ministerial. In a published decision,1 the court of appeals affirmed the judgment of the circuit court.

¶ 2 The question before us is whether Ostlund's age discrimination claim under the WFEA is precluded by the First Amendment and/or the Freedom of Conscience Clauses in Article I, Section 18 of the Wisconsin Constitution.

¶ 3 We conclude that both the Free Exercise Clause of the First Amendment of the United States Constitution and the Freedom of Conscience Clauses in Article I, Section 18 of the Wisconsin Constitution preclude employment discrimination claims under §§ 111.31 to 111.395 of the Wisconsin Fair Employment Act for employees whose positions are important and closely linked to the religious mission of a religious organization. In the case at bar, Ostlund's school was committed to a religious mission—the inculcation of the Catholic faith and worldview—and Ostlund's position was important and closely linked to that mission. Therefore, Ostlund's age discrimination claim under the WFEA unconstitutionally impinges upon her employer's right to religious freedom. Accordingly, we reverse the court of appeals' decision and remand to the circuit court to dismiss Ostlund's claim.


¶ 4 Wendy Ostlund began working as a first-grade teacher at St. Patrick's Elementary School, a Catholic school located in Onalaska, Wisconsin, in 1974. St. Patrick's is a member school of Coulee Catholic Schools ("CCS"), which is a cooperative effort between area Catholic schools to share resources, streamline administration, and unify curriculum. CCS is owned, operated, and subject to the authority of the Diocese of La Crosse, Wisconsin, and is therefore an entity of the Catholic Church. In 2003, CCS consisted of one high school, one middle school, five primary/elementary schools, and one early childhood center.

¶ 5 The Catholic school is considered a "ministry" of the Catholic Church. According to documents submitted in the course of this litigation, the Catholic Church considers "the foundation of the whole educational enterprise in a Catholic school" to be Jesus Christ. The Catholic school aims at "a Christian concept of life centered on Jesus Christ." Teachers are believed to be essential to this ministry. As Archbishop Emeritus of St. Louis, Raymond L. Burke, the Bishop of La Crosse at the time of Ostlund's termination, testified in his deposition:

[I]t's the teachers who make the Catholic school happen. In other words, the students first learn the integration of faith and culture, the integration of faith and learning the practice of their faith from their active learning from the witness that their teachers give. And to teach a Catholic spirit, a Christian spirit in a whole school, the teachers have to reflect this, first of all, in their own lives.

¶ 6 During her tenure with CCS, Ostlund's typical school day would run from approximately 7:30 a.m. until 3:30 p.m. Before students arrived, Ostlund would finish preparations for the day, including finalizing her lesson plans. After students arrived, Ostlund began the day with prayer and the Pledge of Allegiance.

¶ 7 The first subject of the day was reading. After reading, students had recess, followed by either computer instruction or art class. Both of these were taught by another teacher. Ostlund would then teach science and social studies on alternating days. Her social studies instruction contained a Christmas unit during which Ostlund had the students make a booklet that discussed ways other countries celebrate Christmas.

¶ 8 After this, students had lunch, followed by recess. Ostlund did not supervise lunch, but did sometimes go out to the playground with the students. Following lunch, Ostlund again led the students in prayer. The afternoon schedule consisted of math and handwriting. The students then went to physical education or music class, which were taught by another teacher.

¶ 9 During this more traditional academic curriculum, Ostlund made efforts to incorporate religious examples, symbols, and values into the lessons. For example, in a reading exercise involving word recognition that required students to match colors with corresponding numbers on a worksheet, the colors corresponded to different objects in the Garden of Eden. Or in math, some of the exercises involved worksheets where students connected dots that formed religious images.

¶ 10 The final period of the day was religion, which usually lasted thirty minutes. Ostlund taught religion on her own three days per week. A priest or deacon accompanied Ostlund on the fourth day. During religion class, Ostlund taught the Catholic faith, not comparative religion. Ostlund taught her students about prayer, and was often the first person to teach the first graders certain Catholic prayers. She taught them basic Catholic doctrine, and specific worship practices like the Stations of the Cross. Ostlund also helped her students celebrate school-wide religious holidays such as St. Patrick's Day, Advent,2 May crowning,3 and Lent.4

¶ 11 On the fifth day of the week, Ostlund attended a school-wide Mass with her students. Approximately every fourth week, Ostlund was responsible for helping to plan the Mass with her class. When planning Mass, Ostlund was in charge of choosing appropriate readings from the Bible. She was also responsible for the petitions that would be read and prayed during Mass. These she would either choose from a liturgy guide, or at times, write herself. Ostlund also participated in various aspects of the Mass, including reading responsorial psalms and carrying the bread and wine. Thus, Ostlund played an important role in planning the all-school Mass and in teaching her students about the Mass—one of the central acts of worship in the Catholic faith.

¶ 12 In addition to these specific duties, Ostlund's classroom incorporated objects of the Catholic faith into the learning environment, such as a crucifix and statue of Mary. The classroom had a prayer corner where the Bible, a rosary, and religious candles were displayed. She also incorporated certain seasonal displays such as palm leaves around Palm Sunday and a nativity scene during Christmas.

¶ 13 Each year, Ostlund was required to sign an employment contract, which provided in pertinent part:

The Employee agrees to faithfully and conscientiously perform any and all duties of the position(s) for which he/she is hired and all other duties as directed by the Employer including, but not limited to ... comply with the requirements of the Diocese of La Crosse and the State of Wisconsin regarding the educational preparation of teachers.

It also provided:

The Employee as a teacher in a Catholic educational system agrees that as a condition of employment he/she will support and exemplify in conduct both Catholic doctrine and morality. He/She must be consistent in expression and example, with the teaching and practice of the Catholic faith and shall not teach, advocate, encourage or counsel beliefs or practices contrary to the Catholic faith.

¶ 14 The CCS Faculty and Staff Handbook included written rules, regulations, and policies adopted by the Diocese of La Crosse and approved by its Bishop. These policies required teachers to comply with certain standards. A preamble to these standards stated in pertinent part:

The primary mission of the Catholic Church is to continue the mission of Jesus: PROCLAIMING THE KINGDOM OF GOD. Central to this mission is the teaching of the Word of God. This ministry of the Word is given expression in the education efforts of the Church.

It is the goal of the five dioceses in the state of Wisconsin to promote and support a comprehensive educational ministry. The ministry extends to people of all ages: adults, youth and children.

Following their long tradition of service to the people of Wisconsin, Catholic elementary and secondary schools and religious education programs continue to be an essential part of the educational ministry of the Church.

By virtue of their ministry, personnel in Catholic education are role models for other adults, youth and children. Therefore, they are called to be well-informed in Catholic teachings and committed to a Catholic way of life.

¶ 15 The standards themselves contain several requirements for teachers. Notably, elementary school teachers of religion were required to have both basic and advanced certifications in religion, which Ostlund acquired and maintained. Both the basic and advanced certifications involved yearly continuing education sessions where Ostlund was instructed on how to teach Catholic...

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