May, 2008, Note on the “Ministerial Exception” to Title VII

TO: Mr. Robert Allen, President, Harvard Law Review (c/o webmaster@harvardlawreview.org)

FROM: John Jay McKelvey IV

DATE: June 3, 2008

RE: An Open Letter Concerning the May, 2008, Note on the “Ministerial Exception” to Title VII

I am following with great interest, as always, the work you and the other editors are doing on the Review (for background, see here). I write regarding one of the student notes which appears in the May, 2008, issue of the Review. Before I get to the substance of my concerns about that note, I hope you will forgive me for recounting some background points which will help others follow the discussion (in addition to e-mailing you, I am posting this missive as an “open letter” on my blog, Harvard Law Review Review, which can be accessed here).

Almost as soon as the May, 2008, issue of the Law Review was posted online (it is available in PDF format as of today on the Review‘s home page, here, and later will be available on the archive page, here), legal bloggers and commentators began generating what by now total something like 1000 posts attacking various flaws in an unsigned student note which appears on pages 1886 through 1907.

It is titled, Never Again Should a People Starve in a World of Plenty. Both its title and its inspiration are taken from a statue located about 100 feet from the Review‘s offices (Gannett House), across the street in Cambridge Common. The note is informally referenced by some commentators as the “Do the Right Thing at Every Moment” note, because that is the key moral prescription advocated by the note (pages 1892, 1896, 1907).

Some of the most extensive coverage of the controversy can be found on Volokh Conspiracy (David Bernstein) (here), Above the Law (David Lat) (here, here, and here), Concurring Opinions (Dave Hoffman) (here), CrimLaw (Ken Lammers) (here), and Prettier Than Napolean (Amber Taylor) (here and here). See here for a fuller listing of blog coverage.

Perhaps the principal criticism of the note which risks adverse impact on the preeminent status of the Review as a top-quality scholarly institution involves certain undeniable factual mistakes in the note’s description of the statue on which the note is based. These are unambiguous mistakes for which the Review to date has not apologized. Indeed, it has not even officially acknowledged these mistakes.

The Review‘s inaction is particularly concerning given that some critics have contended, not without basis, that through the note the Review has misused for ideological purposes, to fit a “politically correct” result advocated in the note, what in essence amounts to a genocide memorial to victims of the Irish potato famine. For background on the note’s serious mistakes in its physical description of the statue on which the note is based, and the note’s possible misuse of a genocide memorial, see here, here, here, here, and here.

Another major concern raised about the note is that it appears remarkably unoriginal for a publication such as the Harvard Law Review, because apart from its flawed discussion of the statue, it consists largely of points which were extensively covered years ago in the works of philosopher Peter Singer — complete with a “call now” UNICEF fund-raising appeal similar to one which appeared in a Singer book (for which the note, however, does not credit Singer). I will avoid getting into the details of this point, but it suffices to say that many readers of the note see little if anything original in it, a characteristic apparently shared by another note in the same issue, which I will now discuss.

With that as background, now to my concerns about that other note published in the May, 2008, issue, titled The Ministerial Exception to Title VII: The Case for a Deferential Primary Duties Test. It appears on pages 1776-97. (It can be downloaded in PDF format here.) This note discusses the “ministerial exception” to Title VII, under which generally churches and other religious institutions can fire certain employees without worrying about being sued for employment discrimination on the basis of sex, race, etc. – especially where they have some sort of religious reason for the firing. The note basically argues that in applying the “ministerial exception” to Title VII, courts should give greater deference to religious employers regarding their employment decisions.

To a current Harvard Law School student who is an acquaintance of mine and who read the May, 2008, issue over the weekend, the discussion in the note seemed familiar, and not particularly original. At first the student was not sure why, but then the student remembered that this topic was covered in the final round of the Ames moot court competition last November. An archived video of it can be viewed here.

Spurred by the student’s comment, I investigated, carefully reading the note and the briefs filed in the Ames moot court competition (which were posted online six months ago here). It turns out there’s nothing particularly original about this note at all. It’s largely derivative of parts of the opening brief filed on behalf of the petitioner in the Ames moot court competition.

To be clear, I am not suggesting that the Review simply cut and pasted the bulk of the brief into the note. The brief dealt with two distinct issues (the issues related to the ministerial exception are covered on pages 5-6, and 23-41), and it had to discuss the specific facts of the moot court case, so that perhaps only a quarter of the material in the brief dealt with legal analysis of the “ministerial exception” to Title VII, the topic of the note. And the note is an extended discussion of the topic, covering a variety of fine points which the brief didn’t have space to cover.

Still, significant parts of the text of the brief somehow found their way into the text of the note, with only minor rewriting (perhaps the rewriting was done in an effort to obscure that parts of the brief were being lifted). The very similar, sometimes identical, language in various places is too frequent to be put down to chance. Here is a brief summary, to spare you and readers of this blog the need to do a page-by-page analysis yourselves:

Part II of the note (pages 1779-86) and Part IV (pages 1790-93) are the main parts which “borrow” from the brief.

Part II summarizes the three constitutional justifications underlying the ministerial exception. It closely tracks the discussion in the brief on pages 23-28 of the brief, covering the justifications in the same order. Much of the language is the same, or very similar, and was obviously copied from the brief. For example:

1. The NOTE, page 1779, line 18, says that courts have used the ministerial exception to protect the “general principle of church autonomy that inheres in the First Amendment.”

Similarly, the BRIEF, page 23, lines 15-16, uses an identical 10-word phrase. It says that courts have used the ministerial exception to protect the “principle of church autonomy that inheres in the First Amendment’s Religion Clauses and expressive association right.” The last few words were dropped in the note.

2. Addressing the free exercise justification, the NOTE, page 1781, line 3, references “a religious organization’s unfettered liberty to select its spiritual leaders.”

Similarly, the BRIEF, page 5, line 18, uses an almost identical 10-word phrase: “a religious organization’s unfettered right to select its spiritual leaders.” In the note, “right” was changed to “liberty.”

3. Also under free exercise, the NOTE, citing Supreme Court cases from 1929, 1952, and 1976, on page 1782, lines 7-20, states that the Supreme Court “has long acknowledged” a prohibition against “judicial evaluation of religious doctrine or interference with church administration.”

Using parallel word construction, and citing the same 3 cases, the BRIEF, page 24, lines 6-16, likewise states that the Supreme Court “has long cautioned against judicial scrutiny of religious doctrine or church governance.”

4. Addressing the establishment clause justification, using quite odd sentence construction (three dashes in the same sentence, which would appear to violate some usage rule of which you and your staff are likely more aware than me), the NOTE, page 1784, lines 1-4 (and a line on the prior page), cites authority holding that the ministerial exception is mandated “to avoid both substantive entanglement — ‘where the government is placed in the position of deciding between competing religious views’ — and procedural entanglement — ‘where the state and church are pitted against one another in a protracted legal battle.’” (Citation omitted).

The BRIEF uses the same odd sentence construction, virtually the same words, and cites to the same case. Thus, Page 26, lines 15-17, cites authority holding that “the ministerial exception prevents both substantive entanglement — which asks government to choose between competing religious views — and procedural entanglement — which pits church and state ‘against one another in a protracted legal battle.’” (Citation omitted). Obviously, this oddly constructed sentence was copied into the note, with only minor editing.

5. Addressing the expressive association justification, the NOTE, page 1786, quotes language from page 306 of a 2006 Third Circuit case, and page 1578 of a 1989 First Circuit case.

Similarly, the BRIEF, page 27, last 3 lines of text, and page 28, lines 2-5, cites the same 2 pages of the cases, in the same order, and it quotes some of the same language on those exact pages.

6. In the conclusion to the analysis of expressive association, the NOTE, page 1896, line 14, explains how the expressive association right protects a church’s “ability to shape and share its message.”

Changing only one word, the BRIEF in its conclusion on expressive association, page 28, line 7, speaks of how the right protects a church’s “ability to shape and transmit its message . . . .”

The other main part of the note which “borrows” from the brief is Part IV (pages 1790-93), which sets forth the note’s recommendation as to what courts should do in applying the ministerial exception: accord more deference to the decisions of religious organizations. The supposedly objective conclusion of the note was, it turns out, pulled directly from partisan arguments first made in the brief, in an advocacy context, by the contestants in the final round of Ames who were randomly selected to argue that side of the case.

Examples:

7. The NOTE, page 1790, lines 21-23, urges courts to “defer to a religious organization’s characterization of whether and how an employee contributes to the spiritual mission of the church.”

The BRIEF, page 32, lines 4-5, urges courts to “defer to a church’s reasonable assessment of how the spiritual duties of its employees contribute to its ecclesiastical pursuits.”

8. The NOTE, page 1791, lines 3-5, argues that generally “the religious organization’s conception of its employees’ spiritual functions ordinarily controls.”

The BRIEF, page 32, footnote 5, argues in “close cases” the First Amendment “requires that a religious organization’s conception of its spiritual mission prevail.”

9. The NOTE, page 1792, lines 9-16, urges the wisdom of deference based on an analogy to judicial review of academic tenure decisions, in which “courts have repeatedly deferred” to education employers. It quotes language from page 548 of a 1980 Third Circuit case.

The BRIEF, page 32, lines 7-10, makes exactly the same analogy, discusses how “[c]ourts routinely give deference” in this context, and quotes the same 13 words from page 548 of the 1980 case which are quoted in the note.

It is clear that at least Parts II and IV of the note lift significant material from the Ames brief and, even more importantly, closely track the conclusion of that highly partisan document. What I’m less sure of is what to make of it, so I would be most appreciative of comment, by both you and any readers who wish to comment (either here or on other blogs).

For my own part, in an effort to get the discussion going, I was not especially impressed with the portions of the Ames brief addressing the ministerial exception argument. Neither was Justice Scalia, who was one of the moot court justices. At oral argument he expressed great skepticism about the petitioner’s analysis of the ministerial exception in the brief. Further, he and the other moot court justices voted the brief filed by the other side’s advocates “best brief.” (They also voted the other side best overall team.) So it hardly strikes me that the brief was some sort of top-quality brief as to which it would somehow be the world’s loss if parts of it were not copied into the Harvard Law Review.

More generally, it was my understanding that the Harvard Law Review‘s purpose is to publish original work on important topics. Why is the Review publishing material which apparently was plagiarized from a losing Ames moot court brief placed on the internet six months ago? Further, if the Review is willing to publish unsigned notes which plagiarize from earlier published, student-written work, might it at least have the scholarly scruples to only plagiarize from objectively crafted scholarship, and avoid plagiarizing from briefs which were researched and written by students who were randomly selected to argue for the position advocated in the brief (i.e., no one pretends the analysis in the brief was supposed to be objective), as part of a competition?

Setting aside the plagiarism issue (maybe no intellectual theft is involved; perhaps all 86 students on the Review who put out this unsigned note got permission from the six students who wrote the brief to use their work), and setting aside the basic problem with the Review ever publishing something which was copied in part from a brief which was crafted in an advocacy posture for a moot court exercise in which the six students were assigned to argue for a predetermined result, if the Review is publishing this sort of thing, shouldn’t it inform readers of its new, sharply lowered, publishing standards?

At least before I read the “ministerial exception” note, it was my assumption, and I suppose that of many readers, that the unsigned student notes which appear in the Review are the product of objective legal research and analysis. Where, in fact, the Review decides to publish material lifted from an Ames moot court brief (a losing brief, to boot), one put together by advocates instructed to reach a particular legal result, it should inform readers of what it’s doing.

But it did not inform readers of this. There’s not a single cite in the note to the Ames brief in the places where language, analysis, and conclusions have been lifted from the brief. Nor is there even a general indication given up front that parts of this note draw on a partisan brief which was researched and written not with an eye toward scholarship, but with an eye toward winning a competition by arguing to a predetermined result. There’s no way, no matter how carefully the average reader studies this note, that he or she could have any idea of this.

Do I advance a fair criticism in suggesting that the Harvard Law Review either should have not published this note or, if it did publish it, it should have been up front about the situation and informed readers, through an introductory footnote, that parts of this note were copied from a losing Ames brief which was put together by six Harvard Law students as part of an advocacy exercise, not as part of a scholarly enterprise?

And, with reference to the controversy over the other note which has existed for the past couple of weeks, which has yet to be addressed by the Review (would you please do so, sir?), may I ask: what has the Review come to in deciding to publish, in the same issue (not just the same year) two notes as unoriginal and flawed as the “ministerial exception” note and the “Do the Right Thing at Every Moment” note which appear in the May, 2008, issue?

Sincerely,

John Jay McKelvey IV

3 Comments

Filed under Uncategorized

3 responses to “May, 2008, Note on the “Ministerial Exception” to Title VII

  1. More thoughts on the Note and the significance of its publication:

    http://www.futureacademic.com/listing.php?cpath=275&id=211

  2. Anonymous

    Maybe one of the authors of the brief wrote the Note? Hmm.

  3. Be aware, whoever this person claiming to be John Jay McKelvey IV, he is not. I am the great-grandson he claims to be and obviously not named John.

    Thank you,

    David W. McKelvey

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