http://blog.au.org/2006/04/faithbased_fumb.html


April 17, 2006
Faith-Based Fumble: Notre Dame Drops The Ball By Spending Federal Funds For Religion
A federal appeals court has given new life to a legal challenge against federal funding for a religious education program run by the University of Notre Dame.

Taxpayers, represented the American Civil Liberties Union of Indiana, sued the U.S. Department of Education seeking to recover a $500,000 grant to the Catholic university to run a program called the Alliance for Catholic Education (ACE).

A three-judge panel of the 7th U.S. Circuit Court of Appeals ruled last week that the lawsuit can proceed. The appellate court said a district judge erred in dismissing the case on technical grounds.

ACE, as noted by the 7th Circuit, trains faculty for Catholic parochial schools. The program consists of teacher-training courses and field experience at Catholic elementary and secondary schools. Another part of the program entails teachers “residing in faith-based communities while doing apprentice teaching in those schools.” Participants are encouraged “to live and work in accordance with the tenets of the Catholic faith.”

A federal judge dismissed the taxpayers’ lawsuit, calling it moot since the university had already spent the money. A possible future appropriation of federal dollars for the program was too remote to warrant injunctive relief.

But the 7th Circuit, by a 2-1 vote, said Cook v. Spellings was improperly thrown out. The majority held that the $500,000 federal grant may have been expended in a way that violates the First Amendment principle of church-state separation.

Writing for the majority, Judge Richard Posner said the U.S. secretary of education “is authorized to seek repayment of a grant diverted to sectarian purposes in violation of the Constitution and a Department of Education regulation.”

Lawyers for Notre Dame intervened in the case arguing that since it is a private entity, it cannot violate the First Amendment. Therefore, the school’s attorneys insisted, it is not liable for its expenditure of public funds.

Posner didn’t buy argument.

“[I]f as the plaintiffs claim the Department of Education wrongfully took their tax money and gave it to Notre Dame,” wrote Posner, “the court can order Notre Dame to return the money to the U.S. Treasury. It would be like a case of money received by mistake and ordered to be returned to the rightful owner. Such orders are routine instances of restitution.”

Ira Lupu, a law professor and constitutional expert at George Washington University, said the 7th Circuit’s action should place faith-based groups on alert as to how they use federal grants.

“It’s a big deal,” Lupu told the Associated Press.

Faith-based groups that take public funds had better spend the money wisely and legally or they may have to pay it back.

--Jeremy Leaming