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FAQ's
1. What is this case all about?
2. Why did CCU bring this lawsuit?
3. What led to the decision to file a lawsuit?
4. Why did CCU file the lawsuit at this time?
5. What does CCU want the lawsuit to achieve?
6. Why did the Colorado legislature exclude “pervasively sectarian” schools from state aid programs?
7. When did the Colorado legislature pass the student aid laws you are challenging?
8. What does “pervasively sectarian” mean?
9. Is CCU “pervasively sectarian”?
10. Isn’t it wrong for the state to direct taxpayers’ dollars to support religious education?
11. Won’t giving aid to CCU students entangle the state in CCU’s affairs?
1. What is this case all about?
This case is about ending religious discrimination in Colorado’s taxpayer-financed student aid programs.
2. Why did CCU bring this lawsuit?
CCU believes deeply in its mission to educate students in a Christ-centered environment and from a Christ-centered perspective. Colorado’s discriminatory rules undermine CCU’s freedom to pursue its mission.
CCU also took a stand to preserve the rights of its students and potential students. There are undoubtedly some students who desire to attend CCU but are financially penalized for this choice by the state’s rules. These students are denied aid to which they are otherwise entitled.
Finally, CCU believes in religious freedom for all. Winning this case will help students from all religious traditions by establishing the principle that discrimination against religion does not promote religious freedom, but instead undermines it.
3. What led to the decision to file a lawsuit?
Having pursued other remedies CCU determined that filing a civil rights lawsuit in federal court was the best way of trying to eliminate the religious discrimination in Colorado’s state-funded student aid programs. CCU asked the Colorado Commission on Higher Education (the Executive Branch) to allow it to participate in the state student aid programs on the same terms as other colleges and universities in Colorado. The Commission denied this request. CCU also asked the Colorado legislature to eliminate religious discrimination in the statutes governing the aid program. (The legislature had recently removed a provision in the statute governing tax-exempt bond financing that discriminated against some religious institutions, so CCU hoped that the legislature would do the same thing in the student aid context.) Unfortunately, the legislature declined the request to eliminate religious discrimination in the student aid statutes. Thus, CCU has now turned to the Judicial Branch.
4. Why did CCU file the lawsuit at this time?
The U.S. Supreme Court has changed the rules regarding state aid for students attending religious schools. It is now clear that the Constitution does not require Colorado to discriminate against students attending some but not all religious universities. Because the legislature has not updated its statutes and because the Colorado Commission on Higher Education rejected CCU’s application, it was necessary to go to court.
5. What does CCU want the lawsuit to achieve?
CCU hopes that the lawsuit will end religious discrimination in Colorado’s taxpayer-financed student aid programs. CCU also wants the court to remove the exclusion of “pervasively sectarian” schools from those programs. Lastly, CCU wants the court to order the CCHE to stop attempting to define which schools are “too religious” to participate in the aid programs.
If the lawsuit is successful, CCU students would be eligible for state student aid programs, including the new College Opportunity Fund. They would no longer be penalized by the state for choosing a Christian education.
6. Why did the Colorado legislature exclude “pervasively sectarian” schools from state aid programs?
The legislature excluded “pervasively sectarian” schools from state aid programs four separate times. In 1977, 1979, and 1986, the legislature apparently thought that the Establishment Clause of the First Amendment required it to exclude such schools. By 2004, when the legislature excluded “pervasively sectarian” schools from the higher education voucher program, it was clear that the Establishment Clause of the First Amendment did not require the exclusion. The legislature’s conduct in 2004 is even harder to understand in light of its 2003 decision to allow “pervasively sectarian” schools to obtain tax-exempt bond financing, removing an exclusion of such schools that had been in place since 1981.
7. When did the Colorado legislature pass the student aid laws you are challenging?
These laws were passed in 1977, 1979, 1986, and 2004.
8. What does “pervasively sectarian” mean?
It is difficult – if not impossible – to define the phrase “pervasively sectarian” and to apply it in a consistent, rational, and fair way.
The Colorado legislature’s attempt to define the phrase demonstrates the virtual impossibility of crafting a definition that can be fairly and consistently applied. It said that a school is not “pervasively sectarian” if all of the following are true: (a) “The faculty and students are not exclusively of one religious persuasion”; (b) “There is no required attendance at religious convocations or services”; (c) “There is a strong commitment to principles of academic freedom”; (d) “There are no required courses in religion or theology that tend to indoctrinate or proselytize”; (e) “The governing board does not reflect nor is the membership limited to persons of any particular religion”; and (f) “Funds do not come primarily or predominantly from sources advocating a particular religion.”
This attempt at a definition raises a host of difficult questions, such as:
- What exactly is a “religious persuasion”?; Do Russian Orthodox and Southern Baptist students share a single “religious persuasion,” or do they represent different “religious persuasions”?
- Is a school not pervasively sectarian if one professor or one student does not share the “religious persuasion” of every other professor and student? Is this what “exclusively” means?
- What exactly is a religious “service”? If a professor leads his or her class in a brief prayer at the beginning of class, has he or she conducted a “religious service” – one that students in the class are required to attend?
- How “strong” must a school’s commitment to “academic freedom” be? Must a Jewish university ignore the repeated anti-Semitic remarks and actions of a faculty member?
- In what circumstances does a course in religion or theology amount to “indoctrination”? How far down this path must a course go before it “tends” to indoctrinate or proselytize? Does the course tend to “indoctrinate” or “proselytize” if the professor simply believes that there are true answers to religious questions? Does it matter whether or not the professor mentions different answers to the same religious questions? If the school restricts a professor’s speech in order to avoid the “indoctrination” label, isn’t it undermining “academic freedom”? What does it mean to “proselytize”? Does “proselytize” simply mean to attempt to persuade another about a religious question? Are faculty therefore forbidden from trying to persuade their students? And what questions are “religious”? Were Martin Luther King, Jr.’s views on racial equality “religious”?
- When does a governing board “reflect” a “particular religion”? Must all of its members share a “particular religion” before the board is said to “reflect” that religion? And what exactly is meant by “particular religion”? Do Mennonites and Greek Orthodox share the same “particular religion”? Do members of the Presbyterian Church (USA) and members of the Presbyterian Church in America share the same “particular religion”?
- What does it mean for a “source” of funds to “advocate” for a particular religion? If a student pays tuition, is that student “advocating” for a particular religion?
9. Is CCU “pervasively sectarian”?
It is difficult to know because the phrase is so imprecise. A university within the Roman Catholic tradition has been deemed not pervasively sectarian while the CCHE concluded that CCU is pervasively sectarian. The CCHE has not offered a reasoned basis for reaching different conclusions. CCU does not deny that it is a Christ-centered liberal arts institution. It is not ashamed of its faith commitments. CCU will not understate its Christian character in order to get state aid for its students. But, CCU believes that the state should NOT be, in effect, forcing CCU to make such a choice.
10. Isn’t it wrong for the state to direct taxpayers’ dollars to support religious education?
If CCU students were included in the aid program, it would be inaccurate to say that the state was directing taxpayers’ dollars to support religious education. Colorado’s financial aid programs allow a student to choose where he or she wishes to attend college, and the aid to which he or she is entitled simply follows him or her to the school.
11. Won’t giving aid to CCU students entangle the state in CCU’s affairs?
No. CCU students already benefit from federal aid programs without any entanglement problems. CCU does not object to the state ensuring that it is accredited and that funds are used for their intended purposes.
It is far more entangling for the state to put a legitimate, fully-accredited religious school under a microscope to determine, essentially, whether it is too religious, and, therefore, “pervasively sectarian,” thus punishing the institution for maintaining its religious convictions without dilution to meet state rules.
