Judge: State funding for University of the Cumberlands unconstitutional

FRANKFORT — The Kentucky 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 at the Southern Baptist school in Williamsburg 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 that the university 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, a board member representing the Interfaith Alliance; the Jefferson County Teachers Association, which opposes giving public funds to a sectarian school that has practiced discrimination based on sexual orientation; and the Kentucky Fairness Alliance, made up of lesbian, gay, bisexual and transgender people.

The plaintiffs filed their lawsuit 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. They are: Sens. Vernie McGaha, Russell Springs; Gary Tapp, Waddy; 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.

The order listed Gov. Steve Beshear in his official capacity as governor as a defendant.  Former Gov. Ernie Fletcher initially was listed as a defendant. The University of the Cumberlands is an intervening defendant.

--Jack Brammer

Comments

[Thomason]

Does that money go back into the general fund, or was it already disbursed out to the College?

[joe]

have they been arested yet?

[Keneth Nigh bert]

Does this mean other goverment funds given to private schools must be refunded to state? One such case would be goverment funds that went to open osteopathic physician school in Pikeville by Patton administration.Good idea for investigative reporting.

[IMO]

Pennybacker is about as much of a reverend as John Gotti.

[Just Wondering]

Surely in the vast number of attorneys we have in the Commonwealth, there is one with an understanding of Constitutional law. When I read the Constitution, I am under the impression that the concept of "separation of church and state" means the government will not have a government-sanctioned or established church (similar to the Church of England). Since I am not an attorney, maybe there is one out there that will provide an unbiased opinion?

[Jim Anderson Stivers]

Wondering:

Good question. How could it be more plainly written by our forefathers, who were,not at that time, quiet overtaken by lobby.

It is the duty of the Attorney General to recover these funds post haste. Senator Williams, I mean, ATTORNEY WILLIAMS, knew this was un-constitutional when it passed.

Thank God, for oversight. Something we need a lot more of in government.

Jim Anderson Stivers
Frankfort, KY.

[Just Wondering]

Thanks Mr. Stivers. The root of my question was based on the concept of when is a private, religious based school considered a "church". Also, it is apparent the college has religious standards but does it actively use it's institution as a mission field? It's a shame that such action painted a different picture for Cumberland College which was actually going to serve a purpose in the region with the pharmacy school. Unfortunately, a ploy to win votes has negated that.

[Blazing Tiger]

This was argued before and has been a sore spot with me since Williams and the cowardly legislature made this illegal appropriation. King Ernie was all for it because it would garner him votes in South Central KY. My problem is that the rest of the General Assembly didn't have to go along. Cowards! Whatever David Williams uses as legislative blackmail I can bet anyone over there could have 3 times as much on Williams himself. What the hell is wrong with the legislative body that this type of unconstitutional funding slips through. I propose each Kentuckian withhold $4 from taxes paid to the state. Seriously. Also, while we are at it, just HOW MUCH budget cutting is LRC going to have? Will the cowards over there make cuts to their own salaries, staff, etc.? LRC is one of the most proportionally overstaffed state entities. They could start with eliminating the position of "Intern Coordinator," or whatever Kenny Bishop is calling himself these days while riding the gravy boat!

[Terri]

I am a christian, and I say without a doubt this was a travesty of an appropriation and I am glad it has been overturned. I do NOT want my tax dollars going to religious institutions. On a federal level, I also think the office of faithbased initiatives should be shut down.

[Philip]

"Separation of church and state" is not in the Constitution. The Establishment Clause prohibits the establishment of a state religion, and just as importantly guarantees the right to freely exercise one's faith.

Those who want religion-free zones in our society distort the intent of the founding fathers past all credulity by demanding the absence of all religious reference or symbols in our government, or cooperation with religious entities for purposes that suit the common good. The actual practice of the framers was totally the opposite. There has always been a strong partnership between government and faith-based entities in serving our fellow man.

Having said all that, when a private institution can partner with the state to promote a much-needed program in an underserved area, what is wrong with that? When it is in the state's interest to do so, it should be allowed to do so, whether the private institution is religious or not! Everybody wins. The taxpayer wins, the private institution wins, and the citizens of that part of our state win. The state partners with private entities all the time, so it seems absurd to assert that that is unconstitutional simply because the institution is religious.

I believe the judge's decision will be overturned on appeal.

[Philip]

And Terri, with all due respect, if partnering with the Cumberlands actually accomplished a goal the state has for that area for a cheaper price than going it alone, it saves us tax dollars. This was not a give-away, it was an investment. Does that make sense?

[Sam Wise]

Believe whatever you want, Phillip. Heck, you probably could deny the Holocaust occurred too--no one can tell you what to believe. But you can sincerely believe that David Williams is suddenly going to become a decent, law-abiding and truly God-fearing man, but that doesn't mean it has a snowball's chance of happening.

Are you aware who was being written to when Thomas Jefferson responded to their pleas to keep government from becoming involved with religion? That's right, it's those same hypocritical type of Baptists from Danbury Connecticut, who are now claiming that this is a Christian government, and always has been. Such claims make them no better than the Taliban and Osama Bin Laden, and no less perverting of their religion.

Let our government always--ALWAYS--be guided by those with deeply held religious beliefs to pursue governmental goals consistent with their beliefs, whether those goals are to feed the poor or to heal the sick. But let our government never--EVER--spend our tax money to support a religious school where admissions, and yes, even science, is restricted based on whether one has the right religious beliefs.

[Philip]

Wise guy: you seem to have a habit of asserting things about people that are totally unfounded. Your references to the Holocaust and David Williams have no bearing on what I said. What is your point? And your comparisons to Osama and the Taliban are repugnant.

I stand behind the accuracy of my post.

[Commenter]

State government patronage hireling "Sam Wise" must not fear God too much. He supports the party of baby-killing on demand.

Phillip, this was not even 1/10th the issue that it became until Cumberland kicked out a homosexual male student for trolling for boyfriends on MySpace in violation of the school's code of conduct.

Private colleges can kick out students for smoking marijuana but not for smoking..... er, uh, nevermind. LOL!!!

[Blazing Tiger]

What is repugnant here is that MY tax dollars were spent to fund a program at a PRIVATE institution that just happens to be in a Republican district. Futhermore, boost pharmacy programs at STATE institutions before doling out money to benefit yourself politically. It doesn't matter to me now if this is or isn't a religious college, but where religious themes turn up in policy and mission statements, and the school subsequently expels a student for being gay (something that should be blatantly illegal) then that institution doesn't meet any provision of eligibility for state funding. Where were the cowards in the House who let this budget item slip in? Please answer that. Quit being Bully Williams' wimps!

[Sam Wise]

Commenter, thank you for proving my point. By claiming that one's political affiliation precludes one's religious beliefs, you suggest the Republican party is the party of God. The arabic for that phrase is Hezbollah.

As far as what kind of religious person I am, that's between me and God, fortunately. Regardless of the number of Americns who claim to be the sole and authoritative voice of God and the claimer of His power, it will always be between me and God. I believe He will judge you with mercy, Commenter.

And Philip, you know that the Taliban and Osama Bin Laden have perverted Islam as justifying their acts of hatred. I believe there's no difference between the beliefs of those groups and the beliefs of fundamentalist Christians who take narrow text out of the context of the Bible.

I stand by my point. It's the last paragraph of my previous post.

Let our government always--ALWAYS--be guided by those with deeply held religious beliefs to pursue governmental goals consistent with their beliefs, whether those goals are to feed the poor or to heal the sick. But let our government never--EVER--spend our tax money to support a religious school where admissions, and yes, even science, is restricted based on whether one has the right religious beliefs.

[Philip]

Wise says: "And Philip, you know that the Taliban and Osama Bin Laden have perverted Islam as justifying their acts of hatred. I believe there's no difference between the beliefs of those groups and the beliefs of fundamentalist Christians who take narrow text out of the context of the Bible."

Besides your tendency to overstate your point, Mr. Wise (i.e. there is nothing in the U. S. comparable to the Taliban), what in the WORLD does your comment have to do with anything I said?! Who are you lashing out at? It appears that you are the one having a problem accepting the beliefs of others.

As far as the expulsion of the male student who violated school policy soliciting on MySpace, that is none of the state's business. The private school had the right to enforce its rules. The loud gay lobby saw this as a chance to promote its agenda and pounced on the issue. The state should be able to partner with private institutions without dictating to them how to practice their beliefs. There is no conflict here. This was a mutually beneficial arrangement. Those with a liberal agenda are discriminating against this private institution because of their beliefs. That is what is wrong and unconstitutional.

[Blazing Tiger]

Dear President of the Stan Lee/Vernie McGaha Fan Club: Where STATE FUNDS are concerned, the STATE does have a responsibility to use taxpayer dollars wisely, and Philip, it is you who is perverting the issue by throwing in references that allege the gay student was "soliciting." Just exactly what are you alleging and do you know that you now could be sued for slander/libel if Rep. Couch has his way with free speech and blogs? The fact is that the legislature stepped over the line, and this private institution should fund their own program if they want to go on witchhunts and make up rules that are based upon their version of the Bible. They shouldn't expect me, the taxpayer, to endorse their agenda with my tax dollars. Sam: you hit the nail on the head with your comments!

[Philip]

Blazing Tiger and Mr. Wise: You guys are very artful to obfuscate every issue by throwing out absurd analogies and haranging about totally different subjects.

Your support of this decision which was brought about by the most liberal elements of our society (Interfaith Alliance, Kentucky Fairness Alliance, etc.) shows how out of step you are with most Kentuckians. So keep haranging, but I believe this judge was wrong, and I believe this will be overturned upon appeal.

There is a practical need for private entities, including faith-based entities, and government bodies to join forces for the common good. The area in southern Kentucky affected by this ruling is being unfairly penalized because of the agenda of these liberal fringe groups that want to force their values upon the rest of us. I think most Kentuckians do not accept their true agenda.

[Blazing Tiger]

The pot calling the kettle black when referring to "fringe" groups. The POINT IS that state taxpayer money should not be subsidizing private schools. Period. Their religious agenda notwithstanding. And Philip, LIBERAL isn't a dirty word. The LIBERALS you hate so much keep your speech "free." Your "Conservative" idols like W and Rep. Couch want to make America more like the Old USSR: tapping phones, reading your email and using scare tactics to stay in office. If people would quit worrying about a dramatic conspiracy of some mythical "gay agenda" and instead try to make KY better economically, now THAT would be something about which to write home!

[Blazing Tiger]

The pot calling the kettle black when referring to "fringe" groups. The POINT IS that state taxpayer money should not be subsidizing private schools. Period. Their religious agenda notwithstanding. And Philip, LIBERAL isn't a dirty word. The LIBERALS you hate so much keep your speech "free." Your "Conservative" idols like W and Rep. Couch want to make America more like the Old USSR: tapping phones, reading your email and using scare tactics to stay in office. If people would quit worrying about a dramatic conspiracy of some mythical "gay agenda" and instead try to make KY better economically, now THAT would be something about which to write home!

[Philip]

Tiger: Some of your comments make no sense. Others are simply reckless and absurd. (Example: "Your "Conservative" idols like W and Rep. Couch want to make America more like the Old USSR." Ridiculous comment!).

I do not appreciate you continuing to ascribe things to me that are untrue. I have no hatred for liberals and have not indicated such. I have dear liberal friends. They have opened my mind and eyes to new perspectives, even though we often disagree.

Nonetheless, you assert that I am free because of liberals? I think I am free because of men like George Washington, John McCain, and millions of brave men and women who defended and still defend our country. They risked their lives so that you can say whatever you want, no matter how absurd it may be. And the government can read my emails all it wants if doing so prevents another 9-11!

[bp]

Several points...

First of all...this is a PHARMACY building. We aren't talking about funding a church on campus. Second, public universities (which suck the taxpayers dry) allow religious groups to congregate on their campuses and utilize state resources for their worship services. Therefore, I have absolutely NO problem with this private school (which by and large supports itself) receiving state funds for SECULAR, EDUCATIONAL purposes.
Let's keep an eye on who actually is hurt by the judge's ruling...it's the STUDENTS who don't get their PHARMACY BUILDING.
I understand all the points being made above...but respectfully, they are academic points. The practical effect of this ruling is sad for the students.

[Blazing Tiger]

I think certain people do not "get" or understand why this funding was wrong: private institution. Secondly, no one forces the students to attend a private college. That is a choice. It is not like the state does not have a pharmacy program at another school that IS a public institution. You cannot obtain state funding, continue to operate as a private institution and not encounter extreme scrutiny. The funding was against the constitutional framing. The ruling will be appealed. Let us wait for Round 2.

[Steve Manning]

The appropriation is clearly unconstitutional:

Kentucky Constitution

Section 171

State tax to be levied -- Taxes to be levied and collected for public purposes only and by general laws, and to be uniform within classes -- Classification of property for taxation -- Bonds exempt -- Referendum on act classifying property.

The General Assembly shall provide by law an annual tax, which, with other resources, shall be sufficient to defray the estimated expenses of the Commonwealth for each fiscal year. Taxes shall be levied and collected for public purposes only and shall be uniform upon all property of the same class subject to taxation within the territorial limits of the authority levying the tax; and all taxes shall be levied and collected by general laws.

Kentucky Constitution

Section 189

School money not to be used for church, sectarian, or denominational school.

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.

As a strict constructionist I believe that federal and state judges should apply the "clear intent' of a statute or constitutional provision and not substitute their personal opinions , religious beliefs or political preferences for those of the Legislature or a Constitutional Convention!

[Blazing Tiger]

Mr. Manning: thank you for posting so eloquently EXACTLY the point! Many of us here let our beliefs get in the way but the constitution says it plainly. And for those who would dispute that this institution is not secular and denominational, then try to explain the policies of this college in comparison to a public university. Had this been an $11 million appropriation to a Catholic college, imagine the hollering, despite the worthiness of any educational program. Let the patrons and benefactors, and Sen. Williams, raise privately the money needed. That is what ALL other private colleges do.

[JIM ANDERSON STIVERS]

Some very good post here on both sides of the issue.

IMO, I can see the need for extra funding for colleges that are not supported by state funding. However, we do have one of the most widely recognized PHARMACY SCHOOLS in the United States at the UK COLLEGE OF PHARMACY.

Sure, there is a need, and to establish a PHARMACY SCHOOL in that district may very well be needed.

But, once government begins to fund, secular, private institutions where do we draw the line.

Most appeals and turn arounds, of an issue, are based on precedents. Previous history of decisions to the contrary.

This issue of CHURCH and STATE has been in politics since our founding fathers stepped on to the the big rock at Plymouth, Mass.

If my history is correct, and I am old, and may brain is a little slow, but I think I remember something in history about religion and the PURITANS. And, it seems at that time those coming to North America were required to be PURITANS. As I say my memory may not be accurate on this, if someone else knows please post it for me.

Perhaps, that might be the reason our forefathers tried to cover this issue in the original constitution.

I might add, in the HISTORY OF CIVILIZATION no country has survived extension, with a single religion.

All politicos should have some base of religion, regardless of their affiliation, how else can we seek fairness?

However, if you are agnostic or atheist, this post makes little sense to you.

Jim Anderson Stivers
I just wanna say!

[Blazing Tiger]

Mr. Stivers: one can be agnostic, as I truly am, and still have a sense of principal, community, and fairness. I was raised in a Christian faith but have a difficult time rectifying those beliefs with reality. It still makes sense, where public funding is concerned, that religion based private institutions not be appropriated large sums of public money. Sen. Williams never does anything without political motive, so he should give of his time and use his inherent political skills to raise money for this college if he truly believes in it so much. Or, he could run up to Belterra, since we don't have casinos here, and try to hit a big slots jackpot!

[JIM ANDERSON STIVERS]

Blazingtiger,

I think a lot of people, as we become better informed, have questions also. What I was taught in Sunday School, when I was very young, was the story and, in those times, the evolution of talking publicly about religion, when one has a sincere argument,or question there was little room for questions.

I do know this....There will always be lots more questions . . . than answers.

AND . . there will be many problems we are not able to solve, due to the lack of adequate public restraint, in our society.

Jim Anderson Stivers

[jimbo]

Not only is it a bad idea to fund private religious institutions but it is a really bad idea to fund a pharmacy school at a
fundamentalist college. "You want birth control? Oh, I don't believe in that so I can't sell you the pill. Morning after pill? Sorry, that's murder!" And you want the state to promote this?

Philip, you seemed perturbed that Sam mentioned the Taliban. I think he was dead on. The narrow-minded attitudes of many in this state are no excuse for giving in to their whims. It would be interesting to find out if Science is taught at the Cumberland College or is it merely mentioned as a footnote in the Genesis seminar.

I am relieved that this funding has been derailed. And I recall this did not even go through the regular appropriation process. Williams slid it in at the last minute and, when other spending was removed by the boy gov, this was allowed to stay. What a pair!

[Philip]

Okay, guys. I am ready to concede that based on a reading of the constitution that this probably was unconstitutional, although I still think most of my points were valid. Further, to label people of faith, or those with whom you disagree as Taliban or Hezbollah is simply outrageous and ridiculous (Jimbo and Sam: How would you like to be called "atheistic communist pigs?!") Come on! Regardless of your belief system, be thankful that it was enlightened Christians who largely founded this country and established our laws. As for University of the Cumberlands, it looks like if their is a need for a pharmacy school, they will have to do it with private funds.

[jimbo]

No, Philip, that shoe doesn't fit. I sit in my regular pew every Sunday and pray for understanding, tolerance, and hope. What I don't do is don the mask of arrogance to determine how my neighbor's daughter will manage her reproductive life.

I only mention the Taliban because of their attempts to limit intellectual freedom, prohibit curiosity, and force society to conform to their narrow view of the world. The gospel message was not one of fear and hatred of the "other". It was inclusive and loving. I just don't see this in the contemporary, fundamentalist strain. Jesus surrounded himself with sinners and seemed to be most upset with the smug and self-righteous.

[Blazing Tiger]

Jimbo: Amen!

[Philip]

Jimbo (and also Tiger and Wise): I don't disagree at all with your 7:43 post. I especially agree that "The gospel message was not one of fear and hatred of the "other". It was inclusive and loving." You are the one defending calling people you know nothing about by extremist labels. Is that "inclusive and loving". Or, are you the one who is acting "smug and self-righteous"? You may want to remove the log in your own eye, before attempting to remove the speck from your brother's eye.

Most of the Christians I know are "inclusive and loving".

I think you owe me an apology, but I humbly forgive you in advance. And, in the future, you may want to stick to the topic without judging those with a different perspective, something you hypocritically ascribe to "the contemporary, fundamentalist strain", of which I am not a part.

You said, "I sit in my regular pew every Sunday and pray for understanding, tolerance, and hope." I will pray that prayer with you. So, put feet to that prayer and show that you really mean that with your next response.

[Philip]

Jimbo & Tiger: The "no response" from my last post speaks volumes about how sincere your piety was.