[00:00:00] Speaker 03:
Good morning.

[00:00:27] Speaker 01:
Good morning, your honors.

[00:00:28] Speaker 01:
May it please the court?

[00:00:30] Speaker 01:
My name is Stanley Brown, and I represent Duquesne University of the Holy Spirit.

[00:00:37] Speaker 01:
Under the court's decision in Great Falls and Carroll College, the faculty at Duquesne University are patently beyond the board's jurisdiction.

[00:00:51] Speaker 01:
It is undisputed that they satisfy the three tests articulated in Great Falls and reiterated and reaffirmed in Carroll College.

[00:01:05] Speaker 01:
And as a matter of fact, the board so held.

[00:01:09] Speaker 01:
So Duquesne has a religious educational environment.

[00:01:16] Speaker 01:
It's nonprofit.

[00:01:18] Speaker 01:
And it's affiliated with both the Catholic Church and the Spirit and Order.

[00:01:25] Speaker 02:
Given those.

[00:01:26] Speaker 02:
And that was the sum of the Bright Line test.

[00:01:29] Speaker 01:
That is exactly the sum of the Bright Line test, Your Honor, which we satisfied.

[00:01:34] Speaker 01:
There's no doubt about it.

[00:01:35] Speaker 01:
The board found that in its decision.

[00:01:42] Speaker 01:
Given that we meet all of those tests, and again, it's undisputed.

[00:01:48] Speaker 01:
As the court stated in Great Falls, the NLRB must decline to exercise jurisdiction.

[00:01:57] Speaker 03:
So hypothetically, had the university issued a statement saying our tenured faculty and our full-time faculty are part of the religious educational environment that the university seeks to provide.

[00:02:16] Speaker 03:
However, by contrast,

[00:02:19] Speaker 03:
Our adjuncts are simply temporary employees, and we simply require them to teach the substance of the course, and I'll make it even easier, without any reservation in terms of religious beliefs adhered to by the university.

[00:02:44] Speaker 03:
In that circumstance, where the university has made such a public statement,

[00:02:49] Speaker 03:
Would you take the same position that Great Falls covers that case as well?

[00:02:54] Speaker 01:
Well, first, Your Honor, there's no statement like that in this case.

[00:03:00] Speaker 03:
That's why I said, hypothetically, would you still take the position that Great Falls covers that case?

[00:03:06] Speaker 01:
I would, Your Honor, because Great Falls has that bright line test.

[00:03:12] Speaker 01:
And it's always possible that what position that the university takes today about

[00:03:18] Speaker 01:
their faculty or adjunct faculty could change tomorrow.

[00:03:22] Speaker 01:
Because the goal of the university or the mission of the university is a religious one.

[00:03:28] Speaker 01:
And how they apply that mission and how they advance that mission should be up to the university.

[00:03:34] Speaker 03:
And that may change.

[00:03:35] Speaker 03:
That's the point of my hypothetical.

[00:03:37] Speaker 03:
The university has a religious purpose

[00:03:45] Speaker 03:
it reached us to present a religious educational environment.

[00:03:50] Speaker 03:
In my hypothetical, it has chosen to do that by having a unit of instructional personnel who are in no way bound by any religious environment

[00:04:12] Speaker 03:
that the university wishes to provide.

[00:04:15] Speaker 03:
The university has chosen, in other words, to present its religious education with this unit that is not bound by any religious limitation.

[00:04:32] Speaker 01:
What you're saying, Your Honor, if I could repeat it, is that what you're saying is the university has taken the position in this particular hypothetical that

[00:04:42] Speaker 01:
a particular group of faculty only has a secular mission and nothing else.

[00:04:49] Speaker 01:
And I would still say that under the great false test that there's no board jurisdiction.

[00:04:55] Speaker 01:
And that's because the way a university advances its religious mission is not static.

[00:05:01] Speaker 01:
It can change from time to time.

[00:05:04] Speaker 01:
There may be a time when the university decides that they want

[00:05:09] Speaker 01:
faculty members that at one point they thought they concluded were only secular to have more religious duties.

[00:05:20] Speaker 01:
And I think they need the freedom to be able to do that without intrusion by the board, without the board being involved in testing whether they are in fact secular or not.

[00:05:35] Speaker 03:
Mr. Brown, what I'm trying to follow through on

[00:05:38] Speaker 03:
just one moment, is we're taking the university in my hypothetical at its word.

[00:05:46] Speaker 03:
And that seems to be the board's position.

[00:05:49] Speaker 03:
And I understand your point about this case illustrates how the board's position doesn't work.

[00:05:54] Speaker 03:
But that was the way I read the board's concern, if I can put it that way, that you could have a situation where Great Falls speaks too broadly.

[00:06:08] Speaker 03:
and taking the university at its word.

[00:06:12] Speaker 03:
If, in my hypothetical situation, you had such a statement, then the board would argue it could properly exercise.

[00:06:20] Speaker 01:
Well, they might make that argument.

[00:06:23] Speaker 01:
I don't agree with it.

[00:06:24] Speaker 01:
But the fact is that on this record, there is no doubt about how the university

[00:06:33] Speaker 01:
feels about its adjunct faculty.

[00:06:36] Speaker 01:
And when it asks of its adjunct faculty, there's all kinds of record evidence of the university basically saying, we are asking and we are encouraging our faculty, our entire faculty, not just our adjunct faculty, to be involved in our religious mission.

[00:06:56] Speaker 01:
They're a part of that religious mission.

[00:06:58] Speaker 01:
They go to an orientation program where

[00:07:03] Speaker 01:
university talks about the religious mission.

[00:07:07] Speaker 01:
The university has a center for the Catholic intellectual tradition where it gives all faculty information about its religious mission, about the connection between faith and reason.

[00:07:27] Speaker 01:
The record is full of the university

[00:07:33] Speaker 01:
encouraging and asking faculty to be involved and a part of that religious mission.

[00:07:40] Speaker 01:
There's no doubt about that.

[00:07:42] Speaker 02:
And what... I don't want to speak for Judge Rogers, but I understood your question to be exploring the limits of the Great Falls Rule, if there are any.

[00:07:53] Speaker 02:
And I thought your answer maybe sliced it a little too thin, or maybe I didn't understand it.

[00:07:59] Speaker 02:
I thought the argument you had been making was that the very nature

[00:08:03] Speaker 02:
of these religious affiliated schools and trying to create a religious environment for education has little to do with the particular subject matter that's being taught.

[00:08:17] Speaker 02:
I mean, you could teach a class in calculus, right?

[00:08:22] Speaker 02:
completely secular subject.

[00:08:23] Speaker 02:
I thought your argument was that that is one component to an overall environment that the college is trying to create that has a religious mission.

[00:08:34] Speaker 02:
But maybe I misunderstood you.

[00:08:35] Speaker 01:
Well, I think that's true, Your Honor.

[00:08:37] Speaker 01:
And I also would say that the expectation is that all faculty have to contribute to that religious mission, and that the board shouldn't be involved in parsing and saying, well, these people

[00:08:52] Speaker 01:
Because faculty are so important to the communication of that religious mission to students, because isn't that what it's all about?

[00:09:00] Speaker 01:
So the board shouldn't be involved in parsing this group of faculty.

[00:09:06] Speaker 02:
What is the contribution that a teacher of calculus makes to the religious mission of DuPont?

[00:09:12] Speaker 01:
Well, I am not a theologian, but what

[00:09:22] Speaker 01:
Duquesne asks all of its professors to do is to connect the spiritual and the scientific faith and reason.

[00:09:35] Speaker 01:
That is a very important component of the Catholic intellectual tradition, and that is what they expect of all of their faculty.

[00:09:47] Speaker 02:
I understand that, Duquesne, but what if there was a religiously affiliated college

[00:09:52] Speaker 02:
that said, our math instructors just teach math.

[00:09:59] Speaker 02:
Don't begin with prayer.

[00:10:00] Speaker 02:
Don't make any connections to divine design or purpose.

[00:10:04] Speaker 02:
Just teach math.

[00:10:06] Speaker 02:
That's your job.

[00:10:08] Speaker 02:
Would they be contributing to their religious purpose?

[00:10:13] Speaker 01:
Well, I think in terms

[00:10:16] Speaker 01:
I think the answer is yes to that.

[00:10:18] Speaker 01:
And I think that's what Duquesne and I think that's what many other Catholic universities feel about what their faculty does, whatever they teach.

[00:10:32] Speaker 06:
Mr. Brown, you were mentioning the dynamic nature of the university's faith mission and how it might change

[00:10:45] Speaker 06:
over time in response to Judge Rogers' hypothetical.

[00:10:49] Speaker 06:
And I wanted to explore more why the board's approach is troubling to you in light of that because it would seem that the board's approach is actually quite advantageous to a university that thinks during one period when the market for these adjuncts is very difficult, it might want to

[00:11:13] Speaker 06:
follow the lines of Doge Roger's hypothetical and say, anybody and everybody, this is just a calculus teacher.

[00:11:22] Speaker 06:
If it wants to change, it simply needs to hold out that these faculty are part and parcel of the heart of the religious identity of the university.

[00:11:35] Speaker 06:
And as I understand it, and obviously we can ask the board, in that instance,

[00:11:41] Speaker 06:
that would resolve, that would change the outer boundary of the exemption?

[00:11:49] Speaker 01:
Well, I think one advantage, and why I think the great false test is the right test, is you don't get involved in those kinds of issues.

[00:11:58] Speaker 01:
You're not in a situation where you have the potential of the board saying, well, in this case, really, they are not involved enough.

[00:12:09] Speaker 01:
in furthering the religious mission of the university.

[00:12:13] Speaker 01:
It's the university that determines how faculty can best advance its religious mission, not the NORB.

[00:12:21] Speaker 01:
And that's one of the problems with the NORB, a major problem, because they sit in judgment under this ruling on what the religious mission is.

[00:12:31] Speaker 01:
And not only that, the judgment is a very

[00:12:36] Speaker 01:
a very overt religious one that they require.

[00:12:39] Speaker 01:
That's not decaying.

[00:12:41] Speaker 06:
So say more about that, because the thing that I'm grappling with is why holding out is an objective and non-entangling test at the whole school level.

[00:12:55] Speaker 06:
But it becomes a First Amendment entanglement problem if it's applied to the proposed bargaining unit.

[00:13:01] Speaker 06:
And I understand that you're saying with the history of the board's completely religious test and its

[00:13:12] Speaker 06:
what's the other one, that's substantial religious character, because you have a history of knowing that the board is going under the hood.

[00:13:18] Speaker 06:
But as I understand what the board was seeking to do here is to say, okay, we hear what the D.C.

[00:13:26] Speaker 06:
Circuit said in great balls, and we're gonna allow the

[00:13:32] Speaker 06:
university to just tell us in or out and say these people, it doesn't have to be because of what they teach, but to say these people are part of the heart of our religious mission as the whole faculty is, period.

[00:13:47] Speaker 01:
Well, Duquesne did tell them, but they ignored it.

[00:13:50] Speaker 06:
But not in the context of litigation.

[00:13:52] Speaker 06:
I mean in the context of holding out to the public, which is the analysis.

[00:13:55] Speaker 01:
Well, two things.

[00:13:56] Speaker 01:
First of all, the advantage of great philosophy is it's a bright line.

[00:14:00] Speaker 01:
And we don't get involved in determining, is the university religious enough?

[00:14:06] Speaker 01:
How do they advance their mission?

[00:14:09] Speaker 01:
Do they make sure that faculty are religious enough?

[00:14:13] Speaker 02:
So it is a... So I don't understand why you're resisting Judge Rogers' hypothetical, but that's never going to happen at Duquesne, right?

[00:14:19] Speaker 02:
There's just no chance in the world that they're going to say that.

[00:14:23] Speaker 02:
And if a college or university wants to do that, that may be obviously a very different case than we have here.

[00:14:31] Speaker 02:
That may be an interesting question.

[00:14:34] Speaker 02:
It's hard to imagine that happening.

[00:14:36] Speaker 02:
But who knows?

[00:14:37] Speaker 02:
Things change.

[00:14:37] Speaker 01:
Yes, I think that's right, Your Honor.

[00:14:40] Speaker 01:
But going back to Judge Pillard's question, the problem with this test, I mean,

[00:14:48] Speaker 01:
The board basically rejected the great false test.

[00:14:57] Speaker 01:
And they tried to put a spin on it that they really didn't, that they were incorporating another prong.

[00:15:05] Speaker 01:
But what they try to do is create a test that has all kinds of intrusive impacts.

[00:15:13] Speaker 01:
So first, they say,

[00:15:15] Speaker 01:
that a faculty member has to have a specific religious function.

[00:15:20] Speaker 01:
So now they're defining religion.

[00:15:22] Speaker 01:
And they're defining what that means.

[00:15:24] Speaker 01:
Then they say, not only does it have to be a specific religious function, but it has to involve basically overt kinds of religious activities.

[00:15:35] Speaker 01:
And that includes proselytizing.

[00:15:38] Speaker 01:
That includes religious counseling.

[00:15:41] Speaker 01:
And then if you look at the record and you look at the decision

[00:15:45] Speaker 01:
They make all kinds of fine line conclusions about whether Duquesne has even fit into those categories.

[00:15:56] Speaker 01:
And that's why we have a three day hearing, thousands of pages of exhibits, and the board issuing a ruling that parses everything Duquesne does according to its own standards

[00:16:12] Speaker 01:
of whether or not that's religious enough and whether the faculty is religious enough.

[00:16:18] Speaker 01:
And that not only violates Great Falls, but it violates Catholic Bishop as well.

[00:16:24] Speaker 06:
So maybe we can separate out two things.

[00:16:26] Speaker 06:
What I hear you saying is that they said they were applying an objective holding out test, but they in practice were much more intrusive.

[00:16:37] Speaker 06:
And in deciding whether Duquesne held itself out as religious or not,

[00:16:42] Speaker 06:
It was using its own idea of a very hard-nosed proselytizing version of religion.

[00:16:49] Speaker 06:
Is that right?

[00:16:49] Speaker 01:
Yes.

[00:16:50] Speaker 01:
Yes.

[00:16:50] Speaker 06:
What if it applied the holding out test the same way that Great Falls defined it and that said, we will take your word for it?

[00:17:01] Speaker 06:
In fact, what the board, I think the regional director here, found that these employees were not held out as having any role.

[00:17:13] Speaker 06:
in creating or maintaining the college's religious environment at the time.

[00:17:18] Speaker 06:
And I understand that that's not, as you put it, not what Duquesne feels or believes about its adjuncts.

[00:17:27] Speaker 06:
But if the test were applied the same way that it's applied at the institutional level, I'm just still trying to understand why what is

[00:17:36] Speaker 06:
bright line and non-entangling at the institution level, if you apply it to the bargaining, the proposed bargaining unit, it no longer works that way.

[00:17:45] Speaker 01:
Because at the institution level, it's just this relatively simple question, and a bright line question.

[00:17:52] Speaker 01:
Is it religious?

[00:17:53] Speaker 01:
Does it hold itself out to being religious?

[00:17:56] Speaker 01:
And the purpose of the test is to make sure that a university just trying to avoid jurisdiction doesn't pass that test.

[00:18:05] Speaker 01:
When you look at the board's holding out test, it's entirely different because it asks

[00:18:12] Speaker 01:
All kinds of questions about, first of all, it sets religious tests, or it defines religion.

[00:18:20] Speaker 01:
It has to be a specific religious function.

[00:18:23] Speaker 01:
That, I think, violates constitutional avoidance.

[00:18:26] Speaker 06:
Tell me more concretely.

[00:18:27] Speaker 06:
It defines, you said, defines religion.

[00:18:30] Speaker 06:
Are you referring to in terms of proselytizing or in terms of having to have liturgical content in the?

[00:18:36] Speaker 01:
I think it violates constitutional avoidance in two ways.

[00:18:42] Speaker 01:
First, it defines a test where the faculty has to have a, quote, specific religious function in maintaining the religious mission of the university.

[00:18:56] Speaker 06:
It has to be held out as having that.

[00:18:59] Speaker 06:
It has to be held.

[00:19:00] Speaker 06:
And that's the thing that I think.

[00:19:01] Speaker 01:
According to its judgment.

[00:19:05] Speaker 06:
according to its view of the record, yes, it has to be held out as that.

[00:19:08] Speaker 06:
And so my question is, I understand that you think they applied it in a way that didn't take your word for it, but my, and I think Judge Rogers' hypothetical perhaps, also was saying, if they did, if Duquesne were clear upfront, wouldn't it be relatively easy for it to say, and we mean our adjuncts too, let us tell you why, period.

[00:19:34] Speaker 01:
First, it says that there has to be a specific religious function.

[00:19:38] Speaker 06:
So it is not as having.

[00:19:40] Speaker 01:
Yes, that's true, Your Honor.

[00:19:41] Speaker 06:
As contributing to the religious environment.

[00:19:46] Speaker 01:
But that's sort of a, that really comes down to a test of religiosity.

[00:19:52] Speaker 01:
But then it goes even further in violating constitutional avoidance because then it says,

[00:19:57] Speaker 01:
Not only you have to hold them out as having a specific function, but here's the kinds of things we look at.

[00:20:05] Speaker 01:
Do you propagate?

[00:20:07] Speaker 01:
Do you provide religious counseling?

[00:20:10] Speaker 01:
It's a very hard-nosed approach to religion.

[00:20:15] Speaker 01:
It's very different than the approach to religion that Duquesne utilizes, and it's very different.

[00:20:25] Speaker 01:
than the expectations of what its faculty should be doing to advance its religious mission.

[00:20:32] Speaker 01:
And the record is clear that it's asking its faculty, including its adjunct faculty, in many different ways.

[00:20:40] Speaker 01:
to do that.

[00:20:41] Speaker 01:
To advance the religious.

[00:20:42] Speaker 06:
Tell me what you would say.

[00:20:45] Speaker 06:
The record is clear that it is holding out its religious faculty as part of the heart of the religious entity that is the university.

[00:20:53] Speaker 06:
To you, the top three things that make that clear are

[00:20:56] Speaker 01:
Oh my goodness.

[00:20:58] Speaker 01:
Look at what it says in the handbook.

[00:21:01] Speaker 01:
I think the orientation program that it has, and of course the board's answer to that is, well, they're not required to go.

[00:21:08] Speaker 01:
It's not mandatory.

[00:21:09] Speaker 01:
So somehow it doesn't count.

[00:21:11] Speaker 01:
Again, they're making religious judgments.

[00:21:14] Speaker 01:
But the orientation program

[00:21:18] Speaker 01:
where adjuncts are given materials that clearly ask them to work toward understanding our spiriting values and incorporating them in your work.

[00:21:28] Speaker 03:
And we find that where on the record?

[00:21:30] Speaker 01:
That is at Joint Appendix 696 and 707.

[00:21:33] Speaker 01:
And what's the third?

[00:21:37] Speaker 03:
Judge Pillard asked, what were the top three things?

[00:21:39] Speaker 01:
Well, all right.

[00:21:41] Speaker 01:
So the orientation program, and another thing that they say in the orientation program is,

[00:21:47] Speaker 01:
Nukane scholars are hired, rewarded, and retained to support the mutual enrichment of faith and reason.

[00:21:55] Speaker 01:
I would also note the core, the religious core program.

[00:22:01] Speaker 01:
And that program is required of all first-year students.

[00:22:07] Speaker 01:
It involves courses like theology, ethics,

[00:22:14] Speaker 01:
and philosophy.

[00:22:17] Speaker 01:
And by the way, about 50% of those courses are taught by adjunct professors.

[00:22:30] Speaker 01:
And if you look at what it says about the core program,

[00:22:37] Speaker 01:
It talks about the spiritual aspect of the program for its students.

[00:22:45] Speaker 01:
And again, adjuncts are part of that.

[00:22:48] Speaker 01:
And they're expected to help communicate the spiritual issues, the issues of faith and reason.

[00:22:56] Speaker 03:
So if I wanted to be an adjunct at the university,

[00:23:03] Speaker 03:
if I were to read the handbook, all right, I would see a statement in there about my faith and reason obligations?

[00:23:15] Speaker 01:
Yes, you would.

[00:23:17] Speaker 01:
And you would also see that if you went to the orientation.

[00:23:22] Speaker 03:
Right, but suppose I don't go.

[00:23:24] Speaker 03:
It's an invitation.

[00:23:25] Speaker 03:
It's not mandatory.

[00:23:26] Speaker 01:
Yes, it's an invitation.

[00:23:28] Speaker 01:
Faculty are encouraged to go to that.

[00:23:31] Speaker 03:
No, and you could fire me or you could decide not to rehire me because I was unaware of what the orientation program said.

[00:23:38] Speaker 01:
Or because you ignored it.

[00:23:40] Speaker 01:
Right.

[00:23:41] Speaker 03:
That's a different issue.

[00:23:43] Speaker 03:
We were looking for the top three things that would alert me that in teaching calculus, I have this additional responsibility.

[00:23:54] Speaker 01:
Yeah.

[00:23:55] Speaker 01:
The other thing I would mention, and I think this is also very important, is

[00:24:02] Speaker 01:
that the university has a whole series of programs.

[00:24:06] Speaker 01:
They have a center for Catholic intellectual tradition that basically involves programs and forums to help its faculty understand Catholic theology, Catholic intellectual tradition, and the connections between faith and reason, and how that can be applied in the classroom.

[00:24:31] Speaker 03:
Stick with us for a moment.

[00:24:32] Speaker 03:
There are a lot of universities that don't identify themselves as having a religious environment, that also have core religion courses, that have centers on religion.

[00:24:44] Speaker 03:
And we're just trying to zero in on the holding out by Duquesne.

[00:24:52] Speaker 03:
In other words, if what was in your brief had basically been something the university had issued generally,

[00:25:03] Speaker 03:
That would be a holding out.

[00:25:05] Speaker 03:
And one way to read the board is you take your word, end of discussion.

[00:25:12] Speaker 03:
But we don't have that here.

[00:25:14] Speaker 03:
And so now the board is trying to look for signs of that.

[00:25:21] Speaker 03:
And that's where you say there's this trolling and impossible entanglement.

[00:25:26] Speaker 01:
Yes, Your Honor.

[00:25:27] Speaker 01:
They don't take our word.

[00:25:29] Speaker 03:
So your word isn't there in the sense that I thought Judge Pillard's questions were zeroing in on.

[00:25:36] Speaker 03:
Where is the holding out to the public?

[00:25:44] Speaker 01:
Again, some examples of that.

[00:25:46] Speaker 01:
And I talked about, and not only to the public, but the faculty itself, I talked about the programs and the Center for Catholic Intellectual Tradition.

[00:25:58] Speaker 01:
I talked about the fact that they actually have mission grants available specifically for adjuncts to help them and to encourage them to

[00:26:13] Speaker 01:
put together proposals to make those kinds of religious connections as part of their teaching.

[00:26:26] Speaker 01:
The faculty handbook says in a section called The Role of the Faculty, without the faculty, the university would be unable to prepare its students intellectually, professionally, aesthetically, spiritually, or ethically for the responsibilities of life.

[00:26:42] Speaker 06:
I don't want to cut you off if you have more.

[00:26:46] Speaker 01:
I was going to go into a couple of other things, but I'm going to try to answer your question.

[00:26:53] Speaker 06:
So identify the further ones you want, and then I do have a follow-up question.

[00:26:56] Speaker 01:
OK.

[00:27:01] Speaker 06:
You had said programs, the center, mission grants.

[00:27:04] Speaker 01:
Yeah, I talked about mission grants.

[00:27:06] Speaker 01:
I talked about orientation.

[00:27:12] Speaker 01:
The internet site for the adjunct faculty called Getting Started states under the first things that Duquesne's religious mission provides a context and guide for all we do at Duquesne.

[00:27:28] Speaker 01:
The core curriculum page on the website states that

[00:27:32] Speaker 01:
Duquesne's core curriculum provides a common educational experience for undergraduate students, which uniquely expresses the spirit and Catholic identity of Duquesne University.

[00:27:44] Speaker 01:
As I said, about half the courses in the core are taught by adjuncts.

[00:27:50] Speaker 06:
And those are not the, I mean, I understand part of the adjunct faculty is exempted because they are involved in religious education, but you're talking about

[00:28:02] Speaker 06:
those that are in the proposed bargaining unit approved by the board?

[00:28:05] Speaker 01:
Yes, yes.

[00:28:07] Speaker 01:
In other words, the core tort by faculty, the only group that was specifically exempted are people who are in the theology department,

[00:28:20] Speaker 06:
So you could be a philosopher teaching in the first year, you could be an ethics professor, you could be a sociology professor teaching in this core curriculum you're saying and be an adjunct.

[00:28:29] Speaker 01:
Absolutely.

[00:28:30] Speaker 06:
And according to the board's logic, you wouldn't be covered.

[00:28:32] Speaker 01:
Yeah, and according to the board's logic, if you teach in the theology department,

[00:28:36] Speaker 01:
Well, that's OK.

[00:28:38] Speaker 01:
Then you're exempt.

[00:28:38] Speaker 01:
But if you teach philosophy, if you teach ethics, and those, of course, also involve the kinds of issues that we're talking about, the connection between science and religion.

[00:28:50] Speaker 06:
So Mr. Brown, here's one of the things that's difficult.

[00:28:53] Speaker 06:
On page two of your brief, you mention that Duquesne does bargain with its non-academic staff.

[00:28:59] Speaker 06:
And so we have an unanswered question.

[00:29:05] Speaker 06:
On the one hand, Catholic Bishop talks about the institution, Great Falls talks about the faculty, and he also talks about the institution.

[00:29:13] Speaker 06:
And Carroll College, we talk about the institution.

[00:29:16] Speaker 06:
But it's clearly not the entire institution that's covered.

[00:29:20] Speaker 06:
So the question is, what is it that is the heart of the religious mission that is, when I say covered, I mean actually exempt?

[00:29:31] Speaker 06:
What is it about the heart of the religious mission?

[00:29:33] Speaker 06:
Which body of staff are exempt?

[00:29:39] Speaker 06:
And we need to draw a line.

[00:29:41] Speaker 06:
And we're just probing, why would it be that

[00:29:45] Speaker 06:
You know, what about graduate teaching assistants, staff or faculty and how do they know and how do we know?

[00:29:57] Speaker 01:
Well, that's sort of a multi-part question, Your Honor.

[00:30:01] Speaker 01:
I apologize.

[00:30:02] Speaker 01:
No, that's OK.

[00:30:04] Speaker 01:
It's your job to do that.

[00:30:07] Speaker 01:
But what I was going to say is the first is there is a test already.

[00:30:11] Speaker 01:
And it's a test that's binding on this circuit.

[00:30:15] Speaker 06:
But I don't take it to cover the whole institution, even though we may have put it that way.

[00:30:26] Speaker 06:
And I don't think you disagree, do you?

[00:30:27] Speaker 01:
Well, first of all, this case only involves faculty.

[00:30:34] Speaker 06:
But do you disagree?

[00:30:35] Speaker 06:
You don't claim that the religious carve-out covers the cafeteria workers and the janitors and the administrative staff.

[00:30:45] Speaker 01:
I would be speculating on that, Your Honor.

[00:30:48] Speaker 01:
I think that this case is, in a sense, an easy case, because it involves faculty.

[00:30:54] Speaker 01:
And faculty are the core of the communication of the religious mission of this university.

[00:31:01] Speaker 01:
So whether Great Falls extends to cafeteria workers.

[00:31:11] Speaker 06:
But Duquesne is bargaining with its administrative staff.

[00:31:14] Speaker 06:
Yes.

[00:31:15] Speaker 06:
Is it a matter of grace?

[00:31:17] Speaker 01:
Is it a matter of grace, did you say?

[00:31:20] Speaker 01:
Yes.

[00:31:22] Speaker 01:
Well, it chose to do that.

[00:31:24] Speaker 01:
And certainly, Duquesne, in being before you today and going through this process, which has taken us six years,

[00:31:43] Speaker 01:
does that because faculty are so critical to the communication of its religious mission.

[00:31:49] Speaker 01:
Without faculty, it couldn't be communicated to students.

[00:31:53] Speaker 01:
And that's why they ask faculty to do it.

[00:31:56] Speaker 01:
That's why they ask faculty to be involved in the advancement of that mission, all faculty.

[00:32:02] Speaker 01:
And the court simply shouldn't, I'm sorry, the board shouldn't be simply in the position of judging

[00:32:10] Speaker 01:
whether they do it in the right way, whether they are religious enough.

[00:32:14] Speaker 01:
And so we don't have to get beyond faculty and beyond the facts of this case.

[00:32:20] Speaker 01:
The facts of this case, we would submit, are pretty clear.

[00:32:23] Speaker 01:
I've probably taken a lot more time, then.

[00:32:25] Speaker 03:
Why don't we hear for counsel for Anika's curiae, and we'll give you some time and rebuttal.

[00:32:32] Speaker 01:
Thanks so much, Your Honor.

[00:32:51] Speaker 05:
Good morning, Your Honor, and may it please the Court.

[00:32:53] Speaker 05:
Erin Murphy, on behalf of Amicus, the Association of Catholic Colleges and Universities.

[00:32:58] Speaker 05:
For 40 years, the Board's been trying to assert jurisdiction over teachers at religious schools, and for 40 years, the Supreme Court, and then this Court, has repeatedly told the Board no.

[00:33:07] Speaker 05:
There's no reason to reach a different conclusion here.

[00:33:11] Speaker 05:
The first problem- Ms.

[00:33:12] Speaker 02:
Murphy, what do you do with Judge Rogers' hypothetical?

[00:33:16] Speaker 02:
If we have a situation where a university has not expressly held out a subset of the faculty as serving the religious mission of the university and the school, what happens then?

[00:33:28] Speaker 05:
I think the right answer is the school is still exact.

[00:33:31] Speaker 02:
I think the right way to understand Great Falls and Catholic Bishop- We used the language of the school in Great Falls and Carroll, but this issue wasn't

[00:33:38] Speaker 05:
Sure, but the basic question, I mean, these are constitutional avoidance cases that are about keeping the, you know, about whether the act should be read as giving the board jurisdiction in a context that's likely to raise First Amendment concerns.

[00:33:52] Speaker 02:
But here we have a school that bargains with cafeteria workers, so they have decided that there's one subset of the university community that

[00:34:03] Speaker 02:
could be subject to the board's jurisdiction.

[00:34:05] Speaker 02:
The question we're asking now is, unless you can show us where they have, if they haven't held out their adjunct faculty as being part of the religious mission, why aren't the adjunct faculty, for that purpose, like the cafeteria workers and not like the members of the Department of Theology?

[00:34:25] Speaker 05:
Sure, and I think that the basic reasoning that I take Great Falls and Catholic Bishop to be establishing is that a school holds out its teachers and its faculty members as religious by virtue of holding itself out as religious.

[00:34:38] Speaker 05:
That's the bright line Great Falls draws.

[00:34:41] Speaker 05:
We don't want to get into, let's look at which particular teachers further the mission and which ones don't.

[00:34:46] Speaker 02:
But Judge Rogers' hypothetical was a school did carve those out.

[00:34:50] Speaker 02:
I understand.

[00:34:50] Speaker 02:
Sure.

[00:34:51] Speaker 02:
has decayed by not specifically identifying the adjunct?

[00:34:59] Speaker 02:
Is that more like the carve out of Drudger's hypothetical or?

[00:35:02] Speaker 05:
And with all due respect, that's why I don't think the carve-out really kind of solves the problem.

[00:35:08] Speaker 05:
I mean, I think that in practice, what you're really going to end up doing is getting into these First Amendment-sensitive debates about, well, did the board like, did the university really say it or not?

[00:35:19] Speaker 02:
So what's your answer to the question, where has Duquesne held out its adjunct as being part of its religious mission?

[00:35:25] Speaker 05:
It's held out its adjunct as being part of its mission by holding itself out as being a religious institution.

[00:35:31] Speaker 05:
And I took you to be, I'm sorry to interrupt.

[00:35:33] Speaker 05:
No, I mean, I think the core of our view of the position that Great Falls is establishing is that, you know, that is the holding out.

[00:35:43] Speaker 05:
I mean, if you go back to Great Falls, it specifically talked about one of the reasons the holding out test for the institution was the right test was because that would tell faculty, you're coming to work at a school that has a religious mission.

[00:35:56] Speaker 06:
And so we're not talking about not teaching staff at a religious college or university.

[00:36:01] Speaker 06:
I'm not aware of any case that has applied

[00:36:04] Speaker 06:
the Catholic bishop analysis, even though the cases do speak in terms of the institution.

[00:36:10] Speaker 06:
You just made the equation, and I take it intentionally, that when a school holds itself out as a religious school, it's holding its faculty out as religious by holding itself out.

[00:36:24] Speaker 05:
That's right.

[00:36:24] Speaker 05:
That's right.

[00:36:25] Speaker 05:
I do want to be clear that it is not

[00:36:28] Speaker 05:
settled law, the question of what happens once you get beyond teachers.

[00:36:32] Speaker 06:
But we're probing the logic.

[00:36:35] Speaker 05:
I know the question you asked earlier about, oh, it's clear that kind of the staff is off to another side.

[00:36:42] Speaker 05:
The board itself is in disagreement about this right now.

[00:36:44] Speaker 05:
So that is a question that I just want to be clear.

[00:36:46] Speaker 05:
is, you know, it's not an issue in this case, but I don't think, you know, that it's as simple as the board wants to suggest that, oh, it's already well established, you know, that there's a line on the other side.

[00:36:56] Speaker 05:
But that said, I mean, I do think it's well established that wherever the line is, if there is a line, teachers and, you know, all faculty members are on the side of being within an institutional

[00:37:08] Speaker 05:
exemption that exists once you establish what the passage set forth in Great Falls.

[00:37:14] Speaker 06:
When you say the Board itself is in disagreement on this, you're referring to this being?

[00:37:20] Speaker 05:
The question of whether the Catholic bishop exemption applies outside the context of teachers to other types of staff members.

[00:37:27] Speaker 05:
So it's an issue that's come up in some other context.

[00:37:31] Speaker 05:
So I don't want to suggest that that's sort of a settled issue.

[00:37:34] Speaker 05:
It's not a question this court has ever had to address.

[00:37:37] Speaker 03:
Because there's been a dissent.

[00:37:38] Speaker 05:
There's been a dissent.

[00:37:39] Speaker 05:
Right.

[00:37:40] Speaker 03:
But there's also been a majority.

[00:37:42] Speaker 05:
Yeah, there certainly has.

[00:37:43] Speaker 05:
But most courts haven't confronted the question.

[00:37:45] Speaker 05:
And frankly, this court really doesn't have to confront it here.

[00:37:48] Speaker 02:
And hasn't the general counsel of the board taken the position that Pacific Lutheran is suspect?

[00:37:54] Speaker 05:
Yes, and rightfully so, in my view.

[00:37:58] Speaker 05:
For purposes particularly of being in this court, I do think it's worth recalling that Pacific Lutheran doesn't purport to be consistent with Great Falls.

[00:38:07] Speaker 05:
On its face, it says it's rejecting the Great Falls test.

[00:38:10] Speaker 05:
It believes it understands that under this court's precedent, it would not have jurisdiction in a case like this one.

[00:38:17] Speaker 05:
And it rejects this court's precedent and says it believes that this court overreached

[00:38:21] Speaker 05:
and that this court imposed too stringent of a test by giving the institution an exemption instead of looking at the faculty members.

[00:38:30] Speaker 05:
So just as a matter of- I thought too stringent they were talking about the affiliation prong, and they were saying it doesn't necessarily need to be affiliated with a formal- I mean, they did say that, but they also said that this court overreached by creating an institution-based exemption instead of going into what the particular faculty members do.

[00:38:50] Speaker 06:
Now, you also are saying, going into what they do, help me out with why even applied in a way that would be the most pleasing, I realize the test is not pleasing to you, period, but is there, I'm trying to understand why the holding out test is helpfully objective when it's looking at the institution, it is entangling, impermissibly entangling,

[00:39:18] Speaker 06:
if it's looking at a proper bargaining unit.

[00:39:21] Speaker 05:
Sure, I think it goes back to what I was, kind of where I started out, which is if all the board asked really was, you know, if the question were, you know, are your teachers held out as being part of the religious mission, that question should be answered

[00:39:35] Speaker 05:
by virtue of, oh, you're held out as a religious university.

[00:39:39] Speaker 05:
The problem isn't the objective nature of the inquiry.

[00:39:41] Speaker 05:
It's that they want to go beyond that.

[00:39:43] Speaker 05:
I mean, the specific religious function test is just exactly the kind of inquiry that's fraught with First Amendment concerns.

[00:39:51] Speaker 05:
And I think it's important

[00:39:52] Speaker 05:
to go and look at how they articulated this test in Pacific Lutheran.

[00:39:57] Speaker 05:
I mean, it's not just that they took kind of a very narrow view of, you know, you're only held out as advancing religion if you're held out as incorporating religion into your curriculum or advising students.

[00:40:09] Speaker 05:
It's also the things that they said don't count.

[00:40:12] Speaker 05:
I mean, they specifically said that generalized statements that faculty members are expected to support the goals and the missions of the university.

[00:40:20] Speaker 05:
So saying that your faculty member is expected to support and advance the school's religious mission, they said that doesn't count.

[00:40:27] Speaker 05:
I mean, I don't understand how you can have a test that says, if you hold your teachers out as advancing our religious mission, that still doesn't qualify as holding your teachers out as advancing our religious mission.

[00:40:39] Speaker 05:
And the fact that the board thinks they can draw that fine of a distinction, to me, just underscores the wisdom of Catholic bishop and Great Falls in saying, you know, we can't have the board making these kind of inquiries unless Congress tells us that's really what they want the board doing.

[00:40:55] Speaker 05:
Because the board's inherently going to start drawing lines based on its own preconceived notions about what is and is not sufficiently religious or completely religious or pervasively religious.

[00:41:07] Speaker 06:
The board is merely trying to find evidence that it has been clearly communicated to the contingent part-time decentralized hired faculty that they know that they are part of the heart.

[00:41:27] Speaker 05:
I mean, I don't mean to be a broken record, but I think that that comes from the fact that the school holds itself out as being religious.

[00:41:39] Speaker 06:
the cafeteria workers and the janitors actually should be covered.

[00:41:43] Speaker 06:
They should be exempt on the same logic.

[00:41:46] Speaker 05:
I don't think my client has taken a position on this.

[00:41:51] Speaker 05:
But in terms of thinking about the logic of what this court and the Supreme Court were saying, I think it's very difficult to then say, oh, well, you can't draw lines between particular faculty members, but you can draw lines between

[00:42:03] Speaker 05:
the faculty member and the person who has no job.

[00:42:06] Speaker 05:
And I would tell you, I would point to, I think that that's consistent with the fact that Congress itself, in the exemption to Title VII, said, you know what, we're a little concerned with the idea of courts drawing those kind of lines, so we're not going to

[00:42:21] Speaker 05:
require courts to ask whether the employee furthers a specific religious function to have the exemption.

[00:42:28] Speaker 06:
But you keep saying we're going to make a de novo judgment about whether they further a specific function.

[00:42:32] Speaker 06:
But the test that the board is proffered is, is the client holding those people out as furthering a religion?

[00:42:41] Speaker 06:
They can define that function any way they want.

[00:42:45] Speaker 06:
Are they just saying, these people are part of what we do here as religious?

[00:42:49] Speaker 05:
These people may be not.

[00:42:50] Speaker 05:
Sure, and I think that the point of this whole line of cases is to say that at least as to teachers and faculty members, that essentially there's a presumption that if you hold your university out as religious, you hold all the people who teach there and all the people who are faculty members there as being part of your religious mission.

[00:43:12] Speaker 05:
And I think that that's the basic thrust of these opinions.

[00:43:16] Speaker 05:
And I think it's important to remember that all of this is being done in the context of constitutional avoidance.

[00:43:22] Speaker 05:
So you could certainly debate whether that's precisely the right line if this were actually resolving the constitutional question.

[00:43:29] Speaker 05:
But in a context where what you're trying to do is say,

[00:43:32] Speaker 05:
you know, we want to be careful about reading a statute to require an agency that has no particular competence in determining what is or is not religious to make those kind of distinctions, then I think it makes sense to kind of err on the side of having a bright line.

[00:43:48] Speaker 06:
And once you have, I mean this is an exemption that I'm also not aware of any court

[00:43:54] Speaker 06:
or any board decision that applies this exemption to religious hospitals, religious social service organizations.

[00:44:02] Speaker 05:
Well, religious hospitals are differently dealt with.

[00:44:04] Speaker 05:
I think that's because the Act itself indicates that religious hospitals are covered.

[00:44:11] Speaker 06:
But the Act itself is just a statute, and we're talking about the Constitution, constitutional avoidance.

[00:44:17] Speaker 06:
Again, I'm probing the logic, and asking for your help, and understanding the logic of the Catholic bishop's decision.

[00:44:24] Speaker 05:
Sure.

[00:44:24] Speaker 05:
And in the wake of Catholic bishop, there were a number of cases raising the question of whether it was constitutional to apply the NLRA in the context of hospitals.

[00:44:34] Speaker 05:
And I think most courts resolve that by saying it was in part because there's specific provisions in the NLRA that are designed to try to minimize the constitutional issues.

[00:44:43] Speaker 05:
And of course, you would always have a backstop of RFRA now.

[00:44:46] Speaker 05:
So I think that all of that is consistent, again, with the notion that the Catholic bishop rule is a constitutional avoidance rule, not a as-applied constitutional, unconstitutionality-of-the-act rule, in which case, if that's what it were, I would understand that you might have to look at things more on a case-by-case basis.

[00:45:07] Speaker 05:
But the point is to say we don't want a case-by-case basis.

[00:45:12] Speaker 03:
All right.

[00:45:12] Speaker 03:
Let us hear from counsel to the board.

[00:45:26] Speaker 04:
Good morning.

[00:45:27] Speaker 04:
I'm Heather Beard for the NLRB, seeking to enforce the board's order.

[00:45:32] Speaker 04:
So the first point that I'd like to make is something that Judge Pillard was discussing with opposing counsel.

[00:45:37] Speaker 04:
And I'd like to just reiterate what Judge Pillard said, which is the board's test here does not define religion.

[00:45:44] Speaker 04:
What the board is doing in the Pacific Lutheran test and has applied in Duquesne

[00:45:49] Speaker 04:
is respecting this court's decision in Great Falls with regard to not trolling through the university's beliefs and indeed holding out the university, rather having a test that requires the university to hold out its faculty

[00:46:05] Speaker 04:
as creating or maintaining a role in the religious environment that, and this is very important, that the university itself has held out as its religious environment.

[00:46:15] Speaker 04:
So both of these prongs, both holding out.

[00:46:18] Speaker 02:
Why haven't they done that in the faculty handbook where in the very first paragraph they say we are a religious institution, we support the teachings of the Roman Catholic Church?

[00:46:27] Speaker 02:
How could any adjunct faculty getting a job at Duquesne not know that?

[00:46:32] Speaker 02:
not understand that I'm joining a school that has a religious purpose.

[00:46:39] Speaker 04:
I think, Your Honor, they do.

[00:46:40] Speaker 04:
And that's the first part of the holding our test.

[00:46:42] Speaker 04:
I'm joining a school that has a religious purpose.

[00:46:45] Speaker 04:
But they don't know that they themselves are responsible for and are going to be creeped.

[00:46:50] Speaker 02:
Why wouldn't they know that?

[00:46:51] Speaker 02:
They're faculty.

[00:46:52] Speaker 02:
What's a university do?

[00:46:53] Speaker 02:
It doesn't just play sports.

[00:46:55] Speaker 02:
It teaches.

[00:46:57] Speaker 04:
Correct.

[00:46:58] Speaker 04:
And I think, as your example earlier was, one of the things that it teaches, for example, is calculus.

[00:47:02] Speaker 04:
And so an adjunct coming to teach who does not have any of the benefits that a full-time tenured professor has coming to the university that doesn't require anywhere explicitly that the adjuncts in their teaching are going to create or maintain the religious environment.

[00:47:17] Speaker 02:
And that answer displays to me the crabbed view of the board about what it means to be a religious college and university, right?

[00:47:27] Speaker 02:
the idea that for a religious college and university, teaching calculus is every bit as important to what they are trying to accomplish as teaching about Thomas Aquinas.

[00:47:37] Speaker 02:
And it seems to me

[00:47:39] Speaker 02:
that Ms.

[00:47:40] Speaker 02:
Murphy's indictment, I'd like you to respond to.

[00:47:42] Speaker 02:
She said for 40 years the board has been trying to intrude into this area with a deaf ear to what's going on at a religious college or university.

[00:47:53] Speaker 02:
I'll give you a chance to respond to her accusation.

[00:47:56] Speaker 04:
Sure.

[00:47:57] Speaker 02:
Accusation is in the right, her description.

[00:47:58] Speaker 04:
Description, sure, no problem.

[00:48:00] Speaker 04:
I would, in the board's view,

[00:48:03] Speaker 04:
In the 41st year, when it has its holding out test of what the faculty specifically do, going back to Catholic Bishop and the very important role we agree that a faculty has in an institution, when you look at the holding out test, it is not a test that is the substantial religious character test.

[00:48:19] Speaker 04:
It is not a test that defines religion.

[00:48:21] Speaker 04:
It is a test where the board looks at facts as to how the university itself

[00:48:26] Speaker 04:
is holding out not just itself as the university, but the specific role that the folks who come in and become adjunct teachers have.

[00:48:33] Speaker 04:
in creating or maintaining that university.

[00:48:35] Speaker 04:
And that's why the board does not believe that it runs afoul of any constitutional avoidance problem, nor was this the issue that was presented in Great Falls.

[00:48:44] Speaker 04:
And so to the board, there needs to be some sort of a because phrase, which Ms.

[00:48:50] Speaker 04:
Murphy would probably disagree with, but I don't think that this is required by constitutional avoidance, that the board does not need to

[00:48:56] Speaker 04:
require a university to demonstrate why it is, how it is, that the religious environment that they themselves set forth, which the board agrees they've set forth here for their institution, is one that their adjunct faculty is creating or maintaining in a specific way.

[00:49:13] Speaker 04:
And that's what the board's view is here.

[00:49:14] Speaker 04:
The board here did not fly in the face of 40 years of jurisprudence, but what it tried to do

[00:49:21] Speaker 04:
mindful of the teaching of this court as well as in the Supreme Court that there are section seven rights of employees that should not easily be erased.

[00:49:33] Speaker 04:
And in this instance, constitutional avoidance does not require that.

[00:49:39] Speaker 02:
How are we to view Pacific Lutheran as anything other than a rebuke of the jurisprudence of this court?

[00:49:46] Speaker 02:
That's certainly what the general counsel's position was.

[00:49:49] Speaker 02:
So how are we to view it differently?

[00:49:52] Speaker 02:
Well, in board's view... In which case, this becomes a pretty easy case to resolve, doesn't it?

[00:49:58] Speaker 04:
Sure.

[00:49:59] Speaker 04:
Well, in the board's view, the test that the board had presented in Pacific Lutheran University, which the board's view is faithful in the sense that it refines the holding out test of the institution and applies it also to the specific... The general counsel disagrees with that, right?

[00:50:17] Speaker 04:
The general counsel has come out and said that is correct.

[00:50:22] Speaker 04:
However, representing the board and representing the board, the board's view in

[00:50:27] Speaker 04:
Duquesne, which is applying Pacific Lutheran, is that this test is faithful to this court's jurisprudence as well as to the Supreme Court's jurisprudence.

[00:50:37] Speaker 04:
And it's faithful to that in that it takes the holding out prong and it applies it to groups of faculty members, which is very core to what... Even though when we wrote in Great Falls and in Carroll College, we said, it's the institution, right?

[00:50:54] Speaker 02:
The institution that he's exempt from jurisdiction.

[00:50:59] Speaker 04:
Although, as I believe we were discussing earlier with Judge Pillard, the institution itself, the school admits, for example, that it bargains with, for example, its custodians.

[00:51:08] Speaker 04:
And I know that this is so great falls in its tests that there is room for a university to not be a bona fide religious institution if it doesn't hold itself out as such.

[00:51:18] Speaker 03:
But help me here with the board's statement in its specific Lutheran opinion where it says,

[00:51:25] Speaker 03:
of a great false test could deny the protections of the NLRA to faculty members who teach in, quote, completely non-religious educational environments if the college or university is able to point to any statement suggesting the school but not the faculty's connection to religion.

[00:51:49] Speaker 03:
So my question is,

[00:51:52] Speaker 03:
What I understand Duquesne's brief to be arguing and the arguments it made before the board is that sentence betrays the board's misunderstanding of what Duquesne is.

[00:52:08] Speaker 03:
In other words, we don't have any faculty that's teaching in a completely non-religious educational environment.

[00:52:18] Speaker 04:
True.

[00:52:19] Speaker 04:
I would argue, I don't know if that statement from the board misunderstands, but I would say that what the board is saying is it wants to be very careful in not denying protection to faculty that is in, for example, a non-religious environment.

[00:52:33] Speaker 04:
It also here acknowledges there is a religious environment, but what has not been demonstrated is that the faculty have a role, a specific role, in maintaining or creating that religious environment.

[00:52:47] Speaker 03:
Go ahead.

[00:52:48] Speaker 06:
Would it satisfy the Pacific Lutheran test as the board understands it if the university said our faculty, whether full-time, part-time, permanent, or adjunct, if there was something explicit that wove in the

[00:53:14] Speaker 06:
the full scope, including this bargaining unit as well as what we traditionally think of as the faculty, the tenure track faculty, if it were clear as holding those faculty out as the heart of its academic religious mission, the board would have no problem with that.

[00:53:32] Speaker 06:
They would be exempt and they wouldn't be looking at what do they teach, how are they hired, or would they?

[00:53:39] Speaker 04:
Well, if the statement was, I think you said that all of our faculty

[00:53:44] Speaker 04:
weave in our mission, which is Catholic.

[00:53:48] Speaker 04:
tradition, is that your question?

[00:53:49] Speaker 04:
Okay, then yeah, if something that explicit would presumably, I mean I'd have to see the context and all that, but I would say presumably yes.

[00:53:58] Speaker 04:
When it is holding its faculty out as having a specific role in what it says is its mission, that is where the board would take a look and see as a factual matter if that was true and the board would probably have.

[00:54:10] Speaker 04:
Wait, wait, as a factual matter of what were true?

[00:54:12] Speaker 04:
If they were holding, if the factual matter, if the statements that you

[00:54:15] Speaker 04:
presented in terms of the mission and what it was presenting the role of the faculty in.

[00:54:20] Speaker 04:
If those held up, then yes.

[00:54:22] Speaker 04:
If those statements were made, you wouldn't verify whether or how they were followed.

[00:54:27] Speaker 04:
No.

[00:54:28] Speaker 04:
The primary test is the holding out of the university itself, saying that the faculty did those things.

[00:54:35] Speaker 06:
And so it would be even clearer if there were

[00:54:38] Speaker 06:
a sentence in the adjunct faculty's contract.

[00:54:41] Speaker 06:
It just said, as you know, this is a Catholic university with a Catholic mission, and our entire teaching mission reflects that period.

[00:54:53] Speaker 06:
And then you're being hired to teach calculus, six hours a semester, here's your pay, you don't have to come to Cloquia, thank you very much, do good and don't undermine

[00:55:04] Speaker 06:
you know, don't speak ill of the pope and we'll be happy.

[00:55:07] Speaker 04:
Sure, that would certainly be exempt.

[00:55:09] Speaker 04:
A much different case and exempt.

[00:55:11] Speaker 02:
Hasn't the handbook done that here?

[00:55:14] Speaker 03:
Isn't that the argument here?

[00:55:16] Speaker 03:
That you're asking sort of a magic words test here.

[00:55:20] Speaker 03:
That Duquesne's point is it has all these documents that signal to anyone who wants to teach there that they're coming into a religious environment and must teach accordingly.

[00:55:33] Speaker 04:
I think that the concept here that might help me explain this is the market check concept from the first part of the holding out test in Great Falls, which is according to Judge Pillard's hypothetical, the board's test is how the university holds itself out such that a reasonable prospective applicant for it being an adjunct or an adjunct would understand their role in creating or maintaining.

[00:55:52] Speaker 04:
And so if there is something in their

[00:55:55] Speaker 04:
pamphlet that they're passed out to that says something like that, it would be quite a market check if there were faculty who, for example, did not want to teach whatever their subject was with an eye towards or infusing it with the religious mission of the university.

[00:56:10] Speaker 06:
But I think it's important to understand what Duquesne and Amiki are saying that

[00:56:19] Speaker 06:
It can be religious even if they're not infusing in any substantive way their teaching, that they want to be able to define the way they bear their mission.

[00:56:31] Speaker 06:
And in fact, I mean, this comes up in the Lutheran cases where the Lutherans are all about academic freedom.

[00:56:35] Speaker 06:
And so some of the board's argument that is based on, that can be consistent with the way they bear and carry out their religious mission.

[00:56:47] Speaker 06:
They just, and I think that my question to you is, do you understand the holding out test to limit entanglement by taking their word for it?

[00:56:59] Speaker 06:
And the thing you're looking for is the scope of the definition of faculty.

[00:57:05] Speaker 06:
You're not looking for any kind of teaching, you're not looking for any curricular proselytizing or, you know,

[00:57:13] Speaker 06:
religious doctrine or pastoral care by the faculty, you're just looking at some clarity with respect.

[00:57:22] Speaker 06:
Are they in or are they out?

[00:57:25] Speaker 04:
Yes, that is the board's view.

[00:57:27] Speaker 04:
The board's view is that taking a look at the role of the faculty in creating or maintaining the religious environment is not delving into the religious environment itself.

[00:57:37] Speaker 02:
But the handbook itself here says the teacher should respect

[00:57:40] Speaker 02:
the religious and ecumenical orientation of the university.

[00:57:45] Speaker 02:
Isn't that a signal to adjunct that if you needed one?

[00:57:52] Speaker 04:
Yes, there is in there that general statement to respect the mission that is correct.

[00:57:58] Speaker 04:
According to the board's view, though, there's a difference between respecting the mission of the university and actually creating or maintaining

[00:58:08] Speaker 04:
the mission of the university via your role as the adjunct.

[00:58:13] Speaker 04:
So the board, and I think the board found it in Duquesne that statements such as that respecting are too generalized to indicate that the reasonable adjunct would know coming in to teach whichever class that it is.

[00:58:25] Speaker 04:
Again, theology separate, theology are out of the unit, that they would know coming in beyond just respecting

[00:58:32] Speaker 04:
the religious mission, that they have a role in creating or maintaining it.

[00:58:35] Speaker 02:
And that's what the board's view... It turns on the meaning of the word respect, right?

[00:58:39] Speaker 02:
You go to the dictionary and look at what the word respect means.

[00:58:42] Speaker 02:
That's an awfully crabbed way to approach something as central as religious liberty.

[00:58:48] Speaker 04:
I would respectfully disagree that it's crabbed.

[00:58:50] Speaker 04:
I would say, however, the board was trying its best to respect, using that word,

[00:58:56] Speaker 04:
this court's jurisprudence and Catholic bishop in trying to wrestle with.

[00:58:59] Speaker 02:
That's a hard sell, at least for this judge, given the history here.

[00:59:04] Speaker 04:
I notice that I'm over time.

[00:59:06] Speaker 04:
I can continue.

[00:59:07] Speaker 06:
I know you've been asked this in some form.

[00:59:11] Speaker 06:
We're bound by our precedent.

[00:59:14] Speaker 06:
And I know the board cases go up to all the different circuits.

[00:59:20] Speaker 06:
But we're bound by our precedent.

[00:59:22] Speaker 06:
And the board has all but said,

[00:59:25] Speaker 06:
in specific Lutheran that it's not entirely in agreement with our precedent.

[00:59:31] Speaker 04:
Is there any way we can affirm?

[00:59:34] Speaker 04:
We don't believe that what the board did here is inconsistent with your precedent in Great Falls.

[00:59:39] Speaker 04:
We think that the test, although it's a different test, it's consistent with it in the sense that it refines the holding out test to also apply to faculty.

[00:59:49] Speaker 04:
So we do think that this test is one that this panel can affirm.

[00:59:53] Speaker 04:
Now should the panel

[00:59:55] Speaker 04:
disagree and believe that it's inconsistent.

[00:59:58] Speaker 04:
Obviously, the board would not have any problems should the panel think that it needs to be referred for en banc.

[01:00:03] Speaker 04:
But the reason that the board, reading Pacific Lutheran, the board respected Great Falls, recognized this issue was never presented in front of this court, and believes that consistently with that test, this panel can affirm it.

[01:00:20] Speaker 03:
All right.

[01:00:21] Speaker 03:
Thank you very much.

[01:00:23] Speaker 03:
Counsel for Petition.

[01:00:26] Speaker 03:
Oh, I beg your pardon.

[01:00:28] Speaker 03:
I can't put it in the lead.

[01:00:34] Speaker 00:
Jim Kappas for the Steelworkers Union.

[01:00:38] Speaker 00:
Duquesne University didn't only hold itself out as a religious university providing a general religious education environment.

[01:00:46] Speaker 00:
Duquesne also very specifically committed itself to allow its non-theology department professors to carry out their jobs according to accepted norms of academic freedom.

[01:00:57] Speaker 00:
And that has actual meaning, and it's well understood meaning in the academic community and also in the law.

[01:01:04] Speaker 00:
In Tilton, the court said that what that means

[01:01:08] Speaker 00:
is that when a university has committed itself to those standards, in that case a religious university, it means, and I'm gonna quote, that courses are taught according to academic requirements intrinsic to the subject matter and the individual teacher's conception of professional standards in an atmosphere of academic freedom rather than religious indoctrination.

[01:01:28] Speaker 06:
But Mr. Kappas, I'm not sure that I,

[01:01:34] Speaker 06:
follow entirely the dichotomy that you're painting between a religious university and a university that is committed to academic freedom.

[01:01:45] Speaker 06:
Because a university, I believe, can be committed to academic freedom, inquiry, teaching, but also have a religious mission that encompasses the faculty.

[01:01:57] Speaker 06:
And they might, for example, have

[01:02:03] Speaker 06:
lifestyle requirements that are more religious, but in the classroom, the professor's word is how the professor thinks the professor should teach.

[01:02:15] Speaker 06:
So I'm not sure.

[01:02:17] Speaker 00:
Well, that's actually the entire point I'm trying to make, is that a college can both be a religious college and provide

[01:02:25] Speaker 00:
education that allows the faculty members in certain non-religious and many non-religious subjects to teach according to norms of academic freedom.

[01:02:33] Speaker 00:
They can do both, which is the point.

[01:02:36] Speaker 06:
But they're saying, I mean, I think it would help me, actually, if both sides would be a little bit more concrete about what they're envisioning.

[01:02:45] Speaker 06:
When you envision

[01:02:46] Speaker 06:
collective bargaining, I'm assuming you're envisioning bargaining over wages and hours and bargaining over leave and they're assuming bargaining over employee grievances that somebody was fired because of they were in a out of wedlock relationship or involved with a divorced person or having a child out of wedlock and I think they're sort of

[01:03:11] Speaker 06:
talking past one another.

[01:03:14] Speaker 00:
Well, I don't think so.

[01:03:16] Speaker 00:
I mean, all of those things can be dealt with.

[01:03:18] Speaker 00:
All of those issues are dealt with under Title VII all the time.

[01:03:21] Speaker 06:
But if one were a religious school committed to academic freedom and they wanted to discipline a faculty member for personal behavior that they thought was not upholding the religious standards,

[01:03:42] Speaker 06:
That would have nothing to do with academic freedom, right?

[01:03:45] Speaker 00:
It may or may not, depending on what the norm was.

[01:03:48] Speaker 00:
But if it was just general behavior, I suppose it may not.

[01:03:52] Speaker 00:
But that arises, presumably, with respect to the janitors, too.

[01:03:56] Speaker 00:
I mean, it arises with respect to any employee.

[01:04:00] Speaker 00:
And there's no way the Catholic bishop can possibly be read as stretching beyond the teachers to the institution, because that's exactly the approach that the court rejected in Catholic bishop.

[01:04:10] Speaker 02:
Mr. Karpus, you used a phrase, a non-religious subject.

[01:04:17] Speaker 02:
It's my understanding from what Duquesne has argued and what Ms.

[01:04:21] Speaker 02:
Murphy's argued that for a religious school, there is no such thing as a non-religious subject, that everything is all pursuit of knowledge.

[01:04:34] Speaker 02:
All pursuit of knowledge is a religious quest.

[01:04:36] Speaker 00:
In terms of the college's mission, the college I'm sure thinks of its whole mission as a religious mission, but that doesn't mean

[01:04:45] Speaker 00:
that the particular employees are carrying out a religious function and they're teaching math and the fact that the college thinks of that as part of its religious mission just doesn't address the Catholic bishop problem.

[01:04:58] Speaker 00:
The Catholic bishop problem, the court was very clear about what it was.

[01:05:02] Speaker 00:
It was, what do you do about teachers who are, quote, under religious control and discipline?

[01:05:07] Speaker 00:
And the problem was danger that religious doctrine will become intertwined with secular instruction.

[01:05:13] Speaker 00:
Duquesne has declared that that will not happen with respect to subjects like math and science and many other subjects on its campus.

[01:05:22] Speaker 00:
It didn't just passively suggest that.

[01:05:27] Speaker 00:
it forcefully declared it.

[01:05:28] Speaker 00:
That's how it got accredited.

[01:05:30] Speaker 00:
It committed itself to that.

[01:05:31] Speaker 00:
So when you talk about the way it presents itself to the public, and it's very important to the public to know that the math courses are going to be taught according to the subject of calculus rather than have some religious control placed on the professor or science or history or any of these other subjects.

[01:05:52] Speaker 00:
And Duquesne has been very clear about that.

[01:05:54] Speaker 00:
And the question in this case is,

[01:05:56] Speaker 00:
Should the board accept a cane at its word and say, OK, those professors, the theology professors are under religious control.

[01:06:03] Speaker 00:
We see what that is.

[01:06:04] Speaker 00:
That's very clear.

[01:06:06] Speaker 00:
The other professors are very clearly not.

[01:06:08] Speaker 00:
And that's just a line the Catholic bishop requires them to draw.

[01:06:15] Speaker 00:
And indeed, if you think about other religious colleges, you have to draw that line.

[01:06:21] Speaker 00:
The example that comes to mind for me is Emory University.

[01:06:27] Speaker 00:
It's a nonprofit university.

[01:06:28] Speaker 00:
It's affiliated with the Methodist Church.

[01:06:31] Speaker 00:
It very much holds itself out as not providing a general religious environment.

[01:06:36] Speaker 00:
Yet nevertheless, it has the Candler School of Theology, which ordains Methodist ministers.

[01:06:42] Speaker 00:
So if it's an all or nothing, in or out, depending on what the university generally says, then the Candler School of Theology is not exempt under Catholic bishop.

[01:06:51] Speaker 00:
And you can't possibly mean to say that.

[01:06:53] Speaker 00:
So that once you get into drawing the lines, accepting the university at its word is what this court said it should do in Great Falls.

[01:07:02] Speaker 00:
It makes a lot of sense.

[01:07:03] Speaker 00:
It's also what the academic norms require.

[01:07:06] Speaker 00:
It's what the 1940 statement provides for.

[01:07:10] Speaker 03:
Well, what about the university's response that it added a limitation?

[01:07:15] Speaker 00:
I'm sorry, I couldn't quite.

[01:07:17] Speaker 03:
What about the university's response that it added a limitation?

[01:07:23] Speaker 00:
Yeah, I think that that's storytelling.

[01:07:27] Speaker 00:
Their limitation is, it's storytelling what they point to.

[01:07:31] Speaker 00:
It's you shall respect the university and then when they elaborated with that, it's so vague that it doesn't satisfy the limitations clause in the 1940 statement, but when they elaborate on what it means, when the president says what it means,

[01:07:48] Speaker 00:
He says, well, you can't gratuitously criticize our mission.

[01:07:52] Speaker 00:
Well, every employer requires that.

[01:07:56] Speaker 00:
That's not a religious limitation.

[01:07:59] Speaker 00:
And they don't present themselves.

[01:08:01] Speaker 03:
But the limitation I'm referring to is the fact that a teacher should not do anything to disparage.

[01:08:09] Speaker 03:
Well, I don't know that.

[01:08:14] Speaker 00:
I don't remember.

[01:08:15] Speaker 03:
In other words, if you were teaching biology, there would be limits on you.

[01:08:20] Speaker 00:
No, they had a very helpful hypothetical on their brief where they hypothesized a biology teacher being punished

[01:08:28] Speaker 00:
for answering a question about evolution in a way that contradicted religious doctrine.

[01:08:34] Speaker 00:
That's exactly what they've told the public they will not do.

[01:08:38] Speaker 00:
And they've been very clear about that.

[01:08:41] Speaker 00:
And if they do that sort of thing, then they're going back on their own word.

[01:08:45] Speaker 06:
But I think part of their concern is what if they were accused of having fired someone on that ground, and they don't want to have to have that be adjudicated.

[01:08:57] Speaker 06:
I believe the board's position would be that as a backstop to any limitation on the exempt faculty, anyone else in the university who tried to raise that as a ground, there would be a case by case.

[01:09:12] Speaker 06:
We're not gonna go into that.

[01:09:14] Speaker 00:
We're gonna... Well, the board could do a case by case.

[01:09:16] Speaker 00:
I mean, the only way it would arise before the Labor Board is in the very odd circumstance where a union activist

[01:09:24] Speaker 00:
was fired on the pretext that they had said something in class that violated doctrine.

[01:09:30] Speaker 00:
And if it got down to deciding whether the university sincerely believed that the person, what they said, violated doctrine, there are Title VII cases that handle that all the time.

[01:09:42] Speaker 00:
The problem's much more likely to arise under Title VII because sex is much more likely to be subject to religious strictures than union organizing.

[01:09:51] Speaker 00:
And Title VII law handles that.

[01:09:53] Speaker 00:
They just say at one point, if it gets down to it, and you can't tell if the university wins.

[01:09:59] Speaker 00:
If what you're doing is having to make a judgment about whether that's really your belief, okay, you say it is, we don't have any reason to think otherwise objectively, you win.

[01:10:10] Speaker 00:
But that's not a big problem, that's a very little problem.

[01:10:14] Speaker 00:
And it's handled all the time under the law.

[01:10:18] Speaker 00:
You know, teachers are covered by Title VII.

[01:10:21] Speaker 00:
That's why the ministerial exception is such a big deal.

[01:10:24] Speaker 00:
People in a religious school are subject to Title VII, and the world goes on, and it doesn't create a big problem.

[01:10:32] Speaker 00:
The university has been bargaining with, I think they said, four unions for decades, been subject to all kinds of NLRB proceedings, as the regional director points out.

[01:10:42] Speaker 00:
They can't come forward with one instance where that conflicted with their religious mission.

[01:10:48] Speaker 00:
So it's just, I mean, and particularly ridiculous for this bargaining unit, because these are people who are hired on an ad hoc basis, term by term, under very exploitative conditions.

[01:11:03] Speaker 00:
And the notion that bargaining for their wages and maybe their insurance benefits is going to interfere with Ukeen's religious mission, I just think is, anyway.

[01:11:17] Speaker 03:
Thank you.

[01:11:21] Speaker 03:
petition.

[01:11:23] Speaker 01:
Thank you, Your Honor.

[01:11:24] Speaker 01:
I'll try to be quick.

[01:11:30] Speaker 01:
Just a couple of things.

[01:11:32] Speaker 01:
First of all, just to reiterate our position, a university holds out its faculty as religious by holding itself out of religious.

[01:11:44] Speaker 03:
Maybe it would be more helpful for the court not to just repeat, but to respond to some of the things counsel from the board and counsel for intervenors stated.

[01:11:57] Speaker 03:
I mean, I don't know if you want to get into the issue of accreditation, but that's a fairly fundamental issue here.

[01:12:03] Speaker 01:
Well, if that goes to the issue of academic freedom and the

[01:12:14] Speaker 01:
the union doesn't really get it right when it talks about academic freedom.

[01:12:19] Speaker 01:
Because although, and I'll note that this court said, in great force, that academic freedom is not inconsistent with a religious mission.

[01:12:30] Speaker 01:
And I think that's a very important statement by this court.

[01:12:34] Speaker 01:
But there is academic freedom at Duquesne.

[01:12:38] Speaker 01:
It's proud of that.

[01:12:39] Speaker 01:
But it's also a limited academic freedom.

[01:12:43] Speaker 01:
Contrary to what the 1940 AAU statement says, there's an ad in the statement that Duquesne makes about academic freedom.

[01:12:58] Speaker 01:
It says, teachers should respect the religious and ecumenical orientation of the university.

[01:13:04] Speaker 01:
And that's different than the AAUP statement on academic freedom.

[01:13:09] Speaker 01:
It doesn't contain that kind of language.

[01:13:11] Speaker 01:
And if you look at the submission that Duquesne made to Middle States, the accreditor body, it's very specific in terms of the limitations of academic freedom.

[01:13:25] Speaker 01:
It says,

[01:13:28] Speaker 01:
Faculty should respect the religious mission of the university.

[01:13:31] Speaker 01:
The central conclusion with respect to academic freedom is that academic autonomy is preserved within the context of Duquesne's mission statement.

[01:13:43] Speaker 01:
So it's very different than the way it's presented by Duquesne.

[01:13:50] Speaker 01:
Council for the Union.

[01:13:51] Speaker 01:
And I will also say that the board's statement that they haven't rejected the Ray Foss test, just contrary to what the board says, in its own decision in Pacific Lutheran, I would direct your attention to page 1409 of the board's decision.

[01:14:15] Speaker 01:
They say that Pacific

[01:14:20] Speaker 01:
They say in Pacific Lutheran that the great false test is wrong because it doesn't take into account section seven and the section seven rights of employee.

[01:14:33] Speaker 01:
They clearly are rejecting that test.

[01:14:36] Speaker 01:
What they're really trying to do is say to this court, well, we're consistent with Catholic Bishop and trying to sort of put

[01:14:48] Speaker 01:
sweep this court's decision under the rug in their briefing.

[01:14:55] Speaker 01:
You read the brief, that's exactly what they're doing.

[01:14:58] Speaker 01:
I don't have anything else, Your Honors, unless you have any questions.

[01:15:01] Speaker 03:
Thank you.

[01:15:02] Speaker 03:
We will take the case under advisement.