Religious Freedom
Index of Cases
Colorado Christian 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. The University has appealed, and the case is pending before the United States Court of Appeals for the Tenth Circuit. The case raises significant issues involving public funding of religious schools.
People For the American Way Foundation has 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 Court of Appeals. 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.
ur 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.
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On May 16, 2007, attorneys with PFAWF, along with our co-counsel from the ACLU, the ACLU of Texas, and the law firm of Jenner & Block, filed suit in federal district court in Texas on behalf of a group of parents and taxpayers in Odessa, Texas, against the Ector County Independent School District, challenging the school district's offering and teaching of an unconstitutional high school Bible course based on the curriculum of a private organization called the National Council on Bible Curriculum in Public Schools.
Although the Bible and other sacred texts may of course be taught about in public schools, the Supreme Court has made clear that such teaching must be "objective." The NCBCPS materials, however, do not present the Bible objectively, but instead from a specific sectarian perspective, and also as true, as a record of the past, and thus cannot lawfully be taught in a public school.
The plaintiffs asked the Court to prohibit the school district from continuing to teach this course. A copy of the Complaint can be found here.
In January 2008, the parties reached a mediated settlement of the case favorable to the plaintiffs. Under the terms of the settlement agreement, the school district is prohibited after the 2007-2008 school year from teaching a Bible Course based on the NCBCPS curriculum. A local curriculum committee will develop an entirely new curriculum for a course about the Bible, and any future course must be based on that curriculum.
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In 1999, the Florida legislature, with the strong urging of Gov. Jeb Bush, enacted the country's first state-wide voucher program. The program allows students at "failing" public schools (determined by a statutory grading process) to receive vouchers to attend private and religious schools (with no requirement placed on the quality of those schools) or higher graded public schools in the same or adjacent districts. During the 1999-2000 school years, the only "failing" public schools were located in Escambia County.
People For the American Way Foundation, along with the Florida Teaching Profession-NEA, the ACLU, the American Jewish Congress, and other organizations filed suit in state court on behalf of parents and other taxpayers challenging the constitutionality of the voucher program on church/state grounds as well as under the Education Clause of the Florida Constitution, which obligates the state to provide for the education of its children through a free and uniform "system of public schools." The court directed the parties to brief only the Education Clause claim, and heard argument on that issue on February 24, 2000. On March 14, 2000, the court ruled in favor of the plaintiffs, holding that the voucher program violated the Education Clause of the Florida Constitution. The state appealed, an action that, under Florida law, automatically stayed the court's ruling. However, the court had already ruled that students currently in the voucher program could finish out that school year in their voucher schools. The court of appeals heard oral argument on August 16, 2000, and reversed the trial court on Oct. 3, 2000. The State Supreme court declined to review the case at that stage, and sent it back to the circuit court for proceedings on the remaining issues, including the church/state issue under the state Constitution.
In the interim, a sharply divided U.S. Supreme Court ruled 5-4 in Zelman v. Simmons-Harris (June 27, 2002) that a voucher program in Cleveland, Ohio did not violate the Establishment Clause of the federal Constitution. This ruling did not affect the plaintiffs' church/state claims in Holmes under the Florida Constitution, and on July 9, 2002, the circuit court heard argument on the plaintiffs' motion for summary judgment based on those claims. On August 5, 2002, the court granted that motion, ruling that the Florida voucher law violated the provision of the state Constitution providing that "No revenue of the state or any political subdivision or agency thereof shall ever be taken from the public treasury directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution." The court described this language as "clear and unambiguous." The court rejected the state's argument that the voucher program does not directly or indirectly aid sectarian schools because the voucher monies are paid to parents, who then make a choice where to send their children. As the court recognized, the voucher law requires that the parents must endorse the voucher checks over to the voucher schools. The court said that to allow this "two-step" payment mechanism to avoid the state Constitution would read the word "indirectly" right out of the pertinent constitutional provision, and would also be "a colossal triumph of form over substance." The court flatly rejected the state's additional argument that the voucher monies are not "in aid" of the religious schools, stating that "[i]t cannot be logically, legally or persuasively argued that the receipt of these funds does not aid or assist the institution in a meaningful way. The entire educational mission of these schools, including the religious education component, is advanced and enhanced by the additional, financial support received through operation of the Opportunity Scholarship Program." (Emphasis added.) The state appealed the ruling, and oral argument on the appeal was held on March 18, 2003.
On August 16, 2004, the Florida Court of Appeal upheld the circuit court’s ruling in a 2-1 decision. As the majority held, the “no aid” provision of the Florida Constitution clearly prohibits the state from using public funds directly or indirectly to aid religious institutions, as happens under the voucher program. In an 8-6 en banc ruling issued on November 12, 2004, the majority of the full Court of Appeals similarly held that the voucher law violates the "no aid" provision on the state Constitution. The court certified the case to the Florida Supreme Court as one involving a question of “great public importance.” The state appealed to the Florida Supreme Court on January 5, 2006. That Court, in a 5-2 ruling, struck down the voucher law on the ground that it violates the Education Clause of the Florida Constitution. The Court stayed the operation of its ruling to allow current voucher students to finish the school year in their private schools.
PFAWF also served as co-counsel for a group of parents and taxpayers in Anderson v. Town of Durham, a lawsuit brought in Maine state court claiming that religious schools must be included in a Maine tuitioning program for high school students. A similar challenge was rejected by the Maine Supreme Court several years ago, and we urged that Maine's decision not to include religious schools in its taxpayer-supported program again be upheld. Summary judgment was granted against religious school voucher advocates in Anderson, and they appealed. On April 26, 2006, the state Supreme Cout rejected this latest challenge to Maine's tuitioning program, again upholding the state's decision not to subsidize religious education with public funds. The U.S. Supreme Court denied certioari on November 27, 2006. In a similar case, Eulitt v. Maine Department of Education, the U.S. Court of Appeals for the 1st Circuit upheld the Maine tuitioning program in a ruling issued on October 22, 2004. PFAWF joined an amicus curiae brief in that case in support of the state of Maine.
PFAWF has also served as co-counsel for a group of Colorado parents, taxpayers, and organizations in Colorado Congress of Parents, Teachers and Students v. Owen, a challenge to the Colorado voucher plan narrowly approved in 2003. The complaint was filed in state district court, and contended that the plan violated several sections of the Colorado state Constitution. In December 2003, the district court struck down the voucher law, holding that it violated the “local control” provision of the state Constitution pursuant to which local school boards must have control over the educational programs that they help fund. The state appealed, and on June 28, 2004, the Colorado Supreme Court upheld the district court’s ruling that the law violates the state Constitution.
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In June 2005, PFAWF and the National Center for Science Education filed an amicus curiae brief in the United States Court of Appeals for the 11th Circuit in support of the plaintiffs in this case, who have challenged a Georgia school district’s policy requiring that anti-evolution stickers be placed in science textbooks. The district court held that the policy unconstitutionally promotes religion, and the school district appealed. The PFAWF/NCSE amicus brief traces the history of religiously-motivated anti-evolution efforts in the public schools, and places the Cobb County sticker in the latest generation of such efforts. Oral argument was held on December 12, 2005 before Judges Edward Carnes, William Pryor, and Frank Hull. In a decision issued on May 25, 2006, the court of appeals ruled that the record was insufficient for appellable review. The court remanded the case to the district court, ordering it to conduct new evidentiary proceedings and enter a new set of findings.
In late 2006, the parties settled, with Cobb County agreeing that it would not again place such stickers in textbooks nor otherwise prevent or hinder the teaching of evolution. The school district also agreed to pay more than $100,000 in plaintiffs' attorneys' fees.
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