High court won’t hear appeal from religious school seeking state aid

Wednesday, June 16, 1999

The Supreme Court has declined to review a federal appeals court decision that allowed Maryland to refuse funding to a private religious college to avoid church-state separation problems.

On June 14, the high court, with one justice dissenting, denied an appeal of the 4th U.S. Circuit Court of Appeals ruling in Columbia Union College v. Clark. Late last year a panel of the 4th Circuit remanded the case to a federal district court to decide if the private school was too religious to receive state funding.

Lawyers for Columbia Union College, a private liberal arts college in Takoma Park, Md., and affiliated with the Seventh-day Adventist Church, had asked the high court to overturn the 4th Circuit ruling.

College officials had sought funds from a state program that provides funds to private colleges in the state, including sectarian ones. Religious colleges could receive program money if they could prove they wouldn’t use it for religious purposes. The Maryland Higher Education Commission, however, routinely denied the funds to Columbia Union, citing the First Amendment’s establishment clause as a bar to government funding of religious institutions and saying that the college was too closely aligned with the Seventh-day Adventist Church to receive state funds.

The 4th Circuit panel voted 2-1 that the college’s free-speech and free exercise of religion rights had been violated by the denial of funds. However, the panel went on to conclude that the state’s violation of those fundamental rights may have been necessary to avoid subverting the establishment clause. Citing the U.S. Supreme Court’s 1976 ruling in Roemer v. Board of Public Works of Maryland that no state aid should be allowed to fund “pervasively sectarian” institutions, the majority remanded the case to the district court to determine whether the college was so sectarian as to preclude it from direct state funding. Writing for the majority, Judge Diana Gribbon Motz, however, acknowledged that such a determination would be difficult to establish.

“Neither the Supreme Court, nor any circuit court to our knowledge, has ever found a college to be pervasively sectarian,” Motz wrote. “The decision is not a simple one.”

Judge Jay Harvie Wilkinson, who filed the dissenting opinion in the 4th Circuit, said the majority had ignored the real issue in the case. Wilkinson wrote that the majority should have determined whether “the discriminatory treatment of Columbia Union on the basis of its religious viewpoint is compelled by the Establishment Clause.”

Wilkinson, moreover, said the majority opinion would permit the district court to conduct “a relentless inquisition into the religious practices of Columbia Union, its teachers, and its students,” and force the college “to mold itself to an exhaustive template of non-sectarianess” to obtain state funds.

Justice Clarence Thomas, in dissenting from the high court’s denial of review of the 4th Circuit ruling, said the high court should have taken the “opportunity to scrap the ‘pervasively sectarian’ test and reaffirm that the Constitution requires, at a minimum, neutrality not hostility toward religion.”

In a four-page dissent, Thomas said the “pervasively sectarian” test could not be “squared with our more recent jurisprudence.” According to Thomas, the test, articulated in Roemer, was in part based on a now-false assumption that the establishment clause prohibits government funding that in any way benefits religious activities.

“We no longer require institutions and organizations to renounce their religious missions as a condition of participating in public programs,” Thomas wrote. “Instead, we have held that they may benefit from public assistance that is made available based upon neutral, secular criteria.”