CAS Legal Mailbag ' 11/10/22

• Published date: 14 November 2022
• Subject Matter: Employment and HR, Consumer Protection, Discrimination, Disability & Sexual Harassment, Employee Rights/ Labour Relations, Education
• Law Firm: Shipman & Goodwin LLP
• Author: Mr Thomas B. Mooney

Dear Legal Mailbag:

I am a middle school principal, and recently I had an issue with our lost-and-found. (As a side note, I am constantly amazed at how a student can lose one shoe or a pair of pants - but I digress). One of my school counselors has volunteered to manage the lost and found. She keeps it organized and sends a picture home weekly to parents. In running the lost-and-found, this school counselor has an arrangement with a Christian Ministry organization to donate the clothes to that organization, which has been a long-time donor of feminine hygiene products to us.

The counselor recently made a post indicating where the items were going. Shortly thereafter, I had a teacher approach me with a complaint that we shouldn't be working with a religious organization and how offensive she found it. I indicated that we weren't doing anything more than making a donation to an organization that makes donations to us. I also said I would be happy to allow someone else to volunteer to run the lost and found, to do the work, and to identify an alternative organization to provide donations.
Am I wrong on this?

Signed,
What Should I Do?

Dear What:

Recent decisions of the United States Supreme Court have made it clear that public agencies should not discriminate against organizations simply because they are religious in nature. Accordingly, the teacher's objection is groundless, and ending the donations from the lost-and-found to the Christian Ministry at this point could expose you to a claim of illegal discrimination on the basis of religion.

Starting in 2017, the Court has ruled three different times that exclusion of religious organizations from government programs simply because of their religious nature is a violation of the Free Exercise Clause. In Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. __, 137 S. Ct. 2012 (2017), for example, a preschool and daycare center affiliated with a church applied for a grant to replace the pea gravel on its playground under a state grant program. When the State of Missouri rejected the application solely because the center was affiliated with a church, the center sued. The district court and the Eighth Circuit ruled in favor of Missouri, but the United States Supreme Court reversed. Writing for the majority, Chief Justice Roberts reviewed the history of cases requiring neutral treatment toward religious entities, and wrote, "The Free Exercise Clause 'protect[s] religious observers against unequal...