This is a guest post by Sarah Henry. She is the Executive Director of the Child-Friendly Faith Project, which works to end child abuse and neglect enabled by religion. (Full disclosure: I am a member of their advisory board.)
Religious privilege is an ongoing reality in America, and nowhere is this more true than in courtrooms across the country. (Just look to the Supreme Court’s recent decisions to allow religious schools to benefit from taxpayer funding earlier this month.) Simply by claiming a religious motivation, faith-based educational institutions are able to escape being held accountable for their actions.
How do these schools get away with endangering children? The ecclesiastical abstention doctrine. This standard, sometimes referred to as the “church autonomy” doctrine, exists to prevent government institutions and secular courts from asking religious institutions about their practices. In theory, it’s meant to protect the separation of church and state and the free exercise clause of the First Amendment, ensuring that the government does not unconstitutionally interfere in religious matters. The doctrine was established in an 1871 Supreme Court case when two membership factions of one church in Louisville, Kentucky clashed on a number of topics, including slavery and financial management. In an effort to protect full religious freedom, the court determined that judicial authorities must respect the decisions of church leaders on issues of faith or doctrine as final.
But the protection intended by this standard has been twisted to protect the wrong people.
The EAD has been recast as a dangerous legal precedent that allows faith-based educational institutions to avoid being held accountable for failing to keep children safe — or for committing an act that harms a child.
In the last few years, courts in Texas have used the EAD to create loopholes that shield religious educational institutions from secular oversight in situations that are far removed from the original intent of upholding church/state separation. In John Doe vs. Episcopal School of Dallas (ESD), which was decided by the 5th Circuit Court of Appeals in 2018, a student was caught smoking marijuana off-campus and was subsequently expelled, even though a school-administered drug test came back negative. The student’s parents sued for, among other claims, a breach of contract, arguing that the school could not prove that their child had violated its terms of admission and study. Both the district and appellate courts said the case required the judges to “decide a matter of religious doctrine by looking into the inner decision-making of the school and dismissed all of the claims.”
The legal precedent set by these two cases massively expanded the scope of the EAD. Prior to these instances, the EAD had only been applied to “churches and those institutions operated directly by churches.” But neither of the schools described in these examples are linked to a house of worship — they they merely claim some religious affiliation. This expansion allows the doctrine to apply to countless children across the country. During the 2015-2016 school year, 67% of private schools, enrolling more than 78% of private school students, had a “religious orientation or purpose.” If the state will not hold these institutions accountable, a significant portion of American students are at risk of having their rights jeopardized with few options for recourse.
With the Religious Right’s hold on the American judicial system, and the Trump administration’s repeated nomination of judges who fail to respect the basic principle of constitutional separation of church and state, it’s tempting to believe there’s no way to fight back. But there are actionable steps we can take.
It starts by understanding the problem and raising awareness of it so that future judges are more informed about the issue, as well as parents whose children may be subject to its consequences. As ministerial exemptions continue nationwide, it seems likely that an increased use of the EAD will follow.
The Child-Friendly Faith Project is doing its part by launching End the EAD, a campaign designed to increase public awareness of this dangerous loophole. The EAD won’t end overnight, but it will never end if people aren’t clear on how it’s being misused.
(Image via Shutterstock)