Judge Rules States Must Fund Religious Schools

By Anthony Weiss

Published August 14, 2008, issue of August 22, 2008.
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A ruling by an influential federal judge could open the door for more government funding of religious education.

In a unanimous decision by the Tenth Circuit Court of Appeals, dated July 23, federal judge Michael McConnell ruled that the state of Colorado could not bar state scholarship funds from going to educational institutions that are steeped in a religious point of view.

In his opinion, McConnell wrote that the Colorado provision required the state to be unconstitutionally invasive on religious matters.

Legal scholars say that given McConnell’s stature as an authority on church-state law, the ruling could further erode the barriers separating religious institutions from government funds.

“Since the 19th century, but particularly since the 1940s with modern Supreme Court jurisprudence, there’s been this firewall, and the firewall has basically said you can fund secular activities of religious organizations and institutions, but you can’t fund their religious activities,” said Steven Green, a professor of law at Willamette College of Law. “This Tenth Circuit decision is just another chipping away at that firewall.”

The Supreme Court has ruled that states can refuse to fund training programs for clergy, but so-called “pervasively sectarian institutions” — that is, institutions where religious indoctrination is central to the curriculum — provide an uncertain middle ground.

It is a sign of the sea change in church-state jurisprudence over the past few decades that the Colorado provision struck down by the Circuit Court was written in 1977 to comply with then-existing Supreme Court prohibitions on funding pervasively sectarian institutions. But years of Supreme Court decisions have gradually expanded the range of religiously linked programs that governments can fund, and have limited the ability of those governments to withhold funds from religious programs.

“The old presumption was that if you had a really religious institution, government couldn’t fund it, no matter how you channel it,” said Marc Stern, general counsel for the American Jewish Congress. “Now the court is saying once you have a funding program that affects the whole class, you can’t exclude some institutions because they’re religious. You must fund them.”

The case in question focused on Colorado’s refusal to provide a state scholarship for a student attending Colorado Christian University, a small, evangelical college just outside Denver. The refusal was based on a state statute barring funding to “pervasively sectarian institutions,” although the state does fund religious schools that it determines are not completely permeated by religion.

In striking down that provision, McConnell wrote that the program “expressly discriminates among religions without constitutional justification, and its criteria for doing so involve unconstitutionally intrusive scrutiny of religious belief and practice.”

Though legally the decision will apply only to the Tenth Circuit, which encompasses Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming, legal scholars agreed that its influence would extend well beyond that territory. McConnell is one of the country’s most respected conservative scholars and arbiters on church-state issues, and his writings are widely read.

Some lawyers hailed McConnell’s decision as an important step toward government neutrality toward religion, which would ensure that the government funds religious and nonreligious organizations equally. Others focused their praise more narrowly, saying that the problem with Colorado was not that it was anti-religion, but just excessively entangled.

“I think we do better to treat all institutions equally in these matters, rather than to have the government drawing distinctions,” said Doug Laycock, a law professor at the University of Michigan. “Funding everybody or funding nobody are two good alternatives. Funding some people and not others produces incentives to change your religious behavior.”

But the decision was bad news for a number of church-state separation advocates, including several Jewish groups. The American Jewish Congress, the American Jewish Committee and the Anti-Defamation League all signed on to a brief that supported the state of Colorado’s ultimately unsuccessful plea. Stern argued that McConnell’s reading of Supreme Court precedent, though plausible, was “unnatural.”

“Given the tradition of church-state separation, how high a wall [between the two] is a matter for debate, and the constitution gives a fair amount of leeway to the states in what they decide to fund,” Stern said.

If widely followed, McConnell’s decision could clear the way for significant changes at religiously affiliated institutions, including a number which are Jewish. In the late 1960s, Yeshiva University made a several changes to its curriculum — including the elimination of mandatory synagogue attendance — to ensure that it could receive state funds.

The legal representatives of several Jewish institutions, including Y.U., the Jewish Theological Seminary and Hebrew Union College-Jewish Institute of Religion, were unavailable to comment on the potential ramifications of the case. But legal experts suggest that if McConnell’s logic gains sway, institutions like Y.U., JTS and others could be eligible for more state funds, or could remain eligible while expanding their religious aspects.

The state of Colorado decided not to appeal the Tenth Circuit’s decision to the Supreme Court, but legal experts agreed that it will likely be only a matter of time before the matter of pervasively sectarian institutions appears before the court.






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