Dec 10, 2007

Civil Liberties Groups Argue That Colorado Is On Solid Ground In Denying Funding To Pervasively Sectarian Institutions

Colorado is not required by either the state or federal constitutions to provide public funding for tuition at pervasively sectarian colleges, says Americans United for Separation of Church and State.

In a friend-of-the-court brief filed in the 10th U.S. Circuit Court of Appeals, Americans United joined with other civil liberties groups to argue that restrictions on state aid to religious institutions are constitutional.

Colorado Christian University has filed a lawsuit, demanding the right to participate in Colorado’s state-funded student financial aid program. The litigation came after state officials decided the university was so overwhelmingly religious that aid to students there would fund religion and thus violate the separation of church and state.

Citing U.S. Supreme Court precedent, Americans United and the other public interest groups argue that the high court “has never held that a failure to fund religious activity necessarily violates” the free exercise of religion.

The 32-page brief notes that the Supreme Court in its 2004 Locke v. Davey ruling upheld Washington State’s refusal to extend scholarship aid to college students training to become members of the clergy. The groups argue that a district judge properly applied Locke in turning away Colorado Christian University’s legal challenge.

“It’s a big stretch to argue that since taxpayers help subsidize secular education that they should also be required to help fund religious schools,” said the Rev. Barry W. Lynn, executive director of Americans United. “The U.S. Constitution places no mandate on states to dip into the public coffers to support private religious schooling. In fact, just the opposite is true.”

Ayesha N. Khan, legal director of Americans United, said that Colorado “is on solid constitutional ground in declining to subsidize a religious education.”

“The First Amendment,” she said, “clearly protects citizens from supporting religion with tax dollars.”

The groups joining Americans United in the Colorado Christian University v. Baker brief include the American Jewish Committee, the American Civil Liberties Union, the American Federation of Teachers, the Anti-Defamation League, People For the American Way Foundation and the American Jewish Congress. 

The brief, filed Dec. 7, was principally written by Walter Dellinger and Pamela Harris at O’Melveney & Myers. (Dellinger is also with the Harvard Law School Supreme Court and Appellate Practice Clinic.)

Americans United is a religious liberty watchdog group based in Washington, D.C. Founded in 1947, the organization educates Americans about the importance of church-state separation in safeguarding religious freedom.