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Wednesday, July 26, 2006

Ind. Decisions - 7th Circuit, in banc, denies rehearing in Notre Dame case [Updated]

The case is JOAN LASKOWSKI and DANIEL M. COOK v. MARGARET SPELLINGS, Secretary of Education, and UNIVERSITY OF NOTRE DAME. Here is the rehearing denial.

The original, April 13th ILB entry on the ruling by Judge Posner is available here.

Here is an entry from the ILB the following day, quoting from the Chicago Tribune:

A federal lawsuit alleging that the University of Notre Dame and the U.S. Department of Education used federal money for religious purposes was ordered to proceed Wednesday by a panel of the 7th Circuit Court of Appeals in Chicago.

In a 2-1 decision to send the case back to a lower court in Indiana, the panel of judges found that the case was prematurely dismissed without deciding issues such as whether the university appropriately tracked how the money was spent.

Here, from April 15th, are quotes from an AP story.

Judge Posner writes today to clarify two points, one being this:

The language of section 309 might seem to undermine the plaintiffs’ constitutional claim—for how could a “teacher quality initiative” be unconstitutional? But the claim is not that Congress may not give money to religious institutions. It just may not give it without imposing conditions that prevent the use of the money for religious rather than secular purposes. 443 F.3d at 937. “[S]tates may not make unrestricted cash payments directly to religious institutions.” Freedom from Religion Foundation, Inc. v. Bugher, 249 F.3d 606, 612 (7th Cir. 2001), and cases cited there. Whether appropriate conditions were imposed by the Secretary of Education and were properly observed or implemented by Notre Dame are the issues on the merits that the district court will be resolving in the first instance on remand.
[Updated] Charles Wilson of the AP has a story this evening, published by the Fort Wayne News Sentinel:
A federal appeals court on Wednesday declined to rehear a case that could force the University of Notre Dame to repay a $500,000 government grant used to train teachers in Roman Catholic schools.

The order sent the case back to a federal judge in Indianapolis to determine whether the school violated the Constitution and whether Notre Dame should have to reimburse the Department of Education.

Attorneys for Notre Dame and the Education Department had asked the 7th U.S. Circuit Court of Appeals in Chicago to reconsider its April ruling that District Judge Larry McKinney acted prematurely when he dismissed the case as moot because the money had already been spent.

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 work in Catholic schools that have inadequate resources. Private donations also fund the program.

The American Civil Liberties Union of Indiana, which sued on behalf of taxpayers, said the government had no business paying for religious education.

Appeals court Judge Richard Posner wrote in a supplemental ruling Wednesday that "the claim is not that Congress may not give money to religious institutions. It just may not give it without imposing conditions that prevent the use of the money for religious rather than secular purposes."

But the three-judge panel left it up to McKinney to determine whether the Constitution had been violated.

The judges also left the door open for a Notre Dame defense, noting that the university was not just a fiscal intermediary but had kept part of the money for its own use.

Posted by Marcia Oddi on July 26, 2006 01:48 PM
Posted to Ind. (7th Cir.) Decisions