Lawsuit threatens ACE
By Sheila Flynn
Assistant News Editor
A current federal lawsuit charges that government funding for Notre Dame's Alliance for Catholic Education (ACE) program is unconstitutional, blurring the separation of church and state.
The federal suit was filed Oct. 3 on behalf of the American Jewish Congress (AJC) in U.S. District Court in Washington, D.C., against the Corporation for National and Community Service, which directs the AmeriCorps program that finances ACE. Because these programs receive federal money that extends to ACE and two other religiously affiliated organizations, AJC said, the government is paying for religious education, and it is this controversial allocation of funds which is spurring the protest.
The AJC case is being handled by Irvin B. Nathan, Daniel Pariser and Sarah Kotler of the Washington law firm Arnold & Porter.
"We have made it clear from the outset that we do not object to the program [ACE] as such, provided they're only teaching secular subjects," said Marc Stern, assistant executive director of the AJC in New York.
But the problem, Stern said, is that ACE volunteers teach religion. The lawsuit seeks an injunction against further use of federal funds to finance such religious instruction in sectarian schools.
ACE participants commit to a two-year service program, teaching in underprivileged Catholic schools across the southern United States. During the summers of these two years, the ACE workers study at Notre Dame in its Master of Education program. During the school years, they live together with small communities of other ACE participants, and the program encourages the fostering of spirituality in this living environment, advocating attendance at daily Mass and prayer services.
ACE volunteers teach secular subjects and religion, but the program maintains that teachers are not paid by AmeriCorps for time spent teaching theological subjects.
"Some ACE teachers do not teach religion, but some do and we firmly believe that they do that apart from any AmeriCorps support," said Matt Storin, associate vice president of news and information at the University.
In a statement, the University said, "This action rests on the separation of church and state; in fact, since the beginnings of ACE religious activities have been specifically, systematically and scrupulously separated from the AmeriCorps Education Award program for which some ACE participants are eligible."
Stern, however, said this strict separation is not the case.
"First of all, that's something that the corporation has claimed, but it surfaced for the first time after about a year of negotiations," Stern said.
"The time cards themselves make no such claim. The list of teacher assignments makes no notice of people assigned to teach religion. Some only teach religion, and there is no indication those hours are off the clock."
AmeriCorps has yet to respond to the suit.
"We filed the complaint, and they may have up to 60 days to file an answer from the time they were served," Stern said. He expected a response from AmeriCorps around Dec. 3.
Whenever the case goes to court, however, Storin said the ACE program is considerably optimistic.
"Notre Dame's ACE program consistently has been judged one of AmeriCorps‚ most successful programs, based on its significance and measurable impact in disadvantaged schools throughout the nation and because it is providing the nation with a stream of highly educated and committed young teachers at a time of great demand for them," the University's statement said.
Storin said, "We feel we have a very strong argument to make in the court."
Recent legislation supports this confidence. Several cases barring federal funding for education in nonpublic schools were overturned within the past few years. In 1997, the Supreme Court reversed two previous 1985 decisions in Agostini v. Felton. The cases, filed in Michigan and New York, disputed the use of state money to pay teachers working in nonpublic schools, and the original decision deemed this financial situation unconstitutional. The Supreme Court overturned the rulings in 1997, however, stating, "What has changed since we decided Ball and Aguilar is our understanding of the criteria used to assess whether aid to religion has an impermissible effect."
In 2000 and 2002, the trend continued toward allowing slight financial transgressions of the separation between church and state. Several Supreme Court decisions ruled that state subsidizing of nonpublic education was constitutional, as long as aid was provided in an evenhanded manner.
Despite all this support for religious education funding, however, Stern said the AJC will still push to ensure that "teachers not be allowed to teach religion" in federally-funded programs.
"I think we have a good shot," Stern said. "But I've learned over the years not to get too confident."
All News Stories for Friday, November 22, 2002
