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Today’s Cultural Changes and the Christian School

A Legal and Spiritual Look

ACSI Professional Development Forum 2016

Thomas J. Cathey, EdD ACSI

Assistant to the President Director for Legal/Legislative Issues

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Today’s Cultural Changes and the Christian School: A Legal and Spiritual Look

Today’s Cultural

Changes and The

Christian School

A Legal and Spiritual Look

Thomas J. Cathey

ACSI Assistant to the President

Director for Legal Legislative Issues

June 26, 2015

Today’s decision, for example, creates serious

questions about religious liberty.

Many good and decent people oppose same-sex

marriage as a tenet of faith, and their freedom to

exercise religion is -- unlike the right imagined by the

majority -- actually spelled out in the Constitution. . . .

There is little doubt that these and similar questions

will soon be before this Court. Unfortunately, people

of faith can take no comfort in the treatment they

receive from the majority today.

Chief Justice Roberts

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In our society, marriage is not simply a governmental

institution; it is a religious institution as well. Today’s decision

might change the former, but it cannot change the latter. It

appears all but inevitable that the two will come into conflict .

... The majority appears unmoved by that inevitability. It

makes only a weak gesture toward religious liberty in a single

paragraph. And even that gesture indicates a

misunderstanding of religious liberty in our Nation’s tradition.

Religious liberty is about more than just the protection for

“religious organizations and persons . . . as they seek to teach

the principles that are so fulfilling and so central to their lives

and faiths.” Religious liberty is about freedom of action in

matters of religion generally, and the scope of that liberty is

directly correlated to the civil restraints placed upon religious

practice.

Justice Thomas

…the majority attempts, toward the end of its opinion,

to reassure those who oppose same-sex marriage

that their rights of conscience will be protected. We

will soon see whether this proves to be true. I

assume that those who cling to old beliefs will be

able to whisper their thoughts in the recesses of their

homes, but if they repeat those views in public, they

will risk being labeled as bigots and treated as such

by governments, employers, and schools. . . . By

imposing its own views on the entire country, the

majority facilitates the marginalization of the many

Americans who have traditional ideas.

Justice Alito

“There can be a conflict between religious

liberty and sexual liberty, but in almost all

cases the sexual liberty should win.”

EEOC Commissioner Feldblum

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Gay rights vs. Religious rights

…those who adhere to religious doctrines, may

continue to advocate with utmost, sincere conviction

that, by divine precepts, same-sex marriage should

not be condoned. The First Amendment ensures that

religious organizations and persons are given proper

protection as they seek to teach the principles that

are so fulfilling and so central to their lives and faiths,

and to their own deep aspirations to continue the

family structure they have long revered.

Justice Kennedy

• 26 States include

Sexual Orientation as

a Protected Class in

State

Nondiscrimination

Laws (at least 19

include Gender

Identity)

– Public

Accommodations

– Employment

– Housing

– 150 Localities have

SOGI Laws

Source: Movement Advancement

Project (www.lgbtmap.org)

Legal Complexities Abound

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Scenario: The school could lose tax-exempt status,

or donors to the school could be denied credit for a

charitable contribution.

– Corporate Taxes to be paid

– Sales Taxes to be paid

– Property Taxes to be paid

– Donors lose tax deduction

Issues where schools are vulnerable

1. What could your school do now to help minimize

the impact of losing your tax exempt status?

2. What would a new financial model for your school

look like?

3. How can you start to build loyalty in your mission

now so that donors would want to give whether

there was a tax deduction or not?

Tax Exempt Discussion

Scenario: In states with voucher or tuition tax credit

or educational savings plan programs, schools that

resist the Sexual Orientation/Gender Identity (SOGI)

agenda could be ruled ineligible.

1. Could/would you still participate in a program that

required open admissions but did not limit your

hiring rights?

2. What would you have to do in your school to

make that change and still be faithful?

3. What are other steps you should be doing in this

area?


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Maryland Voucher, Aging Schools and Book

Program

A nonpublic school participating in the program may

not discriminate in student admissions on the basis

of race, color, national origin, or sexual orientation.

Nothing herein shall require any school or institution

to adopt any rule, regulation, or policy that conflicts

with its religious or moral teachings. However, all

participating schools must agree that they will not

discriminate in student admissions on the basis of

race, color, national origin, or sexual orientation.


First …preventing what happened in Maryland

• Requires the schools and parents to be aware of

legislation and speak up to your legislators.

However, if to receive funding you must have a non-

discrimination policy on SOGI… then what?

• Discussion at the board and church levels


Nondiscrimination regarding SOGI in admissions

1. What will be included in your code of conduct for

students?

2. The interview with families is critical.

3. Communication with current families.

4. Training for teachers and staff.


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Scenario: Legal challenges could arise with respect

to hiring or (especially) firing, if the basis for

decisions is sexual behavior outside of traditional

marriage, or advocacy of acceptance of such

behavior, or a change in gender identity.

1. Has your school reviewed and updated your

policies and practices?

2. Are you currently engaged in your state and

national legislatures to ensure your voice is being

heard?


We must clearly articulate our religious mission and religious

requirements for employment at the school.

– Have a Biblical statement of faith that employees must

adhere to without mental reservations.

Steps to protect religious hiring

• We believe that the term marriage has only one meaning: the uniting of one

man and one woman in a single, exclusive union, as delineated in Scripture

(Genesis 2:18-25). We believe that God intends sexual intimacy to occur

only between a man and a woman who are married to each other (1

Corinthians 6:18, 7:2-5; Hebrews 13:4). We believe that God's command is

that there be no sexual intimacy outside of or apart from marriage between

a man and a woman.

• We believe that God wonderfully foreordained and immutably created each

person as either male or female in conformity with their biological sex.

These two distinct yet complementary genders together reflect the image

and nature of God (Genesis 1:26-27).

Our Statement of Faith is not exhaustive of all of our beliefs. The Bible, as the

inspired and infallible Word of God, speaks with absolute authority regarding the

proper conduct of mankind and is the unchanging foundation for all belief and

behavior. The ____________School Board holds final interpretive authority on

biblical meaning and application with regard to faith, doctrine, policy, practice,

and discipline.


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We must clearly articulate our religious mission and religious

requirements for employment at the school.

– Have a Biblical statement of faith that employees must

adhere to without mental reservations.

– Have a mission statement that identifies the school’s

religious purpose.

– Have job descriptions that clearly identify the religious

qualifications such as being born again and other

expectations.

– Have a lifestyle statement and declaration of moral

integrity that articulates what type of life the person must

lead to qualify for an employment position in a religious

school ministry. (24/7/365)

– In all your documents, define biblical marriage and the

roles of men and women.


• Emphasize that individuals on your staff must

serve as “Christian role models” for your students.

– This should enable you to require higher

standards from applicants and employees than

is typical for secular employers.

– This phrase and concept of “Christian role

models” should be a part of your job

descriptions and contracts.

– Use scripture. Luke 6:40

• Emphasize that teaching is a ministry.


• Threat of New “SEXUAL ORIENTATION”

Nondiscrimination Category

– The Employment Non-Discrimination Act (ENDA) seeks

to add “sexual orientation” as a new non-discrimination

category to Title VII.

– It passed the House of Representatives in the past but

not the Senate.

– Last year, it passed the Senate but it has not passes in

the House

– President Obama’s Executive Order.


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• The Equality Act

– Introduced into Congress on July 23, 2015

– H.R. 3185 and S. 1858

– This bill would add sexual orientation and gender identity

as protected categories under the Civil Rights Act.

– More expansive than ENDA

– It amends a large number of federal laws making 59

amendments to 8 different federal laws.

– Would apply not only to employment, but also to public

accommodations, public facilities, public education,

federal grants and loans, housing, credit transactions,

jury duty, and more.

– NO RELIGIOUS EXEMPTIONS!


• The First Amendment Defense Act

– S. 1598 and H.R. 2802

– Introduced to protect religious persons and institutions

from discrimination by the federal government simply on

the basis of their belief that marriage is the union of one

man and one woman.

– Prohibits the Federal Government from discriminating

against a person based on their religious belief about

marriage

– Prohibits denial of tax exemption

– Prevents denial of federal grants or licenses


Scenario: The school could be denied participation in

inter-scholastic sports or other activities with peer

institutions.

1. What would you do if you were required to adopt

transgender policies in order to compete in an

athletic league?

2. What if you had to compete against a team that

has transgender athletes on its team?


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USDE/DOJ Guidance Letter on Transgender

Students

• May 13, 2016

• This is not legislation.

• It is simply a statement and guidance letter.

• However, it is a strong recommendation to public

schools, colleges and universities.

• It puts schools on notice that USDE is

reinterpreting the Title IX prohibition on sex

discrimination to include gender identity and

transgender status.



Students

• What is the immediate impact on Christian

Schools?

– No immediate impact

– Could have future implications

– Christian Schools should continue to operate

according their biblical mission and standards.



Students

• What about Title services and federal programs

that are provided to Christian Schools?

– Title Services provided through the local LEA

have not been impacted.

– These are services provided to teachers and

students and are not direct federal funding.

– eRate, CCDBG and National School Lunch

Programs have not been affected – yet there is

caution.


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Students

• What programs could be affected immediately?

– Athletics with public schools as they adopt

transgender policies

– Athletic Associations



Students

• What should Christian Schools do at this point?

– Children are created in the image of God

– Christian Schools should be hospitable places

– Seek God’s Guidance


Scenario: The school could lose its accreditation with

secular organizations or with states (where that

exists)

1. Why as schools do you need secular

accreditation?

2. Have you considered accreditation?


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Scenario: The school could be required to

incorporate units favorable to the SOGI agenda in its

curriculum for state recognition of your high school

diploma.

1. Can Christian school create curriculum that is

sensitive to the SOGI agenda?

2. How would you go about this?


Scenario: The school could lose Title funding and

other federal programs such as free and reduced

lunch, e-rate, etc.

1. How much of this funding impacts your school

operations today? Could you live without it?


Scenario: The school could be considered a public

accommodation either in facility rentals or in

enrollment. By public accommodation, you would be

considered open to the general public and many of

the religious protections would not apply to who you

allow to enroll or rent to.

1. Have you considered who you rent your facilities

to?

2. Have you implemented the changes to your rental

policies?


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Public Accommodation?

– Property that is open to the public

– Stores, restaurants, hotels, and theaters

– No court has yet ruled that a Christian School is

a “public accommodation”

– But two CA courts have considered it.


• Facility Use Policies

– User must sign a written agreement that

• Use will be consistent with church’s or

school’s doctrine

• Stewardship

• Authority of school to make final decision as

to doctrine and use

• Identify who is the authority with the school

• Only Christian dispute resolution will be

used if disagreement arises


In the coming years we will still have religious

freedoms but it is likely to look different than it does

today.

We will have two choices to make when confronted

with laws that limit our ability to live out our faith. We

can close our doors and stop the ministry of Christian

education or we can find ways to work within the

limitations we find ourselves under (like in Canada).

We need to begin thinking of how Christian education

will be different in the coming years and how can we

remain faithful.

Today’s Changing Culture!

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• God is still on the throne and none of this

surprises Him!

• The darker the night, the brighter the light shines!

• Harmless as doves, but wise as serpents!

• People need to see the love of God in our lives so

that our lights might shine before all men that they

may see our good works and glorify our Father in

heaven.

Today’s Changing Culture!

Tom Cathey – [email protected]

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