Could Tennessee require both state and private universities to recognize religious student groups that limit leadership to members of the faith?

Subject

Opinion No. 13-05, State Regulation of Student Organizations at Public and Private Colleges and Universities, January 11, 2013

Plain-English summary

In 2012, the General Assembly passed HB3576/SB3597, which Governor Bill Haslam vetoed. The bill addressed an ongoing fight over university "all-comers" policies, the rules some universities adopted requiring every officially recognized student organization to admit any student who wished to join, including religious groups whose mission turned on the religious commitment of their members and leaders. The U.S. Supreme Court had recently upheld an "all-comers" policy in Christian Legal Society v. Martinez. HB3576 went the other direction: it would have prohibited a state higher-education institution from denying recognition or benefits to a student organization based on the religious content of its speech or its decision to limit membership and leadership to those who professed the faith.

A state representative asked the AG whether the bill, as passed, would have violated either the U.S. or Tennessee Constitution. The opinion split the answer.

State universities: the AG concluded HB3576 was probably constitutional. State institutions are creatures of statute with no inherent rights of their own. The provisions paralleled the federal Equal Access Act (20 U.S.C. §§ 4071-4074), which the Second Circuit had upheld in Hsu v. Roslyn Union Free School District against Establishment and Equal Protection challenges. The AG read Hsu as supporting the constitutionality of a state law that requires public universities to recognize religious groups even when those groups limit leadership on religious grounds.

Private universities: the AG concluded the provisions were constitutionally suspect. By its terms, the bill applied to private institutions receiving more than $24 million annually in state-derived funds (with a carveout for religious schools described in 42 U.S.C. § 2000e-2(e)(2)). The bill said any such institution could adopt a no-religious-discrimination policy only if it also required every recognized organization, including Title IX-defined groups, to accept all student applicants and could not use subjective qualifications or numerical caps. The AG saw two constitutional problems with that.

First, the First Amendment expressive-association doctrine of Boy Scouts of America v. Dale and Roberts v. United States Jaycees protected private associations against forced inclusion of members whose presence would significantly affect the group's protected speech. A private university, the AG reasoned, is itself an expressive association with its own views on how to structure its student organizations, comparable to the law schools in Rumsfeld v. FAIR. Conditioning state funds on the institution's surrender of that associational right would run afoul of the unconstitutional conditions doctrine.

Second, the bill's narrow application, to a very limited number of private institutions receiving more than $24 million in state-derived funds, lacked any apparent rational basis under federal and state equal protection guarantees. Even on the deferential rational-basis test of Gallaher v. Elam and Romer v. Evans, the AG could not identify a legitimate justification for that classification. If the bill were construed to impair a fundamental associational right, strict scrutiny applied and the provisions would clearly fail.

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.

HB3576 was vetoed and never took effect. The legal landscape around religious student organizations and "all-comers" policies has continued to evolve, with state legislatures across the country enacting "religious student organization" statutes and several federal courts revisiting the CLS v. Martinez framework. Any current analysis of a similar Tennessee bill would need to account for post-2013 cases and any current Tennessee Code provisions on this subject.

Background and statutory framework

HB3576 had three operative pieces. Subsection (a) prohibited state institutions from discriminating against religious student organizations based on the content of their religious speech or on the group's exercise of its right to limit membership/leadership to those professing the faith. Subsection (b) framed that right: a religious organization could decide 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 or leaders." Subsection (c) defined the bill's reach to include not only Tennessee Board of Regents and University of Tennessee institutions but also private higher-education institutions receiving more than $24 million annually in state tax revenue. Subsection (d) then gave those private institutions a conditional escape hatch (they could adopt a non-recognition policy only if they also required every organization to accept all comers and use no subjective qualifications), with the bill's private-school provisions self-repealing on June 30, 2013.

For the state-college analysis, the touchstone was the federal Equal Access Act and Hsu v. Roslyn Union Free School District. In Hsu, a public school district refused to recognize a student-led Bible study club because the club's charter required certain officers to be Christian. The Second Circuit held that the EAA required recognition and that compelling such recognition did not violate the Establishment Clause or the Equal Protection Clause. The court reasoned that limiting officers to "dedicated Christians" was "calculated to make a certain type of speech possible," and that the First Amendment right of expressive association protected the group's decision to do so. The opinion also cited Widmar v. Vincent for the proposition that opening a forum to religious groups does not amount to an Establishment Clause violation.

For the private-college analysis, the AG drew on Boy Scouts of America v. Dale (forced inclusion of an unwanted member that "significantly affects" a group's expressive speech violates the First Amendment), Roberts v. United States Jaycees (right of expressive association), Rumsfeld v. FAIR (law schools as expressive associations), and the unconstitutional conditions cases (L.L. Nelson Enterprises, State v. Netland). The federal-court decision in Wiley Mission v. New Jersey applied the Dale framework to strike down a state law that would have required a faith-based nursing home to include a resident board member.

On equal protection, the AG referenced Gallaher v. Elam (rational basis test under Tennessee law), Riggs v. Burson, and Tennessee Small School Systems v. McWherter. The AG also flagged that Romer v. Evans permits striking down a classification under rational basis when no legitimate justification can be conceived, even though the test is deferential.

Common questions

Did HB3576 ever become law?

No. Governor Haslam vetoed the bill. The AG's opinion analyzed it as written, addressing whether it would have been constitutional if enacted.

What's an "all-comers" policy?

It's a university rule requiring every recognized student group to admit any student who wishes to join, with no membership criteria. The Supreme Court upheld Hastings Law School's all-comers policy in Christian Legal Society v. Martinez. HB3576 would have stopped Tennessee state institutions from adopting that kind of policy if it required a religious group to admit members who did not share its faith.

Why was the state-school part probably constitutional but the private-school part suspect?

State universities are governmental actors with no inherent constitutional rights of their own. They follow statutes the legislature gives them. Private universities have their own First Amendment associational rights and can challenge laws that interfere with them. The bill tried to reach private universities only indirectly, through their receipt of state funds. The AG read that as a textbook unconstitutional condition: the state cannot make receipt of funds conditional on giving up a constitutional right.

What's the unconstitutional conditions doctrine?

Roughly, it says government cannot do indirectly through conditional funding what it could not do directly through regulation. Rumsfeld v. FAIR and the cases cited in the opinion lay out the contours. Not every funding condition is unconstitutional, but conditions that pressure a private actor to surrender a constitutional right typically are.

Why was the equal protection problem narrow-but-real?

The bill only reached private institutions receiving more than $24 million in state tax revenue annually and even then exempted certain religious schools. The AG could not identify a legitimate justification for singling out just that group of private institutions. Equal protection requires that a legislative classification be "reasonably related to a legitimate state interest." A classification with no apparent purpose fails even the deferential rational-basis test.

Did the AG say the policy was a bad idea?

No, the opinion was about constitutionality, not wisdom. The AG took no position on whether HB3576 was sound policy; the analysis stayed within the constitutional doctrines courts would apply. State institutions could probably have been required to recognize the groups; private universities probably could not.

Citations

• 20 U.S.C. §§ 4071-4074 (federal Equal Access Act)
• 20 U.S.C. § 1681(a)(6)(A) (Title IX exception for certain organizations)
• 42 U.S.C. § 2000e-2(e)(2) (carveout for religious educational institutions)
• Tenn. Code Ann. §§ 49-8-101 to -1401 (Tennessee Board of Regents system)
• Tenn. Code Ann. §§ 49-9-101 to -1502 (University of Tennessee system)
• Christian Legal Soc'y v. Martinez, 561 U.S. 661 (2010) (upholding all-comers policy at public university)
• Hsu v. Roslyn Union Free School Dist., 85 F.3d 839 (2d Cir. 1996) (EAA constitutionality)
• Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) (forced inclusion as First Amendment violation)
• Roberts v. United States Jaycees, 468 U.S. 609 (1984) (expressive association)
• Rumsfeld v. FAIR, 547 U.S. 47 (2006) (law schools as expressive associations)
• Wiley Mission v. New Jersey, 2011 WL 3841437 (D.N.J. 2011) (board-composition statute violating expressive association)
• Widmar v. Vincent, 454 U.S. 263 (1981) (equal access for religious groups in public university forum)
• Gallaher v. Elam, 104 S.W.3d 455 (Tenn. 2003) (rational basis test under Tennessee Constitution)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2013/op13-005.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

January 11, 2013

Opinion No. 13-05

State Regulation of Student Organizations at Public and Private Colleges and Universities

QUESTION

Does House Bill 3576/Senate Bill 3597 of the 107th General Assembly, 2nd Sess. (2012) (hereinafter referred to as "HB3576") violate the United States or Tennessee Constitutions?

OPINION

As applied to state institutions of higher learning, HB3576 would likely be held facially constitutional. The federal Equal Access Act, codified at 20 U.S.C. §§ 4071-74, is similar to the provisions of HB3576 related to state institutions and has been upheld against constitutional challenge. As applied to private institutions, HB3576 is constitutionally suspect because its provisions impose a possible unconstitutional condition on the receipt of state funds and raise equal protection concerns.

ANALYSIS

This request seeks guidance on the constitutional validity of HB3576 as passed by the General Assembly and vetoed by Governor Bill Haslam. HB3576, as passed by the General Assembly, provides:

SECTION 1. Tennessee Code Annotated, Title 49, Chapter 7, Part 1, is amended by adding the following language as a new section: 49-7-150.

(a) No state higher education institution that grants recognition to any student organization shall discriminate against or deny recognition to a student organization, or deny to a student organization access to programs, funding, or facilities otherwise available to another student organization, on the basis of:

(1) The religious content of the organization's speech including, but not limited to, worship; or

(2) The organization's exercise of its rights pursuant to subsection (b).

(b) A religious student organization may determine 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 or leaders.

(c) As used in this section, "state higher education institution" means:

(1) Any higher education institution governed by chapter 8 or 9 of this title; or

(2) Any private higher education institution that receives payments from state funds derived directly from state tax revenues that annually total more than twenty-four million dollars ($24,000,000).

(d) Any private higher education institution that receives payments from state funds derived directly from state tax revenues that annually total more than twenty-four million dollars ($24,000,000) may adopt a policy that denies recognition to religious student organizations because they maintain leadership or membership criteria based on religious beliefs, but solely on the condition that:

(1) The institution requires every recognized student organization, including organizations described in 20 U.S.C. § 1681 (a)(6)(A) (also known as "Title IX"), to accept as members all students who apply to be members; and

(2) The institution does not allow any recognized student organization, including organizations described in 20 U.S.C. § 1681(a)(6)(A) (also known as "Title IX"), to set a numerical limit on membership or to use subjective qualifications for choosing its members.

(e) This section does not apply to any religious school, college, university, or other educational institution or institution of learning described in 42 U.S.C.§ 2000e-2(e)(2).

SECTION 2. Subdivision (c)(2) and subsections (d) and (e) of Section 1 of this act are repealed June 30, 2013.

SECTION 3. This act shall take effect July 1, 2012, the public welfare requiring it.

As applied to state institutions, HB3576 would be constitutionally defensible. HB3576 would effectively prohibit state institutions of higher learning from denying any privilege or benefit to a student organization on the basis of either (1) the organization's religious speech or (2) the organization's exercise of its right to determine 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 or leaders." See HB3576, § 1.

State institutions of higher learning are governmental agencies and possess only those powers expressly granted by statute and those powers required by necessary implication to enable them to fulfill their statutory mandate. State ex rel. Comm'r of Transp. v. Medicine Bird Black Bear White Eagle, 63 S.W.3d 734, 768-69 (Tenn. Ct. App. 2001). State institutions are creatures of statute, with no inherent power of their own, and thus are required to implement the provisions of HB3576 if they are enacted into law. See id. See also Tenn. Code Ann. 49-8-101 to -1401 (establishing Tennessee university and community college system); Tenn. Code Ann. §§ 49-9-101 to -1502 (establishing University of Tennessee system).

Accordingly the determinative question is whether the implementation of HB3576 by Tennessee institutions of higher learning implicates constitutional concerns. Based upon a review of current authorities, it appears likely that state institutions' enforcement of HB3576 would not raise constitutional concerns and specifically would not violate either the Establishment Clause or the Equal Protection Clause of the United States Constitution.

The federal Equal Access Act, codified at 20 U.S.C. §§ 4071-4074 (the "EAA"), currently requires public secondary schools that receive federal funding to recognize religious student organizations that discriminate on the basis of religious belief, even where that discrimination would otherwise violate the school's non-discrimination policy. The EAA provides in relevant part:

It shall be unlawful for any public secondary school which receives Federal financial assistance and which has a limited open forum to deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings.

20 U.S.C. § 4071(a).

This provision of the EAA has been sustained against claims that it is unconstitutional. The United States Court of Appeals for the Second Circuit interpreted the EAA as prohibiting public secondary schools from denying official student group recognition to religious groups that discriminate on the basis of religion in the selection of their officers. Hsu v. Roslyn Union Free School Dist., 85 F.3d 839, 848 (2d Cir.), cert. denied, 519 U.S. 1040 (1996). In Hsu, a school district refused to officially recognize a student-led bible study group because the group's charter required certain club officers to be Christians. Id. The Court held that the EAA required recognition of the bible study group, despite the group's religious belief discrimination. Id. The Second Circuit concluded that applying the EAA to require the school to extend official recognition to the bible study group was constitutional and rejected the school district's argument that recognition of the club would "draw the school into an establishment of religion or impair the school's efforts to prevent invidious discrimination." Id. The Court found that the club's limitation of its membership and officers to those who were admitted Christians did not per se violate the Establishment Clause or the Equal Protection Clause. The Second Circuit in so holding reasoned as follows:

Guaranteeing that these officers will be dedicated Christians assures that the Club's programs, in which any student is of course free to participate, will be imbued with certain qualities of commitment and spirituality. Thus, we conclude that the decision to allow only Christians to be President, Vice-President, or Music Coordinator is calculated to make a certain type of speech possible, and will affect the "religious . . . content of the speech at [the] meetings," within the meaning of the Equal Access Act.

. . . .

The right to free association for expressive purposes is implicit in the First Amendment free speech guarantee. See NAACP v. Alabama ex. rel. Patterson, 357 U.S. 449, 460-61, 78 S.Ct. 1163, 1170-71, 2 L.Ed.2d 1488 (1958); Abood v. Detroit Bd. of Educ., 431 U.S. 209, 233, 97 S.Ct. 1782, 1798, 52 L.Ed.2d 261 (1977).

. . . .

When the students' desire to hold a meeting covered by the Act involves a decision not to associate with other students, that decision, depending on its purpose, may constitute an exercise of the students' right of expressive association. On the one hand, an exclusion solely for reasons of hostility or cliquishness, with no direct bearing or effect on the group's speech, does not implicate the right to expressive association. But expressive association is implicated when the decision to exclude is made in order to foster the group's shared interest in particular speech. See William P. Marshall, Discrimination and the Right of Association, 81 Nw. U.L. Rev. 68, 78-80, 90-91 (1986). As the Court said in Roberts [v. United States Jaycees, 468 U.S. 609 (1984)], a regulation that prevents a group from excluding certain people "may impair the ability of the original members to express only those views that brought them together." 468 U.S. at 623, 104 S.Ct. at 3252 (emphasis added).

. . . .

Our holding is narrow. We do not hold that administrators must allow religious discrimination in the schools. Religious discrimination by student clubs will often be invidious and will rarely fall within our holding. However, when a sectarian religious club discriminates on the basis of religion for the purpose of assuring the sectarian religious character of its meetings, a school must allow it to do so unless that club's specific form of discrimination would be invidious (and would thereby violate the equal protection rights of other students), or would otherwise disrupt or impair the school's educational mission. Courts must be extremely reluctant to overrule the judgment of local school administrators who are responsible for making these sensitive decisions. But in this case, the only judgment Roslyn High School has made is that every instance of religious discrimination by a student group is invidious and disrupts the school's mission. Invidious discrimination entails more context-specific judgments.

Hsu, 85 F.3d at 858-59, 872-73 (emphasis in original).

The effect of the EAA as applied in Hsu is substantially similar to the apparent effect of HB3576 as applied to state institutions of higher learning. Under HB3576, such state institutions could not deny recognition or any privilege or benefit to an organization solely because it requires its members to commit to the religious mission of the organization. Accordingly, based on the reasoning in the Hsu case, HB3576 if enacted would be constitutionally defensible as applied to state institutions. But see Truth v. Kent School District, 542 F.3d 634, 645-48 (9th Cir. 2008), overruled on other grounds by Los Angeles County, Cal. v. Humphries, 562 U.S. 29, 131 S.Ct. 447 (2010) (quoting Hsu, 85 F.3d at 858 & n.17) (finding EAA did not preclude a school district from enacting a non-discrimination policy that refused to fund groups that excluded those who do not share Christian values from their general membership, noting Hsu and the EAA would not require "a religious test for membership or attendance" since "[i]t is difficult to understand how allowing non-Christians to attend the meetings and sing (or listen to) Christian prayers would change the Club's speech").

At least one commentator has suggested that the EAA and the reasoning in Hsu would allow a state legislature to pass an act like HB3576 that regulates student-group forums at public universities. As this commentator reasoned:

Thus, Congress or a state legislature could pass an act similar to the Equal Access Act that regulates student-group forums at public universities. The act could mandate equal access--including the use of university facilities, communications channels, and funding from the student activity fee--for student groups regardless of the groups' religious, political, or philosophical speech and associational activities.

Critical to the success of such an Act is the recognition that a student group's exercise of speech or expressive association does not bear the imprimatur of the university. The majority in Widmar [v. Vincent, 454 U.S. 263, 274], which provided the framework for the Equal Access Act, concluded that "an open forum in a public university does not confer any imprimatur of state approval on religious sects or practices." The Equal Access Act codified this concept by distinguishing between student-initiated speech and school-sponsored speech. Similarly, an equal access act for higher education could create a statutory open forum whenever a university opens a forum for student groups.

The act would need to be carefully drafted to protect both speech and expressive association rights. For example, the act could forbid a university from applying its nondiscrimination policy in a manner that interferes with a religious, political, or philosophical group's expressive association rights. The act could provide a policing provision recognizing a university's right and responsibility to maintain order and control. However, the act could require the application of strict scrutiny analysis to any restrictions imposed on access to a student-group forum.

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, 196-97 (Summer 2011) (footnotes omitted).

The question of HB3576's constitutionality as applied to private institutions of higher learning raises different issues. Unlike public institutions, which are creatures of statute whose powers must be exercised in conformity with statute, private institutions of higher learning possess standing to challenge laws that infringe on their constitutional rights. See NAACP v. Button, 371 U.S. 415, 428-29 (1963). By its terms, HB3576 applies to "any private higher education institutional that receives payments from state funds derived directly from state tax revenues that annually total more than twenty-four million dollars." HB3576, § 1(c)(2). Any impacted private institution is required to comply with certain conditions if the institution adopts a policy that "denies recognition to religious student organizations because they maintain leadership or membership criteria based on religious beliefs." HB3576, § 1(d) & (e). HB3576 thus seeks to impact how certain private institutions of higher learning structure their institution-supported student associations and to influence the admission criteria of these student associations. Id.

These provisions are constitutionally problematic for two reasons. First, they utilize the receipt of state funds to impose an arguably unconstitutional condition on the receipt of such funds. Second, the lack of a rational basis for applying this provision to a very limited number of private institutions raises equal protection concerns.

HB3576 apparently conditions the receipt of state funds upon a private educational institution structuring its supported student associations in compliance with HB3576. If HB3576 had directly required a private educational institution to so structure its supported student associations, such legislative action would be constitutionally suspect as an impermissible legislative intrusion upon a private institution's implicit right under the First Amendment to the United States Constitution to freely associate with others in "a wide variety of political, social, economic, education, religious and cultural ends." Boy Scouts of America v. Dale, 530 U.S. 640, 647 (2000) (quoting Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984)). See also Knox v. Service Employees Intern. Union, Local 1000, 567 U.S. 298, 132 S.Ct. 2277, 2288-89 (2012).

The right to associate freely presupposes the right to refuse to associate. Boy Scouts of America v. Dale, 530 U.S. at 648 (citing Roberts, 468 U.S. at 623). In Boy Scouts, the United States Supreme Court held that a New Jersey public accommodation law requiring a private organization to accept into its membership a person whose homosexual advocacy was in opposition to the group's message violated the First Amendment freedom of association. Id. at 644. The Court expressed its concern that forcing the inclusion of a person whose presence would alter the expressive activity of a group would "interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one." Id. at 661. As the Court explained, "public or judicial disapproval of a tenet of an organization's expression does not justify a state's effort to compel the organization to accept members, where such acceptance would derogate from the organization's expressive message." Id.

Similiarly, the United States District Court for the District of New Jersey held a statute that required all nursing home facilities in the state to include a resident of the facility on the board of directors was unconstitutional as applied to a nursing home owned and operated by a church. Wiley Mission v. New Jersey, Civil No. 10-3024 (RBK/JS), 2011 WL 3841437, at *13-16 (D.N.J. 2011). The Wiley Mission court agreed with the church that forcing it to accept a board member who may not share the church's religious beliefs would significantly affect the church's protected speech and violate its First Amendment freedom of expressive association. Id. To reach this conclusion, the court applied a three-step analysis based on the Boy Scouts decision, determining (1) whether the entity challenging the statute is an expressive association, (2) whether the "forced inclusion of the unwanted person in the group would 'significantly affect' the group's ability to engage in protected speech," and (3) whether the challenged statute is narrowly tailored to advance a compelling state interest in the least restrictive manner possible.

A court, in applying the Boy Scouts/Wiley Mission analysis, would likely find that a private educational institution constituted an expressive association engaged in protective speech. See Rumsfeld, 547 U.S. at 61-70 (concluding law schools had a right of expressive association). The next step would be to determine whether curtailing the ability of certain private educational institutions to control the formation of student associations supported by the institution, including the prohibition of an "all comers" policy, would "significantly affect" that institution's expressive activities. If so, then a court would next consider whether such legislation is narrowly tailored to advance a compelling state interest in the least restrictive manner possible.

It is probable that such an analysis would conclude that a state legislative action attempting to control how a private institution regulates its student associations would run afoul of the institution's First Amendment protections. A private university, in establishing the criteria governing student associations supported by the university, is expressing its own views on the appropriate composition of bodies that exist under the university's umbrella. Just as the United States Supreme Court concluded the First Amendment right of expressive association precluded the State of New Jersey from enacting a law to compel the Boy Scouts of America to accept an unwanted person in its organization, similiarly a state legislature could not restrict a private university from expressing its view through university policy on how its financially supported student organizations must structure their membership requirements. See Boy Scouts of America v. Dale, 530 U.S. at 653-661.

HB3576 does not cure this probable constitutional deficiency by limiting its provisions on student associations to apply only to private institutions that receive annually a certain amount of state funds. It is well established under the "doctrine of unconstitutional conditions" that a state may not condition the receipt of state funds upon a private party's surrender of a constitutional right. 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); State v. Netland, 762 N.W.2d 202, 211-12 (Minn. 2009). HB3576 arguably runs afoul of the unconstitutional conditions doctrine by prefacing the receipt of state funds with the requirement that a private educational institution must structure its student associations in compliance with HB3576. But see Rumsfeld, 547 U.S. at 65 (federal law denying federal funding to law schools that prohibited military recruiters from access to the campus did not violate the First Amendment freedom of expressive association because the law schools retained the ability to speak out against military policy; HB3576 would not appear to fall within this exception).

HB3576 is also constitutionally suspect under the Equal Protection Clauses of the United States and Tennessee Constitutions. Both of these clauses guarantee that "all persons who are similarly situated will be treated alike by the government and by the law." Consolidated Waste Systems, LLC v. Metro Government of Nashville and Davidson County, No. M2002-02582-COA-R3-CV, 2005 WL 1541860 at *7 (Tenn. Ct. App. June 30, 2005) (citing Riggs v. Burson, 941 S.W.2d 44, 52 (Tenn. 1997), cert denied, 522 U.S. 982 (1997); Tennessee Small School Systems v. McWherter, 851 S.W.2d at 152. While these clauses do not prohibit governmental classifications of citizens (including private institutions), any such classification must have "a reasonable relationship to a legitimate state interest." Gallaher v. Elam, 104 S.W.3d 455, 461 (Tenn. 2003). If the classification does not interfere with the exercise of a fundamental right or operate to the disadvantage of a suspect class, then there must only exist a rational basis for the classification. Romer v. Evans, 517 U.S. 620, 631 (1995); Gallaher, 104 S.W.3d at 461. Under the rational basis test, a classification will be upheld "'if any state of facts may reasonably be conceived to justify it.'" Gallaher, 104 S.W.3d at 462 (quoting Riggs v. Burson, 941 S.W.2d at 53)) (emphasis added). Where the classifaction impaires a fundamental right or subject class, it must be struck down unless it survives "strict scrutiny" by advancing a compelling governmental interest and being narrowly drawn. See, e.g., Regan v. Taxation With Representation of Washington, 461 U.S. 540, 547 (1983); Gallaher, 104 S.W.3d at 460-61.

Even considering the wide latitude given the General Assembly in establishing classifications, it is difficult to conceive any rational or reasonable basis for the classification created by HB3576. The classification only includes private higher education institutions that receive "payments from state funds derived directly from state tax revenues that annually total more than twenty-four million dollars," HB3576, § 1(c)(2), and then even excludes from this narrow class "any religious school, college, university, or other educational institution or institution of learning described in 42 U.S.C. § 2000e-2 (e)(2)." HB3576, § 2. The creation of such a narrowly drawn classification impacting a relatively few private institutions appears to lack any arguable rational basis and thus would be constitutionally suspect under an equal protection analysis. To the extent HB3576 is construed to impair the fundamental right of free association, it clearly would not survive a strict scrutiny analysis.

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
Suite 203, War Memorial Building
Nashville, TN 37243