John doe's petition for writ of mandamus.
The Episcopal School of Dallas, Inc.(ESD), Meredyth Cole, Jeffrey Laba, and Donna Hull Appeal from 68th Judicial District Court of Dallas County (opinion).
Meredyth Moredock Cole, the headmaster of ESD (The Episcopal School of Dallas), has been named the new head of school at The Lovett School in Buckhead effective July 1, 2018. Cole has been head of school in Dallas since 2013.
Petition against Meredyth Cole, the headmaster of the Episcopal School of Dallas(ESD)
John Doe V ESD, Meredyth Cole | John doe's petition for writ of mandamus | Episcopal School of Dallas
1. No. 17-_____
_____________________________________________________________
The Supreme Court of Texas
_____________________________________________________________
IN RE JOHN DOE, INDIVIDUALLY AND AS
NEXT FRIEND FOR JOHN DOE, JR., A MINOR
_____________________________________________________________
Original Proceeding
From the Fifth Court of Appeals - Dallas
Cause No. 05-17-00493-CV
_____________________________________________________________
PETITION FOR WRIT OF MANDAMUS
_____________________________________________________________
Craig T. Enoch
Marla D. Broaddus
Shelby O’Brien
ENOCH KEVER PLLC
5918 W. Courtyard Dr. Suite 500
Austin, Texas 78730
512.615.1200
512.615.1198 fax
Lawrence J. Friedman
FRIEDMAN & FEIGER, L.L.P.
5301 Spring Valley Road,
Suite 200
Dallas, Texas 75254
972.788.1400
972.788.2667 fax
ATTORNEYS FOR RELATORS
EMERGENCY RELIEF REQUESTED
FILED
17-1005
12/7/2017 9:43 PM
tex-21163971
SUPREME COURT OF TEXAS
BLAKE A. HAWTHORNE, CLERK
2. i
IDENTITY OF PARTIES AND COUNSEL
Relators: John Doe (“Doe”), individually and as next friend
for John Doe, Jr., a minor (“Doe, Jr.”)
(collectively, “the Doe Family”)1
Relator’s Trial Counsel: Lawrence J. Friedman
Lance Pool (no longer with firm)
FRIEDMAN & FEIGER, L.L.P.
5301 Spring Valley Road, Suite 200
Dallas, Texas 75254
John Sokatch
DYKEMA COX SMITH
1717 Main Street, Suite 4200
Dallas, Texas 75201
Relator’s Appellate
Counsel:
Craig T. Enoch
Marla D. Broaddus
Shelby O’Brien
ENOCH KEVER PLLC
5918 W. Courtyard Dr., Suite 500
Austin, Texas 78730
Christopher D. Kratovil
Kristina M. Williams
DYKEMA COX SMITH
1717 Main Street, Suite 4200
Dallas, Texas 75201
Respondent: Fifth Court of Appeals, Dallas, Texas
1
Because John Doe, Jr. was a minor at the time of the events giving rise to this matter, in this
mandamus proceeding and the proceedings below, Relators use the pseudonyms Doe and Doe Jr.
3. ii
Real Parties in Interest: The Episcopal School of Dallas, Inc. (“ESD”),
Meredyth Cole, Jeffrey Laba, and Donna Hull
Real Parties in Interest’s
Trial and Appellate
Counsel:
Ronald W. Johnson
J. William Conine
TOUCHSTONE, BERNAYS, JOHNSTON, BEALL,
SMITH & STOLLENWERCK, LLP
4040 Renaissance Tower
1201 Elm Street
Dallas, Texas 75270-2196
Karen S. Precella
Andrew W. Guthrie
HAYNES & BOONE, LLP
301 Commerce Street, Suite 2600
Fort Worth, Texas 76102-4140
4. iii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ............................................................ i
INDEX OF AUTHORITIES......................................................................................v
MANDAMUS RECORD......................................................................................... vi
STATEMENT OF THE CASE............................................................................... vii
STATEMENT OF JURISDICTION......................................................................viii
ISSUES PRESENTED...............................................................................................x
INTRODUCTION .....................................................................................................1
STATEMENT OF FACTS ........................................................................................3
A. ESD is a private school that claims to be religious institution
but has no affiliation with a particular church or church
doctrine..................................................................................................3
B. ESD made express promises to Doe about Doe Jr.’s education,
Doe paid tens of thousands in tuition dollars relying on these
promises, and ESD refused to honor the representations it
made. .....................................................................................................5
C. Doe filed suit to recover monetary damages caused by ESD and
the individual defendants. .....................................................................9
ARGUMENT...........................................................................................................11
I. The court of appeals abused its discretion by applying the
ecclesiastical abstention doctrine to bar claims against a private school
that concern secular education policies and do not implicate or require
resolution of religious doctrine......................................................................11
A. The ecclesiastical abstention doctrine is intended to protect
against state interference in a religious entity’s governance,
faith, and doctrine................................................................................11
B. This Court should clarify that the Doctrine does not shield a
private school, unaffiliated with a religious entity, from claims
that touch upon the school’s secular internal affairs...........................13
5. iv
C. Because the allegations and evidence show Doe’s claims
against ESD implicate ESD’s secular, educational internal
affairs, the court of appeals abused its discretion in applying the
Doctrine...............................................................................................16
II. Mandamus relief is available.........................................................................19
PRAYER..................................................................................................................20
CERTIFICATE OF COMPLIANCE.......................................................................21
MANDAMUS CERTIFICATION...........................................................................21
CERTIFICATE OF SERVICE ................................................................................22
APPENDIX..............................................................................................................23
6. v
INDEX OF AUTHORITIES
CASES
C.L. Westbrook, Jr. v. Penley,
231 S.W.3d 389 (Tex. 2007) .......................................................................passim
Masterson v. Diocese of Nw. Tex.,
422 S.W.3d 594 (Tex. 2013) ..............................................................................12
In re Prudential Ins. Co.,
148 S.W.3d 124 (Tex. 2004) ..............................................................................19
In re St. Thomas,
495 S.W.3d 500 (Tex. App.—Houston [14th Dist.] 2016, orig.
proceeding) ...................................................................................................14, 15
Tex. Dep’t of Parks & Wildlife v. Miranda,
133 S.W.3d 217 (Tex. 2004) ........................................................................16, 18
Tilton v. Marshall,
925 S.W.2d 672 (Tex. 1996) ..................................................................12, 13, 16
In re Vida,
No. 04-14-00636-CV, 2015 WL 82717 (Tex. App.—San Antonio
Jan. 7, 2015, orig. proceeding) ...............................................................13, 14, 15
STATUTES & CONSTITUTIONAL PROVISIONS
TEX. CIV. PRAC. & REM. CODE § 84.002....................................................................5
TEX. CIV. PRAC. & REM. CODE § 84.003....................................................................5
U.S. CONST. AMEND. I..............................................................................................11
7. vi
MANDAMUS RECORD
Relators have filed three volumes reflecting the Mandamus Record for this
matter.
• Two volumes contain the documents that the trial court did not order filed
under seal and are referred to in this Petition as “MR” for the first volume
and “2-MR” for the second volume.
• The volume with the documents that are being filed under seal per the trial
court’s protective order is referred to in this Petition as “SMR.”
8. vii
STATEMENT OF THE CASE
Nature of the
Case
Real Party in Interest Episcopal School of Dallas is a private
primary and secondary school that is unaffiliated with a church
and is governed by secular admissions, code of conduct, and
disciplinary policies. In direct violation of these policies and
express promises ESD made to Relator Doe—and after obtaining
great sums of Doe’s tuition dollars—ESD breached its promises
by requiring Doe’s son, John Doe Jr., to withdraw from the school.
ESD never refunded the thousands of dollars Doe paid. Thus, Doe,
individually and as next friend for his son, filed suit against ESD
and certain ESD employees for money damages. ESD filed a
counterclaim against Doe, alleging that Doe breached the
Enrollment and Tuition Agreement by suing ESD.
After litigating the case for well over a year, ESD and the
individual defendants employed by ESD filed a jurisdictional plea,
seeking dismissal of Doe’s claims based on the “ecclesiastical
abstention doctrine.” After considering Doe’s allegations and the
evidence presented, the trial court denied the plea.
ESD and the individual defendants filed a petition for writ of
mandamus. The Dallas Court of Appeals stayed the trial court
proceedings pending its decision.
Respondent Fifth Court of Appeals, Dallas, Texas
Respondent’s
Actions
Necessitating
Relief
The Dallas Court of Appeals conditionally granted mandamus
relief and ordered the trial court to dismiss the lawsuit. The court
of appeals concluded that: (1) ESD is a faith-based institution
“enjoying First Amendment Protection for the free exercise of
religion;” and (2) resolving Doe’s claims “would require a court to
pass judgment on the school’s internal affairs and governance—
matters exclusively within the province of an ecclesiastical
institution.” In re Episcopal Sch. of Dallas, Inc., No. 05-17-00493-
CV, 2017 WL 4533800, at *8-9 (Tex. App.—Dallas Oct. 11,
2017, orig. proceeding) (Appendix A). As such, the court held that
“the ecclesiastical abstention doctrine applies, the trial court lacks
subject-matter jurisdiction, and it abused its discretion by denying
Relators’ plea to the jurisdiction and motion to dismiss.”
Appendix A, at *9; see also Appendix B.
9. viii
STATEMENT OF JURISDICTION
This Court has jurisdiction over this mandamus proceeding for two reasons.
First, the Court has jurisdiction to consider an error of law that is important to the
jurisprudence of the state. TEX. GOV’T CODE § 22.001(a)(6). This Court has
discussed the boundaries of the ecclesiastical abstention doctrine (“Doctrine”) on a
handful of occasions. But this Court has never considered whether a private school
that claims to be a religious institution may rely on the Doctrine when the breach
and tort claims at issue concern the school’s secular promises and warranties about
the education of its students. The Dallas Court of Appeals applied the Doctrine to
the private school defendant here and the individual defendants employed by the
school, allowing them to evade liability for breach and fraud claims that implicate
the school’s secular education policies, not religious standards of conduct. This
Court’s guidance regarding the limits of the Doctrine in suits against private
schools, which often purport to wear “religious” hats but engage in relationships
and conduct of a purely secular nature, is important to the state’s jurisprudence.
Second, this Court has jurisdiction to issue a writ of mandamus against a
Texas court of appeals. TEX. GOV’T CODE § 22.002(a). The Dallas Court of
Appeals abused its discretion by misapplying this Court’s jurisprudence regarding
the standard applicable when determining a jurisdictional plea, ignoring the
plaintiff’s allegations and evidence, accepting the defendants’ allegations as
10. ix
conclusively proved, and holding that the Doctrine bars Doe’s claims. In doing so,
the Dallas court allowed a private school bound by no church or religious doctrine
to avoid its secular contractual promises and commit fraud. This Court should
exercise its original jurisdiction to address this error that, if not corrected, will lead
to confusion in the lower courts concerning the correct review standard for pleas to
the jurisdiction and will serve as precedent for the many private schools in our
state that may claim a religious affiliation to avoid responsibility for harmful
conduct not governed or dictated by religious doctrine.
11. x
ISSUES PRESENTED
I. Did the court of appeals abuse its discretion by applying the
ecclesiastical abstention doctrine to bar the contract and
tort claims in this lawsuit when:
• the claims concern a private school’s secular conduct and
policies and do not implicate or require resolution of
religious doctrine?
• the private school and individual defendants claiming
protection under the “ecclesiastical abstention doctrine”
are not affiliated with or governed by church doctrine?
(Full Argument Reserved For Brief On The Merits)
• the court of appeals misapplied this Court’s precedent
concerning the applicable review standard by ignoring
the plaintiffs’ pleadings, accepting the defendants’
allegations as true and proven, and refusing to
acknowledge that the evidence, at a minimum, creates a
fact issue surrounding the jurisdictional question? (Full
Argument Reserved For Brief on the Merits)
II. Is mandamus relief available to challenge the court of
appeals’ order and opinion requiring the trial court to
dismiss Doe’s suit under the ecclesiastical abstention
doctrine?
12. 1
INTRODUCTION
This case presents an issue of first impression: Does the ecclesiastical
abstention doctrine bar contract and tort claims brought against a private school
that alleges to be a religious institution when those claims involve the school’s
secular educational affairs that are not governed by religious doctrine? In the last
few years, the San Antonio and Houston courts of appeals have applied the
Doctrine to claims against Catholic private schools affiliated with the Diocese
because the claims implicated the schools’ “internal affairs” promulgated by
Catholic Church doctrine. In this case, the Dallas Court of Appeals erroneously
followed suit even though ESD is not affiliated with a church, does not ascribe to a
particular religious doctrine, and is governed by secular education policies. By
applying the Doctrine under these circumstances and allowing ESD to avoid
liability for its breach and fraud, the Dallas court has weakened the purpose of the
Doctrine, which is to uphold the Free Exercise Clause by preventing civil intrusion
into religious internal affairs.
Private schools play a significant role in the education and care of our state’s
children. They enter contracts with families, businesses, and vendors under which
the private schools accept thousands of dollars and agree to pay for services and
goods. These schools should not be permitted to exploit the Free Exercise Clause
as a means to evade liability when the claims against them arise from secular
13. 2
conduct and do not implicate religious doctrine or require resolution of a religious
controversy in any way.
The Free Exercise Clause is intended to protect religious organizations from
state interference with matters of religious governance, faith, and doctrine. Until
the Dallas court’s opinion, the Clause has not been construed in a sweeping
manner to permit a private school claiming to be a religious institution to take
money from a public member, defraud and breach a contract with that person, and
hide behind the Doctrine under the guise of having the right to manage the school’s
“internal affairs”─affairs the evidence shows are not governed by religious tenet.
This is an affront not only to the Free Exercise Clause, but also this Court’s
precedent requiring courts to consider jurisdictional evidence when determining
the Doctrine’s applicability and to deny a jurisdictional plea when the evidence
raises a fact issue on the jurisdictional question.
If not corrected, the Dallas court’s opinion will serve as precedent for private
schools claiming to be a religious institution to avoid liability for abusive, tortious,
and breach of contract conduct when the school argues that the claims against it
concern “internal affairs,” regardless of whether those affairs implicate any
14. 3
religious doctrine.2
This will detrimentally impact not only the growing number of
students and their families who rely on private schools for their children’s safety
and education, but also an array of other parties who contract with private schools
and reasonably expect that the schools live up to the bargains they make. This
Court should grant review to address the scope of the Doctrine when private
schools claim a First Amendment right to avoid civil claims against them.
STATEMENT OF FACTS
A. ESD is a private school that claims to be religious institution but has no
affiliation with a particular church or church doctrine.
ESD touts itself as being one of the top college preparatory schools in the
nation. SMR 783-85. Parents pay ESD private school tuition rates of at least
$25,000 per year in exchange for an education that, according to ESD’s mission
statement, prepares their children “for lives of intellectual discovery, integrity, and
purpose.” MR 125; SMR 358, 414, 513, 776.
Although ESD includes the word “Episcopal” in its name, ESD represents
itself to the federal government as a school, not an institution auxiliary to a church.
MR 244; SMR 778-79. ESD has derived an economic benefit from tax-exempt
public bonds available only to secular institutions. SMR 778-79, 799. Further, ESD
2
For example, in the recent past, an ESD teacher sexually assaulted a student. MR 129.
Relying on the Dallas court’s opinion, schools like ESD could contend in these situations that the
Doctrine bars claims concerning how the school investigated the incident, treated the student,
and treated the teacher, all because these matters concern the school’s “internal affairs.”
15. 4
does not require its students to ascribe to a religion and does not recruit students
based on their religion affiliation. SMR 786, 794. In fact, over 85% of ESD’s
2016-2017 students are non-Episcopalian and include Catholic or Methodist
students as well as students not affiliated with any religion. SMR 786.
ESD is so far removed from a formal religious affiliation that ESD refers to
itself as “an independent school” not part of, owned, supervised or controlled by
the Episcopal Diocese of Dallas. MR 213-16, 255; SMR 346, 425, 795, 797. And,
although an Episcopal clergyman founded ESD over forty years ago, today neither
the Episcopal Church nor any clergy own, manage, or control the school or its
Board. MR 214-16, 220-25; see also SMR 782, 792, 795, 797. Only half the Board
members are Episcopalian, and ESD had a Jewish chair of the Board when Doe Jr.
was expelled. SMR 782, 804.
ESD admits the school does not know the religious affiliation of its teachers
and staff, and ESD does not give preference to Episcopalians when hiring. MR
220-23; SMR 796. ESD requires its students to take only one unit of religion
instruction out of twenty-four required for high school graduation. SMR 770. Of
the four elective religion courses ESD offers, not one centers on Episcopal doctrine
or Protestant Christianity more generally. SMR 771-72; see also MR 230.
16. 5
B. ESD made express promises to Doe about Doe Jr.’s education, Doe paid
tens of thousands in tuition dollars relying on these promises, and ESD
refused to honor the representations it made.
Doe Jr. enrolled at ESD in 2008. MR 126; SMR 846. From that time
forward, Doe Jr. had consistently been an exceptional student—academically,
athletically, and behaviorally. MR 126.
In January of 2014, Doe paid the tuition for Doe Jr.’s expected enrollment at
ESD for Doe Jr.’s upcoming junior year. MR 127. In making that payment, Doe
relied on express representations ESD made in the Enrollment and Tuition
Agreement (“Enrollment Agreement”) and the Upper School Student and Parent
Handbook (“Student Handbook”), which the Enrollment Agreement incorporates.
MR 127; SMR 346-50, 354-67, 848-50. First, in the Enrollment Agreement, ESD
contracted for a limitation on its civil liability under Chapter 84 of the Texas Civil
Practice & Remedies Code with respect to “all matters related to” Doe Jr.’s
“affiliation with the School.” SMR 346; TEX. CIV. PRAC. & REM. CODE §§
84.002(7), 84.003. ESD thus overtly acknowledged to Doe that ESD could be
subject to a civil action for its agreement to provide Doe Jr. an education, albeit
subject to the Chapter 84 limitations.
Second, in the Student Handbook, ESD made promises concerning its
education policies, including the code of conduct and disciplinary policy, SMR
360-67, which ESD supplemented through a September 23, 2014 letter to Upper
17. 6
School Families like the Doe Family. SMR 848-50. This letter includes a
“Response Chart and Consequence Matrix” concerning the school’s disciplinary
measures and explains that a “vast majority” of the outlined consequences are
“NOT new changes in policy. These are responses that the school has been issuing
for these offenses for many years.” SMR 850.
ESD’s education policies are not based on religious doctrine. SMR 360-67.
Rather, the code of conduct is premised on “Principles of Honor, Respect, and
Integrity,” not one of which reflects a particular religious tenet:
SMR 360. Further, ESD’s disciplinary policy is based on the following secular
statement:
The mission statement of [ESD] states that we strive to develop ‘the
educated conscience’ inside each student. To carry out our mission,
EDS must be a safe place, physically and emotionally, for the best
learning to occur. The development of self-discipline is a process.
Clear boundaries, expectations and repercussions support the
development of self-discipline. Our Code of Conduct provides a
reasonable, consistent, and fair disciplinary structure.
18. 7
SMR 848 (emphasis added); see also SMR 358. As part of this “reasonable,
consistent, and fair disciplinary” policy, ESD expressly warrants:
• “ESD’s disciplinary system is not punitive in nature.” SMR 848
(emphasis added).
• ESD “take[s] to heart that, in most case, students should be given a
chance to redeem themselves. We are not a zero-tolerance school.”
SMR 848 (emphasis added).
• ESD “will not impose a consequence without verifiable evidence” and
will only “act when we have actual evidence, but gossip, rumors, and
second and third hand information are not sufficient.” SMR 849.
• “Suspension (1 Day)”─not expulsion─is the result for a student’s
“first alcohol, first drug offense.” SMR 850.
Doe considered these promises critical when deciding where Doe Jr. would
spend his high school years. MR 131-32; SMR 845-46. Indeed, Doe chose to enroll
Doe Jr. at ESD based on the school’s representations of “fair, even handed, and
sympathetic treatment and discipline of its students” and its promise that it is “not
a zero-tolerance school.” SMR 846. Doe considered these promises important
because he “did not want to risk having John Doe Jr.’s academic career derailed by
an alleged one-time youthful mistake.” SMR 846. The desire to keep Doe Jr. in a
19. 8
compassionate and stable educational environment was especially significant after
Doe Jr.’s mother died in a tragic car accident. MR 135.
In the fall of 2014 of Doe Jr.’s junior year, ESD abruptly breached the
Enrollment Agreement as well as its express warranties and expelled John Doe.
MR 126-27. In doing so, ESD made allegations against Doe Jr. that Doe and Doe
Jr. vigorously deny and that contradicts the evidence.3
ESD admitted under oath
that it did not rely on and was not compelled by religious doctrine when, in
contravention of its promises, ESD expelled Doe Jr. MR 232-35. In fact, the
individual defendants and ESD’s counsel─not clergy or Episcopalian Church
doctrine─made the decision to terminate the Enrollment Agreement. MR 232-36;
SMR 831-32.
3
ESD refused to allow Doe Jr. to continue his education at ESD because Doe Jr. allegedly left
campus with another student and smoked marijuana. SMR 640-46. ESD did this even though it
knew Doe Jr. had passed a legitimate urine test and knew Doe Jr’s friend had admitted he “threw
[Doe Jr.] under the bus” and had lied to ESD about Doe Jr.’s involvement in the alleged incident.
SMR 645, 640. In any event, this was Doe Jr.’s first alleged drug offense and one that allegedly
occurred off campus, something ESD expressly promised would not result in the extreme
punishment of expulsion. SMR 848-50.
ESD’s conduct departed sharply not only from its express secular promises and warranties,
but also from ESD’s punishment of other students. Out of more than fifty drug or alcohol
incidents since 2008, Doe Jr. was the only student ESD expelled. SMR 647-769; see also, e.g.,
SMR 740 (“It is part of the school’s philosophy to give students a second chance when doing so
will not compromise the safety or integrity of the school community.”); SMR 740 (ESD refused
to discipline student even though student posted drug use on social media).
Further, information shows that the head of school and her subordinates singled out Doe Jr. as
a scapegoat to deflect from an embarrassing incident that occurred at the head of school’s home.
MR 130, 133-35; SMR 317-18. This incident involved alcohol and was initiated by the head of
school’s son, also a student at ESD, who committed multiple violations of the code of conduct
but was only required to write a letter of apology to the ESD Board. SMR 646; see also SMR
317-18.
20. 9
C. Doe filed suit to recover monetary damages caused by ESD and the
individual defendants.
When ESD breached the Enrollment Agreement and committed fraud, ESD
did not refund the tuition Doe had already paid. MR 127, 136. Further, Doe Jr. was
forced to have a “black mark” on his academic record, enroll in a new school, and
finish his upper school years without his ESD friends, teachers, and activities that
ESD had promised would play a positive role in Doe Jr.’s education. MR 136.
Doe, on behalf of himself and his son, thus filed an Original Petition, alleging tort
and contract claims against ESD. MR 80; see also MR 123.
ESD did not respond with any challenge to the trial court’s jurisdiction. MR
101. Instead, ESD filed a counter-claim, contending that Doe breached the
Enrollment Agreement by bringing the lawsuit. MR 104. Then, after well over a
year of discovery, ESD and the individual defendants filed a plea to the
jurisdiction. SMR 321-468. In this plea, Defendants’ contended that because ESD
“is a religious institution and because each of Plaintiffs’ claims seeks judicial
review of the ESD’s internal affairs and governance, this suit is barred by the
ecclesiastical abstention doctrine and must be dismissed.” SMR 330.
The trial court denied Defendants’ plea. Appendix E; MR 303. Defendants
subsequently filed their Petition for Writ of Mandamus and a Motion for Stay of
Trial Court Proceedings Pending Mandamus Review. 2-MR 912. The Dallas Court
of Appeals granted a stay and, without holding an oral argument, issued an opinion
21. 10
conditionally granting the writ. See Appendix A. The appellate court concluded
that: (1) ESD is a faith-based institution “enjoying First Amendment Protection for
the free exercise of religion;” and (2) resolving Doe’s claims “would require a
court to pass judgment on the school’s internal affairs and governance—matters
exclusively within the province of an ecclesiastical institution.” Appendix A, at *8-
9. The court thus held that “the ecclesiastical abstention doctrine applies, the trial
court lacks subject-matter jurisdiction, and it abused its discretion by denying
Relators’ plea to the jurisdiction and motion to dismiss.” Appendix A, at *9.
After the opinion issued, ESD filed a motion to modify the relief the Dallas
court ordered. 2-MR 1299. Even though it had successfully argued that the
Doctrine applies, ESD asked the court to change its order to require the trial court
to dismiss only Doe’s claims and not ESD’s counterclaim that is based on the very
same contract from which ESD claims immunity from suit. 2-MR 1301. The court
of appeals denied ESD’s motion and Doe’s motion for rehearing. See Appendix C-
D; 2-MR 1364.
22. 11
ARGUMENT
I.
The court of appeals abused its discretion by applying the
ecclesiastical abstention doctrine to bar claims against a private
school that concern secular education policies and do not
implicate or require resolution of religious doctrine.
This case presents the Court with the opportunity to determine whether a
private school—particularly one unaffiliated with a church—can hide behind the
ecclesiastical abstention doctrine when a plaintiff brings claims against the school
that concern the school’s secular affairs and do not require resolution of religious
doctrine. The Court should grant review and conclude the answer is no.
A. The ecclesiastical abstention doctrine is intended to protect against state
interference in a religious entity’s governance, faith, and doctrine.
The First Amendment to the United States Constitution, applicable to the
states through the Fourteenth Amendment, provides that “Congress shall make no
law respecting an establishment of religion, or prohibiting the free exercise
thereof….” U.S. CONST. AMEND. I. Under this “Free Exercise Clause,” the
government (including the judicial branch) may not “encroach[] on the church’s
ability to manage its internal affairs.” C.L. Westbrook, Jr. v. Penley, 231 S.W.3d
389, 395 (Tex. 2007). As this Court has explained, government action may burden
the free exercise of religion in two different ways: “by interfering with an
individual’s observance or practice of a particular faith ... and by encroaching on
23. 12
the church’s ability to manage its internal affairs.” Id. at 395 (federal citations
omitted).
In the last two decades, this Court has issued only a handful of decisions
about the intersection of civil courts and church autonomy. See Masterson v.
Diocese of Nw. Tex., 422 S.W.3d 594 (Tex. 2013); Westbrook, 231 S.W.3d at 395;
Tilton v. Marshall, 925 S.W.2d 672 (Tex. 1996). Each of these cases concerned
claims against churches and church ministers, not claims against private schools.
And, in these cases, the Court provided guidance concerning the boundaries of the
Doctrine when church matters are involved.
In Westbrook, for example, this Court explained that “[c]hurches have a
fundamental right to decide for themselves, free from state interference, matters of
church government as well as those of faith and doctrine.” Westbrook, 231
S.W.3d at 397 (emphasis added). But civil courts have a duty to apply “neutral
principles of law to non-ecclesiastical issues”—even when religious entities are
involved. Masterson, 422 S.W.3d at 606 (emphasis added). Based on these First
Amendment principles, this Court concluded that the Doctrine precludes civil tort
claims based on a church’s discipline of its members who do not conform to the
church’s morals. Westbrook, 231 S.W.3d at 397. But the Doctrine does not prohibit
courts from considering a dispute regarding the division of church property,
Masterson, 422 S.W.3d at 606-07, or a fraud claim against a church minister who
24. 13
falsely promised he would engage in certain conduct for financial gain. Tilton, 925
S.W.2d at 679.
Accordingly, this Court’s precedent holds that the Free Exercise Clause
prohibits courts from resolving disputes implicating religious doctrine and the
church’s internal affairs premised on church doctrine. Westbrook, 231 S.W.3d at
397-98; Tilton, 925 S.W.2d at 677. This is because the state, through its courts,
cannot “substantially burden” the free exercise of religion. See Tilton, 925 S.W.2d
at 677. But this Court’s precedent also makes clear that the Free Exercise Clause
does not preclude courts from deciding claims against religious entities when the
dispute does not turn on matters of religious practice—and it does not prevent a
court from considering claims against a private school that does not make
educational decisions based on a particular religious doctrine. Otherwise, Texas
courts would abdicate their constitutional duty to decide civil disputes.
B. This Court should clarify that the Doctrine does not shield a private
school, unaffiliated with a religious entity, from claims that touch upon
the school’s secular internal affairs.
This Court has never extended the Doctrine to claims that happen to touch
on the secular educational affairs of a private school—and certainly not secular
claims against a private school like ESD whose religious ties are nominal at best.
As a consequence, the Dallas Court of Appeals in this case relied heavily on a
couple of lower court decisions. Appendix A, at *8-9 (discussing In re Vida, No.
25. 14
04-14-00636-CV, 2015 WL 82717 (Tex. App.—San Antonio Jan. 7, 2015, orig.
proceeding) and In re St. Thomas, 495 S.W.3d 500 (Tex. App.—Houston [14th
Dist.] 2016, orig. proceeding)).
• In In re Vida, a family sought declaratory relief against the
superintendent of a Catholic school related to the school’s decision to
not promote a Kindergartner to First Grade. 2015 WL 82717, *1. The
San Antonio Court of Appeals applied the Doctrine to bar the suit,
concluding that the school was affiliated with the Catholic Diocese
and that, because the claims implicated the “Diocese’s policy
manual,” they “impinge[d] upon the Diocese’s ability to manage its
internal affairs by adopting policies regarding admission requirements
for Catholic schools.” Id. at *2-3.
• In In re St. Thomas High School, the Houston (Fourteenth) Court of
Appeals evaluated whether the Doctrine barred a family’s claim for
injunctive relief against a Catholic school that had expelled a student
based on the parents’ false allegations against a teacher. 495 S.W.3d
500, 504. The court held that the Doctrine precluded the claims
because the school was a religious institution and “spiritual standards
and references to Catholic teaching permeate[d]” the allegations the
family made against the teacher. Id. at 512. Thus, the claims
26. 15
impermissibly required the court to resolve “spiritual standards and
religious doctrine.” Id. at 513.
Notably, in both St. Thomas and Vida, the private schools were directly affiliated
with the Catholic Church. Further, in both cases, the families’ claims for injunctive
or declaratory relief either implicated policy the Diocese directly promulgated or a
teacher’s compliance with religious doctrine. These circumstances do not exist in
this case. First, ESD is a private school with secular education policies. Second, the
claims against ESD concern these secular education policies promising that a one-
time mistake would not ruin a student’s educational trajectory. Third, unlike the
families in St. Thomas and Vida, Doe is not seeking to force ESD to accept Doe Jr.
as a student; he is suing for damages for ESD’s breach and fraud.
A private school, even one loosely affiliated with religion, should not enjoy
full-scale immunity from civil claims simply because they touch on “internal
affairs.” To allow the Doctrine to apply in such a situation goes far beyond the
Doctrine’s purpose of preventing civil intrusion on religious internal affairs. And it
sets a dangerous precedent. The Dallas Court of Appeals’ opinion, if not corrected,
will provide support for any private school or organization claiming a religious
affiliation to hide behind the Doctrine when faced with claims based on conduct
that has nothing to do with religious doctrine or faith.
27. 16
C. Because the allegations and evidence show Doe’s claims against ESD
implicate ESD’s secular, educational internal affairs, the court of
appeals abused its discretion in applying the Doctrine.
Doe’s suit is, at its core, a suit seeking monetary relief for ESD’s false
promises to Doe, who paid thousands of dollars to the school, concerning its
secular education, code of conduct, and disciplinary policies. These false promises
are substantially similar to the false statements in Tilton v. Marshall, which this
Court concluded, despite Tilton’s undisputed religious operation, that the Doctrine
did not protect. 925 S.W.2d at 677-79. Yet the Dallas court allowed ESD and the
individual defendants to use the Doctrine as a shield, directly contravening the
purpose of the Free Exercise Clause.
How did this happen? The Dallas court failed to give due credit to Doe’s
allegations and the evidence the trial court considered. See Tex. Dep’t of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 226-28 (Tex. 2004) (review of jurisdictional
plea requires court to “construe the pleadings liberally in the plaintiff’s favor”).
These allegations and the evidence show that ESD is not a faith-based institution
entitled to the Doctrine’s protection and that, even if it is, the Doctrine does not
apply because the claims do not require the “resolution of a religious controversy.”
Westbrook, 231 S.W.3d at 399.
• The school represents to the IRS that it is a school and not a faith-
based institution and has obtained bond financing available only to
secular institutions. SMR 778-79, 799.
28. 17
• The school is not part of the Episcopal Diocese and receives no funds
from the Diocese, and no church owns, operates, or controls the
school. MR 213-16; SMR 792, 795, 797.
• ESD’s board members are not clergy; teachers and staff need not be
Episcopalian; and the vast majority of the school’s students (85
percent) are not Episcopalian. SMR 786, 804.
• ESD expressly promised to work with families on disciplinary issues,
warranted that its disciplinary process is not zero tolerance, and
represented that ESD will not impose “a consequence without
verifiable evidence” and that ESD’s “disciplinary process is not
punitive in nature,” and that evidence of disciplinary issues must be
“verifiable” and “actual.” SMR 848-49.
• ESD induced Doe to enter into an Enrollment Agreement and pay
tuition based upon those representations, and ESD accepted that
payment. MR 127; SMR 346-50.
• ESD admitted this was the first time Doe Jr. was alleged to be in
trouble. SMR 406. And ESD’s notes show Doe Jr. passed a legitimate
controlled substances test, SMR 644, and that the student who tried to
blame Doe Jr. had lied. SMR 645.
• ESD records show many disciplinary actions in which students
engaged in far more serious misconduct involving drugs and alcohol
received far less severe punishments than Doe Jr. SMR 647-769.
• ESD admitted that its non-Episcopalian staff and its counsel, not
clergy or a church, was involved in the decision to expel Doe Jr. MR
232-36; SMR 831-32.
• ESD’s education policies, including its code of conduct and
disciplinary policies, are not based on religious doctrine. SMR 360-
67, 848-49.
• ESD had motivation to breach its contract, commit fraud, and treat
Doe Jr. differently than how the school promised, as this was a means
29. 18
to deflect from an embarrassing event that happened earlier in the year
involving the head of school and her son. MR 130, 133-35; SMR 318.
If, as Doe alleges and the evidence shows, Doe Jr. was expelled for secular
disciplinary reasons and in violation of secular promises and representations, then
evaluation of ESD’s conduct does not implicate religious tenets or standards of
conduct. But the Dallas court swept these allegations and evidence aside and, on
top of this, erroneously concluded that the jurisdictional allegations of ESD, the
defendant, are “undisputed” and “conclusively establish[ed].” Appendix A, at *4,
8. Equally troublesome, the Dallas court concluded the Doctrine applies to the
school’s “internal affairs” without regard to whether they implicate religious
doctrine.
Because Doe’s allegations and the evidence at a minimum raise a fact issue
on the jurisdictional question, the trial court was well within its discretion to deny
the jurisdictional plea. And the Dallas court abused its discretion by second
guessing this decision contrary to this Court’s precedent. Miranda, 133 S.W.3d at
228; see also Westbrook, 231 S.W.3d at 395 (“A plea should not be granted if a
fact issue is presented as to the court’s jurisdiction ... .”).
30. 19
II.
Mandamus relief is available.
Mandamus is available when the court of appeals abuses its discretion and
the relator has no adequate appellate remedy. See In re Prudential Ins. Co., 148
S.W.3d 124, 135-36 (Tex. 2004). “The operative word, ‘adequate’, has no
comprehensive definition; it is simply a proxy for the careful balance of
jurisprudential considerations that determine when appellate courts will use
original mandamus proceedings to review the actions of lower courts... . An
appellate remedy is ‘adequate’ when any benefits to mandamus review are
outweighed by the detriments.” Id. at 136.
Here, the benefits of mandamus review far outweigh the detriments. If the
Court refuses to grant mandamus review, the trial court will be required to vacate
its order denying ESD’s plea and dismiss the lawsuit. Although Doe could then
bring a direct appeal to the Dallas Court of Appeals, that court has already written
about this issue. Requiring Doe to bring an appeal to the Dallas court as a mere
formality to seeking appellate review in this Court would constitute an enormous
waste of resources for both the Dallas court and litigants. Further, the narrow issue
of the Doctrine’s application is squarely before this Court given the proceedings
below. This Court thus has full authority to exercise its mandamus jurisdiction
here.
31. 20
PRAYER
Relators pray that the Court grant this petition and order the Dallas court of
appeals to vacate its order and opinion requiring the dismissal of Doe’s claims
against the Defendants. Relator further prays that the Court grant any other relief to
which Doe and Doe Jr. may be entitled.
Respectfully submitted,
By: /s/ Craig T. Enoch
Craig T. Enoch
State Bar No. 00000026
cenoch@enochkever.com
Marla D. Broaddus
State Bar No. 24001791
mbroaddus@enochkever.com
Shelby O’Brien
State Bar No. 24027203)
sobrien@enochkever.com
ENOCH KEVER PLLC
5918 W. Courtyard Drive, Suite 500
Austin, Texas 78730
512.615.1200 / 512.615.1198 (fax)
Lawrence J. Friedman
State Bar No. 07469300
lfriedman@fflawoffice.com
FRIEDMAN & FEIGER, L.L.P.
5301 Spring Valley Road, Suite 200
Dallas, Texas 75254
972.788.1400 / 972.788.2667 (fax)
ATTORNEYS FOR RELATORS
32. 21
CERTIFICATE OF COMPLIANCE
Relator certifies that this Petition for Writ of Mandamus (when excluding
the caption, identify of parties and counsel, table of contents, index of authorities,
statement of the case, statement of issues presented, statement of jurisdiction,
signature, certificate of compliance, certificate of service, and appendix) contains
4,499 words.
/s/ Marla Broaddus
Marla Broaddus
MANDAMUS CERTIFICATION
Pursuant to Texas Rule of Appellate Procedure 52.3(j), I certify that I have
reviewed this petition and that every factual statement in the petition is supported
by competent evidence included in the appendix or record. Pursuant to Rule
52.3(k)(1)(A), I certify that every document contained in the appendix is a true and
correct copy.
/s/ Marla Broaddus
Marla Broaddus
33. 22
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was served via
electronic service on the following counsel of record on December 7, 2017.
Ronald W. Johnson
J. William Conine
TOUCHSTONE, BERNAYS, JOHNSTON,
BEALL, SMITH & STOLLENWERCK, LLP
4040 Renaissance Tower
1201 Elm Street
Dallas, Texas 75270-2196
ronjohnson@tbjbs.com
will.conine@tbjbs.com
Karen S. Precella
Andrew W. Guthrie
HAYNES AND BOONE, LLP
301 Commerce Street, Suite 2600
Fort Worth, Texas 76102-4140
karen.precella@haynesboone.com
andrew.guthrie@haynesboone.com
Christopher D. Kratovil
Kristina M. Williams
DYKEMA COX SMITH
1717 Main Street, Suite 4200
Dallas, Texas 75201
ckratovil@dykema.com
kwilliams@dykema.com
/s/ Marla D. Broaddus
Marla D. Broaddus
34. 23
No. 17-_____
_____________________________________________________________
The Supreme Court of Texas
_____________________________________________________________
IN RE JOHN DOE, INDIVIDUALLY AND AS
NEXT FRIEND FOR JOHN DOE, JR., A MINOR
_____________________________________________________________
Original Proceeding
From the Fifth Court of Appeal - Dallas
Cause No. 05-17-00493-CV
_____________________________________________________________
APPENDIX
_____________________________________________________________
A. In re Episcopal Sch. of Dallas, Inc., No. 05-17-00493-CV, 2017
WL 4533800 (Tex. App.—Dallas Oct. 11, 2017, orig.
proceeding)
B. Dallas Court of Appeals’ Order Conditionally Granting
Mandamus Relief (Oct. 11, 2017)
C. Dallas Court of Appeals’ Order Denying Motion for Rehearing
and Motion to Modify (Nov. 15, 2017)
D. Dallas Court of Appeals’ Order Granting Motion to Extend
Trial Court’s Deadline to Issue Written Orders (Nov. 17, 2017)
E. Trial Court’s Order on Defendants’ Plea to the Jurisdiction and
Motion to Dismiss (Apr. 25, 2017)
52. Order entered October 11, 2017
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-17-00493-CV
IN RE THE EPISCOPAL SCHOOL OF DALLAS, INC., MEREDYTH COLE, JEFFREY
LABA, AND DONNA HULL, Relators
On Appeal from the 68th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-15-04152
ORDER
Based on the Court’s opinion of this date, we LIFT our May 17, 2017 Order staying all
trial court proceedings and CONDITIONALLY GRANT relators’ petition for writ of
mandamus. We order the trial court to issue written orders within fifteen (15) days of this order
vacating its April 24, 2017 order denying the plea to the jurisdiction, granting relators’ plea to
the jurisdiction, and dismissing the case. Should the trial judge fail to comply with this order, the
writ will issue. We ORDER the trial judge to file with this Court, within thirty (30) days of the
date of this order, a certified copy of his order(s) issued in compliance with this order.
/s/ BILL WHITEHILL
JUSTICE
Appendix B to John Doe's Petition for Writ of Mandamus
Page 1 of 1
54. Order entered November 15, 2017
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-17-00493-CV
IN RE: THE EPISCOPAL SCHOOL OF DALLAS, INC., MEREDYTH COLE, JEFFREY
LABA, AND DONNA HULL
On Appeal from the 68th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-15-04152
ORDER
Before us are the real parties in interest’s motion for rehearing and relator’s motion to
modify relief ordered (which we construe as a motion for rehearing in part).1
Having considered
them, both motions are DENIED.
/s/ BILL WHITEHILL
JUSTICE
1
Relator’s mandamus petition’s “Requested Relief” statement said, “Defendants/Relators seek mandamus relief
commanding that Respondent grant the Plea to the Jurisdiction and dismiss the underlying proceedings based on a
lack of subject matter jurisdiction to interfere with the First Amendment rights of the Episcopal School to be free of
such interference with its internal affairs and religious mission.”
Appendix C to John Doe's Petition for Writ of Mandamus
1 of 1
56. Order entered November 17, 2017
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-17-00493-CV
IN RE: THE EPISCOPAL SCHOOL OF DALLAS, INC., MEREDYTH COLE, JEFFREY
LABA, AND DONNA HULL
On Appeal from the 68th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-15-04152
ORDER
Real Party in Interest’s Unopposed Motion to Extend the Trial Court’s Deadline to Issue
Written Orders Vacating it April 24, 2017 Order is GRANTED. The trial court’s deadline to
issue written orders vacating its April 24, 2017 order is extended to December 11, 2017 and the
deadline for filing certified copies of the new orders is extended to December 22, 2017.
/s/ BILL WHITEHILL
JUSTICE
Appendix D to John Doe's Petition for Writ of Mandamus
58. CAUSE NO. DC-15-04152
JOHN DOE, Individually, aud as next
friend of JOHN DOE, JR., a minor
Plaintiff,
v.
THE EPISCOPAL SCHOOL OF
DALLAS, INC., MEREDYTH COLE,
JEFFREY LABA, AND DONNA HULL,
Defendants.
§
§
§
§
§
§
§
§
§
§
IN THE DISTRICT COURT
68th JUDICIAL DISTRICT
DALLAS COUNTY, TEXAS
PRQf@~E°i) ORDER ON DEFENDANTS' PLEA TO THE JURISDICTION
AND MOTION TO DISMISS
CAME TO BE HEARD on the 24'h day of April, 2017, Defendants' Plea to the
Jurisdiction and Motion to Dismiss. After considering the pleadings, the evidence and the
arguments ofcounsel, the Court DENIES the motion.
Dated: 4.-;I J~'I 101 7
JUDGE MARTIN HOFFMAN
ORDER Page 1 ofl MR 303
Appendix E to John Doe's Petition for Writ of Mandamus