Welcome to the Religion Section of our webpage. This front page will reflect our most current information on either constitutional law or statutory law on religion affecting educational institutions.

 

Recission of the Regulation Entitled Ensuring That Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law, Proposed Rule on Conscience Clause 74 Fed. Reg. 10207 March 10, 2009 

The proposed rule would rescind the Department's Provider Conscience Regulation issued on December 19, 2008 at 73 Fed. Reg. 78071 and made effective January 20, 2009. The Provider Conscience regulation was designed to implement the provisions of several "provider conscience" statutes enacted by Congress over the past three decades:  The Church Amendments (42 U.S.C. § 300a-7), Public Health Service (PHS) Act §245 (42 U.S.C. § 238n), and the Weldon Amendment (Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, § 508(d), 121 Stat. 1844, 2209). Comments on the proposed recission are due by April 9, 2009. Note that the underlying laws are not affected. This proposed rule, if adopted would only repeal the requirement for an additional certification which would include a reference to the nondiscrimination provisions contained in the Church Amendments, PHS
Act Sec. 245, and the Weldon Amendment in certifications currently required of most existing and potential recipients of Department funds.

 

Carroll College Inc. v. NLRB

No. 07-1315 United States Court of Appeals for the DC Circuit

In this case the court held the Board had no jurisdiction to order Carroll College to bargain with the union, and that the court had authority to invalidate the Board's order even though the college did not raise its jurisdictional challenge in the earlier proceedings. The court cited University of Great Falls v NLRB and held the Board's approach had involved the sort of intrusive inquiry that the Supreme Court had sought to avoid in NLRB v. Catholic Bishop of Chicago. The three part test from Great Falls states that a school is exempt from NLRB jurisdiction if it 1) holds itself out to students, faculty and the community as providing a religious educational environment; 2) is organized as a *nonprofit*; and 3) is affiliated with or owned, operated or controlled, directly or indirectly, by a recognized religious organization, or with an entity, membership of which is determined, at least in part, with reference to religion.

 

This test is found to "ensure that schools claiming the Catholic Bishop exemption are bona fide religious institutions, while avoiding the Board inquiry into the substance and contours of their religious beliefs and missions."

 

 

 

Section 14004 of the American Recovery and Reinvestment Act (pp 167-168)

This provision (it was Section 803 of the Senate Substitute Stimulus Bill) restricts the use of State Fiscal Stabilization Funds by Institutions of Higher Education.  

 

SEC. 14004. USES OF FUNDS BY INSTITUTIONS OF HIGHER EDUCATION.

(a) IN GENERAL.—A public institution of higher education that receives funds under this title shall use the funds for education and general expenditures, and in such a way as to mitigate the need to raise tuition and fees for in-State students, or for modernization, renovation, or repair of institution of higher education facilities that are primarily used for instruction, research, or student housing, including modernization, renovation, and repairs that are consistent with a recognized green building rating system.

(b) PROHIBITION.—An institution of higher education may not use funds received under this title to increase its endowment.

(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 public; or (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.

For clarification, see the legal analysis on this provision in a Congressional Research Service memo to Senator Jim DeMint dated Feb. 12, 2009 (password protected). This memo clarifies that the text above should not be construed contrary to Supreme Court case law, which provides that private religious activities may not be prohibited, particulary if similar non-religious activities are allowed in the same location.

 

 

Section 495 of the Higher Education Opportunity Act
A new requirement was added to 20 USC 1099b that requires accreditation standards to respect the stated mission of the institution of higher education, including religious missions. The text is as follows:

‘‘(4)(A) such agency or association consistently applies and enforces standards that respect the stated mission of the institution of higher education, including religious missions, and that ensure that the courses or programs of instruction, training, or study offered by the institution of higher education,including distance education or correspondence courses or programs, are of sufficient quality to achieve, for the duration of the accreditation period, the stated objective for which the courses or the programs are offered;

*Conscience Clause* Ensuring That Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices In Violation of Federal Law, 73 Fed. Reg. 50274 (August 26, 2008)
This regulation to is ensure protection for Health Care Providers from discrimination based upon right of conscience. The new regulation would be codified at 45 CFR  Part 88. This proposed rule would increase awareness of three separate laws protecting federally funded health care providers' right of conscience: The Church Amendments (42 U.S.C. § 300a-7), Public Health Service (PHS) Act §245 (42 U.S.C. § 238n), and the Weldon Amendment (Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, § 508(d), 121 Stat. 1844, 2209). In order to ensure that recipients of Department funds know about their legal obligations under these nondiscrimination provisions, the Department proposes to require written certification by certain recipients that they will comply with all three statutes, as applicable. See the HHS Press Release summarizing the Proposed Regulation.

 

Colorado Christian University v. Weaver, et al.  (No. 07-1247) (10th Cir. July 23, 2008)

The court in this case found a state scholarship program, which provided scholarships to eligible students who attended any accredited college in the in the state of Colorado, unconstitutional to the extent that is excluded from the program any college deemed to be pervasively sectarian. Colorado Christian University (CCU), after being excluded from the program as pervasively sectarian, brought suit claiming violation of the First and Fourteenth Amendments. The district court held for the state, but the Court of Appeals for the 10th Circuit reversed and granted summary judgment in favor of the university.

 

The Court of Appeals found the program unconstitutional for two reasons: The program expressly discriminates among religions without constitutional justification, and its criteria for doing so involves unconstitutional scrutiny of religious belief and practice.

 

The parties agreed that the Establishment Clause posed no bar to inclusion of CCU in the program. The Colorado legislature had not yet repealed its statutory restriction on "pervasively sectarian" schools. The dispute thus focused on whether a state may choose to exclude pervasively sectarian institutions, even when not required to, and the court concluded it may not.

 

On the discussion of discriminating among religions, the court pointed out that the program allowed attendance with the scholarship money at "sectarian" schools,  but not *pervasively* sectarian schools, thus " Colorado necessarily and explicitly discriminates among religious institutions." The court quoted the Columbia Union College case (4th Cir.) which concluded that the pervasive sectarian test should be abandoned. On the question of entanglement, the court noted as follows:

 

The Colorado provisions challenged here are fraught with entanglement problems. The most potentially intrusive element of the Colorado statute is the criterion requiring Commission staff to decide whether any theology courses required by the university “tend to indoctrinate or proselytize.”  ***  To decide that these syllabi were likely “to convince” the students of religious truths, the Commission had to decide how religious beliefs are derived and to discern the boundary between religious faith and academic theological beliefs. *** Commission officials testified that they demanded to see CCU’s religious education curriculum, and (for reasons known only to themselves) determined that it “tend[ed] to indoctrinate or proselytize.” The line drawn by the Colorado statute, between “indoctrination” and mere education, is highly subjective and susceptible to abuse.

In the conclusion, the court noted quite strongly:

We cannot and will not uphold a statute that abridges an enumerated constitutional right on the basis of a factitious governmental interest found nowhere but in the defendants’ litigating papers. But even if saving taxpayers from supporting students who choose a religious education were an actual state interest, it would still fail because the statute is not narrowly tailored to this asserted goal.

For more, see the July 24, 2008 Inside Higher Ed article titled U.S. Court Rejects Pervasively Sectarian Test.   





links updated 8/5/08 rab