Duquesne University v. National Labor Relations Board, No. 18-1063 (D.C. Cir. 2018)(appeal pending)

On September 24, 2018, the AAUP filed an amicus brief in the United States Court of Appeals for the District of Columbia Circuit (the “DC Circuit”) in support of a National Labor Relations Board (“NLRB”) decision enforcing adjunct faculty rights to unionize at a religiously affiliated university. Duquesne University (“Duquesne”) v. National Labor Relations Board, No.-18-1063 (D.C. Cir. 2018)(appeal pending). The amicus brief argues that there would be no unconstitutional entanglement with religion if the NLRB’s analysis in Pacific Lutheran University, 361 NLRB 1404 (2014)(“Pacific Lutheran”) were applied to determine whether Duquesne’s adjunct faculty performed a specific role in creating or maintaining Duquesne’s religious educational environment. The amicus brief also outlines how the AAUP’s longstanding principles and standards on religious exemptions (or its “limitations clause”) can provide guidance to the court in its analysis.

This case stems from Duquesne’s refusal to recognize a group of unionized adjunct faculty in the McAnulty College of Liberal Arts. While the faculty overwhelmingly voted for the union, Duquesne refused to deal with the union, asserting that requiring it to do so would constitute government entanglement in its religious activities in violation of the US Constitution.  The NLRB found that Duquesne did not hold out its adjunct faculty (other than those in the department of theology) as performing a “specific religious function” and determined that Duquesne committed an unfair labor practice by refusing to bargain with the union. The NLRB rejected Duquesne’s claim of a religious exemption and Duquesne appealed to the DC Circuit.

The amicus brief focuses primarily on AAUP’s pivotal 1940 Statement of Principles on Academic Freedom and Tenure and the 1940 Statement’s “limitations clause” and argues that these provide support for the position that the NLRB can assert jurisdiction over religiously-affiliated universities under the jurisdictional test outlined in Pacific Lutheran. “The relevance of the 1940 Statement’s limitations clause to the issues before this Court goes beyond simply a description of its similarity to the Board’s Pacific Lutheran test . . . the 1940 Statement – with its limitations clause – has been adopted by hundreds of colleges and universities, including many religiously-affiliated universities. In adopting the 1940 Statement, religiously-affiliated universities have recognized the central importance of adhering to the norms of faculty academic freedom that are shared by the community of institutions of higher education. At the same time, religiously-affiliated universities recognize that the 1940 Statement’s limitations clause protects their institutional autonomy to define faculty positions that entail specifically articulated religiously-based job functions.”

The amicus brief demonstrates that the AAUP’s “limitations clause” is comparable to the NLRB’s Pacific Lutheran standard for determining whether to assert jurisdiction over religiously-affiliated universities. Both use an objective “holding out” standard that “defers to the university’s definition of faculty functions that are religious-based functions.” The AAUP’s “limitations clause” relies on the university’s decision to inform a faculty member at the time of appointment of the specific religious functions required for the faculty position; and the NLRB’s jurisdictional test follows similar logic—it protects the autonomy of religiously-affiliated universities to define faculty positions that require the performance of “religious function.” The amicus brief argues that both tests provide a clear and workable framework to determine the scope of an exemption from AAUP standards or NLRB jurisdiction. Both tests respect the autonomy of the religiously-affiliated university to define religious-based functions of its faculty, while also protecting rights of faculty outside the scope of a religious-based exemption.