State Supreme Court strikes down aid to religious school

jcheves@herald-leader.com, jbrammer@herald-leader.comApril 23, 2010 

The Kentucky Supreme Court on Thursday struck down the legislature's 2006 attempt to give $11 million in state funds to a private religious university for a pharmacy program, but it did so without restricting other kinds of state aid that flow to religious colleges.

The court's decision focused on the Baptist-affiliated University of the Cumberlands in Williamsburg, which wanted $10 million to build a pharmacy school and $1 million to start a pharmacy scholarship program.

Kentucky's Constitution prohibits state money from going to a "church, sectarian or denominational school," the court said. The funding, backed by Senate President David Williams, R-Burkesville, also violated the Constitution's rule against "special legislation" because it was intended exclusively for one small category of students, it said.

"If Kentucky needs to expand the opportunities for pharmacy school education within the commonwealth, the Kentucky General Assembly may most certainly address that pressing public need, but not by appropriating public funds to an educational institution that is religiously affiliated," Justice Lisabeth Hughes Abramson wrote for the majority, upholding a 2008 circuit court ruling that blocked the funding.

Williams, who previously argued that the funding was legal, declined to comment Thursday.

Having lost twice in court, the University of the Cumberlands will drop its pharmacy school plans, said its president, James Taylor.

Since the university declared its ambitions several years ago, the University of Kentucky has expanded its pharmacy school, Sullivan College has opened one in Louisville and Midway College recently announced plans to start a pharmacy program in Paintsville, Taylor said.

"In our view, we have accomplished our purpose, which was to meet a critical need for pharmacists in the Appalachian area and beyond," Taylor said.

The court did not address the millions of dollars in state tuition grants awarded to students at private religious colleges in Kentucky, including the University of the Cumberlands. Nor did it touch on state budget earmarks that assist other religious colleges, such as the $1.5 million a year given for medical scholarships at the Presbyterian-affiliated Pikeville College.

"The court held that this was a special appropriation to a special group of people for a special purpose," said Gary Cox, president of the Association of Independent Kentucky Colleges and Universities. "The court only addressed the pharmacy school issues, and they did not base their decision on financial aid matters. They based their decision on the fact that it was special legislation."

Generally, the precedent established by the U.S. Supreme Court is that public money cannot go directly to religious institutions but it can go to their students, said Alvin Goldman, a University of Kentucky professor emeritus of law.

"The difference between a direct and indirect benefit has been a key distinction for a while," Goldman said. "The argument is, if I'm not a Christian, then why should I be giving my tax dollars over to an institution that is indoctrinating students in religious matters?"

The court did not address the University of the Cumberlands' decision, around the same time it was awarded the $11 million, to expel student Jason Johnson after he disclosed on a Web site that he is gay. The school said it had a rule against homosexuality and extramarital sex.

However, the court noted that under the school's covenant agreement with the Kentucky Baptist Convention, its mission is "to advance the Kingdom of God in the area of Christian education." The university agreed to not use a state-funded pharmacy school for religious purposes, but that deal "cannot change the character of the institution itself," the court ruled.

Johnson's expulsion angered civil-liberties groups and brought the Kentucky Fairness Alliance into the group of plaintiffs, which also included the Jefferson County Teachers Association, the Rev. Albert Pennybacker and the Rev. Paul Simmons.

On Thursday, the Fairness Alliance hailed the ruling against what it called "state-subsidized discrimination."

"Kentucky taxpayers aren't expected to fund private, religion-based institutions," said Travis Myles, board chairman for the Fairness Alliance. "This is a timely and important victory for Kentucky benefiting our state's commitment to excellence in public education and the struggle for inclusive public policy for the lesbian, gay, bisexual and transgender community."

Five justices joined in the court's majority opinion.

Two justices shared a dissenting opinion that agreed the funding violated the prohibition against state aid for religious schools but disagreed that it was unconstitutional "special legislation."

Staff writer Cheryl Truman contributed to this report.

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