Tenth Circuit to Decide Whether Colorado May Discriminate Among Religious Colleges
Author(s): Eric V. Hall
Published: 03/17/2008
Like many states, Colorado provides financial aid to help lower-income students pay for college. Unlike every other state in the country, however, Colorado prohibits this aid from helping students who choose a "pervasively sectarian" college. One state agency, the Colorado Commission on Higher Education, determines which institutions are "pervasively sectarian," i.e., "really religious," and thus barred from participating, and which are merely "generally sectarian," i.e., "mildly religious," and thus permitted to receive the aid. To make this determination, the Commission employs a variety of vague statutory factors, such as whether religious courses "tend to indoctrinate or proselytize" and whether the faculty and students are of one "religious persuasion."
The Commission barred Colorado Christian University from participating in the student aid programs solely because it decided CCU was "pervasively sectarian." CCU sued in federal court, arguing that it violates both Religion Clauses and the Equal Protection Clause for the State of Colorado to officially prefer certain religious groups over others. Further, CCU argues that the federal Constitution forbids the very inquiry by which the State, through the Commission, determines how religious Colorado universities are. RJ&L served as Colorado counsel to CCU throughout the case.
Written briefing to the Tenth Circuit Court of Appeals finished January 9, 2008. The case has drawn a lot of attention, with a total of six amicus ("friend of the court") briefs being filed in addition to the regular briefs by the parties. Lining up alongside Colorado were 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. The case will likely be argued in May 2008 and a decision is expected by the end of summer 2008. RJ&L attorneys Eric Hall and Martin Nussbaum have been involved with this dispute from its inception and through litigation up to the Tenth Circuit.
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 e-mail at ehall@rothgerber.com.