FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KRISTEN BIEL,

Plaintiff-Appellant,

v.

ST. JAMES SCHOOL, A CORP., a 

California non-profit corporation; 

DOES, 2–50, inclusive; ST. JAMES 

CATHOLIC SCHOOL, a California nonprofit corporation; DOE 1,

Defendants-Appellees.

No. 17-55180

D.C. No.

2:15-cv-04248-

TJH-AS

OPINION

Appeal from the United States District Court

for the Central District of California

Terry J. Hatter, District Judge, Presiding

Argued and Submitted July 11, 2018

Pasadena, California

Filed December 17, 2018

Before: D. Michael Fisher,* Paul J. Watford,

and Michelle T. Friedland, Circuit Judges.

 * The Honorable D. Michael Fisher, United States Circuit Judge for 

the U.S. Court of Appeals for the Third Circuit, sitting by designation.
2 BIEL V. ST. JAMES SCHOOL

Opinion by Judge Friedland;

Dissent by Judge Fisher

SUMMARY**

Employment Discrimination

The panel reversed the district court’s summary 

judgment in favor of the defendant and remanded in an 

employment discrimination action under the Americans with 

Disabilities Act.

Based on the totality-of-the-circumstances test 

articulated by the Supreme Court in Hosanna-Tabor 

Evangelical Lutheran Church & School v. E.E.O.C., 565 

U.S. 171 (2012), the panel held that the First Amendment’s 

ministerial exception to generally applicable employment 

laws did not bar a teacher’s claim against the Catholic 

elementary school that terminated her employment. The 

panel concluded that she did not qualify as a minister for 

purposes of the exception. The panel considered whether the 

school held the teacher out as a minister, whether her title 

reflected ministerial substance and training, whether she 

held herself out as a minister, and whether her job duties 

included important religious functions. 

Dissenting, Judge Fisher wrote that, considering all of 

the circumstances of the teacher’s employment, she was a 

“minister” for the purposes of the ministerial exception 

 ** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
BIEL V. ST. JAMES SCHOOL 3

because of the substance reflected in her title and the 

important religious functions she performed.

COUNSEL

Andrew S. Pletcher (argued), Cathryn G. Fund, and Joseph 

M. Lovretovich, JML Law, Woodland Hills, California, for 

Plaintiff-Appellant.

Jack Steven Sholkoff (argued), Ogletree Deakins Nash 

Smoak & Stewart P.C., Los Angeles, California; Veronica 

Fermin and Richard Chen, Ogletree Deakins Nash Smoak & 

Stewart P.C., Costa Mesa, California; for DefendantAppellee.

Susan Ruth Oxford (argued), Attorney; Barbara L. Sloan, 

Acting Assistant Attorney General; Jennifer S. Goldstein, 

Associate General Counsel; James L. Lee, Deputy General 

Counsel; Office of the General Counsel, Equal Employment 

Opportunity Commission, Washington, D.C.; for Amicus 

Curiae Equal Employment Opportunity Commission.

OPINION

FRIEDLAND, Circuit Judge:

Plaintiff Kristin Biel was fired from her fifth grade 

teaching position at St. James Catholic School after she told 

her employer that she had breast cancer and would need to 

miss work to undergo chemotherapy. She now appeals the 

district court’s summary judgment ruling that her subsequent 

lawsuit against St. James under the Americans with 

Disabilities Act (“ADA”) was barred by the First 
4 BIEL V. ST. JAMES SCHOOL

Amendment’s “ministerial exception” to generally 

applicable employment laws. We hold that, assessing the 

totality of Biel’s role at St. James, the ministerial exception 

does not foreclose her claim. We therefore reverse and 

remand for further proceedings.

I.

Biel received a bachelor’s degree in liberal arts and a 

teaching credential from California State University, 

Dominguez Hills. After graduating in 2009, Biel worked at 

two tutoring companies and as a substitute teacher at several 

public and private schools. St. James, a Roman Catholic 

parish school within the Archdiocese of Los Angeles, hired 

Biel in March 2013 as a long-term substitute teacher. At the 

end of that school year, St. James’s principal hired Biel as 

the school’s full-time fifth grade teacher. Biel is herself 

Catholic, and St. James prefers to hire Catholic teachers, but 

being Catholic is not a requirement for teaching positions at 

St. James. Biel had no training in Catholic pedagogy at the 

time she was hired. Her only such training was during her 

tenure at St. James: a single half-day conference where 

topics ranged from the incorporation of religious themes into 

lesson plans to techniques for teaching art classes.

Biel taught the fifth graders at St. James all their 

academic subjects. Among these was a standard religion 

curriculum that she taught for about thirty minutes a day, 

four days a week, using a workbook on the Catholic faith 

prescribed by the school administration. Biel also joined her 

students in twice-daily prayers but did not lead them; that 

responsibility fell to student prayer leaders. She likewise 

attended a school-wide monthly Mass where her sole 

responsibility was to keep her class quiet and orderly.
BIEL V. ST. JAMES SCHOOL 5

Biel’s contract stated that she would work “within [St. 

James’s] overriding commitment” to Church “doctrines, 

laws, and norms” and would “model, teach, and promote 

behavior in conformity to the teaching of the Roman 

Catholic Church.” St. James’s mission statement provides 

that the school “work[s] to facilitate the development of 

confident, competent, and caring Catholic-Christian citizens 

prepared to be responsible members of their church[,] 

local[,] and global communities.” According to the school’s 

faculty handbook, teachers at St. James “participate in the 

Church’s mission” of providing “quality Catholic education 

to . . . students, educating them in academic areas and in . . .

Catholic faith and values.”1 The faculty handbook further 

instructs teachers to follow not only archdiocesan curricular 

guidelines but also California’s public-school curricular 

requirements.

In November 2013, Biel received a positive teaching 

evaluation from St. James’s principal, Sister Mary Margaret, 

measuring her performance in aspects both secular (e.g., her 

lesson planning strategies) and religious (e.g., displaying 

Church symbols in her classroom). The principal’s written 

 1 The dissent quotes extensively from the faculty handbook to 

support its arguments about the extent of Biel’s religious role. It does so 

as if there is no dispute that the handbook imposed binding requirements 

on Biel’s employment and provided an accurate depiction of her duties. 

But St. James did not rely on the faculty handbook in support of its 

motion for summary judgment, which might have been because the 

handbook’s force and effect were contested—it is at least unclear what 

role, if any, the handbook played at the school and whether it actually 

reflected what teachers at the school were expected to do in practice. For 

example, Biel’s employment agreement referenced “policies in the 

faculty handbook,” but said that “the policies do not constitute a 

contractual agreement with [Biel].” At this stage of the proceedings, any 

factual uncertainties must be viewed in Biel’s favor. See Fresno Motors, 

LLC v. Mercedes Benz USA, LLC, 771 F.3d 1119, 1125 (9th Cir. 2014).
6 BIEL V. ST. JAMES SCHOOL

evaluation praised Biel’s “very good” work promoting a safe 

and caring learning environment, noted that she adapted her 

teaching methods to accommodate her students’ varied 

learning styles, and observed that she encouraged social 

development and responsibility. The principal also 

identified some areas for improvement: for instance, Biel’s 

students had many items on their desks and two students 

were coloring in the pages of their books.

Less than six months after that evaluation—which was 

her first and only formal evaluation at St. James—Biel 

learned that she had breast cancer and informed the school 

administration that her condition required her to take time 

off to undergo surgery and chemotherapy. Sister Mary 

Margaret told Biel a few weeks later that she would not 

renew Biel’s contract for the next academic year, citing her 

belief that Biel’s “classroom management” was “not strict” 

and that “it was not fair . . . to have two teachers for the 

children during the school year.”

Biel sued St. James in the United States District Court 

for the Central District of California, alleging that her 

termination violated the ADA, which prohibits employment 

discrimination based on disability. See 42 U.S.C. 

§ 12112(a). Following discovery, St. James moved for 

summary judgment, arguing that the First Amendment’s 

ministerial exception to generally applicable employment 

laws barred Biel’s ADA claims. The district court agreed 

and granted summary judgment for St. James.

II.

We review de novo a district court’s grant of summary 

judgment. Brunozzi v. Cable Commc’ns, Inc., 851 F.3d 990, 

995 (9th Cir. 2017). We also apply de novo review to 

determinations of law as well as to mixed questions of law 
BIEL V. ST. JAMES SCHOOL 7

and fact that implicate the Religion Clauses. Puri v. Khalsa, 

844 F.3d 1152, 1157 (9th Cir. 2017).

III.

A.

Religious organizations enjoy a broad right to select their 

own leaders. The Supreme Court confirmed in HosannaTabor Evangelical Lutheran Church & School v. E.E.O.C.

that, as part of that right, the First Amendment’s 

Establishment and Free Exercise Clauses “bar the 

government from interfering with the decision of a religious 

group to fire one of its ministers.” 565 U.S. 171, 181 (2012); 

see also U.S. Const. amend. I. The Court grounded this 

principle in a longstanding historical and jurisprudential 

concern with “political interference” in “matters of church 

government as well as those of faith and doctrine.” Id. at 

184, 186 (citations omitted). When the ministerial exception 

applies, it categorically bars an employee’s suit under 

otherwise generally applicable employment laws. Puri v. 

Khalsa, 844 F.3d 1152, 1164 (9th Cir. 2017). When the 

ministerial exception does not apply, “courts [may] decide 

disputes involving religious organizations,” so long as they, 

in accordance with the Religion Clauses, proceed “‘without 

resolving [any] underlying controversies over religious 

doctrine.’” Id. (quoting Maktab Tarighe Oveyssi Shah 

Maghsoudi, Inc. v. Kianfar, 179 F.3d 1244, 1248 (9th Cir. 

1999)). These principles guide our analysis here.

Biel does not dispute that St. James, as a part of the 

Roman Catholic Archdiocese of Los Angeles, is the type of 

religious organization that could potentially invoke the 

ministerial exception as a defense. The disagreement here is 

over whether Biel’s employment fell within the exception.
8 BIEL V. ST. JAMES SCHOOL

In Hosanna-Tabor, the Supreme Court expressly 

declined to adopt “a rigid formula for deciding when an 

employee qualifies as a minister,” and instead considered 

“all the circumstances of [the plaintiff’s] employment.” 

565 U.S. at 190. Hosanna-Tabor is the only case in which 

the Supreme Court has applied the ministerial exception, so 

its reasoning necessarily guides ours as we consider the 

circumstances here.

Hosanna-Tabor involved a former teacher at a Lutheran 

school, Cheryl Perich, who alleged that the school fired her 

in violation of the ADA after she was diagnosed with 

narcolepsy. Id. at 178–79. The Court focused on four major 

considerations to determine if the ministerial exception 

applied: (1) whether the employer held the employee out as 

a minister, (2) whether the employee’s title reflected 

ministerial substance and training, (3) whether the employee 

held herself out as a minister, and (4) whether the 

employee’s job duties included “important religious 

functions.” Id. at 192. Based on the totality of the 

circumstances, the Court concluded that Perich qualified as 

a minister for purposes of the ministerial exception.

First, the evangelical Lutheran church that operated the 

school in Hosanna-Tabor “held Perich out as a minister, 

with a role distinct from that of most of its members.” Id. at 

191. Its congregation granted her the title of “Minister of 

Religion, Commissioned” after electing her to that position. 

Id. In conjunction with that commission, the “congregation 

undertook to periodically review Perich’s ‘skills of ministry’ 

. . . and to provide for her ‘continuing education as a 

professional person in the ministry of the Gospel.’” Id.

Second, to be eligible to become a commissioned 

minister, Perich needed a substantial amount of religious 

training. She “had to complete eight college-level courses 
BIEL V. ST. JAMES SCHOOL 9

in subjects including biblical interpretation, church doctrine, 

and the ministry of the Lutheran teacher” and pass an oral 

examination by a Lutheran college faculty committee. Id. 

She also had to obtain the endorsement of her local Lutheran 

synod by submitting letters of recommendation, a personal 

statement, and “written answers to various ministry-related 

questions.” Id. These training requirements took Perich six 

years to complete.

Because of her status as a commissioned minister, Perich

was eligible for, and succeeded in obtaining, a special 

category of teaching position: that of a “called” teacher. Id. 

at 177–78. In contrast to “lay” teachers who had one-year 

renewable terms, called teachers had open-ended contracts 

that “could be rescinded only for cause and by a 

supermajority vote of the congregation.” Id at 177. The 

school hired lay teachers only when called teachers were 

unavailable, even though all teachers performed the same 

duties in the classroom. Id.

Third, Perich “held herself out as a minister of the 

Church.” Id. at 191. She claimed a federal tax benefit 

reserved for employees “earning their compensation” in “the 

exercise of the ministry.” Id. at 192. And she described 

herself as “feel[ing] that God [was] leading [her] to serve in 

the teaching ministry.” Id.

Fourth, Perich had an “important role in transmitting the 

Lutheran faith to the next generation.” Id. at 192. In addition 

to teaching her fourth grade students various secular and 

religious subjects, Perich led them in prayer three times a 

day. Id. Twice a year, she also led a school-wide chapel 

service at which she “cho[se] the liturgy, select[ed] the 

hymns, and deliver[ed] a short message based on verses from 

the Bible.” Id.
10 BIEL V. ST. JAMES SCHOOL

Only after describing all of these aspects of Perich’s 

position did the Supreme Court hold: “In light of these 

considerations—the formal title given Perich by the Church, 

the substance reflected in that title, her own use of that title, 

and the important religious functions she performed for the 

Church—we conclude that Perich was a minister covered by 

the ministerial exception.” Id.

Biel, by contrast, has none of Perich’s credentials, 

training, or ministerial background. There was no religious 

component to her liberal studies degree or teaching 

credential. St. James had no religious requirements for her 

position. And, even after she began working there, her 

training consisted of only a half-day conference whose 

religious substance was limited. Unlike Perich, who joined 

the Lutheran teaching ministry as a calling, Biel appears to 

have taken on teaching work wherever she could find it: 

tutoring companies, multiple public schools, another 

Catholic school, and even a Lutheran school.

Nor did St. James hold Biel out as a minister by 

suggesting to its community that she had special expertise in 

Church doctrine, values, or pedagogy beyond that of any 

practicing Catholic. St. James gave her the title “Grade 5 

Teacher.” Her employment was at-will and on a yearlong 

renewable contract, unlike Perich’s unlimited term that 

could only be ended by a supermajority vote of the 

congregation. The dissent’s analysis of Biel’s title focuses 

on her duties at the school—as opposed to her education, 

qualifications, and employment arrangement—and thus 

improperly collapses considerations that the Supreme Court 

treated separately.2 Looking only to what the Court treated 

 2 The dissent also ascribes the title “Catholic school educator” to 

Biel, but nowhere in St. James’s briefing or summary judgment papers 
BIEL V. ST. JAMES SCHOOL 11

as relevant to evaluating a job title, there is nothing religious 

“reflected in” Biel’s title. Hosanna-Tabor, 565 U.S. at 192. 

In contrast to Perich’s “Minister of Religion, 

Commissioned,” and “called” teacher titles, it cannot be said 

that Grade 5 Teacher “conveys a religious—as opposed to 

secular—meaning.”3 Conlon v. InterVarsity Christian 

Fellowship, 777 F.3d 829, 834–35 (6th Cir. 2015).

Also in contrast to Perich, nothing in the record indicates 

that Biel considered herself a minister or presented herself 

as one to the community. She described herself as a teacher 

and claimed no benefits available only to ministers.

Only with respect to the fourth consideration in 

Hosanna-Tabor do Biel and Perich have anything in 

common: they both taught religion in the classroom. Biel 

taught lessons on the Catholic faith four days a week. She 

also incorporated religious themes and symbols into her 

overall classroom environment and curriculum, as the school 

required. We do not, however, read Hosanna-Tabor to 

indicate that the ministerial exception applies based on this 

shared characteristic alone. If it did, most of the analysis in 

Hosanna-Tabor would be irrelevant dicta, given that 

Perich’s role in teaching religion was only one of the four 

 has St. James ever suggested that this general description of its 

employees was part of Biel’s title.

3 We do not suggest that Biel’s lack of a ministerial title is 

dispositive, nor do we “ma[ke] ordination status or formal title 

determinative of the exception’s applicability.” Hosanna-Tabor 

Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171, 202 

(2012) (Alito, J., concurring). But, like the Supreme Court in HosannaTabor, we look to her title as shorthand for “the substance reflected in 

that title.” Id. at 192.
12 BIEL V. ST. JAMES SCHOOL

characteristics the Court relied upon in reaching the 

conclusion that she fell within the ministerial exception.

And even Biel’s role in teaching religion was not 

equivalent to Perich’s. In Hosanna-Tabor, the Supreme 

Court emphasized the importance of assessing both the 

amount of time spent on religious functions and “the nature

of the religious functions performed.” 565 U.S. at 194 

(emphasis added); see also id. at 204 (Alito, J., concurring) 

(“What matters is that [the individual] played an important 

role as an instrument of her church’s religious message and 

as a leader of its worship activities.”). Biel’s role in Catholic 

religious education was limited to teaching religion from a 

book required by the school and incorporating religious 

themes into her other lessons. Whereas Perich orchestrated 

her students’ daily prayers, Biel’s students themselves led 

the class in prayers. Biel gave students the opportunity to 

lead the prayers and joined in, but she did not teach, lead, or 

plan these devotions herself. Similarly, while Perich crafted 

and led religious services for the school, Biel’s 

responsibilities at St. James’s monthly Mass were only “to 

accompany her students,” and “[t]o make sure the kids were 

quiet and in their seats.” These tasks do not amount to the 

kind of close guidance and involvement that Perich had in 

her students’ spiritual lives.

B.

St. James argues that we should reach a contrary 

conclusion in light of the Seventh Circuit’s recent decision 

in Grussgott v. Milwaukee Jewish Day School, Inc., 882 F.3d 

655 (7th Cir. 2018), which held that the ministerial exception 

barred a Hebrew teacher’s employment discrimination suit 

against a Jewish primary school that fired her after she was 

diagnosed with a brain tumor. Even assuming Grussgott was 

correctly decided, which we are not sure it was, the plaintiff 
BIEL V. ST. JAMES SCHOOL 13

in Grussgott more closely resembled Perich than Biel does. 

Although the plaintiff in Grussgott lacked a formal religious 

title, she had obtained a certification in a Jewish curricular 

program called Tal Am—a curriculum that involved 

integrating religious teachings into Hebrew lessons, as the 

Seventh Circuit noted in its analysis of the plaintiff’s job 

title. Id. at 659. The plaintiff had also “tout[ed] significant 

religious teaching experience,” which “was a critical factor 

in the school hiring her.” Id. at 659. She also prayed and 

performed rituals with her students. Id. at 660. For the 

reasons discussed above, Biel’s role was less ministerial than 

that of the plaintiff in Grussgott.

The other post-Hosanna-Tabor cases on which St. James 

relies are likewise not analogous to this one. All of the 

plaintiffs in those cases had responsibilities that involved 

pronounced religious leadership and guidance.4 In contrast, 

although Biel taught religion, the other considerations that 

guided the reasoning in Hosanna-Tabor and its progeny are 

 4 See, e.g., Fratello v. Archdiocese of New York, 863 F.3d 190, 205–

08 (2d Cir. 2017) (principal who oversaw daily prayers, supervised 

planning for Masses, delivered religious speeches, and was required to 

obtain catechist certification and demonstrate “proficiency” in religious 

areas); Conlon v. InterVarsity Christian Fellowship, 777 F.3d 829, 835–

36 (6th Cir. 2015) (certified “spiritual director” for an organization with 

the mission to evangelize students on college campuses whose duties 

included assisting others in finding “intimacy with God and growth in 

Christ-like character”); Cannata v. Catholic Diocese of Austin, 700 F.3d 

169, 177-78 (5th Cir. 2012) (Church music director who independently 

selected music for Mass, trained cantors, and was “a lay liturgical 

minister actively participating in the sacrament”); Temple Emanuel of 

Newton v. Mass. Comm’n Against Discrimination, 975 N.E.2d 433, 443–

44 (Mass. 2012) (plaintiff who taught only religious subjects at a 

synagogue’s religious school that convened only after the regular school 

day and on Sundays and did not provide any instruction in non-religious 

subjects).
14 BIEL V. ST. JAMES SCHOOL

not present here. Biel did not have ministerial training or 

titles. And she neither presented herself as nor was 

presented by St. James as a minister. At most, only one of 

the four Hosanna-Tabor considerations weighs in St. 

James’s favor. No federal court of appeals has applied the 

ministerial exception in a case that bears so little 

resemblance to Hosanna-Tabor. See, e.g., Grussgott, 

882 F.3d at 661 (applying exception where “two of the four

Hosanna-Tabor factors are present”); Conlon, 777 F.3d at 

835 (same). We decline St. James’s invitation to be the first.

C.

A contrary rule, under which any school employee who 

teaches religion would fall within the ministerial exception, 

would not be faithful to Hosanna-Tabor or its underlying 

constitutional and policy considerations. Such a rule would 

render most of the analysis in Hosanna-Tabor irrelevant. It 

would base the exception on a single aspect of the 

employee’s role rather than on a holistic examination of her 

training, duties, title, and the extent to which she is tasked 

with transmitting religious ideas.

Such a rule is also not needed to advance the Religion 

Clauses’ purpose of leaving religious groups free to “put 

their faith in the hands of their ministers.” Hosanna-Tabor, 

565 U.S. at 188. As the Supreme Court recounted in 

Hosanna-Tabor, the historical episodes that motivated the 

adoption of the Religion Clauses included struggles over 

whether the choice of parish ministers would be made by 

local vestries or instead by the British monarch, the Bishop 

of London, or colonial governors. Id. at 183. The Court 

likewise cited First Amendment architect James Madison’s 

opinion that the President ought to have no role in the 

appointment of the Catholic Church’s leadership in the 

territory of the Louisiana Purchase. Id. at 184. Although the 
BIEL V. ST. JAMES SCHOOL 15

Supreme Court held that “the ministerial exception is not 

limited to the head of a religious congregation,” id. at 190, 

the focus on heads of congregations and other high-level 

religious leaders in the historical backdrop to the First 

Amendment supports the notion that, to comport with the 

Founders’ intent, the exception need not extend to every 

employee whose job has a religious component.5

The First Amendment “insulates a religious 

organization’s ‘selection of those who will personify its 

beliefs.’” Puri, 844 F.3d at 1159 (quoting Hosanna-Tabor, 

565 U.S. at 188). But it does not provide carte blanche to 

disregard antidiscrimination laws when it comes to other 

employees who do not serve a leadership role in the faith. 

We cannot read Hosanna-Tabor to exempt from federal 

employment law all those who intermingle religious and 

secular duties but who do not “preach [their employers’] 

 5 Indeed, Congress has specified that nothing in the ADA or Title 

VII prohibits a religious organization from favoring members of a 

particular religion in its hiring decisions. See 42 U.S.C. § 12113(d)(1) 

(stating that the ADA “shall not prohibit a religious [organization] from 

giving preference in employment to individuals of a particular religion 

to perform work connected with the carrying on . . . of its activities.”); 

42 U.S.C. § 2000e-1(a) (stating that Title VII “shall not apply to . . . a 

religious [organization] with respect to the employment of individuals of 

a particular religion to perform work connected with the carrying on . . .

of its activities.”). But Congress did not exempt religious organizations 

from the ADA’s or Title VII’s prohibitions on discriminating on the basis 

of disability, race, color, sex, or national origin. That choice, coupled 

with the presumption of constitutionality enjoyed by congressional 

legislation, makes us especially hesitant to invalidate unnecessarily vast 

swaths of federal law as applied to many employees of religious 

organizations. See United States v. Watson, 423 U.S. 411, 416 (1976) 

(recognizing that a “strong presumption of constitutionality [is] due to 

an Act of Congress” (quoting United States v. Di Re, 332 U.S. 581, 585 

(1948)).
16 BIEL V. ST. JAMES SCHOOL

beliefs, teach their faith, . . . carry out their mission . . . [and] 

guide [their religious organization] on its way.” 565 U.S. at 

196.

IV.

For the foregoing reasons, we REVERSE the district 

court’s grant of summary judgment to St. James and 

REMAND.

6

FISHER, Circuit Judge, dissenting:

This appeal concerns whether Kristen Biel, a fifth grade 

teacher at a Roman Catholic elementary school, was a 

“minister” for the purposes of the ministerial exception. 

Contrary to the majority, I conclude that Biel was a minister. 

As a result, I would affirm the District Court’s decision that 

Biel is barred from bringing an action against St. James 

under the Americans with Disabilities Act.

 6 On remand, St. James may of course argue that it did not violate 

the ADA because its stated pedagogical and classroom management 

concerns—not Biel’s medical condition—were the basis for its decision 

not to renew Biel’s contract. See Snead v. Metro. Prop. & Cas. Ins. Co., 

237 F.3d 1080, 1093 (9th Cir. 2001) (explaining that a nondiscriminatory 

and non-pretextual reason for termination is a defense to an ADA claim). 

Contrary to the dissent’s implication, had St. James asserted a religious 

justification for terminating Biel, our holding would neither have 

commanded nor permitted the district court to assess the religious 

validity of that explanation, but rather only whether the proffered 

justification was the actual motivation for termination, or whether not

wanting to accommodate Biel’s disability was the motivation.
BIEL V. ST. JAMES SCHOOL 17

I

During Biel’s one year of service as a full-time fifth 

grade teacher at St. James, her duties included teaching 

religion as well as secular subjects. She taught 30-minute 

religion classes four days a week. In her religion class, she 

used the curriculum from Coming to God’s Life, a Catholic 

textbook chosen by the school principal, Sister Mary 

Margaret. Using that curriculum, Biel taught and tested the 

students in her religion class about the Catholic sacraments, 

the lives of Catholic Saints, Catholic prayers, Catholic social 

teaching, Gospel stories, and church holidays. In her secular 

classes, she was expected to incorporate Catholic teachings. 

She attended, as required by the school, a one day conference 

at the Los Angeles Religious Education Congress that 

covered methods of incorporating God into lessons.

To get a complete picture of Biel’s role at St. James, we 

look at various documents concerning her employment, 

including her employment contract, a performance review, 

and the faculty handbook.1 Biel signed an employment 

contract with St. James which indicated that her title was 

“Grade 5 Teacher.” By signing the contract, Biel indicated 

that she understood that St. James’s mission was “to develop 

and promote a Catholic School Faith Community within the 

 1 The faculty handbook is specifically referenced in Biel’s 

employment contract: “You shall be familiar with, and comply with the 

School’s personnel policies and procedures . . . including policies in the 

faculty handbook.” The handbook provides insight into St. James’s 

expectations for faculty at the school. Like Biel’s performance review, 

the handbook is a reflection of the role St. James intended Biel to fill. 

Regardless of whether it imposed contractual obligations on Biel, it is 

helpful to our determination of whether the relationship between Biel 

and St. James was that of a minister and church or merely an employeeemployer relationship.
18 BIEL V. ST. JAMES SCHOOL

philosophy of Catholic education as implemented at [St. 

James], and the doctrines, laws, and norms of the Catholic 

Church.” The contract also imposed several requirements on 

Biel, mandating that she:

• perform “[a]ll duties and responsibilities 

. . . within [St. James’s] overriding 

commitment [to developing the faith 

community],”

• “model, teach, and promote behavior in 

conformity to the teaching of the Roman 

Catholic Church,”

• and “participate in School activities 

including School liturgical activities, as 

requested.”

Sister Mary Margaret conducted an observational review 

of Biel’s teaching performance during her first semester as 

the fifth grade teacher. Her review included a section 

evaluating “Catholic Identity Factors” in which she noted 

that there was “visible evidence of signs, sacramental [sic], 

traditions of the Roman Catholic Church in the classroom,” 

and that the “[c]urriculum include[d] Catholic values infused 

through all subject areas.”

In the Faculty/Staff Handbook, the school’s mission 

statement was supplemented by nine “basic values” guiding 

the school faculty, including:

• Faith – “To personally demonstrate our 

belief in God . . . to actively take part in 

worship-centered school events”; and
BIEL V. ST. JAMES SCHOOL 19

• Joy – “To delight in and enjoy our noble 

position as Catholic educators . . . .”

The handbook also included the “Code of Ethics for 

Professional Educators in Catholic Schools” which 

explained that “[e]ducation has always been one of the most 

important missions of the Church. Its success depends upon 

the professional competence, quality, and commitment of 

the teacher who chooses to teach in a Catholic school.” This 

Code of Ethics detailed various commitments that Catholic 

school teachers in the Archdiocese of Los Angeles were 

expected to fulfill. It explained that “Catholic school 

educators . . . are called to: Promote the peace of Christ in 

the world,” and to:

Seek and encourage persons who live a life 

consonant with gospel values and Catholic 

Church teachings [and] pursue the apostolate 

of teaching through the following:

- modeling the faith life and witness to the 

Faith Community on the parish, diocesan, 

national, and world levels;

- exemplifying the teachings of Jesus 

Christ by dealing with children and adults 

in true love and justice.

In a section titled “Statement of Principles,” the 

handbook listed “religious development” as one of the five 

goals of a St. James Catholic education. To achieve this goal, 

“[the staff] guide the spiritual formation of the student . . .

and hope to help each child strengthen his/her personal 

relationship with God.” The handbook further explained that 

staff implement that goal by:
20 BIEL V. ST. JAMES SCHOOL

Teaching the Gospel message and Catholic 

doctrine in such a way as to make them 

relevant to everyday life . . . Integrating 

Catholic thought and principles into secular 

subjects . . . Celebrating regularly scheduled 

Masses and seasonal prayer . . . Encouraging 

student participation in liturgical services . . .

Providing opportunities for developing 

personal prayer and shared prayer in the 

classroom.

In April of her year as the fifth grade teacher, Biel was 

diagnosed with breast cancer. She informed Sister Mary 

Margaret of the diagnosis and that she would begin 

treatments in May. As described in the majority opinion, 

Sister Mary Margaret informed Biel that St. James would not 

renew her contract. Biel filed suit under the ADA, and St. 

James moved for summary judgment, relying on the 

ministerial exception. The District Court found the 

ministerial exception barred Biel’s claims and granted the 

motion. Biel filed this appeal.

II

The ministerial exception is an affirmative defense that 

“precludes application” of employment discrimination laws, 

like the ADA, to “claims concerning the employment 

relationship between a religious institution and its 

ministers.” Hosanna-Tabor Evangelical Lutheran Church & 

Sch. v. E.E.O.C., 565 U.S. 171, 188 (2012). I agree with the 

majority, that the Supreme Court’s holding and reasoning in 

Hosanna-Tabor guides our analysis here.

The ministerial exception flows from the First 

Amendment; “[t]he Establishment Clause prevents the 

Government from appointing ministers, and the Free 
BIEL V. ST. JAMES SCHOOL 21

Exercise Clause prevents it from interfering with the 

freedom of religious groups to select their own.” Id. at 184. 

The exception bars discrimination claims because “the 

ministerial relationship lies so close to the heart of the church 

that it would offend the Free Exercise Clause simply to 

require the church to articulate a religious justification for its 

personnel decisions.” Bollard v. Cal. Province of the Soc’y 

of Jesus, 196 F.3d 940, 946 (9th Cir. 1999); see also N.L.R.B. 

v. Catholic Bishop of Chi., 440 U.S. 490, 502 (1979) (In 

discussing jurisdiction over religious schools, the Court 

observed “[i]t is not only the conclusions that may be 

reached by the Board which may impinge on rights 

guaranteed by the Religion Clauses, but also the very process 

of inquiry leading to findings and conclusions.”).

The purpose of the exception is to “ensure[] that the 

authority to select and control who will minister to the 

faithful—a matter ‘strictly ecclesiastical’—is the church’s 

alone.” Hosanna-Tabor, 565 U.S. at 194–95 (citation 

omitted) (quoting Kedroff v. St. Nicholas Cathedral of 

Russian Orthodox Church in N. Am., 344 U.S. 94, 119 

(1952)). Selection of such persons is a “core matter of 

ecclesiastical self-governance with which the state may not 

constitutionally interfere.” Bollard, 196 F.3d at 946.2

 2 The majority suggests that because the ADA and Title VII lack a 

religious organization exemption, courts must take care not to 

“invalidate unnecessarily vast swaths of federal law as applied to many 

employees of religious organizations.” Maj. Op. at 15 n.5. However, the 

ministerial exception is grounded in the First Amendment and operates 

independently of any exception granted by Congress. In Bollard, we held 

that “[d]espite the lack of a statutory basis for the ministerial exception, 

and despite Congress’ apparent intent to apply Title VII to religious 

organizations as to any other employer, courts have uniformly concluded 

that the Free Exercise and Establishment Clauses . . . require a narrowing 
22 BIEL V. ST. JAMES SCHOOL

The term “minister” is a term of art broader than the 

word’s ordinary meaning. It “encompasses more than a 

church’s ordained ministers.” Alcazar v. Corp. of the 

Catholic Archbishop of Seattle, 627 F.3d 1288, 1291 (9th 

Cir. 2010). This is especially important because in our 

religiously diverse society, the ministerial exception 

recognized in Hosanna-Tabor must transcend the Protestant 

Christian concept of “ministers” to protect self-governance 

of all organizations of religious purpose. Hosanna-Tabor, 

565 U.S. at 198 (Alito, J., concurring).

In Hosanna-Tabor, the teacher was a minister within the 

Protestant Christian framework, serving at an Evangelical 

Lutheran church and school. Courts must take care to apply 

the principles from Hosanna-Tabor without discounting 

ministerial relationships in contexts that do not bear the 

obvious linguistic markers that were available for the 

Court’s consideration in Hosanna-Tabor. The ministerial 

exception “insulates a religious organization’s ‘selection of 

those who will personify its beliefs’” regardless of whether 

they bear the standard markers of a minister. Puri v. Khalsa, 

844 F.3d 1152, 1159 (9th Cir. 2017) (quoting HosannaTabor, 565 U.S. at 188). The totality of the circumstances 

approach serves that end, and “[a]s the Supreme Court has 

made clear, there is no ‘rigid formula for deciding when an 

employee qualifies as a minister.’” Id. (quoting HosannaTabor, 565 U.S. at 190).

 

construction” to prevent “constitutionally impermissible interference by 

the government.” 196 F.3d at 945. We must apply the ministerial 

exception in this case “in order to reconcile the statute with the 

Constitution” regardless of whether the ADA contains an exception. Id. 

at 947.
BIEL V. ST. JAMES SCHOOL 23

To determine whether Biel is a minister for purposes of 

the exception, I proceed in three parts. First, I will 

summarize and examine the Supreme Court’s analysis of the 

exception in Hosanna-Tabor. Second, I will consider how to 

weigh the four Hosanna-Tabor factors in the context of this 

case. Finally, I consider all of the circumstances of Biel’s 

employment and conclude that the ministerial exception 

applies.

A. Analytical framework provided by the Supreme 

Court in Hosanna-Tabor

In Hosanna-Tabor, the Supreme Court concluded that a 

“called teacher” at a Lutheran elementary school was a 

minister for the purposes of the ministerial exception. 

565 U.S. at 190. The Court evaluated “all the circumstances 

of her employment.” Id. Within that totality of the 

circumstances approach, the Court considered four factors: 

“[1] the formal title given [to the teacher] by the Church,” 

which the majority describes as whether the employer held 

out the employee as a minister, “[2] the substance reflected 

in that title, [3] her own use of that title, and [4] the important 

religious functions she performed for the Church.” Id. at 192. 

These factors indicate the importance of fact-intensive 

analysis in the application of the ministerial exception.

Justice Alito, joined by Justice Kagan, concurred to 

clarify that the employee’s function, rather than his or her 

title or ordination status, is the key. Hosanna-Tabor, 

565 U.S. at 198 (Alito, J., concurring). He went on to write 

that the exception “should apply to any ‘employee’ who . . .

serves as a messenger or teacher of [the organization’s] 

faith.” Id. at 199. He explained that “[r]eligious autonomy 

means that religious authorities must be free to determine 

who is qualified to serve in positions of substantial religious 

importance,” which includes “those who are entrusted with 
24 BIEL V. ST. JAMES SCHOOL

teaching and conveying the tenets of the faith to the next 

generation.” Id. at 200. Finally, Justice Alito described the 

previous approach of the appellate courts, including this 

Court, as a functional approach looking more at the functions 

of individuals than at their titles, and concluded that “[t]he 

Court’s opinion today should not be read to upset this 

consensus.” Id. at 204.

Justice Thomas also concurred, explaining that, in his 

view, courts applying the ministerial exception must “defer 

to a religious organization’s good-faith understanding of 

who qualifies as its minister.” Id. at 196 (Thomas, J., 

concurring). Justice Thomas reasoned that a “religious 

organization’s right to choose its ministers would be hollow 

. . . if secular courts could second-guess the organization’s 

sincere determination that a given employee is a ‘minister.’” 

Id. at 197. This approach, he maintained, best serves the 

goals of the Free Exercise and Establishment Clauses 

because it does not risk causing religious groups—especially 

those outside of the mainstream—“to conform [their] beliefs 

and practices regarding ‘ministers’ to the prevailing secular 

understanding” for fear of being denied the exception. Id. 

(citing Corp. of Presiding Bishop of Church of Jesus Christ 

of Latter-day Saints v. Amos, 483 U.S. 327, 336 (1987)).

Since the publication of Hosanna-Tabor, we and other 

circuits have relied on a “totality-of-the-circumstances test.” 

Grussgott v. Milwaukee Jewish Day Sch., Inc., 882 F.3d 655, 

661 (7th Cir. 2018), cert. denied, ___ S. Ct. ___ (2018); see 

Puri, 844 F.3d at 1160 (holding that, on the pleadings, the 

exception did not apply because of insufficient proof of 

religious duties, lack of presentation of the individuals as 

religious leaders, and absence of religious substance in the 

positions); Conlon v. InterVarsity Christian Fellowship, 

777 F.3d 829, 835 (6th Cir. 2015) (finding only two of the 
BIEL V. ST. JAMES SCHOOL 25

four factors applicable, but still holding that the “ministerial 

exception clearly applies”); Fratello v. Archdiocese of New 

York, 863 F.3d 190, 204–05 (2d Cir. 2017) (“HosannaTabor . . . neither limits the inquiry to [the four factors it 

enumerates] nor requires their application in every case.”). I 

will do the same here.

B. The Four Factors

i. Formal title

Biel argues that she is not a minister because nothing in 

her formal title, Grade 5 Teacher, reflects a ministerial role. 

“[A]n employee is more likely to be a minister if a religious 

organization holds the employee out as a minister by 

bestowing a formal religious title.” Puri, 844 F.3d at 1160. 

In Hosanna-Tabor, this factor weighed in favor of applying 

the exception because the school employed both “lay” and 

“called” teachers, and the plaintiff was “called.” 565 U.S. at 

177–78. “When Hosanna-Tabor extended her a call, it issued 

her a ‘diploma of vocation’ according her the title ‘Minister 

of Religion, Commissioned.’” Id. at 191. Here, Biel never 

received any diploma or commissioning from the parish 

comparable to the teacher in Hosanna-Tabor. Her title is 

apparently secular.

However, as the majority recognizes, a title is merely an 

expression of how an employer holds its employee out to the 

community. Part of St. James’s expression of Biel’s role in 

the school is her designation as a “Catholic school 

educator[]” in the school’s Code of Ethics. The Code 

conveyed to the community that Catholic school educators 

such as Biel would, among other things, “[p]romote the 

peace of Christ in the world.” Biel’s title is presumably both 

“Catholic school educator[]” and “Grade 5 Teacher,” the 
26 BIEL V. ST. JAMES SCHOOL

former contextualizing the latter. St. James thus holds Biel 

out as a distinctively Catholic Grade 5 Teacher.

This first factor could therefore indicate that Biel was a 

minister. In fact, some of the “called” language that was 

important to determining that the teacher in Hosanna-Tabor 

was a minister is also present in the faculty handbook in this 

case. For instance, in the Code of Ethics, under 

“Commitment to the Community,” the handbook reads “As 

Catholic school educators, we are called to . . . [p]romote the 

peace of Christ in the world.” (emphasis added).

Although it seems strained to read Biel’s title as “Grade 

5 Teacher” without considering references in the handbook 

to St. James’s teachers as “Catholic school educators,” such 

a reading may be appropriate at this stage in order to draw 

reasonable inferences in Biel’s favor. Therefore, in the 

Hosanna-Tabor analysis, I consider Biel’s title to be secular. 

This factor therefore weighs against recognizing her as a 

minister. However, her title is not dispositive. Id. at 193 

(“[A] title, by itself, does not automatically ensure 

coverage.”); id. at 202 (Alito, J., concurring) (a ministerial 

title is “neither necessary nor sufficient.”).

ii. Substance reflected in the title

In Hosanna-Tabor, this factor weighed in favor of 

applying the exception. The called teacher’s title of 

“commissioned minister” reflected “a significant degree of 

religious training,” including college-level theology, 

“followed by a formal process of commissioning.” 

Hosanna-Tabor, 565 U.S. at 191. In contrast, Biel received 

no religious commissioning and her formal education 

consisted of a university degree in liberal studies and a 

teaching certification. She was not required to be endorsed 

by the parish or to go through extensive training.
BIEL V. ST. JAMES SCHOOL 27

The majority focuses narrowly on educational and 

practical training for the second factor in the Hosanna-Tabor 

analysis. However, I do not understand this second factor to 

be limited to education and practical training. The substance 

reflected in a title is broader than mere educational or 

practical prerequisites. See Grussgott, 882 F.3d at 659–660. 

Considering other elements under the second factor 

facilitates the ministerial exception’s application to different 

religions, including those that may not require formal 

training for ministers. It also compliments Justice Thomas’s 

emphasis on the religious organization’s own sincere 

determination of who ministers the faith. Hosanna-Tabor, 

565 U.S. at 196–97 (Thomas, J., concurring). If we expected 

all ministers to receive formal religious education, we would 

improperly restrict the exception.

Instead, I conclude that the substance underlying Biel’s 

title at St. James consists of the school’s expectation, to 

which Biel specifically consented in her employment 

contract, that she propagate and manifest the Catholic faith 

in all aspects of the role. Importantly, the substance of Biel’s 

title of Grade 5 Teacher encompassed the role of religion 

teacher.

The approach of analyzing the second factor as reflective 

of how the religious organization understood an employee’s 

role is also consistent with at least two of our sister Circuits’ 

interpretations. In Fratello, the Second Circuit ultimately 

concluded that a “lay principal” of a Catholic elementary 

school was a minister. 863 F.3d at 206, 210. In evaluating 

this title, the court observed that though the principal was 

“not strictly required to meet any formal religious-education 

requirements, the substance reflected in that title as used by 

the defendants and conveyed to the plaintiff entails 

proficiency in religious leadership.” Id. at 208. Similarly, the 
28 BIEL V. ST. JAMES SCHOOL

Seventh Circuit in Grussgott held that the second factor 

weighed in favor of applying the exception to a Hebrew 

language teacher at a Jewish school, not only because of her 

religious training, but also because “the substance of [the 

teacher’s] title as conveyed to her and as perceived by others 

entails the teaching of the Jewish religion to students.” 

882 F.3d at 659–60.

The majority distinguishes Grussgott based on the 

teacher’s Tal Am certification, but in Grussgott, the Seventh 

Circuit specifically noted that there was nothing in the record 

indicating what the Tal Am certification entailed beyond 

completion of seminars. Id. at 659. Though the Seventh 

Circuit found that the teacher’s Tal Am certification was not 

material to its analysis, the court nevertheless held that the 

teacher’s curriculum and experience teaching religion 

“support[ed] the application of the ministerial exception” at 

the second factor. Id. at 660. Contrary to the majority’s 

conclusion, this case is not distinguishable from Grussgott 

based on a certification that may or may not have indicated 

any significant degree of education or training. The Seventh 

Circuit’s consideration of curriculum and teaching 

experience under the second Hosanna-Tabor factor supports 

the conclusion that this factor encompasses more than just 

training.

Even more explicitly than in Grussgott, the substance of 

Biel’s title as the Grade 5 Teacher encompasses her 

responsibility for all facets of her pupils’ education, which 

unquestionably includes religion class and imparting the 

substantive teachings of the Catholic faith. In addition to her 

role as the religion teacher, Biel agreed in her contract that 

she “understood that the mission of the School [was] to 

develop and promote a Catholic School Faith Community 

within the philosophy of Catholic education as implemented 
BIEL V. ST. JAMES SCHOOL 29

at the School, and the doctrines, laws and norms of the 

Catholic Church.” The faculty handbook extensively 

prescribes how the faculty should model the Catholic faith 

and promote religious development. Additionally, Biel was 

required to attend a Catholic education conference, which 

focused on incorporating religion into lesson plans. Finally, 

her contract was approved by both St. James’s principal, 

Sister Mary Margaret, and the pastor of the parish, and it 

clarified that her role as a fifth grade teacher included 

teaching religion, specifically the Catholic faith. Because all 

of these expectations were included in Biel’s role and in the 

title given to her by St. James, I conclude that her title 

reflected significant religious substance. This factor 

therefore weighs in favor of applying the exception.

iii. Biel’s own use of the title 

“[A]n employee who holds herself out as a religious 

leader is more likely to be considered a minister.” Puri, 

844 F.3d at 1160. In Hosanna-Tabor, the teacher “held 

herself out as a minister of the Church” in several ways, 

including “accepting the formal call to religious service,” 

“claim[ing] a special housing allowance on her taxes” 

available only to ministers, and indicating, post-termination, 

“that she regarded herself as a minister at Hosanna-Tabor.” 

565 U.S. at 191–92. Here, although Biel taught her students 

the tenets of the Catholic faith, she did not present herself to 

the public as a minister. See Conlon, 777 F.3d at 835 

(concluding that this factor was not present when the 

employee did not have a “public role of interacting with the 

community as an ambassador of the faith”). This factor 

therefore weighs against concluding that Biel was a minister.
30 BIEL V. ST. JAMES SCHOOL

iv. Important religious functions performed

In Puri, this Court emphasized that employees who have 

“a role in conveying the Church’s message and carrying out 

its mission” are likely ministers “even if [they] devote[] only 

a small portion of the workday to strictly religious duties.” 

Puri, 844 F.3d at 1160 (internal citation and alterations 

omitted). In Hosanna-Tabor, the teacher was responsible for 

“‘leading others toward Christian maturity’ and ‘teaching 

faithfully the Word of God, the Sacred Scriptures, in its truth 

and purity and as set forth in all the symbolical books of the 

Evangelical Lutheran Church.’” 565 U.S. at 192 (alterations 

omitted) (quoting the record). The Hosanna-Tabor teacher 

taught religion four days a week, led her students in prayer 

three times a day, took students to school-wide chapel 

services once a week, and led that chapel service 

approximately twice a year. Id. Based on those duties, the 

Supreme Court concluded that “[a]s a source of religious 

instruction, [the teacher] performed an important role in 

transmitting the Lutheran faith to the next generation.” Id.

The Court indicated that it would be error to give too much 

weight to secular duties performed in addition to religious 

ones or to the fact that “others not formally recognized as 

ministers . . . perform the same functions.” Id. at 193.

Biel’s duties as the fifth grade teacher and religion 

teacher are strikingly similar to those in Hosanna-Tabor. 

She taught religion class four times a week based on the 

catechetical textbook Coming to God’s Life. In that class, she 

was responsible for instructing her students on various areas 

of Catholic teachings, including Catholic sacraments, 

Catholic Saints, Catholic social teaching, and Catholic 

doctrine related to the Eucharist and the season of Lent. She 

prayed Catholic prayers with her students twice each day and 
BIEL V. ST. JAMES SCHOOL 31

attended monthly school mass with her class.3 Additionally, 

she, like all teachers at St. James, was evaluated on 

incorporating “signs, sacramental [sic], [and] traditions of 

the Roman Catholic Church in the Classroom” and 

“infus[ing] [Catholic values] through all subject areas.” “As 

a source of religious instruction, [she] performed an 

important role in transmitting the [Catholic] faith to the next 

generation.” Id. at 192. For these reasons, this factor weighs 

heavily in favor of considering Biel to be a minister. Biel 

was “expected to model, teach, and promote behavior in 

conformity to the teaching of the Roman Catholic Church” 

according to her employment contract, and was subject to 

termination if she failed to meet that expectation.

This analysis comports with the approach of the Seventh 

Circuit which held that a Hebrew language teacher 

“performed ‘important religious functions’ for the school” 

when she “taught her students about Jewish holidays, prayer, 

and the weekly Torah readings . . . [and] practiced the 

religion alongside her students by praying with them and 

performing certain rituals.” Grussgott, 882 F.3d at 660 

(quoting Hosanna-Tabor, 565 U.S. at 192). The duties of the 

teacher in Grussgott are found in Biel’s case as well. My 

 3 The majority interprets Biel’s testimony to be that she joined her 

students in prayer, but did not lead the fifth graders in prayer. However, 

the record indicates that Biel’s prayer leaders led the class in prayer: “I 

had prayer leaders. The prayers that were said in the classroom were said 

mostly by the students. We had prayer leaders.” The faculty handbook 

set the expectation that Biel would “[p]rovid[e] opportunities for 

developing personal prayer and shared prayer in the classroom.” Under 

“Daily Prayer” in the “Staff Guidelines and Responsibilities” section of 

the faculty handbook, there is a school-wide policy of beginning and 

ending the day with prayer. To accept Biel’s testimony that she merely 

joined the fifth graders in their prayers minimizes significant portions of 

the record.
32 BIEL V. ST. JAMES SCHOOL

conclusion on this factor is also consistent with the Sixth 

Circuit’s approach in Conlon, which ruled that job duties 

such as “assist[ing] others to cultivate ‘intimacy with God 

and growth in Christ-like character through personal and 

corporate spiritual disciplines’” constituted important 

religious functions. 777 F.3d at 835.

It is clear that Biel’s job duties “reflected a role in 

conveying the Church’s message and carrying out its 

mission.” Hosanna-Tabor, 565 U.S. at 192. However, Biel 

argues that whatever her duties were, she executed them in a 

decidedly secular manner. She claims that her religious 

instruction was straight out of a textbook—just like with 

secular classes—and that her only job at mass was “to make 

sure the kids were quiet and in their seats.” Appellant’s Br. 

at 47. Her claim that she executed her duties in a secular 

manner directly conflicts with her contractual agreement to 

“integrate Catholic thought” into subjects, “celebrate 

regularly scheduled Masses . . . with students,” and 

“encourage student participation in liturgical services.” In 

fact, under “Staff Guidelines and Responsibilities” in the 

handbook, teachers are specifically expected to do more than 

merely keep their elementary students quiet during mass—

they are expected to prepare their students for mass: 

“Teachers prepare their students to be active participants at 

Mass, with particular emphasis on Mass responses.” Biel 

indicated that her students participated in mass by presenting 

the gifts, i.e., the Eucharist. Biel’s students were trained to 

present the gifts, and Biel was available to review the 

practice with them if necessary. Biel’s role at mass was also 

to personally demonstrate her faith through active 

participation in “worship-centered school events.” Biel’s 

role as an “exemplar[] of practicing” Catholics would not 

make her a minister if that were her only religious function. 

See E.E.O.C. v. Miss. College, 626 F.2d 477, 485 (5th Cir. 
BIEL V. ST. JAMES SCHOOL 33

1980). But because the determination of who is a minister is 

a totality of the circumstances test, I consider “all the 

circumstances of her employment” in the assessment of her 

role. Hosanna-Tabor, 565 U.S. at 190.

Biel’s argument that she performed her duties in a 

secular manner invites the very analysis the ministerial 

exception demands we avoid. The courts may not evaluate 

the relative importance of a ministerial duty to a religion’s 

overall mission or belief system. The very duties that Biel 

attempts to trivialize, e.g. teaching Church doctrine and 

requiring participation and attentiveness during mass, could 

easily be considered essential to the faith and its conveyance 

to the next generation, and she very well could have been 

terminated for failures in this area.

Consideration of her claims in federal court would 

require the evaluation of “the importance and priority of the 

religious doctrine in question, with a civil factfinder sitting 

in ultimate judgment of what the accused church really 

believes, and how important that belief is to the church’s 

overall mission.” Hosanna-Tabor, 565 U.S. at 206 (Alito, J., 

concurring). We must avoid entangling the courts in this sort 

of analysis. In Alcazar, this Court cited a Seventh Circuit 

case that discussed the kind of government interference in 

religious affairs that the ministerial exception is designed to 

avoid. 627 F.3d at 1292 (citing Tomic v. Catholic Diocese of 

Peoria, 442 F.3d 1036, 1040 (7th Cir. 2006), abrogated by

Hosanna-Tabor, 565 U.S. 171)). The Tomic court explained 

that if a suit were allowed to go forward between a minister 

and a church, the church would defend its adverse 

employment decision with a religious reason. The employee 

would argue that the religious reason was a farce, and the 

real reason was one prohibited by statute. In response the 

church would provide evidence of the religious reason, 
34 BIEL V. ST. JAMES SCHOOL

which the employee would dispute. The court would then 

have to “resolve a theological dispute” in the course of its 

adjudication of the claim. Tomic, 442 F.3d at 1040 (citing 

DeMarco v. Holy Cross High Sch., 4 F.3d 166, 171 (2d Cir. 

1993)). The Religion Clauses do not permit such 

entanglement in the affairs of religious organizations.

The Seventh Circuit rejected a similar argument in 

Grussgott when the Hebrew teacher attempted to portray her 

role as teaching from a “culturally” Jewish perspective rather 

than a religious perspective. For example, the teacher 

attempted to distinguish between “leading prayer, as 

opposed to ‘teaching’ and ‘practicing’ prayer with her 

students.” 882 F.3d at 660. Her argument did not prevail 

because a teacher’s “opinion does not dictate what activities 

the school may genuinely consider to be religious.” Id. 

Similarly here, how Biel subjectively approached her duties 

is not relevant, let alone determinative.

C. Consideration of all the circumstances

Because the Supreme Court refused “to adopt a rigid 

formula,” this Court should not treat the four HosannaTabor factors as a strict test. Hosanna-Tabor, 565 U.S. at 

190. Instead, the Court should take a step back and consider 

whether “all the circumstances of [Biel’s] employment” 

require that her claims be barred by the ministerial 

exception. Id.

In reconciling the four factors with the totality of the 

circumstances approach, the Seventh Circuit reasoned that 

where two factors weighed in favor of the exception and two 

weighed against, “it would be overly formalistic” to simply 
BIEL V. ST. JAMES SCHOOL 35

“call [the] case a draw.” Grussgott, 882 F.3d at 661.4 I agree. 

See also Conlon, 777 F.3d at 835 (applying ministerial 

exception when two factors were present); Cannata v. 

Catholic Diocese of Austin, 700 F.3d 169, 177 (5th Cir. 

2012) (“Application of the exception . . . does not depend on 

a finding that [the employee] satisfies” the four factors.). The 

Seventh Circuit in Grussgott ultimately applied the 

ministerial exception because “[t]he school intended [the 

teacher] to take on a religious role, and in fact her job 

entailed many functions that simply would not be part of a 

secular teacher’s job.” 882 F.3d at 661. The court held that 

“it [was] fair to say that, under the totality of the 

circumstances in this particular case, the importance of [the 

teacher’s] role as a ‘teacher of faith’ to the next generation 

outweighed other considerations.” Id. (alteration omitted) 

(quoting Hosanna-Tabor, 565 U.S. at 199 (Alito, J., 

concurring)). So too here.

In considering the complete picture of Biel’s 

employment, I am struck by the importance of her 

stewardship of the Catholic faith to the children in her class. 

Biel’s Grade 5 Teacher title may not have explicitly 

announced her role in ministry, but the substance reflected 

in her title demonstrates that she was a Catholic school 

educator with a distinctly religious purpose. The religious 

purpose of Catholic school educators is not new to the 

federal courts. The Supreme Court has long “recognized the 

critical and unique role of the teacher in fulfilling the mission 

of a church-operated school.” Catholic Bishop, 440 U.S. at 

501 (discussing Lemon v. Kurtzman, 403 U.S. 602, 617 

(1971)). Biel expressly acknowledged this purpose in her 

 4 The Seventh Circuit described the Hebrew teacher’s title and 

whether she held herself out as a minister as “formalistic factors . . .

greatly outweighed by [her] duties and functions.”
36 BIEL V. ST. JAMES SCHOOL

contract, and committed herself to performing all “duties and 

responsibilities . . . within [the] overriding commitment” of 

St. James to “develop and promote a Catholic School Faith 

Community within the philosophy of Catholic education.” 

Biel acknowledged that her continued employment was 

dependent upon her demonstrated ability to do so. Drawing 

all inferences in Biel’s favor, it is still impossible to ignore 

that her position at St. James was pervaded by religious 

purpose.

Looking at each of the Hosanna-Tabor factors, and 

considering the evidence in its totality without adherence to 

a formulaic calculation, it appears that Biel was a minister, 

though perhaps not as obviously as the teacher in HosannaTabor. However, the teacher in Hosanna-Tabor was within 

the Protestant Christian framework, and therefore the 

terminology of her employment very neatly fit within the 

ministerial exception. We must not make the mistake of 

tethering the exception too close to the Protestant Christian 

concept of ministers. See Hosanna-Tabor, 565 U.S. at 198 

(Alito, J., concurring).

The ministerial exception protects the relationship 

between a church and its ministers. It does not require a 

church to assert a religious reason for an employment 

decision. I fear that the majority’s opinion will undermine 

this protection. The majority holds that “had St. James 

asserted a religious justification for terminating Biel, our 

holding would neither have commanded nor permitted the 

district court to assess the religious validity of that 

explanation, but rather only whether the proffered 

justification was the actual motivation for termination.” Maj. 

Op. at 2 n.6. But the majority misses the point of the 

ministerial exception, which is to shield the relationship 

between a church and its ministers from the eyes of the court 
BIEL V. ST. JAMES SCHOOL 37

without requiring the church to provide a religious 

justification for an adverse employment decision. HosannaTabor, 565 U.S. at 194–95 (“The purpose of the exception is 

not to safeguard a church’s decision to fire a minister only 

when it is made for a religious reason. The exception instead 

ensures that the authority to select and control who will 

minister to the faithful . . . is the church’s alone.”).

***

This case demonstrates that the First Amendment’s 

guarantees are not without cost. The ADA protects some of 

the most vulnerable people in our society from 

discrimination. It is an incredibly important statutory 

protection. But “[t]he First Amendment, of course, is a 

limitation on the power of Congress,” and any exercise of 

statutory rights under the ADA requires the courts “to decide 

whether that [is] constitutionally permissible under the 

Religion Clauses of the First Amendment.” Catholic Bishop, 

440 U.S. at 499. We are necessarily bound by the Supreme 

Court’s adoption of the ministerial exception, and its 

guarantee of noninterference in religious self-governance. If 

the exception is to provide sufficient protection for religious 

freedom, courts must give the exception a broad application. 

Puri, 844 F.3d at 1159.

In light of these considerations, Hosanna-Tabor, and all 

the circumstances of this case, I would conclude that the 

ministerial exception does apply to Biel in her capacity as 

the fifth grade teacher at St. James because of the substance 

reflected in her title and the important religious functions she 

performed. These factors outweigh her formal title and 

whether she held herself out as a minister. Ultimately, Biel 

was “entrusted with teaching and conveying the tenets of the 

faith to the next generation.” Hosanna-Tabor, 565 U.S. at 

200 (Alito, J., concurring). Those responsibilities render her 
38 BIEL V. ST. JAMES SCHOOL

the “type of employee that a church must be free to appoint 

or dismiss in order to exercise the religious liberty that the 

First Amendment guarantees.” Id. at 206.

III

For the above reasons, I respectfully dissent. I would 

affirm the ruling of the District Court.