Colorado Christian University Case: EC & Compelling Interest

[Douglas Laycock]

  Fn.23 of /Larson/ seems to distinguish disparate impact from
deliberate gerrymandering.  The footnote is nearly a page long but
the heart of it is this:

  The statute "is not simply a facially neutral statute, the
provisions of which happen to have a 'disparate impact' upon
different religious organizations. On the contrary, [the section]
makes explicit and deliberate distinctions between different
religious organizations."

  Of course most distinctions are deliberate, but in the context of
the facts and the rest of the opinion, I thake this to mean
distinctions deliberately intended to eliminate the Unification
Church and groups that were similar to it in the view of the
legislature.

  Quoting marty.lederman at comcast.net:

> 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.)
>
>
> -------------- Original message ----------------------
> From: Rick Duncan <nebraskalawprof at yahoo.com>
>> Marty: I don't think Locke controls the much different Free Ex
issue in this
>> case, but setting aside Locke, Colorado has still engaged in
denominational
>> discrimination in a Zelman-like, true private choice scholarship
program.
>>
>>    Under the EC, it is not only permissible to include pervasivlely
sectarian
>> schools in a voucher program, it is forbidden under Larson to
exclude some
>> religious colleges while including others. There is no play in the

>> joints issue
>> here--the EC forbids discrimination among religions.
>>
>>    The district ct correctly recognized the Larson denominational 
>> discrimination
>> violation, but incorrectly ruled that Colorado has a compelling
interest in
>> discriminating against some religious colleges.
>>
>>    If Colorado had chosen to exclude all religious colleges from
the
>> program, the
>> Larson issue would go away and we would have to decide how Locke
v. Davey &
>> Lukumi and the FEC applies to a much different free exercise
issue.
>> But Colorado
>> has chosen to include some religious colleges and to exclude
others from
>> participation in the program, and that violates the clearest
command
>> of the EC
>> under Larson. Colorado's interest in complying with its own, very
different,
>> anti-establishment concerns under state law do not justify its 
>> violation of the
>> core principle of the EC under the US Constitution.
>>
>>    I think CCU should win this case under Locke & Lukumi and the
FEC,
>> but I am
>> certain it should win this case under Larson... if Larson is still

>> the law of
>> the land.
>>
>>    Rick
>>
>> marty.lederman at comcast.net wrote:
>>    OK, I've now read the whole opinion, and I think the court's
judgment is
>> plainly correct under governing doctrine.
>>
>> The crucial point is that CCU's education necessarily invovles 
>> inculcation of
>> religious truths and "spiritual transformation." "A substantial 
>> portion of the
>> 'secular' instruction its students receive is inextricably
entwined with
>> religious indoctrination." "CCU stipulates that its President 
>> 'informs incoming
>> freshmen that "Everything you learn at CCU will be framed within
the
>> Christian
>> worldview, integrating your faith and your learning.”' ¶ 16. In an
alumni
>> publication, the President wrote that 'Education at CCU . . . is
simply more
>> than students could hope to find in any secular setting, because
[their]
>> education here has been structured intentionally to foster their
spiritual
>> transformation.' ¶ 20. . . . CCU admits that it requires all of
its
>> undergraduate students to attend 25 of the 30 semiweekly chapel 
>> services each
>> semester. ¶ 37."
>>
>> (The label of "pervasively sectarian" is basically being applied 
>> only as a proxy
>> to make this simple point about the nature of the education, i.e.,
that it
>> involves both instruction on religious "truth" and compelled 
>> religious rituals
>> -- something that apparently is not disputed.)
>>
>> OK, so if Colorado funded this education, it would be funding 
>> prayer, religious
>> inculcation, and "spiritual transformation."
>>
>> What follows?
>>
>> 1. If any of the aid programs in question is a "direct" aid
program, or a
>> program in which the school rather than the student applies for
the aid --
>> something that is not clear from the bare-bones listing of the aid

>> programs in
>> footnote 3 -- then such state funding of religious education would

>> violate the
>> *federal* Constitution, per Mitchell v. Helms and countless other
cases.
>>
>> 2. If, on the other hand, all five of the programs are a type of
Zelman-like
>> "indirect" aid to students, Colorado *could* fund the CCU
religious
>> inculcation
>> (per Zelman), but need not do so (per Locke).
>>
>> Now, of course the new Court might very well overrule the entire 
>> Mitchell line
>> of cases *and* Locke. But until it does so, this decision strikes
me as
>> compelled by the case law.
>>
>>
>> -------------- Original message ----------------------
>> From: Rick Duncan
>> > Doug Laycock writes:
>> >
>> > "I don't know much about this case, but certainly as Rick 
>> describes it, it is
>> > just the state disagreeing with the federal rule on
denominational
>> > discrimination."
>> >
>> > Doug and others, the CCU case is a very interesting and (I
think) very
>> > important case making its way up the system. Here is a link to
the
>> district ct
>> > opinion which is currently being appealed.
>> >
>> > 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.
>> >
>> >
>> >
>> > ---------------------------------
>> Ready for the edge of your seat? Check out tonight's top picks on
Yahoo! TV.
>>
>> From: Rick Duncan <nebraskalawprof at yahoo.com>
>> To: Law & Religion issues for Law Academics
<religionlaw at lists.ucla.edu>
>> Subject: RColorado Christian University Case: EC & Compelling
Interest
>> Date: Tue, 24 Jul 2007 15:16:44 +0000
>>
>>    Doug Laycock writes:
>>
>>    "I don't know much about this case, but certainly as Rick 
>> describes it, it is
>> just the state disagreeing with the federal rule on denominational
>> discrimination."
>>
>>    Doug and others, the CCU case is a very interesting and (I
think) very
>> important case making its way up the system. Here is a link to the

>> district ct
>> opinion which is currently being appealed.
>>
>>    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.
>>
>>
>> ---------------------------------
>>    Ready for the edge of your seat? Check out tonight's top picks
on
>> Yahoo! TV.
>> _______________________________________________
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>>
>>    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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>

Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713

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