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Lawsuit results in victory

Justin Tardiff | Monday, January 23, 2006

In a decision that will protect future federal funding for Notre Dame’s Alliance for Catholic Education (ACE), the Supreme Court refused to review the March 2005 U.S. Court of Appeals for the District of Columbia Circuit ruling that AmeriCorps members can both receive training from and teach at religiously affiliated institutions without violating the constitution’s establishment clause.

The Jan. 9 announcement that the ruling would stand came as a relief to those affiliated with ACE and brought nearly two years of litigation to a close.

“We were thrilled,” ACE director John Staud said. “I wasn’t surprised because we felt all a long our relationship with AmeriCorp was legal and just – but you never know.”

Founded in 1993 by Father Timothy Scully, ACE is a two-year teacher training program that places participants in disadvantaged schools throughout the United States. The participants return to the University during the summer months to earn master’s degrees in education.

In addition to the roughly $11,000 per year ACE teachers earn from their schools, most apply for and receive two annual $4,725 education vouchers through the federal service program AmeriCorps. This requires that the participant complete 1,700 hours of non-religious affiliated service in or outside of the classroom.

Notre Dame also receives a grant from AmeriCorps for every full-time AmeriCorps member who signs on – money that helps defray classroom and administrative costs. Originally $400 per member, that amount jumped to $1,000 last year after ACE was elevated to Professional Corps status.

In 2004 the American Jewish Congress (AJC) filed suit arguing AmeriCorps was violating the constitution by providing government money to individuals teaching in parochial schools. Giving money to teacher training programs sponsored by religious institutions also violated the constitution, the group contended.

On July 2, 2005, Federal District Judge Gladys Kessler agreed with the AJC and ruled federal money was being misused to promote Christian values. She ordered that none of the funding could be revoked, however, until an appeal was heard.

Kessler’s decision was overturned on March 8, 2005 by the D.C. Circuit Court of Appeals by a 3-0 vote. The court ruled taxpayer support of religious schools is constitutional in cases where funding goes to “programs of true private choice.”

The appeal to the Supreme Court was the last legal step available to the AJC for this specific case, said Notre Dame law professor Rick Garnett, and the denial to review was anticipated.

“I am certainly not surprised that the Supreme Court decided not to take this case,” Garnett said. “The Court of Appeals’ decision was correct and the justices usually don’t take cases just to affirm.”

Garnett, who did some consulting with the University counsel when the suit was first filed, said the main beneficiaries of the federal funding in this case are the AmeriCorps members and the disadvantaged students they serve, not Notre Dame.

“The main issue, in terms of the first amendment, is whether the beneficiary of the government funds is the religious entity, or the AmeriCorps volunteer. In this case, as in the school vouchers context, the public funds have a secular purpose, and benefit religion, if at all, only indirectly.”

ACE has always taken precautions to remain within the boundaries of federal law, Staud said, training its participants to carefully log and distinguish between hours spent in secular activity and those spent in a faith-based activity. Only hours spent in non-religious service count toward the 1,700 hours required for the AmeriCorps Education Awards.

“We have always had careful procedures in place and I guess what I learned is that I am very glad we did,” Staud said.

While Staud could not quantify what impact the lawsuit had on the number of ACE applicants during the past two years, he said it certainly did not help and those inquiring about the program did ask about the security of its funding.

“[Applicants] definitely asked us [about the suit], and we always believe in honesty about all things and telling people exactly what they are going to get when they come to ACE – and [the lawsuit] was always a question mark,” Staud said.

ACE receives roughly 300-350 applications each year, Staud said, and accepts roughly 85 applicants, making the program highly competitive. While its roots remain with the Notre Dame and Saint Mary’s students, ACE does accept applicants from other schools.

Grateful for the ongoing support of the University, Staud said he and his colleagues are looking forward to the future success of the program.

“Every year we just try to make the program better,” Staud said. “One of the best things for me working [for ACE] is there is a culture of continuing improvement and a pursuit of excellence.”