Colorado Christian University Case: EC & Compelling Interest
nebraskalawprof at yahoo.com
Thu Jul 26 09:27:42 PDT 2007
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.
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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