While Fulton's majority opinion did not overrule Smith, two concurrences suggest that Smith is on life support.
The National Labor Relations Board (NLRB) handed down a decision in December 2014 that has great import for the relationship of church and state as that relationship plays out through institutions of higher learning.
The decision dealt with the Service Employees International Union’s attempt to organize contingent (part-time and non-tenure track) faculty at Pacific Lutheran University, a religiously affiliated institution. The NLRB, by a vote of 3 to 2, articulated with this decision two new principles: first, regarding labor regulation of religiously affiliated colleges and universities, and second, deciding whether and to what extent faculty are to be considered “management” and hence exempt from the Board’s jurisdiction.
Both parts of the decision, in expanding the NLRB’s reach, in effect treat colleges and universities like ordinary employers.
To bring Pacific Lutheran University under its jurisdiction, the NLRB has to address a threshold issue: It must overcome religiously affiliated institutions’ First Amendment free exercise exemption from the regulations of the NLRB. For some time, the Board used a “substantial religious character” test to determine whether an institution deserved such an exemption. Finding such a test too unpredictable and liable to abuse, the U.S. Circuit Court of Appeals for the District of Columbia proposed a new test in its 2002 decision, University of Great Falls v. NLRB:
This approach . . . would exempt an institution if it (a) “holds itself out to students, faculty and community” as providing a religious educational environment…; (b) is organized as a “nonprofit” . . . ; and (c) is affiliated with, or owned, operated, or controlled, directly or indirectly, by a recognized religious organization, or with an entity, membership of which is determined, at least in part, with reference to religion.
The rationale underlying the Great Falls test was derived from the 1979 Supreme Court decision, NLRB v. Catholic Bishop of Chicago, holding that, absent a clear indication that Congress intended the National Labor Relations Act to apply to religiously affiliated schools, “the Court will not construe the Act in such a way as would call for the resolution of difficult and sensitive First Amendment questions.”
To avoid the “excessive entanglement” that would follow from trying to distinguish which employees under which circumstances were advancing a mission enjoying First Amendment protection, the D.C. Circuit Court, following the 1979 decision, essentially told the NLRB that it should accept more or less at face value an institution’s representation of itself as religious, so long as it is also non-profit and affiliated with, or subject to, control by a recognizably religious organization.
By the Board majority’s lights, this sort of test gives too much away to the institution; it has to be balanced against the rights of the employees. This balance, the Board’s majority argues, can be established when the Board determines that, once a “religious institution demonstrates . . . that it holds itself out as providing a religious educational environment,” it “must then show that it holds out the petitioned-for faculty members themselves as performing a specific role in creating or maintaining” that “religious educational environment.”
In other words, the NLRB will go beyond the institution’s bare assertion of its religious character and examine the roles that particular employees play. This examination purports not to be intrusive because it seems not to go beyond the institution’s assertions about those roles. Religion itself doesn’t insulate a college or university from NLRB inquiry, but the Board will not go further, apparently, than looking at job descriptions.
As the NLRB puts it:
Faculty members who are not expected to perform a specific role in creating or maintaining the school’s religious educational environment are indistinguishable from faculty at colleges and universities which do not identify themselves as religious institutions. . . . Both faculty provide nonreligious instruction and are hired, fired, and assessed under criteria that do not implicate religious considerations. For the Board to assert jurisdiction over such employees does no harm to the university’s religious mission and does not impermissibly entangle the Board in any of the university’s religious beliefs or practices.
Precisely how faculty play their roles turns out to be crucial in this instance: “Generalized statements that faculty members are expected to, for example, support the goals or mission of the university are not alone sufficient.” Examples of what else might have to be included to establish the religious nature of the employment are requirements that faculty “incorporate religion into their teaching or research” or that they have to affirm a set of religious beliefs.
If a university asserts a commitment to diversity or academic freedom, this, in the view of a majority of the Board, effectively disallows its claim that faculty are integral to its religious mission. In other words, only very distinctively religious institutions—those that have mandatory statements of faith or that specifically require the integration of faith and learning—can avail themselves of Free Exercise protection against NLRB regulation. The closer the religious norms are to secular norms—even if the inspiration for or rationale underlying the norms were religious or quasi-religious—the harder it is for the college or university to claim First Amendment protections.
In probing how Pacific Lutheran University presents itself to the public and discusses faculty responsibilities, the NLRB majority finds little that, in its view, decisively distinguishes it or its faculty from essentially secular institutions. The university’s officers discuss the Lutheran religious heritage, but such discussions do not have a prominent place, for example, on the university’s website. And there is little in its treatment of faculty responsibilities that could not be found in the literature or documentation of any secular university.
Indeed, even Pacific Lutheran University’s explicit attempt to explain what Lutheranism means for higher education bespeaks its avid adoption of the diversity of the world in which it is located:
We don’t fear those who are not like us because we know that others have a perspective we might need to hear. We embrace diversity with great joy. On our campus we have professors, staff, and students of every race, many nationalities, different Christian traditions, different faiths, or no faith. We do not see this as a weakness but as a great strength for it is in the interchange of differing perspectives and ideas that most often truth is found. At a Lutheran university you will find a great variety of people from many cultures and from all walks of life. We embrace this diversity as a gift from God to be treasured.
While there are features of this statement—the last sentence, for example—that could only be found in the literature of a religious university, it seems hard to regard a commitment to racial, ethnic, religious, and perhaps intellectual diversity as distinctively or exclusively religious. In this sense, the NLRB majority does have something of a point. (And I will take up this aspect in a subsequent post.) Only someone thoroughly acquainted with the heritage of Lutheran higher education—such as NLRB member Harry I. Johnson, III, who vigorously and compellingly dissented from the majority’s December ruling—could discern the distinctively Lutheran thinking underlying apparently secular statements.
Let me note two features of the NLRB opinion.
First, the Board’s balancing act impels it to make judgments—historically eschewed by the Supreme Court—about the religious character of various educational and employment practices. The Board’s deep intrusion into the university’s functioning is based on a “stark error,” said Board member Johnson in dissent, for it elevates the rights granted by the National Labor Relations Act to the same level as a right guaranteed by the Constitution. And in its willingness to use state power to protect legislatively granted rights, the Board assumes the authority to make judgments about how religious institutions are to conduct their business, not just in terms of employment practices but also in terms of how faculty roles have to be defined in order to exempt them from regulation.
This is, needless to say, a serious diminution of the free exercise protections religiously affiliated colleges and universities have hitherto enjoyed.
Second, and connected to this, I would note the majority’s assumption about the only kind of religious institution that may enjoy the full range of First Amendment protections. To use the invidious language the Supreme Court once used to describe such schools, only “pervasively sectarian” colleges and universities—those on the margins of an increasingly secular society—can expect to be exempt from NLRB regulation.
Having thus cleared the way to bring Pacific Lutheran University under its supervision, the NLRB has come forth with a new interpretation of a longtime approach to deciding whether faculty can affiliate with labor unions.
Let us turn, then to the matter of organizing unions. For more than 30 years, full-time faculty have generally been regarded as “management,” the result of the Supreme Court’s ruling in NLRB v. Yeshiva University (1980), which recognized and attempted to take account of the traditional faculty role in institutional shared governance. Needless to say, this is a substantial obstacle to unionization efforts, as managers who are responsible for institutional policy can’t be understood to have interests distinct from the institution they manage.
Not any more, though. To quote from this summary of the NLRB’s new rules as of late last year:
1. Where a party asserts that university faculty are managerial employees, the Board will examine the faculty’s participation in the following areas of decision-making: academic programs, enrollment management, finances, academic policy, and personnel policies and decisions, giving greater weight to the first three areas than the last two areas.
2. The Board will then determine, in the context of the university’s decision-making structure and the nature of the faculty’s employment relationship with the university, whether the faculty actually control or make effective recommendations over those areas. If they do, the board will find that they are managerial employees and, therefore, excluded from the act’s protections.
3. The Board interpreted the term “effective recommendations” to mean that those recommendations “must almost always be followed by the [college or university’s] administration,” and that they must “routinely become operative without independent review by the administration.”
The majority’s rationale for articulating these new rules is that the NLRB’s past attempt to apply the Yeshiva holding to the multifarious ways in which faculty are involved in institutional governance has not yielded clear standards. Indeed, in one case arising from an attempt to apply this holding, then-Judge John G. Roberts, Jr. said that the NLRB’s effort to render a decision based upon “the totality of the circumstances can become simply a cloak for agency whim—or worse.”
The third of these rules is, from the point of view of the dissent, the most problematical, for it implies that, in order to be considered management, faculty must effectively determine the institution’s policies, rather than just participate in a deliberative process with administrators. For example, if a faculty’s recommendations for new academic programs are not almost always simply rubber-stamped by the administration, then faculty are more like workers than management, in the view of the NLRB majority.
However, as we know, in the give-and-take of shared academic governance, it is rarely the case that one group of participants “almost always” gets its way. While there are surely institutions that are, in effect academic plantations where administrators pay little effective attention to the professional judgments of faculty, where those in the classrooms and labs simply take their marching orders from the school’s president or provost, where (in other words) it is plausible to regard the relationship between administration and faculty along the hierarchical lines of a typical American business, many colleges and universities present a much more complicated picture.
The new rules fail to do it justice. They more or less reserve exemption only to universities (one is hard put to know where to find them) where faculty behave almost as autocratically as the most heavy-handed university president in order to be regarded as management. The likely result: it will be easier for faculty at religiously affiliated institutions, and all other institutions of higher education, to be represented by labor unions.
That this was the intended result is fairly obvious. For there was a more straightforward way for the NLRB to have granted the petition in the case of Pacific Lutheran University. After all, the bargaining unit in the case consisted of Pacific Lutheran’s contingent faculty—those who teach part-time and serve on annual or limited-term contracts. Such faculty rarely have more than a tangential role in academic governance, so it would have been quite easy to determine that they are not management without writing sweeping new rules that make it difficult, from now on, to regard any faculty as management.
In sum, the effect of this decision is to exclude from First Amendment protection only the most explicitly and self-consciously religious colleges and universities. To be sure, not all future unionization efforts will be successful. But with respect to labor law and labor/management relations, the difference between higher education and other “business” sectors is—unless this decision is reversed—now vanishingly small.
 A decision of this sweeping importance would surely have been appealed through the federal courts, but the employees who sought the right to unionize have withdrawn their petition from the NLRB. I take this to mean that the particular issue is moot and hence unripe for adjudication. For the moment, this is the final word on the subject.
 Yeshiva was a narrowly decided case (5 to 4) about which I will have more to say in part two of this discussion. The issue that divided the Court has to do precisely with the way in which colleges and universities are, or are not, businesses. In other words, whether higher education is comprehensible in terms of the labor/management model characteristic of contemporary business.