The economic stimulus legislation
signed into law on Feb. 17, 2009, by President Barack Obama authorizes
state governments to fund the "modernization, renovation and repair" of
buildings on public and private college and university campuses. But
the provision prevents these schools from using this funding to improve
buildings that are "used for sectarian instruction or religious
worship," or those "in which a substantial portion of the functions of
the facilities are subsumed in a religious mission." To explore the
legal implications of this restriction, the Pew Forum turns to
church-state scholar Robert Tuttle.
Robert W. Tuttle, David R. and Sherry Kirschner Berz Research Professor of Law and Religion, The George Washington University Law School
Jesse Merriam, Research Associate, Pew Research Center's Forum on Religion & Public Life
Question & Answer
Some religious-liberty advocates have expressed concern
about whether the recent stimulus legislation might require colleges
and universities to prohibit religious student groups from meeting or
worshipping in any campus buildings that are funded with money from the
stimulus package. Does the legislation actually require this?
don't think that the restriction needs to be interpreted to require
that a college or university prohibit a religious student group from
using a room in a government-funded campus building. Instead, the
restriction could be interpreted to require only that schools not officially designate space in the government-funded buildings specifically for religious activities.
This interpretation would follow the ruling in a 1971 Supreme Court case, Tilton v. Richardson,
which involved the federal government's funding of building
construction at four religious colleges and universities in Connecticut
under the Higher Education Facilities Act of 1963. The court in Tilton
upheld the constitutionality of this funding and specifically declared
that the Establishment Clause in the First Amendment to the U.S.
Constitution only prohibited the schools from officially designating
space in their government-funded buildings for religious activities,
such as religious instruction or worship. This interpretation of the
restriction seeks to reflect the standard that was articulated in Tilton.
Schools can easily satisfy this interpretation by making the rooms
available to all student groups on an equal basis. In this instance, a
school's only official use of the room is to make it equally available
to all student groups. The school is therefore not responsible for a
student group's decision to use the room for religious instruction or
If, however, a school itself sponsored religious instruction or gave
religious student groups preferential access to a space in a
government-funded building, then the school might be considered
officially responsible for this religious use of the room, and
therefore in violation of the restriction in the stimulus legislation
as well as the Establishment Clause.
What if a college or university did strictly
interpret the provision in the stimulus legislation to deny a religious
student group access to a campus building because the group was going
to use the building for a religious activity? Would this denial violate
First of all, I think it's highly unlikely that university officials
would adopt this strict interpretation of the stimulus legislation. But
if they did, then the issue would turn on whether the institution is a
public or private university.
The Free Speech Clause of the First Amendment to the U.S.
Constitution prohibits government officials and entities, including
public universities, from discriminating against individuals on the
basis of the content of their speech. The Free Speech Clause does not
limit the actions of private individuals or institutions, including
private universities. This is true regardless of whether the private
university receives government funding for its buildings. So even if a
private institution received government funding under the stimulus
package, the school would not violate the Free Speech Clause by
prohibiting religious use of those government-funded buildings.
If a public university were to do this, however, then a court would
likely rule that the public university's prohibition on any religious
use of the building violated the Free Speech Clause. An important case
on this point is Widmar v. Vincent
(1981). In the case, the Supreme Court held that a public university
violated the Free Speech Clause by barring a religious student group
from meeting in university buildings while at the same time allowing
non-religious student groups to meet in the same facilities. In
defending its exclusion of the religious group, the university claimed
that it excluded all religious groups, not just this group in
particular. Moreover, the university argued, the Establishment Clause
required this exclusion because allowing religious student groups to
meet in public buildings would amount to an unconstitutional public
funding of religion. The court disagreed and held that the university
would not violate the Establishment Clause as long as it gave religious
student groups equal access to university facilities. The court further
explained that prohibiting all religious groups from using
government-funded university buildings in fact violated the Free Speech
As I mentioned above, however, I think it is very unlikely that a
similar case would arise from the stimulus legislation because I don't
think a public college or university would interpret the stimulus
legislation to require the exclusion of all religious groups from the
school's government-funded buildings. Still, given the ambiguity of the
stimulus law provision, the Department of Education (the federal agency
that oversees federal funding of colleges and universities) might
perform a useful service by letting schools know that the stimulus
legislation does not prohibit students from using space in
government-funded buildings for religious purposes.
This transcript has been edited for clarity, spelling and grammar.
Photo credit: AP