MI union contract gives “special consideration” to “non-Christian” teachers

posted at 12:41 pm on March 19, 2014 by Ed Morrissey

Apparently, no one at the Ferndale Public School District in Michigan took a civics course or bothered to read their own state constitution — and neither did the union representing teachers in the district. Michigan Capitol Confidential found an interesting, and totally unconstitutional, clause in the contract between the district and the Michigan Education Association local that requires the district to provide “special consideration” to “those of the non-Christian faith” in hiring decisions:

The contract ran from 2011 to 2012 but was extended to 2017. The teachers belong to the Ferndale Education Association, a division of theMichigan Education Association.

Regarding promotion to a vacant position, it states on page 22:

Should there be two (2) or more of these applicants with equal qualifications for the position and one (1) or more of these applicants with equal qualifications is a current employee, the current employee with the greatest seniority shall be assigned. Special consideration shall be given to women and/or minority defined as: Native American, Asian American, Latino, African American and those of the non-Christian faith. However, in all appointments to vacant positions, the Board’s decision shall be final.

Earlier in the contract is a “no discrimination clause” that states no employee can be discriminated against based on their religion.

Just to make sure readers see the offending clause, MCC screen-capped it.

The intent of the clause seems to be to reinforce equal-opportunity employment practices, but it goes further than just a declaration of non-discrimination. This clause actually requires the district to discriminate in its hiring by using ethnicity, gender, and/or religion as an explicit deciding factor in its hiring choices.  Ethnicity and gender might pass constitutional muster in this clause, although that’s probably debatable, but forcing the district to decide on the basis of religion violates both the state and US constitutions.

I asked Gabriel Malor at AoSHQ to look at this clause, and he agrees that this is very problematic. Not only does this conflict with an earlier clause in the contract forbidding this kind of discrimination, its insistence on blocking review is also troubling:

First, the 10.3 special consideration provision, which also prescribes preferential treatment for women and certain racial minority groups, directly contradicts the instruction at 9.9 that the provisions of the agreement be applied “without regard to race, creed, religion, color, national origin, sex.” Obviously, if the agreement must be applied without regard to religion, then special consideration could not be given to those of non-Christian faiths.

Second, the contradiction is made more troubling by the very next sentence of 10.3, which provides “in all appointments to vacant positions, the Board’s decision shall be final.” It is the only provision in the Agreement which explicitly provides that decisions are final, with no further review possible.

Third, if a promotion decision were made that gave preferential treatment to a candidate of the “non-Christian faith,” the school district would possibly be in violation of the establishment clauses of both the Michigan and the United States constitutions. No inference of discriminatory intent is required here; the school district provided evidence of it right there in the text of the Agreement. Generally, to survive an establishment clause challenge, the district would have to demonstrate that the discriminatory treatment was narrowly tailored to a compelling state interest. The district would be unlikely to do so in this context.

No doubt the district intended its bias in favor of applicants from non-Christian faiths to increase diversity in schools, and if challenged on this basis would defend it as such. But that’s the trouble with state preferences in favor of diversity. It generally requires discrimination on the basis of race, sex, or–as in this case–religion, which the Supreme Court is increasingly skeptical of.

As a former hiring manager for 15 years, though, this offers yet another point of confusion. It’s impermissible to ask about religious affiliation in an interview process, either for new hires or promotions, thanks to existing prohibitions on discrimination and potential civil liabilities. That’s true even if an employer wants a religiously-diverse workforce. Like marriage and family status, religious affiliation cannot even be queried during the hiring process lest one provide evidence of latent or explicit religious discrimination in that workplace.

Where would the district then find the data to fulfill this requirement? Are they or the union cataloguing this data somehow? The ACLU seems curiously incurious about the implications of this clause:

Rana Elmir, deputy director of the American Civil Liberties Union of Michigan, said she couldn’t speak to the specifics highlighted in the contract “because it comes down to how it is implemented.”

“There’s nothing wrong with encouraging people from diverse faiths to apply for a position. In fact, doing so recognizes that our classrooms and communities are diverse,” Elmir said. “However, public schools themselves should not be in the business of promoting particular religious beliefs or religious activities over others and they should protect children from being coerced to accept religious or anti-religious beliefs.”

True, except that’s not what this clause does. It presumes that the employer is collecting information on religious beliefs and making employment decisions on that basis. Doesn’t that pique their interest at all?

This isn’t necessarily an earth-shaking issue, but it would be interesting to see how many other MEA affiliates have this or a similar clause in their contracts, too. As for their constitutional illiteracy, Ferndale has no excuses … but Kansas schools might:

The Kansas House of Delegates has passed a bill that would require that students be instructed in the “importance and execution of an effective professional handshake.”

The requirement was included as an amendment to legislation that would make instruction in financial literacy a requirement for all Kansas high school students.

While Kansas lawmakers deemed a firm handshake as being an important skill for students to acquire, a separate amendment that would have instruction on the Constitution and government institutions was defeated.

Maybe Kansas and Michigan needs to get a grip.


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Comment pages: 1 2

HA needs more Zombie.

slickwillie2001 on March 19, 2014 at 4:04 PM

2nd

Axe on March 19, 2014 at 4:34 PM

and those of the non-Christian faith.

There’s only one non-Christian faith?

*facepalm*

itsnotaboutme on March 19, 2014 at 4:34 PM

and those of the non-Christian faith.

So they’re discriminating against a minority.
Because Christianity–following Jesus as Lord–is a small minority in the USA…& in every other nation.

But 70% of people claim to be Christians!

True.

But if 70% of Americans were really following Jesus as Lord,
–Abortion would be illegal
–Homosexual marriage would be a leftist’s outrageous fantasy
–Smut & profanity would be confined to a few B-movies & some cable channels, instead of dominating entertainment as they do now, &
–Barack Obama would be a little-known Chicago rabble-rouser

itsnotaboutme on March 19, 2014 at 4:39 PM

It is long past time for Union MEMBERS to stop blindly following their Union “leaders”!

Wake up, Union MEMBERS!

wren on March 19, 2014 at 3:26 PM

Wake up people! What is the point of unions? We should all be willing to work on our own merit. The stupidity of having to have someone champion me is belittling.

I can manage my own raises and job security and if I can’t, I can find another job on my own. But too many Americans are driven by greed, so they think they might lose a few dollars or some benefits without the union.

I work in a school district after a 30 year career in the television industry and to see unions in the education sector and the havoc there are wreaking on our children is disgusting.

The country is nearly lost, in no small part due to unions, especially in education, as they have dumbed down America and it appears that the dumb now far outnumber the wise.

SAVE AMERICA – ABOLISH UNIONS

Neitherleftorright on March 19, 2014 at 4:53 PM

The attempt to define Democrats as “the real racists” historically is amusing but ultimately silly.

vlad martel on March 19, 2014 at 3:22 PM

Tell us why.

Del Dolemonte on March 19, 2014 at 4:29 PM

Oh, well, since you asked nicely. If one adheres to the leftist definition of “racism,” plenty of Republicans/right-wingers qualify. It’s the definition itself that needs to be challenged.

vlad martel on March 19, 2014 at 5:31 PM

I am so glad that you typed that, because it gives me a perfect opportunity to share one of Zombie’s essays with my fellow readers. Here it is:

Progressive Racism: The Hidden Motive Driving Modern Politics

http://pjmedia.com/zombie/

RushBaby on March 19, 2014 at 3:16 PM

WOW! Zombie hits it out of the park with that brilliant essay! Thank you for sharing it, Rush Baby!

This essay needs to be spread far and wide! Particulary within minority communities!

What a major wake-up call for BOTH Liberals and Conservatives!

I can see using this essay as a basis for many fascinating and eye opening debates!

If you read one article today, make it this essay from Zombie!

Zombie – You are a national treasure!

wren on March 19, 2014 at 5:31 PM

2nd request for duct tape–anyone?

CW on March 19, 2014 at 5:40 PM

I looked at the Zombie essay. Yeah, it’s as I suspected. It’s kind of like Republicans arguing that affirmative action is “really bad for black people,” “the soft bigotry of low expectations,” blah blah blah. In that recent dust up about affirmative action in CA, Chinese leaders didn’t even bother making any such arguments (they got the intended legislation tabled, btw).

vlad martel on March 19, 2014 at 5:44 PM

2nd

Axe on March 19, 2014 at 4:34 PM

You could have at least said Meow on the flip.

Bmore on March 19, 2014 at 5:50 PM

When I left the Detroit area Ferndale was trying to become the gayest town in Michigan. This is probably more a pro-queer thing than a pro-terrorist thing.

Flange on March 19, 2014 at 1:00 PM

You are correct. It was the migration path up Woodward after the art deco Palmer Park district became the migration path up Woodward from lower Highland Park

entagor on March 19, 2014 at 6:11 PM

http://pjmedia.com/zombie/

RushBaby on March 19, 2014 at 3:16 PM

Interesting article. I’m not sure I fully agree with all of his “Conservatives’ inaccurate theory of progressives’ real intent” and a few other points here and there, but overall quite good.

dentarthurdent on March 19, 2014 at 6:11 PM

Zombie’s trying to occupy a moral high ground created exclusively for the use of liberal Democrats. If she’d structured her essay around the issue of “hypocrisy,” it’d make a lot more sense.

vlad martel on March 19, 2014 at 6:14 PM

I looked at the Zombie essay. Yeah, it’s as I suspected. It’s kind of like Republicans arguing that affirmative action is “really bad for black people,” “the soft bigotry of low expectations,” blah blah blah. In that recent dust up about affirmative action in CA, Chinese leaders didn’t even bother making any such arguments (they got the intended legislation tabled, btw).

vlad martel on March 19, 2014 at 5:44 PM

How are those Indian Reservations and Ghettos workin’ out for you bro?

serenity on March 19, 2014 at 6:24 PM

How are those Indian Reservations and Ghettos workin’ out for you bro?

serenity on March 19, 2014 at 6:24 PM

Why don’t you ask the Chinese?

vlad martel on March 19, 2014 at 6:35 PM

Anyone here a lawyer? I’m no teacher and live far away from Michigan, but does that really matter?

Sandbear on March 19, 2014 at 6:55 PM

“Our”?!?

Apparently, the Ferndale School District doesn’t require that its teachers know how to spell.

LASue on March 19, 2014 at 7:36 PM

True, except that’s not what this clause does. It presumes that the employer is collecting information on religious beliefs and making employment decisions on that basis. Doesn’t that pique their interest at all?

It would pique their interest if the clause said “non-Muslim” or “non-Jewish” or “non-atheist” but “non-Christian”?

Diversity. Or something.

englishqueen01 on March 19, 2014 at 8:24 PM

That picture, the wording on the sign … have to clean my monitor again.

Missilengr on March 19, 2014 at 8:37 PM

” … my Muslim faith.” - Barack Hussein Obama
Spoken clearly without hesitation during an interview with George Stephanopolis … and IMMEDIATELY CORRECTED BY George Stephanopolis by saying, “You mean your Christian faith.”

Missilengr on March 19, 2014 at 8:45 PM

Common core…diversity…make up your minds.

Ronnie on March 20, 2014 at 1:11 AM

Tell us why.

Del Dolemonte on March 19, 2014 at 4:29 PM

Oh, well, since you asked nicely. If one adheres to the leftist definition of “racism,” plenty of Republicans/right-wingers qualify. It’s the definition itself that needs to be challenged.

vlad martel on March 19, 2014 at 5:31 PM

Give us some credible, multi-sourced examples that discredit the documented and voluminous evidence of the Democrat Party’s Racism over the past 100+ years.

Then counter it with equally damaging evidence of racism by the other party.

Also tell us your thoughts on the time-honored practice in the state your Cult Hero said he was born in, namely “Kill Haole Day”.

(Baits Hook)

Del Dolemonte on March 20, 2014 at 1:56 AM

I looked at the Zombie essay. Yeah, it’s as I suspected. It’s kind of like Republicans arguing that affirmative action is “really bad for black people,” “the soft bigotry of low expectations,” blah blah blah. In that recent dust up about affirmative action in CA, Chinese leaders didn’t even bother making any such arguments (they got the intended legislation tabled, btw).

vlad martel on March 19, 2014 at 5:44 PM

Sorry, we expect better quality posts here.

INCOMPLETE-

Del Dolemonte on March 20, 2014 at 1:58 AM

…“those of the non-Christian faith”…

The non-Christian faith?

I can tell you as someone who works in the government school system and has had to deal with the kind of sloppy writing that comes from the crowd that (with no sense of irony) teaches writing, that what they really mean is “those not of the Christian faith”, rather than what they actually write. (Of course, that doesn’t make it any less an example of discrimination.)

Tzetzes on March 20, 2014 at 6:18 AM

“You whiney Christians are such drama Queens. You’re not being attacked or discriminated against.”

Hot Air atheists/

hawkdriver on March 19, 2014 at 12:50 PM

To repeat a rather good one I came across, “My Ten Commandments Are the Bill of Rights.” All ten of them are great (and most of them currently under attack), and they start off with an excellent one:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

That rule binding Congress, we atheists believe, should extend to other policy-makers as well, which is why (at least most of us, including me) would be utterly opposed to the kind of religiously-based government discrimination being discussed here.

Tzetzes on March 20, 2014 at 6:25 AM

Great: ‘Come to Mi and Join the ANTI-GOD Union.”

Anyone remember the old jingle: “Look for the union Label”…

That’s going to be replaced by “Look for Lucifer on the Label”

LOL … :(

easyt65 on March 20, 2014 at 7:51 AM

It’s impermissible to ask about religious affiliation in an interview process, either for new hires or promotions, thanks to existing prohibitions on discrimination and potential civil liabilities.

True, but just as Obama has become the poster child for avoiding the necessary legal requirements, so too has many a “hiring manager” made a phone call or had a private conversation with someone who knows the candidate. It doesn’t require much skill to ascertain what you wish to know.
Which raises the question of why so many appear duped by president Obama when he was a very transparent candidate–regardless of his missing documents and unwilling media vetting. In fact, the mere reality that the leftist MSM refused to vet him made him an obvious “high risk” candidate.
As for Christians being discriminated against, it was as certain as daylight once this nation tossed out God for our hedonism.

Don L on March 20, 2014 at 8:22 AM

That rule binding Congress, we atheists believe, should extend to other policy-makers as well, which is why (at least most of us, including me) would be utterly opposed to the kind of religiously-based government discrimination being discussed here.

Tzetzes on March 20, 2014 at 6:25 AM

All well and good, I still await the day when self-professed atheists will forgo those all those rights we all receive ONLY from Nature’s God. We don’t get them because we are merely another species equal to a rat or cockroach as the Godless left would have us believe in order to tear down the dignity of man infused in him by his Creator.

Don L on March 20, 2014 at 8:27 AM

That rule binding Congress, we atheists believe, should extend to other policy-makers as well, which is why (at least most of us, including me) would be utterly opposed to the kind of religiously-based government discrimination being discussed here.

Tzetzes on March 20, 2014 at 6:25 AM

Emphasis added.

My problem with this interpretation is that it assumes the Founders were dolts. They clearly limited “Congress” which is a very specific body. Had the states agreed to more, it would state so.

Each state has its own Constitution (all of which mention God, I believe… just as the Declaration does). Therefore, when these states established themselves (most under the federal Constitution) they clearly understood that the First Amendment did not forbid them from formally recognizing God.

mankai on March 20, 2014 at 8:28 AM

Sorry, we expect better quality posts here.

INCOMPLETE-

Del Dolemonte on March 20, 2014 at 1:58 AM

Sorry, I can only respond to rational responses. Incomplete….

vlad martel on March 20, 2014 at 10:54 AM

There clearly needs to be a federal law that says that any organization that expressly claims that such discrimination is forbidden must actually forbid such discrimination or suffer penalties. Of course under Obama & his awful Holder it probably would not be enforced – unless the discrimination is against blacks or Muslims.

Chessplayer on March 20, 2014 at 11:34 AM

Discrimination by any definition, but not unusual in this state overrun with muslims!

Roselle on March 20, 2014 at 11:59 AM

“UNIONS OUR MY CUP OF TEA” I suppose the woman holding this sign is a teacher? I hope my kids don’t have any teachers who are this stupid.

maryo on March 20, 2014 at 12:36 PM

Del Dolemonte on March 20, 2014 at 1:58 AM

Sorry, I can only respond to rational responses. Incomplete….

vlad martel on March 20, 2014 at 10:54 AM

LOL!

Your fear of responding to my 1:56 AM post tells me all I need to know about your alleged “rationality”.

FAIL-

Del Dolemonte on March 20, 2014 at 4:32 PM

Why would anybody expect Unions to know anything about the Constitution ? — or if they did know, who would think they would pay any attention to it?

Axion on March 20, 2014 at 6:28 PM

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