Author(s): Eric V. Hall
Published: 10/10/2008
Like many states, Colorado provides financial aid to help students pay for college at in-state institutions. Until July 2008, however, Colorado excluded so-called pervasively sectarian colleges from participating in these financial aid programs, while including "generally sectarian" colleges. Thus, under these programs, the State of Colorado was evaluating "how religious" colleges were granting or denying participation in state financial aid programs based upon the State’s evaluation of an institution’s religiosity. In an important religious liberty decision for Colorado and the entire country, Colorado Christian University v. Weaver, in July 2008 the Tenth Circuit Court of Appeals declared both parts of this scheme unconstitutional.
First, the Court held it was unconstitutional for Colorado to evaluate the degree of religiosity of colleges and universities. Colorado’s statutory scheme required a State agency, the Colorado Commission on Higher Education ("CCHE"), to make this determination by examining such things as whether faculty and students are "of one religious persuasion," whether there is a "strong commitment to academic freedom," and whether religious courses "tend to indoctrinate or proselytize." The court noted with concern the vagueness of these criteria that led to internal disagreement among CCHE decision-makers as to how to apply the law. More importantly, the court stated that such a government inquiry into a college’s religious views was "not only unnecessary but also offensive. It is well-established . . . that [government] should refrain from trolling through a person’s or institution’s religious beliefs."
A second, graver constitutional concern cited by the Court arose from the principle that "[f]rom the beginning, this nation’s conception of religious liberty included, at a minimum, the equal treatment of all religious faiths without discrimination or preference." The Tenth Circuit panel cited numerous United States Supreme Court decisions in which the Court expressed this principle of denominational neutrality. Government neutrality toward various religious groups, the Tenth Circuit explained, is protected by at least the Establishment, Free Exercise, and Equal Protection Clauses of the United States Constitution. In summary, the court stated that "no State can pass laws which aid one religion or . . . prefer one religion over another."
The case attracted significant attention, with a total of six amicus ("friend of the court") briefs being filed by outside institutions interested in the outcome. The National Education Association, the American Jewish Congress, the ACLU, the People for the American Way Foundation, the Anti-Defamation League, the American Federation of Teachers, and the American Jewish Committee expressed support for Colorado and its "pervasively sectarian" exclusion. On the other side, the Alliance Defense Fund and the Center for Law and Religious Freedom stood with Colorado Christian University. RJ&L served as Colorado counsel to CCU throughout the case.
Eric V. Hall is a partner in RJ&L’s Colorado Springs office, where he represents religious institutions in all legal matters with an emphasis on First Amendment litigation. He also represents clients involved in employment and other civil litigation. He can be reached at 719-386-3030 or by email at ehall@rothgerber.com.