Re: American Jewish Congress v. Corp. for National Community Service
Last week, there was a brief discussion on the list about a decision 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, itÂ’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 ___ 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 Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are 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] ___ 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 Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: American Jewish Congress v. Corp. for National Community Service
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 theCTADC'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 thegrant 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
didnot, 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
Last week, there was a brief discussion on the list about a decision
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=34ChipOn 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 PMThe 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
___ 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 Please note that messages sent to this large
list cannot be viewed as private. Anyone can subscribe to the list
and read messages that are posted; people can read the Web
archiveIra C. ("Chip") LupuF. Elwood Eleanor Davis
Professor of Law The George Washington University Law School 2000 H St.,
NWWashington D.C 20052(202) 994-7053[EMAIL PROTECTED][EMAIL PR
Re: American Jewish Congress v. Corp. for National Community Service
Dear all, Marty writes, below, that [a]lthough this [i.e., the reimbursement for secular value argument] 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. I wonder, Marty -- do you think such overrulings would be justified? Are there reasons, other than Lemon and Nyquist -- and there might well be; I'm just asking -- we should worry more about government funds paid in reimbursement for administrative costs associated with teacher-training and supervision than about, say, government funded computers for use in teaching secular subjects in parochial schools, or even federal student loans for students attending Notre Dame and majoring in Theology? Best, Rick Garnett At 01:51 PM 3/16/2005, Marty Lederman wrote: 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 Last week, there was a brief discussion on the list about a decision 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
Re: American Jewish Congress v. Corp for National Community Service
There was some discussion on the list yesterday of the difference between voucher financing, and per capita financing, of faith-based social service providers, and (a related matter) of the district court's opinion in AJC v. CNCS. Bob Tuttle and I have now posted our comment on AJC v. CNCS, and it can be located here: http://www.religionandsocialpolicy.org/legal/legal_update.cfm?id=29 Chip Lupu On 20 Jul 2004 at 14:18, Mark Sabel wrote: I think I recall some prior discussion on this list relating to the following two quick questions, but I would appreciate a refresher response if anyone has a moment: Does RLUIPA's substantial burden standard reflect, codify, or derive from a U.S. Supreme Court case or line of cases interpreting Free Exercise claims? Have there been post-RLUIPA or RFRA cases that discuss the degree to which the substantial burden standard parallels any comparable Free Exercise standard? Mark Sabel 2800 Zelda Rd., Suite 100-5 Montgomery, AL 36106 (334) 271-2770 -phone (334) 277-2882 - fax [EMAIL PROTECTED] ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw 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] ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
