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The Roundtable:
What prompted the American Jewish Congress to file its lawsuit against the AmeriCorps program?
Marc Stern:
I did a television interview with someone who worked during the Clinton administration with the Corporation for National and Community Service and learned of an example of an improper church-state arrangement. I inquired about it and filed the lawsuit in 2003. This practice goes well back into the Clinton administration, but we discovered this in the first days of the Bush administration. The program was well underway. It was nothing that the Bush administration did that set off this lawsuit. They were just continuing an old program and when we filed against it, it had been going on for some while.
The Roundtable:
The court held that AmeriCorps could use public funds to support teachers in Catholic schools. Do you expect to file an appeal?
Marc Stern:
We're still talking about that. We have 90 days to appeal. It would definitely go to the U.S. Supreme Court. We may ask the entire District of Columbia Circuit (court) to reconsider, and that would push everything off by two months. Sometime by the mid-summer or fall we will have either filed or not filed.
The reasons for filing are fairly obvious. You have a decision you don't like and you think is wrong. It is the sort of decision that is likely to have almost a Supreme Court-like effect. So if you don't appeal it, you might as well have lost in the Supreme Court. On the other hand, maybe someone else will come up with a better set of facts which might be worth waiting for. There might be some deficiency in this lawsuit, and the way we litigated it, that it is clearer now than when we started -- something to indicate this is not the best vehicle for testing the legal issues of the case.
Other sorts of considerations go into this decision that say nothing about the facts in this particular case. Are you better off with this decision? What are the chances of winning in the Supreme Court? What happens if you lose in the Supreme Court? Is it better to let the issues percolate and let other Circuits weigh in? All of these factors go into our decision. It is too early to know how to move and recalibrate.
The Roundtable:
There were two issues in this case. One was the activities of the teachers supported by AmeriCorps under the Corporation for National and Community Service. The other was the government awarding grants to Notre Dame University to train teachers. How is the separation of government support of religious activity important to the decision?
Marc Stern:
The court did not say they were separated. It said it clearly was possible for the government to do so, and it was just a matter of whether the bookkeeping was good enough. "We are not going to worry about that too much," was the gist of the decision. I do not think that would be a major focus of any appeal. It seems to me to be secondary to the other issue. I do not know that we would separately appeal that piece alone.
There was not much monitoring here in this program. Whatever monitoring existed is essentially a product of the fact that we started complaining to the Corporation for National and Community Service. We have documents from a Freedom of Information Act request, which shows AmeriCorps people listed as teaching religion and nothing else. That apparently excited no examination at the Corporation's headquarters.
So whatever little examination goes on now, and it is very little, is really a product of this lawsuit, even though we have nominally lost it at this point. There is more examination now than there was before.
The Roundtable:
One Circuit Court judge who ruled on this case compared the AmeriCorps teaching program to school voucher programs. Is this different from the school voucher programs?
Marc Stern:
Yes.
In the voucher program, any school that wanted to participate in the city of Cleveland was eligible to do so. There was no government selection of the schools. In this AmeriCorps case, there were selections.
From 1999 to 2001, there were 153 applications and 134 were approved. So there were more applicants than there were grants. In 2002, there were 29 new applications and 20 were approved. So there is a fair amount of discretion in giving these awards. That government ability to choose who gets to use government dollars poses problems. The court alludes to an opinion of Justice Clarence Thomas in a case called Mitchell v. Helms, which says that sort of selection poses unique Establishment Clause problems -- because the government has to decide who is going to best use its money.
The court said, "Well, you did not bring any affirmative proof that there was discrimination." All the government had to do was keep its mouth shut. We could never have that proof.
But beyond that, wouldn't it be perfectly logical to say that a Baptist provider is best able to provide services in Alabama as opposed to the Unitarian Universalists? You can couch that in words that are not directly religious by saying, "The Baptists have the largest network in the area, they are the most accepted, or they are on the ground already." None of those words is to say, "We would never fund Unitarian Universalists." It is to say, "Whoever is there now is going to get the money because they are best able to provide the services."
That reinforces existing religious patterns in ways that Justice Thomas points out may be constitutionally problematic.
The Roundtable:
Does last week's decision have an effect on President George W. Bush's Faith-Based Initiative and other programs where government supports services provided by faith-based organizations?
Marc Stern:
It does so in the worst of all possible ways.
In this case, the government claims that whatever hours the AmeriCorps people were teaching religion did not count toward the 1,700 hours required to receive financial aid for college tuition and student loan repayment. They were not held bound to those hours of religious teaching as being government employees. We deny that legally and factually. So that is one problem with the case.
Beyond that, the government's main point is, "When they are on our dime, they are not teaching religion." That is not true of those parts of the Charitable Choice initiative that matter.
It was always acceptable to give Catholic Charities, Salvation Army or United Jewish Communities money to conduct secular programs. The fight in the Charitable Choice area is whether the government can pay social service providers to provide services in a sectarian way.
Religion is an instrument of social service delivery where drug rehabilitation programs use belief in Christ, Buddha or Moses to help wean people from drugs. That is what is new. That is what has become controversial. That is what has been an issue. This case does not touch that part of the President's initiative.
The arguments the government made in this case amounted to a quiet repudiation of that theory -- even if the government is funding religion, there is no constitutional problem, and there is no need for the government to make a big fuss in this case about the fact that they were not on taxpayers' dime when they were teaching religion.
The Roundtable:
If they more succinctly separate religious and secular roles, would it still present a problem?
Marc Stern:
There is an old Supreme Court case, Grand Rapids City Board of Education v. Ball, in which the Supreme Court held that kids could not be expected to know that in one period teachers are religious school employees, and in another period they were secular employees who were not able to reach religion. There is this lingering problem that would need to be addressed, but it would be certainly much less problematic if none of these teachers were teaching religion altogether.
The Roundtable:
Can safeguards be put in place to monitor the activities more closely?
Marc Stern:
The government claims there are procedures in place. In fact, they are nonexistent. We have the evidence.
What you seem to need to prove now is a new systematic pattern of violations, which are almost always beyond anyone's ability to prove. That would clearly be better, but that would not solve the problem with the President's faith-based program -- because the problem is not the "dos" or "don'ts" of funding, but because there was not adequate monitoring.
And if you had monitoring to prevent teaching religion with government money, that is not going to help the President's faith-based initiative, because he wants to allow precisely that. The problem is not monitoring, the problem is what is going on.
The Roundtable:
Thank you for speaking with us. | 
