Colorado Christian University
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Case 1:04-cv-02512-MSK-BNB Document 47-3 Filed 12/01/2005 Page 1 of 29� IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-02512-MSK-BNB COLORADO CHRISTIAN UNIVERSITY, Plaintiff, v. JUDY P. WEAVER, et al., Defendants. BRIEF OF THE UNITED STATES AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT INTRODUCTION AND INTEREST OF THE UNITED STATES Colorado Christian University (“CCU”) has sued the members and executive director of the Colorado Commission on Higher Education (“CCHE”) for alleged violations of the First and Fourteenth Amendments of the United States Constitution. CCU alleges that defendants violated its rights by excluding it from state-funded financial assistance programs pursuant to a Colorado statute that prohibits students from receiving financial assistance to attend “pervasively sectarian” institutions, although defendants have permitted institutions like Regis University, a Jesuit school, to participate. Amended Compl., ¶¶6-12. Congress has recognized the United States’ interest in eliminating religious discrimination in education by authorizing the United States to intervene in federal cases seeking relief from a denial of equal protection of the laws under the Fourteenth Amendment on account of, inter alia, religion. 42 U.S.C. §2000h-2. The United States therefore has a vital interest in Case 1:04-cv-02512-MSK-BNB Document 47-3 Filed 12/01/2005 Page 2 of 29� ensuring that educational opportunities are available to all individuals consistent with the First and Fourteenth Amendments. Further, this case raises important questions about the scope of the Supreme Court’s decision in Locke v. Davey, 540 U.S. 712 (2004), and the degree to which the principle of nondiscrimination on the basis of religion must yield to a state’s interest in seeking a greater degree of separation of church and state than required by the Constitution. In Locke, the United States, as amicus curiae, argued that operating a generally available post-secondary scholarship program, but excluding from it individuals studying theology, violated the Free Exercise Clause of the First Amendment. The Court disagreed on very narrow grounds. Defendants here ask the Court to over-read Locke to insulate state programs that exclude students attending religiously affiliated entities, regardless of whether a student is pursuing devotional or secular studies. Because in recent years states and the federal government have enacted programs to provide lower income students access to quality educational opportunities offered by secular and sectarian schools, the United States has a significant interest in ensuring that Locke is properly interpreted so as not to impede these nascent educational reforms. See, e.g., Consolidated Appropriations Act of 2004, Pub. L. No. 108-199, 118 Stat. 3, 126-134 (creating opportunity scholarship program for K-12 students in the District of Columbia). Pursuant to these interests, the United States hereby submits this amicus brief in support of plaintiff, which argues that defendants’ exclusion of CCU from state-financed financial assistance programs discriminates on the basis of religion in violation of the First and Fourteenth Amendments. 2 Case 1:04-cv-02512-MSK-BNB Document 47-3 Filed 12/01/2005 Page 3 of 29� LEGAL STANDARD Summary judgment is proper when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). In the context of Rule 56, the court’s function is not to decide disputed questions of fact, but only to determine whether genuine issues of fact exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). The movant bears the burden of showing the absence of a genuine material fact. This burden may be met by showing that there is an absence of evidence to support the non-moving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 323-35 (1986). For those issues on which it has the burden of proof at trial, the movant “must establish every element of its claim or defense by sufficient, competent evidence to set forth a prima facie case.” In re Ribozyme Pharmaceuticals, Inc. Securities Litig., 2009 F. Supp. 2d 1106, 1111 (D. Colo. 2002). For those issues on which it does not have the burden of proof, the movant “must point to an absence of evidence in the record to support the elements of the claim or defense which the other is obligated to prove.” Id. SUMMARY OF ARGUMENT At issue is whether the State of Colorado, having determined that (1) access to higher education should not depend on one’s financial resources; (2) access should be offered at a wide range of public and private institutions; and (3) access should include some sectarian institutions, may exclude other sectarian institutions from state funded financial assistance programs. The 3 Case 1:04-cv-02512-MSK-BNB Document 47-3 Filed 12/01/2005 Page 4 of 29� State may not do so without violating the Equal Protection Clause of the Fourteenth Amendment and the Free Exercise and Establishment Clauses of the First Amendment. The touchstone of all three clauses is government neutrality toward religion. They “speak with one voice on this point: Absent the most unusual circumstances, one’s religion ought not affect one’s legal rights or duties or benefits.” Bd. of Educ. v. Grumet, 512 U.S. 687, 715 (1994) (O’Connor, J., concurring in part and concurring in the judgment). Yet, the clauses incorporate distinct prohibitions, and this court only need find that defendants have violated any one of them to grant summary judgment for CCU. The Equal Protection Clause prohibits different treatment of similarly situated individuals. When different treatment is based on a suspect classification like religion, strict scrutiny applies and the state must show that its action is narrowly tailored to achieve a compelling governmental interest. See New Orleans v. Dukes, 427 U.S. 297, 303 (1976). Defendants cannot make that showing here. Although defendants argue that CCU’s exclusion is justified to avoid “excessive entanglement issues” via funding of religious education, the state is in fact already doing so by providing financial assistance to students at a Jesuit university and issuing tax-exempt bonds on behalf of secular and sectarian educational institutions in Colorado. Having provided this benefit to one religious faith, defendants cannot deny it to a different faith, absent compelling justification, which the defendants cannot show. See Argument, §I, infra. The Establishment Clause prohibits a state from passing laws which aid one religion or prefer one religion over another. See Larson v. Valente, 456 U.S. 228, 244 (1982). Defendants 4 Case 1:04-cv-02512-MSK-BNB Document 47-3 Filed 12/01/2005 Page 5 of 29� have violated this neutrality requirement by providing financial assistance to students attending Regis but not to students attending CCU. See Argument, §II, infra. The Free Exercise Clause requires that a law substantially burdening the exercise of religion must be neutral and generally applicable. See Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 531-32 (1993). When the law in question is not neutral or not generally applicable but singles out religion generally, or a particular faith, the state must show that its action advances interests of the highest order and is narrowly tailored in pursuit of those interests. Defendants’ exclusion is not neutral and generally applicable: it permits Regis students to receive financial assistance, but not CCU students. It also targets institutions that the defendants deem “pervasively sectarian” but not other institutions that defendants deem sufficiently secular. The defendants have failed to show that such discrimination is supported by compelling governmental interests pursued in a narrowly tailored fashion, and they thus have violated the Free Exercise Clause. See Argument, §III, infra. ARGUMENT I. First Claim (Equal Protection Clause) A. Undisputed Facts 1. The State of Colorado’s policy is to provide financial assistance for qualified low income students to attend public and private institutions of higher education in Colorado who would otherwise be financially unable to attend college. Colo. Rev. Stat. §23-3.5-101; Pls.’ Mot. for Summ. J. (“MSJ”) Exs. 10 (CCHE Mem. of 4/4/03 at 1) (“Colorado has defined access to higher education as its number one priority. Access is gained through controlled tuition increases 5 Case 1:04-cv-02512-MSK-BNB Document 47-3 Filed 12/01/2005 Page 6 of 29� and increased financial aid funding, especially for students in lower income groups.”), & 11 (State-Funded Financial Aid Policy of 3/4/04). 2. Since 1977, Colorado has awarded financial assistance through a variety of need- and merit-based programs administered by the Colorado Commission of Higher Education (CCHE). Ams. United for Separation of Church & State Fund, Inc. v. State, 648 P.2d 1072, 1074 (Colo. 1982). These programs today include Colorado Student Grants, Colorado Graduate Grants, the Centennial Scholars and Colorado Graduate Scholars programs, and the Colorado Work Study Program. (Pls.’ MSJ Ex. 11 at 6.) 3. Students may use CCHE financial assistance to attend any public or private post secondary institution in Colorado except a “pervasively sectarian” one. Colo. Rev. Stat. §§23- 3.3-101(d), 23-3.5-105. The Colorado state legislature enacted this exclusion in 1977 based on its understanding at that time of the Supreme Court precedents governing state aid to religious institutions. Ams. United, 648 P.2d at 1075 n.1. 4. CCHE is responsible for determining whether an institution is eligible to participate in the state financial assistance programs, including determining whether an institution is pervasively sectarian.