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BRODERICK v. CATHOLIC UNIV. OF AMERICA

October 17, 1973

Joseph A. BRODERICK, Plaintiff,
v.
CATHOLIC UNIVERSITY OF AMERICA, Defendant. David J. K. GRANFIELD, Plaintiff, v. CATHOLIC UNIVERSITY OF AMERICA, Defendant


Gasch, District Judge.


The opinion of the court was delivered by: GASCH

GASCH, District Judge.

 This is a consolidated civil action brought by two priests against the Catholic University of America where they are both employed as professors in the Columbus School of Law. The central issue revolves around the policy of the defendant University in paying clerical members of their faculty a lesser salary than that of lay faculty. Based upon numerous theories of law, each plaintiff seeks, essentially, to have the Court end this "clerical discount" as applied to them. Before reaching the plaintiffs' factual and legal claims, the Court will set forth the factual background in which this controversy arose.

 I. Factual Background.

 The Catholic University of America until recently was a pontifical university functioning under the direction of the Holy See. *fn1" However, between 1967-1970 all but three schools of the defendant University have become independent of the Holy See. *fn2" Thus, but for a few remaining vestiges of its past governance by the Catholic hierarchy, *fn3" the Catholic University functions essentially as most other American institutions of higher education. Nevertheless, one of the remaining practices is the utilization of a "clerical scale" which in application allows those members of the faculty who are clergy or religious a lower salary than lay faculty members. At the present time there are only two members of the law school faculty who are clerics and to whom this "scale" is applicable. These two faculty members, Father Joseph Broderick and Father David J. K. Granfield, are the plaintiffs in this case. Both plaintiffs have received tenure.

 It appears clear from the testimony and exhibits that the elimination of parity has been an issue which has received varying degrees of consideration over the years. As early as 1945, at a meeting of the executive committee of defendant's Board of Trustees, a revised faculty scale was proposed which would, within four years and when fully implemented, put clerical and religious members of defendant's faculty on a basis of salary parity with lay members of its faculty. The revised scale was adopted and put into effect for lay members of the faculty, but not for clerical and religious members. *fn4" This pattern of indecision and movement in regard to parity resulted in several statements and announcements, and resolutions over the years which are critical to plaintiffs' claims in this case.

 First, on February 8, 1968, the defendant's Academic Senate *fn5" adopted a resolution that the Academic Senate request defendant's Board of Trustees to adopt a policy of parity of salaries between clerical and religious members and lay members of defendant's faculty and to "implement this policy without delay." *fn6" (Emphasis added).

 Subsequently, on September 12, 1968, Mr. Hickey of the Finance Committee of the Board of Trustees reported that his committee " favored putting the salaries of clerical members of the faculty on a parity with lay members." *fn7" (Emphasis added). Similarly, on December 6-7, 1968, the Finance Committee and the Academic Affairs Committee both wished

 
to go on record as still considering the desired goal (emphasis added) in faculty salaries to be the A level of the AAUP [American Association of University Professors] scale -- not Plan A -- including, eventually, placing the salaries of clerical members of the faculty on a parity with lay teachers.
 
The Committees, however, faced the straitened 1969-70 financial situation. Its realities make it impossible to implement Plan B as submitted by the Academic Senate. *fn8"

 The Committees at this meeting recommended that the present salary scale be kept, and the sums available be used for new personnel and merit increments for members of the faculty. These recommendations were approved. *fn9"

 Following this December 6-7, 1968, meeting of the Board of Trustees, there were many interpretations of exactly what the Board of Trustees had accepted as a matter of policy. The Administrative Bulletin of December 16, 1968, a publication emanating from the Office of the Provost and a general source of information to the University community, reported that

 
after consideration of faculty salary proposals presented at a previous meeting, the Board (1) affirmed acceptance as a goal of the A-level standard of the American Association of University Professors and elimination of the present disparity between scales for clerical and religious and lay members of the faculty; (2) directed that normal salary increments under the present scale should be continued during 1969-70; and (3) directed that after such increments, funds remaining from increased tuition income should be used for salaries of new administrative and faculty personnel and for merit increments to present members of the faculty. *fn10" (Emphasis added).

 This interpretation of the Board of Trustees' action appears to follow accurately the minutes of the Board of Trustees December 6-7, 1968, meeting. However, Acting President Nivard Scheel at a December 12, 1968, meeting of the Academic Senate reported that the Board of Trustees, with respect to faculty salaries,


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