United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 14, 2005 Decided March 8, 2005
No. 04-5317
AMERICAN JEWISH CONGRESS,
APPELLEE
v.
CORPORATION FOR NATIONAL AND COMMUNITY SERVICE,
APPELLANT
UNIVERSITY OF NOTRE DAME,
APPELLANT
Consolidated with
No. 04-5318
Appeals from the United States District Court
for the District of Columbia
(02cv01948)
Gregory G. Katsas, Deputy Assistant Attorney General,
U.S. Department of Justice, argued the cause for appellant
Corporation for National and Community Service. With him on
the briefs were Peter D. Keisler, Assistant Attorney General,
Kenneth L. Wainstein, U.S. Attorney, and Robert M. Loeb and
Lewis S. Yelin, Attorneys.
2
Michael A. Carvin argued the cause for appellant University
of Notre Dame. With him on the briefs were Stephen J. Brogan
and Mary Beth B. Young.
Daniel S. Pariser argued the cause for appellee American
Jewish Congress. With him on the brief were Irvin B. Nathan,
Donald R. Gordon and Robyn M. Holtzman.
Ayesha N. Khan, Richard B. Katskee, Alex J. Luchenitser,
Jeffrey P. Sinensky, Elliot M. Mincberg, and Judith E. Schaeffer
were on the brief for amici curiae Americans United for
Separation of Church and State in support of affirmance. Martin
E. Karlinsky entered an appearance.
Before: EDWARDS, HENDERSON, and RANDOLPH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge RANDOLPH.
RANDOLPH, Circuit Judge: The First Amendment provides
that “Congress shall make no law respecting an establishment of
religion.” Laws intended to advance or inhibit religion, or
having either effect, violate the Establishment Clause. Agostini
v. Felton, 521 U.S. 203, 222-23 (1997). The issue in this appeal
from an order granting summary judgment in favor of the
American Jewish Congress (“AJC”) is whether portions of the
AmeriCorps Education Awards Program, a nationwide
community service program operated by the Corporation for
National and Community Service, have the effect of advancing
religion.
The Corporation funds programs designed to “expand
educational opportunity by rewarding individuals who
participate in national service with an increased ability to pursue
higher education or job training.” 42 U.S.C. § 12501(b)(3). No
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financial assistance from the Corporation may be used “to
provide religious instruction, conduct worship services, or
engage in any form of proselytization.” 42 U.S.C. § 12634(a).
Those running an approved program may not discriminate on
the basis of religion in selecting program participants. 42 U.S.C.
§§ 12634(a), 12635(c)(1).
The Corporation created the AmeriCorps Education Awards
Program “to expand opportunities for individuals to serve as
AmeriCorps Members and earn educational benefits, broaden
the network of national service programs and strategies, and
increase the number of communities joining with AmeriCorps
to better meet their education, public safety, environmental, and
other human needs.” 61 Fed. Reg. 46,628 (Sept. 4, 1996). An
organization (such as a local government or a non-profit
organization) proposing to sponsor a national service program
must send an application to the Corporation. Proposed service
programs must “address unmet human, educational,
environmental, or public safety needs and produce a direct
benefit for the community in which the projects are performed.”
42 U.S.C. § 12582(b)(4). If the Corporation approves the
application, the sponsoring organization may recruit individuals
to fill its approved national service positions.
Individuals wishing to receive an Education Award perform
community service in a program sponsored by an organization
approved by the Corporation. The Corporation offers $4,725 in
financial aid to those individuals if they complete at least 1700
hours of service in an approved position. The individuals may
use the award for education-related expenses, such as graduate
school tuition and the repayment of student loans. 42 U.S.C.
§ 12604(a).
This case involves only individuals who fulfill their service
requirement as teachers in religious schools. The University of
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Notre Dame, a party to this case, sponsors an approved
AmeriCorps program that trains individual AmeriCorps
participants and places them in needy Catholic schools, where
they teach a variety of subjects, including science, mathematics,
foreign languages, English, and religion. Brief of Appellant
Notre Dame at 2. AJC thinks that the AmeriCorps Education
Awards Program violates the Establishment Clause because
individuals, such as those at Notre Dame, who are fulfilling their
service requirement by teaching secular subjects in religious
schools, also may teach religion courses.
AJC objects to another aspect of the AmeriCorps Education
Awards Program. In addition to providing training to individual
participants, organizations incur a variety of other
responsibilities in sponsoring an AmeriCorps national service
program. To help defray the expense of training participants
and other administrative costs, the Corporation provides grants
in the amount of $400 per AmeriCorps participant to all
organizations that sponsor participants -- religious and non-
religious alike. AJC believes the $400 grants to religiously-
affiliated organizations violate the Establishment Clause.
The district court granted AJC’s motion for summary
judgment and denied the cross motions of the Corporation and
Notre Dame. Am. Jewish Cong. v. Corp. for Nat’l & Community
Serv., 323 F. Supp. 2d 44 (D.D.C. 2004) (“AJC”). The court
found that the practice of permitting individual participants to
teach religion in addition to secular subjects and the $400 cash
grants to sponsoring organizations result “in impermissible
government indoctrination in violation of the establishment
clause of the First Amendment.” Id. at 45-46. Concluding that
prevailing Establishment Clause precedent permits both portions
of the AmeriCorps program, we reverse.
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I.
While claiming to have standing to bring this suit because
of its status as a taxpayer, Brief of Appellee at 62, AJC describes
itself as “a non-profit organization,” id. at iii, which makes one
wonder whether it pays any federal taxes. No matter. Even if
it does not, it is fair to assume that AJC’s members do. Meek v.
Pittenger, 421 U.S. 349, 356 n.5 (1975). Notre Dame questions
AJC’s standing, not on this basis, but on the ground that it has
not brought itself within the exception to the general rule that
taxpayers do not have standing to challenge the manner in which
the government spends its tax revenue. Frothingham v. Mellon,
262 U.S. 447, 486-87 (1923). The exception is for taxpayer
suits claiming that Congress exercised its Article I, § 8, taxing
and spending power in violation of the Establishment Clause.
Flast v. Cohen, 392 U.S. 83, 102 (1968).
Whatever doubt there might have been before Bowen v.
Kendrick, 487 U.S. 589 (1988), it is now clear that the exception
includes more than just taxpayer suits, based on the
Establishment Clause, attacking taxing-and-spending statutes on
their face. Also within the exception are taxpayer actions
claiming a violation of that constitutional provision because of
the manner in which the Executive Branch is administering the
statute. Id. at 618-20. A “claim that funds appropriated by
Congress are being used improperly by individual grantees” is
no less “a challenge to congressional taxing and spending power
simply because the funding authorized by Congress has flowed
through and been administered by” an executive official. Id. at
619.
Notre Dame thinks this case is distinguishable from Bowen
because AJC alleged that some, but not all, of the Corporation’s
actions violated not only the Establishment Clause, but also the
National Community Service Act and the regulations
6
thereunder. See In re United States Catholic Conference, 885
F.2d 1020 (2d Cir. 1989). The distinction cannot be sustained.
Despite a suggestion in its complaint, AJC has made clear that
it relies solely on the Establishment Clause. Brief of Appellee
at 63. No argument it has made to us rests on a statutory
violation; all are aimed at the constitutionality of the
Corporation’s administration of the AmeriCorps program and
the manner in which it allocates funds. Those arguments
persuaded the district court and framed its decision. As the case
now stands, it therefore fits comfortably within the rationale of
Bowen: “The [National Community Service Act] is at heart a
program of disbursement of funds pursuant to Congress’ taxing
and spending power, and [AJC] calls into question how the
funds authorized by Congress are being disbursed pursuant to
the [Act’s] statutory mandate.” 487 U.S. at 619-20. It follows
that there is “a sufficient nexus between the taxpayer’s standing
as a taxpayer and the congressional exercise of taxing and
spending power, notwithstanding the role the [Corporation]
plays in administering the statute.” Id. at 620.
II.
AJC’s principal complaint is that individuals, while
teaching secular subjects at religious schools under the
AmeriCorps program and receiving credit toward an
Educational Award, may also teach religious subjects. See
Compl. ¶¶ 4, 63-66. Under School District of City of Grand
Rapids v. Ball, 473 U.S. 373 (1985), according to AJC, if an
AmeriCorps participant decides to teach religion, the decision is
attributable to the government. Ball struck down two school
district programs -- a “Shared Time” program and a
“Community Education” program. AJC focuses on the
“Community Education” program in which the school district
hired religious school teachers to teach secular classes in after-
school programs in religious schools. The Supreme Court held
7
that this program violated the Establishment Clause because it
created a “symbolic union” between government and religion;
“the students would be unlikely to discern the crucial difference
between the religious school classes and the ‘public school’
classes, even if the latter were successfully kept free of religious
indoctrination.” Id. at 391-92.
Much of the reasoning in Ball has been overturned. See
Agostini v. Felton, 521 U.S. 203, 236 (1997). We believe the
Supreme Court’s more recent decisions upholding programs of
true private choice, particularly Zelman v. Simmons-Harris, 536
U.S. 639, 649 (2002), control this case. See also Zobrest v.
Catalina Foothills School Dist., 509 U.S. 1 (1993); Witters v.
Washington Dep’t of Servs. for Blind, 474 U.S. 481 (1986);
Mueller v. Allen, 463 U.S. 388 (1983). When a government
program is neutral toward religion and “provides assistance
directly to a broad class of citizens who, in turn, direct
government aid to religious schools wholly as a result of their
own genuine and independent private choice,” the Establishment
Clause is not violated. Zelman, 536 U.S. at 652. In that
situation, no “objective observer familiar with the full history
and context” of the program would believe that the aid flowing
to the religious institution carries with it “the imprimatur of
government endorsement.” Id. at 655.
The AmeriCorps participants and the grantees are, and must
be, chosen without regard to religion. The Education Awards
are available to a broad class of citizens. Any citizen at least 17
years old who holds a high school diploma or its equivalent and
is selected to fill a national service position may qualify. 42
U.S.C. § 12591. Individual participants who elect to teach
religion in addition to secular subjects do so only as a result of
“their own genuine and independent private choice.” The
AmeriCorps program creates no incentives for participants to
teach religion; they may count only the time they spend engaged
8
in non-religious activities toward their service hours
requirement. And if they do teach religious subjects, they are
prohibited from wearing the AmeriCorps logo when they are
doing so. In this situation, no reasonable person, “knowing all
the circumstances,” Sao Paulo State of Federative Republic of
Brazil v. Am. Tobacco Co., 535 U.S. 229, 232 (2002), would
believe that a participant’s choice to teach a religion course had
-- in Zelman’s words -- “the imprimatur of government
endorsement.” 536 U.S. at 655.
AJC sees two reasons why the AmeriCorps program should
not be considered a program of private choice. The first is that
the AmeriCorps program is not neutral. The district court
agreed, in part because an Internet search had revealed that three
grantees were requiring AmeriCorps participants to “be of a
particular faith.” AJC, 323 F. Supp. 2d at 60. These grantees
were violating the governing statute and regulations, 42 U.S.C.
§ 12635(c); 45 C.F.R. § 2540.210; the Corporation took
corrective action when it discovered their postings; and before
the district court rendered its decision, they had lifted the
restriction. AJC, 323 F. Supp. 2d at 58 n.8; Brief of Appellant
National Corporation at 35.
The district court also thought neutrality was missing
because the Corporation uses “highly discretionary criteria” to
choose AmeriCorps grantees. AJC, 323 F. Supp. 2d at 60. AJC
strikes much the same note. Why, as a matter of constitutional
law, this ought to be significant is not clear. The Supreme Court
has not treated discretionary distribution of government funds as
lacking in neutrality. In the program upheld in Bowen v.
Kendrick -- the Adolescent Family Life Act -- the Secretary of
Health and Human Services awarded grants based, in part, on
what can only be viewed as subjective determinations. See 42
U.S.C. §§ 300z-1(3), 300z-2(a) (1982); see also Bowen, 487
U.S. at 597 (noting that the Secretary awarded 141 grants from
9
a pool of more than 1000 applications). We are aware of
nothing in the law requiring that government aid, to pass muster
under the Establishment Clause, must be handed out according
to objective criteria only. All the law requires is that the
government distribute funds in a manner that is neutral with
respect to religion. See Zelman, 536 U.S. at 652; Agostini, 521
U.S. at 230-31. Perhaps discretionary criteria, in some
circumstances, might serve as a pretext for the government to
“grant special favors that might lead to a religious
establishment.” Mitchell v. Helms, 530 U.S. 793, 810 (2000)
(plurality). But AJC did not allege that the Corporation had
used its discretionary authority to favor religious organizations,
and it conceded at oral argument that there was no evidentiary
support for such an allegation. We conclude, therefore, that the
program is neutral.
AJC’s other argument is that a participant’s decision to
perform his national service obligation in a religious school is
not “a genuine and independent private choice.” Zelman, 536
U.S. at 652. “Eligibility for an AmeriCorps award is
established,” AJC argues, “only through participation in a
limited number of the government’s hand-picked, pre-selected
programs.” Brief of Appellee at 50. The relevant question is
whether participants seeking to earn an Educational Award
possess a genuine independent choice between religious and
non-religious organizations in which to perform their national
service. Of course the number of such opportunities is, as AJC
puts it, “limited.” It could hardly be unlimited. The important
points are (1) that there are numerous AmeriCorps teaching
positions in public and private secular schools; and (2) that there
is no evidence of any participant who wanted to teach in a
secular school, but was impermissibly channeled to a religious
school. A program may be one of “true private choice” even
when more religious than non-religious choices are available.
In Zelman, 82 percent of the eligible private schools
10
participating in the voucher program were religious schools and
96 percent of the students who took advantage of vouchers
attended religious schools. 536 U.S. at 655-58. Here, only 328
of the 1608 schools employing AmeriCorps participants as
teachers in 2001 were religious schools. When enough non-
religious options exist, those participants who choose to teach in
religious schools do so only as a result of their own genuine and
private choice.
AJC also faulted the Corporation for failing to police its
prohibition against a participant’s counting time spent teaching
religion courses toward the service hours requirement. In
Mitchell v. Helms, four Justices concluded that neutrality is the
touchstone of Establishment Clause inquiries in government aid
cases, and that when eligibility for aid is determined neutrally,
“any use of that aid to indoctrinate cannot be attributed to the
government and is thus not of constitutional concern.” 530 U.S.
at 820. The two concurring Justices in Mitchell concluded that
de minimis diversion of aid tends to show that a program’s
safeguards are, in fact, working. Id. at 865-66 (O’Connor, J.,
concurring in judgment). In the district court, AJC presented
evidence suggesting that, since 1999, four AmeriCorps
participants may have counted time spent teaching religion
toward their service hour requirement. See AJC Statement of
Undisputed Facts ¶¶ 92-126. The Corporation disputed the
evidence. AJC, 323 F. Supp. 2d at 55. Even if we credited
AJC’s version, it proves nothing of significance. During the
same period, one sponsoring organization alone -- the Catholic
Network of Volunteer Service -- placed 492 AmeriCorps
participants as teachers in religious schools. AJC Statement of
Undisputed Facts ¶ 80. AJC therefore failed to substantiate its
claim that the present monitoring of participants’ timekeeping
is so ineffective, and the violations so pervasive, that the
AmeriCorps program must be seen as one in which the
government is giving participants Education Awards for hours
11
they spend teaching religion.
III.
This leaves the question of the $400 program management
grants to organizations operating service programs. The $400
grants reimburse grantees for a portion of the costs they incur
when complying with various AmeriCorps requirements. The
Supreme Court upheld a similar system in Committee for Public
Education & Religious Liberty v. Regan, 444 U.S. 646, 657-58
(1980), and rejected the idea that the Establishment Clause
required it to invalidate “reimbursements simply because they
involve payments in cash.” The program in Regan provided
“direct cash reimbursement” to religious and secular nonpublic
schools for performing various testing and reporting services
mandated by state law. Id. at 657. Here, detailed AmeriCorps
guidelines require, among other things, that grantees train
participants, provide them with adequate supervision by
qualified supervisors, keep various records, and make regular
reports to the Corporation. The $400 is meant to defray some of
the costs.
AJC focuses on the lack of auditing or accounting of the
AmeriCorps grants. Brief of Appellee at 58-59. The program
in Regan included extensive auditing to verify that the schools
did not receive public funds in excess of the expenditures
incurred as part of the testing. 444 U.S. at 650 n.3, 659-60.
Here audits would be senseless. The evidence showed that $400
is much less than the actual administrative costs grantees incur
per participant. In Notre Dame’s program, for instance, the
$400 grants cover only about eight percent of the salaries of
those who train the AmeriCorps participants to teach in
elementary schools. AJC marshaled no evidence to show
otherwise nor did it make any allegation to this effect.
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Regan therefore controls this aspect of the case. The
government does not promote religion in violation of the
Establishment Clause when it reimburses all grantees, religious
and secular alike, for a portion of the costs they incur in
complying with the requirements of the AmeriCorps program.
* * *
For the reasons stated, the district court’s judgment is
Reversed.