In a new Anti-Child Abuse Campaign, the Child-Friendly Faith Project (CFFP) is warning parents that some schools with religious affiliation have been manipulating the legal system to prevent parents from taking legal action against them, regardless of the harm caused to their child. The schools in question have called on the Ecclesiastical Abstention Doctrine (EAD) to avoid taking responsibility for harm caused to children in their care.
What is the EAD?
The ecclesiastical abstention doctrine (EAD) essentially means that the court cannot interfere with religious-based disciplinary action, because this would be interfering with a person’s right to freely practice religion. Attorney Marla Broaddus helps explain the doctrine. “The EAD defense arises from the First Amendment and originally applied to bar civil suits that concern a decision or act that is based purely on ecclesiastical [religious] theology.” She explains. “Such as when leaders of a church terminate a minister’s employment because his conduct violated religious principles of the church.” Says Broaddus, “[Or] when a church expels a member because of conduct that the church leaders believe violates the church’s religious doctrine. “In both instances, the church leaders’ interpretation and application of whatever ecclesiastical principles that church upholds will not be second-guessed by the courts. To do so would arguably represent government infringement on the right to freely religiously associate.” The current problem is that some private schools are misusing the doctrine and claim a religious affiliation, despite no direct link to a church, to protect themselves from legal action. “It is a gross misuse and overbroad application of a doctrine intended to apply in very limited circumstances.” Says Broaddus.
Two Texan Cases
Janet Heimlich, founder of the CFFP explains that in recent years, 8 of the 10 EAD court cases investigated by CFFP have involved private, faith-based schools. Heimlich offers two cases from 2018 as an example as to how this doctrine is being manipulated by some schools. “The first [school] had been accused of unfairly expelling a child who had broken no rules that called for expulsion under the school’s own policies.” She explains, “In agreeing with the school, a state appellate court dismissed the case because, under the EAD, the court shouldn’t decide on matters of the institution’s ‘internal affairs’.” “In the second case, a mother sued [their child’s school] for failing to properly punish students for their racist bullying of her son who is Black. In responding to the abuses, the school required that [the bullies] only apologize and serve a one-day suspension. The district court dismissed the case after agreeing with the school that its actions were protected by the EAD, stating that it should not ‘intrude upon a religious institution’s management of its internal affairs and governance’.” By no means are all faith-based schools misusing the doctrine nor putting their reputation above the needs of the children they care for. But, because the EAD has been asserted in the private school system, the CFFP fears that it may set a precedent for other schools to do the same. “With the EAD now in play, religious institutions’ desire for secrecy and avoidance of accountability could be prioritized over children’s needs to be and feel safe.” Says Heimlich.
Should the EAD Be Abolished?
The CFFP is campaigning to abolish the EAD. Heimlich says, “Parents deserve the right to take any institution that harms their children to court, even if it’s faith-based.” To avoid future concerns of school-based misuse of the doctrine, this might make sense. However, from a legal standpoint, there may still be a place for the EAD in a narrow set of instances. “The ecclesiastical abstention doctrine does not need to be abolished.” Claims Broaddus, “The problem is that the doctrine is being applied by activist judges who read the First Amendment far too broadly.” She explains that some judges are allowing the EAD to be used in school cases to avoid a reputation of being anti-religious. Parents should understand that courts can, in fact, deny schools from calling on the EAD without this decision breaching the right to religious freedom. If a school does choose to assert the EAD, they are not always successful in their attempt. However, if they are, Broaddus reminds parents that they as parents may lose the opportunity to attain legal justice for any harm suffered by their children at the hands of the school, as well as any breaches to school contracts such as education provision or services.
What Can Parents Do?
Until a legal decision is made regarding the continuation of the EAD, CFFP urges parents to take the time to scrupulously investigate any private or faith-based school they plan on enrolling or re-enrolling their children in. Heimlich reassures parents that the majority of private, faith-based schools are responsible and proactive in their child-abuse-prevention strategies. However, she also says, “It’s important for parents to gain an understanding of the EAD and to take some basic steps to vet a religious school from a legal perspective…”. The CFFP provides the following tips to parents when considering private or faith-based schooling for their child:
Determine whether the institution your child is enrolled in (or might be enrolled in) could claim to be faith-based.
Some private schools have stretched the meaning of “faith-based” as a way to be shielded by the EAD in court. Even if an institution seems to operate in a way that appears secular, as long as a facility, school, program, or daycare operation can claim that it has some sort of faith-based or spiritual component, it could convince a court that it should be protected by the EAD and cannot be sued for child abuse or neglect.
Read the school’s contract carefully.
Many schools specify in their contracts how legal issues must be resolved. For example, some require parents to agree to mediation. It’s important to know what legal recourses you’re agreeing to. However, be aware that if a case goes to court, the EAD does have the potential to make contracts of religious schools moot.
Ask to see a school’s child-abuse prevention policies & procedures.
Those that take abuse seriously and proactively develop and enforce comprehensive abuse-prevention policies are usually open to making these policies available and may even post them on their websites.
Research whether the school has a history of abuse allegations.
Conduct an online search using the name of the institution and words such as “lawsuit,” “sued,” and “abuse” to determine if it has been accused of abuse or of covering up cases in the past. Be extremely wary if you find a pattern of abuse allegations, even if you do not find information about final court decisions.
Explore the educational programs of secular private or public schools.
Children can receive a high-quality education and experience at many different types of schools. Consider the offerings of private secular schools or public schools, which would be unable to raise the EAD in court.
