Colorado Christian University v. Weaver

534 F.3d 1245

COLORADO CHRISTIAN UNIVERSITY, Plaintiff-Appellant, v. Judy P. WEAVER, in her official capacity as Chair of the Colorado commission on Higher Education; Raymond T. Baker, Chair of the Colorado Commission on Higher Education; Richard Garcia, official capacity as commissioner of the Colorado Commission on Higher Education; Dean L. Quamme, Vice Chair of the Colorado Commission on Higher Education; Greg C. Stevinson, official capacity as commissioner of the Colorado Commission on Higher Education; James M. Stewart, official capacity as commissioner of the Colorado Commission on Higher Education; Rick Ramirez, in his official capacity as a member of the Colorado Commission on Higher Education; David Skaggs, in his official capacity as Executive Director of the Colorado Commission on Higher Education and of the Colorado Department of Higher Education; Edward Robinson, in his official capacity as a member of the Colorado Commission on Higher Education, Defendants-Appellees, and American Center For Law and Justice; United States of America; Council for Christian Colleges & Universities; American Association of Presidents of Independent Colleges and Universities; Center for Public Justice; Foundation for Moral Law; National Association of Evangelicals; Becket Fund for Religious Liberty and Various Christian, Jewish and Muslim Organizations; The Catholic University of America; The National Education Association; Colorado Education Association; National School Boards Association; National Parent Teacher Association; American Jewish Congress, Americans United for Separation of Church and State; American Civil Liberties Union; People for the American Way Foundation; The Anti-Defamation League; The American Federation of Teachers; The American Jewish Committee, Amici Curiae.

No. 07-1247.

United States Court of Appeals, Tenth Circuit.

July 23, 2008.

Gregory S. Baylor, Center for Law & Religious Freedom, Springfield, VA (Timothy J. Tracey & Isaac Fong, Center for Law & Religious Freedom, Springfield, VA; Eric V. Hall & L. Martin Nussbaum, Rothgerber Johnson & Lyons, LLP, Colorado Springs, CO; Thomas N. Scheffel, Thomas N. Scheffel & Associates, P.C., Denver, CO; Benjamin W. Bull & Gary S. McCaleb, Alliance Defense Fund, Scottsdale, AZ, with him on the briefs) for Plaintiff-Appellant.

Daniel D. Domenico, Solicitor General (John W. Suthers, Attorney General, John R. Sleeman, Jr., Deputy Attorney General, Antony B. Dyl & Michelle M. Merz, Assistant Attorneys General with him on the briefs) Denver, CO, for Defendants-Appellees.

Rena J. Comisac, Acting Assistant Attorney General, Mark L. Gross & Dirk C. Phillips, Attorneys, United States Department of Justice, Civil Rights Division for United States as Amicus Curiae in support of Plaintiff-Appellant.

Michael J. Norton, Burns, Figa & Will, P.C., Greenwood Village, CO; Douglas Laycock, University of Michigan Law School, Ann Arbor, Michigan; & Carl H. Esbeck, Columbia, MO, for Center for Public Justice and National Association of Evangelicals as Amici Curiae in support of Plaintiff-Appellant.

Eric. C. Rassbach & Roger T. Severino for The Becket Fund for Religious Liberty as Amicus Curiae in support of Plaintiff-Appellant.

Jay Alan Sekulow, Washington, D.C., Francis J. Manion, & Geoffrey R. Surtees, New Hope, KY, for American Center for Law and Justice as Amicus Curiae in support of Plaintiff-Appellant.

Stuart J. Lark, Holme Roberts & Owen LLP, Colorado Springs, CO, for The Council for Christian Colleges & Universities, The American Association of Presidents of Independent Colleges and Universities, and The Catholic University of America as Amici Curiae in support of Plaintiff-Appellant.

Gregory M. Jones & Benjamin D. DuPré, Montgomery, AL, for Foundation for Moral Law as Amicus Curiae in support of Plaintiff-Appellant.

Walter Dellinger with Michael Bern, Franciska Coleman & Jessica Lindeman (Student Participants), Harvard Law School, Supreme Court and Appellate Practice Clinic; Pamela Harris & Allison Orr Larsen, O'Melveny & Myers LLP, Washington, D.C.; Marc Stern, American Jewish Congress, New York, NY; Ayesha N. Khan & Richard B. Katskee, Americans United for Separation of Church and State, Washington, D.C.; Daniel Mach, American Civil Liberties Union Foundation, Washington, D.C.; Mark Silverstein, American Civil Liberties Union of Colorado, Denver, CO; Judith E. Schaeffer, People For the American Way Foundation, Washington, D.C.; Steven M. Freeman & Steven C. Sheinberg, Anti-Defamation League, New York, NY; David Strom, American Federation of Teachers, Washington, D.C.; Joshua J. Kunis, American Jewish Congress, New York, NY, for American Jewish Congress, Americans United for Separation of Church and State, American Civil Liberties Union, People For the American Way Foundation, the Anti-Defamation League, the American Federation of Teachers, and the American Jewish Congress as Amici Curiae in support of Defendants-Appellees.

John M. West, Bredhoff & Kaiser, P.L.L.C., Washington, D.C.; Francisco M. Negron, Jr., National School Boards Association, Alexandria, VA; Robert H. Chanin,

National Education Association, Washington, D.C.; Martha R. Houser, Colorado Education Association, for National Education Association, Denver, CO; Colorado Education Association, National School Boards Association, and National Parent Teacher Association as Amici Curiae in support of Defendants-Appellees.

Before McCONNELL, SEYMOUR and HOLMES, Circuit Judges.

McCONNELL, Circuit Judge.

The State of Colorado provides scholarships to eligible students who attend any accredited college in the state—public or private, secular or religious—other than those the state deems "pervasively sectarian." To determine whether a school is "pervasively sectarian," state officials are directed, among other things, to examine whether the policies enacted by school trustees adhere too closely to religious doctrine, whether all students and faculty share a single "religious persuasion," and whether the contents of college theology courses tend to "indoctrinate." Applying these criteria, state officials have extended scholarships to students attending a Methodist university and a Roman Catholic university run by the Jesuit order. They have refused scholarships to otherwise eligible students attending a non-denominational evangelical Protestant university and a Buddhist university. Colorado Christian University, one of the two schools held pervasively sectarian by the State, contends that excluding its students on the basis of this inquiry violates the First and Fourteenth Amendments. The district court disagreed, and granted summary judgment in favor of the state defendants. We find the exclusion unconstitutional for two reasons: the program expressly discriminates among religions without constitutional justification, and its criteria for doing so involve unconstitutionally intrusive scrutiny of religious belief and practice. We reverse, and order that summary judgment be granted in favor of the university.

I. BACKGROUND

The parties have stipulated to a joint statement of facts, from which we draw the following.

A. Colorado Scholarship Programs

Colorado subsidizes higher education in two ways: it provides subsidized education at public universities and scholarships to in-state students who choose to attend private institutions in the State. These scholarships include the Colorado Leveraging Education Assistance Partnership Program, Colo.Rev.Stat. § 23-3.5-102 et seq., Supplemental Leveraging Education Assistance Partnership Program, Colo.Rev. Stat. § 23-3.7-102 et seq., Colorado Student Grants, Colo.Rev.Stat. § 23-3.3-101 et seq., Colorado Work Study, id., and the College Opportunity Fund, Colo.Rev.Stat. § 23-18-102 et seq. Details of these programs vary, but the differences are not pertinent to this dispute. See infra note 1. The scholarships are administered by the Colorado Commission on Higher Education. The Defendants-Appellees are members or officers of the Commission.

To be eligible for any of the scholarship programs, a student must attend an "institution of higher education." Colo.Rev. Stat. §§ 23-3.5-102(2), -3.3-101(2), 3.7-102(3), -18-102(5)(a)(I). The state statutes defining such an institution exclude any college that is "pervasively sectarian" as a matter of state law. Id. §§ -3.5-102(3)(b), -3.3-101(3)(d), -3.7-102(3)(f), -18-102(9). As to the meaning of this term, the statutes provide:

(1) An institution of higher education shall be deemed not to be pervasively sectarian if it meets the following criteria:

(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.

(f) Funds do not come primarily or predominantly from sources advocating a particular religion.

Id. §§ 23-3.5-105, -3.3-101(3)(d), -3.7-104.¹ The meaning of this provision is not plain on its face. The provision tells us what institutions "shall be deemed not to be pervasively sectarian" but provides no affirmative definition. The provision therefore could be construed as a safe harbor for schools that satisfy the criteria, without necessarily implying that failure to satisfy some, but not all, of the criteria must result in exclusion. The record indicates some confusion among Commission officials on this score. The Commission's financial aid officer testified that "she believed that failing four out of six of the statutory criteria was sufficient to fail the `pervasively sectarian' test." App. 97, ¶ 53. The chief financial officer of the Commission testified that the Commission "`would rely on the advice of legal counsel' to determine how...