Facebook Posts as Free Speech… or Not

On July 7, Elizabeth Cox,a teacher at Bishop England High School, a private Catholic institution, had her contract terminated for various Facebook posts that supported pro-choice views. Cox had been teaching at the school for sixteen years and had been notified after the 2018/2019 school year that she would not be allowed to teach the following year. The posts included (but were not limited to) a feminist activist quote asserting gun purchases should go through as rigorous screenings as abortions and a link to a story with the headline “Leslie Jones leads the charge against Alabama’s abortion ban in the SNL season finale”. While Cox was a teacher, she taught both secular and religious courses daily to her students.

            Teachers at Bishop England are required to sign a contract agreeing to speak publicly in accordance with Catholic beliefs, regardless of whether they identify as Catholics. The principle, Patrick Finneran, was quoted saying “Parents send their children to [Bishop England] expressly because they want a Catholic teaching and upbringing. Your public expression of disagreement with Catholic values undermines that." In her lawsuit, Cox claims that her firing “violates political rights and privileges of free speech guaranteed by the United States Constitution and/or the Constitution of the State of South Carolina." Cox wishes to be granted a monetary award and reinstatement to the school in her same position.

            The question faced in this case has been disputed in other cases recently observed on this blog (see Teacher fired for her pregnancy at a Tennessee Christian School and Should misgendering lead to termination?). The case asks whether or not a teacher’s public posts can lead to a termination if those posts are against the contractual beliefs of a private educational institution. The Supreme Court has set precedent in relation to the lawful firing of religious institutions. In 2012, the Court ruled unanimously in Hossana-Tabor Evangelical Church andSchool v. EEOC in favor of religious private institutions. In this case, a teacher, Cheryl Perich, was terminated from a private religious school after returning from several months of sickness and taking out disability.  The school argued that the “ministerial exemption” should apply for this case. This exemption gives all religious institutions the right to control employment matters for ministerial positions without the court’s interference. The Supreme Court decided unanimously in favor of the school, stating that the teacher was a ministerial position because she taught daily religious classes to the students. Part of the reasoning for the court’s decision was the fact that the teacher accepted the “formal call to religion”. in her position through her commitment to the school.

            Although this case has not been decided in court yet, the precedent set by the Hossana case helps us to predict the likely outcome. Although Elizabeth Cox was fired for very different reasons than the Cheryl Perich, they both represent ministerial positions within a private institution. Cox signed a contract at the beginning of her employment that stated she had to act and speak according to Catholic beliefs, which can be compared to the Supreme Court’s interpretation of Perich’s acceptance of the “formal call to religion.” The main difference between this set precedent and the Cox lawsuit is the infringement on free speech. Cox believed that even though she signed a contract, her free speech rights on an online social media cite should not be restricted by her employer. I believe that the court will not even dispute the issue of free speech or what was posted. They will focus solely on the fact that the private employee is viewed as a ministerial position in court, and therefore can be fired and hired at the discretion of the private institution. The wide definition set by the Supreme Court in Hosanna of an employee being in a ministerial position removes many valid cases from the court simply due to the set precedent.

            The court’s decision here and in many other cases cannot be simply thrown out due to the employee’s status. Although private religious institutions should not be held up to the same standards of nonreligious private or public organizations, they should not be allowed to discriminate in hiring or restrict the free speech of their employees. The Establishment Clause protects every individual’s religious beliefs but does not protect those actions which conflict with a compelling state interest. In the case of hiring and firing of employees, the religious institutions should be allowed to express their beliefs, but not to discriminate in all employment and termination instances. Even if the employee represents the religious beliefs within their workday, religious organizations should not be able to restrict their personal beliefs and speech during their free time. The court set unconstitutional precedent in Hossana-Tabor Evangelical Church and School v. EEOC, and this precedent continues to make waves within the various courts of the nation.