Exclusion of students who go to "pervasively religious" colleges from tuition assistance programs

[Volokh, Eugene]

	Colorado Christian University v. Baker, 2007 WL 1489801 (D. Colo. May 18), holds that a state may constitutionally exclude students who go to "pervasively religious" colleges from generally applicable tuition assistance programs.

	This does not violate the Free Exercise Clause, the court says, citing Locke v. Davey; there is no constitutionally significant distinction, it concludes, between excluding devotional theology students and excluding all students who go to pervasively religious colleges.

	It also does not violate the Establishment Clause no-discrimination-among-denominations rule, the court concludes.  Under Larson v. Valente, the court says, the distinction between pervasively sectarian colleges and other religious colleges does indeed trigger strict scrutiny.  ("Colorado's tuition assistance programs similarly differentiate among sectarian institutions. It gives tuition assistance to those which segregate religious indoctrination from secular education, and denies assistance to those which, by policy or doctrine, freely mix the two. In such situations, Larson directs that the Court analyze CCU's Establishment Clause claim by applying the strict scrutiny test.")  But, the court concludes, the program is justified by "Colorado's antiestablishment interest in avoiding governmental aid for religious instruction, as mandated by Article IX, § 7 of the Colorado constitution, [which] is a compelling one."  

	Oddly, the court cites Widmar v. Vincent, 454 U.S. 263, 271 (1981), for the proposition that "We agree that the interest of the University in complying with its constitutional obligations may be characterized as compelling," but doesn't acknowledge that this statement referred only to *federal* constitutional obligations, and that the Widmar court ultimately rejected the interest in complying with the state constitution.  (I quote from Widmar:  "[T]he University claims a compelling interest in complying with the applicable provisions of the Missouri Constitution.  The Missouri courts have not ruled whether a general policy of accommodating student groups, applied equally to those wishing to gather to engage in religious and nonreligious speech, would offend the State Constitution.  We need not, however, determine how the Missouri courts would decide this issue.  It is also unnecessary for us to decide whether, under the Supremacy Clause, a state interest, derived from its own constitution, could ever outweigh free speech interests protected by the First Amendment.  We limit our holding to the case before us.  On one hand, respondents' First Amendment rights are entitled to special constitutional solicitude.  Our cases have required the most exacting scrutiny in cases in which a State undertakes to regulate speech on the basis of its content.  On the other hand, the state interest asserted here--in achieving greater separation of church and State than is already ensured under the Establishment Clause of the Federal Constitution--is limited by the Free Exercise Clause and in this case by the Free Speech Clause as well. In this constitutional context, we are unable to recognize the State's interest as sufficiently 'compelling' to justify content-based discrimination against respondents' religious speech."  Changing "the Free Speech Clause" to "the Establishment Clause" would make Widmar reach the opposite result on the strict scrutiny question from the one the court reached here, though it might be that the court was wrong to require strict scrutiny.)

	Any thoughts?

	Eugene