UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DONALD E. CLAPPER,
Plaintiff-Appellant,

v.

CHESAPEAKE CONFERENCE OF
SEVENTH-DAY ADVENTISTS,
                                                                  No. 97-2648
Defendant-Appellee,

and

LON GRUESEBECK; COLUMBIA
UNION OF SEVENTH-DAY ADVENTISTS,
Defendants.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.
(CA-95-832-WMN)

Argued: October 29, 1998

Decided: December 29, 1998

Before WILKINS, HAMILTON, and LUTTIG, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Thomas James Gagliardo, GAGLIARDO & ZIPIN, Sil-
ver Spring, Maryland, for Appellant. Paul D. Raschke, BOULAND &
BRUSH, L.L.C., Baltimore, Maryland, for Appellee. ON BRIEF:
John E. Hilsman, GAGLIARDO & ZIPIN, Silver Spring, Maryland,
for Appellant. H. Dean Bouland, Catherine C. Hester, BOULAND &
BRUSH, L.L.C., Baltimore, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Donald Clapper (Clapper), a former elementary school teacher at
Mt. Aetna Academy in Hagerstown, Maryland, brought this civil
action against his employer, the Chesapeake Conference of the
Seventh-day Adventists (the Chesapeake Conference), alleging dis-
criminatory discharge and discriminatory failure to transfer (1) on
account of his age (fifty-nine) in violation of the Age Discrimination
in Employment Act (ADEA), see 29 U.S.C.§ 623(a)(1), (2) on
account of his race (Caucasian) in violation of Title VII of the Civil
Rights Act of 1964, see 42 U.S.C. § 2000e-2(a)(1), and (3) in breach
of his employment contract. Clapper now appeals the district court's
grant of the Chesapeake Conference's alternative motions to dismiss
his entire action for lack of subject matter jurisdiction or for summary
judgment, and the district court's denial of his post-judgment motion
for reconsideration. The district court granted the Chesapeake Confer-
ence's alternative motions on the ground that Clapper's action is
barred by the First Amendment's Free Exercise of Religion Clause
(the Free Exercise Clause), see U.S. Const. amend. I, and denied his
motion for reconsideration as being without merit. For reasons that
follow, we affirm.

I.

The Chesapeake Conference is the unit of the Seventh-day Advent-
ist Church that operates, based on a traditional 180-day school year,

                    2
private religious elementary and secondary schools throughout most
of Maryland and in some neighboring states. Among these schools is
Mt. Aetna Academy, which offers education at the elementary school
level. Specifically, Mt. Aetna Academy offers education from kinder-
garten through eighth grade.

The Chesapeake Conference operates its schools pursuant to a writ-
ten education code (the Education Code), which is incorporated into
all contracts between the Chesapeake Conference and the teachers in
its employ. The schools have an express and avowedly sectarian pur-
pose, which is most comprehensively expressed in the Education
Code. Indeed, the following passages of the Education Code make
clear that the Seventh-day Adventists consider the primary purpose of
their elementary and secondary schools to be the salvation of each
student's soul through his or her indoctrination in Seventh-day
Adventist theological beliefs. Section 1013 of the Education Code
provides:

         [t]he Seventh-day Adventist Church in North America oper-
         ates a program of education, kindergarten through univer-
         sity, that began in 1872. The Church's belief regarding
         Christian education is based on the Scriptures and the writ-
         ings of Ellen G. White1 which have provided the Church
         with a distinct philosophy of education. . . .

         The aim of Seventh-day Adventist education is the redemp-
         tion of each student.

(J.A. 260) (emphasis added). The Education Code elaborates on these
pronouncements in § 1019:

        Seventh-day Adventists conduct their own schools, elemen-
        tary through university, for the purpose of transmitting to
        their children their own ideals, beliefs, attitudes, values,
        habits and customs. The government maintains a highly
        developed public school system for making citizens; but in
        addition to being patriotic, law-abiding citizens, Seventh-
_________________________________________________________________

1 Ellen G. White was the founder of the Seventh-day Adventist Church.

                   3
          day Adventists want their children to be loyal, conscientious
          Christians. There is peculiar to the Church a body of knowl-
          edge, values and ideals that must be transmitted to the youn-
          ger generation so the Church may continue to exist. In this
          process the Biblical principle of social transmission is rec-
          ognized: "Tell ye your children of it, and let your children
          tell their children, and their children another generation."
          (Joel 1:3).

(J.A. 261). Finally, the Education Code establishes at § 1028 that the
Seventh-day Adventist School is the Church:

          Criteria That Identifies the Seventh-day Adventist School as
          the Church:

          1. The mission of the school and the Church are identical
          --redemption is the task. . . .

            a. In studying the great commission, Matthew 28:18-
          20, the basic task of the Church is an educational
          task.

             b. The Seventh-day Adventist school system has as its
          basic evangelistic task the redemption and educa-
          tion of the children and youth. In pursuing this task,
          it influences them more continuously than any other
          agency of the Church.

             c. The Church operates a school system to ensure that
          its youth may receive a balanced physical, mental,
          moral, social and practical education. The primary
          aim of each Seventh-day Adventist educational
          institution is to reflect accurately and to uphold the
          principles of the Seventh-day Adventist Church.
          Seventh-day Adventist schools are to be an effec-
          tive influence in the salvation of our youth and pro-
          vide the workers for the world-wide task of the
          Church. The stated interest of the Church is the
          optimum development of the whole child for both
          this life and the life hereafter.

                    4
(J.A. 265) (emphasis added).

Per the Education Code, the avowed sectarian purpose of Seventh-
day Adventist elementary schools is carried out through mandatory
devotional periods at the beginning and close of each school day,
mandatory witnessing and service activities, formal instruction in the
teachings of the Bible according to Seventh-day Adventist theology
on a daily basis, and incorporation of Seventh-day Adventist theologi-
cal beliefs in the traditional academic curriculum. Two examples of
incorporation of Seventh-day Adventist theological beliefs into the
traditional academic curriculum are the teaching of the Bible's story
of creation in science classes and the teaching of the influence of reli-
gion on the events of history in social studies classes. One full-time
elementary school teacher per grade leads his or her students in these
prayer, worshiping, witnessing, and service activities. The same
teacher also performs the formal Bible instruction and teaches his or
her students the traditional academic curriculum.

In accord with the avowed sectarian purpose of Seventh-day
Adventist elementary schools, § 4010 of the Education Code requires
that the beliefs and practices of every teacher employed by the Chesa-
peake Conference be in complete harmony with the beliefs and prac-
tices of the Seventh-day Adventist Church. Furthermore, pursuant to
various sections of the Education Code, teachers at Seventh-day
Adventist schools must be tithe paying members of the Seventh-day
Adventist Church and are expected to participate in church activities,
programs, and finances. They are also required to maintain a working
knowledge of the Education Code and to read on an annual basis
appropriate texts on religion.

In addition to leading students in prayer, formally instructing stu-
dents in the teachings of the Bible according to Seventh-day Advent-
ist theology, leading the students in witnessing and service activities,
and otherwise imparting Seventh-day Adventist theology through the
traditional academic curriculum, the Chesapeake Conference offers
several examples of the ministerial nature of its full-time elementary
school teaching positions. First, pursuant to the working policy of the
North American Division of the General Conference of Seventh-day
Adventists, a policy incumbent upon the Chesapeake Conference, up
to thirty percent of a teacher's salary can be funded by Church tithes.

                    5
The primary purpose of Church tithes is to support an evangelistic
ministry.2 Second, the Seventh-day Adventist Church awards a "Com-
missioned Ministry of Teaching Credential" to its full-time elemen-
tary school teachers who, although they may not have undergone
formal ministerial training, have demonstrated great experience and
spiritual commitment to the Church. According to Clapper, this cre-
dential "was to somewhat put teachers on a ministerial standing in the
church because of the role we played with leading students in their
spiritual life . . . ." (J.A. 126-27). And third, the professional ethics
section of the Education Code requires Seventh-day Adventist teach-
ers to "[l]ook upon Christian teaching as a holy vocation." (J.A. 285).

Clapper emphasizes that of the thirteen general responsibilities of
full-time elementary school teachers specifically listed in the Educa-
tion Code, only one is explicitly religious--requiring teachers to pro-
vide a dynamic environment with emphasis on Christian living and
effective learning--none are sacerdotal, and none involve church
governance. Representative examples of the other twelve are estab-
lishing and maintaining effective classroom organization, assuming
responsibility for professional self-improvement, participating in
church and community services, and developing effective relation-
ships with parents, patrons and colleagues. The Education Code pro-
vides that this list is not exclusive. Clapper also emphasizes that per
the Education Code, the Chesapeake Conference has a policy of not
discriminating in employment matters on the basis of race, national
_________________________________________________________________
2 The policy of using tithes for support of Seventh-day Adventist
Schools is predicated on a statement made by Ellen G. White in about
1899, which is quoted in the Working Policy of the North American
Division of the General Conference of Seventh-day Adventists: "Our
conferences . . . should give the schools a most hearty and intelligent
support. Light has been plainly given that those who minister in our
schools, teaching the Word of God, explaining the Scriptures, educating
the students in the things of God, should be supported by tithe money."
(J.A. 251). Furthermore, according to the Working Policy of the North
American Division of the General Conference, the reason for the thirty
percent limit on the use of tithe funds to pay elementary school teachers'
salaries is the belief that thirty percent represents "a reasonable basis on
which to evaluate the time devoted by elementary teachers to Bible
instruction and spiritual nurture." (J.A. 251).

                    6
origin, gender, color, age, marital status, disability or any other basis
prohibited by law.

We now turn to the specifics of Clapper's employment with the
Chesapeake Conference. The Chesapeake Conference employed
Clapper through annual employment contracts as a full-time teacher
at Mt. Aetna Academy at various grade levels from 1973 through the
school year ending in May 1993. Throughout his teaching career at
Mt. Aetna Academy, Clapper led his students in prayer in the morn-
ing, at lunch, at the end of the school day, and at any time throughout
the day if a student made a special request for prayer. He also con-
ducted worship each day with his students for approximately ten min-
utes. Furthermore, on a daily basis he taught Bible as a formal part
of the school curriculum and Seventh-day Adventist theology when
incorporated into the traditional academic curriculum. Moreover, as
required by the Education Code, Clapper engaged his students in the
practice of witnessing, which encourages them to apply their faith in
a practical way.

In accord with the Education Code, while Clapper taught at Mt.
Aetna Academy, he was an active, tithe-paying member of the
Seventh-day Adventist Church. On January 20, 1991, the Chesapeake
Conference awarded Clapper a Commissioned Ministry of Teaching
Credential. Furthermore, thirty percent of Clapper's salary came from
Seventh-day Adventist Church tithes.

In March 1993, by letter the Chesapeake Conference notified Clap-
per, who was fifty-nine years old at the time, that his contract would
not be renewed for the 1993-1994 school year. The letter cited two
reasons for the nonrenewal--insufficient enrollment and lack of funds
needed to support the present number of teachers currently employed
at Mt. Aetna Academy. By way of an affidavit of the Superintendent
of Schools of the Chesapeake Conference, Lon Gruesebeck, the Ches-
apeake Conference also cites a history of performance problems and
complaints from parents and students as additional factors motivating
its decision not to renew Clapper's contract. The record contains neg-
ative teacher evaluations of Clapper by former students, parents, and
the principal of Mt. Aetna Academy.

Clapper subsequently filed the present action in which he primarily
alleges that the Chesapeake Conference's decisions not to renew his

                     7
full-time teaching contract for the 1993-1994 school year at Mt.
Aetna Academy, or transfer him to another elementary school within
its jurisdiction, violated his rights under Title VII, see 42 U.S.C.
§ 2000e--2(a)(1), and the ADEA, see 29 U.S.C. § 623(a)(1), and
amounted to a breach of his employment contract. Clapper also
alleges that the Chesapeake Conference's failure to offer him the part-
time position at Mt. Aetna Academy of music instructor/school librar-
ian for the 1993-1994 school year violated his rights under Title VII
and the ADEA, and amounted to a breach of his employment con-
tract.

Prior to discovery, the Chesapeake Conference moved to dismiss
Clapper's action pursuant to Federal Rule of Civil Procedure 12(b)(6)
for failure to state a claim upon which relief could be granted, and
alternatively moved for summary judgment pursuant to Federal Rule
of Civil Procedure 56. The district court denied the alternative
motions, but granted the Chesapeake Conference leave to renew them
at the close of discovery.

At the close of discovery, the Chesapeake Conference moved to
dismiss Clapper's action pursuant to Federal Rule of Civil Procedure
12(b)(1) for lack of subject matter jurisdiction on the ground that con-
tinued enforcement of Clapper's action would violate its rights under
the Free Exercise Clause and the Establishment Clause of the First
Amendment. The Chesapeake Conference alternatively moved for
summary judgment based on the same grounds. The alternative
motions did not challenge any of Clapper's claims on the merits.

Agreeing with the Chesapeake Conference that continued enforce-
ment of Clapper's action would violate its rights under the Free Exer-
cise Clause, the district court granted the Chesapeake Conference's
alternative motions without addressing whether the Establishment
Clause required dismissal also. Clapper sought reconsideration of the
district court's decision by motion, apparently pursuant to Federal
Rule of Civil Procedure 59(e), purportedly to correct an error of law
and to account for the information contained in an affidavit prepared
by himself after the district court dismissed his action. In that affida-
vit, Clapper attempts to downplay the ministerial nature of his former
teaching positions at Mt. Aetna Academy by asserting that the time
he spent instructing his students in Bible and leading them in worship

                     8
constituted only 10.6 percent of his work week. Clapper also specu-
lated that the Commissioned Ministry of Teaching Credential was
created to immunize the Seventh-day Adventist Church from law-
suits. Finally, Clapper asserted, based upon his layman's review of
certain financial documents, that none of his salary was funded by
tithe funds.

The district court denied Clapper's Rule 59(e) motion on the
grounds that it had already considered and rejected Clapper's legal
arguments and the characterization of his employment in his affidavit
was untimely and "wholly inconsistent with the view he previously
expressed in this litigation regarding the religious nature of his posi-
tion." (J.A. 80). This appeal followed.

II.

In order to properly analyze the merits of the district court's grant
of the Chesapeake Conference's alternative motions to dismiss for
lack of subject matter jurisdiction or for summary judgment, we must
first consider the propriety of the district court's denial of Clapper's
Rule 59(e) motion to the extent Clapper premised it upon the informa-
tion in his attached affidavit. This is because we need to know
whether to consider or refrain from considering the information con-
tained in Clapper's affidavit in our review of the propriety of the dis-
trict court's granting of the alternative motions.

Rule 59(e) provides that an aggrieved party may file a motion to
alter or amend a judgment within ten days of its entry. Although Rule
59(e) does not itself provide any standard for when the grant of such
a motion is appropriate, this court has recognized three alternative
grounds: "(1) to accommodate an intervening change in controlling
law; (2) to account for new evidence not available at trial; or (3) to
correct a clear error of law or prevent manifest injustice." Pacific Ins.
Co. v. American Nat'l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir.
1998). "The Rule 59(e) motion may not be used to relitigate old mat-
ters, or to raise arguments or present evidence that could have been
raised prior to the entry of judgment." 11 Wright, Miller, and Kane,
Federal Practice and Procedure § 2810.1, at 127-28 (2d ed. 1995)
(footnotes omitted). We review a district court's refusal to grant a

                     9
Rule 59(e) motion for abuse of discretion. See Pacific Ins. Co., 148
F.3d at 403.

Here, all of the information presented in Clapper's affidavit could
have been presented prior to the district court's ruling on the alterna-
tive motions. Accordingly, the district court did not abuse its discre-
tion by denying Clapper's motion to the extent he premised it upon
the information contained in his attached affidavit. We, therefore, will
not consider any of the information in our analysis of the merits of
the district court's grant of the Chesapeake Conference's alternative
motions to dismiss and for summary judgment.

III.

We now address the propriety of the district court's dismissal of
Clapper's action for lack of subject matter jurisdiction pursuant to
Rule 12(b)(1). The existence of subject matter jurisdiction is a legal
question, which we review de novo. See Yarnevic v. Brink's, Inc., 102
F.3d 753, 754 (4th Cir. 1996).

The district court below concluded that continued maintenance of
Clapper's action would violate the Chesapeake Conference's rights to
the free exercise of religion as guaranteed by the First Amendment's
Free Exercise Clause, and therefore, Clapper's action had to be dis-
missed. The Free Exercise Clause, which is applicable to the States
through the Fourteenth Amendment, see Cantwell v. Connecticut, 310
U.S. 296, 303 (1940), provides that "Congress shall make no law . . .
prohibiting the free exercise of" religion. U.S. Const. amend. I. In
accord with this prohibition, "decisions of religious entities about the
appointment and removal of ministers and persons in other positions
of similar theological significance are beyond the ken of civil courts."
Bell v. Presbyterian Church (U.S.A.), 126 F.3d 328, 331 (4th Cir.
1997); see also E.E.O.C. v. Catholic University of America, 83 F.3d
455, 461 (D.C. Cir. 1996). This litigation bar applies in the context
of state common law and federal statutory causes of action. See Bell,
126 F.3d at 330 (claims for interference with contract; intentional
infliction of emotional distress; breach of covenant of good faith and
fair dealing; interference with prospective advantage; and wrongful
termination); Minker v. Baltimore Annual Conference of the United
Methodist Church, 894 F.2d 1354, 1358 (D.C. Cir. 1990) (ADEA

                    10
claim); Rayburn v. General Conference of Seventh-day Adventists,
772 F.2d 1164, 1165 (4th Cir. 1985) (Title VII claims).

Here, we first consider whether the Free Exercise Clause required
dismissal of Clapper's Title VII, ADEA, and state common law
breach of contract claims challenging the Chesapeake Conference's
decisions not to renew his teaching contract at Mt. Aetna Academy
for the 1993-1994 school year or transfer him to another elementary
school within its jurisdiction. Whether the Free Exercise Clause
required dismissal "does not depend upon ordination but upon the
function of the position . . ." at issue. Rayburn, 772 F.2d at 1168. "As
a general rule, if the employee's primary duties consist of teaching,
spreading the faith, church governance, supervision of a religious
order, or supervision or participation in religious ritual and worship,
he or she should be considered clergy." Id. at 1169 (internal quotation
marks omitted). The parties refer to this inquiry as the "primary duties
test."

The primary duties test "necessarily requires a court to determine
whether a position is important to the spiritual and pastoral mission
of the church." Id. Furthermore, while it is our duty to determine
whether the position of a full-time elementary school teacher is
important to the spiritual mission of the Seventh-day Adventist
Church, we may not further inquire whether the reasons for the Ches-
apeake Conference's decisions not to renew Clapper's contract for the
1993-1994 school year at Mt. Aetna Academy, or transfer him to
another elementary school within its jurisdiction, had some explicit
grounding in theological belief. See id. This is because "[i]n quint-
essentially religious matters, the free exercise clause of the First
Amendment protects the act of a decision rather than the motivation
behind it. In these sensitive areas, the state may no more require a
minimum basis in doctrinal reasoning than it may supervise doctrinal
intent." Id. (internal quotation marks and citation omitted).

Clapper contends that application of the primary duties test results
in the conclusion that the Free Exercise Clause does not bar his claims
challenging the Chesapeake Conference's decisions not to renew his
contract to teach at Mt. Aetna Academy for the 1993-1994 school
year or transfer him to another elementary school within its jurisdic-
tion. Clapper largely relies upon three factual circumstances in sup-

                    11
port of his contention. First, Clapper relies upon the fact that of the
thirteen general responsibilities of full-time elementary school teach-
ers listed in the Education Code, only one is explicitly religious, none
are sacerdotal and none involve church governance. Second, he relies
upon the Seventh-day Adventist Church's thirty-percent limit on the
use of tithe funds to pay teachers' salaries. Because the primary pur-
pose of tithe funds is to support the evangelistic ministry of the
Seventh-day Adventist Church, Clapper posits that at most thirty per-
cent of full-time teachers' duties at elementary schools operated by
the Chesapeake Conference can be considered to involve teaching and
spreading the faith and/or supervision or participation in religious rit-
ual and worship. Third and finally, Clapper relies upon the Chesa-
peake Conference's policy against making employment decisions
because of race, national origin, gender, color, age, marital status, dis-
ability or any other basis prohibited by law as indicia of its acceptance
of secular intervention in its employment decisions.

After considering the uncontradicted evidence in this case, we con-
clude the primary duties of full-time teachers at elementary schools
operated by the Chesapeake Conference consist of teaching and
spreading the Seventh-day Adventist faith and supervising and partic-
ipating in religious ritual and worship. As set forth previously, the
Education Code of the Chesapeake Conference makes abundantly
clear in several provisions that the primary purpose of Seventh-day
Adventist elementary education is the redemption of each student's
soul through his or her belief and faithful adherence to Seventh-day
Adventist theological beliefs, i.e., propagation of the Seventh-day
Adventist faith. Nothing in the record suggests the Chesapeake Con-
ference actually operated or continues to operate its elementary
schools for a different primary purpose. Furthermore, the Education
Code makes clear that in pursuing this primary purpose, the Seventh-
day Adventist school system "influences" the youth of the Seventh-
day Adventist Church "more continuously than any other agency of
the church." (J.A. 265). Not surprisingly, therefore, the Seventh-day
Adventist Church relies heavily upon its full-time, elementary school
teachers to carry out its sectarian purpose. In light of this reliance, it
is understandable that the Chesapeake Conference requires all of its
full-time, elementary school teachers to exemplify the teachings of
the Seventh-day Adventist faith in their personal and professional
lives. The purpose of this requirement is obvious--the Chesapeake

                     12
Conference desires to insure that the minds of its youth are shaped by
model members of the Seventh-day Adventist faith. 3 When all of
these circumstances are considered in combination with the fact that
on a daily basis for at least 180-days per year, these teachers formally
instruct their students in the teachings of the Bible as understood by
the Seventh-day Adventist Church, teach the traditional academic cur-
riculum, which incorporates the teachings of the Seventh-day Advent-
ist Church whenever possible, lead their students in prayer at various
times during the day, lead their students in worship at the beginning
of the day for about ten minutes, and lead their students in witnessing
activities, we are constrained to conclude that the primary duties test
is satisfied.

The factual circumstances relied upon by Clapper do not alter our
analysis. First, the fact that only one of the thirteen general responsi-
bilities listed in the Education Code is explicitly religious is of no
moment, because nothing in the Education Code suggests that the dif-
fering general responsibilities are considered of equal importance and
the Education Code expressly states that the list is not exhaustive.

Second, the fact that only thirty-percent of a teacher's salary can
be paid with tithe funds is of little relevance. Clapper's reliance upon
this factual circumstance incorrectly limits the primary duties test to
a purely quantitative test rather than one that obviously has both
quantitative and qualitative elements. What is of constitutional signif-
icance is whether, in the total mix of circumstances, enforcement of
Clapper's action would substantially infringe upon the Chesapeake
Conference's right to choose its spiritual leaders. While the relative
quantity of time an employee of a religious entity spends directly
teaching and spreading the faith, providing church governance, super-
vising a religious order, or supervising or participating in religious rit-
ual and worship is important in determining whether those activities
are the primary duties of such employee, the degree of the church
entity's reliance upon such employee to indoctrinate persons in its
theology is equally important. And, for the reasons previously set
forth, the quantitative and qualitative combination of factual circum-
_________________________________________________________________
3 Indeed, in the case of Clapper, that the Chesapeake Conference con-
sidered him a spiritual leader of his students is partly evidenced by the
fact that thirty percent of his salary came from tithe funds.

                     13
stances in the present case compels us to conclude that the primary
duties test is satisfied.4

Third, the fact that the Chesapeake Conference follows an internal
policy of not basing employment decisions on otherwise legally pro-
hibited reasons does not in any way indicate its acceptance of secular
intervention in its employment decisions. Nothing in the Education
Code suggests otherwise.

In sum, with respect to Clapper's claims involving a full-time
teaching position at Mt. Aetna or another elementary school within
the Chesapeake Conference's jurisdiction, we hold the district court
did not err in granting the Chesapeake Conference's Rule 12(b)(1)
motion to dismiss for lack of subject matter jurisdiction. The motion
was properly granted because continued enforcement of these claims
would substantially infringe upon the Chesapeake Conference's rights
to freely exercise its religion as guaranteed by the First Amendment's
Free Exercise Clause. We caution, however, that the primary duties
test is a very fact specific test, and therefore, our holding today is lim-
ited to the facts before us.

IV.

In light of our holding, we, like the district court, do not consider
whether the First Amendment's Establishment Clause would also
require dismissal of Clapper's claims involving a full-time teaching
position at Mt. Aetna or another elementary school within the Chesa-
_________________________________________________________________
4 The record contains insufficient information regarding the specific
duties of the position of part-time music teacher/librarian at Mt. Aetna
Academy for us to conclude the Free Exercise Clause also required dis-
missal of Clapper's claims related to this position. Nevertheless, we
affirm the district court's grant of the Chesapeake Conference's alterna-
tive motion for summary judgment with respect to Clapper's claims
related to this position, because the undisputed evidence establishes that
the Chesapeake Conference did not have any role in the decision not to
place Clapper in that position for the 1993-1994 school year. Rather, the
undisputed evidence establishes that the principal of Mt. Aetna Academy
alone had discretion to make the decision, made the decision, and funded
the position with discretionary funds at his disposal as principal.

                     14
peake Conference's jurisdiction. Furthermore, having concluded that
dismissal of these claims under Rule 12(b)(1) for lack of subject mat-
ter jurisdiction was proper, we do not consider whether the district
court's alternative grant of summary judgment in favor of the Chesa-
peake Conference with respect to these claims was proper. Finally, in
light of our other holdings, we hold the district court did not abuse
its discretion in any manner in denying Clapper's Rule 59(e) motion.
The judgment of the district court is, accordingly, affirmed.

AFFIRMED

                    15
