Appeal from the United States District Court for the Eastern District of Wisconsin, No. 84 C 711 -- John W. Reynolds, Judge.
Cummings and Posner, Circuit Judges, and Swygert, Senior Circuit Judge.
Between 1976 and 1984 the plaintiff, who holds a Ph.D. in Religious Studies from the Catholic University of America in Washington, D.C., repeatedly applied for and was each time denied a position as an associate professor of theology at Marquette University in Milwaukee, Wisconsin. In 1984 the plaintiff brought suit under Title VII of the Civil Rights Act of 1964 alleging that Marquette had refused to hire her because she is a woman. 42 U.S.C. § 2000e- 2(a)(1).
Marquette University was founded in 1881 under the auspices of the Society of Jesus, a religious order affiliated with the Roman Catholic Church. The University takes its name from Pere Jacques Marquette, a Jesuit missionary who explored the Mississippi River in the 17th Century. Marquette is among the largest of the Catholic universities in the United States. It presently consists of thirteen colleges, schools, and programs, and offers both graduate and undergraduate degrees to the roughly ten thousand students enrolled at its sixty-eight acre campus. Theology courses are required for undergraduate students in business administration, education, engineering, journalism, liberal arts, medical technology, nursing, physical therapy and speech.
"Marquette's primary reason for being is a shared conviction on the part of its sponsors and sustainers that their Catholic belief has dimensions pertinent to and salutary for higher education, and that those dimensions can best be celebrated in distinctly Catholic institutions." University and Catholic: Final Report of the Special Committee on the Christian Character of Marquette University 1 (July 1, 1977). Although it is structured as an independent Wisconsin non-profit corporation, Article I of its By-Laws provides that the University shall be "conducted under the auspices, and consonant with the educational principles, of the Society of Jesus." Eight of the twenty-nine member Board of Trustees must be Jesuits, as must the President and the Vice President of the University. A vote of three-fourths of the trustees is required to elect a new trustee or to amend the By-Laws, thus giving the Jesuit trustees the power to block such actions by the Board.
Seventy of the approximately 500 faculty members at Marquette are Jesuits. Marquette Jesuit Associates, Inc. receives the salaries of the Jesuits employed at Marquette, uses the money to defray their living expenses, and then returns the surplus to the University each year for its unrestricted use. Over the past decade the amount returned has averaged around $250,000, making the group one of the largest financial contributors to the University.
Marquette has adopted an affirmative action plan, but the University specifically reserves the right to "grant preferences in its employment practices to Jesuits to perform any work connected with the carrying on by Marquette University of its activities." Marquette University Affirmative Action Program, Article II(c) (November 1980). Nowhere is the effect of the "Jesuit Preference" more deeply felt than in the theology department. Approximately half of the current members of the theology department are Jesuits, who are by definition male. Only one of the 27 full-time positions is held by a woman. The chairman of the theology department is a Jesuit, and the department's advisory/hiring committee is comprised of three Jesuits and one non-Jesuit. The Jesuit perspective permeates the course offerings in theology:
The courses that are offered here . . . are taught in the perspective of the Roman Catholic tradition and do emphasize the religious and institutional values of that tradition. The value of ecumenism is stressed, but there is a legitimate presumption that the value system of the Roman Catholic tradition permeates the entire offering in the Department of Theology and all of the students are given an opportunity to deepen their understanding of this tradition as it is perceived and presented by the Society of Jesus.
Affidavit of Rev. William J. Kelly, S.J., Chairman, Department of Theology, Marquette University, at 2 (Sept. 24, 1984).
In addition to alleging general sex discrimination, the plaintiff's original complaint specifically challenged the validity of the "Jesuit Preference" in respect to hiring decisions in the theology department. On May 20, 1985, Marquette filed a motion for partial summary judgment, arguing that its policy of giving preference to Jesuits did not constitute illegal sex discrimination because being a Jesuit was a bona fide occupational qualification for the position of theology professor at a Jesuit university. See 42 U.S.C. § 2000e-2(e)(1); Pime v. Loyola University, 803 F.2d 351 (7th Cir. 1986). While this motion was pending, the plaintiff filed a motion to supplement her complaint on the basis of information uncovered during the course of discovery. The supplemental complaint added a pendent claim for breach of the Wisconsin law of academic freedom. Paragraph XIV-A stated:
The plaintiff Dr. Marjorie Reiley Maguire has been denied hiring by the defendant Marquette University, due to the perceptions and/or misperceptions of agents of the defendant Marquette University concerning the plaintiff's views respecting the moral theology of abortion and/or the public policy of abortion in a pluralistic society and the relationship between the two.
Furthermore, in her memorandum opposing Marquette's motion for partial summary judgment, the plaintiff argued:
The plaintiff's academic freedom cause of action alleges that the defendant's perceived and/or misperceived consideration of the plaintiff's views on the matter of the moral theology of abortion and the public policy of abortion in a pluralistic society and the relationship between the two has substantially motivated it to refuse to hire her into its ...