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California Supreme Court Justice Joyce Kennard has defeated Associate Justice Ming Chin in a showdown over public funding for religious schools. Kennard’s prize: the majority opinion in a decision Monday that will enable public agencies in California to help finance construction at schools controlled by churches. But for Kennard, the victory was anything but a knockout. Chin, joined by two other justices, issued a scathing 28-page dissent, arguing that the funding scheme approved by the court majority “clearly violate[s]” the state Constitution. Even if California Statewide Communities Development Authority v. All Persons Interested, 07 C.D.O.S. 2368, goes un-appealed as expected, Chin’s dissenting opinion predicts the California courts will have great difficulty applying Monday’s ruling in future litigation. The case began in 2002 when the California Statewide Communities Development Authority decided to issue tax-exempt bonds to finance construction at a Christian high school and two religious universities based in Southern California. California Supreme Court precedent had upheld such financial assistance for religiously affiliated schools, but the court had not decided whether that would apply to schools that are “pervasively sectarian.” A Sacramento County Superior Court judge ruled that floating tax-exempt bonds for the three schools would violate Article XVI, Section 5, of the state Constitution, which prohibits government entities from granting aid to any sectarian group. In a 2-1 ruling, the Third District Court of Appeal affirmed. The Supreme Court majority, however, concluded that the lower courts should have focused on “the substance of the education” provided by the schools, “not on their religious character.” Noting that no public funds are expended on the bond financing program at issue, Kennard wrote that before rejecting financing for religious schools, the court needs to examine the bond program’s “purpose and effects.” “The characterization of the schools as ‘pervasively sectarian’ does not provide a reliable or satisfactory answer. A more useful and effective approach, we conclude, is to examine the substance of the education that each of these religious schools offers its students,” she wrote. Without fully describing the education offered at Oaks Christian School, California Baptist University and Azusa Pacific University, Kennard said schools must provide a “broad curriculum in secular subjects” and use coursework that is “neutral with respect to religion” to teach secular subjects. The majority, which also included Chief Justice Ronald George and Justices Marvin Baxter and Carol Corrigan, remanded the case to the trial court to make factual findings that would answer those questions. In dissent, Chin said the Sacramento County court had done enough already. Chin noted the trial court’s uncontested findings that the schools are organized for religious purposes and restrict student admissions and faculty hiring by religious criteria. So, he wrote, the proposed bond agreements “clearly violate the ordinary meaning of Article XVI, Section 5′s prohibition against ‘grant[ing] anything to or in aid of any religious sect � or sectarian purpose, or help[ing] to support or sustain any school, college, university, hospital, or other institution controlled by any religious creed, church, or sectarian denomination whatever.’” Chin took issue with several aspects of the majority ruling, principally the two-part standard meant to establish the substance of education at a particular school. Chin called this test “hopelessly vague.” Criticizing the majority’s rule that a school must provide a “broad curriculum in secular subjects,” Chin wondered: “How broad is ‘sufficiently broad’?” Zackery Morazzini, a deputy attorney general who argued against the financing, said the state would not appeal. “We’re happy to get a clear test from the Supreme Court. � It’s something we were lacking before.” Norman Hile, a Sacramento partner at Orrick, Herrington & Sutcliffe who argued for the CSCDA joint powers authority, said he doesn’t think the three schools will have any trouble meeting the majority’s test. “These are educational institutions. They’re not churches.”

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