Religion and sex in the Yale dorms: a legislative proposal requiring private universities to provide religious accommodations.

• Jurisdiction: United States
• Author: Weinberger, Joshua C.
• Date: 01 November 1998

INTRODUCTION

On October 15, 1997, four students filed suit against Yale University, claiming that their constitutionally protected right to free exercise of religion had been violated.(1) Yale has a policy requiring first- and second-year students to live in university housing.(2) These four students, all Orthodox Jews, claimed that dormitory life was incompatible with their strict religious standards of modesty.(3) Yale argued that living in the dormitories is "an integral component of a Yale education."(4) These students, however, did not want to choose between the best education available to them and adherence to their religious tenets. The two sides failed to reach a settlement, despite extensive negotiations, and the students filed suit in the United States District Court for the District of Connecticut.(5)

In July, 1998, the court granted Yale's motion to dismiss on all counts.(6) The students' primary legal theory was that Yale was a state actor, and, by failing to accommodate their religious needs, Yale violated the Free Exercise Clause of the First Amendment.(7) Although such a claim would have merit if Yale were a state university, the court, confirming the predictions of legal commentators, rejected the argument that Yale is a state actor.(8)

It was necessary for the students to rely on such a far-fetched legal theory because few of the federal anti-discrimination statutes provide a remedy for their claim.(9) Indeed, the only civil rights statute under which the students advanced a claim was the Fair Housing Act, a claim which also was dismissed by the court.(10)

This Comment argues for federal legislation requiring reasonable religious accommodations by private universities. This argument presupposes two major premises. First, modern society places an ever-increasing value on higher education. Today, a degree from an institution of higher learning is a prerequisite for almost any individual with professional aspirations.(11) Second, America has seen a religious awakening of sorts over the past few years.(12) The role of faith in our lives has been cast into the limelight. This trend can be seen both on Capitol Hill, where Congress has reaffirmed its commitment to religious freedom, and in the fact that many individuals, especially professionals and students, are rediscovering religion in their daily routines.(13)

Our legal system already recognizes that religious beliefs should not serve as an impediment to the realization of professional goals. To that end, Congress enacted Title VII, an anti-discrimination law prohibiting employers from punishing employees because of their religious observances.(14) The current civil rights statutes, however, have not kept pace with either society's relatively newfound emphasis on higher education or its religious revitalization. As citizens rekindle their interest in religion, the existing laws protecting the employee remain weak and ineffective, and there is no protection for the religious student enrolled in a private university. Individuals in college and graduate school, in pursuit of professional success, should be afforded at least the same protection from religious discrimination as job applicants and employees. Thus, in response to these societal trends, Congress should mandate that private universities make reasonable religious accommodations for their students.

In Part I, this Comment analyzes the obligation of a state-actor university to accommodate religious requests made by its students. This is an appropriate starting point, given the recent decision in a similar case involving religious accommodations and residency requirements at the University of Nebraska, a state actor. Furthermore, the plaintiffs in the Hack case advanced the legal theory that Yale is a state actor. Part I concludes that had the court deemed Yale a state actor, the school would have a duty to make reasonable religious accommodations. Part II considers the current federal anti-discrimination and civil rights statutes and concludes that there is presently no statutory remedy available to private university students whose religious observances fall beyond the guarantees of constitutional protection. Part II then presents the normative and policy arguments that support the proposition that Congress should create a cause of action to give redress to students who require reasonable religious accommodations. Part III will address ways in which the proposed legislation could violate the Establishment Clause, thereby limiting the scope of the proposal. Finally, in Part IV, this Comment suggests the affirmative constitutional basis for, and drafts the language of, the proposed legislation which imposes a duty to accommodate on private universities.

1. CONSTITUTIONAL REQUIREMENTS TO PROVIDE RELIGIOUS ACCOMMODATIONS

   1. The Precedents: Rader v. Johnston and Church of Lukumi Babalu Aye, Inc. v. City of Hialeah

      A fundamental principle regarding the Bill of Rights is that it only regulates governmental actors.(15) Thus, because Yale is a privately-operated, not a state-controlled, university, one would expect that it should not be bound by the restrictions of the Bill of Rights and the Fourteenth Amendment.(16) The heart of the Yale Five's case against the school, however, was found in a series of constitutional claims that assumed that Yale is a state actor.(17) Although contrary to the district court's conclusion, if we do assume that Yale is a state actor,(18) the most appropriate starting point for any analysis would be the constitutional requirements under the First Amendment to provide religious accommodations.(19) The case that most recently applied First Amendment law to the question of universities' obligation to provide religious accommodations is Rader v. Johnston.(20) Rader is not only the most recent case, but also the most directly on point to the case of the Yale Five, as it, too, discusses university residency requirements.

      Douglas Rader, a devout Christian and incoming first-year student to the University of Nebraska at Kearney ("UNK"), requested permission to live off-campus.(21) He asserted that the offensive and wild behavior that is typical of dormitories would drastically interfere with his religious lifestyle.(22) Rader needed UNK's permission to move off-campus because UNK, like Yale, has a parietal rule requiring first- and second-year students to live on-campus. UNK provided a number of reasons for this rule, including the positive effects of promoting diversity and tolerance among the student body, as well as enhancing student academic performance.(23) Despite these rationales, however, UNK had been less than rigorous in enforcing this policy: it waived the residency requirement in response to numerous claims of "exceptional circumstances," in addition to a number of standard exemptions.(24)

      Rader argued that the state university violated his rights under the Free Exercise Clause of the First Amendment by applying the parietal rule to him in a discriminatory fashion.(25) In assessing Rader's claim, the court applied the test outlined in Church of Lukumi Babalu Aye, Inc. v. City of Hialeah,(26) which addresses state action that curtails religious freedom.(27) In Church of Lukumi, the defendant city passed several ordinances designed to prevent the members of the Church of the Lukumi Babalu Aye from performing ritual animal sacrifices.(28) These ordinances were riddled with exceptions, allowing the slaughter of animals for almost any purpose other than ritual sacrifice.(29) In determining the constitutionality of this law, the Court's analysis initially turned on whether the state law was (1) neutral and (2) of general applicability.(30) If the statute or rule did not conform to either one of these requirements, the Court required, in order for the statute to pass Constitutional muster, that the statute (1) fulfill a compelling state interest and (2) be narrowly tailored to that objective.(31) Applying that test to Rader's situation, the district court concluded that UNK violated the First Amendment by forcing Rader to live in the dormitories.(32)

   2. Applying the Rader and Church of Lukumi Analyses to the Yale Case

      The First Amendment claim that Rader advanced was particularly strong because of several factors specific to his case.(33) This is reflected in the relative ease with which the court in Rader concluded that the UNK rule was unconstitutional.(34) In the Yale case, however, and a hypothetical case which this Comment will develop for purposes of discussion, a First Amendment claim would not be as strong.(35) Even under the facts of the Yale case, however, it still appears that a state-actor university would have a duty to make religious accommodations.

      1. Neutrality and General Applicability

         In Rader, LINK gave exemptions to over one-third of the incoming first year students for a variety of social and economic reasons.(36) Since the University accommodated the needs of a large portion of its student population, but not Rader's religious request, the court easily concluded that the University was not administering its rule neutrally.(37) Moreover, the existence of "standard" exemptions(38) showed that the rule was not generally applicable.(39) Thus, in order for UNK's parietal rule to pass constitutional muster, UNK would have had to show a compelling state interest to deny Rader's request.(40)

         Unlike Rader, Yale's rule was not only facially neutral, but also was implemented in a non-discriminatory manner.(41) The dorm requirement at Yale was faithfully enforced, with only the rarest of exceptions granted.(42) Yale's rule, however, still arguably could be considered not neutral or not generally applicable. Although Yale enforced the rule for the overwhelming majority of students, there were still a number of exceptions granted to married students and students over the age of twenty-one.(43) The Church of Lukumi Court stated that where...