Federal Court Strikes Down Colorado Law Limiting College Scholarships to Exclude “Pervasively Sectarian” Schools

A very interesting decision has emerged out of the United States Court of Appeals for the Tenth Circuit. Former law school professor (and potential candidate for the Supreme Court) Michael W. McConnell wrote the opinion that the limitation to colleges other than those “pervasively sectarian” violates the Constitution as discrimination against certain religions.

Under the statute, students may use the scholarships at schools that are not pervasively sectarian under the following guidelines:

An institution of higher education shall be deemed not to be pervasively sectarian if it meets the following criteria:
(a) The faculty and students are not exclusively of one religious persuasion.
(b) There is no required attendance at religious convocations or services.
(c) There is a strong commitment to principles of academic freedom.
(d) There are no required courses in religion or theology that tend to indoctrinate or proselytize.
(e) The governing board does not reflect nor is the membership limited to persons of any particular religion.
(f) Funds do not come primarily or predominantly from sources advocating a particular religion.

Id. §§ 23-3.5-105, -3.3-101(3)(d), -3.7-104. It is obviously a poorly conceived law and the Tenth Circuit held that its discriminates between religion and requires an unduly “intrusive scrutiny of religious belief and practice.” McConnell notes that “[e]ven assuming that it might, in some circumstances, be permissible for states to pick and choose among eligible religious institutions, a second line of Supreme Court precedents precludes their doing so on the basis of intrusive judgments regarding contested questions of religious belief or practice.”

The statute was motivated by a line of cases that has now been changed, as the Court noted in this opinion:

The legislative history suggests that the legislature designed these statutes to make funds available as broadly as was thought permissible under the Supreme Court’s then-existing Establishment Clause doctrine. See Americans United for Separation of Church & State Fund v. Colorado, 648 P.2d 1072, 1075 (Colo. 1982) (describing the “pervasively sectarian” provision as “an attempt to conform
to First Amendment doctrine.”). When the provision was first adopted in 1977, Supreme Court precedents held “that no state aid at all [may] go to institutions that are so ‘pervasively sectarian’ that secular activities cannot be separated from sectarian ones,” Roemer v. Bd. of Pub. Works, 426 U.S. 736, 755 (1976) (citing Hunt v. McNair, 413 U.S. 734 (1973)), and the Court struck down in their entirety state statutes that contained insufficient safeguards against the direct funding of pervasively sectarian institutions. Thus, under the doctrine applicable at the time, “pervasively sectarian” institutions had to be excluded from direct funding programs in order to fund private education at all. Since that time, the Supreme Court has substantially modified its interpretation of the Establishment Clause. Mitchell v. Helms, 530 U.S. 793, 845 (2000) (O’Connor, J., concurring); see, e.g., Zelman v. Simmons-Harris, 536 U.S. 639, 652 (2002); Agostini v. Felton, 521 U.S. 203, 225, 232–34 (1997); Witters v. Washington Dep’t of Services for the Blind, 474 U.S. 481, 488–89 (1986). The parties agree that under current interpretation, the Establishment Clause poses no bar to inclusion of CCU in the Colorado scholarship programs.

The Supreme Court has allowed restrictions on such scholarship as in Locke v. Davey, where it allowed an exclusion of devotional theology majors. This case presents a different question on limiting the schools to primarily sectarian institutions.

The decision could prompt some to try to seek to bar scholarships to all religious schools –whether pervasively secular or not. Many citizens still object to public funds going to religious schools on principle.

The decision in Colorado Christian Univ. v. Weaver could make its way to the Court, which (with the addition of Samuel Alito) could expand the protection for religious institutions. McConnell was well-known as a conservative academic who wrote primarily in the area of the religion clauses (particularly the Establishment Clause) — usually in support of broad interpretations of the protections afforded under those clauses. He was highly respected as an academic and has equal respect as a jurist.

For the opinion, click here.

26 thoughts on “Federal Court Strikes Down Colorado Law Limiting College Scholarships to Exclude “Pervasively Sectarian” Schools”

  1. rafflaw,

    If you can stand to read it get, “The Family” and read the 3rd chapter. You won’t believe how correct you are.

  2. “…have to accept tighter standards on educational content.” and …”that’s it. No piety tests, or questions about content…” needs clarification. I like your plan!


  3. I can agree with Chris’ take on this issue. The hard part is the radical religious right want it to be a Christian nation so they want it all. Notwithstanding what the Constitution requires.

  4. Chris,

    We’re you really thinking a church would try to game the system? 🙂

  5. Close. What I was saying was that churches can decide which side of a fence to sit on. If they’re on one side, they get tax exemption but can’t get involved in politics or financial assistance for their schools (directly or via guaranteed student loans and tuition vouchers). If they’re on the other side, they can be politically involved and get financial assistance, but they lose their tax exempt status and have to accept tighter standards on educational content. Donations to the church would not be tax-deductable, etc.

    That’s it. No piety tests, or questions about content, or anything else. Once you’re identified as a religious organization you can decide which set of rules to play by. You can even change your mind, although there would need to be reasonable restrictions to avoid having groups game the system. (E.g., a church that only pays-to-play for about 12 months every four years. 😉 )

    The small town example is a good question. I can only offer a touchstone question — what would happen if an orthodox Jewish family moved into town? If that family is happy, I’m happy. If they are made uncomfortable in the schools (due to content, not hostile peers), I also have problems.

  6. And as for not providing these private universties tax exemption based on being religious institutions, as far as I know Private Universties are already tax exempt.

    Whether they are religious or not.

  7. Ahh, I see. We’ll, thats a reasonable argument to be sure. After all, the concept of tax exemption for religion does on the surface reek of the mingling of church and state.

    I however see tax exemption a little differently when it comes to providing the tax exemption to the churches.

    Tax exemption is designed to bolster “non profit” organziations, not necessarily “non prophet” ones. (lol)

    The idea of tax exemption is to me, a sort of level playing field for the churches.

    Take tax exemption in contrast to Bush’s (and now, god forbid, Obama’s) “Faith Based Initiatives” program, which essentialy estabilishes a government oversight body to effectively decide “which churches get what”.

    That goes against the very core of the division of church and state and is an affront to the very idea. Tax exemption on the other hand, is a level playing field.

    One church is no more or less, tax exempt, than another. Each one gets the same deduction. No tax is no tax. And that exemption is awarded not for being a religious institution, but a “non profit” one.

    Now, that being said, the obvious issue with that is the clearly not “non profit” nature of some churches, particularly these “mega churches” which make more money per year than most businesses. Some churches even incorporate, and are thus business, like the Mormons for example. Its not a Church. Its a business, and is incorporate as a C Corp, just like any other business. This of course to me runs contrary to the idea of non profit status, and opens the door to huge transfers of wealth and funds without the benefit to our country of fair taxes being paid.

    So its definately a sticky wicket.

    But when it comes to deciding which schools get which funding, and how much, I think the focus needs to shift away from anything religious altogether, and focus on purely academic standards for allocation of federal funding.

    As long as the schools are meeting the academic benchmarks, it shouldn’t matter if they teach Jesus wore Chuck Taylor’s in the shower.

  8. My understanding of what Chris is saying is religious institutions should be obligated to pay taxes. If they pay in there’s no reason for them not to get a pay out. I hope I’m right about that Chris!

  9. In other words, the government is blind of not only religious differences, but religion in general, and sets its benchmarks for awards based solely on academic standards.

  10. Jill, thanks, but I guess I’m not clear on Chris’s solution then.

    It seems he’s talking more about the schools “accepting each other”, when this ruling is about the Government, accepting the schools.

    My answer, or solution, could be summarized as removing any “acid tests” with regards to religious beliefs or practices, and put the onus of the grant dispersal on purely academic standards.

  11. Bartlebee,

    I agree with your last paragraph. That’s why I also think Chris’ anaylsis is the only fair solution to this problem.

  12. Additionaly, removing federal funding of any sort from religious schools based on some perceived “test of piety”, would constitute discrimination against relgious communites, such as many in states like Idaho, where particular relgious faith reflects entire communities and therefore the only higher educational institutions locally maintained are naturally an extension of that relgious belief system.

    Thus entire communities could be discriminated against for their religious beliefs.

    So while the idea of my tax dollars paying for someone to attend Falwell U is unsavory to me, the idea of restricting Falwell U throwbacks from receiving an education, while simultaneously allowing someone at a Methodist college recieve federal funding, is even more unsavory, and goes against any sense of a fair and balanced playing field.

  13. Well as he usually does, rafflaw makes a reasonably sound argument that even approaching the appearence of the mingling of church and state, is in and of itself, undesirable. Recent developments, like George Bush’s “Faith Based Initiatives” program, strikes at the core of our accepted seperation of church and state, and opens a Pandora’s box of likely abuses.

    This ruling does not seem however to be designed to encroach on that merger, as much as merely attempting to “level the playing field”.

    By distinguishing various levels of religious devotion and practice, the state was effectively showing favoritism to some relgions, while showing prejudice towards others.

    From the ruling;

    “The sole function and purpose of the challenged provisions of Colorado law is to exclude some but not all religious institutions on the basis of the stated criteria,”

    “Employing those criteria, the state defendants have decide to allow students at Regis University, a Roman Catholic institution run by the Society of Jesus, and the University of Denver, a Methodist institution, to receive state scholarships, but not students at CCU or Naropa University, a Buddhist institution.

    This is discrimination….”

    Its a sticky wicket, to be sure, whenever making rulings with regards to church and state, but I think this ruling does allow for a more level playing field for everyone involved.

    I think some of the entanglements we find ourselves in here is due to a preoccupation with the relgions, and not focusing on the academic benchmarks required for institutions and their students. If we shift emphasis away from religion, and merely focus on maintaining a common academic model to be used as standard for recieving federal funding, then I think questions like which schools teach which brand of sneakers Jesus wore to temple on Tuesday, might fall back into the background of white noise where they belong, and academia will replace them as the bar that determines these awards.

    In a nutshell, if the school meets the state educational guidelines, then what color bonnet their pastor wears really doesn’t matter.

  14. That’s the point, actually. “Separation” comes down to a handful of issues. Off the top of my head there’s really only five:

    – A ban on religious test for office holders or government employment.

    – Recognition of canonical law for internal disputes.

    – Tax exemption.

    – Inability to advocate individual candidates.

    – No taxpayer funding for education.

    The first two aren’t really controversial. There’s a bit of uncertainty on when actions cross from “canonical” to “civil” law, especially with minors, but that’s about it.

    The last three are where there’s a lot of conflict. We treat them as independent issues, but I don’t think they are. There’s a wall, see, and all you have to do is clearly get on either one side or the other (at least on these issues). If you want one, e.g., tax exemption, you have to accept the others. Or, if you want taxpayer funding or political advocacy, you have to give up tax exemption (and possibly canonical law).

    We get jammed up when groups try to choose some from column A and some from column B.

    edit: okay, there’s one more item. Independence of educational content. This goes both ways, something that’s often forgotten. The same principle that allows public schools to tell creationists to get lost is what allows private schools to tell humanists to get lost.

  15. Chris,
    Your pay to play is an interesting concept and it would be better answer. I would also have less of a concern if the religious organizations were paying taxes. However, there will still be a separation of church and state problem and that is my biggest concern.

  16. I’m sure it’s entirely impractical, but I would favor a “pay to play” approach.

    You want to get politically involved beyond advocation of issues (but not candidates)? Pay taxes.

    You want state funding/scholarships? Pay taxes.

    Beyond that, I don’t really care. You claim your institution is religious in nature and tax exempt? Fine, but don’t expect taxpayer-funded scholarships and loans.

    There are definitely demons in the details. E.g., what if the institution as a whole pays taxes but the instructors, as ordained clergy, do not? What if a student from a tax-paying institution does a semester residency at a non-tax-paying institution, or vice versa.

  17. I’m with you on every beat of that song, rafflaw. Add my voice to the choir. We shouldn’t have to keep singing the song of church/state seperation so often in America, but it seems the religious zealots want their tax-free organizations and tax dollars to boot regardless of the secular laws. State sponsored religious studies. Hmmmm. How very Iranian. How very Taliban. One wonders if those aren’t their models.

  18. I for one am not in favor of tax dollars being spent in religous colleges if a secular course of study is available and not being sought. Otherwise, you could have taxpayer money being spent on seminaries or schools preparing ministers instead of secular coursework. I understand that you can have religous insitutions that are true universities or colleges, Loyola, DePaul and others, but the taxpayer money should go to secular coursework and studies. How you draft that legislation is a tougher job as Colorado has found out here. Does one religous course prevent tax money from being spent on scholarships? How many religous courses would it take to disqualify tax money for scholarships? All tough questions, but I believe that we need to keep tax money out of seminaries and minister preparation schools.

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