Colorado Christian University Case: EC & Compelling Interest

Marty Lederman marty.lederman at
Wed Jul 25 14:51:21 PDT 2007

Hey, Chris.  It's not as if Colorado has it in for "pervasively sectarian" schools.  It has a constitutional mandate not to provide aid that will go to religious education -- at any schools, pervasively sectarian or otherwise . . . or secular, for that matter.  For ease of administration of this constitutional rule, the legislature then passed a statute that simply provides that if all of a school's pedagogy is taught from a perspective of religious transformation (or, in any event, if every student is required to take such classes and engage in religious exercises), then that school is entirely ineligible for aid, because the aid would invariably be used in a way that is unconstitutional.  That's not the case at Regis and Denver -- a student can attend those schools without the aid being put to religious uses, and therefore the question of aid to those schools must be assessed on a case-by-case basis.  Such a case-specific analysis would be pointless, however, at CCU because, as CCU concedes, if the aid were used at CCU, it would necessarily be used for religious inculcation.

Honestly, I just don't see how this even implicates the concern about denominational discrimination.  
  ----- Original Message ----- 
  From: Christopher C. Lund 
  To: Law & Religion issues for Law Academics 
  Sent: Wednesday, July 25, 2007 3:29 PM
  Subject: RE: Colorado Christian University Case: EC & Compelling Interest

      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
      To: religionlaw at
      Subject: Re: Colorado Christian University Case: EC & Compelling Interest
      Date: 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.) 
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