Colorado Christian University Case: EC & Compelling Interest

[Christopher C. Lund]

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: marty.lederman at comcast.netTo: religionlaw at lists.ucla.eduSubject: Re: Colorado Christian University Case: EC & Compelling InterestDate: 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.)   -------------- 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. > _______________________________________________> To post, send message to Religionlaw at lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw> > Please note that messages sent to this large list cannot be viewed as private. > Anyone can subscribe to the list and read messages that are posted; people can > read the Web archives; and list members can (rightly or wrongly) forward the > messages to others.> > >   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.> > >        > ---------------------------------Yahoo! oneSearch: Finally,  mobile search that gives answers, not web links.  
--Forwarded Message Attachment--From: nebraskalawprof at yahoo.comTo: religionlaw at lists.ucla.eduSubject: Re: Colorado Christian University Case: EC & Compelling InterestDate: Tue, 24 Jul 2007 20:39:03 +0000
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 allreligious 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.
 
Rickmarty.lederman at comcast.net wrote:
style="PADDING-LEFT: 5px; MARGIN-LEFT: 5px; BORDER-LEFT: #1010ff 2px solid">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 attend25 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 > WelptonProfessor 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 InterestDate: Tue, 24 Jul 2007 15:16:44 +0000
Doug Laycock writes:
 
"I don't know much aboutthis 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. _______________________________________________To post, send message to Religionlaw at lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.

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 ofus 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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