“The idea that the government needs to police the church also assumes the goodness of government. With the IRS as the government agency overseeing church and pastor speech, that assumption is—frankly—laughable. We need only look at the many scandals the IRS has been involved in the past few years to see that it can’t be trusted.” (Christiana Holcomb)
The concerns about religious liberties among Christian college administrators is as real today as it was for those of the Danbury Baptist Association in 1801. In fact, over 80% of Christian college administrators surveyed by the Association of Business Administrators of Christian Colleges (ABACC) in both 2016 and again in 2019, had concerns not just about free expression of religious liberty on their campuses, but that infringement upon those liberties could actually lead to loss of their largest revenue source, Federal student aid.[1] In this article, we will examine the role and power of the “State” in today’s Christian colleges.
Government in Religion – Then and Today
In his 1802 letter to the Danbury Baptists, President Thomas Jefferson responded to a request to weigh in on the topic of religious liberties. Having just revolted from King George III and his Church of England, early Americans were weary of their new government, especially as it might impact their exercise of religion. In that letter he explained his beliefs about the meaning of the 1st Amendment’s Establishment Clause and in the excerpt below, famously created the separation of church and state concept:
I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church & State.[2]
Fast forward 218 years, and you will see that the concerns at the heart of the Establishment Clause were well founded. Today, the government has once again intruded into religion via the overwhelming growth of the administrative state in Washington, D.C. and state capitals around the U.S. In the last 60 years, faith-based colleges have become the subjects of administrative law via agencies like the U.S. Department of Education (“ED”) and the IRS. Sadly, this “fourth branch” of government and its ever-growing bureaucratic power often finds itself operating outside of the bands of the three branches as intended by the Founding Fathers. Therefore, religious institutions today, just like those in the Danbury era, should be deeply concerned about the power these agencies yield over them. Through various rulings (commonly knowns as Chevron, Auer and Skidmore deference) the courts have given federal agencies extremely broad powers to create, interpret, and apply regulations under their jurisdiction.
Two very distinct examples of how administrative law overreach has found its way into Christian Higher Ed are the following: 1) colleges and universities submitting themselves to massive government entanglement via participation in the Higher Education Act, particularly through Title IV funding and 2) institutions being subject to IRS authority (including the Johnson Amendment) through their dependency on their 501(c)(3) nonprofit statuses.
A well-known battle has been waging for decades between faith-based colleges and ED. From the inception of the 1965 Higher Education Act, and the expansion of its Title IV loan and grant programs in the 1970s, colleges such as Hillsdale and Grove City battled the U.S. Department of Education over religious liberties. Ultimately, in Grove City Coll. v. Bell, 465 U.S. 555 (1984) the Supreme Court ruled in favor of ED,[3] leading both colleges to eventually withdraw from the Federal Aid programs, driven by concerns about a collision between their core missions and the power and entanglements that come with federal funding. Sadly, the number of institutions that followed in their footsteps, can be counted on one hand. Today almost all faith-based colleges and universities (with the exception of some seminaries) find themselves under the control and influence of ED. Institutions under the oversight of a federal agency such as ED should always be very concerned that new regulations or interpretations of existing regulations will change the status quo almost overnight—especially when power shifts via changes in administrations and appointees leading these agencies. Of even greater concern is the fact that these agencies have much fewer procedural limitations and can issue interpretive rulings or guidance letters but without the constraints of the legislative or rulemaking processes.
As a result, the Executive branch can exercise the powers of the other two branches in an almost unfettered way. Beyond this structural empowerment is the practical fact that most institutions adversely affected by such executive muscle flexing have neither the money nor the years required to fight back. This is a terrifying prospect regardless of one’s political position because the party in power can impose its viewpoint with the force of law, as they desire, without immediate accountability, if a reckoning comes at all. For religious-affiliated institutions, these risks can be even greater when legal and social objectives conflict with traditional beliefs, as can be seen by the current Montana case in front of the Supreme Court regarding tax credits to fund “school-choice” scholarships, or as was seen in an ED/DOJ action in 2016, which stated that “The Departments treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations,” as opposed to birth sex, which had previously been used throughout history.
A similar but lesser-known struggle has been occurring with the IRS since 1954 when Congress passed what is commonly known as The Johnson Amendment, which is a speech restriction in the tax code that prohibits all nonprofits—including faith-based colleges—from “participating” or “intervening” in elections. For decades the Johnson Amendment has had a chilling effect on religious leaders’ ability to comfortably exercise their First Amendment rights of both speech and religious liberty for fear of government retaliation.
In a December 12, 2017 blog post, Christiana Holcomb, a lawyer for Alliance Defending Freedom, discussed how real these issues are for faith-based nonprofits, which includes almost all churches and private Christian colleges. Ms. Holcomb frames this issue well by saying, “The idea that the government needs to police the church also assumes the goodness of government. With the IRS as the government agency overseeing church and pastor speech, that assumption is—frankly—laughable. We need only look at the many scandals the IRS has been involved in the past few years to see that it can’t be trusted.”[4]
As it was over 200 years ago, the fate of religious freedoms in this country are at a critical juncture and we need all voices to be at liberty to speak freely for what they believe. Unfortunately, the culture of today has transformed many biblical issues into “political” issues and as a result, many religious leaders are afraid to speak openly and put their organization in the cross hairs of the IRS.
Conclusion
Having looked at separation of church and state, both in its original context and in light of the religious liberty risks of today, the question I have to ask is this: Is it in the best interest of Christian colleges to continue to subject themselves to the power of the “State”? Or is it time to pursue another path—a path of freedom allowing institutions to better society, students, and themselves through the free exercise of religion?
I personally think with trials come opportunities. As we look to 2020 and beyond, I would hate to see faith-based colleges on the wrong side of the inevitable ideologically driven collision between strict adherence to religious standards and participation in “State” programs, such as via student funding. Throughout most of U.S. and human history, the majority of churches, hospitals, and educational institutions were founded by religious organizations and supported by followers who shared in their ideological beliefs. It is time that we follow in the Founding Fathers’ footsteps and once again free these organizations from government control.
As I look at the Higher Ed landscape, it’s becoming increasingly obvious that we are engaged in a critical battle for the minds of the next generation. Sadly, many secular colleges have become intolerant to the idea of civil discourse and the value of varying perspectives, especially as it relates to religious beliefs. As a result, they have all but banded religious ideologies from intruding inside their walls. I would love to see faith-based colleges and universities increase their presence during the coming era, in order to offer Americans more alternatives for their family’s education. I also would love to see these institutions pursue diversification in their funding models and eventually free themselves from government intrusion and control. I am currently committed to building the infrastructure need for this transition. Are you ready to join us in this fight?
[1] 2016 Association of Business Administrators of Christian Colleges (ABACC) “Independence From Federal Funding Survey” and “ABACC 2019 – The Future of Financial Aid Perception Survey”
[2] https://www.loc.gov/loc/lcib/9806/danpre.htm
[3] http://cdn.loc.gov/service/ll/usrep/usrep465/usrep465555/usrep465555.pdf .
[4] https://www.adflegal.org/detailspages/blog-details/allianceedge/2017/12/12/can-churches-police-themselves-johnson-amendment-advocates-think-not.
