October 24, 2012
Last month we were contacted by the plaintiff in a particularly interesting case involving tenure at a religious institution. While we don't ordinarily want to be a forum for disappointed litigants, the decision in Kant v. Lexington Theological Seminary by the Kentucky Court of Appeals is pretty interesting. Essentially, the issue was the effect of a declaration of financial exigency on tenure rights, with the twist that the tenure-granting institution was a seminary. The outcome was adverse to the plaintiff and, although the issues in the cases are very different, it's interesting that this is the second decision in the last few months that seem to undercut the historic protections of academic tenure. The earlier case was, of course, the Sixth Circuit's decision in Branham v. Thomas Cooley, which basically held that tenure at that law school meant a one-year contract.
Although given the Supreme Court's recent decision in Hosanna-Tabor, one might have expected deference to a religious-oriented employer, particularily a seminary, it's also true that the LTS case was one in which the problems of entanglement were at a minimum -- the issue was whether the tenure contact allowed for financial exigency modification and the ministerial exception was not obviously apposite since a contract right was at stake and Professor Kant was a Jewish faculty member at a Christian school -- not exactly the sort of "minister" involved in Hosanna-Tabor.
Nevertheless, the appellate court had little trouble in concluding that it could not resolve the dispute without intruding too far into church matters. The decision suggests that, despite the Supreme Court's refusal in Hosanna-Tabor to opine as to the effect of the now-established "ministerial exception" on tort or contract cases, the doctrine is likely to continue to expand. Further, Kant suggests the strong possibility of the expansion without regard to traditional concerns about avoiding court entanglement with religion.
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