State loses round in Colorado Christian case
Thursday, July 24, 2008Written by: Todd Engdahl
There’s lots of chatter – and some misinformation – floating around about the Wednesday ruling by the 10th U.S. Circuit Court of Appeals that found the Colorado Commission on Higher Education was wrong in barring Colorado Christian University students from various state financial aid programs. (See opinion.)
A federal district judge ruled in favor of the state last year. (See opinion.)
The commission relied on a state law that bars aid that helps “pervasively sectarian” institutions. (See state law here. IBy the way, the same law bars for-profit schools from participating in aid programs. No money if you go the University of Phoenix)
The three-judge appellate panel disagreed, writing, “We find the exclusion unconstitutional for two reasons: the program expressly discriminates among religions without constitutional justification, and its criteria for doing so involve unconstitutionally intrusive scrutiny of religious belief and practice. We reverse, and order that summary judgment be granted in favor of the university.”
The ruling noted that the University of Denver, nominally Methodist, and Regis University, a Jesuit institution, participate in state scholarship programs and the College Opportunity Fund student stipends. (Spend a day on any of the campuses, though, and you’ll agree that CCU is a very different institution from DU or Regis.)
The case attracted all sorts of high-profile liberal and conservative groups as “friends of the court” on the both sides, including the NEA, CEA, AFT and national PTA.
The appellate ruling drew predictable huffing and puffing from local leaders of the ACLU and Progress Now.
But, quite frankly, the ruling makes a fair amount of sense. It is constitutionally risky business to have CCHE bureaucrats making decisions about what “pervasively sectarian” means. It would be better to draw a bright line barring participation by any institution with any religious tie.
And, it would be far better to bar any private institution.
Which brings us to the COF. (The case, by the way, is not just about the COF. The dispute started in 2003, before the stipends were created, when Colorado Christian applied to participate in existing scholarship programs. The CCHE denied the application.)
The COF is not a scholarship program; it’s a discount applied to any resident student’s bill if they apply for it, regardless of grades or family income.
The COF really isn’t a program at all; it’s an accounting trick dreamed up by the legislature during hard times in 2004 to get around the Taxpayer’s Bill of Rights. COF money, topped off with another financial fiction named “fee for service,” allows state colleges and universities to get state money as “enterprises” that aren’t subject to TABOR limits.
Since COF and fees for service are just plain old tax dollars with different names, those tax dollars ought to be spent only for their original purpose – the funding of state colleges and universities.
July 24th, 2008 at 5:29 pm
Alan, I think you’ve picked up on the core logic of the opinion — the entanglement entailed by asking the CCHE to make this determination. At the same time, I wonder what’s left of the state constitution’s provision that tries to keep religious institutions separate from the government.
Look at the wording of art. 9, § 7: “Neither the general assembly, nor any county, city, town, township, school district or other public corporation, shall ever make any appropriation, or pay from any public fund or moneys whatever, anything in aid of any church or sectarian society, or for any sectarian purpose, or to help support or sustain any school, academy, seminary, college, university or other literary or scientific institution, controlled by any church or sectarian denomination whatsoever; nor shall any grant or donation of land, money or other personal property, ever be made by the state, or any such public corporation to any church, or for any sectarian purpose.”
As the 10th Circuit panel pointed out, that ship sailed a while back with regard to higher education. In 1982 (Americans United for
Separation of Church & State Fund v. Colorado, 648 P.2d 1072), the CO Supreme Court upheld aid to students attending sectarian colleges and universities, reasoning that “the aid is designed to assist the student, not the institution,” id. at 1083. I don’t read art. 9, § 7 to allow that sort of wiggle room. But the law is what it is, and the new 10th Circuit opinion is indeed a logical extension of prior law.