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FRANKFORT — The General Assembly violated the state Constitution when it appropriated $10 million to the University of the Cumberlands for a pharmacy building and $2 million for a pharmacy scholarship program in 2006, a judge ruled Thursday.
In an 11-page order that can be appealed, retired Franklin Circuit Judge Roger Crittenden ruled in a summary judgment that “there is no question that the appropriation of $10 million (of) tax dollars to the university to construct a pharmacy building is a direct payment to a non-public religious school for educational purpose.
“This type of direct expenditure is not permitted by the Constitution of Kentucky,” he wrote.
Concerning money for the pharmacy scholarship program, Crittenden said the legislature violated a section of the Constitution when it used the budget bill to enact a permanent program.
Crittenden’s order did not address allegations in the lawsuit that the Southern Baptist school in Williamsburg discriminated against a student’s expressions of free speech.
The legislature’s appropriation occurred a few weeks before University of the Cumberlands kicked out Jason Johnson, a junior from Lexington, because he stated on a Web site that he is gay.
“This court does not need to decide this issue to reach a decision in this case, but this is exactly the ‘entanglement’ between government interests and religious institutions that the Kentucky Constitution prohibits,” Crittenden said.
Near the end of the 2006 General Assembly, Senate President David Williams, R-Burkesville, earmarked the money to the university from coal severance tax receipts. He said the appropriation was justified because his part of the state needs a pharmacy school to address a shortage of pharmacists.
The plaintiffs in the lawsuit included the Rev. Albert M. Pennybacker of Lexington, representing the Interfaith Alliance; the Jefferson County Teachers Association; and the Kentucky Fairness Alliance, representing lesbian, gay, bisexual and transgender people.
The plaintiffs filed suit in April 2006, arguing that the state appropriation was illegal under Kentucky’s constitution.
Later, 13 Republican state legislators joined the university as defendants in the case. The order listed Gov. Steve Beshear in his official capacity as governor as a defendant, replacing former Gov. Ernie Fletcher.
A news release from the university called the decision disappointing and said it would take several days to consider an appeal and the future of the pharmacy school.
“I am grateful to the state legislature for its confidence in the university and for its attempt to enhance opportunities for those who live in our area,” said President James Taylor. “I have no doubt that the funds appropriated for the pharmacy school would have served the public interest well.”
Pennybacker called the ruling “a repudiation of doctrinal ideology intruding on state funds.”
“I think our plea was on constitutional restraints and provisions, both nationally and in Kentucky, advocating the separation of church of state,” Pennybacker said. “This judgment is a major validation of that.”
Section 5 of the Kentucky Constitution provides: “No preference shall ever be given by law to any religious sect, society or denomination: nor to any particular creed, mode of worship or system of ecclesiastical polity. …” Section 189 of the Kentucky Constitution says: “No portion of any fund or tax now existing, or that may hereafter be raised or levied for educational purposes, shall be appropriated to, or used by, or in aid of, any church, sectarian or denominational school.”
“Judge Crittenden’s ruling simply reaffirms that Kentucky taxpayers aren’t expected to fund private, religious institutions,” said Christina Gilgor, director of the Kentucky Fairness Alliance. “It'’s a victory against state-subsidized discrimination. Kentucky’s budget crisis is forcing public schools around the state to tighten their belts. In that climate, a windfall for the University of the Cumberlands is beyond inappropriate.”
However, Crittenden’s ruling did not address discrimination against gays and lesbians, a move applauded by Jason Johnson, the student expelled by the university for being gay.
“I think that hits the nail on the head — my stance all along has been that while religious institutions have the right to hold any beliefs they wish, when it comes to taking public money, we have to have a much broader mind, and that’s the way the judge ruled,” Johnson, now 22, said. “That’s why we have the separation of church and state.”
Johnson was not party to the suit and said he hopes that Cumberlands will someday change its policies on gay students.
Brent McKim of the teachers association said his group joined the suit because of the precedent of public money going to parochial education — particularly a school that discriminates.
“I think it’s the right decision and the just decision,” McKim said.
Students can use money from the Kentucky Educational Excellence Scholarship program at private and religious colleges and universities.
Gary Cox, director of the Association of Independent Kentucky College and Universities, said KEES money goes directly to students, rather than to institutions, so it has not been challenged as a constitutional violation.
Sen. Ernesto Scorsone, D-Lexington, the only openly gay member of the legislature, said in a statement: “Our forefathers, using astute wisdom, mandated the separation of church and state. That separation protects both religion and the state. Public dollars should go to public institutions. To do otherwise is to shortchange the taxpayers.”
In an interview, Scorsone added that the judgment might provide some practical help, too.
“It looks like we just found another $10 million for our budget in these difficult financial times,” he said.
The 13 Republican legislators who joined the suit are: Sens. Vernie McGaha, Russell Springs; Gary Tapp, Shelbyville; Jack Westwood, Crescent Springs; Carroll Gibson, Leitchfield; Damon Thayer, Georgetown; Ernie Harris, Crestwood; and Dick Roeding, Lakeside Park; and Reps. Danny Ford, Mount Vernon; Joe Fischer, Fort Thomas; Mike Harmon, Junction City; Tom Kerr, Taylor Mill; Marie Rader, McKee; and Addia Wuchner, Burlington.
