OK, one last try -- apologies in advance to all those of you who have read this
many times over, but obviously I'm not doing a very good job making my point.
Let's put it this way: If the Colorado legislature had never enacted a law
mentioning "pervasively sectarian schools," the result in this case would be
exactly the same. The Colorado Constitution, according to the Court,
"expressly prohibits the use of public funds for religious education" --
period, in all schools. (I don't know whether that's a proper construction of
the Colorado Constitution -- an interesting question under state law, I
suppose.) Any aid going to CCU would necessarily subsidize religious education
and mandatory participation in religious services. So CCU could never receive
any aid -- even if no statute had ever been enacted. And that's not true of
Denver and Regis -- at both of those schools, a student could readily receive
the aid and use it on a wholly secular education. So those schools could
participate at least some of the time, i.e., in cases where the aid will not
subsidize religious indoctrination. There are, by stipulation, no such cases
at CCU.
Denominational discrimination has nothing to do with it.
One might argue -- perhaps folks such as Rick and Mark S. and possibly Doug
would argue -- that it is unconstitutional for the Colorado Constitution to
prohibit subsidizing religious indoctrination in some or all of these programs.
That's fair -- but it would run up against Locke in the context of "indirect"
funding programs, and would be inconsistent with Mitchell, Bowen v. Kendrick,
and numerous other precedents in the context of direct-aid programs.
If one accepts, however, that Colorado can decline to subsidize
faith-transformative education and ritual, as Locke suggests, then the case was
rightly decided, and does not implicate Larson.
----- Original Message -----
From: Rick Duncan
To: Law & Religion issues for Law Academics
Sent: Thursday, July 26, 2007 11:27 AM
Subject: RE: Colorado Christian University Case: EC & Compelling Interest
Christopher Lund writes:
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 think Prof. Lund makes several good points here. First, it is clear that
the classification made by Colorado between pervasively sectarian and
non-pervasively sectarian religious colleges constitutes denominational
discrimination. Imagine a Colorado zoning law that limited special use permits
in a particular zone to "colleges or universities that are not pervasively
sectarian?" Surely, this law violates the EC under Larson.
Moreover, whatever the EC may once have said about indirect funding of
pervasively sectarian schools, it is now completely clear that the EC permits
indirect funding of all religious colleges and that the EC continues to
prohibit denominational discrimination. In other words, the existing EC no
longer speaks with a forked tongue on this issue--states may include all
religious colleges in indirect scholarship programs and states may not engage
in denominational discrimination. Funding issues are always difficult under the
EC, but unequal funding along denominational lines continues to strike at the
heart of the EC's proscription of religious establishments.
If Colorado wishes to withhold funding from religious education, it should
withhold funding from all religious colleges and cease its practice of
discriminatory religious classifications. Or, it should accept the SCt's modern
notion that a neutral private choice scholarship program funds private
educational choices for everyone and does not advance or endorse any religion.
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.
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