A Groundless Clash of Freedoms?: The Religious Freedom of the Religiously Affiliated University and the Freedom of Faculty to Organize Under the NLRA

Abstract

This article deals with the clash between faculty, especially adjunct faculty, wishing to use the processes of the National Labor Relations Board to organize at religiously affiliated universities and the objection of some of those universities who claim that the NLRB will violate their religious freedom under the Religion Clauses of the First Amendment and/or the Religious Freedom Restoration Act. This objection is based on the Supreme Court’s opinion in NLRB v. Catholic Bishop of Chicago where the Court invoked the “avoidance” doctrine to avoid deciding the First Amendment issues by deciding that Congress did not intend the NLRB to have jurisdiction over high schools operated by a church and where religious authority was pervasive. This objection, supported by two divided Circuits, wants to extend this “avoidance” mechanism to religiously affiliated universities where there is no such church authority and no pervasive religious atmosphere. The NLRB’s Pacific Lutheran University opinion seeks to preserve its jurisdiction in such cases. The effective right of many thousands of professors to organize is at issue. This article criticizes this extension of the avoidance doctrine as an evasion of a court’s duty to say what the law is and examines, on the merits, the constitutional and RFRA claims to show that the exercise of NLRB jurisdiction will in fact neither violate the Religion Clauses nor the RFRA.

Keywords: Labor law, National Labor Relations Board, National Labor Relations Act, First Amendment, Religious Freedom Restoration Act, Avoidance doctrine, education law, colleges, universities, higher education, NLRB v Catholic Bishop of Chicago