Justia Federal District Court Opinions

Plaintiffs Dayton Christian Schools, Inc., et al. appeal the district court's order dismissing their complaint pursuant to 42 U.S.C. Sec. 1983 seeking declaratory and injunctive relief from application of the Ohio Civil Rights Act, Ohio Rev.Code Ann. Sec. 4112.01 et seq. (Page 1959).1 Finding that the First Amendment to the United States Constitution proscribes application of the state statute in this context, we reverse.

In January 1979, Linda Hoskinson, a teacher at Dayton Christian Schools (DCS), informed DCS Principal James Rakestraw that she was pregnant. When Rakestraw discussed this with DCS Superintendent Claude Schindler in February 1979, Schindler "instructed Mr. Rakestraw to write Mrs. Hoskinson a letter stating to her that because of our desire to have a mother home with pre-school age children, that she would not be issued a contract for the upcoming school year." On February 20, 1979, Rakestraw wrote such a letter to Hoskinson.2

After learning that she would not be rehired for the next school year, Hoskinson consulted an attorney who wrote to DCS threatening legal action for violation of state and federal statutes proscribing employment discrimination. On March 14, 1979, Hoskinson was terminated because she had consulted an attorney. In a letter dated March 27, 1979, the DCS Board rescinded the February 20 letter in which the Board declined to rehire Hoskinson and instead discharged her for failing to follow the Biblical Chain-of-Command.3

On March 28, 1979, Hoskinson filed a charge of sex discrimination with the Ohio Civil Rights Commission (OCRC) alleging that the reason for her termination "was the school's belief that during the early years of a child's growth, the mother's place is in the home." On April 18, 1979, the OCRC requested information on the matter from DCS, and on May 14, 1979, informed DCS that a formal investigation had begun. On October 24, 1979, OCRC informed DCS that a hearing would be held on November 16 and requested information including employment data on Hoskinson, blank employment applications, employee handbooks and rules and regulations, job descriptions and model contracts, information about employee pregnancies, employee grievance procedures, and complete personnel files for more than a dozen DCS employees. On January 28, 1980, OCRC informed DCS that the Commission had found probable cause to believe that DCS had engaged in unlawful discrimination. The Commission found that "[e]vidence does not indicate that the Ohio Civil Rights Commission lacks jurisdiction over Respondent because it is a religious institution." Further, the Commission concluded that "[c]omplainant's discharge, and the reasons given for it by Respondent, were directly linked to the February 20, 1979 memo which stated that she would not be offered a contract because 'if there are pre-school age children in the home we recommend the mother stay there and do not accept her application.' " The Commission further suggested that the parties enter into a Conciliation Agreement and Consent Order. On April 18, 1980, the Commission issued a complaint against DCS and DCS answered asserting lack of jurisdiction due to the religious basis for the discharge.

On October 1, 1980, plaintiff-appellants, Dayton Christian Schools, Inc., Patterson Park Church, Christian Tabernacle, DCS Superintendent Claude Schindler, parents Stephen and Camillia House, and DCS teacher Paul Pyle brought this action pursuant to 42 U.S.C. Sec. 1983 against the OCRC, five commissioners, the Ohio Attorney General, OCRC directors and two assistant attorney generals.4 Plaintiffs sought a declaratory judgment that enforcement of the Ohio Civil Rights Act against DCS violated the First, Ninth and Fourteenth Amendments and an injunction to enjoin interference with plaintiffs' free exercise of their religious beliefs. Plaintiffs also argue that the State's attempt to exercise jurisdiction over the school and its hiring practices violated the Establishment Clause of the First Amendment.5 On October 6, the district court granted a temporary restraining order restraining the OCRC from proceeding with a public hearing concerning DCS employment practices. The parties agreed to consolidate trial on the merits with a hearing on plaintiffs' motion for a permanent injunction pursuant to Fed.R.Civ.P. 65(a)(2). A one-day trial was held on December 8, 1980, and, on January 6, 1984, the district court entered an order dismissing the case and denying plaintiffs relief. On July 30, 1984, the district court entered an order granting plaintiffs' request for an injunction pending appeal pursuant to Fed.R.Civ.P. 62(c). 604 F.Supp. 101.

Our consideration of appellants' constitutional claims requires review of the facts regarding the nature of Dayton Christian Schools, the exercise of religion implicated in the OCRC's actions, and the statutory scheme from which DCS claims exemption. Of course, we recognize that "[f]indings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Fed.R.Civ.P. 52(a); Roemer v. Board of Public Works of Maryland, 426 U.S. 736, 758, 96 S.Ct. 2337, 2350, 49 L.Ed.2d 179 (1976) (plurality). We make no effort to "duplicate the role of the lower court," but only consider whether "the district court's account of the evidence is plausible in light of the record viewed in its entirety." Anderson v. City of Bessemer City, --- U.S. ----, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985).6

The district court found that DCS has "a dominant religious purpose which permeates both the administrative and substantive aspects of the school." 578 F.Supp. at 1008-09. Further, the court found that

[e]very aspect of the school's operation is geared toward exposing and educating the students on how to lead a Christian life by understanding what the members consider to be the guidance and direction provided by the Bible. As revealed in the testimony at the hearing on this matter and in the exhibits accepted into evidence, the teachers at DCS are selected because of their ability to blend their avowed religious beliefs into every lesson and school activity. Teachers are required to be born again Christians and to carry with them into their classes the religious fervor and conviction felt necessary to stimulate young minds into accepting Christ as savior. Because of the emphasis placed on the religious education of the students, the school demands that teachers conform both in thought and conduct to the tenets and principles felt essential to leading a Christian life. The belief system espoused by the members of DCS touches every aspect of their life: work, interpersonal relationships, family and recreational activities. Deviation in any way from what is felt to be the proper religious way of life may cast doubt on a teacher's ability to perform his or her critical role and may, therefore, be grounds for dismissal.

578 F.Supp. at 1018-19.

DCS stated as its purposes "to teach all subjects in a manner to create in each student an awareness of God's Supreme authority over all creation" and "to train and prepare youth for worthy contributions to the Cause of Christ in the home, church and community." DCS Certificate of Consolidation.7 "The major distinction of DCS is the fact that all truth is related and interpreted from God's viewpoint." Cover letter to applicants for employment. Both teachers and parents of DCS students must subscribe to the DCS Statement of Faith.8 Schindler confirmed that applicants who did not subscribe to the Statement of Faith would not be considered for employment. Further, Superintendent Schindler testified that "[o]ne parent in the family must be a professing Christian, must be born again. And the student in the school must be a Christian, or professing Christian." Testimony in the district court indicated that the parents' obligation to educate their children in accordance with Christian principles is biblically based.⁹

The religious focus of the school is reflected in the teacher selection process and concomitant role of the teacher in the school. Schindler testified that "[t]he teacher's relationship with Jesus Christ and their life style is crucial to their subsequent employment at Dayton Christian Schools." Further, "[w]e feel that a teaching position is so crucial in our school and so vital to the performance of our ministry, that ... [b]efore we make the recommendation to the Board to hire our teachers, we must be in total harmony about that teacher's commitment to Christ and her life style and her ability to teach in our system."

Teacher Paul Pyle testified regarding his experience as a teacher at DCS.

Then I begin each class with prayer. Sometimes I begin each class with a devotional thought, something that is fresh to me from the Scriptures that I have gotten that day or just recently. However, if I were to tell you that that would--was the extent of the religious activities during the day, that would be misleading. In my opinion, and in my endeavors in the classroom, the entire class period is given over to religious activities. I try to make sure that everything I do in someway adheres to Biblical principles that I have learned from the Bible through my being taught at Dayton Christian and through my own Bible studies. Could I go on and give an example?

Q Sure.

A For instance, when we are studying any literature, the thing I stress with my students in literature is all human thought can be tested within the absolute standards of the Scriptures. So we go through and discover the theme of that story in detail, to use the answer, test that to decide whether its true or false. And you can see that my putting the Scripture up as the ultimate authority comes through in the classroom day after day.

These facts support the district court's conclusion that DCS is a pervasively religious institution in which religious considerations permeate all aspects of the educational process, govern the teacher selection process, and dictate parents' entrustment of their children's education to the school.¹⁰

The Ohio Civil Rights Commission's complaint of discrimination implicates two asserted religious beliefs of appellants: the belief that a mother's place is in the home and the belief in a Chain-of-Command for resolving disputes among church members. We review the role of these beliefs in the appellant's religion to instruct our assessment of the constitutionality of the Ohio Civil Rights Act.

Superintendent Schindler testified:

We believe that the Bible teaches that even though we are equal in the sight of God, our role is different, the role of the female is different than that of the male. The Scripture teaches that in I Peter, Chapter 3; I Timothy, Chapter 2, Titus, Chapter 2, just to mention a few passages of the Scripture. And in those passages it spells out the role of a woman. And my counseling with Mr. Rakestraw is based upon those principles in God's words. And we felt they directly related to a woman being home with her pre-school age children. We rescinded the letter because after counseling we found that we had not adequately explained this to our faculty and to our staff. And thus Mrs. Hoskinson was not fully aware of the convictions of the administration and of the School Board relative to this particular Biblical principle.

Q Was there any change on the school's position on this issue?

A No, sir. We fell as strongly today about the Biblical principle as we did before rescinding this letter.

While Hoskinson was not aware of the church belief regarding teachers with pre-school age children and such philosophy was not specifically delineated, 578 F.Supp. at 1012, the philosophy, although biblically rooted, was known to Schindler primarily from previous experiences with the school board.¹¹ Schindler testified that he instructed Rakestraw to write the letter to Hoskinson

[b]ecause on further--past experiences I had been denied applications that I had presented to the Board where there was a mother with pre-school age children. I knew their philosophy and I knew it well, and I knew what their counsel would be to me.

Q Was it your testimony that you had presented employment candidates to the Board on prior occasions but your recommendations were turned down because they had pre-school age children at home?

A Yes, one specific application, yes sir.

The district court found that "the record supports the conclusion that, at least in the mind of Mr. Schindler, the nonrenewal of Mrs. Hoskinson's teaching contract was an act consistent with and compelled by religious beliefs." 578 F.Supp. at 1012. Further,

[t]he Court cannot accept Defendants' contention that the initial decision not to renew Mrs. Hoskinson's contract was prompted solely by Mr. Schindler's personal philosophy and that, therefore, OCRC review of that decision could not even raise potential first amendment concerns. Though the belief may not be documented or as well known or accepted as other precepts discussed during the proceeding, the evidence clearly establishes that Mr. Schindler's conduct was based upon religiously founded principles. The Court does not feel it proper to relegate this personally held religious belief to an artificial lesser status of "personal philosophy" simply because the belief might not have been a clearly articulated tenet at DCS. The Court finds, therefore, that the initial decision not to renew Mrs. Hoskinson's teaching contract was founded on religious precepts and therefore falls within the ambit of the first amendment's protection afforded to the free exercise of religion.

Id. at 1031.

The Chain of Command is a biblically based authority structure which depends on the internal peaceful resolution of differences.¹² The Chain of Command concept is related to the concept of giving a good report.¹³ Hoskinson's contract included the following provision:The teacher agrees to follow the Biblical pattern of Matthew 18:15-17 and Galations 6:0 and always give a good report. All differences are to be resolved by utilizing Biblical principles--always presenting a united front.

Further, Hoskinson wrote on her application for employment that "[o]bedience to those in authority over you is clearly stated in the Bible. I believe in God's chain of command."

The district court found that "Hoskinson was aware of the requirement that all teachers follow the Chain of Command prior to consulting her attorney and prior to her discharge." 578 F.Supp. at 1012. "The eventual discharge of Mrs. Hoskinson stemmed from the fact that she contacted an attorney in response to actions taken by the school regarding her employment." Id. at 1013.¹⁴ The district court found that the Chain-of-Command concept "is both well articulated and generally held and ascribed to by the DCS staff and administration." Id. at 1032. The court concluded:

Thus, when the Board made the determination that Mrs. Hoskinson's contract should be terminated because of "philosophical differences" stemming from her taking her complaint about the nonrenewal of her contract to an attorney, this decision was consistent with the Board's expressed and established religious belief that disputes be resolved internally and in accordance with the Biblical Chain of Command.

Id.¹⁵

The Ohio Civil Rights Act, effective July 29, 1959, provides in pertinent part:

It shall be an unlawful discriminatory practice: (A) For any employer, because of the race, color, religion, sex, national origin, handicap, age or ancestry of any person, to discharge without just cause, to refuse to hire, or otherwise to discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment.

Ohio Rev.Code Ann. Sec. 4112.02(A).¹⁶ The Act also makes it unlawful[f]or any person to discriminate in any manner against any other person because that person has opposed any unlawful practice defined in this section, or because that person has made a charge, testified, assisted, or participated in any manner in any investigation, proceeding or hearing under sections 4112.01 to 4112.07 of the Revised Code.

Ohio Rev.Code Ann. Sec. 4112.02(I).¹⁷

The Act establishes the Ohio Civil Rights Commission, section 4112.03, to "[r]eceive, investigate, and pass upon written charges made under oath...." Section 4112.04(A)(6). The statute empowers the OCRC to hold hearings, subpoena witnesses, administer oaths, and to require the production of books and papers. Section 4112.04(B)(3). The Act further obligates the Commission, prior to a formal hearing, to "attempt, by informal methods of persuasion and conciliation, to induce compliance with" the Act. Section 4112.05(A). The Act authorizes the Commission, upon the filing of a charge, to initiate a preliminary investigation. Section 4112.05(B). If the Commission determines that it is probable that unlawful practices were engaged in and the Commission fails to secure voluntary compliance with Chapter 4112, the Commission may issue and cause to be served a complaint. Id. See generally Ohio Admin.Code Sec. 4112. If after a hearing, the Commission determines that unlawful practices have been engaged in it shall

cause to be served on such respondent an order requiring such respondent to cease and desist from such unlawful discriminatory practice and to take such further affirmative or other action as will effectuate the purposes of sections 4112.01 to 4112.08 of the Revised Code, including, but not limited to, hiring, reinstatement, or upgrading of employees with, or without, backpay....

Section 4112.05(G).

Ohio Rev.Code Ann. Sec. 4112.06 provides for judicial review of Commission orders in the court of common pleas. While the court has the power to grant temporary relief and to enforce, modify, or set aside an order of the Commission, section 4112.06(B), a party seeking judicial review is not entitled to de novo consideration. "The findings of the commission as to the facts shall be conclusive if supported by reliable, probative, and substantial evidence on the record...." Section 4112.06(E). Violation of section 4112.02(A) is a third-degree misdemeanor. Section 4112.99.

In this case, appellants instituted this action after filing of the charge, an attempted conciliation, the preliminary investigation, the finding of probable cause, and issuance of the complaint.¹⁸III.

A statute "ought not be construed to violate the Constitution if any other possible construction remains available." NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 500, 99 S.Ct. 1313, 1318, 59 L.Ed.2d 533 (1979); St. Martin Evangelical Lutheran v. South Dakota, 451 U.S. 772, 780, 101 S.Ct. 2142, 2147, 68 L.Ed.2d 612 (1981). See Tilton v. Richardson, 403 U.S. 672, 676-77, 91 S.Ct. 2091, 2094-2095, 29 L.Ed.2d 790 (1971). However, this rule of construction does not "license a court to usurp the policy-making and legislative functions of duly-elected representatives." Heckler v. Mathews, 465 U.S. 728, 104 S.Ct. 1387, 1396, 79 L.Ed.2d 646 (1984). In seeking an alternative construction we must determine first, whether the exercise of jurisdiction by the OCRC "would give rise to serious constitutional questions," and, second, if so, whether there is clear expression of affirmative legislative intent to so extend the Commission's jurisdiction. Catholic Bishop of Chicago, 440 U.S. at 501, 99 S.Ct. at 1319; Tony and Susan Alamo Fdn. v. Secretary of Labor, --- U.S. ----, 105 S.Ct. 1953, 1960 n. 18, 85 L.Ed.2d 278 (1985).

Although the parties plainly cannot consent to jurisdiction, the parties agree, and the district court had little trouble concluding, that exercise of jurisdiction by the Commission implicates serious constitutional questions. While we need not resolve the merits of the constitutional claims at this preliminary stage of inquiry, we note that "[t]he values enshrined in the First Amendment plainly rank high 'in the scale of our national values.' " Catholic Bishop, 440 U.S. at 501, 99 S.Ct. at 1319. The facts of this case set against the governing principles and objectives of neutrality and accommodation inherent in the First Amendment's protection of religious belief reveal the "significant risk that the First Amendment will be infringed." Id. at 502, 99 S.Ct. at 1319. With respect to appellants' Free Exercise Clause claim, the Court has repeatedly recognized parents' special interest in guiding and providing the education of their children consonant with their own religious beliefs. Norwood v. Harrison, 413 U.S. 455, 93 S.Ct. 2804, 37 L.Ed.2d 723 (1973); Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Pierce v. Society of Sisters, 268 U.S. 510, 534-35, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925). While the state's interest in eliminating employment discrimination based on sex is entitled to deference and respect, Roberts v. United States Jaycees, --- U.S. ----, 104 S.Ct. 3244, 3253-55, 82 L.Ed.2d 462 (1984), important state interests have historically yielded to the limitations of the First Amendment, Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (state interest in educated populace). Further, the highly intrusive nature of the remedies available to the Commission, Ohio Rev.Code Ann. Sec. 4112.05(G) (backpay, reinstatement) and the probing and inquiry into decisions regarding religious activities made on religious grounds highlight the need for a careful consideration of whether there are less burdensome means by which the state might further even a concededly substantial interest. Accordingly, it is clear that the Commission's exercise of jurisdiction implicates a serious constitutional question with respect to the Free Exercise Clause of the First Amendment.

Likewise, there is a serious question regarding whether the state's inquiry into a religious school's decision on the religious qualifications of a religious instructor constitutes impermissible entanglement of the state in religious affairs in violation of the Establishment Clause. The Court has recognized the high likelihood of impermissible entanglement in state interaction with pervasively religious elementary schools, Lemon v. Kurtzman (Lemon I), 403 U.S. 602, 616, 91 S.Ct. 2105, 2113, 29 L.Ed.2d 745 (1971), especially when that interaction leads to the continuing surveillance implicated by the conciliation agreement proposed by the Commission, Lemon I, 403 U.S. at 619, 91 S.Ct. at 2114. Further, the specter of impermissible entanglement arises when the state, as in this case, seeks to monitor or evaluate decisions or activities of the school which necessarily implicate religious doctrine. See Volunteers of America-Minnesota-Bar None Boys Ranch v. NLRB, 752 F.2d 345, 349 (8th Cir.1985), petition for cert. filed, --- U.S. ----, 105 S.Ct. 3502, 87 L.Ed.2d 633 (1985) (no entanglement). Accordingly, in light of these serious constitutional questions, we consider whether the Ohio General Assembly intended to regulate the employment decisions of religious institutions.¹⁹

While the Act reflects no so-called "affirmative" expression of intent to include religious schools within the purview of the statutory proscriptions, to interpret the Act as inapplicable to religious schools would render illusory the plain meaning of its words and provisions. It is clear that the Ohio General Assembly exempted discrimination based on religion from those portions of the statute deemed desirable. With respect to some of the statutory prohibitions, the legislature provided that an employer might obtain a certification that religion was a bona fide occupational qualification, and, therefore, discriminate on the basis of religion. Section 4112.02(E). Further, with respect to housing discrimination, the legislature exempted religious institutions from the statutory prohibition "from giving preferences to persons of the same religion ... or from making such selection as calculated by such organization to promote the religious principles or the aims, purposes, or fraternal principles for which it is established or maintained." Sections 4112.02(H), (K). The acts with which DCS is charged fall within neither of these exemptions.²⁰ The Act's definition of "employer" is broad and all-inclusive, indicating no intent to exempt religious employers. See Tilton, 403 U.S. at 677, 91 S.Ct. at 2095 (absence of statutory reference to religious affiliation or nonaffiliation indicates that "institutions of higher education" includes church-related institutions). Accordingly, the statute asserts a clear expression of intent to apply the prohibitions at issue in this case to all employers, including religious institutions.²¹ Even under the analysis of Catholic Bishop, we cannot avoid the constitutional questions posed here. Therefore, we consider whether the Act may be applied to DCS consistent with the commands of the First Amendment.

First among the amendments to our Constitution is the admonishment that "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." These prohibitions apply equally to the states and their legislatures as part and parcel of the cherished liberties protected by the Fourteenth Amendment. Chaplinsky v. State of New Hampshire, 315 U.S. 568, 571, 62 S.Ct. 766, 768, 86 L.Ed. 1031 (1942); Cantwell v. State of Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940).

Inquiries into the scope of these prohibitions neither call for rigidity nor allow clearly defined rules. Walz v. Tax Commission of City of New York, 397 U.S. 664, 669, 90 S.Ct. 1409, 1411, 25 L.Ed.2d 697 (1970). Rather, the hallmark of analysis under the religion clauses is flexibility, emphasizing the objectives of the prohibitions, rather than court-refined "tests" for ascertaining their parameters.²²

Although the clauses "are cast in absolute terms," Walz, 397 U.S. at 668, 90 S.Ct. at 1411, "[n]o perfect or absolute separation is really possible," id. at 670, 90 S.Ct. at 1412 and "if expanded to a logical extreme, [each clause] would tend to clash with the other," id. at 668-69, 90 S.Ct. at 1411; Engel v. Vitale, 370 U.S. 421, 430, 82 S.Ct. 1261, 1267, 8 L.Ed.2d 601 (1962).²³ " 'Establishment' and 'free exercise' were correlative and coextensive ideas, representing only different facets of the single great and fundamental freedom." Everson v. Board of Education of Ewing Township, 330 U.S. 1, 40, 67 S.Ct. 504, 523, 91 L.Ed. 711 (1947) (Rutledge, J., dissenting); School District of Abington Township v. Schempp, 374 U.S. 203, 232, 83 S.Ct. 1560, 1576, 10 L.Ed.2d 844 (1963) (Brennan, J., concurring) ("The inclusion of both restraints upon the power of Congress to legislate concerning religious matters shows unmistakably that the Framers of the First Amendment were not content to rest the protection of religious liberty upon either clause." ).

Accordingly, we consider the limitations both clauses place on the state's legislative power in this case.²⁴

Consideration of a challenge to governmental action under the Free Exercise Clause requires that first we identify the nature and extent to which the state action interferes with or burdens the free exercise of appellants' religious beliefs. Alamo Foundation, 105 S.Ct. at 1963; United States v. Lee, 455 U.S. 252, 256-57, 102 S.Ct. 1051, 1054-55, 71 L.Ed.2d 127 (1982). "A regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for governmental neutrality if it unduly burdens the free exercise of religion." Yoder, 406 U.S. at 220, 92 S.Ct. at 1535. Second, "[t]he state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest." Lee, 455 U.S. at 257-58, 102 S.Ct. at 1055; Yoder, 406 U.S. at 214, 92 S.Ct. at 1532. Inherent in determining whether the limitation is essential to the governmental interest is consideration of whether accommodation by the state would "unduly interfere with fulfillment of the governmental interest," Lee, 455 U.S. at 259, 102 S.Ct. at 1056, and whether the governmental regulation is the "least restrictive means" of promoting the governmental interest, Thomas v. Review Board of Indiana Employment Security, 450 U.S. 707, 718, 101 S.Ct. 1425, 1432, 67 L.Ed.2d 624 (1981); Braunfeld v. Brown, 366 U.S. 599, 607, 81 S.Ct. 1144, 1148, 6 L.Ed.2d 563 (1961). Accordingly, we consider the burden placed on appellants' religious beliefs by allowing the OCRC to exercise jurisdiction, the state's interest in enforcement of the Ohio Civil Rights Act, and the necessity of regulating DCS employment practices in order to promote the state's interest.

(a)

Several factors compel a conclusion that the burden on appellants' exercise of their religious beliefs by allowing the state to regulate the employment practices of a pervasively religious school is great.

Foremost, perhaps, are the fundamental rights of Stephen and Camillia House, as parents, to choose the manner in which their children will be educated, especially with regard to religious values. This fundamental right has been recognized in circumstances where First Amendment concerns were not predominant. Pierce v. Society of Sisters, 268 U.S. 510, 534-35, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925). In Pierce, the Court held that government, pursuant to the equal protection clause of the Fourteenth Amendment, may not compel attendance in public, as opposed to private, schools. "The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations." Id. at 535, 45 S.Ct. at 573. These "additional obligations" "must be read to include the inculation of moral standards, religious beliefs, and elements of good citizenship." Yoder, 406 U.S. at 233, 92 S.Ct. at 1542. The contemporary Court has found that "Pierce stands as a charter of the rights of parents to direct the religious upbringing of their children." Id. This parental interest is particularly compelling combined with a free exercise claim. Id.;²⁵ Grove v. Mead School District, 753 F.2d 1528, 1533 (9th Cir.1985) ("The free exercise clause recognizes the right of every person to choose among types of religious training."); Hamilton v. Regents of University of California, 293 U.S. 245, 262, 55 S.Ct. 197, 204, 79 L.Ed. 343 (1934) (religious liberty includes "the right to entertain the beliefs, to adhere to the principles and to teach the doctrines"). "[T]he Free Exercise Clause ... recognizes the value of religious training, teaching and observance and, more particularly, the right of every person to freely choose his own course with reference thereto, free of any compulsion from the state." School District of Abington v. Schempp, 374 U.S. 203, 222, 83 S.Ct. 1560, 1571, 10 L.Ed.2d 844 (1963). Cf. Epperson v. Arkansas, 393 U.S. 97, 106, 89 S.Ct. 266, 271, 21 L.Ed.2d 228 (1968) ("There is and can be no doubt that the First Amendment does not permit the State to require that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma."). See also Norwood v. Harrison, 413 U.S. 455, 461, 93 S.Ct. 2804, 2808, 37 L.Ed.2d 723 (1973) ("a State's role in the education of its citizens must yield to the right of parents to provide an equivalent education for their children in a privately operated school of the parents' choice."). "[A] state law interfering with a parent's right to have his child educated in a sectarian school would run afoul of the Free Exercise Clause." Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756, 788, 93 S.Ct. 2955, 2973, 37 L.Ed.2d 948 (1973).

The claims of the Amish parents in Yoder are similar in kind to those of appellants in that the Amish parents objected to the values to which their children would be exposed in public high school, in the same way that appellants object to the state's attempt to regulate DCS hiring practices with the result of coercing the school into retaining or hiring teachers whose lifestyles and actions conflict with the parents' basic religious beliefs.²⁶

The tender ages of the children exposed to Linda Hoskinson likewise compels the conclusion that the state interference with DCS selection of religious role models constitutes a substantial burden on religious freedom. For, "the values of parental direction of the religious upbringing and education of their children in their early and formative years have a high place in our society." Yoder, 406 U.S. at 213-14, 92 S.Ct. at 1532;²⁷ Lemon I, 403 U.S. at 616, 91 S.Ct. at 2113 ("This process of inculcating religious doctrine is, of course, enhanced by the impressionable age of the pupils, in primary schools particularly."); Tilton, 403 U.S. at 686, 91 S.Ct. at 2099.

Similarly, the importance of religion in the school's educational process and the unique role of the teacher in these religious schools further emphasizes the burdensome nature of the state's actions. Catholic Bishop of Chicago, 440 U.S. at 501, 99 S.Ct. at 1319; Lemon I, 403 U.S. at 617, 91 S.Ct. at 2113. The record clearly indicates that the school, parents, and teachers expect teachers to serve as examples to the students.²⁸ Superintendent Schindler testified that teachers previously had been discharged on account of their lifestyles, and the statement of the school's educational philosophy indicates that the student "interacts and is taught by parent and teacher models who are themselves born again and have this perspective on life." The record is replete with evidence that the educational process at DCS is suffused with religion.²⁹ The district court so found, and there is no evidence to the contrary.

Our conclusion that the OCRC's exercise of jurisdiction in this case is extremely burdensome on appellants' exercise of religion is significantly influenced by the affirmative and highly coercive nature of the state interference. The hallmark of a free exercise violation is the presence of coercion by the state.³⁰ School District of Abington v. Schempp, 374 U.S. 203, 223, 83 S.Ct. 1560, 1572, 10 L.Ed.2d 844 (1963); Engel v. Vitale, 370 U.S. 421, 430, 82 S.Ct. 1261, 1266, 8 L.Ed.2d 601 (1962); Zorach v. Clauson, 343 U.S. 306, 311, 72 S.Ct. 679, 682, 96 L.Ed. 954 (1952).

Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists. While the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial.

Thomas, 450 U.S. at 717-18, 101 S.Ct. at 1432; Sherbert v. Verner, 374 U.S. 398, 404, 83 S.Ct. 1790, 1794, 10 L.Ed.2d 965 (1963). Similarly, when the state penalizes particular hiring practices with respect to an individual employed to provide religious instruction and act as a religious role model when the employment is governed by religious principles, a burden on religion exists.

Our assessment of the burden placed on appellants by the OCRC's exercise of jurisdiction begins with examination of the Commission's preliminary actions in this case.³¹ In response to the filing of Hoskinson's charge, the Commission sought from DCS blank employment applications, employee handbooks and rules and regulations, DCS written policy on disciplinary actions, employee pregnancies, employee evaluations, performance standards, contract renewal, grievance procedure, job descriptions, detailed information regarding all DCS employees who were pregnant from January 1, 1977 to date of request, similar information regarding all employees who were discharged and suspended, minutes of specific DCS Board meetings, and complete personnel files for 14 DCS employees. The Commission, in fact, early in the case used its investigative powers and asserted jurisdiction as coercive tools to compel appellants to relinquish the mandates of their consciences. In a letter of May 14, 1979, the OCRC Regional Director Rebecca Haley warned Schindler that "we encourage you to reconsider adjustment of this matter in lieu of a potentially costly and time consuming investigation." See note 31 supra. The OCRC likewise attempted to coerce DCS into acceptance of a Conciliation Agreement and Consent Order following the Commission's finding of probable cause. On January 28, 1980, Haley wrote, "the enclosed proposed Conciliation Agreement and Consent Order has been prepared to eliminate unlawful discriminatory practices and their efforts [sic] and to assure your voluntary compliance with Ohio's Laws Against Discrimination." Further, "[y]our refusal to meet with us as suggested ... shall result in a determination being made by the Commission that conciliation efforts have failed. Such a failure will require the Commission to initiate formal proceedings against you or your organization."³²

The Proposed Consent Order required that DCS bind itself and its successors and to stipulate "that the Commission has full and complete jurisdiction of the parties and subject matter herein." While noting that the employer does not admit to unlawful conduct, the Consent Order required that Hoskinson be fully reinstated with back pay, that DCS agree not to discharge Hoskinson without "just cause," and that DCS not retaliate against Hoskinson. The order required DCS to further agree to administer its policies without regard to its employees' religion and that it not seek information about its employees' religion. The order also provided that "[r]espondent shall post in a conspicuous place or places on its premises, the Commission's mandatory notice which sets forth excerpts of Chapter 4112, Ohio Revised Code, and other relevant information." The order further provided:

the Commission may conduct such compliance reviews during Respondent's normal business hours as the Commission believes to be warranted during the three (3) years subsequent to the issuance of this PROPOSED ORDER. Respondent agrees to furnish whatever information is required by the Commission in order to implement such reviews, and understands that upon failure to fully comply with any of the terms and conditions of this PROPOSED ORDER the Commission may initiate further action including, but not necessarily limited to, the filing of a complaint for enforcement of this ORDER in an appropriate Court of Common Pleas.

It is clear that this relief not only collides with the principles underlying appellants' asserted religious beliefs, but could not be constitutionally compelled without running afoul of the First Amendment.³³

Appellants have few options. They can abandon their religious beliefs by placing their children in public schools, compromise their hiring practices to conform with the state's secular interests rather than appellants' religious commands, or leave Ohio and seek another jurisdiction in which appellants can maintain schools consistent with their religious principles.³⁴ The Ohio statute "affirmatively compels them, under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs." Yoder, 406 U.S. at 218, 92 S.Ct. at 1534;³⁵ Sherbert, 374 U.S. at 402, 83 S.Ct. at 1792.

The OCRC's exercise of jurisdiction is burdensome on all parties to this action. While DCS primarily bears the expensive and time-consuming burden of answering the OCRC's charges, this burden is indirectly borne by the parents and churches which support DCS. Further, the congregations and parents are faced essentially with either supporting a school staffed by faculty who flout basic tenets of their religion or abandoning their support of Christian education altogether. The burden on the parents' exercise of religion is particularly onerous in light of the heightened parental interest in their children's education. Likewise, teacher Pyle, as an adherent of the school's educational and religious philosophies, finds his exercise of religion as a member of the faculty burdened by the OCRC's intrusion into the faculty-selection process and the imposition of secular guidelines for faculty retention.

The coercion inherent in the Ohio statute and the attendant OCRC exercise of jurisdiction is certainly more affirmative and compelling than that in Bob Jones University v. United States, 461 U.S. 574, 103 S.Ct. 2017, 76 L.Ed.2d 157 (1983). In Bob Jones, the Court upheld denial of tax exempt status to an institution which denied admission to those engaged in interracial dating. In weighing the school's free exercise claim, the Court observed that "[d]enial of tax benefits will inevitably have a substantial impact on the operation of private religious schools, but will not prevent those schools from observing their religious tenets." Id. at 603-04, 103 S.Ct. at 2034-35. In the instant case, however, appellants do not have the luxury of simply declining a public benefit. While Bob Jones University is free to continue to practice its religious beliefs free of state intervention, appellants only have the option of either conforming their religiously based employment practices to the secular guidelines promulgated in the Ohio statute or face continued harassing prosecution by the OCRC. This result is inevitable in light of the absence of a statutory exemption in the Ohio statute, see note 18 supra, and the Commission's rejection of the religious interests as bars to exercise of its remedial powers.³⁶ Accordingly, we conclude that the OCRC's exercise of jurisdiction over the complaint against DCS affirmatively and coercively burdens appellants' exercise of their religious beliefs and their attempts to instill such in their offspring.

(b)

The state, in pursuit of a compelling interest, may burden religious practices. Lee, 455 U.S. at 257, 102 S.Ct. at 1055; Roemer, 426 U.S. at 745, 96 S.Ct. at 2344; Gillette v. United States, 401 U.S. 437, 462, 91 S.Ct. 828, 842, 28 L.Ed.2d 168 (1971); Sherbert, 374 U.S. at 403-04, 83 S.Ct. at 1793-94; Braunfeld, 366 U.S. at 603, 81 S.Ct. at 1145; Cantwell, 310 U.S. at 304, 306, 60 S.Ct. at 903, 904; Davis v. Beason, 133 U.S. 333, 342, 10 S.Ct. 299, 300, 33 L.Ed. 637 (1890) (one may "exhibit his sentiments in such form of worship as he may think proper, not injurious to the equal rights of others");³⁷ Reynolds v. United States, 98 U.S. (8 Otto) 145, 164, 25 L.Ed. 244 (1878) (Congress may prohibit "actions which were in violation of social duties or subversive of good order;" polygamy).³⁸ However, "only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion." Yoder, 406 U.S. at 215, 92 S.Ct. at 1533; West Virginia State Bd. of Ed. v. Barnette, 319 U.S. 624, 639, 63 S.Ct. 1178, 1186, 87 L.Ed. 1628 (1943) (freedom of religion "susceptible of restriction only to prevent grave and immediate danger to interests which the State may lawfully protect.").

Whether the state's interest is compelling is often judged by reference to state law. Roberts v. United States Jaycees, --- U.S. ----, 104 S.Ct. 3244, 3253, 82 L.Ed.2d 462 (1984). Although the absence of legislative history hampers our assessment of the state's interest, the statute equally prohibits discrimination based on race, color, religion, handicap, sex, age and national origin. In Roberts, the Court found that the "stigmatizing injury, and the denial of equal opportunities that accompanies it" is as serious when the discrimination is based on sex as when it is based on race, Roberts, 104 S.Ct. at 3254, and that the government has a compelling interest in eliminating "discrimination in the distribution of publicly available goods, services, and other advantages," id. at 3255.³⁹ Accordingly, we recognize the state's interest as substantial and compelling.

The state also asserts its interest in prohibiting conduct encompassed by the statute's prohibition on discriminating against an employee who opposes unlawful actions. Ohio Rev.Code Sec. 4112.02(I). This state interest is likewise compelling since, if employees were prohibited from opposing discrimination, the effectiveness of the employment discrimination laws would be substantially impaired. One court has found the government interest in preventing retaliation compelling since citizens have "a constitutional right to inform the government of violations of federal law." Pacific Press, 676 F.2d at 1280. As we construe it, the First Amendment provides that "Congress shall make no law ... abridging ... the right of the people ... to petition the Government for a redress of grievances." Of course, the right to petition, even as part of the due process guaranteed by the Fourteenth Amendment, applies only to actions by federal or state government which abridge the right to petition and does not reach private actions.

Finally, we note that although the asserted state interests may be compelling, the state is not constitutionally compelled to enact the statute at issue here. The Constitution prohibits neither private sex discrimination nor private abridgment of the First Amendment right to petition. The state interests at issue here differ markedly from those asserted in Bob Jones. In that case, the Court found that "the governmental interest is in denying public support to racial discrimination in education." Bob Jones University, 461 U.S. at 604 n. 29, 103 S.Ct. at 2035 n. 29. Certainly, denial of public support to discrimination is a more compelling interest than eliminating discrimination in the private sector, for the Constitution, through the Fourteenth and Fifth Amendments, Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954), affirmatively compels denial of governmental aid to discrimination, Norwood v. Harrison, 413 U.S. 455, 93 S.Ct. 2804, 37 L.Ed.2d 723 (1973)⁴⁰ (state aid to private schools that discriminate violates fourteenth amendment.). Accordingly, the governmental interest in Bob Jones was greater than in the instant case.

(c)

The Ohio Civil Rights Act places a heavy burden on appellants' exercise of their religious beliefs, and, although the state's interest is substantial, that interest does not justify such a broad and onerous limitation. The state legislation must be "essential," "necessary," and the least drastic means to further the state's interest. Minersville School District v. Gobitis, 310 U.S. 586, 595, 60 S.Ct. 1010, 1013, 84 L.Ed. 1375 (1940) (overruled in Barnette ) ("essential"); Sherbert, 374 U.S. at 407, 83 S.Ct. at 1795; McCurry v. Tesch, 738 F.2d 271, 275-76 (8th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 1180, 84 L.Ed.2d 328(1985).

Just as the principle of neutrality guides our inquiries pursuant to the Establishment Clause, accommodation distinguishes our consideration of Free Exercise claims. Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 1359, 79 L.Ed.2d 604 (1984) (Constitution "mandates accommodation, not merely toleration" );⁴¹ Girouard v. United States 328 U.S. 61, 68, 66 S.Ct. 826, 829, 90 L.Ed. 1084 (1946). Accommodation of the religious beliefs in this case would not significantly interfere with the state's fulfillment of its goal of eradicating discrimination in employment. The state would still be able to regulate all employment practices of non-religious institutions and would be able to regulate the employment practices of religious institutions except where religious belief is implicated. Further, it is clear that less burdensome alternatives such as the denial of tax exemptions as in the Bob Jones University case or denial of the use of public school bus transportation are available to help the state accomplish its goal while reducing interference with the exercise of religion. While the record reveals that bus transportation is the only public benefit DCS claims to receive, Ohio Rev.Code Ann. Sec. 3327.01, it is clear that state law provides several other benefits such as textbooks, speech and hearing diagnostic services, physician, nursing, dental and optometric services, and diagnostic psychological services, Ohio Rev.Code Ann. Secs. 3317.02.4(P), 3317.06. Likewise, while the record does not detail DCS tax status, the Ohio tax code provides several possible tax exemptions. Ohio Rev.Code Ann. Secs. 5709.04, 5709.07, 5709.12. Accordingly, the state might further its interest in eliminating sex discrimination by conditioning receipt of these benefits on compliance with the Ohio Civil Rights Act. Therefore, the state could advance its own compelling interest while imposing a lesser burden on appellants' religious beliefs.

We hold that allowing the OCRC to assert jurisdiction over the instant complaint against DCS when such complaint is based on conduct pursuant to admittedly sincerely held religious beliefs and where the Ohio Civil Rights Act makes no provision for accommodation of those beliefs, unduly burdens the plaintiffs' right to free exercise of religion. This heavy burden and the coercion that naturally results compels the conclusion that the statute cannot constitutionally be applied to DCS. The fact that the Houses' religious beliefs conflict with important secular tenets does not require a different result, for "freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order." West Virginia State Board of Education v. Barnette, 319 U.S. at 642, 63 S.Ct. at 1187.

We note the admonition of the Court that "in safeguarding conscience we are dealing with interests so subtle and so dear, every possible leeway should be given to the claims of religious faith." Gobitis, 310 U.S. at 594, 60 S.Ct. at 1012; Braunfeld, 366 U.S. at 605, 81 S.Ct. at 1146 (making accommodation is a "delicate task"); Braunfeld, 366 U.S. at 610, 81 S.Ct. at 1149 (Brennan, J., dissenting) ("[T]he rights of conscience are, in their nature, of peculiar delicacy, and will little bear the gentlest touch of governmental hand." I Annals of Cong. 730 (Remarks of Rep. Daniel Carroll, August 15, 1789)). Further, "the Constitution may compel toleration of private discrimination in some circumstances." Norwood, 413 U.S. at 463, 93 S.Ct. at 2809; King's Garden, Inc. v. FCC, 498 F.2d 51, 56 (D.C.Cir.), cert. denied, 419 U.S. 996, 95 S.Ct. 309, 42 L.Ed.2d 269 (1972). Concluding that this is the most compelling of such circumstances, we reverse.

Appellants also contend that application of the Ohio Civil Rights Act to DCS violates the Establishment Clause. Noting that the Free Exercise and Establishment Clauses are but two aspects of one essential freedom, we consider appellants' assignment of error. At the outset, we note that appellants' religious beliefs are sincerely held and that DCS discharged Hoskinson because of those beliefs. These facts, not appealed by the OCRC as clearly erroneous, were found by the district court.

The Court has eschewed rigidity in Establishment Clause analysis.⁴² It is clear, however, that the prohibitions which the clause represents apply equally to government benefits to and burdens on religion. Lynch, 104 S.Ct. at 1362; Bob Jones University, 461 U.S. at 604, 103 S.Ct. at 2035; Pacific Press Publishing Co., 676 F.2d at 1281; Southwestern Baptist Theological Seminary, 651 F.2d at 286; Mississippi College, 626 F.2d at 486. The Court has enunciated the guidelines for implementing the clause's purpose as follows.

In each case, the inquiry calls for line drawing; no fixed, per se rule can be framed. The Establishment Clause like the Due Process Clauses is not a precise, detailed provision in a legal code capable of ready application. The purpose of the Establishment Clause "was to state an objective, not to write a statute." ... The line between permissible relationships and those barred by the Clause can no more be straight and unwavering than due process can be defined in a single stroke or phrase or test. The Clause erects a "blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship."

In the line-drawing process we have often found it useful to inquire whether the challenged law or conduct has a secular purpose, whether its principal or primary effect is to advance or inhibit religion, and whether it creates an excessive entanglement of government with religion.... But, we have repeatedly emphasized our unwillingness to be confined to any single test or criterion in this sensitive area.

Lynch, 104 S.Ct. at 1361-62 (citations omitted); Alamo Foundation, 105 S.Ct. at 1964; Mueller v. Allen, 463 U.S. 388, 103 S.Ct. 3062, 3066, 77 L.Ed.2d 721 (1983) (tax deductions for school expenses); Larkin v. Grendel's Den, Inc., 459 U.S. 116, 123, 103 S.Ct. 505, 510, 74 L.Ed.2d 297 (1982); Larson v. Valente, 456 U.S. 228, 252, 102 S.Ct. 1673, 1687, 72 L.Ed.2d 33 (1982); Stone v. Graham, 449 U.S. at 40, 101 S.Ct. at 193; Committee for Public Education and Religious Liberty v. Regan, 444 U.S. 646, 653, 100 S.Ct. 840, 846, 63 L.Ed.2d 94 (1980); Wolman v. Walter, 433 U.S. 229, 236, 97 S.Ct. 2593, 2599, 53 L.Ed.2d 714 (1977) (school aid); Meek v. Pittenger, 421 U.S. 349, 358, 95 S.Ct. 1753, 1759, 44 L.Ed.2d 217 (1975); Lemon I, 403 U.S. at 612-13, 91 S.Ct. at 2111;⁴³ Walz, 397 U.S. at 669, 90 S.Ct. at 1411 (property tax exemption); Abington, 374 U.S. at 222, 83 S.Ct. at 1571 (Bible reading); Engel, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (school prayer); McGowan v. Maryland, 366 U.S. 420, 442, 81 S.Ct. 1101, 1113, 6 L.Ed.2d 393 (1961) (Sunday closing law); Braunfeld, 366 U.S. at 607, 81 S.Ct. at 1147 (Sunday closing laws). See also Bradfield v. Roberts, 175 U.S. 291, 297, 20 S.Ct. 121, 123, 44 L.Ed.2d 168 (1899). With little hesitation, we can affirm the district court's conclusions that the statute has a secular purpose and does not have the primary effect of advancing or inhibiting religion. However, a secular purpose and facial neutrality are not sufficient to avoid conflict with the Establishment Clause. Stone v. Graham, 449 U.S. 39, 40-41, 101 S.Ct. at 193-194 (1980); Roemer, 426 U.S. at 747, 96 S.Ct. at 2344; Nyquist, 413 U.S. at 774, 783 n. 39, 93 S.Ct. at 2966, 2970 n. 39. Therefore, our inquiry focuses on whether the statute fosters excessive entanglement between religion and government.⁴⁴

"Entanglement is a question of kind and degree." Lynch, 104 S.Ct. at 1364. "[T]he questions are whether the involvement is excessive, and whether it is a continuing one calling for official and continuing surveillance leading to an impermissible degree of entanglement." Walz, 397 U.S. at 675, 90 S.Ct. at 1414. In assessing entanglement, we consider the character of the institution affected, the type of burden placed upon that institution, and the resulting church-state relationship. Lemon I, 403 U.S. at 615, 91 S.Ct. at 2112. These considerations mirror the three levels at which religion is involved in this case. First, the institution, the school, is pervasively religious. Second, the activity being burdened--the teaching of students and hiring of teachers--are in this case pervasively religious activities. Third, the point at which the state attempts to interject itself, thereby creating the church-state relationship, is in the hiring decision, a decision which the school superintendent testified is made using almost exclusively religious criteria. We consider each of these points.

First, as we have discussed fully above, DCS is a pervasively religious school, admits only Christians, applies religious criteria in hiring faculty, and includes indoctrination of students as a substantial purpose of its existence. Tilton, 403 U.S. at 686-87, 91 S.Ct. at 2099-2100; Lemon I, 403 U.S. at 616-618, 91 S.Ct. at 2113 ("The substantial religious character of these church-related schools gives rise to entangling church-state relationships...."); Everson, 330 U.S. at 33, 67 S.Ct. at 520 (Rutledge, J., dissenting) ("daily religious education commingled with secular is 'religion' " ); Volunteers of America-Minnesota-Bar None Boys Ranch v. NLRB, 752 F.2d 345, 348-49 (8th Cir.1985), petition for cert. filed, 53 U.S.L.W. 3759 (April 23, 1985). "[T]he degree of entanglement arising from inspection of facilities as to use varies in large measure with the extent to which religion permeates the institution." Hunt v. McNair, 413 U.S. 734, 746, 93 S.Ct. 2868, 2875, 37 L.Ed.2d 923 (1973); Meek v. Pittenger, 421 U.S. at 366, 95 S.Ct. at 1763. Therefore, the religious permeation of DCS indicates that state intervention is likely to result in a high degree of entanglement.

Second, the character of the activity the state seeks to affect--the employment of the teaching staff--necessarily involves the state in regulating ideological resources of the school. Tilton, 403 U.S. at 687, 91 S.Ct. at 2100. The fact that the state seeks to regulate teachers necessarily implicates religious concerns.⁴⁵ Lemon I, 403 U.S. at 617, 91 S.Ct. at 2113. If anything, the Court's decisions regarding state aid to parochial schools establish that teachers are not religiously neutral. Id. See New York v. Cathedral Academy, 434 U.S. 125, 98 S.Ct. 340, 54 L.Ed.2d 346 (1977);⁴⁶ Meek, 421 U.S. at 372, 95 S.Ct. at 1766; Levitt v. Committee for Public Education and Religious Liberty, 413 U.S. 472, 480, 93 S.Ct. 2814, 2819, 37 L.Ed.2d 736 (1973); Allen, 392 U.S. at 248, 88 S.Ct. at 1929. See also Catholic Bishop, 440 U.S. at 501, 99 S.Ct. at 1319 ("The key role played by teachers in such a school system has been the predicate for our conclusions that governmental aid channeled through teachers creates an impermissible risk of excessive governmental entanglement in the affairs of the church-operated schools."); NLRB v. Bishop Ford Central Catholic High School, 623 F.2d 818, 822 (2d Cir.1980), cert. denied, 450 U.S. 996, 101 S.Ct. 1698, 68 L.Ed.2d 196 (1981) ("It is the commitment of the faculty to religious values no matter what subject in the curriculum is taught and the obligation to propagate those values which provides the risk of entanglement."). See Donovan v. Central Baptist Church, Victoria, 96 F.R.D. 4 (S.D.Texas 1982). Therefore, this element of the entanglement inquiry indicates that a high degree of entanglement is likely. Compare Donovan v. Tony and Susan Alamo Fdn., 722 F.2d 397, 402 (8th Cir.), aff'd, --- U.S. ----, 105 S.Ct. 1953, 85 L.Ed.2d 278 (1985) ("These [record keeping] requirements apply only to commercial activities undertaken with a 'business purpose,' and would therefore have no impact on petitioners' own evangelical activities or on individuals engaged in volunteer work for other religious organizations.").

Third, as long as DCS is in existence, the OCRC may exert jurisdiction over employment disputes, thereby creating a continuing relationship, rather than a one-time state-church encounter. Tilton, 403 U.S. at 688, 91 S.Ct. at 2100. This fact, along with the types of records the OCRC seeks and the Commission's subpoena power, create the likelihood that allowing the Commission to exercise jurisdiction will result in the "comprehensive, discriminating, and continuing state surveillance" of which the Court disapproved in Lemon I, 403 U.S. at 619, 91 S.Ct. at 2114. Further, the fact that the Commission will often be required to decide questions of intent, motive, causation, and pretext necessarily involves the state in assessing religious decisions. Such state involvement "is fraught with the sort of entanglement that the Constitution forbids. It is a relationship pregnant with dangers of excessive government direction of church schools and hence of churches." Lemon I, 403 U.S. at 620, 91 S.Ct. at 2114. In Walz, the Court, in upholding a property tax exemption for property used for religious worship, rejected, on grounds of entanglement, conditioning such exemption on social welfare work by the churches.

To give emphasis to so variable an aspect of the work of religious bodies would introduce an element of governmental evaluation and standards as to the worth of particular social welfare programs, thus producing a kind of continuing day-to-day relationship which the policy of neutrality seeks to minimize. Hence, the use of a social welfare yardstick as a significant element to qualify for tax exemption could conceivably give rise to confrontations that could escalate to constitutional dimensions.

Walz, 397 U.S. at 674, 90 S.Ct. at 1414.⁴⁷ See Wolman v. Walter, 433 U.S. 229, 254, 97 S.Ct. 2593, 2608, 53 L.Ed.2d 714 (1977).

The conclusion that the Commission's assessment of DCS teacher employment decisions is impermissibly entangling is compelled particularly by cases assessing the constitutionality of applying labor relations statutes to parochial schools. In Catholic Bishop of Chicago v. NLRB, 559 F.2d 1112 (7th Cir.1977), aff'd on other grounds, 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979), the court concluded that exercise of jurisdiction by the NLRB over labor disputes among parochial school teachers fosters impermissible entanglement. The court stated:

We are unable to see how the Board can avoid becoming entangled in doctrinal matters if, for example, an unfair labor practice charge followed the dismissal of a teacher either for teaching a doctrine that has current favor with the public at large but is totally at odds with the tenets of the Roman Catholic faith, or for adopting a lifestyle acceptable to some, but contrary to Catholic moral teachings. The Board in processing an unfair labor practice charge would necessarily have to concern itself with whether the real cause for discharge was that stated or whether this was merely a pretextual reason given to cover a discharge actually directed at union activity. The scope of this examination would necessarily include the validity as a part of church doctrine of the reason given for the discharge.

Id. at 1125 (if the reason for discharge were invalid under church doctrine, this would indicate that the reason asserted for discharge, the religious belief, was pretextual).⁴⁸ Further, the Supreme Court, although affirming on different grounds, found that application of the statute to parochial schools presented a significant risk of infringing the First Amendment. The Court found that "[i]nevitably the Board's inquiry will implicate sensitive issues that open the door to conflicts between clergy-administrators and the Board, or conflicts with negotiators for unions." 440 U.S. at 503, 99 S.Ct. at 1320. Noting that the schools involved had argued that "their challenged actions were mandated by their religious creeds," id. at 502, 99 S.Ct. at 1319, the Court found that

The resolution of such charges by the Board, in many instances will necessarily involve inquiry into the good faith of the position asserted by the clergy-administrators and its relationship to the school's religious mission. It is not only the conclusions that may be reached by the Board which may impinge on rights guaranteed by the Religion Clauses, but also the very process of inquiry leading to findings and conclusions.

Id. (footnote omitted).⁴⁹

The district court's factual findings and much of its analysis compels us to find excessive entanglement in this case. The court stated:

Should an individual ... charge that the religious reasons given for dismissal were but a pretext for sex, race, or some other form of unlawful discrimination, then the Commission would have to evaluate the subjective sectarian decision to determine if it was properly made or if the real reason for dismissal was some form of prohibited discrimination.

* * *

Within this procedural framework exists the potential for the Commission to evaluate sectarian decisions, in the context of hearings and investigations, to prohibit adherence to, or at least actions based upon religious tenets, and, in fact, to require the posting of antidiscrimination statements that may run contrary to the members' religious beliefs. In a school which attempts to permeate every lesson and activity with its religious principles and values, such potential intrusion by the state squarely presents a risk of impermissible state entanglement and interference with the members' religious beliefs and practices.

578 F.Supp. at 1022-23.

The Establishment Clause "prohibition was designed comprehensively to prevent those official involvements of religion which would tend to foster or discourage religious worship or belief." Abington, 374 U.S. at 234, 83 S.Ct. at 1577 (Brennan, J., concurring.). The statute in this case, as applied by the OCRC, clearly operates to discourage the practice of religious belief. The district court discounted this prospective state/church entanglement on the ground that only a hearing was involved at this point. However, the OCRC's aggressive pursuit of DCS raises a "realistic likelihood," Hunt, 413 U.S. at 747, 93 S.Ct. at 2876, that not only are the impermissible entanglements of the hearing itself implicated, but, rather, the entire panoply of statutory entanglements from the proposed consent order to the spector of judicial enforcement proceedings must be considered.⁵⁰ Entanglement is all the more likely in light of the OCRC's preliminary finding of probable cause. The district court also rejected appellants' claims by finding that the OCRC will only rarely be required to involve DCS in Commission proceedings. However, "[t]he prospect of church and state litigating in court about what does or does not have religious meaning touches the very core of constitutional guarantees against religious establishment, and it cannot be dismissed by saying that it will happen only once." Cathedral Academy, 434 U.S. at 133, 98 S.Ct. at 345.

Accordingly, we conclude that allowing the OCRC to exercise jurisdiction over employment discrimination charges against DCS necessarily results in an excessive state/church entanglement due to the issues of good faith and motivation necessarily raised in such proceedings, the pervasively religious nature of the Christian school, the particularly sensitive role of the teacher in explicitly and implicitly fostering the religious beliefs and values that appellant-parents seek for their children, and the fact that religious considerations pervade the hiring scheme employed by DCS.⁵¹ Therefore, we conclude that application of the Ohio Civil Rights Act in this context impermissibly entangles the state in issues of faith in violation of the Establishment Clause of the First Amendment.

To be entitled to permanent injunctive relief from a constitutional violation, a plaintiff must first establish the fact of the violation.... He must then demonstrate the presence of two elements: continuing irreparable injury if the injunction does not issue, and the lack of an adequate remedy at law.... If the plaintiff makes such a showing, the court may grant injunctive relief, but the relief must be no broader than necessary to remedy the constitutional violation.

Newman v. State of Alabama, 683 F.2d 1312, 1319 (11th Cir.1982), cert. denied, 460 U.S. 1083, 103 S.Ct. 1773, 76 L.Ed.2d 346 (1983). See Lemon II, 411 U.S. at 200-01, 93 S.Ct. at 1469; Christian Schmidt Brewing Company v. G. Heileman Brewing Company, 753 F.2d 1354 (6th Cir.1985) (preliminary injunction); Detroit Newspaper Publishers Association v. Detroit Typographical Union No. 18, 471 F.2d 872, 876 (6th Cir.1972), cert. denied, 411 U.S. 967, 93 S.Ct. 2149, 36 L.Ed.2d 687 (1973).

In this case, appellants have established that their First Amendment rights would be violated by allowing the OCRC, in light of the record before the district court, to assert jurisdiction over DCS employment practices premised on religious beliefs. In granting an injunction pending appeal, the district court found that "[i]f the proceedings before the OCRC go forward, Plaintiffs face the permanent loss of First Amendment rights, rather than their loss for a minimal period of time." In light of our conclusions today, it is clear that appellants would be irreparably harmed if an injunction is not entered, and would have no adequate remedy at law.

Accordingly, the judgment of the district court is REVERSED and the case REMANDED for proceedings consistent with this opinion.