7th Circuit Says Notre Dame Might Need To Repay Government Funds

On Thursday, in a decision written by Judge Richard Posner, the Seventh Circuit Court of Appeals in a 2-1 decision reversed the lower court's dismissal of a taxpayers' Establishment Clause challenge to federal funding of a Catholic teacher training program. The case is Laskowski v. Spellings (7th Cir., April 13, 2006). While the court agreed with the lower court that plaintiffs' petition for an injunction was moot since all the appropriated funds had been spent, it held that there was still the possibility that the court could order the recipient of the funding, Notre Dame University, to repay the funds it received to the federal Treasury if it turns out that the Department of Education unconstitutionally transferred tax money to Notre Dame. Judge Diane Sykes dissented arguing that the plaintiffs never asked for the restitutionary relief that the majority says is possible, and such relief is inconsistent with the cases on taxpayer standing which have never recognized a private party's right to seek repayment to the Treasury as a remedy in Establishment Clause cases. The Chicago Sun Times and the Ft. Wayne News-Sentinel covered the decision.