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Bill may be unconstitutional

Sara McManamy-Johnson sjohnson@lebanondemocrat.com • Updated Jul 26, 2013 at 10:01 PM

A state bill requiring private universities to allow student religious groups to reject members based on beliefs may be unconstitutional, according to an opinion from the state attorney beneral.

Rep. Mark Pody’s House Bill 1150 and Sen. Mae Beavers’ Senate Bill 1241 arose in response to Vanderbilt University’s “all-comers” nondiscrimination policy for student organizations.

The bill would revoke Vanderbilt’s right to have a police department – which is currently state funded – if the university did not drop its nondiscrimination policy.

A similar bill passed the House and Senate last year, only to be vetoed by Gov. Bill Haslam.

Last year’s bill targeted Vanderbilt specifically and tied enforcement to state funding for medical care to the poor at the university’s hospital.

While this year’s bill would apply to all universities with a police force, Attorney General Robert Cooper said in an opinion released last week the state would overreach its authority by imposing the restrictions on private institutions.

According to Cooper, the state would be well within its rights to impose those requirements at state universities because “those institutions are arms and instruments of the state and possess no rights or powers not conveyed by the state.”

Private universities, however, fall under the domain of the U.S. Constitution.

“…[T]his nondiscrimination requirement, as applied to private universities, likely violates the private universities’ right to free association protected by the First Amendment of the Constitution,” said Cooper in his opinion.

Additionally, the bill could violate the Equal Protection Clause of the 14th Amendment, according to Cooper.

“The constitutional infirmity of SB1241 is not cured by the fact that it withdraws the police power from private universities that exercise their right to free association rather than simply banning, outright, the exercise of that constitutional right,” said Cooper in his opinion. “It is well established that the state may not condition continued receipt of a valuable state benefit (here, the exercise of the state’s police power to commission and maintain a police force) on a private institution’s compliance with an unconstitutional condition.”

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