High court clears religious schools to use bond funds
San Francisco Chronicle 3/6/07
The 4-3 decision overturned lower-court rulings and allowed three Christian schools in Southern California -- one for grades 6 through 12 and two colleges -- to borrow between $80 million and $90 million from bonds issued by a group of local governments.
The bonds are sold at lower interest rates than other bonds, allowing the schools to save money when repaying the construction loans.
The state attorney general's office challenged the loans, citing language in the state Constitution that prohibits state or local government aid for any "sectarian purpose'' or to support any school or other institution "controlled by any ... sectarian denomination.''
California courts have interpreted that language more strictly than the U.S. constitutional ban on government aid to religion. The state's high court cited the provision in a 1981 ruling striking down a program of free state loans of textbooks to religious schools.
The three schools in the current case hire only Christians as teachers. All three admit non-Christian students, but Oaks Christian School in Westlake Village (Ventura County) requires students to support the school's "statement of faith,'' California Baptist University in Riverside requires students to attend a church of the student's choosing, and Azusa Pacific University in Azusa (Los Angeles County) requires students to complete 120 hours of ministry assignments.
But even if the schools are "pervasively sectarian,'' the court majority said, the bond funds would not constitute government aid to religion, as long as the money was used for secular instruction.
The funding would come from private purchasers of the bonds, not the government and would support the same kinds of history, literature and math courses that are taught in secular schools, said Justice Joyce Kennard.
She said schools would be eligible for the bonds if they offered a broad range of secular subjects with academic content similar to courses at public schools. Although the schools "are likely to include a religious perspective in their teachings,'' Kennard said, the effect of any religious viewpoints in class would be "merely incidental to the bond program's primary purpose of promoting secular education.''
Dissenting Justice Ming Chin said the program approved by the court is unworkable and contradictory, defining instruction as secular even if it is taught from a religious perspective. Citing a trial judge's findings that religion at the three schools is "mandatory and integral to every aspect of student life,'' Chin said the bond financing "would have the direct, immediate and substantial effect of advancing religion.''
Chin was joined by Justices Kathryn Mickle Werdegar and Carlos Moreno. Kennard's majority opinion was also signed by Chief Justice Ronald George and Justices Marvin Baxter and Carol Corrigan.
A lawyer for religious schools in California said about 585,000 students attend schools that could seek financing under the ruling.
"Education, no matter where it takes place, is a good thing for the public,'' said the attorney, Jeffrey Berman. "The quality of public schools has gone down, and you see a lot of people migrating to private schools, many of which are religious schools, not because they're members of that faith but because they get a good education.''
Much of the financing would be for gymnasiums, cafeterias and other buildings where religiously influenced instruction is unlikely, said Eugene Carron, a lawyer for the financing agency, California Statewide Communities Development Authority. He said schools that teach creationism instead of, or alongside, evolution won't put those classes in bond-financed buildings.
Margaret Crosby, an attorney with the American Civil Liberties Union, which opposed the financing program, said the distinctions the court tried to draw between secular and religious instruction illustrate "the problems that the (state) Constitution tries to prevent by forbidding public funding for religion.''
The case is California Statewide Communities Development Authority vs. All Persons Interested in the Matter of the Validity of a Purchase Agreement, S124195.