Parochial Handout Halted

South Bend Council Tried To Give Away The Store – To The Catholic Diocese – But Americans United Got It Back

A few months ago, Tim DeLaney received an email from his son about a controversy unfolding in his community.

DeLaney, a resident of South Bend, Ind., had never been one to keep up with local politics. But his son, Michael, an attorney in Chicago, follows church-state issues closely.

“He’s a member of Americans United, and he wanted me to know what was going on here in my own back yard,” DeLaney said.

Michael included a link in his email to a news story that discussed Americans United’s letter to the South Bend Common Council, asking members to reconsider their award of $1.2 million in property to a local Catholic high school.

“He joked with me about my tax money going to the Catholic Church,” DeLaney recalled. “At that point, I hadn’t heard a single thing about this, but I now knew I had to do something. I joined AU, and I sent an email volunteering to be a plaintiff.”

The council, despite receiving letters from Americans United warning that the deal was legally dubious, voted 5-4 on June 27 to pass an ordinance that would allocate funds to purchase an empty Family Dollar store in South Bend. The city then planned to transfer the property for free to the Catholic Diocese of Ft. Wayne-South Bend. St. Joseph’s High School would then demolish the existing building and construct a football stadium on the field.

“I’m a fan of high school football,” DeLaney said. “But I don’t see why the city has to spend $1.2 million to give [the land] away when it seems to me that the church should have been buying it themselves. I’m not against having a football stadium on the site, I just don’t think I should be paying for it.”

On behalf of DeLaney and three other South Bend residents and taxpayers, Americans United, along with the Indiana American Civil Liberties Union and the national ACLU, filed a lawsuit challenging the city’s transaction.

It paid off. On Sept. 7, a federal district court struck down the city’s land transfer to St. Joseph’s. U.S. District Judge Robert Miller Jr. found that the deal was unconstitutional and violated the separation of church and state.

“The court finds that a transfer of the Family Dollar lot from the city to St. Joseph’s High School would violate the Establishment Clause of the First Amendment to the United States Constitution, and so grants the taxpayers’ motions for an injunction,” he wrote.

In his 36-page ruling, Miller also observed, “The proposed Family Dollar transaction has the appearance of putting adherents and nonadherents on different footing, which would lead an objective, well-informed, reasonable observer to think the City is endorsing St. Joseph’s High School, the local Catholic community, or the Diocese that operates the high school.”

Americans United praised the decision.

“We’re pleased that the court has halted this planned government handout to a religious institution favored by local officials,” said AU Senior Litigation Counsel Alex J. Luchenitser. “South Bend should use its tax revenues in a manner that benefits all its residents, without regard to their religious faiths.”

AU attorneys filed Wirtz v. City of South Bend on Aug. 16. The lawsuit noted that St. Joseph’s requires all of its students to receive a Catholic education, including study in theology. All athletic competitions and practices are preceded by prayers consistent with the teachings of the Catholic Church and led by a priest when one is present. The school handbook encourages coaches to arrange for a prayer service or mass before games when feasible.

The lawsuit argued that the school should pay full market value for the property and not receive any special treatment or public funding from the city.

“Taxpayers should never be forced to support religion,” said Barry W. Lynn, Americans United executive director. “If South Bend council members want to make a million-dollar donation to a religious school, they ought to dig into their own pockets, not those of the taxpayers.”

But certain council members and South Bend Mayor Stephen Luecke argued that the transfer of the land is constitutional. City Attorney Charles S. Leone and Kathy Cekanski-Farrand, an attorney who advises the council, asserted that a judge would not find the gift to be a violation of church-state separation.

They believed that the transaction was permissible because some city groups may be able to use the facilities on the property when St. Joseph’s students are not using them.

Americans United attorneys, however, disagreed.

“The possibility that some South Bend residents might – at some point in the future – receive limited temporary rights to access the property does not transform this sizable gift into an arms-length market transaction,” AU staff attorney Ian Smith wrote in a letter to the council. “Presumably, the council could have provided its constituents with immediate, broader access to other, existing facilities for far less than the $1.2 million that will be spent on St. Joseph’s behalf.”

The district court confirmed that Americans United’s position was correct.

“St Joseph’s High School is receiving more from the city than it is giving the city in exchange, and so is receiving a direct benefit not by the act of some independent actor, such as a parent, but from the city,” Miller held.

Following the court’s decision, Leone told WSBT-TV, a local news station in South Bend, that the city and council will explore their options. At press time, the city had 30 days to appeal.

Four of the nine city council members have sided with AU and the court’s position. Council Vice President Oliver Davis voted against the ordinance and called AU’s first letter to the council about the matter “very good.”

Davis has also made it public that the full terms of the deal were never made clear when the vote was taken. Council members, he said, were told that the new football stadium would be open to the public.

But they were not told that after 10 years, the contract between the city and the diocese would expire and the high school would no longer be required to let city residents use its facilities. Nor were they told that during the 10-year period, church officials would be able to determine which community groups could use the property with the right to deny access to any they didn’t like.

“Those kinds of things should have been on the table,” Davis told a local TV station. “We should have had a clear understanding of that.”

But just like the council, the town has also been confused on the issue – some residents supportive of the land transfer and others appalled. DeLaney says that since he has been a part of the case, he has received support from the community.

“Many of my friends who are Catholic even seem supportive of my role in this case,” he said.

On a local television station’s website, several commentators also showed their support for AU’s challenge.

One person wrote: “Good!! This was all wrong from the get go. The people did not want our tax dollars spent in this fashion…. As far as the ‘public could use this field when not being used by St. Joe,’ what’s wrong with the school field [of] any of the other PUBLIC schools that have football fields in this city? Our local leaders have to get educated. Short-sightedness has hurt our community for decades.”

Another wrote, “No way should my tax money assist a private entity. If they are helping a wealthy Catholic school, why not assist Washington High with their overcrowding? Our kids are in portable classrooms and we’re giving [St. Joseph’s] a football field!”

A couple of South Bend residents emailed Americans United and offered their support.

“I am Catholic as are many of my friends, and we were very upset that the council would even consider something like this,” one person wrote. “Based on all of the letters to the editor in our local newspaper we never dreamed that the council would vote to pass this deal…. I truly appreciate you standing up for the Constitution and what’s right.”

Another thanked Americans United for filing the suit, writing, “With two children in South Bend public schools, it frustrated me to no end to think the city was going to give a private school a $1.2 [million] gift. Even if our public school were in great shape, it would still be wrong to use my tax dollars to pay for a football field that my children would never be allowed to play on.”

But despite many kind and supportive words, Peter Reimers, another plaintiff in the lawsuit, said some of his fellow residents have given him dirty looks and really don’t understand the case.

“They think I’m somehow preventing the Catholic Church from existing,” he said. “I know the diocese has a right to exist and have a Catholic school, but they seem to be under the impression that I am getting in the way of the school’s rights and that I am somehow opposed to religious education.”

But this reaction is expected, he said, considering South Bend has a significant Catholic presence. The city is home to the University of Notre Dame and, according to Reimers, city officials and the diocese have always been pretty close. Reimers said that when he attended Catholic school in South Bend, he went to school with many politicians’ children.

Reimers believes the diocese is perfectly capable of raising its own funding and doesn’t need government help.

The football field planned for the Family Dollar site is only part of a new high school building and campus the diocese plans to build. The total cost of the project will be approximately $35.5 million. So far, the school has raised more than $33 million in commitments – enough to go ahead with a groundbreaking ceremony.

St. Joseph’s School Board President Matt Edmonds told the South Bend Tribune he is sure the rest of the money will come in.

“I don’t really understand why the council thinks it needs to help St. Joe’s,” said DeLaney. “That’s a puzzle to me. The money it would take the diocese to acquire this property is a small part of what they are spending to build this project.”

The diocese is not only receiving public funding through this latest deal, it is also raking in money through the state’s new voucher program that was signed into law by Gov. Mitch Daniels in May. Since then, 3,200 Indiana students have received vouchers to attend religious and other schools in the state. The number is expected to increase every year.

According to the South Bend Tribune, 70 percent of voucher students are enrolled at Catholic schools in the state. The majority of these Catholic schools are located in Indianapolis, Fort Wayne, South Bend and Gary – despite the fact that public schools in these areas have financial needs that are not being met.

The South Bend council’s rationale for supporting the transfer of the land to the diocese is supposedly for economic development. The city claims the new facility will bring growth and jobs to the area.

“Saint Joseph provides services to the city of South Bend and to its residents and to the community groups for ten years,” said Leone, the city attorney. Leone says these services will include use of the football field and parking lots for other community activities.

But Reimers says he doesn’t understand how giving land to a Catholic school is the best way to stimulate the city’s economy

“They haven’t provided any correlation between the two,” he said. “I don’t see how that will work at all.”

Economic development is critically important in a town that has been listed as a “dying city” by both Newsweek and The Wall Street Journal, Reimers added. Citizens, he said, should speak up when their government is misusing funds that should be devoted to public betterment.

That’s what DeLaney and Reimers felt they were doing by joining the lawsuit.

“I just think that I’m a South Bend resident; this affects me,” DeLaney said. “I should do something about it. What I really think ought to happen is the city should back down, St. Joseph’s and the diocese will pony up the money to buy the property, and I think that would be just fine.”

In addition to DeLaney and Reimers, the other plaintiffs included in the lawsuit are local taxpayers Roy Wirtz and Eric Brown.

The attorneys representing the plaintiffs are Americans United’s Luchenitser; Gavin M. Rose, staff attorney for the ACLU of Indiana; Daniel Mach, director of the ACLU Program on Freedom of Religion and Belief; Kenneth J. Falk, Indiana ACLU Legal Director and Americans United Legal Director Ayesha N. Khan.