Both sides declare victory in Texas charitable-choice case

By The Associated Press

05.21.02

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NEW ORLEANS — A federal appeals court has declined to rule on the constitutionality of a contract that sent $8,000 from the state of Texas to a job training program that critics said was "permeated with Christianity."

In a two-sentence opinion issued last week, a three-judge panel of the 5th U.S. Circuit Court of Appeals largely upheld U.S. District Judge Sam Sparks in Austin, who dismissed as moot a lawsuit that was filed after the contract had already expired.

However, the 5th Circuit panel did revive part of the lawsuit, sending it back to the district court for consideration of whether monetary damages should be paid.

That left both sides declaring victory in the lawsuit, which was filed against the Texas charitable-choice program backed by President Bush when he was governor.

Kelly Shackelford, attorney for an organization supporting charitable choice, said the 5th Circuit ruling amounted to a technicality because the district court had never specifically addressed the question of damages.

"I think it's pretty clear that the district court's not going to give it to them," said Shackelford, of the Liberty Legal Institute, yesterday. "It keeps a small amount of their case alive for a short period of time."

Marc Stern, attorney for the American Jewish Congress, disagreed.

"Plainly they think its substantial ... We don't get damages if we don't show its unconstitutional," Stern said.

The AJC and the Texas Civil Rights Project had filed the lawsuit against Texas Department of Human Services, former Commissioner Eric Bost and other state employees, saying they should pay back the money that went to the Jobs Partnership of Washington County.

A May 7 hearing before a three-judge 5th Circuit panel never got to the constitutional questions in the case, including the civil rights groups' contentions that the Jobs Partnership of Washington County used taxpayer money to buy Bibles for classrooms and pay an executive director in charge of promoting religion or that many who took part in the program said they were pressured to join a church or change religions.

Arguments centered largely on the viability of a lawsuit that was filed after the contract with the JPWC ended in 1999.

The lawsuit sought repayment by the three Texas officials of $8,000 that went to the church-based JPWC, a declaration that the contract was unconstitutional and an order barring such contracts under the charitable-choice program.

The district court said there was no active controversy on which to rule and dismissed the matter.

The 5th Circuit in a ruling dated May 15 agreed that the AJC's claims for a declaration that the contract was unconstitutional and an order barring such contracts was moot. "The district court, however, did not consider plaintiff's claims for monetary damages and those claims are remanded to the district court for further considerations," the unsigned opinion said.

The appeals court judges in the case were W. Eugene Davis, Rhesa H. Barksdale and Emilio M. Garza.

Stern said that if the district court does indeed award damages, it will amount to a declaration that the contract violated the Constitution.

Shackelford predicted that won't happen.

"I think it's clear the district court intended to dismiss the entire case," he said.

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Groups try to revive lawsuit over church-based job program
But Texas officials question what 5th Circuit could or should do now since contract between state, program ended in 1999.  05.12.02