Can a Georgia public university let a student do an academic-credit internship at a religious organization that hires only people of its own faith, or would the university violate the Constitution by allowing it?

Plain-English summary

The University System of Georgia Chancellor described a recurring problem with internships. Hundreds of students at System institutions satisfied internship requirements every year at off-campus facilities, sometimes religious organizations. The standard memorandum of understanding between the institution and the host site contained a non-discrimination clause, which created a tension when the host site limited staff and intern hires to members of its faith. The Chancellor asked whether the university could allow such an internship. The AG said yes, twice over. First, no Georgia or federal law forbade the arrangement, in part because Title VII at 42 U.S.C. § 2000e-2(e) explicitly exempts religious educational institutions from the religion-discrimination ban for faith-based hiring. Second, refusing the internship solely because the host site is religious or limits its membership would itself violate the student's First Amendment rights of speech, expressive association, and free exercise of religion under the Rosenberger line of cases.

Currency note

This opinion was issued in 2001. 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.

Historical context

The opinion reflects the Supreme Court's then-recent shift in Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995). In Rosenberger, the Court ruled that the University of Virginia could not deny student-activity funding to a Christian student publication while funding comparable secular publications. The Court rejected the University's Establishment Clause defense and held that withholding equal treatment because of the religious content of speech violated the First Amendment. The decision moved the doctrine from "religion is a special hazard for state actors" toward "viewpoint neutrality requires equal treatment regardless of religious content."

Applied to the University System internship question, the AG saw the same logic. A student-chosen internship at a sectarian facility was, like the Rosenberger publication, a private religious activity in which the student was the actor. The university's role was permissive, not sponsorial. Excluding the religious facility from the list of acceptable internship sites because it was religious or because it had a faith-based hiring policy would single out religious activity for adverse treatment.

The AG had reached a similar conclusion in 1997 Op. Att'y Gen. 97-32 about a Georgia Tech student chapter of a national campus ministry, holding that Georgia Tech's recognition of the religious student organization (which limited membership to those who shared its religious commitments) did not violate the Establishment Clause and that refusing recognition would violate the students' First Amendment rights of expressive association.

The Title VII analysis was independent and supportive. Section 702 (codified at 42 U.S.C. § 2000e-2(e)) exempts religious educational institutions from the Title VII bar on religious discrimination in hiring. So a sectarian facility's hiring policy that limited employment to its religious adherents was lawful under federal employment law and could lawfully extend to interns and staff alike.

The Chancellor also asked whether the university could enter into agreements that placed students at religious facilities where the internship required active participation in religious ministry. The AG saw no legal impediment. The student-chosen, voluntary nature of the placement (the memorandum of understanding was not exclusive; students could pick other sites) plus the First Amendment protections discussed above led to the same answer.

A subsidiary question: could the religious organization require the student to identify her religious beliefs before the internship started? Yes, the AG said. Where the religious organization limited staff and intern positions to members or adherents, it could ask the student to identify her religious beliefs as part of accepting the internship. That hiring practice was within the Title VII religious-employer exemption.

For University System institutions at the time

The opinion gave the green light. The institution should treat religious internship sites no differently from secular sites: review the educational value of the placement, sign the standard memorandum, and let the student decide. The institution should not deny the internship just because the host facility was religious or hired only adherents. Doing so would expose the institution to a Rosenberger-style First Amendment claim from the student.

For students at the time

A student who wanted to do an internship at a religious organization (and was willing to identify her religious beliefs and otherwise meet the host's requirements) had a constitutional right not to have the placement blocked because of the religious nature of the host.

For the religious host facilities at the time

The Title VII religious-educational-institution exemption permitted a faith-based hiring practice that extended to interns and staff. The AG's opinion confirmed that Georgia public universities could partner with such facilities for internship placements without legal exposure.

Common questions

Q: Did this mean the university was sponsoring or endorsing the religious facility?
A: No. The internship arrangement was a permissive academic credit pathway, not state sponsorship. The student chose the host. The university's role was to evaluate the educational value of the placement, not to vet its religious character.

Q: Could a sectarian facility require an intern to participate in religious activities?
A: Yes, in the AG's view. A student who chose a religious facility for her internship could lawfully be expected to participate in the facility's religious ministry as part of the experience.

Q: Is the Rosenberger analogy a good fit?
A: The AG thought so. Rosenberger established that public universities cannot disadvantage religious viewpoints by excluding them from generally available benefits. An internship pathway open to many host facilities is analogous to a student-activities funding pool open to many student organizations.

Q: Could the university still apply genuinely neutral criteria to deny a placement?
A: Yes. The opinion was about denials based solely on the host's religious character or membership policy. Denials based on educational unsuitability, lack of supervision, safety concerns, or other neutral grounds applied to all hosts would not run afoul of the First Amendment.

Background and statutory framework

The First Amendment protections at issue were three: free speech (a student's right to express her views including through her choice of internship), expressive association (a student's right to associate with a religious organization that requires shared belief), and free exercise of religion (a student's right not to be penalized for her religious affiliation in pursuing public benefits).

The Title VII religious-employer exemption at 42 U.S.C. § 2000e-2(e) is narrow but well-established. It allows schools, colleges, and other educational institutions controlled by a particular religion (or whose curriculum promotes a particular religion) to hire only employees of that religion without violating Title VII's general religion-discrimination prohibition. Federal courts have applied the exemption to both regular employees and interns where the hiring practice is consistent.

Citations and references

Statutes:
- 42 U.S.C. § 2000e-2(e) (Title VII religious educational institution exemption)

Cases:
- Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995)

Prior AG opinions:
- 1997 Op. Att'y Gen. 97-32 (Georgia Tech student religious organization)

Source

• Landing page: https://law.georgia.gov/opinions/2001-1

Original opinion text

Your letter of September 29, 2000, together with its appended documentary materials, relates to a problem which has arisen in connection with the "internship" requirements of a university's academic program. Your materials indicate that hundreds of students have been satisfying their "internships" each year at "remote internship sites where the students are exposed to clinical and professional experience of educational value," with the student receiving academic credit for the internship experience. In some instances, the internship sites or facilities selected by the students have had religious or church affiliations. Typically, the organization or facility enters into a "memorandum of understanding" with the university (which expressly disclaims being a "contract" or any way affecting the legal rights or obligations of the parties), containing, among other things, a standard "non-discrimination" clause. The problem which has arisen has to do with a student who desires to satisfy this "internship" requirement at a facility or site operated by a church or religious organization which maintains a policy of religious exclusivity as to staff and intern employment. Your inquiry centers on whether or not the university may allow the student to satisfy the "internship" requirement at a sectarian facility which by policy limits its staff and intern employment to persons of its particular religious faith or persuasion. Looking at your specific questions, I will state each in turn, and follow it with my opinion and supporting reasons. 1. May a University System institution permit a student to satisfy an "internship" requirement of one of its academic programs at a private sectarian facility or institution which confines staff and intern employment to persons of that particular religious faith or persuasion? If so, may a student be required to identify his or her religious belief prior to participation in such an internship program? In my opinion there is no legal impediment to a University System institution allowing a student to satisfy an "internship" requirement at a sectarian facility which, in furtherance of what it believes to be its religious mission, limits staff and internship employment in its educational programs, functions and activities to persons sharing its particular religious faith and belief. I think that this is what current Supreme Court jurisprudence calls for respecting core First Amendment speech rights, including the right of expressive association, and also concerning the interplay between the "free exercise" and "establishment" provisions of the First Amendment. In Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995), for example, an avowedly Christian organization was denied funding from the student activities fund because of the fact that its primary objective was to promote a particular religious belief, which was in violation of University Funding policies respecting student organizations. In that case, which involved the actual "funding" of a student religious organization (albeit, on the same basis as other non-religious student organizations), the University relied and lost on its "establishment" clause defense. The Supreme Court concluded that the University of Virginia was not only constitutionally permitted to allocate funds to the religious organization in the face of the "establishment" clause, but went further and held that it would indeed be a violation of the First Amendment to withhold equal treatment in funding from the student religious organization, in effect penalizing it for speech "content," i.e., the expression of religious views. This same conclusion was also reached by this office in 1997 Op. Att'y Gen. 97-32 in connection with the Georgia Institute of Technology's student chapter of a national campus ministry which required all student members to subscribe to various principles of biblical interpretation, doctrinal statements of commitment to historic Christianity, and standards of personal conduct as a condition of membership. The requirement caused concern at Georgia Tech under a Board of Regents' policy prohibiting any student organization from excluding any student based on, among other things, the student's religion or creed. Based upon other Supreme Court decisions similar to Rosenberger, I concluded that Georgia Tech's recognition of the student religious organization not only would not violate the Establishment Clause of the First Amendment, but that the institution's refusal to recognize such a group would violate the students' First Amendment rights of expressive association. While the circumstances in the two preceding situations may differ from that of a student, at his or her own request, satisfying "internship" obligations at the private religious organization which limits employment to its adherents, I believe the underlying principle to be the same. I note, for example, that with respect to a private religious organization's employment policies (which based upon review of the supplemental documentary materials you have forwarded would include a student intern as well as a regular staff employee), the Equal Employment Opportunities Act's normal prohibition of failing or refusing to hire or discharge an individual or otherwise discriminate against an individual because of, inter alia, his or her religion is expressly qualified with respect to an avowedly religious institution. Subsection (e) of 42 U.S.C. § 2000(e)-2 provides: It shall not be an unlawful employment practice for a school, college, university or other educational institution or institution of learning to hire and employ employees of a particular religion if such school, college, university or other educational institution or institution of learning is, in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporations, association or society, of is the curriculum of such school, college, university or other educational institution or institution of learning is directed toward the promulgation of a particular religion. The same section provides a similar "exception," and indeed also as to sex and national origin, where religion, sex, or national origin "is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise." Id. For all of the above reasons, it is my opinion that first of all there is no legal impediment to a University System institution granting permission to a student, at the student's request, to satisfy an "internship" requirement at a sectarian facility which by policy limits the staff and internship employment to persons of the private, religious organization's particular faith, persuasion, or membership. Furthermore, it is my opinion that if the sole reason for denial of a student's request for permission to perform his or her internship in connection with the educational program, function or activity of a private religious organization is its religious character or exclusivity policy, the University System institution would be violating the First Amendment rights of the student under the "speech," "expressive association" and "free exercise of religion" protections of the First Amendment. A subsidiary question of your initial inquiry is whether a student may be required to identify his or her religious beliefs prior to agreeing to the internship in the educational program, function or activity. When the religious organization limits its staff and internship participants to members or adherents to the organization's religious principles, the religious organization may require the student to identify his or her religious beliefs prior to accepting the student as an intern in its program. 2. May a Unit of the University System of Georgia enter into an agreement with a religious organization to place its students in for-credit internships that require the student interns actively to participate in a religious ministry as an integral part of the internship experience? The scope of the internship agreement between the university and the religious organization is set out in a memorandum of understanding, a copy of which you have furnished to me, between the two institutions. It is not a contract. It does not provide for an exclusive affiliation between the university and the religious organization. Students are not precluded by the agreement from selecting other sites or facilities for their internships. If a student, of his or her own choice, seeks to intern at a religious facility which requires the student to actively participate in a religious ministry as an integral part of the internship experience, I see no legal impediment to the student's engaging in the religious activity required by that religious facility. Therefore, it is my official opinion that there is no legal impediment to a University System institution's allowing a student, upon the student's request, to satisfy an "internship" requirement at a sectarian facility which by policy limits staff and internship employment to persons of its particular religious faith or persuasion, and that disallowance would be in violation of the student's First Amendment rights where the permission is denied solely because of the facility's religious character and exclusivity policies. Prepared by: ALFRED L. EVANS, JR. Senior Assistant Attorney General