Can Tennessee force private colleges to recognize religious student groups that limit their leaders to coreligionists?

Subject

Opinion No. 14-41, Recognition of Student Religious Groups by Post-secondary Educational Institutions, March 31, 2014

Plain-English summary

Senator Doug Overbey asked whether Senate Bill 2294 (108th General Assembly) was constitutional. The bill would have amended the Tennessee Human Rights Act to add a new § 4-21-1101 forbidding any post-secondary educational institution from denying recognition, programs, funding, facilities, or scheduling to a student organization based on the religious content of the group's speech or its decisions about who could lead it. Violations would be a discriminatory practice subject to the remedies in Tenn. Code Ann. § 4-21-301 to -312.

The AG concluded SB2294 was constitutionally suspect under the First Amendment as applied to private institutions. The bill would directly require a private college that had adopted an "all-comers" policy (a rule requiring recognized student groups to accept any student who wants to join or lead) to recognize and support groups that flout that policy. That kind of state-imposed override conflicts with the implicit First Amendment right of a private institution to associate freely and to set its own associational rules, recognized in Boy Scouts of America v. Dale, 530 U.S. 640 (2000).

The AG had previously addressed two earlier bills in Op. 13-05 and Op. 13-20. Those bills only conditioned state funding or state-granted police powers on compliance with the recognition requirement. The AG had said even those indirect approaches were constitutionally suspect because they used state benefits to impose an arguably unconstitutional condition on private colleges. SB2294 went further by imposing the requirement directly.

SB2294 differed from the earlier bills in one respect: the earlier bills let religious student groups choose both members and leaders based on faith adherence, while SB2294 limited that protection to leaders only. The AG concluded the change did not save the bill. Quoting Hsu v. Roslyn Union Free School District, 85 F.3d 839 (2d Cir. 1996), and the U.S. Supreme Court's Christian Legal Society v. Martinez decision, the AG noted that a private institution's associational interest in equal student participation extends to both membership and leadership opportunities.

Currency note

This opinion was issued in 2014. 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.

Common questions

What is an "all-comers" policy?

It is a campus rule requiring officially recognized student organizations to allow any student to participate, become a member, or seek leadership. The U.S. Supreme Court upheld a public school's all-comers policy in Christian Legal Society v. Martinez (2010).

Why did the AG see SB2294 as a First Amendment problem?

Because it would force a private college to recognize student organizations that contradict the college's own associational choices. Private institutions have a First Amendment-protected right to associate, and to define the conditions of who they support and how. State legislation that dictates whom a private college must recognize as a campus group treads on that right.

Did the AG say the bill was unconstitutional as applied to public universities?

No. The opinion focuses on private institutions. Op. 13-05 and Op. 13-20 (the predecessor opinions referenced here) had concluded that similar legislation was facially constitutional as applied to public institutions of higher education. The associational analysis differs for state actors.

Did SB2294 become law?

This opinion addresses constitutionality of a then-pending bill in the 108th General Assembly. Anyone researching the outcome should consult the Tennessee General Assembly's legislative history records.

What about religious student groups at private religious colleges?

The bill defined "post-secondary educational institution" by reference to Tenn. Code Ann. § 49-7-2003 (essentially, any school offering post-secondary instruction). Religious institutions are typically also private institutions, and the AG's First Amendment analysis would apply with at least as much force to them, given their additional Free Exercise interests.

Background and statutory framework

The Tennessee Human Rights Act (Tenn. Code Ann. § 4-21-101 et seq.) prohibits various forms of discrimination and provides remedies under § 4-21-301 to -312. SB2294 would have added § 4-21-1101 to bring student-organization recognition decisions by post-secondary institutions within that enforcement framework, treating denial of recognition on religious grounds as a discriminatory practice.

The AG's prior opinions on similar bills (13-05 from January 2013, 13-20 from March 2013) established the analytical baseline: at private institutions, the state could not condition funding or police powers on overriding a college's associational choices about student-group recognition. SB2294 dropped the conditional framing and reached private institutions directly, which strengthened rather than weakened the constitutional objection.

Citations

• Tenn. Code Ann. § 49-7-2003 (defining "post-secondary educational institution")
• Tenn. Code Ann. § 4-21-301 to -312 (Tennessee Human Rights Act remedies)
• Boy Scouts of Am. v. Dale, 530 U.S. 640, 647 (2000) (U.S. Supreme Court; private associational right under First Amendment)
• Hsu v. Roslyn Union Free School Dist., 85 F.3d 839 (2d Cir. 1996) (Second Circuit; religious leadership restriction in public school context)
• Christian Legal Soc'y v. Martinez, 130 S.Ct. 2971 (2010) (U.S. Supreme Court; all-comers policy at public law school)
• Tenn. Att'y Gen. Op. 13-05 (Jan. 11, 2013) (predecessor bill analysis)
• Tenn. Att'y Gen. Op. 13-20 (Mar. 13, 2013) (predecessor bill analysis)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2014/op14-041.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
March 31, 2014
Opinion No. 14-41
Recognition of Student Religious Groups by Post-secondary Educational Institutions

QUESTION

Does Senate Bill 2294/House Bill 2032 of the 108th General Assembly (2014) (hereinafter "SB2294") violate the United States or Tennessee Constitutions?

OPINION

SB2294 is constitutionally suspect under the First Amendment to the United States Constitution as applied to private institutions of higher education.

ANALYSIS

SB2294 would amend the Tennessee Human Rights Act by adding a new § 4-21-1101, which would prohibit any post-secondary educational institution[1] from denying recognition or access to programs, funding, facilities, or scheduling of activities to a student organization on the basis of the religious content of the organization's speech or the exercise of the organization's rights with respect to choosing its leaders. SB2294, § 1 (new § 4-21-1101(a), (b)). Violation of this provision would be a discriminatory practice subject to the remedies available under Tenn. Code Ann. § 4-21-301 to -312. SB2294, § 1 (new § 4-21-1101(c)).

SB2294 is substantially similar to the bills considered in Tenn. Att'y Gen. Op. 13-05 (Jan. 11, 2013) and Tenn. Att'y Gen. Op. 13-20 (Mar. 13, 2013). In Op. 13-05, this Office addressed the constitutionality of a bill[2] that would have worked to prohibit any private institution of higher education receiving substantial state funding from discriminating against a student organization on the basis of religion. Specifically, the bill prohibited such institutions from denying recognition or otherwise available access to programs, funding, or facilities to a student organization on the basis of the religious content of the organization's speech or the exercise of the organization's rights with respect to choosing its members or leaders. In effect, the bill precluded an educational institution from adopting or enforcing an all-comers policy, a policy that requires supported student organizations to accept all students who wish to join. See id. at 3 n.2.

This Office concluded that application of the bill to private institutions was constitutionally suspect because it utilized state funds to impose an arguably unconstitutional condition on the receipt of such funds.

If [the bill] 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."

Op. 13-05, at 7 (quoting Boy Scouts of Am. v. Dale, 530 U.S. 640, 647 (2000)). See also Tenn. Att'y Gen. Op. 13-20 (Mar. 13, 2013) (likewise finding constitutionally suspect a bill that would make a private educational institution's compliance with the same student-organization requirements a condition of its exercise of police powers).[3]

SB2294 does directly what the bills addressed in Op. 13-05 and Op. 13-20 did only indirectly: require a private higher-education institution that has instituted an all-comers policy to recognize and support student organizations that do not adhere to that policy. Accordingly, for the reasons expressed in those prior opinions, SB2294, too, is constitutionally suspect. "It is probable 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 protection." Op. 13-05, at 8.

SB2294 differs from the two prior bills in one respect. The earlier legislation provided that a religious student organization would be free to determine that only persons professing, and comporting themselves in conformity with, the faith of the group qualify to serve as either members or leaders. See Op. 13-20, at 2; Op. 13-05, at 2. SB2294 provides that a religious organization may make such a determination, but only with respect to persons who qualify to serve as leaders. SB2294, § 1 (new § 4-21-1101(b)).

But even with this change, the bill remains constitutionally suspect. In Hsu v. Roslyn Union Free School Dist., 85 F.3d 839 (2d Cir. 1996), the Second Circuit focused on a student organization's decision to allow only Christians to be its officers in holding that a local school district could be constitutionally required to recognize the student organization. 85 F.3d at 858-59. The court determined that this decision of the organization was calculated to and would affect the religious content of the speech at its meetings. But Hsu involved a public, not a private, school. And the associational interest of a private educational institution in making clear that all students will have the chance to participate equally no doubt extends to both membership and leadership opportunities in school-supported student groups. See Christian Legal Soc'y Chapter of the Univ. of Calif., Hastings Coll. of the Law v. Martinez, 130 S.Ct. 2971, 2979 & n.2 (2010) (noting school's view of its all-comers policy as requiring school-approved groups to "allow any student to participate, become a member, or seek leadership positions in the organization") (emphasis added).

ROBERT E. COOPER, JR.
Attorney General and Reporter

JOSEPH F. WHALEN
Acting Solicitor General

WILLIAM J. MARETT, JR.
Senior Counsel

Requested by:
The Honorable Doug Overbey
State Senator
306 War Memorial Building
Nashville, Tennessee 37243

[1] The bill defines "post-secondary educational institution" as in Tenn. Code Ann. § 49-7-2003, i.e., generally stated, a school, college, or university offering educational credentials, instruction, or services to persons who have completed secondary education.

[2] Op. 13-05 involved House Bill 3576/Senate Bill 3597 of the 107th General Assembly (2012).

[3] Op. 13-20 involved House Bill 1150/Senate Bill 1241 of the 108th General Assembly (2013). Both Op. 13-20 and Op. 13-05 concluded that the legislation was facially constitutional as applied to public institutions of higher education.