Theology Professor’s Discrimination Lawsuit Raises Thorny First Amendment Issues

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by Jamal Eric Watson

A former tenured professor at the Lexington Theological Seminary is appealing a lower court’s ruling that dismissed his lawsuit against the seminary last year for breach of contract and racial discrimination. The case of Dr. Jimmy Kirby is unusual in that the court’s interpretation of the U.S. Constitution’s religious-freedom provisions disregards civil rights and equal employment statutes and regulations.

“Tenure used to mean academic freedom and job security,” says Kirby, 67, who earned his doctorate of theology in social ethics and Christian education from Boston University and joined LTS in 1994 as assistant professor of church and society. “This dismissal has impacted me financially. It’s been a burden on me and my family. At the very least, we should have had a trial where I would have presented all of the evidence of years of racial discrimination and hostility at LTS.”

The seminary cited “financial exigencies,” not performance, as the basis for firing Kirby. It is not the only seminary facing a difficult financial situation. New Orleans Baptist Seminary, Southeastern Baptist Seminary and Colgate Rochester Crozer Divinity School — where the Rev. Dr. Martin Luther King Jr. studied — have all downsized staff and cut expenses. Unlike LTS, however, none of those institutions has taken the unusual step of jettisoning tenured faculty.

After more than a year of filings, hearings and motions, Kentucky’s lower courts refused to allow Kirby’s lawsuit to proceed. Instead, it accepted the seminary’s argument that because LTS — an ecumenical seminary of the Christian Church (Disciples of Christ) — is a religious organization, it has the autonomy to hire and fire employees at will, and that those decisions are exempt from judicial review. In making its ruling, the trial court deemed Kirby to be a ministerial employee because he helped the denomination to fulfill its religious mission.

But Amos Jones, a Washington, D.C.-based constitutional law scholar and employment litigator, contends that the Constitution’s bar on governmental interference with religious entities does not give those entities license to ignore civil rights and equal employment laws. Jones is representing Kirby before the Kentucky Court of Appeals, which has certified the appeal and is expected to hear oral arguments later this year.

“The trial court erred in its application of the ecclesiastical abstention doctrine,” says Jones. “It recognized an exception that lacks foundation in Kentucky and that is untenable in the few other jurisdictions that have created it.”

Kirby, a Jewish professor and a Catholic professor were fired by seminary officials in May 2009, in what seminary officials called a cost-saving plan to rescue the seminary from mounting debt.

Founded in 1865, the Lexington school — formerly known as the College of the Bible — has witnessed a decline in student enrollment and operating revenue. Last year, LTS launched an online program, a departure from its traditional classroom format, citing a need to save money.

But some Black alumni and community members in Lexington are questioning why Kirby, an outspoken critic of the seminary’s administration who was promoted to full professor in 2002 was let go when he held tenure. Kirby was the first Black tenured professor in the history of the school and had served there for 15 years. For all but a few months of his tenure, he recalls, he was the only Black faculty member.

Kirby also says that, while he worked at the seminary, he faced a hostile racial climate. For example, after declining an early retirement offer in 2009, Kirby says LTS President James P. Johnson ordered Kirby to exit the office via the back door. Johnson, who is White, then laughed about it with a White dean who was also in the meeting, Kirby alleges. A 2003 e-mail message among members of an administrator search committee showed the same White dean encouraging a promotion from within because of what the dean called problematic dynamics whenever minority candidates applied.

“With [Kirby’s] wrongful termination, the seminary’s faculty demographic was returned to its 19th century days — zero Blacks,” says Jones. “And those Kentucky academic officers are following a Rand Paul-type flouting of the Kentucky Civil Rights Act of 1966, arguing for a private right to discriminate against Blacks on account of race.”

Several representatives of the seminary, including Johnson, members of the board of trustees, and the seminary’s attorney, refused to comment on the lawsuit. Jones says the case is of national significance because of its “broader implications for tenured professors in denominational seminaries.”

“Dr. Kirby is an unordained Methodist layperson who doesn’t even belong to the [Disciples of Christ] church,” he says. “If this ruling stands — and there are some others like it in various court circuits around the country — then tenured professors at denominationally controlled seminaries are terminable at will, and those firings cannot be judicially reviewed, even when they are race-based.”

“A Christian seminary has no business practicing racial discrimination and putting those proclivities on Christ,” Jones says. “Bob Jones University’s loss when it was clinging to its racist policies 40 years ago showed us that such positions are quite easily defeated.”

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