This obscure law shielded an Episcopal School from a lawsuit and raises concerns about accountability
A courtyard in the Episcopal School of Dallas, an elite college prep private school. Creative Commons photo.
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(OPINION) A Texas court ruling is sparking debates about an obscure First Amendment doctrine that exempts religious institutions from certain civil lawsuits to protect them from government interference in their internal matters. The ruling’s interpretation raises concerns about how lay people can hold these institutions accountable when abuses happen.
The Episcopal School of Dallas, an elite private school, expelled Dan Patterson’s son for leaving the campus during the day and smoking marijuana, violations of school policy, the school argues. But Patterson claims his son was actually expelled for political reasons and this unfairly caused his child great stress.
Patterson said:
“Institutions that claim some affiliation with faith are now immune from civil liability attached to harmed children or damages to anybody under their care. People who accept services from faith-based institutions need to be very wary because there is no incentive for those institutions to protect the people they are caring for.”
In 2019, the Texas Supreme Court effectively upheld an appeals court ruling when it refused to hear the case between Patterson, supported by Child Friendly Faith Project, and the school.
A Texas appellate court ruled that Episcopal School of Dallas was exempt from legal scrutiny due to its claim to be a religious institution. The Child Friendly Faith Project (CFFP) believes the ruling is a dangerous precedent that could allow religious institutions who provide care for children and other vulnerable individuals to avoid accountability. Underpinning the ruling is a First Amendment doctrine called the ecclesiastical abstention doctrine (EAD.)
What is the Ecclesial Abstention Doctrine?
Under the EAD, civil courts cannot weigh in on internal matters of religious institutions which engage in “theological controversy, church discipline, ecclesiastical government, or the conformity of the members of a church to the standard of morals required of them.” There is general agreement among courts that the EAD prevents civil courts from resolving disputes between religious organizations and their members and clergy. A recent law review article details how courts have been divided on the EAD with respect to more nuanced issues.
Yet, the particular issue of whether religious educational institutions are exempt from lawsuits regarding the religiously motivated discipline and treatment of children in their care is still relatively uncharted territory. There are very few cases on this matter. And it is unclear whether other courts, especially federal courts and those outside of Texas, would follow the recent precedent set by this case. In this case, the EAD was interpreted very broadly, beyond religious employment and membership requirements. The court ruled: “(i) the school is a faith-based institution to which First Amendment protections apply, (ii) this dispute turns solely on the school's ability to manage its internal affairs, including its admissions decisions” and therefore the case against the school should be remanded to the lower court for dismissal.
Should Parents of Children in Faith-Based Schools Be Worried?
The recent precedent discussed above is, potentially, concerning. As the Child Friendly Faith Project points out, parents of children attending religious institutions, especially those in Texas, may have reason to fear that, under some circumstances, they could be denied the right to sue the religious institution. Yet, the language used by CFFP could be argued to be overly broad, and perhaps, even fear mongering. It is not at all a given that religious schools and other faith-based social services providers would, in general, prevail if sued for the most egregious of child harms such as physical or sexual abuse.
The precedent-making case is also hard to evaluate because we simply do not know all the facts of the case. This case involved expulsion of a student who did, by his family’s own admission, violate school policy. It is important to note that the family also claims the violation was minor and that such minor infractions were explicitly not subject to expulsion.
Yet the school claimed, and the court agreed that:
“The facts, however, conclusively establish that this dispute derives solely from the calculus of the school's internal policies and management of its internal affairs, all directed at the school's decision regarding whether [the student] should be a member of the school community. Thus, this dispute fits entirely within the parameters of a dispute for which the ecclesiastical abstention doctrine applies.”
The court further explained, of the school admissions policy, “the agreement further provides that the school ‘may terminate Student's enrollment for any reason,’ and ‘students may be disciplined including but not limited to suspension and expulsion.’”
Considerations for Evaluating Educational Institutions for Child Protective Policies
So, what is the takeaway, both for parents considering sending their children to religious institutions and for the institutions themselves? The Child Friendly Faith Project suggests five questions that parents should ask themselves. Among them are: “Does the institution have effective child-abuse prevention policies? And Does the school have a history of facing abuse allegations?” These questions are a helpful starting point, yet should be considered in a context not deeply rooted in fear for faith-based institutions as abusive.
Unfortunately, some of CFFP’s content could lead parents to the conclusion that faith-based schools and other religious organizations who provide care for vulnerable communities are inherently more dangerous than their secular counterparts. The evidence does not generally bear out that assumption. Moreover, any parent sending their child to any institution, be it a faith-based childcare, a secular private educational institution, or a government run school, should consider asking questions about child abuse prevention practices and history as part of the discernment process.
Based on the limited information we do have, I do, personally, find the Texas court decision in the Episocal School of Dallas case to be an overly broad and potentially problematic interpretation of the EAP. I am not thoroughly convinced that treating all students enrolled at a religious school, even those whom the undisputed facts support are not members of the Episocal church, as equivalent to being such, seems, in non-technical parlance, to be a bit of a stretch. Yet, the framing of this case as sounding the bells for a precedent that will protect faith-based schools from charges of sexual misconduct or explicit abuse seems improbable.
Parents suing a school because their child was dismissed from that school for clearly violating some school policies (in this case substance use) seems like a manner worthy of healthy debate. This case brings up important questions about the right roles and responsibilities of families, religious institutions and the legal system. I am, personally, sympathetic to the young man in this case who seems to have been expelled from school shortly after the death of his mother for a relatively minor and off-campus violation.
Yet, the fact scenario above seems very different than a scenario where parents sue a school because their child has been the victim of sexual assault or physical harm. Both require careful attention. Both require wisdom, discernment and justice. Yet, I am unconvinced that a victory in one Texas court upholding the expulsion of a student who was very likely in violation of the school’s stated standards, is going to open the flood gates, as some have suggested, for institutional abuses at religious schools across the country to go unchecked by the legal system.
Perhaps the best way forward, especially for Christian parents, is with a “creation, fall, redemption” mindset. This requires us to resist the dualism of all good vs. all bad. Religious institutions, like all human institutions, have inherent goodness, as well as inherent brokenness and sin. Believers must prayerfully seek that which is good (and from God), as well as that which is broken, in every community and institution in which they are a part. And, as believers, we are called to move past categorizing human institutions as good vs sinful, toward transformative, redemptive approach to our shared, institutional lives: at church, in Christian schools, and in every community of which we are a part.
A redemptive approach calls us to neither give into fear of sending our child to a religious school because abuse is possible, nor be complacent where we see injustice and abuse, including in religious institutions. Unfortunately, this recent Texas precedent does give us a moment to pause, to learn and to recommit to prayerfully discerning how the religious institutions of which we are a part can protect their most precious assets: their children.
Chelsea Langston Bombino is a believer in sacred communities, a wife, and a mother. She serves as a program officer with the Fetzer Institute and a fellow with the Center for Public Justice.