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Ninth Circuit takes up ‘ministerial exception’ in Black principal’s discrimination suit against Catholic school

The appeal could have broad implications for future cases involving employment decisions by religious institutions.

(CN) — A Ninth Circuit panel on Tuesday took up the appeal of a Black former principal of a Sacramento Catholic school who claims he was fired due to "enmity because of his race."

A federal judge dismissed Chris Orr's suit against Christian Brothers High School this past February, finding the school qualified for "ministerial exception," a legal doctrine that protects religious institutions from most discrimination claims.

The first Black principal hired by Christian Brothers, Orr in turn hired the school's first Black assistant principal and has said he sought to increase the Black population of the private school. His firing in the middle of the school year in 2019 caused a stir in both the school and the community, leading to weeks-long protests from teachers, students and community members, and even drew noted author and professor Cornel West, who grew up in Sacramento.

In his federal lawsuit, Orr claimed a pattern of discrimination and racial harassment against him, primarily by the school's president Lorcan Barnes. In his complaint, Orr charged that Barnes was "displeased by Orr's efforts to reach out and create a relationship between the school and the surrounding [B]lack and Hispanic community."

Orr described a "hostile work environment" and what he called Barnes's "hostile attitude towards minorities" which was "on full display during tuition assistance meetings." Orr claimed Barnes favored offering white students more money than Black students and that he and other members of the committee used "crass language" when talking about minority students and their parents, saying the father of one Black student was "likely incarcerated," and that the mother's "elevator doesn’t go to the top floor.”

In dismissing the suit, U.S. District Judge John A. Mendez found Orr's role as principal "was at the very core of Christian Brothers High School's religious mission."

"Under the ministerial exception, courts are bound to stay out of employment disputes involving those holding certain important positions with churches and other religious institutions," Mendez wrote.

In their written brief to the appeals court, Orr's lawyers argued Mendez had relied too heavily on the school's own job description of its principal and disregarded the duties Orr actually performed. They argued Orr had not functioned as a minister since he had not taught any religious classes, and was primarily in charge of school operations — not religious instruction — and that Barnes, not Orr, was the school's "spiritual leader."

On Tuesday, the three-judge Ninth Circuit panel grilled Orr's attorney Manolo Olaso over the claim that Orr had no spiritual role in the school.

"Did he lead prayers?" asked Senior U.S. Judge Jane Restani, a Ronald Reagan appointee sitting by designation from the U.S. Court of International Trade.

Olaso admitted that Orr led prayers at some small faculty meetings and may have occasionally read a prayer over the school's public address system.

Paul Gaspari, attorney for Christian Brothers, seized on that point. "We do not get out a stopwatch and measure the amount of time one spends on religious activities. A principal of a Catholic school is a leader of the school and is a minister."

But the panel grilled Gaspari on a different issue.

"He does have, in effect, a harassment claim in his complaint, which is tantamount to a hostile work environment," said Judge Restani, referring to Orr's claims of racist language used at the tuition assistance meetings. "Would you agree that, in principle, the hostile work environment could be separated from ministerial status?"

Gaspari said it might in theory but that in Orr's case it "all goes to his performance as principal."

Chief U.S. Circuit Judge Sidney Thomas, a Bill Clinton appointee, disagreed. "I think you’d have to say creating a hostile work environment based on race has nothing to do with religion," he said.

The three-judge panel, which also included Clinton appointee U.S. Circuit Judge M. Margaret McKeown, took the arguments under submission after nearly an hour of debate.

"I remain steadfast that I’m not a minister," Orr said in an interview a few hours after the hearing. "I heard the appellate judges' questions, I get it. But I’m pleased that the judges appeared to acknowledge that I still have the right to be free of a racially hostile work environment, and I’m hopeful of a positive ruling."

He added: "I don’t know very many religions that approve of racism. So to hide behind that is counter to what faith is."

The U.S. Supreme Court first took up the issue of ministerial exception in 2012, when the court unanimously ruled in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, that federal discrimination laws don't apply to religious leaders. The case concerned a teacher who sometimes taught religion and sued the school under the Americans with Disabilities Act.

Exactly who qualifies as a minister is the subject of some debate, and a ruling in Orr's appeal could have implications for how the courts rule on future cases involving the hiring practices of religious institutions.

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