Reading Room Document

Religious Restrictions on Capital Financing for Historically Black Colleges and Universities

The restriction in 20 U.S.C. § 1066c(c) on the Department of Education's authority to guarantee loans for capital improvements at historically black colleges and universities "in which a substantial portion of its functions is subsumed in a religious mission" violates the Free Exercise Clause of the First Amendment. The remaining restrictions in the statute can, and must, be construed to avoid further conflict with the Free Exercise Clause. We thus read section 1066c(c) and 20 U.S.C. § 1068e(1) to deny loans under the program only for facilities that are predominantly used for devotional religious activity, or for facilities that are part of an HBCU, or part of a department or branch of an HBCU, that offers only programs of instruction devoted to vocational religious education. The OLC does not provide release dates for its opinions, so the release date listed is the date on which the opinion was authored. The original opinion is available at www.justice.gov/olc/file/1350166/download.

August 15, 2019