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April 27, 1984


The opinion of the court was delivered by: Leighton, District Judge.


This suit is by a former part-time lecturer in philosophy who alleges that his university employer violated § 703(a), Title VII of the Civil Rights Act of 1964, by refusing to consider him for a full-time, tenure-track teaching position because he is a Jew, but hired three Catholics, all of them Jesuits. The university has answered, denied the allegations of employment discrimination, and has asserted two affirmative defenses.

After the end of discovery and other pretrial proceedings, the cause has been tried to the court, evidence has been submitted consisting of testimony of witnesses and exhibits. Oral arguments in summation have been presented; and the parties were invited to propose findings and conclusions. Therefore, as required by Rule 52(a), Fed.R.Civ.P., the court makes its findings of fact, reaches its conclusions of law, and based thereon, enters judgment accordingly.


Loyola University of Chicago is an institution of higher learning that traces its history from St. Ignatius College established by four Jesuit priests and chartered by the State of Illinois on June 30, 1870. Jesuits are members of the Society of Jesus, a religious order of the Roman Catholic Church originally founded by Ignatius Loyola in 1534. Their history has been characterized by a particular energy in the promotion of education. In furtherance of their heritage, Jesuits have established several universities, including those in Chicago, New Orleans, Louisiana, and in the State of California. St. Ignatius College became Loyola University of Chicago in 1909 when new articles of incorporation were authorized. It is today an Illinois not-for-profit corporation; its charter does not make it a religious institution.

Loyola's avowed purpose, according to its articles of incorporation, is to "provide and furnish opportunities for all branches of higher education . . . which may comprise literature, law, medicine, dentistry, the sciences, fine arts," and to hold and disburse monies "for educational purposes." Its additional purpose, according to its by-laws, is "the pursuit of truth in all the cultural, scientific and professional branches of sacred and secular learning." In its curriculum, both core and electives, the offerings of religious courses by Loyola are not numerous; indeed, the study of religion appears to play a minor, although not insignificant, role in the day-to-day activities of the university.

One manifestation of this fact is the absence of any requirement, in any of Loyola's ten schools and colleges, that a student take a course either in Catholicism or in the history of the Society of Jesus, the only exception being pursuit of a degree in University College, or in the College of Arts and Sciences, with theology as a major. Under its corporate by-laws, the president must be a Jesuit. But authority over university policy and governance is vested, by Illinois law, in a board of trustees the majority of whose members, since 1970, have been non-Jesuits. In 1980, members of the board consisted of twenty-three persons, nine of whom were Jesuits.

The by-laws of the university require that one more than one-third of the board's full membership be members of the Society of Jesus, and that any by-law amendment be approved by two-thirds of the trustees. A majority of them are men and women from various walks of life and of various religious faiths who have authority to act if a majority or a quorum votes in favor of an action. As is common in any university setting, the daily management of Loyola is in the hands of its president, vice president, deans, chairmen of various departments, and the heads of divisions within the university administration. However, the Society of Jesus does not participate in the daily management of the university.

Loyola is not owned by any part of the Loyola Jesuit Community, the Chicago Province of Jesuits, or the Society of Jesus; as to all property used by the university, it is, as a not-for-profit corporation, the owner with power to hold, use, or otherwise deal in, with, or any interest therein, situated in or out of the State of Illinois. The principal source of Loyola's financial support is tuition fees paid by students who, themselves, receive monetary aid from the federal government.

In fiscal years 1978 and 1979, the university received $6,465,891 and $6,980,621, respectively, from various agencies of the United States government. In the same two years, although the amount was the largest single corporate grant to the university, the Loyola Jesuit Community of Chicago co\ntributed between $400,000 to $500,000, sums which were about .3% of Loyola's total annual revenue. This contribution was a return of approximately 25%, per cent of salaries which Jesuits received from Loyola in the same years.

Some of these salaries were earned by Jesuits who were faculty members in the Department of Philosophy of the College of Arts and Sciences, one of the largest such departments in this country. In 1978, and until the present, the department had 31 permanent, tenure-track positions. A professor of philosophy could be hired for such a position only when one became vacant, either through retirement or other departure of a tenured professor. Being in a permanent tenured track position means that a faculty member has the potentiality of becoming a tenured permanent professor.

In September 1978, because three Jesuit priests were going to retire from the department, it became known that three tenured positions were going to becomes vacant. Consequently, the prospect of these vacancies became a matter of discussion among members of the faculty; and at a general meeting of the department on October 12, 1978, attended by most of the tenured faculty members, the chairman made a report in which he stated that:

  We anticipate 3 full-time faculty openings in the
  Philosophy Department beginning September 1979.
  They are the position of Fr. Dehler and those of
  Fr. Grant and Fr. Loftus after they retire at the
  end of the current academic year.
  There are two different kinds of departmental
  needs which seem to bear heavily on the decision
  as to the kind of persons we should seek to hire
  for these openings.
  1. The first is a need which the Chairman voiced
  two years ago just after Fr. Dehler's
  resignation. That is, the need for an adequate
  Jesuit presence in the Department. We are a
  Philosophy Department in a University with a
  Jesuit tradition. It is mainly by reason of this
  tradition that philosophy has the importance it
  does in the education of Loyola undergraduates.
  Therefore, it behooves us, however strongly we
  may feel about "the autonomy of philosophy," to
  acknowledge our association with this tradition.
  One very basic and obvious way of making such
  acknowledgement is by insisting upon an adequate
  Jesuit presence in the faculty of the Department.
  With the retirement of Father Grant and Father
  Loftus, we shall be left with 4 out of 31 faculty
  positions occupied by Jesuits. 4 out of 31 is not
  an adequate Jesuit presence in the Department. In
  the judgment of the Chairman, it would be

  highly desirable to fill all three openings with
  professionally competent Jesuit philosophers. And
  it is his recommendation that we do so if we can.
  2. The second kind of departmental need is for
  faculty especially qualified to teach courses in
  the following areas: a. Applied ethics,
  especially medical ethics. There is an increasing
  student demand for such courses and for
  additional undergraduate course offerings at the
  Medical School. b. Philosophy of Law. This is one
  of the most popular of our 300-level course
  offerings. It needs to be offered annually both
  at Lake Shore Campus and Water Tower Campus and
  there seems to be some desire that we offer it
  annually in the Law School. c. Logic. There is an
  exceedingly heavy student enrollment at both Lake
  Shore Campus and Water Tower Campus. Additional
  sections of courses in logic should be offered on
  each campus.
    Consequently, we should seek persons who have
  special competence and interest in teaching
  courses in these areas. The Chairman's
  recomendation is that we seek to hire ...

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