Religious Colleges and Universities


Religious colleges and universities can be distinguished from nonsectarian private institutions by their commitment to religious rituals, traditions, and/or core religious beliefs. Yet, the extent to which the governance of postsecondary institutions is controlled by these rituals, traditions, or beliefs differs significantly. The clear trend among religious colleges and universities is to dilute, or separate from, their religious origins.
The first three institutions of higher education that were founded in what became the United States—Harvard in 1636, William and Mary in 1693, and Yale in 1701—were religious in character and organized to train men for the ministry. Today, William and Mary is public, and although the other two remain private, they no longer are identified with their religious roots. Moreover, many colleges and universities that have continued their religious identifications struggle to maintain their religious intensity while integrating secular influences such as accreditation, academic freedom, and due process into the religious matrices of their founding charters. In light of the many issues that they confront, this entry examines the status of religious colleges and universities in the United States.

Exemption From Statutory Requirements


Religious postsecondary institutions can enjoy exemptions from some but not all federal and state statutory requirements. Pervasively sectarian institutions are generally exempt from state unemployment laws (Bleich v. Maimonides School, 2006; Czigler v. Bureau of Employment Services, 1985), and church-controlled universities can be exempt from Social Security and ERISA requirements. However, in Bob Jones University v. U.S. (1983), the U.S. Supreme Court upheld the constitutionality of the Internal Revenue Service’s revocation of the university’s tax-exempt status when it refused to eliminate its religiously based, racially segregated dating and marriage policies. In so ruling, the Court declared that its acting in furtherance of the fundamental national public policy aimed at the eradication of racial discrimination warranted the denial of the federal benefit in the form of tax-exempt status. While the Court has not applied this “fundamental national public policy” rationale to other protected categories, the federal trial court in the nation’s capital used a similar rationale in finding that a Jesuit institution, Georgetown University, violated a District of Columbia ordinance prohibiting discrimination based on sexual orientation when it refused to recognize a gay/lesbian rights student group (Gay Rights Coalition v. Georgetown University, 1987). According to the court, although officials did not have to recognize the group because of the university’s religion-based opposition to homosexuality, its religious beliefs would not be violated by permitting the gay/lesbian student group to use its facilities and services.

Charters and Accreditation


Religious colleges and universities are like all other institutions of higher education in that they must have state charters authorizing them to adopt rules and regulations. Usually, the granting of such charters is done pursuant to the process of state incorporation, which identifies the broad authority of college or university boards to act in the interest of their institutions as well as imposing state limits on that authority. While state legislatures can impose requirements on the formation and operation of religious colleges and universities, the Supreme Court long ago recognized in Trustees of Dartmouth College v. Woodward (1819) that states cannot change unilaterally institutional structures so as to alter the private nature of colleges or universities. Nonetheless, states may impose requirements that are perceived by officials at religious colleges or universities as contrary to their rights protected under the Free Exercise or Establishment Clauses.
As long as states have compelling interests and the method for furthering their interests is the least restrictive means, states may require postsecondary private institutions to be accredited (Newport International University v. Wyoming, 2008). In New Jersey State Board of Education v. Board of Directors of Shelton College (1982), the Supreme Court of New Jersey upheld a requirement of the state board of education that all institutions of higher education had to secure licenses from the state in order to confer degrees. The court was of the opinion that this requirement did not violate the Free Exercise Clause, because the church’s religious beliefs supporting the college did not require attendance at the college. Even though the requirement imposed some burden on the college, the court was satisfied that the state had a compelling interest in maintaining minimum academic standards while ensuring the integrity of the degrees that it conferred.

Fiduciary Duty and Standard of Care


Board members of religious colleges and universities, like members of all boards in higher education, have a fiduciary duty in their dealings with their institutions. In Jarvis Christian College v. National Union Fire Insurance Company (1999), members of the college’s board were unsuccessful in recovering $2 million from its liability insurer following the loss of that sum due to speculative investments by an investment company with which one of the board members had an undisclosed financial interest. In upholding the insurer’s position that it was not liable for the wrongful acts of one of the board members, the Fifth Circuit reasoned that the board’s liability policy exempted any claim that arose out of gaining a personal profit or advantage and that even though the errant board member had realized no profit, the opportunity to realize a profit was sufficient to exempt the insurer from liability.
The standard of care owed by board members for the decisions they make, then, is generally a corporate standard of care rather than the higher charitable trust standard. In Corporation of Mercer University v. Smith (1988), the Supreme Court of Georgia upheld an action of the university’s board of directors to close the campus of a women’s college with which it had recently merged, where both institutions were affiliated with the Georgia Baptist Convention. The court agreed with the board that because universities are businesses, their officials need administrative flexibility to make day-to-day decisions, including the ability to acquire and sell assets.

Faculty Rights


Faculty at religious colleges and universities, in the absence of state action, do not have constitutional rights. The Fourteenth Amendment’s Due Process Clause, through which substantive constitutional rights are applied to public colleges and universities, does not apply to religiously affiliated institutions of higher education. A higher education institution’s relationship with a state must be something other than reception of funds, accreditation, filing of forms, tax exemption, or state inspection or regulation in order to invoke state action (Corporation of Mercer University v. Smith, 1986; Logan v. Bennington College, 1995). The leading case concerning state action continues to be the Supreme Court’s judgment in Rendell-Baker v. Kohn (1982) a case from K–12 education that is informative for colleges and universities. The Court refused to find state action to support the free speech claims of faculty members who were dismissed for disagreeing with the board’s hiring policy, even though the school received 905 of its funds from the federal government, received all student referrals from public schools, and complied with a variety of public regulations.
Courts can intervene when officials at religious college and universities have contractual disputes with faculty members. However, insofar as contractual disputes in religious postsecondary institutions can also involve religious functions that are part of institutional expectations, courts have limited their judgments to issues in which faculty members are involved in secular or nonreligious functions, such as terms and conditions of employment, including disagreements over salaries and benefits. Generally, as reflected in Alicea v. New Brunswick Theological Seminary (1992) and EEOC v. Southwestern Baptist Theological Seminary (1981), courts have protected them from governmental intrusion into their religious beliefs when employee responsibilities are involved with ministerial functions. On the other hand, where employees are not involved in ministerial functions, as discussed below, courts apply the same legal principles as in disagreements in secular colleges and universities. In such a case, Welter v. Seton (1992), the Supreme Court of New Jersey upheld $45,000 breach of contract awards for two nuns in rejecting a university’s claim that the awards intruded into the Catholic Church’s control over those involved in religious service. The court noted that because the nuns were computer science instructors and not involved in a ministerial function at the university, it could apply common law contract principles without intruding into the university’s religious tenets.

Title VII and Religious Institutions


Religious colleges and universities enjoy some exemptions from nondiscrimination statutes. The workhorse of federal discrimination litigation, Title VII of the Equal Employment Opportunity Act prohibits employment practices that discriminate in hiring, discharging, or classifying individuals based on race, color, religion, sex, or national origin. Moreover, Title VII contains three exemptions for religious employers to protect employment actions that are based on religious beliefs.
The first Title VII exemption involves the hiring, discharging, and classifying of employees where “religion is a bona fide [occupational qualification] [BFOQ] reasonably necessary to the operations of that particular business or enterprise” (§ 2000e-2(e)(1)). In Pime v. Loyola University of Chicago (1984), a federal trial court permitted a university to hire a Jesuit over a female applicant for a position teaching philosophy where fixing the number of Jesuits at 7 of 31 was a reasonable BFOQ.
Title VII’s second exemption concerns the employment of persons of a particular religion if an institution is
in whole or in substantial part, owned, supported, controlled or managed by a particular religious corporation, association, or society or if the curriculum of such school, college, university, or other educational institution or institution of learning is directed toward the propagation of a particular religion. (§ 2000e-3(e)(2))
In Wirth v. College of Ozarks (2000), the Eighth Circuit affirmed the actions of officials at a nondenominational Christian college in terminating the employment of a tenured Catholic faculty member whose religious views were different from those of the college.
The third Title VII exemption applies to
a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities. (§ 2000e-1(a))
In Amos v. Corporation of Presiding Bishop (1987), the Supreme Court upheld the constitutionality of this exemption against an Establishment Clause challenge. In the underlying dispute, officials of the Church of Jesus Christ of Latter-Day Saints discharged a building engineer working in a gymnasium that was open to the public, because he failed to meet the church’s religious requirement that he have a “temple recommend”—a certificate that he was a member of the Church who was eligible to attend its temple services.

Student Rights


The rights of students at religious colleges and universities parallel those of faculty members. Unless courts can find state action, students have no substantive or procedural constitutional due process rights. Despite efforts by students to allege state action because of a variety of connections between religious colleges and universities and the state, courts typically have refused to find state action to support constitutional theories of recovery. Thus, in Ben-Yonatan v. Concordia College (1994), the federal trial court in Minnesota decided that a student who was suspended had no right to constitutional due process protection even though the college was the recipient of considerable amounts of state and federal funds. The process to which students are entitled depends on rights accorded students in their student handbooks or other postsecondary documents, such as enrollment contracts. At the very least, though, students must have an opportunity to present their version of the facts (Galiani v. Hofstra University, 1986). Consequently, the failure of officials at postsecondary institutions to follow their handbooks can result in breach of contract actions (Morehouse College v. McGaha, 2005). Still, once the courts are satisfied that college or university officials followed the procedures in their handbooks, they are unwilling to second-guess officials’ disciplinary actions (Lyon College v. Gray, 1999).
Ralph D. Mawdsley

See also Due Process, Substantive and Procedural; Due Process Rights in Faculty and Staff Dismissal; Equal Employment Opportunity Act; Equal Employment Opportunity Commission; Ex Corde Ecclesiae and American Catholic Higher Education; Title VI
Further Readings
Edwards, H. T., & Nordin, V. (1979). Higher education and the law. Cambridge, MA: Institute for Educational Management, Harvard University.
Mawdsley, R. D. (2005). Private colleges and universities. In J. Beckham & D. Dagley (Eds.), Contemporary issues in higher education law (pp. 35–61). Dayton, OH: Education Law Association.
Mawdsley, R. D. (2005). Religious colleges and universities. In J. Beckham & D. Dagley (Eds.), Contemporary issues in higher education law (pp. 63–87). Dayton, OH: Education Law Association.
Legal Citations
Alicea v. New Brunswick Theological Seminary, 608 A.2d 218 (N.J. 1992).
Amos v. Corporation of Presiding Bishop, 483 U.S. 327 (1987).
Ben-Yonatan v. Concordia College, 863 F. Supp. 983 (D. Minn. 1994).
Bleich v. Maimonides School, 849 N.E.2d 185 (Mass. 2006).
Bob Jones University v. U S., 461 U.S. 574 (1983).
Church ERISA Exemption, 29 U.S.C. §§1002 (A)(33); 1321 (B); 26 U.S.C. § 414(e)(3)(B).
Corporation of Mercer University v. Smith, 371 S.E.2d 858 (Ga. 1988).
Corporation of Mercer University v. Smith, 612 F. Supp. 72 (W.D. Pa. 1985), aff’d, 787 F.2d 583 (3d Cir. 1986).
Czigler v. Bureau of Employment Services, 501 N.E.2d 56 (Ohio Ct. App. 1985).
EEOC v. Southwestern Baptist Theological Seminary, 651 F.2d 277 (5th Cir. 1981).
Galiani v. Hofstra University, 499 N.Y.S.2d 182 (N.Y. App. Div. 1986).
Jarvis Christian College v. National Union Fire Insurance Company, 197 F.3d 742 (5th Cir. 1999).
Logan v. Bennington College, 72 F.3d 1017 (2d Cir. 1995).
Lyon College v. Gray, 999 S.W.2d 213 (Ark. Ct. App. 1999).
Morehouse College v. McGaha, 627 S.E.2d 39 (Ga. Ct. App. 2005).
New Jersey State Board of Education v. Board of Directors of Shelton College, 448 A.2d 988 (N.J. 1982).
Newport International University v. Wyoming, 186 P.3d 382 (Wyo. 2008).
Pime v. Loyola University of Chicago, 585 F. Supp. 435 (N.D. Ill. 1984).
Rendell-Baker v. Kohn, 457 U.S. 830 (1982).
Social Security Exemption, 42 U.S.C. § 410(a)(8)(B).
Title VII of the Equal Employment Opportunities Act, 42 U.S.C. §§ 2000e-2.
Trustees of Dartmouth College v. Woodward, 4 Wheat. (U.S.) 518 (1819).
Welter v. Seton, 608 A.2d 206 (N.J. 1992).
Wirth v. College of Ozarks, 208 F.3d 219 (8th Cir. 2000).