Court Overturns Ruling That Stymied State Grants to BMG

New Jersey’s highest court struck down a lower-court ruling that had barred Beth Medrash Govoha and a Christian seminary from participating in a state grant program.

The decision does not settle the broader constitutional issues at play, and calls for the Secretary of Higher Education to seek more information as to how the funding will be used, but it does set an important precedent that could open channels for more funding to sectarian organizations in New Jersey.

Rabbi Aaron Kotler, President of Beth Medrash Gevoha (BMG), welcomed the ruling.

“While we still have a final hurdle to clear before we see this funding, today’s decision is a central and critical one in favor of religious equality, significantly advancing the rights of sectarian institutions in New Jersey,” he said.

In 2012, Governor Chris Christie’s administration opened a grant program for capital improvements at institutions of higher learning known as “Building Our Future Bond Act.” Among the recipients were BMG, which was slated to get several million dollars for a library, research center, and a three-story academic center, and the far smaller Princeton Theological Seminary, which stands to be awarded more than $600,000 for its library’s technology information system and a software training room.

The state’s decision to deliver the grants to the two schools was challenged by the American Civil Liberties Union (ACLU) on the grounds that it violates a clause of the state’s constitution that states, “nor … any person be obliged to pay tithes, taxes, or other rates for building or repairing any church or churches, place or places of worship, or for the maintenance of any minister or ministry, contrary to what he believes to be right or has deliberately and voluntarily engaged to perform.”

In 2016, an appellate court upheld the ACLU’s challenge and invalidated the funds to the two schools, saying that the funds “indisputably will be used subsequently, if not exclusively, for religious instruction.”

Last week, New Jersey’s Supreme Court invalidated the lower court finding, saying that one of the major cases referenced in the ACLU’s arguments, a 1978 decision, Resnick v. East Brunswick Township Board of Education, “is not the same as the question presently before the Court.”

In Resnick, the court ruled that a school could not give a discounted rental price to a house of worship for use of its facilities. This has been widely quoted in New Jersey cases involving funding for religious institutions.

“Here, the Court is not concerned with the Yeshiva’s and the Seminary’s use of public space for worship or religious instruction purposes. Rather, the Court confronts the direct disbursement of grant funds,” said the court. “Religious organizations were not excluded from a public benefit under Resnick, but were required to pay the entire freight for using the public facility.”

Avi Schick, a partner at Dentons law firm, who is representing BMG, called the decision “vitally important,” and said that it would “benefit not only BMG, but a wide range of institutions in New Jersey.”

“Until BMG obtained this decision, courts in New Jersey took the position that religious institutions were singled out by law as being ineligible for funding,” he told Hamodia. “That has now changed. The change came in two forms. First, the Court vacated the prior decision in this case that said religious institutions were not eligible for grants. Second, the court made clear that an earlier case it had decided — in 1978 — did not bar religious institutions from receiving grants.”

The court’s decision, however, did not rule that the grants do not present a constitutional problem, and directed the office of the Secretary of Higher Education, which first approved the funds and have been the defendants in the case, to hold additional hearings and research before re-authorizing them.

“In light of the contrary assertions by the parties and the state of this record, the Court can only conclude that the facts are murky on critical details that will affect the constitutional conclusions to be reached,” says the ruling. “The record simply does not equip the Court to answer whether the award of the challenged grant funds to these two institutions violates the Religious Aid Clause.”

Mr. Schick was confident that the state would indeed stand by its original decision to give the funds to BMG and the seminary, but, if so, a statement from the ACLU made it seem likely that the matter would be returning to the courts.

“The Court has now afforded us the opportunity to show that taxpayer-funded grants to the yeshiva and seminary would go to support religious education and training, which our Constitution forbids,” said ACLU-NJ Legal Director Ed Barocas. “We believe the facts are on our side: Both the yeshiva and seminary train ministers of their respective faiths and teach from a sectarian point of view. Taxpayer dollars cannot support that.”

While BMG is undeniably a sectarian institution, Mr. Schick says that, if challenged, he feels the secular benefits the yeshivah gives the state will be sufficient to justify the grants.

“They employ tens of thousands of people in New Jersey, and are responsible for tens of millions of dollars in New Jersey tax payments,” he said. “The success of BMG graduates in whatever field they choose to pursue demonstrates the broad value and applicability of a BMG education.”

This article appeared in print on page 42 of the May 9th, 2018 edition of Hamodia.