MEMORANDUM OF DECISION
PIESTER, United States Magistrate Judge.
In this action Douglas Rader, an eighteen-year-old freshman student at the University of Nebraska-Kearney ("UNK"), alleges that UNK's parietal rule, which requires on-campus residency of freshman students, runs afoul of the First Amendment to the United States Constitution. The bench trial of this matter having been concluded, I now issue my findings of fact and conclusions of law in accordance with Federal Rule of Civil Procedure 52(a).
FINDINGS OF FACT
UNK's parietal rule requires all full-time freshman students at UNK to live on campus during their first year of college. (Exh. 1). UNK administrators believe that the parietal rule fosters diversity, promotes tolerance, increases the level of academic achievement, and improves the graduation rate of its students. The policy also ensures full occupancy of UNK residence halls. Douglas Rader, a devout Christian, seeks an injunction prohibiting UNK administrators from enforcing the freshman housing policy against him on the ground that it violates his right to free exercise of religion under the First Amendment to the United States Constitution.
UNK's parietal rule states as follows:
(Exh. 1).
Rader's Religious Beliefs and Christian Student Fellowship
Douglas Rader is an eighteen-year-old freshman student at UNK. Rader was raised by his parents in a distinctly religious environment and is a member of the Christian Church of Trumbull, Nebraska. Rader and his family believe that the Bible is the Word of God; it instructs them how to live their daily lives and entreats them to make decisions which they believe glorify God.
During his senior year of high school Douglas Rader considered attending several postsecondary schools upon graduation. However, he chose to attend UNK because, unlike many of the smaller private schools he considered, it offered a four-year agribusiness program, superior quality agribusiness courses, and recruited him to play for the men's varsity basketball team. Rader knew that he would be subject to UNK's parietal rule before applying for admission.
After his acceptance into the University, Douglas Rader petitioned UNK for an exception to the policy on the ground that his religious convictions exhort him to live in an environment that encourages "moral excellence during [his] college career." (Exhibit 1). In his petition Rader stated,
Rader detailed the behavior he believed occurs in UNK residence halls:
Rader wrote, "I want to live a daily life which reflects high moral standards — those standards which my parents and my church have instilled in me. Living in the residence halls would make that impossible." (Exhibit 1). Therefore, Rader requested that UNK allow him to live with other students of similar faith in the Christian Student Fellowship ("CSF") facility, across the street from the UNK campus.
CSF is a "non-denominational Christian ministry geared to the students of the University of Nebraska at Kearney." (Exh. 121). The purpose of the organization is to "foster the Lordship of Christ on the UNK campus." (Exh. 121). CSF operates a three-story residential facility for UNK students who wish to share "a lifestyle which glorifies Christ." (Exh. 121). The facility offers residents regular fellowship activities, weekly Bible studies, counseling, prayer support, and leadership and evangelism training. (Exh. 121). Although a student does not have to be a member of a particular denomination to reside at CSF, virtually all students who live in the facility are Christians who profess beliefs similar to those of Douglas Rader.
The facility, established in 1974, is located within a hundred feet of the south edge of the UNK campus, across the street from the University's Health and Sports Center. The CSF facility is actually closer in proximity to the heart of the UNK campus than many of the University's residence halls. (Exhibit 33). During the spring and fall semesters the facility typically houses twenty-two students, which is the maximum number of residents allowed to reside in the building.
CSF employs a full-time campus minister, Greg Swinney, to oversee the program. Swinney provides counseling for the students and coordinates religious activities for the facility. Additionally, two "floor shepherds" reside at the facility and are responsible for addressing the needs of residents. Potential residents must complete an application expressing their reasons for desiring to live at CSF before they may live in the facility. (See e.g. Exhs. 34 and 35). Residents agree to keep the doors of their rooms open while entertaining guests of the opposite sex and agree to abstain from the use of alcohol, drugs, tobacco, and profanity. A major violation of the facility's rules will result in expulsion from the residence; however, such action has never been necessary. In fact, Swinney testified that during his twelve years at the facility there had never been a violation of the alcohol policy.
In contrast, the lifestyles of many, if not most, students who live in UNK residence halls are markedly different from those of the students who live at CSF. Even though the University prohibits the possession and consumption of alcohol on its campus, between four and eight violations of the alcohol policy occur each week, and administrators recognize that the actual number of students who consume alcohol on campus is much higher, despite their best efforts to control the problem.
Michael Rader, Douglas's father, compared his son's request to live at CSF with the example he believes was set by Jesus Christ. According to his interpretation of the Bible, during the day Christ associated with "sinners", but in the evening he returned to live among his apostles and disciples.
Douglas Rader associates with other UNK students daily in his classes, at basketball practice, and at his part-time job with UNK's Health and Sports Center; however, Douglas believes that CSF is vital to his spiritual growth because it allows him to live in fellowship with other Christians. In addition, Rader does not wish to live in the dormitories because he believes he must "run away ... from temptation" and remain "free from sin." He summarized his desire to live at CSF as a way to "strengthen [his] walk with the Lord."
Exceptions to UNK's Parietal Rule
As noted above, the freshman housing policy itself provides three instances where freshman students are granted exceptions to the parietal rule: (1) if the student is nineteen years or older on the first class day of the fall semester; (2) if the student is married; or (3) if the student lives with his or her parents or legal guardians and is commuting from within the local Kearney community.
UNK also grants exceptions to the parietal rule for additional reasons not enumerated within the policy. These exceptions are granted for various reasons under the rubric of "significant and truly exceptional circumstances which would make living on-campus impossible...." (Exh. 1). However, in practice, exceptions have been granted in a variety of circumstances that cannot fairly be said to "make living on-campus impossible." While UNK administrators have granted exceptions in cases of serious medical need and single parent pregnancies,
In addition, UNK has granted so-called administrative exceptions to the parietal rule for reasons that are not articulated in the information it publishes about its policy and that may not be stretched to fit a stated exception to the rule. For example, a student living in Colorado requested an exception to the policy in order to live with a relative in Kearney during the 1994-1995 academic year. (Exh. 55). The student, whose parents were alumni of UNK, threatened to attend the University of Colorado instead of UNK if she were not granted an exception to the policy. (Ex. 55). After her petition for exception was rejected by lower level administrators, the student's parents contacted a family friend who was a member of the board of the UNK Foundation, the organization responsible for raising donations from UNK alumni. Thereafter, UNK reversed its position and granted the student an "administrative" exception to the policy. (Ex. 55). In a similar case the defendant administrators refused to grant an exception to a student who wished to live with his parents and commute from Overton, Nebraska. (Exh. 56). After the student's parents complained about the denial of his petition to Nebraska State Senator Jim Cudaback, UNK reversed its position and granted the exception.
Application of the Parietal Rule to Douglas Rader
Douglas Rader's request for an exemption to the policy on religious grounds was reviewed by Defendant Douglas Wermedal, Assistant Director of Residence Life at UNK. Wermedal denied Rader's petition for exception by a letter dated April 7, 1995. Following the denial of his petition Rader received a letter from Defendant Bresciani, Director of Residence Life at UNK, threatening to drop Rader from classes at UNK unless he signed a housing contract to live in a residence hall. (Exh. 32).
Although Defendant Wermedal testified at trial that petitions for exception to the policy on religious grounds should be considered on an individual basis, in the case of Douglas Rader, he denied the exception without contacting Rader, his parents, or CSF officials and without otherwise conducting an independent investigation into the circumstances of the petition.
Prior to Barbara Hancock Snyder's arrival as Vice-Chancellor for Student Affairs in 1991, exceptions for freshmen who wished to reside at CSF were freely granted by the UNK administration. However, after 1991, every petition for exception submitted to UNK by freshman students requesting permission to reside at CSF has been denied. In October of 1994 several CSF officials met with Snyder and other UNK administrators regarding UNK's practice of denying petitions for exceptions to live at CSF. Following the meeting a University of Nebraska Regent contacted Snyder with his concerns about UNK's enforcement of the policy. Snyder refused to change the manner in which the policy was enforced or to designate CSF as "on-campus" housing, but did offer to house students with beliefs similar to those
At trial Defendant Snyder indicated that UNK will not voluntarily grant exceptions to its policy for freshman students who want to live at CSF. Snyder believes that CSF does not meet UNK's goals of fostering academic success and diversity and that life in the residence halls would not have an adverse effect on the religious beliefs of any UNK student. She has never visited the facility, however, and does not have any independent basis such as studies or statistical information to verify her beliefs.
Snyder's superior, Defendant Gladys Styles Johnston, Chancellor of UNK, stated that Rader's petition does not meet the University's standard of extenuating circumstances. Although Johnston considers it sound to grant exceptions to the policy for medical conditions, she believes that exceptions should not be granted in cases of spiritual hardship. Defendant Johnston testified that students who do not wish to live in the residence halls for religious reasons should not attend UNK.
CONCLUSIONS OF LAW
The First Amendment, which is applicable to the States by incorporation into the Fourteenth Amendment, provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." U.S. Const., Amdt. 1; Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940). Although the Free Exercise Clause continues to prohibit all "government regulation of religious beliefs" themselves,
In Smith, two individuals, who had been disqualified from receiving state unemployment compensation benefits for engaging in job related misconduct concerning the ingestion of peyote during Native American Church religious ceremonies, challenged the denial of benefits to which they believed they were entitled by the State of Oregon. A majority of the Court held that "the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes ... conduct that his religion prescribes...."
Despite its broad terms, the Smith rule, however, is not all encompassing. Although the right of free exercise does not relieve an individual of the obligation to comply with a neutral, generally applicable law, the Free Exercise Clause still "forbids subtle departures from neutrality" and "covert suppression of religious beliefs." Lukumi Babalu Aye, 508 U.S. at 533, 113 S.Ct. at 2227 (quoting Gillette v. United States, 401 U.S. 437, 452, 91 S.Ct. 828, 837-38, 28 L.Ed.2d 168 (1971) and Bowen v. Roy, 476 U.S. 693, 706, 106 S.Ct. 2147, 2155-56, 90 L.Ed.2d 735 (1986) (plurality opinion)). The First Amendment prohibits discrimination by government officials "against some or all religious beliefs...." Lukumi Babalu Aye, 508 U.S. at 531, 113 S.Ct. at 2226 (citing Braunfeld v. Brown, 366 U.S. 599, 607, 81 S.Ct. 1144, 1148, 6 L.Ed.2d 563 (1961) (plurality opinion). Thus, if a law is not neutral or of general applicability, the government may justify its infringement upon the particular religious practice only by demonstrating that the infringement is narrowly tailored to further a compelling governmental interest.
First Amendment Requirements for Constitutionality
In Lukumi Babalu Aye, 508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993), the Supreme Court invalidated a city's ordinances prohibiting the slaughter of certain types of animals within the limits of the city. The Court found that the ordinances were neither neutral nor generally applicable, because they were designed solely to suppress the practice of ritual animal sacrifice by adherents to the Santeria religion in the community. Id. at 540-42, 113 S.Ct. at 2231. While the Court did not provide a detailed explanation of the difference between the two requirements, it noted that the two requirements are interrelated: "[F]ailure to satisfy one requirement is a likely indication that the other has not been satisfied." Id. at 531-33, 113 S.Ct. at 2226. The Court also indicated that strict scrutiny will be triggered if a law or governmental policy fails to meet either requirement. Lukumi Babalu Aye, 508 U.S. at 531-33 and 544-46, 113 S.Ct. at 2226 and 2233.
(1) General Applicability
Because the city's ordinances in Lukumi Babalu Aye fell "well below the minimum standard necessary to protect First Amendment rights[,]" the Court declined to "define with precision the standard used to evaluate whether a prohibition is of general applicability." Id. at 543, 113 S.Ct. at 2232. At a minimum, however, the Court stated, "[G]overnment, in pursuit of legitimate interests, cannot in a selective manner impose burdens only on conduct motivated by religious belief." Id. "[C]ategories of selection are of paramount concern when a law has the incidental effect of burdening religious practice. The Free Exercise Clause `protect[s] religious observers against unequal treatment.'" Id. (quoting Hobbie v. Unemployment Appeals Comm'n of Florida, 480 U.S. 136, 148, 107 S.Ct. 1046, 1053, 94 L.Ed.2d 190 (1987) (Stevens, J., concurring in judgment)).
In the case at bar only approximately 1,600 of the 2,500 freshmen attending UNK are required by the University to comply with its parietal rule. Put another way, over one third of freshman students are excused from it. The policy itself provides three instances where freshmen are routinely granted exceptions to the rule. (Exh. 1). Students whose parents live within twenty miles of the UNK campus, students who are married, and students who are over nineteen years of age at the beginning of the fall semester are granted automatic exceptions from the parietal rule upon submission of a petition for exception. (Exh. 1). In addition, part-time freshmen and students under the age of nineteen who are upperclassmen are not subject to the parietal rule. (Exh. 1).
The Court also stated in Lukumi Babalu Aye and in Smith that "in circumstances in which individualized exemptions
In summary, although exceptions are granted by the defendants for a variety of non-religious reasons, they are not granted for religious reasons. Over one third of the freshman students at UNK are not required to comply with the parietal rule. The defendants in this case have created a system of "individualized government assessment" of the students' requests for exemptions, but have refused to extend exceptions to freshmen who wish to live at CSF for religious reasons. Accordingly, I conclude the parietal rule cannot be viewed as generally applicable to all freshman students. Smith, 494 U.S. 872, 884, 110 S.Ct. 1595, 1603, 108 L.Ed.2d 876 (1990); Lukumi Babalu Aye, 508 U.S. at 536-38 and 542, 113 S.Ct. at 2229 and 2232 ("The Free Exercise Clause `protect[s] religious observers against unequal treatment.'") (quoting Hobbie v. Unemployment Appeals Comm'n of Florida, 480 U.S. 136, 148, 107 S.Ct. 1046, 1053, 94 L.Ed.2d 190 (1987) (Stevens, J., concurring in judgment)). I turn next to the First Amendment's requirement of neutrality.
(2) Neutrality
"[T]he minimum requirement of neutrality is that a law not discriminate on its face." Lukumi Babalu Aye, 508 U.S. at 533, 113 S.Ct. at 2227. A finding of mere facial neutrality, however, does not end the inquiry. To pass constitutional muster a governmental law or policy must also be neutral in purpose and effect. Id. at 531-32, 113 S.Ct. at 2226. Thus, in Lukumi Babalu Aye, the Court did not end its analysis of the city's ordinances after finding that they were facially neutral. Rather, the Court traced the adoption of the ordinances to the Santerias' announcement that they planned to conduct rituals in a building within the city and determined that the ordinances prohibited virtually no other types of animal slaughter except those used by the religious sect. Id. at 533-42, 113 S.Ct. at 2227-31. The Court therefore concluded that the ordinances were not neutral in their purpose and effect. "At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons." Id. at 532, 113 S.Ct. at 2226 (citing Braunfeld v. Brown, 366 U.S. 599, 607, 81 S.Ct. 1144, 1148, 6 L.Ed.2d 563 (1961) (plurality opinion).
Defendant Wermedal, who is also a Baptist minister, denied Rader's petition for exception on the ground that he was "firmly persuaded that there is nothing in the residence hall environment which would prohibit the free exercise of [Rader's], or any other persons['],
Instead, Defendant Wermedal testified that he denied Rader's request based on his own "personal experience," knowledge of life in UNK residence halls, and "religious expertise." Wermedal indicated that his personal experiences as a Baptist minister affected his decision to reject Rader's petition to a significant extent. Though I am certain that Defendant Wermedal did not intend to discriminate against Rader on the basis of his faith, he treated Rader's petition differently from those of persons requesting exceptions based on non-religious grounds by simply rejecting it out of hand. Although in cases of pregnancies and medical need Defendant Wermedal had granted exceptions without validating the petitioners' assertions, (Exhs. 47, 49, 50, 51, 52), in the case of Douglas Rader, Defendant Wermedal summarily rejected Rader's assertions as "simply not true" without verifying that this presumption was correct. He judged Rader's petition in terms of his own religious experiences and tested the validity of Rader's beliefs against those of his own faith.
The testimony of Wermedal's superiors, particularly Defendants Johnston and Snyder, manifested a degree of antipathy toward members of CSF.
Defendant Johnston, Chancellor of UNK, indicated that petitions for exception to the policy based on religious grounds do not meet the University's standard of extenuating circumstances and should not be granted. While Johnston considers it sound to grant exceptions to the policy for medical conditions, pregnancies, students living with relatives, students over the age of nineteen on the first day of the fall semester, and apparently even in cases of the "administrative" exceptions where no valid reason for requesting the exception is required, she believes that exceptions should not be granted in cases of spiritual hardship. In her opinion students who do not wish to live in the residence halls for religious reasons should not attend UNK.
"The Free Exercise Clause protects against governmental hostility which is masked, as well as overt." Id. at 534, 113 S.Ct. at 2227. While the policy as written is certainly neutral on its face and in its purpose (insofar as a purpose can be identified), when administrators refuse to consider an
Moreover, a policy is not enforced in a neutral manner when administrators base decisions upon their own religious experiences and their own perceptions of the religious beliefs of others. Cantwell v. Connecticut, 310 U.S. 296, 305, 60 S.Ct. 900, 904, 84 L.Ed. 1213 (1940). "At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs...." Lukumi Babalu Aye, 508 U.S. at 532, 113 S.Ct. at 2226. State actors may not without justification refuse to extend exceptions that they routinely grant to persons for non-religious reasons to those requesting the same exception based on sincerely held religious beliefs. Id.; see also United States v. Boyll, 774 F.Supp. 1333, 1341 (D.N.M.1991) (holding that under Smith government may not grant exemptions to a law for some religious observers while withholding them from others). Cf. McDaniel v. Paty, 435 U.S. 618, 622, 98 S.Ct. 1322, 1325-26, 55 L.Ed.2d 593 (1978) (invalidating a Tennessee statute that disqualified ministers from serving as legislators). I therefore conclude that the defendants have not enforced the parietal rule in a neutral manner against Douglas Rader.
Because UNK's parietal rule is not generally applicable and has not been applied in a neutral manner, Rader need not demonstrate that the burden on his religion is substantial. Id. at 544-46, 113 S.Ct. at 2233; Hartmann v. Stone, 68 F.3d 973, 979 n. 4 (6th Cir.1995); Brown v. Borough of Mahaffey, 35 F.3d 846, 849 (3rd Cir.1994); Church of Scientology v. City of Clearwater, 2 F.3d 1514, 1543 (11th Cir.1993), reh'g denied, 12 F.3d 221 (1993), cert. denied, ___ U.S. ___, 115 S.Ct. 54, 130 L.Ed.2d 13 (1994).
Compelling Interest Test
"A law burdening religious practice that is not neutral or not of general applicability must undergo the most rigorous scrutiny." Lukumi Babalu Aye, 508 U.S. at 546, 113 S.Ct. at 2233. In such cases the government must justify its burden upon the particular religious practice by demonstrating that its actions are narrowly tailored to further a compelling governmental interest. Lukumi Babalu Aye, 508 U.S. at 531-33, 113 S.Ct. at 2226. "Only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion." Wisconsin v. Yoder, 406 U.S. 205, 212, 216, 92 S.Ct. 1526, 1531-32, 1533, 32 L.Ed.2d 15 (1972).
The defendants identify four purposes behind UNK's freshman policy. First, the policy itself states that "students who live in the residence halls their freshman year ultimately do better academically [and] have higher graduation rates...." (Exh. 1). Second, the defendants maintain that the policy fosters diversity, and third, promotes tolerance among UNK students. Fourth, during cross-examination the administrators also conceded that, in part, the policy ensures full occupancy of UNK's residence halls. As discussed below, I conclude that although these interests are certainly legitimate, see Prostrollo v. Univ. of South Dakota, 507 F.2d 775 (8th Cir.1974), cert. denied, 421 U.S. 952, 95 S.Ct. 1687, 44 L.Ed.2d 106 (1975),
UNK administrators cite a 1970 district court decision, Pratz v. Louisiana Polytechnic Institute, 316 F.Supp. 872 (W.D.La.1970), appeal dismissed, 401 U.S. 951, 91 S.Ct. 1186, 28 L.Ed.2d 234, summarily aff'd per cur. 401 U.S. 1004, 91 S.Ct. 1252, 28 L.Ed.2d 541 (1971), in support of their interest in enforcing the freshman housing policy.
Although UNK's interest in promoting academic success, fostering diversity, promoting tolerance among UNK students, and, to a lesser extent, its interest in insuring the financial stability of its residence hall programs are legitimate and possibly even important state interests, UNK's own implementation of its parietal rule undercuts any contention that its interest is compelling.
Additionally, to a great extent CSF appears to meet the University's stated purposes for the parietal rule, at least as much as UNK's residence halls. First, the facility is located within a hundred feet of the south edge of the UNK campus and is closer in proximity to the heart of the UNK campus than many of the University's residence halls. (Exhibit 33). Thus, academic services, such as tutoring, are as readily available to residents of CSF as they are to students residing in UNK's dormitories. The facility houses twenty-two students and has often housed students from various foreign countries, including Jamaica, Japan, Columbia, and Kenya.
CONCLUSION
Although UNK's parietal rule is neutral on its face, Douglas Rader has shown that the defendants have enforced the rule against him in a manner that is not neutral or generally applicable. The defendants, in turn, have not demonstrated that their enforcement of the parietal rule is narrowly tailored to further a compelling state interest. Though there is no constitutional right to a free public education, the state may not unequally condition access to a public education on performance of an act — here residing in a residence hall — that infringes the exercise of First Amendment rights. Lukumi Babalu Aye, 508 U.S. at 546-48, 113 S.Ct. at 2234; Thomas, 450 U.S. 707, 716, 101 S.Ct. 1425, 1431, 67 L.Ed.2d 624 (1981). Accordingly, judgment will be enter for the plaintiff, Douglas Rader.
1. The defendants' enforcement of the University of Nebraska-Kearney's freshman housing policy, in its present form and application, against the plaintiff, Douglas Rader, is declared unconstitutional under the First Amendment to the United States Constitution.
2. The defendants and their agents, officers, assigns, and successors are ordered to refrain from enforcing in any way the University of Nebraska-Kearney's freshman housing policy against the plaintiff, Douglas Rader.
3. Judgment shall be entered for the plaintiff in accordance with the foregoing.
FootNotes
Due to an agreement between the parties, Douglas Rader has resided off-campus in the CSF facility since August of 1995 without any adverse action being taken against him by UNK. The defendants testified, however, that UNK will enforce the parietal rule against Rader in the event he is unsuccessful in this case. As a decision on the merits has been reached before the end of the spring semester and Douglas Rader would have been subject to the freshman housing policy if judgment were entered against him, this case is not moot and a justiciable controversy exists under Article III, § 2. Northrop Corp. v. McDonnell Douglas Corp., 705 F.2d 1030, 1049 (9th Cir.1983) (a stipulation between parties does not moot a claim if the agreement is to endure only during the pendency of litigation). In addition, since the enforcement measures are not limited to the freshman year, it appears this dispute will not be mooted by the plaintiff's completion of his freshman year, nor by his reaching the age of nineteen.
The study reported use of the following products by UNK students during the previous year and compares that data with students on a nation-wide basis:
1993 1994 1995 Nationally
Alcohol 93% 92% 93% 92%
Tobacco 62% 58% 26% 58%
Marijuana 30% 25% 26% 45%
Amphetamines 20% 14% 16% 14%
Hallucinogens 7% 3% 5% 10%
(Exh. 22).
Although at one point Defendant Bresciani's testimony indicated that UNK received only between 114 and 168 total petitions for exception each year for the 1993, 1994, and 1995 academics years, his suggestion was obviously in error because the memorandum he refereed to as the basis of this testimony indicates that the referenced number of petitions received were for exceptions made "beyond those stated in the policy for full-time students." (Exh. 112). Thus, the petitions for exception summarized in Exhibit 112 do not include petitions submitted for reasons stated within the terms of the policy, namely marriage, living with parents in the Kearney community, and age. (See Exh. 1).
Moreover, the number of petitions referenced in Exhibit 112 is far below the number of freshmen who do not live on the Kearney campus. Simple arithmetic dictates that if UNK residence halls have a total capacity of 2,600 students, and if the resident halls are operating at ninety percent capacity, about 2,400 students currently live in them. If 800 upperclassmen live in the dormitories, then, at most 1,600 freshmen live in the dormitories. This number coincides with the number of freshmen, 1,600, that Defendant Bresciani stated lived on campus at another point in his testimony. As approximately 2,500 full-time freshmen attend classes at UNK, it is evident that at least 900 full-time freshman students do not live in the residence halls. As there was no evidence of the number of part-time freshman students at UNK, the number of freshmen who do not live on campus is likely to be significantly higher than 900.
Incidentally, the great majority of the petitions for exception denied by UNK, which are referenced in Exhibit 112, were submitted for financial reasons only. That is, the students wished to live off campus only because they believed they would save money by doing so. These cases are not considered to fit any of recognized exception to the rule.
Two other assistant directors of Residence Life, in addition to Wermedal, make initial decisions whether to grant or deny petitions for exception. Although Wermedal has not encountered another petition for exception on religious grounds, it is clear that the other two assistant directors and their predecessors have received petitions for exceptions on religious grounds.
Id. at 303, 60 S.Ct. at 903.
Although the majority opinion in Smith has been harshly criticized by virtually every legal scholar and commentator addressing the decision, see e.g. Michael W. McConnell, Free Exercise Revisionism and the Smith Decision, 57 U.Chi.L.Rev. 1109 (1990), and various members of the Court have demanded reconsideration of the Smith holding at the first opportunity, see Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 558-78 and 578-80, 113 S.Ct. 2217, 2240-50 and 2250-51, 124 L.Ed.2d 472 (Souter, J., concurring) and (Blackmun and O'Connor, J., concurring) (1993), there is no question that the Smith decision is valid, binding precedent at this time.
Although one district court has refused to consider individualized exemptions outside the area of unemployment compensation, Jane L. v. Bangerter, 794 F.Supp. 1537, 1547 n. 10 (D.Utah 1992), courts and commentators generally agree that a pattern of individualized exemptions undercuts applicability of the broad rule in Smith in other contexts as well. See Kissinger v. Board of Trustees, 5 F.3d 177, 179 (6th Cir.1993); Am. Friends Service Comm. v. Thornburgh, 961 F.2d 1405, 1408 (9th Cir.1992); Vandiver v. Hardin County Bd. of Educ., 925 F.2d 927, 933-34 (6th Cir.1991); United States v. Phila. Yearly Meeting of Religious Soc., 753 F.Supp. 1300, 1304 (E.D.Pa.1990); First Covenant Church of Seattle v. City of Seattle, 120 Wn.2d 203, 840 P.2d 174, 181 (1992); Simon J. Santiago, Zoning and Religion: Will the Religious Freedom Restoration Act of 1993 Shift the Line Toward Religious Liberty?, 45 Am.U.L.Rev. 199 (1995); Thomas J. Cunningham, Considering Religion As A Factor In Foster Care in the Aftermath of Employment Div. v. Smith, 28 U.Rich.L.Rev. 53 (1994); Brydon DeWitt, Partially Disabled and Religious: Virginia Worker's Compensation and the Free Exercise Clause, 28 U.Rich.L.Rev. 763 (1994); Comment, Employment Division v. Smith: The Supreme Court Improves the State of Free Exercise Doctrine, 12 St. Louis U.Pub.L.Rev. 569 (1993). In addition, the Supreme Court's latest free exercise decision, Lukumi Babalu Aye, removes much of the doubt about the role of individualized exemptions outside the unemployment compensation context. 508 U.S. at 536-38, 113 S.Ct. at 2229 (relying in part on individualized exemptions to invalidate ordinances pertaining to ritual animal sacrifice). Whether individualized exemptions constitute an exception to the Smith rule or merely preclude a finding of general applicability, see note 24, infra, I see no justifiable basis for limiting consideration of them to only those cases involving unemployment compensation.
In this case, however, because I find that UNK's parietal rule is not generally applicable, I need not inquire further as to whether the plaintiff's evidence at trial established a "substantial" burden. I have considered UNK's system of individualized exemptions as only one of several factors in the generally applicable inquiry. I have not considered the system of individualized exemptions as an exception to the Smith rule.
(Testimony of Barbara Hancock Snyder) (emphasis in quotation reflects emphasis in speech pattern).
I decline to adopt the panel's approach in Goodall, because it is clearly contrary to the Supreme Court's approach in Lukumi Babalu Aye. In Lukumi Babalu Aye, the Court did not consider whether the ordinances posed a substantial burden on the exercise of the Santerias' religion, but proceeded directly to the compelling interest test after it determined that the ordinances were not neutral or generally applicable. 508 U.S. at 544-46, 113 S.Ct. at 2233. It is likely that the Fourth Circuit panel did not recognize the issue as it merely cited the Smith decision and did not cite Lukumi Babalu Aye or any other authority when it declined to conduct a general applicability analysis, and it summarily disposed of the plaintiff's claim in two scant sentences. 60 F.3d at 173. Rather, I agree with the Third Circuit's conclusion that applying "a burden test to non-neutral government actions would make petty harassment of religious institutions and exercise immune from the protection of the First Amendment." Brown v. Borough of Mahaffey, 35 F.3d 846, 849-50 (3rd Cir.1994). Therefore, like the Third, Sixth, and Eleventh Circuits, I conclude that the burden requirement is appropriate only in cases where government officials acted in a neutral, generally applicable manner with respect to religious observers. Id. at 850.
While students who live with parents or legal guardians are excepted from the policy, those students who wish to live with close relatives, such as aunts and uncles, are not excepted from the policy. Although UNK assumes that students living with relatives are not cared for in the manner of students living with parents, UNK has conducted no studies that support this assertion.
In addition, only students under the age of nineteen fall within the policy. If UNK actually regarded its interests in enacting the parietal rule as being of such great importance, it would no doubt require all freshmen regardless of age to comply with the rule. While UNK officials maintain that they differentiate between students younger than nineteen and students older than nineteen because that is the age of majority in Nebraska, students under the age of nineteen who are sophomores, juniors, and seniors are not subject to the rule.
Finally, I note the parties' stipulation that other branches of the University of Nebraska system do not similarly enforce any such residency requirement. If UNK's goals in enforcement of the parietal rule were of such great importance, one would expect the University to enact and enforce the policy in the same manner on all its campuses.
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