Pierce v. Society of Sisters and Diminishing Protections for Teachers at Religious Schools

Whittney Barth*

Pierce’s legacy is at once far-reaching and narrow. Far-reaching in the sense that Pierce has been cited affirmatively in cases involving third-party standing in several contexts and in the Court’s substantive due process jurisprudence. Narrow in the sense that the focus on parental rights sidestepped an opportunity to build on the Court’s decision in Meyer v. Nebraska, which interpreted the Fourteenth Amendment broadly in a case involving the rights of both parents and teachers. This Article argues that this decision has had implications for teachers at religious schools, especially when their interests may not be aligned with those of their employer, such as in more modern controversies around union formation and the application of the ministerial exception in employment discrimination suits. The Court has tended to place religious teachers on a pedestal for what they represent for their employers while, at the same time, finding that laws passed to protect workers cannot reach them for the very same reasons, arguably placing these teachers in a kind of “sacred double bind.”

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*Associate Teaching Professor, Emory University School of Law; Executive Director and Charlotte McDaniel Scholar, Center for the Study of Law and Religion, Emory University. I am grateful to my Center colleagues for their feedback on an earlier version of this Article during a CSLR monthly work-in-progress session. I would also like to thank Notre Dame Law Review Editor-in-Chief Alicia Armstrong, Managing Symposium Editor Olivia Lyons, Senior Symposium Editor Blake Savidge, and Managing Senior Editor Laura Li for their leadership and editorial assistance. Thanks also to Melissa Moschella for her collaboration on proposing Pierce at 100 to Notre Dame Law Review as a Symposium topic. Views (and any errors) are my own and should not be attributed to the Center or to Emory University.