Can the government prohibit participants in the AmeriCorps program from engaging in religious speech activities on their own time? That's the issue raised in a lawsuit filed on October 3, 2002, by the American Jewish Congress ("AJC") against the Corporation for National and Community Service, which oversees three major federal volunteer programs, including AmeriCorps. Created by Congress in 1993, AmeriCorps offers an opportunity for participants to earn money to repay student loans or to finance post-graduate education.
In the complaint (PDF format, 790K), the American Jewish Congresss charges that AmeriCorps spends federal funds "to sponsor the teaching of religion in private sectarian schools by AmeriCorps participants." The lawsuit seeks a judicial declaration that it is illegal for AmeriCorps to "permit grantees to place AmeriCorps participants as religion teachers in private sectarian schools," to "provide or administer federal financial assistance for AmeriCorps participants who teach religion in private sectarian schools," or to fund "grantees' religious activity, such as the religious training of AmeriCorps participants, whether under the guise of defraying grantees' administrative costs or otherwise."
On August 8, 2002, regulations that implement the statute were modified, and now provide that AmeriCorps participants may not engage in religious activities "while charging time to the AmeriCorps program" or "accumulating service or training hours." Previously, the regulations had provided that participants were not permitted to "engage in religious instruction, conduct worship services, provide instruction as part of a program that includes mandatory religious instruction or worship . . . or engage in any form of religious proselytization."
The American Jewish Congress complaint asserts that "Regargdless of how hours spent engaging in religious instruction are counted for the Corporation's accounting purposes, an AmeriCorps participant who is publicly identified with the AmeriCorps program, who is placed as a teacher in a private sectarian school by a private religious organization, and who receives federal financial assistance for working in that teaching position, is still engaged in religious indoctrination in violation of the First Amendment.
On February 7, 2003, The Becket Fund for Religious Liberty filed an amicus brief (PDF format, 175K) in which it stated that AJC's claims were "based on the extraordinary assertion that a government program fails constitutional scrutiny unless it requres participants to forfeit their constitutionally protected right to engage in certain religious speech activities, on their own time." Such a notion "flies in the face of the Constitution and clearly-established precedent, not only because the Establishment Clause does not mandate it, but also because the Free Exercise Clause expressly forbids it."
"Implementing such a scheme would require that the government limit not only speech and activities financed by government funds, as the AmeriCorps program already does, but also speech unrelated to the government program that is not government-funded and is wholly private," the Becket Fund brief declares. "Not only is such censorship not constitutionally required, it would actually impose a constitutionally prohibited restriction on the religious free exercise rights of both the individuals and organizations."
The broad rule sought by AJC "would effectively condition in the AmeriCorps program on the surrender of the right to private religious speech and activity," and would "single out the religious private speech of individuals for prohibition, and no other form of speech," a clear violation of the Free Exercise clause of the First Amendment.
The lawsuit singles out three AmeriCorps grantees: the Alliance for Catholic Education ("ACE"), the Nebraska Volunteer Service Commission and the Catholic Network of Volunteer Service. The University of Notre Dame, which is the legal applicant for the ACE grant, filed a motion to join the case as a defendant-intervenor (PDF format, 888K) on November 26, 2002.
The U.S. Department of Justice, which represents the Corporation for National and Community Service, filed a motion for summary judgment (PDF format, 224K) on January 24, 2003, and oral arguments on motions will be heard by U.S. District Judge Gladys Kessler on April 14, 2003. (American Jewish Congress v. Corporation for National and Community Service, case No. 1:02CV01948, U.S. District Court for the District of Columbia)