University Accommodation of Non-majority Religions: Legitimate Protection of Students' Right to Practice or Unconstitutional Governmental Endorsement?

Journal of Law and Education, Apr 2008 by Graves, Kevin

I. INTRODUCTION

Universities nationwide are taking steps to accommodate the increasingly diverse religious practices of their student populations. Recently, the University of Michigan-Dearborn announced plans to spend twentyfive thousand dollars ($25,000) on the installation of footbaths in its educational buildings. The footbaths will accommodate the university's Muslim students, whose religious beliefs require that they wash their feet before prayer.1 Critics of the footbaths claim that this seemingly innocuous action violates the First Amendment's prohibition against state endorsement of religion.

This note will explore the constitutionality of the University of Michigan-Dearborn's decision to accommodate Muslim students by installing footbaths. Additionally, this note will assist school officials in choosing ways to accommodate the progressively diverse religious beliefs of their student bodies without violating the Constitution.

II. EXPLANATION AND ANALYSIS

A. The First Amendment

The First Amendment contains two conflicting clauses which govern the delicate relationship between the state and religion. The Establishment Clause provides, "Congress shall make no law respecting an establishment of religion ... ."2 On the other hand, the Free Exercise Clause states, "Congress shall make no law ... prohibiting the free exercise thereof."3 In other words, while state actors cannot act in a way that endorses a religion, they must be careful not to infringe upon the right of individuals to freely practice their chosen religion. State actors, such as school officials, must balance the contradictory clauses when taking action related to religion or religious practices.

The Supreme Court has used various tests to determine whether a government action amounts to an endorsement of religion, thus violating the Establishment Clause. In Lemon v. Kurtzman,* the Court introduced a three-part test to determine whether a state action related to religion is permissible under the Establishment Clause. First, the state action must have a secular purpose. Second, its principal or primary effect must be one that neither advances nor inhibits religion. Finally, the state action must not foster an excessive government entanglement with religion.5 If any one of these three elements is not met, the state action will be deemed unconstitutional under the Establishment Clause. In a later case, Lynch v. Donnelly,6 the Supreme Court proposed the Endorsement Test, which elaborated that "a government action is invalid if it creates a perception in the mind of a reasonable observer that the government is either endorsing or disapproving of religion." Some courts apply the Lemon Test alone, but occasionally the Endorsement Test is subsumed into the Lemon Test. For example, in Americans United for Separation of Church and State v. City of Grand Rapids,1 the federal court employed the Lemon Test, but used the Endorsement Test to determine fulfillment of the second element of the Lemon Test.

The Supreme Court's application of the Establishment Clause has been inconsistent and confusing. However, one basic inquiry lies at the heart of the various tests and interpretations of the Establishment Clause: does the state action endorse religion or does it have a secular purpose? State actors may accommodate religions when the steps taken to do so are secular, but they may not engage in or pay for conduct that is inherently religious.8

B. The Constitutionality of the University of Michigan- Dearborn's Decision

While university students have the right to exercise their religion, state-sponsored universities may not create the appearance of endorsing any given religious belief. The University of Michigan-Dearborn may employ resources to accommodate activities that can be construed as religious by believers, so long as the general public may also participate in those activities in a manner they perceive to be secular. While some claim that the installation of footbaths in a university's bathrooms amounts to an unconstitutional endorsement of the Islamic religion, others counter that it merely serves to accommodate and facilitate the free practice of the Muslim faith by Muslim students. Application of a combination of the Lemon and Endorsement Tests indicates that the installation of footbaths to accommodate Muslim students at the University of Michigan-Dearborn does not constitute an endorsement of religion. Thus, the accommodation is not unconstitutional.9

Under the first element of the Lemon Test, the state action must have a secular purpose, and the University of Michigan-Dearborn's footbaths have such a purpose. The university conceptualized the idea of the footbaths as a remedy to the problems caused by Muslim students' washing their feet in bathroom sinks prior to prayer. Water was accumulating on

the bathroom floors, and the sinks were being pulled away from the walls. Thus, the footbaths serve a health and safety function at the school by reducing the risk of slipping and falling in excess water on bathroom floors. Clearly, the action of installing the footbaths has the legitimate, secular purpose of providing a healthy, safe environment for the university's students.