LEGAL
Catholic School Wrongly Fired Gay Substitute Teacher
Federal judge fi nds teacher proved a clear violation of Title VII
BY ARTHUR S. LEONARD
In 2014, after federal courts
ruled that North Carolina
had to allow same-sex couples
to marry, Lonnie Billard
and his long-time partner Richard
Donham decided to marry. Billard
posted an exuberant announcement
on his Facebook page for his
friends only, and he ended that
announcement by stating, “If you
don’t agree with this. . . keep it to
yourself. You never asked my opinion
about your personal life and I
am not asking yours.”
Among Billard’s Facebook
friends were staff and parents
associated with Charlotte Catholic
High School, where he had
taught as a substitute English
teacher since 2012, after a decade
as a full-time member of the faculty
teaching English and Drama.
His friends did not keep the news
to themselves, and the school
stopped calling Billard as a substitute.
When he asked why, he was
told by the assistant principal that
it was because he “announced his
intention to marry a person of the
same sex.”
Billard had been a very successful
teacher at Charlotte Catholic.
He won the Inspirational Educator
Award from North Carolina State
University in 2011 and the Charlotte
Catholic Teacher of the Year
Award in 2012. He had been nominated
for that award “every year
since its inception,” according to
the man who was principal of the
school at that time. He had been
associated with the school since
2000, and throughout that time he
had been in a “romantic relationship”
with Donham, whom he listed
on Charlotte Catholic employee
contact forms as his “friend” or
“housemate,” and who was identifi
ed on some forms as living at the
same address as Billard. Donham
came to Charlotte Catholic events
with Billard, accompanying him
on class trips to New York City
with the drama students to see
musicals, and had even served as
a substitute teacher when Billard
was teaching English full-time.
Lonnie Billard and Rich Donham.
Donham also substituted at the
Charlotte Diocese’s middle school.
Billard claimed that members of
the high school’s administration
knew that he was gay, but the current
principal and assistant principal
both claimed, rather incredibly,
that they were not aware of his
sexual orientation until his Facebook
post in December 2014.
The Catholic Church is outspokenly
opposed to same-sex marriage,
and Catholic schools, which
have employed many lesbians and
gay men as teachers, have consistently
dismissed those employees,
regardless of how they have performed
their jobs, upon fi nding out
that they intended to or had married
same-sex partners. The de facto
position of the Church sounds
like the federal government’s old
“don’t ask, don’t tell” policy on gay
military service. They were happy
to employ qualifi ed gay people as
ministers (especially church musicians)
and teachers, so long as the
employees were quiet about being
gay and did not go public on samesex
marriages, which the Church
saw as defying Catholic doctrine
and setting a bad example for congregants
and students.
Billard fi led a charge with the
Equal Employment Opportunity
Commission (EEOC) in May 2015,
claiming a violation of his rights
under Title VII, but at that time the
ACLU OF NORTH CAROLINA
EEOC had not yet issued its ruling
that it would investigate and prosecute
sexual orientation claims under
Title VII’s ban on discrimination
because of sex. Ironically, the EEOC
issued such a decision, in the case of
gay air traffi c controller David Baldwin,
in July 2015, shortly after the
Supreme Court ruled in June 2015
in the Obergefell case that same-sex
couples had a constitutional right
to marry. Billard’s charge was still
pending with the EEOC at that time,
but perhaps the school’s religious
defenses discouraged the EEOC
from pursuing Billard’s case directly,
as it decided not to sue Charlotte
Catholic High School on his behalf,
instead issuing a “Notice of Right
to Sue Letter” to him in November
2016. He obtained representation
from the ACLU Foundation and its
North Carolina affi liate, which fi led
suit against the school in 2017.
On September 3, US District
Judge Max O. Cogburn, Jr., of the
federal district court in Charlotte,
granted summary judgment to Billard
and denied summary judgment
to the school, fi nding that
Billard had proven a clear violation
of Title VII and that none of the defenses
argued by the school were
valid.
The school argued that it had
not fi red Billard because is gay,
but rather because he supports
gay marriage, which the Catholic
Church opposes. The school argued
that under the First Amendment’s
protection for free exercise
of religion, it is privileged to discharge
teachers who disagree with
the Church’s positions. The school
also argued that it was protected
from liability by two sections of Title
XII that relieve religious institutions,
including religious schools,
from complying with the statute’s
ban on discrimination because of
religion. The school further cited a
“church autonomy doctrine” under
the First Amendment, which prohibits
“excessive government intrusion
upon religion” and which
includes the so-called “ministerial
exception” that the Supreme Court
has identifi ed as sheltering religious
institutions from any liability
for their employment decisions
regarding ministers. The school
also cited the Religious Freedom
Restoration Act, arguing that this
federal statute would prevent the
court from holding it liable for discrimination
under Title VII.
The school actually disclaimed
any contention that Billard comes
within the ministerial exception,
but to be on the safe side, Judge
Cogburn explained why Billard’s
duties as a substitute teacher did
not come within the scope of that
exception, as most recently described
by the Supreme Court last
year in a Catholic schoolteacher
case, Our Lady of Guadalupe
School v. Morrissey-Berru. Despite
the Supreme Court’s broad defi nition
of the exception to extend to
any religious school teacher who
performed any religious functions,
the judge concluded that Billard’s
charge to lead a prayer at the beginning
of each class was too minimal
to excuse the School from complying
with Title VII in his case. He
was not hired to teach religion.
Judge Cogburn rejected the
school’s argument that discharging
somebody for announcing his plans
to marry a same sex partner was
not discriminating against him because
of his sex (or sexual orientation),
drawing a comparison to Su-
➤ SUBSTITUTE TEACHER, continued on p.15
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