US Dept of Justice On Colorado Christian University Case

From the DOJ Religious Freedom in Focus:

State May Not Discriminate Against Religious Universities in Scholarship Program, Appeals Court Rules

On July 23, the United States Court of Appeals for the Tenth Circuit ruled that Colorado’s exclusion of students attending a nondenominational Christian university from state scholarship and aid programs violated the U.S. Constitution. The court held that denying students scholarships because they choose to attend schools that the state deems to be “pervasively sectarian” violates the Constitution. The United States had filed a friend-of-the-court brief in support of the position adopted by the court in the case, Colorado Christian University v. Weaver.

Colorado provides various scholarships and other aid to students attending private colleges and universities, but does not permit any aid to students attending schools that are “pervasively sectarian,” regardless of whether the student majors in a religious subject or subjects such as physics, business or engineering. To determine whether a school is “pervasively sectarian,” state officials examine criteria such as whether students and faculty are of “one religious persuasion,” whether the governing board reflects a particular religion, and whether there are required courses in religion or theology “that tend to indoctrinate or proselytize.” Under this policy, students have been permitted to use Colorado scholarships at a Methodist university and a Jesuit Roman Catholic university, but were forbidden to use scholarships at a nondenominational evangelical Protestant university and a Buddhist university that the Colorado Commission on Higher Education found to be too religious.

Colorado Christian University, one of the two schools determined by the State to be “pervasively sectarian,” filed suit, contending that barring its students from scholarship aid constituted discriminated in violation of the First and Fourteenth Amendments. The district court disagreed and granted summary judgment in favor of the State.

On appeal to the Tenth Circuit, the United States filed a friend-of-the-court brief, arguing that Colorado was unconstitutionally discriminating against students who attended schools deemed too religious by the State. In its brief, the United States stressed that the Supreme Court in Mitchell v. Helms (2000), had rejected the “pervasively sectarian” doctrine, that is, the concept that certain institutions were so religious that any aid flowing to them, however indirectly or however secular in nature, automatically became constitutionally tainted. The United States brief argued, citing the plurality opinion in Mitchell, that “nothing in the Establishment Clause requires the exclusion of pervasively sectarian schools from otherwise permissible aid programs, and other doctrines of the Court bar it.”

The Court of Appeals agreed with the University and the United States and reversed the trial court. The court held that the “now-discarded doctrine that ‘pervasively sectarian’ institutions could not receive otherwise-available education funding” was an invalid basis for discrimination against certain religious schools. The court followed the Mitchell plurality’s view that “the application of the ‘pervasively sectarian’ factor collides with [Supreme Court] decisions that have prohibited governments from discriminating in the distribution of public benefits based upon religious status or sincerity.”

Additionally, the Court of Appeals held that the Colorado scholarship program’s policies violated the “well-established” principle that the government “should refrain from trolling through a person’s or institution’s religious beliefs.” In barring scholarships from being used at “pervasively sectarian” institutions, the court observed, the Colorado Commission on Higher Education engaged in intrusive and subjective inquiries such as reviewing syllabi in courses of Christian literature to determine if they proselytized or indoctrinated, deciding that faculty of multiple of Christian denominations represented a single religious persuasion rather than a multiplicity of religious persuasions, and other similarly searching inquiries of religious matters. This violated the Constitution, the court held. The court concluded that “if the State wishes to choose among otherwise eligible institutions, it must employ neutral, objective criteria rather than criteria that involve the evaluation of contested religious questions and practices.”