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College Renovation Funds-- And Religious Exclusion Question-- Back In Stimulus Bill

By Howard M. Friedman

There has been a good deal of rhetoric and confusion over provisions in the stimulus bill permitting states to use certain funds for higher education renovation projects-- and the concomitant ban on funding for buildings used for religious purposes. (See prior posting.) As pointed out by the Joint Explanatory Statement from the Conference Committee [at pg. H1438], both the House and Senate versions of the American Recovery and Reinvestment Act that went into Conference had eliminated an earlier provision that allowed states to make grants for renovation of college buildings used for secular purposes. However the Conference Committee put the provision allowing use of funds for higher education renovations (with the same limits) back in. Searches of the earliest marked up versions-- partly marked up in hand-- did not turn up this addition (which led to an incorrect, but now corrected, posting by me earlier today). Now that an official fully printed version is available, funding for college building renovations reappears [at pg. H1351].

This means that the objections of some religious groups to the bill's limitations on use of this funding is back with us. At issue is this language:

No funds awarded under this title may be used for?... (3) modernization, renovation, or repair of facilities? (A) used for sectarian instruction or religious worship; or (B) in which a substantial portion of the functions of the facilities are subsumed in a religious mission.

The language poses two separate kinds of concerns. First, some object to the basic policy decision to deny funds for renovations of divinity schools and the like. Second, others do not necessarily disagree with that policy, but fear that the language of the bill is so broad that it may exclude use of funds in situations that were never intended to be excluded. The focus is on the exclusion for facilities "used for sectarian instruction or religious worship."

While that language clearly excludes a school's chapel, what about a regular classroom building that once in a while is used by a student group for prayer? Often student groups can reserve empty classrooms for meetings or events. Suppose a Christian, Jewish or Muslim student group uses a classroom in a science building once a week for an hour for group prayers. Does that preclude use of ARRA funds to remodel the science building? It is certainly unlikely that Congress intended to prevent the building-- where worship was an insubstantial use-- from receiving federal funds, and it is likely that if ever litigated, that is what a court would conclude. The problem however is that careful lawyers must often give legal opinions without court guidance. The fact that a "substantiality" qualification is in one clause of the exclusion and not the other, might give a careful lawyer pause. Last week, a posting on Phi Beta Cons via Blog from the Capital illustrated the scenario that might occur:

A university dusts off an old modernization project for a large and aging classroom building. Prior to submitting its funding proposal to the government, the university counsel's office works to ensure that the building complies with all applicable regulations, and in so doing finds that a Christian student group uses the building for its Friday-night Bible study. This is clearly "use" of the building for "sectarian instruction," so?to be on the safe side, since millions of dollars are at stake?he issues a notice that the group move its activities to another building. The process is repeated as other buildings are made eligible for funding.

Full post as published by Religion Clause on February 16, 2009 (boomark / email).