4th Cir rules in Columbia Union College v. Clarke

[Volokh, Eugene]

        It seems to me that, as with constitutional antidiscrimination
rules generally, the inquiry should be into whether the program facially
or intentionally discriminates, and not into the effect.  Excluding
religious groups because of their religiosity should be
unconstitutional.  Excluding groups based on a criterion that's just
pretext for religiosity should also be unconstitutional.  But subjecting
all groups to an evenhanded, bona fide criterion that doesn't turn on
the recipient's religiosity -- e.g., the willingness to teach certain
subjects or nondiscrimination -- should be OK under the Lukumi equal
treatment principle, even if it disproportionately affects certain
groups.

        I realize that it's often hard to tell when a facially neutral
criterion is mere pretext for intentional discrimination; but this is
something we live with in the Equal Protection Clause context, and I
think we can live with it in the Lukumi context.  And of course the
current debate is about whether *facially* discriminatory rules are
proper -- or even required!


Mark Rahdert writes:

>         I understand that some on the list would argue that a program
> which
> categorically excludes pervasively sectarian institutions would more
> than
> incidentally burden religion, but what if the government characterized
> the
> exclusion some other way (say, in terms of the portion of the school
> budget
> devoted to teaching certain subjects, or limiting funds to
> institutions that
> do not discriminate on the basis of religion) that had a comparable
> effect?
> Put another way, if the government decides to fund private college
> education
> at all, is it constitutionally *required* to fund pervasively
> sectarian
> college education?
>
> Mark Rahdert
> Temple Law School