Walter Johnson v. Economic Development Corporation of the County of Oakland

Whitfield, Donald president Lakeshore,

that he could enter the AIT program if he

performed Pope well. was admitted to the

program while he held the housekeeping

position. Roh, Unlike Pope was a member

of the Church of Christ.

Whitfield, testified that the company had

required applicants to the AIT program to

be members the Church of Christ.

Shortly Roh lawsuit, after filed this

policy changed. Sullivan admitted that Lakeshore had a “discriminatory policy regard

with to administrators” during employment

Roh’s that all administra-

tors who were employees of Lakeshore

were members of the Church of Christ.

After Pope had been admitted to the AIT

program, Roh had another of several con-

versations with Sullivan about her desire become administrator. Sullivan

agreed that it was a against strike her that

she was not a member of the Church.

There is sufficient evidence support

the jury’s finding that Roh was qualified

under the Tennessee Board rules to enter

the AIT program. I would affirm the

judgment. JOHNSON,

Walter Plaintiff-Appellant,

ECONOMIC DEVELOPMENT COR

PORATION OF THE COUNTY OF

OAKLAND, Defendant-Appellee.

No. 99-1884.

United States Appeals, Court of

Sixth Circuit.

Argued Nov.

Decided and Feb. Filed briefed), (argued and A.

Robert Sedler School, De- Law University Wayne State troit, MI, Appellant. for T. Emmet (argued), Kevin T. Baine Connolly, (briefed), & Williams Flood Zwas, DC, Howard Marla G. Washington, MI, Ap- Hills, Howard, Bloomfield & pellee. (briefed), Christian

Betty Lee Dunkum Annandale, VA, Amicus Society, Legal Curiae. CLAY, SILER, NELSON,

Before Judges. Circuit CLAY, J., opinion delivered the repairing, furnishing, equipping, and ex- court, SILER, J., panding joined. state and in its municipali- ties.” Id. To further these NELSON, J., goals, 518-19), (pp. EDC delivered a Act authorizes the creation of an economic separate concurring opinion. development (“EDC”) corporation in each municipality; municipality is defined aas OPINION county, city, village or township. See CLAY, Judge. Circuit Comp. Mich. 125.1603(d). § Laws Ann. To Plaintiff, Johnson, Walter appeals from accomplish the goals Act, of the EDC an the district court’s order denying summary authorized, EDC is alia, inter to borrow judgment to Plaintiff and granting money sum- and issue revenue bonds to finance mary Defendant, judgment building to and improvement the Econom- projects. See Mich. Comp. 125.1607(d). § Laws Development ic Ann. Corporation of County the The provides EDC Act that the municipali- (“Oakland of EDC”), Oakland on Plaintiffs ty shall not be EDC, liable on of in mаking the for, decision opportunities locat- school Catholic Roman

independent and These moral Gospel values. light of Hills, The Michigan. in Bloomfield ed age-ap- in an taught values are in- ethical 450 students than has more Academy program devel- all-inclusive propriate, forty com- nearly from pre-school cluding religious The disciplines. oped across four schools: into divided It is munities. relationship the probes studies It edu- Upper. Lower, and Pre, Middle others, God, to the and to of self in boys K-12 and grades girls cates respect a academy teaches The world. nonprofit a Academy is The K-5. grades the of traditions religious various 501(c)(3) for the of §in described organization, itself presenting while world exempt Code, is and Revenue the Internal community as Christ-centered a wider under taxation income from federal the of tradition the within institution Academy, which 501(a) The the Code. § of Church. Catholic Roman of Michi- laws the under incorporated property. all school 322.) title to legal (J.A. holds gan, at con- of Trustees Restated Board Academy’s independent the An II of Article gov- 24 members the than provides of no more Incorporation sisting Articles of are There no to “conduct Academy Academy. of the erns purpose membership on pre- from requirements school Catholic independent served, and the 12th have Catholics including Board. Non and through school Acad- sciences, serve, and Board. The currently and on the arts grade, wherein of the basis secondary on and not discriminate primary emy does of other forms origin its creed, color, and hon- national diplomas race, or taught, and are learning pref- give it maintaining a does process; nor conferred: while admissions ors therein Catholics. the net- to Roman that of in admission with erence consonant philosophy discrimi- Moreover, Academy does of which schools Heart Sacred work color, race, or national 66.) (J.A. of The Acade- basis nate on the it is member.” policies, provide its educational any of requirements origin my’s curriculum or athletic programs, scholarship and loan activities, or other-school re- extracurricular Academy] at [the [e]very student of date As of the programs. administered aca- in the basic training intensive ceives issue, 135 of the bonds Mathematics, issuance of English, skills demic students (non-preschool) Science. Language Foreign History, As 37%, non-Catholic. were Academy or Forensics, Theology Drama, Music, Art, 34% stipulation, the date essential are Computer Science repre- Faiths non-Catholic. were Academy] students [The program. parts of this in- body Academy student in the Physical Edu- sented full student a each offers Jewish, Christian, Is- non-Catholic develop a clude designed Program cation Furthermore, lamic, others. Shinto respect sportsmanship, sense on not discriminate Academy does and an awareness fitness physical race, color, basis of creed or national origin State of Michigan, or any of its taxpayers hiring of its employees. The Acade- or citizens ever be required to pay the my has a teaching faculty of of whom interest, principal, or any other costs as- five are members of religious orders. bonds, sociated with the e.g., attorneys’, There religious-affiliation is no require- trustee’s, placement agent’s, or remarket- ment or preference for the Academy’s ing fees, agent’s any letter-of-credit, teachers, and the school does not inquire estate, real title-related or other costs. as to the prospective affiliation of Resolution that Defendant faculty members. would private retain a law firm as bond counsel on the Project. The counsel’s le- In March representatives of the gal fеes were to paid by be the Academy Academy approached Defendant with a proceeds of the sale of the proposal to tax-exempt obtain bond financ- bonds, but not as a cost to Defendant. ing for a project improve facilities at the (the “Project”). Project April On the Oakland County (1) consisted of approxi- construction of an Clerk caused published to be in the Oak- mately 6700 square foot addition to the land Press a Notice of Public Hearing on Academy’s school, lower renovation of Project plan for the Academy. The and improvements to a science wing, and notice announced a hearing on Project the (3) other renovations of existing facilities and invited the submission of written com- including telephone new equipment, class- ments. Plaintiff neither attended the monitors, room fiber-optic cable and an meeting provided nor the Commissioners intercom system. Project The did in- with any objections or other written com- any construction, clude renovation or im- ments Project. on the No person other provement of the Academy’s chapel. objected On to the Project. After the hear- 13,1995, March the Academy an ing, submitted the Board of gave Commissioners final Apрlication for Assistance to initiate approval the plan. the project On June approval process. 1995, Defendant unanimously adopted a Bond Authorizing Resolution authorizing' 21, 1995, On March regularly its of limited issuance obligation revenue scheduled monthly meeting, Defendant bonds Project. for the unanimously adopted the Resolution of In- (the “Resolution”) ducement finding 27,1995, On June Defendant issued vari- Project public served a purpose. The able rate demand limited obligation reve- Resolution stated that construction of bonds, nue which were delivered and Project would job create opportunities for sold by NBD private Bank to investors. County residents and would aid proceeds The from the sale of the bonds general economic welfare of the were loaned to the Academy pursuant to a County and State Michigan. The Loan' Agreement, Reso- requires the Acad- lution provided further the Project emy to make all payments principal and would create seven permanent jobs, new on the directly interest loan to the bank. five teaching two maintenance posi- Under the Loan Agreement, the Academy tions, at the Academy. Through that is responsible for paying all fees ex- Resolution, Defendant decided to penses issue by incurred Defendant relating to economic development limited obligation Project. addition, all of the financ- revenue bonds for purpose of paying ing provide documents that neither the Project, costs of the all State Michigan any political nor subdivi- necessary preliminary hearings, proceed- sion thereof is obligated pay princi- ings, approvals, and other requirements of pal or interest on the any bonds or other the EDC Act were satisfied. The Resolu- cost incident Project thereto. The is now tion stated that under no complete circumstances and the Academy making Defendant, would County, Oakland quarterly interest and principal annual gious Academy.

payments affiliation of the Since its under the terms of the loan approved note. creation in Defendant has financing projects using of numerous Academy paid $5875 fees of to De- approve same criteria that were used to Project. fendant in connection with the Academy Project. projects expenses Those This sum more than covered the for-profit have included various undertak- incurred Defendant in connection with ings including Project. construction of factories and buildings purchase officе chinery and the of ma- Bonds issued under the EDC Act are equipment. projects Those exempt from all taxation in the State of not-for-profit have also included various Michigan except inheritance and transfer including schools, entities medical facilities taxes, exempt and the interest thereon is nursing homes-some of which are Michigan. from all taxation in the state of religiously affiliated and some of which are Comp. 125.1623(1). § See Mich. Laws Ann. not. Moreover, because the bonds in this case § meet the relevant criteria of 103 of the tax-exempt After Defendant issued the Code, Internal Revenue interest on the Academy, revenue bonds on behalf of the gross bonds is also excluded from income Plaintiff, April 21, 1998, on filed a com- purposes for federal income tax and is not plaint alleging in the district court preference purposes an item of tax tax-exempt Defendant's issuance of reve- the federal alternative minimum tax im- Academy nue bonds on behalf of the posed corporations. on individuals and buildings construction of certain on the § See 26 U.S.C. Academy's campus violated the Establish- responsive pleadings loan was for the sum of ment Clause. After Agreement, filed, 13, 1998, $8.5 million. Under the Loan were on November Defеn- Academy obligated repay summary judgment. dant filed a motion for principal 10-year period day parties joint borrowed over a On that same filed a payment principal stipulation with a final scheduled of the facts. While Defendant's 1, Academy summary pending, for December 2005. The also motion for was Plaintiff quarterly payments filed, approval, makes to cover the with the court's a second- outstanding obligation complaint 24, interest of the loan. amended on November tax-exempt Defendant answered the second-amended Because of the status of the thereon, complaint bonds and the interest the inter- and filed amended counterclaims payments by Academy 30, 12, est made to the on November 1998. On December payments 1998, summary bank were less than such would Plaintiff filed a motion for comparable judgment. granted have been for an otherwise The district court De- non-tax-exempt summary judgment commercial loan. If the fendant's motion for Academy project approved summary had not been and denied Plaintiff's motion for by Defendant, Academy's plan judgment 29, it was the on June 1999. See Johnson to obtain a commercial loan from a bank to Corp., F.Supp.2d v. Economic Dev. 64 657 improvements (E.D.Mich.1999). appeal finance the of its school fa- This followed. cilities. Plaintiff estimates that the sav- ings as a result of the tax- ANALYSIS exempt $1 status of the bonds is over alleges that, million. Plaintiff further as a I. Project tax-exempt result of the and the bonds, Michigan treasury nature of the "Standing question is `the threshold $68,400 will lose in tax revenue. every Coyne federal case.'" v. Ameri Co., (6th parties stipulated that, ap- can Tobacco 183 F.3d 488 Cir. have 1999) (quoting Seldin, proving financing Project, Warth v. 422 U.S. De- 490, 498, 2197, regard 45 L.Ed.2d 343 fendant acted without to the reli-

507 (1975)). We review the Dist., district court’s 402, (5th 70 F.3d 408 Cir.1995); Fri determination of standing de novo. See id. edmann v. Sheldon Community Dist., Sch. 95 S.Ct. 2197. (8th 995 Cir.1993)). F.2d 802 Defendant’s cases, reliance on these however, is mis Plaintiff that he claims has state taxpay- placed. Although each of these cases spe er standing because the issuance of the cifically found plaintiffs tax-exempt lacked bonds violated the Establish- standing because they failed to allege that Clause and cost Michigan trea- there $68,400 sury expenditure in lost revenue from income funds, none of tax these that would cases address have resulted from the precise issue on now before this interest Defendant, bonds. Court— howev- er, whether a loss of argues that revenue Plaintiff lacks sufficient to standing to establish a sue because he financial interest has failed under allеge Dore a nexus mus. between a Sch. legislative expenditure Madison Dist. No. 177 and the F.3d at alleged (holding that plaintiff Establishment Clause violation. lacked standing challenge district court held that Plaintiff had Establishment “standing Clause due to violation potential where challenged loss of reve- act was graduation nue prayer caused issuance of there tax-exempt was no finan cial Johnson, (re- bonds.” involved); interest F.Supp.2d at 661 Duncanville Indep. lying District., Hawley on Sch. City Cleveland, 70 F.3d at (holding (6th F.2d Cir.1985)). plaintiff 741-42 lacked standing This to challenge Es agrees. tablishment Clause violation where chal lenged act was distribution of bibles on Very few cases have dealt with state school’s premises which did not involve taxpayer standing as it relates to the Es interest); financial Friedmann, 995 F.2d tablishment find, Clause. however, We at 803 (holding plaintiffs lacked stand Court’s decision in Dore ing to challenge Establishment Clause vio mus v. Education, Board lation where challenged act was reading of (1952), L.Ed. 475 controls invocation or benediction at graduation the instant Doremus, ease. the Court ceremony). held plaintiffs that the lacked taxpay state er standing to challenge school dis Contrary to Defendant’s argument, the trict’s practice reading five verses from Supreme Court in Doremus did nоt distin the Old Testament at the opening each guish between ‍​‌​​‌‌​‌‌​‌‌‌‌‌​‌​​‌​‌‌​​​​‌‌​‌​‌​‌‌​​​‌​‌​​​​‌​‍an expenditure and loss of public school day aas violation of the revenue in determining whether there was Establishment Clause. 342 U.S. at 433- a “good-faith poeketbook injury.” Under 35, 72 S.Ct. 394. plaintiffs did not Doremus, state taxpayer standing simply have standing, concluded, the Court be requires that there is a “requisite financial they cause failed to “good-faith a allege is, interest be, or threatened to poeketbook” i.e., injury, that there was a injured by the unconstitutional conduct.” is, “financial interest that or is threatened 435, 342 U.S. at 72 S.Ct. Moreover, be, injured to by the unconstitutional con Supreme Court has decided several duct.” Id. at 72 S.Ct. 394. There cases involving Establishment Clause chal fore, the question now before Court is lenges to tax exemptions they to relate whether Plaintiff alleged has the requisite religious entities. e.g., See Walz v. Tax financial interest. Comm’n, 664, 397 1409, 90 25 argues Defendant that this requisite fi L.Ed.2d 697 (property tax exemp nancial interest must be expenditure churches); tion for McNair, Hunt v. 413 government funds. Appellee’s Br. 734, at U.S. 2868, 93 S.Ct. 37 L.Ed.2d 923 16 (citing, alia, inter Doe v. (1973) (tax Madison Sch. exemption for state issued rev 321, Dist. No. 789, (9th 177 F.3d 793 bonds, Cir. enue some of which went to reli 1999); Doe v. Duncanville Indep. Sch. giously schools); affiliated Mueller v. Al 508 len, 388, 3062, taxpayers enjoin 463 U.S. 103 S.Ct. 77 al affecting public unconstitutional aсts (1983)(state (em L.Ed.2d 721 income tax de- finance." Id. at 742 expenses phasis added). Furthermore,

ducti~nfor school where some of even the de cisions on which Defendant relies reflect taxpayers' children attended schools). argues principle municipal Defendant these that both state and precedential taxpayers satisfy "good cases have no value because must faith pocketbook injury" requirement specifically to estab the Court did not address standing. plaintiffs standing lish 321, See Madison Sch. Dist. No. whether the had (recognizing Appellee's 177 F.3d at 793 that the those cases. See Br. at 18 n. 7 requirement pocketbook (citing Doremus of a in Steel Co. v. Citizens for a Better Environment, 83, 92, jury applies municipal taxpayer 523 U.S. 118 S.Ct. to both taxpayer standing) (citing 1003, (1998)). and state Cam 140 L.Ed.2d 210 Defen Waihee, 765, (9th point mack v. 932 F.2d dant's is well-taken. Notwithstand Cir.1991)); Indep. Dist., ing, Duncanville Sch. in a case where the Similarly, specifically taxpayer 70 F.3d at 408. other courts addressed state taxpayer standing challenge that have addressed state stand violationsof the Es ing Hawley Clause, reflect the Court's view that tablishment the Court cited with taxpayer standing, approval many previ "to establish state plaintiffs of the cases it had challenged activity ously specif must show the deсidedon the merits without appropriation' ically addressing standing issue, involves `a measurable in revenue, cludingHunt, involving program loss of and `a direct dollars-and- a case injury.'" Colegio similar to the one at issue here. See cents Schneider v. de Abogados, 620, (1st Cir.1990) Ball, 373, 5, 917 F.2d SchoolDist. v. 473 U.S. 380n. (quoting Doremus, (1985), 342 U.S. at 87 L.Ed.2d 267 394); grounds by Agostini accord Madison Sch. Dist. No. overruledon other (citing Schneider, Felton, 177 F.3d at 796 639). (1997).1 F.2d at L.Ed.2d391 guidance We conclude that Plaintiff has sat There is also from this Court's precedent. Hawley, taxpayer this Court held isfied the Doremus test for state municipaltaxpayer satisfy standing. alleged that a could Plaintiff has that he is a standing requirement by establishing Michigan taxpayer state and a resident of challengedactivity county. alleged involvesa ineasura- Oakland He has further appropriation Michigan treasury ap ble or loss of revenue to the that the would lose municipality. proximately $68,400 773 F.2d at 741-42. Defen- in revenue because of argues Hawley inapplicable tax-exemption dant accorded the interest on Hawley the revenue bonds issued on behalf of the this case because pal taxpayer standing involvedmunici- requires Academy by Moreover, Defendant. Plain taxpayer standing. alleged differenttest than state tiff has that the issuance of thеse Hawley, however, tax-exempt Academy The Court in made no bonds to the violated taxpayer the Establishment Clause. Under Dore- distinction between state stand- ing municipaltaxpayer standing. mus, sufficiently In Plaintiff has established a Hawley, by this Court stated "the financial interest that is threatened this by alleged violation, Court continuesto allowsuits nonfeder- Establishment Clause Bail, the Court stated adjudicated merous cases in which we have challenges by alleged respondents Establishment Clause taxpayers state Petitioners lacked programs aiding nonpublic taxpayer standing Cohen, under Flast v. schools. Valley Forge College Christian v. Americans 5, (citing, Separation State, 473 U.S. at 380n. 105 S.Ct. 3216 United for of Church and alia, McNair, 734, 735, inter Hunt v. 413 U.S. Inc. The District Court and the Court of 2868, (1973)) (other Appeals rejected standing challenge. 93 S.Ct. 37 L.Ed.2d 923 omitted). finding, relying citations We affirm this on the an- thereby conferring taxpayer standing. agreement, purportedly state est under the as it

did as a result of this lawsuit. alleges Plaintiff that because the Acade- ". my school, is a Roman Catholic Defendant violated the Establishment Clause when it We now turn to the district court's order tax-exempt issued the bonds on behalf of granting summary judgment to Defendant Academy. Plaintiff claims that on Plaintiffs Establishment Clause claim. alleged constitutional violation resulted in We review a district court's or Academy, i.e., a benefit to the the lower granting summary judgment rate, der do novo. interest and a loss of tax revenue to Cincinnati, treasury. Essentially, See Johnson v. Univ. of 215 the state Plaintiff (6th Cir.2000). Summary F.3d contends that issuance of the revenue judgment appropriate Academy, where there is no bonds for the which were award- genuine any regard religion, issue as to material fact and ed without violates the moving party judgment simply Academy is entitled to Constitution because the 56(c). as a matter of law. See Fed.R.Civ.P. is a Roman Catholic school. We do not Moreover, questions juris- constitutional are believe that Establishment Clause questions subject prudence supports of law to de novo review. such a conclusion. Jackson, See United States v. 181 F.3d (6th Cir.1999); A. United States v. Knipp, (6th Cir.1992). 963 F.2d Amendment, applicable The First Defendant, privately govern- through funded to the states the Fourteenth corporation, tax-exempt Amendment, provides "Congress issued reve- shall Project respecting nue bonds for the on behalf of the make no law an establishment Academy, elementary religion, prohibiting a Roman Catholic the free exercise secondary Project thereof." U.S. Const. amend. I. The Su school. The inсlud- (1) approximately preme consistently ed construction of an Court has held that the square Academy's Clause, prohibiting govern foot addition to the Establishment school, (2) religion, lower renovation of and im- ment establishment of and the provements wing, Clause, prohibiting govern to a science oth- Free Exercise existing including ment restrictions of the free exercise of er renovation of facilities telephone equipment, religion, harmony. new tors, fiber-optic classroom moni- must function in Ewing Tp., cable and the intercom Everson v. Board of Educ. of 1, 16, system. 91 L.Ed. 711 The bonds were delivered to and (1947); Walz, ‍​‌​​‌‌​‌‌​‌‌‌‌‌​‌​​‌​‌‌​​​​‌‌​‌​‌​‌‌​​​‌​‌​​​​‌​‍Co., 397 U.S. at sold NBD Bank to Cede & proceeds end, although bondholder. The from the sale 1409. To that states cannot Academy support religion, of the bonds were loaned to the or establish neither can completion Project. they deny any entity Because the individual or the ben tax-exempt, public legislation revenue bonds are the interest efits of welfare because paid exempt religion on the loan is also from Michi- of their or lack thereof. See Ever son, gan "[The 330 U.S. at 67 S.Ct. 504. income tax. This benefit of the tax- requires exempt generally First] Amendment the state to be nature of the bonds is passed borrower, groups on to the a neutral in its relations with case, by way religious nonbelievers; of lower interest rates on believers and it bonds, require the loans. The terms of the howev- does not the state to be their er, provides adversary." 18, 504; that the interest rate on them Id. at 67 S.Ct. ac weekly by cord Zobrest v. Catalina Foothills Sch. "shall be determined NBD Dist., 1, 8, 2462, according "prevailing 509 U.S. 113 S.Ct. Bank" to the finan- (1993) ("We conditions," by L.Ed.2d 1 have never said cial market not Defendant. Moreover, may `religious by NBD Bank raise the inter- that institutions are disabled rejection argument `any pro participating that the First Amendment from gram publicly sponsored pro which in some manner aids an insti social welfare grams.' ") (quoting Kendrick, religious Bowen v. 487 tution with a affiliation' violates 589, 609, 2562, Clause.") (citation omitted); 108 S.Ct. 101 L.Ed.2d the Establishment (1988)); emer, 747, Roemer v. Board of Public Ro 426 U.S. at 96 S.Ct. of Maryland, 736, 746, ("Everson put any Works 426 U.S. 96 2337 and Allen to rest 2337, (1976) ("[R]eli- S.Ct. 49 L.Ed.2d 179 argument may that the State never act in gious quarantined institutions need not be way such a that has the incidental effect of public neutrally from benefits that are facilitating religious activity."); Committee all."). available to With this basic founda Religious Liberty for Public Educ. & v. mind, argu tion in we first address several Nyquist, 756, 770, 2955, 413 U.S. 93 S.Ct. ments made Plaintiff which are con (1973) ("It 37 L.Ed.2d 948 is ... well trary very principle just we have every established ... that not law that discussed. `indirect,' `remote,' confers an or `inciden First, upon religious is, Plaintiff contends that tal' benefit institutions prohibits Establishment Clause a state alone, constitutionally for that reason in "providing any valid."). financial aid to sec What the Establishment Clause elementary secondary tarian schools." prohibits schools, is not aid to all sectarian Appellant's (emphasis See Br. at 11 religion but aid to an "institution in which original). simply This statement is incor pervasive portion is so that a substantial Mueller, 393, rect. See 463 U.S. at 103 of its functions are subsumed in the reli 3062; Hunt, 413 U.S. at 93 gious specifical mission or when it funds a 2868; see also Committee for Public ly religious activity in an otherwise sub Religious Liberty Regan, Educ. & v. 444 stantially setting." Hunt, secular 413 U.S. 646, 840, U.S. (1980). 100 S.Ct. 63 L.Ed.2d 94 743, (emphasis added). 93 S.Ct. 2868 organization Sectarian refers to an Plaintiff, citing Hunt, confuses the distinc "operate[s] that in a secular manner but tion between a sectarian institution and a religious ha[sJ a affiliation." Board of pervasively sectarian institution and then Grumet, 687, 8, Educ. v. 512 U.S. 705 n. pervasively concludes that the 2481, (1994). 114 S.Ct. 129 L.Ed.2d 546 religiously sectarian because it is a affiliat Supreme consistently Court has re Appellant's ed school. See Br. at 19 n. 12. jected argument any gov and all arguthent only Hunt, This misreads religiously ernment aid to a affiliated insti utterly unsupported by Supreme but tution violates the Establishment Clause. precedent. pervasively A sectarian Agostini, 225, 521 U.S. at 117 S.Ct. institution is one whose functiоns ("[W]e departed have from the rule separated non-religious government cannot be from its relied on in Ball that all aid functions; pervasively directly an institution is not assists the educational func merely religiously invalid."); sectarian because it is tion of schools is Muel Hunt, ler, ("One affiliated.2 See 413 U.S. at 463 U.S. at 103 S.Ct. 3062 S.Ct. 2868. principle fixed in this field is our consistent (1973), Although agree Judge 37 L.Ed.2d 923 aid I with Nelson that we exempt need not decide in the case at bar whether in the form of tax revenue bonds of type exempt involved in this case violates issuance of tax revenue bonds would per be invalid if the aid were for the benefit of a Establishment Clause-when vasively pervasively institution, sectarian institutions-has not been sectarian I am not at disavowed, my knowledge, by any agree at least all sure that I with his statement necessarily subsequent majority opinion [not] "we would hold the financ- Agostini Felton, ing Academy's Court. Accord unconstitutional if the sectari- 203, 233, `pervasive.'" Concurring 138 L.Ed.2d 391 an character were (1997) (recognizing opinion, post. principle expressed that under the Establish Clause, McNair, the court must consider "`the Hunt v. 413 U.s.

5H Second, Plaintiff claims that 225, “[t]here has 117 S.Ct. 1997 (overruling Aguilar v. never been a case where Supreme Felton, 402, 473 U.S. 3232, 105 S.Ct. 87 Court has held that the Establishment (1985), L.Ed.2d 290 Ball, and both of permits Clause provide the state to [direct] which stood for proposition that all direct financial a religious aid to institution —as a government aid to sectarian institutions part aof ‘neutral’ program or otherwise.” was invalid Clause). under Establishment Appellant’s Br. at 21. This statement is More recently, Helms, Mitchell v. 530 simply incorrect.3 It is incorrect because 793, 120 2530, U.S. 2544, 147 S.Ct. L.Ed.2d Supreme Court upheld has indeed stat- (2000), 660 again rejected Court Plain utes which gave direct benefits to sectari- argument.4 tiffs Regan, institutions. In spe- Court Finally, Plaintiff claims that cifically upheld a New York statute that ' tax-exemption ‍​‌​​‌‌​‌‌​‌‌‌‌‌​‌​​‌​‌‌​​​​‌‌​‌​‌​‌‌​​​‌​‌​​​​‌​‍under the EDC Act is the authorized public the use of funds to reim- equivalent of a cash subsidy for purposes burse church-sponsored and secular non- of the Establishment Clause. public Appel schools for performing various test- lant’s Br. at 13. ing Again, Plaintiffs asser reporting services mandated by tion is absolutely state law. without 444 merit. case, U.S. at 646. The that Su preme Court Supreme has rejected expressly rejected Court the type of this “[Tjhere argument. categorical statement that Plaintiff is a urges constitutionally significant this adopt. 662, See id. at difference 100 between subsidies (“What S.Ct. 840 is certain tax exemptions.” is that our Camps New decisions found/Owatonna, have tended to categorical avoid Inc. v. Town Harri imperatives son, apрroaches absolutist 564, 520 25, U.S. 590 & n. 117 S.Ct. either end of the range possible 1590, out- 137 L.Ed.2d Walz, 852 (citing comes.”); see also Agostini, 521 690, U.S. at 397 1409). 90 S.Ct. The dif- purposes character and of the institutions that ed aid to the institution "shall not are (e.g., benefitted’ ... whether the projects involving include” "any buildings or ”)) institutions were 'predominantly religious' facilities purposes.” used for Id. at Hunt, (citing 734-44, 413 U.S. at 743-44, 93 S.Ct. 2868. 2868). (Judge Nelson's heavily concurrence relies on Justice plurality opinion Thomas’ may 3. It also be that Plaintiff’s contention is Helms, 793, Mitchell v. 530 U.S. 120 S.Ct. inapposite inasmuch as it is far settled 2530, (2000); however, 147 L.Ed.2d 660 it is type that the of aid at issue in case this Justice opinion, O’Connor’s which does not direct aid meaning within the of Establish abolish the distinction “pervasively between Walz, ment jurisprudence. Clause Cf. sectarian” and “sectarian” institutions and U.S. 90 S.Ct. 1409 ("Granting tax expressly adopt declines to Justice exemption to operates ... churches to afford view, expansive Thomas' controlling ....”) an indirect economic benefit Ny with upon this Court. See Simmons-Harris v. Zel 756, quist, 2955, 413 U.S. 37 L.Ed.2d man, (6th Cir.2000) 234 F.3d (recog (holding tuition reimbursement nizing that when Court decides case grants, repair maintenance and grants and single where no explaining rationale result income parents tax benefits to of children enjoys Justices, holding assent five of Court attending predominantly, private Roman is thаt of those Members who concurred Catholic schools violated Establishment judgment on grounds) narrowest (citing Clause). The Court Hunt did not find it States, United Marks necessary to resolve question. this Because (1977))). 51 L.Ed.2d 260 we conclude that this squarely case falls with Hunt, Court in in determining whether the Hunt, parameters in the we too decline to government program at had primary issue this juncture. resolve issue at advancing effect of religion, great pains took to demonstrate that the benefitted institution Apparently, was not a pervasively sectarian Plaintiff confuses the institution— Establish- taking into account prohibition Clause’s against nature and funding structure body, institution’s governing student funding (cid:127)sectarian activities with sectarian in- body, faculty.1 Id. at stitutions when the tivities, are for funds secular ac- Court further noted many which under circumstances

program provid- constitutional because it may not offend the Establishment Clause. 512 plausible a when states, particularly exemp- to tax and subsidies between

ference state’s for the purpose “the exemptions secular tax giving in that is tions of the the face from its of discerned part be may not transfer does 3062. 394-95, de- 103 from S.Ct. abstains Id. at simply statute.” ... but revenue support [entity] that manding in the as stated the Act of purpose 675, 90 S.Ct. at Walz, U.S. 397 state.” condi- prevent and “alleviate is to itself Act Therefore, the benefit 1409. Comp. Mich. unemployment.” of tions does the bonds of tax-exempt status with the To deal § 125.1602. Ann. Laws. subsidy. to a cash amount legislature unemployment, of problems retain to assist and “necessary it found B. enterpris- commercial and industrial local arguments, Plaintiffs to Contrary and methods means provide “to and es” neu requires simply Clause Establishment in- of and assistance encouragement 747, 96 Roemer, at U.S. 426 See trality. in ... enterprises commercial and dustrial required. is (“Neutrality is what 2387 S.Ct. recon- constructing, purchasing, locating, to secular itself confine must The State main- improving, modernizing, structing, impede nor advance and neither objectives, furnishing, equipping, repairing, taining, requirement This activity.”). in its and in this state expanding and Test, Lemon in the expressed neutrality end, legis- To Id. that municipalities.” (1) challenged gov requires that of local the creation authorized lature legislative a secular have practice ernment administer Defendant such EDC’s effect (2) primary principal its purpose; which included programs, the Act’s and religion; nor inhibits advances neither id. See bonds. revenue issuance govern an excessive (3) not foster it does 125.1607(d). 125.1603(d), §§ religion. Lemon with entanglement 602, 91 Kurtzman, 403 U.S. v. (1971). The 2105, 745 L.Ed.2d 29 S.Ct. A state’s decision to assist busi to create in order operation their in nesses by the refined test was Lemon prong first Agostini. in jobs-regardless type and maintain of the however, same; test remained Lemon purpose of business-“evidences a Muel and understandable.” en secular both the excessive reformulated the Court Michi 395, 103 3062. ler, it at include 463 U.S. test prong tanglement strong a there is conclude gan could inquiry prong-the in the into the second assisting,' and 521 promoting, Agostini, in See interest public test. effect primary enter industrial and 232-33, 117 1997. retaining commercial atU.S. non-sectarian. sectarian prises, both implement- programs Act The EDC states, (“Minnesota, like other id. clearly have the Act pursuant ed public strong ais there conclude could “[Gjovernmental assis- purpose. secular financial the continued assuring interest consistently survived have programs tance schools, sectarian both private health run afoul they have when even inquiry non-sectarian.”). conclude We framework.” of the Lemon aspects other that result programs and the Act the EDC Mueller, satisfying purpose, it have secular reflects, part, [a] reluc- least “This test.5 the Lemon prong of first motives unconstitutional attribute tance to origi- (alteration L.Ed.2d 129 76 nal)). addition, has consis Supreme Court " ‘familiarity "the so because This is traditionally ‘legisla tently recognized that legislators enjoyed by conditions’ with local creat latitude especially broad tures have equitable ‘achieve them to especially enable in tax distinctions ing classifications ” ” (quoting Id. burden.’ tax distribution Mueller, 103 U.S. schemes.’ 83, 87, 60 S.Ct. Kentucky, U.S. Madden with Regan v. Taxation (quoting S.Ct. 3062 (1940)). L.Ed. 590 Representation, The prong benefit.”). second of the Lemon financial The issuance of the requires test that government program tax-exempt revenue bonds under the EDC primary not have the effect of either ad Act and, thus, meets this criterion does not vancing or inhibiting religion. Under the government result in indoctrination. revised test set in out a Agostini, govern The Court Mueller and Witters v. program ment primary does have the Washington Department Services effect of advancing or inhibiting religion if Blind, 481, 474 748, U.S. 106 S.Ct. 88 (1) it: does in government not result indoc (1986), L.Ed.2d 846 used similar reasoning (2)

trination religion; does not define its in determining that there was govern no recipients by reference to religion; or Mueller, indoctrination. In the Court create excessive entangle held that a statute, Minnesota which bene Mitchell, ment‘'with religion. See 120 fited religious and non-religious schools S.Ct. at 2541 (citing Agostini, 521 U.S. at alike, allowing taxpayers to deduct school 234, 117 1997). S.Ct. expenses in computing tax, state income did not violate the Establishment Clause. question whether govern “[T]he 463 U.S. at In 3062. so mental aid to religious schools results holding, Court concluded that “the governmental indoctrination is ultimately a provision state’s of a forum neutrally ‘open question whether any religious indoctrina to a broad class of nonreligious well as tion that occurs in those schools could religious speakers’ does not any ‘confer reasonably be attributed to governmental imprimatur of approval,’ State so here: Mitchell, action.” 120 S.Ct. at 2541. The provision ‘the of benefits to so broad a Supreme Court has held that in distin spectrum of groups is an important index guishing between indoctrination that is at ” of secular effect.’ Id. at tributable to the State and indoctrination (citation omitted). The Court went not, that is the court turn must to on to conclude that program “[a] [like the the principle of neutrality, upholding aid Minnesota tax that neutrally deduction] that is offered to a broad range of provides state assistance to a range broad groups person or regard without to their of citizens is not readily subject to chal religion. If the religious, irreligious, lenge under the Establishment Clause.” religious and a are all eligible alike 398-99, 103 Id. at governmental aid, no оne would conclude Witters, any indoctrination that held that any particu- Court the Es recipient lar tablishment Clause preclude conducts has did not been done state from extending of the government.... behest assistance under a To put state point vocational differently, if rehabilitation the govern- assistance ment, a seeking person to blind to further who legitimate some chose to study secular purpose, college offers aid on Christian to become same terms, pastor, missionary, regard youth without to or religion, director. 474 to all who U.S. at adequately S.Ct. 748. There the purpose, further then it say is fair to concluded that program, any going aid to a made available recipient on the basis only has of neutral the ef- criteria regard fect of without furthering that purpose. secular sectarian- nonsectarian, or accord, public-nonpublic nature of Id.; Zobrest, 509 U.S. at institution, did primary not have the (“[W]e S.Ct. 2462 have consistently held effect advancing inhibiting religion. that government programs that neutrally 488, 106 See id. at S.Ct. 748. provide benefits to a broad class of citizens defined without religion references to are facts this case reveal that De- not readily subject fendant, an Establishment attempting to further the secu- challеnge just Clause in- Act, because sectarian lar purpose the EDC issued tax- may stitutions also receive an exempt attenuated revenue appli- bonds on behalf of favor that neither neutral, criteria secular re- Academy, without cants, including the to both disfavor, made available and is nor dem- facts further religion. gard aon beneficiaries and secular its creation since onstrate nondiscriminatory Agostini, basis.” nu- financing of approved has Defendant conclude 231, 117 We the same criteria using projects merous tax-exempt reve- the issuance Academy that approve used that were of the test prong satisfies nue-bonds have included projects Project. These as not-for-profit well. well as as for-profit various religiously are which of entities —some consistent has been principle This More- are not. that and others affiliated Supreme Court more recent throughout the tax-ex- over, proceeds the loan the by on Court It relied precedent. was religious go not did empt bonds two upholding in and in Zobrest Witters funds Academy. The the aspects of provided some that programs government of an addi- to construction limited

were In Wit- religious institutions. to benefit school, renova- middle the lower tion to ters, that the stated Court reno- and other wing, science tion of the “made avail- is Washington’s program The facilities. existing secular vations of to the sectarian- regard without able construction, not used for funds were nature nonsectarian, public-nonpublic or of the Acade- renovation, improvement benefitted,” is in the institution of range of broad Chapel. Given my’s It is religion. way towards skewed no for tax-ex- eligible may be that groups plans for chan- “ingenious one of the not neu- the basis of financing on empt bond that schools to sectarian neling state aid funds that fact and the tral criteria It cre- this Court.” periodically reach for purposes secular were used students incentive for no financial ates intended, under they were It does education. undertake sectarian to Witters, Mueller, other guidance or broader provide greater tend to be it cannot precedent, Supreme Court their apply who recipients benefits that indoctrination any religious said that education, nor are to aid Academy can be attributed at the occurs limited, in program full benefits government. to'the whole, at students in to part or large [Njothing in institutions.... sectarian Mitchell, that the Court stated that, petitioner if record indicаtes criterion, the govern whether the second succeeds, portion any significant by recipients its defines program pro- Washington expended under aid closely related religion, reference flowing up will end as a whole gram criterion, i.e., indoc governmental first The function religious education. 2543. The second trination. 120 S.Ct. at hardly pro- “to program Washington in the first related to criterion is for non- support financial vide desired set facts to the same court looks institutions.” public, sectarian neutrality in the first on focus under the (citations 488, 106 S.Ct. 748 474 at id.; at U.S. Agostini, U.S. criterion. See omitted). part in on its decision Relying However, when Witters, in held Zobrest in the Court criteri the second facts in looking these at interpreter the services providing question on, must answer the court Act with Disabilities the Individuals aid allocating under “criteria for whether the (IDEA) attended Cath- who to student to undertake financial incentive ‘creat[e] a ” the Estab- Mitchell, not violate high olic school did indoctrination.’ 12-13, 113 509 U.S. at lishment Clause. (quoting Agostini, at 2543 Court, to ac- addition 1997) (alteration original). 231, 117 S.Ct. however, government that the knowledging present, is not “This incentive and was neutral that case issue on the basis aid is allocated where the Roemer, not skewed toward religion, noted “no 426 U.S. at 96 S.Ct. 2337 (“The funds traceable to the ever Court has not been blind to the fact way aiding find their into sectarian cof- a religious schools’ institution to task, perform a fers.” See id. at secular S.Ct. 2462. The the State frees the explained institution’s only put that the indirect eco- resources to be to sectari- an ends. nomic benefit a sectarian school re- this were might impermissible, how- If ever, a church could protected ceive was the disabled not be child’s tuition. See police departments.... id. fire Court never has held that religious activi- The government program in this case is ties must be against discriminated in this consistent with the Court’s requirements way.”) added); Hunt, (emphasis Witters, Zobrest, set out in Agostini. (“[T]he 93 S.Ct. 2868 Court has not Act, Under the EDC there is no more accepted the recurrent ‍​‌​​‌‌​‌‌​‌‌‌‌‌​‌​​‌​‌‌​​​​‌‌​‌​‌​‌‌​​​‌​‌​​​​‌​‍ argument that all financial a prospective incentive for inves- aid is forbidden because aid aspect to one purchase tor to pro- bonds to finance the of an institution spend frees it to its other jects of a religious institution than there is ends.”) religious resources on (emphasis purchase the investor to bonds to fi- added). projects nance of a nonreligious institution. The issuance of tax-exempt bonds, the Regardless of religious the or nonreligious generally, and speсifically for the Acade- nature of the institution that receives the my, in no way creates a financial bonds, incentive benefit of the tax-exempt the bond- for the actually bondholders who receive holder will be able to exclude the interest exemption the to favor religious entities income; on those bonds from its taxable nonreligious over entities. Similarly, the likely and that benefit will passed be program way is no skewed towards recipient loan in the form of lower interest religion and does not delineate its benefi- rates, However, as was done in this case. by ciaries reference to religion. earlier, as noted the interest rate of the loan by is determined the bank according Finally, the issuance of the tax- market; prevailing the financial there- exempt bonds does not create excessive fore, any benefit received from the lower government entanglement. In Agostini, interest rate by is determined not gov- recognized that “[interaction ernment, by but prevail- the bank and the between church and state is inevitable.” ing Moreover, financial market. as was 521 U.S. at 117 S.Ct. 1997. Thus the Zobrest, the case in no funds traceable to “[ejntanglement must be ‘excessive’before government expenditures ever reach the it runs afoul of the Establishment Clause.” school, coffers of the sectarian in this case Id. To determine whether there is exces the Academy. The facts show that Defen- government sive entanglement, the court dant was more than any reimbursed for (1) looks at purpose character and and all fees it incurred aas result of the benefitted; (2) the institution that is application process. nature of the aid that provides; the state (3) and, resulting relationship between

Plaintiff argues that Defendant’s issu- government religious authority. ance the revenue gov- bonds does allow 232, 117 id. at See ernment funds to reach the coffers of the so, Academy. This is argues, Plaintiff be- Court’s decisions Roemer and cause the issuance of the revenue bonds Hunt are instructive on this issue. In relieves the Academy of it Roemer, costs otherwise the Court found that no excessive would have borne and the government entanglement resulted from a thereby free to devote those resources to- Maryland program state aid ward its sectarian activities. Plaintiffs ar- to religious and nonreligious institutions gument is flawed and has repeatedly been alike. 426 at 96 S.Ct. 2337. rejected Court. surveyed See There the Court nature from, the buildings were excluded religious that benefited institution

the sectariаn 743^44, (1) at- See id. construction. and found from the Chapel ser- Roman Catholic tendance (2) although the required;

vice was Hunt, there is Here, in Roemer and mandatory required school entanglement. government no excessive a curricu- courses, supplemented they only case, Defendant issues once In this liberal arts spectrum covering lum any bonds, contact with no further it has (3) theology de- courses; from the apart Academy, or including the applicants, were not hiring faculty decisions partment, repaid to the The loan process. basis; the stu- on made bank; Defendant through bondholders regard without chosen body dent was addition, In loan involved. is not addition, the Court In id. religion. See expressly Act and the EDC agreement only issued the that the noted De- state, municipality or provide that particu- there was no year and once a aid any liable for not be held fendant will religious pur- funds for lar use of state More- on the loan. principal interest or 2337. Giv- poses. See id. benefit over, the loan no will funds factors, the Court concluded en these Academy be- nature of the the sectarian government entan- excessive there no expressly excluded the Project cause the id. glement. project did the Hunt. chapel аs school’s Hunt, a striking that bears case bar, the Court the case at resemblance institution, as the nature of the As to to determine the criteria used similar school, the affiliated any religiously with in case did not program that government to its faith. allegiance its Academy pledges entangle- government in 'result excessive Nevertheless, that the the facts establish 743-44, 93 S.Ct. 2868. at ment. 413 U.S. sectarian pervasively not a Academy is the South program Hunt involved where Academy’s Restated Arti- institution. tax-exempt government Carolina provide that the Incorporation cles of state, in the colléges revenue bonds indepen- an purpose is to “conduct school’s affiliated, religiously were of which some pre-school school dent Catholic construct col- improve or projects grade, 12th including through the' and at 93 S.Ct. 2868. Id. lege facilities. sciences, and and other wherein arts case, There, present the stat- as with the secondary learning primary and forms of governed, program was ute diplomas and honors taught, and are on the the interest bonds provided that maintaining a while therein conferred: tax-exempt, which meant be would the net- with that of philosophy consonant would be rate on the loans thereon interest Heart schools of which Sacred work 2868. The at lower. See id. 66.) (J.A. at The Acade- it ais member.” program held that the was Court Hunt pro- and my’s requirements curriculum despite some of the constitutional vides that religiously affiliated were issued to bonds Academy] [ejvery at re- [the student doing, In so the Court considered schools. in the basic aca- training ceives intensive (1) religious no there these were factors: Mathematics, English, skills of demic membership faculty qualifications for Foreign Language Science. History, (2) admission; only sixty percent student Forensics, Music, Drama, Art, Theology faith body Baptist, the of student are essential Computer (3) Science institution; nothing program. Academy] parts [The of this was aimed institution record indicated Physical a full Edu- student offers each edu- rather than secular more at sectarian develop a designed to (4) Program cation cation; and, government respect sportsmanship, sense rather than the to the secular provided aid an awareness physical fitness religious purpose of the institution because enjoyment teachers, derived from athletic endeav- and the school does not inquire ors. to the religious affiliation of prospective (J.A. faculty 154.) members. A review course descriptions and the subjects covered for We thus conclude that the issuance of each of the courses offered at the Acade- tax-exempt revenue bonds does not my, with the exception of the Religion require excessive government entangle- Department, demonstrates that the Acade- case, ment. In this government in- my interject religion every does into volvement with Academy is a one-time aspect Moreover, of its curriculum. there matter; is not Academy aimed more at are no religious requirements for member- sectarian rather education; than secular ship on the Academy’s Board of Trustees. and the aid was not used for served, Non-Catholics have and currently purposes of the Academy.6 serve, on the Board. addition, does not dis- In arguing that Defendant’s issuance of race, color, creed, criminate on the basis of the tax-exempt revenue pri bonds has the or national origin its process, admissions mary effect of advancing religion, Plaintiff give preference nor does it in admission to chiefly relies on two cases: Nyquist, su Furthermore, Roman Catholics. pra, Union College Columbia Academy does not discriminate on the ba- Clarke, (4th Cir.1998). 159 F.3d 151 Plain race, color, sis of or national origin any tiffs reliance on these cases is misplaced of its policies, educational scholarship and because neither controls the instant case. loan programs, athletic or extracurricular Nyquist involved action which chal- activities, or other-school administered lenged the constitutionality of New York programs. As of the date of the issuance that gave statutes maintenance and issue, (non- the bonds 135 of the 366 repair grants and tuition reimbursement preschool) students the Academy, or nonpublic schools; to grants and in- 37%, were not Catholic. And as of the tax parents come benefits to of the chil- stipulation, date of of 34% the students attending dren York nonpublic New were not Catholic. The facts indicate that schools. 413 U.S. at represented faiths in the Academy student The Court held that the body income tax include bene- Christian, non-Catholic Jew- provisions fits ish, Islamic, statutory scheme, of the Shinto and others. Finally, maintenance and repair grants does not discriminate on the race, color, tuition basis of grants reimbursement creed or national violated the origin in hiring of its Establishment employees. The Clause. See id. at Acade- my a teaching has of S.Ct. 2955. These faculty provisions of whom are distin- five are members guishable orders. from the cаse bar because is no religious-affiliation There require- they payments authorized direct or income preference for Academy’s (or tax only nonpublic benefits to schools Furthermore, we echo naling the district court’s against sectarian institutions in vio- urges concern that the result Plaintiff lation of the Free Exercise Clause. The poses Court to reach a far more serious con- repeatedly Court has called for problem stitutional religiously than the neu- government to be neutral in its treatment program presently tral operated by Defen- religion. goal This by per- is best served stated, dant. As the district court mitting applications EDCs to evaluate seems clear that [I]t and reli- affiliation, regard without to gion would entangled become much more any, applicant, if of the and to allow the if required deny EDCs were funding to to purely EDCs to focus instead on the secu- any religiously affiliated institution. If this aspects proposed project lar of the in each case, were the EDCs have would to exam- case. application ine each identify effort to Johnson, F.Supp.2d (empha- 667 n. 1 any religious those with affiliation. This original). sis in would also enhance risk of discrimi- presented applicable to case is it Nor those attending of students parents to the discussed, the because, previously Roman here which were schools), all of virtually sectarian pervasively as to the not a Academy is any restrictions Catholic without 774-80, 93 id. funds.7 See institution. of the use Mueller, 2955; see also Nyquist (distinguishing

396, 103 CONCLUSION made available that aid was ground on has that Plaintiff conclude therefore We only to stu but applicants, eligible to all issuance Defendant’s challenge to standing schools). case, In this nonpublic dents tax-exempt revenue bonds of the revenue tax-exempt issues Defendant Act, however, EDC neither the Academy; public- applicant, any qualified bonds for thereunder, nor program the revenue-bond As alike. and sectarian-secular nonpublic bonds on behalf the issuance indicate, recipients past clearly the facts clause the Establishment businesses, Academy violate which have included the bonds a secular program has as the hospitals, schools secular, inasmuch as well as are neither ad- effect homes, are and its purpose primary of which some nursing Accordingly, religion. are not. or inhibits some vances secular and order de- court’s the district we AFFIRM likewise dis- College is Union Columbia Plaintiff and summary judgment nying case, Un- Columbia tinguishable. to Defendаnt. summary judgment granting college arts private liberal College, a ion Day Adventist with the Seventh affiliated NELSON, concurring. Judge, Circuit Higher Maryland Church, challenged appli- denial its Commission’s Education in virtual- judgment I concur Sellinger Maryland’s aid under cation for Clay has writ- opinion Judge ly all annual provided grant purpose My sole for the court. ten qualifying private grants to state-funded a lack of register separately is writing College, Union colleges. See Columbia that con- any suggestion enthusiasm court, relying on at 154. 159 F.3d by the the sort financing of duit including Roem- precedent Supreme Court Development Economic County Oakland Hunt, pro- er, concluded that Agostini violate the necessarily would Corporation funding general direct state viding if extended Establishment Clause pervasively sectari- courses of education institu- educational “pervasively sectarian” the Establish- would violate an institution tion. at 162-63. See id. ment Clause. sure, time, when the was a to be There court, however, the be- case remanded accorded constitutional Supreme Court improperly had cause district court the between the distinction significance to College that Columbia Union determined character- and schools schools “sectarian” of as matter pervasively sectarian See “pervasively sectarian.” as ized Fourth Circuit’s at 164. The law. See id. Helms, 793, 120 S.Ct. 530 U.S. v. Mitchell the Establishment acknowledgment of (Souter, J., 2530, 2582-83, 147 L.Ed.2d 660 funding the prohibition against Clause’s time, according Jus- dissenting). That pervasively of courses general education Thomas, past.” thankfully long tice “is contradictory neither schools is sectarian opin- Mitchell, (plurality at 2550 on precedent relied Supreme Court J.).1 Thomas, “If a offers by in case. ion this reached or the conclusion for the rely upon Simmons-Hanis in cannot recent decision tiff Similarly, this Court’s Nyquist. rely cannot on (6th it Zehnan, reasons that same 234 F.3d 945 v. Simmons-Harris Cir.2000), change in this not the result does care; with in Sim- chose his adverb program at issue Thomas voucher Justice case. The pervasively sectarian "hostility held to aid programs was akin to the mons-Harris Therefore, that we do pedigree has a shameful Nyquist. Plain- schools in unconstitutional permissible aid to the (including property exemptions tax is well estab- sectarian), pervasively lished, a-religious, of course. See v. Walz Tax irreligious,” Comm’n, and the as Justice Thomas 397 U.S. (1970). in announcing Supreme

observed L.Ed.2d 697 Mitchell, in judgment Court’s “it is a mys- Without subjecting the reader to a de- tery which view religion of tailed survey Supreme Court’s nu- established, has mystery and thus a ‍​‌​​‌‌​‌‌​‌‌‌‌‌​‌​​‌​‌‌​​​​‌‌​‌​‌​‌‌​​​‌​‌​​​​‌​‍what post-iNrof merous Establishment Clause the constitutional violation would be.” Id. cases, I think I can safely say that it is at at 2551.' least likely as now as it years was 30 ago Supreme Court,

And whether if ordinary state aid to forced to “per- decide issue, vasively sectarian” would hold schools be that the constitution- Establish- not, al or Clause conduit does not bar financing the sort at non-discrimina- tory conduit financing issue here does not for “pervasively constitute “state aid” sec- tarian” Suppose, the conventional schools. purposes sense of that term. McNair, analysis, Hunt project in question here (1973) (a construction, had consisted of 37 L.Ed.2d case renova- tion, which, improvement the facts of Judge Clay an auditorium has indicated, building at a divinity bear a striking school. Although resemblance to bar), school would sectarian,” those of the case at be “pervasively where the Su- my hypothesis, under preme explained Court this in some this would not detail: make it unconstitutional for exempt the state to expenditure “We have here no public the auditorium building and divinity other funds, loan, by either grant or no reim- school facilities from real estate taxes. Is it bursement expenditures State for probable by a parochial made college, school or would also hold it constitutional for a state- and no extending or committing of a created agency to assist the school with Rather, State’s credit. only state conduit financing on the same non-discrim- consists, aid not of financial assistance inatory basis as that used facilitating directly or indirectly which im- would financing for the Academy of the Sacred plicate public credit, funds or but the Heart case bar? (the creation of an instrumentality Au- thority) through which educational in- The question answered, need not be may stitutions borrow funds on the ba- juncture, because the sis their own credit and the security Sacred Heart happen does not perva- to be of their own property upon more favor- sively however, sectarian. I hope, that no able interest terms than otherwise reading one today’s opinion will infer from would be available.” Id. at 745 n. 93 it. that we necessarily would fi- hold the S.Ct. 2868. nancing unconstitutional if Academy’s sectarian character “pervasive.” were open Hunt Court left question inference, Such an my judgment, whether the “aid” would through this be unwarranted. financing sort of consisting of below- —aid market interest resulting rates from the fact that the financing agency’s bonds and paid interest on the enjoyed bonds tax

exempt status —should be treated like

property tax exemptions for religious insti-

tutions. The constitutionality of such Mitchell, course, not hesitate to disavow.” prejudice widespread the nativist — Thomas, J.). (plurality opinion by at 2551 country during part the latter of the 19th wellspring hostility

The historic Century against aid to the Roman Catholic Church — was, "pervasively sectarian” parochial schools and its schools. Id. notes claim alleging that Defendant violated the and that the notes and bonds shall not be a First Amendment Establishment Clause debt of the municipality. See Mich. Comp. by issuing tax-exempt revenue bonds to 125.1623(2). Laws §Ann. finance the buildings construction of at the Defendant pursuant was created (the Academy of the Heart Sacred “Acade- terms of the EDC Act for the purposes set my”), a elementary Catholic and secondary forth Act. Defendant performs the school. follow, For the reasons that we functions authorized under section AFFIRM the district court’s deny- order 125.1607 of the EDC Act relating to the ing summary judgment to Plaintiff and approval of projects and the issuance of granting summary judgment to Defendant. tax-exempt bonds in therewith, connection well as other economic development BACKGROUND related work for the County Oakland area. Plaintiff is a resident and Defendant taxpayer regular has 15 voting members, of none of whom are County, Oakland officials of Michigan. Oаkland Defendant is County. members, voting All as well as public a development economic corporation project-specific, two non-voting members incorporated pursuant to the Economic are drawn private from the sector. Development Corporation Act, Mich. Article IX of Defendant’s of In- Articles Comp. (the § Laws seq. 125.1601 et “EDC corporation provides that the Oakland “Act”). Act” or The Academy, non-par- a EDC will be donations, financed from ty, independent is an Roman Catholic grants, gifts, devises, either solicited school in Hills, Bloomfield Michigan. For unsolicited, obtained public from au- purposes of the summary judgment mo- thorities, individuals, corporations tion, parties stipulated to facts organizations, other by earnings from its case. activities, borrowings and issuance of rev- In the Michigan Legislature enue bonds and enact- notes. Defendant uses ed Act facilities Oakland EDC County “alleviate and Devel- prevent opment (the and Planning Division conditions of unemployment.” Mich. “DPD”) for its day day operations. Comp. (West 1997). § Laws Ann. 125.1602 Defendant, however, reimburses DPD To deal with problems of unemploy- proportionate its share of the building ment, the legislature found it rent, equipment and other overhead costs. “necessary to assist and retain local indus- addition, In support administrative trial and enterprises” commercial and “to services for are Defendant furnished provide means and methods for the en- DPD employees, two spend who between couragement and assistance industrial percent five and ten of their time working and commercial enterprises ... in locat- for Defendant. Defendant reim- also ing, purchasing, constructing, reconstruct- burses DPD for proportionate sal- ing, modernizing, improving, maintaining, aries of employees. these Defendant has endeav- from athletic derived enjoyment However, re- Defendant power. taxing no ors. from of its revenue portion ceives some brochure, ap- project 154.) recruiting fees its (J.A. certain unrefundable Defendant ‘as “a Christ- applicant, From each itself Academy describes plicants. ap- project evolving at the (1) fee in the operating a school $500 receives centered (2) always fee at has [that] phase; $500 Church plication tradition (3) a phase; faiths.” faculty all Inducement” “Resolution included students plan is project 116.) the final overview (J.A. when course fee $500 equal closing Department fee states submitted; and Academy’s Religion issued. of bonds face value of 1% in, and education academy provides Academy is 1851, the Founded

Case Details

Case Name: Walter Johnson v. Economic Development Corporation of the County of Oakland

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Feb 27, 2001

Citation: 241 F.3d 501

Docket Number: 99-1884

Court Abbreviation: 6th Cir.