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Abstract

In 1979, the Supreme Court found that teachers at a Catholic parochial school were exempt from the National Labor Relations Act (NLRA) because of First Amendment religious infringement risks. Subsequently, the National Labor Relations Board (NLRB) has faced controversy over its efforts to delineate an appropriate test for the religious exemption in the higher education context. This uncertainty over the NLRB’s test has resulted in time-consuming litigation and hampered faculty’s ability to organize at schools where Board jurisdiction would not present a significant risk of First Amendment infringement. This paper argues that the Board’s recent decision in Pacific Lutheran University will bring much-needed stability in this area of the law because the new religious exemption test is carefully crafted to protect both constitutional and statutory interests. More faculty will be able to exercise their right to organize, and this wider experience with collective bargaining within Catholic colleges universities will reveal how speculative the constitutional entanglement risks actually are under the NLRA.

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