Missing God in Some Things: The NLRB’s Jurisdictional Test Fails to Grasp the Religious Nature of Catholic Colleges and Universities

Abstract

The National Labor Relations Board (NLRB) uses a substantial religious character test to determine whether it is authorized to exercise jurisdiction over faculty labor relations at religiously affiliated colleges and universities. Under the NLRB’s test, a school is not considered religious unless it makes religious indoctrination one of its primary purposes, denies faculty members academic freedom, and discriminates based on religion when hiring faculty and admitting students. Such an approach fails to recognize the religious nature of Catholic institutions of higher learning, which carry out their religious missions precisely by avoiding religious indoctrination, granting faculty academic freedom, and welcoming faculty and students of all faiths. Underlying the NLRB’s test is the understanding that church-state entanglement concerns are not present when faculty members do not play a role in carrying out their school’s religious mission. Thus, this Note proposes a new jurisdictional test that evaluates whether faculty play such a role. Under this proposed test, the NLRB would not be authorized to exercise jurisdiction only if the college holds itself out as religious and requires its faculty to carry out its religious mission.