          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Chestnut Hill College,                         :
                              Petitioner       :
                                               :
               v.                              :     No. 844 C.D. 2016
                                               :     Argued: February 7, 2017
Pennsylvania Human Relations                   :
Commission,                                    :
                      Respondent               :


BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE JULIA K. HEARTHWAY, Judge


OPINION
BY JUDGE SIMPSON                               FILED: April 7, 2017

               This case involves an issue of first impression, whether a Catholic
college’s expulsion decision is reviewable by the Pennsylvania Human Relations
Commission (Commission). A former African-American student, Allan-Michael
Meads (Student) filed a complaint with the Commission, alleging Chestnut Hill
College (College) expelled him based on racial discrimination in violation of the
Pennsylvania Human Relations Act (Act)1 and the Pennsylvania Fair Educational
Opportunities Act (PFEOA).2 This Court granted College permission to appeal
from the Commission’s interlocutory order that denied a motion to dismiss
premised on a lack of jurisdiction.                College argues the Commission lacks
jurisdiction because it is not a public accommodation; rather, it is distinctly private


      1
          Act of October 27, 1955, P.L. 744, as amended, 43 P.S. §§951-963.
      2
          Act of July 17, 1961, P.L. 776, as amended, 24 P.S. §§5001-5010.
based on its religious nature. College also contends the religion clauses of the First
Amendment3 preclude the Commission from reviewing its expulsion decisions.


               Upon review, we affirm the denial of the motion to dismiss. Further,
we conclude College did not identify any religious doctrine so as to trigger
entanglement. Accordingly, we remand the matter to the Commission.


                                   I. Background
               College was founded by the Sisters of Saint Joseph in 1924 as an
independent, non-profit educational institution affiliated with the Catholic church.
College is staffed by lay faculty and the Sisters of St. Joseph. At least one-fifth,
plus one, of its Board of Directors is composed of members of the Sisters of St.
Joseph. The congregational president of the Sisters of Saint Joseph serves as vice-
chair of the Board. Although College acquaints all students with Catholicism and
holds Catholic services that are open to all students, students are not required to
attend religious classes or services.


               During his senior year at College, Student collaborated with the
African-American Awareness Society and directed the first African-American play
at the College. He directed four plays over three days during Black History Month
in 2012. The College hosted rehearsals and funded some play expenses. Student
advertised that proceeds would benefit the Lupus Foundation of America
(Foundation). Of the proceeds, Student donated $500 to the Foundation, and he
expended $800 for a cast party. The total amount of the proceeds was unknown.

      3
          U.S. CONST. amend. I.



                                          2
             In March 2012, College administrator Krista Murphy investigated
Student’s use of the proceeds, alleging he improperly retained them. Student
provided receipts and his bank statement. Nonetheless, College charged Student
with theft and forgery. The College held a hearing on the charges, in which
Student fully participated.


             The    hearing    officer   recommended      Student’s   expulsion      for
misappropriation of funds. Student appealed the recommendation to the College
Appeals Board (Board).


             In the interim, Student offered to pay restitution to the College in any
amount it believed he owed. College rejected his offer.


             In April 2012, the Board unanimously supported expulsion. College
found Student liable for theft and forgery and ruled to permanently expel him.
College ordered Student to pay $2,248. After he paid the funds, College donated
the funds to the Foundation.


             College expelled Student a few weeks before his scheduled graduation.
As a result of his expulsion, Student was unable to graduate, he lost his
employment as a resident assistant, he lost his internship and he was evicted from
his housing in Fitzsimmons Hall.


              Subsequently, Student filed a complaint with the Commission against
the College, alleging his expulsion was based on his race in violation of the Act.



                                          3
            The Commission investigated whether Student’s expulsion was a
pretext for discrimination. In the course of its investigation, it reviewed the
College’s disciplinary records from 2007 through 2012.          The Commission
determined that African-American students were punished disproportionately
higher than other College students.


            The College’s Sanctions policy provides:

            The following factors will be considered in determining
            sanctions: present attitude, past record, both positive and
            negative, the severity of the damage, injury harm or disruption
            or the potential for such, the student’s or group’s honesty,
            cooperation and willingness to make amends.

Reproduced Record (R.R.) at 332a. Student had no prior disciplinary actions.


            In December 2015, the Commission found probable cause to credit the
racial discrimination claims in Student’s complaint. College filed an answer and
new matter to the amended complaint, which added violations of the PFEOA.
Four years later, in March 2016, after Student filed his complaint, College
challenged the Commission’s jurisdiction (Motion).


            In the Motion, College argued the Commission lacked jurisdiction
because it was not a “public accommodation” under the Act. College also asserted
any adjudication would require decisions regarding the application of the First
Amendment, which exceeded the Commission’s subject matter jurisdiction.
College claims that by assuming jurisdiction, the Commission jeopardizes its First
Amendment rights.



                                        4
               The Commission issued an interlocutory order denying the Motion
pursuant to 16 Pa. Code §42.131(c)(1) without granting a stay (Interlocutory
Order). In accordance with 42 Pa. C.S. §702(b), it provided “this Interlocutory
Order involves both constitutional issues and a controlling question of law as to
which there is substantial ground for difference of opinion, and that an immediate
appeal may materially advance termination of the matter.” R.R. at 346a. College
filed a petition for permission to appeal the Interlocutory Order pursuant to Pa.
R.A.P. 1311.4


               By order dated July 26, 2016, this Court permitted appeal from the
Interlocutory Order. Specifically, this Court granted a petition for permission to
appeal limited to three questions:

               1)   Whether Catholic colleges and universities are ‘public
               accommodations’ under the Act;

               2)    Whether the First Amendment of the U.S. Constitution
               precludes application of the Act to discipline and expulsion
               decisions of Catholic colleges and universities;

               3)    Whether the PFEOA is unconstitutional as applied to
               the disciplinary and expulsion decisions of College as a
               Catholic college.

Id. We also stayed the matter before the Commission pending resolution of this
appeal. Student intervened. The Commission and Student sought reconsideration
of our July 26th Order, which we denied.


       4
        Initially, College also filed a petition for review of the Interlocutory Order, separately
docketed. We granted Student’s motion to quash the petition for review, dismissing it.




                                                5
             The Philadelphia Commission on Human Relations filed a friend-of-
the-court brief supporting the Commission. After briefing, the matter is now ready
for disposition.


                                   II. Discussion
             College argues it is not a public accommodation under the Act; rather,
it is distinctly private as a Catholic institution. Consequently, it is not subject to
jurisdiction of the Commission. Further, College asserts that because Student’s
claims implicate religious entanglement under the First Amendment, the
Commission lacks subject matter jurisdiction.        In addition, College contends
Student’s claims under PFEOA are time-barred.


             The Commission counters that College did not properly appeal to this
Court, and it challenges our jurisdiction to address a non-final order.           The
Commission emphasizes that the Act and the PFEOA are both neutral anti-
discrimination laws. Also, the Commission asserts the First Amendment is not a
jurisdictional bar; rather, it offers an affirmative defense. Since College did not
timely raise it, the Commission contends the defense is waived.


             Student asserts College is a public accommodation because it is open to
the general public. Further, he argues the Act and PFEOA do not violate the First
Amendment. He contends the resolution of this case does not involve issues of
Catholic doctrine so as to lead to entanglement between church and state. Student
also argues the First Amendment does not bar decisions on racial discrimination
claims because elimination of racial discrimination is of paramount concern.



                                          6
                                 A. Jurisdiction
                            1. Appellate Jurisdiction
            At the outset, we address the Commission’s challenge to our
jurisdiction to review the Interlocutory Order. The Commission claims our review
is limited to only final orders under Pa. R.A.P. 341. In so doing, the Commission
ignores the procedural posture of this appeal, whereby this Court undertook review
of the Interlocutory Order by permission pursuant to Pa. R.A.P. 1311.


            Then, the Commission claims that College did not satisfy the criteria
of Rule 1311(b) because it did not seek an amendment of the Interlocutory Order.
This argument presumes such an amendment was necessary. An interlocutory
order may be appealed by permission provided it contains the statement required
by 42 Pa. C.S. §702(b). Section 702(b) of the Judicial Code provides:

            When a court or other government unit, in making an
            interlocutory order in a matter in which its final order would
            be within the jurisdiction of an appellate court, shall be of the
            opinion that such order involves a controlling question of law
            as to which there is substantial ground for difference of
            opinion and that an immediate appeal from the order may
            materially advance the ultimate termination of the matter, it
            shall so state in such order. The appellate court may
            thereupon, in its discretion, permit an appeal to be taken from
            such interlocutory order.

42 Pa. C.S. §702(b) (emphasis added). Rule 1311(b) does not require a party to
apply for amendment of an order unless such a statement is missing.


            Here, the Interlocutory Order contained the requisite statement. R.R. at
346a. Thus, we may assume jurisdiction over College’s appeal.


                                         7
                              2. Commission Jurisdiction
               Our Supreme Court holds that a question of the Commission’s
jurisdiction “is to be resolved initially by the Commission during an investigation
authorized under the Act.” Pa. Human Relations Comm’n v. Lansdowne Swim
Club, 526 A.2d 758, 759 (Pa. 1987); Pa. Human Relations Comm’n v. Feeser, 364
A.2d 1324, 1326 (Pa. 1976) (the Commission has “jurisdiction initially to receive,
investigate,    conciliate,   hear   and   decide   complaints   alleging   unlawful
discrimination.”). This Court holds “[i]n instances where it is unclear whether a
particular agency possesses the jurisdiction to consider a claim before it, the courts
of the Commonwealth have repeatedly refrained from interfering with the due
course of administrative action, allowing the agency to determine the extent of its
jurisdiction in the first instance.” Pittsburgh Bd. of Pub. Educ. v. Pa. Human
Relations Comm’n, 820 A.2d 838, 841-42 (Pa. Cmwlth. 2003).


               College challenges the Commission’s jurisdiction on two grounds.
First, College contends it is not a public accommodation as defined by the Act
because religious schools are distinctly private. Next, it asserts the Commission
lacks subject matter jurisdiction because resolution of Student’s complaint would
result in religious entanglement in violation of the First Amendment.


                              a. Public Accommodation
               PHRA Section 4(l) of the Act defines “public accommodation” as:

               … any accommodation, resort or amusement which is open to,
               accepts or solicits the patronage of the general public,
               including but not limited to inns, taverns, roadhouses, hotels,
               motels … restaurants or eating houses, or any place where
               food is sold for consumption on the premises ... public


                                           8
             libraries, kindergartens, primary and secondary schools, high
             schools, academies, colleges and universities, extension
             courses and all educational institutions under the supervision
             of this Commonwealth, nonsectarian cemeteries, garages and
             all public conveyances operated on land or water or in the air
             as well as the stations, terminals and airports thereof, financial
             institutions and all Commonwealth facilities, and services,
             including such facilities and services of all political
             subdivisions thereof, but shall not include any
             accommodations which are in their nature distinctly private.

43 P.S. §954(l) (emphasis added). Also, Section 12 of the Act requires that “[t]he
provisions of this act shall be construed liberally for the accomplishment of the
purposes thereof ....” 43 P.S. §962. “Thus, the Act’s … enumeration of those
places described as [public accommodations] should not be considered
exhaustive.” Blizzard v. Floyd, 613 A.2d 619, 620-21 (Pa. Cmwlth. 1992).


             Provided the College “accepts … the patronage of the general public,”
and is not in its nature “distinctly private,” it constitutes a public accommodation
as defined by the Act. Lansdowne Swim Club, 526 A.2d at 761. The Commission
is “[t]he appropriate body” to apply the concepts of public and private to assess the
nature of the accommodation before it. Id.


             College maintains it is a “distinctly private” institution based on its
Catholic affiliation as a matter of law.      College’s claim is predicated on the
applicability of our decision in Roman Catholic Archdiocese v. Pennsylvania
Human Relations Commission, 548 A.2d 328 (Pa. Cmwlth. 1988).


             In Roman Catholic, a number of Catholic parochial high schools
operated by the Archdiocese of Philadelphia appealed a series of Commission


                                          9
interlocutory orders that declined to dismiss racial discrimination complaints filed
against them. The complaints alleged the high schools exacted harsh discipline
based on race when the schools did not invoke the same sanctions against white
students. The parochial high schools challenged the Commission’s denial of their
motions to dismiss, arguing they were not public accommodations under the Act.5
To the contrary, they argued parochial schools were distinctly private.


             Following Lemon v. Kurtzman, 403 U.S. 602 (1971), this Court was
persuaded that parochial high schools were an integral part of the Catholic mission,
as “a powerful vehicle for transmitting the Catholic faith to the next generation.”
Roman Catholic, 548 A.2d at 330. In so doing, we emphasized the religious
character of the parochial high schools based on several factors. We noted non-
Catholic students were required to take religion classes and to attend Catholic
services as a condition of attending school.         We reasoned “parochial schools
constituted an integral part of the religious mission of the Catholic church … [and]
[t]his process of inculcating religious doctrine, is, of course, enhanced by the
impressionable age of the pupils, in primary schools particularly.” Id. (quoting
Lemon, 403 U.S. at 616) (emphasis supplied).            Ultimately, we held Catholic
parochial high schools were not public accommodations.


             College asserts Catholic colleges are entitled to the same treatment as
distinctly private institutions beyond the Commission’s jurisdiction.                 We
respectfully disagree.
      5
           Public schools are places of public accommodation subject to the Commission’s
jurisdiction to protect students from racial discrimination. Pa. Human Relations Comm’n v.
Chester Sch. Dist., 233 A.2d 290 (Pa. 1967).



                                           10
               First, as a matter of statutory interpretation, College is a “college or
university” expressly enumerated as a “public accommodation” in 43 P.S. §954(l).
That is in stark contrast to “parochial schools” that were not listed among the 50
plus entities encompassed within the definition. We underscored this point in
Roman Catholic when we noted its absence as grounds for its exclusion under “the
legal maxim ‘expressio unius est exclusio alterius.’” Roman Catholic, 548 A.2d at
329-30 (italics added).          College did not address this statutory construction
argument, and when asked during oral argument, offered no reason for
differentiating itself from other colleges subject to the Act.


               Second, College relies exclusively on our holding in Roman Catholic
that the parochial high schools at issue were exempt from the Commission’s
jurisdiction. Without regard to their distinguishing characteristics, College posits
that Catholic colleges and universities are entitled to share the same categorical
exclusion from “public accommodations.” However, this Court has never held
Catholic colleges or universities are equivalent to parochial primary and secondary
schools in terms of indoctrination of religion. While both parochial schools and
Catholic colleges are educational institutions, College cites no precedent, federal or
state, applying the U.S. Supreme Court decision Lemon to Catholic colleges so as
to categorically exclude them from jurisdiction of an agency administering anti-
discrimination laws.6

       6
         Moreover, while there is no record, the submissions reflect several material differences
between the parochial primary and secondary schools and College. First, the parochial schools
in Roman Catholic Archdiocese v. Pennsylvania Human Relations Commission, 548 A.2d 328
(Pa. Cmwlth. 1988), educated children, not students who typically reached the age of majority.
Second, the parochial schools were governed and operated by the Roman Catholic Archdiocese
of Philadelphia. College is governed by one-fifth, plus one, comprised of the Sisters of St. Joseph.
(Footnote continued on next page…)

                                                11
               Significantly, our decision in Roman Catholic relied heavily on the
U.S. Supreme Court’s characterization of Catholic parochial schools in Lemon.
Similar to the circumstances here, in Roman Catholic we did not have the benefit
of a factual record.         Based on the Supreme Court’s holding in Lemon that,
“parochial schools involve substantial religious activity and purpose,” we held the
parochial high schools at issue were distinctly private institutions. Id. at 616.


               However, College cites no authority to support its contention that
Catholic colleges and universities are equivalent to parochial primary and
secondary schools in their private nature.                 Indeed, the U.S. Supreme Court
recognized fundamental differences between the type of education provided at
parochial primary and secondary schools and Catholic colleges at the post-
secondary level in Tilton v. Richardson, 403 U.S. 672 (1971) (plurality opinion).7


               Specifically, in Tilton, the Court concluded: “There are generally
significant differences between the religious aspects of church-related institutions of
higher education and parochial elementary and secondary schools.” Id. at 685. It
reasoned,


(continued…)

Third, Catholic instruction was a required part of the curriculum at the parochial schools, and
attending Catholic classes and Masses was a condition of attending the schools. College, by
contrast, does not require attendance at religious services, and religious instruction is available, not
required.
       7
          In Tilton, the appellants challenged the Higher Education Facilities Act of 1963, 20
U.S.C. §§711-721, 751(a), arguing grants thereunder aided religious purposes of church-related
colleges and universities. However, the Supreme Court rejected appellants’ position that the
religious and secular educational functions are inseparable at the higher education level.



                                                  12
             [t]he ‘affirmative if not dominant policy’ of the instruction in
             pre-college church schools is ‘to assure future adherents to a
             particular faith by having control of their total education at an
             early age.’ There is substance to the contention that college
             students are less impressionable and less susceptible to
             religious indoctrination. Common observation would seem to
             support that view, and Congress may well have entertained it.
             The skepticism of the college student is not an inconsiderable
             barrier to any attempt or tendency to subvert the congressional
             objectives and limitations. Furthermore, by their very nature,
             college and postgraduate courses tend to limit the
             opportunities for sectarian influence by virtue of their own
             internal disciplines. Many church-related colleges and
             universities are characterized by a high degree of academic
             freedom and seek to evoke free and critical responses from
             their students.

Id. at 685-86 (emphasis added) (citations and footnotes omitted).


             The Tilton Court explained “religious indoctrination is not a
substantial purpose or activity” of church-related colleges. Id. at 687. For that
reason, there was less risk that government funding of such institutions would
support religious activities, and there would be less risk of entanglement between
government and religion. As to the student body, the Court explained students of
colleges are more free-thinking, and are more diverse and widely dispersed than
the younger students of locality-based parochial schools.


             That the Supreme Court issued its decision in Tilton on the same day it
issued Lemon undermines College’s contention that all religious schools, regardless
of education level or student age, are entitled to the same exemption from regulation.
The Court also recognizes colleges, as opposed to parochial schools, perform
“essentially secular educational functions,” thus reducing their religious character.


                                         13
Roemer v. Bd. of Pub. Works of Md., 426 U.S. 736 (1976). Notably, College did
not acknowledge that federal jurisprudence recognizes several distinctions between
parochial schools and church-related colleges. See Universidad Cent. de Bayamon
v. Nat’l Labor Relations Bd. (NLRB), 793 F.2d 383 (1st Cir. 1985) (colleges are
not categorically exempt from NLRB jurisdiction like parochial schools).


            In short, because Roman Catholic pertained only to parochial high
schools, which are different from church-related colleges, we decline to extend our
decision to exempt all Catholic colleges from Commission jurisdiction as a matter of
law.


            Therefore, at this stage, when the factual record remains undeveloped,
we hold College is not absolutely excluded from the definition of “public
accommodation” based on its religious nature. However, we do not foreclose the
possibility that College may demonstrate its distinctly private nature during the
proceedings before the Commission, based on a factual, as opposed to a purely legal,
determination.


                                b. First Amendment
            Next, we consider College’s challenge to the Commission’s subject
matter jurisdiction. College contends resolution of Student’s racial discrimination
claims would result in unconstitutional entanglement between church and state.
College asserts the deference rule under the religion clauses of the First
Amendment deprives the Commission of jurisdiction over its expulsion decisions.




                                        14
             The Commission counters that this case does not involve matters of
Catholic doctrine. Student’s racial discrimination claim may be resolved without
delving into ecclesiastical matters or excessive entanglement.           Further, the
Commission contends the First Amendment does not act as a jurisdictional bar.
Therefore, College waived this defense when it did not raise it in the pleadings.


             The religion clauses of the First Amendment provide that “Congress
shall make no law respecting an establishment of religion or prohibiting the free
exercise thereof.” U.S. CONST. amend. I. The Free Exercise Clause protects not
only the individual’s “right to believe and profess whatever religious doctrine one
desires,” Emp’t Div., Dep’t of Human Res. of Oregon v. Smith, 494 U.S. 872, 877
(1990), but also a religious institution’s right to decide matters of faith, doctrine,
and church governance. Kedroff v. St. Nicholas Cathedral, 344 U.S. 94 (1952);
Petruska v. Gannon Univ., 462 F.3d 294 (3d Cir. 2006). The Establishment Clause
mandates neutrality and prohibits all forms of government action establishing
religion, including decisions by civil tribunals. Se. Pa. Synod of the Evangelical
Lutheran Church in Am. v. Meena, 19 A.3d 1191 (Pa. Cmwlth. 2011).


             That a dispute implicates First Amendment concerns does not
foreclose a tribunal from exercising jurisdiction. Connor v. Archdiocese of Phila.,
975 A.2d 1084 (Pa. 2009). The nature of the dispute, as to whether it involves
matters of religious doctrine, or may be resolved using neutral principles,
determines whether subject matter jurisdiction lies. Id.




                                         15
                                (1) Deference Rule
             First Amendment jurisprudence reinforces that generally courts must
defer to church hierarchy in the resolution of any ecclesiastical matter so as to
avoid entanglement between church and state. Serbian E. Orthodox Diocese v.
Milivojevich, 426 U.S. 696 (1976). This is commonly referred to as the “deference
rule.” Id. at 709 (“where resolution of the disputes cannot be made without
extensive inquiry by civil courts into religious law and polity, the First and
Fourteenth Amendments mandate that civil courts shall not disturb the decisions of
the highest ecclesiastical tribunal within a church of hierarchical polity”). Under
the deference rule, civil courts cannot adjudicate disputes regarding ecclesiastical
matters, encompassing church policy and administration or religious doctrine. Id.


             The U.S. Supreme Court refined the deference rule in later decisions,
holding there are neutral principles of law that apply to civil disputes involving
religious institutions that are “flexible enough to accommodate all forms of
religious organization and polity.” Jones v. Wolf, 443 U.S. 595, 604 (1979). The
neutral principles approach limits the courts “to determine the underlying issue by
utilizing purely legal principles without delving into ecclesiastical matters.” Peters
Creek United Presbyterian Church v. Wash. Presbytery of Pa., 90 A.3d 95, 104-05
(Pa. Cmwlth. 2014) (en banc) (citation omitted).        The approach distinguishes
between religious beliefs, which are ecclesiastical matters beyond a court’s
purview, and conduct premised upon those beliefs, which conduct “remains subject
to regulation.” Connor, 975 A.2d at 1106 (citing Cantwell v. Conn., 310 U.S. 296,
303-04 n.18 (1940)). Although states may adopt a means of determining matters




                                         16
involving religious institutions on the continuum of deference to neutral principles,
under no circumstances may a court inquire into doctrinal issues. Jones.


             Pennsylvania courts recognize the deference rule as it applies to
ecclesiastical matters, Presbytery of Beaver-Butler of United Presbyterian Church
v. Middlesex Presbyterian Church, 489 A.2d 1317 (Pa. 1985), and the refinement
of the rule under the neutral principles of law approach, Connor.


             College argues the Commission lacks subject matter jurisdiction based
solely on our sister court’s decision in Gaston v. Diocese of Allentown, 712 A.2d
757 (Pa. Super. 1998). In Gaston, parents sued a parochial elementary school for
varied tort claims stemming from student expulsions. The trial court held it lacked
subject matter jurisdiction to consider the claims under the deference rule. The
Superior Court affirmed.


             After analyzing the decisions of Catholic institutions that involved
doctrinal versus civil areas of law, the Gaston Court reasoned the connection
between parochial schools and Catholic dogma was inseparable so as to require
deference to the school’s expulsion decision. Specifically, it reasoned:

             The parochial school, synonymous with the installation of
             dogma and discipline in its students, is an integral part of the
             Roman Catholic Church. The school is a repository for
             Catholic tradition and scripture; it is so intertwined with the
             church doctrine that separation is neither pragmatic nor
             possible. Intrusion into the bishop’s decision on matters
             concerning parochial school discipline and expulsion places
             this court perilously close to trespassing on sacred ground.




                                         17
Id. at 761. The Superior Court held a parochial elementary school’s expulsion
decision sounded in religious faith, such that review of the expulsion allowed a
court to question doctrinal law.


             Significantly, the Gaston Court’s rationale for holding the civil courts
lack jurisdiction over an expulsion decision was limited to parochial schools.
College cites no authority for extending Gaston to Catholic colleges. As such,
there is no authority supporting its conclusion that an expulsion decision of a
Catholic college is a purely ecclesiastical matter that requires application of the
deference rule.


             Further, College disregards more recent precedent in Connor that
narrowed the deference rule’s application to a parochial school’s expulsion
decision. Significantly, in Connor our Supreme Court discarded the broad
deference rule applied in Gaston in favor of the neutral principles of law approach.


             Unlike the Superior Court in Gaston, in Connor our Supreme Court
held that courts may exercise subject matter jurisdiction over a tort suit arising out
of a parochial school’s expulsion decision. In its analysis, the Court considered
whether the alleged misconduct that was the basis for expulsion was grounded in
Church doctrine, or was capable of review under neutral principles of law.


             The Connor Court established a three-prong approach to enable a fact-
finder to determine whether the deference rule applies:
              (1) examine the elements of each of the plaintiff’s claims;

             (2) identify any defenses forwarded by the defendant; and[,]

                                         18
            (3) determine whether it is reasonably likely that at trial, the
            fact-finder would ultimately be able to consider whether the
            parties carried their respective burdens as to every element of
            each of the plaintiff’s claims without intruding into the sacred
            precincts [of ecclesiastical matters].

Id. at 1103. The Court determined the matter was capable of resolution without
deference because the conduct underlying the expulsion, i.e., whether the student
brought a pen-knife to school, did not require review or construction of religious
doctrine.


            Under Connor, the fact-finder analyzes whether a dispute is
ecclesiastical or civil in nature. Id. Thus, as fact-finder, the Commission has the
authority to determine whether the deference rule applies.        Id.; see Petruska
(tribunal’s power to hear claim differs from whether the First Amendment bars
claim).


            Relevant here, the Court reasoned the claim was susceptible to neutral
principles of law, and the First Amendment did not act as a jurisdictional bar,
because the courts did not need to construe religious doctrine to assess the claims.
Id.   Applying the analysis of Connor here, we discern no basis for the First
Amendment to bar the Commission’s review of Student’s discrimination claims.


            More particularly, as to the first prong, Student’s claims do not
require the Commission to construe religious doctrine. Importantly, College did
not identify any Catholic doctrine as grounds for Student’s expulsion. Rather,
College stated “[Student’s] expulsion was the result of [his] own willful, deceitful


                                        19
and dishonest behavior which included the misappropriation of funds for his own
personal use and benefit.” Supplemental Certified Record (S.C.R.), Item No. 2,
Answer at ¶23. Willful, deceitful and dishonest behavior is routinely addressed
through civil tort law and through criminal law, without resort to religious
doctrine. As a result, the necessity for construing ecclesiastical matters is not
evident.


             As to the second prong, College did not cite any religious doctrine-
based defense to Student’s racial discrimination claims. College does not contend
the alleged discriminatory practice (racially motivated expulsion), is required by its
religious doctrine. Cf. Maguire v. Marquette Univ., 814 F.2d 1213 (7th Cir. 1987)
(deference rule may preclude review of refusal to hire teacher who held beliefs on
abortion contrary to Christian doctrine).


             As to the third prong, despite repeated inquiries as to how doctrine
bears on the resolution of Student’s claims, College offered no explanation during
oral argument. Indeed, College draws our attention to no doctrinal questions that
would undermine the application of neutral principles to Student’s discrimination
claims.    Therefore, we discern no merit in College’s contention that the
Commission’s consideration of the dispute is barred by the deference rule.


             Moreover, our holding that the First Amendment does not preclude
the Commission’s jurisdiction is consistent with federal jurisprudence. See Ohio
Civil Rights Comm’n v. Dayton Christian Schs., Inc., 477 U.S. 619 (1986); see
also Equal Emp’t Opportunity Comm’n v. Miss. Coll., 626 F.2d 477, 488 (5th Cir.



                                            20
1980) (“Because no religious tenets advocated by the College … involve
discrimination on the basis of race or sex, an investigation by the EEOC will only
minimally intrude upon any of the College’s … religious beliefs. No ongoing
interference with the College’s religious practices will result from an EEOC
investigation of the charge .…”).


             In Ohio Civil Rights Commission, the U.S. Supreme Court reasoned
that a human relations commission has jurisdiction to hear discrimination claims
even where First Amendment religious claims are raised because: “the [c]ommission
violates no constitutional rights by merely investigating the circumstances of [a
discriminatory act], if only to ascertain whether the ascribed religious-based reason
was in fact the reason for the [discriminatory act].” Id. at 628.


             Ohio Civil Rights Commission involved a claim of sex discrimination.
The case arose from the firing of a female teacher who attempted to return to work
after she gave birth, when Catholic doctrine required her to stay home until her
child reached pre-school age. The parties raised discrimination claims in the
district court, which were also the subject of a complaint filed with Ohio’s
administrative counterpart to the Commission. The U.S. Supreme Court held that
the district court should have abstained and allowed the administrative process to
proceed.


             In sum, College here did not connect Student’s claims to any religious
doctrine so as to entangle the Commission in purely ecclesiastical matters.
Moreover, there is no allegation that the alleged discriminatory act, expelling



                                          21
Student for misappropriating funds, required any consideration of Catholic doctrine.
The College does not allege racial discrimination is part of its ecclesiastical beliefs.
Mississippi Coll. Further, to the extent Gaston held a parochial elementary school’s
expulsion decision involved a matter of purely ecclesiastical concern, our Supreme
Court’s decision in Connor superseded it. As a result, College does not support its
foundational assumption that expulsion involves an ecclesiastical matter.


               The First Amendment acts as a jurisdictional bar only if a controversy
interferes with the relationship between a church and one of its ministers,8 or if the
dispute involves a matter of purely ecclesiastical concern. As the party moving for
dismissal, College must show that Student’s claims involve ecclesiastical matters
so as to require deference, “we will not make [College’s] arguments for them.”
Connor, 975 A.2d at 1103. College made no such showing. Applying Connor to
the current record, the deference rule does not bar the Commission’s jurisdiction.


                                      (2) Entanglement
               Courts find an unconstitutional entanglement with religion in
situations where a “protracted legal process pit[s] church and state as adversaries,”
and where the government is placed in a position of choosing among “competing
religious visions.” Equal Emp’t Oppty. Comm’n v. Catholic Univ. of Am., 83
F.3d 455, 465 (D.C. Cir. 1996) (citations omitted).                   Entanglement must be



       8
           Under the “ministerial exception,” the First Amendment protects a church’s right to
hire, fire, promote, and assign duties to its ministers” and teachers of theology. Mundie v. Christ
United Church of Christ, 987 A.2d 794, 798 (Pa. Super. 2009).




                                                22
“excessive” before it runs afoul of the Establishment Clause.9 Mobley v. Coleman,
110 A.3d 216, 220 (Pa. Cmwlth. 2015). To determine whether the government
entanglement with religion is excessive, “we must examine the character and
purposes of the institutions that are benefited, the nature of the aid that the State
provides, and the resulting relationship between the government and the religious
authority.” Lemon, 403 U.S. at 615.


              There is no dispute that the Act is a neutral law that may be applied by
consulting objective, non-ecclesiastical principles. College, as the moving party,
bore the burden of proving the Act violated its First Amendment rights.                    St.
Elizabeth’s Child Care Ctr. v. Dep’t of Pub. Welfare, 989 A.2d 52 (Pa. Cmwlth.
2010). On the current record, College failed to identify any actual or imminent
infringement on its rights. Id.


              In St. Elizabeth’s Child Care Center, a day care center argued the
enforcement of an agency’s regulatory scheme infringed on its right to free
exercise. Specifically, the center contended the agency’s licensing and oversight
would significantly burden its religious mission. However, this Court rejected the
center’s First Amendment arguments because the center did not identify the impact
of any regulation, and “[did] not explain how the [agency action] interfere[d] with
[its] ability to communicate Church teachings.” Id. at 56.



       9
          In analyzing an Establishment Clause claim, we consider: (1) whether the government
action serves a secular purpose; (2) that its principal or primary effect neither advances nor
inhibits religion; and, (3) that it does not foster an excessive government entanglement with
religion. In re Redev. Auth. of City of Phila., 938 A.2d 341 (Pa. 2007).



                                             23
              We held that as a threshold matter, a religious institution must make a
showing that the application of the challenged law substantially burdens its First
Amendment rights. Id. Speculative claims that an agency’s application of its own
standards, which may be at odds with religious doctrine, substantially burden the
institution’s free exercise do not suffice to show constitutional infringement.


              Here, College offers mere speculation that adjudication of Student’s
racial discrimination claim will result in unconstitutional entanglement. College
does not explain how Student’s expulsion implicates Catholic doctrine or how
review of expulsion decisions requires review of ecclesiastical matters. Instead,
College assumes the expulsion from a Catholic school was a purely ecclesiastical
matter under Gaston. Thus, College does not meet this threshold burden.10 Id.


                     B. PFEOA - Unconstitutional “As Applied”
              Lastly, we consider whether the PFEOA is unconstitutional as applied
to the disciplinary and expulsion decisions of College as a Catholic institution.


              The purpose of the PFEOA is to afford students equal opportunities in
education, “regardless of their race, religion, color, ancestry, national origin, sex,
handicap or disability.” Section 2 of the PFEOA, 24 P.S. §5002. Section 4(a) of
the PFEOA provides “... it shall be an unfair educational practice for an educational



       10
         Student also argues elimination of racial discrimination is an area of paramount state
concern that trumps any risk of entanglement. Because College did not show any risk of
entanglement to support a First Amendment defense at this stage, we do not reach this argument
and balance the interests.



                                              24
institution ... [t]o expel, suspend, punish, deny facilities or otherwise discriminate
against any student because of race ... [or] national origin ....” 24 P.S. §5004(a)(3).


              PFEOA defines “educational institutions” to include “any post-
secondary school, college or university incorporated or chartered under any general
law or special act of the General Assembly, except any religious or denominational
educational institutions as defined in this act.” Section 3 of the PFEOA, 24 P.S.
§5003 (definitions) (emphasis added). It defines religious educational institutions
as:

              an educational institution which is operated, supervised,
              controlled or sustained primarily by a religious or
              denominational organization, or is one which is stated by the
              parent church body to be and is, in fact, officially related to
              that church by being represented on the board of the
              institution, and by providing substantial financial assistance
              and which has certified, in writing, to the [C]ommission that it
              is a religious or denominational educational institution.

Id. (definitions) (emphasis added); see 16 Pa. Code §47.71. The Commission is
vested with the authority to administer the PFEOA. Section 5 of the PFEOA, 24
P.S. §5005.


              There is no dispute that College did not register as a religious
educational institution with the Commission. Regardless, a religious educational
institution is not exempt from race discrimination complaints. 16 Pa. Code §47.73.


              Significantly, College did not address this issue in its brief. Nor did
College explain how the PFEOA, a law that is neutral on its face, is



                                           25
unconstitutional as applied to College to enable this Court to consider this
argument. Accordingly, this issue is waived. Pa. R.A.P. 2119.


            Nonetheless, College’s constitutional challenge to the PFEOA should
be addressed by the Commission in the first instance. An “as applied” challenge to
the constitutionality of a statute administered by an agency is best addressed
initially by that agency. Lehman v. Pa. State Police, 839 A.2d 265 (Pa. 2003).
“[S]ubstantial policy reasons require exhaustion of administrative remedies where
the constitutional claims challenge only the application of the statute.” Funk v.
Dep’t of Envtl. Prot., 71 A.3d 1097, 1102 (Pa. Cmwlth. 2013). As our Supreme
Court reasoned:

            [i]t is both sensible and efficient to permit administrative
            agencies to address constitutional challenges to a statute's
            application. First, the agency is given an opportunity to
            interpret the statute it is charged with administering to avoid
            an unconstitutional application. Second, agencies currently
            decide challenges to the constitutionality of regulations;
            administrative competency is not an issue. Third, agencies are
            better situated than the courts to develop agency-specific
            issues, and to find facts. Fourth, refusing to consider
            constitutional challenges to a statute’s application allows
            litigants to circumvent the exhaustion of administrative
            remedies doctrine before seeking judicial review.

Lehman, 839 A.2d at 276 (quotation omitted).


            Moreover, as contrasted with a facial constitutional challenge, an as-
applied challenge is concerned with the specific application of a statute based on
the facts as found by the agency. In this procedural posture, on a motion to dismiss
for lack of jurisdiction, the Commission has not reached the fact-finding stage.


                                        26
Consequently, the record does not contain sufficient facts to determine whether the
PFEOA is unconstitutional as applied.11


               Nevertheless, College’s allegations that applying the PFEOA would
embroil the Commission in ecclesiastical matters are based on the assumption that
all disciplinary decisions implicate Catholic doctrine. We cannot assume that the
alleged entanglement will occur without a showing that the racial discrimination
claim and related investigation requires interpretation of Catholic doctrine.
College cites no religious decision or doctrine as the basis for this contention in its
briefs, nor did it identify any ecclesiastical issue in which the Commission may
become entangled when repeatedly asked during oral argument.


                                       III. Conclusion
               For the foregoing reasons, College is not categorically excluded from
the definition of “public accommodation” based on the similarity of Catholic
colleges to parochial primary and secondary schools. We decline to extend Roman
Catholic to exclude Catholic colleges from Commission jurisdiction over
discrimination complaints.


               Ultimately, College cites no authority to support its contention that
expulsion decisions of a Catholic college are entitled to deference under the


       11
           Generally, when evaluating a statute’s constitutionality under the religion clauses of
the First Amendment, the courts consider: whether the act reflects a secular legislative purpose;
whether the primary effect of the act is to advance or inhibit religion; whether administration of
the act fosters excessive entanglement with religion; and, whether implementation of the act
inhibits the free exercise of religion. Lemon v. Kurtzman, 403 U.S. 602, 678 (1971).



                                               27
deference rule. At this stage of the proceedings, applying Connor, Student’s racial
discrimination claims are susceptible to decision under neutral principles of law.
The Commission is capable of making that determination as the fact-finder.
Because College identified no ecclesiastical matter in which the Commission may
become entangled, as it articulated no doctrinal basis for its alleged discrimination,
the Commission may initially consider Student’s claim without risk of
entanglement.


             Failing to articulate how the Act or PFEOA infringe its religious
autonomy, College did not meet its threshold burden for a claim under the religion
clauses of the First Amendment. Moreover, were this Court to construe the First
Amendment as College requests, any church-related institution’s decisions would
be immune from suit based on unexplained references to church doctrine.


             Regardless, whether PFEOA is unconstitutional “as applied” to
College should be decided in the first instance by the Commission.           Because
College has not demonstrated a basis to deny the Commission initial jurisdiction,
we affirm its denial of College’s Motion.         This matter is remanded to the
Commission for further proceedings consistent with this opinion.




                                       ROBERT SIMPSON, Judge




                                         28
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Chestnut Hill College,                  :
                         Petitioner     :
                                        :
            v.                          :   No. 844 C.D. 2016
                                        :
Pennsylvania Human Relations            :
Commission,                             :
                      Respondent        :



                                      ORDER

            AND NOW, this 7th day of April, 2017, the order of the Pennsylvania
Human Relations Commission is AFFIRMED, and the matter is remanded to the
Commission for further proceedings.



                                       ROBERT SIMPSON, Judge
