399 F.3d 351 (D.C. Cir. 2005), 04-5317, American Jewish Congress v. Corporation for Nat'l. and Community Service

Docket Nº:04-5317, 02cv01948.
Citation:399 F.3d 351
Party Name:AMERICAN JEWISH CONGRESS, Appellee v. CORPORATION FOR NATIONAL AND COMMUNITY SERVICE, Appellant UNIVERSITY OF NOTRE DAME, Appellant
Case Date:March 08, 2005
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 351

399 F.3d 351 (D.C. Cir. 2005)

AMERICAN JEWISH CONGRESS, Appellee

v.

CORPORATION FOR NATIONAL AND COMMUNITY SERVICE, Appellant

UNIVERSITY OF NOTRE DAME, Appellant

Nos. 04-5317, 02cv01948.

United States Court of Appeals, District of Columbia Circuit

March 8, 2005

        Argued Jan. 14, 2005

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[Copyrighted Material Omitted]

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        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.

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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.

        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

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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...

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