Columbia Union College v. JOHN J. OLIVER, JR., Chairman, Maryland Higher Education Commission

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 COLUMBIA UNION COLLEGE,
Plaintiff-Appellee,
v.
JOHN J. OLIVER, JR., Chairman,
Maryland Higher Education
Commission; EDWARD O. CLARKE,
JR., in his official capacity as a
member of the Maryland Higher
Education Commission; DOROTHY
DIXON CHANEY, in her official
capacity as a member of the
Maryland Higher Education
Commission; JOHN J. GREEN, in his
official capacity and as a member
of the Maryland Higher Education No. 00-2193  Commission; TERRY L. LIERMAN, in
his official capacity and as a
member of the Maryland Higher
Education Commission; R.
KATHLEEN PERINI; CHARLES B.
SAUNDERS, JR., in his official
capacity and as a member of the
Maryland Higher Education
Commission; RICHARD P. STREET,
JR., in his official capacity and as a
member of the Maryland Higher
Education Commission; STEPHEN A.
BURCH; ANNE OSBORN EMERY;
DONALD J. SLOWINSKI,
Defendants-Appellants
and 

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 J. GLENN BEALL, JR., Honorable, in
his official capacity as a member of
the Maryland Higher Education
Commission; DONNA H.
CUNNINGHAME, in her official
capacity as a member of the
Maryland Higher Education
Commission; JAMIE KENDRICK, in his
official capacity and as a member
of the Maryland Higher Education
Commission; OSBORNE A. PAYNE, in
his official capacity and as a
member of the Maryland Higher
Education Commission; MARYLAND
HIGHER EDUCATION COMMISSION;
MARYLAND BOARD OF PUBLIC WORKS;
J. JOSEPH CURRAN, JR., in his official
capacity as Attorney General of Maryland; ALBERT NATHANIEL
WHITING, in his official capacity and
as a member of the Maryland
Higher Education Commission;
WILLIAM F. HOWARD, in his official
capacity as Assistant Attorney
General of Maryland; TERRA N.
SMITH; CONSTANCE CORNELL; PAUL
D. ELLIS,
Defendants.
THE AMERICAN ASSOCIATION OF
UNIVERSITY PROFESSORS; AMERICANS
UNITED FOR SEPARATION OF
CHURCH AND STATE; THE ANTI-
DEFAMATION LEAGUE; AMERICAN
CIVIL LIBERTIES UNION
FOUNDATION OF MARYLAND; 
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 AMERICAN CIVIL LIBERTIES
UNION OF THE NATIONAL CAPITAL
AREA; COUNCIL OF RELIGIOUS
FREEDOM; SEVENTH-DAY ADVENTIST
CHURCH STATE COUNCIL; NORTHWEST
RELIGIOUS LIBERTY ASSOCIATION;
INTERFAITH RELIGIOUS LIBERTY
FOUNDATION; CHRISTIAN LEGAL
SOCIETY; UNION OF ORTHODOX JEWISH CONGREGATION OF AMERICA;
COUNCIL FOR CHRISTIAN
COLLEGES AND UNIVERSITIES;
ASSOCIATION OF CATHOLIC
COLLEGES AND UNIVERSITIES;
AMERICAN ASSOCIATION OF
PRESIDENTS OF INDEPENDENT
COLLEGES AND UNIVERSITIES,
Amici Curiae. 
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, District Judge.
(CA-96-1831-MJG)
Argued: May 7, 2001
Decided: June 26, 2001
Before WILKINSON, Chief Judge, and WILLIAMS and
MOTZ, Circuit Judges.
Affirmed by published opinion. Chief Judge Wilkinson wrote the
opinion, in which Judge Williams joined. Judge Motz wrote an opin-
ion concurring in the judgment.
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COUNSEL
ARGUED: Andrew Howard Baida, Assistant Attorney General, Bal-
timore, Maryland, for Appellants. R. Hewitt Pate, HUNTON & WIL-
LIAMS, Richmond, Virginia, for Appellee. ON BRIEF: J. Joseph
Curran, Jr., Attorney General of Maryland, Mark J. Davis, Assistant
Attorney General, Baltimore, Maryland; Pace J. McConkie, Assistant
Attorney General, Annapolis, Maryland, for Appellants. Geremy C.
Kamens, HUNTON & WILLIAMS, Richmond, Virginia; Mark B.
Bierbower, HUNTON & WILLIAMS, Washington, D.C.; Michael P.
McDonald, Michael E. Rosman, CENTER FOR INDIVIDUAL
RIGHTS, Washington, D.C.; Professor Michael W. McConnell, Salt
Lake City, Utah, for Appellee. Ann D. Springer, Donna R. Euben,
AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS,
Washington, D.C.; Professor David M. Rabban, UNIVERSITY OF
TEXAS SCHOOL OF LAW, Austin, Texas, for Amicus Curiae
AAUP. Steven K. Green, AMERICANS UNITED FOR SEPARA-
TION OF CHURCH AND STATE, Washington, D.C.; Martin E.
Karlinsky, Elizabeth J. Coleman, Steven M. Freeman, ANTI-
DEFAMATION LEAGUE, New York, New York, for Amici Curiae
Americans United, et al. Stuart H. Newberger, Jeffrey E. Greene,
Amy E. Laderberg, CROWELL & MORING, L.L.P., Washington,
D.C.; Dwight Sullivan, AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF MARYLAND, Baltimore, Maryland; Arthur B.
Spitzer, AMERICAN CIVIL LIBERTIES UNION OF THE
NATIONAL CAPITAL AREA, Washington, D.C., for Amici Curiae
Foundation, et al. Lee Boothby, BOOTHBY & YINGST, Washing-
ton, D.C., for Amici Curiae Council for Religious Freedom, et al. Carl
H. Esbeck, Gregory S. Baylor, Center for Law and Religious Free-
dom, CHRISTIAN LEGAL SOCIETY, Annandale, Virginia, for
Amici Curiae Society, et al.
OPINION
WILKINSON, Chief Judge:
We must decide whether Columbia Union College, an institution
of higher education affiliated with the Seventh-day Adventist Church,
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may receive a grant from the State of Maryland’s Sellinger Program.
The parties do not dispute that Columbia Union satisfies each of the
neutral statutory requirements for participation in the program. The
Maryland Higher Education Commission, however, denied the col-
lege’s request for money because the Commission believed that
Columbia Union was a "pervasively sectarian" institution, and thus to
give the college money would violate the Establishment Clause.
We disagree. The district court was not clearly erroneous in finding
that Columbia Union was not pervasively sectarian. Because state aid
is allocated on a neutral basis to an institution of higher education
which will not use the funds for any sectarian purpose, we affirm the
judgment of the district court that Columbia Union qualifies for Sel-
linger Program funds.
I.
A.
Columbia Union is a private four-year college affiliated with and
controlled by the Seventh-day Adventist Church. Approximately 80%
of the college’s traditional students are Seventh-day Adventists.
According to the college’s Program Bulletin, students may major in
fifteen subjects leading to a bachelor of arts degree. Eighteen majors
lead to a bachelor of science degree. Columbia Union offers majors
in subjects typical of any college, such as accounting, biochemistry,
business administration, communication, computer science, English,
general studies, history, mathematics, music, and psychology.
The college applied for a grant from Maryland’s Joseph A. Sel-
linger Program. The Sellinger Program gives public aid to private col-
leges within the state. Under the program, the state makes annual
payments directly to the eligible institutions. To qualify for Sellinger
funds, an institution must satisfy six neutral criteria. First, the college
must be, inter alia, a non-profit private college or university that was
established in Maryland before July 1, 1970. Second, the institution
must be approved by the Maryland Higher Education Commission,
the agency statutorily assigned to administer the program. Third, the
college must, inter alia, be accredited. Fourth, the institution must
have awarded the associate of arts or baccalaureate degrees to at least
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one graduating class. Fifth, the college must maintain one or more
programs leading to such degrees other than seminarian or theological
programs. Sixth, the institution must submit each new program or
major modification of an existing program to the Commission for its
approval. See Md. Code Ann. Educ. § 17-103 (1999).
In addition to these six requirements, the statute also mandates that
no Sellinger funds may be used for sectarian purposes. Id. § 17-107.
To comply with this non-sectarian command, the chief executive offi-
cer of the qualifying institution must provide the Commission with
annual pre- and post-expenditure affidavits detailing the intended and
actual use of the Sellinger funds. See Md. Regs. Code. tit. 13B,
§ .01.02.05 (2001). The amount of the grant is determined in part by
the "number of full-time equivalent students enrolled at the institu-
tion." Md. Code Ann. Educ. § 17-104(a)(1). Students enrolled in sem-
inarian or theological programs are specifically excluded from this
computation. Id. § 17-104(b).
As of fiscal year 1997, fifteen institutions received Sellinger funds.
Twelve had no religious affiliation and three were affiliated with the
Roman Catholic Church. The Supreme Court held in Roemer v. Board
of Public Works of Maryland, 426 U.S. 736 (1976), that the Maryland
colleges affiliated with the Roman Catholic Church were entitled to
government funds because despite the religious association of the
institutions, the colleges were not so pervasively sectarian "that secu-
lar activities [could] not be separated from sectarian ones." 426 U.S.
at 755 (plurality opinion).
In 1990, Columbia Union applied for funds under the Sellinger
Program. It asked the Commission for the same treatment as the
Catholic-affiliated institutions. The college satisfied each of the statu-
tory requirements for participation in the program. Two years later,
however, the Commission denied Columbia Union’s application. It
stated that since the college was a pervasively sectarian institution,
the Establishment Clause of the First Amendment required that the
application be rejected.
In late 1995, Columbia Union requested reconsideration of its
application in view of Supreme Court decisions like Rosenberger v.
Rector and Visitors of the University of Virginia, 515 U.S. 819
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(1995), which emphasized the importance of neutral criteria in deter-
mining eligibility for aid. Soon thereafter, the Commission notified
the college that "unless the nature and practices of Columbia Union
have changed very substantially since 1992," the application would
continue to be rejected. Columbia Union officially reapplied for Sel-
linger Program funds in November 1996. The institution requested
$806,079 for programs in mathematics, computer science, clinical
laboratory science, respiratory care, and nursing. The Commission
subsequently denied this application because it ruled that the college
was still pervasively sectarian.
B.
After the Commission denied Columbia Union’s application, the
college filed a complaint against the Director of the Commission in
his official capacity seeking declaratory and injunctive relief for
alleged constitutional and statutory violations. The district court, on
cross-motions for summary judgment, initially ruled for the Commis-
sion. See Columbia Union College v. Clarke, 988 F. Supp. 897, 900-
01 (D. Md. 1997). It held that the Establishment Clause prohibits any
state from directly funding a pervasively sectarian institution and that
Columbia Union was a pervasively sectarian institution.
On appeal, this court reversed and remanded the case for trial on
the issue of whether Columbia Union is a pervasively sectarian insti-
tution. See Columbia Union College v. Clarke, 159 F.3d 151, 169 (4th
Cir. 1998), cert. denied, 527 U.S. 1013 (1999) ("Columbia Union I").
Preliminarily, the court ruled that the Commission’s denial of funds
to the college "infringed on Columbia Union’s free speech rights"
because the Commission rejected the application "solely because of
[the college’s] alleged pervasively partisan religious viewpoint." Id.
at 156. Such an infringement on Columbia Union’s free speech rights
would be justified only as a means of complying with the dictates of
the Establishment Clause. Id. at 156-57.
In deciding whether the funding of these secular programs would
violate the Establishment Clause, this court relied on the analysis set
forth in Roemer that the Constitution "permits direct state money
grants to the general secular educational programs of religious col-
leges only if those colleges are not pervasively sectarian." Id. at 159.
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It rejected Columbia Union’s argument that subsequent Supreme
Court cases like Agostini v. Felton, 521 U.S. 203 (1997), Zobrest v.
Catalina Foothills School District, 509 U.S. 1 (1993), and Witters v.
Washington Department of Services for the Blind, 474 U.S. 481
(1986), had overruled Roemer’s holding by permitting the govern-
ment to fund pervasively sectarian institutions so long as the state
used neutral criteria to allocate aid. Instead, the court held that
Roemer "remains good law, and we, absent a clear directive from the
Supreme Court, are duty bound to enforce it." Columbia Union I, 159
F.3d at 162.
Nevertheless, the court remanded the case to the district court
because the record was not fully developed on the issue of Columbia
Union’s pervasively sectarian status. It noted, however, that a "careful
reading of Roemer . . . leads to the inescapable conclusion that even
colleges obviously and firmly devoted to the ideals and teachings of
a given religion are not necessarily ‘so permeated by religion that the
secular side cannot be separated from the sectarian.’" Id. at 163 (quot-
ing Roemer, 426 U.S. at 759).
Chief Judge Wilkinson dissented from the remand, believing that
the record was sufficiently developed to uphold the judgment without
ordering an intrusive investigation into the minutiae of the college’s
operations. The dissent stated that although the "neutrality principle
that courses through the [Supreme] Court’s recent decisions certainly
would not forbid Maryland from funding Columbia Union under the
Sellinger Program," the pervasively sectarian doctrine "is hanging on,
if only by its fingernails." Id. at 172 (Wilkinson, C.J., dissenting).
On remand, the district court supervised an extensive discovery
process and conducted a lengthy bench trial. After hearing the evi-
dence, reviewing the exhibits, considering the material submitted by
the parties, and hearing the arguments of opposing counsel, the court
ruled that Columbia Union was not a pervasively sectarian institution.
The State of Maryland appeals the district court’s new determination
that Columbia Union is not pervasively sectarian. The college urges
affirmance of the district court’s judgment on two grounds. First, it
argues that the Supreme Court’s recent decision in Mitchell v. Helms,
530 U.S. 793 (2000), makes clear that the pervasively sectarian
inquiry is no longer relevant to determine whether a particular aid
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program violates the Establishment Clause. Second, Columbia Union
argues in the alternative that the district court correctly found that the
college was not pervasively sectarian. We address each of Columbia
Union’s arguments in turn.
II.
The question of whether pervasively sectarian analysis is still rele-
vant for determining the constitutionality of aid programs turns
largely on a recent Supreme Court opinion interpreting the Establish-
ment Clause — Mitchell v. Helms, 530 U.S. at 793. We acknowl-
edged in Columbia Union I that the pervasively sectarian test had not
been overruled by Supreme Court cases such as Agostini v. Felton,
521 U.S. at 203, and Rosenberger, 515 U.S. at 819. See Columbia
Union I, 159 F.3d at 160-61; id. at 174 (Wilkinson, C.J., dissenting).
Since Columbia Union I, however, the Mitchell case has significantly
altered the Establishment Clause landscape by addressing the circum-
stances under which sectarian schools may be eligible for government
aid.
In Mitchell, the Supreme Court upheld the constitutionality of an
aid program to parochial primary and secondary schools. Mitchell was
a case in which the federal government distributed money to state and
local governmental agencies, which in turn bought educational mate-
rial and equipment on behalf of certain public and private schools.
The local agencies then lent what they had purchased to the schools.
See Mitchell, 530 U.S. at 801 (plurality opinion). Through the pro-
gram, private schools were able to acquire such items as library
books, computers, television sets, and laboratory equipment. See id.
at 803. In the challenged school district, approximately 30% of the
funds went to private schools. Of the 46 private schools participating
in the program, 41 were religiously affiliated.
The Court, applying the test outlined in Agostini v. Felton, 521
U.S. at 222-23, held that the federal aid program was constitutional
under the Establishment Clause because the federal program had a
secular purpose and because the program did not have the primary
effect of advancing or inhibiting religion. See Mitchell, 530 U.S. at
807-08 (plurality opinion) (applying Agostini’s two-part test); id. at
844-45 (O’Connor, J., concurring in the judgment) (same). While six
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Justices agreed with this result, the case did not produce a majority
opinion. Rather, four justices signed on to the lead opinion in the
case. See Mitchell, 530 U.S. at 801 (plurality opinion). Justice
O’Connor, joined by Justice Breyer, wrote an opinion concurring in
the judgment on narrower grounds. See Mitchell, 530 U.S. at 836
(O’Connor, J., concurring in the judgment).
Because the secular purpose of the program was uncontested, the
Court focused on whether the aid had the effect of advancing religion.
The plurality opinion in Mitchell emphasized that the neutrality of aid
criteria is the most important factor in considering the effect of a gov-
ernment aid program. Indeed, the plurality opinion noted that the
Court has "consistently turned to the principle of neutrality, uphold-
ing aid that is offered to a broad range of groups or persons without
regard to their religion." Id. at 809 (plurality opinion). In other words,
the plurality opinion would sustain the constitutionality of an aid pro-
gram so long as the "religious, irreligious, and areligious are all alike
eligible for governmental aid." Id. The Court stated unequivocally
that "if the government, seeking to further some legitimate secular
purpose, offers aid on the same terms, without regard to religion, to
all who adequately further that purpose, then it is fair to say that any
aid going to a religious recipient only has the effect of furthering that
secular purpose." Id. at 810 (internal citation omitted).
The Mitchell plurality also made clear that governmental aid can
even be divertible to religious use if the criteria used to dispense the
aid are neutral and the purpose of the aid is secular. Id. at 820 (plural-
ity opinion). Thus, for the plurality, the relevant constitutional inquiry
was how the aid is assigned, not where the aid goes. Indeed, the plu-
rality opinion explicitly noted the irrelevance of a pervasively sectar-
ian inquiry. While acknowledging that "there was a period when this
factor mattered, particularly if the pervasively sectarian school was a
primary or secondary school," "that period is one that the Court
should regret, and it is thankfully long past." Id. at 826.
The plurality cited a variety of reasons "to formally dispense with"
the pervasively sectarian test. Id. First, the relevance of the perva-
sively sectarian analysis "in our precedents is in sharp decline." Id.
The plurality noted that not a single aid program had been struck
down under the pervasively sectarian inquiry since 1985, when the
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Court decided Aguilar v. Felton, 473 U.S. 402 (1985), and School
District of the City of Grand Rapids v. Ball, 473 U.S. 373 (1985). The
plurality pointed out that Aguilar had since been overruled in full by
Agostini v. Felton, 521 U.S. at 209, and Ball had been overruled in
part by Agostini. Indeed, the plurality observed that in Zobrest v. Cat-
alina Foothills School District, 509 U.S. at 1, and in Agostini, the
Court "upheld aid programs to children who attended schools that
were not only pervasively sectarian but also were primary and sec-
ondary." Id. at 827 (plurality opinion).
The second reason to abandon the pervasively sectarian test,
according to the Mitchell plurality, was that "the religious nature of
a recipient should not matter to the constitutional analysis, so long as
the recipient adequately furthers the government’s secular purpose."
Id. Third, the plurality remarked that the pervasively sectarian inquiry
is "offensive" because courts should not be "trolling though a person’s
or institution’s religious beliefs." Id. at 828. Fourth, the pervasively
sectarian analysis conflicts with Supreme Court decisions which pro-
hibit the government from "discriminating in the distribution of public
benefits based upon religious status or sincerity." Id. Finally, the plu-
rality stated that "hostility to pervasively sectarian schools has a
shameful pedigree that we do not hesitate to disavow." Id. The plural-
ity concluded that "nothing in the Establishment Clause requires the
exclusion of pervasively sectarian schools from otherwise permissible
aid programs, and other doctrines of this Court bar it. This doctrine,
born of bigotry, should be buried now." Id. at 829.
Justice O’Connor, joined by Justice Breyer, concurred in the judg-
ment. Although Justice O’Connor agreed with the plurality opinion on
many issues, "two specific aspects of the opinion compel[led] [her]
to write separately." Id. at 837 (O’Connor, J., concurring in the judg-
ment). First, although she recognized that "neutrality is an important
reason for upholding government-aid programs against Establishment
Clause challenges," she would not make neutrality, and neutrality
alone, the one factor of "singular importance in the future adjudica-
tion of Establishment Clause challenges to government school-aid
programs." Id. at 837, 838. Justice O’Connor noted that the Court has
"never held that a government-aid program passes constitutional mus-
ter solely because of the neutral criteria it employs as a basis for dis-
tributing aid." Id. at 839. Instead, Justices O’Connor and Breyer
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would hold that "neutrality is important, but it is by no means the only
‘axiom in the history and precedent of the Establishment Clause.’" Id.
(quoting Rosenberger, 515 U.S. at 846 (O’Connor, J., concurring));
see also Good News Club v. Milford Central School, 533 U.S. ___,
No. 99-2036, slip op. at 13 (June 11, 2001) ("[W]e have held that a
significant factor in upholding governmental programs in the face of
Establishment Clause attack is their neutrality towards religion.")
(internal quotations omitted).
Second, Justice O’Connor criticized the plurality for approving the
"actual diversion of government aid to religious indoctrination." Id. at
837. She wrote that the Court has "long been concerned that secular
government aid not be diverted to the advancement of religion." Id.
at 840. Actual diversion concerned Justice O’Connor because if "reli-
gious indoctrination is supported by government assistance, the rea-
sonable observer would naturally perceive the aid program as
government support for the advancement of religion." Id. at 843. Jus-
tice O’Connor’s concerns with governmental aid to religious schools
would be lessened so long as these schools did not actually use the
aid for religious purposes. See id.
Justices O’Connor and Breyer agreed with the plurality opinion,
however, that the federal aid program in Mitchell passed constitu-
tional muster. Applying the Agostini test, the opinion found that the
government did not act with the purpose of advancing religion and
that the aid did not have the effect of advancing religion. See id. at
844-45.
Moreover, the concurring opinion joined the plurality opinion in
expressly overruling Meek v. Pittenger, 421 U.S. 349 (1975), and
Wolman v. Walter, 433 U.S. 229 (1977). See Mitchell, 530 U.S. at 837
(O’Connor, J., concurring in the judgment). In both Meek and Wol-
man, the Court struck down aid programs similar to the aid program
in Mitchell. The Meek and Wolman courts ruled as they did because
the "religious schools receiving the materials and equipment were
pervasively sectarian." Mitchell, 530 U.S. at 850 (O’Connor, J., con-
curring in the judgment) (citing Meek, 421 U.S. at 365-66, and Wol-
man, 433 U.S. at 250). Justice O’Connor’s opinion did not take issue
with the plurality’s holding that the pervasively sectarian doctrine
should be "buried now." Id. at 829 (plurality opinion). Instead, she
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specifically criticized the Meek and Wolman courts for "apply[ing] an
irrebuttable presumption that secular instructional materials and
equipment would be diverted to use for religious indoctrination." Id.
at 851. Instead of focusing on this irrebuttable presumption that even
the secular courses in a religious school are "inescapably" religious,
Wolman, 433 U.S. at 250, Justice O’Connor would require plaintiffs
to "prove that the aid in question actually is, or has been, used for reli-
gious purposes." Mitchell, 530 U.S. at 857 (O’Connor, J., concurring
in the judgment). By focusing on actual diversion of aid instead of the
presumption that any secular class at a religious school would "inevi-
tably inculcate religion," Justice O’Connor acknowledged her agree-
ment with the plurality that the pervasively sectarian doctrine was
becoming ever more problematic for Establishment Clause purposes.
Id. at 857 (O’Connor, J., concurring in the judgment).
Thus, although Justice O’Connor and Justice Breyer would not go
as far as the plurality, their separate opinion establishes three funda-
mental guideposts for Establishment Clause cases. First, the neutrality
of aid criteria is an important factor, even if it is not the only factor,
in assessing a public assistance program. Second, the actual diversion
of government aid to religious purposes is prohibited. Third, and
relatedly, "presumptions of religious indoctrination" inherent in the
pervasively sectarian analysis "are normally inappropriate when eval-
uating neutral school-aid programs under the Establishment Clause."
Id. at 858. The O’Connor concurring opinion, which is the controlling
opinion from Mitchell,1 replaced the pervasively sectarian test with a
principle of "neutrality plus." Neutrality is a necessary and important
consideration in judging Establishment Clause cases, but it may not
be sufficient in and of itself. Instead, courts must examine whether
actual diversion of aid occurs and whether the "particular facts of
1Because the plurality opinion for the Court did not garner a majority,
we must examine the details of the Sellinger Program under the rubric
of Justice O’Connor’s concurring opinion. See Simmons-Harris v. Zel-
man, 234 F.3d 945, 957 (6th Cir. 2000) ("‘When a fragmented Court
decides a case and no single rationale explaining the result enjoys the
assent of five Justices, the holding of the Court may be viewed as that
position taken by those Members who concurred in the judgments on the
narrowest grounds.’" (quoting Marks v. United States, 430 U.S. 188, 193
(1977) (internal quotations omitted)).
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each case" reveal that the Establishment Clause has been violated. Id.
at 844 (internal quotations omitted). It is to this inquiry that we now
turn.
III.
Columbia Union argues that it is entitled under Mitchell to Sel-
linger Program funds without resort to examining the college’s perva-
sively sectarian status. We agree.
A.
First, neither party disputes that the Sellinger Program has a secular
purpose. See Mitchell, 530 U.S. at 845 (O’Connor, J., concurring in
the judgment) (stating that it is important to "ask whether the govern-
ment acted with the purpose of advancing or inhibiting religion")
(internal quotations omitted). The Sellinger Program is designed to
provide aid to private colleges in Maryland, regardless of affiliation.
As the Supreme Court held in Roemer, the "purpose of Maryland’s
aid program is the secular one of supporting private higher education
generally, as an economic alternative to a wholly public system."
Roemer, 426 U.S. at 754 (plurality opinion). Of the fifteen schools
currently receiving Sellinger Program funds, only three are affiliated
with a religious institution. In short, the Sellinger Program is in no
sense a vehicle for the advancement of religious purposes.
B.
Second, the aid also does not have the effect of advancing religion.
See Mitchell, 530 U.S. at 845 (O’Connor, J., concurring in the judg-
ment). In order to determine "effect," we must first examine the neu-
trality of the criteria used to assign the aid. See id. at 838-39. The
Sellinger Program is indisputably premised upon neutral criteria. Sev-
eral additional factors serve to reinforce the program’s constitutional-
ity. These factors, namely the prohibition against using any Sellinger
money for religious purposes, the safeguards in place to prevent such
aid from being used for sectarian purposes, and the fact that the assis-
tance is being afforded to higher education, convince us that the State
may give aid to Columbia Union under the Sellinger Program.
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1.
The neutral features of the Sellinger Program are six in number,
and Columbia Union meets each one. First, the institution is a "non-
profit private college or university that was established in Maryland
before July 1, 1970." Md. Code Ann. Educ. § 17-103. Second,
Columbia Union is "approved by the Maryland Higher Education
Commission." Id. Third, the college is "[a]ccredited by the Commis-
sion on Higher Education of the Middle States Association of Col-
leges and Schools." Id. Fourth, Columbia Union has "awarded the
associate of arts or baccalaureate degrees to at least one graduating
class." Id. Fifth, the college "[m]aintain[s] one or more earned degree
programs, other than seminarian or theological programs, leading to
an associate of arts or baccalaureate degree." Id. And sixth, the insti-
tution has submitted "each new program and each major modification
of an existing program to the Maryland Higher Education Commis-
sion for its review and recommendation as to the initiation of the new
or modified program." Id. The fact that Columbia Union meets every
requirement of the statute, and the fact that fifteen other institutions
have also satisfied these same requirements, show beyond cavil that
the Sellinger Program assigns funds in a neutral and even-handed
manner, "without regard to religion." Mitchell, 530 U.S. at 810 (plu-
rality opinion).
Under the plurality opinion, the Sellinger Program’s secular pur-
pose and its neutral criteria would practically dispose of this case. See
id. at 829-32. And under the analysis of Justice O’Connor and Justice
Breyer, the neutrality of the Sellinger Program remains a critical fac-
tor in considering its constitutionality. See id. at 838-39 (O’Connor,
J., concurring in the judgment) ("[W]e have emphasized a program’s
neutrality repeatedly in our decisions approving various forms of
school aid.") (citing cases). Additional considerations, however,
underscore the constitutionality of Sellinger assistance to the college.
2.
A second consideration is one precisely identified by Justice
O’Connor — the lack of any evidence of actual diversion of govern-
ment aid to religious purposes. See id. at 840 (O’Connor, J., concur-
ring in the judgment). It is not of consequence that a sectarian school
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offers secular courses like computer science because the "presump-
tions of religious indoctrination are normally inappropriate when
evaluating neutral school-aid programs under the Establishment
Clause." Id. at 858. Instead, plaintiffs must show "evidence that the
government aid in question has resulted in religious indoctrination."
Id. (emphasis added).
Here, the State cannot make a showing of actual diversion. The
only evidence it produced related to the pervasively sectarian status
of the school, not to the use of aid in an improper fashion. And it is
impossible for Maryland to make the requisite showing of actual
diversion in this case for one simple reason: Columbia Union has yet
to receive any money under the Sellinger Program. Consequently, the
State cannot show that this non-existent money "has resulted in reli-
gious indoctrination." Id. at 858.
3.
In addition to the absence of evidence of actual diversion, there are
safeguards against future diversion of Sellinger Program funds for
sectarian purposes. The statute requires that a qualifying institution
"may not use" Sellinger Program funds "for sectarian purposes." Md.
Code Ann. Educ. § 17-104. Columbia Union satisfies this prerequisite
as well. The President of Columbia Union signed a sworn affidavit
stating that the funds would not be used for sectarian purposes. More-
over, the program assigns the amount of aid based on the "number of
full-time equivalent students enrolled at the institution," excluding
"students enrolled in seminarian or theological programs." Id. § 17-
104. Indeed, the requirements that funds not be used for sectarian pur-
poses and that students enrolled in sectarian programs be excluded
from the total number of students signify that, if anything, sectarian
colleges are actually at a disadvantage in receiving aid under the Sel-
linger Program.
Of course, the government need not "have a failsafe mechanism
capable of detecting any instance of diversion." Mitchell, 530 U.S. at
861 (O’Connor, J., concurring in the judgment). Because the Court
"should abandon the presumption" that the use of "instructional mate-
rials and equipment by religious-school teachers" in secular classes is
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in reality aid to religion itself, there is likewise "no constitutional
need for pervasive monitoring." Id.
In this case, the safeguards against sectarian diversion, while not
obtrusive or excessively entangling, are more than constitutionally
sufficient. In addition to the bedrock prohibition on the use of Sel-
linger funds for sectarian purposes, Md. Code Ann. Educ. § 17-107,
colleges that have only a seminarian or theological program are pre-
cluded from receiving Sellinger funds. Id. § 17-103. Sellinger funds
are subject to audit by the Commission. Id. § 17-303; Md. Regs. Code
tit. 13B, § .01.02.05. The college must provide annual pre- and post-
expenditure sworn affidavits documenting the institution’s intended
and actual use of the funds. See Md. Regs. Code tit. 13B, § .01.02.05.
Given these restrictions, the program contains adequate safeguards
against the diversion of the money to sectarian use. And we cannot
assume that officials of Columbia Union College, an institution affili-
ated with a religious institution, will act in bad faith or otherwise mis-
state the proposed uses of Sellinger funds. See, e.g., Mitchell, 530
U.S. at 863-64 (O’Connor, J., concurring in the judgment) ("I . . .
believe that it is entirely proper to presume that these school officials
will act in good faith. That presumption is especially appropriate in
this case, since there is no proof that religious school officials have
breached their schools’ assurances or failed to tell government offi-
cials the truth.").
4.
A final reason for sustaining the constitutionality of Columbia
Union’s use of Sellinger Program funds is the fact that Columbia
Union is an institution of higher learning. If the aid program to pri-
mary and secondary schools was upheld in Mitchell, the assistance to
a college should be sustained as well.
The Supreme Court has consistently stated that it would scrutinize
aid to religiously-affiliated colleges and universities more leniently
than aid to primary and secondary schools. See, e.g., Mitchell, 530
U.S. at 826-27 (plurality opinion); Roemer, 426 U.S. at 764-65 (plu-
rality opinion); Hunt v. McNair, 413 U.S. 734, 746 (1973); Tilton v.
Richardson, 403 U.S. 672, 687 (1971) (plurality opinion). Students
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attending college are more likely to do so by free will and more likely
to encounter a variety of influences and opinions while on campus.
As the Supreme Court noted in Tilton, "[t]here are generally signifi-
cant differences between the religious aspects of church-related insti-
tutions of higher learning and parochial elementary and secondary
schools." Tilton, 403 U.S. at 685 (plurality opinion). College students
are simply "less susceptible to religious indoctrination." Id. at 686.
"The skepticism of the college student is not an inconsiderable barrier
to any attempt or tendency" to try to use secular courses to teach reli-
gion at the university level. Id.
In Roemer, Tilton, and Hunt, the Supreme Court permitted the gov-
ernment to directly aid religiously-affiliated colleges and universities.
Indeed, the Roemer court approved the precise program at issue in
this case. Although these earlier cases turned largely on the perva-
sively sectarian character of the institutions, the fact remains that the
Court has never struck down a government aid program to a
religiously-affiliated college or university. Thus, even if direct fund-
ing of classes raises special constitutional concerns at the primary and
secondary level, see Mitchell, 530 U.S. at 859-60 (O’Connor, J., con-
curring in the judgment), direct funding of secular classes at the colle-
giate level might still survive scrutiny. For at the college level,
"[t]here is no danger, or at least only a substantially reduced danger,
that an ostensibly secular activity [like] the study of biology [or] the
learning of a foreign language . . . will actually be infused with reli-
gious content or significance." Roemer, 426 U.S. at 762 (plurality
opinion). The features of the college environment thus mean that aid
is much less likely to have a constitutionally impermissible effect.
C.
In sum, the Sellinger Program is compatible with the constitutional
guideposts set forth by the Court in Mitchell. The program’s purpose
is secular. See Mitchell, 530 U.S. at 845 (O’Connor, J., concurring in
the judgment). And because of the program’s neutrality, the lack of
actual diversion, the safeguards against future diversion, and the fact
that Columbia Union is an institution of higher learning, the aid does
not have the effect of advancing religion. See id. Examining the Sel-
linger Program as a whole, Columbia Union’s receipt of Sellinger
funds is not only consistent with the "neutrality plus" formula of Jus-
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tice O’Connor’s concurrence, it is a stronger case than Mitchell due
to the fact that Columbia Union is a college. We recognize, of course,
that the Sellinger Program is a direct aid program whereas Mitchell
involved the lending of materials and equipment to supplement that
used by sectarian schools. Nevertheless, the Sellinger Program more
than satisfies the "neutrality plus" criteria of Mitchell. We thus believe
that the Supreme Court would approve of Columbia Union’s use of
Sellinger Program funds for secular courses of instruction without
resort to a pervasively sectarian analysis.
IV.
We cannot, however, find any reason even under a pervasively sec-
tarian analysis why Columbia Union should be denied Sellinger Pro-
gram assistance.2 The district court found as a matter of fact, after
examining the thousands of pages of evidence and conducting a bench
trial, that Columbia Union is not pervasively sectarian. Even assum-
ing that Roemer is still good law, and that the pervasively sectarian
analysis remains relevant for determining violations of the Establish-
ment Clause, Columbia Union is entitled to Sellinger Program funds
because the district court was not clearly erroneous in its findings. See
Roemer, 426 U.S. at 758 (plurality opinion) ("We cannot say that the
foregoing findings as to the role of religion in particular aspects of the
colleges are clearly erroneous."). If Roemer is directly applicable to
this case, then this court must apply the standard of review Roemer
employed and for which the State contended in the prior appeal.
The district court looked to four factors identified by Columbia
Union I to determine if a college is pervasively sectarian: 1) manda-
tory student worship services; 2) academic courses implemented with
the primary goal of religious indoctrination; 3) an express preference
in hiring and admissions for members of the affiliated church; and 4)
2We are of course mindful of the Supreme Court’s admonition that
lower courts should not interpret even seismic shifts in Establishment
Clause jurisprudence as signifying that prior Court decisions have been
overruled indirectly. See, e.g., Agostini, 521 U.S. at 237. Thus, we turn
to the issue of whether, under Roemer, Tilton, and Hunt, Columbia
Union is pervasively sectarian. Because we do so, we fail to see the basis
for Judge Motz’s concern.
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church dominance over college affairs. See Columbia Union I, 159
F.3d at 163. The court noted that a college is not pervasively sectarian
unless it possesses a "great many" of these characteristics. Id.
The district court respected fully the majority’s order of remand in
Columbia Union I. Working through the four factors in this case, the
court found that although Columbia Union had a mandatory worship
policy, it applied only to a minority of students. With regard to the
second factor, the court held that the evidence submitted by the Com-
mission was insufficient to show that the traditional liberal arts
classes were "taught with the primary objective of religious indoctri-
nation." The court pointed to "affirmative evidence indicating that
secular education is the primary goal of" Columbia Union. The court
examined the college’s mission statement and the descriptions of sec-
ular curricula in the college’s catalog, among other things, in making
this finding. The court looked at the college’s syllabi for secular
courses and determined that the religious references were too isolated
and scattered to justify a finding that religion permeates the secular
courses. And although the court found that the Seventh-day Adventist
Church exerted a dominance over college affairs and that the college
gave an express preference in hiring and admissions to members of
the Church, these factors by themselves were not enough to make the
college a pervasively sectarian one.
Looking at all the factors, the court concluded that "a great many"
were not present. Consequently, the court stated that "Columbia
Union College is not ‘pervasively sectarian’ under the decision in
Roemer." After reviewing all the evidence in this case, we hold that
the district court’s finding on this point was not clearly erroneous.
One other factor supports the district court’s revised finding on
remand that Columbia Union is not pervasively sectarian. As this
court noted in its prior decision, "[n]either the Supreme Court, nor
any circuit court to our knowledge, has ever found a college to be per-
vasively sectarian." Columbia Union I, 159 F.3d at 169.
In Tilton, for example, the Supreme Court held that four church-
related colleges and universities were not pervasively sectarian. See
Tilton, 403 U.S. at 681 (plurality opinion). The Court permitted the
federal government to directly fund the construction of a library, a
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performing arts building, a science building, and a language labora-
tory at these schools. See id. at 676. The Roman Catholic Church
sponsored and supported these universities. Id. The faculties and stu-
dent bodies at each college were "predominantly Catholic." Id. at 686.
The plaintiffs challenging the funding in Tilton introduced evidence
showing that the colleges imposed "certain religious restrictions on
what could be taught." Id. at 681. Finally, "all four schools" in Tilton
required "their students to take theology courses." Id. at 686. These
factors did not suffice, however, to find the colleges and universities
pervasively sectarian.
In Hunt v. McNair, the Supreme Court found that the Baptist Col-
lege at Charleston was not a pervasively sectarian institution. Trustees
of Baptist College were elected by the South Carolina Baptist Con-
vention. Hunt, 413 U.S. at 743. Approval of the Convention was nec-
essary for certain financial transactions. Id. The charter of the college
could only by amended by the Convention. Id. Indeed, the dissent
even noted that "[n]o one denies that the Baptist College at Charleston
is a sectarian institution — i.e., one in which the propagation and
advancement of a particular religion are a function or purpose of the
institution." Id. at 749 n.1 (Brennan, J., dissenting) (internal quota-
tions omitted).
And in Roemer, four Maryland colleges applied for aid under the
same program at issue in this case. Roemer, 426 U.S. at 744 (plurality
opinion). The colleges were affiliated with the Roman Catholic
Church. The colleges employed Roman Catholic chaplains and held
Roman Catholic religious exercises on campus. Id. at 755. Each stu-
dent was required to take "[m]andatory religion or theology courses."
Id. at 756. The instructors of these courses were "primarily . . .
Roman Catholic clerics." Id. Like Columbia Union, the "encourage-
ment of spiritual development" was a secondary objective of the col-
leges in Roemer. Id. at 755. Moreover, some classes at the Roemer
colleges were "begun with prayer." Id. at 756. Some instructors wore
"clerical garb and some classrooms [had] religious symbols." Id.
Finally, the Roemer colleges generally favored as instructors "mem-
bers of religious orders." Id. at 757.
Looking at all the evidence, we fail to see any disqualifying differ-
ence between Columbia Union and the colleges in Roemer, Hunt, and
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Tilton. Religion certainly plays a prominent role at Columbia Union,
but no more so than the colleges in Roemer, Hunt, or Tilton. Religion
classes are mandatory at Columbia Union, but the same was true in
Roemer and Tilton. Columbia Union offers degrees in subjects found
at any other college or university, whether it be public or private,
religiously-affiliated or entirely secular. And like the colleges in
Roemer, Tilton, and Hunt, the district court found that "secular educa-
tion is the primary goal" of Columbia Union.
In sum, given the district court’s extensive findings of fact and the
"heavily fact intensive" nature of the inquiry, as well as the resem-
blance of Columbia Union to the colleges in Roemer, Hunt, and Til-
ton, we cannot say that the lower court was clearly erroneous in
finding Columbia Union not to be pervasively sectarian. Columbia
Union I, 159 F.3d at 169.
V.
Columbia Union’s use of Sellinger Program money to fund secular
educational programs does not violate the strictures of the Establish-
ment Clause. The program has a secular purpose, it uses neutral
criteria to dispense the aid, there is little risk of actual diversion of the
aid for religious indoctrination, and the college is an institution of
higher learning. And even if a pervasively sectarian analysis were
necessary, the district court was not clearly erroneous in finding
Columbia Union not to be pervasively sectarian.
This court has already held that the State of Maryland "infringed
on Columbia Union’s free speech rights by establishing a broad grant
program to provide financial support for private colleges that meet
basic eligibility criteria but denying funding to Columbia Union
solely because of its alleged pervasively partisan religious viewpoint."
Id. at 156. Because denying funding to Columbia Union is not man-
dated by the Establishment Clause, the State cannot advance a com-
pelling interest for refusing the college its Sellinger Program funds.
See id.
We recognize the sensitivity of this issue, and respect the constitu-
tional imperative for government not to impermissibly advance reli-
gious interests. Nevertheless, by refusing to fund a religious
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institution solely because of religion, the government risks discrimi-
nating against a class of citizens solely because of faith. The First
Amendment requires government neutrality, not hostility, to religious
belief. See Everson v. Board of Education, 330 U.S. 1, 18 (1947). For
the foregoing reasons, the judgment of the district court is
AFFIRMED.
DIANA GRIBBON MOTZ, Circuit Judge, concurring in the judg-
ment:
The district court committed no clear error in finding that Colum-
bia Union was not a pervasively sectarian institution. Accordingly, for
the reasons persuasively set forth by Chief Judge Wilkinson in part
IV of the majority opinion, I concur in the judgment affirming the dis-
trict court.
Judge Wilkinson may also be correct as to the conclusions he
draws from the various opinions in Mitchell v. Helms, 530 U.S. 793
(2000). However, in Agostini v. Felton, 521 U.S. 203, 237 (1997), the
Supreme Court, in no uncertain terms, instructed that "[i]f a precedent
of th[e Supreme] Court has direct application in a case, yet appears
to rest on reasons rejected in some other line of decisions, the Court
of Appeals should follow the case which directly controls." Given this
directive, unless and until the Supreme Court overrules Roemer v. Bd.
of Pub. Works of Md., 426 U.S. 736 (1976), I am unwilling to join
in a holding finding that the pervasively sectarian analysis adopted
there — when interpreting the very statute at issue here — no longer
controls. Such a holding seems particularly unwarranted when appli-
cation of the pervasively sectarian analysis requires the same result as
the (perhaps) premature disavowal of it.
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