Just a brief response to Marty.
1.The tuition assistance programs in the case are Witters-Zelman-Davey
indirect, private choice programs. So there is no doubt that the EC permits
Colorado to include all religious colleges, including pervasively sectarian
religious colleges, in the program.
2. Not only does the EC permit Colorado to include pervasively sectarian
schools in the scholarship program, the EC also forbids Colrado from engaging
in denominational discrimination.
3. Colrado has indeed engaged in intentional discrimination by explicitly
excluding some religious colleges and including other religious colleges. I
quote from the district ct's opinion in the case:
The term pervasively sectarian is statutorily defined in C.R.S. §
23-3.5.105. That definition is supplied in the negative: an institution is not
pervasively sectarian if it meets six criteria: (i) the faculty and students
are not exclusively of one religious persuasion; (ii) there is no required
attendance at religious convocations or services; (iii) there is a strong
commitment to principles of academic freedom; (iv) there are no required
courses in religion or theology that tend to indoctrinate or proselytize; (v)
the governing board does not reflect, nor is the membership limited to, persons
of any particular religion; and (vi) funds do not come primarily or
predominantly from sources advocating a particular religion.
4. The dist ct correctly viewed this as denominational discrimination:
In Larson, the state of Minnesota amended its registration and reporting
requirements for charities engaging in monetary solicitation by partially
revoking a blanket exemption for religious organizations. Under the new scheme,
religious organizations that received more than half of their total
contributions from members or affiliated organizations were required to comply
with the registration and reporting requirements. The Supreme Court found that
the new rule impermissibly distinguished between well-established churches on
the one hand, and churches which are new and lacking in a constituency on the
other, or between churches who, as a matter of policy or doctrine, favor public
solicitation over general reliance on financial support from members. Id. at
246 n. 23. Explaining that the Lemon test was intended to apply to laws
affording a uniform benefit to all religions, and not to provisions ... that
discriminate among religions, id. at 252 (footnote omitted),
the Court instead analyzed the constitutionality of the statute by simply
applying the strict scrutiny test, requiring that the statutory classification
be justified by a compelling governmental interest and be closely fitted to
further that interest. Id. at 247. Colorado's tuition assistance programs
similarly differentiate among sectarian institutions. It gives tuition
assistance to those which segregate religious indoctrination from secular
education, and denies assistance to those which, by policy or doctrine, freely
mix the two. In such situations, Larson directs that the Court analyze CCU's
Establishment Clause claim by applying the strict scrutiny test.
5. I can't accept that Colrado's antiestablishment interest in not funding
scholarships for students attending pervasively sectarian religious colleges
justifies a violation of what the Supreme Court has called the "clearest
command of the Establishment Clause." Colorado may exclude all religious
colleges from its scholarship program and thereby follow its own
anti-establishment rules without violating the principle of denominational
equality under the federal EC. We would still have a Locke v. Davey Free Ex
issue, but the Larson problem would go away. But so long as Colorado insists on
providing scholarships for students who attend certain religious colleges,
while denying scholarships to students who attend other religious colleges, it
will be in flagrant violation of the EC & Larson.
Cheers, Rick Duncan
[EMAIL PROTECTED] wrote:
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.)
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.
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