Friday, April 21, 2017

On the Spread of Private Governments in a Democracy: Should Churches and Universities Have Their Own Police Forces?

In mid-April, 2017, Alabama’s Senate approved a bill that would authorize Briarwood Presbyterian Church to create a police department. At the time, the church hired off-duty police employees to provide security-- “a common practice among nonprofit organizations.”[1] With 4,000 congregants, a K-12 school and thousands of events on its land each year, church officials had difficulty finding enough off-duty cops who were available. More important than being able to make up for any shortages, the proposed law “would empower a religious group to do a job usually performed by the government.”[2] That the group is religious in nature whereas police power is governmental (i.e., “church and state”) is less important than that the “job” had come to be viewed societally, as per the quote from The New York Times, as usually performed by government. In other words, the slippery, subtle slope is itself a red flag.

Briarwood Church is a virtual village, albeit a privately-held one. (source: Briarwood Church)
“Police powers are a quintessential government role,” said Randall Marshall of the ACLU of Alabama.[3] In U.S. constitutional law, the Tenth Amendment is judicially interpreted as giving the states police powers in line with the protection and maintenance of the health, safety, and welfare of the citizens.[4] In other words, the police power resides with the state governments. That the elected representatives in state offices are “closer to the people”—meaning smaller districts—means that the police power is tightly woven with democratic accountability and thus democratic legitimacy, at least in theory. That state governments delegate the power to local subunits (i.e., counties and municipalities) introduces a wrinkle in this feedback loop, especially if the county or city government is corrupted by local wealth, which is by nature pro-police qua property-protection.
Randall Marshall of the ACLU of Alabama overlooks the key governmental basis of police power in privileging the problem of church and state in his conclusion, “Giving the powers of the state to a private religious organization is a …violation of the establishment clause” of the U.S. Constitution.[5] I submit that for a government to allow a church to have employees with the powers to arrest and use deadly force is not to establish a state religion. The decisive problem is rather that a non-governmental entity—a non-profit organization—would assume a governmental role. That democratic legitimacy would be replaced by managerial prerogative is the sort of shift that is not typically transparent to translucent daylight.
The church employees would have “all of the powers of law enforcement officers” in Alabama, including “the powers to make arrests and use deadly force.”[6] They would have to be certified by the Alabama Peace Officers Standards and Training Commission, making them a real police department. The church pastor and his board of directors—private citizens, not government officials, in a private association—would be the bosses of a full-fledged police force. As troubling as this may sound, precedent exists in another domain of non-profit organizations.
Universities have their own police forces, which are accountable, in theory at least, to academic administrators (i.e., managers) rather than to a city council or mayor. In the case of state universities, their respective state governments are at a distance; typically a board of regents is the go-between. A university administration’s over-reaches can easily go under such a board’s radar—not to mention that of a state capitol. Even assuming adequate accountability, the interest of a university’s administration is not that of a state government—the former being considerably narrower in scope.
A government, unlike an organization’s board and management, stands for and protects society as a whole, so a police force answers to officials who are tasked with looking after the interests of the whole, rather than those of a part thereof. In theory, police can serve in an unbiased way between two contending groups within society, unless one of those groups is the government itself; but that group is not in society. Government as an organization differs qualitatively from organizations in society because only government represents the whole (i.e., the entire society, and thus the common good). This difference is crucial as to why giving organizations in society police forces of their own; organizational “police” are subject to a part (of society) rather than the whole and therefore something partial rather than the general good. Rather than the whole acting in its interest with respect to two contending parts of the whole, one part gains a lever over another part—a lever of such power that the U.S. Constitution assigns that prerogative to governments.
The issue at hand, whether the organizations are religious or educational (or both, as is Briarwood), is thus not the particular flavor of the organization. Even beyond whether a governmental power is misappropriated, the ultimate concern for the general public ought to be the risk of unaccountable police overreach at the expense of the members of organizations—whether parishioners, students, staff, faculty or even visitors. The risk is real because an inherent bias exists in the institutional arrangement itself, which unfortunately comes part and parcel with the misappropriation.
The troubling matter of accountability is so important because a serious, albeit unfortunately overlooked conflict of interest exists when a “police force” is beholden to an organization (i.e., its management) rather than a government, which represents the public good. Anytime such a “police force” intervenes in a conflict between the organization’s administration and its members, the “police” employees are subject to an inherent bias in favor of their bosses higher up in the organization. The bias is institutional in nature; employees are going to lean in the direction of the people who pay and direct them. A “police chief” in an organization is naturally going to side with the administration of which he or she is a part, rather than with members, and the “chief’s” subordinate employees are going to follow along even if they harm or intimidate members unjustifiably.
An organization’s management can order its “police force” to take action against “troubling” members, whereas they in turn face an “uphill climb” in convincing the administration’s “police” to take action against administrators who are out of line. “Police” employees of a church are likely to be hesitant at best to remove an irate, abusive pastor at the behest of some offended members, but those same employees would not blink an eye before removing a parishioner, who is orally challenging the pastor on a hitherto-secret regarding his salary or expenses, at the pastor’s request. This asymmetry is the fault-line in the conflict of interest. Any tense relation between an administration and the organization’s members suffers from the lack of a fair resolution mechanism because the security, or “police,” employees are subject to the institutional bias. In other words, the umpire or referee works for one of the teams.
As a result, administrators can potentially take liberties with more assurance than warranted of practical impunity, whereas the members and the general public (e.g., visitors) are potentially without the protections of liberty that are guaranteed citizens as per abuse of power by a government but interestingly not members as per abuse of power by an organization’s management or its armed “police force.”

More commonly, the board and pastor of a church and the administration of a university are likely to look the other way as members feel uncomfortable or even subtle intimidation on a daily basis due to an excessive “police” presence enabled by the bias in favor of the organizational leadership. That is, an organizational “police force” is not likely to be managed in such a way that the protection of the organization’s property and enforcement of its rules and even local law is balanced against the prerogative of members to feel at ease while at the organization.  Unfortunately, the risk of damage or violations of rules or laws cannot possibly reach absolute zero, so police forces, whether local or of organizations, are going to try to maximize their presence—caring less about member comfort in the process.
In short, giving non-profit organizations powers that are quintessentially governmental is inherently problematic, for to do so creates private governments without democratic legitimacy or accountability. Accordingly, universities and churches should be allowed to have security employees, who are empowered to guard the assets and enforce organizational rules yet without weapons and the power to arrest. Instead, they should be able to the local police rather than assume such governmental powers themselves. Otherwise, I fear the perpetuation of private governments—even at state universities!—with little or no real accountability. In a democracy, such a sordid spread should be a matter of concern rather than indifference or support.


[1] Ian Lovett, “Alabama Church Wants Police Force,” The New York Times, April 17, 2017.
[2] Ibid.
[3] Ibid.
[4] “Police Power,” Encycyclopaedia Britannica (accessed 4/18/2017)
[5] Ian Lovett, “Alabama Church Wants Police Force,” The New York Times, April 17, 2017.
[6] Ibid.