United States Court of Appeals,

Eleventh Circuit.

No. 96-6238.

John R. KILLINGER, Plaintiff-Appellant,

v.

SAMFORD UNIVERSITY, Defendant-Appellee.

May 22, 1997.

Appeal from the United States District Court for the Northern

District of Alabama. (No. CV-94-AR-3007-S), William M. Acker, Jr.,

Judge.

Before EDMONDSON and BLACK, Circuit Judges, and RONEY, Senior

Circuit Judge.

EDMONDSON, Circuit Judge:

This case presents the issue of the interpretation of two

religious exemptions to Title VII, the "religious educational

institution" exemption and the "owned, supported, controlled, or

managed" by a "religious association" exemption. Plaintiff says

that a university's decision to remove him from his teaching

position at its divinity school constituted religious

discrimination and that the district court erred in applying the

two exemptions to his Title VII claim. Because we believe that

this case presents the circumstances envisioned by Congress in

drafting these two exemptions, we affirm the district court's

judgment for defendant.

I.

Plaintiff John R. Killinger is a professor, author, and

preacher. Defendant Samford University ("Samford") is a university

located in Birmingham, Alabama. As a result of a bequest in a

will, Samford received money to establish a divinity school, the
Beeson School of Divinity.

Plaintiff entered into discussions with the President of

Samford about the new divinity school, and was offered a position

as Distinguished Professor of Religion and Culture. Under the

terms of their agreement, Plaintiff was to teach in both the new

divinity school and the undergraduate departments of religion and

English.

Plaintiff and the Dean of the Beeson Divinity School do not

share the same theological views. Samford eventually removed

Plaintiff from the divinity school teaching schedule and, as he

says, "[forbade him from] having any involvement with the Divinity

School." According to the Complaint, "[b]ecause of his religious

philosophy, [Plaintiff] has been denied the opportunity to teach at

the Divinity School" and "he has been discriminated against because

of religious reasons, more particularly because he did not adhere

to and sometime[s] questioned the fundamentalist theology advanced

by the leadership of the Beeson School of Divinity, particularly

Dr. Timothy George, its Dean." Plaintiff continues to teach

undergraduate religion courses.

Plaintiff filed a Title VII claim alleging religious

discrimination, along with supplemental claims for breach of

contract and negligent supervision. After the parties conducted

limited discovery on the issue of whether Samford qualifies for a

religious exemption, Samford sought summary judgment. The district

court granted the motion.

II.

 We review the grant or denial of summary judgment de novo,
 1

In Mississippi College, the EEOC sought to enforce a

subpoena against the college to evaluate a complaint of gender

and race discrimination. The former Fifth Circuit held that

Section 702 divests the district court of jurisdiction only if

the religious educational institution discriminated on the basis

of religion, not on the basis of gender. Id. at 485-86. Because

applying the same standard to be used by district courts. Parks v.

City of Warner Robins, Ga., 43 F.3d 609, 612-613 (11th Cir.1995).

The plaintiff in an employment discrimination case bears the burden

of establishing that the employer falls within the scope of the

pertinent statute. Earley v. Champion Intern. Corp., 907 F.2d

1077, 1081 (11th Cir.1990).

A. Religious Educational Institution Exemption

Section 702(a) of Title VII provides as follows:

This subchapter shall not apply ... to a religious

corporation, association, educational institution, or society

with respect to the employment of individuals of a particular

religion to perform work connected with the carrying on by

such corporation, association, educational institution, or

society of its activities.

42 U.S.C. § 2000e-1(a). Plaintiff presents two arguments about

Section 702. First, Plaintiff says that Samford is a "secular"

institution, not a "religious" one. Second, Plaintiff says that

Samford is entitled to an exemption only if its employment decision

was the result of an institutional religious policy and that

Samford cannot meet this requirement.

Plaintiff argues that Samford is no "religious" institution as

it is not sufficiently "sectarian." In so arguing, Plaintiff seeks

to distinguish EEOC v. Mississippi College, 626 F.2d 477 (5th

Cir.1980). In Mississippi College, the former Fifth Circuit

accepted the district court's conclusion that Mississippi College

was a "religious educational institution."1 Id. at 486. Plaintiff
"[t]he district court did not make clear whether the individual

employment decision complained of ... was based on the

applicant's religion," the court remanded the case for further

findings. Id. 

 2Like many colleges, the bulk of Samford's annual budget

comes from tuition and fees. 

says that this conclusion was based on the fact that Mississippi

College was owned and operated by the Mississippi Baptist

Convention and was "pervasively sectarian." Id. at 487. The

Mississippi College court, however, looked at all the circumstances

to determine whether Mississippi College was a "religious

educational institution": 95% of the faculty were Baptist, 88% of

the students were Baptist, the curriculum included study of the

Bible, chapel was mandatory and the school expressly sought to

provide "educational enrichment in a Christian atmosphere." Id. at

479. Plaintiff has cited to us no authority supporting his idea

that some kind of rigid sectarianism is a requirement for the

"religious educational institution" exemption, and we are aware of

none.

Samford presented extensive evidence to establish that it is

a "religious educational institution." Samford was founded as a

"theological" institution in 1841 by the Alabama Baptist State

Convention (the "Convention"). While Samford recently amended its

charter to remove the Convention's power to elect the school's

trustees, its trustees are now, must be, and always have been (with

one historical exception) Baptist.

 Samford receives roughly seven percent of its annual budget

(over four million dollars) from the Convention. This sum is its

largest single source of funding.2 This money is also the largest
amount (from a single source) received by a Baptist college in the

United States. Samford reports financially to both the Convention

and the Alabama Baptist State Board of Missions and submits

financial reports to the Convention's audit, budget and insurance

committees. The audited financial statements are published in the

Convention's annual proceedings, and both it and Samford's external

audit are made available to all churches within the Convention. In

addition, the school is a member of the Association of Baptist

Colleges and Schools, which limits membership to Baptist

educational institutions.

Before teaching religion courses at the school, all faculty

must subscribe to the 1963 Baptist Statement of Faith and Message,

which contains various "affirmations" and "commitments" to

advancing Christianity. Both the faculty handbook and individual

faculty contracts affirm this commitment, with termination as a

potential penalty for failing to abide by it. Samford's charter

designates its chief purpose as "the promotion of the Christian

Religion throughout the world by maintaining and operating ...

institutions dedicated to the development of Christian character in

high scholastic standing." Samford's student handbook describes

Samford's purpose this way: "to foster Christianity through the

development of Christian character, scholastic attainment, and a

sense of personal responsibility, ..." Furthermore, all students

are required to attend chapel.

Both the Internal Revenue Service ("IRS") and the Department

of Education recognize Samford as a religious educational

institution and grant it exemptions on that basis. Plaintiff has
requested and received a minister's housing allowance from the IRS

based on Samford's exemption. In sum, Samford is doubtlessly a

"religious educational institution."

Plaintiff further argues that Section 702 requires that

Samford act pursuant to a specific religious policy, as opposed to

"ad hoc acts of religious discrimination." Plaintiff seeks to

distinguish between the religious requirements of Samford as an

institution and the religious views of the divinity school's dean.

According to Plaintiff, the former constitute legitimate religious

requirements with which he has complied, while the latter

constitute religious discrimination.

Plaintiff argues that Samford must establish a "causal

relationship" between a specific religious policy—such as a

preference for a particular sect in hiring—and his termination.

Plaintiff says that here the only pertinent policy is Samford's

requirement that religion teachers subscribe to the 1963 Baptist

Statement of Faith and Message. As Plaintiff has so subscribed, he

argues that no valid reason of religious policy can support the

employment decision about which he complains.

 Plaintiff has presented no authority for his view of an

"institutional policy" requirement for the Section 702 exemption,

and we are aware of none. We think that the idea of institutional

policy is not as narrow as Plaintiff seems to think it is; we

think Samford's policy includes its general purpose, principles,

and tendencies as a religious institution. We are also aware of no

requirement that a religious educational institution engage in a

strict policy of religious discrimination—such as always preferring
 3

Plaintiff has cited many cases which he says support him: 

E.E.O.C. v. Kamehameha Schs./Bishop Estate, 990 F.2d 458 (9th

Cir.1993); Little v. Wuerl, 929 F.2d 944 (3d Cir.1991); 

E.E.O.C. v. Townley Eng'g & Mfg. Co., 859 F.2d 610, 619 (9th

Cir.1988); E.E.O.C. v. Fremont Christian Sch., 781 F.2d 1362

(9th Cir.1986); Rayburn v. General Conference of Seventh-day

Adventists, 772 F.2d 1164 (4th Cir.1985); E.E.O.C. v.

Southwestern Baptist Theological Seminary, 651 F.2d 277 (5th Cir.

Unit A July 1981); Fike v. United Methodist Children's Home of

Va., Inc., 547 F.Supp. 286 (E.D.Va.1982), aff'd, 709 F.2d 284

(4th Cir.1983). None of these decisions, however, are at odds

with the conclusion we reach today. 

Baptists in employment decisions—to be entitled to the exemption.

 This case comes down to this situation: Plaintiff is not

allowed to teach at the divinity school of a religious educational

institution because his religious beliefs—as Plaintiff frankly

admits—differ from those of the school's dean, the person selected

by the religious educational institution to apply its policy and to

lead the faculty at the divinity school. The Section 702

exemption's purpose and words easily encompass Plaintiff's case;

the exemption allows religious institutions to employ only persons

whose beliefs are consistent with the employer's when the work is

connected with carrying out the institution's activities. To us,

a teaching job in a divinity school of a religious educational

institution is at the core of the Section 702 exemption: the

inherent purpose of such schools is the study of God and God's

attributes. We conclude that the exemption protects Samford in

this case.3

B. Owned, Supported, Controlled, or Managed by a Religious

Association

Section 703(e)(2) of Title VII provides as follows:

[I]t shall not be an unlawful employment practice for a

school, college, university, or other educational institution

or institution of learning to hire and employ employees of a
particular religion if such a school, college, university, or

other educational institution or institution of learning is,

in whole or substantial part, owned, supported, controlled, or

managed by a particular religion or religious corporation,

association, or society, ...

42 U.S.C. § 2000e-2(e).

Samford says that, even if its refusal to allow Plaintiff to

teach at the divinity school were not covered by the religious

educational institution exemption, it is entitled to an exemption

as an educational institution substantially "owned, supported,

controlled or managed by a particular religion or religious

corporation, association, or society." Samford argues for a

flexible interpretation of Section 703 and points to Samford's

historical ties with the Convention, the fact that the Convention

is the single largest contributor to the university, and that its

Board of Trustees requires it to report to the Convention on all

budgetary and operational matters. Plaintiff, on the other hand,

says Samford is not "owned, supported, controlled, or managed" by

a religious association because (1) the Convention no longer

appoints trustees and (2) only seven percent of its budget comes

from the Convention. Neither side cites precedents interpreting

Section 703, and we are aware of no precedent that speaks to the

issue of what it means to be "owned, supported, controlled, or

managed" by a religious association. See e.g. Pime v. Loyola

University of Chicago, 803 F.2d 351, 357 (7th Cir.1986) (Posner,

J., concurring) ("Is the combination of a Jesuit president and nine

Jesuit directors out of 22 enough to constitute substantial control

or management by the Jesuit order? There is no case law pertinent

to this question; the statute itself does not answer it;
corporate-control and state-action analogies are too remote to be

illuminating; and the legislative history, though tantalizing, is

inconclusive.") (internal citations omitted).

 Section 703 is written in the disjunctive and requires only

that a college be—"in whole or substantial part"—"owned, supported,

controlled or managed" by a religious association. Without

addressing the other possibilities, we conclude that Samford is "in

substantial part" "supported" by the Convention.

"Substantial" is not defined by the statute. But the word

substantial ordinarily has this meaning: "Of real worth and

importance; of considerable value; valuable. Belonging to

substance; actually existing; real; not seeming or imaginary;

not illusive; solid; true; veritable. Something worthwhile as

distinguished from something without value or merely nominal.

Synonymous with material." Black's Law Dictionary, 1428 (6th ed.

1990) (internal citations omitted). Continuing support annually

totaling over four million dollars (even in the abstract, no small

sum), accounting for seven percent of a university's budget, and

constituting a university's largest single source of funding is of

real worth and importance. This kind of support is neither

illusory nor nominal. So, the Convention's support is substantial.

We hold—as an alternative to our Section 702 holding—that Samford

qualifies as an educational institution which is in "substantial

part" supported by a religious association and that the exemption

protects Samford in this case.

III.

We, as a federal court, must give disputes about what
particulars should or should not be taught in theology schools a

wide-berth. Congress, as we understand it, has told us to do so

for purposes of Title VII. Also, such a construction allows us to

avoid the First Amendment concerns which always tower over us when

we face a case that is about religion.

AFFIRMED.