Clash of the Canons and Civil Law at GTS

The recent meltdown at the country's oldest theological seminary (and the only Episcopal seminary under the direct supervision of ECUSA) puts to the test some of the canonical abuses and litigation strategy implemented in the last few years by the Church's leadership at 815 Second Avenue. Eight of the ten full-time faculty employed by General Theological Seminary declared in a September 17 letter to the Board of Trustees that due to the "hostile work environment" created by the Seminary's Dean and President, the Very Rev. Kurt H. Dunkle, they were unable to continue to work under him.

The phrase "hostile work environment" is drawn from the well-developed body of labor law enforced in the United States by the National Labor Relations Board. However, ever since a decision by the United States Supreme Court in 1979, the NLRB's jurisdiction has been held not to extend to religious schools and their faculties (including lay faculty), due to concerns over entanglement with religious rights under the First Amendment. Just as with all the recent Church property disputes, ECUSA has been at the forefront of insisting that the civil courts must defer to it in all civil litigation involving its religious affairs, governance and operations.

Nevertheless, the eight employees have announced that they have formed a union, and want the Seminary to negotiate their demands with their authorized representatives. (Scroll down to the letter of September 25, second page.) Those demands are five in number:

1. The immediate appointment of a committee of Board members, to be determined by the faculty, to meet with us to discuss conditions necessary for moving forward as an institution during the October meeting of the Board of Trustees.

2. That action be taken to empower the faculty with immediate oversight over the curriculum, schedule, worship, and overall program of formation for the seminary. This should also involve the appointment of a faculty council who will implement a pattern of worship consistent with the Book of Common Prayer (1979).

3. Identification and retention of a qualified person, external to the institution, to offer pastoral support to staff, students, and faculty during this period of transition and acute stress. We also seek the appointment of a Dean of Students who can ensure that the ongoing spiritual and pastoral concerns are being adequately met and their voices heard.

4. Steps be immediately taken to restore and ensure that the faculty members be afforded due process in connection with all appointments, worship and formation, and the implementation of our curriculum. The Academic Dean should be empowered with the authority necessary to implement properly the academic program, consistent with the standards of the Association of Theological Schools (ATS) and our own recent Declaration of the Way of Wisdom.

5. Retention of a qualified fundraiser to begin a capital campaign to rebuild the seminary’s endowment and meet the operational costs of the seminary.

The Board has thus far resisted acceding to any of the faculty's demands (one Board member wrote on her Facebook page that while Nos. 3 and 5 were "not bad ideas," the rest were "impossible").
Instead, apparently under the guidance of its Chair, the resigned (retired) Rt. Rev. Mark Sisk, and of Dean Dunkle, the Board issued a statement to the effect that it had voted "with great regret" to accept the resignations of the eight faculty members.

In doing so, the Board took a leaf from the book at 815, where the Presiding Bishop has unilaterally rid herself of pesky dissident bishops by abusing the renunciation of vows canon. She will take any form of written or oral statement expressing disagreement with her jurisdiction as the required written declaration of "an intention to be released and removed from the ordained Ministry of this Church and from the obligations attendant thereto" (Canon III.12.7 [a]) -- regardless of what the bishop in question says to the contrary.

No one, however, is talking at GTS of renunciation of orders -- but only of resignation from a full-time faculty position. Nevertheless, the same contract principles should apply: one cannot read a resignation into a demand that the Board redress what has become a hostile workplace, and a refusal to continue to perform assigned duties until the Board acknowledges the problem and begins to address it.

In other words, the argument that the faculty members have breached their respective contracts to teach classes at GTS is unavailable in these circumstances, because no one can be required to work in a hostile environment, and the environment is the Dean's (and ultimately the Board's) responsibility. If the faculty is correct in their charges, the first breach occurred on the part of the Dean, and unless the Board cures the problem, it will be complicit in that same breach -- thereby excusing performance on the part of the faculty while the breach continues.

And what has the Board done in response to the faculty's demands? It called upon the pro bono services of one of New York's largest law firms, Covington & Burling, to make a formal investigation into the charges made against Dean Dunkle, and declared it would take no further steps until that investigation was completed. As of yesterday, the law firm was interviewing in its offices each faculty member separately to gather evidence for its report to the Board.

But the Board has not suspended Dean Dunkle, or otherwise relieved him of responsibility, pending the outcome of the investigation. So the ultimate right of the faculty to go on strike will first depend upon whether the Board finds their charges were justified.

The charges are described generally in the second through the fifth paragraphs of the faculty members' letter of September 17. For the most part they amount to saying that Dean Dunkle seems incapable of acting with sensitivity toward Asians, women, African-Americans, and gays, and that as a consequence he offends and intimidates both faculty and students alike. In other words, this is a quintessential clash between Episcopal authoritarianism and Episcopal liberalism.

Declaring that the September 17 letter amounted to a letter of resignation was an authoritarian act. And to that extent, it harks back to the authoritarian manner in which ECUSA's Presiding Bishop has chosen to deal with those bishops and clergy who openly disagree with her, and with what she sees as ECUSA's priorities.

There is another Canon to which the GTS Board may be turning to justify its authoritarian action -- and if so, it would once again be imitating the litigation strategy of 815 against departing parishes. Canon I.17.8 (in a section that deals with laity in the Church) provides:

Any person accepting any office in this Church shall well and faithfully perform the duties of that office in accordance with the Constitution and Canons of this Church and of the Diocese in which the office is being exercised.

In cases where vestries have voted to withdraw their parish from an Episcopal Diocese, ECUSA and its attorneys have always invoked this Canon, and argued that by the very act of voting to withdraw, the individual vestry members had disqualified themselves from further service on the vestry. A number of civil courts in California and elsewhere have upheld that argument -- turning the Canon into a sort of "ejector seat" mechanism.

(The question of how a vestry position for a local parish is "an office in this Church" has never stopped 815 from applying the Canon -- and so the issue of whether a faculty position at GTS is likewise such an "office" will no doubt not detain those who want to contend that the faculty have in effect resigned their positions. Moreover, since the faculty positions are arguably all lay positions within GTS, then the Board would circumvent the issue that four of the faculty happen to be ordained clergy, and so not subject to Canon I.17.8.)

The Church's Canons, however, run in both directions. As an ordained Episcopal priest, Dean Dunkle is subject to the disciplinary canons. He is canonically resident in the Diocese of Florida (where, fittingly enough, he served as Bishop Howard's point man in litigating against departing parishes). Already on the Facebook page created to support the eight faculty members, there have been calls to lodge complaints against Dean Dunkle with that Diocese's Intake Officer for violating the Canons of Title IV. The question there, however, will be whether the Bishop of Florida will want to be viewed as interfering in a matter that involves the internal governance of GTS, and that accordingly should be left to the Board.

Thus we have all kinds of balls up in the air at GTS. The faculty has organized into a union, but the NLRB will not take jurisdiction over religious schools and their unions, so the Board cannot be ordered to negotiate with it. The Bishop of Florida has putative disciplinary authority over the GTS Dean, but he likewise will probably not take jurisdiction. Whether any of ECUSA's Canons may be said to override the terms of the faculty's employment agreements again is a question without a court that can decide it. And we are not informed as to whether the faculty members even have written contracts of employment with GTS -- or whether, if they do, their employment is tenured, or is at will in some cases.

It looks, then, as though the parties will just have to come together to sort things out. And after all, isn't that the Christian thing to do?