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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