When is a private religious college a “public accommodation,” and therefore subject to state anti-discrimination laws requiring access? According to a Pennsylvania ruling this year, religious nonprofits should not presume upon any categorical deference by the government in answering this question, based merely on the organizations’ self-identified religious affiliation. Instead, they should be prepared to demonstrate both how their religious identity removes them from public accommodation status and how such religious identity relates to their actions at issue. Religious schools and other nonprofits thus need not panic based on this adverse public accommodation ruling, but they should definitely take note and check their own readiness for such challenges.
From Student Expulsion to Public Accommodation Discrimination Claim
The case of Chestnut Hill College v. Pennsylvania Human Relations Commission (2017, PA Comm. Ct.) arose after an African-American student was accused of theft and forgery in connection with a charity fundraiser. Chestnut Hill College investigated the matter and found the student guilty, then ordered him to pay $2,248 in restitution. The College expelled him a few weeks before his scheduled graduation, even though he had no prior disciplinary infractions.
In response to his expulsion, the student filed a complaint with the Pennsylvania Human Relations Commission, claiming violation of Pennsylvania public accommodation laws prohibiting discrimination and mandating access to education. The Commission evaluated the College’s disciplinary history and determined that the College had disproportionately punished African-American students more severely than other students. As a result, the Commission found “probable cause” to credit the racial discrimination claims and therefore to continue the case.
The College challenged the Commission’s decision, arguing that its religious nature barred the student’s claim – regardless of the underlying facts. The College is an independent, non-profit educational institution affiliated with the Catholic Church, founded by a religious order. Catholics serve on the College’s Board of Directors, the College’s students are acquainted with Catholicism, and the College holds Catholic services open to all students. However, students are not required to attend religious classes or services.
What Does the Law Say About a College Student’s Legal Rights?
The college student’s anti-discrimination claim was grounded in Pennsylvania’s public accommodation law. As a legal term, “public accommodation” is generally used in connection with mandatory access to goods or services made available to the general public, such as hotels, restaurants, lunch counters, retail facilities, movie theaters, and parks. A store owner thus may not refuse access to a person in a protected classification, based on the store’s public accommodation status. Historically, churches have not been viewed as “public accommodations,” and religious schools are often exempted under state and local public accommodation laws based on religious liberty protections.
Pennsylvania law provides that a public accommodation is one that “is open to, accepts or solicits the patronage of the general public.” The term “public accommodation” specifically includes colleges and universities, but it excludes “any accommodations which are in their nature distinctly private.”
The College thus asserted that due to its religious affiliation, it was distinctly private and by definition not a public accommodation, thereby removing it from the Commission’s jurisdiction as a matter of law. The College further argued that a contrary result would violate the First Amendment, through excessive judicial entanglement in religious matters. Such legal principles thus barred the student’s claim as a procedural matter, regardless of the underlying substantive issues regarding discrimination. In so arguing, the College gave little attention either to the extent of its religious nature or how its religious doctrine related to its expulsion decision. Instead it relied on a ruling involving parochial Catholic high schools, which were recognized as distinctly private and therefore not public accommodations subject to Pennsylvania anti-discrimination law.
Why Did the College Lose?
The Pennsylvania court resoundingly rejected the College’s arguments, concluding instead that public accommodation status could exist for the College under applicable Pennsylvania law and no constitutional violations would result from such judicial finding.
First, the Court distinguished the College from the case involving parochial Catholic high schools. Unlike the College, the high schools required their students to take religion classes and to attend religious worship services. The Court further recognized that high school students are younger than college students, and therefore are more likely impressionable in terms of inculcation of Catholic religious values. The high school case thus did not require the Court’s deference in the College’s case, particularly since the public accommodation statute expressly provides for applicability to colleges and universities – unless they are “distinctly private.”
The Court thus concluded that the College’s religious affiliation, in and of itself, was insufficient to make the College a distinctly private institution, as opposed to a public accommodation. Notably, however, the Court allowed that its adverse ruling “do[es] not foreclose the possibility that the College may demonstrate its distinctly private nature during the proceedings before the Commission, based on a factual, as opposed to a purely legal, determination.” Thus, the College could still demonstrate that it is not a public accommodation on the particulars of its own situation, but it had not yet provided any such facts.
Second, the Court rejected the College’s argument that its constitutional religious liberty protections preclude judicial scrutiny of its adverse actions. On the contrary, while Courts are required to defer to religious organizations in ecclesiastical and other doctrinal matters, no such issues were present here. The College did not decide to expel the student because of Catholic religious doctrine or any ecclesiastical decision (e.g., evidence of the student’s repentance, whether mercy was warranted or not). Rather, it found him guilty of theft and forgery. Accordingly, the Commission and the Court could evaluate whether such decision was based on racial animus (and therefore discriminatory in violation of the law) or was legitimate, using solely neutral principles of law.
The Court further found that the College failed to identify any actual or imminent constitutional infringement on its rights. “[A]s a threshold matter, a religious institution must make a showing that the application of the challenged law substantially burdens its First Amendment rights,” but “the College offers mere speculation that adjudication of Student’s racial discrimination claim will result in unconstitutional entanglement,” and “does not explain how Student’s expulsion implicates Catholic doctrine or how review of expulsion decisions requires review of ecclesiastical matters.” In short: no apparent religious entanglement, so no mandatory judicial deference to the College’s decision.
What Could the College Have Done Better?
Plenty. The College never sought to prove a strong religious identity, any connection between its religious nature and the expulsion, or even the fairness of its expulsion decision. Instead it appears as though the College consciously chose in every way to not provide any evidence that its decisions were ecclesiastical, implicated Catholic doctrine, or were justified. The College is not a sympathetic party in any light. The College asserted that because of its self-identification as a religious institution, all investigation into any of its practices were categorically foreclosed as a matter of law, and not subject to government interference as a matter of principle, regardless of the actual merits of the student’s claims. The Court obviously disagreed, and permitted the investigation to proceed.
Religious Liberty Implications
From a religious freedom perspective, the Court’s ruling could be interpreted to mean that religious institutions must overcome a default obligation to comply with state and federal regulations concerning invidious discrimination, where the state can decide what counts as discrimination and what counts as legitimate religious purpose. If the State can decide those questions, then it has the ultimate power to reconstitute religious doctrine, practice, and governance. And in many other circumstances that is a real danger.
But here the College did nothing to demonstrate that it is an actual religious institution beyond asserting a vague affiliation with the Catholic Church. If the Court accepted the College’s argument that it should not need to prove its self-stated religious nature, then no institution which self-identified as a religious organization would be subject to government regulation. To the extent this case might have protected the autonomy of religious institutions generally, the College thus may have done more harm than good.
The catalyst for the case was alleged racial discrimination. The record is not clear as to exactly how the Commission found probable cause that the College was engaging in racially disproportionate disciplinary activity. But by pitting the College’s claims of religious autonomy premised wholly on a non-statutorily excepted categorical status, without providing evidence or argument asserting undue burden on religious belief or practice, against allegations of invidious racial discrimination which was supported by some amount of investigation, the College may not have chosen its battle wisely.
The tension between religious and state authority was most clearly articulated in the U.S. Supreme Court case of Employment Division v. Smith, which ultimately held that illegal conduct performed for religious purposes may still be regulated by the State if such regulation was not intended to promote or restrict religious belief, and was otherwise neutral and valid. Subsequent federal and state legislation and cases have modified the contours of that tension, but fundamentally the question is one of spheres of authority, which is endemic to a pluralistic society.
This Pennsylvania case does not change the question. The concern of government regulation of what constitutes legitimate religious belief and practice is valid, especially when such regulation is premised on supposedly neutral principles. Such principles are not and cannot be neutral, as they still presuppose a moral framework and a certain worldview—but they can be mutually and generally acceptable as expressions of common grace and reason. And sometimes they even align with and are consistent with revelation. Yet whoever holds the power to change the definition of what constitutes neutral principles also holds the power to attempt to regulate the belief and practice of religious organizations. And therefore, it should be a cause for concern when a religious institution is deemed a public accommodation.
However, in this case, the Court did not hold that the College was a public accommodation. All it said was that the College was not categorically and automatically excluded from public accommodation based on the factual record – and the express statutory language. The Court even allowed that the College may be able to show that it is in fact a distinctly private institution and thus not subject to regulation and oversight of the Commission.
Yet, it seems clear that the default burden in cases like this, whatever the procedural history or posture, is that religious institutions will increasingly have to prove their exemption from government oversight rather than the State having to prove its interest in regulation. This is especially so if the question becomes how much religious belief or practice constitutes “sufficient” religious belief or practice to protect the institution from scrutiny.
Because the Court was concerned with the applicability of jurisdictional bars, or the lack thereof, it did not consider the merits of the Student’s claim to the Commission concerning alleged racial discrimination, and only considered whether the Commission had the jurisdiction and authority to investigate further. It may turn out that the College was or was not discriminatory. Or it may turn out that the College is actually a sufficiently religious institution to bar further investigation, whereupon the underlying merits of the case may never be learned.
What may be concluded is that available legal protections may depend on the extent to which religious institutions actively and unambiguously affirm their religious identity, demonstrate their religious nature through communications, and consistently practice their expressed religious doctrine in application. Thus, it would benefit religious institutions, whether churches or schools, to think through and contextualize how their religious doctrines manifest in their particular circumstances. They should thoroughly consider what about this religious belief requires that a certain policy be a certain way, why government intervention intrudes upon this vital expression of religious belief and practice, and how the thoughts, words, and actions of that institution better express and instantiate the religious doctrines professed. In other words, how should doctrine and faith inform worldview and practice in all areas of life?
It is likely that religious institutions will more frequently have to prove their religious nature and the comprehensive nature of their belief systems in order to ensure that the government does not classify them as a public accommodation subject to secular regulation over decisions no longer deemed “religious.” The best proactive steps religious institutions can take at this time, then, are to actively, authentically, and comprehensively live out their faith and religious beliefs before the watching world.
