Detroit_9216286_4

STATE OF MICHIGAN IN THE SUPREME COURT

BETTINA WINKLER, by her next friends HELGA DAHM WINKLER and MARVIN WINKLER, Plaintiff-Appellant, -vs- MARIST FATHERS OF DETROIT, INC, d/b/a NOTRE DAME PREPARATORY HIGH SCHOOL AND MARIST ACADEMY, Defendant-Appellee.

Supreme Court No. 152889 Court of Appeals No. 323511 Lower Court No. 14-141112-CZ

NACHT, ROUMEL, SALVATORE, BLANCHARD & WALKER, P.C. By: Nicholas Roumel (P37056) Charlotte Croson (P56589) 101 N. Main Street, Suite 555 Ann Arbor, MI 48104 (734) 663-7550 Attorneys for Plaintiff-Appellant

BODMAN PLC By: James J. Walsh (P27454) Karen L. Piper (P31706) Thomas J. Rheaume, Jr. (P74422) 6th Floor at Ford Field 1901 St. Antoine Detroit, MI 48226 (313) 259-7777 Attorneys for Defendant-Appellee

DEFENDANT-APPELLEE’S ANSWER TO PLAINTIFF-APPELLANT’S APPLICATION FOR LEAVE TO APPEAL

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TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................................... ii 

COUNTER-STATEMENT OF QUESTION PRESENTED ...........................................................v 

INTRODUCTION ...........................................................................................................................1 

STATEMENT OF FACTS ..............................................................................................................2 

A.  Notre Dame Preparatory High School and Marist Academy. ........................................2 

B.  Bettina Winkler struggled academically at NDPMA’s middle school and was denied admission to Notre Dame Prep. ..........................................................................2 

C.  Bettina Winkler was tested and diagnosed with learning disabilities two months after Notre Dame Prep denied her application. .................................................4 

D.  Bettina Winkler files a lawsuit seeking admission in Notre Dame Prep. ......................6 

(i) Winkler did not appeal the denial of her motion for a preliminary injunction requiring that she be admitted to Notre Dame Prep. ..............................6 

(ii) NDPMA’s motion for summary disposition on the grounds that the trial court lacked jurisdiction to adjudicate Winkler’s claim that was denied. ...............7 

STANDARD OF REVIEW .............................................................................................................8 

ARGUMENT ...................................................................................................................................9 

I.  THE FIRST AMENDMENT PROHIBITS A COURT FROM ASSERTING JURISDICTION OVER A CLAIM THAT CHALLENGES THE DENIAL OF ADMISSION INTO A RELIGIOUS SCHOOL ..................................................................9 

A.  The Court of Appeals correctly held that Winkler’s claim under the PWDCRA involves religious doctrine and ecclesiastical polity outside the jurisdiction of a civil court. .................................................................................................................10 

B.  Winkler’s assertion that her complaint can be adjudicated solely by reference to the PWDCRA ignores the substance of her claim and would entangle a court in the admission decisions of a religious organization. ......................................12 

C.  The issues raised by Winkler’s application for leave to appeal have been well-settled by this Court and the United States Supreme Court and do not merit further review. ..............................................................................................................14 

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TABLE OF AUTHORITIES

Cases 

Berry v Bruce, 317 Mich 490; 27 NW2d 67 (1947) ..................................................................... 10

Borgman v Bultema, 213 Mich 684; 182 NW 9 (1921) ................................................................ 12

Bowie v Adler, 441 Mich 23; 490 NW2d 568 (1992) ..................................................................... 9

Connor v Archdiocese of Philadelphia, 975 A2d 1084 (Pa 2009) ............................................... 10

Crancer v Bd of Regents of the Univ of Mich, 156 Mich App 790; 402 NW2d 90 (1986) .......... 13

Dixon v Edwards, 290 F3d 699, 714 (CA 4, 2002) ...................................................................... 10

Dlaikan v Roodbeen, 206 Mich App 591; 522 NW2d 719 (1994) ........................... 1, 2, 10, 16, 17

Fox v Martin, 287 Mich 147; 283 NW 9 (1938) ............................................................................. 8

Gaston v Diocese of Allentown, 712 A2d 757 (Pa 1998) ............................................................. 14

Grp Ins Co of Mich v Czopek, 440 Mich 590; 489 NW2d 444 (1992) ......................................... 13

In re Rosa Vida, No. 04-14-00636-CV, 2015 WL 82717 (Tex App, 2015) ................................. 14

Joy v Two-Bit Corp, 287 Mich 244; 283 NW 45 (1938) ................................................................ 8

Kedroff v St Nicholas Cathedral of Russian Orthodox Church, 344 US 94; 73 S Ct 143; 97 L Ed 120 (1952) ................................................................................................................................. 15

Lemon v Kurtzman, 403 US 602; 91 S Ct 2015; 29 L Ed 2d 745 (1971) 1, 9, 10, 13, 14, 16, 17, 18

Maciejewski v Breitenbeck, 162 Mich App 410; 413 NW2d 65 (1987) ................................. 10, 11

Natal v Christian & Missionary Alliance, 878 F2d 1575 (CA 1, 1989) ................................. 10, 15

Shepherd Montessori Ctr Milan v Ann Arbor Charter Twp, 486 Mich 311; 783 NW2d 695 (2010) .......................................................................................................................................... 8

Travelers Ins Co v Detroit Edison Co, 465 Mich 185; 631 NW2d 733 (2001) .............................. 8

Walz v Tax Comm’n of City of New York, 397 US 664; 90 S Ct 1409; 25 L Ed 2d 697 (1970) ..... 1

Watson v Jones, 80 US 679; 20 L Ed 666 (1871) ............................................................... 9, 11, 12

Winkler v Marist Fathers of Detroit, Inc d/b/a Notre Dame Preparatory High School and Marist Academy, unpublished opinion of the Court of Appeals, issued November 12, 2015 (Docket No. 323511) ................................................................................................................................ 7

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Statutes 

20 USC 1414(d) .............................................................................................................................. 4

29 USC 794 ..................................................................................................................................... 4

MCL 37.1101 et seq. ....................................................................................................................... 6

MCL 37.1103 ................................................................................................................................ 13

MCL 37.1402 ................................................................................................................................ 10

MCL 37.1402(b) ........................................................................................................................... 11

MCL 445.903(1) ............................................................................................................................. 6

Rules 

MCR 2.116(C)(10) .......................................................................................................................... 7

MCR 2.116(C)(4) ........................................................................................................................ 7, 8

MCR 7.303(B)(1) ........................................................................................................................... iv

Other Authorities 

Const 1963, art 1, § 4 .................................................................................................................. 7, 9

US Const, Am I ..................................................................................................................... 7, 9, 18

US Const, art VI ............................................................................................................................ 18

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STATEMENT OF JURISDICTION

This Court has jurisdiction pursuant to MCR 7.303(B)(1).

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COUNTER-STATEMENT OF QUESTION PRESENTED

Does the First Amendment of the United States Constitution and art I, § 4 of the Michigan Constitution permit a court to assert jurisdiction over a claim challenging a religious educational institution’s decision to deny admission of a student? The Trial Court Answered: Yes. The Court of Appeals Answered: No. Appellant Answers: Yes. Appellee Answers: No.

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INTRODUCTION

The unpublished opinion of the Court of Appeals does not merit this Court’s review.

Notre Dame Preparatory High School’s decision not to admit Bettina Winkler could not have

been based on her then-unknown disability. Winkler’s academic difficulties disqualified her for

the rigorous curriculum at Notre Dame Prep.

Nor is there any effective relief available to Winkler now. In August 2014, the trial court

denied her motion for a preliminary injunction and she did not seek leave to appeal from that

decision. The relief she seeks from this Court, reversal and remand to the trial court “for further

proceedings,” will not provide her with a Notre Dame education. Nor is a court in a position to

determine her “damages” from the loss of that education.

Most important, the Court of Appeals correctly held that the First Amendment prevents a

court from asserting jurisdiction to examine the merits of Winkler’s claim or from ordering the

relief previously sought – admission into a religious school. The Marist Fathers of Detroit’s

operation of Notre Dame Prep is not, as Winkler characterizes it, a “secular” activity. See

Lemon v Kurtzman, 403 US 602, 628; 91 S Ct 2015; 29 L Ed 2d 745 (1971) (DOUGLAS, J.,

concurring) (noting the “admitted and obvious fact that the raison d’être of parochial schools is

the propagation of a religious faith”); Walz v Tax Comm’n of City of New York, 397 US 664, 671;

90 S Ct 1409; 25 L Ed 2d 697 (1970) (describing an affirmative policy of religious bodies’

maintenance of religious schools as to “assure future adherents to a particular faith by having

control of their education at an early age”). It is an essential component of the Marist’s religious

mission and beyond the control of civil authorities. Both the United States Constitution and the

Michigan Constitution forbid judicial inquiry into the school’s decisions on admission. There is

no need to examine the controlling case, Dlaikan v Roodbeen, 206 Mich App 591; 522 NW2d

719 (1994), which simply holds that religious schools are entitled to First Amendment

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protections. Dlaikan is consistent with longstanding precedent of this Court and the United

States Supreme Court and was correctly applied to reverse the trial court’s assumption of

jurisdiction.

STATEMENT OF FACTS

A. Notre Dame Preparatory High School and Marist Academy.

Marists are a religious congregation of men and women who “strive to live the Gospel

the way Mary [the mother of Jesus], lived it.” Appendix 1 – Webpages of Society of Mary,

Marists in the U.S. Marists include Roman Catholic priests, brothers, and laity. Id. The Society

of Mary is a group of Roman Catholic priests and brothers. Their missions include Notre Dame

Preparatory High School and Marist Academy. Id.

Notre Dame Preparatory High School and Marist Academy (NDPMA) is an assumed

name of Marist Fathers of Detroit, Inc. Appendix 2 – Complaint at ¶¶ 3-6. NDPMA operates

Catholic schools in Oakland County. Id. NDPMA has a lower, a middle, and an upper division.

The middle division educates students in sixth through eighth grades. Id. The upper division,

Notre Dame Prep, educates students in ninth through twelfth grades. Id. Notre Dame Prep’s

mission is to form students into “Christian Persons, Upright Citizens, and Academic Scholars.”

Appendix 3 – Webpages of Notre Dame Preparatory High School – Grades 9-12. NDPMA is

under the general supervision of the Archbishop of the Detroit Archdiocese of the Roman

Catholic Church, and his appointed representative, Dr. Brian Dougherty, Superintendent of

Schools for the Archdiocese of Detroit.

B. Bettina Winkler struggled academically at NDPMA’s middle school and was denied admission to Notre Dame Prep.

Bettina Winkler attended NDPMA’s middle school for 7th and 8th grade. As an 8th grader

in the fall of 2013, Winkler applied to Notre Dame Prep. Appendix 2 – Complaint at ¶¶ 16-17.

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By her own admission, Winkler struggled in middle school. Appendix 2 – Complaint at ¶ 13.

Her first semester 8th grade report card reviewed by Notre Dame Prep as part of her application

showed a grade point average well below what Notre Dame Prep required for admission.

Compare Appendix 4 – Admissions Letter to 8th Grade Parents (stating that admission to Notre

Dame Prep required, among other things, “[w]ork at or above a B average in their core and

elective courses”) with Plaintiff’s Brief at 5 (“[I]n 8th grade Bettina performed better than a ‘C’

or 2.0 average. She earned a 2.33 GPA in Semester 1 . . . .”). Her cumulative grade point

average was lower. See Appendix 5 – Confidential Student Records Filed Under Seal. She had

a nearly failing grade in at least one course. Plaintiff’s Brief at 5 (acknowledging a second

semester average of 66 percent in one course). Winkler also scored very low on the High School

Placement Test.1 A teacher evaluation included a statement by the Middle School principal, Jill

Mistretta, that said: “I do not know if Winkler can handle our curriculum in upper division.”

Appendix 5 – Confidential Student Records Filed Under Seal.

Based on Notre Dame Prep’s evaluation of Winkler, Kathleen Offer, then-Dean of

Admissions, notified her parents that she would not be admitted to Notre Dame Prep. Appendix

7 – January 17, 2014 Letter from Kathleen M. Offer to Mr. and Mrs. Winkler; Appendix 2 –

Complaint at ¶ 27. The letter explained that Notre Dame Prep’s “goal is a curriculum that

provides both challenge and success.” Appendix 7 – January 17, 2014 Letter from Kathleen M.

Offer to Mr. and Mrs. Winkler. Ms. Offer explained the Notre Dame Prep curriculum, which is

1 The HSPT includes national percentile composite (CMP) and grade equivalency (GE)

scores. The CMP shows the student’s percentile rank in comparison with all students who took the test. The GE tells the grade level of the student’s work, e.g., a 9.5 on an 8th grade test reflects a score of a student mid-way through 9th grade. Appendix 6 – Letter from Gregory P. Simon to Middle School Students. Winkler’s CMP and GE scores are provided in Appendix 5 – Student Records (filed under seal).

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“quite demanding,” is not for everyone. Id. After reviewing Winkler’s academic transcript, test

scores, teacher evaluations, and discussion with Notre Dame Prep’s Principal, Father Joe

Hindelang, the admissions office at Notre Dame Prep did not feel it could “provide the

curriculum necessary to assure Bettina’s successful transition to NDP.” Id.

C. Bettina Winkler was tested and diagnosed with learning disabilities two months after Notre Dame Prep denied her application.

In March 2014, two months after Notre Dame Prep denied Winkler admission, she was

tested at Beaumont Children’s Hospital for Human Development. Appendix 2 – Complaint at ¶

14. The Complaint alleges that Winker was “formally diagnosed with ‘moderate dyslexia’ and

dyscalculia,” along with “Attention Deficit/Hyperactivity Disorder (“ADHD”), and an

adjustment disorder with anxiety.” Id. Testing by Beaumont doctors disclosed that Winkler was

“in the low-average range of cognitive functioning as compared to her same-age peers.”

Appendix 8 – Beaumont Hospital Evaluation March 20, 2014. Beaumont doctors concluded

Winkler was working below an 8th grade level. Id. Her spelling and oral reading skills, for

example, were at a 2nd and 3rd grade level, respectively.2 Id.

On Monday, March 17, 2014, Mr. and Mrs. Winkler acknowledged that their daughter’s

application to Notre Dame Prep had been denied. Appendix 10 – March 17, 2014 Letter from

Mr. and Mrs. Winkler to NDPMA Officials. They also told NDPMA President, Father Leon

Olszamowski and others, that they had “not yet informed” Winkler that she had been denied

2 Although never communicated to NDPMA, Winkler’s Complaint also alleges an undisclosed

person recommended to Bettina’s parents an Individualized Education Program, or Section 504 Plan. Appendix 2 – Complaint at ¶ 15. But, as Winkler acknowledges, Section 504 of the Rehabilitation Act, 29 USC 794, does not apply to NDPMA. Appendix 2 – Complaint at ¶ 37. Nor does the Individuals with Disabilities Education Act (“IDEA”), which requires public schools to create an Individualized Education Program (“IEP”) for “[e]ach public school child who receives special education related services.” See 20 USC 1414(d); see also Appendix 9 – U.S. Department of Education’s Guide to the Individualized Education Program Webpage.

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admission. Id. After explaining Winkler’s recent diagnosis, they asked Notre Dame Prep to

reconsider Winkler’s application because “Bettina has always attended a Christian School and

[would] like to continue her wonderful experience at Notre Dame.” Id.

Notre Dame Prep Principal, Father Joseph Hindelang, wrote to the Winklers on April 4,

2014. Father Hindelang reiterated that he did not believe Notre Dame Prep had courses in which

Winkler could achieve success. Appendix 11 – April 4, 2014 Email from Father Joe Hindelang

to Mr. and Mrs. Winkler. Regarding Winkler’s diagnosis, Father Hindelang explained:

The information that you have recently received about her Dyslexia may give Bettina and you indications of how she can learn best. Hopefully that information will be helpful in choosing another high school. While we wish her every success, we will not be accepting Bettina into 9th grade. [Id.]

Afterwards, Superintendent Dougherty wrote to the Winklers and offered the suggestion

that Bettina repeat the 8th Grade. His letter explained:

Bettina has struggled during the two years that she has attended NDP. As a result of the undiagnosed presence of dyslexia, Bettina has many gaps in her learning stretching across her grade levels. This was clearly evidenced in the score she received on the High School Placement Test. Now that the diagnosis has been made, I assume you have made arrangements for Bettina to work with the specialists necessary to learn how to deal with dyslexia and she is learning “how to learn” and comprehend. Going forward this year into the High School setting . . . . be it NDP or any other high school, Bettina will be forced to do two things. Learn how to learn with dyslexia and at the same time she will need to keep up with a college ready curriculum and the demands of a high school education. This is a tremendous amount of work, difficulty, and potential frustration that would be ahead for her. I would offer the following. If Bettina were to reenroll in the 8th grade at NDP (or frankly any school) she would have the opportunity to learn how to learn as a child with dyslexia in an environment that can support her at a pace that allows her to grow. High school is competitive and from the first day, each student begins to develop a cumulative academic record that will affect their college choice and acceptance. I am sure the additional year in the 8th grade will allow Bettina to be on a fairer playing field when she reaches high school the following year. [Appendix 12 – April 16, 2014 Email from Dr. Dougherty to Mrs. Winkler (emphasis added).]

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Bettina decided not to repeat the 8th grade.

D. Bettina Winkler files a lawsuit seeking admission in Notre Dame Prep.

In June 2014, Winkler filed a lawsuit that challenged and sought reversal of NDPMA’s

decision to deny her admission into Notre Dame Prep. See Appendix 2 – Complaint. Her

complaint asserted that NDMPA violated the Persons with Disabilities Civil Rights Act

(“PWDCRA”), MCL 37.1101 et seq., when it, with no knowledge of her yet-diagnosed learning

disabilities, denied her admission into Notre Dame Prep.3 See generally Appendix 2 –

Complaint.

(i) Winkler did not appeal the denial of her motion for a preliminary injunction requiring that she be admitted to Notre Dame Prep.

Winkler immediately moved for a preliminary injunction. Appendix 14 – Plaintiff’s

Motion for Preliminary Injunction. The motion asked the trial court to “enter an order of

injunctive relief requiring defendant to grant Winkler admission to Notre Dame Prep as a

freshmen this fall . . . .” Id. at 19. The trial court, finding that Winkler “fail[ed] to satisfy the

Court of the likelihood of success on the merits of her claim,” denied her motion. Appendix 15–

Opinion and Order Denying Plaintiff’s Motion for Preliminary Injunction at 2 (emphasis added).

Further, the trial court found that “putting plaintiff in a curriculum for which she is unprepared

could be more harmful to plaintiff, to other students, and school standards for future students.”

Id. Winkler did not seek leave to appeal the denial of her motion for a preliminary injunction.

3 Winkler’s complaint also alleged claims for tortious fraud/misrepresentation and violations of

the Michigan Consumer Protection Act, MCL 445.903(1). Appendix 2 – Complaint at Counts II and III. In response to NDPMA’s motion for summary disposition, Winkler stipulated to dismissal of these claims. An order to that effect was entered in the trial court. Appendix 13 – Order of Dismissal of Counts II and III of Plaintiff’s Complaint.

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(ii) NDPMA’s motion for summary disposition on the grounds that the trial court lacked jurisdiction to adjudicate Winkler’s claim that was denied.

In lieu of answering the complaint, NDPMA filed a motion for summary disposition

pursuant to MCR 2.116(C)(4) and MCR 2.116(C)(10). Appendix 16 – NDPMA’s Motion for

Summary Disposition. NDPMA argued that the trial court lacked jurisdiction to adjudicate

Winkler’s claims because they concerned religious doctrine or ecclesiastical polity shielded

under the First Amendment of the United States Constitution and art 1, § 4 of the Michigan

Constitution from review by civil courts. Id. at 5. In addition, NDPMA argued that the

PWDCRA did not apply to religious educational institutions. Appendix 17 – NDPMA’s Reply

Brief in Support of its Motion for Summary Disposition. NDPMA also argued it was entitled to

judgment as a matter of law because Winkler’s alleged disability was diagnosed after she was

denied admission. Appendix 16 – NDPMA’s Motion for Summary Disposition. The trial court

denied NDPMA’s motion. In an opinion and order, the trial court asserted that it had

jurisdiction, the PWDCRA applied to religious schools, and NDPMA’s motion under MCR

2.116(C)(10) was premature. Appendix 18 – Opinion and Order Denying Defendant’s Motion

for Summary Disposition.

The Court of Appeals granted NDPMA’s application for leave to appeal from the trial

court’s order.4 In an unpublished opinion, the Court of Appeals reversed and remanded with

instructions that the trial court “enter an order granting defendant summary disposition in this

matter.” Winkler v Marist Fathers of Detroit, Inc d/b/a Notre Dame Preparatory High School

and Marist Academy, unpublished opinion of the Court of Appeals, issued November 12, 2015

4 The trial court stayed all proceedings pending the outcome of NDPMA’s appeal. Appendix 19

- Order Staying Trial Court Proceedings.

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(Docket No. 323511) at 3. Addressing only whether the trial court had jurisdiction over

Winkler’s claims, the Court of Appeals held “that the trial court does not have subject-matter

jurisdiction to review plaintiff’s claim based on constitutional protections afforded by the First

Amendment.” Id. at 5. The Court of Appeals reasoned that “civil courts have no place analyzing

the decision-making process of a religious institution regarding admission.” 5 Id. at 4.

Winkler filed an application for leave to appeal to this Court on December 23, 2015.

STANDARD OF REVIEW

This Court reviews a trial court’s decision on a motion for summary disposition de novo.

Shepherd Montessori Ctr Milan v Ann Arbor Charter Twp, 486 Mich 311, 317; 783 NW2d 695

(2010). Jurisdictional questions raised under MCR 2.116(C)(4) are also questions of law

reviewed de novo. Travelers Ins Co v Detroit Edison Co, 465 Mich 185, 205; 631 NW2d 733

(2001). A motion under MCR 2.116(C)(4) tests a court’s subject matter jurisdiction.

“Jurisdiction over the subject matter is the right of the court to exercise judicial power over a

class of cases, not the particular case before it, but rather the abstract power to try a case of the

kind or character of the one pending; and not whether the particular case is one that presents a

cause of action or under the particular facts is triable before the court in which it is pending

because of some inherent facts which exist and may be developed during the trial.” Joy v Two-

Bit Corp, 287 Mich 244, 253-254; 283 NW 45 (1938). Id. (citation omitted). In this regard,

“[t]he question of jurisdiction does not depend on the truth or falsehood of the charge, but upon

5 The Court of Appeals did not address NDPMA’s arguments that the PWDCRA does not apply

to religious institutions and that, even if it did, NDPMA is entitled to summary disposition because Winkler cannot show that she was actually discriminated against when the alleged disability was diagnosed after she was denied admission. See Winkler, unpub op at 4. If the Court of Appeals is reversed as Winkler’s application for leave to appeal to this Court requests, the case should be remanded to the Court of Appeals for consideration of issues raised but not addressed by the Court of Appeals.

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its nature: it is determinable on the commencement, not at the conclusion, of the inquiry.” Fox v

Martin, 287 Mich 147, 151; 283 NW 9 (1938) (citation omitted). Where, as here, a court lacks

subject matter jurisdiction over the plaintiff’s claims, “any action it takes, other than to dismiss

the action, is void.” Bowie v Adler, 441 Mich 23, 56; 490 NW2d 568 (1992).

ARGUMENT

I. THE FIRST AMENDMENT PROHIBITS A COURT FROM ASSERTING JURISDICTION OVER A CLAIM THAT CHALLENGES THE DENIAL OF ADMISSION INTO A RELIGIOUS SCHOOL

The First Amendment to the United States Constitution provides that “Congress shall

make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

US Const, Am I; see also Const 1963, art 1, § 4.6 Under the First Amendment, the line of

demarcation is clear. A church cannot be involved in the affairs of the state and the state cannot

be involved in the affairs of a church. See Watson v Jones, 80 US 679, 730; 20 L Ed 666 (1871)

quoting Harmon v Dreher, 2 Speer’s Equity, 87 (“The structure of our government has, for the

preservation of civil liberty, rescued the temporal institutions from religious interference. On the

other hand, it has secured religious liberty from the invasion of civil authority.”). The religious

freedom clauses are designed to prevent “the intrusion of either [government or religion] into the

precincts of the other.” Lemon, 403 US at 614. Not even the slightest breach can be tolerated.

6 Michigan’s Constitution provides:

Every person shall be at liberty to worship God according to the dictates of his own conscience. No person shall be compelled to attend, or, against his consent, to contribute to the erection or support of any place of religious worship, or to pay tithes, taxes or other rates for the support of any minister of the gospel or teacher of religion. No money shall be appropriated or drawn from the treasury for the benefit of any religious sect or society, theological or religious seminary; nor shall property belonging to the state be appropriated for any such purpose. The civil and political rights, privileges and capacities of no person shall be diminished or enlarged on account of his religious belief. [Const 1963, art 1, §4.]

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Id.

The religious freedom clauses of the First Amendment limit judicial authority to

adjudicate disputes. “It is well settled that courts, both federal and state, are severely

circumscribed by the First and Fourteenth Amendments to the United States Constitution and art.

1, § 4 of the Michigan Constitution of 1963 in resolution of disputes between a church and its

members.” Maciejewski v Breitenbeck, 162 Mich App 410, 413-414; 413 NW2d 65 (1987). The

rule is clear – a court’s jurisdiction over disputes between a church and its members “is limited

to property rights which can be resolved by application of civil law. Whenever the court must

stray into questions of religious doctrine or ecclesiastical polity the court loses jurisdiction.” Id.

at 414; see also Berry v Bruce, 317 Mich 490, 501; 27 NW2d 67 (1947). “This limited role is

premised on First Amendment principles that preclude a court from deciding issues of religious

doctrine and practice, or from interfering with internal church government.” Dixon v Edwards,

290 F3d 699, 714 (CA 4, 2002).

A. The Court of Appeals correctly held that Winkler’s claim under the PWDCRA involves religious doctrine and ecclesiastical polity outside the jurisdiction of a civil court.

The Court of Appeals correctly held that Winkler’s challenge to NDPMA’s decision to

deny her admission into Notre Dame Prep involves religious doctrine and ecclesiastical polity

outside the jurisdiction of the civil courts. Whether a complaint strays into religious doctrine or

ecclesiastical polity is based on the substance of the complaint, not its form. Dlaikan, 206 Mich

App at 593; Natal v Christian & Missionary Alliance, 878 F2d 1575, 1577 (CA 1, 1989).7

Religious doctrine includes education services provided by religious schools. Lemon, 403 US at

7 See also Connor v Archdiocese of Philadelphia, 975 A2d 1084, 1102 (Pa 2009) (surveying

federal and state cases and holding that “the most thorough and persuasive analyses are yielded by a claim-by-claim, element-by-element approach to the question of whether to apply the deference rule.”).

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621.

Here, while labeled as a claim for disability discrimination in violation of MCL 37.1402

of the PWDCRA,8 the substance and effect of the claim unquestionably challenges, and seeks to

overturn, NDPMA’s decision about who shall receive a religious education at Notre Dame Prep.

See Winkler, unpub op at 4 (“The crux of plaintiff’s complaint is that she was denied admission

to defendant’s school.”). Winkler’s complaint seeks damages and injunctive relief requiring

Notre Dame Prep to admit her to the school. See e.g., Appendix 2 – Complaint at ¶ 50 (Notre

Dame Prep’s “disability discrimination entitles [Winkler] to damages and injunctive relief”).

Further, Winkler’s complaint alleges that “[t]here would be no undue hardship or burden for

[Notre Dame Prep] to accommodate [Winkler] at the high school . . . .” Appendix 2 – Complaint

at ¶ 50. Winkler’s motion for a preliminary injunction sought an order “requiring” her admission

into Notre Dame Prep. See Appendix 14 – Plaintiff’s Motion for Preliminary Injunction.

As a substantive challenge to NDMPA’s admission decision, the claim is quintessentially

nonjusticiable. The decisions of a religious organization concerning the qualifications for

membership are final. Watson, 80 US at 730, quoting Shannon v Frost, 42 KY (3 B Mon) 253,

258 (1842) (holding that the judicial power does not allow a court to “decide who ought to be

members of the church”); see also Maciejewski, 162 Mich App at 416 (holding that it is “beyond

the jurisdiction of civil courts to determine rights to communion, qualification of members, and

privileges of membership which are necessary to decide the issues in this case”).

8 The PWDCRA provides in pertinent part that an educational institution shall not:

(b) Exclude, expel, limit, or otherwise discriminate against an individual seeking admission as a student or an individual enrolled as a student in the terms, conditions, and privileges of the institution, because of a disability that is unrelated to the individual's ability to utilize and benefit from the institution, or because of the use by an individual of adaptive devices or aids. [MCL 37.1402(b) (emphasis added).]

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Correspondingly, a religious organization’s decision to expel a member is also final. Berry, 317

Mich at 501 (“[T]he action of church authorities in the deposition of pastors and the expulsion of

members is final.”). (Citation omitted). “To assume such jurisdiction would not only be an

attempt by the civil courts to deal with matters of which they have no special knowledge, but it

would be inconsistent with complete religious liberty untrammeled by state authority.” Borgman

v Bultema, 213 Mich 684, 703; 182 NW 9 (1921) (citation omitted). As the United States

Supreme Court held:

The right to organize voluntary religious associations to assist in the expression and dissemination of any religious doctrine, and to create tribunals for the decision of controverted questions of faith within the association, and for the ecclesiastical government of all the individual members, congregations, and officers within the general association, is unquestioned. All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them reversed. It is of the essence of these religious unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognizance, subject only to such appeals as the organism itself provides for. [Watson, 80 US at 728-729.] Because the First Amendment provides religious organizations autonomy to operate free

from governmental interference, the Court of Appeals properly held that the trial court did not

have jurisdiction to examine the decision making process of NDPMA. Winkler, unpub op at 4.

B. Winkler’s assertion that her complaint can be adjudicated solely by reference to the PWDCRA ignores the substance of her claim and would entangle a court in the admission decisions of a religious organization.

Winkler says that her claim can be resolved solely by reference to statutory law.

Plaintiff’s Brief at 23 (“Plaintiff-Appellant invokes a statutorily defined civil right and the trial

court is asked only to interpret and apply the PWDCRA without reference to religious

doctrine.”). But the argument considers only the form of Winkler’s complaint, not its substance.

Examining the substance of her PWDCRA claim reveals the First Amendment violation. In

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examining the substance of a complaint, a court looks beyond the nomenclature used (i.e., the

form), to its substance and effect. See Grp Ins Co of Mich v Czopek, 440 Mich 590, 613; 489

NW2d 444 (1992). A prima facie case under § 402 of the PWDCRA requires a plaintiff to

establish that she was qualified for the educational opportunity sought. Crancer v Bd of Regents

of the Univ of Mich, 156 Mich App 790, 795; 402 NW2d 90 (1986). A plaintiff must also show

that, in spite of her qualifications, “she is not being afforded an equal opportunity to secure the

educational opportunity as other applicants.”9 Id. These elements of Winkler’s case preclude a

court from asserting jurisdiction over her claim. A civil court cannot decide who is qualified to

obtain a religious education.

The questions raised by Winkler’s claim are not simply property rights that can be

resolved by application of civil law, for a court cannot look to civil law to determine admission

standards or practices of a religious school. No body of civil law prescribes whom a religious

school must admit into its classrooms. Any analysis as to who is qualified for admission into

Notre Dame Prep will require an examination of “religious law” – specifically the policies,

procedures, and directives formulated by the Archdiocese of Detroit and the Roman Catholic

Church for Catholic education. It will also require analysis of Notre Dame Prep’s standards for

admission, its religious principles, and its code of conduct. A court will then be called on to

make these assessments in light of Notre Dame Prep’s announced mission to form students into

“Christian Persons” and “Academic Scholars.”10

Such inquiries inescapably implicate the First

Amendment’s concerns with entanglement in religious doctrine and ecclesiastical polity. See

9 A plaintiff must also show that she is a disabled person under the PWDCRA as defined by

MCL 37.1103. Crancer, 156 Mich App at 795. 10

See Appendix 3 – Webpages of Notre Dame Preparatory High School – Grades 9-12 (defining Notre Dame Prep’s mission to be to form students into “Christian Persons, Upright Citizens, and Academic Scholars”).

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Lemon, 403 US at 617 (“The substantial religious character of these church-related schools gives

rise to entangling church-state relationships of the kind the Religion Clauses sought to avoid.”);

Gaston v Diocese of Allentown, 712 A2d 757, 760 (Pa 1998) (specifically holding a Catholic

school’s disciplinary code to be a matter of church doctrine and declining to assert jurisdiction

over a claim challenging a religious school’s decision to expel a student); In re Rosa Vida, No.

04-14-00636-CV, 2015 WL 82717 (Tex App, 2015) (holding that the trial court did not have

jurisdiction to adjudicate a lawsuit concerning a child who was not promoted to first grade in a

religious school based on the school’s secular age requirements because asserting jurisdiction

“would impinge upon the Diocese’s ability to manage its internal affairs by adopting policies

regarding admission requirements for Catholic schools”).

Moreover, Winkler’s claim would require a court to assess not just her application, but all

applications to Notre Dame Prep to determine whether she was afforded an equal opportunity for

admission. Such an assessment would create an authoritative public record, stamped with the

imprimatur of the government, about whom and in what circumstances a student is properly

admitted or denied admission into a religious school. Government oversight of religious

education is not tolerated by our Constitution. Religious elements necessarily influence the

entire Catholic school system. Secular elements of the admission inquiry, while present, cannot

be segregated without offending the First Amendment. See Lemon, 403 US at 617 (noting that

“[r]eligious authority necessarily pervades the [Catholic] school system”). It follows that the

Court of Appeals correctly held that the trial court lacked jurisdiction to adjudicate Winkler’s

claims.

C. The issues raised by Winkler’s application for leave to appeal have been well-settled by this Court and the United States Supreme Court and do not merit further review.

Winkler argues that the Court of Appeals improperly extended the ecclesiastical

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abstention doctrine. Plaintiff’s Brief at 15. The crux of her argument is that NDPMA did not

provide “any religious or ecclesiastical justification for denying high school admission to

Bettina.” Plaintiff’s Brief at 17. According to Winkler, “the inability to cite religious

justification is fatal.”11

Id. Contrary to Winkler’s argument, the Court of Appeals decision in

this case is consistent with the long-standing First Amendment jurisprudence of this Court and

the United States Supreme Court. The Court of Appeals did not expand the ecclesiastical

abstention doctrine. Rather, it simply applied established precedent to the facts of this case.

Religious organizations have an inalienable First Amendment right to conduct their

affairs free from governmental interference or oversight. For decades this Court has “repeatedly

recognized that judicial interference in the purely ecclesiastical affairs of religious organizations

is improper.” Berry, 317 Mich at 499. Similarly, in Kedroff v St Nicholas Cathedral of Russian

Orthodox Church, 344 US 94, 116; 73 S Ct 143; 97 L Ed 120 (1952), the Supreme Court

characterized its First Amendment jurisprudence as radiating a “spirit of freedom for religious

organizations, an independence from secular control or manipulation, in short, power to decide

for themselves, free from state interference, matters of church government as well as those of

faith and doctrine.”

The autonomy the First Amendment provides to religious organizations extends far

beyond preaching from the pulpit. In Berry, for example, this Court held that the trial court’s

order directing the Olivet Missionary Baptist Church to conduct a meeting “constituted improper

judicial interference with the internal management of the church in ecclesiastical matters.” 317

Mich at 502. The Court’s holding embodies the fundamental First Amendment principle that

rules, policies, and decisions of a religious organization are not subject to review in our civil 11

Winkler provides no authority for this statement and, as discussed in this section, the statement is incorrect.

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courts. This holding is consistent with First Amendment jurisprudence across the country. See

e.g., Natal v Christian & Missionary Alliance, 878 F2d 1575, 1577 (CA 1, 1989) (holding that a

federal court does not have jurisdiction over the plaintiff’s complaint that substantively involves

“and would require judicial intrusion into rules, policies, and decisions which are unmistakably

of ecclesiastical cognizance.”).

In Dlaikan, as here, the Court of Appeals simply acknowledged that the freedoms

provided by the First Amendment to religious organizations extend to religious schools. As

Dlaikan recognized, there “is no distinction between a church providing a liturgical service in its

sanctuary and providing education imbued with its religious doctrine in its parochial school.”

206 Mich App at 593. The holding is neither extraordinary nor debatable.12

As the United

States Supreme Court has held, operation of a Catholic school is not a “secular” activity.

In Lemon, the Supreme Court addressed the constitutionality of state statutes that

provided funding for teachers of “secular” subjects in Catholic elementary and secondary

schools. 403 US at 606. In one statute, funding was provided to supplement the salaries for

teachers of “secular subjects.” Id. at 607-609. In another statute, funding was provided for

“secular education services” such as teachers’ salaries, textbooks, and instructional materials if

prescribed accounting procedures were followed. Id. at 607-610. Both statutes required

governmental monitoring to ensure that aid was applied to “secular” as opposed to religious

educational activities. Id.

Reviewing the character and purpose of the schools that benefited from these statutes, the 12

Appropriately, Winkler does not take issue with the holding of Dlaikan that religious schools are entitled to the protections afforded by the First Amendment, only its application to the facts of that case. Arguably, reasonable minds could disagree on the application as then-Judge Taylor pointed out in dissent. But the facts of Dlaikan are not at issue here and thus it is irrelevant that the Dlaikan opinion “provided scant detail about the facts leading to the claim.” Plaintiff’s Brief at 15.

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Court was persuaded that although only 30 minutes a day was devoted to religious instruction,

[r]eligious authority necessarily pervades the school system” such that religious education could

not be segregated from secular education. Id. at 617. The Catholic school system provided an

“atmosphere in which religious instruction and religious vocations are natural and proper parts of

life in such schools.” Id. at 615. The schools “constituted an integral part of the religious

mission of the Catholic Church” and were a “powerful vehicle for transmitting the Catholic faith

to the next generation.” Id. at 616 (internal quotation marks omitted). In short, the Supreme

Court said, the schools “involve substantial religious activity and purpose.” Id. (emphasis

added).

Lemon held both statutes unconstitutional. The substantial religious character of Catholic

schools “gives rise to entangling church-state relationships of the kind the Religion Clauses

sought to avoid.” Id. at 617. Controls to ensure that government aid supported only secular

education were not possible under the religious freedom clauses, which simply do not tolerate

“comprehensive, discriminating, and continuing state surveillance” of religious schools. Id. at

619. The Supreme Court concluded:

Under our system the choice has been made that government is to be entirely excluded from the area of religious instruction and churches excluded from the affairs of government. The Constitution decrees that religion must be a private matter for the individual, the family, and the institutions of private choice, and that while some involvement and entanglement are inevitable, lines must be drawn. [Id. at 625.]

Consistent with the Supreme Court’s precedent in Lemon, the Court of Appeals in

Dlaikan correctly recognized that the First Amendment protections afforded to religious

congregations also apply to religious schools.13

That unassailable rule of law applies here and,

13

Winkler argues that Dlaikan is distinguishable because her claim is based on a statute as opposed to the common law. See Plaintiff’s Brief at 20 (arguing that Dlaikan is distinguishable

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as the Court of Appeals held, the trial court lacked jurisdiction “to delve into the decision-

making process of defendant, a religious institution.” Winkler, unpub op at 4. Winkler has not

cited a single case from any jurisdiction that authorizes judicial second-guessing of a religious

school’s admission decision. The First Amendment simply does not tolerate such government

involvement, one that is “pregnant with dangers of excessive government direction of church

schools and hence of churches.” Lemon, 403 US at 620.

Application of settled law to the facts of this case is not jurisprudentially significant and

the Court’s First Amendment jurisprudence needs no further elaboration. As this Court said

almost seventy years ago, “[m]uch has been written and much can be said on the subject, but

little that is new can be added to that expressed by this court . . . It is enough to say that we have

not departed from the rule that: In matters of church polity purely ecclesiastical civil courts do

not interfere . . . .” Berry, 317 Mich at 499 (citations and internal quotation marks omitted).

CONCLUSION

The Court should deny Winkler’s application for leave to appeal. The Court of Appeals

correctly held that NDPMA is entitled to summary disposition. The First Amendment and art 1,

§ 4 of the Michigan Constitution do not permit a court to assert jurisdiction over a claim

dependent on a religious educational institution’s refusal to admit a student.

because Winkler’s claim here is based “in a statutory anti-discrimination law that effectuates a strong public policy”). The purported distinction has no significance. The Constitution’s limitations on governmental power apply to both the common law and statutory claims. US Const, art VI; Marbury v Madison, 5 US 137, 177; 2 L Ed 60 (1803) (“It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it. . . .”).

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Dated: February 17, 2016

Respectfully submitted,

BODMAN PLC

By: /s/ Thomas J. Rheaume Jr. James J. Walsh (P27454) Karen L. Piper (P31706) Thomas J. Rheaume, Jr. (P74422) 6th Floor at Ford Field 1901 St. Antoine Detroit, MI 48226 (313) 259-7777 Attorneys for Defendant-Appellee

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