A Michigan Court of Appeals ruling to block union organizers at Brother Rice High School in Bloomfield Township, Mich., from joining the Michigan Education Association will stand, now that the time to appeal the case to the Michigan Supreme Court has passed.

In September 2003, 30 of 42 teachers at Brother Rice expressed interest in joining a union and requested an election to determine if the workforce could be organized by the MEA. Brother Rice board members opposed the attempt, citing a 1979 U.S. Supreme Court decision, National Labor Relations Board vs. Catholic Bishop of Chicago, which found that federal labor law could not be applied to church-operated schools because it would create a "significant risk of infringement on the religious clauses of the First Amendment," and give rise to "difficult and sensitive issues."

The MEA, however, brought an action before the Michigan Employment Relations Commission, which ruled in May 2004 it did have jurisdiction because the 1979 ruling did not specify the decision held in future cases. The MERC then scheduled an election at the school for August 2004. School administrators appealed the decision, stating the union and its politics would interfere with the right of the school to hold and teach religious beliefs as guaranteed by the Michigan and United States Constitutions.

Brother Rice eventually took its case to the Michigan Court of Appeals, which granted a stay and postponed the election until its decision. A three-judge Court of Appeals panel ruled unanimously in August that MERC has no jurisdiction over lay teachers in parochial schools.

"The law itself is not really clear," said Tom Washburne, a labor attorney with the Mackinac Center for Public Policy. "There are some serious constitutional issues to consider, not the least of which is the First Amendment guarantee of the free speech exercise of religion. Can a religious employer be forced to bargain away its religious beliefs?"

Patrick Gillen of the Thomas More Law Center, which represented Brother Rice, called the decision a victory for religious liberty.

"It leaves the parents, students, faculty and staff of Brother Rice free to pursue the highest aspirations of religious schools," he said. "Service to their faith and each other, without interference from the state."

If the organizers had been successful, Washburne points out, it could have opened the door for faith-based beliefs to become bargaining points for the union, particularly in the political arena where the MEA might support ideologies the school board or individual teachers would find in opposition to their beliefs.

Brother Rice, an all-boys high school with 675 students, has a faculty of mostly lay teachers. While not all teachers are Catholic, they are expected to begin and end classes with a prayer, and daily religion class is part of the overall curriculum.

In ruling that MERC had no jurisdiction in private schools, the Court of Appeals said it could not assume Michigan’s labor law covers private schools, which could lead the statute into questions of constitutionality. Without some clear evidence that broad coverage is what the legislature intended, the court declined to go there for them. The court did, however, point out that not only does the First Amendment of the U.S. Constitution apply in this case, so does the Michigan Constitution’s own unique provisions, including Art. 8, Sec. 1, which proclaims "Religion, morality and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged."

As Washburne points out, neither the U.S. Supreme Court nor the Michigan Court of Appeals ever addressed the question of whether there actually would be a First Amendment problem.

"They simply stated that there could be," he said. "And as such, they would wait for the legislature to make it clear that they wanted the statutes to go in that direction."

Margaret Trimer-Hartley, a spokeswoman for the MEA, said several factors are taken into consideration when deciding what court cases to appeal.

"We weigh them heavily, even in deciding what to pursue in the first place," she said. "The chance of victory is a part of that process."

Jewish Day School Ceases to Recognize AFT Affiliate

Soon after the Brother Rice decision was handed down, and in the midst of contract negotiations, the board of the Hillel Day School of Metropolitan Detroit announced it would no longer recognize its teachers’ union for the purposes of collective bargaining.

Hillel teachers were represented by a local affiliate of the American Federation of Teachers and had been trying to negotiate a new contract since October 2004. After the decision, the Detroit Jewish News Online quoted David Hecker, president of AFT Michigan, as calling the board’s decision “abhorrent.”

“From my Hebrew school days,” Hecker said, “I remember the Rabbi Hillel quote: ‘If I am only for myself, then what am I?’”

Rob Goodman, president of Hillel’s board, said the action to withdraw recognition was taken because “the educational needs of our children are best served by Hillel Day School’s teachers, administrators and parents interacting directly and candidly with one another, unimpeded by organizations outside the Hillel community.”