# Walter Johnson v. Economic Development Corporation of the County of Oakland > Court of Appeals for the Sixth Circuit · February 27, 2001 · 241 F.3d 501 URL: https://www.frixlaw.com/law-library/cases/9493811 ## Case - **Full name:** Walter JOHNSON, Plaintiff-Appellant, v. ECONOMIC DEVELOPMENT CORPORATION OF THE COUNTY OF OAKLAND, Defendant-Appellee - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** February 27, 2001 - **Citations:** 241 F.3d 501; 2001 U.S. App. LEXIS 2789; 2001 WL 184123 - **Precedential status:** Published - **Opinion:** Concurrence by Nelson - **Judges:** Nelson, Siler, Clay - **Cited by:** 61 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9493811 ## How later opinions describe it (automated extraction) - describing a religious secondary school with a similar operation and purpose as the Local YMCA that was not “pervasively sectarian.” - rejecting defendants’ argument that state taxpayers must show a nexus to satisfy the standing requirement ## Opinion text NELSON, Circuit Judge, concurring. I concur in the judgment and in virtually all of the opinion Judge Clay has written for the court. My sole purpose in writing separately is to register a lack of enthusiasm for any suggestion that conduit financing of the sort provided by the Oakland County Economic Development Corporation would necessarily violate the Establishment Clause if extended to a “pervasively sectarian” educational institution. There was a time, to be sure, when the Supreme Court accorded constitutional significance to the distinction between “sectarian” schools and schools characterized as “pervasively sectarian.” See Mitchell v. Helms, 530 U.S. 793 , 120 S.Ct. 2530, 2582-83 , 147 L.Ed.2d 660 (Souter, J., dissenting). That time, according to Justice Thomas, “is thankfully long past.” Mitchell, 120 S.Ct. at 2550 (plurality opinion by Thomas, J.). 1 “If a program offers *519 permissible aid to the religious (including the pervasively sectarian), the a-religious, and the irreligious,” as Justice Thomas observed in announcing the Supreme Court’s judgment in Mitchell , “it is a mystery which view of religion the government has established, and thus a mystery what the constitutional violation would be.” Id. at 2551.' And whether ordinary state aid to “pervasively sectarian” schools be constitutional or not, conduit financing of the sort at issue here does not constitute “state aid” in the conventional sense of that term. See Hunt v. McNair, 413 U.S. 734 , 93 S.Ct. 2868 , 37 L.Ed.2d 923 (1973) (a case the facts of which, as Judge Clay has indicated, bear a striking resemblance to those of the case at bar), where the Supreme Court explained this in some detail: “We have here no expenditure of public funds, either by grant or loan, no reimbursement by a State for expenditures made by a parochial school or college, and no extending or committing of a State’s credit. Rather, the only state aid consists, not of financial assistance directly or indirectly which would implicate public funds or credit, but the creation of an instrumentality (the Authority) through which educational institutions may borrow funds on the basis of their own credit and the security of their own property upon more favorable interest terms than otherwise would be available.” Id. at 745 n. 7, 93 S.Ct. 2868 . The Hunt Court left open the question whether the “aid” provided through this sort of financing — aid consisting of below-market interest rates resulting from the fact that the financing agency’s bonds and the interest paid on the bonds enjoyed tax exempt status — should be treated like property tax exemptions for religious institutions. The constitutionality of such property tax exemptions is well established, of course. See Walz v. Tax Comm’n, 397 U.S. 664 , 90 S.Ct. 1409 , 25 L.Ed.2d 697 (1970). Without subjecting the reader to a detailed survey of the Supreme Court’s numerous post-iNrof Establishment Clause cases, I think I can safely say that it is at least as likely now as it was 30 years ago that the Supreme Court, if forced to decide the issue, would hold that the Establishment Clause does not bar non-discriminatory conduit financing for “pervasively sectarian” schools. Suppose, for purposes of analysis, that the project in question here had consisted of the construction, renovation, or improvement of an auditorium building at a divinity school. Although the school would be “pervasively sectarian,” under my hypothesis, this would not make it unconstitutional for the state to exempt the auditorium building and other divinity school facilities from real estate taxes. Is it not probable that the Supreme Court would also hold it constitutional for a state-created agency to assist the school with conduit financing on the same non-discriminatory basis as that used in facilitating financing for the Academy of the Sacred Heart in the case at bar? The question need not be answered, at this juncture, because the Academy of the Sacred Heart does not happen to be pervasively sectarian. I hope, however, that no one reading today’s opinion will infer from it. that we would necessarily hold the financing unconstitutional if the Academy’s sectarian character were “pervasive.” Such an inference, in my judgment, would be unwarranted. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9493811. Public record. Not legal advice.