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.