High School or College is pervasively sectarian.
Plaintiffs allege, based on the institution's certificate of
incorporation and brochures, that a main purpose of the
organization is to train and educate Jewish women in
accordance with the Torah and to spread the Jewish faith "in
a Torah atmosphere." Plaintiffs' Exh BR 1. According to
plaintiffs' translations of Beth Rivka's admission brochure
"every student must major in Judaism studies (Bible, oral
religious law, Halacha, Chassidism). The purpose of these
studies is to grant the student knowledge for teaching and for
fulfillment." Plaintiffs' Exh. BR 15. Plaintiffs state that
any non-religious activities are incidental to the
institution's religious mission.
Plaintiffs also provide a number of exhibits that document
AID's concerns about the pervasively sectarian nature of the
school. According to internal confidential memoranda at AID
the Lubovitcher movement is an orthodox group with a strong
religious orientation. Plaintiffs' Exh. BR 6. According to
plaintiffs' exhibits, the ASHA staff in evaluating this
institution gave it low ratings because it was "strongly
sectarian" and enrollment was "limited to the orthodox and to
those of Lubavitch persuasion." Id. Even if the aid was for
secular purposes, plaintiffs argue it is impermissible because
the institution is pervasively sectarian.
Defendants refute plaintiffs' factual representations about
the institution. In their exhibits and affidavits, defendants
state that Beth Rivka is a three year teacher training program
with basic courses in religious studies and non-sectarian
subjects such as mathematics, computer literacy, physical
education and art. Declaration of Bernard W. Bell, Exh. A at
10. Further, defendants claim that permissible majors at the
college include Chassidic Thought, language and expression,
geography, mathematics, computers, English and special
education. Id. at 11. According to defendants the school
describes its goal as "train[ing] superior educators who are
well-versed in Chassidic knowledge and in broad general
knowledge." Santos Dec., Exh. 17.
Defendants further rely on Beth Rivka's representations on
the grant application to AID for ASHA program funding in
refuting plaintiffs' allegations. According to Beth Rivka's
sponsor in the United States "the school prepares, among
others, children of immigrant families from Eastern Europe to
live and participate in the democratic society of Israel."
Santos Dec., Exh. 17. In evaluating the nature of the
institution overall, defendants suggest that Beth Rivka is
similar to most religious colleges and universities in the
United States that receive federal funds for secular
Since this grant funded a secular activity at a religious
college the applicable standards to determine whether Beth
Rivka is pervasively sectarian are those articulated in
Roemer, Tilton, and Hunt. See Roemer, 426 U.S. at 739, 96 S.Ct.
at 2341; Tilton, 403 U.S. at 682, 91 S.Ct. at 2097; Hunt, 413
U.S. at 743, 93 S.Ct. at 2874. Applying these standards to this
case would require the Court to make material factual
decisions. Plaintiffs and defendants present different pictures
of the same institution. A lack of factual consensus exists on
such issues as the nature of religious limitations on conduct
and the goals of the school, the curriculum and the composition
of the student body and faculty. Regardless of the standard
chosen, the Court is being asked to weigh competing factual
claims, resolve evidence in conflict and judge credibility.
This is impermissible in a summary judgment motion. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510,
91 L.Ed.2d 202 (1986); Gibson v. American Broadcasting Co.,
892 F.2d 1128, 1132 (2d Cir. 1989); American Manufacturers Mutual
Insurance Co. v. American Broadcasting-Paramount Theatres,
Inc., 388 F.2d 272, 284 n. 18 (2d Cir. 1967). Since any
resolution to this conflict would require just such an
approach, this Court must deny both plaintiffs' and defendants'
motions for summary judgment.
As the Court stated at the opening of this opinion, all the
threshold issues will be certified to the Second Circuit
before a final judgment is rendered. To certify a decision for
an interlocutory appeal, a lower court must determine that an
order or decision in a civil case "involves a controlling
question of law as to which there is substantial ground for
difference of opinion and that an immediate appeal . . . may
materially advance the ultimate termination of the litigation
. . ." 28 U.S.C. § 1292(b). See also Red Bull Associates v.
Best Western International, Inc., 862 F.2d 963, 965 n. 5 (2d
Cir. 1988). Additionally, the controlling question of law must
not only be determinative to the action but must also have a
"precedential value for a large number of other suits." Brown
v. Bullock, 294 F.2d 415, 417 (2d Cir. 1961) The Court believes
all these requirements are met in this instance.
In this case there are a number of novel issues. All of the
threshold questions involve "controlling questions of law." A
resolution of any of these issues by immediate appeal adverse
to plaintiffs will "ultimately terminate the litigation."
28 U.S.C. § 1292(b). Further, this Court believes that
certification would have a precedential value to other cases.
Brown, 294 F.2d at 417. On this basis the Court has decided to
certify the portions of this decision that involve new and
important areas of the law. This includes three specific
issues. First, it is not entirely certain under recent Second
Circuit case law whether plaintiffs in this case have standing.
Second, a question arises as to whether plaintiffs are barred
by the political question doctrine. Finally, there are close
issues as to the applicability of the Establishment Clause to
actions that involve United States non-profit organizations
which have founded and continue to be involved with foreign
nongovernmental entities. For the reasons mentioned, the Court
certifies this decision for an interlocutory appeal.
Plaintiffs' motion for summary judgement is denied since
there are material issues of fact concerning which of the
challenged schools are pervasively sectarian based on the
second prong of the Lemon test. 403 U.S. at 612, 91 S.Ct. at
2111. It is not necessary to go through each of the challenged
schools, although the Court has done so to the extent necessary
to confirm that the example cited in detail is reasonably
typical. The same types of genuine material issues of fact that
exist in evaluating the Beth Rivka school are at issue
throughout. Since plaintiffs' summary judgment motion does not
survive the pervasively sectarian test, this Court need not
address the third Lemon standard concerning issues of
entanglement at this time. Id. at 613, 91 S.Ct. at 2111.
Defendants' motion for summary judgment on the issues of
standing, the political question doctrine and the
non-applicability of domestic Establishment Clause standards
is also denied for the reasons explained in the opinion.