US agency tries to tell school that it’s not ‘religious enough’ 

It’s not enough for the National Labor Relations Board to decree that Boeing Corporation cannot build a new airliner production facility in South Carolina. Now the NLRB is also claiming the authority to dictate labor policies and order union elections at Catholic universities if they are “not religious enough.”

St. Xavier University was founded in 1846, the oldest Catholic school in Illinois. Its corporate administration is a Catholic body with the “powers for the governance” of St. Xavier that “links the University to the [Catholic] Church and makes it an officially recognized member of the Church.”

St. Xavier’s board of trustees must have at least four nuns from the order that founded the school, and, according to its bylaws, its governing body must “ensure [St. Xavier] continues its educational and religious mission.”

After quoting these sources and others, the NLRB’s regional director concluded in true Orwellian fashion that “the evidence establishes” that St. Xavier is “a secular educational institution or university.”

To support this astounding conclusion, the NLRB claimed a 1979 Supreme Court decision affirms this authority.

Yet that case — NLRB v. Catholic Bishop of Chicago — actually says the complete opposite. In that instance of déjà vu, the Supreme Court considered a challenge to an NLRB order asserting authority over lay teachers at Illinois Catholic high schools.

The NLRB claimed that although it had no authority over a church, it possessed power over church-related bodies that are not purely religious, such as schools. The court considered whether the National Labor Relations Act granted the NLRB such power.

Noting the religious mission of Catholic schools, the Supreme Court declared, “Good intentions by government … can surely no more avoid entanglement with the religious mission of a school” than legislation the court previously struck down as unconstitutional violations of religious liberty.

The court reasoned, “The church-teacher relationship in a church-operated school differs from the employment relationship in a public … school. There is no escape from conflicts flowing from [the NLRB’s] exercise of jurisdiction over teachers in church-operated schools and the consequent serious First Amendment questions that would follow.”

The court then noted that nothing in the law’s language suggested the NLRB has power over any church-affiliated organizations. The court invoked one of the most basic principles of U.S. law, that a federal statute, “ought not to be construed to violate the Constitution if any other possible construction remains available.”

Accordingly, the court held that federal law did not give the NLRB the power it was claiming, so the court need not consider whether to strike down that provision. Instead, it held that the NLRB lacked any legal jurisdiction to judge the schools’ religiosity, and vacated NLRB’s order.

Far from authorizing the NLRB’s action against St. Xavier, it does the opposite by affirming the government has no such power over church schools. The NLRB’s contrary assertion is a frightening power grab that must be taken to court.

So the NLRB is being wielded as an instrument of unfettered federal power. Congress and the courts must act to end this imperial overreach.

Examiner legal contributor Ken Klukowski is on the faculty at Liberty University School of Law.

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