Hey, Chris. It's not as if Colorado has it in for "pervasively sectarian"
schools. It has a constitutional mandate not to provide aid that will go to
religious education -- at any schools, pervasively sectarian or otherwise . . .
or secular, for that matter. For ease of administration of this constitutional
rule, the legislature then passed a statute that simply provides that if all of
a school's pedagogy is taught from a perspective of religious transformation
(or, in any event, if every student is required to take such classes and engage
in religious exercises), then that school is entirely ineligible for aid,
because the aid would invariably be used in a way that is unconstitutional.
That's not the case at Regis and Denver -- a student can attend those schools
without the aid being put to religious uses, and therefore the question of aid
to those schools must be assessed on a case-by-case basis. Such a
case-specific analysis would be pointless, however, at CCU because, as CCU
concedes, if the aid were used at CCU, it would necessarily be used for
religious inculcation.
Honestly, I just don't see how this even implicates the concern about
denominational discrimination.
----- Original Message -----
From: Christopher C. Lund
To: Law & Religion issues for Law Academics
Sent: Wednesday, July 25, 2007 3:29 PM
Subject: RE: Colorado Christian University Case: EC & Compelling Interest
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]
To: religionlaw@lists.ucla.edu
Subject: Re: Colorado Christian University Case: EC & Compelling Interest
Date: 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.) _______________________________________________
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