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    0925 U of C Supreme Court Hearing

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September 25, 2009

State supreme court hears pharmacy school arguments

<b>Issue is public money to a religious college</b>

By Ronnie Ellis/CNHI News Writer

An attorney arguing a Kentucky Baptist College is eligible for state funding for a pharmacy school faced some skeptical questioning from Kentucky’s Supreme Court on Thursday.

Kimberlee Wood Colby, the attorney representing the University of the Cumberlands, argued the 2006 appropriation from the Kentucky General Assembly did not violate the state constitution’s ban on public funding of sectarian educational institutions because the purpose of “public health.”

In 2006, the General Assembly passed a bond issue to provide $10 million for construction of a pharmacy school at the Williamsburg Baptist College and appropriated $1 million for scholarships. Lawmakers said at the time their intent was to alleviate a shortage of pharmacists in Kentucky, especially in southeastern Kentucky where the college is located, and to keep more Kentucky trained pharmacists in the state.

But various groups objected to the public funding of a religious institution and the Rev. Albert M. Pennybacker, the Kentucky Fairness Alliance, and the Jefferson County Teachers Association sued. The controversy heated up after the university expelled a gay student who posted comments on the internet about his sexual orientation.

Colby said the legislature was not funding a religious institution but a pharmacy because of a “dire statewide shortage of pharmacists” and that is no different than state funding for religious hospitals, something previous court rulings have allowed. She argued no religion will be taught in the pharmacy building and the university — which requires students to conform to a Christian code of conduct — had signed a memorandum of agreement to that effect.

But the justices seemed skeptical.

Chief Justice John Minton noted that the hospitals are required to “treat all comers” but the university restricts admission to those who agree to its code of conduct and religious beliefs. Colby said that would not apply to the pharmacy school. But Minton and Justice Mary Noble pointed out the students couldn’t be admitted to the larger university without conformance to that code.

“So Jewish pharmacy students would be expected to conform to their code of conduct?” asked Minton. Colby said the pharmacy school would accept all applicants but they would be required to “adhere to a general code of conduct but not required to go to chapel.”

Justice Lisabeth Hughes Abramson said the university’s argument is the state appropriation is not for education — Section 189 prohibits state funding for religious or sectarian education — but for public health.

“But what occurs in that building to produce the public health?” Abramson asked. “Is it not education?”

“The court would have to agree with you that pharmaceutical education is not education,” said Minton.

David Tachau, attorney for the plaintiffs, said there is “absolutely no evidence” in the trial record that the money was for public health and that the university “proudly proclaimed” the University of the Cumberlands “is not for everybody” when it expelled the gay student.

He said the memorandum of agreement is “unenforceable” but a covenant signed by the university with the Baptist Convention states the university’s purpose is “to advance the kingdom of God.”

Abramson said even if the memorandum could be enforced, “it would not change the nature of the appropriation — to a religious, sectarian school.”

Ronnie Ellis writes for CNHI News Service and is based in Frankfort. Reach him at rellis@cnhi.com.

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