ATTORNEYS FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
David L. Swider                                              Nelson A. Nettles
Bryan H. Babb                                                Cynthia E. Lasher
Bose McKinney & Evans LLP                                    Norris Choplin Schroeder LLP
Indianapolis, Indiana                                        Indianapolis, Indiana

Patrick T. Gillen                                            ATTORNEY FOR AMICI CURIAE
Naples, Florida                                              Michael C. Healy
                                                             Indiana Civil Rights Commission
Thomas L. Brejcha                                            Indianapolis, Indiana
Peter C. Breen
Thomas More Society
Chicago, Illinois

______________________________________________________________________________

                                              In the                        Jan 06 2015, 11:43 am


                               Indiana Supreme Court
                               _________________________________

                                       No. 93S02-1310-EX-704

FISHERS ADOLESCENT CATHOLIC ENRICHMENT SOCIETY, INC.,
                                        Appellant / Cross-Appellee (Respondent below),

                                                  v.

ELIZABETH BRIDGEWATER O/B/O ALYSSA BRIDGEWATER,
                                        Appellee / Cross-Appellant (Complainant below).
                       _________________________________

                    Appeal from Final Order of the Indiana Civil Rights Commission
                                Nos. EDha08100620 & EDrt08110681
                      The Honorable Robert D. Lange, Administrative Law Judge
                               _________________________________

              On Transfer from the Indiana Court of Appeals, No. 93A02-1202-EX-145
                             _________________________________

                                          January 6, 2015

Dickson, Justice.


         The authority of the Indiana Civil Rights Commission is limited to that delegated by stat-
ute. Here, in responding to allegations of discrimination arising from an inter-group squabble
over the type of meal to be served to a group member's allergic child, the Commission exceeded
its authority because the alleged discriminatory practice did not relate to education, a statutory
prerequisite for the Commission's exercise of authority.

        Fishers Adolescent Catholic Enrichment Society, Inc. (FACES)1 was formed in 2006 by
two Catholic mothers. At the time this dispute arose, FACES was comprised of a group of a
dozen or so families who had associated together "to provide homeschool high schoolers with
Catholic educational, spiritual, and social enrichment." Record Vols. 4, 6 at 431, 988. These op-
portunities included classes in academic subject matter as well as a Right to Life March and so-
cial events such as paintball and laser tag, ski trips, and holiday parties. Record Vol. 12 at 255.
FACES accepts members from varying faiths, although, at the time this action was brought, only
two of the eleven families and one instructor was non-Catholic. Record Vols. 4, 12 at 431, 257
and 259.


        In fall 2008, FACES planned an "All Souls' Day Masquerade Ball" dinner-dance social
event to coincide with the Catholic feast day of All Souls' Day on November 2.2 FACES's intent,
motivated by an article in the National Catholic Register, was "to put the focus on [their] Catho-
lic holidays as opposed to the focus of Halloween." Record Vols. 4, 5 at 443, 694. In planning
the event, a FACES member parent, Mrs. Bridgewater, requested special dietary accommoda-
tions for her daughter who planned to attend. Her daughter suffers from a dietary condition that
can cause a life-threatening allergic reaction in which her ability to breathe and swallow would
be impaired or even stopped altogether if she ate certain foods including chicken. When Mrs.
Bridgewater learned that the menu for the dinner-dance included chicken, she requested that her
daughter be served a steak. After FACES declined that request, Mrs. Bridgewater again re-
quested a steak, offering to pay the price difference, or in the alternative, a hamburger. FACES
denied that request as well but granted Mrs. Bridgewater's subsequent request to permit her
daughter to bring her own dinner, although there would be no ticket-price adjustment to account
for her daughter not needing the included dinner. The dispute continued. On October 8, 2008,

        1
          Fishers Adolescent Catholic Enrichment Society, Inc. is registered as an Indiana non-profit cor-
poration and recognized under section 501(c)(3) of the Internal Revenue Code.
        2
          All Souls Day is a solemn feast in the Roman Catholic Church commemorating all of those who
have died. It is celebrated annually on November 2. Francis Mershman, All Souls' Day, 1 THE CATHOLIC
ENCYCLOPEDIA (Robert Appleton Co. 1907), available at http://www.newadvent.org/cathen/01315b.htm.
                                                    2
Mrs. Bridgewater changed her mind and made another request that her daughter be served a beef
meal prepared by the event venue, but was again rebuffed. The next day, Mrs. Bridgewater on
behalf of her daughter, filed a complaint with the Commission, alleging FACES refused a rea-
sonable accommodation for her daughter and therefore discriminated against her due to her disa-
bility. Ultimately, even although FACES had instructed her not to contact the event venue, Mrs.
Bridgewater made arrangements with the event venue for her daughter to be served a separate
meal, which she paid for. Her daughter attended the dinner-dance without incident, but four days
later on November 6, FACES expelled the Bridgewater family. Mrs. Bridgewater then filed a
second complaint with the Commission, alleging FACES expelled the Bridgewater family in un-
lawful retaliation for filing the disability discrimination claim.


       FACES filed a motion to dismiss both the claims on the basis that the Commission did
not have subject-matter jurisdiction over FACES under Indiana's Civil Rights Law because
FACES was a religious organization—not an educational one as Mrs. Bridgewater claimed. Af-
ter a hearing, an administrative law judge for the Commission denied the motion to dismiss on
the ground that the Commission had jurisdiction because FACES as a group related to education.
The Commission affirmed and consolidated the disability and retaliatory discrimination claims
for further proceedings. The administrative law judge later entered an order with findings of fact
and conclusions of law, concluding that FACES did not commit an unlawful discriminatory prac-
tice because it had provided a reasonable accommodation for Mrs. Bridgewater's daughter's die-
tary needs—but that FACES did commit an unlawful discriminatory practice when it expelled
the Bridgewater children after they filed the disability discrimination complaint. The administra-
tive law judge ruled that Mrs. Bridgewater's daughter should be awarded $5,000 in damages and
that FACES should take corrective action. Order, Appellant's App'x at 523. Both parties ap-
pealed the order to the Commission. FACES challenged the administrative law judge's conclu-
sions regarding jurisdiction, retaliation, and corrective action. The Bridgewaters challenged the
administrative law judge's conclusions regarding the disability accommodation and damages.
The Commission issued its final order, incorporating the administrative law judge's rulings in all
respects, except for reducing damages.


       FACES appealed, and Mrs. Bridgewater cross-appealed. The Court of Appeals affirmed

                                                   3
in part and reversed in part. See Fishers Adolescent Catholic Enrichment Soc'y, Inc. v. Bridge-
water ex rel. Bridgewater, 990 N.E.2d 29, 49 (Ind. Ct. App. 2013), trans. granted, vacated. The
Court of Appeals reversed the Commission's order requiring FACES to post a link to the Com-
mission's final order on numerous websites but affirmed the Commission's order in all other re-
spects. Id. Having previously granted transfer, we address FACES's dispositive claim that the
Commission lacked authority to take any action other than the dismissal of the disability and re-
taliatory discrimination claims.


        The Legislature may delegate authority to an administrative agency through a valid stat-
ute that sets out a reasonable standard to guide that discretion, but the agency exercises such au-
thority subject to the confines of its enabling statute. Stanton v. Smith, 429 N.E.2d 224, 228
(Ind. 1981). Such limiting standard may be found "within the four corners of the statute itself or
can be found within other statutes that apply to the conduct and authority of the administrative
unit." Id. The Commission's authority is limited by the Administrative Orders and Procedures
Act, and this Court must grant relief if we determine that "a person seeking judicial relief has
been prejudiced by an agency action that is . . . in excess of statutory jurisdiction, authority, or
limitations." Ind. Code § 4-21.5-5-14(d)(3).


        The Indiana Civil Rights Law explicitly conditions the Commission's exercise of its en-
forcement powers to incidents where a person has "engaged in an unlawful discriminatory prac-
tice." Ind. Code § 22-9-1-6(j)3 (emphasis added). To be "unlawful" under the Law, the discrimi-
natory practice must relate to "the acquisition or sale of real estate, education, public accommo-
dations, employment, or the extending of credit." Ind. Code § 22-9-1-3(l) (emphasis added). As
to these enumerated prerequisite criteria for Commission action, it is only "education" that is the
claimed basis of Mrs. Bridgewater's discrimination claims.


        There is no factual dispute that the purpose of FACES, as described in its bylaws, is "to
provide homeschool high schoolers with Catholic educational, spiritual, and social enrichment."


        3
          This opinion cites Indiana Code subsections 22-9-1-6(g), (j), and (l) as identified in the 2014
codification. These subsections were previously designated as (h), (k), and (m) and renumbered in 2012
and 2014 with no change in substance.

                                                    4
Record Vol. 6 at 988; see also Record Vol. 12 at 231 ("FACE[S] achieves [its] religious mission
by shaping its activities to foster the development of homeschooling families in a manner con-
sistent with the teaching of the Catholic Church on matters of faith and morals."); Record Vol.
12 at 234 ("The intent of FACES is to provide Catholic homeschooling families with fraternal
support and solidarity as Catholic families try to raise their children in light of the Catholic
faith."). As these statements of purpose imply, the predominant purpose of FACES is to promote
and foster its member families' Catholic faith in various aspects of their childrens' lives; educa-
tion is but one aspect. The dinner-dance at which Mrs. Bridgewater contends that FACES failed
to accommodate her daughter's food allergy furthered the FACES members' objective of provid-
ing Catholic spiritual and social enrichment. It was not an occasion for the teaching of academic
subjects as part of the student's curriculum. FACES planned the "All Souls' Day Masquerade
Ball" dinner-dance social event to coincide with the Catholic feast day of All Souls' Day on No-
vember 2. The alleged disability discrimination thus occurred at a quasi-religious social func-
tion, not an educational one. To expansively interpret "relating to . . . education," see Ind. Code
§ 22-9-1-3(l), to apply to this dinner would convert almost every occasion of parental guidance
and training into an activity "related to education." This would eviscerate the function of "re-
lated to education" as a legislative prerequisite for the Commission's enforcement powers.


       Because the alleged discriminatory practice in this case does not relate to education, Mrs.
Bridgewater's claim of disability discrimination fell outside the statutory authority of the Com-
mission. It likewise follows that the Commission also lacked authority to find that "FACES
committed an unlawful discriminatory practice when it expelled the Bridgewater family because
of the filing of the original complaint," Conclusion of Law No. 14, Appellant's App'x at 522, and
ordered the imposition of remedial sanctions against FACES. The Commission's statutory power
to "prevent any person from discharging, expelling, or otherwise discriminating against any other
person because the person filed a complaint," Ind. Code § 22-9-1-6(g), is necessarily limited by
Indiana Code section 22-9-1-6(j), which preconditions the Commission's power to act to inci-
dents where a person has "engaged in an unlawful discriminatory practice." Ind. Code
§ 22-9-1-6(j) (emphasis added); see also § 22-9-1-6(l). As discussed above, under the facts of
this case, any unlawful discriminatory practice must be related to education. Here, the claim of
retaliatory discrimination is predicated on Mrs. Bridgewater's assertion of a claim that the failure

                                                  5
to provide special food constituted disability discrimination. Because this disability discrimina-
tion claim is not related to education and thus falls outside the Commission's enforcement pow-
ers, the derivative retaliatory discrimination claim is also beyond the Commission's authority to
impose any remedial sanctions against FACES. This is particularly apparent from the four cor-
ners of the Indiana Civil Rights Law. Neither the disability discrimination claim nor the retalia-
tory discrimination claim are related to education, and thus the Commission has exceeded its
statutory authority.


       Furthermore, it bears noting that the statutory language authorizing Commission action to
remedy an alleged retaliatory discrimination should not be expansively construed to expand the
powers of the Commission beyond the types of discrimination expressly enumerated in the Law.
To hold otherwise would invite and incentivize the intimidating technique of bootstrapping a re-
taliation claim onto a meritless complaint alleging discrimination not subject to the Law. See
Ind. Code § 22-9-1-2.


       "It is 'the duty of the court not to enter upon the consideration of a constitutional question
where the court can perceive another ground on which it may properly rest its decision.'" Bayh
v. Sonnenburg, 573 N.E.2d 398, 402 (Ind. 1991) (quoting Bureau of Motor Vehicles v. Scott,
497 N.E.2d 557, 559 (Ind. 1986)). Because the Commission lacked statutory authority to act
upon both the disability discrimination claim and the claim of exclusion from membership in re-
taliation for asserting the disability discrimination claim, both claims should have been dismissed
as exceeding the authority of the Commission, and it is therefore unnecessary to address any fur-
ther issues, constitutional or otherwise.


       In this case, the Commission considered the merits of Mrs. Bridgewater's disability dis-
crimination claim but dismissed this claim after determining that FACES "met its burden of
making a reasonable accommodation . . . by agreeing to allow food to be brought from home."
Conclusion of Law No. 8, Appellant's App'x at 521. As to the retaliation discrimination claim,
the Commission found that FACES committed an unlawful discriminatory practice and ordered
remedial sanctions. The Commission's consideration of the merits of either discrimination claim
was clearly erroneous because both claims fell outside the Commission's statutory authority and

                                                 6
thus should have been dismissed outright. See Ind. Code § 4-21.5-5-14(d); Regester v. Ind. State
Bd. of Nursing, 703 N.E.2d 147, 151 (Ind. 1998) (stating that a reviewing court may vacate an
administrative board's decision when "the conclusions reached by the board are clearly errone-
ous").


                                            Conclusion


         The Commission lacked authority to take any action other than the dismissal of these
claims arising from an intra-group squabble over the type of meal to be served to a member fam-
ily's child at an "All Souls' Day Masquerade Ball" dinner-dance social event—an incident not re-
lated to education and thus not within the Commission's prerequisite statutory authority. We va-
cate the Commission's final order and remand this cause with instructions to grant the motion to
dismiss filed by FACES as to both claims.




Rush, C.J., and David and Massa, JJ., concur.
Rucker, J., dissents in part with separate opinion.




                                                 7
Rucker, J., dissenting in part.


       I agree with the majority that the Bridgewater disability discrimination claim fails because
the alleged discriminatory practice—excluding one of the Bridgewater children from a meal at the
Masquerade Ball due to her disability—did not “relat[e] . . . to education” within the meaning of
Indiana’s Civil Rights Act. Ind. Code § 22-9-1-3(l). However, I disagree that the Bridgewater
retaliation claim is somehow derivative of and thus depends upon the disposition of the discrimi-
nation claim. Therefore on this issue I respectfully dissent.


       Indiana’s Civil Rights Act reflects the State’s public policy to:
               provide all of its citizens equal opportunity for education,
               employment, access to public conveniences and accommodations,
               and acquisition through purchase or rental of real property,
               including but not limited to housing, and to eliminate segregation or
               separation based solely on race, religion, color, sex, disability,
               national origin or ancestry, since such segregation is an impediment
               to equal opportunity. . . . The practice of denying these rights to
               properly qualified persons by reason of the race, religion, color, sex,
               disability, national origin, or ancestry of such person is contrary to
               the principles of freedom and equality of opportunity and is a burden
               to the objectives of the public policy of this state and shall be
               considered as discriminatory practices.

I.C. § 22-9-1-2(a), (b). The Indiana Civil Rights Commission was created under the auspices of
the Civil Rights Act and is afforded certain authority and charged with certain responsibilities,
including the responsibility to “receive and investigate complaints alleging discriminatory
practices” and to “prevent any person from discharging, expelling, or otherwise discriminating
against any other person because the person filed a complaint, testified in any hearing before this
commission, or in any way assisted the commission in any matter under its investigation.” I.C. §
22-9-1-6(d), (g).


       The majority takes the position that because the activities at issue did not “relate to
education” the Commission had no authority to do anything other than dismiss the Bridgewater
complaint. I cannot agree. Importantly, the Act prohibits “any person” from engaging in acts of
discrimination. I.C. § 22-9-1-6(g). And a person is defined in part as “one (1) or more individuals,
partnerships, associations, organizations, limited liability companies, corporations, labor
organizations . . . and other organized groups of persons.” I.C. § 22-9-1-3(a). FACES certainly
falls within the definition of the Act. To be sure there is a carve-out for certain employers. For
example although the Act makes it unlawful for an employer to discriminate against its employee,
excluded from the definition of “employer” is “any school, educational, or charitable religious
institution owned or conducted by or affiliated with a church or religious institution.” I.C. § 22-
9-1-3(h)(2). But the assertion here is not a claim based on employment discrimination. And in
any case FACES does not contend it was acting as an employer with respect to Mrs. Bridgewater’s
daughter.1


        Further, the import of the majority’s holding is that retaliation is only a “discriminatory
practice” when it is committed in response to the filing of a meritorious complaint with the
Commission. I make two observations: First, correctly noting this is a matter of first impression,
the Court of Appeals concluded “FACES is sufficiently related to education such that the ICRC’s
jurisdiction is proper.” Fishers Adolescent Catholic Enrichment Soc’y, Inc. v. Bridgewater, 990
N.E.2d 29, 41 (Ind. Ct. App. 2013), vacated. And although the Court disagrees with our colleagues
on this point, a respectable argument can be made that a good education is not composed solely of
“the three Rs—reading, [‘]riting, and [‘]rithmetic.”2 Rather, it also includes social skills.3 In
essence, one could reach the reasonable conclusion that the meal at the Ball “relates to education”
and thus the Bridgewater complaint falls with the plain wording of the Civil Rights Act.


        The facts of this case make clear the Bridgewater complaint was certainly not “meritless”
as the majority contends. And the Commission was quite correct in entertaining and providing a



        1
          The majority seems to imply that the homeschooling/religious character of FACES exempts the
organization from the reach of Indiana’s Civil Rights Act. See slip op. at 4-5. It does not, although the
Legislature could certainly do so if deemed appropriate.
        2
            Christine Ammer, The American Heritage Dictionary of Idioms 457 (2d ed. 2013).
        3
          See Ind. Dep’t of Educ., Indiana Academic Standards for Health & Wellness 79 (2010), available
at www.doe.in.gov/sites/default/files/standards/health-and-wellness/2010_health_education_standards_literacy.pdf
(“Students will demonstrate the ability to use interpersonal communication skills to enhance health and
avoid or reduce health risks. . . . This standard focuses on how responsible individuals use verbal and non-
verbal skills to develop and maintain healthy personal relationships.”).

                                                       2
remedy in favor of the Bridgewaters when FACES expelled the family in retaliation for filing the
complaint in the first place. Second, the retaliation language in the statute itself says nothing about
an alleged “meritorious” complaint. Instead it tasks the Commission with the responsibility of
“investigat[ing] complaints alleging discriminatory practices” and giving it authority to prevent
retaliation “because the person filed a complaint, testified in any hearing before this commission,
or in any way assisted the commission in any matter under its investigation.” I.C. § 22-9-1-6(d),
(g) (emphases added).


        In addition, the majority’s view is also inconsistent Federal retaliation precedent.4 In the
federal context, all that is required for a complainant to succeed on a retaliation claim is that he or
she reasonably believed in good faith that the complained-of practice was discriminatory. See,
e.g., Fine v. Ryan Int’l Airlines, 305 F.3d 746, 752 (7th Cir. 2002) (even where district court found
complainant’s discrimination claim failed as a matter of law, she could still prevail on her
retaliation claim); Wilkins v. St. Louis Hous. Auth., 314 F.3d 927, 933 (8th Cir. 2002) (recognizing
that the Fifth, Seventh, Eighth, and Ninth Circuits have all used a reasonable-belief standard in the
Title VII retaliation context).


        Essentially, retaliation under the Act is a separate act of discrimination regardless of the
outcome on the merits of the underlying complaint. Thus even though FACES prevailed on
Bridgewater’s disability discrimination claim, it was nonetheless subject to the Bridgewater
retaliation discrimination claim. See Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 180-81
(2005) (recognizing that the objective of preventing discriminatory practices “would be difficult,
if not impossible, to achieve if persons who complain about . . . discrimination did not have
effective protection against retaliation. . . . Without protection from retaliation, individuals who
witness discrimination would likely not report it . . . and the underlying discrimination would go
unremedied” (internal quotation omitted)).




        4
          “In construing Indiana civil rights law our courts have often looked to federal law for guidance.”
Filter Specialists, Inc. v. Brooks, 906 N.E.2d 835, 839 (Ind. 2009) (citing cases).

                                                     3
        Today the majority rewrites Indiana’s Civil Rights Act, places an untenable burden on the
Commission, and along the way ignores without explanation relevant federal precedent. I
therefore cannot join its opinion. Instead I would affirm in part the Commission’s decision.5




        5
          More specifically the Commission ordered FACES to take several remedial measures: (1) cease
and desist from retaliating against persons because they filed a complaint with the ICRC; (2) post a link to
the Commission’s order on all websites on which FACES communicated information about the case; (3)
pay emotional distress damages to the daughter of Mrs. Bridgewater in the amount of $2500; and (4) offer
reinstatement of the Bridgewater family to full membership in FACES. I would reverse the Commission
on this latter point as a violation of FACES’ constitutional right of intimate association. See generally
Roberts v. U.S. Jaycees, 468 U.S. 609, 612 (1984) (“address[ing] a conflict between a state’s efforts to
eliminate gender-based discrimination against its citizens and the constitutional freedom of association as-
serted by members of a private group”).

                                                     4
