What do the First Amendment clauses, ‘‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof’’ mean in the context of religion in public universities? Accommodationists believe government may aid or support religion in a neutral or nonpreferential way. Separationists reject any special accommodation or direct support of religion since they may jeopardize the principle of a strict separation of church and state. These contradictory interpretations inspire debate over the extent to which religious activities merit government support or accommodation in public universities and schools.
The Supreme Court first ruled voluntary statesponsored prayer in public schools unconstitutional in Engel v. Vitale (1962). According to Justice Hugo Black, writing for the eight-to-one majority, ‘‘the constitutional prohibition against laws respecting an establishment of religion must at least mean that in this country it is not part of the business of the government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by the government.’’ Justice Potter Stewart disagreed and argued that the school prayer was voluntary, part of a long American tradition and, as he wrote in another dissent (Abington v. Schempp), a ‘‘compulsory state educational system so structures a child’s life that if religious exercises are held to be an impermissible activity in schools ... [this will be] seen, not as a realization of state neutrality, but rather as the establishment of a religion of secularism.’’
The Court has consistently expressed special concern for impressionable students (K–12) who might be influenced by religious activities (prayers, statefunded bus trips for sectarian schools, and until the 1980s, provision of university or public school facilities for religious extracurricular groups) appearing to be sponsored or funded by the government. However, it has also ruled that protection of free exercise of religion should not subordinate to the nonestablishment clause. (See Mitchell v. Helms , Mueller v. Allen , and Zellman v. Simmons-Harris , for example, for cases that allowed formerly excluded state provision of secular books, tuition coverage, and scholarships.)
Accommodation of religion at the university level reemerged with a few changes in Court personnel in the 1980s. In Widmar v. Vincent (1981), Justice Lewis Powell found protection of religious activity elsewhere in the First Amendment (in the free speech component). Powell, writing for the majority, held that ‘‘a state university, which makes its facilities generally available for the activities of registered student groups, may not close its facilities to student groups desiring to use the facilities for religious worship and discussion.’’ Powell concluded that enabling participation of university religious groups had a ‘‘secular purpose’’ (advancing education), did not have the ‘‘primary effect’’ of advancing religion, and did not excessively entangle government with religion. This result met the requirements of the Court’s 1971 Lemon test that attempted to clarify what constituted ‘‘establishment of religion.’’
Finding the idea of protecting religion via the principles of free speech and equal participation compelling, the U.S. Congress passed the Equal Access Act (1984). According to the Act, ‘‘It shall be unlawful for any public secondary school which receives Federal financial assistance and which has a limited open forum to deny equal access [to] any students who wish to conduct a meeting within that limited public forum on the basis of religious, political, philosophical or other content of the speech at such meetings.’’
Since the Supreme Court rules on the constitutionality of such legislation, school boards had to wait until 1990 (Board of Education v. Mergens ) to understand the extent to which ‘‘equal access’’ applied. In Mergens the Court (eight to one) held that since the school board allowed ‘‘noncurriculum related student groups’’ to meet on campus, the high school must allow Christian student groups similar access. The Court found it permissible for public schools to accommodate religious activity in a neutral, nonendorsing, and noncoercive atmosphere. Equal access would only violate the establishment clause if it coerced students to participate in religious activity or gave benefits ‘‘directly’’ to a religion. Justice Sandra Day O’Connor, writing for the majority, stated, ‘‘We think secondary school students are ... likely to understand that a school does not endorse or support student speech that it merely permits on a nondiscriminatory basis.’’
The Court thus edged away from the hyperseparationist Lemon test, which assumed that even incidental government benefit to religion advanced religion or entangled government and religion impermissibly, toward a neutrality or noncoercion test. This shift toward neutral accommodation of religion and protection of equal access manifested itself also at the university level in Rosenberger v. University of Virginia (1995). Here the Court ruled that government may not discriminate against religion in excessive zeal to isolate itself completely from religion. In this case, the University of Virginia had prohibited funding for a student newspaper with a ‘‘Christian perspective’’ because it ‘‘primarily promotes or manifests a particular belie[f] in or about a deity or ultimate reality.’’
According to Justice Anthony Kennedy, writing for the five-to-four majority, to deny funding denied the religious group its ‘‘right of free speech’’ and equal access. Referring to Lamb’s Chapel (1993) and Widmar, Kennedy wrote, ‘‘The University may not discriminate based on the viewpoint of private persons whose speech it subsidizes.’’ The Court concluded:
A public university does not violate the establishment clause when it grants access to its facilities on a religion neutral basis to a wide spectrum of student groups, even if some of those groups would use the facilities for devotional exercises.... We have long held that the guarantee of neutrality is respected, not offended, when the government, following neutral criteria and evenhanded policies, extends benefits to recipients whose ideologies and viewpoints, including religious ones, are broad and diverse.... [W]e have rejected the position that the establishment clause even justifies, much less requires, a refusal to extend free speech rights to religious speakers who participate in broad-reaching government programs neutral in design.
Clarence Thomas reminded dissenters of ‘‘our Nation’s long tradition of allowing religious adherents to participate on equal terms in neutral government programs.’’
The dissenters (Justices Souter, Stevens, Ginsburg, and Breyer) argued otherwise: ‘‘[T]he Court today, for the first time, approves direct funding of core religious activities by an arm of the state.... Using public funds for direct subsidization of preaching the word is categorically forbidden under the establishment clause.’’ The dissenters saw the university’s funding of the ‘‘frankly evangelistic’’ Christian-perspective newspaper as equivalent to support for its proselytizing mission and thus unconstitutional. Following this logic that prohibits almost any support of religious activity would, of necessity, lead the university to end support for campus religious clubs. However, the dissenters did not worry about this because they feared religious evangelism, while the equally proselytizing viewpoints of marxists, feminists, or any brand of secular group could not jeopardize the ‘‘no establishment’’ clause because they were not ‘‘church[es].’’
Such arguments wash out the right of religious voices to be included in university conversations. Despite specific protection of the right to express and exercise one’s religion in the First Amendment, the dissenters would prohibit public university (government) support of a religious group’s expression, while other groups could express at will under government subsidy. Dismissing this unequal prohibition, the Court in Rosenberger ruled against viewpoint discrimination. While this round in the war between the religion clauses went to a neutral accommodation of religion by public universities, lack of clarity remains. At the time of this writing, simmering in the lower courts are cases regarding college student groups’ ‘‘right’’ to choose those who share their faith-based doctrine as leaders even while thus ‘‘discriminating’’ against those who do not share their view, ‘‘voluntary’’ prayer at Virginia Military Institute, and a college teacher’s ‘‘right’’ to identify his religious orientation in the classroom.
L. SUE HULETT
References and Further Reading
Cases and Statutes Cited
See also Equal Access Act; Establishment Clause (I): History, Background, Framing; First Amendment and PACs; Free Exercise Clause (I): History, Background, Framing; Freedom of Speech: Modern Period (1917– Present); Kennedy, Anthony McLeod; Lemon Test; O’Connor, Sandra Day; Powell, Lewis Franklin, Jr.; Rehnquist, William H.; Souter, David Hackett; Stewart, Potter; Thomas, Clarence; Viewpoint Discrimination in Free Speech Cases