E.E.O.C. v. KAMEHAMEHA SCHOOLS/BISHOP ESTATE, 990 F.2d 458 (9th Cir. 1993)
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, PLAINTIFF-APPELLANT, v. KAMEHAMEHA SCHOOLS/BISHOP ESTATE, DEFENDANT-APPELLEE.
No. 91-16586.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted November 5, 1992.
Decided March 31, 1993.
As Amended on Denial of Rehearing May 10, 1993.
Page 459
Samuel A. Marcosson, E.E.O.C., Washington, DC, for
plaintiff-appellant.
James Kawashima and Cynthia Winegar, Watanabe, Ing & Kawashima,
Honolulu, HI, for defendant-appellee.
Appeal from the United States District Court for the District
of Hawaii.
Before BROWNING, NORRIS and REINHARDT, Circuit Judges.
JAMES R. BROWNING, Circuit Judge:
[1] I. Overview.
[2] Bernice Pauahi Bishop was a member of the Hawaiian royal family
and, at the time of her death in 1884, the largest landowner in
Hawaii. Mrs. Bishop's will provided that the bulk of her estate
should be placed in a charitable trust "to erect and maintain in
the Hawaiian Islands two schools, each for boarding and day
scholars, one for boys and one for girls, to be known as, and
called the Kamehameha Schools." Mrs. Bishop's will also directed
that "the teachers of said schools shall forever be persons of
the Protestant religion."[fn1]
[3] Carole Edgerton, who is not a Protestant, contacted the Schools
to apply for an advertised position as a substitute French
teacher. Edgerton was informed of the Protestant-only requirement
and filed a charge of religious discrimination with EEOC. EEOC
attempted conciliation, but the Schools informed the Commission
they were bound by Mrs. Bishop's will.
[4] EEOC filed suit, alleging religious discrimination in
employment in violation of the Civil Rights Act of 1964,
42 U.S.C. § 2000e-2(a)(1).[fn2] The Schools conceded Mrs. Bishop's
will requires discrimination in employment contrary to §
2000e-2(a)(1), but sought to bring themselves within three
exemptions provided elsewhere in the Act: (1) § 2000e-1, which
provides that the equal employment provisions of the Act do not
apply to employment by a "religious . . . educational
institution" of individuals of a particular religion to carry on
its activities; (2) § 2000e-2(e)(1), which provides that "it
shall not be an unlawful employment practice for an employer to
hire and employ employees . . . on the basis of [] religion" if
religion is "a bona fide occupational qualification reasonably
necessary to the normal operation of that particular business or
enterprise;" and (3) § 2000e-2(e)(2), which provides that "it
shall not be an unlawful employment practice for a school . . .
to hire and employ employees of a particular religion . . . if
the curriculum of such school. . . . is directed toward the
propagation of a particular religion."
[5] The parties agreed to litigate the applicability of the three
exceptions before considering the merits of Edgerton's claim.
EEOC and the Schools filed cross-motions for summary judgment.
The district court found the Schools exempt on all three grounds.
EEOC v. Kamehameha Schools/Bishop
Page 460
Estate, 780 F. Supp. 1317 (D.Haw. 1991).
[6] Ordinarily, "[w]e review the district court's grant of summary
judgment de novo." EEOC v. Townley Eng. & Mfg. Co., 859 F.2d 610,
613 (9th Cir. 1988). However, here we are reviewing, at least
in part, conclusions of ultimate fact reached by a district court
when granting summary judgment in a non-jury case. We need not
decide whether a different standard of review applies with
respect to such conclusions; the result would be the same whether
we applied a de novo or clearly erroneous standard.
[7] We construe the statutory exemptions narrowly, Korherr v.
Bumb, 262 F.2d 157, 162 (9th Cir. 1958), and the Schools bear the
burden of proving they are exempt, see United States v. First
City Nat'l Bank, 386 U.S. 361, 366, 87 S.Ct. 1088, 1092, 18
L.Ed.2d 151 (1967) (party seeking benefit of exemption from
statute bears burden of proof); EEOC v. Boeing Co., 843 F.2d 1213,
1214 (9th Cir. 1988) (party seeking benefit of bona fide
occupational qualification exception bears burden of proof).
[8] We conclude the Schools failed to establish their entitlement
to any of the three exemptions claimed, and reverse.
[9] II. Exemption for Religious Educational Institutions.
[10] The district court weighed the religious characteristics of the
Schools against their secular characteristics and concluded the
Schools were exempt under § 2000e-1 as religious educational
institutions because the purpose and character of the Schools is
primarily religious.[fn3] 780 F. Supp. at 1324-26. In applying §
2000e-1 the district court adopted the approach approved by this
court in Townley, 859 F.2d at 618, of weighing "[a]ll
significant religious and secular characteristics . . . to
determine whether the corporation's purpose and character are
primarily religious." We reaffirm that approach. We differ from
the district court only in evaluating the facts of this case in
light of Congress' intention as to the scope of the exemption for
religious organizations.
[11] We stated in Townley that § 2000e-1 does not exempt an
institution that is "merely `affiliated' with a religious
organization." Id. at 617. We also observed, "Congress's
conception of the scope of [ § 2000e-1] was not a broad one. All
assumed that only those institutions with extremely close ties to
organized religion would be covered. Churches, and entities
similar to churches, were the paradigm." Id. at 618.[fn4] We
then held that, in determining whether an institution falls
within the limited exemption for religious institutions under §
2000e-1, "each case must turn on its own facts. All significant
religious and secular characteristics must be weighed to
determine whether the corporation's purpose and character are
primarily religious. Only when this is the case will the
corporation be able to avail itself of the exemption." 859 F.2d
at 618. "Our inquiry here," we said, "is to determine whether the
`general picture' of the institution is primarily religious or
secular." Id. at 619 n. 14.[fn5]
Page 461
[12] The ownership and affiliation, purpose, faculty, student body,
student activities, and curriculum of the Schools are either
essentially secular, or neutral as far as religion is
concerned,[fn6] and we conclude the general picture of the
Schools reflects a primarily secular rather than a primarily
religious orientation.
[13] 1. Ownership and Affiliation  No religious organization has
ever controlled or supported the Schools, and the Schools are not
affiliated with any denomination of Protestants or with any
organization or association of religious schools.[fn7] The
Schools are a part of the Bishop Trust, which is a large and
overwhelmingly secular business. Recent annual reports for the
Bishop Estate make no mention of religion. Recent annual reports
by the Schools to the trustees mention religion only as a form of
"ancillary support."[fn8]
Page 462
[14] 2. Purpose  In the advertisement for a substitute French
teacher that gave rise to this litigation, the Schools described
themselves as "Protestant." However, the record reveals the
purpose and emphasis of the Schools have shifted over the years
from providing religious instruction to equipping students with
ethical principles that will enable them to make their own moral
judgments. A 1955 School Survey Report lauded the "aim of
developing in the students an attitude of worship and reverence."
By 1961, the Schools' Introductory Pamphlet described religion as
"a powerful influence for the stabilizing of personality," and
asserted religious education at the Schools "seeks to provide an
atmosphere in which young people accept as their own the finest
ideals of conduct; and in cases where problems have arisen, to
show moral and spiritual standards by which the students can set
up inward guidance to correct their problems." The 1989-90 Course
Catalog states each student "will be expected to develop to the
best of his or her ability, skills needed to relate positively to
self and others, maintain health, continue learning, enrich
existence and participate in contemporary society for a rewarding
and productive life." Students should "[d]efine a system of
values which reflects positive feelings about self and others and
awareness of the rights and responsibilities of the individual
within society."[fn9]
[15] 3. Faculty  The Schools have consistently adhered to the
Protestant-only requirement for on-campus teachers, although
there is no religious requirement for teachers in off-campus
programs. Until 1988, the Schools required prospective teachers
to present a baptismal record or letter of membership reflecting
affiliation with a Protestant church, but now require only that
teachers certify their "membership in the Protestant religion."
The Schools have never required their teachers to maintain active
membership in a church, and do not inquire into the substance of
a teacher's beliefs or the extent to which teachers integrate
those beliefs into their work. Of the two hundred and fifty
full-time on-campus faculty members, only three, including the
Chaplain, have specific religious teaching duties. The Chaplain
teaches religious education and serves as pastor of the Bishop
Memorial Church, which is located on campus in a structure owned
by the Schools. With the exception of religious education, the
Chaplain has no authority over the curriculum.
[16] 4. Student Body  The Schools enroll more than 3,000 boarding
and day students in kindergarten through twelfth grade; more than
two-thirds of whom attend grades seven through twelve. The
Schools operate off-campus programs for more than 16,000
additional students and administer community outreach programs
for another 20,000 Hawaiians. The Schools do not consider the
religious affiliation of prospective students on or off campus,
or of the persons participating in outreach programs. Less than
one-third of the "on-campus" students are Protestants.
[17] 5. Student Activities  Students participate in a wide
variety of activities, including interscholastic athletics, canoe
and weightlifting clubs, the Future Secretaries Association, and
French Club. As at public and private schools across the nation,
students may participate in Bible studies, or become members of
the Fellowship of Christian Athletes and Young Life (an
inspirational society for high school students).
[18] Some official school activities have religious overtones.
Teachers in kindergarten through eighth grade lead their classes
in a daily prayer, and all boarders say grace before dinner.
Athletic teams pray before games, and the School's daily bulletin
usually reprints a Bible verse. The Bishop Memorial Church holds
services every Sunday during the school year which all boarding
students must attend (however, no students and only nineteen of
faculty were members of the church during the 1988-89 school
year). The Chaplain and the church coordinate "deputation teams"
of students
Page 463
from the Schools who lead services several times a year on
other islands, although the number of students and the number
of visits has decreased over the years. Other mandatory school
functions  such as Founder's Day, Baccalaureate, and Graduation
 include prayer and hymns in addition to celebrations
of Hawaiian culture. Another mandatory function  the Song
Contest  seeks "to build up the repertoire of the best in
Hawaiian music for the cultural heritage of any student who
attends Kamehameha."
[19] 6. Curriculum  The Schools describe themselves as "a
comprehensive school" with "programs in vocational, business, and
college preparatory fields." They offer a complete array of
courses in math, science, English, languages, and social studies,
all of which are taught from a secular perspective. No effort is
made to instruct students in Protestant doctrine, and the Schools
have explicitly disavowed any effort to convert non-Protestant
students. However, the Schools require each student to fulfill a
limited religious education requirement, as described below.
[20] Religious instruction in kindergarten through sixth grade is
provided by a religious education teacher and consists of Bible
stories, religious songs, and prayer for 15-30 minutes once a
week for one semester. The present teacher describes her work as
"an important opportunity to expose children to the Christian
faith. The emphasis is not on any `religion' but to teach the
basic truths about how God and through his son Jesus Christ
teaches us how to live a joyous and fulfilling life."
[21] Religious education in the upper grades exposes students to the
comparative study of religions, and to the place religion has
held in Hawaiian culture and history. Seventh and eighth graders
spend 10-14 hours a year in religious education classes. The
single course offered to seventh grade students is described as
involving an examination of "The Nature of `God,'" "The Nature of
Man," and "The Nature of Religion." The course description
defines "God" as "the center, focus and object of any belief
system, whether person, idea or spirit," and defines "religion"
as "a structure that attempts to overcome the separation between
Man and `God,' and to teach man how this can be achieved." The
eighth grade course explores the historical development and
beliefs of "Hinduism, Buddhism, Judaism, Christianity and Islam."
[22] High school students must complete the requirements of the
"Ekalesia" program, which includes coursework and mandatory
attendance at devotional services every other week.[fn10] In
1988-89, the course included study of "the Kumulipo, the Hawaiian
creation chant, . . . [with] a comparative look at the creation
chants of other religions," and an "historical study approach to
three major Christian faiths [Congregationalism, Catholicism, and
the Church of Jesus Christ of Latter-Day Saints] that have
impacted on the Hawaiian people and the Hawaiian society today."
In 1987-88 students studied "the Hawaiian and Christian heritage"
of the Schools, and examined "the Congregational missionaries and
their impact upon the life and culture of the Hawaiian Kingdom."
In addition to "Ekalesia," the Schools offer high school students
an elective class on the Bible as literature.
* * * * * *
[23] In sum, the religious characteristics of the Schools consist of
minimal, largely comparative religious studies, scheduled prayers
and services, quotation of Bible verses in a school publication,
and the employment of nominally Protestant teachers for secular
subjects. References to Bible verses, comparative religious
education, and even prayers and services are common at private
schools and cannot suffice to exempt such schools from § 2000e-1;
the addition of nominally Protestant teachers does not alter this
conclusion. We conclude the Schools are an essentially secular
institution operating within an historical tradition
Page 464
that includes Protestantism, and that the Schools' purpose and
character is primarily secular, not primarily religious.[fn11]
[24] III. Religious Curriculum Exemption.
[25] The curriculum exemption in 42 U.S.C. § 2000e-2(e)(2) provides:
it shall not be an unlawful employment practice for a
school . . . to hire and employ employees of a
particular religion . . . if the curriculum of such
school . . . is directed toward the propagation of a
particular religion.
[26] The district court ruled the Schools satisfied the requirements
of this section because "`religion . . . is an integral part of
the child's daily life'" at the Schools. 780 F. Supp. at 1327
(quoting EEOC Decision 75-186 (1975), reprinted in 1983 EEOC
Decisions ¶ 6553, at 4356).
[27] We turn first to the language of § 2000e-2(e)(2). The statute
does not define "propagate" or "curriculum," but in the context
of § 2000e-2(e)(2) and in light of their ordinary meanings,
"propagate" carries at least the general meaning of spreading or
instilling particular religious values, while "curriculum" is
limited to coursework and required school activities.[fn12]
[28] Sec. 2000e-2(e)(2) was added to the statute by floor amendment;
its legislative history is limited and does not change our
understanding of the meaning of the term "religious curriculum."
Representative Purcell offered the amendment and stated it was
"limited to church affiliated colleges and universities, part of
whose mission . . . is to propagate the belief of the
denomination that is supporting that educational institution."
110 Cong.Rec. 2585-86 (Feb. 8, 1964), reprinted in EEOC,
Legislative History of Titles VII and XI of Civil Rights Act of
1964 3198 (1968). Representative Roush declared such a school
"should have the right to compel the individuals it employs to
adhere to its beliefs, for that [school] exists to propagate and
to extend to the people with whom it has influence its
convictions and beliefs." Id. at 2587, Legislative History at
3201. Representative Edmondson indicated the exemption was
intended to apply to "a college that is dedicated primarily to
the propagation of its faith." Id. at 2590, Legislative
History at 3206. Although these comments do not address the
meaning or scope of the curriculum exemption directly, they are
consistent with our conclusion that Congress did not anticipate
schools that disavow any effort to instill particular religious
beliefs in their students would come within the exemption.
[29] There is no case law on the curriculum exemption. EEOC has
interpreted the provision in only one ruling, EEOC decision
75-186, reprinted in 1983 EEOC Decisions ¶ 6553. This decision
rested primarily on the ground the school involved was wholly
owned, supported, controlled, and managed by a church and
therefore was expressly exempt under § 2000e-2(e)(2) whether or
not it also fell within the curriculum exemption.[fn13] The
opinion's limited references to the curriculum exemption are not
inconsistent with our own understanding that application of this
exemption is to be determined by an essentially fact-based
inquiry into the extent to which a school's curriculum reflects
an effort to spread and inculcate particular religious beliefs.
Page 465
[30] As we have noted, the curriculum of the Schools has little to
do with propagating Protestantism, especially in grades 7-12.
Seventh and eighth grade students study the nature of religious
belief and the tenets of major faiths, and high school students
take a one quarter course exploring the interrelationship of
western religions and Hawaiian culture, but efforts to propagate
Protestantism are not evident in this or any other coursework or
in required activities of the Schools. Courses about religion
and a general effort to teach good values do not constitute a
curriculum that propagates religion, especially in view of the
Schools' express disclaimer of any effort to convert their
non-Protestant students. The Schools' publications demonstrate
religion is more a part of the general tradition of the Schools
than a part of their mission, and serves primarily as a means for
advancing moral values in the context of a general education.
[31] IV. Bona Fide Occupational Qualification.
[32] The district court concluded that adherence to the Protestant
faith was a bona fide occupational requirement for teaching at
the Schools and therefore the Schools were exempt under §
2000e-2(e)(1).[fn14]
[33] EEOC and the Schools stipulated there is nothing "specific
about the subject matter of any given teacher position . . . that
would make a teacher being Protestant a bona fide occupational
qualification" [BFOQ].[fn15] EEOC claims this stipulation is
dispositive in light of the holding in U.A.W. v. Johnson
Controls, Inc., 499 U.S. 187, 111 S.Ct. 1196, 113 L.Ed.2d 158
(1991), that to qualify as a BFOQ a discriminatory job
qualification must "affect an employee's ability to do the job,"
and "must relate to the `essence' or to the `central mission of
the employer's business.'" Id. 499 U.S. at ___, 111 S.Ct. at
1205 (citations omitted). The Protestant-only requirement, EEOC
argues, has no relationship to a teacher's ability to perform the
job of teaching secular subjects  in this case, the French
language.
[34] The district court held the requirement related to the
teachers' ability to perform their job because "the essence or
central mission of [the Schools] is to provide native Hawaiians
with an education from the Protestant point of view. . . .
Similarly, the essence or central mission of the teachers' jobs
is to provide that viewpoint." 780 F. Supp. at 1323. The district
court defined the central mission of the Schools too narrowly.
The record demonstrates the Schools have embraced a broad mandate
to help native Hawaiians "participate in contemporary society for
a rewarding and productive life" by providing a solid education
in traditional secular subjects, instruction in Hawaiian culture
and history, and the moral guidance necessary to help students
"[d]efine a system of values."[fn16] The requirement of
Protestant affiliation in a teacher's past is largely irrelevant
to this mission. There is no basis in the record for
Page 466
concluding a nominally Protestant teacher will provide superior
instruction or serve as a better moral guide to students. See
Johnson Controls, 499 U.S. at ___, 111 S.Ct. at 1205 (employer
must show "a high correlation" between a qualification and ability
to perform job functions).
[35] Except for the Schools' religious education teachers (as to
whom Protestant affiliation is conceded to be a BFOQ), teachers
at the Schools provide instruction in traditional secular
subjects in the traditional secular way. There is nothing to
suggest that adherence to the Protestant faith is essential to
the performance of this job. Teachers in kindergarten through
eighth grade lead their classes in prayer, but there is no
evidence the Schools review the content of the prayer for
conformity to Protestant doctrine or that non-Protestants are not
qualified to lead students in prayer. The Schools also expect
teachers to serve as role models and provide general instruction
in morals, but they do not review or inquire into their teachers'
personal religious life or general moral principles, and do not
inquire whether the teachers integrate Protestantism into their
teaching. The Schools identify no skills or aptitudes which
persons affiliated with the Protestant tradition possess as a
class that are essential to the performance of those job
functions. Moreover, the record indicates the Protestant
affiliation requirement is nominal  if a prospective teacher
represents he or she is Protestant, the prospective teacher is
presumed able to lead prayers and serve as a moral role
model.[fn17]
[36] The Schools rely on the Seventh Circuit's decision in Pime v.
Loyola Univ. of Chicago, 803 F.2d 351 (7th Cir. 1986), a case
decided before Johnson Controls, to argue the Protestant-only
requirement relates to the "essence" of the Schools because it is
necessary to creation of a "Protestant presence" on campus. The
district court agreed, holding "the `Protestant presence' is
significant to the educational and normal operation" of the
Schools. 780 F. Supp. at 1321.
[37] EEOC contends Pime is inconsistent with Johnson Controls.
Even if Pime were an accurate statement of the law in light of
Johnson Controls, however, it could not bear the weight the
Schools would have it carry. Pime approved a Jesuit "presence"
of four positions in the Philosophy Department of Loyola
University, a school with "a long Jesuit tradition" and a largely
Catholic student body. Id. at 352. The court focused on the
tradition and character of the school and the desire of
administrators "`that students would occasionally encounter a
Jesuit.'" Id. at 354 (emphasis added). The court stated it was
"wholly reasonable to believe that the educational experience at
Loyola would be different if a Jesuit presence were not
maintained." Id.
[38] In this case, the Schools will have a Protestant "presence"
equal to or greater than the Jesuit "presence" at Loyola even if
the proportion of Protestants on the faculty falls well below one
hundred percent, and there is no indication the educational
experience at the Schools will be any different if some of the
teachers are not Protestants. Moreover, the Schools seek to
retain a wholly Protestant faculty at a school whose student body
has a majority of non-Protestant students and whose tradition and
character is rooted more in Hawaiian history and culture than in
specific principles of Protestantism.
[39] The fact that the Protestant-only requirement appears in Mrs.
Bishop's will cannot in itself alter the result. Cf. Rosenfeld
v. Southern Pacific Co., 444 F.2d 1219, 1225-26 (9th Cir. 1971)
(compliance with state law does not transform a discriminatory
practice into a BFOQ). The will does not establish a religious
school, nor stipulate any relevant qualifications Protestant
teachers would bring to teaching positions at the Schools. The
will suggests only that Mrs. Bishop was stating a personal
preference based on her own experience in missionary schools.
This kind of personal preference
Page 467
is not a BFOQ when expressed by a living employer, and there is
no reason to reach a different conclusion because the preference
is expressed posthumously.[fn18]
[40] Reversed and remanded for entry of partial summary judgment in
favor of EEOC. Each side will bear its own costs of appeal.
[fn1] The provision reads:
I give, devise and bequeath all of the rest, residue
and remainder of my estate . . . unto the trustees
below named . . . to erect and maintain in the
Hawaiian Islands two schools, each for boarding and
day scholars, one for boys and one for girls, to be
known as, and called the Kamehameha Schools. . . . I
direct my trustees . . . to expend the annual income
in the maintenance of said schools . . . and to
devote a portion of each year's income to the support
and education of orphans, and others in indigent
circumstances, giving the preference to Hawaiians of
pure or part aboriginal blood. . . . I desire my
trustees to provide first and chiefly a good
education in the common English branches, and also
instruction in morals and in such useful knowledge as
may tend to make good and industrious men and women;
and I desire instruction in the higher branches to be
subsidiary to the foregoing objects. . . . I also
give unto my said trustees full power to make all
such rules and regulations as they may deem necessary
for the government of said schools and to regulate
the admission of pupils. . . . I also direct that the
teachers of said schools shall forever be persons of
the Protestant religion, but I do not intend that the
choice be restricted to persons of any particular
sect of Protestants.
[fn2] 42 U.S.C. § 2000e-2(a)(1) provides:
It shall be an unlawful employment practice for an
employer . to fail or refuse to hire or to discharge
any individual, or otherwise to discriminate against
any individual with respect to his compensation,
terms, conditions, or privileges of employment,
because of such individual's race, color, religion,
sex, or national origin[.]
[fn3] 42 U.S.C. § 2000e-1 reads:
This subchapter shall not apply to an employer with
respect to the employment of aliens outside any
State, or to a religious corporation, association,
educational institution, or society with respect to
the employment of individuals of a particular
religion to perform work connected with the carrying
on by such corporation, association, educational
institution, or society of its activities. (emphasis
added)
[fn4] Specific exemptions for schools owned, supported,
controlled, or managed by a particular religion, or whose
curricula are dedicated toward the propagation of a particular
religion were included in the original statute because of the
perceived narrowness of the exemption for religious corporations
in § 2000e-1. See 42 U.S.C. § 2000e-2(e)(2); Townley, 859
F.2d at 617.
[fn5] Townley relied in part on an examination of the
legislative history of the original version of § 2000e-1, which
contained separate exclusions for (1) religious discrimination
relating to the religious activities of a religious corporation,
association, or society, and (2) discrimination on any basis
relating to the educational activities of an educational
institution. Townley did not discuss the legislative history of
the 1972 amendments to § 2000e-1, which eliminated the separate
exemption for educational institutions, added "religious . . .
educational institutions" to the list of exempt religious
organizations, and expanded the religious exemption to include
employees engaged in non-religious activities. However, nothing
in the 1972 legislative history causes us to question the
approach the court adopted in Townley. These materials suggest
only that Congress felt strongly that the exemption that had been
available to all educational institutions should be narrowed to
religious discrimination by religious educational institutions,
but that religious institutions, including religious schools,
should be allowed to discriminate on the basis of religion in all
their activities. See, e.g., H.Rep. No. 238, 92nd Cong., 1st
Sess. (1971), reprinted in 1972 U.S.C.C.A.N. 2137, 2155, and
Bureau of National Affairs, The Equal Employment Opportunity Act
of 1972 155, 173 (1973); S.Rep. No. 415, 92nd Cong., 1st Sess.
(1971), Equal Employment Opportunity at 225, 235-36; 118
Cong.Rec. 946 (Jan. 24, 1972) (statement of Sen. Allen, sponsor of
amendment to allow religious organizations to discriminate on
basis of religion in all their activities), Equal Employment
Opportunity at 335; id. at 4941 (Feb. 22, 1972) (section by
section analysis of Senate bill by Sen. Williams, sponsor of the
bill), Equal Employment Opportunity at 314. It would frustrate
this purpose in part to allow educational institutions with
limited religious ties to gain exemption as "religious
educational institutions."
In any event, the test the court adopted in Townley does not
depend on an analysis of legislative history. Although the
statute does not define the term "religious educational
institution," it is clear from its context that, at least where
the school is not owned by a church, the courts must determine in
each case whether a particular educational institution is a
religious organization. Therefore the case by case inquiry
described in the text is the appropriate method for determining
whether § 2000e-1 applies to the Schools.
[fn6] The record does not disclose many details about the
administration of the Schools. Mrs. Bishop's will requires that
the trustees be Protestants, and grants the power of appointing
them to the justices of the Hawaii Supreme Court. There is no
requirement that other administrative positions be filled by
Protestants, and there is nothing in the record to indicate that
the Schools' administration reflects a Protestant perspective, or
has organized the Schools so as to promote Protestant beliefs.
Indeed, the record reveals recent generations of administrators
have shifted the focus of the Schools away from promoting
religion.
[fn7] The Schools maintain a cooperative relationship with the
Bishop Memorial Church, which receives financial support from the
Bishop Estate and is a member of the Hawaii Conference of the
United Church of Christ. However, the Schools themselves are not
affiliated with the Church of Christ, and the parties stipulated
that no Protestant denomination, including the Church of Christ,
"owns, supports, controls or manages, in whole or significant
part, the Bishop Estate or the Kamehameha Schools."
In view of the narrow reach of the § 2000e-1 exemption, it is
not surprising that we have found no case holding the exemption
to be applicable where the institution was not wholly or
partially owned by a church. See Little v. Wuerl, 929 F.2d 944
(3d Cir. 1991) (parochial school operated by parish); EEOC v.
Fremont Christian School, 781 F.2d 1362 (9th Cir. 1986) (school
wholly owned and operated by Assembly of God Church); Rayburn v.
Gen. Conf. of Seventh Day Adventists, 772 F.2d 1164 (4th Cir.
1985) (sex discrimination by a church); EEOC v. Pacific Press
Pub. Ass'n, 676 F.2d 1272 (9th Cir. 1982) (affiliated with and
overseen by Seventh Day Adventist Church; published only
religious materials); EEOC v. Southwestern Baptist Theological
Seminary, 651 F.2d 277 (5th Cir. Unit A 1981) (owned and
operated by Southern Baptist Convention); EEOC v. Mississippi
College, 626 F.2d 477 (5th Cir. 1980) (owned and operated by
Mississippi Baptist Convention); see also Fike v. United
Methodist Children's Home of Va., Inc., 547 F. Supp. 286 (E.D.Va.
1982) (exemption does not apply because the home had abandoned
its sectarian orientation and become a secular organization even
though it was affiliated with the Methodist Church).
[fn8] Because the Schools are chartered as a non-profit
educational institution, not as a religious organization, EEOC
argues the Schools represent themselves as secular to receive
federal funding for off-campus programs. Congress apparently did
not intend that an institution's charter should carry much weight
in determining whether an institution is religious. See 110
Cong.Rec. 2585 (Feb. 8, 1964) (statement of Rep. Purcell) ("most
church-related schools are chartered under the general
corporation statutes as nonprofit institutions for the purpose of
education"), reprinted in EEOC, Legislative History of Titles
VII and XI of Civil Rights Act of 1964 3197 (1968); see also
Pime v. Loyola Univ. of Chicago, 803 F.2d 351, 358 (7th
Cir. 1986) (Posner, J., concurring).
[fn9] We discuss the purpose of the Schools in further detail in
section IV, infra.
[fn10] In 1988-89, students were expected to complete one quarter
of Ekalesia coursework each year. The Schools modified the
coursework component in 1989-90 so that only freshmen were
required to complete one quarter of coursework, although all
students were still required to attend devotions. The record does
not disclose the form or content of the devotional services.
[fn11] The Schools contend we should consider prior decisions by
EEOC regional offices not to charge the Schools with religious
discrimination. However, the Schools concede these decisions do
not estop EEOC, and there is no indication the regional offices
had the benefit of the record compiled during this litigation.
[fn12] Webster's Ninth New Collegiate Dictionary (1990) defines
"curriculum" as "the courses offered by an educational
institution" or "a set of courses constituting an area of
specialization." The Oxford English Dictionary (2d ed. 1989)
defines it as "a regular course of study or training, as at a
school or university." Webster's defines "propagate" as, "to
cause to spread out and affect a greater number or greater area."
The Oxford English Dictionary defines it as, "To extend . . . To
spread from person to person, or from place to place; to
disseminate, diffuse."
[fn13] 42 U.S.C. § 2000e-2(e)(2) also provides an exemption for
religious discrimination by an educational institution that is
"in whole or substantial part, owned, supported, controlled, or
managed by a particular religion or by a particular religious
corporation, association, or society." The Schools do not contend
they come within this exemption.
[fn14] 42 U.S.C. § 2000e-2(e)(1) reads in part:
Notwithstanding any other provision of this
subchapter, it shall not be an unlawful employment
practice for an employer to hire and employ employees
. . . on the basis of [] religion . . . in those
certain circumstances where religion . . . is a bona
fide occupational qualification reasonably necessary
to the normal operation of that particular business
or enterprise.
[fn15] The stipulation reads:
[The Schools] contend [] that the Will of Mrs. Bishop
by its language creates a bona fide occupational
qualification for all teachers to be of the
Protestant religion in order that there be a
Protestant presence at Kamehameha Schools. [The
Schools are] not contending that, apart from their
status as teachers generally, there is anything
specific about the subject matter of any given
teacher position (such as English, science,
mathematics) . . . that would make a teacher being
Protestant a bona fide occupational qualification
within the meaning of this exemption.
EEOC concedes that being Protestant is a bona fide occupational
qualification for the Chaplain, Associate Chaplain, and religious
education teachers.
[fn16] This description of the Schools' purpose is consistent
with Mrs. Bishop's desire that the Schools "provide first and
chiefly a good education in the common English branches, and also
instruction in morals and in such useful knowledge as may tend to
make good and industrious men and women." See note 1, supra.
[fn17] The Schools do not apply the Protestant-only requirement
to teachers in programs receiving federal funding, although the
source of funding has no apparent relationship to the qualities
required to teach such courses.
[fn18] We also reject the suggestion that Mrs. Bishop's will
creates a BFOQ because failure to comply with its provisions may
violate Hawaii law and void the trust. Hawaii courts approved the
merger of the separate boys and girls schools established by the
will because a change in circumstances warranted a departure from
the will. Collins v. Tavares, 37 Haw. 109 (1945); see also
Murray v. Kobayashi, 50 Haw. 104, 106, 431 P.2d 940 (1967)
("Mrs. Bishop did not direct the trustees to establish religious
schools"). These cases suggest Hawaii courts would also approve
an involuntary departure from the Protestant-only requirement to
comply with Title VII.
