May 21, 2007

How Sectarian Is Too Sectarian?

A federal judge ruled Friday that Colorado is entitled to bar state scholarship funds from going to students at “pervasively sectarian” institutions.

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The ruling rejected a suit brought by Colorado Christian University, which did not challenge a state agency’s determination of the university’s religious nature, but said that applying a test of whether an institution is “pervasively sectarian” amounts to a violation of some religious institutions’ freedom to express their faiths. But Judge Marcia S. Krieger ruled that despite a general skepticism in federal courts of late about barring religious institutions from receiving government funds, Supreme Court rulings still gave Colorado the right to limit the use of its funds as the state has done.

The ruling could be significant beyond Colorado. The university is taking the case to a federal appeals court, where any ruling will have more value as a precedent. The U.S. Justice Department is also involved in the case — and tried to use it (without success before Judge Krieger) to ease the process by which religious colleges receive government aid. The university is also receiving support from the Alliance Defense Fund, which has been quite successful in challenging limits on religious groups in higher education. In fact, the decision is notable in being a rare victory for strict separation of church and state in higher education — at a time when many courts have been adopting a more porous church-state wall in academe.

At issue are a series of student aid programs created by Colorado for state residents who attend colleges, public and private, in the state. A Colorado student at a private college in the state could gain $2,500 a year in assistance under the programs. Students are not barred from using the grants at any religious college and the funds flow to Regis University and the University of Denver, which are Roman Catholic and Methodist institutions, respectively.

The Colorado Commission on Higher Education found that Colorado Christian University — unlike Regis and Denver — fit certain characteristics of “pervasively sectarian” in that its faculty and student body must share certain religious views, participation in religious services and theological instruction is required, and so forth. The university has never shied away from its religious identity, which is clear in its Statement of Faith, which declares the Bible infallible.

The university’s challenge was based on the fact that its students have similar majors to those at other public and private colleges — business, education, humanities, sciences, etc. The argument was in essence that business students at Colorado Christian are suffering unconstitutional religious discrimination because they enroll at a Christian university instead of a secular one. The Bush administration backed that argument, accusing the state of entering “the dangerous thicket of deciding what is too religious and what is permissibly religious.”

Much of the legal discussion on the case focused on a 2004 Supreme Court ruling known as Locke v. Davey that Washington State was entitled to bar theology students from receiving state student aid. The Bush Justice Department argued that the ruling limited the ability of states to bar student aid from supporting non-theological majors at religious institutions.

Judge Krieger disagreed. She noted that the Locke decision was based on the idea that theology students were not being barred from engaging in their desired programs of study, were not being excluded from public life, and were not being forced to abandon their faith. Rather, Judge Krieger noted the language of the Supreme Court ruling that the state “has merely chosen not to fund a distinct category of instruction.” She said that finding also fit in Colorado.

On the question of students’ majors, Judge Krieger said that wasn’t relevant once an institution had been found to be “pervasively sectarian.” Colorado Christian’s “contention that the bulk of its students major in secular subjects may be nominally accurate, but ignores what it means to be found to be a ‘pervasively sectarian’ institution,” Krieger wrote. She cited a U.S. Supreme Court definition of “pervasively sectarian” as describing “an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission.” And she cited a Colorado Supreme Court definition of such a educational institution as such a place “whose educational function is not clearly separable from its religious mission.”

“CCU’s argument equating the ’secular’ education it offers and secular classes at public and generally sectarian schools such as Regis University and the University of Denver is misplaced, as the fact that those schools have not been found to be ‘pervasively sectarian’ indicates that the secular character of instruction at those schools is readily severable from any religious teaching,” Judge Krieger wrote. “Even though there are classes or programs at CCU designed to prepare students for secular jobs or careers, because CCU is a ‘pervasively sectarian’ institution, even its secular instruction is infused with religious components. Thus the unchallenged determination that CCU is ‘pervasively sectarian’ makes even its secular instruction an ‘essentially religious endeavor,’ akin to the theological instruction in Locke.“

Because the university did not challenge (in the court case) its designation as “pervasively sectarian,” the judge wrote that she did not consider whether the evaluation was fair. But in several footnotes she pointed to evidence suggesting that secular courses at the university may not be the same as those at the University of Colorado at Boulder. For example, she quoted Colorado Christian officials saying that all courses “are framed within the Christian worldview.”

The university issued a statement Friday pledging to appeal and blasting Judge Krieger’s analysis.

“The effect of the ruling is to say that Colorado students will be denied state tuition aid for college if they want to attend a religious school,” said Bill Armstrong, the university’s president. “Judge Marcia S. Krieger’s decision is a setback for the students involved and for religious liberty.”

— Scott Jaschik

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