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.