I think that Chip and Bob's analysis is
pitch-perfect. The most questionable part about the program -- aside from
a serious statutory issue that AJC apparently dropped because of standing
concerns -- has always been the $400 grants to Notre Dame. For the reasons
Chip and Bob explain, I'm not persuaded by the CTADC's reliance on
Regan as support for those grants. Levitt is the
precedent much more on-point.
Indeed, Judge Randolph's opinion goes much further
than Regan, including as "administrative costs" not only the costs of
complying with the federal government's paperwork and technical requirements,
but also the costs of the teacher-training
(the education) itself, and of "supervision." This is, in effect, no
different than saying that the teachers' salaries for teaching secular subjects
in Nyquist and Lemon were "administrative costs" of complying
with the grant program and therefore could be subsidized. The Court
expressly rejected such a "reimbursement for secular value" argument in those
cases, and that doctrine was reaffirmed by Justice O'Connor's governing
opinion in Mitchell. Thus, as Chip/Bob suggest, the CTADC's
decision significantly echoes the theme one hears quite a bit of these days --
that direct grants can be provided to faith-intensive programs, as long as the
government receives "secular" value for its money. Although this might be
a valid theory of the EC, it has thus far been rejected by the SCOTUS, and would
require fairly significant overrulings in order to carry the
day.
Interestingly, DOJ
did not, in its briefing or argument, raise the Regan
argument. Instead, DOJ argued that because the $400 is sent to Notre Dame
on a "per capita" basis, depending on the number of students who choose to
attend Notre Dame, it is, in effect, indirect, or voucher-like,
funding, governed by Zelman. This was Judge Posner's rationale in
FFRF v. McCallum, which DOJ cited extensively. The D.C. Circuit
no doubt concluded that the Posner "de facto voucher" rationale -- no matter how
compelling it might be -- is directly foreclosed by O'Connor's governing opinion
in Mitchell. Thus, the court itself latched onto the
Regan rationale, without the briefing that might have demonstrated why
it was a tenuous ground for reversal.
Disclosure: Several years ago, I worked on
the matter for DOJ before the initiation of the lawsuit. Obviously,
nothing I say here contains any confidential information, and my views do not
necessarily reflect DOJ's.
----- Original Message -----
From: "Lupu" <[EMAIL PROTECTED]>
To: "Law & Religion issues for Law Academics"
<religionlaw@lists.ucla.edu>
Sent: Wednesday, March 16, 2005 1:28
PM
Subject: Re: American Jewish Congress v. Corp. for
National Community Service
by the DC Circuit (3/8/05, reversing the district court) to uphold
against constitutional challenge various aspects of the Americorps
Education Awards Program. Bob Tuttle and I have now posted a
comment on the D.C Circuit opinion at the website for the
Roundtable on Religion and Social Welfare Policy. The comment
can be found here:
http://www.religionandsocialpolicy.org/legal/legal_update.cfm?id=34
Chip
On 15 Mar 2005 at 17:57, Steven Jamar wrote:
> On Tuesday, March 15, 2005, at 04:44 PM, James Maule wrote:
>
> > What major social reform effectuated through legal change was NOT a
> > political non-starter when it first was proposed?
>
> "Never doubt that the work of a small group of thoughtful, committed
> citizens can change the world. Indeed, it's the only thing that ever
> has."
>
> Margaret Meade
>
> >
> > [EMAIL PROTECTED] 3/15/2005 3:12:30 PM >>>
> >
> > The idea of cleanly separating religious
> > marriage from state-recognized relationship is appealing, but a
> > political non-starter, in my view.
> >
> > Rob Vischer
> >
> --
> Prof. Steven D. Jamar vox:
> 202-806-8017 Howard University School of Law
> fax: 202-806-8428 2900 Van Ness Street NW
> mailto:[EMAIL PROTECTED] Washington, DC 20008
> http://www.law.howard.edu/faculty/pages/jamar
>
> "God, give us grace to accept with serenity the things that cannot be
> changed, courage to change the things which should be changed, and the
> wisdom to distinguish the one from the other."
>
> Reinhold Neibuhr 1943
>
> _______________________________________________
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> posted; people can read the Web archive
Ira C. ("Chip") Lupu
F. Elwood & Eleanor Davis Professor of Law
The George Washington University Law School
2000 H St., NW
Washington D.C 20052
(202) 994-7053
[EMAIL PROTECTED]
[EMAIL PROTECTED]
_______________________________________________
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_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
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