E.E.O.C. v. Mississippi College

• Decision Date: 26 September 1980
• Docket Number: No. 78-3123,78-3123
• Citation: 626 F.2d 477
• Parties: 23 Fair Empl.Prac.Cas. 1501, 24 Empl. Prac. Dec. P 31,268 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. MISSISSIPPI COLLEGE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 477

626 F.2d 477

23 Fair Empl.Prac.Cas. 1501,

24 Empl. Prac. Dec. P 31,268

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. MISSISSIPPI COLLEGE, Defendant-Appellee.

No. 78-3123.

United States Court of Appeals, Fifth Circuit.

Sept. 26, 1980.

Rehearing Denied Nov. 12, 1980.

Vincent J. Blackwood, E.E.O.C., Washington, D. C., for plaintiff-appellant.

Edward McGlynn Gaffney, Jr., Associate Director, Notre Dame Law School, Notre Dame, Ind., amicus curiae for Center for Constitutional Studies.

James M. Boone, Baton Rouge, La., amicus curiae for plaintiff-appellant.

Jolly, Miller & Milan, E. Grady Jolly, Judith J. Johnson, Jackson, Miss., for defendant-appellee.

James T. McCafferty, III, Charles R. Davis, Jackson, Miss., amicus curiae for Miss. Baptist Convention Board.

Bruce R. Hopkins, Washington, D. C., amicus curiae for Christian College Coalition.

Peyton S. Irby, Jr., Jackson, Miss., amicus curiae for William Carey Col. & Am. Assoc. of Presidents of Independent Colleges and Universities.

Walter E. Carson, Washington, D. C., amicus curiae for Seventh-day Adventist Church.

Appeal from the United States District Court for the Southern District of Mississippi.

Before MORGAN, CHARLES CLARK, and TATE, Circuit Judges.

CHARLES CLARK, Circuit Judge:

The Equal Employment Opportunity Commission (EEOC) appeals the district court's denial of its petition seeking enforcement of a subpoena issued in connection with its investigation of a charge of discrimination filed against Mississippi College (College). At issue is a significant interplay between the effective enforcement of Title VII and the religious protections of the first amendment. We vacate the judgment appealed from and remand the action to the district court.

I. FACTS

A. The College

Mississippi College is a four-year coeducational liberal arts institution located in Clinton, Mississippi. The College is owned and operated by the Mississippi Baptist Convention (Convention), an organization composed of Southern Baptist churches in Mississippi.

The Convention conceives of education as an integral part of its Christian mission. It acquired the College in 1850 and has operated it to the present day to fulfill that mission by providing educational enrichment in a Christian atmosphere. As part of its policy, Mississippi College seeks to assure that faculty and administrative officers are committed to the principle that "the best preparation for life is a program of cultural and human studies permeated by the Christian ideal, as evidenced by the tenets, practices and customs of the Mississippi Baptist Convention and in keeping with the principles and scriptures of the Bible." In accordance with this purpose, the College has a written policy of preferring active members of Baptist churches in hiring. ¹ The evidence the College presented to the district court indicates that approximately ninety-five percent of the college's full-time faculty members are Baptists. The evidence also shows that eighty-eight percent of the College's students are Baptists. The undergraduate curriculum for all students, regardless of major, includes two courses in which the Bible is studied, and all students are required to attend chapel meetings held twice weekly. The College's facilities include prayer rooms available for use by the students and the College employs a full-time director of Christian activities. Because no woman has been ordained as a minister in a Southern Baptist church in Mississippi, the College hires only males to teach courses concerning the Bible.

B. The Charging Party

Dr. Patricia Summers, the charging party, obtained part-time employment with the College as an assistant professor in the psychology department for the 1975-76 school year. While employed by the College, Summers learned of a vacancy in the full-time faculty of the department of educational psychology created by the departure of Raymond Case, an experimental psychologist. She expressed her desire both orally and in writing to be considered for the position, but she was not interviewed by College officials. Instead, the College hired William Bailey to fill the vacant position. When Summers inquired why she had not been considered for the vacancy, the Vice President of Academic Affairs informed her that the College sought someone with a background in experimental psychology.

In May 1976, Summers filed a charge of discrimination with the EEOC, alleging that Mississippi College had discriminated against her on the basis of sex in hiring someone to fill the vacant full-time position in the psychology department. She later amended her charge to include the additional allegations that the College discriminated against women as a class with respect to job classifications, promotions, recruitment and pay and that it discriminated on the basis of race in recruiting and hiring. ²

The evidence before the district court demonstrates that Summers had received a doctoral degree in education from the University of Virginia with a major in counseling and had engaged in post-doctoral studies at Harvard University and other nationally recognized schools. In an affidavit filed with the court, Summers averred that she previously had taught experimental psychology. The President of Mississippi College, Dr. Lewis Nobles, stated both in an affidavit filed with the EEOC and in his testimony before the district court that the College sought to fill the vacancy with an experimental psychologist, that Bailey had been trained in this field, and that Summers' experience was in clinical psychology. Nobles also stated that an additional factor in the College's selection of Bailey was that he was a Baptist, while Summers was not. Although Summers had been baptized in the Baptist faith while a child, she joined the Presbyterian church, the faith of her husband, when she married in 1970.

Although the College did not hire Summers to fill the vacant full-time position, it did offer to renew her part-time contract for the 1976-77 school year at an increased salary. In offering to renew her contract the College did not indicate that it had any objections to her religious views.

C. The Subpoena Enforcement Proceedings

The College refused to comply voluntarily with the EEOC's request for information that the Commission considered necessary to investigate Summers' charge. The EEOC issued a "SUBPOENA AD TESTIFICANDUM/DUCES TECUM," seeking information concerning: (1) the characteristics of each member of the College's faculty and administration, including race, sex, religion, job classification, and pay; (2) sources from which the College recruited faculty members; (3) any studies of faculty pay for the 1975-76 year; (4) all promotions of members of the faculty or administration for the 1975-76 and 1976-77 school years; (5) the employment records of Summers and Bailey; (6) all employment applications for the years 1975-76 and 1976-77; and (7) the most recent EEO-6 report filed by the College. ³ The College responded to the subpoena by filing a petition with the EEOC seeking revocation of the subpoena. The EEOC denied the College's petition. The College still declined to comply with the subpoena and the EEOC brought this action in the district court seeking enforcement of the subpoena under § 710 of Title VII, 42 U.S.C. § 2000e-9. ⁴ After a hearing on the merits, the district court denied enforcement of the petition. EEOC v. Mississippi College, 451 F.Supp. 564 (S.D.Miss.1978).

The district court found that the College was a religious educational institution, that by written policy the College accorded a preference in hiring to Baptists except where necessary to maintain academic standards, that Summers was Presbyterian, and that the male whom the College hired for the position sought by the charging party was Baptist. After stating that the EEOC's investigation of Summers' charge did not involve any question of race discrimination, the district court concluded (1) that under § 702 of Title VII ⁵ the EEOC could not investigate Summers' claim of employment discrimination except to determine whether the College's allegation that it hired Bailey because of his religion was true; (2) that because an investigation of the College's employment practices by the EEOC would result in excessive entanglement of the government in church affairs, the application of Title VII to a religious educational institution violated the establishment clause of the first amendment; (3) that because an investigation of the College's employment practices by the EEOC potentially would inhibit the College's practice of preferring Baptists in hiring, the EEOC's exercise of jurisdiction over the College violated the free exercise clause of the first amendment; and (4) that the College's selection of faculty members involved matters of church administration, that are exempt from the application of Title VII under this court's decision in McClure v. Salvation Army, 460 F.2d 553 (5th Cir.), cert. denied, 409 U.S. 896, 93 S.Ct. 132, 34 L.Ed.2d 153 (1972).

On this appeal the EEOC contends that the district court erred in denying its petition for enforcement. First, it asserts that Summers, although white, can assert a charge of race discrimination against the College because she has standing to assert discrimination that affects her "working environment." Second, it argues that § 702 does not exempt race or sex discrimination by a religious education institution from the scope of Title VII. Third, it maintains that its investigation of the College's hiring practices violates neither the establishment clause nor the free exercise clause of the first amendment.

II. SUMMERS' STANDING TO ASSERT A CHARGE OF RACIAL DISCRIMINATION

The district court concluded that the EEOC's subpoena enforcement action did not involve any question of racial discrimination by the College. EEOC v. Mississippi College, 451 F.Supp. at 565. The EEOC argues that...