North Carolina Appellate Court Questions the Constitutionality of Campus Police at Universities with Religious Heritages in State v. Yencer

Spring 2011

By Robert T. Numbers

In late August, as colleges and universities across North Carolina were preparing to welcome back their students, the North Carolina Court of Appeals issued an opinion that calls into question the constitutionality of campus police forces at any institution of higher learning that is in any way affiliated with a religious institution. In State v. Yencer,1 a unanimous three judge panel of the North Carolina Court of Appeals ruled that the “the delegation of police power to Davidson College, pursuant to § 74G, is an unconstitutional delegation of ‘an important discretionary governmental power’ to a religious institution in the context of the First Amendment.”2 The opinion reaches beyond its specific facts, calling into question the legitimacy of campus police forces of any college or university that has ever been affiliated with organized religion.

North Carolina, like many states, allows its Attorney General “to certify a private, nonprofit educational institution of higher education . . . as a campus police agency and to commission an individual as a campus police officer.”3 Campus police officers “have the same powers as municipal and county police officers to make arrests for both felonies and misdemeanors” on property owned by the college or university and any public road or highway immediately enjoining the college or university property.4

However, the delegation of the state’s arrest power to campus police forces has generated a fair amount of controversy. In State v. Pendleton,5 the North Carolina Supreme Court, in a 4-3 decision, addressed whether the delegation of the state’s arrest power to the Campbell University Police Department was permissible under the Lemon test, the standard which arose from the 1971 United States Supreme Court case Lemon v. Kurtzman.6 In order to resolve this issue, the North Carolina Supreme Court addressed two questions: (1) whether the police power constituted an important, discretionary governmental power; and (2) “whether the particular uncontroverted evidence presented in this case supports the Superior Court’s conclusion that Campbell University is a religious institution of the type contemplated by the Supreme Court”7 in Larkin v Grendle’s Den.8

After quickly determining that the police power was an important discretionary governmental power,9 the Pendleton court turned to the question of whether Campbell University constituted a religious institution. In resolving this issue the supreme court held that “this Court is bound by the . . . uncontested findings of the Superior Court” because the lower court’s findings were not challenged by the state on appeal.10 The superior court’s factual findings established that Campbell University was not a secular university with a religious heritage and affiliation but instead that it “is a Baptist university” focused on propagating and promoting a particular religious faith to its students.11 Based upon these findings the North Carolina Supreme Court threw out the criminal charges on the ground that the delegation of the police power to Campbell University violated the Establishment Clause of the First Amendment.”12

On January 5, 2006, Julie Anne Yencer was arrested by a member of the Davidson College Police Department on charges of driving while impaired and reckless driving on a street adjacent to campus.13 Davidson College, a private college with an enrollment of 1,800 students located approximately twenty miles north of Charlotte, North Carolina,14 employs a number of campus police officers certified by the Attorney General.15

Yencer initially plead guilty in Mecklenburg County District Court, but then filed a notice of appeal to superior court.16 Once in superior court, Yencer filed a motion to suppress evidence related to her arrest on the grounds that Davidson College was a religious institution and, therefore, the delegation of the state’s police power to the Davidson College Police Department “violated the excessive entanglement prohibitions of the Establishment Clause of the First Amendment to the United States Constitution.”17

After conducting an evidentiary hearing on the motion to suppress, the Honorable W. Robert Bell of the Mecklenburg County Superior Court entered an order containing various findings of fact related to the organization and operation of Davidson College. These findings included: (1) Davidson College is voluntarily affiliated with the Presbyterian Church of the United States of America (“PCUSA”); (2) PCUSA does not play a role in hiring or firing employees, does not play a role in the student admissions process, does not own the land Davidson College is situated on, and does not play a role in setting the college’s curriculum; (3) Davidson College is committed to a Christian tradition, but that commitment “extends beyond the Christian community to the whole of humanity and necessarily includes openness to and respect for the world’s various religious traditions[;]”18 (4) eighty percent of the college’s board of trustees must be an active member of a Christian church; (5) students are admitted to the college regardless of faith and are not required to attend religious services; (6) faculty members are required to sign a statement that they will work in harmony with the college’s statement of faith; (7) Davidson requires students to successfully complete thirty-two courses, one of which must be a course on religion; (8) there are a number of religious groups and clubs of both Christian and non-Christian faiths; and (9) “Davidson College is not a church.”19

Based upon these findings of fact, Judge Bell determined that the “religious character of Davidson College is not so pervasive that a substantial portion of its functions are subsumed in the religious mission of the [PCUSA].”20 Instead of being a religious institution, “Davidson College is an institution of higher education affiliated with the [PCUSA] whose predominant higher education mission is to provide its students with a secular education.” Therefore, “although Davidson College is religiously affiliated, it is not a religious institution within the meaning of the First Amendment.”21

After Judge Bell’s ruling, Yencer once again plead guilty and appealed to the North Carolina Court of Appeals.

In a unanimous decision authored by Judge James A. Wynn22 and joined by Judges Donna S. Stroud and Cheri Beasley, the court of appeals reversed the trial court’s order. The court of appeals held that “Davidson College is a religious institution for the purposes of the establishment clause and . . . the delegation of the police power to Davidson College . . . is an unconstitutional delegation of ‘an important discretionary governmental power’ to a religious institution in the context of the first amendment.”23 In the court’s view, it was bound to reach this conclusion by the North Carolina Supreme Court’s opinion in State v. Pendleton.24 The court of appeals acknowledged that “if we were starting afresh . . . there is evidence in the record to show that Davidson College is not a religious institution for Establishment Clause purposes.”25 The court of appeals also urged the North Carolina Supreme Court to take up the case, despite its unanimous holding,26 to revisit Pendleton and provide instruction on how to address “the important distinction between an institution with religious influence or affiliation and one that is pervasively sectarian.”27

The North Carolina Supreme Court took up the court of appeals on this invitation and granted the State’s Petition for Discretionary Review on October 7, 2010.28 Oral argument took place on March 15, 2011. The supreme court’s review of Yencer and Pendleton over the coming months will need to address a number of issues.

First, the findings of the trial court in Yencer were vastly different from the findings of the trial court in Pendleton. A review of the lower court’s findings shows that ties between Davidson College and the PCUSA were far weaker than the ties between Campbell University and the Baptist State Convention of North Carolina. The court of appeals’ opinion in Yencer focused primarily on those facts that demonstrated a strong religious affiliation and overlooked a number of factors which supported Davidson’s secular goals and mission. Given the supreme court’s admonition in Pendleton that the holding was highly fact specific, the “evidence in the record [showing] that Davidson College is not a religious institution for Establishment Clause purposes”29 may form the basis for reversing the court of appeals’ opinion.

Additionally, the North Carolina Supreme Court may need to reconcile Pendleton with decisions from other state appellate courts that have found that the delegation of the police power to colleges with religious affiliations is emphatically not a violation of the Establishment Clause. Since the North Carolina Supreme Court decided Pendleton in 1994, appellate courts in Michigan30 and Indiana31 have found that the delegation of the police power to colleges and universities with religious affiliations is permissible under the First Amendment. These courts have found that the delegation was appropriate because “[t]he delegation [at issue] was neither to a church nor a religious governing body, did not involve the exercise of civic power without standards, and did not have the purpose or effect of protecting or promoting religious interests.”32 In fact, the Indiana Court of Appeals explicitly rejected the reasoning of the majority in Pendleton and adopted the reasoning of the dissenting justices.33

The North Carolina Supreme Court may also consider whether Pendleton was an accurate interpretation of the United States’ Supreme Court’s “excessive entanglement” jurisprudence and, specifically, the decision in Larkin. On its face, a delegation of a discretionary government power to a college or university, even one with a religious affiliation, is distinct from a delegation of discretionary government power directly to a church. Moreover, while approval of a liquor license, the government power at issue in Larkin, and the police power of arrest are both largely discretionary tasks, the risk of improper religious influence is far greater in the former instance than the latter. The determination of whether a driver is legally intoxicated is largely identical regardless of the arresting officer’s faith or the religious views of those who employ him. Any reconsideration of Pendleton will also need to take into account several United States Supreme Court decisions that have limited the circumstances in which an institution of higher learning is deemed a religious institution for First Amendment purposes.

The North Carolina Supreme Court’s decision to hear the Yencer case demonstrates that several members of the court believe this area of the law is in need of additional discussion and clarification. The need for additional consideration of this issue is further demonstrated by the explicit rejection of Pendleton by appellate courts in other states. Regardless whether the North Carolina Supreme Court chooses to reconsider Pendleton in its entirety or limit its review to the facts of Yencer, the issue of whether the delegation of the police power to private colleges and universities with religious affiliations violates the First Amendment will depend on each school’s history, traditions, and organizational structure. Given the fact-intensive nature of the inquiry and the importance of the issue to the safety and security of institutions of higher education, North Carolina’s lower courts will benefit from any clarification that the North Carolina Supreme Court or, given the disagreement among state courts on the issue, the United States Supreme Court can provide on the issue.



1 696 S.E.2d 875 (N.C. Ct. App. 2010).

2 Id. at 879.

3 N.C. Gen. Stat. § 74G-2(a).

4 N.C. Gen. Stat. § 74G-6(b).

5 451 S.E.2d 274 (1994).

6 403 U.S. 602 (1971).

7 451 S.E.2d 274, 278 (citing Larkin v. Grendel’s Den, Inc., 459 U.S. 116 (1982)).

8 459 U.S. 116 (1982).

9 451 S.E.2d at 278-79.

10 Id. at 280.

11 Id. at 281.

12 Id.

13 State v. Yencer, 696 S.E.2d 875, 879 (N.C. Ct. App. 2010).

14 About Davidson, (last visited Apr. 29, 2011).

15 696 S.E.2d 875, 877 (2010).

16 Id. at 876-77.

17 Id. at 877.

18 Order, Finding of Fact 9.

19 Order at FF 1.

20 Order at CL 8.

21 Order at CL 8.

22 After the case was decided, but before the opinion was filed, Judge Wynn was sworn in as a judge on the United States Court of Appeals for the Fourth Circuit.

23 State v. Yencer, 696 S.E.2d 875, 879 (N.C. Ct. App. 2010) (quoting State v. Pendleton, 451 S.E.2d 274, 279 (1994)).

24 451 S.E.2d 274 (N.C. 1994)

25 696 S.E.2d at 879.

26 Under North Carolina law, a party does not have a right of appeal to the North Carolina Supreme Court from an unanimous opinion of the court of appeals. N.C. Gen. Stat. § 7A-30(2) (2007).

27 696 S.E.2d at 880.

28 See Supreme Court of North Carolina Petitions 7 October 2010, .

29 696 S.E.2d at 879.

30 Michigan v. Van Tubbergen, 642 N.W.2d 368 (Mich. Ct. App. 2002).

31 Myers v. Indiana, 714 N.E.2d 276 (Ind. Ct. App. 1999).

32 Id. at 283.

33 Id. at 283 n.5.

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