Editor’s note: The full 7th Circuit on July 26 refused to hear the case but issued a supplemental ruling clarifying the three-judge panel’s original opinion. The case now returns to the U.S. District Court for further consideration.
A judge can order the University of Notre Dame to pay back a government grant
used to train teachers in Roman Catholic schools if he finds the use was
unconstitutional, the 7th U.S. Circuit Court of Appeals ruled.
The judges in Chicago ruled 2-1 on April 13 in Laskowski v. Spellings
that Indianapolis federal Judge Larry McKinney acted prematurely when he
dismissed the case as moot because the $500,000 Department of Education grant
had already been spent.
The American Civil Liberties Union of Indiana, which sued on behalf of
taxpayers, wanted the court to order the Education Department to demand
repayment. But Circuit Judge Richard Posner said that procedure was needlessly
And though Notre Dame had argued that only the government could violate the
religious-establishment clause of the First Amendment, Posner said that
shouldn't prevent restitution if a violation were found.
"It would be like a case of money received by mistake and ordered to be
returned to the rightful owner," he wrote in the 13-page ruling. "Such orders
are routine instances of restitution."
But such an order in a religion case would be unusual, a legal expert said,
and should serve as a warning to faith-based organizations to be careful how
they spend federal money.
"It's a big deal," said Ira Lupu, a professor of law at George Washington
University who specializes in religious issues.
The 7th Circuit did not address the underlying issue - whether using public
money for the teacher-training program violated the constitutional separation of
church and state. It left that up to McKinney.
For a court to order Notre Dame to pay back the grant, "it would have to be
that there is a lack of good faith, where no reasonable person would believe
that this conduct is constitutional," said Robert Tuttle, also a law professor
at George Washington.
"It's hard for me to see a court saying there's no good-faith reading for
this program as constitutional," he added.
Notre Dame received the money to redistribute to other colleges to help them
replicate the Alliance for Catholic Education. The program trains teachers who
then teach in Catholic schools that have inadequate resources. Private donations
also fund the program.
The ACLU of Indiana said the government had no business paying for religious
education. The ruling is "another step in our ability to be able to prove that
the government should not be subsidizing this type of parochial school
training," said ACLU of Indiana attorney Ken Falk.
"From our view of this program, it was purely to teach teachers to teach
religion," said Falk, who did not argue the case in court.
The attorney who represented Notre Dame disagreed, saying the school had
handled the program in line with previous U.S. Supreme Court decisions.
"There was no teaching of religion involved," said Michael Carvin, an
attorney with Jones Day's Washington office. "The money was segregated for
Carvin said Notre Dame might decide to appeal to the Supreme Court. He agreed
with Circuit Judge Diane Sykes' 13-page dissent. Sykes wrote that the case was
moot and the two-judge majority kept it alive by concocting a "newfangled"
remedy inconsistent with previous rulings.
"This is a dramatic expansion of taxpayer standing, and there is no authority
for it," she wrote.