Deletion from Assignments

I have deleted one thing from free speech assignment #4. It now is: 4. Casebook p. 1468-1479. No need to re-read Locke v Davey. We will not be revisiting Davey, because it was not decided under the Free Speech Clause.

First Tranche of Blog Posts-Student Speech in Public Schools

The first tranche of extended blog posts for our on line classes has been upoaded just below. These posts all deal with free speech for students in thye public schools.

Please comment on at least a few of these posts.

"Be happy Not Gay" Slogan on Student Clothing Protected by 7th Circuit

From ReligionClause blog:

 

7th Circuit Upholds Injunction Permitting "Be Happy, Not Gay" Slogan on Student Clothing

In Zamecnik v. Indian Prairie School District #204, (7th Cir., March 1, 2011), the U.S. 7th Circuit Court of Appeals upheld a trial court's entry of a permanent injunction permitting any student at a Naperville, Illinois high school  to display on clothing or personal items the slogan "Be Happy, Not Gay."  It also affirmed the trial court's award of damages of $25. The school had attempted to ban students from wearing the slogan on T-shirts under a rule that barred derogatory comments that relate to race, ethnicity, religion, gender or sexual orientation or disability.  The 7th Circuit had previously ordered the district court to enter a somewhat narrower preliminary injunction. (See prior posting.) The school now argued that it should have been entitled to a hearing to show that it had a reasonable belief it faced a threat of substantial disruption before a permanent injunction was entered. The 7th Circuit disagreed. The court relied in part on the "heckler's veto" doctrine-- that speech cannot be suppressed merely because those who disagree with it engage in threats or violence. Alliance Defense Fund yesterday issued a release discussing the decision.

Is this case consistent with Dariano (the US flag shirt case)? Why or why not?

Dariano v. Morgan Hill

Let's have a discussion in the comments about this case.

Here is what I would like you to think about--suppose you were a school board lawyer consulted by the Principal before making a decision about the flag tee shirts. What would your advice be?

Would you go ahead with the Cinco de Mayo celebration, allow students to bring Mexican flags, but prohibit students from displaying the American flag? Would this result in viewpoint discrimination?

Would you cancel plans to celebrate Cinco de Mayo?

Would you ban all national flags?

What would you advise?

Now, consider the Ninth Circuit's opinion.

Do you agree that the censorship of the American flag was permissible under Tinker because the school had a reasonable concern that the American flag shirts might result in violence and disption of school activities?

Does this result in permitting a hecklers' veto, in which one group of students, by threatening violence, can silence another group of students who wish to engage in silent political expression?

But again, what should school officials do when dealing with problems such as this?

Morse v Frederick Oral Argument: Please Comment

I am posting this early so those of you who have already listened to the SCOTUS oral argument can post a comment. Or a question. Don't feel you must do so until after Spring Break. But do try to post something by April 1.

Was there any exchange that you thought was particularly interesting or particularly good? Any questions from the Bench that you found interesting.

One good thing about listening to oral arguments as part of our on line learning is that you get to see great lawyers in action on a case that we are reading and studying. Is there anything you learned about oral advocacy from this oral argument?


My Comments

1. Notice how difficult it is for the parties to agree on a general test that allows public schools to teach students the lessons it wishes to teach in school-sponsored events without being too protective--or too under-protective--of student free speech.
2. Notice also that both sides agree that this is a viewpoint based speech restriction. The principal objected to the sign because she believed it encouraged illegal use of drugs. So, there is a lot at stake here.
3. Justice Breyer to counsel for the student: "And so I guess what I'm worried about is a rule that would... is on your side, a rule that takes your side; we'll suddenly see people testing limits all over the place in the high schools. But a rule that against your side may really limit people's rights on free speech.That's what I'm struggling with."(38:50) This is a hard case!
4. Suppose a school released students to view a gay pride march taking place on the street outside the school. And a student holds up a sign that says "Marriage is a Relationship Between One Man and One Woman." Protected speech? Not protected? Should it make a difference if the school had a policy celebrating diversity and inclusion as part of its educational mission? May the school suppress student speech on political and moral controversies whenever the student message contradicts a message that the school is trying to inculcate?

Morse V. Frederick

The first oral argument we will listen to is Morse v. Frederick, a public school speech case.

Here is a link to the oral argument and other helpful information on Oyez Oyez: LINK

After Spring Break, I will write a blog post on the Morse oral arguments and ask each of you to provide one insight or thought you had while listening to the oral argument. This will help you stay engaged with one another as we do our on line learning.

Here are the relevant facts of Morse as set forth by Oyez:

Facts of the case

At a school-supervised event, Joseph Frederick held up a banner with the message "Bong Hits 4 Jesus," a slang reference to marijuana smoking. Principal Deborah Morse took away the banner and suspended Frederick for ten days. She justified her actions by citing the school's policy against the display of material that promotes the use of illegal drugs. Frederick sued under 42 U.S.C. 1983, the federal civil rights statute, alleging a violation of his First Amendment right to freedom of speech. The District Court found no constitutional violation and ruled in favor of Morse.... The U.S. Court of Appeals for the Ninth Circuit reversed. The Ninth Circuit cited Tinker v. Des Moines Independent Community School District , which extended First Amendment protection to student speech except where the speech would cause a disturbance. Because Frederick was punished for his message rather than for any disturbance, the Circuit Court ruled, the punishment was unconstitutional....

Question

 Does the First Amendment allow public schools to prohibit students from displaying messages promoting the use of illegal drugs at school-supervised events?

Con Law II Spring 2020: Amendments To Syllabus (March 18 2020)

Assignments

As I said in class, we will finish out the existing free speech assignments (#3 thru #7) during our on line study. To provide some oral give and take, I will post links to three oral arguments of cases we are reading. I will write blog posts for each of the oral arguments and invite you to each share at least one comment or impression on each oral argument.

Schedule

As we discussed, we will not be meeting in person or virtually. All on line classes will be via this blog. Starting around March 31, I will begin to upload posts to the blog on the cases and the related oral arguments. I will provide more detailed blog posts designed to help you understand the key issues and holdings of the cases we are studying. You will be able to write comments at the end of the blog posts sharing ideas or asking questions. You can also email any questions to me.

Grading & Exam

Your grade for this course will be based (100%) upon the final exam. The final exam will be a 4-hour take-home open book exam. It will consist of two essay questions, one a bit longer than the other. This is an open book exam. You may use whatever research materials you wish to complete the examination, including materials you received from class, but you may not discuss, consult with, nor rely upon the work product of any other person including lawyers, instructors, or students. Your answers must represent your own work; you must do the drafting and writing of the exam answers yourself.

Contact Information

I have already emailed you my cell phone number. I am available either by phone or email (rduncan2@unl.edu) whenever you need me. If you wish to talk by phone, send me an email to set up a time when we can arrange for a call. If you need to get me right away, just call me. These are difficult times, and I want to help you however I can.

Coming Soon: Oral Arguments 2 and 3

Texas v. Johnson

Telescope Media (8th Circuit)

Spring 2020 Syllabus Con Law II

Richard F. Duncan: Room 220 Law, email: rduncan2@unl.edu, phone: 402 472-6044

Office Hours: I don't maintain specific office hours; I have an open door policy and I will be in the office regularly and welcome your visits or appointments.

Class: This class meets on  Wed-Thurs-Fri from 1:15 to 2:15 PM in Room 113. Notice that this class meets for 60-minutes per class.  Therefore, we will meet 35 times (as opposed to the 42-class sessions for a 50-minute class). This will allow us to cancel seven (7) classes during the Semester without the need for make-up sessions. I am also requiring attendance at the Law College Pound Lecture by Professor Robert George on April 16 at Noon.That will allow us to cancel an 8th regular class. Also, the snow day (class cancelled January 17) will be made up when we have a double class to listen to SCOTUS oral arguments in Rosenberger case (assignment 7).

        

Attendance Policy: Attendance is required.

Grading & Exam: Your grade for this course will be based (100%) upon the final exam (which may or may not be a take-home).

Casebook:  Varat, Amar & Cohen, Constitutional Law (15th Ed. Foundation Press 2017)

Online Materials: Professor William Linder's Exploring Constitutional Law

For Spring 2020, students should be prepared for 1 full assignment for each class. In other words, you should be prepared to discuss one complete assignment at all times.I may make a few minor adjustments to these assignments as the course progresses to include some links to recent First Amendment cases or issues.

Be sure to check this blog every day for announcements, additional required and optional reading, and discussion of cases and issues raised in the reading. 

LIST OF ASSIGNMENTS

I. Establishment Clause

1. Skim (just skim) this:Duncan article, Just Another Brick in the Wall: The Establishment Clause as a Heckler's Veto, is available (free download) :  Dreisbach article; Casebook p. 1693-1701

2. casebook p. 1701-1707; Linder Introduction Text Only: (Link); Engel v. Vitale (Link); Wallace v. Jaffree (Link); Lee v. Weisman (Link).

3. Lynch v. Donnelly (Link); Allegheny County case (link); Casebook p.1711-1727; Summun case (link), Our class discussion will focus primarily on:  American Legion v. American Humanist Association, (US Sup. Ct., June 20, 2019),

4. Legislative Prayers: Marsh v. Chambers (link); Town of Greece (casebook p. 1727-1738). When reading the Town of Greece opinions, do not overlook Justice Thomas' concurring opinion
(at p.1733) in which he speaks of the EC as a "federalism provision." What does that mean?

5. Linder Introduction Text only (link); Handouts 2, 3 and 4; Widmar v. Vincent (Link);Casebook p.1739-1752

6. Casebook p. 1753-1780; Arizona tax credit case (Link)

7. Casebook p. 1780-1787; Rosenberger Oral Argument (listen in class)

8. Trinity Lutheran (Link)

8. Larson v. Valente (link); my "clearest command" article (Link)

II. Free Exercise Clause

1. Reynolds case (Link); Casebook p. 1787-1794

2. Casebook p. 1794-1804; Handout 5; Handout 6 (Lukumi and Axson-Flynn); Masterpiece Cakeshop (link)

3. Hosanna-Tabor decision (link); Casebook p. 1804-1807; Trinity Lutheran decision

4. RFRA & Hobby Lobby: RFRA text (link); Hobby Lobby (Link); RLUIPA: Holt v. Hobbs (link)

5. Capstone problem (Free Exercise and Establishment Clauses): Colorado Christian University v. Weaver (link); my "clearest command" article (Link)

III. Religion and Freedom of Expression: Public Forum Analysis, Public Schools, Subsidized Speech, Expressive Association, and Election Campaign Speech

1. Reed v. Town of Gilbert (link); Casebook p.1389-1412.

2.  Snyder v. Phelps (link); Casebook p. 1412-1427

3. Casebook p. 1447-1468; Dariano (flag tee shirt case)(link)

4. Casebook p. 1468-1479;

5. Casebook p.1509-1516

6.Casebook p.1521-1536;  Duncan Article (Defense Against the Dark Arts); Telescope Media (8th Cir. 2019); Christian Legal Society v. Martinez (link)


      [if time permits]

7. Citizens United (link)


                       End of Duncan's Sylabus: And now for something completely different.




_____________________________________________________________________________

ABA Requirements for Study: The ABA requires students to spend approximately two hours studying out of class for every hour spent in class. I should not have to even mention this—because you spend much more than 2 hours per class hour preparing for class and studying the materials—but to satisfy the powers that be in the ABA, I am hereby explicitly and emphatically requiring you to spend at least 2 hours studying this course for each one hour spent in class. I anticipate that you will spend the out-of-class time reading and re-reading class materials until you have mastered the issues and reasoning of the cases and problems, thinking rigorously about the materials, writing notes both before and after each class on the materials and issues assigned for that class and discussed in class, reading and thinking about the posts I write on our class blog and discussing materials with your classmates. Obey the ABA!
 




                             "Learning Outcomes"

Basically, I am old school about "learning outcomes." This is law school, not community college, so our major focus is on developing a sophisticated legal intellect by careful legal analysis of cases, statutes, constitutional text, and hypotheticals. Every day my job is to try to make the assignments and class discussions as challenging, clear, lucid and helpful as I can. Your job is to prepare for class, pay careful attention in class, participate in class discussions, and master the materials, questions, concepts, and issues we cover. Your individual outcomes depend in large part on how much effort you put into studying and class discussions. All of this being said, here are the "learning outcomes" for this course. If you work hard to master the course, you will:

(1) acquire a deep understanding of the First Amendment of the US Constitution including free speech, free exercise, and the establishment clause

(2) develop a deep understanding of Supreme Court case law interpreting the First Amendment, including important dissenting and concurring opinions in landmark cases

(3) acquire a deep understanding of statutory protections of religious liberty, such as RFRA and RLUIPA

(4) become familiar with the political forces and policy rationales that shape First Amendment law

(5) Gain insight into the many ways that the First Amendment protects religious diversity and intellectual diversity in a society as deeply-dived on first principles as our Nation has become.

The primary means of assessing these outcomes is your self-assessment during and after each class. You should evaluate what you learned in each class when you review your notes and thoughts from each class.

Volunteering for discussion during class is also an excellent means of assessment. 

The final exam is, as always, the more formal method of assessing many of these outcomes.


 A Message From The Dean, A Message From The Dean

"If you think you will need any disability-related accommodation to succeed in this class, please contact Assistant Dean Marc Pearce and/or the Office of Services for Students with Disabilities as soon as possible for a confidential conversation."

Class Schedule

This class meets for 60-minutes per class.  Therefore, we will meet 35 times (as opposed to the 42-class sessions for a 50-minute class). This will allow us to cancel seven (7) classes during the Semester without the need for make-up sessions. We will listen to the Rosenberger oral arguments at home (rather than in a double class) so that will allow a 8th cancellation.We made up our snow day from earlier in the semester by listening to the oral argument in the American Legion cross case.

Here is a schedule of the days I know we will be cancelling class:

1. Wednesday February 5

2. Thursday February 6

3. 

4.

5. 
6.
7.
8.

As you can see, this leaves us with 6 classes already made up. Thus, we will only have to do 3 classes "on line." Plus, just to be sure the ABA is satisfied, we will make up the three classes from the "cancelled" week of March 15-19, by listening to 3 or 4 Supreme Court oral arguments and providing some comments/impressions on them.

All Communications through blog

If (if) the Law College shuts down, all communications concerning this class will be posted on the blog. I don't use Canvas (it is not user-friendly), so I will not be posting anything there.

Only here.

Tomorrow Friday March 13

We will have class tomorrow--Friday March 13.

I will also have a recording posted for tomorrow's class.

Link to Audio for Thursday March 12 Class

  Here is the link to the recording for Thursday March 12:

https://unl.box.com/s/wcj49f9ku8ea5walviu6sorlj6rf6065

Link To Audio For Wed March 11 Class

  Here is the link to Wed March 11 recording:

https://unl.box.com/s/3g1qbuv95jfrtxswm191ac1ici5rc4qx

Will Smith Be Overruled?

Maybe: SCOTUS Grants Cert in the Catholic Adoption Services Case

The Court looks ready to make a major change in its free exercise jurisprudence

Link

This Week's Schedule: March 11, 12 & 13

I have cancelled my trip this week because of Corona virus concerns. 

Since I am in town, and since UNL is considering taking classes on line rather than in person, I would like to go ahead and meet this week at our regularly scheduled times: Wed, Thurs, Fri from 1:15 to 2:15.

So, I will see you in class Wednesday at 1:15 PM.

Colorado Christian University Case and Davey

Does Locke v. Davey control the free exercise issue in this case?

• Is the burden on free exercise in this case the same as in Davey?
• Does it matter that the program in CCU "expressly discriminates among religions" by allowing scholarships to be used at "sectarian" religious colleges (such as the Catholic and Methodist colleges that were eligible under the program) but not at "pervasively sectarian" colleges (such as CCU and the Buddhist College excluded under the program)"?
• Do you agree with Judge McConnell when he says "Locke involved neither discrimination among religions nor intrusive determinations regarding contested religious questions." (p. 18)
• Are these issues Free Exercise issues, EC issues, or both? Even if both FEC and EC require denominational neutrality, the burden requirement may be different under the two clauses. In other words, the FEC under Davey is not implicated by minor burdens on free exercise, but denominational inequality under the EC may not require any burden (the denominational inequality per se triggers protection under Larson).
  

R LUIPA Full Text

RLUIPA Text

From Becket Fund's RLUIPA site (link):

• The full text of The Religious Land Use and Institutionalized Persons Act
• President Clinton’s statement upon signing the law, September 22, 2000

Colorado Christian University Case

Facts (from the opinion):

The State of Colorado provides scholarships to eligible students who attend any accredited college in the state-public or private, secular or religious-other than those the state deems “pervasively sectarian.” To determine whether a school is “pervasively sectarian,” state officials are directed, among other things, to examine whether the policies enacted by school trustees adhere too closely to religious doctrine, whether all students and faculty share a single “religious persuasion,” and whether the contents of college theology courses tend to “indoctrinate.” Applying these criteria, state officials have extended scholarships to students attending a Methodist university and a Roman Catholic university run by the Jesuit order. They have refused scholarships to otherwise eligible students attending a non-denominational evangelical Protestant university and a Buddhist university. Colorado Christian University, one of the two schools held pervasively sectarian by the State, contends that excluding its students on the basis of this inquiry violates the First and Fourteenth Amendments. The district court disagreed, and granted summary judgment in favor of the state defendants. 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.

Here are some questions:

1. Does this exclusion violate the Free Exercise Clause? How does Locke v. Davey affect this issue?

2. Would the EC permit CCU to be included in the scholarship program?

3. Does the exclusion of "pervasively sectarian" colleges from an otherwise general program violate the EC? Why or why not?

4. Do you think the 10th Circuit has correctly applied the Supreme Court Free Ex and EC caselaw?

CCU Case: Some Key Passages

I. Definition of Pervasively Sectarian:

"(1) An institution of higher education shall be deemed not to be pervasively *1251 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."

II. Colorado's Finding That CCU is Pervasivley Sectarian:

"The Commission concluded that CCU failed to meet at least three of the criteria. After examining the syllabi for the theology courses, the commission decided that the courses impermissibly “tend[ed] to indoctrinate or proselytize.” Colo.Rev.Stat. § 23-3.5-105(d). It also concluded that CCU's board of trustees reflected or was limited to a single religion. Id. § 23-3.5-105(e). This was predicated on the judgment that Christianity constitutes a single religion, without regard to denominational differences. Commission officials disagreed among themselves as to whether the university's statement of faith was consistent with a “commitment to principles of academic freedom.” Id. § 23-3.5-105(c). Finally, the commission concluded that because of the chapel attendance required for some of its students, the university impermissibly “required attendance at religious convocations or services.” Id. § 23-3.5-105(b)."

III. The Court's View of Locke v. Davey:

"The opinion thus suggests, even if it does not hold, that the State's latitude to discriminate against religion is confined to certain “historic and substantial state interest[s],” id. at 725, 124 S.Ct. 1307, and does not extend to the wholesale exclusion of religious institutions and their students from otherwise neutral and generally available government support. The Court's language suggests the need for balancing interests: its holding that “minor burden[s]” and “milder” forms of “disfavor”*1256 are tolerable in service of “historic and substantial state interest[s]” implies that major burdens and categorical exclusions from public benefits might not be permitted in service of lesser or less long-established governmental ends. Id. at 720, 725, 124 S.Ct. 1307.

We need not decide in this case whether such a balancing test is necessary or how it would be conducted, however, because the Colorado exclusion, in addition to imposing a far greater burden on affected students, has two features that were not present in Locke and that offend longstanding constitutional principles: the Colorado exclusion expressly discriminates among religions, allowing aid to “sectarian” but not “pervasively sectarian” institutions, and it does so on the basis of criteria that entail intrusive governmental judgments regarding matters of religious belief and practice. See Larson v. Valente, 456 U.S. 228, 246, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982) (imposing strict scrutiny on governmental decisions that discriminate among religions); NLRB v. Catholic Bishop, 440 U.S. 490, 502-03, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979) (discussing limitations on the power of the government to base decisions on intrusive questions regarding religious belief or practice).

Locke involved neither discrimination among religions nor intrusive determinations regarding contested religious questions. The scholarship program at issue in Locke excluded all devotional theology majors equally-without regard to how “sectarian” state officials perceived them to be-and therefore did not discriminate among or within religions. Locke, 540 U.S. at 715-16, 124 S.Ct. 1307. Evangelicals and Unitarians, Catholics and Orthodox Jews, narrow sectarians and freewheeling latitudinarians, all were under the same interdiction. And since under the program “[t]he institution, rather than the State, determine[d] whether the student's major [was] devotional,” the State did not engage in intrusive religious inquiry. Id. at 717, 124 S.Ct. 1307.

We therefore reject the argument of the state defendants and their amici that Locke compels affirmance in this case. Although Locke precludes any sweeping argument that the State may never take the religious character of an activity into consideration when deciding whether to extend public funding, the decision does not imply that states are free to discriminate in funding against religious institutions however they wish, subject only to a rational basis test."

IV. Denominational Discrimination:

"From the beginning, this nation's conception of religious liberty included, at a minimum, the equal treatment of all religious faiths without discrimination or preference."

"Many Supreme Court decisions have confirmed the principle. The Court has called neutral treatment of religions “[t]he clearest command of the Establishment Clause.” Larson v. Valente, 456 U.S. 228, 244, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982); see also Bd. of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 707, 114 S.Ct. 2481, 129 L.Ed.2d 546 (1994) (“It is clear that neutrality as among religions must be honored.”). Such discrimination is forbidden by the Free Exercise Clause as well. Larson, 456 U.S. at 245, 102 S.Ct. 1673 (“This constitutional prohibition of denominational preferences is inextricably connected with the continuing vitality of the Free Exercise Clause”); see also Lukumi, 508 U.S. at 532-33, 113 S.Ct. 2217; Larson, 456 U.S. at 246, 102 S.Ct. 1673 (citing Abington School District v. Schempp, 374 U.S. 203, 305, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963) (Goldberg J., concurring)). The Court has suggested that the Equal Protection Clause's requirement is parallel. See Locke v. Davey, 540 U.S. at 720 n. 3, 124 S.Ct. 1307 (citing Johnson v. Robison, 415 U.S. 361, 375 n. 14, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974); McDaniel v. Paty, 435 U.S. 618, 98 S.Ct. 1322, 55 L.Ed.2d 593 (1978)). In other words, “no State can ‘pass laws which aid one religion’ or that ‘prefer one religion over another.’ ” Larson, 456 U.S. at 246, 102 S.Ct. 1673 (quoting Everson v. Board of Education, 330 U.S. 1, 15, 67 S.Ct. 504, 91 L.Ed. 711 (1947)). While CCU raises claims under three different constitutional clauses governing religious discrimination, *1258 all of them draw on these common principles. So while the Establishment Clause frames much of our inquiry, the requirements of the Free Exercise Clause and Equal Protection Clause proceed along similar lines."

"By giving scholarship money to students who attend sectarian-but not “pervasively” sectarian-universities,^FN5 Colorado necessarily and explicitly discriminates among religious institutions, extending scholarships to students at some religious institutions, but not those deemed too thoroughly “sectarian” by governmental officials. The sole function and purpose of the challenged provisions of Colorado law, Colo.Rev.Stat. §§ 23-3.5-105, 23-3.3-101(3)(d), and 23-3.7-104, is to exclude some but not all religious institutions on the basis of the stated criteria. Employing those criteria, the state defendants have decided to allow students at Regis University, a Roman Catholic institution run by the Society of Jesus, and the University of Denver, a Methodist institution, to receive state scholarships, but not students at CCU or Naropa University, a Buddhist institution. This is discrimination “on the basis of religious views or religious status,” Smith, 494 U.S. at 877, 110 S.Ct. 1595, and is subject to heightened constitutional scrutiny."

"The Colorado law seems even more problematic than the Minnesota law invalidated in Larson. The Minnesota law at least was framed in terms of secular considerations: how much money was raised internally and how much from outsiders to the institution. Here, the discrimination is expressly based on the degree of religiosity of the institution and the extent to which that religiosity affects its operations, as defined by such things as the content of its curriculum and the religious composition of its governing board. Although application of secular criteria does not invalidate a law even if there is a disparate impact, see Children's Healthcare Is A Legal Duty, Inc., v. Min De Parle, 212 F.3d 1084, 1092 (8th Cir.2000), that logic will not save a law that discriminates among religious institutions on the basis of the pervasiveness or intensity of their belief."

V. Entanglement:

"Even 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. As stated by the Court in Mitchell v. Helms: “[T]he inquiry into the recipient's religious views required by a focus on whether a school is pervasively sectarian is not only unnecessary but also offensive. It is well established, in numerous other contexts, that courts should refrain from trolling through a person's or institution's religious beliefs.” 530 U.S. at 828, 120 S.Ct. 2530 (citing Smith, 494 U.S. at 887, 110 S.Ct. 1595); Americans United for Separation of Church & State v. Prison Fellowship Ministries, Inc., 509 F.3d 406, 414 n. 2 (8th Cir.2007) (joined by O'Connor, J.) (same); see also NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 502, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979) (“It is not only the conclusions that may be reached by the Board which may impinge on rights guaranteed by the Religion Clauses, but also the very process of inquiry leading to findings and conclusions.”); Univ. of Great Falls v. NLRB, 278 F.3d 1335, 1341-42 (D.C.Cir.2002) (same).

[17] Most often, this principle has been expressed in terms of a prohibition of “excessive entanglement” between religion and government. See, e.g., Agostini v. Felton, 521 U.S. 203, 232-35, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997); NLRB v. Catholic Bishop, 440 U.S. at 499, 502, 99 S.Ct. 1313. The anti-entanglement rule originated in the context of education, changing with re-interpretations of the famous doctrine of Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), although it has migrated to other contexts. See, e.g., Rweyemamu v. Cote, 520 F.3d 198, 208-09 (2d Cir.2008) (Title VII of the Civil Rights Act unconstitutional as applied to ordained priest); Schleicher v. Salvation Army, 518 F.3d 472, 474, 477-78 (7th Cir.2008) (Fair Labor Standards Act presumptively excepts “clerical personnel”). At first the prohibition on entanglements was formulated as an independent requirement of the Establishment Clause, later as one element of determining the “effect” of the law in advancing or inhibiting religion. Agostini, 521 U.S. at 232-33, 117 S.Ct. 1997; see also Zelman v. Simmons-Harris, 536 U.S. 639, 668-69, 122 S.Ct. 2460, 153 L.Ed.2d 604 (O'Connor, J., concurring) (discussing history of the “entanglement inquiry.”). Properly understood, the doctrine protects religious institutions from governmental monitoring or second-guessing of their religious beliefs and practices, whether as a condition to receiving benefits (as in Lemon ) or as a basis for regulation or exclusion from benefits (as here). See Carl H. Esbeck, Establishment Clause Limits on Governmental Interference with Religious Organizations, 41 Wash. & Lee L.Rev. 347, 397 (1984).

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.” Colo.Rev.Stat. § 23-3.5-105(1)(d). To apply this criterion, the Commission demanded to see syllabi from theology courses at CCU. The record contains two syllabi for “Early Christian Literature,” a course studying “the New Testament as literature.” App. 273. In these courses, the students are asked, for example, to give “big ideas” of all of the books of the New Testament, and “explain how the differences in the various gospels reflect the different theological concerns of the various*1262 writers.” App. 279, 284. The Commission concluded that the course failed the statutory criterion, although it did not explain why. All we know is that one official defined the term “indoctrinate” to mean “to try and convince, to try and convert, to try and get individuals to subscribe to a particular set-to whatever the subject is, in this case, a theological subject or religious subject,” and “proselytize” to mean “to evangelicize (sic), to do more than just educate but to advocate that an individual subscribe to a certain theological point or religious point.” App. 102-03, ¶ 79. 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.

Such inquiries have long been condemned by the Supreme Court. In New York v. Cathedral Academy, 434 U.S. 125, 98 S.Ct. 340, 54 L.Ed.2d 346 (1977), for example, the Supreme Court considered a state statute that reimbursed private religious schools for the costs of in-class examinations and other state-mandated teaching activities only if they were devoid of religious content. The Court held the process of examining the schools' teaching practices for religious content unconstitutional, explaining that “this sort of detailed inquiry into the subtle implications of in-class examinations and other teaching activities would itself constitute a significant encroachment on the protections of the First and Fourteenth Amendments.” Id. at 132, 98 S.Ct. 340. The Court pointed out that “[i]n order to prove their claims for reimbursement, sectarian schools would be placed in the position of trying to disprove any religious content in various classroom materials” and the court “would be cast in the role of arbiter of the essentially religious dispute.” Id. at 132-33, 98 S.Ct. 340. The Court concluded, in words equally applicable to the Colorado statute: “The prospect of church and state litigating in court about what does or does not have religious meaning touches the very core of the constitutional guarantee against religious establishment.” Id. at 133, 98 S.Ct. 340.

More recently, in Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995), the Court rejected the argument, put forth by the dissent, that a public university must refrain from extending the benefits of a neutral subsidy to a student publication that contained religious “indoctrination” and “evangelis[m],” as opposed to “descriptive examination of religious doctrine.” Id. at 867, 876, 877, 115 S.Ct. 2510 (Souter, J., dissenting) (internal quotation marks omitted). That proposal is similar to the line drawn by the Colorado statute. The majority rejected this idea, noting that “it would require the University ... to scrutinize the content of student speech, lest the expression in question ... contain too great a religious content.” Id. at 844, 115 S.Ct. 2510. “That eventuality,” the Court stated, “raises the specter of governmental censorship,” which “would be far more inconsistent with the Establishment Clauses's dictates than would governmental provision of [assistance] on a religion-blind basis.” Id. at 844-45, 115 S.Ct. 2510.

[18] The same “specter of government censorship” is present in this case, except that it has actually materialized. 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.” App. 103 ¶ 79. The line drawn by the Colorado statute, between “indoctrination” and mere education, is highly subjective and susceptible to abuse. Educators impart information and perspectives to students because they *1263 regard them as true or valuable. Whether an outsider will deem their efforts to be “indoctrination” or mere “education” depends as much on the observer's point of view as on any objective evaluation of the educational activity. Anyone familiar with the varied reactions to the New York Times and FOX News knows how often assessments of objectivity and bias depend on the eye of the beholder. Many courses in secular universities are regarded by their critics as excessively indoctrinating, and are as vehemently defended by those who think the content is beneficial. Such disagreements are to be expected in a diverse society. But when the beholder is the State, what is beheld is the exercise of religion, and what is at stake is the right of students to receive the equal benefits of public support for higher education, the Constitution interposes its protection. The First Amendment does not permit government officials to sit as judges of the “indoctrination” quotient of theology classes."