Colorado Christian University Case: EC & Compelling Interest

Marty Lederman marty.lederman at
Thu Jul 26 10:58:58 PDT 2007

OK, one last try -- apologies in advance to all those of you who have read this many times over, but obviously I'm not doing a very good job making my point.

Let's put it this way:  If the Colorado legislature had never enacted a law mentioning "pervasively sectarian schools," the result in this case would be exactly the same.  The Colorado Constitution, according to the Court, "expressly prohibits the use of public funds for religious education" -- period, in all schools.  (I don't know whether that's a proper construction of the Colorado Constitution -- an interesting question under state law, I suppose.)  Any aid going to CCU would necessarily subsidize religious education and mandatory participation in religious services.  So CCU could never receive any aid -- even if no statute had ever been enacted.  And that's not true of Denver and Regis -- at both of those schools, a student could readily receive the aid and use it on a wholly secular education.  So those schools could participate at least some of the time, i.e., in cases where the aid will not subsidize religious indoctrination.  There are, by stipulation, no such cases at CCU.

Denominational discrimination has nothing to do with it. 

One might argue -- perhaps folks such as Rick and Mark S. and possibly Doug would argue -- that it is unconstitutional for the Colorado Constitution to prohibit subsidizing religious indoctrination in some or all of these programs.  That's fair -- but it would run up against Locke in the context of "indirect" funding programs, and would be inconsistent with Mitchell, Bowen v. Kendrick, and numerous other precedents in the context of direct-aid programs.

If one accepts, however, that Colorado can decline to subsidize faith-transformative education and ritual, as Locke suggests, then the case was rightly decided, and does not implicate Larson.

  ----- Original Message ----- 
  From: Rick Duncan 
  To: Law & Religion issues for Law Academics 
  Sent: Thursday, July 26, 2007 11:27 AM
  Subject: RE: Colorado Christian University Case: EC & Compelling Interest

  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.

  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.

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