The most recent version of the economic stimulus bill currently in the U.S. Senate contains the following provision for the allocation of $3.5 billion for renovations and upgrades to buildings at colleges and universities:
(2) PROHIBITED USES OF FUNDS.—No funds awarded under this section may be used for—(A) the maintenance of systems, equipment, or facilities, including maintenance associated with any permissible uses of funds described in paragraph (1); (B) 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 public; (C) modernization, renovation, or repair of facilities— (i) used for sectarian instruction, religious worship, or a school or department of divinity; or (ii) in which a substantial portion of the functions of the facilities are subsumed in a religious mission; or (D) construction of new facilities. [Emphasis added.]
Taken as a whole, the most sensible interpretation of this provision is that it is meant to ensure that federal stimulus money does not go towards, as it says, campus chapels, churches, or divinity school buildings. Unfortunately, it looks as though in an effort to avoid having universities spend stimulus funds on these sorts of structures under different names, the authors of this provision have used language that could also be interpreted as preventing religious activities even in general purpose buildings like auditoriums, student centers, and even dormitories that are open equally to all students.
Members of Congress are mostly long out of college, and may not realize or remember that among the profusion of student groups on campus are many religious groups who carry on Bible, Torah, or Koran studies, small worship services, prayer meetings, and the like in various places on campus—not just in chapels, schools of divinity, or otherwise religiously themed buildings. When I was in college, for instance, my religious student group generally met in the basement of the chapel but we also met occasionally in classrooms and the student center. Dormitory common rooms were another place that religious groups frequently met. One, the Fellowship of Christian Athletes, actually met in the lobby of Cameron Indoor Stadium. Religious activity on campus is hardly limited to the buildings designed for it.
That's why there's a real risk if Congress enacts language specifying that facilities renovated with stimulus money cannot be "used for sectarian instruction [or] religious worship." Religious group meetings frequently, if not always, include instruction and worship. I know mine did. I can't believe it's the intention of Congress to shut religious groups out of facilities that are used by every other kind of group on campus. Does anyone really think that a fraternity should be able to hold a meeting in the student center while a Bible study group cannot? I hope not, but as currently written, the law can very plausibly be interpreted that way.
Compounding the problem is the fact that equal access to facilities for religious groups has long been problematic on our nation's campuses. FIRE itself has fought a number of these battles, usually over "recognition" rights that, if granted, guarantee access to space on campus. Indeed, the majority of cases on our Religious Liberty page have to do with denial of recognition rights for Christian or Muslim religious groups, and the most critical part of recognition for these groups has not been access to student fee money but rather access to meeting space on campus. (Most religious groups that FIRE has dealt with have not requested or received any funding from the university, although they would be legally entitled to do so on an equal basis with secular groups.) If Congress were now to pass and the President to sign a law that would once again interfere with the right to equal access, FIRE is likely to face a lot more of these cases in the future.
The real risk of this provision, it seems to me, would come not from federal government agencies (who are likely to have much better things to do than police whether or not there's a Bible study group having a meeting at the student center) but from college and university lawyers and administrators, who will be very tempted to take what they see as the "safe" way out to avoid jeopardizing their stimulus money and ban religious groups from using some campus facilities. After all, that would be a reasonable interpretation of the law, and they would reason that the threat and expense of a lawsuit from a campus group is far less than the threat of being accused of misusing federal funds.
But while banning religious campus groups from buildings, taken alone, would be a reasonable interpretation of the stimulus bill provision, it would also be an unconstitutional interpretation of it. In the U.S. Supreme Court case of Widmar v. Vincent, 454 U.S. 263 (1981), the University of Missouri at Kansas City had denied a religious group called Cornerstone the right to meet in university buildings out of concern that allowing the group to meet was a form of support for religion that violated the Establishment Clause of the First Amendment (presumably, a similar concern, rather than animus against religion, is behind the restriction in the stimulus bill).
This rationale was resoundingly rejected by the Supreme Court, which did not find the university's Establishment Clause concerns to be a compelling enough state interest to justify restricting the rights of the student group under the Free Exercise and Free Speech clauses. In the present case, the Establishment Clause concerns may be those of the federal government as expressed through the stimulus bill, but this does not matter—the First Amendment applies to the federal government just as thoroughly as it does to the University of Missouri at Kansas City.
Using the language of the stimulus bill to exclude religious student groups from campus buildings is ultimately a doomed enterprise. But if the provision is passed in its current form and then applied in an unconstitutional way, the only recourse will be the slow process of federal litigation. Years could well go by while students are routinely denied access to campus buildings renovated with stimulus money while the wheels of justice grind forward. Senator Jim DeMint has already offered an amendment to strip the language out of the bill, but it was defeated 43–54. In truth, the language probably does not need to be stripped out, just amended to make it clear that buildings open for general use by campus groups can also be used by campus religious groups. However, there is still a lot of process left to go before the bill becomes law, and hopefully more efforts can be made to remove or amend the problematic language. If not, and if this provision's unconstitutional interpretation is adopted by university authorities, religious students could potentially be facing big challenges in the area of access to meeting space in the years ahead.
We're joined by First Amendment attorney Marc Randazza and British journalist Brendan O'Neill to discuss the state of free speech in the United States and Europe. Randazza is a First Amendment attorney and the managing partner at Randazza...