Rev. Dennis H. Holtschneider, president of DePaul University, recently published an essay explaining his concerns about what he sees as a governmental intrusion into the realm of protected religious freedoms, namely in the form of decisions by the National Labor Relations Board and its regional offices, decisions which call into question a Supreme Court precedent that put efforts to organize on religiously-affiliated campuses out of the jurisdiction of the NLRB. I offer here some pointed feedback for the essay, though I urge readers to digest the entirety of Holtschneider’s piece first:
Holtschneider: “[...] the Catholic universities for which I worked voluntarily cooperated with unions as a way to give the faculty a structured, formal voice for its concerns.”
COMMENT 1: When you write “the faculty,” I presume you mean tenured and full-time faculty (minus the adjuncts of course). This usage is not only misleading to those who don’t know the difference between tenured, full-time non-tenure-track, and part-time/adjunct faculty, but also disingenuous to someone who not only knows the difference between those stratifications but recognizes the desire of the administrator who wishes to be seen as a beneficent paternal figure presiding over “one family.” Meanwhile, adjuncts have been prohibited from organizing on private campuses since the 1980 NLRB v. Yeshiva SCOTUS decision due to a mistaken categorization as “management,” and prohibited from organizing on religious campuses since the 1979 NLRB v. Catholic Bishop of Chicago decision on the mistaken premise that organizing is an infringement of First Amendment religious protections. It has been a long time since faculty of any kind have actually been “management” in the typical American higher education organizational chart, least of all those part-time/adjunct faculty who now make up the vast majority of all faculty nationally and on most campuses. It is fundamentally misleading, at best, and possibly dishonest, to suggest that institutionally voiceless adjuncts organizing would silence the much more powerful voices of the institutions exploiting them.
Holtschneider: “Recent rulings of the National Labor Relations Board have put several of our Catholic institutions in the unenviable position of having to oppose organizing efforts of part-time faculty at our institutions.”
COMMENT 2: Rather than the NLRB bearing responsibility for “put[ting] several of our Catholic institutions in the unenviable position of having to oppose organizing efforts of part-time faculty,” it is, of course, the Catholic and otherwise religiously-affiliated institutions that choose to oppose their adjuncts’ organizing efforts. The SCOTUS decisions do not require blocking those efforts, and to suggest that the decision to do so is involuntary is to shrug-off the agency and power of the institution, and to suggest that the institution itself is a victim in need of defending. The real problem is the calculated, decades-old, ongoing denial, by Catholic and otherwise religiously-affiliated institutions, of fair wages and career stability for adjuncts, on many campuses the majority of the total faculty.
Holtschneider: “The NLRB is attempting to extend its authority over faith-based institutions, something Supreme Court and appellate court precedent has repeatedly rejected.”
COMMENT 3: The landmark cases of Catholic Bishop of Chicago and Yeshiva were decided at a time when the proportion of adjuncts was much lower than it is today, and the more that proportion grows the more obsolescent those two decisions become (it’s already close to 75% by some estimates, but certainly well over half of all faculty nationally and on most campuses). Because the ground has shifted so much, the NLRB is reviewing cases that might have seemed out of its jurisdiction just a few years ago, let alone 35+ years ago, but which seem to reside wholly, logically, and legally within that reach.
Holtschneider: “It is exactly this kind of result, where a government agency decides that one Catholic institution is sufficiently religious, but another Catholic institution somehow is not, that the court hoped to avoid.”
COMMENT 4: The protection provided by the Catholic Bishop of Chicago precedent applies to institutions with a primary focus on and function of religious instruction; mere affiliation does not meet that standard, and that is the fundamental basis for the NLRB’s recent decisions beginning with the case at Pacific Lutheran University and reiterated accordingly for the case at Duquesne University, among others. The situation is similar on many Catholic campuses, including those that have yet to address issues of adjunct organization, campuses where there is no faith requirement for hire or admission, where governance is based more on bottom-lines than lines of scripture, and where, as is the case at La Salle University where I teach, long-standing traditions of ordained leadership have given way to laity in the administration all the way up to the president’s office.
Holtschneider: “In the 19th century, when public anti-Catholicism was the unfortunate norm[....]”
COMMENT 5: Surely the claim here is not that the kind of antipathy endured by Catholics in the 1800s persists or is resurgent? Surely not?
Holtschneider: “A linchpin of this epochal process was the court’s decision in a 1979 case, NLRB v. Catholic Bishop of Chicago. In that landmark case, a unanimous court squarely rejected the NLRB's attempt to expand its jurisdiction to include religious educational institutions.”
COMMENT 6: See Comment 4....
Holtschneider: “Chief Justice Warren Burger held that the goal of the First Amendment was to protect the ‘religious mission’ of the educational institution—in particular, teaching. If the NLRB were to exercise jurisdiction over faculty-related labor matters, Burger explained, that would ‘necessarily involve inquiry into the good faith of the position asserted by the clergy-administrators and its relationship to the school's religious mission.’”
COMMENT 7: See Comment 4....
Holtschneider: “Chief Justice Burger and his colleagues were concerned that, once the NLRB took jurisdiction, its role in governing the institution and its norms could become far-reaching and in direct violation of the constitutional protection of religious freedom.”
COMMENT 8: The concern now, made apparent in decisions of the NLRB and some of its regional offices, and certainly in the view of many adjuncts (whatever their leaning regarding organizing unions), and in the arguments of some scholars of Catholic Social Teaching, is that the protection serves not as a bulwark against the erosion of religious freedom, but only as cover for what is, in effect if not also in intention, a process of creating a faculty majority of underpaid, destabilized, contingent instructors for the least possible cost.
Holtschneider: “Yet, in practice, the NLRB proposes to decide which of our faculty are contributing to the religious mission of the institution, with a narrowness we reject, thereby ignoring Catholic universities’ explanation of the integrated function of faculty across the university.”
COMMENT 9: Rather, the recent NLRB decisions (e.g., Pacific Lutheran University) reject the notion that affiliation with a religious tradition is the same thing as being an institution of religious instruction in that tradition's doctrine. Adjuncts, by and large, are not hired for their knowledge of or faithfulness to religious doctrine, nor are students, by and large, admitted based on such knowledge or faithfulness, and so doctrine has very little to do with the specific and day-to-day operations of faculty or student work in the classroom.
Holtschneider: “The court’s precedent recognizes that it is up to the institution to determine and govern its mission.”
COMMENT 10: And if the institution is being as honest with itself as it is aggressive in its opposition to organizing efforts, it would recognize the chasm cleaved between such opposition and the morality and ethical position of its mission. Also: See comment 9....
Holtschneider: “Doubtlessly, some will argue that Catholic colleges and universities are merely hiding behind these arguments in order to resist the unionization of their faculties. Yet it is crucial for Catholic institutions to resist the NLRB’s assertion of authority in its attempt to get the power that the Supreme Court denied it in 1979. If the NLRB is able to subvert or reverse the court’s binding precedent, the consequences will be grave—not only for Catholics but also for all Americans.”
COMMENT 11: Slippery slope arguments are attractive for the powerful emotion they frequently seek to evoke [i.e., fear], but fall apart under even the most casual scrutiny. How exactly will Catholics or Americans be put in danger should adjuncts on religiously-affiliated campuses seek to or actually organize unions?