Legal tug-of-war continues over religious college denied state funds

Friday, October 30, 1998

A federal appeals court has prolonged a legal wrangle between a private, religious-affiliated college in Maryland and state higher education officials.

The 4th U.S Circuit Court Appeals on Monday sent the battle back to a lower district court with an order to decide if the private college is too religious to receive state funding.

Since 1990, administrators at Columbia Union College, a liberal arts school in Takoma Park affiliated with the Seventh-day Adventist Church, have sought funds from a state program. In 1971 the Maryland General Assembly created what is called the Sellinger program to provide yearly state-funded grants to qualifying private colleges and universities.

To obtain the state funds, private colleges must meet a raft of state qualifications. And state money is not available to private colleges that would use it for religious purposes, such as religious instruction, worship or “other activities of a religious nature,” according to the Sellinger program guidelines.

Columbia Union applied for Sellinger funds in 1990 and again in 1996. Both times, the Maryland Higher Education Commission denied funds, citing the First Amendment's establishment clause prohibiting government endorsement of religion. Although the commission acknowledged that the college met all the other state requirements, it found the school too closely aligned with the Seventh-day Adventist Church to receive state funds directly.

After being refused a second time, the college sued the commission in federal court, alleging it had violated the school's free speech, free exercise of religion and equal- protection rights.

Last year the district court approved the commission's actions. The court ruled that even if some constitutional rights of the college were violated, the commission was barred by the establishment clause from directly funding a “pervasively sectarian” institution.

Now the 4th Circuit has ruled that the speech and free exercise of religion rights of the college were violated. Citing the U.S. Supreme Court's 1995 ruling in Rosenberger v. University of Virginia, Judge Diana Gribbon Motz wrote for the 4th Circuit that “generally the First Amendment forbids the government from discriminating for or against private speech because of the content or viewpoint of the speech.”

In Rosenberger, the high court ruled that the University of Virginia could not exclude a Christian publication from receiving student-fee funding made available to other student publications.

However, Motz continued, “it remains to be considered whether the [free speech] violation following the [government's] action is excused by the necessity of complying with the Constitution's prohibition against state establishment of religion.”

Citing the Supreme Court's 1976 ruling in Roemer v. Board of Public Works of Maryland, the district court had held that the college was “pervasively sectarian” and therefore the commission could not directly provide public funds to the college without subverting the establishment clause.

Motz, however, remanded the decision to the district court for it to re-evaluate its perception of the college as “pervasively sectarian.” Motz did so because funding of many education programs at sectarian schools is constitutionally permissible.

“Having determined that direct state funding of the general education courses of 'pervasively sectarian' institutions would violate the Establishment Clause, we must now decide whether the district court properly held that Columbia Union is, as a matter of law, a 'pervasively sectarian' institution,” Motz wrote.

Motz said the district court's conclusion that the college is “pervasively sectarian” was based on “an incomplete record.”

“Although in this case the district court considered many of Columbia Union's written policies, it did not begin to explore the college's practices pursuant to those policies,” Motz wrote. “In sum, notwithstanding the parties' views, determination of this case on summary judgment on this record is impossible. Neither the Supreme Court, nor any circuit court to our knowledge, has ever found a college to be pervasively sectarian. The decision is not a simple one.”

In a dissenting opinion, Judge Jay Harvie Wilkinson accused the majority of sidestepping “the central issue in this case.” According to Wilkinson, 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 said the majority's remand “sets the stage for what should prove to be a relentless inquisition into the religious practices of Columbia Union, its teachers, and its students.” Moreover, Wilkinson said that for the college to gain state funds, it “will have little choice but to mold itself to an exhaustive template of non-sectarianess (sic), jettisoning in the process any of the beliefs and practices that it holds most dear.”

Wilkinson said such an inquisition would harm the First Amendment's free-speech and religion values.

“To hold that Maryland must refuse Columbia Union while allowing it to extend aid to other religious institutions would violate the very principle of neutrality required by the Establishment Clause,” Wilkinson wrote. “The denial of state aid to only certain types of religious institutions – namely, pervasively sectarian ones – exposes government to accusations of religious favoritism. Nowhere is this more evident than in the administration of Maryland's Sellinger Program: Colleges affiliated with the Roman Catholic Church have been approved while Columbia Union, a Seventh-Day Adventist institution, has been rejected.”

Micheal McConnell, a constitutional law scholar and professor at the University of Utah in Salt Lake City, said the court should have eliminated “the whole idea that religious speech and the character of a college disqualifies it from public assistance.”

Echoing some of Wilkinson's concerns about remanding the case to the district court, McConnell said it is “going to be a very strange thing to require a religious institution to try and prove it is not very religious.” McConnell said such a re-hearing could prove potentially damaging.

“Maryland funds all its Catholic colleges, despite the fact that on many points they are as sectarian as Columbia Union,” McConnell said. “So presumably the litigation will not only involve an intensive examination of the curriculum, hiring practices and everything else at Columbia, but of the other religious colleges as well. It is hard to see such an inquiry as advancing the cause of religious freedom.”