Welcome to the Religion Section of our webpage. This front page will reflect our most current information on either constitutional law or statutory law on religion affecting educational institutions.

 

Colorado Christian University v. Weaver, et al.  (No. 07-1247) (10th Cir. July 23, 2008)

The court in this case found a state scholarship program, which provided scholarships to eligible students who attended any accredited college in the in the state of Colorado, unconstitutional to the extent that is excluded from the program any college deemed to be pervasively sectarian. Colorado Christian University (CCU), after being excluded from the program as pervasively sectarian, brought suit claiming violation of the First and Fourteenth Amendments. The district court held for the state, but the Court of Appeals for the 10th Circuit reversed and granted summary judgment in favor of the university.

 

The Court of Appeals found the program unconstitutional for two reasons: The program expressly discriminates among religions without constitutional justification, and its criteria for doing so involves unconstitutional scrutiny of religious belief and practice.

 

The parties agreed that the Establishment Clause posed no bar to inclusion of CCU in the program. The Colorado legislature had not yet repealed its statutory restriction on "pervasively sectarian" schools. The dispute thus focused on whether a state may choose to exclude pervasively sectarian institutions, even when not required to, and the court concluded it may not.

 

On the discussion of discriminating among religions, the court pointed out that the program allowed attendance with the scholarship money at "sectarian" schools,  but not *pervasively* sectarian schools, thus " Colorado necessarily and explicitly discriminates among religious institutions." The court quoted the Columbia Union College case (4th Cir.) which concluded that the pervasive sectarian test should be abandoned. On the question of entanglement, the court noted as follows:

 

The Colorado provisions challenged here are fraught with entanglement problems. The most potentially intrusive element of the Colorado statute is the criterion requiring Commission staff to decide whether any theology courses required by the university “tend to indoctrinate or proselytize.”  ***  To decide that these syllabi were likely “to convince” the students of religious truths, the Commission had to decide how religious beliefs are derived and to discern the boundary between religious faith and academic theological beliefs. *** Commission officials testified that they demanded to see CCU’s religious education curriculum, and (for reasons known only to themselves) determined that it “tend[ed] to indoctrinate or proselytize.” The line drawn by the Colorado statute, between “indoctrination” and mere education, is highly subjective and susceptible to abuse.

In the conclusion, the court noted quite strongly:

We cannot and will not uphold a statute that abridges an enumerated constitutional right on the basis of a factitious governmental interest found nowhere but in the defendants’ litigating papers. But even if saving taxpayers from supporting students who choose a religious education were an actual state interest, it would still fail because the statute is not narrowly tailored to this asserted goal.

For more, see the July 24, 2008 Inside Higher Ed article titled U.S. Court Rejects Pervasively Sectarian Test.   





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