Campus Cop Capers: They’re Not Religious Police When Enforcing DWI Laws

(Editor’s Note: This is an edited version of the opinion of the North Carolina Supreme Court in State v. Yencer, No. 365PA10, filed Nov. 10, 2011.)

The North Carolina General Assembly enacted the Campus Police Act to provide police protection at “institutions of higher education” and to ensure “this protection is not denied to students, faculty, and staff at private, nonprofit institutions of higher education originally established by or affiliated with religious denominations.” N.C.G.S. § 74G-2 (2009).

On 5 January 2006, Davidson College Campus Police Officer Wesley L. Wilson observed defendant’s vehicle traveling at a high rate of speed and crossing the center lines of two streets near the Davidson College campus.

Officer Wilson stopped defendant’s vehicle and, with defendant’s consent, administered two breath alcohol tests. Officer Wilson arrested defendant for driving while impaired and reckless driving.

What’s a Religious Institution

Defendant filed a pretrial motion to suppress, contending that the exercise of police power by an officer of the Davidson College Campus Police violated the North Carolina and United States Constitutions because Davidson College is a “religious institution” for Establishment Clause purposes.

It is well established that “religious institutions need not be quarantined from public benefits that are neutrally available to all.” Roemer v. Bd. of Pub. Works, 426 U.S. 736, 746, 96 S. Ct. 2337, 2344 (1976) (Blackmun, J.) (plurality opinion).

“The purposes of the First Amendment guarantees relating to religion were twofold: to foreclose state interference with the practice of religious faiths, and to foreclose the establishment of a state religion familiar in other 18th-century systems.” Larkin v. Grendel’s Den, Inc., 459 U.S. 116, 122, 103 S. Ct. 505, 510 (1982).

When, as here, the facts evince no preference for one religion over another, we apply the test enumerated in Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105 (1971), to resolve an Establishment Clause challenge. See Hernandez v. Comm’n, 490 U.S. 680, 695, 109 S. Ct. 2136, 2146 (1989) (“If no . . . facial [denominational] preference exists, we proceed to apply the customary three-pronged Establishment Clause inquiry derived from Lemon v. Kurtzman.” (citations omitted)).

Three-Pronged Test

In Lemon the United States Supreme Court established the seminal three pronged inquiry: “First, 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.‟ ” 403 U.S. at 612-13, 91 S. Ct. at 2111 (internal citations omitted) (quoting Walz v. Tax Comm’n, 397 U.S. 664, 674, 90 S. Ct. 1409, 1414 (1970)). In recent years the Court has increasingly treated excessive entanglement “as an aspect of the inquiry into a statute‟s effect.” Agostini v. Felton, 521 U.S. 203, 233, 117 S. Ct. 1997, 2015 (1997); see also Zelman v. Simmons-Harris, 536 U.S. 639, 648-49 (majority), 668-69 (O‟Connor, J., concurring), 122 S. Ct. 2460, 2465 (majority), 2476 (O‟Connor, J., concurring) (2002).

Accordingly, we apply Lemon and its progeny to address the Establishment Clause challenge raised by defendant in the instant case. The Supreme Court has indicated that the fact-centered analysis necessary to resolve Establishment Clause challenges “lacks the comfort of categorical absolutes.” McCreary Cnty., Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 859 n.10, 125 S. Ct. 2722, 2733 n.10 (2005).

“It is perhaps unfortunate, but nonetheless inevitable, that the broad language of many clauses within the Bill of Rights must be translated into adjudicatory principles that realize their full meaning only after their application to a series of concrete cases.” Cnty. Of Allegheny v. Am. Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 606, 109 S. Ct. 3086, 3108 (1989).

“[A]nalysis in this area must begin with a consideration of the cumulative criteria developed over many years and applying to a wide range of governmental action challenged as violative of the Establishment Clause.” Tilton v. Richardson, 403 U.S. 672, 677-78, 91 S. Ct. 2091, 2095 (1971) (plurality opinion).

Secular Purpose

Defendant does not dispute that the Campus Police Act has a “secular legislative purpose.” Lemon, 403 U.S. at 612, 91 S. Ct. at 2111. The legislature explicitly stated its purpose in enacting the Campus Police Act:

“[T]o protect the safety and welfare of students, faculty, and staff in institutions of higher education by fostering integrity, proficiency, and competence among campus police agencies and campus police officers.” N.C.G.S. § 74G-2(a).

We need not pursue this inquiry further because defendant in no way suggests that this provision is “anything other than a good-faith statement of purpose.” Hunt v. McNair, 413 U.S. 734, 741, 93 S.Ct. 2868, 2873 (1973).

Therefore, it is undisputed that the Campus Police Act has a secular legislative purpose as required by Lemon.

Advancing Religion

Turning to the disputed aspects of the Lemon test, we must consider whether the principal effect of the statute advances or inhibits religion and whether the statute fosters an excessive government entanglement with religion. See, e.g., Agostini, 521 U.S. at 232-34, 117 S. Ct. at 2014-15. …

In cases of government aid to organizations that are not churches, the Court has considered “the character of the institutions benefited (e.g., whether the religious institutions [are] “predominantly religious”) and the nature of the aid that the State provided (e.g., whether it was neutral and nonideological).”1 Id. at 232, 117 S. Ct. at 2015 (citations omitted); see also Hunt, 413 U.S. at 743-44, 93 S. Ct. at 2874-75; Everson v. Bd. of Educ., 330 U.S. 1, 17-18, 67 S. Ct. 504, 512-13 (1947).

Although “the proposition that the Establishment Clause prohibits any program.   More recently, there has been some question as to the continued applicability of the pervasively sectarian analysis. See Mitchell v. Helms, 530 U.S. 793, 826, 827, 829, 120 S.Ct. 2530, 2550-52 (2000) (plurality opinion) (“[T]here was a period when [the pervasively sectarian nature of a benefit recipient] mattered . . . . But that period . . . is thankfully long past. . . . [T]he religious nature of a recipient should not matter to the constitutional analysis, so long as the recipient adequately furthers the government’s secular purpose. . . .[N]othing in the Establishment Clause requires the exclusion of pervasively sectarian schools from otherwise permissible aid programs, and other doctrines of this Court bar it.”). which in some manner aids an institution with a religious affiliation has consistently been rejected,” Hunt, 413 U.S. at 742, 93 S. Ct. at 2874 (citations omitted), courts must necessarily conduct a factual inquiry to ensure that the governmental benefit does not flow directly “to the religious as opposed to the secular activities of the [institution],” id. at 744, 93 S. Ct. at 2874.

If an institution is so “pervasively sectarian,” id. at 743, 93 S. Ct. at 2874, that governmental benefits cannot be directed primarily toward neutral, nonreligious purposes, then the benefit likely would advance religion in a manner inconsistent with Lemon, see id. at 743-44, 93 S. Ct. at 2874-75. The Supreme Court has also considered whether the aid “result[s] in governmental indoctrination; define[s] its recipients by reference to religion; or create[s] an excessive entanglement.” Agostini, 521 U.S. at 234, 117 S. Ct. at 2016.

Delegation of Power

When assessing a delegation of governmental power to a church, the Court has considered whether the delegation advances religion and whether the delegation is limited by an “effective means of guaranteeing‟ that the delegated power, will be used exclusively for secular, neutral, and nonideological purposes.‟ ” Larkin, 459 U.S. at 125, 103 S. Ct. at 511 (quoting Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 780, 93 S. Ct. 2955, 2969 (1973)).

In such circumstances, the Court has found excessive entanglement when the statute “substitutes the unilateral and absolute power of a church for the reasoned decisionmaking of a public legislative body acting on evidence and guided by standards, on issues with significant economic and political implications.” Id. at 127, 103 S. Ct. at 512.

Why Davidson is a College, Not Church

Davidson College is not a church but a private liberal arts college. Students are admitted regardless of their religious beliefs and they are not required to attend religious services. Students represent a wide diversity of faith traditions. To graduate from Davidson College with a Bachelor of Science degree, a student must satisfactorily complete 32 courses. Of those 32 courses, only one must be in religion.

Staff and faculty are not required to have a religious affiliation or to attend religious services; they merely must agree that they will work in harmony with the College’s statement of purpose.

No Role for Church

The Presbyterian Church of the United States of America (PC-USA) has no role either in the hiring or firing of staff or faculty, or in the student admissions process. The PC-USA neither owns the land on which Davidson College is situated, nor has any role in setting the curriculum or in making management and policy decisions. In short, the PC-USA does not run or control the College.

Davidson College was established in 1837 by the Presbyterians of North Carolina and is voluntarily affiliated with the PC-USA. Davidson’s historical relationship with the PC-USA is memorialized in its statement of purpose.

According to this statement of purpose: “The primary purpose of Davidson College is to assist students in developing humane instincts and disciplined and creative minds for lives of leadership and service. . . . The loyalty of the college thus extends beyond the Christian community to the whole of humanity and necessarily includes openness to and respect for the world’s various religious traditions.”

Religious Test for Trustees

The bylaws require that at least 80% of Davidson’s board of trustees be active members of some Christian church. Twenty-four of the forty-four elected trustees must be members of PC-USA churches, and all must agree to “honor the traditions that have shaped Davidson as a place where faith and reason work together in mutual respect for service to God and humanity.”

Davidson’s bylaws also elaborate that the president should be a Christian who is a member of a PC-USA church. The trial court considered this evidence and concluded that Davidson’s primary purpose is secular education.

College’s Primary Purpose

The primary purpose of Davidson College is to assist students in developing humane instincts and disciplined and creative minds for lives of leadership and service. . . .The Christian tradition to which Davidson remains committed recognizes God as the source of all truth, and believes that Jesus Christ is the revelation of that God, a God bound by no church or creed. The loyalty of the college thus extends beyond the Christian community to the whole of humanity and necessarily includes openness to and respect for the world’s various religious traditions.

Davidson College’s secular, educational mission predominates. While a reading of Davidson’s statement of purpose shows that the College is church affiliated, the statement also shows that the College is not a “predominantly religious” institution. Agostini, 521 U.S. at 232, 117 S. Ct. at 2015 (citations omitted).

Campus Police Act: Neutral, Uniform Enforcement

We now pause to examine the Campus Police Act. See N.C.G.S. §§ 74G-1 to -13 (2009). Before the enactment of the Campus Police Act, the Davidson College Campus Police were regulated under Chapter 74E. See N.C.G.S. §§ 74E-1 to -13 (2009).

The Campus Police Act imposes limitations to ensure neutral, uniform enforcement of the law by campus police agencies. The Act requires that campus police officers maintain the same minimum standards that are required for state police officers generally. N.C.G.S. § 74G-8.

Checks and Balances

The Act also imposes constraints and checks on campus police agencies. Specifically, the Act authorizes the Attorney General to (1) “establish minimum education, experience, and training standards”; (2) set and enforce certification requirements; (3) require reports from campus police officers and agencies; (4) inspect records maintained by campus police agencies; (5) conduct investigations to ensure that campus police agencies and officers are complying with the Act; and (6) “deny, suspend, or revoke” campus police agency certifications and campus police officer commissions for failure to comply with the Act. Id. § 74G-4.

The Attorney General is the legal custodian of all records of the Campus Police Program, including personnel files for campus police officers. Id. § 74G-5.

When campus police officers exercise the power of arrest, they must “apply the standards established by the law of this State and the United States.” Id. § 74G-6(b). In other words, campus police officers may enforce only the law, not campus policies or religious rules.

Further, any arrests made by campus police officers are “reviewable by the General Court of Justice and the federal courts.” Id. § 74G-2(b)(9). Accordingly, the Campus Police Act provides substantially more protections to ensure neutrality and guard against excessive church-state entanglement than did the statute at issue in Pendleton.

Cognizant of Davidson’s institutional characteristics and of the underlying differences between Chapter 74G and the former statute, Chapter 74A, we examine the primary effect and excessive entanglement aspects of the Lemon test in the context of this case. First, the “nature of the aid that the State provided” in certifying the Davidson College Campus Police is secular. Agostini, 521 U.S. at 232, 117 S. Ct. at 2015 (citations omitted). This benefit offers the College a state certified police agency to enforce federal and state laws, not religious rules.

Defendant has not argued that the delegation of police power to the Davidson Campus Police is anything but “secular, neutral, [and] nonideological.” Lemon, 403 U.S. at 616, 91 S. Ct. at 2113 The benefits of the Campus Police Act are available both to religiously affiliated schools and to nonreligiously affiliated schools.

Further, defendant makes no contention that the Davidson Campus Police attempt to proselytize or enforce any private or religious rules.

Finally, we consider whether the statutory delegation results in “an excessive‟ entanglement that advances or inhibits religion.” Agostini, 521 U.S. at 233, 117 S. Ct. at 2015.

Religion Not Pervasive

Having reviewed Davidson’s institutional characteristics—its secular purpose, faculty, students, curriculum, and management—it is clear that religion is not “so pervasive that a substantial portion of its functions are subsumed in the religious mission.” Hunt, 413 U.S. at 743, 93 S. Ct. at 2874; see also Agostini, 521 U.S. at 232, 117 S. Ct. at 2015.

Because campus police officers‟ enforcement of the secular law is statutorily separated from the school‟s religious affiliation, there is little danger that the governmental benefit will accrue to religious rather than secular activities. See Hunt, 413 U.S. at 743-44, 93 S. Ct. at 2874-75; see also Lemon, 403 U.S. at 618, 91 S. Ct. at 2114 (declining to assume “bad faith or any conscious design to evade the limitations imposed by the statute and the First Amendment” in the absence of evidence otherwise).

A Secular Education

While Davidson has historical ties to the PC-USA, the College pursues the predominant purpose of secular education. The potential influence of the PC-USA over the College is minimal, as the Church does not run or control the College and has no role in management or policy decisions. See Hunt, 413 U.S. at 742-45, 93 S.Ct. at 2874-75 (finding that a Baptist-affiliated college was not “pervasively sectarian” even though the school’s trustees were elected by the South Carolina Baptist Convention and the Convention’s approval was required for certain financial transactions).

The religious beliefs held by members of the Davidson College board of trustees, president, and dean of students do not demonstrate—or even suggest—that the PC-USA controls their roles in directing the school’s policies and practices.

Although the dean of students serves in a supervisory capacity over the campus chief of police, the chief and departmental police officers exercise their authority consistent with “standards established by the law of this State and the United States.” N.C.G.S. § 74G-6(b).

Because defendant has failed to argue here or present any evidence in the trial court to the contrary, we decline to assume that the trustees, the dean of students, and the chief perform their duties in any manner other than good faith compliance with the Campus Police Act and the First Amendment. See Lemon, 403 U.S. at 618, 91 S. Ct. at 2114.

Accordingly, the statutory provision of police protection for the students, faculty, and staff at Davidson, an educational institution with the primary purpose of secular education, does not result in excessive entanglement between church and state.

The United States Supreme Court’s decision in Hunt v. McNair is instructive in the present case. While Hunt involved the grant of aid to secure funding for educational buildings at a religiously affiliated institution of higher education, the Baptist College at Charleston, the parallels are significant. See 413 U.S. at 741-42, 93 S. Ct. at 2873-74. As is the case here, the government benefit in Hunt had a particular purpose and was available to both religiously and nonreligiously affiliated institutions. Id.

Also analogous to the instant case, the Supreme Court declined to find that the educational institution’s purpose was predominantly reli

religious, despite its observations that the members of the College’s board of trustees were elected exclusively by the South Carolina Baptist Convention, certain financial transactions required approval by the South Carolina Baptist Convention, and the College’s charter could be amended only by the South Carolina Baptist Convention. Id. At 743-44, 93 S. Ct. at 2874.

No Religious Qualifications

Important to this conclusion was the absence of religious qualifications for faculty appointments or student admissions. Id. (noting that nearly sixty percent of the College’s students were Baptist).

The Court therefore concluded that the primary purpose of the College was secular education and that the grant of aid would benefit the secular, rather than the religious, activities of the College. Id. at 744-45, 93 S. Ct. at 2874-75. The Court also held that there was not excessive entanglement between church and state because the College was not “an instrument of religious indoctrination,” id. at 746, 93 S. Ct. at 2876, and the government would not become deeply involved in the day-to-day decision making of the College under the statutory scheme, id. at 747-49, 93 S. Ct. at 2876-77; see id. At 746, 93 S. Ct. at 2875 (“[T]he degree of entanglement arising from inspection of facilities as to use varies in large measure with the extent to which religion permeates the institution.”).

Secular Purpose Dominates

As in Hunt, the secular educational purpose predominates at Davidson, and the governmental benefit neutrally advances the purpose of police protection for the campus community. Because the campus police agency benefits Davidson’s secular rather than religious activities, this case does not give rise to excessive entanglement or have the primary effect of advancing or inhibiting religion. See id. at 742-45, 93 S. Ct. at 2874-75.

Notably, the PC-USA exercises significantly less control over Davidson College than the South Carolina Baptist Convention exercised over the Baptist College at Charleston. The State’s supervisory role over the police agency does not interfere with the day-to-day decision making of Davidson, while it ensures that the officers‟ power is used to further Davidson’s secular educational purpose. See id. at 745-49, 93 S. Ct. at 2875-77.

No Church Veto Power

Defendant contends that the Campus Police Act is an unconstitutional delegation of governmental authority to a religious institution. See Larkin, 459 U.S. 116, 103 S. Ct. 505. In Larkin, a state statute gave churches absolute veto power over liquor licensing, resulting in excessive entanglement between church and state. Id. at 117, 130, 103 S. Ct. at 507, 514.

The Supreme Court determined that the statute unconstitutionally “substitute[d] the unilateral and absolute power of a church for the reasoned decision making of a public legislative body acting on evidence and guided by standards, on issues with significant economic and political implications.” Id. at 127, 103 S. Ct. at 512.

In other words, the statutory delegation of power to the churches was “standardless, calling for no reasons, findings, or reasoned conclusions.” Id. at 125, 103 S. Ct. at 511. For that reason, “[t]hat power may therefore [have] be[en] used by churches to promote goals beyond insulating the church from undesirable neighbors; it could [have] be[en] employed for explicitly religious goals, for example, favoring liquor licenses for members of that congregation or adherents of that faith.” Id. at 125, 103 S. Ct. at 511.

Because Davidson College is not “predominantly religious”— let alone a religious authority—the delegation of power here bears little resemblance to that in Larkin. These cases are further differentiated in that the statute here does not delegate absolute police power to Davidson College.

Rather, the statute certifies Davidson College’s campus police as a campus police agency under the secular law of North Carolina. See N.C.G.S. § 74G-2. The statute grants only limited supervisory powers to Davidson College, while ultimate control of the police power—which the individual officers alone exercise—remains in the hands of the State. See id. § 74G-4.

Thus, this is not a case in which a statute delegates unbridled discretionary governmental powers to a religious organization. The delegation of limited power to campus police officers here “does not result in an excessive‟ entanglement that advances or inhibits religion.” Agostini, 521 U.S. at 233, 117 S. Ct. at 2015; Larkin, 459 U.S. at 127, 103 S. Ct. at 512.

The Campus Police Act’s provision of secular, neutral, and nonideological police protection for the benefit of the students, faculty, and staff of Davidson College, as applied to defendant’s conviction for driving while impaired, does not offend the Establishment Clause of the First Amendment.

This article originally appeared in 25 DWI Journal: Law & Science 3 (September 2011) pp. 7-12.

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