Benjamin N. Hazelwood* Madison Fellow (202) 466-3234 x225 (202) 898-0955 (fax) hazelwood@au.org 1301 K Street, NW Suite 850, East Tower Washington, DC 20005 April 4, 2012 By Email Mary Perry, Director (Mary.Perry@tea.state.tx.us) Arnoldo Alaniz, Assistant Director (Arnoldo.Alaniz@tea.state.tx.us) Kathryn Jones, Program Specialist (Kathryn.Jones@tea.state.tx.us) Division of Charter School Administration Texas Education Agency 1701 North Congress Avenue Austin, TX 78702 Re: Additional promotion of religion by Shekinah Radiance Academy Dear Ms. Perry, Mr. Alaniz, and Ms. Jones: In our previous letter, dated February 27, 2012, we identified several practices at the Truth Campus of Shekinah Radiance Academy, a taxpayer-funded charter school, that promoted religion in violation of the Establishment Clause; our concerns included the Academy's sponsorship of chapel services and Bible-study classes, and its use of a religious logo and name. We understand from later discussions with Kathryn Jones that the Texas Education Agency is investigating these issues and that the Academy must respond to the Agency's inquiry by April 10, 2012. Our own continuing investigation, as well as documents produced by the Agency in response to our previous records requests, illustrates that the Academy's promotion of and entanglement with religion is more systemic than we previously understood. We have identified the following additional practices that appear to violate the Constitution: ? ? ? Five of the Academy's campuses appear to be located at churches, and a sixth appears to reside in a church complex. Two of these campuses have names that are nearly identical to those of their host churches. On at least one occasion, the Academy appears to have held a graduation ceremony in one of these school-affiliated churches and invited a speaker to proselytize at the ceremony. The Agency has received citizen complaints that the Academy uses taxpayer funds and public-school employees to pay parishioners and operate the Academy Superintendent's church, and that it pays higher salaries to members of this church. ? It appears, then, that the Academy school system operates as if it were a parochial school, rather than a publicly-funded entity "subject to federal and state laws and rules governing public schools," Tex. Educ. Code ? 12.103--including the First Amendment to the U.S. Constitution. We urge the Agency to expand the scope of its investigation into the Academy and remedy these systemic violations. A. Fusion between Academy campuses and churches. Many of the Academy's campuses appear to affiliate themselves with churches-- sharing both their buildings and sometimes their names. Six of the Academy's campuses appear to be housed in buildings that also house active churches, including two churches whose names are nearly identical to those of the campuses they house: Name of Campus Abundant Life Campus International Campus DayStar Campus Pearsall Campus Del Rio Campus Name of Church Abundant Life Church Centro Christiano Internacional Shadrach Temple West Campus Baptist Church Grace Community Church Address (Campus/Church) 7431 South Prensa Street San Antonio, TX 78223 4151 Culebra Road San Antonio, TX 78228 413 Kitty Hawk Road Universal City, TX 78148 5203 Old Pearsall Road San Antonio, TX 78242 709B King's Way Del Rio, TX 78840 Campus: 6663 Walzem Road; San Antonio, TX 78239 Church: 6633 Walzem Road; San Antonio, TX 78239 Walzem Campus Christian World Worship Center We also understand that the Academy has held at least one graduation ceremony at the Christian World Worship Center. See Wendy Nicholls, Herring Provides Commencement Address for Shekinah Learning Institute, Helps America, LLC, May 27, 2010, http://majorfundraiser.com/2010/05/herring-provides-commencementaddress-for-shekinah-learning-institute/. This fusion of education and religion epitomizes a parochial school, not a public institution funded by taxpayer dollars. In the words of the U.S. Supreme Court, "the core rationale underlying the Establishment Clause is preventing a fusion of governmental and religious functions." Larkin v. Grendel's Den, 459 U.S. 116, 126 (1982) (quotation marks omitted). As a result, the government may not delegate state functions, including the provision of taxpayer-funded education, to religious bodies, which "may fail to exercise governmental authority in a religiously neutral way." Bd. of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 703 (1994). Even "the mere appearance of a joint exercise of [governmental] authority by Church and State provides a significant symbolic benefit to religion." Grendel's Den, 459 U.S. at 125-26. And the Academy's practices--including the use of church buildings, religious names, and the sponsorship of religious classes and services--suggest that it "was founded specifically to 2 create a religious school and that elements of its operation have the primary principal effect of advancing . . . religion." ACLU v. Tarek ibn Ziyad Acad., 788 F. Supp. 2d 950, 964-65 (D. Minn. 2011) (considering allegations that charter school's lease required use for religious purposes, school name and logo were religious, and school taught Islamic religion in after-school classes). Even if the Academy and its churches were generally separate, the Establishment Clause would prohibit its campuses from holding classes or events in churches. See Does v. Enfield Pub. Schs., 716 F. Supp. 2d 172, 192, 201-02 (D. Conn. 2010) (enjoining public school from holding graduation in church with extensive religious iconography); Musgrove v. Brevard Cnty. Sch. Bd., 608 F. Supp. 2d 1303, 1305 (M.D. Fla. 2005) (Establishment Clause prohibits public school from holding public-school graduation in church); Spacco v. Bridgewater Sch. Dep't, 722 F. Supp. 834, 842 (D. Mass. 1989) (enjoining public school from holding classes in facility leased from Roman Catholic Church); Reimann v. Fremont Cnty. Joint Sch. Dist. No. 215, Civil No. 80-4059, 1980 WL 590189, at *1 (D. Idaho May 22, 1980) (enjoining public school from holding graduation ceremony in church); Lilly v. State, 337 S.W.3d 373, 380-84 (Tex. Ct. App. 2011) (Establishment Clause prohibits judiciary from holding criminal proceedings in prison chapel). These concerns are amplified for both Abundant Life Campus and International Campus--each of which bears a name nearly identical to its host church, thus signaling that church and school are one and the same. Finally, it appears that at the Academy's 2010 graduation ceremony (held at Christian World Worship Center), an invited speaker delivered a religious speech-- entitled "God's Exciting Plans for You"--emphasizing "faith as a fundamental prerequisite to living an abundant life." Nicholls, supra. A public school may not invite speakers to deliver religious messages at school events, including graduation ceremonies. See, e.g., Lee v. Weisman, 505 U.S. 577, 599 (1992) (Establishment Clause prohibits school from inviting clergy to deliver prayers at graduation ceremonies); Doe v. S. Iron R-1 Sch. Dist., 498 F.3d 878 (8th Cir. 2007) (Establishment Clause prohibits school from permitting religious group to distribute Bibles to students in school); Berger v. Rensselaer Cent. Sch. Corp., 982 F.2d 1160, 1170-71 (7th Cir. 1993) (Establishment Clause prohibits school from permitting religious group to distribute religious materials to students in classrooms or auditoriums). This violation is even more severe because the ceremony took place at a religious facility and because, more generally, the Academy appears to be acting more as a religious body than a public school. B. Use of public funds and personnel for the benefit of the Superintendent's church. In response to our public-records request, the Agency produced citizen complaints alleging that the Academy has unlawfully used taxpayer funds and deployed government employees to support religious activities at Superintendent Washington's church (the Shadrach Temple). The complaints, attached to this letter, presented the following allegations: 3 ? ? ? ? ? The Academy distributed taxpayer funds to be used for the renovation and upkeep of the sanctuary of Superintendent Washington's church; The Academy distributed school funds to defray other operating costs and personnel costs of Superintendent Washington's church; The Academy instructed its employees to help conduct church business; The Academy used taxpayer funds to pay church employees; and The Academy paid higher salaries to employees who were members of Superintendent Washington's church than to equally- or less-qualified employees who were not members of her church. These allegations appear to be consistent with media reports that the Academy's Superintendent has used taxpayer funds for gifts, travel expenses, payments to her son, and attendance at workshops for her private consulting business. See, e.g., Brian Collister, Charter School Superintendent Under Investigation, WOAI, May 31, 2011, http://www.woai.com/news/local/story/Charter-school-superintendent-under investigation/YnlWUj7PS0mGlc52H6yUWQ.cspx. And if substantiated, they evince flagrant violations of the Constitution's Religion Clauses. First, the Establishment Clause prohibits the use of taxpayer money to build, maintain, or operate religious bodies such as the Superintendent's church. See Mitchell v. Helms, 530 U.S. at 837-38, 857-58 (controlling concurrence by O'Connor, J.) (Establishment Clause prohibits use of federal funds for secular materials and equipment, such as computers, to advance a parochial school's religious mission); Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 762-63, 774 (1973) (funding of secular maintenance and repair work at religious schools impermissibly "subsidize[d] directly the religious activities of sectarian . . . schools"); Tilton v. Richardson, 403 U.S. 672, 683 (1971) (Establishment Clause prohibits funding of secular facilities where they could be used for religious activities); Cmty. House, Inc. v. City of Boise, 490 F.3d 1041, 1056-59 (9th Cir. 2007) (Establishment Clause prohibits government from donating building to homeless shelter whose program included religious services); Gilfillan v. City of Phila., 637 F.2d 924, 930-31, 933-34 (3d Cir. 1980) (Establishment Clause prohibits city from collaborating with Archdiocese and financing Papal visit and Mass); See Wirtz v. City of S. Bend, 813 F. Supp. 2d 1051, 1068 (N.D. Ind. 2011) (Establishment Clause prohibits government from using taxpayer funds to subsidize parochial school's purchase of land), appeal dismissed 669 F.3d 860 (7th Cir. 2012). Accordingly, any diversion of taxpayer funds for church use or benefit would be unlawful. Second, both the Establishment and Free Exercise Clauses prohibit the Academy from providing favorable treatment--including higher salaries--to employees who are members of the Superintendent's church. For one, it is "[t]he clearest command of the Establishment Clause" that "one religious denomination cannot be officially preferred over another." Larson v. Valente, 456 U.S. 228, 244 (1982); see also Awad v. Ziriax, 4 670 F.3d 1111, 1127 (10th Cir. 2012) (Establishment Clause mandates "neutral treatment of religions") (quotation omitted). Likewise, the First Amendment's Free Exercise Clause prohibits discrimination on the basis of religious belief or affiliation (unless such discrimination is narrowly tailored to promote a compelling governmental interest). See, e.g., Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 535-36 (1993) (Free Exercise Clause prohibited government from singling out particular religious group for prohibition against animal sacrifice). Cf. United States v. Brown, 352 F.3d 654, 669 (2d Cir. 2003) (Equal Protection Clause prohibits peremptory strikes based on a venire member's religious affiliation). As a taxpayer-funded institution prohibited from promoting religion, the Academy has no basis for providing greater benefits to religious employees--let alone to employees who happen to be members of a particular church. * * * We appreciate the Agency's initiation of an investigation into the concerns identified in our February 27 letter, and we urge the Agency to look into the additional concerns identified here. Of course, the Agency has ample authority to require the Academy to comply with the Constitution, including the power to "modify, place on probation, revoke, or deny renewal of the charter of an open-enrollment charter school if the commissioner determines that the charter holder . . . failed to comply with [Chapter 12(D) of the Texas Education Code] or another applicable law or rule." Tex. Educ. Code ? 12.115(a). Thank you for your continued attention to this matter. We would appreciate a response to this letter within thirty days. If you have any questions or would like to discuss this issue further, please contact Benjamin Hazelwood at (202) 466-3234 or hazelwood@au.org. Sincerely, Gregory M. Lipper, Senior Litigation Counsel Benjamin N. Hazelwood, Madison Fellow* * Admitted in New York only. Directly supervised by Gregory M. Lipper, a member of the D.C. Bar. Enclosure cc: Joseph E. Hoffer (jhoffer@slh-law.com) 5 Date 5/10/2010 10:43 AM Time 10:43 AM Page 1 From: Sent: To: Subject: hotline@sao.state.tx.us Monday, May 10, 2010 7:43 AM hotlineintake@sao.state.tx.us Fraud, Waste and/or Abuse Hotline The following fraud, waste, or abuse report was received Name: Phone: Email: Agency/University: none Organization/Company/Individual: Shekinah Learning Institute Description: CEO, Cheryl Washington uses the santuary of the church for her church that she named Shadrach Temple. She uses state funds to fix and upkeep of the santuary of the church, she uses the school funds and personnel to keep the church runing and pays personnel from state funds. Conducts personal and chruch meeting at the cost of the charter school funds for her church named Shadrach Temple Other Law Enforcement Agencies Notified: Other Law Enforcement Agency - TEA Date 10/18/2010 8:50 AM Time 8:50 AM Page 1 SAO 11-0208 From: Sent: To: Subject: hotline@sao.state.tx.us Friday, October 15, 2010 3:51 PM hotlineintake@sao.state.tx.us Fraud, Waste and/or Abuse Hotline The following fraud, waste, or abuse report was received Name: Phone: Email: Agency/University: 701 Education Agency, Texas Organization/Company/Individual: Shekinah Learning Int(Cheryl Washington) Description: Inconsistency with Compensation: Pays non degree people who are members of her church more than she pays degreed teachers. Members of her church on school payroll though they do not work for the school. Son on Payroll, even though he does not work for the organization Forgery: Asking Employee to forge document ( Ex Employee's name, Cynthia Saenz} Tampering with a governmental record. Falsifying Special Ed records Abuse of official capacity. Abuse of power: Firing or forcing people out if they do not do what she asks legal or illegal. Uses people after hours for personal reasons, and divisive with employees Controls the BOARD, (she is head of the Board and also CEO) Uses religion to intimidate. Other Law Enforcement Agencies Notified: Other Law Enforcement Agency - none