In the latest round of union busting efforts, Saint Xavier University in Chicago is challenging the formation of a union among its part-time faculty at its Chicago and Orland Park campuses.  The campaign for a union on campus is being organized by the NEA/IEA and is supported by the American Federation of Teachers. The AFT, in collaboration with the AFL-CIO, has filed a "friend of the court" brief challenging the argument that contingent faculty at Saint Xavier University do not have the right to form a union based on the United States Supreme Court decision in Catholic Bishop. In Catholic Bishop, the Supreme Court ruled that faculty at church operated schools that teach both religion and secular subjects could not be subject to the National Labor Relations Board jurisdiction. The court reasoned that in an environment where religious authority "pervades the school system" that it would be impossible for a separation to exist between the "religious and purely secular aspects of pre-college education." Though this specific case dealt with teachers in parochial K-12 schools, the NLRB has been evaluating all religious-affiliated colleges on a case by case basis, a process solidified by the 2002 Great Falls case. In Great Falls, the D.C. District court held that a college must " (a) hold itself out to the public as a religious institution; (b) is non-profit; and (c) is religiously affiliated" in order to be excluded from NLRB jurisdiction.

The AFT and the AFL-CIO argue that rather than implementing a three-part test to determine whether a school is beyond the NLRB's jurisdiction (as Saint Xavier University is advocating) that the real determinative question of Catholic Bishop is not whether a particular college is religious in nature, but whether the faculty members in the petitioned-for unit perform a religious function. The Catholic Bishop decision does not "exclude church-operated schools, as entire units, from the coverage of the NLRA." In addition, the Catholic Board decision only excludes teachers who are under an "obligation...to imbue and indoctrinate the student body with the tenets of religious faith," from NLRB jurisdiction. Based on these aspects of the decision it follows that, in determining whether a unit of employees is excluded from NLRB jurisdiction, one must look at whether the employees themselves are performing a religious function rather than if the school in question is a "religious institution."

On  the St. Xavier University website, the  "University Philosophy Statement," publicly claims that it maintains "an atmosphere of intellectual rigor made possible by academic freedom" in which "University faculty develop and teach courses in their areas of advanced study, extend research in their disciplines, produce scholarly and creative work and serve the University and community." In fact, the University has to demonstrate that it "has approved and disseminated statements supporting freedom of inquiry for the organization's students, faculty, and staff, and honor those statements in its practices." Yet, when it comes down to whether their adjunct faculty can organize for the purpose of collective bargaining, the University argues that it is a religious institution and therefore exempt from NRLB jurisdiction. How can an institution that claims to embrace and practice academic freedom turn around and tell its faculty that they do not have the right to form a union?  It seems that St. Xavier wants the image of an institution that embraces academic freedom but does not want to live up to its expectations as a fair employer.The AFT will continue to support the NEA/IEA in their efforts to organize faculty at St. Xavier University.