Americans United for Separation of Church & State Fund, Inc. v. State , 1982 Colo. LEXIS 646 ( 1982 )

ROVIRA, Justice,

concurring in part and dissenting in part:

I concur with the majority in all respects except as to Part IV. In my view, the record amply supports the judgment of the trial court that the governing board of Reg-is College does not reflect a particular religion.

Section 23-3.5-105, C.R.S.1973, establishes certain criteria to determine whether an institution of higher education is pervasively sectarian. Subsection 23-3.5-105(l)(e) in substance states that if the governing board does not reflect any particular religion, nor is the membership of the board limited to persons of any particular religion, then the institution is not considered pervasively sectarian if it meets the other criteria of section 23-3.5-105.

The record reflects, and Americans United admit, that the membership of the governing board of Regis is not limited to persons of any particular religion.¹ Therefore, the only question remaining is whether the board reflects a particular religion.

The majority opinion suggests that the religious preference of the members of a governing body is a factor in determining whether the governing body reflects a particular religion and then notes that other factors, such as the procedures employed by the governing board in its decision-making process and the fruits of that process, are of importance.

I do not believe that the statute mandates an examination into the religious preference of the members of the board in order to determine whether the board reflects a particular religion. Rather, I am of the opinion that the statute requires that the acts of the board and results of those acts be examined to determine whether the board reflects a particular religion.

Based on the statutory standard which I believe appropriate, there can be little doubt that the undisputed evidence supports the trial court’s conclusion that Regis College was not pervasively sectarian.²

Americans United admitted that the students and faculty at Regis professed different religious preferences and a religious studies requirement could be satisfied by taking religious studies or religion and culture courses. It is undisputed that Regis did not require attendance at religious convocations or services, was open to students without regard to creed, and discrimination on the basis of religion was prohibited under the collective bargaining agreement between the college and the faculty.

All of the foregoing reflects the acts of the board and speaks far more eloquently as to purpose and intent than any inquiry into the religious preference of individual members of the board of trustees.

I would affirm the judgment of the trial court.

1 . In Request for Admission No. 31, Americans United admitted that some members of the Board of Trustees of Regis College were not Catholics and board membership was not limited to persons of any particular religion.

2 . See footnote 3 of the majority opinion.