United States Court of Appeals,
Eleventh Circuit.
No. 96-6238.
John R. KILLINGER, Plaintiff-Appellant,
v.
SAMFORD UNIVERSITY, Defendant-Appellee.
May 22, 1997.
Appeal from the United States District Court for the Northern
District of Alabama. (No. CV-94-AR-3007-S), William M. Acker, Jr.,
Judge.
Before EDMONDSON and BLACK, Circuit Judges, and RONEY, Senior
Circuit Judge.
EDMONDSON, Circuit Judge:
This case presents the issue of the interpretation of two
religious exemptions to Title VII, the "religious educational
institution" exemption and the "owned, supported, controlled, or
managed" by a "religious association" exemption. Plaintiff says
that a university's decision to remove him from his teaching
position at its divinity school constituted religious
discrimination and that the district court erred in applying the
two exemptions to his Title VII claim. Because we believe that
this case presents the circumstances envisioned by Congress in
drafting these two exemptions, we affirm the district court's
judgment for defendant.
I.
Plaintiff John R. Killinger is a professor, author, and
preacher. Defendant Samford University ("Samford") is a university
located in Birmingham, Alabama. As a result of a bequest in a
will, Samford received money to establish a divinity school, the
Beeson School of Divinity.
Plaintiff entered into discussions with the President of
Samford about the new divinity school, and was offered a position
as Distinguished Professor of Religion and Culture. Under the
terms of their agreement, Plaintiff was to teach in both the new
divinity school and the undergraduate departments of religion and
English.
Plaintiff and the Dean of the Beeson Divinity School do not
share the same theological views. Samford eventually removed
Plaintiff from the divinity school teaching schedule and, as he
says, "[forbade him from] having any involvement with the Divinity
School." According to the Complaint, "[b]ecause of his religious
philosophy, [Plaintiff] has been denied the opportunity to teach at
the Divinity School" and "he has been discriminated against because
of religious reasons, more particularly because he did not adhere
to and sometime[s] questioned the fundamentalist theology advanced
by the leadership of the Beeson School of Divinity, particularly
Dr. Timothy George, its Dean." Plaintiff continues to teach
undergraduate religion courses.
Plaintiff filed a Title VII claim alleging religious
discrimination, along with supplemental claims for breach of
contract and negligent supervision. After the parties conducted
limited discovery on the issue of whether Samford qualifies for a
religious exemption, Samford sought summary judgment. The district
court granted the motion.
II.
We review the grant or denial of summary judgment de novo,
applying the same standard to be used by district courts. Parks v.
City of Warner Robins, Ga., 43 F.3d 609, 612-613 (11th Cir.1995).
The plaintiff in an employment discrimination case bears the burden
of establishing that the employer falls within the scope of the
pertinent statute. Earley v. Champion Intern. Corp., 907 F.2d
1077, 1081 (11th Cir.1990).
A. Religious Educational Institution Exemption
Section 702(a) of Title VII provides as follows:
This subchapter shall not apply ... to a religious
corporation, association, educational institution, or society
with respect to the employment of individuals of a particular
religion to perform work connected with the carrying on by
such corporation, association, educational institution, or
society of its activities.
42 U.S.C. § 2000e-1(a). Plaintiff presents two arguments about
Section 702. First, Plaintiff says that Samford is a "secular"
institution, not a "religious" one. Second, Plaintiff says that
Samford is entitled to an exemption only if its employment decision
was the result of an institutional religious policy and that
Samford cannot meet this requirement.
Plaintiff argues that Samford is no "religious" institution as
it is not sufficiently "sectarian." In so arguing, Plaintiff seeks
to distinguish EEOC v. Mississippi College, 626 F.2d 477 (5th
Cir.1980). In Mississippi College, the former Fifth Circuit
accepted the district court's conclusion that Mississippi College
was a "religious educational institution."1 Id. at 486. Plaintiff
1
In Mississippi College, the EEOC sought to enforce a
subpoena against the college to evaluate a complaint of gender
and race discrimination. The former Fifth Circuit held that
Section 702 divests the district court of jurisdiction only if
the religious educational institution discriminated on the basis
of religion, not on the basis of gender. Id. at 485-86. Because
says that this conclusion was based on the fact that Mississippi
College was owned and operated by the Mississippi Baptist
Convention and was "pervasively sectarian." Id. at 487. The
Mississippi College court, however, looked at all the circumstances
to determine whether Mississippi College was a "religious
educational institution": 95% of the faculty were Baptist, 88% of
the students were Baptist, the curriculum included study of the
Bible, chapel was mandatory and the school expressly sought to
provide "educational enrichment in a Christian atmosphere." Id. at
479. Plaintiff has cited to us no authority supporting his idea
that some kind of rigid sectarianism is a requirement for the
"religious educational institution" exemption, and we are aware of
none.
Samford presented extensive evidence to establish that it is
a "religious educational institution." Samford was founded as a
"theological" institution in 1841 by the Alabama Baptist State
Convention (the "Convention"). While Samford recently amended its
charter to remove the Convention's power to elect the school's
trustees, its trustees are now, must be, and always have been (with
one historical exception) Baptist.
Samford receives roughly seven percent of its annual budget
(over four million dollars) from the Convention. This sum is its
largest single source of funding.2 This money is also the largest
"[t]he district court did not make clear whether the individual
employment decision complained of ... was based on the
applicant's religion," the court remanded the case for further
findings. Id.
2
Like many colleges, the bulk of Samford's annual budget
comes from tuition and fees.
amount (from a single source) received by a Baptist college in the
United States. Samford reports financially to both the Convention
and the Alabama Baptist State Board of Missions and submits
financial reports to the Convention's audit, budget and insurance
committees. The audited financial statements are published in the
Convention's annual proceedings, and both it and Samford's external
audit are made available to all churches within the Convention. In
addition, the school is a member of the Association of Baptist
Colleges and Schools, which limits membership to Baptist
educational institutions.
Before teaching religion courses at the school, all faculty
must subscribe to the 1963 Baptist Statement of Faith and Message,
which contains various "affirmations" and "commitments" to
advancing Christianity. Both the faculty handbook and individual
faculty contracts affirm this commitment, with termination as a
potential penalty for failing to abide by it. Samford's charter
designates its chief purpose as "the promotion of the Christian
Religion throughout the world by maintaining and operating ...
institutions dedicated to the development of Christian character in
high scholastic standing." Samford's student handbook describes
Samford's purpose this way: "to foster Christianity through the
development of Christian character, scholastic attainment, and a
sense of personal responsibility, ..." Furthermore, all students
are required to attend chapel.
Both the Internal Revenue Service ("IRS") and the Department
of Education recognize Samford as a religious educational
institution and grant it exemptions on that basis. Plaintiff has
requested and received a minister's housing allowance from the IRS
based on Samford's exemption. In sum, Samford is doubtlessly a
"religious educational institution."
Plaintiff further argues that Section 702 requires that
Samford act pursuant to a specific religious policy, as opposed to
"ad hoc acts of religious discrimination." Plaintiff seeks to
distinguish between the religious requirements of Samford as an
institution and the religious views of the divinity school's dean.
According to Plaintiff, the former constitute legitimate religious
requirements with which he has complied, while the latter
constitute religious discrimination.
Plaintiff argues that Samford must establish a "causal
relationship" between a specific religious policy—such as a
preference for a particular sect in hiring—and his termination.
Plaintiff says that here the only pertinent policy is Samford's
requirement that religion teachers subscribe to the 1963 Baptist
Statement of Faith and Message. As Plaintiff has so subscribed, he
argues that no valid reason of religious policy can support the
employment decision about which he complains.
Plaintiff has presented no authority for his view of an
"institutional policy" requirement for the Section 702 exemption,
and we are aware of none. We think that the idea of institutional
policy is not as narrow as Plaintiff seems to think it is; we
think Samford's policy includes its general purpose, principles,
and tendencies as a religious institution. We are also aware of no
requirement that a religious educational institution engage in a
strict policy of religious discrimination—such as always preferring
Baptists in employment decisions—to be entitled to the exemption.
This case comes down to this situation: Plaintiff is not
allowed to teach at the divinity school of a religious educational
institution because his religious beliefs—as Plaintiff frankly
admits—differ from those of the school's dean, the person selected
by the religious educational institution to apply its policy and to
lead the faculty at the divinity school. The Section 702
exemption's purpose and words easily encompass Plaintiff's case;
the exemption allows religious institutions to employ only persons
whose beliefs are consistent with the employer's when the work is
connected with carrying out the institution's activities. To us,
a teaching job in a divinity school of a religious educational
institution is at the core of the Section 702 exemption: the
inherent purpose of such schools is the study of God and God's
attributes. We conclude that the exemption protects Samford in
this case.3
B. Owned, Supported, Controlled, or Managed by a Religious
Association
Section 703(e)(2) of Title VII provides as follows:
[I]t shall not be an unlawful employment practice for a
school, college, university, or other educational institution
or institution of learning to hire and employ employees of a
3
Plaintiff has cited many cases which he says support him:
E.E.O.C. v. Kamehameha Schs./Bishop Estate, 990 F.2d 458 (9th
Cir.1993); Little v. Wuerl, 929 F.2d 944 (3d Cir.1991);
E.E.O.C. v. Townley Eng'g & Mfg. Co., 859 F.2d 610, 619 (9th
Cir.1988); E.E.O.C. v. Fremont Christian Sch., 781 F.2d 1362
(9th Cir.1986); Rayburn v. General Conference of Seventh-day
Adventists, 772 F.2d 1164 (4th Cir.1985); E.E.O.C. v.
Southwestern Baptist Theological Seminary, 651 F.2d 277 (5th Cir.
Unit A July 1981); Fike v. United Methodist Children's Home of
Va., Inc., 547 F.Supp. 286 (E.D.Va.1982), aff'd, 709 F.2d 284
(4th Cir.1983). None of these decisions, however, are at odds
with the conclusion we reach today.
particular religion if such a school, college, university, or
other educational institution or institution of learning is,
in whole or substantial part, owned, supported, controlled, or
managed by a particular religion or religious corporation,
association, or society, ...
42 U.S.C. § 2000e-2(e).
Samford says that, even if its refusal to allow Plaintiff to
teach at the divinity school were not covered by the religious
educational institution exemption, it is entitled to an exemption
as an educational institution substantially "owned, supported,
controlled or managed by a particular religion or religious
corporation, association, or society." Samford argues for a
flexible interpretation of Section 703 and points to Samford's
historical ties with the Convention, the fact that the Convention
is the single largest contributor to the university, and that its
Board of Trustees requires it to report to the Convention on all
budgetary and operational matters. Plaintiff, on the other hand,
says Samford is not "owned, supported, controlled, or managed" by
a religious association because (1) the Convention no longer
appoints trustees and (2) only seven percent of its budget comes
from the Convention. Neither side cites precedents interpreting
Section 703, and we are aware of no precedent that speaks to the
issue of what it means to be "owned, supported, controlled, or
managed" by a religious association. See e.g. Pime v. Loyola
University of Chicago, 803 F.2d 351, 357 (7th Cir.1986) (Posner,
J., concurring) ("Is the combination of a Jesuit president and nine
Jesuit directors out of 22 enough to constitute substantial control
or management by the Jesuit order? There is no case law pertinent
to this question; the statute itself does not answer it;
corporate-control and state-action analogies are too remote to be
illuminating; and the legislative history, though tantalizing, is
inconclusive.") (internal citations omitted).
Section 703 is written in the disjunctive and requires only
that a college be—"in whole or substantial part"—"owned, supported,
controlled or managed" by a religious association. Without
addressing the other possibilities, we conclude that Samford is "in
substantial part" "supported" by the Convention.
"Substantial" is not defined by the statute. But the word
substantial ordinarily has this meaning: "Of real worth and
importance; of considerable value; valuable. Belonging to
substance; actually existing; real; not seeming or imaginary;
not illusive; solid; true; veritable. Something worthwhile as
distinguished from something without value or merely nominal.
Synonymous with material." Black's Law Dictionary, 1428 (6th ed.
1990) (internal citations omitted). Continuing support annually
totaling over four million dollars (even in the abstract, no small
sum), accounting for seven percent of a university's budget, and
constituting a university's largest single source of funding is of
real worth and importance. This kind of support is neither
illusory nor nominal. So, the Convention's support is substantial.
We hold—as an alternative to our Section 702 holding—that Samford
qualifies as an educational institution which is in "substantial
part" supported by a religious association and that the exemption
protects Samford in this case.
III.
We, as a federal court, must give disputes about what
particulars should or should not be taught in theology schools a
wide-berth. Congress, as we understand it, has told us to do so
for purposes of Title VII. Also, such a construction allows us to
avoid the First Amendment concerns which always tower over us when
we face a case that is about religion.
AFFIRMED.