1. Is religious training mandatory at all of the schools in question? 2. Does the Court see...


1. Is religious training mandatory at all of the schools in question?
2. Does the Court see inevitable church-state entanglements if the Board were allowed to exercise jurisdiction over teachers in churchoperated schools?
3. Did Congress express the clear intent to bring teachers in church-operated schools within the jurisdiction of the NLRA?

[The National Labor Relations Board exercised jurisdiction over the lay faculty members at two Catholic high schools in the Chicago Diocese and exercised jurisdiction over five Catholic high schools in the Fort Wayne-South Bend Diocese. All of the high schools in question seek to provide a traditional secondary education, but oriented to the tenets of the Roman Catholic faith. Religious training is mandatory at all of the schools in question. The schools are certified by the states of Illinois and Indiana, respectively. The Board supervised elections for both groups of schools, and the unions prevailed. The Board certified the unions as the representatives of the lay teachers, but the schools declined to recognize or to bargain with the unions. Section 8(a)(5) unfair labor practice charges were brought by the unions and upheld by the Board. The Court of Appeals for the Seventh Circuit denied enforcement of the Board’s order. The Supreme Court granted certiorari.]


In recent decisions involving aid to parochial schools we have recognized the critical and unique role of the teacher in fulfilling the mission of a church-operated school. What was said of the schools in Lemon v. Kurtzman, 403 U.S. 602, 617 (1971), is true of the schools in this case: “Religious authority necessarily pervades the school system.” The key role played by teachers in such a school system has been the predicate for our conclusions that governmental aid channeled through teachers creates an impermissible risk of excessive governmental entanglement in the affairs of the church-operated schools….

… Inevitably the Board’s inquiry will implicate sensitive issues that open the door to conflicts between clergy-administrators and the Board, or conflicts with negotiators for unions. What we said in Lemon applies as well here: “… parochial schools involve substantial religious activity and purpose.”

“The substantial religious character of these churchrelated schools gives rise to entangling church-state relationships of the kind the Religion Clauses sought to avoid.” Mr. Justice Douglas emphasized this in his concurring opinion in Lemon, noting “the admitted and obvious fact that the raison d’^etre of parochial schools is the propagation of religious faith.”

The church-teacher relationship in a churchoperated school differs from the employment relationship in a public or other non-religious school. We see no escape from conflicts flowing from the Board’s exercise of jurisdiction over teachers in church-operated schools and the consequent serious First Amendment questions that would follow. We therefore turn to an examination of the National Labor Relations Act to decide whether it must be read to confer jurisdiction that would in turn require a decision on the constitutional claims raised by respondents.

There is no clear expression of an affirmative intention of Congress that teachers in churchoperated schools should be covered by the Act. Admittedly, Congress defined the Board’s jurisdiction in very broad terms; we must therefore examine the legislative history of the Act to determine whether Congress contemplated that the grant of jurisdiction would include teachers in such schools.

In enacting the National Labor Relations Act in 1935, Congress sought to protect the right of American workers to bargain collectively. The concern that was repeated throughout the debates was the need to assure workers the right to organize to counterbalance the collective activities of employers which had been authorized by the National Industrial Recovery Act. But congressional attention focused on employment in private industry and on industrial recovery.

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