76 Op. Att'y Gen. 233 (1987)

76 Op. Att'y Gen. 233, 242-243 (1987)
  The determination as to whether a particular applicant is eligible for funding "is to be made with regard to the entire context in which the institution operates." Lindner, 91 Wis. 2d at 158. In making such determinations with respect to organizations with religious ties, the board is required to engage in a two-step analysis. First, it must determine whether the applicant is ineligible because it is pervasively sectarian. If the applicant is not pervasively sectarian, the board then must determine whether the applicant will be conducting a specifically religious activity in connection with the provision of referral, teaching and counseling pursuant to a grant made by the board.

76 Op. Att'y Gen. 233, 243 (1987)
  A pervasively sectarian organization is one in which "a substantial portion of its functions are subsumed in the religious mission...." Nusbaum, 64 Wis. 2d at 325. Elementary and secondary parochial schools have been held to be pervasively religious in character. See Meek, 421 U.S. at 366; Lemon, 403 U.S. at 615. It follows, almost by definition, that a church or synagogue is pervasively sectarian. Although no church-affiliated colleges appear to be grant applicants, the case law relating to them is instructive. It is noteworthy that some of these colleges are pervasively sectarian while others are not. In general, such colleges that make no attempt to indoctrinate students through teaching or required attendance at religious services have a predominantly secular function of providing higher education. Roemer v. Board of Public Works of Maryland, 426 U.S. 736, 762 (1976); Tilton v. Richardson, 403 U.S. 672, 685-89 (1971). But many factors have been considered in making such determinations, including the stated purpose of the college; the degree of religious control over the governing board; the extent of ownership, financial assistance, and affiliation by or with the sponsoring church; the place of religion in the college's program; the occupation and other activities of alumni; and the work and image of the college in the community. See Horace Mann League v. Board of Public Works, 242 Md. 645, 220 A.2d 51, 65, cert. den., 385 U.S. 97 (1966).

76 Op. Att'y Gen. 233, 243-244 (1987)
  With respect to social service organizations, religious youth groups or other applicants that have organizational ties to a particular religious faith, you may wish to develop a detailed questionnaire examining some of these factors, and may also wish to require the submission of incorporation papers, bylaws, resolutions or relevant policy statements. In Bradfield v. Roberts, 175 U.S. 291 (1899) the Supreme Court held that it was permissible to give aid to a corporation which was owned and operated entirely by members of a religious order because the organization was limited by its corporate charter to the secular purpose of operating a charitable hospital open to persons of all religious beliefs.¯3 The submission made by the organization must ordinarily be accepted at face value, but the board can require as much detailed information as it sees fit in determining whether a substantial portion of the applicant's functions are subsumed in the religious mission. See Holy Trinity Community School v. Kahl, 82 Wis. 2d 139, 149-50, 262 N.W.2d 210 (1978). Such a finding and determination should be made as to each applicant with religious ties.

76 Op. Att'y Gen. 233, 244 (1987)
  Once the board is satisfied that the applicant is not a pervasively sectarian organization, it then must determine whether the applicant will be conducting a specifically religious activity in connection with the provision of referral, teaching and counseling pursuant to a grant made by the board. In this regard, some of the same information used to determine whether the applicant is pervasively sectarian may be useful. In addition, information should be sought as to whether the applicant will confine itself to the presentation of psychiatric, humanitarian, sociological, health or other nonreligious reasons in connection with such items as the advisability of premarital sexual activities and abortion. An unequivocal statement should also be obtained as to whether adolescents will or will not be instructed according to doctrine adhered to by the religious organization with which the grant applicant is affiliated. If the applicant represents that no such religious activities will be conducted, the grant should incorporate that restriction and should provide that violation of that restriction constitutes grounds for termination of the grant and recovery of funds previously paid. This two-step process should avoid any possibility of unconstitutional administrative entanglement after grants are issued.

76 Op. Att'y Gen. 233, 244-245 (1987)
  With respect to the fourth factor I must consider, a greater risk of political divisiveness exists where the statutorily prescribed funding mechanism permits organizations with religious ties to compete annually for grants. Meek v. Pittenger, 421 U.S. 349, 372 (1975). The problem is that continuing annual appropriations generate increasing demands as costs and population grow. Nyquist, 413 U.S. at 797-98. The danger perceived by the courts in such a funding mechanism is that religious groups with the power to employ political machinery in furtherance of their own interests are likely to receive a disproportionate share of such grants. Cf. Engel v. Vitale, 370 U.S. 421, 426-27, 429 (1962); Everson v. Board of Education of Ewing Tp., 330 U.S. 1, 15 (1947). Although this factor is not dispositive, special care must be taken to avoid constitutional violations when such a funding mechanism is selected. See Lemon, 403 U.S. at 622-24.

76 Op. Att'y Gen. 233, 245 (1987)
  Evaluating all of these factors, I find no constitutional infirmity in awarding grants to organizations that are not pervasively religious in character, provided that such organizations do not engage in specifically religious activities in connection with activities conducted pursuant to the receipt of such grants. I note that "it does not follow that a statute violates the Establishment Clause because it 'happens to coincide or harmonize with the tenets of some or all religions.'" Harris v. McCrae, 448 U.S. 297, 319 (1980). I am therefore determining that section 46.93 is constitutional, but I am also construing it so as to avoid an unconstitutional result. I conclude only that the board would violate the establishment clause by issuing grants to pervasively sectarian organizations or to any other organization that engages in a specifically religious activity in connection with the provision of pregnancy referral, teaching or counseling services to adolescents. As stated in Nusbaum, 64 Wis. 2d at 325, quoting Tilton v. Richardson, 403 U.S. at 682: "Individual projects can be properly evaluated if and when challenges arise with respect to particular recipients and some evidence is then presented to show that the institution does in fact possess these characteristics." Therefore, I also express no opinion as to whether any particular grant recipient or applicant falls within the scope of this prohibition since that is a factual determination which must be made by the board through the application process. See 68 Op. Att'y Gen. 416, 421 (1979).

76 Op. Att'y Gen. 233, 245-246 (1987)
  My conclusion is based upon the nature of these activities and does not necessarily apply to other activities that could be funded under section 46.93 or any other statute. The potential constitutional infirmity exists and a limiting construction of the statute is therefore required because most pervasively religious organizations hold moral views with respect to premarital sexual relations and other related topics. The constitutional danger is that the state may provide funding to a pervasively sectarian organization or a secular affiliate which funding could then be used, either intentionally or unintentionally, to inculcate the moral views of the pervasively sectarian organization on these subjects. With respect to grant monies given to pervasively sectarian organizations or their secular affiliates for other purposes, a specific analysis of the activity funded would be required. Therefore, nothing said here is intended to address or implicate the legality of providing state aid to pervasively sectarian organizations or their secular affiliates for purposes other than pregnancy care and prevention services involving referral, teaching and counseling.

76 Op. Att'y Gen. 233, 246 (1987)
  I next address the following inquiry:

76 Op. Att'y Gen. 233, 246 (1987)
May funding provided by the... Board be used to provide program services in a building housing a church/synagogue or other place of worship? If yes, under what circumstances?

76 Op. Att'y Gen. 233, 246 (1987)
  I am of the opinion that an organization which satisfies the criteria mentioned in response to your first question ordinarily may not provide pregnancy referral, teaching and counseling services to adolescents in a building housing a place of worship, a parochial school or any other facility actively used for a pervasively sectarian purpose, even if no religious activities are conducted and all religious artifacts or symbols are removed or covered in those areas where program services are provided.

76 Op. Att'y Gen. 233, 246 (1987)
  Since I have already indicated that funding may not constitutionally be provided by the board to pervasively sectarian organizations, the principal constitutional danger in funding program services provided in a building housing a facility actively used for a pervasively sectarian purpose is that a "crucial symbolic link... at least in the eyes of impressionable youngsters" between church and state will be created or perceived. Ball, 105 S. Ct. at 3223-24. As previously explained in response to your first inquiry, if at all possible a narrowing construction of section 46.93 must be employed in order to avoid such an unconstitutional result.

76 Op. Att'y Gen. 233, 246-247 (1987)
  I am aware that "the use of a church facility by a state agency is not per se a violation of the Fi[rst] Amendment." Lemke v. Black, 376 F. Supp. 87, 89 (E.D. Wis. 1974), vacated and remanded, 525 F.2d 694 (7th Cir. 1975). On the other hand, the establishment clause clearly prohibits the locating of publicly funded classes in rooms with religious symbols and other religious decorations. See Lemon, 403 U.S. at 615. The Supreme Court's recent decision in Ball indicates that buildings housing facilities actively used for a pervasively sectarian purpose ordinarily possess significant symbolic overtones in circumstances involving the teaching or counseling of adolescents.

76 Op. Att'y Gen. 233, 247 (1987)
  In Ball, 105 S. Ct. at 1318-20, the Court refused to permit public funding of a "Community Education" program involving classes taught on parochial school premises after normal parochial school hours by part-time public school employes that were usually also full-time parochial school employes. Cases interpreting Ball have held that "symbolic impact" depends upon "the location and timing of the classes as well as the tender and impressionable ages of the children who are, one way or another, whether or not participants, in contact with the program." Ford v. Manuel, 629 F. Supp. 771, 777, 779 (N.D. Ohio 1985). See also Parents Ass'n of P.S. 16 v. Quinones, 803 F.2d 1235, 1241-42 (2nd Cir. 1986).

76 Op. Att'y Gen. 233, 247 (1987)
  Cases decided prior to Ball use similar tests. In Decker v. O'Donnell, 661 F.2d 598 (7th Cir. 1980), the court invalidated the use of Comprehensive Employment Training Act ("CETA") funding for employes of parochial schools. Relying upon Meek, 421 U.S. 349, a case in which the Supreme Court struck down the provision of therapeutic services by public school employes on the premises of parochial schools, the seventh circuit held that the "outstationing" of governmentally employed CETA workers in parochial schools for the purposes of providing remedial educational services was constitutionally prohibited. Decker, 661 F.2d at 610. In addition, the court held that the provision of nursing services by CETA employes was constitutionally impermissible because the "nursing services permitted do not exclude services treating high school children on matters of sexuality, sexual hygiene, and mental health." Decker, 661 F.2d at 613.

76 Op. Att'y Gen. 233, 247-248 (1987)

  Decker, 661 F.2d at 607, tends to indicate that state funding of secular teaching or counseling services performed in facilities such as parochial schools is ordinarily constitutionally prohibited because the elementary and secondary schools involved are pervasively sectarian. Somewhat the same standard was employed in Moore v. Board of Education, 4 Ohio Misc. 257, 212 N.E.2d 833 (1965) where the court indicated that the test is whether by using such facilities a symbolic link is created or perceived "[i]n the eyes of the pupils -- impressionable children." Similarly, in Stark v. St. Cloud State University, 604 F. Supp. 1555, 1561 n.8 (D. Minn. 1985), the court concluded that "the parochial schools utilized... fit precisely the 'pervasively sectarian' description in Lemon." That is also true with respect to buildings housing places of worship or other facilities actively used for pervasively sectarian purposes.

76 Op. Att'y Gen. 233, 248 (1987)
  There may be rare situations involving the use of segregated areas such as basements, vacant buildings or areas with separate entrances where the use of church, parochial school or similar space to conduct referral, counseling and teaching activities is analogous to the lease arrangements approved in 75 Op. Att'y Gen. 265 (1986) and State ex rel. Sch. Dist. v. Nebraska State Bd. of Ed., 188 Neb. 89, 195 N.W.2d 161, cert. den., 409 U.S. 921 (1972). But caution is warranted since the subject matter of the activity for which funding is received carries religious or moral overtones. Given the nature of the clientele served, there is a strong likelihood that a crucial symbolic link between government and religion would be created or perceived where a state-funded program to refer, counsel or teach adolescents on personal moral choices respecting pre-marital sex, pregnancy and abortion is conducted in a building housing a facility actively employed for a pervasively sectarian purpose.

76 Op. Att'y Gen. 233, 248 (1987)
  Finally, you note that, based upon the advice given by my predecessor in 75 Op. Att'y Gen. 251 (1986), the executive committee of the board has decided to recommend that the following conditions or restrictions be placed upon the use or acceptance of grant monies distributed by the board:

76 Op. Att'y Gen. 233, 248 (1987)
1. Funding provided by the... Board may not be used to provide program services within a parochial school during regular school hours.

76 Op. Att'y Gen. 233, 248 (1987)
2. Funding provided by the... Board may be used to provide program services within a parochial school after regular school hours, if the program is opened to all students regardless of race, religion, color, and national origin, and if all religious artifacts and symbols are removed or covered.

76 Op. Att'y Gen. 233, 248 (1987)
3. Recruitment of participants for programs utilizing any funds provided by the... Board must be conducted on a community-wide basis, and cannot be self-selecting on the basis of religion, etc.

76 Op. Att'y Gen. 233, 248-249 (1987)
  You therefore ask whether these restrictions on the use of grant monies issued by the board are legally required. In view of the fact that I have already indicated that such activities can rarely be conducted in any facility actively employed for a pervasively sectarian purpose even when no services are conducted and all religious artifacts or symbols are removed or covered, I need only analyze whether the board's programs must be open to all students, whether recruitment can be "self-selecting" and whether community-wide recruitment is required.

76 Op. Att'y Gen. 233, 249 (1987)
  I am of the opinion that programs funded by the board must be open to all students regardless of race, religion, color and national origin, and that it is desirable but not required that recruitment not be "self-selecting" and that community-wide recruitment occur.

76 Op. Att'y Gen. 233, 249 (1987)
  Your principal concern may have been addressed by the enactment of section 46.93(3m)(b) which now prohibits "[t]he existence of restrictions, based on religion or absence of religion, on persons applying for or receiving services under the grant." It is self-evident that to bar any adolescent from participation in a governmentally-funded activity based upon any of the other characteristics mentioned would constitute a violation of federal and state equal protection guarantees as well as various federal and state statutes prohibiting discrimination. See, e.g., State ex rel. Palleon v. Musolf, 120 Wis. 2d 545, 356 N.W.2d 487 (1984).

76 Op. Att'y Gen. 233, 249 (1987)
  You have verbally indicated that the term "self-selection" refers to a process whereby a grantee contacts a church, parochial school or religious youth group and offers to provide counseling services to the adolescents who are members of the organization. Your concern is that, by contacting only certain religiously affiliated organizations and/or by failing to publicize the availability of scheduled programs on a community-wide basis, the grantee may intentionally or unintentionally limit participation in such publicly funded services to the members of a particular religious denomination or denominations, even though individuals that are not members of the religiously affiliated organization would not be prohibited from receiving such services if they had been made aware of their availability.

76 Op. Att'y Gen. 233, 249-250 (1987)
  The statute contains no requirement that community-wide recruitment occur. If the availability of these programs is widely publicized by other grantees within the community, it may be that the failure of any particular grantee to publicize the availability of such services would cause no legal problem. But there is a possible danger that, in practice, the activities of one or more grantees may favor members of a particular religion or religions with respect to the availability or provision of program services. Cf. Wilder v. Sugarman, 385 F. Supp. 1013, 1023 n.16 (S.D.N.Y. 1974) (three-judge court). If so, claims of religious discrimination may result. Whether such religious discrimination would in fact occur depends upon the facts of each particular case. Thus, while I believe that community-wide recruitment is desirable in order to avoid any potential claims of religious discrimination, I cannot say that it is legally required.

76 Op. Att'y Gen. 233, 250 (1987)
  In conclusion, the board may not constitutionally provide funding to pervasively sectarian organizations or to any other organization that engages in a specifically religious activity in connection with the provision of referral, teaching or counseling concerning matters related to premarital sex and premarital pregnancy. Such activities also ordinarily may not be conducted in a building housing a place of worship, a parochial school or any other facility actively used for a pervasively sectarian purpose, even if no services are conducted and all religious symbols or artifacts are covered or removed. Finally, discrimination on the basis of race, color, creed or national origin is not permissible, and community-wide recruitment is not necessarily required but may be desirable in order to avoid any possibility that religious discrimination with respect to the availability or provision of services might occur.

76 Op. Att'y Gen. 233, 250 (1987)
DJH:FTC

76 Op. Att'y Gen. 233, 233 (1987) - Footnote

Destination-140   1   The constitutionality of a federal statutory scheme with certain similarities to section 46.93 is analyzed in Kendrick v. Bowen, 657 F. Supp. 1547 (D.D.C. 1987). That case examined the constitutionality of the Adolescent Family Life Act ("AFLA"), 42 U.S.C. 300z through 300z-10 (1981), which provides for grants for demonstration projects to public or private non-profit organizations for the purpose of providing pregnancy care and prevention services. These services include maternity counseling, adoption and referral services, services to discourage adolescent sexual relations, counseling and family planning services. Kendrick, 657 F. Supp. at 1553. The federal statutory scheme is similar to the state statute in that both contain a funding mechanism which provides for competition for grant monies, and in that the legislative findings made by Congress are similar to those made by the Legislature in 1985 Wisconsin Act 56, sec. 2 and in section 46.93(1). See 42 U.S.C. 300z(a) (1981). The federal statutory scheme differs in that 42 U.S.C. 300z-5(a)(21) (1981) provides that an applicant for a grant must describe how it will involve religious organizations "as appropriate in the provision of services." An additional difference is that 42 U.S.C. 300z-10 (1981) provides that grant monies generally cannot be used for any kind of abortion counseling or referral.

76 Op. Att'y Gen. 233, 233 (1987) - Footnote
  In Kendrick, 657 F. Supp. at 1553, the district court found the federal statutory scheme to be unconstitutional insofar as it permitted funding for activities involving or related to pregnancy "referral, teaching or counseling services" to be made to organizations with a religious character and purpose. The district court's decision was recently stayed by Chief Justice Rehnquist pending docketing of a timely appeal and the Supreme Court's ultimate disposition on the merits. Bowen v. Kendrick, No. A-99 (August 10, 1987). Because the Kendrick case has not finally been resolved and, more importantly, because of the key differences between the federal and state statutory schemes, as emphasized by the statutory amendment contained in the budget bill, I take note of but place no special reliance on Kendrick in this opinion.

76 Op. Att'y Gen. 233, 233 (1987) - Footnote

Destination-141   2   In Kendrick, 657 F. Supp. at 1563, it was inferred that the federal statutes endorsed the beliefs of those religions that advocate the preferability of adoption to abortion. Even though section 46.93(4) prohibits the board from funding certain abortion-related activities, and even though adoption is specifically identified as a "potential alternative to abortion" in 1985 Wisconsin Act 56, sec. 2(3), the inference drawn by the district court in Kendrick cannot be drawn here. Although 1985 Wisconsin Act 56, sec. 2(1) states that "members of the clergy must work with families and programs to promote constructive life values and responsible behavior, with emphasis on education and counseling adolescents," section 46.93 does not require that any religious organization receive grant monies. Section 46.93(4) also does not prohibit funding for abortion counseling and referral.

76 Op. Att'y Gen. 233, 233 (1987) - Footnote

Destination-142   3   In Kendrick, 657 F. Supp. at 1565, the district court found organizations with "explicit or implicit corporate policies" that "prohibit any deviation from religious doctrine" to be pervasively religious in nature. I am not suggesting that an organization must teach or counsel in a manner contrary to the views of the religious entity with which it is affiliated. But it is my opinion that an organization operated without reference to such doctrine ordinarily will not be considered to be pervasively sectarian.

76 Op. Att'y Gen. 233, 234 (1987) - Revisor's WisLaw Note

Destination-139   * Revisor's Wislaw Note: Strikes were used by the attorney general to show vetoed words. Underscores were used by the attorney general to indicate new language resulting from the creation of s. 46.93 (3m) by 1987 Wis. Act 27. The internal numbering of s. 46.93 (2m) by 1987 Wis. Act 27 was not correctly reproduced in this opinion. For an accurate reproduction of the treatment of s. 46.93 by 1987 Wis. Act 27, see The Laws of Wisconsin, 1987.
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