Last week, the court of appeals decided State v. Yencer, ruling, in effect, that Davidson College may not operate its own police department. The ruling calls into serious question the authority of several other private universities’ police departments, meaning that it is of interest not only in Davidson, but also Durham (the website of the Duke police force is here), Winston-Salem (the website of the Wake Forest police department is here), and perhaps at many smaller universities (for example, Meredith College in Raleigh has a police department, as you can see here).
The defendant in Yencer was arrested for DWI by a Davidson College officer. She argued that Davidson is a religious institution and that the state therefore cannot delegate police powers to it without violating the Establishment Clause of the First Amendment. Davidson’s police force operates under Chapter 74G of the General Statutes, the Campus Police Act, which allows a “private, nonprofit institution of higher education,” even if “originally established by or affiliated with [a] religious denomination[]” to operate a police department with the approval of the Attorney General’s office.
The trial court denied the defendant’s motion, but the court of appeals reversed, applying the excessive entanglement test from Lemon v. Kurtzman, 403 U.S. 602 (1971), and relying on prior cases involving Campbell and Pfeiffer Universities. The court found that the delegation of police powers to Davidson was impermissible given its affiliation with the Presbyterian Church: its statement of purpose says that it is “committed” to the “Christian tradition;” 24 of its 44 trustees, and its president, must be Presbyterian; and students must take a class in religion. Interestingly, the panel noted that if it were “starting afresh” without precedent, it might find that Davidson is not a religious institution for Establishment Clause purposes, and it “urged” the state supreme court to review the case. (More on that below.)
My admittedly inexpert impression is that the day-to-day role of religion is quite different at Davidson than it is at, for example, Campbell. My sense is that Davidson is more like Duke: a school with strong historical ties to a church, but that feels secular in its daily operation. So, I started thinking, if Davidson is too religious to have a police force, is Duke? Is Wake Forest? And, as noted above, there may be a number of other colleges facing the same issue.
Let’s start with Duke. Its mission statement is completely secular, but Article I of the university’s bylaws reads as follows:
The aims of Duke University . . . are to assert a faith in the eternal union of knowledge and religion set forth in the teachings and character of Jesus Christ, the Son of God; to advance learning in all lines of truth; to defend scholarship against all false notions and ideals; to develop a Christian love of freedom and truth; to promote a sincere spirit of tolerance; to discourage all partisan and sectarian strife; and to render the largest permanent service to the individual, the state, the nation, and the church. Unto these ends shall the affairs of this University always be administered.
The bylaws also provide that 24 of the 36 trustees are elected by the Methodist Church, and the school’s official seal contains the motto “eruditio et religio.” On the other hand, I don’t see in Duke’s curriculum requirements any obligation for students to take classes in religion. (Current or former Duke undergraduates, correct me if I’m wrong.)
Turning to Wake, its mission statement is nearly as secular as Duke’s, though it refers to the school’s “rich religious heritage.” But its statement of purpose has a different tone, reading in part:
Wake Forest is proud of its Baptist and Christian heritage. For more than a century and a half, it has provided the University an indispensable basis for its mission and purpose, enabling Wake Forest to educate thousands of ministers and lay people for enlightened leadership in their churches and communities. Far from being exclusive and parochial, this religious tradition gives the University roots that ensure its lasting identity and branches that provide a supportive environment for a wide variety of faiths. The Baptist insistence on both the separation of church and state and local autonomy has helped to protect the University from interference and domination by outside interests, whether these be commercial, governmental, or ecclesiastical. The Baptist stress upon an uncoerced conscience in matters of religious belief has been translated into a concern for academic freedom. The Baptist emphasis upon revealed truth enables a strong religious critique of human reason, even as the claims of revelation are put under the scrutiny of reason.The character of intellectual life at Wake Forest encourages open and frank dialogue and provides assurance that the University will be ecumenical and not provincial in scope, and that it must encompass perspectives other than the Christian. Wake Forest thus seeks to maintain and invigorate what is noblest in its religious heritage.
(For those who can’t get enough statements, Wake also has a vision statement, which is secular. I’m sure it’s working on a value statement and a statement of principles, but they must not be ready yet.) This history of the school notes that its founding “and the formation of the Baptist State Convention were closely interwoven,” and describes the very tight relationship between the church and the university in the early years of the latter. I wasn’t able easily to determine how Wake’s trustees are selected. The school’s curriculum requirements do not appear to mandate that students take any courses in religion.
Where does this leave us? I don’t think that the information above conclusively establishes that Yencer applies to Duke and Wake, but I do think that there’s a very serious argument to be made on that issue. And of course, I’m not the only one who has thought of this. According to this article, Durham defense lawyers are already planning to challenge the authority of Duke’s police, and I assume that lawyers in Winston-Salem are hatching similar plans with respect to Wake Forest. Those plans may be affected by further developments in Yencer, however. According to Davidson, the Attorney General’s office is planning seek a stay and further review. I won’t hazard a guess about the final outcome of the case. This precise issue doesn’t seem to have come up very often around the country — a few minutes of research turned up only one case outside of North Carolina that’s directly on point: Myers v. State, 714 N.E.2d 276 (Ind. Ct. App. 1999) (no Establishment Clause problem with allowing Valparaiso University, which has Lutheran ties, to operate a police force). It should be interesting to see whether, and how, the state supreme court deals with this question.
Duke has no requirement for undergraduates to take religion courses (unless that has changed since I was there in the last 8 years). In fact, one of the things that it advocates is its diversity in all cultures and religions. I find this case very troubling under a First Amendment argument – the General Assembly by statute does not ESTABLISH the campus law enforcement, it simply permits them to enforce the laws of the State of North Carolina. In fact, the only campus law enforcement that would be established by the General Assembly (i.e. funding) would be at public universities. Private universities have their own obligations to finance and establish their law enforcement agencies. How there is any entanglement is beyond my understanding of the First Amendment. It simply relieves the local communities of the obligations of handling the additional population that a college or university places on the area.