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Judge: Use of fields was not unconstitutional

May 8, 2012

PAWTUCKET — A long and much-discussed legal case that pitted public school supporters against parochial school backers and involved city officials past and present was finally decided on Friday, with a federal judge rejecting claims that the City of Pawtucket used preferential treatment in assigning city athletic fields to Catholic schools for games and practices.
U.S. District Chief Judge Mary Lisi issued a decision stating that the plaintiffs failed to prove that the city had engaged in unconstitutional practices in the way that permits for athletic fields had been granted to public and parochial schools. Therefore, she ruled the judgment in favor of the defendants, who were William D. Mulholland, in his capacity as superintendent of Pawtucket's Parks and Recreation Division, Donald R. Grebien in his capacity as mayor and Robert Howe, in his capacity as director of Public Works.
The 2009 lawsuit was filed by the Rhode Island American Civil Liberties Union (ACLU) on behalf of seven Pawtucket parents and their children.
The plaintiffs included Margaret (Maggi) Rogers, Kathleen Church, Colleen Arneson, Ana Desautel, Joanne Bonollo, Amy Breault Zolt and Linda Ghazal. The plaintiffs maintained that they had been complaining to the city for years that one public field, the O'Brien Field, had been reserved almost exclusively for use by St. Raphael Academy, a local Catholic school, and that public junior high school teams were denied the use of other city fields which had often been reserved for the use of private sectarian schools.
The plaintiffs raised four constitutional challenges to the city's field permitting policies. They brought two federal claims: an Establishment Clause and Equal Protection claim pursuant to the First, Fifth and Fourteenth Amendments of the U.S. Constitution, and two state law claims: a Freedom of Religion and Equal Protection claim pursuant to Article 1, Sections 2 and 3 of the Rhode Island Constitution. The matter went to trial in late December with Lisi hearing two days' worth of testimony.
Lead Plaintiff Maggi Rogers expressed her disappointment in the decision, calling it “bad news” for the city's public school students. “In a time when the city officials are asking for even more sacrifices from our public school system, it is extremely disheartening to know that our resources will continue to be siphoned off by religious schools.”
Rogers further stated, “Despite this ruling, I feel that this was a case that needed to be brought, and I continue to believe that city officials need to re-examine their practices that, in my view, have a discriminatory impact on our public school students.” She added that she and the rest of the plaintiffs were extremely grateful to the RI ACLU for taking the case, and RI ACLU volunteer attorney Sandra Lanni for handling it, and for all of the Pawtucket parents and residents who voiced their support.
RI ACLU Executive Director Steven Brown said, “We believe that we presented sufficient evidence to show a recurring practice by city officials of providing preferential treatment to religious schools. We will be carefully reviewing the decision with the plaintiffs to determine next steps.”
Rogers later told The Times that she doesn't consider the case to be a total loss because it brought to the forefront practices that had been going on for many years and which people had spoken of “in hidden conversations.” “We have pointed out the 'elephant in the room,'” she said.
She added that, as with a lot of civil rights violations, “it takes a lot of public sentiment to get things done.”
Rogers said she thinks one of the main reasons that Lisi ruled the way she did was because, as an outsider, she had not witnessed the way the case was intertwined with Pawtucket politics. She said the practice dates back to the administration of former Mayor Dennis Lynch, who sold a field that St. Raphael Academy used to practice on to a commercial developer, and continued through the 13-year administration of former Mayor James Doyle and the many other city officials and department heads who were St Raphael Academy alumni.
Rogers acknowledged that since the initial complaint was filed, the city's Parks and Recreation Department now has a written policy and regulations in place regarding the permitting of the athletic fields. While these will be helpful in documenting the permitting practices going forward, she maintains that the policy and regulations “still give too much leeway to city officials.”
Rogers added that, going forward, she hopes Mayor Donald Grebien and his administrative team don't lose sight of “whose taxpayer dollars are going to fund our resources and who is benefiting from that.” She added, “I don't know if we can appeal, but I hope there are some profiles in courage at the public service level.”
William Mulholland, who has since retired from his position as superintendent of Parks and Recreation, said he was “pleased with the verdict and the judgment.” He said he felt that the matter of “what I did or did not do didn't merit arguments in the media” and had been content to let the judge look at the evidence of what had occurred prior to a written policy being adopted in 2010. Mulholland added that he wrote the policy and considers it to be “moving in the right direction.”
John Blais, who is the city's current Recreation Director, declined to comment about the case that involved his predecessor, but said he thinks the written policy regarding field permitting will be helpful to the city going forward. “Any policy that we put in place is beneficial as long as we all adhere to it,” he said.
Among the highlights of the 24-page decision, Lisi noted that the plaintiffs had argued that the city violated the Establishment Clause by preferentially allocating permits to religious schools. However, she wrote that the city's record does not support this claim. She stated that the city's permitting policies give first preference to the scheduling of public school games, thus both public high school and junior high school games are permitted first and take precedence over the permitting of private school games.
Lisi further noted that the plaintiffs's position was based on the argument that the city's permitting policies “impermissibly aid Catholic schools.” However, she found “no evidence that the fields are used for anything other than a purely secular purpose.”
The plaintiffs had also argued that the city had granted religious schools field space at the expense of public schools, thus assisting and endorsing the Catholic religion.
However, Lisi found that the record did not support this assertion. Citing case law, Lisi wrote that, as with public provision of police and fire protection, sewage facilities, and streets and sidewalks, access to athletic facilities is of some value to the religious schools but is nevertheless not such support of a religious institution as to be a prohibited establishment of religion within the meaning of the First Amendment.
In the test of the Establishment Clause that requires government conduct “avoid excessive government entanglement with religion,” Lisi wrote that while it is obvious that the private schools that benefit from the city's permitting policies are sectarian, the nature of the benefit is wholly secular and there is no “relationship” between the city and religious authority. The “ministerial interaction” of awarding the permits “is certainly not the excessive entanglement with religion that the Establishment Clause prohibits,” she stated.
As to an argument under the “endorsement analysis,” Lisi noted that the courts must consider whether the challenged governmental action has the purpose or effect of endorsing, favoring or promoting religion. She wrote, “This court's analysis turns on how a 'reasonable and objective observer, fully aware of the background and circumstances,' would view the city's permitting procedures.” She further stated, “There is no evidence that the fields are used for anything other than a purely secular purpose.”
Lisi added, “The sectarian school students are receiving a benefit available to all junior high and high school students in the city. Public schools receive preferential assignments for all games. The court concludes that a reasonable observer aware of the relevant circumstances and context of the city's conduct would not perceive a message of governmental endorsement or sponsorship of religion.”
Under the plaintiff's claim that the city's permitting policies violated Equal Protection because city officials have “unfettered discretion to grant or deny permits,” Lisi found that the plaintiffs “do not develop their equal protection argument.”


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