E.E.O.C. v. Catholic University of America
| Decision Date | 14 May 1996 |
| Docket Number | 94-5283,Nos. 94-5263,s. 94-5263 |
| Citation | 83 F.3d 455,317 U.S.App.D.C. 343 |
| Parties | 70 Fair Empl.Prac.Cas. (BNA) 1230, 68 Empl. Prac. Dec. P 44,051, 317 U.S.App.D.C. 343, 64 USLW 2728, 109 Ed. Law Rep. 568 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION and Elizabeth McDonough, Appellants, v. The CATHOLIC UNIVERSITY OF AMERICA, Appellee. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeals from the United States District Court for the District of Columbia (No. 92cv02449).
Samuel A. Marcosson, Equal Employment Opportunity Commission, Uniondale, NY, argued the cause and filed the briefs, for appellant Equal Employment Opportunity Commission.
Bonnie Y. Hochman, argued the cause and filed the briefs, for appellant Elizabeth McDonough.
James B. Sarsfield, Washington, DC, argued the cause, with whom George T. Masson, Jr., was on the brief, for appellee.
Before BUCKLEY, WILLIAMS and HENDERSON, Circuit Judges.
Opinion for the court filed by Circuit Judge BUCKLEY.
Sister Elizabeth McDonough and the Equal Employment Opportunity Commission allege that The Catholic University of America engaged in sex discrimination and retaliatory conduct, in violation of Title VII of the Civil Rights Act of 1964, when it denied her application for tenure in its Department of Canon Law. District Judge Louis F. Oberdorfer dismissed the action as precluded by the First Amendment's religion clauses. We agree with Judge Oberdorfer that the Free Exercise Clause forbids judicial review of this case because Sister McDonough's role at Catholic University was "the functional equivalent of a minister." We also agree that the application of Title VII to her employment requires an intrusion by the Federal Government in religious affairs that is forbidden by the Establishment Clause.
The Catholic University of America was chartered by Pope Leo XIII in 1887 as a Roman Catholic institution of higher learning. C. Joseph Nuesse, The Catholic University of America: A Centennial History 52-53 (1990). Originally, the University was "strictly a pontifical institution, functioning under the direction of the Holy See." Granfield v. Catholic University of America, 530 F.2d 1035, 1043 n. 19 (D.C.Cir.1976). Although the University's by-laws were amended in 1970, giving it greater independence from the Vatican, it remains a "sectarian institution" that is governed by a Board of Trustees consisting of fifteen members of the American Catholic hierarchy (usually bishops) and fifteen laymen. See id. The University's Departments of Canon Law and Theology (which are departments within its School of Religious Studies) and its School of Philosophy, however, remain under pontifical direction and hold the canonical status of "ecclesiastical faculties." See Canonical Statutes of the Ecclesiastical Faculties of the Catholic University of America ("Canonical Statutes"), Part I, Sec. 1.
This case concerns the University's Department of Canon Law ("Department"). Canon law is the "fundamental body of ecclesiastical laws" of the Roman Catholic Church. Canon Law Society of America, Code of Canon Law xvi (1983). It governs the sacramental life of the Church and defines the obligations and rights of the faithful. Id., Books II and IV. The Department's stated purpose is "to familiarize the student with the entire body of ecclesiastical law, its development and interpretation," Statutes of the Ecclesiastical Faculty of Canon Law, Part I; it is the only institution in the United States that is empowered by the Vatican to confer ecclesiastical degrees in church law. Affidavit of Sister Elizabeth McDonough ("McDonough Affidavit") at p 13, reprinted in Joint Appendix ("J.A.") 328.
Sister Elizabeth McDonough is a nun in the Dominican Order. Following her profession of vows, Sister McDonough was assigned to teach mathematics, science, and religion at Catholic high schools in Connecticut and Ohio. In January 1976, her superior suggested that she pursue a degree in canon law, a field of study that the Catholic Church had recently opened to women. Accordingly, in the fall of 1978, Sister McDonough enrolled in the School of Religious Studies at Catholic University. In 1979, she transferred to the school's Department of Canon Law and, in May 1982, became the fifth woman at Catholic University to receive a Doctorate of Canon Law.
Soon after receiving her degree, Sister McDonough applied for a teaching position in the Department. Her application was accepted and, in 1983, she became the first woman to be admitted to its faculty with a tenure track appointment. In addition to teaching classes, Sister McDonough assisted students, published articles, and performed various consulting services. In 1988, she was promoted to the rank of associate professor and began inquiring into her prospects for securing tenure.
In order to secure tenure in the Department of Canon Law, an applicant's qualifications must first be reviewed by three academic bodies: the tenured faculty members within the Department, the School of Religious Studies' Committee on Appointments and Promotions ("School CAP"), and the Academic Senate's Committee on Appointments and Promotions ("Senate CAP"). A favorable recommendation by any of these bodies requires the vote of a majority of those participating in the consideration of a case. The procedures governing these reviews are set forth in the University's Faculty Handbook and are generally applicable to all candidates for tenured positions at the University. Because the Department of Canon Law is an ecclesiastical faculty, however, an applicant for tenure in the Department who has survived the review of his academic peers must also be approved by ecclesiastical authorities in accordance with the procedures set forth in the University's Canonical Statutes. Affidavit of Father James H. Provost ("Provost Affidavit") at 6, reprinted in J.A. 478. These provide that, after the candidate has received the affirmative recommendation of the Senate CAP, the President of the University must forward to the Chancellor, who is, ex officio, the Archbishop of Washington, the application and all relevant information regarding the appropriateness of the candidate's appointment to an ecclesiastical faculty. Canonical Statutes, Part III, Sec. 6, Part V, Sec. 3. It is the Chancellor who "grants the canonical mission to teach in the name of the Church." Id., Part V, Sec. 4.
The Canonical Statutes provide, further, that before the Chancellor may appoint a person to a tenured professorship, the members of the Board of Trustees who are bishops must review the application and, after consultation with the Vatican, make "a declaration to the Chancellor that there is no impediment to the appointment." Id., Part V, Sec. 6.1 & n. 3 ( "existence of an agreement between the Chancellor and the Apostolic See regarding consultation of the Apostolic See prior to the making of this declaration by the episcopal members of the Board"). In the case of one of the Department's tenured professors, the process of consultation extended over a period of seventeen months, in which he responded in writing to questions presented by the Vatican through the Archbishop of Washington and met with several groups of bishops, cardinals, and other church officials both in the United States and in Rome. Provost Affidavit at 7, J.A. 479.
Sister McDonough submitted her initial tenure application in August 1988. On October 4, 1988, the Canon Law Faculty voted not to recommend tenure by a "split negative vote" of two in favor, three against, and one abstention. She appealed this decision to the School CAP which, without voting, returned her application to the Department for reconsideration in light of a new article she had published. On November 15, 1988, the Canon Law Faculty held a second vote and again failed to muster the majority required to endorse her application. After consulting with members of her religious congregation, Sister McDonough withdrew her application.
Sister McDonough submitted a revised application the following January; and, for the third time, the Canon Law Faculty withheld an affirmative recommendation by a vote of three to three. She again appealed to the School CAP, which this time voted in favor of tenure and forwarded her application to the next level of review, the Senate CAP. This body denied Sister McDonough the absolute majority required for a recommendation by a vote of three in favor, one against, and two abstentions.
Sister McDonough appealed the Senate CAP's decision, alleging that she had received "differential and unfair treatment." McDonough Affidavit at p 107, J.A. 375. The University's Academic Vice President granted her appeal and returned the application to the Senate CAP for reconsideration, citing "substantive and procedural questions." During the interval between the Senate CAP's initial vote and its reconsideration of her application, Sister McDonough submitted copies of a new article that she had published; and the University asked certain external evaluators to comment on her scholarship. Sister McDonough also wrote letters to two members of the Senate CAP expressing her belief that she was being held to a higher standard because of her sex. On November 14, 1989, after reviewing the new publication and despite the favorable tenor of the external evaluations, the Senate CAP voted unanimously not to recommend tenure. The reasons given for the denial were:
1. The scholarship of the candidate does not measure up to the standards expected in the field for the granting of tenure;
2. While the committee recognized the candidate's contribution to service and the practice of canon law, in its opinion this factor does not...
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