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LOS ANGELES � A defiant Justice Ming Chin seemed on the losing side Wednesday as the California Supreme Court appeared ready to let the state’s more than 2,400 religiously affiliated schools receive indirect state aid � as long as it’s not used to promote a particular faith. At least four other justices appeared to oppose Chin, who took the stance that the California Constitution clearly prohibits the state from providing government aid � except remote benefits that don’t advance a religious agenda � to “pervasively sectarian” schools, including universities. “Isn’t the problem that it’s impossible to separate the religious aspects of these schools from the secular?” Chin asked Sacramento-based Deputy Attorney General Zackery Morazzini, whose position on the issue mirrored Chin’s. Justice Joyce Kennard summed up the position of most of the court, however, by saying she thought the focus of the debate shouldn’t be on the religious mission of the schools, but rather on what they planned to do with the government aid. Kennard and three other justices indicated that as long as the funds go toward secular purposes, such as constructing new buildings, there should be no constitutional conflict. According to court documents, schools with a total of more than 585,000 students statewide will be affected by the court’s decision. The case began in 2002 when the California Statewide Communities Development Authority, a group of several cities, counties and special districts, approved so-called conduit financing for construction projects planned by Oaks Christian School in Westlake Village, California Baptist University in Riverside and Azusa Pacific University near Los Angeles. Conduit financing is a type of aid that lets government entities like the CSCDA issue tax-exempt bonds, which bond holders buy at below-market rates. The proceeds then go to the private entity, such as the religious schools. The schools then repay the bond holders directly, thereby keeping the government at arm’s length. When the financing for the three schools in the case was up for trial court approval, Sacramento County Superior Court Judge Loren McMaster invited the attorney general, and anyone else who was interested, to weigh in. The attorney general took an adverse position. In late 2002, McMaster ruled that conduit financing violated Article XVI, Section 5 of the state Constitution, which prohibits government entities from granting aid to any sectarian group. Sacramento’s Third District Court of Appeal affirmed in a 2-1 ruling in 2004. On Wednesday, the Supreme Court appeared ready to reverse. The court’s questions revealed a split between Justices Kennard, Marvin Baxter, Carol Corrigan and Chief Justice Ronald George � who wanted to focus on the planned use of the bond money � and Chin, who seemed to believe there was no way the court should overlook the sectarian nature of the schools. Chin pointed out that the three schools mandate religion classes in which a sectarian point of view is promoted and even “discriminate” in hiring by requiring that a certain percentage of the staff is of the Christian faith. “Are you saying it doesn’t matter that they’re pervasively sectarian?” Chin asked Norman Hile, a partner in Orrick, Herrington & Sutcliffe’s Sacramento office who represented the California Statewide Communities Development Authority. “Right,” said Hile, noting that focusing on the schools’ missions “plunges the courts into the situation of trying to judge the schools and not whether the aid was indirect, remote and incidental.” Hile also noted that covenants that govern conduit financing expressly prohibit schools from using the money for any religious purposes. If the state’s position prevails, attorneys for the schools argued in court papers, students’ educational opportunities could suffer. Opponents, including the American Civil Liberties Union, which joined the case as an amicus curiae, argued, however, that government aid would be the equivalent of constitutionally prohibited support of religious views and would violate the separation of church and state. Chief Justice George and Justice Baxter later put Morazzini on the defensive by asking how providing government aid indirectly though conduit financing differs from cities and towns providing police and fire protection and even building roads to religious schools at government expense. “These are public services and public expenditures that are essential for the operation of any religious school,” Baxter said. “Aren’t those a lot more important to the institutions � essential to the institutions � than something as remote as conduit financing?” George followed up by asking why it would be OK for government entities to pay for the concrete of a new roadway that provides access to a school, but not to provide indirect conduit financing that will pay for the costs of concrete in a new building? “What is the distinction there?” Morazzini argued that a roadway, as well as police and fire protection, are “universally available” to the overall community and don’t advance “the essential mission of the schools,” that being religious education. A ruling in California Statewide Communities Development Authority v. All Persons Interested in the Matter of the Validity of a Purchase Agreement, S124195, is expected within 90 days.

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