In The School

Guidelines: Drafting Bylaws and Constitution

for an Educational Institution

 

               I.         Religious Authority

Societal and even Christian consensus is evaporating on elemental questions of theology, philosophy, and jurisprudence.  In response, [Educational Institution] should identify the final human authority — person, board, committee — who will promulgate, interpret, and enforce religious policies for [Educational Institution].  Religious entities should incorporate language on qualifications, quorum rules, officers, executive committees, disqualification, removal and other procedural rules.  Further, the Institution’s bylaws and/or constitution should include binding religious rules relevant to “internal school governance” and discipline.[1] 

 

Because there are myriad constitutional and statutory protections for “religious organizations” arising under the First Amendment, Religious Freedom Restoration Act (“RFRA”), Religious Land Use and Institutionalized Persons Act (“RLUIPA”),[2] and various state statues,[3] the final authority must be essentially religious and charged with promulgating and enforcing religious rules on at least the following:

 

  • Scripture and Canonicity
  • Statements of Faith and Doctrine
  • Standards of Morals and Conduct
  • Resolution of Theological Controversies
  • Internal Dispute Resolution
  • Interpretation and enforcement of conformity of belief/practice
  • Discipline of Students
  • Discipline of Teachers
  • Discipline of Staff, Administrators, or other Employees
  • Property and Facility Usage[4]

 

If [Educational Institution] is denominationally affiliated, its best line of defense will be to incorporate by reference pre-existing denominational doctrinal, dogmatic or theological documents.[5]  Typically, denominational doctrine will enhance and thoroughly explain the sincerely held religious beliefs of [Educational Institution].

 

It is important that [Educational Institution] explicitly charge its religious authority with oversight of all areas of [Educational Institution] governance, particularly issues of faith, practice, theology, moral and scriptural interpretation.  If [Educational Institution] seeks to adopt any policy or doctrinal statement, submit it openly for corporate notice or consideration while the designated authority considers the ecclesiastical matter.[6] 

 

In addition, [Educational Institution] should clearly define the person/board/committee’s scope of authority over the above referenced matters.  Express that the designated authority is the final authority on (1) scripture, faith, morals, and employee/student discipline; (2) formal employment or student enrollment requirements vis-à-vis eligibility, morals, discipline, termination, and expulsion; (3) Statements of Faith and Doctrine; (4) Standards of Morals and Conduct; (5) internal dispute resolution; and, (6) enforcement of conformity of belief and practice relating to religious teaching and practice.  State that ecclesiastical government of all students, employees, and staff is unquestioned.[7]  Create authority for the decision of controverted questions of faith within the [Educational Institution].[8]  Conclusively state that decisions of the established authority are “binding in all cases of ecclesiastical cognizance, subject only to appeals” as [Educational Institution] itself provides for. [9]

 

Lastly, beyond defining the scope of authority over the above-referenced matters, it is important that [Educational Institution] delineate its religious purpose and motivation in exercising authority over each category, with scriptural references.  The United States Supreme Court has held that “religious authority necessarily pervades the school system,” or all aspects of governance and operations.[10]  Therefore, explain how everything that occurs in the [Educational Institution] affects its ministry and mission and necessitates being held under its religious authority.  Finally, express that the religious purpose in exercising said authority is for the [Educational Institution] to practice its religion, foster, repeat, advertise, and disseminate [Educational Institution’s] view, message, and statements.[11]

 

A.    Leadership

[Educational Institution] has an interest, as a religious institution, in “autonomy in ordering its internal affairs, so that it may be free to: select [its] own leaders, define [its] own doctrines, resolve [its] own disputes, and run [its] own institutions.”[12]   Therefore, [Educational Institution] should revise and amend its [list any and all written organizational policies, governing documents, handbooks, or procedures, including things like employment policies, Standards of Morals and Conduct, discipline, Statements of Faith, religious beliefs, Purpose Statement, Mission Statement, polity, and internal dispute resolution policy] (the “Written Statements of Faith”), to expressly state this autonomy. 

 

            B. Employment and Volunteers

Second, clearly and explicitly define the formal requirements for employment and volunteering.  Specify the authority that the designated person, board, or committee will have over establishing these requirements, which should be stated as “instituted for the purpose of ecclesiastical government.”[13] 

 

            C. Discipline

As Christian consensus evaporates, [Educational Institution] will likely encounter more and more scenarios where it must discipline or remove counter-witnessing persons.  Such actions are legally defensible only if [Educational Institution] clearly delineates its employment requirements and secures signed written consent from all volunteers, employees, administrators, ministers, officers, and board members.  The employment policies should cover at least the following:

 

  • Standards of Morals and Conduct
  • Eligibility Requirements
  • Procedures for Discipline, Mediation, Termination (more than Matt. 18)
  • Agreement binding all volunteers, employees, administrators, ministers, officers, and board members to all [Educational Institution] Written Statements of Faith
  • Procedures for Termination and Voluntary Withdrawal

 

[Educational Institution] Bylaws should incorporate binding Standards of Morals and Conduct for all board members, employees, ministers, and volunteers.  [Educational Institution] Bylaws must state that assent and adherence to its Statements of Faith and Standards for Morals and Conduct is a qualification to serve the [Educational Institution] in any employment or volunteer capacity. [Educational Institution] should clearly establish that its Standards of Morals and Conduct as well as adherence to its Statements of Faith is expected at all times, publically and privately.  Further, all employees and volunteers should sign these policies.

 

  • For more information regarding suggested Statements of Faith policies, see our “Statement of Faith” Templates.
  • For more information regarding suggested policy requirements for Employment and Administration, see our “Employment and Administration” Template.

 

             II.         Students and Parents

Courts have stated that religious schools are “a repository for religious tradition and scripture, so intertwined with the church doctrine that separation is neither pragmatic nor possible.”[14]  For this reason, the court in Gaston held that “intrusion into the bishop’s decision on matters concerning parochial school discipline and expulsion places th[e] court perilously close to trespassing on sacred ground.”[15]  As a parochial entity, [Educational Institution] should clearly communicate that it is charged with the instillation of dogma and discipline in it students as an integral part of its Christian mission. 

 

A.    Application and Enrollment Process

[Educational Institution] should have a well-defined admissions procedure that includes clear enrollment requirements and disqualifications.  The procedures should also incorporate “circuit-breakers” in the admissions process.  These circuit breakers are designed to interrupt or terminate the admissions process if the school receives an application evidencing a lifestyle or belief system inconsistent with the institution’s religious beliefs or mission.  Institution admission should never be automatic.

 

 [Educational Institution] may directly set forth that it will “select those individuals with whom [Educational Institution] wishes to join in a common endeavor or mission because enrollment will play a critical role in the culture and traditions of [Educational Institution] by cultivating and transmitting shared ideals and beliefs.”[16]  Further, if applicable, the [Educational Institution] should state its belief that “individuals draw much of their emotional [and spiritual] enrichment from close ties with others.”[17]

 

While [Educational Institution] does not have to employ stringent inquiry into family backgrounds, it is important that criteria for eligibility, admission, morals, discipline, suspension and expulsion are clearly designated and communicated, grounded in scriptural references.  Further, express that enrollment is made up of “coreligionists,”[18] as commitment to [Educational Institution’s] mission, goals or vision is required. 

 

Likewise, it is advisable for [Educational Institution’s] application to incorporate specific elements.  Include spiritual questions in the student and parent application as well as define the spiritual and behavioral criteria used to evaluate applicants for admission.  In addition, openly describe [Educational Institution’s] view on the Biblical model of a family.  Explaining how these criteria will “assist in the expression and dissemination of religious doctrine” or instill religious values in students is of equal importance.

 

Potential qualifications for enrollment may include: written profession or statement of faith in the Holy Bible and Jesus Christ; a written statement of faith in Jesus Christ and student’s intent to pursue a life that will glorify God, with His help; assent and adherence to [Educational Institution’s] Written Statements of Faith.

 

Alternatively, applicant disqualifications should be set forth.  They may state that enrollment is contingent on whether or not the student and their parents are actively pursing relationships with Christ, as well as abiding by convictions and commitments of [Educational Institution] regarding Standards of Morals and Conduct.  As discussed in more detail below, students should be advised of potential consequences of or discipline for not abiding by their commitments as students. 

 

Lastly, request that potential students and their families review [Educational Institution] policies and Statements of Faith and proceed with enrollment only if they are in agreement with, and willing to abide by, said policies.  In order to do so, have potential students and their parents sign an agreement that they have received, read and understand the [Educational Institution] policies.  For example, _______________, is a student of [Educational Institution] and agrees to adhere to established and traditional tenets or teachings of [Educational Institution] which has historically held to the beliefs set forth herein.[19]  This section should contain a statement of agreement that students may be expelled for failing to adhere to the [Educational Institution’s] Written Statements of Faith.  Additionally, renew these agreements on an annual basis. 

 

It is imperative for the [Educational Institution] to thoroughly explain the connection between its enrollment requirements and disqualifications and [Educational Institution’s] religious mission, integrity, and purpose.  State how its enrollment requirements or disqualifications will “assist in the expression and dissemination of religious doctrine” or instill religious values in existing students.

 

           III.         Discipline, Mediation, and Removal

Because families, faculty, staff, volunteers, and board members have consented to abide by and adhere to [Educational Institution] authority, school discipline may occur when necessary.  [Educational Institution] should establish clear disciplinary and removal procedures for students, faculty, staff, volunteers, and board members, grounded in scripture, and apply these procedures consistently.  Timing, means, and administrative involvement should be established.  Further, it is the [Educational Institution’s] prerogative to include policies relating to grace and reconciliation.

 

 [Educational Institution] should identify any controversial issues deemed terminable for students, faculty, staff, volunteers, and/or board members.  Simply put, [Educational Institution] must define what it intends to defend.  If [Educational Institution] intends to discipline, terminate, expel, or refuse enrollment based on an issue, its written policies must expressly state a sincerely held religious belief on that issue.  Explain further why student, faculties, staff, volunteer, and/or board member is not allowed to counter-witness on said issue, particularly because it will damage the testimony and mission of the school.   [Educational Institution] should define behavior that it will deem to qualify as counter-witnessing, heresy, or apostasy.

 

Similar to Employment and Volunteer standards, apply [Educational Institution’s] Standards of Morals and Conduct to enrollment procedures.  Delineate clear standards of conduct regarding sexual morality, identity and orientation, and other non-sexual behaviors (e.g. Cheating, stealing, lying, etc.).  In addition, incorporate [Educational Institution’s] Written Statements of Faith by reference. 

 

           IV.         Biblical Counseling Services

The American Psychiatric Association (“APA”), American Psychological Association (“A-Psych”), and the American Medical Association (“AMA”) – and many of their state affiliates – have adopted public policy statements affirming same-sex attraction, same-sex sexual acts, same-sex marriage, and additional legal protections for LGBT persons.[20]  To varying degrees, all three organizations have condemned as harmful “conversion” or “reparative” therapy for same-sex attracted persons.  In response, the states of New Jersey and California have banned “conversion” or “reparative” therapy for minors.  The Third and Ninth Circuit Courts of Appeal recently affirmed the New Jersey and California bans, respectively.[21]   Similar legislation is pending in Florida and Oregon.[22]

 

Because leading psychiatric, psychological, and medical organizations are enlisted in legal and legislative campaigns to ban treatment regimens that fail to affirm same-sex conduct, [Educational Institution] counselors should: (1) expressly state that all counseling services are based on the written and sincerely held religious beliefs of [Educational Institution]; (2) expressly disclaim any affiliation with APA, A-Psych, AMA, or similar organizations or compliance with their standards; and (3) recommend that patients seeking psychiatric, psychological, or medical care refer to a medical professional. 

 

If possible, this notice and disclaimer language should appear on the written materials provided prospective clients, followed by a signature block acknowledging receipt, review, and assent to [Educational Institution’s] counseling standards.  The objective is two-fold: (1) provide advance notice that [Educational Institution] counseling is rooted in religious teachings, and (2) document the client’s assent to religious counseling.  An equivalent disclaimer should be included in each published work of [Educational Institution].

 


[1] Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694, 706 (2012).

[2]U.S. Const., amend I; 42 U.S.C. §§ 2000e, et seq.; 42 U.S.C. § 2000bb, et seq.; 42 U.S.C. §§ 2000cc, et seq.; 42 U.S.C. §§ 9858, et seq., Executive Order 13279, 67 F.R. 77141.

[3] See, e.g., Cal. Gov’t Code § 12926(d); Col. Rev. St. § 24-34-401; Conn. Gen. Stat. § 46a-81p; D.C. Code § 2-1401.03; Hi. Rev. Stat. § 378-3(5);775 Ill. Comp. Stat. 5/2-101(B)(2); Iowa Code § 216.6(6)(d);5 Me Rev. Stat. §§ 4553(4) & 4573-A;49-B Md. Code § 18;151B Mass. Gen. Laws § 4;Minn. Stat. § 363A.20;Nev. Rev. Stat. § 613.320 & 613.350;N.J. Stat § 10:5-12;N.H. Rev. Stat. § 354A:7;N.M. Stat. § 28-1-9(B);N.Y. Exec. Law 296(11);Or. Rev. Stat. § 659A.006;R.I. Gen. Laws § 28-5-6(7)(ii);21 Vt. Stat. § 495;Wash. Code  § 49.60.040(3);Wis. Stat. § 111.337.

[4] See, e.g., Gunn v. Mariners Church, 2005 WL 1253953, at *2 (Cal.App. 4 Dist. 2005); Serbian E. Orthodox Diocese v. Milivojevich,426 U.S. 696, 709-10 (1976); Maryland & Va. Churches of God v. Church at Sharpsburg, 396 U.S. 367, 368 (1970); Gonzales v. Roman Catholic Archbishop, 280 U.S. 1, 16 (1929); Holy Trinity Church v. United States, 143 U.S. 457, 472 (1892); Bryce v. Episcopal Church in the Diocese of Colorado, 121 F.Supp. 1327, 1328 (D.Col. 2000).

[5]Spencer v. World Vision, Inc., 633 F.3d 723, 727 (9th Cir. Wash. 2011) (citing LeBoon v. Lancaster Jewish Cmty. Ctr. Ass'n, 503 F.3d 217, 226 (3d Cir. Pa. 2007) (citing Samford v. Killinger, 113 F.3d 196 (11th Cir. 1997); EEOC v. Kamehameha Schools/Bishop Estate, 990 F.2d 458 (9th Cir. 1993); Townley, 859 F.2d at 618-19; EEOC v. Mississippi College, 626 F.2d 477 (5th Cir. 1980).

[6]  See Fiedler v. Marumsco Christian Sch., 631 F.2d 1144, 1152 (4th Cir. Va. 1980).

[7]  Connor v. Archdiocese of Phila., 601 Pa. 577, 588-591 (Pa. 2009) (quoting Watson v. Jones, 80 U.S. 679, 728-29 (1871)). 

[8]   See id.

[9]   Id.

[10]  See Lemon v. Kurtzman, 403 U.S. 602, 617 (1971).

[11]  HEB Ministries, Inc. v. Tex. Higher Educ. Coordinating Bd., 235 S.W.3d 627, 644, 800 (Tex. 2007);

see Hurley v. Irish-American Gay, 515 U.S. 557 (1995)

[12] See also Serbian Eastern Orthodox Diocese, 426 U.S. at 696 (church has interest in effecting binding resolution of internal governance disputes); Kedroff v. Saint Nicholas Cathedral, 344 U.S. 94 (1952) (state statute purporting to transfer administrative control from one church authority to another violates Free Exercise Clause); Corp. of Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 341-342 (1987).

[13] Watson, 13 U.S. at 679.

[14]Gaston v. Diocese of Allentown, 712 A.2d 757, 761 (Pa. Super. Ct. 1998).

[15] Id.

[16]Seee.g., Zablocki v. Redhail, 434 U.S. 374, 383-386 (1978); Moore v. East Cleveland, 431 U.S. 494, 503-504 (1977) (plurality opinion); see also Gilmore v. City of Montgomery, 417 U.S. 556, 575 (1974); Wisconsin v. Yoder, 406 U.S. 205, 232 (1972); Griswold v. Connecticut, 381 U.S. 479, 482-485 (1965); Pierce v. Soc'y of Sisters, 268 U.S. 510, 535 (U.S. 1925); Poe v. Ullman, 367 U.S. 497, 542-545 (1961) (Harlan, J., dissenting);  NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460-462 (1958).

[17]Roberts v. United States Jaycees, 468 U.S. 609, 621 (1984).

[18]World Vision, Inc., 633 F.3d at 727; Kamehameha Schools/Bishop Estate, 990 F.2d at 458; Townley, 859 F.2d at 618-19;  Mississippi College, 626 F.2d at 477.

[19]NLRB, 440 U.S. at 506.

[20] See, e.g., “LGBT-Sexual Orientation,” psychiatry.org, available at www.psychiatry.org/lgbt-sexual-orientation/(“All major professional mental health organizations have gone on record to affirm that homosexuality is not a mental disorder. In 1973 the American Psychiatric Association’s Board of Trustees removed homosexuality from its official diagnostic manual, The Diagnostic and Statistical Manual of Mental Disorders, Second Edition (DSM II).”); “American Psychological Association Reiterates Support for Same-Sex Marriage,” apa.org, available at http://apa.org/news/press/releases/2010/08/support-same-sex-marriage.aspx; “AMA Policies on LGBT Issues,” ama-assn.org, available at http://www.ama-assn.org/ama/pub/about-ama/our-people/member-groups-sections/glbt-advisory-committee/ama-policy-regarding-sexual-orientation/ (“Our American Medical Association: (1) recognizes that denying civil marriage based on sexual orientation is discriminatory and imposes harmful stigma on gay and lesbian individuals and couples and their families.”).

[21]  National Center for Lesbian Rights, “48 States Allow Gay Conversion ‘Therapy’ For Minors,” available at http://big.assets.huffingtonpost.com/ReparativeTherapy.png.

[22] National Center for Lesbian rights, “Protecting LGBT Youth From Conversion Therapy,” available at http://www.nclrights.org/bornperfect-laws-legislation-by-state/; 2015 Bill Text OR H.B. 2307.

 

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