The Episcopal School of Dallas Called Out by Harvard Law Review

The Episcopal School of Dallas (ESD Dallas) cases represent an "unprecedented expansion," says Harvard Law Review, of a loophole to shield schools from civil and criminal liability

A school should protect students from bullies. But what if it doesn't? Administrators at a religious school might argue they can treat students however they want -- as long as that treatment has basis in religious doctrine. The school might also claim that parents, when they write that tuition check, know what they're getting into and they have no basis to sue. That position is called the "ecclesiastical abstention doctrine."

Ecclesiastical abstention is not an official law or regulation.

Also known as the "church autonomy doctrine," ecclesiastical abstention means courts will not hear cases in which they must decide questions of faith. Courts may defer instead to the hierarchy of religious leaders affiliated with schools like the Episcopal School of Dallas. Ecclesiastical abstention is grounded in the "free exercise of religion" clause of the First Amendment. The rationale goes like this: courts are not capable or competent to decide questions of religious belief. Nor should civil courts issue religious decrees. Say, for example, a school fires a priest because it believes he violated some tenet of the faith. The priest disagrees he made such a violation and proceeds to sue the school for wrongful termination. With ecclesiastical abstention, courts may refuse to hear the case.

Civil law, according to ecclesiastical abstention, has no standing to rule on what may be "wrongful" for a given religion.

The courts, of course, still have jurisdiction in many civil claims. Say the priest contracted to do some repairs around the campus and the school refused to pay. The courts' role is just like any other breach of contract. The religious affiliation of the school is irrelevant. Courts may hear cases involving religious doctrine when, for example, such cases require only interpretation and enforcement of a school's own by-laws. That's no different from any other legal document. But that hasn't been the case with the Episcopal School of Dallas.

Recent decisions from state courts in Texas are expanding ecclesiastical abstention in troubling ways.

The Episcopal School of Dallas expelled a student for smoking marijuana, even though the student was off-campus at the time. His parents attempted to sue the school, but both the trial court and appellate court dismissed all claims, because the case would require courts' deciding the relevance of that school's religion's position on marijuana. (The Texas Supreme Court declined to review Doe v. The Episcopal School of Dallas further.) A black student at the Episcopal School of Dallas claimed he suffered ongoing, race-motivated bullying. Students, he said, had placed mini KKK hoods in his locker, and the continuous nature of the bullying resulted in emotional damage that also affected his grades. His parents believed the school should've done more to protect him and investigate those students responsible. But a district court judge dismissed the case, ruling that the court could not interfere with internal decisions about discipline.

Such cases represent an unprecedented expansion of ecclesiastical abstention.

Before now, courts have applied ecclesiastical abstention only to churches, along with schools and other institutions run by churches directly. These cases ask courts to apply ecclesiastical abstention to individuals and organizations that are merely affiliated with a religion. The Texas courts in question were more receptive to applying ecclesiastical abstention, too. Usually courts try to rule on such cases on secular grounds. They decide for themselves whether they can hear a case without deciding religious doctrines. These courts, however, found just the suggestion of ecclesiastical abstention enough to dismiss.

Read full article at Harvard Law Review>>