Lead Us Not Into Temptation
By Lee Boothby
The lure of government financial aid can be very tempting to cash-strapped sectarian educational institutions. The sad fact is that many church-affiliated colleges and universities have fallen victim to a watering or even elimination of the sectarian aspect of their programs to ensure con-state financial support.
A Catholic leader wrote the following about the disastrous effects of taking Uncle Sam’s money: “Recently I was invited to speak to a group of students majoring in theology at one of the Catholic universities in the Midwest. I was taken to a nondescript, broken-down building which was… totally separated from the rest of the campus. That is where religion is because all of the other buildings are in one way or another funded with federal money and there can be no religion in there. The university authorities admitted that this was not a happy situation, but it was the price to be paid for the substantial amount of federal funds that had been poured into university buildings.
About 10 years ago Jerry Falwell’s Liberty University sought millions of dollars in state funding to finance construction of new facilities. The Virginia Supreme Court found the arrangement violated the religion clauses of both the United States and Virginia constitutions.
Liberty University’s published policies require its faculty and students to attend church and chapel six times each week. Its faculty and students are required to subscribe to Liberty’s religious doctrine, and its faculty’s academic freedom is circumscribed by Liberty’s doctrinal statement. Still Liberty University attempted to downplay its religiosity They had witnesses testify that these policies were not enforced.
In its brief to the Virginia Supreme Court, Liberty’s lawyers pointed to recently revised policies and publications, arguing that Liberty now “is not an institution in which religion is so pervasive that a substantial portion of its functions is subsumed in its religious mission.” The lawyers for Liberty told the court that “the university. . . is not an integral part of the religious mission of a sponsoring church, does not have as a substantial purpose the inculcation of religious values, and does not impose religious restrictions on what or how the faculty may teach.” But this statement brought a storm of protest from the evangelical community. Perhaps this contributed to Jerry Falwell’s having second thoughts about President Bush’s faith-based initiative.
David Lipscomb University, a Churches of Christ institution in Nashville, Tennessee, recently sought tax-exempt revenue bonds to finance a major redevelopment project on its campus.
Because bonds are exempt from both federal and state taxes, they carry a lower interest rate than conventional financing, and Lipscomb realized the benefit through lower interest rates on its loan. In order for the bond issue to enjoy tax-exempt status, the Industrial Development Board had to find that the bond issue served a legitimate public purpose or created a substantial public benefit.
The trial court held the bond issue violated the establishment clause of the First Amendment, finding that the tax-exempt revenue bond issue was the financing tool through which the government was able to collect funds to lend the $15 million to the university.
The district court concluded that, although the Supreme Court has allowed government aid to be directed to church-affiliated institutions where such funds are used only to advance secular concerns, in the case of Lipscomb there were insufficient limitations on the use of the proceeds to prevent their use for sectarian purposes.
Lipscomb argued before the court that whether or not an institution is “pervasively sectarian” is no longer constitution-
ally relevant. The university reserved the right to discriminate in the hiring of staff.
There is a significant distinction between pervasively sectarian organizations and those organizations that are merely religiously affiliated.2 State-supported secular private colleges (even those that are religiously affiliated) are not allowed to hire and fire on the basis of religion. While religiously affiliated colleges may use religious criteria in the hiring of chaplains and religion teachers, the burden is on the college to prove that specific positions are religiously related.3 Such private colleges may be prevented from discriminating against student groups based on religious standards.4
The Supreme Court has permitted financial aid to go to a church-affiliated college or university upon determination that it is not pervasively sectarian. The presumption is that, unlike church-operated elementary and secondary schools, church-affiliated higher education institutions are not generally pervasively sectarian. But whether they are pervasively sectarian or not was a key factor as to whether financial aid to such institutions was constitutional. In Roemer v. Board of Public Works of Maryland,5 the Court accepted the district court’s subsidiary findings which led to the Court’s holding that the colleges in Roemer were not pervasively sectarian.6 But to reach this conclusion, the Court looked at several factors. For example, the Roemer Court determined:
a. The colleges, despite their formal affiliation with the Roman Catholic Church, were “characterized by a high degree of institutional autonomy.”
b. Attendance at religious exercises on campus was not required. None of the institutions did anything other than provide opportunities or occasion for religious experience.7
c. Although mandatory religion or theology courses were taught at each of the colleges, they were taught in an “atmosphere of intellectual freedom” and without “religious pressure.”8
d. Although some classes were begun with prayer, there was no “actual college policy” of encouraging this practice.9
e. Faculty hiring decisions were not made on a religious basis except for the Theology Department.’°
f. Student admission and recruiting were not based on religious criteria, even though the great majority of students are Roman Catholic.
Those now pursuing public funds for church-affiliated institutions strive to eliminate the “pervasively sectarian” test as a factor in deciding whether or not an institution may receive tax funds. But they ignore the danger that antidiscrimination laws and impulses will prevent these institutions from serving as an undiluted church ministry.
Religious organizations have been viewed as uniquely different from other organizations, and entitled to special constitutional protection. This special status for pervasively sectarian organizations has insulated them from substantial governmental intrusion into their internal affairs. For example, the courts have held that the Constitution protects the right of pervasively sectarian organizations, such as religious schools, to hire or terminate their teachers free from antidiscrimination laws generally applicable to other employers. As noted constitutional scholar Douglas Laycock stated: “Church labor relations plainly fell within the right of church autonomy. Deciding who will conduct the work of the church and how that work will be conducted is an essential part of the exercise of religion. In the language of the Supreme Court’s autonomy cases, labor relations are matters of ‘church administration’; undoubtedly, they affect “the operation of churches.”
In Kedroff v. St. Nicholas Cathedral (344 U.S. 94 [1952]) the Supreme Court held it unconstitutional for government to be excessively entangled in church administration. In Serbian Eastern Orthodox Diocese v. Milivojevich (426 U.S. 696 [1976]) the Supreme Court held that the First and Fourteenth amendments permitted churches to establish their own rules and regulations for internal discipline and governance.
Courts have said that claims of establishment clause violations may arise both when government benefits religious organizations as well as when government potentially burdens religion.’~ For this reason it was logical for the Seventh Circuit in Catholic Bishop of Chicago v. NLRB (559 F.2d 1112, 1131 [7th Cir. 1977]) to conclude that an evenhanded approach to the First Amendment would seem to suggest that the religion clauses, serving to prevent financial aid to sectarian schools, should not be any less effective in warding off the inhibiting effect of government controls and demands.
Conversely, in Lemon v. Kurtzman Justice Byron White wrote that legislation providing assistance to any sectarian school that restricted entry on religious or racial grounds would, to that extent, be unconstitutional. 4
In fact, receipt of government support by a church agency has led to defeat of its church autonomy exemption from National Labor Relations Board jurisdiction. In NLRB v. St. Louis Christian Home” the NLRB sought enforcement of an order directing the Christian Home to engage in collective bargaining with the union.
Although the Christian Home was operated by the Christian Church, providing emergency residential care for battered, abused, and neglected children, it was denied First Amendment protection from NLRB jurisdiction. One of the factors defeating the church’s claim was that “the Home [received] funds primarily from government sources.”6 The Court suggested that “if the Home were not secular in nature, this collaboration could lead to constitutional problems under Lemon v. Kurtzman.”7
And so the debate continues not only outside, but also within, religious circles: between those who seek government support to help fund activities of faith-based educational institutions and those who fear that the acceptance of those funds will destroy the very purpose for which they were established.
Lee Boothby, an experienced litigation and appellate court lawyer, writes from Washington, D.C. He is president of the International Commission of Freedom of Conscience and vice president of the International Academy for Freedom of Religion and Belief.
W. E. Mcanus, “Felix Culpa—Report From the Ad Hoc Committee on
School Aid,” Catholic Lawyer 20 (Autumn 1974): 347, 353-354. (Italics
supplied.)
See Bowen v. Kendrick, 487, U.S. 589, pp.616- 617 (1988).
See Welter v. Seton Hall University, 608 A.2d 206 (N.J. 1992).
See Gay Rights Coalition of Georgetown University Law Center v. Georgetown
University, 536 A.2d 1 (D.C. App. 1987).
‘Roemer v. Board of Public Works of Maryland, 426 U.S., 736 (1976).
Ibid., pp. 757, 758.
Ibid.
Ibid., p. 756.
Ibid.
Ibid., p. 757.
‘Ibid., pp. 757, 758.
Douglas Laycock, “Towards a General Theory of the Religion Clauses:
The Case of Church Labor Relations and the Right to Church Autonomy,” Columbia Law Review 31 (November 1981): 1373, 1378.
See St. Elizabeth Community Hospital v. National Labor Relations Board, 708 F.2d 1436, 1441, n. 3 (9th Cir. 1983).
“Lemon v. Kurtzmar,, 403 U.S., p. 671, n. 2 (1971), White J., dissenting.
National Labor Relations Board v. St. Louis Christian Home, 663 F.2d, p. 60 (8thCir., 1981).
Ibid., p. 64.
‘Ibid., p.64,n.6.
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