good morning your honour's may please the court my name is stanley graham and i represent duquesne university of the holy spirit under the the court's decision in great calls in carroll college the faculty and duquesne university are patently beyond the board's jurisdiction it is undisputed that they satisfy the three  duquesne has a religious educational environment its not profit and its affiliated with both the catholic church and the spirit an order given the this and that was the sum of the bright line test that is exactly the sum of the bright line yes your honor we satisfied there's no doubt about it the board found that in its decision given that we need all of those yes and again it's undisputed as the court stated in great falls the n l r b a must declined to exercise  test and it's always possible that what position that the university takes today about their faculty or adjunct faculty could change tomorrow because the goal of the university or the hypothetical that a particular group of faculty only has a secular mission and nothing else and i would still say that any of the great force has that there is no  jurisdiction and that's because the way and university advances its religious mission is not static it can change from time to time there may be a time when the university decides that they want that faculty members that at one point they thought would make concluded work were only secular to have more religious duties and i think think they need the to be involved in our religious meet mission they were part of that religious mission they go to an orientation program we're where the university talks about their religious mission the university  connection between faith and reason that the record is for the university encouraging and asking faculty to be involved in that part of that religious mission there's no doubt about that and what i don't i don't want to speak for drugs but i understood your question to be exploring the limits of the great falls if if if if i and i think i thought your answer maybe sliced to be too thin or maybe i didn't understand it is that i thought the argument you had making was that the very nature of these religious affiliated schools and trying to create a  religious environment for education has little to do with with the particular subject matter that's being taught i mean you could teach a class in calculus right completely secular subject but i thought your argument was that it's that that is one component to the overall environment that the college is trying to create it has a religious mission but they've got misunderstood well i think that's true your honor and i and i a would say that the the expectation is that all faculty have to contribute to that religious mission and that the board shouldn't be involved in parsing it saying well these people asks all of its professors to to do is to connect the spiritual and the scientific basis and reason that is a very important component of the catholic intellectual tradition and that is where they expect of all of their faculty ownership but you can't what if there was no religious affiliated college that said our our math instructors just teach man we don't you know don't begin with prayer don't you know make it connections to divine desire purpose just teach math that's your job what many other catholic universities feel about what their faculty does whenever they teach mr brown you're mentioning the dynamic nature of the university's faith mission and how it might change over time in response to project hypothetical and i wanted to explore more why and approach is troubling to you in light of that because it would seem that the board's approach is actually quite advantageous to a university that thinks you know during one period when the market for these engines is very difficult it might want to follow the lines of directors had medical to say you know this is anybody and everybody this is just just a calculus teacher if it wants to change it simply needs to hold out that that these faculty are part and parcel of the heart of the religious identity of the university and under as i understand it and obviously think the great cost has to the right pest if you don't get involved in those kind of issues then you're not in a situation where you have the potential of the board say well in this case really there very overt religious one that they're requiring so that's not the case so say more about that because the thing that i'm grappling with is why holding our isn't objective and not entangle and test at the whole school level but it becomes a person i'm in a tenement problem if it's applied to the proposed bargain and i understand that you're saying you know with the history of the board's completely religious to say ok we hear what the d c circuit said in great falls and we're going to allow the university to just tell us in our out and say these people doesn't have to be because what they teach is it but but to say these people are part of the heart of our religious mission as a whole faculty is period well you can be proud of it but they are good because they are not in the now that they're going to say that if it if if if ecology university wants to do that that may be a actually very different case that we have here that may be an interesting question and it's hard to imagine that happening but we're trying to do is create a past that has all kinds of intrusive impacts so first they say that exactly the number has to have a specific religious function so now they're defining religion and they're defining what that means then they say not only does it have to be a specific religious function but it has to involve basically overt kinds of religious activities and that includes proselytizing that includes religious counseling and then if you look at the record and you look at the decision they made all kinds of fine line  conclusions about whether your education can fit into those categories and that's why we have a three day hearing thousands of pages of exhibits and the board issuing a ruling great falls but it violates catholic bishop as well what so maybe we can separate out two things what i hear you saying is that they said they were applying an objective test but they in practice yes yes like if it applied the holding out test the same way that great falls to find it and that said we will take your word for it in fact with the board i think that the regional director here found that these employees were not held out as having any role in creating or maintaining the college's religious environment at and at the time and i understand  question in a bright line question is a religious doesn't hold itself to relate to being religious and the purpose of the test is to make sure that a university just trying to avoid jurisdiction doesn't pass that ways first it's defines what i cast where the faculty has to have a quote specific religious function in maintaining a religious mission and they have yes that's true you're out as contributing to get that day religious environment but that's sort of that and that really got to get past their religiosity but then it goes even further in violating constitution liberties because then it says not only do you have to hold them out as having a specific function but here is the kinds of things we look at do you propagate do you provide religious counseling  it's a very hard nosed approach to religion it's very different then the approach to religion and that duquesne utilizes and it's very different  than he expectations of what it's faculty should be doing to advance its religious myth mission and the record is clear that it's asking us faculty including advantage and faculty in many different ways are oh my goodness look at what it says in the handbook look at the i think the orientation program that it has and of course the board's answer to that is well that every they're not required to go it's not mandatory so somehow it  i would also know the who are the religious work program and that program is required of all first year students it involves courses like theology spiritual aspect of the program for its students and again agence are part of that and they are expected to help communicate the spiritual issues yeah the other thing i would mention and here i think this is also very important is that the university has a whole series of programs they have a center for catholic into intellectual tradition that base of your vast product programs in forums to help its faculty understand catholic theology catholic intellectual  what was in your brief and basically something the university if you generally that would be holding out and one way to the board  talked about the fact that they actually have a mission grants available specifically for actions to help them and to encourage them to  put together proposals to to make those kinds of religious connections as part of their their their teaching the faculty ha session called the role of the faculty without the faculty of the union for university to be and i'm able to prepare its students intellectually professionally aesthetically spiritually or ethically put the responsibilities of life  call getting started states under the first things that became religious need mission provides a context and guy for all we do at the core curriculum page on the web states that two canes core curriculum provides a common educational experience for undergraduate students which uniquely expresses the spirit in catholic identity became university as i said about half the courses in the core of our time by adjuncts and these are not the i mean i understand part of the adjunct faculty is exempted because they are involved in just education really exempted are people who are in the theology compartment so you could be a philosopher teaching in the first year you can be a fix professor you could be a sociology professor teaching in this core curriculum you're saying and i involve the kinds of issues then we're talking about the connection between science and religion so this time here's here's one of the things that's difficult on page two of your brain if you mention a duquesne just bargained with it's not academic stuff and so we have a unanswered question it's an you know on the one hand top official talks about the institution great falls talks about the faculty and it also talks about the institution but and and carroll college we talk about the institution but it's clearly not the entire institution that's covered so the question is what is it that is the heart of the religious mission that is and i say covered in actual exam to what is it about the heart of the religious mission and you know which body of staff are examined and we need to draw a line and we're just probing you know why would it be that you know what about graduate teaching assistants staff or faculty and haven't they know and how do we know that because faculty are so critical to the communication of his religious vision without faculty it couldn't be communicated to students and that's why they expect wealthy to do it that's why they ask faculty to be involved in mansmann of that mission all faculty and of course simply should i'm sorry the board shouldn't be simply in the position of judging whether they do it in the right way whether they are is court has repeatedly told the board no there's no reason to reach a different conclusion here the first problem when it was merely what do you do with your drug your hypothetical if we have a situation where a university is not expressly held down a subset of the faculty as they serve in the religious mission of the university and what happens that i think the right answer is the school is still examined and i think the right way to understand great falls in hero but that this issue wasn't presented i think sure but the basic question i mean these are constitutional avoidance cases that are about keeping the you know about whether the action be read as giving the board jurisdiction in a context  likely to raise first and the concern here but here we have a school the bargains with cafeteria workers so they have decided that there's one subset of the university community that is could be subject to the the question we're asking there now is if they have at it unless you can show us where they have if they haven't held out their edge of faculty as being part of the religious mission why are their property for that purpose like the cafeteria workers and not like the members of the department yeah i'm sure and i think that the basic reasoning that i take great falls and catholic bishop to be a statistician is that it's all holds out it's teachers and it's faculty members as religious by virtue of holding itself out as religious that's the bright line great falls drops we don't want to get into let's look at which particular teachers further the mission in which your audience hypothetical was a school did i understand  i don't think the carve out release kind of solves the problem i mean i think that in practice what you're really going to end up doing is getting into these first amendment sensitive debates about well do the board like and do the universe you really  mean i think the core of our view of the position that great falls in the stat wishing is that you know that that is the holding out i mean that's if you go back to great old specifically talked about one of the reasons the holding out test for the institution was the right test because that would tell faculty your come into work at a school that has a religious minister we're not talking about not teaching staff at a religious controversy i'm not aware of any case that has applied holding its faculty out as religious by holding itself out that's right but i do i do want to be clear that it is not settled law that the question of what now is once you get the our teachers i mean they're you know i mean i decide i think you know the question you asked earlier about you know it's clear that kind of the staff is off to another site i mean the board itself is in disagreement about this right now so that is a question that i just want to be clear is you know it's not an issue in this case the i don't think you know that it's as simple as the board wants to suggest that oh it's already well established you know that there is a line on the other side but that said i mean i do think it's well established that wherever the line is if there is a looming teachers and you know all faculty members are on the side of being within an institutional exemption that exists once you establish what the has to that worth and great falls then you say the board itself is in disagreement on this term to th being the question of whether the catholic bishop exemption applies outside the context of teachers to other types of staff members so it's an issue that's come up in some other other contexts so i don't want to you know suggest that that's sort of a settled issue it's doesn't purport to be consistent with great falls me on its face it says it's rejecting the great falls test it believes it understands that under this court's precedent it would not have jurisdiction in a case like this one and it rejects this court's precedent and says it believes that this court overreach and that this court implied you know imposed too stringent of a test by giving the institution an exemption instead of looking at the faculty members so just as a matter of spending they were talking about the sham prom and they were saying it doesn't necessarily need to be no no feeling they were the formal i mean they didn't say that but they also said that this court overreached by look by creating an institution based exemption instead of going into what the perfect but sure is there like i'm trying to understand why the holding out test is helpfully objective when it's looking at the institution it is entangling impermissibl looking at a proffered bargaining unit sure i think it goes back to what i was kind of where i started out which is if all the board asked really was you know are if the question were you know are your teachers held out as being part of the religion religious mission that question should be answered by virtue of your held out as a political university the problem isn't that objective nature of the inquiry is that they want to go beyond that i mean the specific religious function test is just exactly the kind of inquiry that's fraught with first amendment concerns me and i think it's important to go and look at how they are taken later this test in pacific lutheran i mean it's not just that they took kind of a very narrow view of you know you're only held out as advancing religion if you're held out as incorporating religion into a pyrrhic of your curriculum or advising students is also the things that they said don't count i mean they specifically said that generalized statements that back with you members are expected to support the goals in the missions university so saying that your faculty member is expected to support and advance the school's religious mission they said that doesn't count and i don't understand how you can have a test that says if you hold your religious teachers that you know your teachers out is advancing our religious mission that still doesn't qualify as holy or teachers out is advancing our religious mission and the fact that the board thinks they can draw that fine of a distinction to me just underscores the wisdom of catholic bishops and a great falls in sa you know we can't have the borat making these kind of inquiries unless congress tells us that's really what they want the board doing because the boards inherently going to start drawing lines based on its own preconceived notions about what is and is not sufficiently religious to completely part time decentralize shire and faculty that they know that they are part of the heart i mean this and i don't mean to be a broken record but i think that that comes from the fact that the taken a position on this so you know i don't but in terms of thinking about the logic of what this court and the supreme court were saying you know i think it's very difficult to to then say oh well you can't draw a line between particular back of the members but you can draw lines between the faculty member and the person who has the right of and i want to tell you you know i would point to i mean i think that that's consistent with the fact that congress itself in the exemption to title seven said you know what we're a little concerned with the idea of courts task that the board has proffered is are you who is the client holding those people out as furthering a religion they can define a function any way they want are they just saying these people are part of what we do here as religious these people maybe not sure and i think i think that the point of this whole line of cases is to say that at least as to teachers and faculty members that essentially there's a presumption that if you hold your university out as religious you hold all the people who teach there and all the people who are faculty members there as being part of your religious mission and i think that that's the basic thrust of these opinions and you know it is important to remember that all of this is being done in the context constitutional avoiding right there you can certainly debate whether that's you know precisely the right line if this were actually resolving the constitutional question but in a context where what you're trying to do is say you know we  want to be careful about reading the statute to require an agency that has no particular competence in determining what is or is not religious to make those kind of distinctions and then i think it makes sense to kind of err on the side of having a bright line and once you have i mean this is an exemption and i'm also not aware of any court or any more decision that applies this exemption to religious hospitals religious social service organizations w religious hospitals are differently dealt with i think that because the aft itself indicates that there was hospitals are covered right and so that's you know but but the act itself is just a statute and we're talking about const the constitution  know so i think that all of that is consistent again with the notion that the catholic bishops rule is a constitutional avoidance rule not a you know as applied constitutional but you know i'm constitutionality of the act rule in which case you know if that's what it were i would understand that you might have to look at things more on a case by case basis but the point is to say we don't want a case by case basis all right let us he so the first point that i'd like to make something that judge pollard was discussing with opposing counsel and i'd like to just reiterate what judge pillared said which is the board's test here does not define religion what the board is doing in the pacific lutheran has and is applied in duquesne is respecting this court's decision in great falls with regard to not trawling through the universities police and indeed holding out the university and whether having a test that requires the university to hold out its faculty and creating or maintaining a role in the religious environment that this is very important that the university itself has held out as its religious environment so both of these that they themselves are responsible for and are going to be great wouldn't they know that their faculty with the university do it doesn't just play sports well right it teaches correct and i think as your example earlier was one of the things that it teaches for example is calculus and so in adjunct coming to teach you does not have any of the benefits that a full time tenured professor has come to the university that doesn't require anywhere explicitly that the engines in their teaching are going to create or maintain the religio environment and that answer displays to the crap view of the board about what it means to be religious college and university right the idea that her religious college university teaching calculus is every bit as important to what they are trying to accomplish as teaching about thomas aquinas and it seems to me that ms murphy's indictment of likely responder she said for forty years the board has been trying would the boards of you in the forty first year when it has its holding out has of what the faculty specifically do going back to catholic bishop in the very important role we agree that bakaly has in an institution when you look at the holding out test it is not a is this is the substantial religious character test it is not a test that defines religion it is a test where the board looks at facts as to how the university itself is holding out not just itself as the university but the specific well that the folks who come in and become edge and teachers have in creating and maintaining that university and that's why the board does not believe that it runs afoul of any constitutional way against problem nor was this the issue that was presented in great falls and so to the board there needs to be some sort of a because phrase which i think is murky would probably disagree with but i don't think this is required by constitutional whens that the board does not need to require a university to demonstrate why it is how it is that the religious environment that they themselves set forth in support of griese they've set forth here for their institution is one that their adjunct faculty is creating or maintaining in a specific way and that's what the board's view is here the board here did not fly in the face of forty years of jurisprudence but what it tried to do mindful of the teaching of this court as well as in the supreme court that there are specific general council disagrees with the general counsel has come out and said that is correct however representing the board right in representing the board the board's view in duquesne which is applying faculty members which is very core to what even though when we when we wrote in great falls and your colleagues who said it's the institution that they did to not be a bona fide religious institution if it doesn't hold itself out as here with a board statement and it's a civic for an opinion where it says of a great for a test could deny the protections of the n r a to faculty members who teach quote completely non religious educational environment if the college or university is able to point to any statement suggesting the school but not the faculty is connection to religion so my question is what i understand the pain relief to be arguing in the arguments made for the board is that sense betrays the board's misunderstanding oh what duquesne is in other words we don't have any faculty that's teaching in a completely non religious educational environment true there is a i would argue i don't have that statement from the board misunderstand but i would say that with the board is saying is it wants to be very careful and not denying protection to faculty that is in for example a non religious environment it's also here because knowledge is there is a religious environment but what has not been demonstrated is that the faculty are main they have a role a specific role in maintaining or permanent or adjunct is the community you know if there was something explicit that wove again the full scope including this bargaining unit as well as what we t itself saying that and so he didn't even clear if there were a sentence in there in the adjunct faculty as contract that just said you know as you know this is a catholic university with catholic  our entire teaching math mission reflects that period and then that you're retired teach calculus six hours a semester here's your pay and you don't have to come to come thank you so much you know do good  applicant for it being it and gender in education understand their role in creating or maintaining it so if there is something in their pamphlet that there has out to that says something like that it would be a quite a market check if there were faculty who for that if it can be religious if even if they're not infusing any substantive way they're teaching that they want to be able to define the way they bear their mission and in fact i mean this comes up in the lutheran cases i think that my question would be to you is do you understand the holding out test to limit entanglement by taking their word for it and the thing you're looking for is the scope of the definition of faculty you have looking for any kind of teaching you're not looking for any curricular you know proselytizing or you know religious doctrine or you  know pastoral care by the faculty you're just looking at some clarity with respect to any and or and they are yes the board the boards that is the board view the board's view would have taken a look at the role of the faculty in creating  maintaining the religious environment is not delving into the religious and learned but the handbook itself here says the teacher should respect the religious and ecumenical orientation of the university isn't that a signal to add that if you needed one yes there it is there there is in there that general statement to respect the mission that is correct according to the board's view though there is a difference between respecting the mission of the university and actually creating or maintaining the mission of the university via your role as the adjunct so the board and the board found it indicated that statement such as perspective are too generalized to indicate that the reasonable adjunct would know coming in to teach whichever class that is against the ology separate the elegy are out of the unit that they would know coming in beyond just respecting that what the board did here is inconsistent with your precedent in great falls we think of the test although it's a different test consistent with it in the sense that it refines in the if we find the holding out has to also apply to the back of the so we we do think that this test is one that this panel can affirm now should the panel disagree and believe that it's inconsistent obviously the board would not have any problem should the panel think that it needs to be referred for and bump but the reason that the board if you're reading pacific lutheran the board respected great balls recognise this issue was never presented in front of this court and believes that consistently with that  specifically committed itself to allow its none to allergy department professors to carry out their jobs according to accepted norms of academic freedom and there's actual mean and is well understood meaning in the academic community and also corner academic requirements intrinsic to the subject matter in the individual teachers conception of professional standards in an atmosphere of economic freedom rather than religious indoctrination but mr copas i'm not sure that committed to academic freedom inquiry teaching but also have a religious mission that encompasses the faculty and they might for example have  entire point i'm trying to make is that a college can both be a religious college and provide an education that allows the faculty members and certain religious and many non religious subjects to teach according to norms of academic freedom they can do both but which is the point they're saying i mean i think it would help me out actually at both sides would be a little bit more concrete about what the what there in visioning when you envision collective bargaining i'm assuming you're in visioning bargaining over wages an hour is and bargaining overly and they're assuming bargaining over employee grievances that somebody was fired because of they were in a you know out of wedlock relationship or involved in a with a divorced person or having a child out of wedlock and there i think they're sort of talking like talking past one another well i don't know i don't think so i mean all of those things can be dealt with faculty member for personal behavior that they thought was not upholding the religious standards that would have nothing to do with academic freedom right it may or may not depending on white w bus but if it was just general behavior i suppose it may not but that arises presumably with respect to the janitor's to take i mean it or rises with respect to any young boy and there's no way a catholic bishop can possibly use it or pursuit of knowledge is a religious question and then release of a college's mission i'm sure thinks that its whole nation as a religious nation but that doesn't mean that the particular employees are carrying out a religious do about teachers who are quote under religious control and discipline and the problem was a danger that religious doctrine will become intertwined with secular instruction duquesne has declared that that will not happen with respect to subjects like nayef and science and many other subjects on its campus it didn't it didn't just passively suggest that if forceful we declared that's how we got accredited it committed itself to that so when you talk about the way of itself to the public it is they're important to the public to know that the math courses are going to be tried according to you know the subject of calculus rather than have some religious control placed you know if you think about other religious colleges you have to draw that line the example of it comes to mind for me is emory university it's a nonprofit university it's affiliated with a methodist  for answering a question about evolution in a way that contradicted religious doctrine that's exactly what they've told the public they will not do that and and they've been very clear about that and you see if you that sort they're going to act on their own words but i think part of their concern is what if they were accused of having fired someone on that ground and they don't want to have to have that he adjudicated and i believe the board position would be that as a backstop to any limitation on the exempt faculty anyone else in the university who tried to raise that as a ground there would be a case by case you know we're not going to go into that we're going at what the board could do a case by case and in the only way it would arise before the labor board is in the very odd circumstance for a union activist was fired fired on the pretext that they had said something in class they violated doctrine and if it got down if it got down to deciding whether the universities in serbia believed that the person with a said i wouldn't doctrine third title seven cases that handle that all the time  problems much more likely to arise under title seven because sex is much more likely to be subject to religious triggers and union organizing and title seven one handles they just say at one point one if it gets down to it and you can't world goes on it doesn't create a big problem the university has been bargaining with i think they said for unions for decades been subject to all kinds of that or be proceedings as a regional director points out they can't come forward with one conditions in the notion that bargaining for their wages and maybe their insurance benefits is going to interfere with you keynes religious vision i just think  d i think that's a very important statement by this court but app but there is academic freedom and duquesne is proud of that but it's also a limited academic freedom so contrary to what the  forty eight you statement says the there's an ending in the statement that you can make about academic freedom it says he sure should respect their religious in ecumenical orientation of the university and that's different than the a u p a statement an academic freedom that doesn't contain that kind of language and if you look at the submission that d made to middle states via credit the critter body it's it's very specific in terms of the limitations of academic freedom it says faculty should respect the religious mission of the university the central can kluge and with respect to academic freedom it is their academic are patently is preserved within the context of the duquesne mission statement so into very different than the way it's presented by counsel for the union and i will also say that the the words statement that that they haven't rejected unless you have any questions thank you