The opinion of the court was delivered by: GLADYS KESSLER, District Judge
Plaintiff, the American Jewish Congress, brings this action
against the Corporation for National and Community Service
("Corporation"). The University of Notre Dame ("Notre Dame") is a
Defendant-Intervenor. This matter is now before the Court on
three Motions for Summary Judgment filed by Plaintiff, the
Corporation, and Notre Dame. Upon consideration of the Motions,
Oppositions, Replies, the June 2, 2004 Motions Hearing, and the
entire record herein, and for the reasons set forth below,
Plaintiff's Motion is granted, the Corporation's Motion is
denied, and Notre Dame's Motion is denied.
It is clear from the record in the instant case that the
AmeriCorps Education Awards Program ("EAP") being challenged by Plaintiff results in impermissible government indoctrination in
violation of the establishment clause of the First Amendment.
First, it is undisputed that the AmeriCorps EAP offers program
participants a national service education award of $4,725 to work
in religious schools where they teach religion to their students
throughout the school day, lead their students in prayer multiple
times a day, and attend Mass with their students.
The Corporation defends this practice by arguing that the
religious instruction undertaken by AmeriCorps participants
during the school day is separate from their AmeriCorps service
because the time they spend engaging in religious activity is not
recorded on the timesheets they submit to justify their $4,725
award. In particular, the Corporation claims that its timekeeping
policies ensure that the AmeriCorps participants do not receive
public funding for the time they spend in religious activity.
However, the record discloses that the Corporation's monitoring
efforts are totally inadequate to ensure that its timekeeping
policies are followed. Moreover, even if the Court assumes that
the Corporation accurately estimates the time AmeriCorps
participants spend on religious versus non-religious activities,
it is impossible to clearly distinguish between the two roles the
AmeriCorps participants supposedly play. The line between the two
has become completely blurred. Second, it is undisputed that the Corporation does not require
faith-based AmeriCorps EAP grantees to account for the actual use
of the $400 grants paid for every full-time participant. The
Corporation claims that the secular administrative costs of the
AmeriCorps EAP are "expected" to exceed the amount of the grant.
However, the Corporation's "expectation" that the grantees will
spend the direct monetary grants on secular administrative costs
without actually requiring any segregation or accounting for
the use of the grants is not sufficient to render the grants
For these reasons, the Court concludes that such direct
government involvement with religion "crosses the vague but
palpable line between permissible and impermissible government
action under the First Amendment." DeStefano v. Emergency Hous.
Group, Inc., 247 F.3d 397, 416 (2d Cir. 2001).
A. The Corporation and Its AmeriCorps Education Awards
The Corporation administers the National and Community Service
Act ("Act"), 42 U.S.C. § 12501, et seq.. See
42 U.S.C. § 12651. The purpose of the Act is to "meet the unmet human,
educational, environmental, and public safety needs of the United
States." Id., § 12501(b)(1). The Corporation's "mission" "is to engage
Americans of all ages and backgrounds in community-based service"
by, among other things, "provid[ing] educational opportunity for
those who make a substantial commitment to service."
45 C.F.R. § 2510.10. Corporation funds may not be used "to provide religious
instruction, conduct worship services, or engage in any form of
proselytization." 42 U.S.C. § 12634(a).
The Corporation funds a wide variety of programs in furtherance
of its mission. These programs are 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). One
such program is the AmeriCorps EAP. In order to "attract
participants and encourage service," Def.'s Statement of Facts, ¶
2, the Corporation offers AmeriCorps EAP participants a full-time
national service education award for completing a term of at
least 1700 hours of service during a nine- to twelve-month
period, in a national service position pre-approved by the
Corporation.*fn2 See 42 U.S.C. § 12593(b)(1),
12602(a)(1), (b). The AmeriCorps EAP, like most of the Corporation's programs, is
administered through grantees such as state and local
governments, Indian tribes, and non-profit organizations,
including both secular and faith-based organizations. See
42 U.S.C. § 12592(a), 12653. The Corporation has offered two pieces
of evidence to describe the process it uses to evaluate grantee
applications. This evidence presents two very different pictures
of what factors the Corporation relies on in making grantee
According to Hank Oltmann, the Corporation's Senior Program
Officer and the Director of the AmeriCorps EAP, the Corporation
assesses, among other things, "the extent to which the applicant
identifies a compelling need and describes how that need was
identified." Oltmann Decl., ¶ 15. To satisfy this requirement,
applicants "include data such as position vacancy rates among
social service providers, measures of academic underachievement,
crime rates, health indicators, and socioeconomic indicators such
as regional unemployment rates or the percentage of students
qualifying for subsidized school lunches." Id. Oltmann also
explains that "[o]ne of the Corporation's primary criteria in
considering applications is `Budget/Cost Effectiveness.' Each
application must describe how the proposed program will be
funded, including the use of non-federal sources to support
program design." Id., at ¶ 17. The 2004 AmeriCorps Guidelines, which are far more specific and
rigid, include a section titled "Review Process and Selection
Criteria."*fn3 See Second Oltmann Decl., Ex. B, at 41.
According to the 2004 Guidelines, "Program Design" constitutes 60
percent of the selection criteria; "Organizational Capacity"
("[a]bility to provide sound programmatic and fiscal oversight;"
"[s]ound track record of accomplishment as an organization;"
"[w]ell-defined roles for staff and administrators;" and
"[w]ell-designed plan or systems for self-assessment, evaluation,
and continuous improvement") constitutes 25 percent; and
"Budget/Cost Effectiveness" ("[c]ommitment of applicant
organization or host agency to securing resources, i.e.,
non-federal support for program implementation or
sustainability;" "[a]dequate budget to support program design;"
and "[c]ost-effective within program guidelines") constitutes 15
percent. Id., at 41-42.
"Program Design" includes 3 categories: (1) "Needs and Service
Activities" ("[w]ell-documented compelling community need;"
"[w]ell-designed activities with appropriate performance
measures;" "[w]ell-defined roles for participants that lead to
measurable outcomes or impact;" "[p]revious history of
accomplishments in the proposed activity areas;" "[e]ffective
involvement of target community in planning and implementation;"
and "[a]bility to provide or secure effective technical assistance"), id., at 41;
(2) "Member Development" ("[e]ffective plans for recruiting,
developing, training, supervising, and recognizing participants;"
"[w]ell-designed activities that promote an ethic of service and
civic responsibility;" and "[w]ell-designed plan to engage
participants in high-quality service learning as defined by the
Corporation"), id.; and (3) "Strengthening Communities"
("[d]eveloping community resources, including recruiting and
managing volunteers, with appropriate performance measures;" and
"[s]trong community partnerships, including well-defined roles
for faith- or community-based organizations;" "[p]otential for
sustainability;" "[e]nhanced capacity building of organizations
and institutions;" and "[b]ring together people of different
In fiscal years 1999, 2000, and 2001, the Corporation received
a total of 153 grant applications, of which 134 were approved.
Def.'s Statement of Facts, ¶ 18. In fiscal year 2002, the
Corporation received 29 grant applications, of which 20 were
approved.*fn4 Id., ¶ 19. Thus far in fiscal year 2004,
there are 34 AmeriCorps EAP grantees. See Fifth Olmann Decl., ¶
Grantees are responsible for recruiting and selecting
AmeriCorps EAP participants for their individual programs. See Second Oltmann Decl., Ex. B, at 16. See also
45 C.F.R. § 2522.210. The Corporation has developed and implemented an
on-line recruitment system to assist the grantees with this
process. See Second Oltmann Decl., Ex. B, at 16. This on-line
system includes a description of the Corporation's various
programs and a list/description of the grantees in each of those
programs. It also includes a search engine that allows
prospective participants to locate programs based on the service
area they are interested in (education, health, homelessness,
etc.), geographic location, work schedule, and program type
(AmeriCorps*VISTA, EAP, etc.). The Corporation also makes the
same information available by telephone. See Oltmann Decl., ¶
At oral argument, the Corporation stressed that an AmeriCorps
participant may earn an education award without participating in
a grantee program that it has pre-approved. While the Corporation
cites to 42 U.S.C. § 12573*fn5 in support of this claim,
that section does not appear to allow participation in any but pre-approved
programs. In any case, it is clear from the Corporation's
representations at oral argument that, regardless of what the
statute permits, an AmeriCorps participant must, as a matter of
Corporation policy, serve in a grantee program that the
Corporation has pre-approved in order to earn an education award.
The only federal funds disbursed in the AmeriCorps EAP are the
post-service education awards of $4,725 offered to the individual
AmeriCorps participants and the $400 monetary grant provided directly to AmeriCorps EAP grantees for every full-time
AmeriCorps participant that they enroll.
B. Placement of AmeriCorps Participants as Teachers in the
Religious Schools of Faith-Based AmeriCorps EAP Grantees
In fiscal year 2001, 565 AmeriCorps participants were placed as
teachers in 328 religious schools which were EAP grantees. Id.,
¶¶ 66-67. The University of Notre Dame (which maintains a program
called the Alliance for Catholic Education ("ACE")) and the
Catholic Network of Volunteer Service ("CNVS")) are among those
faith-based AmeriCorps EAP grantees that place the largest number
of AmeriCorps participants as teachers in religious
Pursuant to the Corporation's governing regulations concerning
prohibited activities, "[w]hile charging time to the AmeriCorps
program, accumulating service or training hours, or otherwise
performing activities supported by the AmeriCorps program or the Corporation, . . . [AmeriCorps participants] may not engage in
. . . religious instruction, conducting worship services,
providing instruction as part of a program that includes
mandatory religious instruction or worship, . . . or . . . any
form of religious proselytization." 45 C.F.R. § 2520.30(a)(7).
This regulation also states that "[i]ndividuals may exercise
their rights as private citizens and may participate in
[prohibited] activities on their own initiative, on
non-AmeriCorps time, and using non-Corporation funds. The
AmeriCorps logo should not be worn while doing do." Id., §
2520.30(b). The Corporation construes this regulation to permit
AmeriCorps participants to teach religion throughout the school
day in their placements at religious schools so long as they do
not count the hours they spend engaging in such religious
activity toward their 1700-hour AmeriCorps minimum service
The Corporation encourages AmeriCorps participants placed as
teachers in religious schools, and the religious schools in which
they are placed, to publicize their affiliation with AmeriCorps.
Pl.'s Statement of Facts, ¶¶ 70, 73. Ms. Kerry Galea, the
Corporation's Site Visit Coordinator, testified that sites are
"strongly encouraged to identify with AmeriCorps." Galea Decl., ¶
31. It is the Corporation's "expectation" that its "Education
Awards Programs and members take specific action to create an identity that includes AmeriCorps symbols and networks." Pl.'s
Ex. A-2, at C 3347.
The concept of "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. Oltmann Decl., ¶ 52. They are also asked to inquire
whether the program in question "identif[ies] itself, and . . .
the members identify themselves, with AmeriCorps, through use of
signs, T-shirts, sweatshirts, banners, logos that incorporate the
A*C logo." Pl.'s Ex. A-2, at C 3347.
The Corporation requests that "site supervisors" post "an
AmeriCorps sign or banner" at the sites where AmeriCorps
participants are placed.*fn7 Specifically, the Corporation
requests that sites place these displays "within the vicinity of
wherever you[r] member is located, so members of your staff and
service community can identify the member's participation in
AmeriCorps." Pl.'s Statement of Facts, ¶¶ 75-76. The Corporation
also enables grantees to purchase clothing and other items
bearing the AmeriCorps logo, including signs, T-shirts, buttons,
and sweatshirts. Id., ¶ 78. The aggregated budgeted amount for
such items in the first four years of CNVS' grant from the Corporation
was $180,326.75. Id., ¶ 81.
According to a 2002 Corporation site visit report on a CNVS
program, there were AmeriCorps signs in each of the classrooms
and at the entrances to the religious schools where AmeriCorps
participants were placed. Id., ¶ 86. At another CNVS school,
the AmeriCorps participants were introduced to students and staff
as AmeriCorps participants. Id.
According to the Corporation, AmeriCorps participants placed as
teachers in religious schools are expected to wear the same
professional attire as other school personnel. In particular,
they are instructed not to wear any AmeriCorps gear, such as a
T-shirt or cap, at any time while teaching religion or attending
any religious function in a school. Def.'s Opp'n to Pl.'s
Statement of Facts, ¶ 90.
1. The University of Notre Dame's Alliance for Catholic
The Alliance for Catholic Education ("ACE") program is an
AmeriCorps EAP operated by the University of Notre Dame, a
private Catholic University located in South Bend, Indiana.
According to Dr. John J. Staud, ACE's Administrative Director,
ACE had 163 participants during the 2002-2003 school year,
approximately 50 percent of whom served as teachers in primary
and secondary schools and taught religious subjects. Staud Decl.,
¶¶ 10, 15. One of the "pillars" of the ACE Program is "spirituality." The
mission of the ACE teachers is ultimately connected with the
larger evangelizing mission of the Catholic Church. Pl.'s
Statement of Facts, ¶ 37.
The ACE program includes a "summer program" designed to prepare
ACE participants for their placements as teachers. During this
summer program, ACE offers prayer services specifically
Catholic Mass four times a week. At the beginning of this
summer program, a retreat is held. Prayer experiences, including
Masses and morning prayer, are offered at the retreat. A series
of additional retreats are held during the ACE program as part of
a "12-step program" designed "[t]o harness and more effectively
embody and communicate the key themes related to Christ Teacher."
Id., ¶¶ 46-48.
Some of the courses that are taught during the summer program
have religious content, and some of these courses are mandatory
for ACE AmeriCorps teachers. One such mandatory class, titled the
"Integrative Seminar," includes a lecture on "becoming educators
in faith, leading others in prayer and forming prayerful
communities in Catholic schools." Id., ¶ 51. The Summer 2001
course syllabus for this class included such topics as "To Teach
as Jesus Did: The Catholic Educator's Call to be the Love of God
on Earth" and "Becoming Educators in Faith: Catechesis in
Catholic Schools." Id. Another mandatory class is EDU 502, an
introduction to teaching. According to the syllabus from one year of that class, "[i]t is
absolutely essential that members of ACE have some familiarity
with the Catechism of the Catholic Church." Id., ¶ 52.
All ACE teachers live in "intentional Christian communities" of
4 to 7 people which are meant to foster Christian beliefs and
values. Members of these communities are invited to pray
together. When staff members from ACE conduct site visits to
these communities, they look for the extent to which the members
engage in communal prayer. Id., ¶ 54-56.
ACE has a series of "new teacher performance indicators" that
are applied to measure the performance of the teachers in
religious schools after the summer program ends. Among the
performance indicators are whether the ACE teacher "provides a
variety of prayer experiences" and "witnesses as a person of
faith and prayer." Id., ¶ 44.
The Corporation maintains that ACE AmeriCorps teachers are
"well aware that [it] prohibits providing religious instruction,
conducting worship services, or engaging in any form of
proselytization as part of AmeriCorps service, and that no such
activities may be included in the 1700 hours of service needed to
receive a full-time AmeriCorps ...