The Supreme Court is being asked to hear an appeal of a case involving Michigan’s Family Independence Agency (FIA) and their decision to stop placing abused and neglected children with a faith-based organization called Teen Ranch. In November 2003, an FIA review of the Teen Ranch program determined that the program incorporated sectarian religious teaching into their programs for kids place in the program and they ceased to place children in that program.

After several months of negotiations and attempts to file amended treatment plans failed to resolve the situation, Teen Ranch filed suit in Federal court in early 2004, claiming religious discrimination and violations of the free exercise clause, the free speech clause and the 14th amendment. After discovery, depositions and initial briefs were filed, both sides asked the District Court to grant summary judgment in their favor; in September 2005, the Court granted summary judgment in favor of the FIA.

Teen Ranch appealed that ruling to the 6th Circuit Court of Appeals, which in January of this year upheld the lower court’s ruling. Teen Ranch has now filed what is called a Petition for Writ of Certiorari, or cert petition, which is a formal request to the US Supreme Court to accept a case from a lower court and decide whether the case was decided correctly. The vast majority of cert petitions are denied by the court, but Joel Oster, an attorney with the Alliance Defense Fund who represented Teen Ranch in this case, thinks they’ve got a pretty good chance:

Continued –  

“We’ve been told we have a pretty good shot because of the circuit split and because the ruling conflicts with the decision in Locke v Davey.”

A bit of factual background on the case. The FIA contracts with 96 different organizations to provide services for at-risk children, 35 of which are faith-based groups. But state law requires that in doing so, the FIA must comply with Federal law, which clearly states that no funds may be expended for “any sectarian activity, including sectarian worship, instruction, or proselytization.” Interestingly, both sides agreed that if the state was funding the program directly, it could not do so without violating the establishment clause of the Constitution and Federal law. Teen Ranch based its entire legal case on the argument that the funding was only indirect, that the state only funded each individual child’s stay in one of a range of possible programs, and that, they argued, rendered the funding indirect.

Rather than being government funding of a religious program, they argued, this was merely government making a public benefit available to individuals and those individuals could then choose to use it for a religious program. That is a longstanding legal principle, accepted by the Supreme Court in Zelman v Simmons-Harris, a school voucher case from Ohio. Just as the government cannot prevent someone from using food stamps to purchase food for a seder meal or a church potluck, they cannot prevent someone from using a generally available public benefit to fund a religious program. As long as the aid goes to the religious group as a result of a truly private choice, there is no establishment clause problem.

The District Court evaluated the case on this basis but rejected all the relevant arguments from the plaintiff. The Court ruled that because the state agency assigned children to the program, they were not there as a result of a true private choice. The fact that the ward (the child placed by the state) had the choice of opting out of that program and in to another, they said, was not sufficent to establish a true private choice:

Although the Court is hesitant to suggest whether an opt-out program will ever satisfy the true choice required to avoid Establishment Clause problems, the Court is satisfied that where, as here, the State selects the juvenile state ward’s residential placement, the ward’s ability to opt out of placement at a faith-based institution with reli-gious programming is not sufficient to avoid Establish-ment Clause problems because State placements at Teen Ranch would advance or endorse a particular religious viewpoint.

Teen Ranch argued that because they were willing to put in place a procedure whereby each ward is advised, prior to enrollment in the program, that the program is explicitly religious and that they have the choice of opting out and being placed in an alternative program, that should be enough to establish that there is a true private choice taking place. The Court, however, rejected this argument, saying that because the wards are children they are not capable of making a true choice in such a situation. Oster thinks the Court erred in that judgment:

Children can make constitutionally significant choices. You are not handicapped in your ability to exercise your rights because you are young or to make constitutional significant decisions. The 6th circuit ruled previously that a 13 year old girl could opt out of the legal requirement to tell her parents that shes having an abortion. Most assuredly, then, she can make the decision to not attend a religious treatment center.”

Oster also points out that, as in Zelman, the children do not make such decisions alone but have parents and other adults to help them make it. In this situation, however, these are kids that have been removed from abusive or neglectful parents so that option is not there. Oster says that instead the children have case workers and Guardians Ad Litem (a court appointed guardian) whose job is to look after the child’s best interests.

A critic of such programs, however, would argue that this is precisely the problem with such programs and the reason why a child placed in one cannot be expected to make an informed decision; a case worker or Guardian Ad Litem who shares the religious beliefs being advocated by such a program would certainly be in a position to exert a great deal of influence over a child. The fact that these children have just been removed from a bad home situation only makes such influence more likely and potentially more insidious.

This is a very interesting case. Purely as a legal matter, it involves a number of narrow, almost technical questions. it should never be forgotten, though, that such decisions have a real effect on real people, in this case perhaps the most vulnerable of all groups, children taken from their abusive or neglectful homes. It’s further complicated by the fact that there is no Supreme Court precedent precisely on point on the question of whether an opt-out provision for minors is enough to satisfy the private choice requirement. But as Oster indicated to me, if the Supreme Court decides to accept the case, they feel confident that they have a pretty good chance of winning.