I have a somewhat different take than Marty. My sense is that this is
denominational discrimination. If Colorado say had special reporting and
registration requirements, but only for "pervasively sectarian" schools like
CCU (but not for other religious schools), that would fall under Larson, right?
Isn't Larson itself the root of this problem? It was decided in 1982, when the
"pervasively sectarian" rule was in full effect. What that rule meant was that
some denominational discrimination was not just permitted, but constitutionally
required. Larson does not address that wrinkle. But seeing the "pervasively
sectarian" limitation on funding as an implicit exception to Larson's rule
about denominational discrimination seems to be the only way of squaring
Larson's text with the aid cases of that era.
I guess the question now is whether Zelman's approval of indirect aid to
pervasively sectarian institutions makes a Larson claim possible when such
institutions are excluded. I'm not unsympathetic, but it seems a hard argument
to make, especially given the Court's rejection of the EC claim in Locke v.
Davey (fn10).
From: [EMAIL PROTECTED]: [EMAIL PROTECTED]: Re: Colorado Christian University
Case: EC & Compelling InterestDate: Tue, 24 Jul 2007 20:58:40 +0000
Rick, with all respect, I think you're simply ignoring the rationale of the
Colorado statute and constitution. Yes, Colorado permits *some* religiously
affiliated colleges to participate in the programs -- it allows, e.g., aid to
Regis University and the Univ. of Denver -- because *some of those religious
colleges permit their students to obtain a wholly secular education.* The aid
to Regis and Denver, that is to say, does not necessarily support religious
inculcation and "spiritual transformation." Indeed, to the extent those
schools do engage in such activities, the state aid may *not* subsidize such
activities, under both the Federal and State Constitutions. At CCU, by
contrast, virtually all education is religious in nature, and every student
must participate in religious services, and thus state aid would *invariably*
subsidize religious inculcation, which is unconstitutional. That's why CCU is
categorically excluded -- and why it's distinguishable from Regis and Denver.
This simply isn't a case of denominational discrimination. The state aid
cannot be used for any religious teaching or services, full stop -- of *any*
denomination, and at any school, whether it be CCU or Regis or Denver or the
Univ. of Colorado. (Indeed, I assume it also cannot be used to teach the
propriety or virtue of atheism, either.) -------------- Original message
----------------------From: Rick Duncan <[EMAIL PROTECTED]>> Marty: I don't
think Locke controls the much different Free Ex issue in this > case, but
setting aside Locke, Colorado has still engaged in denominational >
discrimination in a Zelman-like, true private choice scholarship program.> >
Under the EC, it is not only permissible to include pervasivlely sectarian >
schools in a voucher program, it is forbidden under Larson to exclude some >
religious colleges while including others. There is no play in the joints issue
> here--the EC forbids discrimination among religions.> > The district ct
correctly recognized the Larson denominational discrimination > violation, but
incorrectly ruled that Colorado has a compelling interest in > discriminating
against some religious colleges.> > If Colorado had chosen to exclude all
religious colleges from the program, the > Larson issue would go away and we
would have to decide how Locke v. Davey & > Lukumi and the FEC applies to a
much different free exercise issue. But Colorado > has chosen to include some
religious colleges and to exclude others from > participation in the program,
and that violates the clearest command of the EC > under Larson. Colorado's
interest in complying with its own, very different, > anti-establishment
concerns under state law do not justify its violation of the > core principle
of the EC under the US Constitution. > > I think CCU should win this case
under Locke & Lukumi and the FEC, but I am > certain it should win this case
under Larson... if Larson is still the law of > the land.> > Rick> >
[EMAIL PROTECTED] wrote:> OK, I've now read the whole opinion, and I think
the court's judgment is > plainly correct under governing doctrine.> > The
crucial point is that CCU's education necessarily invovles inculcation of >
religious truths and "spiritual transformation." "A substantial portion of the
> 'secular' instruction its students receive is inextricably entwined with >
religious indoctrination." "CCU stipulates that its President 'informs incoming
> freshmen that "Everything you learn at CCU will be framed within the
Christian > worldview, integrating your faith and your learning.”' ¶ 16. In an
alumni > publication, the President wrote that 'Education at CCU . . . is
simply more > than students could hope to find in any secular setting, because
[their] > education here has been structured intentionally to foster their
spiritual > transformation.' ¶ 20. . . . CCU admits that it requires all of its
> undergraduate students to attend 25 of the 30 semiweekly chapel services each
> semester. ¶ 37." > > (The label of "pervasively sectarian" is basically being
applied only as a proxy > to make this simple point about the nature of the
education, i.e., that it > involves both instruction on religious "truth" and
compelled religious rituals > -- something that apparently is not disputed.)> >
OK, so if Colorado funded this education, it would be funding prayer, religious
> inculcation, and "spiritual transformation."> > What follows?> > 1. If any of
the aid programs in question is a "direct" aid program, or a > program in which
the school rather than the student applies for the aid -- > something that is
not clear from the bare-bones listing of the aid programs in > footnote 3 --
then such state funding of religious education would violate the > *federal*
Constitution, per Mitchell v. Helms and countless other cases. > > 2. If, on
the other hand, all five of the programs are a type of Zelman-like > "indirect"
aid to students, Colorado *could* fund the CCU religious inculcation > (per
Zelman), but need not do so (per Locke). > > Now, of course the new Court might
very well overrule the entire Mitchell line > of cases *and* Locke. But until
it does so, this decision strikes me as > compelled by the case law.> > >
-------------- Original message ----------------------> From: Rick Duncan > >
Doug Laycock writes:> > > > "I don't know much about this case, but certainly
as Rick describes it, it is > > just the state disagreeing with the federal
rule on denominational > > discrimination."> > > > Doug and others, the CCU
case is a very interesting and (I think) very > > important case making its way
up the system. Here is a link to the district ct > > opinion which is currently
being appealed.> > > > Rick Duncan> > > > > > > > > > > > Rick Duncan > >
Welpton Professor of Law > > University of Nebraska College of Law > > Lincoln,
NE 68583-0902> > > > > > "It's a funny thing about us human beings: not many of
us doubt God's > existence > > and then start sinning. Most of us sin and then
start doubting His existence." > > --J. Budziszewski (The Revenge of
Conscience)> > > > "Once again the ancient maxim is vindicated, that the
perversion of the best > > is the worst." -- Id.> > > > > > > >
---------------------------------> Ready for the edge of your seat? Check out
tonight's top picks on Yahoo! TV. > > From: Rick Duncan <[EMAIL PROTECTED]>>
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>>
Subject: RColorado Christian University Case: EC & Compelling Interest> Date:
Tue, 24 Jul 2007 15:16:44 +0000> > Doug Laycock writes:> > "I don't know
much about this case, but certainly as Rick describes it, it is > just the
state disagreeing with the federal rule on denominational > discrimination.">
> Doug and others, the CCU case is a very interesting and (I think) very >
important case making its way up the system. Here is a link to the district ct
> opinion which is currently being appealed.> > Rick Duncan> > > > > >
Rick Duncan > Welpton Professor of Law > University of Nebraska College of
Law > Lincoln, NE 68583-0902> > > "It's a funny thing about us human
beings: not many of us doubt God's existence > and then start sinning. Most of
us sin and then start doubting His existence." > --J. Budziszewski (The
Revenge of Conscience)> > "Once again the ancient maxim is vindicated,
that the perversion of the best > is the worst." -- Id.> > >
---------------------------------> Ready for the edge of your seat? Check out
tonight's top picks on Yahoo! TV. >
_______________________________________________> To post, send message to
Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get
password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw> >
Please note that messages sent to this large list cannot be viewed as private.
> Anyone can subscribe to the list and read messages that are posted; people
can > read the Web archives; and list members can (rightly or wrongly) forward
the > messages to others.> > > Rick Duncan > Welpton Professor of Law >
University of Nebraska College of Law > Lincoln, NE 68583-0902> > > "It's
a funny thing about us human beings: not many of us doubt God's existence > and
then start sinning. Most of us sin and then start doubting His existence." >
--J. Budziszewski (The Revenge of Conscience)> > "Once again the ancient
maxim is vindicated, that the perversion of the best > is the worst." -- Id.> >
> > ---------------------------------Yahoo! oneSearch: Finally, mobile
search that gives answers, not web links.
--Forwarded Message Attachment--From: [EMAIL PROTECTED]: [EMAIL PROTECTED]: Re:
Colorado Christian University Case: EC & Compelling InterestDate: Tue, 24 Jul
2007 20:39:03 +0000
Marty: I don't think Locke controls the much different Free Ex issue in this
case, but setting aside Locke, Colorado has still engaged in denominational
discrimination in a Zelman-like, true private choice scholarship program.
Under the EC, it is not only permissible to include pervasivlely sectarian
schools in a voucher program, it is forbidden under Larson to exclude some
religious colleges while including others. There is no play in the joints issue
here--the EC forbids discrimination among religions.
The district ct correctly recognized the Larson denominational discrimination
violation, but incorrectly ruled that Colorado has a compelling interest in
discriminating against some religious colleges.
If Colorado had chosen to exclude allreligious colleges from the program, the
Larson issue would go away and we would have to decide how Locke v. Davey &
Lukumi and the FEC applies to a much different free exercise issue. But
Colorado has chosen to include some religious colleges and to exclude others
from participation in the program, and that violates the clearest command of
the EC under Larson. Colorado's interest in complying with its own, very
different, anti-establishment concerns under state law do not justify its
violation of the core principle of the EC under the US Constitution.
I think CCU should win this case under Locke & Lukumi and the FEC, but I am
certain it should win this case under Larson... if Larson is still the law of
the land.
[EMAIL PROTECTED] wrote:
style="PADDING-LEFT: 5px; MARGIN-LEFT: 5px; BORDER-LEFT: #1010ff 2px solid">OK,
I've now read the whole opinion, and I think the court's judgment is plainly
correct under governing doctrine.The crucial point is that CCU's education
necessarily invovles inculcation of religious truths and "spiritual
transformation." "A substantial portion of the 'secular' instruction its
students receive is inextricably entwined with religious indoctrination." "CCU
stipulates that its President 'informs incoming freshmen that "Everything you
learn at CCU will be framed within the Christian worldview, integrating your
faith and your learning.”' ¶ 16. In an alumni publication, the President wrote
that 'Education at CCU . . . is simply more than students could hope to find in
any secular setting, because [their] education here has been structured
intentionally to foster their spiritual transformation.' ¶ 20. . . . CCU admits
that it requires all of its undergraduate students to attend25 of the 30
semiweekly chapel services each semester. ¶ 37." (The label of "pervasively
sectarian" is basically being applied only as a proxy to make this simple point
about the nature of the education, i.e., that it involves both instruction on
religious "truth" and compelled religious rituals -- something that apparently
is not disputed.)OK, so if Colorado funded this education, it would be funding
prayer, religious inculcation, and "spiritual transformation."What follows?1.
If any of the aid programs in question is a "direct" aid program, or a program
in which the school rather than the student applies for the aid -- something
that is not clear from the bare-bones listing of the aid programs in footnote 3
-- then such state funding of religious education would violate the *federal*
Constitution, per Mitchell v. Helms and countless other cases. 2. If, on the
other hand, all five of the programs are a type of Zelman-like "indirect"aid to
students, Colorado *could* fund the CCU religious inculcation (per Zelman), but
need not do so (per Locke). Now, of course the new Court might very well
overrule the entire Mitchell line of cases *and* Locke. But until it does so,
this decision strikes me as compelled by the case law.-------------- Original
message ----------------------From: Rick Duncan > Doug Laycock writes:> > "I
don't know much about this case, but certainly as Rick describes it, it is >
just the state disagreeing with the federal rule on denominational >
discrimination."> > Doug and others, the CCU case is a very interesting and (I
think) very > important case making its way up the system. Here is a link to
the district ct > opinion which is currently being appealed.> > Rick Duncan> >
> > > > Rick Duncan > WelptonProfessor of Law > University of Nebraska College
of Law > Lincoln, NE 68583-0902> > > "It's a funny thing about us human beings:
not many of us doubt God's existence > and then start sinning. Most of us sin
and then start doubting His existence." > --J. Budziszewski (The Revenge of
Conscience)> > "Once again the ancient maxim is vindicated, that the perversion
of the best > is the worst." -- Id.> > > >
---------------------------------Ready for the edge of your seat? Check out
tonight's top picks on Yahoo! TV. From: Rick Duncan <[EMAIL PROTECTED]>To: Law
& Religion issues for Law Academics <religionlaw@lists.ucla.edu>Subject:
RColorado Christian University Case: EC & Compelling InterestDate: Tue, 24 Jul
2007 15:16:44 +0000
Doug Laycock writes:
"I don't know much aboutthis case, but certainly as Rick describes it, it is
just the state disagreeing with the federal rule on denominational
discrimination."
Doug and others, the CCU case is a very interesting and (I think) very
important case making its way up the system. Here is a link to the district ct
opinion which is currently being appealed.
Rick Duncan
Rick Duncan Welpton Professor of Law University of Nebraska College of Law
Lincoln, NE 68583-0902
"It's a funny thing about us human beings: not many of us doubt God's existence
and then start sinning. Most of us sin and then start doubting His existence."
--J. Budziszewski (The Revenge of Conscience)
"Once again the ancient maxim is vindicated,that the perversion of the best is
the worst." -- Id.
Ready for the edge of your seat? Check out tonight's top picks on Yahoo! TV.
_______________________________________________To post, send message to [EMAIL
PROTECTED] subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that
messages sent to this large list cannot be viewed as private. Anyone can
subscribe to the list and read messages that are posted; people can read the
Web archives; and list members can (rightly or wrongly) forward the messages to
others.
Rick Duncan Welpton Professor of Law University of Nebraska College of Law
Lincoln, NE 68583-0902
"It's a funny thing about us human beings: not many ofus doubt God's existence
and then start sinning. Most of us sin and then start doubting His existence."
--J. Budziszewski (The Revenge of Conscience)
"Once again the ancient maxim is vindicated, that the perversion of the best is
the worst." -- Id.
Yahoo! oneSearch: Finally, mobile search that gives answers, not web links.
_________________________________________________________________
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To subscribe, unsubscribe, change options, or get password, see
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