The Supplement to A Legal Guide for Student Affairs Professionals E-Book

William A. Kaplin

• Herausgeber: John Wiley & Sons
• Kategorie: Bildung
• Sprache: Englisch

Seitenzahl: 260

Veröffentlichungsjahr: 2011

Beschreibung

Based on A Legal Guide for Student Affairs Professionals, SecondEdition, this indispensable resource offers guidance on recentlegal developments affecting higher education institutions andprograms. The Supplement provides analysis, commentary, andresources especially for student affairs practitioners and graduatestudents in student affairs administration courses. The Supplement covers developments from mid-2008 throughDecember, 2010. It includes discussions of court opinions,statutes, regulations, and related developments, as well asbibliography entries and text citations to selected law journalarticles, books, web sites, and other new resources. Topics coveredinclude: the Higher Education Opportunity Act; litigation involvingonline courses and programs; the U.S. Supreme Court's decision inthe Christian Legal Society case on student organizations'membership policies; new cases involving students withdisabilities; new federal rules on federal student loan programs;student academic dismissals and codes of professional ethics; newdevelopments in student discipline; institutional liability forstudent suicide; guidelines for searching residence hall rooms; andcampus security issues.

Leseprobe

Contents

Preface

Acknowledgments

About the Authors

Part One: Perspectives and Foundations

Chapter 1: Overview of Higher Education Law

Sec. 1.3. The Governance of Higher Education

Sec. 1.4. Sources of Higher Education Law

Sec. 1.5. The Public-Private Dichotomy

Sec. 1.6. Religion and the Public-Private Dichotomy

Selected Annotated Bibliography

Chapter 2: Legal Planning and Dispute Resolution

Sec. 2.2. Litigation in the Courts

Sec. 2.4. Institutional Management of Liability Risk

Selected Annotated Bibliography

Part Two: The College, Its Governing Board, and Its Employees

Chapter 3: The College and Its Trustees

Sec. 3.1. The Question of Authority

Sec. 3.2. Institutional Tort Liability

Sec. 3.4. Institutional Liability for Violating Federal Constitutional Rights (Section 1983 Liability)

Selected Annotated Bibliography

Chapter 4: The College and Its Employees

Sec. 4.2. Employment Contracts

Sec. 4.3. Collective Bargaining

Sec. 4.4. Personal Liability of Employees

Sec. 4.5. Employment Discrimination

Sec. 4.7. Application of Nondiscrimination Laws to Religious Institutions

Sec. 4.8. Faculty Academic Freedom and Freedom of Expression

Selected Annotated Bibliography

Part Three: The College and Its Students

Chapter 5: The Legal Status of Students

Sec. 5.2. The Contractual Rights of Students

Sec. 5.3. Student Academic Freedom

Sec. 5.4. Students’ Legal Relationships with Other Students

Sec. 5.5. Student Files and Records

Selected Annotated Bibliography

Chapter 6: Admissions and Financial Aid

Sec. 6.1. Admissions

Sec. 6.2. Financial Aid

Selected Annotated Bibliography

Chapter 7: The Campus Community

Sec. 7.1. Student Housing

Sec. 7.2. Campus Computer Networks

Sec. 7.3. Campus Security

Sec. 7.4. Other Support Services

Selected Annotated Bibliography

Chapter 8: Academic Policies and Concerns

Sec. 8.2. Awarding of Grades and Degrees

Sec. 8.3. Sexual Harassment of Students by Faculty Members

Sec. 8.4. Evaluating Students with Disabilities

Chapter 9: The Disciplinary Process

Sec. 9.1. Disciplinary and Grievance Systems

Sec. 9.2. Disciplinary Rules and Regulations

Sec. 9.3. Procedures for Suspension, Dismissal, and Other Sanctions

Selected Annotated Bibliography

Chapter 10: Students’ Freedom of Expression

Sec. 10.1. Student Protests and Freedom of Speech

Sec. 10.2. Speech Codes and the Problem of Hate Speech

Part Four: The College and Its Student Organizations

Chapter 11: Student Organizations and Their Members

Sec. 11.1. Student Organizations

Sec. 11.2. Fraternities and Sororities

Sec. 11.3. The Student Press

Chapter 12: Athletics

Sec. 12.3. Athletes’ Freedom of Speech

Sec. 12.6. Sex Discrimination

Selected Annotated Bibliography

Part Five: The College And the Outside World

Chapter 13: Local and State Governments

Sec. 13.1. Local Governments and the Local Community

Sec. 13.2. State Government

Chapter 14: The Federal Government

Sec. 14.2. Copyright Law

Sec. 14.5. Americans with Disabilities Act

Sec. 14.9. Civil Rights Compliance

Chapter 15: Private Entities

Sec. 15.2. Accrediting Agencies

Sec. 15.3. Athletic Associations and Conferences

Case Index

Statute Index

Subject Index

Copyright © 2011 by John Wiley & Sons, Inc. All rights reserved.

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The Supplement to A Legal Guide for Student Affairs Professionals, 2nd Edition, ISBN: 978-1-118-03187-2

Library of Congress Cataloging-in-Publication Data

Kaplin, William A.

A legal guide for student affairs professionals / William A. Kaplin, Barbara A. Lee.

— 2nd ed.

p. cm.

Includes bibliographical references and index.

ISBN 978-0-470-43393-5 (alk. paper)

1. College students—Legal status, laws, etc.—United States. 2. Universities and colleges—Law and legislation—United States. I. Lee, Barbara A. II. Title.

KF4243.K36 2009

344.73'079—dc22

2008049095

Notice of Web Site and Periodic Supplements

The authors, in cooperation with the publisher, have made arrangements for two types of periodic updates for the second edition of A Legal Guide for Student Affairs Professionals (SA 2d). First, the authors prepare periodic supplements to SA 2d (as they also do for The Law of Higher Education, fourth edition (LHE 4) and the Student Version of LHE 4). This 2011 Supplement is the first such supplement for SA 2d. Second, the National Association of College and University Attorneys (NACUA) hosts a Web site for SA 2d (as well as for LHE 4 and the Student Version), the primary purpose of which is to provide quick access to the authors’ brief updates and citations on major new developments and resources that affect the discussions in these books. The Web site may be accessed through the NACUA Web site at http://www.nacua.org/publications/lohe. Further directions for using this Web site are also available at this address.

Both of these updating services for users of A Legal Guide forStudent Affairs Professionals, second edition, are intended to be a response to the law’s dynamism—to the rapid and frequent change that occurs as courts, legislatures, government agencies, and private organizations develop new requirements, revise or eliminate old requirements, and devise new ways to regulate and influence institutions of higher education.

The authors have not designed SA 2d to be used as a teaching text in college courses. For instructors who do wish to use the book for that purpose, however, there are two sets of teaching materials on the authors’ NACUA Web site that may be of assistance. One set is keyed to LHE 4; the other set is keyed to the student edition (Student Version) of LHE 4. By perusing the tables of contents for these teaching materials, instructors should easily be able to identify edited cases, notes and questions, problems, and large-scale problem exercises that could be used in conjunction with SA 2d.

Preface

This volume updates and supplements A Legal Guide for Student Affairs Professionals, second edition, 2009 (hereafter SA 2d), published by Jossey-Bass, Inc., Publishers. The 2011 Supplement covers developments from the press deadline for SA 2d in mid-2008 through December, 2010. We have included discussions of court opinions, statutes, regulations, and related developments, as well as bibliography entries and text cites to selected law journal articles, books, Web sites, and other new resources. In selecting new developments for inclusion, we have considered, primarily, the development’s significance for higher education; the development’s fit with the subject matter and themes of SA 2d; and the development’s usefulness for filling in gaps, clarifying, or updating specific points in SA 2d. When selecting cases, we have also considered the completeness and helpfulness of the reasoning in the court’s opinion.

The 2011 Supplement is organized to parallel SA 2d. Each new development is keyed to a particular section of SA 2d. Occasionally, other entries are also included in particular sections under the heading Clarification or the heading Erratum. If the development modifies or extends a specific point in SA 2d, a page reference is also provided in parentheses: for example, “(see SA 2d, p. 247).” Similarly, whenever a development can be better understood with reference to some background material in SA 2d, a reference to the pertinent page or section of SA 2d is provided in parentheses. Internal cross-references to other sections of this Supplement are also used as appropriate: for example, “(see this Supplement, Section 4.3).”

In addition to providing further development of issues discussed in SA 2d, we have also added new issues and developments. Topics receiving the most extensive treatment include the ruling of the U.S. Supreme Court on the application of institutions’ nondiscrimination policies to faith-based student organizations (Christian Legal Society v. Martinez); the continuing struggle to balance the requirements of the free exercise and establishment clauses of the First Amendment in regard to state funds for sectarian institutions or their students; attempts of students to claim that institutions and their faculty have a fiduciary duty with respect to their interactions with students; implications of new laws such as the 2008 amendments to the Americans with Disabilities Act, the Lily Ledbetter Pay Equity Act, and the Genetic Information Nondiscrimination Act (GINA); developments in interpretations of Fourth Amendment protections against searches of both students and employees at public institutions; and the continuing impact on academic freedom of the U.S. Supreme Court’s decision in Garcetti, in which the Court ruled that public employees are not protected by the First Amendment if their speech is work-related. In addition, this Supplement examines new developments in sexual harassment law (of and by both students and faculty, as well as third parties); new requirements imposed by the Higher Education Opportunity Act of 2008; student protest and lawful institutional restrictions on such activities; student academic freedom in the context of course and clinical requirements; and other student free speech and press issues. In order to account for new developments not treated extensively in SA 2d, we have added three new subsections: coaches’ contracts (Section 4.2.3), the rights of transgender employees (Section 4.5.2.8), and state gun possession laws and their implications for institutions’ policies against weapons on campus (Section 13.2.7).

Earlier versions of much of the material in this Supplement previously appeared on our Web site for SA 2d and our related publications, hosted by the National Association of College and University Attorneys. SA 2d material posted on the Web site prior to December 31, 2010 was removed shortly after publication of this Supplement. We will still update this Web site, however, with SA 2d developments occurring after December 31, 2010, as well as with occasional clarifications and errata. The Web site may be accessed at www.nacua.org/publications/lohe/index.asp. For the SA 2d postings, look under Additional Resources for A Legal Guide for Student Affairs Professionals. We will continue to make such postings for SA 2d on our Web site until publication of the next supplement.

As with SA 2d (see p. xxii), the 2011 Supplement is not intended as a substitute for the advice of legal counsel. Nor, in a problem-solving context, is it intended as a substitute for research into the primary legal resources or for individualized study of each legal problem’s specific circumstances.

August 2011

William A. Kaplin Washington, DC

Barbara A. Lee New Brunswick, N.J.

Acknowledgments

The authors extend their appreciation to Jossey-Bass, Inc., publisher of A Legal Guide for Student Affairs Professionals, 2nd edition (SA 2d), for its cooperation in the publication of this 2011 Supplement. We also appreciate the support of the National Association of College and University Attorneys (NACUA), which graciously sponsors a Web page on which we posted updates to SA 2d from the time of its publication (as well as updates to the fourth edition of The Law of Higher Education and the Student Version of the fourth edition of The Law of Higher Education).

We are also grateful to the persons who assisted us in various ways with the preparation of the manuscript. Taylor Stevens, Sarah Grimme, and Andrew Garcia, former students at Stetson University College of Law, assisted with the research. Donna Snyder, at The Catholic University of America School of Law, provided important organizational and word processing services, as did Louise Petren and her staff at Stetson. Dean Veryl Miles at Catholic law school provided a summer research grant to W.K. to support work on this Supplement; and Dean Darby Dickerson at Stetson supported W.K.’s work on the Supplement in various important ways. B.L. is grateful to Rutgers University for approving a sabbatical leave that provided time to prepare this Supplement and other scholarly work.

NACUA has encouraged and supported our work for many years. We are grateful to Kathleen Curry Santora and Karl Brevitz for their consistent support, and for their willingness to create and manage the special Law of Higher Education Web site that we use to keep all of our books up-to-date and to provide resources for instructors who use either the fourth edition, the Student Version, or SA 2d. Linda Henderson, formerly manager of publications for NACUA, was instrumental in creating and updating the Web site, and we continue to appreciate, and benefit from, her professional assistance and moral support. Jen Morrissey, NACUA’s program specialist, has ensured that all of our Web-based updates were posted in a timely fashion.

We also appreciate the patience and understanding of our families, who have supported our work over the decades, and who clearly understand the dynamism of higher education law and its importance to the various constituencies that we serve.

About the Authors

William A. Kaplin is research professor of law at The Catholic University of America, Washington, D.C., where he is also special counsel to the university general counsel. He is also Distinguished Professorial Lecturer at the Stetson University College of Law in Florida and a Senior Fellow of Stetson’s Center for Excellence in Higher Education Law and Policy. He has been a visiting professor at Cornell Law School, at Wake Forest University School of Law, and at Stetson; a distinguished visiting scholar at the Institute for Higher Education Law and Governance, University of Houston; and a visiting scholar at the Institute for Educational Leadership, George Washington University. He is a former editor of The Journal of College and University Law, and now serves as a member of its editorial board. He is a former member of the Education Appeal Board at the U.S. Department of Education. He is also a member of the U.S./U.K. Higher Education Law Roundtable that had its first meeting in summer 2004 at New College, Oxford University, and a mentor/leader for the bi-annual Higher Education Law Roundtable for emerging scholars at the University of Houston Law Center.

Professor Kaplin received the American Council on Education’s Borden Award, in recognition of the first edition of The Law of Higher Education, and the Association for Student Judicial Affairs’ D. Parker Young Award in recognition of research contributions. He has also been named a Fellow of the National Association of College and University Attorneys.

In addition to coauthoring the fourth edition of The Law of Higher Education, Professor Kaplin has also coauthored (with Barbara A. Lee) The Law of Higher Education, Fourth Edition: Student Version (Jossey-Bass, 2007); Cases, Problems, and Materials for Use with The Law of Higher Education (NACUA, 2006); and A Legal Guide for Student Affairs Professionals, second edition (Jossey-Bass, 2009). He also authored American Constitutional Law: An Overview, Analysis, and Integration (Carolina Academic Press, 2004).

William Kaplin received his B.A. degree (1964) in political science from the University of Rochester and his J.D. degree with distinction (1967) from Cornell University, where he was editor-in-chief of the Cornell Law Review. He then worked at a Washington, D.C. law firm, served as a judicial clerk at the U.S. Court of Appeals for the District of Columbia Circuit, and was an attorney in the education division of the U.S. Department of Health, Education and Welfare before joining the Catholic University law faculty.

Barbara A. Lee is professor of human resource management at the School of Management and Labor Relations, Rutgers University, in New Brunswick, N.J. She is also of counsel to the law firm of Edwards Angell Palmer & Dodge, LLP. She is a former dean of the School of Management and Labor Relations, and also served as associate provost, department chair, and director of the Center for Women and Work at Rutgers University. She chaired the editorial board of the Journal of College and University Law, served as a member of the Board of Directors of the National Association of College and University Attorneys, and was named a NACUA Fellow. She was elected to membership in the American Law Institute (ALI), serves on the executive committee of the New Jersey State Bar Association’s Section on Labor and Employment Law, and formerly served on the executive committee of the Human Resource Management Division of the Academy of Management. Professor Lee is the immediate past chair of the Higher Education Committee of the New Jersey State Bar Association. She is also a member of the U.S./U.K. Higher Education Law Roundtable. She received a distinguished alumni award from the University of Vermont in 2003, the Daniel Gorenstein Award from Rutgers University in 2009, and the William A. Kaplin Award for Excellence in Higher Education Law and Policy Scholarship from Stetson University College of Law in 2010.

In addition to coauthoring the third and fourth editions of The Law of Higher Education, their supplements and updates, the derivative work A Legal Guide for Student Affairs Professionals (1997), and the supplementary teaching materials, Cases, Problems, and Materials, Professor Lee also coauthored Academics in Court (1987, with George LaNoue), and has written numerous articles, chapters, and monographs on legal aspects of academic employment. She serves as an expert witness in tenure, dismissal, and discrimination cases, and is a frequent lecturer and trainer for academic and corporate audiences.

Barbara Lee received her B.A. degree, summa cum laude (1971) in English and French from the University of Vermont. She received an M.A. degree (1972) in English and a Ph.D. (1977) in higher education administration from The Ohio State University. She earned a J.D., cum laude (1982) from the Georgetown University Law Center. Prior to joining Rutgers University in 1982, she held professional positions with the U.S. Department of Education and the Carnegie Foundation for the Advancement of Teaching.

PART ONE

PERSPECTIVES AND FOUNDATIONS

Chapter 1

Overview of Higher Education Law

Sec. 1.3. The Governance of Higher Education

1.3.1. Basic concepts and distinctions

In recent years, momentum has been building for modifications in state governance structures that would facilitate collaboration between higher education and K–12 education on issues of mutual concern, such as improving high school students’ preparation for college. New types of entities, developed for this purpose, are generally grouped under the title “K–16 initiatives” or “P–16 initiatives.” These initiatives may be attached to the state governor’s executive offices or to the statewide public university system, or may be set up as a separate state-level commission or council. See, e.g., “Diplomas Count 2008: School to College: Can State P–16 Councils Ease the Transition?” (Education Week, June 5, 2008), available at http://www.edweek.org/ew/articles/2008/06/05; Peter Schmidt, “A Tough Task for the States: Efforts to Get Schools and Colleges to Cooperate Yield Both Fixes and Frustration,” Chronicle of Higher Education, p. B6 (March 10, 2006). Collaboration between higher education and K–12 education, and modification of state governance structures to accommodate such collaboration, become increasingly important as the interdependencies and mutuality of interests between K–12 and higher education become increasingly clear. See generally William Kaplin, Equity, Accountability, and Governance: Three Pressing Mutual Concerns of Higher Education and Elementary/Secondary Education, IHELG Monograph 06–11 (Institute for Higher Education Law and Governance, Univ. of Houston, 2007).

1.3.3. External governance

In recent years there has been considerable discussion concerning new concepts of the “public” university and potential new state governance models to fit these new concepts. Decreased state oversight of (and thus increased autonomy for) public universities, decreased state funding, and the consequent appearance of “privatization” have been prominent focal points of the debate. See, for example, Katherine Lyall & Kathleen Sell, The True Genius of America at Risk: Are We Losing Our Public Universities to DeFacto Privatization? (Praeger, 2005); Christopher Newfield, Unmaking the Public University: Forty-Year Assault on the Middle Class (Harvard Univ. Press, 2008).

Sec. 1.4. Sources of Higher Education Law

1.4.2. External sources of law

1.4.2.5. Foreign and international law.

Advances in communication and easy access to digital documents have exposed faculty and college administrators to new legal issues, including issues involving the laws of other nations. For example, a German court entered an injunction requested by six academic publishers against a file-sharing company, RapidShare AG, which had been giving away digital versions of scholarly books, a copyright violation. Steve Kolowich, “A Win for Publishers.”Inside Higher Education, February 24, 2010, available at http://www.insidehighered.com/news/2010/02/24/publishers.

In another incident, a New York University law professor was charged with libel in France on the basis of a book review, written by a law professor in France, that the NYU professor posted on a Web site affiliated with a law journal for which that professor is the editor. The journal is a joint partnership between NYU and the Academy of European Law. The plaintiff is a professor at a business school in Israel. Aisha Labi, “NYU Professor Faces Libel Lawsuit in France for Refusing to Purge Negative Book Review.”Chronicle of Higher Education, February 25, 2010, available at http://chronicle.com/article/NYU-Professor-Faces-Libel-L/64370/. And academics have been sued for libel in British courts because British law requires plaintiffs to prove only that they “have a reputation to defend” in the UK and that the allegedly defamatory material was circulated in the UK, which, if it were posted on a Web site, would not be difficult to prove. Jon Ungoed-Thomas and Michael Gillard, “Libel Tourists Flock to ‘Easy’ UK Courts,”Sunday Times(UK), November 1, 2009, available at http://timesonline.co.uk/tol/news/uk/articles6898172.ece.

Sec. 1.5. The Public-Private Dichotomy

1.5.2. The state action doctrine

Husain v. Springer, 494 F. 3d 108 (2d. Cir. 2007), provides another example of state action issues concerning students. A Student Government Publications Commissioner at a public university impounded copies of an issue of the student newspaper, and certain members of the student senate had supported this action. These students were among the defendants in a First Amendment suit brought by the newspaper editors and other students (see entry on Husain v. Springer in sec. 10.3.3. below). The student defendants argued that they had not engaged in state action and therefore should be dismissed from the case. The district court and the appellate court agreed. The college did not compel or require the student defendants to impound the newspaper, nor did the college encourage this action. To the contrary, the college president had overruled the student government’s action. Moreover, even it could be said that college regulations and policies provided authorization for the students to act, “state authorization was insufficient to establish that the student government defendants were state actors in the circumstances presented here.” (For a contrary case, in which a court held student government members to be engaged in state action, see Amidon v. Student Ass’n of the State Univ. of New York at Albany, 399 F. Supp. 2d 136 (N.D.N.Y. 2005).)

Another case, Limpuangthip v. United States, 932 A. 2d 1137 (D.C. 2007), provides an example of state action issues concerning employees. A private university’s search of a student’s room had led to the student’s conviction on drug charges, and the student argued that the search was state action violating the Fourth Amendment. The search had been conducted by a university administrator accompanied by two university police officers. The administrator was concededly a private actor, not subject to the Fourth Amendment, but the police officers, although employees of the university, were Special Police Officers (SPOs) under District of Columbia law, “authorized to exercise arrest powers broader than that of ordinary citizens and security guards.” The student claimed that this governmental authority of the SPOs present at the search made the search state action. The appellate court agreed that SPOs do become state actors when they invoke their state authority “through manner, word, or deed,” this is, when they act “like . . . regular police officer[s]” rather than employees of a private entity. But the two SPOs, according to the court, did not act in this manner at the search. The administrator had initiated and conducted the search herself; the SPOs had not influenced the administrator’s actions; and their “involvement in the search was peripheral.” Their conduct therefore “does not amount to state action.” (For another state action case about private university police officers who are SPOs, see Maniaci v. Georgetown University in Section 7.3.1 of this Supplement.)

Sec. 1.6. Religion and the Public-Private Dichotomy

1.6.3. Government support for religious institutions

The case of Colorado Christian University v. Weaver, 534 F.3d 1245 (10th Cir. 2008), provides further perspective on both institutional-based aid and student-based aid programs, and on some of the key cases, in particular Locke v. Davey (SA 2d, pp. 43–45), Mitchell v. Helms (SA 2d, pp. 41–42), and Roemer v. Board of Public Works (4th Cir., 2001) (SA 2d, pp. 40–41).

Colorado Christian University (CCU), an evangelical, nondenominational institution, was one of two schools whose students were denied participation in state-operated scholarship programs. The pertinent state statutes provided that scholarships were available to eligible students who attend any accredited college in the state, other than colleges that the state determines to be “pervasively sectarian.” The government purpose for the law was “awarding scholarships to deserving students as universally as federal law permits.” The Colorado legislature had added the “pervasively sectarian” language to ensure that the scholarship programs met the federal establishment clause requirement, articulated by the Supreme Court in Roemer v. Board of Public Works, 426 U.S. 736, 755 (1976), “that no state aid at all [may] go to institutions that are so ‘pervasively sectarian’ that secular activities cannot be separated from sectarian ones” (citing Hunt v. McNair, 413 U.S. 734 (1973)).

CCU challenged the “persuasively sectarian” exclusion on various grounds under the establishment clause, the free exercise clause, and the equal protection clause. Explaining that all three of these clauses apply to religious discrimination, the Tenth Circuit gave prominence to the establishment clause in its analysis but emphasized that “the requirements of the Free Exercise Clause and Equal Protection Clause proceed along similar lines.” Ultimately, the court ruled in CCU’s favor, holding the exclusion to be unconstitutional for two reasons: it “expressly discriminates among religions without constitutional justification, and its criteria for doing so involve unconstitutionally intrusive scrutiny of religious belief and practice.”

Based on the parties’ joint stipulation of facts, the court gave this description of the pervasively sectarian exclusion:

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. [534 F.3d at 1250–51.]

Although the Colorado legislature had inserted these provisions into the aid program statutes in order to comply with the U.S. Supreme Court’s establishment clause law (see above), the law had changed since the statutes were enacted. The court made clear that the “parties agree that under current interpretation, the Establishment Clause poses no bar to inclusion of CCU in the Colorado scholarship programs.” The Colorado legislature had not, however, repealed its statutory restriction on “pervasively sectarian” institutions.

The court framed the issue arising from these facts as follows:

It is now settled that the Establishment Clause permits evenhanded funding of education—religious and secular—through student scholarships. . . . It is therefore undisputed that federal law does not require Colorado to discriminate against Colorado Christian University in its funding programs. Rather, the parties’ dispute centers on whether the State may nonetheless choose to exclude pervasively sectarian institutions, as defined by Colorado law, even when not required to. [534 F.3d at 1253.]

Ruling for the plaintiff CCU, the court answered this question in the negative.

The state defendants had argued that this case was controlled by Locke v. Davey, 540 U.S. 712 (2004) (SA 2d, pp. 43–45). The court agreed that Locke did stand for a general proposition that supported the defendants: “the Free Exercise Clause does not mandate the inclusion of religious institutions within every government program where their inclusion would be permissible under the Establishment Clause” (534 F.3d at 1254). But the court also determined that the specifics of the CCU case were distinguishable from Locke in ways that precluded Locke from being controlling:

[T]he Colorado [“pervasively sectarian”] exclusion, in addition to imposing a far greater burden on affected students, has two features that were not present in Locke and that offend longstanding constitutional principles: (1) the Colorado exclusion expressly discriminates among religions, allowing aid to “sectarian” but not “pervasively sectarian” institutions, and it does so on the basis of criteria that entail intrusive governmental judgments regarding matters of religious belief and practice. . . . (2) Locke involved neither discrimination among religions nor intrusive determinations regarding contested religious questions. The scholarship program at issue in Locke excluded all devotional theology majors equally—without regard to how “sectarian” state officials perceived them to be—and therefore did not discriminate among or within religions. Locke, 540 U.S. at 715–16. Evangelicals and Unitarians, Catholics and Orthodox Jews, narrow sectarians and freewheeling latitudinarians, all were under the same interdiction. And since under the program “[t]he institution, rather than the State, determine[d] whether the student’s major [was] devotional,” the State did not engage in intrusive religious inquiry. Id. at 717. [534 F.3d at 1256 (numbering added).]

These distinctions, as explained and emphasized by the court in CCU, provide helpful guidelines regarding the inclusion of religious institutions, religious programs of study, and religious students within governmental programs of financial aid.