SB1146, Are Religious Colleges Under Attack?

Biola Pressroom released this letter to Biolans and Biola supporters. According to this list there are 12 Religious Colleges and Universities which could lose Cal Grant funding if SB1146 becomes law. The original text of the bill has been recently changed to only provide the religious exemption to schools not affiliated with a denomination.

This bill would limit the religious exemption from the Equity in Higher Education Act to certain educational programs and activities of a postsecondary educational institution that is controlled by a religious organization….The bill would make the provisions of the Equity in Higher Education Act severable… This chapter shall not apply to educational programs or activities offered by an educational institution that is controlled by a religious organization to prepare students to become ministers of the religion, to enter upon some other vocation of the religion, or to teach theological subjects pertaining to the religion, if the application of this chapter would not be consistent with the religious tenets of that organization.

Between the 12 listed institutions just over 21,000 students may be directly impacted. Take Biola and Azusa Pacific for example, these two schools are easily the largest on the list of affected schools if this bill becomes law. If 68% and 74% of the students from Biola and APU respectively graduate with borrowed funds, it is reasonable to believe most of them receive funds from Cal Grant. For the sake of argument suppose only half actually get Cal Grant, but without it they would not be able to attend. Can any institution survive a decline of 34-39% of their students? Because there is no date found in the text and this amends an already active law, this is assess if the law is signed this summer the changes will go into effect this coming Fall.

Between the original text (see the red strikethrough) this appears to be a state response following the apparent lead by the Department of Education. In my blog from earlier today I pointed to a helpful article by a Harvard Law Professor on the Title IX bind where schools are forced to accommodate LGBT students while simultaneously sexually offending other students. By all accounts if this bill becomes a law, we will have a new version of Bob Jones v. United States (1983). Instead of racially motivated restrictive admission policies that cost the school federal student aid, it will be discriminatory policies against the LGBT community. Although the text of the bill at current has struck through that text, to me, this only means better lawyers have made alterations to target religious institutions progressively. If the original text remained there would have been active support from our Roman Catholic brethren. If the whole of the religious community does not come together to mobilize their supporters I very easily see this bill being like a poem from a German pastor during WWII.

First they came for the communists, and I did not speak out - because I was not a communist; Then they came for the socialists, and I did not speak out - because I was not a socialist; Then they came for the trade unionists, and I did not speak out - because I was not a trade unionist;

Then they came for the Jews, and I did not speak out - because I was not a Jew; Then they came for me - and there was no one left to speak out for me.

Allegedly the author of the bill claimed this was not to target religious institutions but, based on the amended text, who was this supposed to affect? This bill only affects religious institutions. Did Senator Lara, a Los Angeles native and member of the LGBT community, have in mind that California debt was too much and college aid was fiscally important? I think it is fair that the original text of the bill does not target religious institutions specifically but it would still greatly impact them. It is the duty of a legislator to consider the effects of all parties involved, not just their particular interest group.

When I analyzed the original text, I found it to be a clear violation of the Lemon Test, brought to you by Lemon v. Kurtzman (1971). The Lemon Test has three parts which must be acceptable in order for a law to be constitutional and nondiscriminatory towards an establishment of religion. These criteria are:

1. "the statute must have a secular legislative purpose"
2. "its principal or primary effect must be one that neither advances nor inhibits religion"
3. "the statute must not foster "an excessive government entanglement with religion.””

Based on these three criteria I am having trouble seeing any of these passing muster.

Then again if one looks to the 7th Court of Appeals Wheaton College v. Burwell (2014). This was Wheaton’s suit against Affordable Care Act (Obamacare) on the same grounds as Little Sisters of the Poor and Hobby Lobby. It should be sadly noted that in the 8-0 judgement more or less in favor of the Little Sisters of the Poor, the Court explicitly said that case was not to be used as a guide to other cases, specifically Wheaton College v. Burwell. In this case, the 7th Circuit Court of Appeals ruled against Wheaton College. The important question following Hobby Lobby’s victory, which many institutions hoped would be answered by Zubik (Little Sisters of the Poor), was if the religious exemption eligibility could be applied to nonprofit institutions. After all, if it could apply to for-profit businesses, why would it not apply to non-profit religious organizations. The primary argument against the Little Sisters of the Poor, was the claim that they were not a religious organization...Let that sink in for a minute.

If SB1146 becomes law, then all the affected institutions should file an immediate suit challenging the constitutionality of the law. In order for it to not go into immediate effect, a judge would have to declare an injunction to prevent the change until the courts processes the challenge. Depending on the sensibilities of the judge it could go one way or another. If the injunction does not occur, then there is a real possibility the schools would go bankrupt before the courts workout the challenges.

This is a state law, therefore the challenge would have to begin at the state courts. It would not be wise to look immediately to the Supreme Court as such a case would likely take at least 4 years to even be submitted to be heard by the Supreme Court. Between this case potentially being a constitutional one and the 7th Circuit Court of Appeals having ruled on this, if the 9th Circuit Court of Appeals ruled in favor of the colleges (if you believe in miracles, such a ruling by that court would definitely qualify) that would bring the probability of the Supreme Court to hear the case up to maybe 5% chance. Oh, being that we don’t know who will be the 9th Justice to replace Justice Scalia, whoever becomes President would most definitely impact this decision. Therefore, if we have a hope in democracy or more importantly that God can intervene, in addition to praying for the affected schools use this link for a form letter to send to your representative.

Update: Here is a response from a far better informed friend concerning my arguments and the claims of the initial letter.

Pardon me if I ignore all normative arguments about the wisdom of the law, the existence of God, and the relative merits of organized religion for a moment, and just talk about the law.

A few minor points: 1) while the bill would narrow the exception only to schools and programs offering training in the ministry specifically, it does not require that the school also be denominational. "Controlled by a religious organization" simply means that the charter of whatever organization controls the school be explicitly religious. That language appears in the Ed Code as it currently exists. 2) the bill has been amended to read that no school which currently receives the Cal Grant will lose Cal Grant eligibility. Therefore, schools like Biola and APU are in no immediate danger on that front.

Now the major point: The Lemon Test is irrelevant. You cannot raise an Establishment Clause claim against government inaction (i.e. the failure to exempt). Also, though I did not read all of the comments and replies previously made, I wanted to address something in the ones I did read: viewpoint neutrality is also irrelevant, since there is no Free Speech claim here. Any constitutional challenge that could be raised to this bill would be under the Free Exercise Clause.

The apposite cases for the Free Exercise Clause are Employment Div. v. Smith (1990) and Locke v. Davey (2004). Smith states that any neutral law of general applicability does not violate the Free Exercise clause, unless the Free Exercise right is combined with some other right (typically in practice this means the right to Freedom of Association). For you court-counters out there, Smith was a 6-3 decision written by the late Justice Scalia, with O'Connor concurring in the judgment, but arguing for the use of the compelling interest test.

In Locke, a pastoral ministries major sued the state of Washington under the Free Exercise clause for withholding a state scholarship which the student was otherwise qualified for. The scholarship program specifically excluded studies in theology. The High Court held, 7-2, that the state of Washington could withhold the scholarship on the basis of the student's religious studies. The Court ruled that states have a "historic and substantial interest" in withholding state funding from religion. Any case involving this bill would be controlled by Locke, and the state's interest in non-discrimination could easily support the state's failure to grant an exemption from its law for programs that are not directly and explicitly theological. Therefore, the bill as it stands is constitutional.