Supreme Court hears Cumberlands case

FRANKFORT — The state Supreme Court heard arguments Thursday on whether the state legislature can give $11 million to a private Baptist university.

In March 2008, Franklin Circuit Court Judge Roger Crittenden ruled that the 2006 appropriation — $10 million for a pharmacy building at the University of the Cumberlands and $1 million for a scholarship program — was unconstitutional and violated a provision in the constitution that does not allow state tax money to go to private, religious schools for educational purposes.

The case could have far-reaching implications for higher education in Kentucky. If the University of the Cumberlands wins its appeal, other private, religious-based schools could also be eligible for state tax dollars. It is unclear when the justices will rule on the case.

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, saying that the appropriation was justified because there was a public need for more pharmacists in the state. After a lawsuit was filed over the appropriation, the money was not distributed.

In court on Thursday, lawyers for the University of the Cumberlands argued that the building would serve a public benefit — the education of much-needed pharmacists.

Kimberlee Wood Colby, a lawyer for the Eastern Kentucky Baptist-affiliated school, said that a 1949 Kentucky Supreme Court case held that two religious-affiliated hospitals could receive state dollars because it would serve the greater good.There is a nation-wide and state-wide shortage of pharmacists, Colby said. Colby also argued that the university would follow state and federal laws regarding admissions of students of all faiths. A memorandum of understanding between then-Gov. Ernie Fletcher and the school guaranteed that the university would follow state and federal rules regarding admissions, Colby said.

Shortly after the General Assembly approved the earmark, the university kicked out Jason Johnson, a junior from Lexington who was openly homosexual, saying he violated the university’s Baptist codes.

Colby said the pharmacy school would accept all students — even homosexuals — but they would have to follow the university’s morality code — which is very broad.

But Supreme Court Justice Mary Noble questioned whether a pharmacy school had the same type of public health benefits as a hospital. “If only 10 percent of your graduates stay in Kentucky…is it still a public health benefit?” Noble asked.

The lawsuit challenging the appropriation to the university was brought by a coalition of groups including Rev. Albert M Pennybacker of the Interfaith Alliance, the Jefferson County Teachers Association and the Kentucky Fairness Alliance, which represents lesbian, gay, bisexual and transgender people.

David Tachau, a Louisville attorney representing the coalition, argued that the memorandum of understanding that Colby says would guarantee that the university would accept all students may not be enforceable in court. Moreover, the memorandum could be terminated.

Tachau noted that the University of the Cumberlands did not argue in the Franklin Circuit Court case that the pharmacy school filled a public health need, nor was there any language in the legislature’s appropriation to the school that said it was being done to benefit the public.

“Our biggest issue is that taking taxpayer dollars and funding private institutions is not legal,” said Michael Handley, co-chair of the Kentucky Fairness Alliance. “As a member of the LGBT (lesbian, gay, bisexual transgender) community, I don’t want the state to use my tax dollars to discriminate against me.” 

– Beth Musgrave