People For the American Way Foundation today joined a number of other religious liberty groups, including the ACLU and Americans United for Separation of Church and State, as well as the American Federation of Teachers, in filing an amicus curiae brief in the United States Court of Appeals for the Tenth Circuit in Colorado Christian University v. Baker. The University, a private, religious school, has challenged Colorado tuition assistance programs that do not allow the participation of pervasively sectarian schools, consistent with the state Constitution’s prohibition on public funding of religious education. The University claims that the Colorado programs violate the Free Exercise Clause of the U.S. Constitution. The federal district court ruled otherwise, relying on the Supreme Court’s opinion in Locke v. Davey, which held that a state is not required by the Free Exercise Clause to subsidize a student’s education for the ministry even though it subsidizes secular education.
This case raises significant issues involving public funding of religious schools. The amicus brief that we have joined supports the constitutionality of Colorado’s choice not to fund pervasively sectarian education. In particular, because the University has sought to undermine Locke v. Davey, our brief demonstrates that Locke is fully consistent with Free Exercise doctrine. The Bush Administration has filed an amicus brief in support of the University, contending that Colorado’s exclusion of pervasively sectarian schools from the tuition programs violates the U.S. Constitution.
Our brief was written with the generous pro bono assistance of the law firm of O’Melveny & Myers LLP and the Harvard Law School Supreme Court and Appellate Practice Clinic. We will of course follow this case and report on future developments.