Missing God in Some Things: The Nlrb's Jurisdictional Test Fails to Grasp the Religious Nature of Catholic Colleges and Universities

INTRODUCTIONSaint Xavier University and Manhattan College are fairly typical American Catholic institutions of higher learning.1 In their mission statements, they affirm their Catholic identity and how their ways of educating their students are inspired by the traditions of the Catholic religious order upon which they were founded.2 Both colleges offer courses in Catholic theology, and Saint Xavier explicitly educates its students in light of the Catholic Church's vision for its universities.3 In addition, their local archdioceses recognize them as Catholic colleges.4In the eyes of the National Labor Relations Board (NLRB), however, neither of these Catholic schools is "sufficiently religious."5 The NLRB's conclusions as to the religious nature of these institutions came about in hearings to determine whether the NLRB, pursuant to the National Labor Relations Act (NLRA), was authorized to exercise jurisdiction over the labor relations between the colleges and their adjunct faculty unions.6At separate administrative hearings before NLRB Regional Directors, the schools argued that they were exempt from NLRB jurisdiction under the reasoning of the 1979 U.S. Supreme Court case NLRB v. Catholic Bishop of Chicago. 7 In that case, the Court- noting the substantial religious character of parochial schools and the role that teachers play in fulfilling their religious missions-held that given the churchstate entanglement concerns raised by NLRB jurisdiction over "church-operated schools," Congress did not intend the NLRB to oversee the labor relations of teachers at religious high schools.8Despite arguments from the colleges that they should be exempt from NLRB jurisdiction, the NLRB Regional Directors determined in separate administrative hearings that jurisdiction over these religiously affiliated colleges was appropriate.9 Using the jurisdictional test the NLRB has developed since Catholic Bishop, the Regional Directors in both cases made these determinations after concluding that the schools were not substantially religious in nature.10 The Regional Directors reached these conclusions by considering several factors about the colleges.11 First, in both cases they determined that the colleges' primary purposes-to educate-were secular, not religious.12 Second, both colleges did not require students or faculty to be practicing Catholics, uphold loyalty oaths, or take courses in Catholic theology.13 Third, faculty members were granted academic freedom, were not hired or fired based on their religious beliefs, and were not hired to inculcate faith in their students.14 Finally, each school was governed by a board of trustees whose membership was comprised mostly of individuals who were not priests or members of a religious order.15 For these reasons, the Regional Directors determined that the schools were not so substantially religious in nature that invoking jurisdiction over them would raise the types of Establishment Clause infringement concerns that the Supreme Court sought to avoid in Catholic Bishop.16 Today, the determinations by the NLRB Regional Directors in both cases are under appeal.17As evidenced by the cases regarding Saint Xavier and Manhattan College, the NLRB's use of the substantial religious character test presents unique challenges for Catholic colleges and universities.18 The NLRB's test assumes that a college does not have a religious mission unless it engages in "hard-nosed proselytizing," denies faculty academic freedom, and discriminates on the basis of religion when admitting students and hiring faculty.19 Such an approach, however, fails to recognize the religious nature of Catholic colleges and universities, which carry out their religious missions precisely by "eschewing a narrow focus on religious indoctrination," granting faculty academic freedom, and opening their doors to non-Catholic students and faculty.20Underlying the NLRB's jurisdictional test is the understanding that the indoctrination of faith is not a primary purpose of many religiously affiliated colleges and universities and that, as a result, the faculty members at these colleges are not necessarily tasked with carrying out the religious missions of their schools. …