Will your child be attending a private, faith-based school in Texas this fall? In light of a recent decision by the Texas Supreme Court, you may want to rethink that plan.

The Texas Supreme Court made a decision this past week that could adversely affect the lives of thousands of children across the state. In the John Doe vs. Episcopal School of Dallas case, the justices refused to consider a harmful ruling issued by a lower appellate court. The ruling allows a faith-based school to avoid civil liability for harming a child in its care. In other words, Texas parents may have just lost their right to sue a faith-based school their children are enrolled in, even if those children were abused by school staff.

The case involves a child who was expelled from the Episcopal School of Dallas for allegedly smoking marijuana off campus. Since the expulsion was in violation of the contract between the school and parents, the father sued ESD for breach of contract, fraud, and other claims. ESD filed a motion claiming that, under the First Amendment,  it was immune from being sued and sought special review in the Fifth Circuit Court of Appeals in Dallas. (The trial court rejected ESD’s argument.) The appeals court agreed with ESD’s claim that the father had no right to take the school to court. Its reasoning came down to one simple truism: ESD claimed to be a “faith-based” institution.

In ruling against the father, the appeals court relied upon what’s known as the  “ecclesiastical abstention doctrine,” of the First Amendment which, heretofore, has given churches and schools that provide a divinical education latitude in how they handle “internal affairs,” such as termination of membership or employees. But in the ESD case, the appeals court applied the doctrine so broadly as to determine that ESD could ignore the written contracts it had with parents and avoid liability for its harmful conduct, all because ESD claimed itself to be faith-based.

Furthermore, in circumventing the trial court and taking the case to the appeals court, ESD was able to prevent key facts of the case from coming to light. For example, the appellate court was not presented evidence that a drug test had exonerated the student from the drug use allegation, that the expulsion was unfairly  targeting the student to protect the reputation of the head of school, and that the student was emotionally traumatized by the school’s arbitrary action, given that he was grieving the recent death of his mother.

On June 22, the Texas Supreme Court refused to review the case, thereby allowing the lower court’s draconian decision to stand. The net result is that Texas private schools that purport to have a religious affiliation can now cite this ruling and claim that they are exempt from a jury’s or judge’s review of any decision relating to student life.  All such decisions could be considered to be part of such schools’ “internal affairs”—even when those schools engage in egregious conduct, such as abusive discipline or failing to protect a child who’s been sexually abused by a staff member.

The Child-Friendly Faith Project, which filed an amicus brief in the ESD case, is aware of countless cases in which a court decides that the First Amendment rights of a religious organization supersede the rights of children, but this is the most egregious example we’ve encountered in recent years. (Ironically, ESD was involved in another troubling case, one in which a jury ruled against the school: in 2011, ESD was ordered to pay $9 million to a female student who had been expelled after having been sexually abused by an ESD staff member.)

As fall approaches, the Texas Supreme Court decision should make parents across the state think seriously about whether to enroll their children in private, religious institutions. The Texas courts have sent a dangerous message: that it’s acceptable for faith-based schools in the Lone Star State to operate virtually free of accountability. We have no doubt that this decision will leave students extremely vulnerable and parents helpless to protect their children if they are harmed while under the care of those schools.

Addendum: The Texas Supreme Court ultimately refused to take up the case which was covered by a local Fox News affiliate and D Magazine. This op-ed written by Janet Heimlich was published in the Houston Chronicle.

Janet Heimlich is the founder of the Child-Friendly Faith Project and the author of Breaking Their Will: Shedding Light on Religious Child Maltreatment. She can be reached at jheimlich@childfriendlyfaith.org.

Janet Heimlich is the founder of the Child-Friendly Faith Project, a national, nonprofit 501(c)(3) public charity that raises awareness of religious child maltreatment. Ms. Heimlich is also an award-winning journalist and the author of "Breaking Their Will: Shedding Light on Religious Child Maltreatment" (Prometheus Books), the first book to take an in-depth look at child abuse and neglect that is enabled by religious belief. For eight years, Janet freelanced as a reporter for National Public Radio. She also writes non-fiction articles for such publications as Texas Monthly, the Austin American-Statesman, and the Texas Observer. Janet has won nine journalism awards, including the Dallas Press Club’s Katie, the Houston Press Club’s “Radio Journalist of the Year,” and the Texas Bar Association’s Gavel Award. Janet received a B.A. in Communications with a minor in English from Stanford University in 1984.

5 Comments

  1. Sean
    July 4, 2018
    Reply

    Well, a couple things to bear in mind about this article …

    This was not a situation where a staff member physically abused a child and was able to escape legal responsibility for it. In fact, quite the opposite. The student was accused of breaking the law off campus and the school took action to remove the child from their student body population. Which schools can do, whether they are private or public. In this case, the child was accused of smoking marijuana off campus, and the school chose to remove the child from their student population. They are well within their rights to do that, whether it’s a private school or public school.

    The Supreme Court of Texas did not actually issue a ruling in this case, it just declined to review a decision made by lower court. That’s important because it basically says that there are respecting the decision made by that court for that one particular case. It does not set a precedent for any other cases whatsoever.

    This is a case where the child was accused of smoking marijuana off campus and got expelled. It happens every day in Texas. Kids get in fights or they smoke weed or they go steal something or they do some type of criminal law violation… And the Texas Education Code is very clear on what school districts can do and school institutions are capable of doing what a student commits a crime. This is not a case where one of the staff members actually abused a child and was able to escape punishment or liability. In fact, the article mentions a case from years ago where a staff member did sexually abused one of the students and the school was held extremely liable to the tune of nine million dollars. So, the article is 100% wrong when they say that you are forgoing your right to hold a school liable in court if they injure your child.

    So the author of the article is actually being pretty misleading. This “decision” is actually not a decision. A decision in legal terms is when judges review a case and come to a determination and issue a ruling of some kind. In this situation the Supreme Court just declined to review the case that had already been handled by a lower court. Basically they’re saying that if you smoke weed the school can kick you out. And the school has a code of conduct that clearly says that that type of behavior is not to be tolerated. The child didn’t actually suffer any damage.

    And so when the title says that parents should rethink enrolling their children in faith-based schools across the entire state of Texas, that’s blowing it way out of proportion. This is it case where one kid was accused of smoking weed off campus and got kicked out of school.

    If I was the author of the article I would be more concerned about putting out accurate articles that document actual physical abuse that takes place. Instances of actual abuse are things that really are high priority. A situation where a kid allegedly smokes weed off campus and then gets kicked out of school is really not that big of a deal except to that kid and his family in that school. It really doesn’t involve the rest of us.

    And there’s really never a bad time to enroll your child in the faith-based school, as long as the school is teaching a curriculum that honors God.

    Look at the curriculum that’s being taught by the public schools especially in the Fort Worth School District. They’re teaching kids crazy ideas such as gender is a choice which is absolutely contradictory to the word of God. They refuse to show the curriculum to parents and had to be told by the Office of the Attorney General to show the curriculum, since failing to do so is a violation of our state law.

    They’re teaching acceptance of all manner of sinful behaviors, thoughts, and attitudes. Which is completely not God honoring at all. That scares me a whole lot more than some school kicking out a kid for smoking weed.

    • July 4, 2018
      Reply

      Sean, thank you for caring about this issue. I only wish you understood more about the case and its legal implications. There is a great deal about this particular case that you are not aware of. In fact, no one is, because, since the defendant circumvented the trial court, all details surrounding the expulsion didn’t reach the light of day. If they had, you and others would be aware of evidence that the boy was expelled on trumped up charges for political reasons, and you would see that your assumptions about what took place were incorrect, including your claim that the child didn’t “actually suffer any damage.”

      But let’s move beyond that particular case and instead focus on its possible broad implications. You state that this case “does not set a precedent for any other cases whatsoever.” You also seem to think that the appellate or supreme court’s decisions would not have any influence on cases in which children were physically or sexually abused. You are incorrect, because the appellate court’s claim does not pertain only to minor infractions or drug use. It pertains to a school’s “internal affairs,” which could encompass a host of decisions that could leave a child traumatized. You may not be aware that the Episcopal School of Dallas made the “internal affairs” decision to expel a female student who had been sexually abused by a staff member. If you think that that student suffered no damages, then you would wrong; a jury had ESD pay $9 million because of the harm it caused by the way it handled its “internal affairs” in her case. To say I am not “more concerned about putting out accurate articles that document actual physical abuse” shows that you didn’t read the entire blog post, nor have you read any of my other articles which cover all forms of serious abuse. I would hope you would be sure of your facts before making false accusations.

      Finally, you say that there is never a bad time to enroll a child in a faith-based school “as long as the school is teaching a curriculum that honors God.” You have hit the nail on the head as to the crux of the problem and why we are facing the court decision in front of us. There is a dangerous fallacy that many (often well-intentioned) people fall prey to: that anything that has to do with religious faith, or the faith of the individual making claims, cannot be harmful for children. I believe that thousands of child victims and survivors all over the world who grew up in faith-based institutions and who were physically, emotionally, and sexually abused in those places would disagree with that premise. Faith-based institutions, regardless of their religious teachings, must be held accountable no more or less than any others. As a result of this failure by the Texas Supreme Court, a layer of accountability that was designed to protect children has been stripped away.

      • Sam
        July 4, 2018
        Reply

        Janet, Thank you! You covered it. Agree. My children are in private Christian schools. This scares me as the institution will not be held accountable for their teachers and administrations behavior. Big loophole for the private schools accountability. Shameful ruling! The judge should have looked at the bigger picture not just the immediate issue at hand.

  2. Ross
    July 6, 2018
    Reply

    Sean’s comment clarified exactly the problem. He assumes that everything the school said was correct. Of course the school will have a story – whether truthful or not. But unless there is a trial, the public will never know the true facts of the case. This child might have been expelled because of his race, a a schoolyard fight with the principal’s child, or even because the principal had an uncomfortable sexual attraction for the child. I think that if the school thought they could win at trial, then they would have allowed the case to go to trial. But looking at the record, it appears that after 18 months of litigation, the school filed this motion weeks before the trial was due to start which tells me they were very worried.

  3. Peter
    December 14, 2018
    Reply

    Sean says that in the ESD cases, there was no harm to John Doe but there was harm to the student who was sexually abused by the same school. The fallacy of his argument, however, lies in the fact that the only reason we know there was sexual abuse in the Jane Doe case was because the matter was allowed to go to trial. In that case, ESD hadn’t figured out that the (uniformly white, male, old, religious, and Republican) Court of Appeals would protect them from this girl’s lawsuit – had they only asked. By the time the John Doe case rolled around, the school had time to prepare itself legally and found this loophole. One positive note is that every single Republican member of the Court of Appeals who was on the ballot in November lost to his Democratic opponent. (One of the justices who was defeated actually attends and is involved in St. Michael’s Church where the Episcopal School of Dallas resides.) There are now eight new Democratic members. It is rulings like this one that caused the public outrage and backlash. Maybe they learned something.

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