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DWI, Campus Police and the Establishment Clause in North Carolina

Yesterday, we discussed the authority of campus police as state universities, such as UNCC, and community colleges, such as CPCC. However, private universities are also permitted to have campus police pursuant to the Campus Police Act in Chapter 74G of the North Carolina General Statutes. The purpose of the Act is to provide police protection at “institutions of higher education” and to make sure that “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.” (G.S. 74G-2) Under the Campus Police Act, a university may operate a police force with the approval of the Attorney General.

In 2011, the North Carolina Supreme Court issued an opinion in State v. Yencer, where a defendant charged with dwi by the Davidson College campus police challenged the operation of the Davidson College campus police department as a violation of the Establishment Clause of the First Amendment. In Yencer, the defendant was arrested for DWI by the campus police on a street adjacent to the campus. The members of the Davidson College campus police were commissioned by the Attorney General pursuant to G.S. 74G-2.

The evidence at trial showed that Davidson College is affiliated with the Presbyterian Church of the United States of America. The trial court also considered Davidson’s statement of purpose and any religious-based requirements for students. The trial court concluded that “although Davidson College is religiously affiliated, it is not a religious institution within the meaning of the First Amendment.” The defendant appealed the trial court’s decision to the North Carolina Court of Appeals.

The court of appeals conducted a three-prong analysis pursuant to the United States Supreme Court case, Lemon v. Kurtzman (1971).

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.

If a statute fails to meet any of the three prongs, it violates the Establishment Clause and is unconstitutional. The court determined that the prong at issue was the third: “the statute must not foster an excessive government entanglement with religion.” In looking at this issue, the court stated that it was bound by two North Carolina Supreme Court cases, State v. Pendleton (1994) and State v. Jordan (2002), which held that the campus police departments of Campbell University and Pfeiffer University violated the Establishment Clause.

The court stated that like Campbell and Pfeiffer, Davidson had a “strong religious affiliation.” The court also noted that Davidson’s statement of purpose includes its commitment to its “Christian tradition.” Furthermore, 24 of Davidson’s 44 trustees and its president must be active Presbyterians, and Davidson students are required to take a course in religion.

Therefore, the court of appeals held that the operation of the Davidson College campus police violated the Establishment Clause. However, the court acknowledged that if it were “starting afresh, without the benefit or burden of precedent in Pendleton and Jordan, there [was] evidence in the record to show that Davidson College is not a religious institution for Establishment Clause purposes.” The court went on to urge the North Carolina Supreme Court to review its decision, which it did in 2011.

In its opinion, the North Carolina Supreme Court also conducted the three-prong analysis under Lemon. The Court acknowledged that the defendant did not contest the first prong of the test, that the statute had a “secular legislative purpose.” In examining the second and third prongs, the Court stated that the US Supreme Court had provided the following guidance:

If an institution is so “pervasively sectarian,” that governmental benefits cannot be directed primarily toward neutral, nonreligious purposes, then the benefit likely would advance religion in a manner inconsistent with Lemon.

Furthermore, “[t]he 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.’”

The Court acknowledged that although Davidson College’s statement of purpose references its Christian tradition and the president and some trustees are required to be Presbyterian, the students are admitted regardless of their religious beliefs and are not required to attend religious services. Furthermore, the religious course required of students is only one course out of 32 courses which students must complete for graduation, and the Presbyterian Church is not involved in the administration of the college nor does it own the land on which the college is located.

Before beginning its Lemon analysis, the Court noted that the statute it was analyzing in this case was different than those analyzed in Pendleton and Jordan, which were decided before the Campus Police Act was enacted. In applying the Yencer findings of fact to the Lemon test, the Court stated that the “‘nature of the aid that the State provided’ in certifying the Davidson College Campus Police is secular” because the campus police was enforcing state and local laws, not any religious laws.

Moving on to the second prong, the Court stated that “the delegation of governmental power here is limited by an ‘effective means of guaranteeing’ that the delegated power will be used exclusively for secular, neutral, and nonideological purposes’” because “the Campus Police Act establishes numerous clear and comprehensive standards that constrain the authority of campus police officers.”

Finally, the Court conducted an analysis of the third prong and determined that its review of “Davidson's institutional characteristics—its secular purpose, faculty, students, curriculum, and management” made clear that “religion is not ‘so pervasive that a substantial portion of its functions are subsumed in the religious mission.’” The Court relied on the US Supreme Court case Hunt v. McNair (1973) which “involved the grant of aid to secure funding for educational buildings at a religiously affiliated institution of higher education, the Baptist College at Charleston.” In Hunt, the US Supreme Court held that the college’s purpose was not “predominantly religious” even though it noted that the 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.” However, because the faculty and students had no religious qualifications, the Court held 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.”

The Court noted that the role of the Presbyterian Church at Davidson College was less than that of the Baptist Church in Hunt and concluded that

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.

Therefore, the Court held that

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 to the United States Constitution.

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