Lawsuits Among Believers and the LCMS Hosanna-Tabor Decision Part 2

In Part 1 of this series I detailed the timeline in the Hosanna-Tabor lawsuit, and as I went through the list of who-did-what, I have to say….I am well and thoroughly disgusted by what I saw there. I had been aware of the SCOTUS decision when it came out, I had read the decision, and I had seen the rejoicing in the faith community.

What I hadn’t done was to read the details of the matter in the Sixth Circuit Court decision. Reading that document completely flipped the narrative as I saw it and had me shaking my head in shame at the church’s conduct.

From a secular “religious freedom” law of the land perspective Hosanna-Tabor was a huge win. The notion of government deciding who will represent a faith community should make chills run down the spine of any true believer.  That SCOTUS unanimously decided that no level of government would be allowed to stick their nose in that tent could be seen as a Very Good Thing.

On the other hand, as this situation initially developed, nothing in the record even hints that this dispute had anything to do with the “who can be a minister” question until the Hosanna-Tabor school Board tried to coerce Cheryl Perich into resigning her call. From a “do we actually believe and practice what Scriptures teaches” perspective, what happened to Cheryl should lead to the kind of reaction David had when Nathan told him “You are that man!” (2 Samuel 12:1-15)

Finally, this decision makes the enforcement of any agreement between a minister and a church completely subject to the whims of the church. In cases of a dispute between these two parties the church will always win and the minister has no recourse even if the church’s disposition of the dispute is completely odious.

Strong words?

You betcha.

Let me show you why I feel that way.

To begin with – I’m going to make some basic assumptions about what happened.

  • The Sixth Circuit Court of Appeals record is factual, accurate, and complete.
  • Cheryl Perich was a faithful teacher who did a good job because the school hired her as a called teacher, employed her from Mar 29, 2000 to the onset of her disability in June 2004, and until this incident had no complaints about her or her performance.
  • Schools aren’t known for being awash in funds. When Perich was on leave the extra staffing costs could’ve put substantial pressure on the school’s finances.
  • Principal Stacy Hoeft’s assurances that Perich would have a job when she returned was made in good faith at the time.
  • Perich kept Heoft and the school continually informed about her condition and how she was doing.

With that being said, let’s go through the timeline again:

  • Mar 2000 – Jun 2004: Cheryl Perich was a valued employee in good standing
  • Jun – Aug 2004: Perich suffers from an undiagnosed condition and goes on disability leave.
  • Sep 2004: The school year starts. Since Perich was not able to serve the school had to hire a substitute for the fall/winter term.
  • Nov 2004: The School Board tries to combine three grades into one classroom served by one teacher and one teaching assistant.
  • Dec 2004: Perich informed Hoeft that her doctor had diagnosed her with narcolepsy and that once her condition was stabilized with medication she would be able to return to work in two to three months (ie, Feb 2005 – Mar 2005).

Up to this point all is well. Both sides are acting reasonable given the circumstances and from all appearances Perich would’ve been off disability leave and back teaching in the early or middle of the winter/spring term.

Even so – the school could’ve been in a bit of a spot. Hiring a substitute teacher for roughly half a school term could’ve been more costly than hiring someone for the entire term. On top of that, having three grades taught by one teacher and an assistant wasn’t working out and that needed to change. And if it turned out Perich couldn’t return to work in the Feb – Mar time period the Board could have been looking at paying substitute teacher rates for the entire school term.

Continuing –

  • Jan 10, 2005:
    • The school board hires another teacher for the entire term in response to complaints about classroom size and teacher load.
    • Hoeft notifies Perich about the Board’s decision.

In doing this the school Board is rolling the dice and betting Perich would not be able to return during the school year even though a doctor had told them otherwise back in Dec.

  • Jan 19, 2005:
    • Hoeft and Perich discuss what Perich could do on her return.
    • Perich replies that her doctor has cleared her for a full workload on her return.
  • Jan 21, 2005:
    • Perich reiterates her prior response with additional information.
    • Hoeft responds that the school Board intends to amend the employee handbook to ask teachers on long-term disability for six or more months to resign their calls.
    • Perich had been on disability for five months at this time.

This is where things start to smell rotten in Denmark. The school Board made a choice to hire another teacher for the full school term even though they knew Perich had a credible medical prognosis that she would be off disability and able to return to work in the early or middle part of that term.

By unilaterally changing the handbook to “ask” Perich to resign right before she was able to return to work, I can only interpret this as a not-so-subtle attempt to strong-arm her into vacating her position with the carrot that if she played nice she “might” be reinstated for the next school term.

I would also note that up to this point in time there’s no indication in the record that the school had had any issues with Perich or her performance.

  • Jan 27, 2005:
    • Perich tells Hoeft she will be able to return to work between Feb 14-28, 2005.
    • Hoeft expresses surprise because a few days earlier Perich had not been able to complete her disability form due to her condition.

Just to stick a thought in here – with the right medication a lot can change over the course of three to four weeks time. It’s entirely plausible that a person unable to fill out forms one day could be capable of functioning normally a few weeks later. And if a doctor’s professional opinion is that someone will be fully functional after a specified period of time, a non-medical person needs to have a very good reason for saying otherwise. This is particularly true when said person stands to benefit from the contrary opinion.

  • Hoeft also indicated that Perich would not be teaching the third and fourth grades upon return, because the substitute teacher had a contract that ran through the end of the school year,

Signing a full-term contract with the replacement teacher (a) was the school Board’s decision, (b) was not Perich’s responsibility, and (c) did not relieve the Board of its obligations towards Perich.

  • the third and fourth grade students had already had two teachers that year and having a third would not provide a good learning environment for them.

While the possibility of a class getting a third teacher in one year would be regrettable, the school Board still had an obligation to make some kind of accommodation to employ Perich when she came off disability.  Hoeft had made a commitment earlier that Perich would have a job when she got back and Perich relied on that assurance when she went on disability.

Then things go seriously off the rails.

  • Jan 30, 2005:
    • Hosanna-Tabor holds a congregational meeting
    • At that meeting Hoeft and the Board expressed their opinion that it was unlikely that Perich would be physically capable of returning to work that school year or the next.

To reiterate:

  • Three days before this meeting Perich had told Heoft that her doctor had cleared her to work as of late Feb / early Mar.
  • Nothing in the court record even hints at a competent medical professional coming to a different diagnosis.
  • And yet there’s the school officials telling the congregation “Perich won’t be able to work this year or next.” I’m surmising nobody told the congregation about the medical opinion of Perich’s doctor which goes a long way to explaining why the congregation went along with the Board’s recommendation to offer Perich a “peaceful” release.

Continuing –

  • Feb 8, 2005:
    • Perich gets a written release to return to work without restrictions as of Feb 22, 2005.
  • Feb 9, 2005:
    • Board chair Salo contacts Perich to discuss her employment,
    • Perich responds that she wants to meet with the entire school Board.
  • Feb 13, 2005:
    • The Board re-iterates the peaceful release proposal and their concern that she would not be able to supervise students for an entire day.
    • Perich responds with her work release note and states that after Feb 22 she will not be eligible for disability and the school handbook requires her to return to work immediately after coming off disability.
    • The Board continued to request that Perich resign and asked her to respond to the peaceful release proposal by February 21, 2005.
  • Feb 21, 20015:
    • Shortly after 9PM Perich emailed Hoeft to confirm that she had decided not to resign from her position and that she planned to return to work in the morning.

At this point the conflict is strictly about Perich’s medical diagnosis:

  • Perich has been told by a competent medical professional that she was cleared to return to work as of Feb 22, 2005.
  • The school Board is inferring the doctor’s diagnosis is incorrect, that Perich will not be able to return to work, and she will not be able to supervise a classroom of students.

(I’m tempted to put “strictly” in quotes because the record has no medical basis for the Board’s contrary opinion. On the other hand, there’s plenty in the record to infer that Board was after something else and was using Perich’s medical condition as cover to get what they really wanted.)

Conspicuous by its absence from the record is any concern about:

  • Perich’s faithfulness to scripture,
  • her conduct as a person,
  • her qualifications to be a commissioned minister, or
  • any other aspect of her faith or spiritual condition that would negatively impact her service as a commissioned minister.

In addition, the record has no mention of the LCMS dispute resolution process in the correspondence between Hosanna-Tabor and Perich. It would seem that following the dispute resolution process wasn’t as important as the powers-that-be make it out to be.

The next installment will pick up with the events of Feb 22, 2005 and following.

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