Colleges and Universities

The Establishment Clause prohibits states from establishing an official religion. Thus, a public university may not denominate itself as a religious school, nor may the state directly fund

In 1995 the Second Circuit Court of Appeals held that the City College of New York could reduce the term of Leonard Jeffries, a black studies professor and chairman at the school, based on an off-campus speech he made in 1992.
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a private religious school. At the same time, the Free Exercise Clause prohibits states from restricting individuals in the practice of religion. Thus, a public university may not permit all student groups except for religious groups to use its facilities. Maintaining a balance between the two clauses is not simple, and it has generated controversy in two principal areas: the extent to which the state may fund attendance at private religious schools indirectly, and the extent to which public schools may fund religious activities on campus directly.

Public Funding of Private Religious Practice In 1971, the U.S. Supreme Court decided Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971), which defined the scope of the Establishment Clause. In Lemon, the Court held that a state policy or practice violates the Establishment Clause if it fails to satisfy a three-part test: First, the policy must serve a secular purpose. Second, the primary effect of the policy cannot be to advance or inhibit religion. Third, the policy cannot foster an excessive entanglement of the state with religion.

Unfortunately, the Lemon test is easier to state than to apply, and it has led to numerous lawsuits concerning the relationship of state-funding programs to private religious organizations. Generally, a state law that provides benefits to individuals without regard to religion does not violate the Establishment Clause even if an individual uses the state benefits for a religious purpose. For example, in Witters v. Washington Department of Services for the Blind, 474 U.S. 481, 106 S. Ct. 748, 88 L. Ed. 2d 846 (1986), the U.S. Supreme Court held that a blind Washington resident was eligible for state vocational rehabilitation assistance, even though he planned to use the funds to complete his religious training at a Christian college. The Court held that payment of public assistance by the state satisfied the Lemon test because the aid was provided directly to the individual, was not skewed toward religion in any way, and created no financial incentive for students to undertake religious education. Furthermore, the Court noted that the primary effect of the assistance program was not to advance religion and that religious programs would not benefit in any significant or disproportionate way from the state program.

In contrast, in Stark v. St. Cloud State University, 802 F.2d 1046 (1986), the U.S. Court of Appeals for the Eighth Circuit held that a state university violated the Establishment Clause by permitting education students to satisfy their student-teaching requirement at parochial schools. The court noted that the public university approved the use of religious schools, including them on a list of appropriate schools for student teaching, and that because of this, the university had entangled itself excessively with religion.

Public Schools and Religious Activity Funding of religious activities in public schools requires similar BALANCING. The U.S. Supreme Court held in 1995 that a public university may fund a student-run religious publication without violating the Establishment Clause. In Rosenberger v. Rector of the University of Virginia, 515 U.S.819, 115 S. Ct. 2510, 132 L. Ed. 2d 700 (1995), a sharply divided Court considered a Christian student group's claim that the university's refusal to pay the publication costs of its newspaper, even though it paid the costs of printing other student publications, violated the Free Speech Clause of the First Amendment. The university had convinced the U.S. Court of Appeals for the Fourth Circuit that it had a compelling interest in not funding the newspaper: specifically, to avoid violating the Constitution's Establishment Clause, which prohibits the government from establishing, or promoting, religion. Before the U.S. Supreme Court, the university backed off on this argument and instead stated that it had a right to be selective in its choice of recipients of public funds (i.e. university student fees). The Court considered both arguments and found that the university's policy regarding the distribution of monies from student fees was neutral, that is, that it could not be seen as a policy designed to advance religion; the Court therefore concluded that the free speech rights of the student publication prevailed and ordered the university to pay the publication costs of the Christian student group's newspaper.