Penn State Law Civil Rights Appellate Clinic Files Seventh Circuit Amicus Brief

UNIVERSITY PARK, Pa. – On February 1, 2023, the Penn State Law in University Park Civil Rights Appellate Clinic, representing the National Employment Lawyers Association (NELA) and the National Employment Law Project (NELP), filed an amicus brief with the Seventh Circuit Court of Appeals in an employment discrimination case. The brief supports Shelley Fitzgerald, a guidance counselor fired from Roncalli High School, a Catholic school, after administration and the Roman Catholic Archdiocese of Indianapolis learned she was married to another woman.

The amicus brief asks the Seventh Circuit to restrict the expansion of the scope of the “ministerial exception” which applies to federal antidiscrimination statutes. The ministerial exception shields religious institutions from liability when they terminate employees who serve as “ministers” for that organization. The United States Supreme Court has taken an expansive view of who could be viewed as a minister. For example, the Court has held that teachers at religious schools typically qualify as “ministers” because they play a major role in fostering students’ religious development. However, the Court has made it clear that only those employees who are vital and essential to the religion’s mission should be exempted from the coverage of the anti-discrimination laws. The Clinic urged the Court to rule that guidance counselors like Fitzgerald who played no role in providing religious guidance to students are not ministerial employees.

It was noted that Fitzgerald was cherished and beloved by students and colleagues in the Roncalli community. “Not only did I work there for 15 years, but I went to high school there, so I’ve been there my whole entire life,” Fitzgerald said on The Ellen DeGeneres Show, echoing her court position. Fitzgerald’s role as guidance counselor involved almost exclusively secular tasks, such as assisting students with college applications, preparing them for standardized testing, and setting up their class schedules.

Nevertheless, the district court allowed Roncalli to evade liability for its unlawful discrimination under the guise of religious freedom.

It was no secret that Fitzgerald was married to a woman. Yet one day in 2018, she was called into a meeting with Roncalli administration after they obtained a copy of her marriage certificate. They gave her three options: dissolve her marriage, resign, or remain quiet for the rest of the school year and not have her contract renewed. Fitzgerald refused and was subsequently fired. After her termination, students rallied in support of Fitzgerald, with hundreds wearing pride gear to a football game. One player ran out on the field donning rainbow sweatbands and bandannas:  “I thought it’d be cool to show the whole community that I’m an ally and that I support Ms. Fitzgerald,” the student said on the Ellen Show.

After her unlawful termination, Fitzgerald filed a complaint in the United States District Court for the Southern District of Indiana. She alleged that Roncalli and the Roman Catholic Archdiocese violated Title VII of the Civil Rights Act, a federal statute that prohibits sex discrimination in the workplace. The district court dismissed the case, finding that Seventh Circuit precedent classifying guidance counselors as ministers foreclosed Fitzgerald’s claim. Fitzgerald appealed the decision to the Seventh Circuit.

The Penn State Law Civil Rights Appellate Clinic supplemented Fitzgerald’s merits brief to the Seventh Circuit though its amicus brief. Clinic students involved in researching, drafting and filing the brief included Nina Franco, Will Manson, Megan Thomas, Farzin Vahidov, Taylor Washington, and Bridgette Woodford. The Civil Rights Appellate Clinic is directed by Michael Foreman and is one of 10 clinics at Penn State Law. 

“This was my first experience drafting and filing a brief. It was a challenging yet rewarding experience working on a team to help fight for equality in the workplace,” said Thomas.

The Clinic’s brief urges the Seventh Circuit to remand Fitzgerald’s case to the district court for a trial. It argued that Fitzgerald was not a ministerial employee because her tasks were almost purely secular, she never discussed religion with students and had no religious training. The Clinic insisted that the district court’s ruling classifying Fitzgerald as a minister misread both Seventh Circuit and Supreme Court precedent. Likewise, applying the exception to guidance counselors would distort its underlying purpose. “The ministerial exception was intended as a shield for religious liberty, not as a sword to strike through antidiscrimination laws,” students wrote. The Seventh Circuit is expected to decide the case later this year. NELA members described  the Clinic’s brief as both “compelling” and “a very strong effort.”

After filing the brief for Fitzgerald, the Clinic will dive into its next project: drafting an amicus brief to the Supreme Court of the United States in another employment discrimination case, Groff v DeJoy, involving religious freedom in the workplace.

“This is my second semester in the clinic, and I am still genuinely impressed by the work product we generate as law students,” said Franco. “Fitzgerald’s case has played out on a national stage, and I am proud to have advocated on behalf of such a dedicated guidance counselor committed to the well-being of her students.”

“Working on this brief was incredibly rewarding. I got to dedicate my time to working on an issue that I am so passionate about. I am incredibly proud of the work we put into this brief,” said Woodford.