Americans United for Separation of Church & State Fund, Inc. v. State

648 P.2d 1072, 5 Educ. L. Rep. 1017, 1982 Colo. LEXIS 646
CourtSupreme Court of Colorado
DecidedJuly 12, 1982
DocketNo. 81SA126
StatusPublished
Cited by45 cases

This text of 648 P.2d 1072 (Americans United for Separation of Church & State Fund, Inc. v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Americans United for Separation of Church & State Fund, Inc. v. State, 648 P.2d 1072, 5 Educ. L. Rep. 1017, 1982 Colo. LEXIS 646 (Colo. 1982).

Opinions

QUINN, Justice.

The Americans United for Separation of Church and State Fund, Inc. (Americans United) appeal from a summary judgment granted in favor of the State of Colorado, the Colorado Commission of Higher Education and Regis Educational Corporation (Regis College). The Americans United, seeking declaratory and injunctive relief, claimed that the Colorado Student Incentive Grant Program, section 23-3.5-101 et seq., C.R.S.1973 (1981 Supp.), was facially unconstitutional in that it provided for the appropriation of state funds to private and sectarian colleges in violation of the Colorado Constitution, Colo.Const. Art. II, Sec. 4; Art. V, Sec. 34; Art. IX, Sec. 7; that the statute was unconstitutionally vague, Colo. Const. Art. II, Sec. 25, and impermissively delegated legislative authority to the Commission, Colo.Const. Art. Ill; and that the statute was unconstitutional as applied to Regis College, a private college which the Commission found to be eligible to participate in the program. The district court denied the Americans United’s motion for summary judgment and granted the defendants’ motion for summary judgment on all claims. We affirm that part of the judgment holding section 23-3.5-101 et seq. constitutional on its face. However, because there are genuine issues of fact relating to the applicability of the statutory criteria to Regis College, we reverse that part of the summary judgment entered in favor of Regis College and remand for further proceedings on this aspect of the case.

I. The District Court Proceedings

In 1977 the Colorado legislature passed Senate Bill 398, which established the Colorado Student Incentive Grant Program with an effective date of July 1, 1977. The enactment followed an extensive study of methods to meet the educational needs of Colorado residents through utilization of public and private institutions of higher education. A task force created by the Colorado Commission of Higher Education (Commission) issued a report in November 1977 recommending statutory authority for student grants to resident students attending private institutions of higher education in the state. The policy of the statutory scheme, as declared in section 23-3.5-101, is “to provide assistance to Colorado in-state students attending institutions of higher education, by utilizing federal and other moneys available for such purpose.” An institution of higher education is defined in section 23-3.5-102(3)(a) to include an educational institution operating in the state which:

“(I) Admits as regular students only persons having a certification of graduation from a school providing secondary education or the recognized equivalent of such a certificate;
“(II) Is accredited by a nationally recognized accrediting agency or association and, in the case of private occupational schools, holds a regular certificate from the state board for community colleges and occupational education or is regulated or approved pursuant to any other statute;
“(III) (A) Provides an educational program for which it awards a bachelor’s degree; or
(B) Provides not less than a two-year program which is acceptable for full credit towards such a degree; or
(C) Provides not less than a one-year program of training to prepare students for gainful employment in a recognized occupation; or
(D) Is a private occupational school providing not less than a six-month program of training to prepare students for gainful employment in a recognized occupation.”

[1075]*1075In an attempt to conform to First Amendment doctrine developed by the United States Supreme Court,1 the statutory grant program expressly excludes those institutions which are “pervasively sectarian” or “theological.” Section 23-3.5-102(3)(b), C.R.S.1973 (1981 Supp.). An institution is not deemed “pervasively sectarian” if it meets the following statutory 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.” Section 23-3.5-105(1), C.R.S.1973 (1981 Supp.).

The Commission is authorized to establish the grant program for in-state students having financial need and to administer the program “in accordance with federal law and regulations and guidelines established by the commission.” Section 23-3.5-103(1), C.R.S.1973 (1981 Supp.). The Commission determines the institutions eligible for participation in the program, and each eligible institution then recommends in-state students to the Commission for receipt of a grant. Section 23-3.5-103(2), C.R.S.1973 (1981 Supp.). Participating institutions are prohibited from decreasing the amount of their own funds allocated to student aid below the amount spent prior to participation in the program. Section 23-3.5-103(4), C.R.S.1973 (1981 Supp.). The administration of the grant program is subject to a biannual audit by the state auditor or its designee in order “to determine residency determinations, need analyses, awards, payment procedures, and such other practices as may be necessary to insure that the grant program is being properly administered Section 23-3.5-104, C.R.S. 1973 (1981 Supp.).

The Americans United sought a declaratory judgment and a permanent injunction against further disbursement of public funds, naming as defendants the State of [1076]*1076Colorado, the Commission, Regis College, and all persons eligible to receive funds under the grant program. They challenged the statutory program on the following grounds: that it violates Article II, Section 4 of the Colorado Constitution, which guarantees religious freedom and prohibits both compulsory support of any religious sect and preferences to any religious denomination; that it appropriates money to private and sectarian schools in violation of Article IX, Section 7 of the Colorado Constitution; that it violates Article V, Section 34 of the Colorado Constitution, which prohibits appropriations to private institutions not under the absolute control of the state or to any denominational or sectarian institution; that the statutory scheme is unconstitutionally vague and impermissibly delegates to the Commission the discretion to define whether an institution is “pervasively sectarian” or “theological,” in violation of due process of law, Colo.Const. Art. II, Sec. 25; and that the statutory grant program cannot be applied to Regis College in a manner consistent with the Colorado Constitution. The defendants counterclaimed for a declaration that the grant program was constitutional and that students at Regis College were eligible for financial assistance under the program.2

Both the Americans United and the defendants filed motions for summary judgment.

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Bluebook (online)
648 P.2d 1072, 5 Educ. L. Rep. 1017, 1982 Colo. LEXIS 646, Counsel Stack Legal Research, https://law.counselstack.com/opinion/americans-united-for-separation-of-church-state-fund-inc-v-state-colo-1982.