Constitutional Law

N.C. appeals court: Religious college can't have state police force

By By The Associated Press

RALEIGH, N.C. — A prestigious North Carolina private college cannot have police officers with the power to arrest suspects and enforce state law because the school is a religious institution, the state Court of Appeals ruled yesterday.

A three-judge panel agreed that the state Attorney General?s Office shouldn?t have commissioned Davidson College officers as law enforcement with powers similar to city police or county sheriffs. An attorney familiar with the case said it might apply to other private colleges with religious affiliations.

Allowing the school?s security officers to carry out laws on behalf of the state violates the U.S. Constitution?s prohibition against laws establishing religion by creating ?an excessive government entanglement with religion,? Judge Jim Wynn wrote in the unanimous opinion.

The police power ?is an unconstitutional delegation of ?an important discretionary governmental power? to a religious institution in the context of the First Amendment,? Wynn wrote before he left the state bench to join the 4th U.S. Circuit Court of Appeals last week.

The unanimous ruling means there?s no automatic appeal to the state Supreme Court. But Wynn, joined by Judges Donna Stroud and Cheri Beasley, urged the Supreme Court to consider the case if an appeal is sought to clarify whether a college or university with a religious affiliation should be allowed to receive the delegated authority if it doesn?t seek to impose beliefs or indoctrinate students.

Davidson, a Presbyterian school of 1,800 students, has generated Rhodes Scholars and consistently ranks among the best liberal arts schools in the country. Davidson and schools like it have well-established principles of academic freedom and religious tolerance, the ruling said.

?We thus acknowledge the important distinction between an institution with religious influence or affiliation and one that is pervasively sectarian,? Wynn wrote.

But in reaching its decision, Wynn said, the Court of Appeals was bound by the precedent set in two earlier rulings. In those cases, state courts that found it unconstitutional to delegate police powers to Campbell University and Pfeiffer University, which both had strong affiliations to denominations and Christian purposes.

Wynn noted that if the appeals panel were not bound by those cases, ?there is evidence in the record to show that Davidson College is not a religious institution for Establishment Clause purposes.?

The state Supreme Court, however, is not constrained by the precedent in the previous cases, Wynn said.

Attorney General Roy Cooper?s office, which represents the state in the case, is reviewing the decision, a spokeswoman said.

The case arose when a Davidson officer stopped a motorist in 2006 on a street adjacent to the campus, 20 miles north of Charlotte. The driver, Julie Anne Yencer — who was not a Davidson student — pleaded guilty to driving while impaired but appealed.

It?s unclear if the ruling will immediately affect Davidson?s nine-employee police department as classes begin Aug. 23. School spokeswoman Stacey Schmeidel said the school was ?analyzing the court?s opinion to determine its full implications.?

The Legislature allows the attorney general to certify police agencies and commission officers at private, nonprofit colleges. The authority is not denied to schools ?originally established by or affiliated with religious denominations,? the law says.

The North Carolina Independent Colleges and Universities has 36 members, including Davidson and others, such as Duke and Wake Forest. It wasn?t immediately clear how many have the level of religious affiliation that fit the category identified in yesterday?s ruling.

?There are presumably a lot of similarly situated institutions around the state that have been delegated the police power in an unconstitutional way, and this presumably applies to all of them,? said Yencer?s attorney, Allen Brotherton of Charlotte.

The opinion pointed out Davidson is affiliated with the Presbyterian Church (U.S.A.), requires more than half of the trustees to be active members in the denomination and that the life of the president provide ?evidence of strong Christian faith and commitment.?

The school?s statement of purpose says in part: ?The Christian tradition to which Davidson remains committed recognizes God as the source of all truth, and believes that Jesus Christ is the revelation of that God, a God bound by no church or creed.?

First Amendment Center Online staff contributed to this report.

Full post as published by First Amendment Center on August 17, 2010 (boomark / email).