A TTORNEYS FOR A PPELLANT A TTORNEYS FOR A PPELLEE David L. Swider Nelson A. Nettles Bryan H. Babb Cynthia E. Lasher Bose McKinney & Evans LLP Norris Choplin Schroeder LLP Indianapolis, Indiana Indianapolis, Indiana

Patrick T. Gillen A TTORNEY FOR A MICI C URIAE Naples, Florida Michael C. Healy Indiana Civil Rights Commission Thomas L. Brejcha Indianapolis, Indiana Peter C. Breen Thomas More Society Chicago, Illinois

______________________________________________________________________________ 

# In the 

# Indiana Supreme Court

_________________________________ No. 93S02-1310-EX-704

F ISHERS A DOLESCENT C ATHOLIC E NRICHMENT S OCIETY , I NC ., Appellant / Cross-Appellee (Respondent below)
,

v.

E LIZABETH B RIDGEWATER O / B / O A LYSSA B RIDGEWATER , Appellee / Cross-Appellant (Complainant below)

.

_________________________________ Appeal from Final Order of the Indiana Civil Rights Commission Nos. EDha08100620 & EDrt08110681 The Honorable Robert D. La nge, Administrative Law Judge

_________________________________ On Transfer from the Indiana C ourt of Appeals, No. 93A02-1202-EX-145

_________________________________ January 6, 2015
Dickson, Justice.

The authority of the Indiana Civil Rights Comm ission is limited to that delegated by statute. Here, in responding to allegations of di scrimination arising from an inter-group squabble2 over the type of meal to be served to a group member's allergic child, the Commission exceeded its authority because the alleged discriminatory practice did not relate to education, a statutory prerequisite for the Commission' s exercise of authority.

Fishers Adolescent Catholic Enrichment Society, Inc. (FACES) 1 was formed in 2006 by two Catholic mothers. At the time this disp ute arose, FACES was comprised of a group of a dozen or so families who had associated toge ther "to provide homeschool high schoolers with Catholic educational, spiritual, and social enrichment." Record Vols. 4, 6 at 431, 988. These opportunities included classes in acad emic subject matter as well as a Right to Life March and social events such as paintball and laser tag, ski trips, and holiday pa rties. Record Vol. 12 at 255. FACES accepts members from varying faiths, although, at the time this action was brought, only
two of the eleven families and one instructor was non-Catholic. Record Vols. 4, 12 at 431, 257
and 259.

In fall 2008, FACES planned an "All Souls' Day Masquerade Ball" dinner-dance social
event to coincide with the Catholic f east day of All Souls' Day on November 2. 2 FACES's intent, motivated by an article in the National Catholic Register, was "to put th e focus on [their] Catholic holidays as opposed to the focus of Hallowee n." Record Vols. 4, 5 at 443, 694. In planning the event, a FACES member parent, Mrs. Bri dgewater, requested sp ecial dietary accommodations for her daughter who planned to attend. He r daughter suffers from a dietary condition that can cause a life-threatening allerg ic reaction in which her ability to breathe and swallow would be impaired or even stopped altogether if she ate certain foods including chicken. When Mrs. Bridgewater learned that the me nu for the dinner-dance included ch icken, she requested that her daughter be served a steak. After FACES declin ed that request, Mrs. Bridgewater again requested a steak, offering to pay the price difference, or in the alternative, a hamburger. FACES denied that request as well but granted Mrs. Bridgewater's subsequent request to permit her daughter to bring her own dinner, although there would be no ticket-price adjustment to account for her daughter not needing the included dinner. The dispute continued. On October 8, 2008,

1 Fishers Adolescent Catholic Enrichment Society, Inc. is registered as an Indiana non-profit corporation and recognized under section 501(c )(3) of the Internal Revenue Code. 2 All Souls Day is a solemn feast in the Roman Catholic Church commemorating all of those who have died. It is celebrated annually on November 2. Francis Mershman, All Souls' Day , 1 T HE C ATHOLIC E NCYCLOPEDIA (Robert Appleton Co. 1907), available at http://www.newadvent.org/cathen/01315b.htm.3 Mrs. Bridgewater changed her mind and made anothe r request that her daughter be served a beef meal prepared by the event venue, but was agai n rebuffed. The next day, Mrs. Bridgewater on behalf of her daughter, filed a complaint with the Commission, allegi ng FACES refused a reasonable accommodation for her dau ghter and therefore discriminate d against her due to her disability. Ultimately, even although FACES had instru cted her not to contact the event venue, Mrs. Bridgewater made arrangements with the event ve nue for her daughter to be served a separate meal, which she paid for. Her daughter attended the dinner-dance w ithout incident, but four days later on November 6, FACES expelled the Bridgewa ter family. Mrs. Bridgewater then filed a second complaint with the Commission, alleging FACES expelled the Bridgewater family in unlawful retaliation for filing the disability discrimination claim.

FACES filed a motion to dismiss both the cl aims on the basis that the Commission did not have subject-matter jurisdiction over FA CES under Indiana's Civil Rights Law because FACES was a religious organizatio n—not an educational one as Mr s. Bridgewater claimed. After a hearing, an administrativ e law judge for the Commission de nied the motion to dismiss on the ground that the Commission had jurisdiction becau se FACES as a group related to education.
The Commission affirmed and consolidated the di sability and retaliatory discrimination claims for further proceedings. The administrative law judge later entered an order with findings of fact and conclusions of law, concluding that FACES di d not commit an unlawful discriminatory practice because it had provided a reasonable accommoda tion for Mrs. Bridgewater's daughter's dietary needs—but that FACES did commit an unlaw ful discriminatory practice when it expelled the Bridgewater children after they filed the disab ility discrimination complaint. The administrative law judge ruled that Mrs. Bridgewater's daughter should be awarded $5,000 in damages and
that FACES should take correctiv e action. Order, Appellant's App'x at 523. Both parties appealed the order to the Commission. FACES ch allenged the administrative law judge's conclusions regarding jurisdiction, reta liation, and corrective act ion. The Bridgewaters challenged the administrative law judge's conclusions regarding the disability accommodation and damages. The Commission issued its final order, incorporati ng the administrative law judge's rulings in all respects, except for reducing damages.

FACES appealed, and Mrs. Bri dgewater cross-appealed. The Court of Appeals affirmed4 in part and reversed in part. See Fishers Adolescent Catholic Enrichment Soc'y, Inc. v. Bridgewater ex rel. Bridgewater, 990 N.E.2d 29, 49 (Ind. Ct. App. 2013), trans. granted
, vacated . The Court of Appeals reversed the Commission's or der requiring FACES to post a link to the Commission's final order on numerous websites but affi rmed the Commission's order in all other respects. Id. Having previously granted transfer, we address FACES's dispositive claim that the Commission lacked authority to ta ke any action other than the dism issal of the disability and retaliatory discrimination claims.

The Legislature may delegate authority to an administrative agency through a valid statute that sets out a reasonable st andard to guide that discretion, but the agency exercises such authority subject to the confines of its enab ling statute. Stanton v. Smith, 429 N.E.2d 224, 228 (Ind. 1981). Such limiting standard ma y be found "within th e four corners of the statute itself or can be found within other statutes that apply to the conduct and authority of the administrative
unit." Id. The Commission's authority is limited by th e Administrative Orders and Procedures Act, and this Court must grant relief if we de termine that "a person s eeking judicial relief has been prejudiced by an agency action that is . . . in excess of statutory ju risdiction, authority, or limitations." Ind. Code § 4-21.5-5-14(d)(3).

The Indiana Civil Rights Law explicitly conditio ns the Commission's exercise of its enforcement powers to incidents where a person has "engaged in an unlawful discriminatory practice." Ind. Code § 22-9-1-6(j) 3 (emphasis added). To be "unlaw ful" under the Law, the discriminatory practice must relate to "the acquisition or sale of real estate, education , public accommodations, employment, or the extending of credit." Ind. Code § 22-9-1-3(l) (emphasis added). As to these enumerated prerequisite criteria for Co mmission action, it is only "education" that is the claimed basis of Mrs. Bridgewater's discrimination claims.

There is no factual dispute that the purpose of FACES, as described in its bylaws, is "to provide homeschool high schoolers w ith Catholic educational, spirit ual, and social enrichment."

3 This opinion cites Indiana Code subsections 22- 9-1-6(g), (j), and (l) as identified in the 2014 codification. These subsections were previously desi gnated as (h), (k), and (m) and renumbered in 2012 and 2014 with no change in substance.5 Record Vol. 6 at 988; see also Record Vol. 12 at 231 ("FACE[S] achieves [its] religious mission by shaping its activities to foster the developm ent of homeschooling families in a manner consistent with the teaching of the Catholic Church on matters of faith and morals."); Record Vol. 12 at 234 ("The intent of FACES is to provide Catholic homeschooling families with fraternal support and solidarity as Catholic families try to raise their children in light of the Catholic faith."). As these statements of purpose impl y, the predominant purpose of FACES is to promoteand foster its member families' Catholic faith in various aspects of their childrens' lives; education is but one aspect. The dinner-dance at whic h Mrs. Bridgewater contends that FACES failed to accommodate her daughter's food allergy furt hered the FACES members' objective of providing Catholic spiritual and social enrichment. It was not an occasion for the teaching of academic subjects as part of the student's curriculum. FACES planned the "All Souls' Day Masquerade
Ball" dinner-dance social event to coincide with the Catholic feast day of All Souls' Day on November 2. The alleged disability discrimination t hus occurred at a quasi-religious social function, not an educational one. To expansively interpret "rel ating to . . . education," see Ind. Code § 22-9-1-3(l), to apply to this dinner would convert almost ever y occasion of parental guidance and training into an activity "related to educati on." This would eviscera te the function of "related to education" as a legisl ative prerequisite for the Commission's enforcement powers.

Because the alleged discriminato ry practice in this case does no t relate to education, Mrs. Bridgewater's claim of disability discrimination fell outside the statutor y authority of the Commission. It likewise follows th at the Commission also lacked authority to find that "FACES committed an unlawful discriminatory practice when it expelled the Bridgewater family because of the filing of the orig inal complaint," Conclusion of La w No. 14, Appellant's App'x at 522, and ordered the imposition of remedial sanctions agai nst FACES. The Commission's statutory power to "prevent any person from disc harging, expelling, or otherwise discriminating against any other person because the person filed a complaint," Ind. Code § 22-9-1-6( g), is necessarily limited by Indiana Code section 22-9-1-6(j), which precond itions the Commission's power to act to incidents where a person has "engaged in an unlawful discriminatory practice." Ind. Code § 22-9-1-6(j) (emphasis added); see also § 22-9-1-6(l). As discusse d above, under the facts of this case, any unlawful discriminatory practice must be related to educati on. Here, the claim of retaliatory discrimination is predicated on Mrs. Br idgewater's assertion of a claim that the failure6 to provide special food constituted disability discrimination. Becau se this disability discrimination claim is not related to e ducation and thus falls outside the Commission's enforcement powers, the derivative retaliatory discrimination cl aim is also beyond the Commission's authority to impose any remedial sanctions against FACES. This is particularly apparent from the four corners of the Indiana Civil Rights Law. Neither th e disability discriminati on claim nor the retaliatory discrimination claim are re lated to education, and thus the Commission has exceeded its statutory authority.

Furthermore, it bears noting that the statutor y language authorizing Commission action to remedy an alleged retaliatory discrimination shoul d not be expansively c onstrued to expand the powers of the Commission beyond the types of discri mination expressly enumerated in the Law.
To hold otherwise would invite and incentivize the intimidating technique of bootstrapping a retaliation claim onto a meritless complaint allegi ng discrimination not subject to the Law. See Ind. Code § 22-9-1-2.

"It is 'the duty of the court not to enter upon the considera tion of a constitutional question where the court can perceive another ground on wh ich it may properly rest its decision.'" Bayh v. Sonnenburg, 573 N.E.2d 398, 402 (Ind. 1991) (quoting Bu reau of Motor Vehicles v. Scott, 497 N.E.2d 557, 559 (Ind. 1986)). Because the Commi ssion lacked statutory authority to act upon both the disability discrimina tion claim and the claim of excl usion from membership in retaliation for asserting the disabi lity discrimination claim, both cl aims should have been dismissed as exceeding the authority of the Commission, and it is therefore unnecessary to address any further issues, constituti onal or otherwise.

In this case, the Commission considered the me rits of Mrs. Bridgewater's disability discrimination claim but dismissed this claim afte r determining that FACES "met its burden of making a reasonable accommodation . . . by agreeing to allow food to be brought from home." Conclusion of Law No. 8, Appellant's App'x at 521. As to the retaliation discrimination claim,
the Commission found that FACES committed an unl awful discriminatory practice and ordered
remedial sanctions. The Commissi on's consideration of the merits of either discrimination claim was clearly erroneous because both claims fell outside the Commission's statutory authority and7 thus should have been dismissed outright. See Ind. Code § 4-21.5-5-14(d); Regester v. Ind. State Bd. of Nursing, 703 N.E.2d 147, 151 (Ind. 1998) (stati ng that a reviewing court may vacate an
administrative board's decision when "the conclu sions reached by the board are clearly erroneous").

Conclusion

The Commission lacked authority to take a ny action other than the dismissal of these claims arising from an intra-gr oup squabble over the type of meal to be served to a member family's child at an "All Souls' Day Masquerade Ball " dinner-dance social even t—an incident not related to education and thus not within the Commission's prerequisi te statutory authority. We vacate the Commission's final order and remand this cau se with instructions to grant the motion to dismiss filed by FACES as to both claims.

Rush, C.J., and David and Massa, JJ., concur. Rucker, J., dissents in part with separate opinion.Rucker, J., dissenting in part.

I agree with the majority that the Bridgewater disability discrimination claim fails because the alleged discriminatory practic e—excluding one of the Bridgewate r children from a meal at the Masquerade Ball due to her disability—did not “relat [e] . . . to education” within the meaning of Indiana’s Civil Rights Act. I nd. Code § 22-9-1-3(l). However, I disagree that the Bridgewater
retaliation claim is somehow derivative of and thus depends upon the disposition of the discrimination claim. Therefore on this issue I respectfully dissent.

Indiana’s Civil Rights Act reflects the State’s public policy to: provide all of its citizens e qual opportunity for education, employment, access to public c onveniences and accommodations, and acquisition through purchase or rental of real property, including but not limited to housing, and to eliminate segregation or separation based solely on race, religion, color, sex, disability, national origin or ancestry, since su ch segregation is an impediment to equal opportunity. . . . The practice of denying these rights to properly qualified persons by reason of the race, religion, color, sex, disability, national origi n, or ancestry of such person is contrary to the principles of freedom and equal ity of opportunity and is a burden to the objectives of the public policy of this state and shall be considered as discriminatory practices.

I.C. § 22-9-1-2(a), (b). The I ndiana Civil Rights Commission was created under the auspices of the Civil Rights Act and is afforded certain aut hority and charged with certain responsibilities, including the responsibility to “receive and i nvestigate complaints alleging discriminatory practices” and to “prevent any person from dischargi ng, expelling, or othe rwise discriminating against any other person because the person filed a complaint, testified in any hearing before this commission, or in any way assisted the commissi on in any matter under its investigation.” I.C. § 22-9-1-6(d), (g).

The majority takes the position that because the activities at issue did not “relate to education” the Commission had no authority to do anything other than dismiss the Bridgewater complaint. I cannot agree. Importantly, the Act prohibits “any person” from engaging in acts of discrimination. I.C. § 22-9-1-6(g). And a person is defined in part as “one (1) or more individuals,2 partnerships, associations, organizations, lim ited liability companies, corporations, labor organizations . . . and other organized groups of persons.” I.C. § 22-9-1-3(a). FACES certainly
falls within the definition of the Act. To be su re there is a carve-out for certain employers. For example although the Act makes it unlawful for an employer to discriminate against its employee, excluded from the definition of “employer” is “a ny school, educational, or charitable religious institution owned or conducted by or affiliated with a church or religious institution.” I.C. § 22- 9-1-3(h)(2). But the assertion here is not a claim based on employment discrimination. And in any case FACES does not contend it was acting as an employer with respect to Mrs. Bridgewater’s daughter. 1

Further, the import of the majo rity’s holding is that retaliat ion is only a “discriminatory practice” when it is committed in response to the filing of a meritorious complaint with the
Commission. I make two observations : First, correctly no ting this is a matter of first impression, the Court of Appeals concluded “FACES is suffici ently related to educati on such that the ICRC’s jurisdiction is proper.” Fishers Adolescent Catho lic Enrichment Soc’y, Inc. v. Bridgewater, 990 N.E.2d 29, 41 (Ind. Ct. App. 2013), vacated. And although the Court disagrees with our colleagues on this point, a respectable argum ent can be made that a good educat ion is not composed solely of “the three Rs—reading, [‘]riting, and [‘]rithmetic.” 2 Rather, it also includes social skills. 3 In essence, one could reach the reasonable conclusion th at the meal at the Ball “relates to education” and thus the Bridgewater complaint falls with the plain wording of the Civil Rights Act.

The facts of this case make clear the Bridge water complaint was certainly not “meritless” as the majority contends. And the Commission was quite correct in entertaining and providing a

1 The majority seems to imply that the homesc hooling/religious character of FACES exempts the organization from the reach of Indiana’s Civil Rights Ac t. See slip op. at 4-5. It does not, although the Legislature could certainly do so if deemed appropriate.

2 Christine Ammer, The American Heritage Dictionary of Idioms 457 (2d ed. 2013).

3 See Ind. Dep’t of Educ., Indiana Academic Standards for Health & Wellness 79 (2010), available at www.doe.in.gov/sites/default/files/standards/health-and -wellness/2010_health_education_standards_literacy.pdf (“Students will demonstrate the ability to use interper sonal communication skills to enhance health and avoid or reduce health risks. . . . This standard fo cuses on how responsible indi viduals use verbal and nonverbal skills to develop and maintain healthy personal relationships.”).3 remedy in favor of the Bridgewaters when FACES expelled the family in retaliation for filing the complaint in the first place. S econd, the retaliation language in the statute itsel f says nothing about an alleged “meritorious” complaint. Instead it tasks the Commission with the responsibility of “investigat[ing] complaints alleging discriminatory practices” and giving it authority to prevent retaliation “because the person filed a complaint , testified in any hearing before this commission, or in any way assisted the commission in any matter under its investig ation.” I.C. § 22-9-1-6(d), (g) (emphases added).

In addition, the majority’s view is also inconsistent Federal retaliation precedent. 4 In the federal context, all that is required for a complain ant to succeed on a retaliation claim is that he or she reasonably believed in good faith that the co mplained-of practice was discriminatory. See, e.g., Fine v. Ryan Int’l Airlines, 305 F.3d 746, 752 (7th Cir. 2002) (even where di strict court found complainant’s discrimination claim failed as a matter of law, she could still prevail on her retaliation claim); Wilkins v. St. Louis Hous. Au th., 314 F.3d 927, 933 (8th Cir. 2002) (recognizing that the Fifth, Seventh, Eighth, and Ninth Circuits have all used a re asonable-belief standard in the Title VII retaliation context).

Essentially, retaliation under the Act is a sepa rate act of discrimination regardless of the outcome on the merits of the underlying comp laint. Thus even though FACES prevailed on Bridgewater’s disability discrimination claim, it was nonetheless subject to the Bridgewater
retaliation discrimination claim. See Jacks on v. Birmingham Bd. of Educ., 544 U.S. 167, 180-81 (2005) (recognizing that th e objective of preventing discriminato ry practices “would be difficult, if not impossible, to achieve if persons who complain about . . . discrimination did not have effective protection against retali ation. . . . Without protection fr om retaliation, individuals who witness discrimination would likely not report it . . . and the underlying discrimination would go unremedied” (internal q uotation omitted)).

4 “In construing Indiana civil rights law our courts have often looked to federal law for guidance.” Filter Specialists, Inc. v. Brooks, 906 N. E.2d 835, 839 (Ind. 2009) (citing cases).4 Today the majority rewrites Indiana’s Civ il Rights Act, places an untenable burden on the Commission, and along the way ignores without explanation relevant federal precedent. I therefore cannot join its opinion. Instead I would affirm in part the Commission’s decision. 5

5 More specifically the Commission ordered FACES to take several remedial measures: (1) cease and desist from retaliating against persons because they filed a complaint with the ICRC; (2) post a link to the Commission’s order on all websites on which FA CES communicated information about the case; (3) pay emotional distress damages to the daughter of Mrs. Bridgewater in the amount of $2500; and (4) offer reinstatement of the Bridgewater family to full memb ership in FACES. I would reverse the Commission on this latter point as a violation of FACES’ constitu tional right of intimate association. See generally Roberts v. U.S. Jaycees, 468 U.S. 609, 612 (1984) (“a ddress[ing] a conflict between a state’s efforts to eliminate gender-based discrimination against its citi zens and the constitutional freedom of association asserted by members of a private group”).