Public Charter School Challenged Over “Morality Clause” in Lease with Catholic Diocese

A charter school system in Memphis, Tennessee, has been threatened with legal action over a leases it made with the Catholic Church that contain “morality clauses” which some believe are unconstitutional.

Compass Community Schools (CCS) signed five leases with the Diocese of Memphis for school facilities that had, to this point, been used by Memphis Jubilee Catholic Schools Network, which is being closed this summer. Each lease includes the following clause, reported the Memphis Commercial Appeal:

“‘Tenant shall not… directly advocate, promote, teach or support a position considered gravely immoral by the Roman Catholic Church at the Premises as determined by the Bishop of the Catholic Diocese of Memphis,’ the contract reads.

“If the school violates the restriction, the church ‘shall have the right to notify Tenant of the violation and require Tenant to cease or cure the violation.’

“Failure to remedy the violation ‘shall give Landlord the right to terminate this Lease as of the following June 30.'”

The Center for Inquiry (CIQ), a national organization to foster a secular society, first raised the issue in a letter to Tennessee government officials, saying it was “extremely concerned” over the arrangement between CCS and the Diocese because “such a commitment to a religious group to refrain from teaching children anything which might involve a challenge to a church’s doctrine violates the Constitution.”

CIQ also highlighted potential conflicts of interest and unanswered questions about how to settle  any potential disputes between the two entities because many leaders of Compass Community Schools are Catholics who were previously involved with the Jubilee Catholic Schools Network. The CIQ’s letter asked:

“‘If a dispute arises, how is it to be settled?. . .Is it up to the court system to determine whether a particular lesson at a Tennessee public school runs contrary to Roman Catholic doctrine? Will Memphis children at these schools receive the same teaching, as required by Tennessee standards, in the area of sex education?'”

John Smarrelli, who chairs CCS and is also outgoing president of Christian Brothers University, said the organization’s leaders are “engaged in dialogue about this matter” but will operate “in direct alignment with the standards set by the Tennessee Department of Education.” But CCS officials have previously acknowledged they will abide by the lease’s “morality clause” as well.

Officials with the county and state education offices have said they are looking into the lease arrangement. Jennifer Ervin, general counsel for the school system of Shelby County, where CCS is located, said the leases “definitely [have] potential to be problematic,” reported the Memphis Commercial Appeal. But options for how to proceed are more limited, though Ervin was clear that schools will be held responsible for meeting education standards without concern for what landlord requests may be. Oversight once CCS schools open in August will be key, however, according to the general counsel.

The Commercial Appeal reported that a similar “morality clause” was inserted to a lease between the University of Memphis and St. Anne Catholic Church, which hosts the University Middle School scheduled to begin classes in fall 2019.

While not explicitly raised by either CCS officials nor their critics, key to any disputes involving the leases’ “morality clauses” will be LGBTQ issues which have been an increasing flashpoint in Catholic education. Will ostensibly public schools housed in Church facilities be able to offer LGBTQ-inclusive education about sexuality and relationships or feature LGBTQ figures in history? Or will these “morality clauses” unconstitutionally inhibit Memphis students from receiving the public education to which they are entitled? A recent incident in New Jersey proves such fears are not unfounded; in that incident, a charter school hosted at Catholic Church-run facilities was forced to paint over a student’s Pride mural.

Jennifer Ervin is probably correct that, at this point, oversight of CCS next school year will be the only way to determine what happens and how to respond. But government officials should be wary of trusting Church officials. In too many cases, “morality clauses” in employment contracts have been used by these officials to fire LGBTQ church. The Catholic Church’s many empty school buildings could be well used by public school systems to the benefit of today’s students, but only if such abuses of “morality clauses” are not repeated in property deals.

—Robert Shine, New Ways Ministry, June 8, 2019