Constitutional Law - Religion Clauses - Tenth Circuit Strikes Down Colorado Law Exempting "Pervasively Sectarian" Religious Colleges from State Scholarship Program

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Courts and legal scholars have long noted an enduring tension between those actions the First Amendment's Establishment Clause prohibits and those the Free Exercise Clause requires. (1) Where the former "constrains government in its attempt to create a religious identity for itself," the latter forces the government's hand by compelling it to treat religious institutions on a level playing field with secular ones. (2) In choosing whether to fund religious institutions, governments must navigate the space between these two constitutional constraints, finding the "play in the joints" (3) of the Religion Clauses. States may wish to exclude religious institutions from funding schemes in order to steer far clear of Establishment Clause concerns. Indeed, the Supreme Court's 2004 decision in Locke v. Davey (4) validated just such a scheme, upholding a Washington state statute that excluded theological majors from a college scholarship scheme. Although many scholars predicted that Davey would give states "carte blanche" to exclude religious institutions from state educational funding programs, (5) one recent circuit court decision suggests otherwise. Recently, in Colorado Christian University v. Weaver, (6) the Tenth Circuit invalidated a Colorado statute that excluded "pervasively sectarian" religious universities from a state scholarship scheme. Although the outcome in Colorado Christian was the correct one, the Tenth Circuit avoided confronting the implications of Davey, and in doing so, sidestepped important considerations regarding extending states greater discretion under the Religion Clauses.

In September 2003 Colorado Christian University applied to participate in a Colorado state scholarship program. (7) The state provides several scholarships to resident students who choose to stay in-state for college. (8) To be eligible for any of the programs, students must attend "an institution of higher education," defined under state law to exclude any "pervasively sectarian or theological institution." (9) A college is not "pervasively sectarian" if the Colorado Commission on Higher Education determines that it meets certain criteria, such as maintaining "a strong commitment to principles of academic freedom" and not "requir[ing] attendance at religious convocations or services." (10) The statute provides no guidance to the Commission as to the weight to be accorded to each criterion or how many of the criteria must be met before an institution's students can receive funding. (11)

In its application, Colorado Christian attempted to prove that it was not a pervasively sectarian institution by asserting that neither its board of trustees, nor its students, nor its faculty were required to be members of a particular faith. (12) Despite this effort, the Commission concluded that the University failed to meet at least three of the statutory criteria. (13) First, the Commission found that the University's theology courses "tend[ed] to indoctrinate or proselytize." (14) Next, contrary to Colorado Christian's assertions, it found that the University's board reflected a single religion. (15) Finally, the Commission found that since some students were required to attend religious services, the University was in violation of the statute's admonition against such conditions. (16) In response, Colorado Christian filed suit in federal district court against the Commission, alleging that the statutory scheme violated the Free Exercise and Establishment Clauses as well as the Fourteenth Amendment's Equal Protection Clause. (17)

The district court granted summary judgment for the state defendants. (18) Focusing solely on Colorado Christian's as-applied challenge, (19) the court looked to the Supreme Court's recent Davey decision for guidance regarding how far the state could go in excluding religious institutions. …


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