(NAME-MCE) An Expensive Expulsion

[Anselmo Villanueva]

 When the University of the Cumberlands expelled a gay student, it set off a
chain of events that may lead to its losing a $10 million appropriation.

Complete story below.  For links and related stories, go to:

http://www.insidehighered.com/news/2008/03/07/kentucky

March 7, 2008

An Expensive Expulsion

The Kentucky Fairness Alliance is a group that focuses on gay rights, and it
hasn't historically been a player in issues of church and state. But when
the University of the Cumberlands in 2006 expelled a student for being gay,
and the Kentucky General Assembly shortly thereafter appropriated $10
million to the university to create a pharmacy school at the Baptist
university, the alliance took note.

It filed a suit challenging the appropriation as a violation of the
church-state separation provisions of Kentucky's Constitution — and on
Thursday, a state judge ruled that the appropriation was indeed a violation
and ordered it blocked.

The University of the Cumberlands was backed in court by several groups that
have pushed to loosen or eliminate restrictions on state aid for religious
colleges. They argued that as long as Cumberlands pledged to keep the
pharmacy school secular, there were no church-state implications, and that
Kentucky legislators needed the flexibility to use private religious
colleges, as well as public ones, to advance state goals.

But Judge Roger Crittenden rejected those arguments and said that the
Kentucky Constitution was clear. He quoted Section 189: "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 said that there was "no question" but that the $10 million
was "a direct payment to a non-public religious school" and that "this type
of direct expenditure is not permitted." Defenders of the appropriation
noted that there were sound public policy reasons for supporting a new
pharmacy school and that many court rulings have upheld the use of state
funds for student aid that may be used at private religious colleges.

The judge's ruling didn't challenge the arguments about a pharmacy school
serving a public purpose, but suggested that wasn't relevant to the legal
issues. As to the constitutionality of aid programs, Crittenden wrote that
"there is a fundamental difference between providing scholarships to
Kentucky residents to attend the public or private college of their choice
and providing direct payments to selected non-public schools to develop and
operate educational programs."

While legal briefs on both sides cited the way Cumberlands expelled a gay
student, Crittenden touched on the issue only briefly, in discussing why
jurists and lawmakers have historically worried about "entanglements" by the
government with religion. "The plaintiffs argue that the university
discriminated against a student based upon expressions of free speech while
the university maintains its actions were based upon university forbidden
conduct," he wrote. "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."

James Taylor, president of the University of the Cumberlands, issued a
statement expressing disappointment in the ruling and saying that the
institution would consider its next moves in the case. The statement did not
address the legal arguments put forth by the judge. Officials of two groups
that argued on behalf of the university — the Alliance Defense Fund and the
Center for Law and Religious Freedom — did not respond to inquiries seeking
their views on the case. A brief filed by the latter group, however, is
available here.

Christina Gilgor, executive director of the Kentucky Fairness Alliance, said
she didn't know if her group would have sued except for the case of the
expelled student, but she said that case put Cumberlands very much on her
organization's radar screen. Cumberlands expelled Jason Johnson in 2006
after university officials saw that he had identified himself as gay on his
MySpace page online. The university's student code of conduct does list
homosexuality as "not consistent with Christian principles" and thus as
grounds for removal. But at the time of the expulsion, one friend of
Johnson's told the Lexington, Ky., newspaper that many at the university
"would be floored by the amount of gay people at our school."

Gilgor said she was pleased with the role her group played in the
church-state case. "This is tremendous for gay people in Kentucky," she
said. "We should not be expected to pay taxes to an institution that would
kick us out."

— Scott Jaschik