Overview
On July 2, 2004, Judge Gladys Kessler of the United States District Court for the District of Columbia ruled that the AmeriCorps Education Award Program (EAP), administered by the Corporation for National and Community Service (CNCS)[2] violated the Establishment Clause in two distinct ways - by providing education awards to teachers who serve in religious schools, and by making grants to the religious organizations that oversee such teachers. The American Jewish Congress, which brought the constitutional challenge, alleged that the CNCS allowed the teachers to teach both secular and religious subjects, which too closely linked the government with the schools' religious mission. Moreover, the AJC alleged that the CNCS did not require the religious organizations responsible for selecting and training the teachers to segregate CNCS funds from the organizations' other funds; at least part of this mixed pool of funds was used for religious instruction and worship.
The case raises two constitutional questions of great importance for the Faith-Based Initiative. First, under what conditions will a method of public finance be deemed "indirect,” and thus permit the organization receiving the funds to intermingle religious and secular services? Second, when may an individual whose position is financed by the government, and who performs secular services in that position, also perform religious functions in a role closely connected to the government-funded position? Judge Kessler answered these two questions in ways that impose much greater restrictions on public financing of religious organizations than those found in current federal policies. The government is likely to appeal.
Description
Under the AmeriCorps EAP, individuals who perform 1700 hours of service in a qualified AmeriCorps program receive an award of $4725, which may be used to pay the participant's student loans or the cost of future education.[3] The EAP is administered by the Corporation for National and Community Service (CNCS), which selects a wide range of entities - state and local governments, colleges and universities, along with secular and religious non-profits - to recruit, train, place, and supervise the individual AmeriCorps participants. Such entities (the "grantees”) receive grants from CNCS of $400 for each participant for whom they are responsible.
In this lawsuit, the American Jewish Congress (AJC) raised constitutional challenges to the terms under which some EAP participants have performed their AmeriCorps service as teachers in religious primary and secondary schools. The AJC also challenged the CNCS's payments to and supervision of the grantees that were responsible for placing those EAP participants in religious schools.[4]
The EAP's applicable statute and regulations provide a number of restrictions that are relevant to the issues raised by the AJC lawsuit.[5] The statute and regulations prohibit the use of CNCS grant funds "to provide religious instruction, conduct worship services, or engage in any form of proselytization.”[6] The statute contains a strict prohibition on religion-based discrimination, which applies to all EAP grantees. That prohibition reads as follows:
[A]n individual with responsibility for the operation of a project that receives assistance under this subchapter shall not discriminate on the basis of religion against a participant in such project or a member of the staff of such project who is paid with funds received under this subchapter.[7]
Thus, under the terms of the statute, a grantee could select neither its employees nor its EAP participants on the basis of religion.[8]
The statute also specifies that certain types of service by EAP participants cannot be counted toward the 1700 hours required to earn the education award. According to the statute, EAP grantees must ensure that:
[A]ny approved national service position provided to an applicant will not be used to perform service that provides a direct benefit to any--
(4) organization engaged in religious activities, unless such service does not involve the use of . . . participants--
(A) to give religious instruction;
(B) to conduct worship services;
(C) to provide instruction as part of a program that includes mandatory religious education or worship;
(D) to construct or operate facilities devoted to religious instruction or worship or to maintain facilities primarily or inherently devoted to religious instruction or worship; or
(E) to engage in any form of proselytization;[9]
The prohibition found in (4)(C), above, bars AmeriCorps EAP participants from earning qualifying hours by teaching in any school that has "mandatory religious education or worship,” even if the participant teaches purely secular subjects. Given that this lawsuit involves allegations of constitutional violations arising out of EAP participants' teaching in religious schools, one might reasonably assume that this statutory prohibition would be important to the suit's disposition. For reasons that remain unclear, however, neither the AJC, the CNCS, nor the court addressed this provision.[10]
If the government appeals Judge Kessler's decision, an appellate court might conclude that at least some of the practices challenged on constitutional grounds are violations of the statute. Such a conclusion would allow an appellate court to determine that the district court did not need to decide the constitutional questions raised by the case, and would thus limit any broader impact that decision might have on other government programs, including those related to the Faith-Based Initiative.
Much of the AJC's challenge involves changes to the EAP regulations made by CNCS in 2002. Prior to the 2002 changes, AmeriCorps had fairly broad standards for determining the set of activities in which EAP participants may not engage:
§ 2520.30 -- Are there any activities that are prohibited?
Yes. Some activities are prohibited altogether. Although all prohibited activities may be performed voluntarily by participants on their own time, they may not be performed by participants in the course of their duties, at the request of program staff, or in a manner that would associate the activities with the AmeriCorps program or the Corporation. These activities include:
(f) Engaging in religious instruction, conducting worship services, providing instruction as part of a program that includes mandatory religious instruction or worship, constructing or operating facilities devoted to religious instruction or worship, maintaining facilities primarily or inherently devoted to religious instruction or worship, or engaging in any form of religious proselytization;...[11]
In 2002, CNCS revised that regulation to read as follows:
§ 2520.30 What activities are prohibited in AmeriCorps subtitle C programs?
(a) While charging time to the AmeriCorps program, accumulating service or training hours, or otherwise performing activities supported by the AmeriCorps program or the Corporation, staff and members may not engage in the following activities:
(7) Engaging in religious instruction, conducting worship services, providing instruction as part of a program that includes mandatory religious instruction or worship, constructing or operating facilities devoted to religious instruction or worship, maintaining facilities primarily or inherently devoted to religious instruction or worship, or engaging in any form of religious proselytization;[12]
Contrast the italicized portion of the pre-2002 regulation with the present version. Both versions recognize that the EAP's limitations should not apply to participants' use of their time outside of work. The current version eliminates the earlier rule's concern with more ambiguous situations, in which the AmeriCorps participant is not "charging time” to the EAP, yet her activities nonetheless might be reasonably attributed to the program. The current version applies the statute's restrictions only to those contexts in which the EAP participant is, in fact, counting hours toward her education award.
The AJC and the CNCS agree that the rule change made possible a practice at the heart of this controversy: EAP participants serving in religious schools are now permitted to lead students in prayer and to teach religious education classes, so long as the participants do not count toward their award the time spent leading worship or teaching religion.[13] The AJC and the CNCS differ, however, in their interpretation of that practice. The AJC alleges that the practice violates the Establishment Clause in two ways. First, the AJC claims that the CNCS and its grantees have failed to develop adequate systems of oversight to ensure that participants count only secular teaching hours, and such systems are necessary in order to avoid implicating the government in unconstitutional support for religious indoctrination. Second, the AJC claims that by allowing EAP participants to teach religion in the same schools in which the participants serve as publicly-identified representatives of AmeriCorps, the CNCS is implicitly endorsing the religious messages conveyed by the participants. In contrast, the CNCS claims that the 2002 revisions recognize and protect participants' constitutional rights - under the Free Speech and Free Exercise Clauses - to engage in religious activity on their "free time,” defined as any time that the participants are not counting toward their award.
Analysis
Our analysis of the case and Judge Kessler's decision focuses separately on the two funding streams at issue, because each raises distinct constitutional questions. We turn first to the administrative allocation of $400 paid to grantees for each of that grantee's participants, and then to the education award paid to the individual participants. After discussing the two funding streams, we briefly examine the government's claim that its policies were driven, at least in part, by a concern about protecting the religious liberty of EAP participants.
1) The EAP grantees
The CNCS provides EAP grantees up to $400 for each of that grantee's participants, "to assist with program management costs.” CNCS "does not require grantees to account for the uses of these funds, . . . [because] the legitimate needs of administering the program, at the grantee level and below, are expected to exceed the amount of the $400 grants.”[14] The court found that several of the EAP grantees, including Notre Dame's Alliance for Catholic Education (ACE), train their participants using programs in which secular and religious elements are intertwined. Participants in these programs are required to participate in religious activities; in at least one of the programs, that requirement continues through the entire term of the participant's service in the EAP.
The CNCS offered two defenses to its grants for administrative costs. First, the CNCS argued that the administrative grants should be seen as indirect funding for purposes of analysis under the Establishment Clause. The Supreme Court's decision in Zelman v. Simmons-Harris sharply distinguishes between programs of indirect and direct funding. Although the Supreme Court's interpretation of the Establishment Clause now permits a wide range of direct public support for religious institutions, the Court's most recent decisions nevertheless reiterate that the Establishment Clause prohibits the government from providing direct financial support for specifically religious activity, whether the activity is worship or a religiously intensive drug treatment program (
see Freedom From Religion Foundation, Inc. v. McCallum, 179 F. Supp. 2d 950 -- W.D. Wisconsin, 2002 at: http://www.religionandsocialpolicy.org/legal/legal_update.cfm?id=3)If, however, the government provides only indirect financial support for religious activity, such as a program that allows students to redeem education vouchers at religious schools, the expenditure will not violate the Establishment Clause. In Zelman, the Court held that indirect funding mechanisms operate to distance the government from the student's religious education. As long as the student enjoys "genuine and independent choice” among a range of schools, the government is not responsible for the student's choice of one that is religious.Relying on Zelman, the CNCS argued that its administrative support for EAP grantees should be treated as indirect funding because the support that each grantee receives depends entirely on EAP participants' decision to enroll with that particular grantee. Thus, the CNCS grantees would have no obligation to segregate the secular portions of their programs from the religious parts, or to ensure that public funds are spent only for the secular portions. Judge Kessler rejected this argument, and held that the "grants are ‘direct aid' rather than the result of ‘private choice' because the grants are paid directly to the faith-based grantees rather than through an intermediary.”[15] Judge Kessler cites the concurrence of Justice O'Connor in Mitchell v. Helms, a decision in which Justice O'Connor's represents the controlling position in the Court.[16] In Mitchell, Justice O'Connor distinguished voucher-financing mechanisms from those that provide aid on a per capita basis. Under a per capita aid program, the beneficiary decides where the money will be spent; once the beneficiary chooses a particular provider, the government sends the funds directly to that provider. A voucher program, Justice O'Connor reasoned, is one in which the beneficiary decides both where and if the voucher will be redeemed. For true "private choice,” the beneficiary must be free to reject the government's aid.[17] Because CNCS's administrative grants do not "pass through the hands” of the EAP participants, Justice O'Connor would not deem the grants to be programs of indirect support.
CNCS does have some jurisprudential support for its claim that the administrative grants should be treated as indirect financing. In Freedom from Religion Foundation v. McCallum, Judge Richard Posner, writing for the U.S. Court of Appeals for the Seventh Circuit, held that a per capita aid program for substance abuse treatment is functionally - and legally - indistinguishable from voucher financing. Judge Posner wrote:
The state in effect gives eligible offenders "vouchers” that they can use to purchase a place in a halfway house, whether the halfway house is "parochial” or secular. We have put "vouchers” in scare quotes because the state has dispensed with the intermediate step by which the recipient of the publicly funded private service hands his voucher to the service provider. But so far as the policy of the establishment clause is concerned, there is no difference between giving the voucher recipient a piece of paper that directs the public agency to pay the service provider and the agency's asking the recipient to indicate his preference and paying the provider whose service he prefers.[18]
Judge Posner neither discusses nor cites Justice O'Connor's distinction between per capita and voucher aid programs. The implication of his argument, however, is clear: Judge Posner does not believe that the Establishment Clause analysis turns on the beneficiary's ability to refuse the government's payment to her chosen service provider.[19]
The difference between Justice O'Connor's and Judge Posner's definitions of indirect financing has practical significance for any program of government funding of faith-based social services. At the very least, a per capita aid program will involve less - and perhaps a great deal less - administrative effort in ensuring that beneficiaries, or those empowered to act on their behalf, follow the necessary steps to claim and redeem their vouchers for services.
The AJC offered, and Judge Kessler accepted, an additional reason for distinguishing CNCS's administrative grants from the voucher financing mechanism sustained in Zelman. In Zelman, the Court determined that the Cleveland voucher program used a religion-neutral method for deciding which providers are eligible to enroll voucher students. Judge Kessler found, however, that CNCS "uses highly discretionary criteria - as opposed to fixed, objective, measurable criteria - to pick and choose among potentially qualifying AmeriCorps EAP grantees.”[20]
On this point, Judge Kessler seems to misunderstand the analogy to the Cleveland program, because she compares the EAP grantees to the families that received school vouchers.[21] But the EAP grantees are not program beneficiaries. The EAP participants - those who are eligible to receive the education awards - are the proper beneficiaries; the EAP grantees should be treated as the service providers, analogous to the non-public schools under the Cleveland voucher program. The court should have compared the CNCS criteria for grantees with the Cleveland program's rules for determining which non-public schools are eligible to receive vouchers. Seen in that light, the CNCS standards for selecting grantees might not be materially different from accreditation standards for schools - or the accreditation standards for the substance abuse treatment providers in Freedom from Religion Foundation v. McCallum.
Recognizing that the court might not accept its claim that the administrative grants should be treated as indirect financing, the CNCS offered an alternative argument for sustaining the constitutionality of the grants. The CNCS reasoned that grantees inevitably spend far more than the $400 grant on secular administrative costs, so there is no chance that those funds will support religious parts of the grantees' program. As Judge Kessler found, CNCS's alternative argument has virtually no support in the Supreme Court's Establishment Clause jurisprudence. The Court has never sustained a program of direct cash grants to religious entities, under which the government would pay the estimated secular portion of an activity. Indeed, any such program would lack the one feature that Justice O'Connor, in Mitchell, deemed constitutionally necessary: reasonably adequate safeguards against diversion of government aid to religious uses.[22]
For this reason, the district court in Freedom from Religion Foundation v. McCallum (see Freedom from Religion Foundation, Inc. v. McCallum, 2002 U.S. Dist. Lexis 14177 - W.D. Wis. 2002 at: http://www.religionandsocialpolicy.org/legal/legal_update.cfm?id=9) rejected the state's claim that religious substance abuse counselors were paid only for the secular portion of their counseling. Estimates of the secular portion of such counseling are virtually impossible to define or monitor. The same would hold true of CNCS's estimate of the secular, administrative, aspects of the EAP grantees' programs. If the grants are analyzed under the rules for direct financing of religious entities, then CNCS must require more specific accounting of the grantees' actual use of government funds.
2. The EAP participants
Legal analysis of the AmeriCorps education awards is somewhat more complicated than analysis of the EAP administrative grants. Judge Kessler treated the EAP awards as a program of direct financing, and found that CNCS lacked reasonable safeguards to prevent participants from counting time spent teaching religion as part of their required service for the award. Moreover, Judge Kessler found that CNCS's rule change in 2002, under which participants are now permitted to teach religion or lead worship at their AmeriCorps school site, results in "a total blurring of religious and non-religious activities,” such that the government can reasonably be held responsible for the participants' involvement in religious instruction.[23]
Compared to the EAP grantees' funding, however, the participants' education awards are harder to distinguish from the voucher programs upheld in Zelman or its predecessors, Witters v. Washington Department of Services for the Blind, Mueller v. Allen, and Zobrest v. Catalina Foothills School District. The participants choose from a wide variety of AmeriCorps EAP programs and sites, only some of which are religious.[24] The funding mechanism for participants' education awards conforms to the requirements Justice O'Connor set forth in Mitchell. No funds ever "reach the coffers” of the religious schools in which the participants teach; instead, each participant must personally and specifically direct how her award will be used, whether to repay existing student loans or to finance future education.
If the EAP education awards are properly understood as indirect aid, then the court is wrong in its holding that the Establishment Clause requires EAP participants to bifurcate the secular and religious aspects of their work. In Zelman, the Court imposed no such limitations on the use of voucher funds at religious schools. Nor were such limits imposed in Witters, Mueller, or Zobrest. Indeed, if one follows this logic, the Establishment Clause would impose no barrier to an EAP participant performing all of her required hours of service as a teacher of religion. The EAP statute and regulations, of course, forbid participants to count religious teaching toward their service requirement. If, however, the education award constitutes indirect aid, then the EAP's restrictions go beyond the requirements of the Establishment Clause.
Judge Kessler distinguishes the EAP award from Zelman by identifying three attributes of the award program - the religious selectivity of several grantees; participants' relative lack of choice among programs and sites; and the religious content of the program.[25] We examine each of these attributes in turn.
A. Religion-neutral selection of beneficiaries
In examining the threshold requirement of neutrality, which applies to both direct and indirect funding mechanisms, Judge Kessler concluded that "[i]t is clear from the record in the instant case that the [CNCS] does not offer aid ‘to a broad range of groups or persons without regard to their religion' and therefore does not determine eligibility for government aid neutrally.”[26] The court's conclusion seems to reflect a fundamental misunderstanding both of the structure of the EAP, and of the relevant constitutional jurisprudence. As noted above, the court treats the program grantees as beneficiaries, rather than as service providers, which means that the court examines the CNCS's standards for selecting aid providers when it should be examining the relevant standards for selecting AmeriCorps EAP participants. There is nothing in the record to suggest that the AmeriCorps EAP, when taken as a whole, limits its benefits to those having a particular (or any) religious identity. Thus, the EAP should satisfy the threshold requirement of neutrality in distribution of benefits.
The court did, however, raise a potentially significant question about neutrality when it examined the enrollment practices of specific grantees. The court found, and the CNCS apparently conceded, that some grantees have required participants to hold specific religious beliefs or to engage in specific religious practices as a condition of enrolling in those grantees' AmeriCorps programs.[27] Does the Establishment Clause permit providers of services financed by government vouchers to select beneficiaries of their services on the basis of religious beliefs, or require beneficiaries to participate in religious activities as a condition of receiving the service? In Zelman, the Court implicitly answered "yes” to the latter part of that question. Neither the voucher program at issue, nor the Court in its ruling, imposed on participating religious schools a requirement to allow voucher-financed students to "opt out” of religious worship or education. The first part of the question, focusing on discriminatory criteria for receiving the service, has no clear answer because the Cleveland program prohibited religious discrimination in school admissions, and the Supreme Court did not say whether or not the constitution requires such a prohibition.[28]
B. Participants' choice among program grantees and sites
Judge Kessler also distinguished the AmeriCorps EAP from the Cleveland voucher program by examining the range of choices available to EAP participants. The court found that "[a]s a matter of Corporation policy, AmeriCorps participants may enroll only in programs that the Corporation has pre-approved. Thus, participants are not free to choose the program for which they will receive government funding.”[29] With this definition of choice, however, not one of the programs upheld by the Supreme Court in Zelman, Zobrest, Mueller, or Witters would have survived constitutional scrutiny.
Every program of voucher financing will have some set of criteria by which service providers are selected.[30] The Cleveland schoolchildren in Zelman certainly faced limited options. They could not use their voucher for out-of-state schools, or even, as a practical matter, public schools outside their school district; nor could parents use the vouchers at unaccredited schools within Cleveland. The constitution, then, requires a more limited inquiry: Does the range of choices presented to program beneficiaries provide them with sufficient variety to permit a court to assume that any who chose a religious provider did so not because the government steered them to that experience, but rather because the beneficiary wanted - or was at least willing to accept - the religious experience?
In assessing the extent of beneficiary choice, as with the requirement of neutrality discussed above, the court distinguishes the EAP award from the voucher plan in Zelman only by a serious misreading of the Supreme Court's decisions in the indirect aid cases. If we consider only the EAP's neutrality and the extent to which it permits beneficiaries to choose their sites of service, the AmeriCorps EAP undoubtedly meets the Establishment Clause's requirements set forth in Zelman.
C. The religious content of participants' service
For reasons that are not at all clear, the court adds a third criterion to its analysis, one that belongs not to the indirect aid cases, but to Mitchell and other decisions about direct financing of religious entities.[31] Under this third criterion, the court examines the extent to which EAP participants separated their secular from their religious teaching, and the extent to which the CNCS and EAP grantees monitored such a separation. If the EAP awards qualify as indirect aid, however, the demands of separation - and its attendant monitoring - are misplaced. Indirect aid programs are constitutionally distinctive precisely because they do not require separation of secular from religious aspects of a provider's service. CNCS and its grantees may have failed to meet their statutory or regulatory obligations to monitor the separation of secular from religious teaching, but those failures would not be matters of constitutional significance.[32]
We believe that the court's confusion at this point is both understandable and a potential source of considerable insight. The EAP awards for teaching are not perfectly assimilable to the voucher programs upheld by the Supreme Court in Zelman, Zobrest, Mueller, or Witters, or even the drug treatment program upheld by the Seventh Circuit in Freedom from Religion Foundation v. McCallum. Indeed, the EAP awards have one salient difference: they are a subsidy given to teachers, rather than one provided to students.
As such, the awards bring to mind those programs, involving aid to teachers in religious schools, that the Supreme Court has held unconstitutional. In Lemon v. Kurtzmann, the Court struck down a law that paid a salary supplement of 15% to "teachers of secular subjects in non-public elementary schools.”[33] In School District of Grand Rapids v. Ball, the Court held unconstitutional the school district's Community Education program, under which the district employed teachers in non-public schools to teach certain secular courses after their ordinary school day. These teachers became part-time public school employees for purposes of the after school classes, even though the classes were held in the same non-public schools in which they taught full-time, and the students enrolled in the classes were predominantly students from that same non-public school.[34] Although the Supreme Court's Establishment Clause jurisprudence has shifted dramatically over the past two decades, these aspects of Lemon and Ball remain good law.
Close attention to Lemon and Ball helps to identify the reasons that the EAP awards do not fit comfortably into the Zelman pattern of voucher financing. Under Zelman, the relevant constitutional question is whether the government reasonably should be held responsible for any religious experience that a program beneficiary receives, when such a beneficiary has specifically chosen to receive that service from that provider. In assessing the EAP, however, the primary concern should be with the participant's religious indoctrination of others, not with her own religious experiences in the program. As with Lemon and Ball, the relevant constitutional question must involve the extent to which the government may reasonably be deemed responsible for the religious instruction and leadership that the EAP participant provides to her students.
In order to answer that question, we need to look closely at the relationships among CNCS (and its EAP grantee), the EAP participant, the school that employs the participant, and the participant's students. The participant's relationships with the other three "constituents” are fairly simple. To the participant, the school functions as a normal employer, paying her salary just as it does the salaries of the other teacher-employees, monitoring and evaluating her performance just as it does for the other teachers. Likewise, the participant encounters the CNCS (and its grantee) in a manner not materially different than scores of other AmeriCorps participants, who provide a remarkably diverse array of community services, from health care and teaching to working in a food bank or fighting forest fires. The CNCS (through its grantee) approves the participant's site of work, and certifies that she has completed the requisite hours of service to receive the award. Lastly, the participant has a standard relationship with her students, teaching (and evaluating) them just like her non-AmeriCorps colleagues.
The specific differences arise out of the CNCS's relationship with the religious school and its students. Through the EAP grantees, the CNCS encounters the religious school in two ways. First, the CNCS (directly or through its grantees) is responsible for establishing the conditions under which the EAP participant can earn an education award in that setting. The award provides the teacher with additional compensation, which in turn helps the school to afford the teacher (if one assumes that the school would need to pay a higher salary to attract that person to fill the same teaching position without the EAP award). Under the EAP statute and regulations, the CNCS places conditions on the participant's qualifying service, conditions that might have a direct effect on the religious school's mission. As noted above, the statute prohibits participants from charging toward the award any instructional time that is part of a program in which students are required to participate in religious instruction or worship. At least on their face - and even after the 2002 rule changes - these restrictions have the cumulative effect of distancing the participant from full engagement in the religious mission of the school.
At the same time, however, the CNCS requires sites of participants' service to advertise the fact of the participant's involvement in AmeriCorps and the CNCS's involvement in the school and its community. Judge Kessler found that such publicity is an integral part of the EAP. "‘AmeriCorps Identity,' i.e., ‘the extent to which the provision of AmeriCorps funding is outwardly evident at the site,' is one of the specific items that Corporation personnel look for when they conduct site visits at religious schools.”[35]
Taken together, these two aspects of the relationship between the CNCS and the religious school also affect the students of the religious school. The visibility of AmeriCorps images could mark the teacher as distinctive, and a strict interpretation of the EAP statute could highlight this distinctiveness by specifically distancing the participant from the religious mission of the school. The CNCS's relaxation of its rules in 2002, however, suggests the possibility of an impression with quite the opposite significance. By treating any time not charged to the EAP as the participant's "free time” - even if that time comprises a significant portion of her work day at the school - the CNCS effectively erased any distinction between the conduct of the participant and that of her fellow teachers. All can be fully involved in the religious life and mission of the school.
Were we considering a traditional program of voucher financing, the elimination of distinctions between "paying customers” of a religious school and those financed by government vouchers is a feature without constitutional significance. The EAP, however, differs from such a program because the voucher-financed person is the students' teacher, not one among many students, and the program through which the teacher receives her voucher requires that the school publicize the teacher's participation in that government program.
Given that analysis of the EAP award, as applied to teachers in religious schools, Judge Kessler was correct in rejecting the CNCS's claim that the award program should be treated - and upheld - as a program of indirect aid. Instead, proper scrutiny must return to the question of whether the government, acting through the CNCS, may reasonably be held responsible for participants' teaching and leadership in religious matters. Lemon and Ball provide relevant precedents for such an analysis, with their focus on the direct involvement of government-supported teachers in the school's full religious mission, and the difficulty of parsing out the religious from the secular aspects of those teachers' roles. Such an analysis also finds a close parallel in Justice O'Connor's concern with the "reasonable observer's” perceptions that the government has endorsed specific religious messages.[36] When the government places its official imprimatur on a particular teacher, and then permits that teacher to be fully engaged in the religious mission of the school, one might reasonably believe the government to be endorsing or responsible for the religious messages the teacher conveys.
Religious liberty of EAP participants
In its pleadings, the CNCS asserted that the 2002 rule change, along with the Corporation's practice of requiring participants to account only for time teaching secular subjects, were both motivated by a desire to eliminate constraints imposed by the program on beneficiaries' "free time.” The CNCS described this intention as follows:
This practice ensures that federal funds do not pay for religious instruction, while respecting the First Amendment rights of individuals who serve in AmeriCorps to engage in protected activities outside the scope of their AmeriCorps hours. Policing non-AmeriCorps service hours could involve potential First Amendment violations of AmeriCorps participants.[37]
If the restrictions on EAP participants' non-AmeriCorps service hours were substantial, significantly limiting the participants' ability to practice their faith, the restrictions might violate the participants' constitutional rights. For example, a rule that barred participants from attending worship services during their year of Americorps service would clearly violate the constitution; its restrictions would be far too broad to serve any plausible public purpose.
The restriction at issue in this case, however, is much narrower. It involves only whether an EAP participant may teach religion classes and lead students in worship in the same school site in which she teaches secular classes toward her AmeriCorps award. Does such a narrow provision, like the pre-2002 rule, unconstitutionally limit the participants' free exercise of religion? Courts have continually upheld reasonable restrictions placed on teachers' religious practice, where the restrictions are reasonably related to the school's concerns about avoiding Establishment Clause violations. In Wigg v. Sioux Falls School District 49-5, the court upheld a school's rule that prohibited teachers from participating in afterschool religious programs held at the teacher's own school, although the court struck down a broader rule that would have barred the teacher from participating in such clubs at other schools, in contexts in which she would not be identified as a public school teacher.[38] Moreover, the U.S. Supreme Court's recent decision in Locke v. Davey, which upheld a restriction on a theology student's eligibility for a state scholarship, suggests that courts will give the government significant latitude in placing conditions on government grant programs.[39] The CNCS's policy of allowing EAP participants to teach religion at their AmeriCorps schools cannot fairly be characterized as constitutionally mandated.
Conclusion
Judge Kessler's decision in A
Notes:
[2] For all purposes relevant to this lawsuit, the CNCS is treated as an agency of the federal government.
[3] The hours are counted within a nine- to twelve-month period. Participants may use their award to repay educational loans or for future college or vocational training, and may earn no more than two awards.
[4] One of these EAP grantees, the University of Notre Dame's Alliance for Catholic Education, joined the CNCS as a defendant in this lawsuit.
[5] The EAP is authorized under the National and Community Service Act; the material provisions can be found at 42 U.S.C. §§ 12571-12604, 12631-12644.
[6] 42 U.S.C. § 12634(a).
[7] Id at § 12645(c)(1). This provision does create an exception for employees who were already employed by the grantee at the time of the grant. Id. at § 12645(c)(2).
[8] The record in the lawsuit shows that at least some of the EAP grantees selected participants for their program based on religious beliefs or membership in a religious community. Such selectivity would appear to violate the statute.
[9] Id. at § 12584.
[10] In a footnote in one of their pleadings, the CNCS seems to assert that this restriction does not apply to the EAP: "As an aside, the Corporation notes that the regulation, as amended, implements Subtitle C's list of prohibited activities, and therefore that list does not apply to the Education Awards Program.” Memorandum of Points and Authorities in Opposition to Plaintiff's Motion for Summary Judgment, 22 n. 10 (January 29, 2004). We have found no statutory or regulatory provision that would exempt the EAP from the statutory restrictions discussed above; this interpretive question might be raised if the decision is appealed.
[11] 45 CFR § 2520.30 (before amendment in 2002), found at 57 Fed. Reg. 13794 (1994) (emphasis added).
[12] 45 CFR § 2520.30 (present version).
[13] We note again that the statute would seem to prohibit the practice of EAP participants counting any hours spent teaching in religious schools - assuming that the schools require students to participate in worship or religious education.
[14] Slip opinion at pp.24-25 (quoting from the testimony of Hank Oltmann, the official responsible for administering the EAP).
[15] Slip opinion at 44 n.19.
[16] The Mitchell decision, which concerned a variety of forms of federal aid that reached parochial schools, involved a sharply divided Court. Four justices voted to uphold the aid because it treated non-religious and religious schools on equal terms; three justices voted to strike down the aid program because of its support for religious education. Justice O'Connor (writing on behalf of Justice Breyer and herself) concurred in the decision to uphold the aid program, but added an additional requirement to the four justices' principle of neutrality. For Justice O'Connor, a valid program of direct financing must also have reasonable safeguards to protect against diversion of government funds to religious uses. Because Justice O'Connor's opinion rests on the narrower (i.e., more restrictive) ground for upholding the aid program, her opinion represents the governing standard in that decision.
[17] See Mitchell v. Helms, 530 U.S. 793, 842-3 (O'Connor, J., concurring in the judgment) (distinguishing per capita and voucher financing mechanisms).
[18] 324 F.3d 880, 882 (2003) (see Freedom From Religion Foundation, Inc. v. McCallum and Faith Works, Milwaukee, Inc, 2003 U.S. LEXIS 6301 - 7th Circuit, April 2, 2003 at: http://www.religionandsocialpolicy.org/legal/legal_update.cfm?id=15)
[19] Judge Posner's opinion in Freedom From Religion Foundation has become the basis for several federal agencies' decisions to treat what is essentially per capita aid as voucher financing. See, e.g., the Department of Education's notice of final rulemaking, 69 FR 31708, 31713 (quoting Judge Posner on the definition of indirect aid).
[20] Slip opinion at 35.
[21] Id. ("In direct contrast [to CNCS's process for selecting grantees], the government aid program upheld by the Supreme Court in Zelman distributed benefits to every family below a stated income level. . . ”).
[22] Mitchell, 530 U.S. at 861-864 (O'Connor, J., concurring in the judgment).
[23] Slip opinion at 41-42.
[24] According to the CNCS's figures for fiscal year 2001, "there were 3200 participants in the Education Awards Program serving as teachers, 565 of whom were teaching in private schools. . . . Of the approximately 1608 elementary and secondary schools in which the participants were teaching, about 328 were religious schools.” CNCS Memorandum of Points and Authorities in Opposition to Plaintiff's Motion for Summary Judgment, at 7 (Jan. 29, 2004).
[25] Zelman requires only an examination of the first two attributes (program neutrality and extent of beneficiary choice); in adding the third requirement, Judge Kessler appears to have collapsed the analysis in Mitchell, used to assess programs of direct financing, with Zelman's test for voucher programs.
[26] Slip opinion at 34-35.
[27] As noted above, such discrimination is prohibited by the EAP statute and regulations.
[28] The Department of Labor's recent notice of final rulemaking has brought to the forefront the question of limits the constitution might impose on religion-based discrimination by a service provider under a system of indirect aid. 69 FR 41882, 41886 (July 12, 2004) (specifying that non-discrimination protections for beneficiaries do not apply to providers of voucher-financed services).
[29] Slip opinion at 37. The court is simply wrong when it restricts the Supreme Court's jurisprudence of indirect financing to cases in which "the private individual had the statutory right to apply the government funding to any school program of his or her liking....” Id. at 38 (emphasis added). None of the Court's prior cases imposed such a restrictive definition of beneficiary choice, nor could any of the programs upheld in those cases have survived such a definition.
[30] See generally Lupu and Tuttle, Sites of Redemption: A Wide-Angle Look at Government Vouchers and Sectarian Service Providers at: http://www.religionandsocialpolicy.org/docs/legal/reports/7-12-2002_gwu_vouchers.pdf
[31] Slip opinion at 38-39.
[32] And thus, presumably, the AJC would not have legal standing to challenge the statutory or regulatory shortcomings. Now that the district court has decided the case on constitutional grounds, however, we think that an appellate court would be free to consider statutory or regulatory questions as well.
[33] 403 U.S. 602, 607-08 (1971) (the statute limited such grants to teachers in non-public schools that had per-pupil expenditures below that of public schools, at least partly to show that the additional funds were designed to further the secular educational component of the non-public schools, virtually all of which were religious schools).
[34] 473 U.S. 373 (1985). The Court in Ball struck down an additional program offered by the Grand Rapids school district, the Shared Time program, which brought full-time employees of the school district into non-public schools to provide certain specialized services. In Agostini v. Felton, the Supreme Court overruled the part of Ball that dealt with the Shared Time program, but it did not reverse the part of Ball that dealt with the Community Education program. Agostini v. Felton, 521 U.S. 203 (1997).
[35] Slip Opinion at 12.
[36] See, e.g., Mitchell v. Helms, 530 U.S. at 842-843 (O'Connor, J., concurring in the judgment). We have been skeptical of attempts to apply the "endorsement” test to question of public spending - rather than its familiar home in cases of government-sponsored religious displays - but the required visibility of the participant's AmeriCorps affiliation makes the analysis especially appropriate in this context.
[37] CNCS Memorandum of Points and Authorities in Opposition to Plaintiff's Motion for Summary Judgment, 15 (Jan. 29, 2004).
[38] Wigg v. Sioux Falls School District 49-5, 274 F.Supp.2d 1084. See also United States v. Board of Education, 911 F.2d 882 (3rd Cir. 1990) (school district may restrict Muslim teacher's wearing of religious attire during school day); Rosario v. John Does 1-10, 2002 U.S. App. LEXIS 11127 (2nd Cir. 2002) (school district permitted to terminate teacher who discussed her religious beliefs with her students).
[39] see Analysis: Locke v. Davey (U.S. Supreme Court, No. 02-1315, decided 2/25/04) at: http://www.religionandsocialpolicy.org/legal/legal_update.cfm?id=23.
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