Friday, March 1, 2013

Tax Payments for Sectarian Schools

A N.Y. State Assembly bill would send tax-raised funds on a roundabout journey to the checking accounts of sectarian schools.

Under A 1826, the Education Investment Incentives Act, a taxpayer would give money to a scholarship organization created for a particular religious body or set of schools.

The taxpayer would collect a 100% credit for the donation against his or her state income tax BILL. This credit would not be the familiar charitable deduction from income before taxes. The state would pay all, not part, of the donation.

The scholarship organization would send on the donor’s money to a non-public, usually sectarian, school as tuition for a student who satisfies the criteria, usually religious, for admission.

In effect, N.Y. State would direct the income tax payments of donors to sectarian schools.

The bill forbids public officials to regulate the schools funded under it.

The bill probably violates Art. XI, Section 3, of the N.Y. Constitution, which explicitly forbids the use of state credit in aid or maintenance of any religious school.

Church Seeks Rent-Free School Space

In November 2012, the U.S. Second Circuit Court of Appeals heard oral arguments in the case of N.Y. City v. Bronx Household of Faith.

Bronx Household seeks to overturn this N.Y. City Education Department policy:

“No permit shall be granted for the purpose of holding religious worship services or otherwise using a school as a house of worship.”

N.Y. City does not charge rent to the civic groups that use its schools.

The Bronx Household of Faith and other churches want to hold worship services rent-free in public schools.

They say the city unconstitutionally burdens their free exercise of religion when it makes them rent worship space elsewhere.

Jordan Lorence, attorney for Bronx Household, told the Appeals Court that the U.S. Constitution required N.Y. City public schools to host religious worship services.

According to the Associated Press (AP), Judge Guido Calabresi responded that he was “troubled by your argument that the Constitution requires a city to allow a religion to do what you do simply because it is a religion.”

He added, “That is a remarkable argument. You want to do what goes beyond what everybody else does.”

A Reuters article quoted Lorence, “They’re focusing on a type of worship that is Judeo-Christian, and that is the type of religion being excluded.”

The AP reported Judge Pierre Leval’s answer, that the city’s policy applied to everybody, so it did not discriminate.

Jane Gordon, senior counsel of the N.Y. City Law Department, has explained the policy. She said the city “was quite properly concerned about having any school in this diverse city identified with one particular religious belief or practice.”

Under the policy, the city has twice refused permits to Bronx Household, and the church has sued.

Both times, U.S. District Judge Loretta Preska agreed with the church’s’s constitutional claims and authorized it to hold services in P.S. 15 while the case travelled through the federal court system.

As a result of her rulings, about 60 congregations conduct worship services in various N.Y. City schools.

In a an earlier suit before the same Appeals panel, Bronx Household made a different constitutional claim, that the city’s rule violated the church’s U.S. constitutional right to free speech.

It said the city allowed many other kinds of expressive activities in its schools, some including such elements of religious worship as prayers.

Therefore the city couldn’t discriminate against religious worship services.

In June 2011, the panel upheld the city’s policy. It characterized a religious worship service as a unique activity, different from other forms of expression.

Judge Leval wrote, “The prohibition against using school facilities for the conduct of religious services bars a type of activity. It does not discriminate against any point of view.”

Bronx Household soon returned to U.S. District Court with the current claim, that the city’s policy burdens the church’s U.S. constitutional right to free exercise of religion, by forcing it to pay rent for worship space.

The Appeals panel will rule soon on the free-exercise claim.

In an amicus brief to the Appeals Court, Americans United for Separation of Church and State commented sarcastically on Judge Preska’s decision.

“It is apparently the view of the district court and Bronx Household that withdrawal of this subsidy would impose a substantial burden on the religious exercise of Bronx Household and other churches, because they have grown so much while using school property during the long years during which the Board’s policy has been enjoined by the district court that—if forced to move to more expensive private facilities—they would be unable to afford to continue the same level or breadth of religious activity they engage in now.…

“In other words, the ruling below suggests that the Board cannot constitutionally withdraw a subsidy that it never voluntarily provided in the first place, but was instead forced to grant by the district court, because some New York City churches have effectively become ‘hooked’ on the subsidy.”

In 2011, after the Appeals Court upheld the city’s policy, the N.Y. State Senate passed a bill requiring N.Y. City schools to host religious worship services. Before the Assembly could act, Bronx Household returned to U.S. District Court with its current claim, and the bill died.

If the Appeals Court upholds the city policy, as seems likely, we can expect another such bill. MCPEARL has written to state legislative leaders and Monroe County legislators urging them to reject any such measure.

The case is N.Y. City v. Bronx Household of Faith.

Okay to Ban Grad Prayer

In 2009, A.M., a student in the Taconic Hills, N.Y. School District planned to end her middle school graduation speech with a blessing.

She meant to say,

“May the Lord bless you and keep you; make his face to shine upon you and be gracious to you; lift up His countenance upon you, and give you peace.”

School officials told her that she must drop that passage from her speech.

She obeyed, and her family sued the district in federal court. They said the officials had violated the girl’s U.S. constitutional right to free speech.

In January 2012, a Second Circuit Court of Appeals panel said the officials had the right to cut A.M.’s blessing.

Because A.M. gave her speech at a school-sponsored ceremony, the district could censor it for appropriate educational reasons.

The U.S. constitutional ban on government establishment of religion gave the district an appropriate educational reason to bar the blessing.

The panel made an additional point, not strictly necessary for its result.

If a district sponsors a forum to discuss a topic from various viewpoints, it must allow religious viewpoints; but the panel did not consider A.M.’s blessing a viewpoint.

It said, “We believe that the final sentence in A.M.’s speech constituted purely religious speech.…rather than a statement offering a religiously-informed viewpoint on an otherwise secular subject matter.”

Therefore, the district could forbid the blessing.

An amicus brief from Americans United for Separation of Church and State asked the court to rule that the school district had a duty as well as a right to censor the blessing, but the court did not oblige.

The case is McKay v. Taconic Hills.

Ejected Counselor Gets Cash, Loses Cause

In December, Julea Ward settled her lawsuit against Eastern Michigan University (EMU).
As a counseling student, Ward refused on religious grounds to counsel patients about same-sex relationships. When her teachers could not change her mind, they expelled her.

She sued the university in federal court.

“The resolution of the lawsuit leaves the University’s policies, programs, and curricular requirements intact,” said Walter Kraft, the university’s vice president for communications.

“The faculty retains the right to establish, in its learned judgment, the curriculum and program requirements for the counseling program.”

EMU paid Ward $75,000 to settle.

Although Ward made money out of the suit, the settlement constitutes a defeat for her Religious Right backer, the Alliance Defending Freedom (ADF).

ADF had aimed for much more, to curtail the power of the American Counseling Association (ACA), whose ethics code governs non-sectarian counseling programs.

Well before the settlement, the EMU student newspaper quoted Ward’s ADF lawyer, Jeremy Tedesco,
“What we’re seeing is public universities and these associations like the American Counseling Association that adopt these codes of ethics, is those groups starting to interpret the code of ethics in professions that gerrymander people of faith out of the profession completely.”

In January 2012, the U.S. Sixth Circuit Court of Appeals made a superficially sympathetic ruling in Ward’s suit. It said a jury might find that her teachers had acted from personal religious bias. It sent the case back to the District Court for a trial on the facts.

However, the Appeals Court did not find fault with the ACA code of ethics.

Therefore, ADF had little to gain from a trial. If the ethics code stood, an EMU defeat on the facts would lead only to more tactful code enforcement.

The Ypsilanti Reporter wrote, “Ward’s legal counsel, Jeremy Tedesco, said he is pleased and feels that Ward’s constitutionally protected rights have been ‘vindicated.’”
The case is Ward v. Polite.

Cheerleaders Show Bible Verses

“They weren’t getting very fired up by ‘Kill the cougars,’ so if we say ‘you have power, God gives you strength,’ I mean, that makes me want to do good,” Ashton Jennings, a Kountze, Texas cheerleader told KBTV.

This season, Kountze High School’s eighteen varsity cheerleaders displayed banners with Bible verses during football games.

One said, “But thanks be to God, which gives us victory, through our Lord Jesus Christ.”

The Kountze Lions football team crashed through the banners as it took to the field.

In September, the Freedom From Religion Foundation (FFRF) contacted Superintendent Kevin Weldon with a citizen complaint. After talking to two different attorneys, Weldon forbade the banners.
Cheerleaders and their parents sued Kountze in state district court, backed by the Liberty Institute, a Religious Right legal group. Judge Steven Thomas lifted Weldon’s ban for the rest of the football season, pending a trial.

Texas Attorney General Greg Abbott intervened in the suit on behalf of the cheerleaders. 
Superintendent Weldon personally sympathizes with the cheerleaders’ cause, but he means to obey the law.

Community members have harassed him, but he has not stood entirely alone.

According to the N.Y. Times, the recently-formed Concerned East Texans for Separation of Church and State delivered to his office a gift basket with coffee, chocolates, and a thank-you card.

An essay honoring him appeared in the Texas School Administrators Legal Digest Online.
A few brave people held placards for church-state separation at a Kountze High School football game.

The case is Matthews v. Kountze

Florida Voters Nix Vouchers

In November, Florida voters turned down a state constitutional amendment to allow tax-raised funds for religious schools.

By a margin of 55.5% to 44.55%, they preserved this provision:

“No revenue of the state or any political subdivision or agency thereof shall ever be taken from the public treasury directly or indirectly in aid of any church, sect or religious denomination or in aid of any sectarian institution.”

They rejected a replacement article forbidding state refusal of funds to any person or entity on the basis of religious identity or belief.

The proposed amendment bore the misleading title, Religious Freedom.

To pass, a Florida constitutional amendment needs a 60% majority.

Voucher Suits from All Over

Vouchers Via Bogus Charter School

The Douglas County, Colorado school board established its own voucher plan.

First, it created a bogus charter school: a single district employee in an office.

The fake charter school enrolled children already accepted at private schools and then delegated their education to the private schools. Practically all of the private schools advanced religion throughout their programs.

The charter school then sent tuition checks to the private schools. Officials made out the checks to parents, but nobody could cash them, until the parents endorsed them to the private schools.
Each check paid 75% of the state funds allotted to the district for the child’s education. The district kept the other 25%.

County resident James LaRue sued, backed by the American Civil Liberties Union.

In August 2011, Colorado District Judge Michael Martinez struck down the scheme.

He ruled that the vouchers violated five different provisions of the Colorado constitution, as well as two statutes.

Martinez halted the program days before the first voucher students were to enter private schools.
The county had already sent tuition payments to the private schools. As of April 2012, the county still hadn’t got all the tuition money back.

The district appealed. The Walton Family Foundation, a Religious Right group, and the The Daniels Fund, a voucher advocacy group, are paying the district’s legal bills.

In November 2012, the Colorado Court of Appeals, a mid-level appeals court, heard arguments.
EdNews Colorado described the debate.

Judge Jerry Jones noted that the so-called charter school giving out the vouchers had no buildings, teachers or textbooks
He asked the district’s lawyer, Eric Hall, “Well, there isn’t a building…in what sense is it a school?’
“It was used by the district as an administrative convenience, we’ve always said that,” replied Hall.
Judge Steven Bernard followed up, “If it’s not a school, why call it that?”

Judge Dennis Graham asked whether the plan, which would send county students to both religious and non-religious private schools wasn’t therefore neutral.

Hall said it “neither favors nor disfavors any private schools.” All the private schools must sign the same contract and abide by the same conditions.

LaRue’s attorney, Matt Douglas, disagreed. He said the participating schools were allowed to reject students who didn’t meet their entrance requirements and students had to take part in the schools’ religious programs.

The case is LaRue V. Colorado.


Challenge to New Hampshire Tax Credit

In June 2012, the New Hampshire legislature overrode the governor’s veto to pass a tuition tax credit law similar to the N.Y. State bill described on p. 1.

Under the act, a business that donates money to a tuition scholarship organization may credit 85% of the donation against its state income tax BILL.

The scholarship organizations, usually religious, pass on the cash as tuition to nonpublic, usually religious schools.

In effect, the state directs the income tax payments of donors to religious schools.

In January 2013, eight New Hampshire residents, the American Civil Liberties Union, and Americans United for Separation of Church and State challenged the act as a violation of the state constitution.
Part 1, Art. 6 of the state constitution says,“No person shall be compelled to pay towards the support of the schools of any sect or denomination.”

Part II, Art. 83 says, “No money raised by taxation shall ever be granted or applied for the use of the schools or institutions of any religious sect or denomination.”

The case is Duncan v. New Hampshire.


Judge Nixes Raid on School Fund

In November, Louisiana District Judge Tim Kelley struck down a state voucher act because it pays nonpublic schools with funds dedicated for public schools by the state constitution.

The Louisiana constitution names the dedicated fund the “Minimum Foundation Program” (MFP).
The state appealed directly to the Louisiana Supreme Court, and the voucher program will continue at least until that court rules.

Even if the Louisiana Supreme Court agrees with Judge Kelley, the legislature may find other ways to pay for the vouchers.

The Louisiana Federation of Teachers (LFT), the Louisiana Association of Educators (LAE), and the Louisiana School Boards Association (LSBA) challenged the act.

The case is LFT v. Louisiana.


School Boards: AZ Act May Harm Disabled Kids

The Arizona Education Empowerment Act (EEA) grants cash for disabled youngsters to buy lessons at private schools, including religious ones.

To get grants, parents must waive their children’s Arizona constitutional right to a public education.
In 2011, public school groups and a parent sued to overturn the EEA.

In October 2012, The National School Boards Association (NSBA) submitted a brief highlighting the potential harm to a disabled child whose parents have waived the right to a public education.

The brief says, 

“Under the Arizona Program the child would be affirmatively barred from returning to a public school regardless of whether the parent, subsequent to the acceptance of the voucher, was to realize that the private school no longer served the interest of his/her child, or to discover fraud, misrepresentation or even unintentional misinformation about the educational services or the quality of education.…”

Under the EEA, parents who home school or otherwise hold down education costs may pay for college with the saved dollars.

The Arizona Constitution says, “No tax shall be laid for the appropriation of public money made in aid of any…private or sectarian school.…and “No money…shall be appropriated for or applied to any religious…instruction.”

In January 2012, an Arizona county court upheld the EEA, on the ground that money reaches the religious schools indirectly, after passing through the parents’ hands.

The plaintiffs have appealed.

The case is Niehaus v. Huppenthal.