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CHRIST THE KING REGIONAL HIGH SCH. v. CULVERT

September 30, 1986.

CHRIST THE KING REGIONAL HIGH SCHOOL, Plaintiff,
v.
Edward R. CULVERT, individually and as Chairman of the New York State Labor Relations Board, and John J. Fanning, individually and as a member of the New York State Labor Relations Board, an agency of the Department of Labor of the State of New York, Defendants, and Lay Faculty Association, Local 1261, American Federation of Teachers, AFL-CIO, Intervenor.



The opinion of the court was delivered by: BRODERICK

MEMORANDUM ORDER

VINCENT L. BRODERICK, District Judge.

 Plaintiff Christ the King Regional High School ("Christ the King" or "the School") has moved for summary judgment pursuant to F.R.Civ.P. 56, seeking a declaratory judgment that defendant New York State Labor Relations Board ("SLRB") *fn1" cannot assert jurisdiction over the School and the lay teachers it employs, and a permanent injunction prohibiting the SLRB from asserting such jurisdiction.

 Defendant SLRB has cross-moved for summary judgment on the basis that the application of the New York State Labor Relations Act ("SLRA" or "the Act") to lay teachers in parochial schools violates neither the Free Exercise nor the Establishment Clauses of the First Amendment, and that the SLRB is not preempted by the National Labor Relations Act ("NLRA") from exercising jurisdiction over church-operated schools. The defendant-intervenor, the Lay Faculty Association, Local 1261 ("Association") has joined in the defendant's cross-motion.

 For the reasons that follow, I deny plaintiff's motion, grant defendant's cross-motion, and dismiss the complaint.

 I.

 Since this case has been submitted, the Supreme Court opinion has been rendered in Ohio Civil Rights Commission v. Dayton Christian Schools, Inc., 477 U.S. 619, 106 S. Ct. 2718, 91 L. Ed. 2d 512 (1986).

 In that case, Dayton Christian Schools, Inc. ("Dayton"), an elementary and secondary school which had been formed by two churches, sought to enjoin, on Free Exercise and Establishment Clause grounds, a pending state administrative proceeding against it.

 Each member of Dayton's staff was required to be a born-again Christian and to subscribe to various religious tenets. A teacher who had duly subscribed to those tenets was terminated, and filed a complaint with the state Civil Rights Commission, alleging sex discrimination. The Commission determined that there was probable cause to believe that the teacher was discriminated against on the basis of her sex. It initiated formal administrative proceedings when the school failed to respond, either by acquiescence or by counterproposal, to a proposed conciliation agreement and consent order.

 Dayton then sought, in federal court, "a permanent injunction of the state proceedings on the ground that any investigation of Dayton's hiring process or any imposition of sanctions for Dayton's nonrenewal or termination decisions would violate the Religion Clauses of the First Amendment." Id., 106 S. Ct. at 2722. The Commission moved to dismiss, urging abstention but also defending its action on the merits.

 The district court refused to issue an injunction, "on grounds that any conflict between the First Amendment and the administrative proceedings was not yet ripe, and that in any case the proposed action of the Commission violated neither the Free Exercise nor the Establishment Clause of the First and Fourteenth Amendments." Id., 106 S. Ct. at 2720. The Sixth Circuit reversed. It held that "the exercise of jurisdiction and the enforcement of the statute would impermissibly burden appellees' rights under the Free Exercise Clause and would result in excessive entanglement under the Establishment Clause." Id.

 The Supreme Court reversed, "holding that the District Court should have abstained under our cases beginning with Younger v. Harris, 401 U.S. 37 [91 S. Ct. 746, 27 L. Ed. 2d 669] (1971)." Id.

 On the authority of Dayton Christian Schools, Inc. I should therefore abstain from deciding the First Amendment issues, if a request for such abstention has been duly presented.

 While abstention is adverted to in SLRB's answer, it has not been urged in the argument with respect to these motions, except in a post-submission letter reference to the Dayton Christian Schools, Inc. case. I ...


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