never used in connection with the AFLA project. Id. PP 29, 30.
Moreover, the defendant provides testimony that some ostensibly religious materials were not used to promote religion. The plaintiffs contend that Christian Community Consciousness Center ("CCCC") used a religious filmstrip, Springtime of Your Life, as well as a religious brochure, Practical Reasons for Chastity. FACTS II, CCCC-Vol. F para. 39, 42-43. The defendant disputes that the brochure was ever used and contends that the filmstrip does not teach or promote religion. HHS Res., CCCC-Vol. F paras. 39, 42. The plaintiffs also allege that Pregnancy Services of Greater Lansing proposed using religious materials in its AFLA project, but the defendant challenges that assertion. HHS Res., Vol. G paras. 17, 25; HHS Facts, Vol. G paras. 27a-28.
The plaintiffs further allege that some grantees regularly referred clients to religious organizations. Some grantees recruited volunteers mainly through churches. The plaintiffs argue that many grants only have served to expand already existing religious programs. The defendant disputes the accuracy and significance of these allegations and denies that certain incidents or activities occurred as the plaintiffs allege. Finally, the defendant argues that the totality of grantee activities, not merely isolated incidents, reveals that the AFLA program has been administered in compliance with the Establishment Clause. HHS alleges that in rare instances in which a grantee has misunderstood or disregarded HHS' grant conditions and guidance, HHS has adequately addressed the problem.
3. Genuine Issues of Material Fact Remain as to Whether the AFLA, as Administered, Fosters an Excessive Government Entanglement with Religion
The plaintiffs argue that HHS' review and monitoring procedures have been consistently inadequate. The plaintiffs contend that HHS has often fallen short of its goals by approving religious materials, or failing to monitor and prevent the use of religious materials. In addition, plaintiffs contend that HHS failed to monitor the religiosity of grantees, and even when aware that a project was intimately connected with a religious grantee, failed to increase its monitoring. Furthermore, the plaintiffs contend that HHS funds grantees without knowing what services will be offered as part of the AFLA project, inadequately instructs grantees about compliance with AFLA, and improperly revises its review forms to remove suggestions of problems in grantees' programs. The plaintiffs argue that, in some areas, the current AFLA program does too little to prevent Establishment Clause violations, and in other areas creates an excessive government entanglement with religion.
HHS contends that its administration
of the AFLA program has clearly been adequate, and has improved steadily since its inception.
HHS argues that grantee materials appropriately have been reviewed. HHS also asserts that while some grantees have given AFLA presentations without final approval, these were merely technical violations of the grant requirements. HHS maintains that there has been insufficient use of religious materials to pose Constitutional problems. HHS acknowledges that it takes a long time to review and approve curricula, but argues the delay is a function of a thorough review process. Def. Opp. at 107. Furthermore, the defendant contends that it has issued appropriate guidance to prevent Establishment Clause problems, and when HHS has discovered violations of grant conditions, it has taken appropriate remedial action. Finally, the defendant disputes the plaintiffs' characterizations of many facts. Def. Opp. at 109 n. 157. Because numerous factual disputes remain unresolved, at this stage the Court will not rule on whether the AFLA as applied fosters excessive entanglement between government and religion.
C. Motion For Summary Judgment By A Woman's Choice, Inc.
The Court now turns to the motion for summary judgment filed by A Woman's Choice, Inc. AWC seeks a declaration that neither HHS' AFLA grant to AWC nor HHS' other grants and procedures violate the Establishment Clause. However, because there are genuine issues of material fact, the Court at this stage declines to enter judgment in favor of AWC. Because the Court has already illustrated that genuine issues of material fact remain as to whether the other AFLA grants violate the Establishment Clause, the Court will address why summary judgment is inappropriate for AWC in particular.
AWC maintains two offices. The office in Falls Church, Virginia, operates AWC's AFLA project, "Teen Choice." Teen Choice is an abstinence project. AWC also operates a non-AFLA project, a crisis pregnancy center. AWC argues that neither AWC as a whole nor its AFLA project is pervasively sectarian, and that Teen Choice uses a curriculum that is secular, does not engage in religious activities, and does not promote religion.
The plaintiffs counter that AWC is pervasively sectarian, and argue that the mere physical separation of Teen Choice from AWC does not cure the AWC's AFLA grant of Constitutional infirmity. AWC distributes religious literature,
and its articles of incorporation state that its purposes are "to restore solid Judeo-Christian principles" and "to teach and promote Judeo-Christian values."
AWC's personnel policies indicate that all employees of AWC are expected to agree with the organization's basic principles. FACTS II, AWC-Vol. D para. 11.
The plaintiffs argue that both of AWC's AFLA and non-AFLA projects are linked, and that several individuals who have worked at the pregnancy center work for Teen Choice. Moreover, the plaintiffs contend that the majority of Teen Choice's volunteers are recruited through church bulletins and nearly all volunteers are recruited through church contacts. FACTS II, AWC-Vol. D para. 65. Furthermore, many AFLA volunteers list religious reasons for volunteering and/or have served as religious school teachers or counselors.
Teen Choice gives classroom presentations in public high schools and junior high schools on the advantages of sexual abstinence. The plaintiffs argue that Teen Choice uses a curriculum that promotes religion. Teen Choice developed a four chapter curriculum which included a chapter entitled, "Reasonable Reasons to Wait." FACTS II, AWC-Vol. D para. 40. The plaintiffs claim that a booklet included in the "Reasonable Reasons to Wait" curriculum, which is distributed to students, mixes AWC's secular counseling on sexual abstinence with a religious message:
If I say, 'I don't believe in intercourse before marriage because my religion tells me so,' without thinking through why my religion tells me so, or whether I feel any respect for myself or my partner, then I am out of control of my values.
Id. P 43. The plaintiffs also complain that Reasonable Reasons to Wait contains religious references, instructs presenters to distribute religious materials, and contains a bibliography referring to religious materials. Id. PP 41, 43-44, 52. For example, in presentations to Public Junior High Schools, AWC personnel lecture from the Sex Respect curriculum. During their AFLA presentations of both Sex Respect and Reasonable Reasons to Wait in Fairfax County, AWC staff use the religious terms "spirituality" and "spiritual development" in their discussion of human sexuality and sexual maturity. See, e.g., id. P 41.
The plaintiffs conclude that AWC has used its AFLA funds for religious activity and that AWC's religious affiliation creates a substantial risk of advancing religion, endorses religion, and results in an excessive government entanglement with religion.
Though admitting many of the plaintiffs' factual allegations, AWC disputes the legal significance of these facts. The primary factual dispute is the extent to which AWC and Teen Choice have been, or currently are, inextricably linked. At the summary judgment stage, the Court cannot overlook the plaintiffs' evidence -- which is more than a mere scintilla and which must be construed in their favor -- tending to prove that AWC's AFLA grant poses Establishment Clause problems. Although AWC's argument may prove successful at trial, the evidence on the issue of whether the AFLA grant to AWC violates the Establishment Clause presents genuine issues of material fact. Accordingly, the Court shall deny the motion for summary judgment by A Woman's Choice.
At this juncture, it would be premature for the Court to rule on the issue of remedy. The parties have debated the appropriateness of several potential remedies, ranging from, inter alia, striking down the statute as applied to religious organizations, enjoining the administration of the AFLA program,
requiring HHS to issue appropriate regulations, or striking down impermissible grants on an individual basis.
Without ruling on the merits of these remedial theories, the Court recognizes that it may have to exercise its broad remedial power after the trial record is developed. Ultimately, the Court's determination of the appropriate relief in this case will depend on the nature and scope of the violations which are proved at trial. See Kendrick I, 487 U.S. at 623-24 (O'Connor, J., concurring) ("If the District Court finds on remand that grants are being made in violation of the Establishment Clause, an appropriate remedy would take into account the history of the program's administration as well as the extent of any continuing constitutional violations").
After carefully considering the applicable law, the arguments of counsel for all parties, the memoranda of law and the entire record herein, the Court concludes that there remain in this case numerous genuine issues of material fact that may only be resolved through a trial. The Court will issue an Order of even date herewith in accordance with this Opinion.
ORDER - July 9, 1991, Filed
In accordance with the Opinion issued of even date herewith in the above-captioned case, and for the reasons set forth therein, it is this 9th day of July, 1991,
ORDERED that the Motion for Summary Judgment by the plaintiffs shall be, and hereby is, denied; and it is
FURTHER ORDERED that the Motion for Summary Judgment by the defendant-intervenor A Woman's Choice, Inc. shall be, and hereby is, denied; and it is
FURTHER ORDERED that the parties shall appear for a status call before the Court at August 30, 1991 2:00 P.M.; and it is
FURTHER ORDERED that, in anticipation of the above-mentioned status call, the parties shall consider the mechanics of conducting a trial on the merits in accordance with the dictates of Fed. R. Civ. P. 1, and the parties are directed to consider the ideas expressed in Richey, "A Modern Management Technique for Trial Courts to Improve the Quality of Justice: Requiring Direct Testimony to Be Submitted in Written Form Prior to Trial," 72 Geo. L.J. 73 (1983); and it is
FURTHER ORDERED that the plaintiffs' Motion to Strike the defendant's January 26, 1990 memorandum shall be, and hereby is, denied; and it is
FURTHER ORDERED that the plaintiffs' Motion to Strike defendant's fact statements shall be, and hereby is, denied.
ORDER - July 9, 1991, Filed
The defendant has filed a Motion to Strike portions of Plaintiffs' Statement of Material Facts and Supporting Appendices. In short, the defendant argues that a large portion of the documents and statements relied on by the plaintiffs to support their Motion for Summary Judgment must be stricken for failure to meet the requirements of Fed. R. Civ. P. 56(e). The defendant contends that the plaintiffs: (1) failed to authenticate documents; (2) relied on hearsay; and (3) submitted numerous facts and supporting material which are not relevant to the present inquiry.
After carefully considering the defendant's motion, the supporting and opposing memoranda, the arguments of counsel, and the entire record herein, the Court shall deny, without prejudice, the defendant's motion as to most of the challenged documents and statements.1a Of the approximately 1800 documents which plaintiffs have submitted in support of their motion for summary judgment, all but about 50 were produced from the defendant's own files, or the files of AFLA grantees and can be properly considered on the pending cross-motions for summary judgment. Approximately 1750 documents are both authentic and admissible as government documents, business records, admissions, and other inherently reliable and competent evidence. In addition, many of the documents fall within exceptions to the hearsay rule. Other documents have been submitted not for the truth of the matter asserted, but to show that the statements had been made, and thus do not fall within the scope of hearsay. Furthermore, documents which the defendant generally challenges on the basis of relevancy involve grantees' religious views, which are relevant to the pending motions for summary judgment at this stage of the case.
Fed. R. Civ. P. 56 (c) and (e) are not overly restrictive and are not the only means of presenting evidence on a summary judgment motion. Any material that would be admissible or usable at trial may be considered by the Court. 10A C. Wright and A. Miller, Federal Practice and Procedure § 2721 at 40 (and cases cited therein).
The plaintiffs have persuasively shown that documents which the defendant has challenged as unauthenticated meet either the minimal requirements of Fed. R. Evid. 901 or are self-authenticating under Fed. R. Evid. 902. Most of these documents either meet the general requirement of Fed. R. Evid. 901(a), or are public records under Fed. R. Evid. 901(b)(7), are authentic under Fed. R. Evid. 901(b)(4), are self-authenticating under Fed. R. Evid. 902, or have been authenticated by affidavit.
Moreover, as to the defendant's general hearsay objections, documents are admissible under the various hearsay exceptions or are nonhearsay. The documents are relevant, reliable and essential to a just and proper adjudication of this matter.2a The documents have a significant indicia of reliability, because the vast majority were produced from the Department of Health and Human Services and the AFLA grantees, and the defendants rely on, and respond to the same types of documents in their opposition to plaintiffs' motion for summary judgment. In addition, the potential prejudice to the defendant is low. Furthermore, the danger posed by hearsay is diminished in this case because the Court is the trier of fact. See 4 Weinstein's Evidence, para. 800 at 800-17 (1987) (and cases cited therein).
Much of the documentary evidence challenged as hearsay is admissible under Fed. R. Evid. 803(24) as having circumstantial guarantees of trustworthiness;3a as public records under Fed. R. Evid. 803(8);4a or as records of regularly conducted activity under Fed. R. Evid. 803(6).5a In addition, a number of documents obtained from the defendant or the defendant-intervenors A Woman's Choice, Inc. or Catholic Charities, U.S.A. are also admissible as non-hearsay admissions by party-opponents under Fed. R. Evid. 801(d)(2) or as non-hearsay statements under Fed. R. Evid. 801(c) because they are not being offered for the truth of the matter asserted.
Finally, the defendant challenges on relevancy grounds some documents regarding the religious views of various AFLA grantees on the issues of adoption and abortion. The Court rejects the defendant's argument and finds that this evidence meets the threshold for relevancy.
Given the enormous scope and generality of the defendant's motion, and considering the general reliability of the challenged documents, the timing of the case, the breadth of the record, and given that the surrounding circumstances are such that alternative avenues of presenting the evidence are infeasible and impractical, the Court shall generally deny the defendant's motion. As to the remaining some 50 documents which the plaintiffs produced from remaining sources, the Court shall reserve its ruling until the time of trial.6a There may be an admissibility problem with respect to these documents, but in light of this Order and the Court's Opinion disposing of the cross-motions for summary judgment, the parties may be able to resolve their evidentiary disputes, or the plaintiffs may develop alternative theories for their admissibility.
Accordingly, it is, by the Court, this 9th day of July, 1991,
ORDERED that defendant's Motion to Strike portions of the Plaintiffs' Statement of Material Facts and Supporting Appendices shall be, and hereby is, denied as to the approximately 1750 documents produced by the defendant and various AFLA grantees; said denial is without prejudice to the defendant renewing objections at the time of trial; and it is
FURTHER ORDERED that as to the approximately 50 documents produced to the plaintiffs from sources other than the defendant or AFLA grantees, the Court shall reserve its ruling until the time of trial.