Can Tennessee take away a private university's campus police authority if the university discriminates against religious student groups?

Subject

Opinion No. 13-20, Limitation on Authority of Higher Education Institutions to Exercise Police Powers, March 13, 2013

Plain-English summary

A state representative asked two questions. First, did SB1241 (a bill that would condition a higher-education institution's authority to commission campus police on the institution's non-discrimination against religious student organizations) violate the First Amendment or Equal Protection Clause? Second, did Tenn. Code Ann. §§ 4-21-802(a) and 4-21-803(a) (which prohibit state funds or commercial agreements with facilities that discriminate based on sex, race, religion, and other protected categories) violate the U.S. Constitution?

On SB1241, the AG split the answer. As applied to state universities, the bill was likely facially constitutional. State institutions are arms of the state with no independent constitutional rights. The state can impose a non-discrimination requirement on its own agencies. That mirrors the analysis in Op. 13-05, which the AG largely cross-referenced rather than repeating.

As applied to private universities, SB1241 was constitutionally suspect on two grounds. First, the unconstitutional conditions doctrine. Tenn. Code Ann. § 49-7-118 gives certain private universities (meeting size, geographic, and accreditation criteria) the benefit of state-delegated police power. SB1241 would withdraw that benefit from a private university that exercises its First Amendment expressive-association rights (by, for example, requiring all student groups to admit all members regardless of religious belief, or by recognizing groups with all-faith leadership requirements). Rumsfeld v. FAIR and the cases on unconstitutional conditions hold that "the State may not condition continued receipt of a valuable state benefit . . . on a private institution's compliance with an unconstitutional condition."

Second, the Equal Protection Clause. SB1241 distinguishes between private universities that conform to its non-discrimination structure and those that don't. Because that classification impacts a fundamental right (First Amendment expressive association), it triggers strict scrutiny. The General Assembly's interest in how it delegates police power is significant, but using that interest to extract a waiver of First Amendment rights from a private university is, in the AG's view, not narrowly tailored. Morse v. Republican Party of Virginia and Roberts v. United States Jaycees require the "least restrictive means."

On the second question, the AG concluded that Tenn. Code Ann. §§ 4-21-802(a) and 4-21-803(a), Tennessee's prohibitions on state funds or commercial agreements with discriminatory facilities, are facially defensible. The Supreme Court has recognized in Rust v. Sullivan and City of Richmond v. J.A. Croson Co. that states can selectively fund programs to remedy private discrimination without violating the Constitution. The federal district court in Hill v. Kemp applied the principle that "[w]hen the government creates a spending program, it is also entitled to define the limits of the program and impose requirements for the distribution of funds." That said, the AG cautioned that whether the statutes apply in a particular case (and whether such application might implicate constitutional rights) would depend on the facts of that case, beyond the scope of a facial-validity opinion.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The First Amendment doctrines this opinion turns on (expressive association, unconstitutional conditions, strict scrutiny) are stable. The campus police statute Tenn. Code Ann. § 49-7-118 has been amended periodically. Any current bill conditioning the police-power delegation should be evaluated against the current versions of all relevant statutes and recent Supreme Court decisions touching on private-university expressive association.

Background and statutory framework

Tenn. Code Ann. § 49-7-118 lets certain institutions of higher learning (universities and community colleges within the Board of Regents and University of Tennessee systems, plus private universities meeting specified size, geographic, and accreditation criteria) commission their own police forces. The powers granted include the ability to commission police officers, set qualifications, enter mutual aid agreements, and exercise all police powers necessary to enforce state laws on institution property.

SB1241 would amend § 49-7-118 to make the campus-police authority conditional. An institution could exercise and maintain the police authority only if it (1) did not discriminate against student organizations based on religious speech content or religious membership/leadership requirements, and (2) did not prohibit religious student organizations from requiring members and leaders to profess the faith and comport themselves in conformity with it. The structure parallels HB3576 from the year before, which the AG had analyzed in Op. 13-05 with similar split-conclusions.

The Op. 13-20 analysis tracks Op. 13-05's framework with one key add-on. Because SB1241 doesn't just condition state funding but conditions the actual delegation of police power, the "valuable state benefit" at stake is qualitatively different. A private university that loses its campus police authority faces real operational consequences: it must rely on local law enforcement for on-campus issues, with attendant delays and jurisdictional questions. The AG's reasoning was that conditioning that significant operational authority on the surrender of First Amendment rights ran into the unconstitutional conditions doctrine, with the high stakes making the constitutional problem clearer.

On equal protection, SB1241 classifies private universities into two groups based on their student-organization policies. Grutter v. Bollinger, Murgia, and the standard tier-of-scrutiny framework apply. Because the classification impacts a fundamental First Amendment right, strict scrutiny applies; the state must show the classification is narrowly tailored to a compelling interest. The state's interest in how it delegates police power is meaningful but cannot serve as a vehicle to compel a private university to abandon its expressive-association rights. Buckley v. Valeo and Morse recognize that "governmental action that may have the effect of curtailing freedom to associate is subject to the closest scrutiny." Roberts requires the "least restrictive means."

For Tenn. Code Ann. §§ 4-21-802 and -803, the AG found facial validity easier. Those provisions are spending-power conditions: the state declines to fund or contract with facilities that discriminate on prohibited grounds. Rust v. Sullivan (denial of federal funding to family-planning programs that advocate abortion) and Croson (states can address private discrimination through spending choices) are the foundational cases. The federal court in Hill v. Kemp applied this framework. A facial challenge under Stevens and Salerno requires showing the law has no constitutional applications, which is a high bar that the AG didn't think the §§ 4-21-802 and -803 statutes would fail.

Common questions

How is SB1241 different from HB3576 (the bill analyzed in Op. 13-05)?

HB3576 conditioned state funding (more than $24 million annually in state tax revenue) on a private university's non-discrimination structure. SB1241 conditioned the campus-police-authority delegation under § 49-7-118 on the same structure. Both bills had a state benefit attached to a non-discrimination requirement; both pose similar unconstitutional-conditions and equal-protection problems for private universities. The AG saw SB1241 as raising the same issues in a more concrete form because losing campus police authority has direct operational consequences.

What's the unconstitutional conditions doctrine?

The doctrine prevents the government from doing indirectly through funding conditions what it could not do directly through regulation. If Tennessee can't outright prohibit a private university from adopting a religious-student-group policy of its choosing (because of the First Amendment), it can't condition a major state benefit on the university's agreeing to abandon that policy.

Could the General Assembly just repeal § 49-7-118 across the board?

Yes. The unconstitutional conditions problem arises because Tennessee gives the police-power benefit and then conditions it on rights-waiver. If the legislature simply didn't grant the benefit to anyone, there'd be no condition to attack. The legislature can choose not to delegate police power. What it can't do is delegate to some private universities and then yank the delegation from those that exercise their First Amendment rights.

Did SB1241 ever become law?

The opinion was advisory on a pending bill. The eventual enacted Tennessee law on religious student organizations differs from what SB1241 proposed. Anyone working with the current state of the law should review the current statutes and decisions.

What about religious universities that already structure their programs around faith requirements?

Section 49-7-118's eligibility criteria are size/geographic/accreditation-based. A small religious school may not even meet those criteria and so wouldn't be affected by SB1241. Larger private universities that do meet the criteria would face the choice the AG identified: maintain their preferred student-group policies and lose police-power authority, or change those policies to keep the authority.

Could Tennessee instead just say "all student groups at campus-police-authorized schools must follow standard non-discrimination rules"?

That formulation runs into the same unconstitutional conditions problem. The constitutional defect isn't fixed by repackaging. As long as the state benefit (campus police authority) remains conditioned on the rights-waiver, the doctrine applies. A state-side action that doesn't condition a benefit (for example, declining to extend the police authority to new institutions going forward) operates on different footing.

What about §§ 4-21-802 and -803 specifically?

Those statutes prohibit state spending or commercial agreements with discriminatory facilities. The AG concluded they're facially defensible because the state has broad authority over its own spending choices. A specific application could still raise constitutional issues (for example, if the state refused to do business with a private organization because of its protected First Amendment expression), but the statutes on their face are within the state's spending power.

Citations

• Tenn. Code Ann. § 49-7-118 (delegation of police power to higher-education institutions)
• Tenn. Code Ann. § 4-21-802(a), § 4-21-803(a) (prohibition on state spending/contracts with discriminatory facilities)
• U.S. Const. amend. I (speech and association)
• U.S. Const. amend. XIV (equal protection)
• Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) (expressive association)
• Roberts v. United States Jaycees, 468 U.S. 609 (1984) (expressive association)
• Rumsfeld v. FAIR, 547 U.S. 47 (2006) (unconstitutional conditions)
• Grutter v. Bollinger, 539 U.S. 306 (2003) (strict scrutiny standard)
• Rust v. Sullivan, 500 U.S. 173 (1991) (selective funding constitutional)
• City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) (state may address private discrimination)
• Hill v. Kemp, 645 F. Supp. 2d 992 (N.D. Okla. 2009) (state-spending program limits)
• United States v. American Library Ass'n, 539 U.S. 194 (2003) (spending program limits)
• Hsu v. Roslyn Union Free School Dist., 85 F.3d 839 (2d Cir. 1996) (state actors compelled to comply with state requirements)
• Tenn. Att'y Gen. Op. 13-05 (Jan. 11, 2013) (parallel analysis of HB3576)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2013/op13-020.pdf

Original opinion text

S T A T E O F T E N N E S S E E
OFFICE OF THE
ATTORNEY GENERAL
PO BOX 20207
NASHVILLE, TENNESSEE 37202

March 13, 2013

Opinion No. 13-20

Limitation on Authority of Higher Education Institutions to Exercise Police Powers

QUESTIONS

1. Does House Bill 1150/Senate Bill 1241 of the 108th General Assembly, 1st Sess. (2013) ("SB1241") violate either the First Amendment or the Equal Protection Clause of the United States Constitution?

2. Do either Tenn. Code Ann. § 4-21-802(a) or Tenn. Code Ann. § 4-21-803(a) violate the United States Constitution?

OPINIONS

1. SB1241 would likely be held facially constitutional as applied to state institutions of higher learning. As applied to private institutions, SB1241 is constitutionally suspect because it imposes a possible unconstitutional condition on the receipt of a valuable state benefit.

2. Both statutes are defensible from a facial constitutional challenge. Whether the statutes apply in a particular case and whether such application might implicate constitutional rights of speech, association or equal protection will depend upon the facts of that case and are beyond the scope of this opinion.

ANALYSIS

Tenn. Code Ann. § 49-7-118 confers the benefit of the State's police power on certain institutions of higher learning, including universities and community colleges within the Board of Regents and University of Tennessee systems and private universities meeting certain size, geographic and accreditation criteria. See Tenn. Code Ann. § 49-7-118. The powers granted by Tenn. Code Ann. § 49-7-118 include the power to (1) commission police officers; (2) set qualifications for those officers; (3) enter mutual assistance agreements with other law enforcement agencies; and (4) exercise all powers necessary to enforce state laws on property owned by the institution. Id.

SB1241 would condition the police powers conferred by Tenn. Code Ann. § 49-7-118 upon the institution structuring its financially supported student organizations in the manner provided by SB1241. SB1241 provides as follows:

SECTION 1. Tennessee Code Annotated, Section 49-7-118, is amended by adding the following language as a new subsection (a) and by redesignating subsequent subsections accordingly:

(a) The authority granted to institutions of higher education under this section may only be exercised and maintained by those institutions that meet all requirements of this section applicable to the institution and that:

(1) Do not discriminate against or deny recognition to a student organization, or deny to a student organization access to any programs, opportunities, channels of communication, or facilities otherwise available to any other student organization on the basis of:

(A) The religious content of the organization's speech; or

(B) The organization's exercise of its rights pursuant to subdivision (a)(2); or

(2) Do not prohibit a religious student organization from determining that the organization's religious mission requires that only persons professing the faith of the group and comporting themselves in conformity with it qualify to serve as members in good standing or leaders.

SECTION 2. This act shall take effect July 1, 2013, the public welfare requiring it.

1. This Office recently opined that House Bill 3576/Senate Bill 3597 of the 107th General Assembly, 2nd Sess. (2012) ("HB3576") was likely facially constitutional as applied to public universities but constitutionally suspect as applied to private universities because it imposed an unconstitutional condition on the receipt of a valuable government benefit. See Tenn. Att'y Gen. Op. 13-05 (Jan. 11, 2013). For similar reasons, SB1241 is likely facially constitutional as applied to public universities and constitutionally suspect as applied to private universities.

SB1241, like HB3576, denies a State benefit to an institution of higher learning that discriminates against or denies recognition to any student organization on the basis of (1) that organization's religious speech or (2) that organization's requirements for membership or leadership. HB3576 conditioned the receipt of State funds upon a private educational institution structuring its supported student associations in compliance with HB3576, Tenn. Att'y Gen. Op. 13-05 at 7, whereas SB1241 conditions a public or private educational institution's ability to commission and administer its own police force on the institution structuring its supported student associations in accordance with SB1241.

As explained in Tenn. Att'y Gen. Op. 13-05, the State can constitutionally impose such a requirement on its own public institutions. Those public institutions are arms and instruments of the State and possess no rights or powers not conveyed by the State. Thus, the State may impose the non-discrimination requirement in SB1241 on public institutions because the requirement, as an exercise of state control over its own agent, does not violate any constitutional limitation on state power. See Tenn. Att'y Gen. Op. 13-05 at 2-6. See also Hsu v. Roslyn Union Free School Dist., 85 F.3d 839, 848 (2d Cir. 1996), cert. denied, 519 U.S. 1040 (1996); David Brown, Comments, Hey! Universities! Leave Them Kids Alone! Christian Legal Society v. Martinez and Conditioning Equal Access to a University's Student-Organization Forum, 116 Penn. St. L. Rev. 163, 196-197 (Summer 2011).

As applied to private institutions, the constitutional inquiry is different. The non-discrimination requirement contained in SB1241 is substantially similar to the non-discrimination provisions of HB3576. For the reasons outlined in Tenn. Att'y Gen. Op. 13-05, this non-discrimination requirement, as applied to private universities, likely violates the private universities' right to free association protected by the First Amendment to the United States Constitution. See Tenn. Att'y Gen. Op. 13-05 at 6-8.

[Footnote: The First Amendment states that "Congress shall make no law . . . abridging the freedom of speech." U.S. Const. amend. 1. Free speech includes not only the right to associate but also the right to refuse to associate. Boy Scouts of America v. Dale, 530 U.S. 640, 648 (2000) (citing Roberts v. United States Jaycees, 468 U.S. 609, 623 (1984)). The First Amendment is incorporated into the Due Process Clause of the Fourteenth Amendment to the United States Constitution and thereby made applicable to the states. See Duncan v. Louisiana, 391 U.S. 145, 147-48 (1968).]

The constitutional infirmity of SB1241 is not cured by the fact that it withdraws the police power from private universities that exercise their right to free association rather than simply banning, outright, the exercise of that constitutional right. It is well established that the State may not condition continued receipt of a valuable state benefit (here, the exercise of the State's police power to commission and maintain a police force) on a private institution's compliance with an unconstitutional condition. Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 59-60 (2006); L.L. Nelson Enterprises v. County of St. Louis, Missouri, 673 F.3d 799, 805-06 (8th Cir. 2012). Because SB1241 arguably imposes an unconstitutional condition, it is facially constitutionally suspect.

SB1241 as it impacts private universities also facially violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. That amendment provides, in part, that:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

U.S. Const., amend. XIV, §1.

When a law creates a suspect classification (e.g. race or religion) or impacts a fundamental right (such as the rights guaranteed by the First Amendment), the Equal Protection Clause requires the law be reviewed under the "strict scrutiny" standard. See, e.g., Grutter v. Bollinger, 539 U.S. 306, 326 (2003); Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 312-13 (1976). In order to meet this heightened standard a review, a state is required to demonstrate that the law under review is narrowly tailored to advance a compelling government interest. Grutter, 539 U.S. at 326; Roberts v. United States Jaycees, 468 U.S. 609, 626 (1984).

As previously discussed SB1241 impacts a private university's First Amendment right of free association and distinguishes between those universities that organize their student groups in conformity with SB1241 and those that do not. This classification thus impacts a fundamental right – a private university's First Amendment right to free association – and would be reviewed under the strict scrutiny standard. The General Assembly has an interest in how the State delegates its police power to a private university. Even if that interest is compelling, the General Assembly cannot assert that interest through an unrelated requirement that a private university abandon its right of free association. See, e.g., Morse v. Republican Party of Virginia, 517 U.S. 186, 228 (citing Buckley v. Valeo, 424 U.S. 1, 24-5 (1976)) (recognizing that "governmental action that may have the effect of curtailing freedom to associate is subject to the closest scrutiny"). See also Roberts, 468 U.S. at 626 (stating that the application of a state nondiscrimination law is only permissible where a state uses "the least restrictive means of achieving its ends").

2. Turning to the second question posed, Tenn. Code Ann. § 4-21-802(a) and Tenn. Code Ann. § 4-21-803(a) are defensible from a facial constitutional challenge. These statutes collectively generally prohibit the expenditure of State funds, or the entering into by the State of commercial agreements, with a facility or club that discriminates "on the basis of sex, race, creed, color, religion, ancestry, national origin or disability." Tenn. Code Ann. §§ 4-21-802, -803. The United States Supreme Court has recognized in some situations that a state can selectively fund programs to encourage certain activities or use its spending powers to remedy private discrimination without violating the Constitution. See, e.g., Rust v. Sullivan, 500 U.S. 173, 193 (1991); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 492 (1989) (plurality opinion). See also Hill v. Kemp, 645 F. Supp. 2d 992, 999-1006 (N.D. Okla. 2009) (quoting United States v. American Library Ass'n, Inc., 539 U.S. 194, 211 (2003) (federal district court stating that "(w)hen the government creates a spending program, it is also entitled to define the limits of the program and impose requirements for the distribution of funds"). Accordingly, a court would likely find that the statutes in question could survive a facial challenge. Cf. United States v. Stevens, 559 U.S. 460 (2010) (citing United States v. Salerno, 481 U.S. 739, 745 (1987)) (setting out standard for facial constitutional challenge). Whether the statutes apply in a particular case and whether such application might implicate constitutional rights of speech, association or equal protection will depend upon the facts of that case and are beyond the scope of this opinion. See Waters v. Farr, 291 S.W.3d 873, 922-23 (Tenn. 2009) (Koch, J., concurring in part and dissenting in part) (discussing distinctions between "as applied" and "facial" constitutional challenges).

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

ADAM B. FUTRELL
Assistant Attorney General

Requested by:

The Honorable Mark Pody
State Representative
203 War Memorial Building
Nashville, TN 37243-0146