The Supreme Court of North Carolina held this month that the arrest of a drunk driver by a police officer of a private Presbyterian university did not violate the Establishment Clause.  The ruling represents a major victory for religiously affiliated universities throughout the country, many of which have their own police forces.

The case, North Carolina v. Yencer, began on January 5, 2006, when Davidson College Campus Police Officer Wesley L. Wilson observed Julie Anne Yencer speeding and crossing over the center line at around 12:15 AM.  After failing two breathalyzer tests, Yencer was arrested for driving while impaired and reckless driving.  Yencer filed a pretrial motion to suppress, in which she argued that North Carolina’s Campus Police Act, which authorizes the Attorney General to delegate police powers to private religious and secular universities, violated the Establishment Clause.  The Act requires that campus police officers meet the same education and training standards as state law enforcement officers, and authorizes the Attorney General to inspect records, conduct investigations, and revoke certifications of campus police agencies.  Campus police officers have the same powers as municipal and county police officers, including the authority to issue fines and to make arrests for felonies and misdemeanors.

The trial court dismissed Yencer’s motion to suppress, and Yencer subsequently pled guilty, but reserved the right to appeal.  The Court of Appeals reversed, holding that Davidson College was a religious institution for purposes of the Establishment Clause, and that Yencer’s arrest violated the First Amendment.  On November 10, 2011, the Supreme Court of North Carolina reversed the decision of the Court of Appeals.  The court found that Davidson College is not “predominantly religious,” and therefore that the Campus Police Act, as applied to Yencer’s conviction, did not run afoul of the Establishment Clause.

The ruling in Yencer is consistent with the decisions of other state courts.  In Myers v. Indiana, the Court of Appeals of Indiana held that the campus police of Valparaiso University, which is affiliated with the Lutheran Church, could constitutionally arrest a student for driving while intoxicated.  In Michigan v. Tubbergen, the Court of Appeals of Michigan upheld the arrest of a student by Hope College campus police officers against a First Amendment challenge, even though the college is affiliated with the Reformed Church in America.

Yencer’s attorney, Allen Brotherton, is considering appealing the decision in federal court.  Because the state supreme court’s decision involved an interpretation of federal constitutional law, it can be reviewed directly by the Supreme Court of the United States, should it decide to grant certiorari.

The justices on the Supreme Court subscribe to three vastly different theories about how the Establishment Clause should be interpreted.  The strict separation theory holds that government and religion should be kept separate as much as possible.  Those who subscribe to this theory apply the three-prong test pronounced in Lemon v. Kurtzman: (1) “the statute must have a secular legislative purpose;” (2) “its principal or primary effect must be one that neither advances nor inhibits religion;” and (3) “the statute must not foster ‘an excessive government entanglement with religion.’”  Justices Breyer and Ginsburg subscribe to the strict separation theory.  The neutrality theory believes that the government must neither favor one religion over another nor favor religion over secularism.  Justice O’Connor, who is most closely associated with this theory, promulgated the symbolic endorsement test in her concurring opinion in Lynch v. Donnelly, which states that a government action violates the Establishment Clause if a reasonable observer would perceive the action to symbolically endorse a particular religion.  Finally, the accommodation theory seeks to make room for religion’s presence in government.  Accommodationist judges apply the coercion test, which holds that the government action violates the First Amendment only if it coerces religious participation.  There are currently five justices on the court who subscribe to the accommodation theory: Alito, Kennedy, Roberts, Scalia, and Thomas.

Legislative acts that delegate police power to private universities, including religiously affiliated universities, would likely be constitutionally permissible under all of the Establishment Clause tests.  Reaching this outcome would be easy for those who abide by the accommodation theory, as long as the police were merely enforcing the laws and regulations of the state, since the provision of secular police protection in no way coerces religious participation.  The decision would be equally easy for a proponent of neutrality.  Just as no reasonable observer would think that police protection at a religious rally constituted symbolic endorsement of that religion, no one could reasonably think that police protection of students, faculty, and staff at a religiously affiliated university constituted symbolic endorsement.  Indeed, if the Court were to strike down a campus police agency, municipal police would be asked to take over in its place.  No one would suggest that a university should be deprived of police protection, merely because of its religious affiliation.

A strict separationist applying the Lemon test would likely reach the same outcome.  Acts that delegate police power to universities have a clear secular purpose: they aim to ensure the safety of students, faculty, and staff.  Nor does providing police protection to religiously affiliated and secular universities alike advance or inhibit religion in any way.  Whether police protection would create an excessive government entanglement with religion is a more difficult question.  Indeed, this was the issue that the Supreme Court of North Carolina grappled with in Yencer.  In their amicus brief, the North Carolina Advocates for Justice argued that because the Campus Police Act granted the Attorney General authority to oversee campus police forces, the Act fostered excessive government entanglement with religion.  The court rejected this argument.  In Agostini v. Felton, the United States Supreme Court said that in determining whether a government action created excessive entanglement, the Court would consider “the character and purposes of the institutions that are benefited, the nature of the aid that the State provided, . . . the resulting relationship between the government and religious authority[,] . . . whether the religious institutions were predominantly religious,” and whether the aid was religiously neutral.  The court in Yencer found that Davidson College was not a “predominantly religious” institution, and consequently that there had not been excessive entanglement.  Additionally, since the Campus Police Act requires officers to “apply the standards established by the law of this State and the United States,” they cannot apply campus rules and regulations, which may be religiously based.

The issue of delegation of police powers to private, religiously affiliated universities may provide a rare opportunity for strict separationists, accommodationists, and everyone in between to find common ground.  Nevertheless, given the Supreme Court’s focus in Agostini on the character of the institutions benefited, one can only wonder whether a court would come to a different outcome in a case involving an institution whose purpose is more overtly religious in nature, such as a divinity school.