The opinion
FOR PUBLICATION
May 29 2013, 9:33 am
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DAVID L. SWIDER NELSON A. NETTLES
BRYAN H. BABB CYNTHIA E. LASHER
Bose McKinney & Evans LLP Norris Choplin Schroeder LLP
Indianapolis, Indiana Indianapolis, Indiana
PATRICK T. GILLEN ATTORNEY FOR AMICUS CURIAE:
Naples, Florida
MICHAEL C. HEALY
THOMAS BREJCHA State of Indiana Civil Rights Commission
PETER BREEN Indianapolis, Indiana
Thomas More Society
Chicago, Illinois
IN THE
COURT OF APPEALS OF INDIANA
FISHERS ADOLESCENT CATHOLIC )
ENRICHMENT SOCIETY, INC., )
)
Appellant-Respondent, )
)
vs. ) No. 93A02-1202-EX-145
)
ELIZABETH BRIDGEWATER o/b/o )
ALYSSA BRIDGEWATER, )
)
Appellee-Complainant. )
)
APPEAL FROM THE FINAL JUDGMENT OF
THE INDIANA CIVIL RIGHTS COMMISSION
The Honorable Robert D. Lange, Administrative Law Judge
No. EDha08100620 & EDrt08110681
May 29, 2013
OPINION - FOR PUBLICATION
VAIDIK, Judge
Case Summary
Fishers Adolescent Catholic Enrichment Society, Inc. (“FACES”), is a private,
non-profit organization with religious, educational, and social features.1 FACES was
formed in 2006 to provide enrichment opportunities for homeschooled children. Its
founders are Catholic parents and the majority, though not all, of the members are
Catholic. When this dispute arose, FACES offered a number of educational courses to its
high-school-aged members, none of which related to religion. FACES also sponsored
social events. In fall 2008, FACES sponsored a dance, and one FACES parent, Elizabeth
Bridgewater, requested special dietary accommodations for her child, Alyssa, who
planned to attend. Alyssa suffers from a dietary condition that can cause a life-
threatening allergic reaction if she eats certain foods. The Bridgewaters were unhappy
with FACES’ response to their request and filed an accommodation complaint with the
Indiana Civil Rights Commission (“ICRC”). The following month, the family was
expelled from FACES. They filed an additional complaint with the ICRC, alleging that
FACES had retaliated against them because they filed the accommodation complaint.
FACES moved to dismiss the accommodation and retaliation complaints, arguing
that the ICRC did not have jurisdiction over FACES, which it characterized as a religious
1
According to FACES’ founders, the term “fishers” was “deliberately worked into the
organization’s name so as to reflect the idea that Christ was a fisher of men and the members of FACES
were engaged in a Christian endeavor.” Appellant’s Br. p. 10.
2
organization. An administrative law judge (“ALJ”) ultimately ruled that the ICRC had
jurisdiction under Indiana’s Civil Rights Law (“the civil rights law”) because FACES
“relates to” education. The same ALJ later ruled on the merits of the Bridgewaters’
complaints and concluded that FACES did not commit an unlawful discriminatory
practice because it accommodated Alyssa’s dietary needs, but did commit an unlawful
discriminatory practice by expelling the Bridgewater family after they filed the
accommodation complaint. The ALJ awarded the Bridgwaters $5000 in damages and
ordered FACES to: (1) cease and desist from retaliating against persons because they
filed a complaint with the ICRC; (2) post a link to the ALJ’s order on all websites on
which they communicated information about the case; and (3) offer reinstatement of the
Bridgewater family to full membership, including all benefits. Both parties appealed the
order to the ICRC. The order was affirmed in all respects, except the amount of damages
was decreased.
Both parties now appeal. The main issues raised on appeal relate to the ICRC’s
jurisdiction over FACES and the corrective action FACES was ordered to undertake. In
addition, the parties challenge the ALJ’s conclusions as to accommodation, retaliation,
and damages. We conclude that the nature and features of FACES make the organization
sufficiently related to education such that the ICRC’s jurisdiction is proper, and we
uphold the ALJ’s conclusions, with one exception. We find the ALJ’s order that FACES
post its decision on all websites on which they communicated information regarding the
3
case to be unconstitutional compelled speech, and we reverse this portion of the order.
We affirm in part and reverse in part.
Facts and Procedural History
FACES was formed in 2006 by two Catholic mothers, Virginia Zender and
Vanessa Alexander. It is a private, non-profit organization incorporated in Indiana since
2007. See Appellant’s App. p. 43-45. FACES receives charitable funding from
organizations such as the United Way and is recognized under section 501(c)(3) of the
Internal Revenue Code.
FACES has religious, educational, and social features. According to FACES’
founders, the organization was created to provide “a group where teenagers could get
together to learn and socialize in an environment consistent with their Catholic faith,”
Appellant’s Br. p. 8, and
to implement the teaching of the Roman Catholic Church, more
specifically: (1) the teaching that parents have primary responsibility for the
education of their children; and (2) the teaching that members of the church
should demonstrate solidarity and fraternal charity as they endeavor to live
their vocation by educating children in their faith and preparing them to
serve the common good.
Id. at 9. FACES has both Catholic and non-Catholic members.
Around the time of the events in this case, FACES offered courses for its high-
school-aged members in subjects such as Microsoft Word and PowerPoint, computer
programming, speech, drama, biology, and French. Members had to pay a fee and sign a
waiver of liability to enroll in the courses. See Appellant’s App. p. 78. Once enrolled,
FACES members “me[t] once per week for some thirty weeks during the school year” in
4
public spaces such as local libraries and bookstores. Id. at 40, 81-82. The weekly
meeting would begin at 9:00 a.m. and last until approximately 4:00 p.m. Id. at 77. Some
weekly meetings would end after 4:00 p.m., when students were given tests at the end of
the day. Id. The courses offered by FACES were taught by volunteer teachers, and, at
other times, by Zender and Alexander. Id. at 79. Some of the courses, like French and
biology, were taught using textbooks, while others were taught using teacher-generated
materials. Id. at 67, 79-80. FACES did not offer any religious courses when this dispute
arose. FACES did not issue grades, transcripts, or diplomas. In addition to providing
educational courses, FACES sponsored social activities.
The Bridgewater family joined FACES in 2007. Elizabeth Bridgewater and her
daughter Alyssa were particularly involved in the group. In fall 2008, FACES planned to
host an “All Souls’ Masquerade Ball” to coincide with the Catholic feast day of All
Souls’ Day. Elizabeth was assigned the task of planning the ball, which was to be held at
the Ritz Charles in Carmel. Elizabeth frequently communicated with Ritz Charles staff to
plan the event, including the menu. Because Elizabeth’s daughter Alyssa suffers from
eosinophilic esophagitis (“EE”), a condition that requires Alyssa to adhere to a strict diet
to avoid a life-threatening allergic reaction in which her ability to breathe and swallow is
impaired or even stopped altogether, Elizabeth told Ritz Charles staff that she and Alyssa
would need to eat different meals from the other attendees.2 When Elizabeth told Zender
2
Eosinophilic esophagitis causes a type of white blood cell (eosinophil) to build up in the
esophagus as a reaction to foods, allergens, or acid reflux. When that happens, the eosinophils can
inflame or injure the esophageal tissue. See http://www.mayoclinic.org/eosinophilic-esophagitis/ (last
visited April 30, 2013). The parties dispute whether Alyssa’s condition qualifies as a disability. The
5
and Alexander of this plan, Alexander told Elizabeth that she would take over the
planning duties and told Elizabeth to stop contacting the Ritz Charles.
Months later, when speaking with Alexander about the ball, Elizabeth learned that
the menu for the ball included chicken. Elizabeth told Alexander that Alyssa could not
eat chicken and would need beef instead. Alexander rejected this idea, telling Elizabeth
that the boys attending the ball would be jealous if Alyssa received steak and they did
not. Some time later, Elizabeth followed up on the issue in an email to Alexander and
Zender, again requesting that Elizabeth be allowed to order steak, and offering to pay the
price difference. If steak was offensive, Elizabeth asked if Alyssa could order a
hamburger. Alexander and Zender rejected Elizabeth’s proposed solutions. Elizabeth
responded by asking if the Bridgewaters could supply their own dinner for Alyssa, and, if
so, whether they would receive a discount on the ticket price for the ball. Alexander and
Zender said that the Bridgewaters could bring Alyssa’s meal, but told Elizabeth that there
would be no ticket-price adjustment.
The dispute continued. In October 2008, the Bridgewaters wrote to the FACES
board—which consisted of Zender, Alexander, and a third woman, Margaret Beard—that
Alyssa would be humiliated if her mother were to bring her meal to the ball. The
Bridgewaters said that the Ritz Charles was willing to prepare a special meal for Alyssa,
and renewed their request that this be allowed. They did not receive a response from the
Bridgewaters argue that FACES has waived any challenge to Alyssa’s condition by raising the issue for
the first time in its reply brief. We agree that this issue was not properly raised before FACES’ reply
brief. See Ind. Appellate Rule 46(C) (“No new issues shall be raised in the reply brief.”). Therefore, for
purposes of this appeal, we assume that Alyssa has a disability as a matter of law.
6
board. On October 9, 2008, the Bridgewaters filed a discrimination complaint with the
ICRC, alleging that FACES had discriminated against Alyssa by refusing to provide a
reasonable accommodation for her medical condition at the ball. FACES responded,
stating that reasonable accommodations had been provided and Alyssa had not been
prohibited from attending the event.
Ultimately, the Bridgewaters ordered Alyssa a separate meal from the Ritz
Charles, which they paid for. Alyssa attended the ball on November 2, 2008, without
incident.
Four days after the ball, the Bridgewaters received a letter from FACES telling
them that they were being expelled from the organization. The letter gave four reasons
for the expulsion: (1) Elizabeth had voiced concerns about a FACES class to a teacher
rather than to the FACES board; (2) Elizabeth had, on one occasion, refused to leave a
classroom when asked; (3) Alyssa brought a tape recorder to one of her classes; and (4)
Elizabeth made contact with the Ritz Charles after Alexander had told her not to do so.
Id. at 531-32. FACES’ decision came as a surprise to the Bridgewaters, who had never
before been told of any complaints about their behavior.
Elizabeth responded in writing to the reasons for the family’s expulsion. She
explained that her discussion with a teacher was not related to instruction, but rather the
dispute about Alyssa and the ball. Elizabeth denied having stayed in the classroom after
being asked to leave, and she stated that there was no rule prohibiting students from using
7
tape recorders in FACES classes. Finally, she stated that she contacted the Ritz Charles
after being instructed not to in order to discuss Alyssa, not on behalf of FACES.
In November 2008, the ICRC issued a notice stating that probable cause existed to
believe that FACES had committed an unlawful discriminatory practice. Id. at 33-35.
The same day, the Bridgwaters amended their complaint to include the allegation that the
unlawful discrimination had occurred in education and/or public accommodations
because of Alyssa’s disability. The Bridgewaters also filed a second complaint with the
ICRC, alleging that FACES had unlawfully retaliated against the family by expelling
them because they had filed an accommodation complaint with the ICRC. FACES
denied that it had retaliated against the Bridgewaters and moved to dismiss the
complaints, arguing that the ICRC did not have subject-matter jurisdiction over FACES
because it was a religious organization—not an educational one as the Bridgewaters
claimed.
A hearing was held before an ALJ for the ICRC. Following the hearing, the ALJ
ruled for the Bridgewaters, concluding that the ICRC had jurisdiction over the
accommodation complaint. The ALJ explained that the civil rights law prohibited
discrimination “relating to” education. And the ALJ concluded that FACES was indeed
related to education:
FACES is a religious-based not[-]for[-]profit corporation recognized as
such under section 501(c)(3) of the Internal Revenue Code. FACES was
formed by a group of parents of home schooled children and its purpose is
to provide educational, spiritual, and social enhancement for those children
by providing them with opportunities to interact with other adolescents that
are not inherent in the home schooling experience. FACES admits family
8
affiliates who desire a Catholic environment and who pay a modest annual
fee. It meets once a week for some thirty weeks during the school year and
periodically for limited social engagements, such as the ball out of which
this case arose. At the time of its motion, FACES had eleven family
affiliates.
FACES is a small organization that has genuinely selective criteria for
membership. It does not offer goods, services, or facilities to the general
public and, for that reason, is not a public accommodation as that term is
defined in the [civil rights law].
[T]here is no provision defining, for purposes of the [civil rights law], what
education is. It is clear . . . that “[e]very discriminatory practice relating to
. . . education . . . shall be considered unlawful unless . . . specifically
exempted from this chapter.” IC 22-9-1-3(1) (emphasis added).
FACES argues that the [civil rights law] should not be interpreted to apply
because to do so would excessively entangle the [civil rights law] with
religion, entanglement that would violate both the United States
Constitution, U.S. Const., Am. 1, and the Indiana Constitution, Ind. Const.,
Art. 1, §§ 3 and 4.
As reasonable as that argument is, it has no application to the issues raised
in this particular case. There is no reason to believe that an inquiry into
whether FACES refused to provide a reasonable accommodation to
Alyssa’s food allergies would require any consideration of matters at the
core of FACES’ religious basis.
Id. at 116 (formatting altered). In light of the ALJ’s ruling that the ICRC had jurisdiction
over the complaint, the ICRC consolidated the Bridgewaters’ accommodation and
retaliation complaints and conducted a two-day hearing on the matters in September
2010.
A year later, the ALJ entered its order with findings of fact and conclusions of
law. Id. at 9-22. The ALJ found that FACES did not commit an unlawful discriminatory
practice, explaining that FACES “did provide a reasonable accommodation for Alyssa
9
[at] the ball. It may not have been the ideal accommodation and it was not the specific
accommodation in Elizabeth’s most recent request for accommodation, but it was a
reasonable accommodation.” Id. at 16. The ALJ also noted that “what was reasonable
for FACES, a tiny organization putting on its very first ball and being operated by
volunteers for whom FACES is not their primary occupation” might not have been
reasonable for a larger, more established and professional organization. Id.
However, the ALJ concluded that FACES did commit an unlawful discriminatory
practice when it expelled the Bridgewater family from the organization in retaliation for
filing the accommodation complaint, saying, “the decision to expel the Bridgewaters is
too close in time to the filing of the complaint to consider it coincidental.” Id. at 17. The
ALJ addressed each of FACES’ stated reasons for expelling the family:
One [reason] involved direct contact with a volunteer teacher, which does
violate a FACES policy; however, it is hardly uncommon to contact the
person with whom one has an issue. It is unworthy of credence that a
violation of this policy would be a motive for expulsion.
The second reason cited was a refusal to leave a class when requested. The
e-mail from the teacher [that] Zender solicited reflects that Elizabeth left
when the teacher arrived, not that she refused to leave when requested.
This, then, [could not] have been a reason for the expulsion.
Another reason cited by FACES for expelling the Bridgewaters is Alyssa’s
use of a tape recorder. This behavior, like that involved with the first
reason, is fairly typical behavior and in this instance, FACES does not cite
a rule or a policy it contravened. This reason, too, is unlikely to have
caused the expulsion.
The fourth reason cited by FACES – contacting the Ritz after being told not
to – does have some validity and would carry more weight if it were not so
tied in with the event that led to the filing of the [accommodation]
complaint.
10
Id. at 17-18 (formatting altered). Finally, the ALJ explained that there could be “no
doubt that Alyssa experienced emotional distress as a result of being dismissed from
FACES because of the filing of the [accommodation] complaint.” Id. at 18. The ALJ
noted that Alyssa had been professionally treated for psychological conditions and had
medication prescribed. Id. But the ALJ also noted that not all of Alyssa’s stress was
attributable to the dismissal: “some of that distress is doubtlessly attributed to how
FACES dealt with the food issue at the ball, which has been found to be lawful, and it is
probable that some of her distress arose from factors in her life that have nothing to do
with FACES.” Id. The ALJ awarded Alyssa $5000 in damages.
The ALJ ordered FACES to undertake the following corrective action: (1) cease
and desist from retaliating against persons because they filed a complaint with the ICRC;
(2) post a link to the ALJ’s order on all websites on which they communicated
information about the case; and (3) offer reinstatement of the Bridgewater family to full
membership, including all benefits. Id. at 21.
Both parties appealed the order. FACES challenged the ALJ’s conclusions
regarding jurisdiction, retaliation, and corrective action. The Bridgewaters challenged
the ALJ’s conclusions regarding accommodation and damages. After additional briefing
and argument before the ICRC chairperson and other commission members, the ICRC
issued its order, affirming the ALJ’s order in all respects, except for the original amount
of damages awarded to the Bridgewaters. Id. at 23-25. The ICRC reduced the amount of
damages to $2500, saying that the previous damage award was “too high.” Id. at 24.
11
Both parties now appeal. The ICRC appears as Amicus Curiae on behalf of the
Bridgewater family.3
Discussion and Decision
This case requires interpretation of Indiana’s civil rights law. The purpose of the
civil rights law is set forth in Indiana Code section 22-9-1-2 and provides:
Sec. 2. (a) It is the public policy of the state to provide all of its citizens
equal opportunity for education, employment, access to public
conveniences and accommodations . . . and to eliminate segregation or
separation based solely on race . . . disability . . . since such segregation is
an impediment to equal opportunity. Equal education and employment
opportunities and equal access to and use of public accommodations and
equal opportunity for acquisition of real property are hereby declared to be
civil rights.
Indiana Code section 22-9-1-6 vests the ICRC with the authority to “receive and
investigate complaints alleging discriminatory practices.” Included in the definition of
unlawful discrimination is “every discriminatory practice relating to . . . education . . . .”
Ind. Code § 22-9-1-3(1)(4). The civil rights law does not explain what “relates to”
education, and the nature of this case, which involves both religion and education, makes
this inquiry complicated. What “relates to” education under Indiana’s civil rights law is
the threshold, first-impression issue disputed by the parties, and the first question facing
this Court.4 And because this case involves religion, First-Amendment principles act as a
constitutional “check” on our decision.
3
We held oral argument in this case on March 19, 2013. We thank the parties for their able
advocacy.
4
The parties’ briefs focus on the issue of what “relates to” education, and they spend very little
time discussing the other jurisdictional basis at issue—whether FACES is a public accommodation. See
12
Where the ICRC has jurisdiction, the civil rights law prohibits retaliation against
any person who files a complaint—or is otherwise involved in related proceedings—with
the ICRC. Ind. Code § 22-9-1-6(g). The civil rights law’s definition of “person”
includes one or more individuals, partnerships, associations, organizations, cooperatives,
and legal representatives, among others. Ind. Code § 22-9-1-3(a). If the ICRC
determines that a person has committed an unlawful discriminatory practice, it shall order
that person to “cease and desist from the unlawful discriminatory practice and require[e]
the person to take further affirmative action . . . .” Ind. Code § 22-9-1-6(j). The ICRC
may order the person who committed unlawful discrimination to pay damages and post a
notice of Indiana’s public policy concerning civil rights and the person’s compliance with
that policy, among other actions. Id.
After concluding that the ICRC had jurisdiction over the Bridgewaters’ complaints
and that FACES had committed an unlawful discriminatory practice in its retaliatory
expulsion of the Bridgewaters, the ALJ ordered FACES to take corrective action;
specifically, to cease and desist from retaliating against persons because they filed a
complaint with the ICRC, post a link to the order on any websites on which it
communicated information regarding this case, and offer reinstatement to the
Bridgewater family. Whether the ICRC can order FACES to do this is the second major
question posed in this appeal.
Ind. Code § 22-9-1-3(m) (“‘Public accommodation’ means any establishment that caters or offers its
services or facilities or goods to the general public.”). The ALJ determined that FACES was not a public
accommodation, and we agree. See Appellant’s App. p. 116. For this reason and because the parties
devote the majority of their briefs to the educational argument, we do not address this secondary issue.
13
The remaining issues relate to the ALJ’s conclusions about whether FACES
committed unlawful discriminatory practices. The Bridgewaters also ask this Court to
reinstate the original amount of damages ordered by the ALJ.
When reviewing an administrative decision, we must determine “whether
substantial evidence, together with any reasonable inferences that flow from such
evidence, support the [agency’s] findings and conclusions.” Zeller Elevator Co. v. Slygh,
796 N.E.2d 1198, 1206 (Ind. Ct. App. 2003) (citing Walker v. Muscatatuck State Dev.
Ctr., 694 N.E.2d 258 (Ind. 1998)), trans. denied. We do not reweigh the evidence or
judge the credibility of witnesses, and we consider only the evidence most favorable to
the ICRC’s findings. Id. (citing McClain v. Review Bd. of Ind. Dep’t of Workforce Dev.,
693 N.E.2d 1314 (Ind. 1998)). However, if the question before us is primarily a legal
question, “we do not grant the same degree of deference to the [agency’s] decision, for
law is the province of the judiciary and our constitutional system empowers the courts to
draw legal conclusions.” Id. (citing Walker, 694 N.E.2d at 266).
I. Jurisdiction
FACES first challenges the ALJ’s conclusion that the ICRC has jurisdiction over
FACES because it “relates to” education.5 Because the civil rights law does not explain
what “relates to” education, we must determine how this phrase should be defined.
5
In its brief, FACES set forth an additional argument regarding jurisdiction. It claimed that the
employer exclusions found in Indiana Code section 22-9-1-3 should apply to a discriminatory practice
“relating to” education, even if it does not involve employment. See Appellant’s App. p. 33-35.
However, at oral argument, FACES abandoned this claim. See Oral Arg. Video Tr. 21:00-40. Therefore,
we need not address this argument.
14
FACES also argues that permitting the ICRC to assert its jurisdiction here would
constitute religious entanglement and violate the First Amendment.
When courts construe statutes, the goal is to determine and give effect to the
legislature’s intent. Cooper Indus., LLC v. City of South Bend, 899 N.E.2d 1274, 1283
(Ind. 2009). The first place courts look for evidence is the statutory language. Id. We
examine statutes as a whole and presume the legislature intended the statute’s language to
be applied logically and consistent with the statute’s underlying policy. Id. Thus, we can
look to the underlying purpose of the provisions and to similar sections within the Indiana
Code for guidance. Id. at 1284. Another factor to consider when determining legislative
intent is the statute’s location within the Indiana Code. Januchowski v. N. Ind. Commuter
Transp. Dist., 905 N.E.2d 1041, 1045 (Ind. Ct. App. 2009), trans. denied.
The ALJ concluded that the “relates to” education requirement was satisfied here.
See Appellant’s App. p. 116. At oral argument, the parties offered different
interpretations of this phrase. FACES argued that in order for a group to “relate to”
education, it must be a formal institution whose primary purpose is education. Oral Arg.
Video Tr. 09:38, 12:30-13:04. FACES argued that its primary purpose was religion, not
education. The Bridgewaters, however, argued that determining whether a group “relates
to” education should be a case-specific inquiry, guided by a number of factors, one of
which might be religion. Id. at 53:35-54:12. But there is no easy interpretation due to the
nature of this case. We have before us a religious organization founded by Catholic
parents to provide enrichment opportunities for their homeschooled children. FACES
15
argues—and we do not question—that religion permeates all of its activities.
Nonetheless, the majority of FACES’ enrichment opportunities are educational, and
secular in substance.
Homeschooling and religion are two areas in which people can largely expect to
be free of government regulation, and often they are intertwined. Parents have many
reasons for choosing to homeschool their children, but a common reason is a desire to
provide moral or religious instruction. In this instance, parents make a conscious choice
to place themselves outside state authority as it relates to their child’s education. And
some parents may, like those here did, opt to supplement their child’s homeschooling in a
manner consistent with their religious beliefs. We are sensitive to this and wary of
intruding upon their freedom to do so. And yet we believe that a group—even a religious
one—may take certain steps to place itself within the purview of the ICRC in this state.
In determining whether this has occurred, we believe it is necessary to consider the
group’s nature and educational features; particularly the level of the group’s formality
and the delivery and substance of the education it provides.
Here, FACES has taken steps to formalize itself. It was incorporated in 2007. It
receives charitable funding from organizations such as the United Way and is recognized
under section 501(c)(3) of the Internal Revenue Code. It has a board of directors
consisting of its founders and a third group member. This formality also extends to the
delivery of the education offered. FACES offered courses for its high-school-aged
members in subjects such as Microsoft Word and PowerPoint, computer programming,
16
speech, drama, biology, and French. Members had to pay a fee and sign a waiver of
liability to enroll in the courses and once enrolled, met weekly for some thirty weeks
during the school year in public spaces such as local libraries and bookstores. Classes
began at 9:00 a.m. and continued until approximately 4:00 p.m., although some meetings
would end after 4:00 p.m. when students were being tested. Courses were taught by
volunteer teachers and sometimes by adult members, using textbooks or teacher-
generated materials. As to the substance of the education, none of the classes offered
when this dispute arose pertained to religion. In light of these facts, we conclude that
FACES is sufficiently related to education such that the ICRC’s jurisdiction is proper.
This is not to say that FACES is somehow not “religious enough.” Nor do we
conclude that FACES’ religious purpose is secondary to, or any less important than, its
educational purpose. We are tasked with giving effect to the plain language of the
statute, which prohibits unlawful discrimination in “every discriminatory practice relating
to . . . education . . . .” Ind. Code § 22-9-1-3(1)(4). The statute does not include
comparative language, and we decline to add it. We must simply determine whether the
“relating to” requirement is satisfied. In the case before us, we conclude that it is.6
And there is no need to insert a comparative feature into our analysis. The First
Amendment functions as a constitutional safeguard in this respect and would preempt any
unconstitutional application of Indiana’s civil rights law. The United States Supreme
6
FACES argues that our holding will produce an absurd result. It argues that if FACES is
“related to” education, then play dates, study groups, and booster clubs, among others, could also be
“related to” education. See Appellant’s App. p. 24. We disagree. By considering the level of formality
and the nature of the education involved, we can exclude these examples.
17
Court has held that the First Amendment prohibits governmental interference with
religious tenets—matters of faith, doctrine, or government of religious institutions. See
Hosanna-Tabor Evangelical Lutheran Church and Sch. v. Equal Emp’t Opportunity
Comm’n, 132 S. Ct. 694 (2012). FACES’ main argument with respect to Hosanna-Tabor
is that its First-Amendment analysis applies to the remedies ordered by the ICRC, and we
address that issue later in this opinion. See infra, p. 24-29. However, FACES also cites
Hosanna-Tabor for the proposition that permitting the ICRC to assert its jurisdiction here
would constitute religious entanglement and violate the First Amendment. We cannot
agree. The ICRC inquired into FACES’ accommodation of Alyssa’s dietary needs and
retaliatory expulsion of the Bridgewater family. There is simply no religious
entanglement issue here—there is no evidence that either of these inquiries resulted in
governmental interference with the tenets of the Catholic faith.
II. ALJ Decisions
Having concluded that the ICRC has jurisdiction over this matter, we now
consider the ALJ’s decisions. The Bridgewaters argue that the ALJ erred both in finding
that FACES reasonably accommodated Alyssa at the ball and by reducing the amount of
damages, and FACES argues that the ALJ erred in finding that it engaged in unlawful
retaliation.
A. Disability and Reasonable Accommodation
FACES does not contend until its reply brief that Alyssa is not disabled as a matter
of law, so that argument is waived. Ind. Appellate Rule 46(C) (“No new issues shall be
18
raised in the reply brief.”). Therefore, for purposes of this appeal, we assume that Alyssa
has a disability as a matter of law.
On the other hand, the Bridgewaters argue that the ALJ erred in finding that
Alyssa was reasonably accommodated at the ball. They contend that FACES’ suggestion
for accommodating Alyssa’s dietary restrictions—having Elizabeth bring Alyssa a meal
from home—deprived her of the right to be served food prepared by the Ritz Charles like
every other child at the event. While Alyssa was able to have a special meal prepared by
the Ritz Charles, the Bridgewaters argue that this was still discriminatory because no
discount was given for her ticket, meaning that Alyssa had to pay twice for one meal
when no one else did. We disagree.
The provided accommodation need only be reasonable and not optimal, see
Kersting v. Wal-Mart, 250 F.3d 1109, 1116 (7th Cir. 2001), so FACES acted in
compliance with the law when it accepted Elizabeth’s proposal of bringing a meal from
home. While this option may not have been ideal, it was a reasonable accommodation, as
it was the best way to ensure the safety of the food for Alyssa. In the end, Elizabeth
chose to pursue another course of action, but that does not mean that FACES did not act
reasonably in accepting her original proposal for accommodating Alyssa at the event.
We therefore find that there is sufficient evidence to support the ALJ’s finding that
Alyssa was reasonably accommodated.
B. Retaliation
19
FACES contends that the ALJ erred in finding that it engaged in unlawful
retaliation by expelling the Bridgewaters. In order to succeed on a retaliation claim, a
plaintiff must first show a prima facie case of discrimination by a preponderance of the
evidence. Powdertech, Inc. v. Joganic, 776 N.E.2d 1251, 1262 (Ind. Ct. App. 2002).
Then, the burden shifts to the defendant to show a legitimate and nondiscriminatory
reason for its action. If the defendant is able to carry that burden, then the plaintiff has
the chance to show again by a preponderance of the evidence that the explanation given
by the defendant is a pretext. Id. Pretext may be demonstrated by showing that the stated
reason for action has no basis in fact; that the stated reason was not the actual reason for
action although it is based on fact; or that the stated reason is insufficient to warrant the
action taken by the defendant. See Dale v. J.G. Bowers, Inc., 709 N.E.2d 366, 369 (Ind.
Ct. App. 1999). Additionally, proximity in time between the filing of a complaint and the
retaliatory action may be considered evidence that the stated reason for the defendant’s
action is a pretext. See Whirlpool Corp. v. Vanderburgh Cnty.-City of Evansville Human
Relations Comm’n, 875 N.E.2d 751, 758 (Ind. Ct. App. 2007).
The ALJ found that the Bridgewaters met their burden of making a prima facie
case of discrimination. Indiana Code section 22-9-1-6(g) prohibits “any person from
discharging, expelling, or otherwise discriminating against any other person because the
person filed a complaint . . . .” By showing that they were expelled by FACES only
twenty-two days after FACES received notice of the original accommodation complaint,
Appellant’s App. p. 20, the ALJ determined that the Bridgewaters met this initial burden.
20
FACES gave four reasons for its decision to expel the Bridgewaters: (1) Elizabeth
had voiced concerns about a FACES class to a teacher rather than to the FACES board;
(2) Elizabeth had, on one occasion, refused to leave a classroom when asked; (3) Alyssa
brought a tape recorder to one of her classes; and (4) Elizabeth made contact with the
Ritz Charles after Alexander had told her not to do so. Id. at 16. Elizabeth responded in
writing, explaining each of the actions.
In its decision that FACES engaged in retaliation by expelling the Bridgewaters,
the ALJ found that none of the four reasons given by FACES for the expulsion were
likely to be the true motive for its action. Id. at 17-18. While the ALJ found that having
direct contact with a volunteer teacher is against FACES policy, it was “unworthy of
credence that a violation of this policy would be a motive for expulsion.” Id. at 17. The
ALJ also found that the evidence showed that Elizabeth did leave the classroom when the
teacher arrived on the instance in question and there is no FACES rule or policy that
prohibits tape recording a class. Id. at 17-18. Finally, the ALJ did find that contacting
the Ritz Charles after being told not to might carry some weight in this decision if it were
not so tied in to the event that led to the actual filing of the original complaint. Id. at 18.
Therefore, the ALJ found that none of the reasons cited by FACES were sufficient to
warrant expulsion of the Bridgewaters, and the Bridgewaters had met their burden of
showing that the reasons stated by FACES were pretexts for unlawful retaliation.
FACES, however, contends that these findings by the ALJ are erroneous, arguing
that the ALJ focused solely on the temporal proximity between the filing of the complaint
21
and the expulsion of the Bridgewaters as the basis for the ALJ’s conclusion. Appellant’s
Br. p. 54. FACES also argues that the ALJ disregarded both the decisions made by the
mothers who ran the group as not “good enough,” and Elizabeth’s “meddling” in the
arrangements for the ball when coming to its decision.
FACES’ argument is simply a request that we reweigh the evidence, which we
may not do. On appeal, we are to determine “whether substantial evidence, together with
any reasonable inferences that flow from such evidence, support the [agency’s] findings
and conclusions.” Zeller Elevator Co., 796 N.E.2d at 1206. We are not to reweigh the
evidence, and we consider only the evidence most favorable to the ICRC’s findings.
Viewing the evidence in this light, we find that there is sufficient evidence here to
support the ALJ’s findings.
C. Damages
The Bridgewaters contend that the ICRC erred in reducing the amount of damages
awarded to Alyssa. The civil rights law provides that, as a remedy for discriminatory
behavior, the Commission may require a person to take “further affirmative action as will
effectuate the purpose of this chapter, including but not limited to the power: (A) to
restore the complainant’s losses incurred as a result of discriminatory treatment, as the
commission may deem necessary to assure justice . . . .” Ind. Code § 22-9-1-6(k)(A).
The statute permits the ICRC to award damages for both economic and emotional
distress. Ind. Civil Rights Comm’n v. Alder, 714 N.E.2d 632, 637 (Ind. 1999) (citations
omitted). Here, the ALJ awarded the Bridgewaters $5000 in damages. On appeal to the
22
ICRC, the commission reduced the damage award to $2500, saying that the previous
amount was too high.
As the ALJ explained, Alyssa suffered emotional distress as a result of a
combination of factors: being expelled from FACES, how FACES handled the food issue
at the ball, and a number of other issues unrelated to FACES. Alyssa suffered no
economic losses. Although the Bridgewaters make a very detailed argument that Alyssa
suffered severe emotional damage, we do not reweigh the evidence or judge the
credibility of witnesses, and we consider only the evidence most favorable to the ICRC’s
findings. Zeller Elevator Co., 796 N.E.2d at 1206. And contrary to the Bridgewaters’
claim, an unexplained change by an agency is not, by definition, arbitrary and capricious.
See Ind. State Bd. of Registration and Educ. for Health Facility Admrs. v. Cummings, 180
Ind. App. 164, 387 N.E.2d 491 (1979) (agency decision is arbitrary and capricious if it is
not supported by adequate written reasons), reh’g denied. As the ICRC explained, the
previous amount of damages was too high. See Appellant’s App. p. 24. Given that some
of Alyssa’s emotional distress was related to FACES, while some was not, and that she
suffered no economic damages, we cannot say that this conclusion was error.
FACES also challenges the ALJ’s damage award, arguing that any award was
inappropriate. But in doing so, they mischaracterize the award as one for “damages for
expelling the Bridgewaters . . . .” Appellant’s Br. p. 4. The damages resulted from
FACES’ retaliatory expulsion of the Bridgewater family and the emotional distress
Alyssa suffered as a result. Had the ALJ awarded damages for a justified expulsion of
23
the Bridgewater family—and here, the ALJ rejected the reasons given by FACES—
FACES could argue that the damages were inappropriate. Because we affirm the ALJ’s
conclusion that the Bridgewaters were expelled in retaliation for filing the
accommodation complaint, we reject FACES’ argument on this issue.
III. Corrective Action
After finding that FACES unlawfully retaliated against the Bridgewaters for filing
an accommodation complaint, the ALJ not only awarded Alyssa damages, but also
ordered FACES to take the following corrective action: (1) cease and desist from
retaliating against persons because they filed a complaint with the ICRC; (2) post a link
to the ALJ’s order on all websites on which they communicated information about the
case; and (3) offer reinstatement of the Bridgewater family to full membership, including
all benefits. FACES does not challenge the “cease and desist” provision,7 but it does
challenge the requirements that it, as a religious organization, be forced to reinstate the
Bridgewater family into the organization and post the ICRC’s decision on its website
under the following three United States Supreme Court cases.
A. Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC
FACES first argues that the ALJ’s decision must be reversed because the
ministerial exception within the First Amendment prevents the ICRC from interfering
with FACES’ religious liberty. In Hosanna-Tabor Evangelical Lutheran Church and
7
FACES notes that it would challenge this provision for its lack of detail, but it is choosing not to
because it will not resume its operation if it is subject to the jurisdiction of the ICRC. See Appellant’s Br.
p. 57.
24
School v. Equal Employment Opportunity Commission, Cheryl Perich worked as a
teacher at a school that had as its mission to offer a “Christ-centered education” to
students. 132 S. Ct. at 699. Perich was classified as a “called” teacher, meaning that she
was “regarded as having been called to [her] vocation by God through a congregation”
and had completed certain academic requirements. Id. Perich taught kindergarten for
four years and fourth grade for one year at Hosanna-Tabor before she was diagnosed with
narcolepsy and had to take disability leave. Id. at 700. Six months later, Perich still had
not returned to work, so the congregation voted to offer her “peaceful release” where the
congregation would pay for some of her health insurance premiums and Perich would
resign as a called teacher. However, Perich refused to resign, and she was fired about
three months later. Id.
Perich filed a charge with the Equal Employment Opportunity Commission
(EEOC), contending that she had been fired in violation of the Americans with
Disabilities Act (ADA). The EEOC then brought suit against Hosanna-Tabor, alleging
that Perich was fired in retaliation for threatening to file an ADA lawsuit. Id. at 701.
Perich sought either reinstatement to her former job or front pay, back pay, compensatory
and punitive damages, attorney’s fees, and other injunctive relief. Id.
Hosanna-Tabor moved for summary judgment on the grounds of the ministerial
exception within the First Amendment, and the district court granted it. The district court
found that “Hosanna-Tabor treated Perich like a minister and held her out to the world as
such long before this litigation began.” Id. Because of that, the district court found that it
25
could not inquire into the reasons for Perich’s firing. The Court of Appeals for the Sixth
Circuit vacated and remanded the decision. It acknowledged the existence of the
ministerial exception but found that Perich was not a minister because her duties were
identical to those of a lay teacher. Id. at 701-02.
The Supreme Court took the case and noted that “the Courts of Appeal have
uniformly recognized the existence of a ‘ministerial exception,’ grounded in the First
Amendment, that precludes application of such legislation to claims concerning the
employment relationship between a religious institution and its ministers.” Id. at 705.
The Court went on to agree that such a ministerial exception existed and found that it
applied to this particular case.
In determining whether the ministerial exception applied, the Court looked at “all
the circumstances of [Perich’s] employment,” id. at 707, which generally included the
facts that Hosanna-Tabor held Perich out as a minister and Perich held herself out as a
minister. Specifically, Hosanna-Tabor issued Perich a “diploma of vocation” that gave
her the title “Minister of Religion, Commissioned,” Perich completed eight ministerial-
related college-level courses, obtained the endorsement of her local Synod district, passed
an oral examination, claimed a special housing allowance on her taxes that was only
available to individuals earning compensation for ministry, and regarded herself as a
minister at Hosanna-Tabor. Id. at 707-08. The Court also found that the amount of time
that a person spends doing ministerial activities should be a factor when determining if
she is a minister, but should not be the sole consideration.
26
After taking into account all of the above factors, the Court determined that Perich
was a minister and therefore subject to the ministerial exception of the First Amendment.
Therefore, Perich could not bring suit to challenge her termination, as Hosanna-Tabor
had the sole authority to “select and control who will minister to the faithful.” Id. at 709.
However, the Court clearly stated that its decision applied only to the type of case before
it—“an employment discrimination suit brought on behalf of a minister, challenging her
church’s decision to fire her.” Id. at 710. The Court went on to say, “we hold only that
the ministerial exception bars such a suit. We express no view on whether the exception
bars other types of suit . . . . There will be time enough to address the applicability of the
exception to other circumstances if and when they arise.” Id. (Emphasis added).
In light of this decision, FACES contends that the ICRC’s corrective action
decision must be reversed, specifically the reinstatement of the Bridgewaters, because it
violates the right to religious liberty by interfering with the group’s goal of “minister[ing]
to one another and striv[ing] to model religious beliefs and virtues.” Appellant’s Br. p.
61. It argues that this is the precise harm the Supreme Court was trying to prevent in
Hosanna-Tabor. FACES equates it being able to determine its members with a church
having the sole authority to select its ministers, arguing that there is no material
difference between the two. We disagree.
The Court took great care to ensure that its holding was narrowly tailored and
specific to instances where “an employer is a religious group and the employee is one of
the groups’ ministers.” Id. at 699. This is not an employment case, FACES is not a
27
religious employer, and the ICRC is not ordering FACES to make anyone a minister.
Therefore, the logic behind the decision in Hosanna-Tabor is inapplicable to the present
case.
Even if we were to find that the ministerial exception applies here, FACES’
actions would still not be immune from ICRC corrective action. FACES expelled the
Bridgewaters for reasons completely unrelated to religion. The ministerial exception
only prevents outside interference when “[s]uch action interferes with the internal
governance of the church, depriving the church of control over the selection of those who
will personify its beliefs.” Id. at 706. Since reinstatement of the Bridgewaters involves
no governmental interference with the tenets of the Catholic faith and would not affect
the ability of FACES to express its religious beliefs, even if Hosanna-Tabor did apply,
FACES’ argument would still fail.
B. Boy Scouts of America v. Dale
FACES also argues that the ALJ’s corrective-action decision must be reversed due
to the right of expressive association guaranteed by the First Amendment. In making this
argument, FACES points to Boy Scouts of America v. Dale, 530 U.S. 640 (2000), for
support.
In Boy Scouts, James Dale was an assistant scoutmaster of Boy Scout Troop 73
and also the co-president of the Rutgers University Lesbian/Gay Alliance. Id. at 644-45.
A newspaper published an interview with Dale and a picture identifying him as the co-
president of the Lesbian/Gay Alliance, and later that month, his membership with the
28
Boy Scouts was revoked because the organization “specifically forbid membership to
homosexuals.” Id. at 645. Dale filed suit, alleging that the Boy Scouts had violated New
Jersey’s public accommodation statute by revoking his membership based on his sexual
orientation. The public accommodation statute prevented discrimination on the basis of
sexual orientation in places of public accommodation.
The New Jersey Supreme Court held that the Boy Scouts was a place of public
accommodation and therefore subject to the public-accommodation law. It then found
that the Boy Scouts violated the law when it revoked Dale’s membership based on his
sexual orientation. Id. at 646. The New Jersey Supreme Court also looked at the First
Amendment right to association involved in the case and found that the Boy Scouts’
“large size, nonselectivity, inclusive rather than exclusive purpose, and practice of
inviting or allowing nonmembers to attend meetings, establish that the organization is not
sufficiently personal or private to warrant constitutional protection under freedom of
intimate association.” Id. (internal citation omitted). The Court also found that Dale’s
membership did not affect the Boy Scouts’ ability to carry out its various purposes. Id. at
647.
The United States Supreme Court, however, disagreed. Focusing on whether the
application of the New Jersey public-accommodation law violated the First Amendment,
the Supreme Court reversed and held that the Boy Scouts could revoke Dale’s
membership. Forcing the Boy Scouts to keep Dale as a member, it reasoned, would
violate the group’s freedom of expressive association. Id. at 655-56.
29
To determine if a group is eligible for First Amendment protection for expressive
association, it first must be determined if the group actually engages in expressive
association. That means that the group “must engage in some form of expression,
whether it be public or private.” Id. at 648. In regards to the Boy Scouts, the Supreme
Court looked at its mission statement, Scout Oath, and Scout Law, and determined that it
had a clear general mission. To accomplish that mission, “the scoutmasters and assistant
scoutmasters inculcate [the youth members] with the Boy Scouts’ values—both expressly
and by example.” Id. at 649-50. Seeking to transmit a system of values was determined
to be expressive activity, so the Boy Scouts were eligible for First Amendment
protection. Id. at 650.
After determining that the Boy Scouts engaged in expressive activity, the Supreme
Court then undertook an inquiry to determine if “the forced inclusion of Dale as an
assistant scoutmaster would significantly affect the Boy Scouts’ ability to advocate public
or private viewpoints.” Id. While not everyone would agree that homosexual behavior
was antithetical to “morally straight” and “clean” values that the Boy Scouts seek to
impart, the organization itself sincerely and consistently held that belief. However, it is
only the organization’s view that matters, as “it is not the role of the courts to reject a
group’s expressed values because they disagree with those values or find them internally
inconsistent.” Id. at 651. The Supreme Court held, therefore, that it must give deference
to a group’s assertions concerning the nature of its expression and what would impair that
expression. And because the Boy Scouts believed homosexuality was inconsistent with
30
its values, and Dale’s presence as an assistant scoutmaster would interfere with its ability
to not promote a view that is contrary to its beliefs, forcing Dale’s membership upon the
Boy Scouts would be a violation of its freedom of expressive association.
It is important to note, however, that the Supreme Court states in its opinion that
the freedom of expressive association is not an absolute freedom. Id. at 648. It can be
“overridden by regulations adopted to serve compelling state interests, unrelated to the
suppression of ideas, that cannot be achieved through means significantly less restrictive
of associational freedoms.” Id. (internal quotation and citation omitted); see also Bd. of
Dirs. of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537, 549 (1987).
FACES contends that this holding makes the ALJ’s corrective action of requiring
reinstatement of the Bridgewaters unconstitutional because it violates its freedom of
expressive association. The first inquiry that must be made in this case is whether
FACES engages in expressive association. Expressive association is defined as
“associat[ing] with others in pursuit of a wide variety of political, social, economic,
educational, religious, and cultural ends.” Roberts v. U.S. Jaycees, 468 U.S. 609, 622
(1984). FACES notes that its objective was
to implement the teachings of the Roman Catholic Church, more
specifically: (1) the teaching that parents have primary responsibility for the
education of their children; and (2) the teaching that members of the church
should demonstrate solidarity and fraternal charity as they endeavor to live
their vocation by educating children in their faith and preparing them to
serve the common good.
Appellant’s Br. p. 9. Alexander also stated that her purpose in forming the group was to
provide “a group where teenagers could get together to learn and socialize in an
31
environment consistent with their Catholic faith.” Id. at 8. We find that these purposes
fall within the definition of “expressive association,” so we next must determine if the
Bridgewaters’ forced inclusion would interfere with FACES’ freedom of expressive
association and ability to advocate its desired viewpoints.
FACES argues that it chose to expel the Bridgewaters because Elizabeth’s
“insubordinate, obstreperous, and mean-spirited” behavior “threatened the group’s efforts
to achieve the high ideals it was created to foster as well as the very existence of the
group.” Id. at 62. This argument misses the mark. The ALJ found that the Bridgewaters
were expelled from FACES in retaliation for filing an accommodation complaint, and we
do not reweigh evidence. Therefore, FACES’ allegation that it chose to expel the
Bridgewaters because Elizabeth’s “insubordinate, obstreperous, and mean-spirited”
behavior “threatened the group’s efforts to achieve the high ideals it was created to foster
as well as the very existence of the group,” Appellant’s Br. p. 62, is without merit. In
other words, we cannot go behind the ALJ’s factual findings.
Since the ALJ found that the Bridgewaters were expelled for reasons that did not
implicate FACES’ expressive association, requiring that FACES allow the Bridgewaters
back into the group does not violate FACES’ right to expressive association and is not
unconstitutional.8
8
Our colleague would construe the phrase “related to education” more narrowly than we do
under these circumstances. Here, he argues that to the extent FACES must readmit Alyssa, she should be
allowed to participate in educational activities only—not social activities. Social activities are an
important component of a child’s education in that they teach respect for others, responsibility, and a
sense of community. These lessons are learned not only in the academic setting but also during
extracurricular activities such as clubs and social functions like proms or other dances. FACES’
32
C. Pacific Gas and Electric Co. v. Public Utilities Commission of California
Finally, FACES contends that the ALJ’s order that it “post a link to these Findings
Of Fact, Conclusions Of Law, And Order on all websites on which they have
communicated information regarding this case,” Appellant’s App. p. 21, also violates the
First Amendment because it constitutes compelled speech.
In Pacific Gas and Electric Co. v. Public Utilities Commission of California, a
court order requiring Pacific Gas and Electric to put a newsletter written by a third party,
Toward Utility Rate Normalization, in its billing envelope was found to be a violation of
Pacific Gas and Electric’s First Amendment rights. 475 U.S. 1, 20-21 (1986). The
Supreme Court reasoned that Pacific Gas owned the space inside the billing envelope,
and requiring it to include a newsletter with the views of a third party was “forced
association with potentially hostile views [that] . . . risks forcing [Pacific Gas and
Electric] to speak where it would prefer to remain silent.” Id. at 18.
Because this order compelled speech, it “could be valid if it were a narrowly
tailored means of serving a compelling state interest.” Id. at 19. Applying this strict
scrutiny test, the Supreme Court found that although the interest in “fair and effective
utility regulation may be compelling,” the order was not narrowly tailored. Id.
Therefore, strict scrutiny was not met and the order was reversed. Id. at 21.
Like in Pacific Gas, we find that while there is a compelling state interest at stake
here—eradicating discrimination—the ALJ’s order was not narrowly tailored. The ALJ
education encompasses both academic and social aspects, and therefore we respectfully disagree with our
colleague.
33
ordered that FACES post the decision “on all websites on which they have communicated
information regarding this case,” Appellant’s App. p. 21 (emphasis added), which we
find to be a more expansive requirement than was necessary to serve the compelling state
interest at stake. All websites on which they have communicated information regarding
this case could include countless message boards, comments made on news stories, and a
vast array of other websites on the internet. By potentially requiring speech from FACES
on so many websites, the ALJ’s order was not narrowly tailored, and as a result, strict
scrutiny is not met. We therefore hold that this portion of the ALJ’s order must be
reversed.
Affirmed in part and reversed in part.
BRADFORD, J., concurs.
BAILEY, J., concurs in result with separate opinion.
34
IN THE
COURT OF APPEALS OF INDIANA
FISHERS ADOLESCENT CATHOLIC )
ENRICHMENT SOCIETY, INC., )
)
Appellant-Respondent, )
)
vs. )
) No. 93A02-1202-EX-145
ELIZABETH BRIDGEWATER o/b/o )
ALYSSA BRIDGEWATER, )
)
Appellee-Complainant. )
BAILEY, Judge, Concurring in Result.
Elizabeth, having elected to homeschool her daughter, Alyssa, and to associate
with FACES for the purposes of educational and social enrichment, nevertheless filed a
complaint with the ICRC concerning FACES’s alleged violation of Alyssa’s civil rights.
FACES ended the Bridgewaters’ involvement with the group. Concluding that FACES’s
decision to end Alyssa’s membership in the group amounted to retaliation under
Indiana’s civil rights laws, the ICRC imposed a $2,500 fine upon FACES and enjoined
and mandated certain conduct as the end-point of this dispute between a parent and a
religiously-oriented private club. The dispute centered on the child’s dietary needs at a
single social event conducted outside the ordinary timeframe of the club’s educational
activities.
35
While I agree with the majority that the ICRC could, within its specialized
expertise, find that FACES retaliated against Alyssa, and I agree that the ICRC was not
within its authority to impose all of the sanctions it did, I would reach these conclusions
on significantly narrower grounds than does the majority. I therefore respectfully concur
in result.
As the majority notes, the ICRC is an agency with specialized expertise in the
matters that come before it. Ind. Civil Rights Comm’n v. Alder, 714 N.E.2d 632, 635-36
(Ind. 1999). Among the ICRC’s areas of expertise are questions of civil rights violations
and retaliatory conduct in response to the lodging of complaints raising claims of civil
rights violations. Such civil rights violations include discrimination in matters “relating
to … education.” Ind. Code § 22-9-1-3(l). Thus, “[w]e give deference to the expertise of
the agency and will not reverse simply because we may have reached a different result
than the [ICRC].” Alder, 714 N.E.2d at 635. “However, although an agency’s
interpretation of a statute is entitled to great weight, courts rather than administrative
agencies must resolve questions of statutory construction.” Id. at 636. As with statutory
construction, subject matter jurisdiction is also a purely legal area that we review de novo
upon appeal. M-Plan, Inc. v. Ind. Comprehensive Health Ins. Ass’n, 809 N.E.2d 834,
837 (Ind. 2004).
What matters “relat[e] to … education” is left undefined by the Indiana Civil
Rights Law (“ICRL”). Arguing over whether the ICRC had jurisdiction to hear the
Bridgewaters’ complaint, whether the ICRC had jurisdiction to find that FACES
36
retaliated against the Bridgewaters, and over the scope of the damages to which Alyssa
may or may not have been entitled, the parties offer differing interpretations of the
statutory language.
Mindful that the ICRL provides that it “shall be construed broadly to effectuate its
purpose,” I.C. § 22-9-1-2(f), I think this Court can affirm the ICRC’s order for damages
against FACES without addressing the definitional and jurisdictional questions associated
with the disputed statutory language. This is because, in addition to the statutory
authority the ICRC possesses to address claims of discrimination, it also has statutory
authority to “prevent any person[9] from discharging, expelling, or otherwise
discriminating against any other person because the person filed a complaint, testified in
any hearing before this commission, or in any way assisted the commission in any matter
under its investigation.” I.C. § 22-9-1-6(g). That is, the ICRL affords a remedy where
one person has filed a complaint, as a result of which another person engages in any form
of retaliatory conduct against the complainant. Retaliatory conduct is itself
discriminatory under the terms of the statute, then, and a remedy may be afforded to an
individual harmed by retaliation even where the underlying claim advanced by the
complaint is ultimately found to be without merit.
While there is little or no Indiana case law interpreting subsection 22-9-1-6(g) as it
applies to retaliation against members of an educational or social-group environment, as
FACES appears to be, I think the majority properly adopts the employment-related
9
A “person” is defined as “one (1) or more individuals … associations, organizations …
corporations … cooperatives … and other organized groups of persons.” I.C. § 22-9-1-3(a).
37
standards for evaluating a claim and reviewing a finding of retaliation in this context. I
therefore concur with the majority to the extent it concludes that the ICRC properly
applied this standard and did not act arbitrarily and capriciously when it found that
FACES retaliated against the Bridgewaters as a result of Elizabeth’s decision to file a
complaint.
I also concur with the majority’s decision to the extent it affirms the ICRC’s
$2500 award for damages resulting from FACES’s retaliation. Indeed, because the ICRC
found that FACES made reasonable accommodations at the Masquerade Ball for
Alyssa’s condition, it is clear from the ICRC’s order that the only reason damages were
awarded was the Commission’s finding that FACES’s decision to eject Alyssa from the
group was pretextual. That order is consistent with the purpose of a separate remedy for
retaliation, which is to ensure that those reporting alleged civil rights violations are
protected from retaliation for filing a claim; failure to protect an individual for reporting
an alleged violation “ultimately undermines a critically important public policy.”
Frampton v. Cent. Ind. Gas Co., 260 Ind. 249, 253, 297 N.E.2d 425, 428 (1973)
(establishing a cause of action for retaliatory discharge in at-will employment
relationships where an employee alleged that he was subject to retaliation for exercising
his statutory right to seek worker’s compensation benefits); see Crawford v. Metro. Gov’t
of Nashville and Davidson Cnty., Tenn., 555 U.S. 271, 279 (2009) (noting that the
“‘primary objective’” of the anti-retaliation provisions of Title VII of the Civil Rights Act
of 1964 is “‘avoid[ing] harm’ to employees”).
38
While I concur in these matters, I do so reluctantly. This is so because I do not
think that matters “relating to … education,” as provided by the ICRL, ought to
encompass so broad a range of activities as to include a quintessentially social function
like the Masquerade Ball. That is especially so where the group offering the social
function is not a formal school, but rather a small organization of volunteers who, for
thirty days of the year, work together to provide social and other forms of enrichment for
children whom they have decided to homeschool.
In this context, I do not think the reach of the ICRL extends so far as to encompass
a social activity like the Masquerade Ball. Put more simply: I do not think, based upon
the language of the ICRL, that the ICRC would have properly had subject matter
jurisdiction over the Bridgewaters’ complaint were it not for FACES’s retaliatory
conduct.
It seems to me beyond the pale of the ICRL—a statute enacted in the wake of the
upheavals of the Civil Rights Movement of the 1960s—to conclude that such social
occasions as a Masquerade Ball, held not under the auspices of a formalized school but
by a group of volunteers, are events “relating to … education” such that a member of
FACES is the victim of a civil rights violation when the group will not accommodate her
dietary conditions. Thus, to the extent the ICRC’s order would require that FACES
readmit Alyssa as a member of the group, I part from the majority and would hold that
the order only extends to those activities of FACES that are specifically educational
rather than social—that is, FACES’s regularly-scheduled events during which academic
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enrichment activities like language, computer, and other such classes are offered. While I
recognize that we are to interpret the ICRL “broadly to effectuate its purpose,” I would
not conclude that, by the statute’s language, its purposes extend so far as to conclude that
FACES was required to accommodate Alyssa’s dietary needs at the Masquerade Ball.
That said, I do not agree with FACES that it should be entirely exempt from the
ICRC’s jurisdiction. In Bob Jones Univ. v. United States, 461 U.S. 574 (1983), the
United States Supreme Court held that the Internal Revenue Service (“IRS”) could
revoke the nonprofit tax status of an organization where the IRS’s decision advanced a
compelling government interest and the decision “substantially outweigh[ed] whatever
burden denial of tax benefits” imposed upon the nonprofit organization, even where the
organization implemented those policies on religious grounds. Id. at 604. In Bob Jones,
the question before the Court was whether the IRS could revoke the university’s
nonprofit tax status because of its ban on dating and marriage between students of
different races, where opposing racial discrimination was recognized as a compelling
governmental interest. Id. at 603-605.
Here, FACES has argued that because it is a religiously-oriented organization, it
should be entirely free to add or remove members on nearly any basis. I cannot agree;
indeed, to take FACES’s position would be to hold, in a manner implicitly contrary to the
Supreme Court in the Bob Jones case, that government agencies could have no role at all
in enforcing various laws because those agencies would simply lack jurisdiction over
such religiously-minded institutions. It is disingenuous for an organization like FACES
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to claim the benefits of tax-exempt status, yet ignore with impunity other laws that have
an equally broad-ranged effect.
I also part from the majority in its rationale for reversing that portion of the
ICRC’s order requiring that FACES post notices on its websites. I think there is no need
to turn to constitutional interpretation to resolve this matter, and we should avoid
constitutional declarations where other, non-constitutional means are available to resolve
a dispute. Founds. of East Chicago, Inc. v. City of East Chicago, 927 N.E.2d 900, 905
(Ind. 2010). The ICRL provides the ICRC with authority to require notice posting:
[the ICRC] shall cause to be served … an order ... requiring the person to
take further affirmative action as will effectuate the purposes of this
chapter, including but not limited to the power:
***
(B) to require the posting of notice setting forth the public policy of Indiana
concerning civil rights and respondent's compliance with the policy in
places of public accommodations.
I.C. § 22-9-1-6(j). A “public accommodation” is “any establishment that caters or offers
its services or facilities or goods to the general public.” I.C. § 22-9-1-3(m). Because
FACES lacks a fixed meeting location or other premises of its own, the ICRC ordered
FACES to post the required notice on any website it operates.
Yet the ICRC has not found that FACES is a place of public accommodation;
indeed, the ICRC acknowledged that FACES is religiously oriented, limits its
membership, and does not hold itself out as open to the general public. The statute
authorizes the ICRC to order posting of a notice “in places of public accommodations.”
I.C. § 22-9-1-6(j)(B). FACES has no physical premises, and I would not hold that any
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website operated by FACES is a place of public accommodation within the meaning of
the ICRL, because FACES does not hold itself out as providing services to the general
public. See I.C. § 22-9-1-3(m). Because we can properly construe the ICRL to reverse
that portion of the order that requires FACES to post notice on its websites, I would not
turn to the First Amendment analysis that the majority relies upon to strike the applicable
portion of the ICRC’s order here.
Though I concur in result, I am less sanguine than the majority about the
likelihood that expressive association will not be chilled by the result we reach today.
Recognizing the risk that forced inclusion of members could adversely affect the public
or private expression of a group’s principles, the Supreme Court in Boy Scouts of
America v. Dale, 530 U.S. 640 (2000), held that forced inclusion of a homosexual Scout
leader infringed upon the Boy Scouts of America’s First Amendment right to expressive
association when the Boy Scouts had consistently expressed as among its values its
opposition to homosexuality.
Here, there was evidence that the Bridgewaters’ involvement with FACES
resulted in disorder and interference in the activities of the organization due to
Elizabeth’s and Alyssa’s conduct. FACES could have expelled them from membership
in the organization, and any order requiring their readmission would have, I think,
infringed upon FACES’s First Amendment right to expressive association for, as the
Court in Dale observed, “‘[f]reedom of association … plainly presupposes a freedom not
to associate.’” Id. at 648 (quoting Roberts v. United States Jaycees, 468 U.S. 609, 623
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(1984)). Had the Bridgewaters been expelled from the group before the dispute over the
menu at the Masquerade Ball and been advised plainly and honestly that the reason for
the expulsion was Elizabeth’s and Alyssa’s disruptive conduct, any attempt at forced
reintegration of the Bridgewaters into FACES would have raised serious questions about
infringement upon FACES’s right to expressive association.
But that is not what happened here. FACES’s expulsion of the Bridgewaters in
this case, the announced reasons for which were the Bridgewaters’ disruptiveness, was
found to be retaliatory because of its sequence and timing. And while I concur in the
majority’s resolution of the matter, I think it important to state clearly that it is only
FACES’s retaliation, as found by the ICRC, that prevents the ICRC’s order from
amounting to an infringement upon the group’s right to expressive association.
I think it unfortunate that we have been brought into a private dispute between two
religiously-oriented parties who have chosen not to engage the public education system.
Yet one seeks to entangle the other in a quest for accommodation typically required of
public educational institutions, while the other has organized itself in a way that seeks to
exempt the group almost entirely from our state’s civil rights laws while claiming special
status under the tax code.
I do not think that the legislature’s broad intent when it enacted our civil rights
statutes involved making the ICRC and our courts arbiters of such private disputes as
have arisen between FACES and the Bridgewaters. But constrained by the language of
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the statute and mindful of our obligation to avoid constitutional questions, I reluctantly,
but respectfully, concur in result.
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