strings on grants -Reply

[Mark Scarberry]

In California, religiously affiliated colleges and universities can raise
money for construction by selling bonds through a favorable state
procedure.  (I think it's called CEFA, Calif. Education Funding Assistance
program or something like that.)  But they must then promise that the
buildings built with the funds will not be used for certain religious
purposes (worship, at least).  And didn't Tilton require that where the
government gives funds for a building, the religious university must be
banned in perpetuity from using the building for core religious activities?

I realize these strings do not prevent the recipient of funds from engaging
in certain activities in general; they just limit where that activity can
take place.  But perhaps this is still somewhat along the lines Michael was
thinking.

Mark S. Scarberry

Michael McConnell wrote:

> Brad Jacob is the only one, so far, to respond to my request for
> cites to cases in which a grant condition was enforced on a
> recipient of funds that could not have been imposed in the absence
> of the grant. He writes:
>
> > Isn't this what the Grove City College case was about?  Although the
> > federal grant in question was indirect, in the form of student aid,
> > the Court held that receipt of such money would subject the College to
> > federal regulation.
>
> This is helpful, but I am hoping for more. The issue in Grove City
> was whether the College was a recipient of federal financial
> assistance within the meaning of that term in Title VI, Title IX,
> etc.  At least as I remember it, the college did not claim a
> constitutional right to engage in the "discrimination" of
> which it was accused in that case.
>
> I am interested in a case where the argument is that the government's
> interest as supplier of money is sufficient justification  for a
> type of regulation that the government would not be permitted to
> undertake in the absence of the funding relationship. As in: "you
> have a right to do that, but not with government money."  NEA v.
> Finley would be an example; but I want examples involving religious
> institutions that are grant recipients and are being required (as a
> condition of the grant) to do things they would otherwise have a
> right not to do. Grove City is an example, but it did not raise the
> constitutional dimension of the question.
>
> Have the Boy Scouts been regulated (as to acceptance of atheists or
> homosexuals) in their capacity as grant recipients? Or the Salvation
> Army? Can anyone think of an example of a grant restriction that is
> constitutional as a grant restriction but would not be constitutional
> if imposed by a state under the police power?
>
> -- Michael McConnell (U of Utah)