The Establishment Clause and public universities: drawing the constitutional line between permissible and impermissible support of religious student groups.

• Author: Mitchell, James E.

INTRODUCTION

The framers of the Constitution almost certainly did not contemplate the ramifications the First Amendment's Establishment Clause would have, centuries later, on the modem American public university. But, thanks to the incorporation of the Bill of Rights, the Establishment Clause's prescription that "Congress shall make no law respecting an establishment of religion" (1) applies with equal strength to the states and their political subdivisions. (2) One such subdivision, of course, is the state-run university.

Consider the following hypothetical. A village is looking to build a public community center on government property made up of ten vacant lots. The mayor proposes the establishment of a public square, consisting of a civic center, a courthouse, a hospital, a police station, a grammar school, a secondary school, a community college, a Catholic church, a Presbyterian church, and a temple for Reform Judaism. The mayor's legal adviser, looking over the proposal, sees a possible constitutional issue, as building three places of worship would seemingly violate the Establishment Clause. "No, sir," replies the mayor, "because the Establishment Clause only means that I have to be neutral to religion, and that's exactly what I did. I didn't make all the proposals religious. I have places that deal with civic involvement, education, law enforcement, and a hospital. You can't say that I am being partial, or that I'm favoring civics over religion, or vice versa. I'm not being anything but neutral amongst the different religions, too. Our town is approximately one-third Catholic, one-third Presbyterian, and one-third Jewish, so I m being neutral on that issue as well."

While the mayor is undoubtedly correct in defending his proposal as facially neutral, his lawyer is just as correct in spotting a constitutional violation. If the Establishment Clause stands for one proposition, it is that the government may not use public money to fund a religious institution or place of worship. (3) Given their status as public entities, state universities are under the same Establishment Clause proscriptions as state governments, and they may not directly establish any church or religious institution. Of course, it would be highly unlikely for a public university to establish an official, school-sponsored religion. Religious student groups are, however, quite common at American colleges. (4) Their existence at state schools raises the following constitutional question: To what extent may public universities support religious student groups without running afoul of the Establishment Clause?

The Supreme Court's recent ruling in Christian Legal Society v. Martinez (5) suggests that there is a higher standard for religious groups seeking monetary support from state universities than for those merely seeking use of school facilities. (6) While the standard for granting religious groups access to school facilities may be low, (7) common sense dictates that there should be a limit to this type of support, as no one would realistically contend that any religious group could constitutionally rent a public facility and transform it into a place of worship.

This Note attempts to discern that line between constitutional and unconstitutional state support of religious student groups at public universities. Part I describes four key cases composing the Supreme Court's modern jurisprudence in this area. Part II analyzes the Court's holding in Christian Legal Society v. Martinez, and Part III examines a case, recently decided by the Court of Appeals for the Seventh Circuit, that directly addresses the question presented here. Lastly, Part IV sets forth a standard for judging where university support of religious groups violates the Establishment Clause.

1. THE SUPREME COURT ON THE ESTABLISHMENT CLAUSE AND PUBLIC UNIVERSITIES

   Any discussion of the Supreme Court's Establishment Clause jurisprudence should begin with Lemon v. Kurtzman, (8) the most canonical case regarding the Establishment Clause and public education. At issue in Lemon were two state statutes prescribing government aid to religious schools. (9) In striking down the statutes as unconstitutional, Justice Burger, writing for the majority, devised a three-pronged test for ascertaining whether state support of religious institutions contravenes the Establishment Clause. (10) The Lemon test is as follows: For a statute to be permissible under the Establishment Clause, "[f]irst, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion." (11)

   In many modern Establishment Clause cases, the Court has applied Lemon when determining the constitutionality of a given statute. (12) Since its inception, however, the Lemon test has been slightly recalibrated (13) and criticized somewhat. (14) Nevertheless, Lemon is still good law and therefore provides a helpful analytical backdrop for examining the Establishment Clause concerns raised at public universities.

   1. Widmar v. Vincent

      A decade after Lemon, the Court again examined the Establishment Clause in Widmar v. Vincent. (15) There, the Court considered the constitutional ability of a public university, having made its facilities generally available to all registered student groups, to deny such access to a registered religious group. (16) The Widmar plaintiffs attended the University of Missouri and were members of Cornerstone, a religious student group. (17) After four years of granting Cornerstone registered status, the University rescinded Cornerstone's ability to conduct meetings on campus. (18) The Supreme Court found for Cornerstone, holding that, "[h]aving created a forum generally open to student groups," the University could not "enforce a content-based exclusion of religious speech." (19)

      Writing for the Widmar majority, Justice Powell focused on the "generally open" nature of the University's policy regarding access to campus facilities. (20) Where a state university creates a generally open forum, "[t]he Constitution forbids [it] to enforce certain exclusions from [the] forum generally open to the public, even if it was not required to create the forum in the first place." (21) The Widmar Court thus rejected the university's claimed interest in following the Establishment Clause as a valid justification for excluding religious groups from campus facilities. (22)

   2. Lamb's Chapel

      A dozen years after Widmar, the Court revisited many of the same issues in a slightly different context in Lamb's Chapel v. Center Moriches Union Free School District. (23) Lamb's Chapel concerned a local school district's refusal to grant a church's application to use school facilities to present a religious film series. (24) The church, Lamb's Chapel, had applied to the school district for permission to present films that dealt with family and child-rearing concerns from a Christian viewpoint. (25) The district rejected Lamb's Chapel's request, invoking a school board regulation that "' [t] he school premises shall not be used by any group for religious purposes.'" (26)

      Lamb's Chapel presented the question "whether it discriminates on the basis of viewpoint to permit school property to be used for the presentation of all views about family issues and child rearing except those dealing with the subject matter from a religious standpoint." (27) Therefore, the Court considered the Free Speech Clause at issue, not either of the Religion Clauses. (28) The speech clause, according to the Court, "forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others." (29) The Court, therefore, implicitly considered a dichotomy between free speech and free exercise cases. Where a religious group aims to speak on a topic that is not per se religious, such as child-rearing, from a viewpoint informed by its religious faith, the implicated right is the right to free speech. (30) This rule suggests, conversely, that where speech or conduct is solely religious and does not relate to a secular matter, the Free Exercise Clause is the constitutional guarantee implicated. (31) Accordingly, because the films at issue dealt with secular topics from a religious perspective, (32) the Court decided the case under the Free Speech Clause. (33) Concluding that any nonreligious film series on family and child-rearing would be allowed under the school district's policy, and that the only reason given for the district's rejection of the Lamb's Chapel application was the films' religious nature, the Court held the denial of the church's application to be unconstitutional viewpoint discrimination. (34)

      The Court did consider the effect of the Establishment Clause on the public school's provision of access to the church, but it considered Widmar wholly controlling on this point. (35) As in Widmar, the Court found "the posited fears of an Establishment Clause violation," posed by allowing the church group access to school facilities, to be "unfounded." (36) Because the school district property was open to a variety of groups, religious and nonreligious, the Court saw little chance that anyone could have concluded the state was sponsoring the religious message at issue. Echoing Widmar, the Court decided that such a fear was baseless, given the myriad of student groups provided with access to university facilities. (37)

   3. Rosenberger v. University of Virginia

      Both Widmar and Lamb's Chapel dealt exclusively with the provision of state facilities--physical, tangible space--to religious student groups. A couple of years after Lamb's Chapel, in Rosenberger v. Rector & Visitors of University of Virginia, (38) the Court considered the constitutionality of a public university's monetary support of religious groups. (39) At issue in Rosenberger was a request...