South Bend's Transfer of Land To Catholic High School Violates Establishment Clause

In Wirtz v. City of South Bend, Indiana, (ND IN, Sept. 7, 2011), an Indiana federal district court held that the city's transfer to a Catholic high school of land the city purchased with $1.2 million of economic development funds violates the Establishment Clause. St. Joseph's High School planned to build a football stadium and track on the property, which was adjacent to its new school building. In exchange for the land,the school agreed to permit the South Bend community to use the stadium, track and other portions of its campus for ten years, on specified terms.  In finding that the transfer would amount to an unconstitutional government endorsement of religion, the court said:

The City’s actual intent is likely to endorse the high school’s construction project, not the high school itself or the religion with which the high school is affiliated. As already discussed, though, the endorsement test looks to the perception of the well-informed observer, not the governmental actor. Furthermore, since the development project as a whole appears to not be contingent at all on the donation, the action will appear to such an observer as more of an endorsement to aid a religious school after the fact than an enticement to bring about redevelopment.

AP reports on the decision. (See prior related posting.)