OFFICIAL OPINION No. 2

OFFICIAL OPINION No. 2 State. Colleges-E stablishnient of religion-Accommodations for meetings of r eli gw us groups 1. State college facilities may be provided for religious purposes only on a disinterested and equitable basis. 2. The use of St.ate college facilities for religious activities is not in vio· lation of the Establishment of Religion Clause of the United States Con- stitution when reasonable accommodations are provided at reasonable times which do not interfere with the regular activities of the college· when all groups requesting the use of the facilities are given equal acces~ t hereto ; when the users are members of the college community· and when payment is made for exceptional expense incurred by the c~llege in providing these facilities. OPINIONS OF THE ATTORNEY GENERAL 3. Governmental interrelationships with religion must have a primary effect that neither advances nor inhibits religion. 4. Permissible and impermissible interrelationships between church and State can only be determined on a case-by-case basis. Honorable John C. Pittenger Secretary · Department of Education Harrisburg, Pennsylvania Dear Secretary Pittenger: Harrisburg, Pa. January 15, 1973 You have asked our office for a determination concerning whe- ther it is permissible to allow students, faculty or staff to hold organized religious activities on State college campuses. You are advised that such activity is lawful subject to the limitations contained herein. INTRODUCTION At the present time, the State colleges of the Commonwealth follow a rather uniform policy of not permitting organized re- ligious activities of any kind by anybody on State college cam- puses. The resulting incovenience and even hardship to students attending those institutions who wish to worship are obvious and have been raised again and again by students, professors, and administrators. Most recently, inquiries have been received from or concerns expressed by Clarion, Lock Haven, Bloomsburg, and East Stroudsburg. At Bloomsburg, for example, there are 2,000 Roman Catholic students, many of whom do not wish to worship downtown, because, among other things, they wish the services to reflect their needs and their views rather than those of the older adult community in town. But there are more substantial difficulties. Of the fourteen State colleges in the Commonwealth, many are in the deepest ru- ral area of the State, where only a small number or denomina- tional institutions are represented and where long distances must be traveled to reach certain churches and/ or clerics. Public tran- sportation is, for the most part, non-existent and private trans- portation unavailable for many. While many students and fac- ulty live and work on campus and find that the campus com- munity provides for many of their needs, they find they must look elsewhere at sometimes great cost and inconvenience to sat- isfy their spiritual needs. In addition, some students may even be faced with the prospect of violating their religion, if they wish to attend religious services long distances away from the college campus. Consider, for example, the situation of the Orthodox Jew who may not travel on the Sabbath or Holy Days except on foot and not past the town limits. He must either pray alone in his room or violate a stricture of his faith. While other examples may be provided, it is obvious that the present policy of the State colleges imposes substantial hardship 4 OPINIONS OF THE ATTORNEY GENERAL on many students and faculty, and may even b_e unconstitution~ as violative of the First Amendment of the Umted States C~ms~i­ tution. As Justice Brennan noted in the case of School District v. Schempp, 374 U.S. 203, 296 ( 1963) : "There are certain practices, conceivably violative. of the Establishment Clause, the striking down o~ wh1_ch might seriously interfere with certain religious _ll?erties also protected by the First Amendment. ~rov1s10n for churches and chaplains at military establishments for those in the armed services may afford one such exam- ple. The like provision by state and federal govern- ments for chaplains in penal institutions may afford an- other example. It is argued that such provisions may be assumed to contravene the Establishment Clause, yet be sustained on constitutional grounds as necessary to secure to the members of the Armed Forces and pri- soners those rights of worship guaranteed under the Free Exercise Clause." We conclude below that we need not reach the issue raised by Justice Brennan of whether the present policy at our State col- leges violates the "Free Exercise Clause,'' because there is no statutory or constitutional requirement forbidding religious act- ivities by students, faculty, or staff at reasonable times and sub- ject to the guidelines set forth below. IS IT A VIOLATION OF THE CONSTITUTION OR LAWS OF THE UNITED STATES OR OF PENNSYLVANIA TO AL- LOW ORGANIZED RELIGIOUS ACTIVITY BY STUDENTS, FACULTY, OR STAFF ON OUR STATE COLLEGE CAMPUS- ES? The Pennsylvania Constitution and the U.S. Constitution have clauses relating to the establishment and free exercise of reli- gion. The First Amendment to the United States Constitution, made applicable to the states by the Fourteenth, Murdock v. Pennsylvania, 319 U.S. 105 (1943), commands that "Congress shall make no law respecting the establishment of religion or pro- hibiting the free exercise thereof. ... " Chief Justice Burger noted in his majority opinion in Walz v. Tax Commission, 397 U.S. 664 (1970), that since both the establishment and free ex- ercise clause are cast in absolute terms. "[t]he Court has strug- gled to find a neutral course between the two Religion Clauses ... either of which, if explained to a logical extreme, would tend to clash with the other." Id., at 668. "The course of constitutional neutrality,'' the Chief Justice continued, "cannot be an absolutely straight line; rigidity could well defeat the basic purpose of these provisions, which is to insure that no religion be sponsored or favored, none command- ed and none inhibited." The Chief Justice then stated the general principle deducible from the First Amendment, incorporating much of what has been said by the Court in previous cases: OPINIONS OF THE ATTORNEY GENERAL "[T]hat we will not tolerate either governmentally established religion or governmental interference with religion. Short of those expressly proscribed govern- mental acts there is room for play in the joints pro- ductive of a benevolent neutrality which will permit religious exercise to exsist without sponsorship and without interference." Id., at 669 (Emphasis supplied.) Chief Justice Burger went on to say: "Each value judgment under the Religion Clauses must therefore turn on whether particular acts in question are intended to establish or interfere with religious be- liefs and practices or have the effect of doing so. Adher- ence to the policy of neutrality that derives from an accommodation of the Establishment and Free Exercise Clauses has prevented the kind of involvement that would tip the balance toward government control of churches or governmental restraint on religious prac- tice." Id., at 669. 5 It is clear from the language of the Walz decision that by re- fusing to adopt a literal interpretation of the religious clauses of the First Amendment, which would have precluded any inter- relationship between church and State, the Court acknowledged that the two clauses are interdependent and therefore require some nexus. Only on a case-by-case basis can the line between permissible and impermissible governmental action be distin- guished. Accordingly, any general principles which the Court has formulated in this area were developed in a whole series of cases. Any attempted extraction of isolated language within a single opinion can lead to confusion and misunderstanding of of the findings of the Supreme Court in subsequent cases. Mr. Chief Justice Burger recognized the danger of possible contra- dictions when he stated in Walz that: "The considerable internal inconsistency in the opinions of the Court derives from what, in retrospect, may have been too sweeping utterances on aspects of the [Relig- ion] Clauses that seemed clear in relation to the part- icular cases but have limited meaning as general princi- ples." Id., at 668. The hazard of placing too much weight on a few words or phrases of the Court was emphasized ~y Chief Justice Burger. He cited Everson v. Board of Education ,330 U.S. 1 (1947 ), where Justice Black writing for the majority said that the First Amendment "means at least this: Neither a state nor the Federal Government can .... pass laws which and one religion, aid all religions, or prefer one religion over another." The act- ual result in Everson was the upholding of a form of Assistance to church-sponsored parochial schools (reimbursement of bus fares) . This was also true in a later decision in which the Court 6 OPINIONS OF THE ATTORNEY GENERAL upheld the loaning of textbooks to children in paro.chial schools through the use of public funds. Board of Education v. All~n, 392 U.S. 236 ( 1968). See also Nebraska State Board of Education v. School District of Hartington. , U.S. , 93 S. Ct. 220 (1972) . It can thus be seen that the United States Supreme Court has left a gray area between the extremes of the two religion clauses of the First Amendment in which some forms of "aid" will be upheld and others will not. Since the .court determined. t~at the two clauses may overlap, it has fashioned a test for ~1stm­ guishing between forbidden involvements ~f the State with re- ligion and those contacts which the Establishment Clause per- mits. "The test may be stated as follows: What are the purpose and the primary effect of the enactment? If either is the ad- vancement or inhibition of religion then the enactment exceeds the scope of legislative power or is circumscribed by the Con- stitution. That is to say that to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits reli- gion." School District v. Schempp, 374 U.S. 203, 222 ( 1963); Everson v. Board of Education, 330 U.S. 1 ( 194 7). Keeping this test in mind, it is clear that the use of State col- lege facilities by students, faculty, or staff for religious activities at the State colleges is not in violation of the Establishment Clause when reasonable accommodations are provided at reason- able times which do not interfere with the regular activities of the college; when all groups requesting the use of the facilities are given equal access thereto; when users are members of the college community; and when payment is made for exceptional expense incurred by the college in providing these facilities. To make college facilities available for religious activities is not establishment of religion but rather the "benevolent neutrality" spoken of in the Walz decision, because by merely providing a facility for any and all wishing to worship in any way they wish, the State is neither establishing nor inhibiting religion. We must stress, of course, that anything more than the mere provision of physical facilities for worship on a disinterested and equitable basis might very well tip the delicate balance of interests toward an unconstitutional Establishment of Religion. It has been argued that the Pennsylvania Supreme Court cases of Bender v. Streabich, 182 Pa. 251 ( 1897) , and Hysong v. School District of Gallitzin Borough, 164 Pa. 629 ( 1894) require a different conclusion, but it is clear that this is not so.' Both of thes~ cases held .th~t school directors had n~ authority to permit ~ubhc school bwldmgs to be used for sectarian religious instruc- tion or for other than school purposes. These decisions were based upon a construction of what is now the Act of March 10 1949, P . L. 30 Act VII, as amended (24 P .S. §7-775 ). ' OPINIONS OF THE ATTORNEY GENERAL "§7-775. Use o~ school buildings for other purposes; ar- rangements with city, borough, or township "1:he board of school directors of any district may per- mit the use of its school grounds and buildings for so- cial, recreation, and other proper purposes, under such rules and regulations as the board may adopt. The board shall make such arrangements with any city, borough, or t<;>wnship authorities for the improvement, care, pro- tection, and maintenance of school buildings and grounds for school, park, play, or other recreation pur- poses, as it may see proper. Any board of school direc- tors may make such arrangements as it may see proper with any officials or individuals for the temporary use of school property for schools, playgrounds, social, rec- reation, or other proper educational purposes, primaries and elections, and may permit the use of any school building for holding official meetings of the governing authorities of corporate or politic, governmental or quasi-governmental bodies, created by authority of any act of Assembly. The use thereof shall not interfere with school programs and shall be subject to reasonable rules and regulations adopted by the board of school directors . . . . " 7 That statute clearly deals only with school buildings that belong to a school district and not with the buildings at State colleges. One of the legislative reasons in making such a distinction might very well have been that, as the cases have indicated, the State must be especially careful when providing religious ac- tivities for impressionable young children, whereas the same considerations do not apply to young adults, who are more able to defend and protect their own religious views. But there is another more fundamental reason for the distinc- tion. Students at a State college are in an atmosphere where the State is, to a degree, organizing the intellectual and social life of the community. For four years, students spend a large part of their working and leisure hours on the State college campus. To put it another way, the State college campus is the community, whereas the public school is only a small part of the larger com- munity of the public school pupil and his parents. It is proper for the State, in the former situation, to provide for voluntary student religious activity to avoid imposing a serious burden on religious exercise and to provide a full opportunity for commun- ity life. See Katz, Freedom of Religion and State Neutrality, 20 Chicago L. Rev. 426. CONCLUSION For the reasons set forth above, and subject to the limitations expressed above, it is our opinion, and you are so advised, that reasonable accommodation for student, faculty and staff religious 8 OPINIONS OF THE ATTORNEY GENERAL worship, at reasonable hours, on a stri~tly 1?"~utral basis, may be provided at the State colleges and umvers1ties. Sincerely Yours, MARK P. WIDOFF Deputy Attorney General ISRAEL P ACKEL Attorney General