Private Religious Colleges Entitled to Government Funds
 
October 3, 2001
 

In a potentially groundbreaking case, the U.S. Court of Appeals for the Fourth Circuit held this year that the decades-old, "pervasively sectarian" test was inapplicable in determining whether the Constitution permits private religious colleges to receive government-funded grants. In Columbia Union College v. Oliver, 254 F.3d 496, 504 (4th Cir. 2001), a private, four-year college (Columbia Union) controlled by the Seventh-Day Adventist Church applied for a grant from Maryland's Sellinger Program. The program provides aid to private institutions based on six neutral criteria, but prohibits aid for sectarian purposes. Maryland denied Columbia Union's application because it deemed the college to be a "pervasively sectarian" institution and concluded, therefore, the grant would violate the Establishment Clause of the First Amendment.

Columbia Union sued, but the district court ruled for Maryland. On appeal, the Fourth Circuit held that Maryland's perfunctory denial of the grant violated Columbia Union's right to free speech. Relying on Roemer v. Board of Public Works of Maryland, 426 U.S. 736 (1976), the court stated that the Constitution allows states to grant money directly to the "general secular education programs of religious colleges only if those colleges are not pervasively sectarian." The court remanded the case for a more thorough analysis of whether Columbia Union was "pervasively sectarian." On remand, the district court held that Columbia Union was not a pervasively sectarian institution. The State of Maryland appealed.

On the second appeal, the Fourth Circuit questioned whether the decision in Mitchell v. Helms, 530 U.S. 793 (2000) had changed the legal landscape. The court noted that Justice O'Connor's concurring opinion, which was the controlling opinion from Mitchell, replaced the "pervasively sectarian" test with a principle of "neutrality plus." The court further noted that O'Connor's opinion established the following "fundamental guidelines" for Establishment Clause cases: (1) the neutrality of the aid is an important factor, (2) the actual diversion of government aid to religious purposes is prohibited, and (3) the " 'presumptions of religious indoctrination' inherent in the pervasively sectarian analysis 'are normally inappropriate when evaluating neutral school-aid programs under the Establishment Clause.' " The Fourth Circuit noted that, although neutrality is an important consideration, courts also must determine whether actual diversion of aid occurs and whether the particular facts of each case indicate that the government program violates the Establishment Clause.

Applying the Mitchell analysis to the grant program, the court stated that the program had a secular purpose of "supporting private higher education," thus satisfying the first prong of the test. Second, the court determined that the grant did not have the effect of advancing religion because the aid was based on neutral criteria. Noting that the college met the requirements of the Maryland statute establishing the grant program, the court found that the grant program "assigns funds in a neutral and even-handed manner 'without regard to religion.' "

Third, the court determined that Maryland failed to present evidence of actual diversion of government aid to religious purposes. To the contrary, the Maryland statute safeguarded against "sectarian diversion" by expressly prohibiting a qualifying institution from using the grant "for sectarian purposes." Finally, the court noted that Columbia Union's use of the grant was constitutional because it was an institution of higher learning, which historically receive more lenient treatment from the courts than elementary or secondary schools.

Because the grant program satisfied the "neutrality plus" criteria of Mitchell, the court believed that the U.S. Supreme Court would find the program constitutional "without resort to a pervasively sectarian analysis." The court noted that even if a pervasively sectarian analysis was used, the district court did not clearly err in its findings that Columbia Union was not pervasively sectarian. Therefore, the appellate court affirmed the judgment of the district court and held that Columbia Union's use of the grant money to fund secular educational programs did not violate the Establishment Clause.

The Columbia Union case creates an opportunity for the Supreme Court to formally announce a "neutrality plus" test. Given the increasing prevalence of faith-based initiatives and school voucher programs, private religious colleges surely will continue to seek public funding. At the same time, the Constitution will require safeguards to ensure public funds are used only for secular purposes. We will keep you apprised of where the courts will draw the line.

For further information, contact Scott Makar at 1-888-688-8500 or via e-mail at smakar@hklaw.com.

*Heidi Peck was a summer associate in our Jacksonville office. She attends University of Florida Levin College of Law.