ACLU of Kentucky

Reprinted from the Courier-Journal

By:  Deborah Yetter  April 22, 2010

The Kentucky Supreme Court ruled unanimously Thursday that the legislature violated the state constitution’s ban on public funding for religious education when it allocated $10 million to build a pharmacy school at a Baptist college in southeastern Kentucky.

By a 5-2 vote, the court also struck down as unconstitutional a provision that allocated $1 million for scholarships to the proposed pharmacy school at the University of the Cumberlands in Williamsburg.

The last-minute addition of the construction and scholarship money to the 2006-08 state budget was engineered by Senate President David Williams, a Burkesville Republican whose district includes the university.

The state had not released any funds while the legal challenge was pending.

The court’s opinion, written by Justice Lisabeth Hughes Abramson of Louisville, said the appropriation was a clear constitutional violation.

“If Kentucky needs to expand the opportunities for pharmacy school education within the commonwealth, the Kentucky General Assembly may most certainly address that pressing public need, but not by appropriating public funds to an educational institution that is religiously affiliated,” Abramson wrote.

The Kentucky Supreme Court ruled unanimously Abramson’s opinion said that provision “included not only primary and secondary education but most assuredly post-secondary education.”

University President Jim Taylor was not available for comment but said in a statement released by his office that plans for the pharmacy school have been dropped.

“We understand that the decision has been rendered,” Taylor’s statement said. “As a result of the decision, we will not begin a pharmacy school.”

Daphne Baird, spokeswoman for the university, said “other pharmacy schools are being created and others expanded since the critical need was brought to the attention of the public as a result of this case. Thus, in our view, we have accomplished our purpose.”

Williams, who added the funding during closed-door budget negotiations in 2006, did not respond to a request for comment.

Sen. Vernie McGaha, a Russell Springs Republican and one of 13 lawmakers who filed a brief supporting the funding, could not be reached Thursday.

In a brief statement, Gov. Steve Beshear said the state will “carry out the court’s mandate.”

The lawmakers’ decision to add money for the pharmacy school came just a few weeks after the University of the Cumberlands said it was expelling a gay student. Having sex outside marriage is grounds for dismissal from the liberal arts college of about 1,700 students, which is affiliated with the Southern Baptist Convention.

The plaintiffs in the suit included the Fairness Alliance, a gay-rights organization; the Jefferson County Teachers Association; and two citizens, the Rev. Albert Pennybacker of Lexington and the Rev. Paul Simmons, a Baptist minister and ethics professor at the University of Louisville.

The Fairness Alliance, which harshly criticized the university in 2006 for expelling the gay student, said Thursday that it was pleased by the Supreme Court ruling.

“Obviously, we disagree with their policies regarding gay students,” said Jody Cofer, a Fairness Alliance Board member from Murray. “They have the right to do that but not at the same time they are taking taxpayer money.”

Cofer said the expulsion of the gay student was a factor, though not the main one, in the Fairness Alliance’s decision to challenge the funding.

“It drew our attention to it,” he said.

In arguments last year before the Supreme Court, lawyers for the university — in an effort to avoid the constitutional question — argued that the primary purpose of the pharmacy school was not educational.

Rather, they said, it was to improve public health by helping to ease what they described as a shortage of pharmacists in the state. That argument got short shrift from the Supreme Court.

“A pharmacy school is unquestionably educational,” the opinion said.

Though the judges were unanimous on that point, Justices Will T. Scott and Daniel Venters disagreed on the question of whether the legislature’s decision to create the scholarship fund for pharmacy students at the school violated the constitutional ban on special legislation.

The majority concluded that the language establishing the fund was clearly written to apply only to students at the University of the Cumberlands and thus amounted to special legislation.

But a dissent by Scott contended that the provision could have been interpreted more broadly to apply to other schools as well.

Tachau said he hopes Thursday’s ruling brings the matter to an end.

“Absolutely,” he said. “I hope this is the final word.”

Reporter Deborah Yetter can be reached at (502) 582-4228. The Associated Press contributed to this story.