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In Defense of Pervasive Sectarianism

A recent ruling by the North Carolina Court of Appeals places a needless burden on the state’s religiously based private colleges.

By Duke Cheston

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August 30, 2010

You might not know it from observing the modern American university, but higher education in this country began with religious goals.  As Russell K. Nieli pointed out in his 2007 essay for the Pope Center, many American universities were created with the intention of producing Christian ladies and gentlemen. “A major goal of these founders,” says Nieli, “was to pass on the moral, intellectual, and religious heritage of Christianity and Greco-Roman high culture to succeeding generations.”

We have come a long way since then. Far from embracing traditional morality, today’s average American university is hesitant even to make any statements about right and wrong, and once unabashedly religious institutions like Yale have morally slid so far that they now often resemble a cross between the right and center panels of Hieronymous Bosch’s Garden of Earthly Delights.

In North Carolina, no exception to the general rule, the long retreat of Christianity in higher education continues. Recently, religious schools in the state learned that they cannot operate their own police forces, as other colleges and universities do. A ruling by the North Carolina Court of Appeals held that because Davidson College is deemed to be a religious institution, it cannot have a campus police force with the power to enforce state law. If that ruling stands, it will require the school to jump through additional hoops and potentially jeopardize the safety of its students.

Judge James Wynn, writing for the unanimous majority in State of North Carolina v. Julie Anne Yencer (a link to the decision can be found here), declared that precedent forced his hand. He cited the 1994 N.C. Supreme Court decision in State v. Pendleton involving Campbell University and the 2002 N.C. Court of Appeals State v. Jordan ruling involving Pfeiffer University. Pendleton, drawing on the Establishment clause of the First Amendment, held that “a state may not delegate an important discretionary governmental power to a religious institution or share such power with a religious institution.” Since Davidson fits the Pendleton definition of a religious institution (twenty-four of  Davidson’s forty-four trustees must be active and confirmed members of the Presbyterian Church), its police force does not, under this interpretation, have Constitutional authority to enforce state law.

On August 19, the North Carolina Supreme Court stayed the decision, but unless the Supremes reverse the ruling, Davidson will probably be forced to “farm out” the duties for policing its campus to local municipalities, as the two other universities, Campbell and Pfeiffer, have had to do.  This is obviously not ideal for these schools, since they now get less safety per security dollar spent.

Americans have long tangled with the question of what the relationship between government and religion should be. In most cases, religion has probably been neither helped nor hindered (which is, coincidentally, the rule established by the Supreme Court of the United States); but in this series of rulings, religion gets significantly less than a square deal.

In fact, Judge Wynn expressed dissatisfaction with the original ruling in Pendleton. “We acknowledge if we were starting afresh, without the benefit or burden of precedent in Pendleton and Jordan,” wrote Wynn, “there is evidence in the record to show that Davidson College is not a religious institution for Establishment Clause purposes.”

Even so, the Court accepted the premise that if a school is a religious institution, it should not be allowed to host a state-sanctioned constabulary. The Court “acknowledge[s] the important distinction between an institution with religious influence or affiliation and one that is pervasively sectarian.” This means that if Wynn’s opinion becomes law, schools that are merely controlled by religious institutions can have their own campus police, but those that are “pervasively sectarian,” however defined by the court, cannot.

In the words of David French, senior adviser to the Alliance Defense Fund, a group that defends religious liberty in higher education, the question in this case becomes: “How much Bible is too much?"  It could set a precarious precedent, says French, who adds: “determin[ing] the degree of religiosity at any given college … is not the kind of question that our courts should be asking.”

If courts decide what does or does not constitute pervasive sectarianism—and thus which schools can have campus police—they will have a powerful carrot—state-sanctioned police authority and the substantial benefits that come with it—that can be used to influence what is actually taught at private religious schools. Even with the best of intentions, that could have a chilling effect on the curriculum and institutional choices of schools like Davidson, Campbell, Duke, Wake Forest, and the thirty-two other private colleges in the state, most of which have religious roots. It may even lead such colleges to abandon their religious connections altogether.

State Attorney General Roy Cooper has told Davidson officials that his office will ask the North Carolina Supreme Court to review the decision, and Davidson College released an official statement saying that it supports Cooper’s efforts.

If the Supremes do not reverse the ruling, Belmont Abbey College, a Catholic-based school in Belmont, North Carolina, is another institution that may be affected. Richard Hoefling, legal counsel for Belmont Abbey, is concerned that this threat to the authority of religious schools’ campus police may end up hurting students. Such a development could make the students less safe and potentially drain some of the school’s financial resources. “This is clearly a monetary and security and safety issue,” Hoefling remarked.

Duke University is also nominally religious and therefore the authority of its police may be challenged. In fact, local attorneys have already threatened to do just that. Duke’s Mike Shoenfeld, vice president for public affairs and government relations, believes that losing police authority could endanger students and, in the case of Duke Health Care, patients.

“Maintaining safety and security for residents, employees and guests requires a sophisticated police force that utilizes both best practices and the latest technology,” Schoenfeld said. “Duke Police, like the police forces of many private universities, includes officers and staff who are specially trained to handle the unique challenges presented by an educational and health care facility. As a result, Duke police officers are required to meet, and in some cases exceed, the standards for training, experience and performance that are in place for municipal departments.” Relying on outside help to maintain safety would mean that such specialized training would not be guaranteed.

Both Hoefling and Schoenfeld additionally expressed concerns about the burden imposed on the local communities by having to rely on the municipal police for campus safety. “Duke’s privately-funded police department relieves the local government of what would be a considerable expense to provide the same level of service to the campus,” says Schoenfeld. The Durham Herald-Sun has reported that Campbell University currently shells out $400,000 annually to the Harnett County Sheriff’s Office for its (presumably less-than-ideal) services.

Campbell and Pfeiffer have not complained publicly about increased costs, but the string of rulings certainly imposes a burden on nominally religious schools that secularized schools do not have to put up with.

If the Supreme Court is to protect religious freedom in North Carolina, it should reverse the original Pendleton ruling. Pendleton ostensibly maintains the separation of church and state, but in reality it imposes a significant burden specifically on religious institutions.

The Supreme Court should also resist the temptation to follow Yencey’s lead in deciding “How much Bible is too much?” It should not use the opportunity to give the courts influence over religious universities’ institutional prerogatives. Such a ruling would be considerably more perverse than the most flagrant instances of "pervasiv[e] sectarianism,” whatever that means.

 


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