During the run-up to the passage of the American Recovery and Reinvestment Act of 2009 (more commonly known as the "stimulus bill") earlier this month, I blogged about language in the draft of the bill that could potentially be misused by colleges and universities to limit students’ use of facilities renovated with stimulus money for religious purposes.
Senator Jim DeMint of South Carolina tried to delete the distressingly imprecise language from the bill, but his attempt was defeated. Even so, at one point, the language appeared to have been removed from the bill. But when the final bill was voted upon and signed into law, the language in question was indeed a part of it. You can find it under Title XIV of the bill, in the State Fiscal Stabilization Fund, Sec. 14004 (on pages 167–168 of this PDF). In pertinent part, it reads:
(c) ADDITIONAL PROHIBITION.
No funds awarded under this title may be used for—
(1) the maintenance of systems, equipment, or facilities;
(2) modernization, renovation, or repair of stadiums or
other facilities primarily used for athletic contests or exhibitions
or other events for which admission is charged to the general
(3) modernization, renovation, or repair of facilities—
(A) used for sectarian instruction or religious worship; or
(B) in which a substantial portion of the functions
of the facilities are subsumed in a religious mission.
(Emphasis added.) This is now federal law—but what does that mean? The answer is more confusing than it may appear.
As written, the law broadly forbids the use of stimulus funds to renovate buildings used for "sectarian instruction or religious worship." But the bill’s restriction on religious "use" is not limited to, for instance, the use of the facilities by the recipient of the stimulus funds, which would be the college or university itself, acting as an institution. Instead, the bill prohibits all use of the facilities for "sectarian instruction or religious worship," including such uses by students, student groups, and off-campus groups. And since nearly every meeting of a religious group involves some aspect of worship or instruction, the law may be read to require universities to prohibit practically all religious uses of general purpose facilities in order for those facilities to be eligible for stimulus funds.
In reality, though, any government agency or public university administrator who did what the text of the law seems to literally require (i.e., prevent any sectarian instruction or religious worship in any building renovated, repaired or modernized by stimulus funds) would almost certainly face a federal lawsuit—and lose.
The reason why is captured well in this Congressional Research Service report requested by Senator DeMint’s office. For those who don’t know, the Congressional Research Service, or CRS, is a nonpartisan office of the Library of Congress that exists to research legislation and legal issues for any member of Congress. Their report on this agreed that the legislation did literally ban religious student groups from meeting in facilities renovated with stimulus money, but that a court would be unlikely to actually allow a university or government agency to apply the legislation in such a way as to ban student religious activity.
I’m going to excerpt CRS’s report at length here, as it’s a good explanation of the potential constitutional infirmity of this provision:
…A literal reading of the provision may prohibit the use of funds under § 803 from being used for a building in which a religious student group convenes for private worship or a dormitory in which students exercise religious prayer. However, Supreme Court decisions and the typical administration of such a program through the agency regulation process would indicate such a broad reading is inappropriate and unlikely to be applied by courts.
Current Supreme Court precedent prohibits the government from directly funding religious activities, which may include religious instruction or worship, but under a line of decisions separate from the direct funding cases, the Supreme Court has held that the Establishment Clause does not forbid religious groups from using or having access to public facilities. The Court has held that it is unconstitutional to deny religious groups access to public facilities, including public schools, if the same facilities are made available to nonreligious groups. Restrictions that forbid religious groups from using public facilities while allowing nonreligious groups to have access treat religious groups differently in a manner that suggests disapproval of religion, in violation of the Establishment Clause. The Court interpreted the requirement of equal access to include access to benefits offered by public institutions when it required a public university to provide student activity funds to student groups regardless of the religious content of the group’s activities. These decisions indicate a requirement of neutrality in the treatment of religious groups and activities and non-religious groups and activities when dealing with public resources.
If an institution of higher education applies the prohibition on the use of funds literally (i.e., prohibiting student religious groups from meeting in any facility modernized, renovated or repaired by § 803 funds), that institution’s action likely would be considered a violation of Supreme Court precedent….
Short version: Any university that applies the law literally is extremely likely to get sued and lose. Or, as I wrote back on February 6: "Using the language of the stimulus bill to exclude religious student groups from campus buildings is ultimately a doomed enterprise."
So, was FIRE wrong to be concerned about the language in the stimulus bill? No, although some would disagree. For example, People for the American Way’s "Right Wing Watch" blog argued vehemently that those who were concerned about this language were both disingenuous and dead wrong. The main thrust of their argument in support of the provision as written was that similar (but not identical) language has been used in legislation before, and that the government or colleges couldn’t use it to prohibit religious student groups from meeting because they would lose the resulting lawsuit. In addition, proponents of the language argued that universities and government agencies know better than to apply the law as written.
Unfortunately, these arguments are fraught with problems. First of all, PFAW is arguing that passing a law that infringes on a person or group’s First Amendment rights is no big deal, because that person or group can always sue and get the courts to interpret the law in a way that it does not violate those rights. Now, there’s nothing wrong with this argument if you also presume that every person or group has plenty of money, access to good constitutional lawyers, and that the court proceedings will happen quickly so that access to constitutional rights will not be long delayed. However, that’s just not reality. Lawyers are expensive, if you can even find one, and cases can drag on for years, especially against a deep-pocketed university. Furthermore, counting on a public university administrator to always interpret the law correctly is a roll of the dice—hardly optimal when it’s your constitutional rights at stake.
The culture of academia today also increases the risk that the provision will be abused in order to infringe upon religious students’ rights. FIRE’s experience shows that the will to do so certainly exists among administrators across the nation. One need only peruse FIRE’s page of religious liberty cases to find example after example of policies being unconstitutionally applied to religious groups at public institutions. Just ask the Muslim Students Association at Louisiana State University, the Christian Student Fellowship at Indian River Community College, or former resident assistants at the University of Wisconsin – Eau Claire. In our informed experience, giving those administrators already inclined to restrict religious freedom another tool with which to work is a terrible idea.
The actual constituency for preventing religious groups from meeting in areas where other groups may freely meet is small, although it does exist. So thankfully, it seems relatively unlikely, though possible, that the language in the stimulus bill was really meant to impair the rights of religious students. Most language of this nature is meant to avoid entanglement between church and state, and is typically uncontroversial. That’s why this language is particularly frustrating. It would have been extremely easy to change the language in the bill to something that would have raised almost no eyebrows—just saying "primarily used for sectarian instruction or religious worship" would have been fine. Senator DeMint’s amendment stripping the language out completely would have been fine as well, since colleges and universities are accustomed to government grants and know that they can’t use the money to advance religious purposes.
Now that the language is part of the law, however, we must hope that it proves to be benign, and that neither universities nor government agencies will ever act as if the law means what it actually says. (This is far from certain, as ADF Senior Counsel and former FIRE President David French points out.) If faced with a choice between respecting basic constitutional rights and having laws that actually mean what they say, I choose constitutional rights. But that’s a decision a free society shouldn’t have to make.