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AMERICAN JEWISH CONGRESS v. CORPORATION FOR NAT'L & COMM. SERV.

July 2, 2004.

AMERICAN JEWISH CONGRESS, Plaintiff,
v.
CORPORATION FOR NATIONAL AND COMMUNITY SERVICE, Defendant. UNIVERSITY OF NOTRE DAME, Defendant-Intervenor.



The opinion of the court was delivered by: GLADYS KESSLER, District Judge

MEMORANDUM OPINION

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 constitutional.

  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).

  I. Background*fn1

  A. The Corporation and Its AmeriCorps Education Awards Program

  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 decisions.

  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 backgrounds"). Id.

  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., ¶ 3.

  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., ¶ 6.

  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 schools.*fn6

  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 commitment.

  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 Education Program

  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 ...


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