- The Washington Times - Monday, March 3, 2003

Opponents of financing church-affiliated colleges with tax-exempt municipal bonds have conceded defeat. They say they no longer have a prayer of stopping it in the courts.
Officials of Americans United for Separation and Church and State, and Americans for Religious Liberty (ARL), both of which brought lawsuits against such practices, say they believe such bonds for "pervasively sectarian" schools now pass muster in federal courts.
The last straw was a little-noted Supreme Court action last week when the justices ended the 12-year lawsuit, filed by Americans for Religious Liberty, to strip David Lipscomb University's tax-exempt status for $15 million in city-sponsored industrial revenue bonds.
The school, affiliated with the Churches of Christ, used investors' money to build a library, convert the old one to offices, add athletic facilities and landscape its campus in Nashville.
"It shifts our battle to legislatures and the state courts now that the Supreme Court won't intervene even at David Lipscomb University," says Edd Doerr, executive director of the ARL. "That's probably the most pervasively sectarian school in the country, and if we can't win there, I don't know any other case we would ever win."
Lipscomb faculty must be members of the Church of Christ, and the school requires daily chapel attendance and religious instruction for all students.
"It's kind of a losing proposition even to bring these cases anymore," agrees Rob Boston of Americans United. "If the court approved vouchers, it's very unlikely they would declare an indirect form of aid [such as bonds] to be a violation."
Lawyers for the colleges agree. "I think they're correct. I think this is now a dead issue," says Bradley MacLean, who won the school's case and in doing so fulfilled his own 1999 prediction that the attack on Lipscomb University would bring a far-reaching change in the application of the law.
"The 6th Circuit Court of Appeals decision which the Supreme Court refused to review is the clearest statement yet that in these industrial development bond cases the religious affiliation or orientation of the school is simply not relevant," Mr. MacLean says.
In 2000, Americans United and the American Civil Liberties Union supported the Rev. Barry Lynn's challenge in the Virginia Supreme Court to a $55 million state College Building Authority bond issue for Regent University of Virginia Beach, which wanted to use the money to expand its Alexandria facility. The university prevailed.
Ten years earlier, the challengers had won a Virginia high court decision against Liberty University at Lynchburg, arguing that Liberty, a Baptist school, gave admission preference to Christians and made chapel mandatory.
A Philadelphia bond lawyer who asked not to be identified says the sporadic battles did not sour investors on such bonds, and he predicted they now will be more popular because "deals that were more in the gray area didn't get done."
Mr. MacLean says more bonds already are in the works for Lipscomb and similarly situated schools across the nation. The high court's decision lifted a cloud over Lipscomb, which would have been liable to reimburse investors by more than $3 million if the tax exemption had been lifted.
Opponents of the bonds contended a 1976 Supreme Court opinion bars governments from subsidizing "pervasively sectarian" institutions. On June 28, 2000, however, the Supreme Court said the state of Louisiana may grant parochial schools money for materials that have no overt religious purpose, such as computers.
That 6-3 decision, written by Justice Clarence Thomas, said the ruling "buried … this doctrine, born of bigotry [against Catholicism]." In June 2001 Columbia Union College in Takoma Park, affiliated with the Seventh-day Adventist Church, won a 4th U.S. Circuit Court of Appeals ruling that ended its distinction as the only religious college in Maryland locked out of a 30-year-old state program of educational grants.
Three Catholic colleges were included in Maryland's Sellinger grant program, but Columbia Union was excluded.
About 80 percent of American college students attend state-supported schools, 10 percent attend church-related schools and 10 percent attend secular private institutions.

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