Story originally printed in the La Crosse Tribune or online at www.lacrossetribune.com

Published - Friday, April 18, 2008

Court refuses to give Coulee Catholic Schools immunity in lawsuit

By The Associated Press

MADISON — A Wisconsin appeals court refused Thursday to give Coulee Catholic Schools immunity from an employment-related claim filed by a former Onalaska teacher.

The District 4 Court of Appeals upheld La Crosse Circuit Judge Dale Pasell’s 2007 decision, which dismissed CCS’ defense to an age discrimination lawsuit filed by then 53-year-old Wendy Ostlund.

After her teaching contract wasn’t renewed in 2002 at St. Patrick’s Elementary School, Ostlund, who had taught at the school for 28 years, filed an age discrimination complaint with the state Equal Rights Division, seeking reinstatement and back pay.

CCS argued its First Amendment right to the free exercise of religion barred state agencies from ruling on employment complaints such as age, gender or racial discrimination, saying those actions limit the church’s power to choose its own spiritual leaders.

But the District 4 Court of Appeals declined to extend a blanket “ministerial exception” to Catholic school teachers.

“A general exemption for teachers in religious schools would be more expansive than warranted when considered in light of the magnitude of the state’s interest in the enforcement of anti-discrimination laws,” Judge Margaret Vergeront wrote for a unanimous three-judge panel.

James Birnbaum, a La Crosse lawyer representing the schools, said the decision would allow courts and administrative agencies to infringe on the Catholic church’s freedom of religion.

“The court is somehow saying they have a right to tell the Catholic church who should teach and who should be its ministers,” he said. “I can’t imagine a more intrusive action.”

The diocese claimed Ostlund was let go because she had a degree in physical education, not elementary education, and was not certified to teach first grade. But it also argued the constitutional protection for religion barred the division from considering her claim.

The diocese said the state has no jurisdiction over Catholic school teachers who carry out the pastoral mission of the church and incorporate Catholic values into their teachings.

The court disagreed, saying Ostlund’s primary duties did not involve matters of faith. She taught religion, led students in prayer and planned liturgies but her main responsibilities included teaching secular subjects, the court said.

“We are persuaded that a bar to adjudication of Ostlund’s discrimination claim is not warranted based on the nature of her position,” Vergeront wrote.

Birnbaum said he would likely recommend the diocese appeal to the Wisconsin Supreme Court. The appeals court had asked the high court last year to review the case because of its statewide significance, but justices declined.

Many Catholic schools have long considered teachers, particularly at the elementary school level, to be “ministers of the word,” Birnbaum said.

“It’s where children are initially taught the tenets of the Catholic faith,” he said. “To suggest that was not even a primary duty, what indeed is the purpose of a Catholic school at all?”

Ostlund’s attorney, Dawn Marie Harris, could not be reached for comment.

Tribune correspondent Kevin Murphy contributed to this report.