American Jewish v. Corporation Nat. Serv.

• Citation: 399 F.3d 351
• Decision Date: 08 March 2005
• Docket Number: No. 02cv01948.,No. 04-5317.,04-5317.,02cv01948.
• Parties: AMERICAN JEWISH CONGRESS, Appellee, v. CORPORATION FOR NATIONAL AND COMMUNITY SERVICE, Appellant. UNIVERSITY OF NOTRE DAME, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

399 F.3d 351

AMERICAN JEWISH CONGRESS, Appellee, v. CORPORATION FOR NATIONAL AND COMMUNITY SERVICE, Appellant UNIVERSITY OF NOTRE DAME, Appellant.

No. 04-5317.

No. 02cv01948.

United States Court of Appeals, District of Columbia Circuit.

Argued January 14, 2005.

Decided March 8, 2005.

COPYRIGHT MATERIAL OMITTED

Appeals from the United States District Court for the District of Columbia (02cv01948).

Gregory G. Katsas, Deputy Assistant Attorney General, U.S. Department of Justice, argued the cause for appellant Corporation for National and Community Service. With him on the briefs were Peter D. Keisler, Assistant Attorney General, Kenneth L. Wainstein, U.S. Attorney, and Robert M. Loeb and Lewis S. Yelin, Attorneys.

Michael A. Carvin argued the cause for appellant University of Notre Dame. With him on the briefs were Stephen J. Brogan and Mary Beth B. Young.

Daniel S. Pariser argued the cause for appellee American Jewish Congress. With him on the brief were Irvin B. Nathan, Donald R. Gordon and Robyn M. Holtzman.

Ayesha N. Khan, Richard B. Katskee, Alex J. Luchenitser, Jeffrey P. Sinensky, Elliot M. Mincberg, and Judith E. Schaeffer were on the brief for amici curiae Americans United for Separation of Church and State in support of affirmance. Martin E. Karlinsky entered an appearance.

Before: EDWARDS, HENDERSON, and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge.

The First Amendment provides that "Congress shall make no law respecting an establishment of religion." Laws intended to advance or inhibit religion, or having either effect, violate the Establishment Clause. Agostini v. Felton, 521 U.S. 203, 222-23, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997). The issue in this appeal from an order granting summary judgment in favor of the American Jewish Congress ("AJC") is whether portions of the AmeriCorps Education Awards Program, a nationwide community service program operated by the Corporation for National and Community Service, have the effect of advancing religion.

The Corporation funds programs designed to "expand educational opportunity by rewarding individuals who participate in national service with an increased ability to pursue higher education or job training." 42 U.S.C. § 12501(b)(3). No financial assistance from the Corporation may be used "to provide religious instruction, conduct worship services, or engage in any form of proselytization." 42 U.S.C. § 12634(a). Those running an approved program may not discriminate on the basis of religion in selecting program participants. 42 U.S.C. §§ 12634(a), 12635(c)(1).

The Corporation created the AmeriCorps Education Awards Program "to expand opportunities for individuals to serve as AmeriCorps Members and earn educational benefits, broaden the network of national service programs and strategies, and increase the number of communities joining with AmeriCorps to better meet their education, public safety, environmental, and other human needs." 61 Fed.Reg. 46,628 (Sept. 4, 1996). An organization (such as a local government or a non-profit organization) proposing to sponsor a national service program must send an application to the Corporation. Proposed service programs must "address unmet human, educational, environmental, or public safety needs and produce a direct benefit for the community in which the projects are performed." 42 U.S.C. § 12582(b)(4). If the Corporation approves the application, the sponsoring organization may recruit individuals to fill its approved national service positions.

Individuals wishing to receive an Education Award perform community service in a program sponsored by an organization approved by the Corporation. The Corporation offers $4,725 in financial aid to those individuals if they complete at least 1700 hours of service in an approved position. The individuals may use the award for education-related expenses, such as graduate school tuition and the repayment of student loans. 42 U.S.C. § 12604(a).

This case involves only individuals who fulfill their service requirement as teachers in religious schools. The University of Notre Dame, a party to this case, sponsors an approved AmeriCorps program that trains individual AmeriCorps participants and places them in needy Catholic schools, where they teach a variety of subjects, including science, mathematics, foreign languages, English, and religion. Brief of Appellant Notre Dame at 2. AJC thinks that the AmeriCorps Education Awards Program violates the Establishment Clause because individuals, such as those at Notre Dame, who are fulfilling their service requirement by teaching secular subjects in religious schools, also may teach religion courses.

AJC objects to another aspect of the AmeriCorps Education Awards Program. In addition to providing training to individual participants, organizations incur a variety of other responsibilities in sponsoring an AmeriCorps national service program. To help defray the expense of training participants and other administrative costs, the Corporation provides grants in the amount of $400 per AmeriCorps participant to all organizations that sponsor participants — religious and non-religious alike. AJC believes the $400 grants to religiously-affiliated organizations violate the Establishment Clause.

The district court granted AJC's motion for summary judgment and denied the cross motions of the Corporation and Notre Dame. Am. Jewish Cong. v. Corp. for Nat'l & Community Serv., 323 F.Supp.2d 44 (D.D.C.2004) ("AJC"). The court found that the practice of permitting individual participants to teach religion in addition to secular subjects and the $400 cash grants to sponsoring organizations result "in impermissible government indoctrination in violation of the establishment clause of the First Amendment." Id. at 45-46. Concluding that prevailing Establishment Clause precedent permits both portions of the AmeriCorps program, we reverse.

I.

While claiming to have standing to bring this suit because of its status as a taxpayer, Brief of Appellee at 62, AJC describes itself as "a non-profit organization," id. at iii, which makes one wonder whether it pays any federal taxes. No matter. Even if it does not, it is fair to assume that AJC's members do. Meek v. Pittenger, 421 U.S. 349, 356 n. 5, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975). Notre Dame questions AJC's standing, not on this basis, but on the ground that it has not brought itself within the exception to the general rule that taxpayers do not have standing to challenge the manner in which the government spends its tax revenue. Frothingham v. Mellon, 262 U.S. 447, 486-87, 43 S.Ct. 597, 67 L.Ed. 1078 (1923). The exception is for taxpayer suits claiming that Congress exercised its Article I, § 8, taxing and spending power in violation of the Establishment Clause. Flast v. Cohen, 392 U.S. 83, 102, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968).

Whatever doubt there might have been before Bowen v. Kendrick, 487 U.S. 589, 108 S.Ct. 2562, 101 L.Ed.2d 520 (1988), it is now clear that the exception includes more than just taxpayer suits, based on the Establishment Clause, attacking taxing-and-spending statutes on their face. Also within the exception are taxpayer actions claiming a violation of that constitutional provision because of the manner in which the Executive Branch is administering the statute. Id. at 618-20, 108 S.Ct. 2562. A "claim that funds appropriated by Congress are being used improperly by individual grantees" is no less "a challenge to congressional taxing and spending power simply because the funding authorized by Congress has flowed through and been administered by" an executive official. Id. at 619, 108 S.Ct. 2562.

Notre Dame thinks this case is distinguishable from Bowen because AJC alleged that some, but not all, of the Corporation's actions violated not only the Establishment Clause, but also the National Community Service Act and the regulations thereunder. See In re United States Catholic Conference, 885 F.2d 1020 (2d Cir.1989). The distinction cannot be sustained. Despite a suggestion in its complaint, AJC has made clear that it relies solely on the Establishment Clause. Brief of Appellee at 63. No argument it has made to us rests on a statutory violation; all are aimed at the constitutionality of the Corporation's administration of the AmeriCorps program and the manner in which it allocates funds. Those arguments persuaded the district court and framed its decision. As the case now stands, it therefore fits comfortably within the rationale of Bowen:"The [National Community Service Act] is at heart a program of disbursement of funds pursuant to Congress' taxing and spending power, and [AJC] calls into question how the funds authorized by Congress are being disbursed pursuant to the [Act's] statutory mandate." 487 U.S. at 619-20, 108 S.Ct. 2562. It follows that there is "a sufficient nexus between the taxpayer's standing as a taxpayer and the congressional exercise of taxing and spending power, notwithstanding the role the [Corporation] plays in administering the statute." Id. at 620, 108 S.Ct. 2562.

II.

AJC's principal complaint is that individuals, while teaching secular subjects at religious schools under the AmeriCorps program and receiving credit toward an Educational Award, may also teach religious subjects. See Compl. ¶¶ 4, 63-66. Under School District of City of Grand Rapids v. Ball, 473 U.S. 373, 105 S.Ct. 3216, 87 L.Ed.2d 267 (1985), according to AJC, if an AmeriCorps participant decides to teach religion, the decision is attributable to the government. Ball struck down two school district programs — a "Shared Time" program and a "Community Education" program. AJC focuses on the "Community Education" program in which the school district hired religious school teachers to teach secular classes in after-school programs in religious schools. The Supreme Court held that this program violated the Establishment...