Petition for Writ of Certiorari — City of Albuquerque v. Church on the Rock

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No. 96-___

- Of THE CLERK

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In The

Supreme Court of the United States

October Term, 1995

CITY OF ALBUQUERQUE, and TONI MARTORELLI,

in her official capacity as Director of Family and

Comraunity Services for the City of Albuquerque, and

MARK SANCHEZ, in his official capacity as Deputy

Director of Family and Community Services for the

City of Albuquerque, and KATHLEEN STARK, in her

official capacity as Supervisor, Bear Canyon

Senior Center, City of Albuquerque,

Petitioners,

versus

CHURCH ON THE ROCK and

PASTOR DON KIMBRO,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

PETITION FOR A WRIT OF CERTIORARI

Rosert M. Wuite, Wiiuiam D. Winter,

City Attorney Assistant City Attorney

Ranpy M. Autio, City of Albuquerque

Assistant City Attorney Post Office Box 2248

City of Albuquerque Albuquerque, NM

Post Office Box 2248 87103-2248

Albuquerque, NM (505) 768-4500

87103-2248

(505) 768-4500

Counsel for Petitioner

Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 42-2831

QUESTION PRESENTED

Whether Congress has the power, consistent with this

Court’s view of the Establishment Clause, to condition its

grants of federal funds under the Older Americans Act

upon assurances by the States that “sectarian instruction”

or “religious worship” will not be allowed in senior cen-

ters that are constructed or renovated with federal

money?

TABLE OF CONTENTS

Page

Ousstion Presgmbeg «oss case sA Linianekes ete i

Tews OF AMINE as ok sa cist bebd eae iv

Opinions Dew 66606 SG ie wee ene 1

Fespbaetietions. : v.55. 450u cance shou eines Cleese eee 1

Statutes and Constitutional Provisions Involved.... 1

Statement of the Cael v.cccnckeuweceeupheneinaewees 2

Reasons for Granting the Writ ..............s.seees 6

I. THE DECISION OF THE COURT OF APPEALS

RAISES AN IMPORTANT QUESTION OF FED-

ERAL CONSTITUTIONAL LAW AS TO THE

POWER OF CONGRESS TO ENFORCE THE

ESTABLISHMENT CLAUSE AS A CONDITION

UPON THE EXPENDITURE OF FEDERAL

PUES 2 sind aeseivcesne eden oe eeiane eee 8

A. The Tenth Circuit’s Decision Rejecting

Application of The Older Americans Act

Conflicts With This Court’s Decision in

Tilton v. RICMAPEGOR. 65 cusses soaavane seuss 8

B. The Older Americans Act Prohibition on Sec-

tarian Activity is Appropriate Legislation

Establishment Clause Through Its Enforce-

ment Powers Under Section 5 of the Four-

teenth Asnernusnent 666 is ss ch ice a ka os *

C. The Older Americans Act Prohibition on Sec-

tarian Activity is a Valid Condition Upon the

Grant of Federal Funds Under Congress’

Spenaing POW. . 6ccscucdseipaetsane ses —

ill

TABLE OF CONTENTS - Continued

Page

Il. CONGRESS MAY PROHIBIT CORE RELIGIOUS

ACTIVITIES IN FEDERALLY-FUNDED SENIOR

CENTERS CONSISTENT WITH THIS COURT'S

CURRENT VIEW OF THE ESTABLISHMENT

AND FREE SPEECH CLAUSES. ................ 20

SESS a ee re eee ee REE Pee 26

INDEX TO APPENDICES

Appendix A United States Tenth Circuit Court of

Appeals Opinion. ..........66 sees ees la

Appendix B_ The United States District Court for

the District of New Mexico (D.C.

No. 94-CV-1101) Order Granting

Summary Judgment...............+5: 15a

Appendix C The United States District Court for

the District of New Mexico Repor-

ter’s Transcript of Proceeding, Vol-

ume II, Oral Decision of December

3 | rere rrr eri reas Tere ck 17a

Appendix D 42 U.S.C. § 3027 (1988). ...........--. 21a

Appendix E Affidavit of Lorraine R. Nunez in

Opposition to Motion For Prelimi-

nary Injunction and Transcript ....... 67a

Appendix F Affidavit of Kim H. Perdue in

Opposition to Motion for Prelimi-

nary Injunction ............+-++sse555 72a

TABLE OF AUTHORITIES

Page

Cases

Allegheny County v. Greater Pittsburgh ACLU, 492

Jc Se CROEE cc awh saiciun hense da pweneutcaueasenks 20

Board of Airport Commissioners v. Jews for Jesus, Inc.,

ele Big eer ere Ty Per eT pert ri 25

Bowen v. Kendrick, 487 U.S. 589 (1988)............... 11

Cantwell v. Connecticut, 310 U.S. 296 (1940).......... 13

Capital Square Review Board v. Pinette, 515 U.S. __,

S19 GAR BOM CRP oee iv ckacewas eb eaeinal scanned, 23

Cornelius v. NAACP Legal Defense & Educ. Fund,

G73 US. FOS ISR 6 cei ae CeCe eee eek 24

Employment Division v. Smith, 494 U.S. 872 (1990) .... 16

Everson v. Board of Education, 330 U.S. 1 (1947) ...13, 14

Fiest ow. Comen, S92 US. Go Tiseehe svc cccacvcisdsceset 14

Flores v. City of Boerne, Texas, 73 F.3d 1352 (5th Cir.

1996), petition for cert. filed, 65 U.S.L.W. 3017

(U.S. June 25, 1996) (No. 95-2074)............... FR

Hunt v. McNair, 413 U.S. 734 (1973)................. 11

Hutto v. Finney, 437 U.S. 678 (1978) ..............4.. 12

Katzenbach v. Morgan, 384 U.S. 641 (1966)....12, 13, 14, 15

Lamb’s Chapel v. Center Moriches Union Free School,

508 U.S. 384, 113 S.Ct. 2141 (1993)......... 22, 23, 24

Lynch v. Donnelly, 465 U.S. 668 (1984) ............... 20

McCulloch v. Maryland, 17 U.S. 316 (1819) ........... 13

TABLE OF AUTHORITIES - Continued

Page

Meese v. Keene, 481 U.S. 465 (1987).......-....--54-- 15

Perry Education Association v. Perry Local Educators’

Ass’n, 460 U.S. 37 (1983)....... ccc ccccceenseccane 25

Regan v. Taxation With Representation of Washington,

G1 U.S. SOO CIGGS) occ occ a ic ee een a dens 15

Rosenberger v. University of Virginia, 515 U.S. __,

118 S.Ct. 2510 (1995) 2... ceesccesevane 6, 9, 23, 24, 25

Rust v. Sullivan, 500 U.S. 173 (1991)....... 7, 445.400

Sasnett v. Sullivan, __ F.3d __, 1996 W.L. 432348

Be Be | eee wre rr ere eT rer rerre ere yrs ts 12

South Dakota v. Dole, 483 U.S. 203 (1987) ...... 7; 2

Tilton v. Richardson, 403 U.S. 672 (1971) ......... passim

U.S. Postal Service v. Greenburgh Civic Associations,

453 U.S. 114 (1981) «200 cee c cc cese ts tscenenes 19

United States v. Price, 383 U.S. 787 (1966)............ 13

Wallace v. Jaffree, 472 U.S. 38 (1985) .....--.. eee ee ee, 15

Widmar v. Vincent, 454 U.S. 263 (1981).... 11, 15, 22, 24

Zobrest v. Catalina Foothills School District, 509 U.S.

1, 2123 S.Ct. BAGZ (ISDS)... ccc s ce vevewccnsesegeces 6, 9

STATUTES:

U.S. Constitution:

Article 1, & Sone cds iasisanses ctesavedtan 2; if

y Dt, RS ERE Se Naeger eng ED ax Pah Deere Wee y ye oe

Asmniel: ATV, OS. isis van eae cevienecatass a; tm 3S

TABLE OF AUTHORITIES — Continued

Page

Y Bik tome Be ph Perry ree ere ree es ee 1

BO Usha Oe oe chee ee cceckinivebin rere 1

Oe Bae te BPs web eva ered 2b vb ba eas a aeeee wean 5

The Older Americans Act:

BOS ae ek ee rs ee eee rie mare 18

C2 Vicia | Ds is Arc ekeus ees fExy dees he ka ee 2

42 U.S.C. § 3027(a)(14)(A)(iv)(1988)............ re

eR Se a ee or ry, eer 8

Federal Regulations:

ee Rr.) yo ps wes Cr 9, 18

SS LAR. & AAS 6 Fs Akh s weak oe Cee 8

>. 4.2. B LORE ee 55 & Os cbs cde scab ve eeecebears 9

MISCELLANEOUS:

SP Come. Rac. S9GGs CieOes 66 p.ckiee sen ta teers hens 10

Or Come. Ret. 260GR SSRs) inks cakevecseweses sat seuss 13

Are Comm, Beet, TING «sen. cic eben cee aes veeeer kes 14

Older Americans Act (P.L. 95-478 (1978))........ passim

124 Cong. Rec. 33483; 33486-87; 33488; 33491;

34421; 13600; 22369; and 22410 (1978)............. 18

OPINIONS BELOW

The Court of Appeals issued its judgment on May 23,

1996, which is reported at 84 F.3d 1273, and is reproduced

in the Appendix to this petition, Pet. App. la. The oral

decision of the United States District Court for the Dis-

trict of New Mexico is reproduced in Pet. App. 17a, and

the district court’s order granting summary judgment in

favor of the City, entered December 16, 1994, is repro-

duced in Pet. App. 15a.

JURISDICTION

The judgment of the United States Court of Appeals

for the Tenth Circuit, reversing the United States District

Court for the District of New Mexico, was issued on May

23, 1996. Pet. App. 1a. This Court's jurisdiction is invoked

pursuant to 28 U.S.C. § 1254(1). Because the constitu-

tionality of 42 U.S.C. § 3027(a)(14)(A)(iv), has been drawn

into question by the decision of the Tenth Circuit, and

because the United States is not a party, 28 U.S.C.

§ 2403(a) may apply and a copy of this petition is being

served on the Solicitor General of the United States.

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED

This case involves the First Amendment to the

United States Constitution, which reads in relevant part

as follows:

Amendment I:

Congress shall make no law respecting an estab-

lishment of religion . . . or abridging the free-

dom of speech... .

This case involves the constitutionality of 42 U.S.C.

§ 3027, which is set forth in its entirety in the Pet. App.

21a.

This case also involves Sections 1 and 5 of the Four-

teenth Amendment, which read in relevant part as fol-

lows:

Amendment XIV:

Section 1. . . . No State shall . . . deprive any

person of life, liberty, or property, without due

process of law... .

Section 5. The Congress shall have power to

enforce by appropriate legislation, the provi-

sions of this article.

This case also involves questions under Congress’

spending power pursuant to Article I, Section 8, Clause 1,

which reads in relevant part as follows:

The Congress shall have Power To lay and col-

lect Taxes, Duties, Imposts and Excises, to pay

the Debts and provide for the common Defense

and general Welfare of the United States. .

STATEMENT OF THE CASE

The Older Americans Act conditions federal grants

under the Act upon recipient agencies giving assurances

that senior citizen centers constructed or renovated with

federal funds are not used for sectarian instruction or

religious worship. 42 U.S.C. § 3027(a)(14)(A)(iv) (1988).

Pet. App. 30a-31a. It has never been disputed that this

provision of the Act applies to the petitioners: City of

Albuquerque (City) senior centers have received funding

under the Act from the federal government, through the

State of New Mexico Agency on Aging, for, among other

purposes, renovation of City senior centers.

On February 11, 1994, Respondent Don Kimbro, then

Minister of Discipleship for the Respondent Church on

the Rock, a non-denominational evangelical church,

requested that he be allowed to teach a 13-week class on

the New Testament at a City senior center as part of the

regular programming for seniors sponsored by the City.

On March 24, 1994, Kimbro altered his request by asking

to show a two-hour film entitled Jesus and to distribute

large print Bibles to the center's “clientele”.!

There has never been any dispute that the Jesus film

constitutes the core religious activity of proselytizing.’

1 The requests were initially directed only to the Bear

Canyon Senior Center; however, in proceedings before the

district court, the challenge was later broadened to include all of

the City’s six senior centers.

2 The respondents were forthright in admitting their

purpose is religious proselytizing. The respondents candidly

admitted that their aim in attempting to use the Bear Canyon

Senior Center to show the Jesus film was “to share and spread

the Gospel of Jesus Christ” and to thereby obtain religious

converts. The Jesus film devotes primary attention to the

miracles of Christ, especially in healing the sick. Episodes

include the curing of the blind and lame, stopping a storm on

the Sea of Galilee, relieving a madman of his demons, creating

Viewers are asked to adopt the religious beliefs espoused

in the film and accept Christ as their savior. At the

conclusion of the film, the following process of religious

conversion is prescribed:

[E]xperience His love and forgiveness and

receive eternal life, you must receive Him as

God's sacrifice for your sin and invite Him to

come into your life by faith. If this is the desire

of your heart, you can pray a prayer of faith and

Jesus Christ will come into your life. This is a

suggested prayer. I will say it first:

Lord, Jesus, I need you. Thank you for

dying on the cross for my sins. I open the

door of my life and receive you as my Sav-

ior and Lord. Take control of my life, make

me the kind of person you want me to be.

Amen.

If this prayer expresses the desire of your heart

pray this prayer right now where you are, pray

after me silently as I repeat it one phrase at a

time:

Lord, Jesus, I need you. -

Thank you for dying on the cross for my

sins. -

I open the door of my life and receive you

as my Savior and Lord. -

food for the hungry, and curing an epileptic and a hunchback.

The film also focuses on the crucifixion and resurrection of

Christ in patently Christian terms, as the district court correctly

found.

Take control of life, make me the kind of

person you want me to be. -

Amen.

The last five minutes of the film have been transcribed,

Pet. App. 67a, and the film itself has been lodged with the

Court.

Pastor Kimbro’s requests were denied by the peti-

tioners on grounds the messages sought to be conveyed

were “sectarian instruction” and “religious worship” in

violation of the Older Americans Act and a City policy

that is a verbatim reflection of that Act. Pet. App. 72a,

1 3. (The Church on the Rock had previously shown the

film at another City-owned facility, which undisputably

was a public forum, and was offered the opportunity to

do so again at the same type forum; the Church declined

that offer.)

The Church on the Rock and Pastor Kimbro brought

suit under 42 U.S.C. § 1983. On December 16, 1994, the

district court heard arguments on the Church’s motion

for a preliminary injunction. At the conclusion of the

hearing, the Court converted the matter into one for

summary judgment, and entered summary judgment for

the City.$

The key findings of the district court pertinent to this

petition were: that the purposes of senior centers were

delineated by the Older Americans Act; that such pur-

poses did not include sectarian instruction nor religious

* The district court did not enter findings of fact nor

conclusions of law, but rather issued its decision from the bench,

which is attached hereto at Pet. App. 17a.

worship; that the Jesus film was “patently religious in

nature and is intended to spread the word that Jesus is

savior”; that the film’s primary purpose was to prosely-

tize; and, that the film was, therefore, sectarian instruc-

tion and could be properly excluded.

The Church on the Rock brought an appeal to the

United States Court of Appeals for the Tenth Circuit,

which on May 23, 1996, reversed the district court on

grounds the City policy constituted viewpoint discrimi-

nation.

The Tenth Circuit rejected the City’s reliance upon

the Older Americans Act, holding that the statutory com-

mands were an insufficient justification to exclude the

Church on the Rock’s speech. In doing so, the Court of

Appeals has jeopardized federal funding under the Older

Americans Act for the City and other government agen-

cies with programs under the Act. This petition follows.

REASONS FOR GRANTING THE WRIT

Language almost precisely the same as at issue in the

Older Americans Act has been found by this Court to be

coextensive with the Establishment Clause. Zobrest v. Cat-

alina Foothills School District, 509 U.S. 1, 113 S. Ct. 2462,

2465 n.7 (1993). In Tilton v. Richardson, 403 U.S. 672 (1971)

this Court upheld a condition placed on a Congressional

grant employing the same language as in the Older

Americans Act. Moreover, Congress uses the prohibition

against sectarian instruction and religious worship in a

host of grant statutes. See Rosenberger v. University of

Virginia, 515 U.S. __, 115 S.Ct. 2510, 2544 n.9 (1995)

(Souter, J., dissenting).

Against this background, the Tenth Circuit has boldly

declared that Congress lacks the power to condition its

appropriations upon state compliance with the Establish-

ment Clause. This Court has never directly addressed the

question of whether Congress possesses the power to

enforce the Establishment Clause by conditioning its dis-

bursal of federal funds, and should do so in this case.

This Court has held that incident to its power under

the spending clause, Congress is permitted to attach con-

ditions on the receipt of federal funds. South Dakota v.

Dole, 483 U.S. 203 (1987). In Rust v. Sullivan, 500 U.S. 173

(1991) this Court, more specifically, upheld a federal

funding program burdening speech against a viewpoint

discrimination challenge. The Tenth Circuit's invalidation

of Congress’ funding restriction in the Older Americans

Act is in conflict with these decisions.

By declaring that Congress may not attach such a

condition upon its appropriations, and thereby enforce

the Establishment Clause, the Tenth Circuit has also

brought itself into conflict with the Fifth Circuit's holding

in Flores v. City of Boerne, Texas, 73 F.3d 1352 (Sth Cir.

1996), petition for cert. filed, 65 U.S.L.W. 3017 (U.S. June 25,

1996) (No.95-2074), that Congress does have the power to

enforce the Free Exercise Clause under Section 5 of the

Fourteenth Amendment.

in short, this petition argues that the Tenth Circuit

erred in viewing this case through the lens of this Court's

public forum doctrine under the Free Speech Clause, and

should have properly analyzed it under the Establish-

ment Clause, as the latter Clause has been implemented

by Congress through the funding condition in the Older

Americans Act.

I. THE DECISION OF THE COURT OF APPEALS

RAISES AN IMPORTANT QUESTION OF FED-

ERAL CONSTITUTIONAL LAW AS TO THE

POWER OF CONGRESS TO ENFORCE THE

ESTABLISHMENT CLAUSE AS A CONDITION

UPON THE EXPENDITURE OF FEDERAL FUNDS.

A. The Tenth Circuit’s Decision Rejecting Applica-

tion of The Older Americans Act Conflicts With

This Court’s Decision in Tilton v. Richardson.

Title III, § 307(a)(14)(A)(iv), of the Older Americans

Act (42 U.S.C. § 3207(a)(14)(A)(iv) (1988)) provides that

agencies that receive federal money for senior centers

must assure the federal government that a senior center

“will not be used and is not intended to be used for

sectarian instruction or as a place for religious worship.”

Pet. App. at 30a-3la.

The Act creates a complex and detailed set of require-

ments for area agencies and state agencies to follow in

order to qualify for and receive grants; the Act does not

create a system incorporating an open-ended block grant

program, giving the states free reign to implement senior

programs. 42 U.S.C. §§ 3021-3030(r).*

* The Older Americans Act is implemented through federal

regulations at 45 C.F.R. §§ 1321.1-1321.83. The regulations

provide, among other things: that each area agency only engage

in activities which are consistent with its statutory mission (45

ft Ma

As this Court has recognized, the funding language

of the Older Americans Act is a standard requirement not

only of this Act but of a wide variety of federal grant

statutes. See Rosenberger v. University of Virginia, 515 U.S.

—__, 115 S.Ct. 2510, 2544 n. 9 (1995) (Souter, J., dissenting).

The Tenth Circuit’s decision has potentially cataclysmic

consequences for the local and state programs that are

funded under these statutes.

This Court has also recognized that this type of fund-

ing restriction by the federal government was designed to

implement the Establishment Clause. In Zobrest v. Catalina

Foothills School District, 509 U.S. 1, 113 S.Ct. 2462, 2464 n.7

(1993), this Court indicated it was persuaded that regula-

tory language, similar to the Older Americans Act, was

coextensive with the commands of the Establishment

Clause.

In Tilton v. Richardson, 403 U.S. 672 (1971), this Court

addressed the constitutionality of a Congressional grant

progam with the same conditioning language as to sec-

tarian instruction and religious worship. At issue was the

Higher Education Facilities Act of 1963, which authorized

grants for expansion of college facilities, but prohibited

monies for “any facility used or to be used for sectarian

instruction or as a place for religious worship. .. . ”

C.F.R. § 1321.17(f)(1)); that each area agency create one or more

visible “focal points” in the community where anyone can go to

obtain help or information on any aging issue, and where

possible these focal points will be senior centers (45 C.F.R.

§ 1321.53(c)); and that the area agency will insure that the

maximum number of services are provided at the focal points.

Id.

A plurality in Tilton agreed that the statute did not

violate the religion clauses by authorizing grants to

church-related colleges. However, in a portion of the

decision of relevance to this petition, eight members of

this Court agreed that the Establishment Clause was vio-

lated by the Act’s provisions limiting the government's

interest in covered facilities to a 20-year period, which

thereby allowed use of the facilities for sectarian pur-

poses after such period. This Court struck down that

restriction because it was “inadequate to ensure that the

impact of the federal aid will not advance religion.” 403

U.S. at 682.

As the legislative history examined in Tilton makes

clear, the prohibition on “sectarian instruction” and “reli-

gious worship” in federally-funded facilities reflected an

attempt by Congress to acknowledge the neutrality prin-

ciples that have reached full flower in this Court’s Estab-

lishment Clause jurisprudence. In debates before the

Senate on the Higher Education Facilities Act of 1963,

Senator Sam Ervin pressed amendments that would have

removed from eligibility grants for colleges that were

owned or controlled by religious denominations. 109

Cong. Rec. 19492 (1963). That attempt failed. The lan-

guage that is reflected in the Older Americans Act, and

elsewhere in federal grant programs, prevailed as a Con-

gressional compromise to allow federal funds to help

construct facilities on a neutral basis so long as core

religious activities were not promoted in the process. The

Tenth Circuit has now jeopardized this long-standing

accommodation.

The Tenth Circuit distinguished Tilton on the theory

that limitations on sectarian instruction and religious

OS a a a

worship in senior centers are subject to challenge on free

speech grounds. Church on the Rock, 84 F.3d at 1281. That,

however, begs the question of whether Congress can

legitimately prohibit what are in this case, undisputably,

core religious activities, such as Christian evangelism and

proselytizing, when they are presented in federally-

funded facilities in the context of senior center programs

that are permeated with government regulations and con-

trol.>

However, the nature of the forum is not, and should

not be, the issue. The issue is the power of Congress to

enforce the Establishment Clause through its funding

statutes. This Court has repeatedly upheld the constitu-

tionality of funding statutes that aided religious institu-

tions, so long as there were assurances that core religious

activities were not being furthered. Thus, this Court has

continued to read Tilton as allowing examination of a

government grant program to determine whether “partic-

ular applications” of a program result in government

sponsorship of sectarian practices. Bowen v. Kendrick, 487

U.S. 589, 601-602 (1988). See also Hunt v. McNair, 413 U.S.

734 (1973).

The “particular application” in this case is clear and

undisputed. In fact, the Church on the Rock proudly

agrees that what it is proposing is sectarian instruction

and proselytizing. The question then is simple, and need

not be burdened with forum analysis: Does Congress

° Widmar v. Vincent, 454 U.S. 263 (1981), relied upon by the

Tenth Circuit in distinguishing Tilton, did not involve an

attempt, as here, to insert core religious activities into the heart

of a federally regulated and funded program.

have the power to enforce the Establishment Clause to

restrict core religious activities at federally-funded facili-

ties?

B. The Older Americans Act Prohibition on Sec-

tarian Activity is Appropriate Legislation

lishment Clause Through Its Enforcement

Powers Under Section 5 of the Fourteenth

Amendment.

Section 5 of the Fourteenth Amendment states that

“(t]he Congress shall have power to enforce, by appropri-

ate legislation, the provisions of this article.” U.S. Const.

Amend XIV, § 5. The issue of whether Congress’ power

under Section 5 of the Fourteenth Amendment is the

same when it acts to enforce an incorporated right as

when it acts to remedy a violation of the Fourteenth

Amendment has not been expressly decided by this

Court. See Hutto v. Finney, 437 U.S. 678, 718 (1978) (Rehn-

quist, J., dissenting).

This Court has expressed that Congress’ Section 5

powers were included to confer “the same broad powers

expressed in the Necessary and Proper Clause.” Katzen-

bach v. Morgan, 384 U.S. 641, 650 (1966). Thus, in the

recent words of Judge Posner, the enforcement clause

empowers Congress to act to give “practical efficacy” to a

constitutional right. Sasnett v. Sullivan, __ F.3d __, 1996

W.L. 432348 (7th Cir. 1996). In upholding RFRA in Flores

the Fifth Circuit concluded: “Section 5 does not place

conditions on Congress’ authority to enforce the amend-

ment. Congress has the power to enforce ‘the provisions

of this article,’ not just the Equal Protection Clause.” 73

F.3d at 1358 (citing United States v. Price, 383 U.S. 787, 789

(1966)).

The question for this Court must be whether Con-

gress’ enforcement of the Establishment Clause in the

funding provision of the Older Americans Act is valid

under the three-part test announced in Morgan, 384 U.S.

at 650, an inquiry that this Court has fashioned to assure

that Congressional acts are consonant with the principles

of legislative power announced in McCulloch v. Maryland,

17 U.S. 316, 421 (1819).

The first inquiry under Morgan is whether the fund-

ing restriction “may be regarded” as an enactment to

enforce the Fourteenth Amendment. This Court has seen

fit to incorporate the liberty interests protected by the

First Amendment into the fundamental concept of liberty

embodied in the Fourteenth Amendment. Cantwell v. Con-

necticut, 310 U.S. 296, 303 (1940). The Establishment

Clause was specifically incorporated in Everson v. Board of

Education, 330 U.S. 1 (1947).

Based upon the legislative history outlined in Tilton,

for the same Congressional language, there can be little

doubt that Congress enacted the funding restrictions in

the Older Americans Act in order to enforce the Estab-

lishment Clause violations that it saw lurking in unfet-

tered grants for construction or renovation of senior

centers. See 109 Cong. Rec. 14962 (1963) (comments of

Rep. Quie).

Incorporation of First Amendment guarantees into

the Fourteenth Amendment has resulted in a flood of

religion cases that, arguably, this Court should not have

been required to address. It is only reasonable, therefore,

that Congress ought to have some role, in this area of

constitutional uncertainty.

Thus, under the second prong of the Morgan test,

funding restrictions under the Older Americans Act are

also “plainly adapted” to what Congress perceived as its

role in ensuring proper application of funds it has appro-

priated. Morgan, 384 U.S. at 652. This Court-has recog-

nized only one restriction on the power of Congress to

tax and spend, and that restriction is the Establishment

Clause. Flast v. Cohen, 392 U.S. 83, 105 (1968). Given this

limitation, it is only reasonable that Congress have

attached conditions upon monies spent by it so as to

prevent violations of the Establishment Clause.

When it enacted the funding condition in the Older

Americans Act in 1978, Congress clearly had fresh in its

mind the very debate that had generated the language in

the Higher Education Facilities Act of 1963 that was

enforced in Tilton. The Senate debate on that Act demon-

strates that in rejecting the absolutist approach of Senator

Ervin, in favor of a narrow ban on “sectarian instruction”

and “religious worship”, Congress was guided by neu-

trality principles underlying this Court’s opinion in, for

example, Everson v. Board of Education, 330 U.S. 1, 17

(1947) (“[W]e cannot say that the First Amendment pro-

hibits New jersey from spending tax-raised funds to pay

the bus fares of parochial school pupils as part of a

general program under which it pays the fares of pupils

attending public and other schools.”). See 109 Cong. Rec.

19494 (Remarks of Sen. Ribicoff) (“Without a doubt, we in

Congress are striving to achieve a secular purpose when

we seek to improve the educational opportunities for our

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nation’s colleges. . . . Aid for the religious aspects of

church related colleges has been specifically excluded”).

This neutrality principle now informs the Court's

increasing reliance upon an endorsement standard for

adjudicating cases under the Establishment Clause. As

will be demonstrated below in Section II, the funding

restriction of the Older Americans Act is entirely consis-

tent with this Court’s current views. See, e.g., Wallace v.

Jaffree, 472 U.S. 38, 50-52 (1985) (O’Connor, J., concur-

ring).

The third inquiry under Morgan is whether the fund-

ing restriction is consistent “with the letter and spirit of

the constitution.” Under Morgan, Section 5 does not grant

Congress power to enact statutes that dilute the guaran-

tees of the Fourteenth Amendment. Morgan, 384 US. at

651 n.10.

The funding restriction of the Older Americans Act

burdens the exercise of free speech, but not in an imper-

missible manner. This Court has recognized that govern-

ment serves a compelling interest in enforcing the

Establishment Clause, and may thereby sometimes bur-

den free speech. Widmar v. Vincent, 454 US. 263, 271

(1981). See also Meese v. Keene, 481 U.S. 465 (1987) (foreign

film may be barred as “political propaganda” under For-

eign Agents Registration Act even though such action

restricts free speech); Regan v. Taxation With Representation

of Washington, 461 U.S. 540 (1983) (I.R.S. statute granting

tax exemption for non-profit organizations that do not

engage in substantial lobbying activities not a violation of

the First Amendment).

In implementing the Establishment Clause in the

Older Americans Act, Congress has not overturned this

Court’s precedent as done by Congress in RFRA. The

Older Americans Act does not tread upon this Court’s

long-recognized principle that “neutral laws of general

applicability”, with incidental religious benefits, should

be protected from attack under the Establishment Clause.

Rather, under the Older Americans Act, again using

the legislative history explicated in Tilton, Congress has

seen fit to create a neutral funding program of general

application, but has stated its limits as to core religious

activities in a manner that is consistent with this Court’s

Establishment Clause precedents. By analogy, this is pre-

cisely the result allowed by this Court in Employment

Division v. Smith, 494 U.S. 872 (1990).

In Smith, this Court held that a generally applicable,

neutral criminal law that has the effect of burdening

religious practices under the Free Exercise Clause need

not be justified by a compelling governmental interest. By

the same token, there is no question that Congress’ fund-

ing restriction under the Older Americans Act burdens

the exercise of free speech. Therefore, there is no reason

to judge the Older Americans Act by any higher standard

than this Court used to judge the act of the Oregon

legislature in Smith. This Court also was clear in Smith

that “[w]Je have never held that an individual’s religious

beliefs excuse him from compliance with an otherwise

valid law prohibiting conduct that the State is free to

regulate.” 494 U.S. at 878-879. This Court gave proselytiz-

ing as an example of the religious conduct that the gov-

ernment may regulate. 494 U.S. at 877.

Congress’ enforcement of the Establishment Clause

through the grant condition of the Older Americans Act

is, therefore, a necessary and proper exercise of its Sec-

tion 5 power.

C. The Older Americans Act Prohibition on Sec-

tarian Activity is A Valid Condition Upon the

Grant of Federal Funds Under Congress’ Spend-

ing Power.

The Tenth Circuit in this case has prohibited the

application of a federal statute that places conditions

upon the expenditure of federal funds. As such, the Tenth

Circuit’s decision must withstand scrutiny under this

Court’s recent pronouncements in South Dakota v. Dole,

483 U.S. 203 (1987), and Rust v. Sullivan, 500 U.S. 173

(1991).

In Dole, this Court sustained a federal statute allow-

ing Congress to withhold a percentage of federal high-

way funds to states allowing persons under age 21 to

purchase or possess alcohol since Congress was acting

indirectly under its spending power even though it may

not directly regulate the drinking age. Such action is

permissible, this Court stated, so long as Congress acts

(1) in pursuit of “the general welfare”; (2) unambiguously

and in such a fashion to enable the states to exercise their

choice knowingly; (3) so that the conditions on federal

grants are related to the particular program; and (4) so

that the condition does not violate an independent consti-

tutional barrier.

In the present case there can be no doubt that condi-

tional funding under the Older Americans Act is in pur-

suance of the general welfare and is clearly related to the

federal program of providing services to elderly Ameri-

cans through a facility that is designed to be a focal point

for their needs. The legislative history at the time Con-

gress inserted the grant condition into the Older Ameri-

cans Act (P.L. 95-478 (1978)) makes clear that Congress

was creating senior centers as focal points for the provi-

sion of services under the Act and had the general wel-

fare of the elderly in mind. 124 Cong. Rec. 33483 (Rep.

Green); 33486-87 (Rep. Pepper); 33488 (Rep. Wampler);

33491 (Rep. Bonker); 34421 (Sen. Chafee); 13600 (Rep.

Hammerschmidt); 22369 (Sen. Chafee); and 22410 (Sen.

Biden) (1978). Moreover, the condition itself is directly

related to the appropriate Congressional goal of limiting

use of senior centers to the purposes legislatively

defined. See 42 U.S.C. § 3002(35); 45 C.F.R. § 1321.17(f)(1).

The independent constitutional bar relied upon by

the Tenth Circuit is the Free Speech Clause. However, in

Rust this Court rejected the viewpoint discrimination

argument lodged against a federal regulation that

restricted discussion of abortion under a federal statute

setting up grants for family planning. This Court stated:

“Within far broader limits than petitioners are willing to

concede, when the Government appropriates public

funds to establish a program it is entitled to define the

limits of that program.” 500 U.S. at 194. This Court, thus,

determined that the funding restriction was “designed to

ensure that the limits of the federal program are

observed” and to restrict “activities outside the project's

scope”. 500 U.S. at 193-194.

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This Court further stated:

To hold that the Government unconstitutionally

discriminates on the basis of viewpoint when it

chooses to fund a program dedicated to advance

certain permissible goals, because the program

in advancing those goals necessarily discour-

ages alternative goals, would render numerous

Government programs constitutionally suspect.

When Congress established a National Endow-

ment for Democracy to encourage other coun-

tries to adopt democratic principles, . . . it was

not constitutionally required to fund a program

to encourage competing lines of political philos-

ophy such as communism and fascism.

500 U.S. at 194.

Clearly, no less can be said of Congress’ implementa-

tion of the Establishment Clause. The petitioners are not

required to open senior centers for uses beyond those for

which they are lawfully dedicated. U.S. Postal Service v.

Greenburgh Civic Associations, 453 U.S. 114 (1981). In addi-

tion, the petitioners offered the Church on the Rock alter-

nate forums for their speech. As recognized in Dole, the

petitioners were not forcing the Church on the Rock to

give up their religious speech; they merely were requir-

ing that the Church “keep such activities separate and

distinct from [Older Americans Act] activities.” 500 U.S.

at 196.

In short, the Tenth Circuit’s decision cannot with-

stand scrutiny under this Court’s conditional funding

cases, and should be reversed.

Il. CONGRESS MAY PROHIBIT CORE RELIGIOUS

ACTIVITIES IN FEDERALLY-FUNDED SENIOR

CENTERS CONSISTENT WITH THIS COURT’S

CURRENT VIEW OF THE ESTABLISHMENT AND

FREE SPEECH CLAUSES.

This Section of the petition argues that within the

context of federally-funded and City-administered senior

center programs, the practice of patent sectarian pros-

elytizing and worship would be perceived by the reason-

able observer as carrying government support and

endorsement. Consequently, the funding restriction in the

Older Americans Act, as it is administered by the City, is

entirely consistent with this Court’s present view of the

limits of the Establishment Clause.

“Every government practice must be judged in its

unique circumstances to determine whether it constitutes

an endorsement or disapproval of religion.” Lynch v. Don-

nelly, 465 U.S. 668, 694 (1984) (O’Connor, J., concurring).

The Tenth Circuit has defaulted in not analyzing this case

as involving a violation of the Establishment Clause,

which is within Congress’ prerogative to enforce.

This Court has increasingly hinged its Establishment

Clause analysis upon the degree and extent of govern-

ment support and endorsement of religious speech. Thus,

in Allegheny County v. Greater Pittsburgh ACLU, 492 U.S.

573, 600 n.50 (1989), the central focus of this Court’s

endorsement analysis was that the Grand Staircase was

not a place “in which all were free to place their displays”

and that the presence of a creche there under those cir-

cumstances served to associate the government with the

display.

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In the case of senior centers, petitioners have never

permitted sectarian proselytizing or worship. Allowance

of non-sectarian, non-proselytizing educational classes on

Tai Chi, meditation, counseling or metaphysics does not

amount to an “open door” sufficient to negate the impres-

sion of government endorsement. This is especially true

where the facts reflect that the Church on the Rock

attempted to first insinuate itself into the very senior

center programs to conduct a 13-week class on the New

Testament, and, then, to show its Jesus film. At no time

did the Church ever indicate that it wanted to exhibit the

film outside the regular senior center hours or programs,

which are all approved, sponsored and produced by the

City after being advertised in City-published catalogs.

Neither did the Church ever indicate that it wanted to

show the film to anyone other than senior center program

participants. There was no dispute that Church on the

Rock was an “outside” organization with no ties to the

senior centers, although Pastor Kimbro did join the Bear

Canyon Senior Center after his lawsuit was filed. The

Church never requested use of senior center space for

after-hours meetings for itself as an “outside” group.

Each City senior center publishes an Activities Cata-

log and Calendar of events. In the normal course, the

Church’s proposed class or film would be placed in the

Catalogs and Calendars as part of the City center pro-

gram. The City Catalog welcomes seniors to the centers

and, for example, states at the top of the first page “Bear

Canyon Senior Center is operated by the City of Albu-

querque, Department of Community Services, Office of

Senior Affairs.” Each catalog identifies all the programs

as “City” programs and lists all of the services the City

provides.

The City has never allowed unrestricted access to

senior centers by outside groups or organizations, and

enforces a variety of general restrictions on use in addi-

tion to the funding guidelines of the Older Americans

Act.®

These facts remove this case from the “after-hours”,

religion-neutral, open forum situations that were evident

in Widmar v. Vincent, 454 U.S. 263, 274 (1981) (“the forum

is available to a broad class of nonreligious as well as

religious speakers; there are over 100 recognized student

groups at UMKC”); Lamb's Chapel v. Center Moriches Union

Free School, 508 U.S. 384, 113 S.Ct. 2141, 2147 (1993) (“The

showing of this film would not have been during school

hours, would not have been sponsored by the school, and

6 Only seniors who become members of the centers can

participate in City programs. The City designs the senior

programs it offers, and receives input from advisory councils

comprised of seniors who are members of the centers as

required by the Older Americans Act. The only allowed non-

program uses of City senior centers are for after-hours use of

meeting rooms for senior support groups whose membership is

at least 75% seniors 55 years old or older to discuss only senior

issues, and, on occasion, City policymakers. Examples of groups

are the American Association of Retired Persons, a Recreational

Vehicle Club and Alzheimers Support Group. The Centers are

staffed at all times by city employees who operate programs

including meal services, frail elderly day care services,

recreation services and health services. No for-profit businesses

are allowed to use the facilities except for limited senior-related

advertising on bulletin boards. The City does not allow political

speeches by single candidates and restricts the distribution of

campaign literature. Pet. App. 74a-75a.

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would have been open to the public, not just to church

members.”), Rosenberger v. University of Virginia, 515 U.S.

— —~ 115 S.Ct. 2510, 2522, 2524 (1995) (“The object of

the SAF is to open a forum for speech and to support

various student enterprises”; “the student publication is

not a religious institution . . . and it is not a religious

organization as used in the University’s own regula-

tions”), and in Capital Square Review Board v. Pinette, 515

U.S. __, 115 S.Ct. 2440, 2448 (1995) (“Capital Square is a

genuinely public forum, and has been widely used as a

public forum for many, many years”), facts all of which

persuaded this Court that the speech in those cases was

not being endorsed by the government. In this case, a

reasonable observer would believe that a proselytizing

message inserted so directly into senior center program-

ming was being endorsed and sponsored by the City.

As the basis for its conclusion that the Church on the

Rock’s message was “sectarian instruction”, the district

court, found that the Jesus film was “patently religious in

nature and is intended to spread the word that Jesus is

the savior” and that “the film’s primary purpose is to

proselytize”. In doing so, the district court determined

that conduct which violated the Establishment Clause

was not within the legislatively defined purposes of

senior centers and could be validly excluded.

The film Jesus is a two-hour depiction of the life of

Jesus, which Pastor Kimbro characterized as “based on

the Gospel of Luke from the Bible.” This is, by admission,

a Christian evangelical film. It is not about family values

or child-rearing, albeit with a religious slant, as was the

case in Lamb's Chapel. (The description of the film series

in Lamb’s Chapel contained only one reference to “a loving

God.” 113 S.Ct. at 2145 n.3.)

Senior centers are not places where the City has

previously allowed in a “wide array of non-religious,

anti-religious and competing religious viewpoints” — let

alone blatant proselytizing — so as to obviate the image of

government endorsement. Rosenberger, 115 S.Ct. at 2527

(O’Connor, J., concurring). The district court found that

the City had never previously allowed core religious

speech at any of its senior centers. Thus, there is nothing

in this case that would indicate a “long-standing prac-

tice” that would dissuade the reasonable observer that

the Church on the Rock’s message was being endorsed by

the City; there are no indicators to counter the obvious

fact that the government is making an exception to

accommodate a patently Christian message in a place that

has never allowed such messages before.

Thus, Tilton retains its full force in this case. This was

not an “open-forum” case that would bring it within the

Widmar exception. The Tenth Circuit, in its de novo review

of the grant of summary judgment in this case, failed to

recognize the overwhelming evidence that this case was,

first and last, one that must be analyzed under the federal

statute as embodying the Establishment Clause.

The Tenth Circuit’s attempt to portray this case as a

violation of free speech and as viewpoint discrimination

collapses under the sheer weight of the Establishment

Clause violation. Under this Court's limited public forum

analysis, property remains a nonpublic forum as to all

unspecified uses, Cornelius v. NAACP Legal Defense &

aS anette

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Educ. Fund, 473 U.S. 788, 802 (1985); Perry Education Asso-

ciation v. Perry Local Educators’ Ass'n, 460 U.S. 37, 48

(1983), and exclusion of uses, even if based upon subject

matter of the speaker's identity, need only be reasonable

and viewpoint-neutral. See Board of Airport Commissioners

v. Jews for Jesus, Inc., 482 U.S. 569, 573 (1987).

This Court’s opinion in Rosenberger does not change

this analysis as it relates to the enforceability of the Older

Americans Act. The regulation of speech in Rosenberger

barred all “religious activity” that “primarily promotes or

manifests a particular belief in or about a deity or an

ultimate reality.” 115 S.Ct. at 2515. It was the breadth of

this regulation that persuaded this Court that it was an

unconstitutional suppression of free speech. 115 S.Ct. at

2515-2520.

The regulation in Rosenberger, however, was consid-

erably broader than the Older Americans Act, which

narrowly captures “sectarian instruction” and “religious

worship”. Pursuant to that statute, petitioners have never

allowed into its senior centers sectarian instruction, or, to

be more exact, Christian proselytizing, and the district

court so held. Therefore, the Tenth Circuit has misapplied

this Court’s precedent in believing that forum analysis

controlled an obvious violation of the Establishment

Clause that the City appropriately regulated through a

constitutional federal statute.

€

CONCLUSION

For the foregoing reasons, a writ of certiorari should

issue to review the judgment of the United States Court

of Appeals for the Tenth Circuit.

Respectfully Submitted,

Wituiam D. WinteR*

Assistant City Attorney

City of Albuquerque

Post Office Box 2248

Albuquerque, NM 87103-2248

Telephone: (505) 768-4500

Rosert M. Wuirte, City Attorney

City of Albuquerque

Post Office Box 2248

Albuquerque, NM 87103-2248

Telephone: (505) 768-4500

Ranpy M. Autio

Assistant City Attorney

City of Albuquerque

Post Office Box 2248

Albuquerque, NM 87103-2248

Telephone: (505) 768-4500

Counsel for Petitioner

*Counsel of Record

1 la

APPENDIX A

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CHURCH ON THE ROCK; DON

KIMBRO, Pastor,

Plaintiffs-Appellants, No. 95-2009

)

CITY OF ALBUQUERQUE; TONI ?

MARTORELLI, in her official

capacity as Director of Family and

Community Services for the City )

of Albuquerque; MARK )

SANCHEZ, in his official capacity )

as Deputy Director of Family and

Community Services for the City )

of Albuquerque; KATHLEEN )

STARK, in her official capacity as

Supervisor, Bear Canyon Senior )

Center, City of Albuquerque,

)

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF NEW MEXICO

(D. C. No. 94-CV-1101)

Benjamin W. Bull, The American Center for Law and

Justice, Phoenix, Arizona (Jay Alan Sekulow, The Ameri-

can Center for Law and Justice, Washington, DC, Nikolas

T. Nikas, The American Center for Law and Justice, Phoe-

nix, Arizona, and Paul F. Becht, Becht Law Firm, Albu-

querque, NM, with him on the briefs) for the Appellants.

William D. Winter, Assistant City Attorney (Robert M.

White, City Attorney, with him on the brief) Albuquer-

que, NM, for the Appellees.

Before TACHA, LOGAN, and REAVLEY,* Circuit Judges.

TACHA, Circuit Judge.

Plaintiffs Church on the Rock and Pastor Don Kimbro

(“Church on the Rock”) brought suit under 42 U.S.C.

§ 1983 alleging that defendants the City of Albuquerque

and its agents (“the City”) denied Church on the Rock’s

First Amendment right to free expression at City Senior

Centers. The district court granted summary judgment in

favor of the City on all claims. Church on the Rock now

appeals, arguing that the City’s policy prohibiting “sec-

tarian instruction and religious worship” at City Senior

Centers violates the First Amendment. We exercise juris-

diction pursuant to 28 U.S.C. § 1291 and reverse.

* The Honorable Thomas M. Reavley, Senior Circuit Judge,

United States Court of Appeals for the Fifth Circuit, sitting by

designation.

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I. Background

The City owns and operates six Senior Centers. The

centers are multipurpose facilities that provide forums

for lectures, classes, movies, crafts, bingo, dancing, physi-

cal exercise, and other activities. To become a member of

a Senior Center, one need only fill out an application. The

sole requirement for membership is that a person be at

least fifty-five years old or be married to a member who

is at least fifty-five years old. People who use the Senior

Centers do not reside there, and all of the programs are

voluntary.

Many of the programs at the Senior Centers are orga-

nized and sponsored by private individuals or organiza-

tions. Senior center policies permit non-member groups

to use the centers for classes and other activities if the

subject matter is “of interest to senior citizens.” Alter-

natively, groups may use the Senior Centers without

regard to this subject matter requirement if they are com-

posed of seventy-five percent or more senior citizens.

Nonmembers or persons under fifty-five years of age

may conduct classes, and people who deliver lectures or

teach classes are also permitted to distribute literature.

The range of subjects that qualify as being “of inter-

est to senior citizens” is quite broad. The Senior Centers’

activities catalogs list many of the programs that meet

this requirement, such as Amateur Radio, Ceramics, Chi-

nese, Choral Group, Economics, El Abuelo - The Clown

of Spanish Culture, Fishing, Medicare/Health Insurance

Counseling, Myth of the Hanging Tree, and Plants and

People of New Mexico. The catalogs also include a

number of classes and presentations in which religion or

religious matters are the primary focus: Bible as Litera-

ture, Myths and Stories About the Millennium, Theoso-

phy, and A Passover Commemoration (an oratorio). The

catalogs encourage “ideas for new classes and programs”

as well.

On March 24, 1994, Pastor Kimbro, a citizen over the

age of fifty-five, requested permission from Kathleen

Stark, the supervisor of the Bear Canyon Senior Center, to

show a two-hour film entitled Jesus. The film recounts the

life of Jesus Christ as described in the Gospel of Luke. At

the conclusion of the story, a voice-over narrator makes

affirming statements such as, “Jesus is exactly who he

claimed to be — the Son of the Lord, the Savior of all

mankind.” The narrator then invites viewers to adopt the

Christian religion and to join him in a short prayer.

Kimbro also requested permission to give away giant-

print New Testaments to persons attending the film.

On May 18, 1994, after reviewing the film, Mark

Sanchez, the City’s Deputy Director of Family and Com-

munity Services, denied Kimbro’s requests. Sanchez

stated that City policy prohibited the use of Senior Cen-

ters “for sectarian instruction or as a place for religious

worship.” The City adopted this policy to conform with

the terms of the Older Americans Act. The Older Ameri-

cans Act provides federal funding to the states for multi-

purpose senior centers, but requires, as a condition for

receiving such funding, that the “facility will not be used

and is not intended to be used for sectarian instruction or

as a place for religious worship.” 42 U.S.C.A.

§ 3027(a)(14)(A)(iv).

In keeping with this directive, Senior Center person-

nel screen programs for sectarian instruction or religious

worship before allowing them at the Senior Centers.

Senior Center employees also monitor presentations for

religious content by sitting in on classes and entertaining

objections from Senior Center members who call atten-

tion to expression falling into one of these forbidden

categories. When Senior Center employees determine that

presentations are too religious in nature, they intervene

to stop the presentations. There are no official criteria or

written standards to assist them in deciding whether or

not expression constitutes “sectarian instruction” or “reli-

gious worship.”

Church on the Rock filed this suit seeking declara-

tory and injunctive relief. The district court granted sum-

mary judgment in favor of the City. In its decision, the

court assumed without deciding that the Senior Center is

a designated limited public forum. The court stated that

the purpose of the Senior Center does not include sec-

tarian instruction, and that the primary purpose of the

film Jesus is to proselytize. The court concluded that the

film constitutes sectarian instruction and that the City

may therefore exclude the film on the ground that its

subject matter is not within the purpose of the Senior

Centers. The court also held that the City’s restriction is

not viewpoint-based because the City does not permit

sectarian instruction from any religious perspective. This

appeal followed.

Il. The Degree of First Amendment Protection

Afforded to the Expression

We review the district court’s grant of summary judg-

ment de novo. Cannon v. City and County of Denver, 998

F.2d 867, 870 (10th Cir. 1993). We begin our analysis by

noting that the speech in question is entitled to First

Amendment protection. It is well established that reli-

gious worship and discussion are forms of speech and

association protected by the First Amendment. Widmar v.

Vincent, 454 U.S. 263, 269 (1981); Heffron v. International

Soc. for Krishna Consciousness, 452 U.S. 640, 647 (1981). The

City argues that the proselytizing religious speech in the

film Jesus enjoys a lesser degree of First Amendment

protection than does religious speech that is not intended

to recruit new believers. The Supreme Court, however,

has rejected the notion that speech about religion, reli-

gious speech designed to win converts, and religious

worship by persons already converted should be treated

differently under the First Amendment. Widmar, 454 U.S.

at 269 n. 6; see also Lamb's Chapel v. Center Moriches Union

Free School District, 113 S. Ct. 2141, 2148 (1993) (describing

the fear that proselytizing by a “radical” church might

cause unrest as “difficult to defend as a reason to deny

the presentation of a religious point of view about a

subject the District otherwise makes open to discussion

on District property”). The City’s policy, then, restricts

speech that is entitled full protection under the First

Amendment.

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Ill. The Nature of the Forum

The government's ability to restrict protected speech

by private persons on government property depends, in

part, on the nature of the forum. Cornelius v. NAACP Legal

Defense & Educ. Fund, 473 U.S. 788, 797 (1985). The threc

types of forums that may exist on government property

are traditional public forums, designated public forums,

and nonpublic forums. Id. at 802. Traditional public

forums are places such as streets and parks that “by long

tradition . . . have been devoted to assernbly and debate.”

Perry Educ. Assn. v. Perry Local Educators’ Assn., 460 U.S.

37, 45 (1983). Designated public forums are those “created

by government designation of a place or channel of com-

munication for use by the public at large for assembly

and speech, for use by certain speakers, or for the discus-

sion of certain subjects.” Cornelius, 473 U.S. at 802. Thus,

designated public forums may be limited in terms of

participants and in terms of subject matter. University

facilities opened for meetings of registered student orga-

nizations qualify as a designated public forum, Widmar,

454 U.S. at 267-68, as do public school classrooms that are

available to the general public outside of school hours for

limited purposes, Lamb’s Chapel, 113 S. Ct. 2141, 2146-47.

In Rosenberger v. Rector & Visitors of Univ. of Va., 115 S. Ct.

2510 (1995), the Supreme Court treated a university's

student activities fund as a designated public forum,

albeit “more in a metaphysical than in a spatial or geo-

graphic sense.” Id. at 2517. A nonpublic forum is govern-

ment property that is not by tradition or designation a

forum for public communication. Perry, 460 U.S. at 46.

The Bear Canyon Senior Center is a designated pub-

lic forum. It may not be classified as a traditional public

forum because it is not a traditional location of public

debate or assembly. It is, however, a place that has been

opened to the public for discussive purposes. The City

has permitted lectures and classes on a broad range of

subjects by both members and non-members at its Senior

Centers. The City limits this designated public forum in

two ways. First, the City imposes an age requirement for

participation, although this limitation is rather flexible

where groups or spouses are involved. Second, the City

limits the subject matter of presentations to topics “of

interest to senior citizens.” The subject matter limitation

has also been extremely flexible in practice, as evidenced

by the long list of diverse topics that have been presented

in the past.

IV. The Nature of the City’s Restriction

Having classified the type of forum involved, we

now turn to the type of restriction that the City has

imposed. The Senior Center Policies and Procedures

Manual from the City’s Office of Senior Affairs includes

the following directive: “It is prohibited to use any OSA

facility for sectarian instruction or as a place for religious

worship.” The City contends that this policy is a restric-

tion based upon content, not viewpoint, because it disal-

lows all sectarian instruction and religious worship in its

Senior Centers, regardless of the particular religion

involved. The Supreme Court, however, has rejected simi-

lar arguments. In Lamb’s Chapel, for example, the Court

noted that the mere fact that a regulation categorically

treats all religions alike does not answer the critical ques-

tion of whether viewpoint discrimination exists between

religious and nonreligious expression. 113 S. Ct. at 2147.

Sa ee ee ne aN eee SO Re eee PT ee ee Or

eS ee

fie PG ae yd caked ach

Here, the City had already opened the doors of its Senior

Centers to presentations about religion, such as The Bible

as Literature and Myths and Stories About the Millen-

nium. The City allowed speakers at Senior Centers to

discuss the Bible from a “strictly historical” perspective

and to address religion as long as such presentations

could be characterized as “a literature discussion or ¢

philosophical discussion.” The film Jesus dealt with sub-

ject matter similar to that which would be included in a

class on the Bible as literature. The film ran afoul of City

policy, however, by advocating the adoption of the Chris-

tian faith. In contrast, a film about Jesus’s life that ended

on a skeptical note and urged agnosticism or atheism

would not have contravened the City’s policy. Because

“(t]he prohibited perspective, not the general subject mat-

ter” triggered the decision to bar the private expression,

Rosenberger, 115 S. Ct. at 2517, the City’s policy is prop-

erly analyzed as a viewpoint-based restriction on speech.

Moreover, even if the City had not previously opened

the Senior Centers to presentations on religious subjects,

its policy would still amount to viewpoint discrimination.

Any prohibition of sectarian instruction where other

instruction is permitted is inherently non-neutral with

respect to viewpoint. Instruction becomes “sectarian”

when it manifests a preference for a set of religious

beliefs. Because there is no nonreligious sectarian instruc-

tion (and indeed the concept is a contradiction in terms),

a restriction prohibiting sectarian instruction intrinsically

favors secularism at the expense of religion. Therefore,

we conclude that the City’s policy constitutes viewpoint

discrimination. |

10a

V. The Appropriate Level of Judicial Scrutiny

The government bears a particularly heavy burden in

justifying viewpoint-based restrictions in designated pub-

lic forums. Viewpoint discrimination is “an egregious

form of content discrimination.” Rosenberger, 115 S. Ct. at

2516. Content-based restrictions are subject to strict scru-

tiny. See United States v. Kokinda, 497 U.S. 720, 726-27

(1990); Perry, 460 U.S. at 46. Viewpoint-based restrictions

receive even more critical judicial treatment. As the

Supreme Court noted in Rosenberger:

The necessities of confining a forum to the lim-

ited and legitimate purposes for which it was

created may justify the State in reserving it for

certain groups or for the discussion of certain

topics. . . . [I]n determining whether the State is

acting to preserve the limits of the forum it has

created so that the exclusion of a class of speech

is legitimate, we have observed a distinction

between, on the one hand, content discrimina-

tion, which may be permissible if it preserves

the purposes of that limited forum, and, on the

other hand, viewpoint discrimination, which is

presumed impermissible when directed against

speech otherwise within the forum’s limitations.

115 S. Ct. at 2516-2517 (citations omitted). While the

Court did not explain what, precisely, the government

must show in order to overcome this heavy presumption,

it did indicate that the necessity of complying with

another clause of the Constitution - the Establishment

Clause — would excuse a viewpoint-based restriction on

speech. Id. at 2520. We understand Rosenberger to mean

that courts must examine viewpoint-based restrictions

with an especially critical review of the government's

lla

asserted justifications for those restrictions. At a mini-

mum, to survive strict scrutiny the City’s policy must be

“narrowly drawn to effectuate a compelling state inter-

est.” Perry, 460 U.S. at 46.

VI. The City’s Justifications for its Policy

The City offers three justifications for its policy pro-

hibiting religious expression. First, the City asserts that

the policy ensures conformity with the First Amend-

ment’s prohibition against state establishment of religion.

While adherence to the Establishment Clause is a compel-

ling government interest that may justify restrictions on

speech in designated public forums, Rosenberger, 115 S.

Ct. at 2520; Widmar, 454 U.S. at 270-71, the City’s restric-

tion is not necessary to serve this interest. The Supreme

Court has made it abundantly clear that providing equal

access to a designated public forum for citizens engaging

in religious expression and citizens engaging in secular

expression does not violate the Establishment Clause.

Rosenberger, 115 S. Ct. at 2520-25; Lamb's Chapel, 113 S. Ct.

at 2148; Widmar, 454 U.S. at 270-75. The government need

only remain neutral, preferring neither religious nor sec-

ular expression over the other. See Rosenberger, 115 S. Ct.

at 2521-2522. Where the state does not sponsor the reli-

gious expression, the expression is made on government

property that has been opened to the public for speech

purposes, and permission is obtained through the same

application process and on the same terms as secular

groups, there is no violation of the Establishment Clause.

Capitol Square Review and Advisory Bd. v. Pinette, 115 S. Ct.

2440, 2447 (1995). “[I]t is no violation for government to

enact neutral policies that happen to benefit religion.” Id.

12a

Clearly, the Establishment Clause does not compel the

City to bar sectarian instruction and religious worship

from its Senior Centers.

Second, the City asserts that its policy is necessary to

remain in compliance with the Older Americans Act. To

that end, the policy mirrors the language of the Older

Americans Act, which requires as a condition for receiv-

ing federal funding assurances that a “facility will not be

used and is not intended to be used for sectarian instruc-

tion or as a place for religious worship,” 42 U.S.C.

§ 3027(a)(14)(A)(iv). The fact that the City’s policy is

designed to conform with federal statutory requirements,

however, does not shelter it from constitutional scrutiny.

A city or state’s desire for federal funds is not a compel-

ling government interest. Thus, compliance with the

Older Americans Act does not justify this viewpoint-

based restriction on expression. In the context presented

here, no government entity may permissibly control the

viewpoint being expressed. See Rosenberger, 115 S. Ct. at

2518-19 (where the government expends public funds to

convey its own message, it may say what it wishes; where

private speech is concerned, the government may not

restrict expression on the basis of viewpoint).

Third, the City asserts that its policy is necessary to

protect the senior citizens who use its centers. The City

argues that the senior citizens who use the Senior Centers

are members of a “captive audience” who are “vulner-

able” to “religious proselytizing and coercion.” Br. Appel-

lees 27. This claim is at best tenuous, and at worst

insulting to senior citizens. People in this age group are

not in need of special insulation from invitations to adopt

a religious faith; nor are they, as a class, more likely than

l3a

other citizens to be intimidated by such invitations.

Moreover, the showing of the Jesus film and the distribu-

tion of giant-print New Testaments can hardly be con-

strued as intimidating or coercive. People who choose to

attend presentations at the Senior Centers do not become

part of a captive audience: attendance at such programs

is purely voluntary, and people are free to come and go as

they please. Nor is there any implicit coercion to attend.

This is not a situation akin to the school graduation

ceremony at issue in Lee v. Weisman, where those who

chose to absent themselves paid the price of missing “one

of life’s most significant occasions.” 112 S. Ct. 2649, 2659

(1992). Shielding senior citizens from religious speech,

then, is also an inadequate justification for the City’s

policy.

VII. Tilton v. Richardson

Finally, we address the City’s contention that Tilton v.

Richardson, 403 U.S. 672 (1971), which primarily con-

cerned an Establishment Clause challenge to statutory

language similar to that in the Older Americans Act,

should be read to uphold the City’s policy against a free

speech challenge. We reject this reading of Tilton. In that

case, the Court considered a federal grant and loan pro-

gram for the construction of academic facilities at institu-

tions of higher learning. The terms of the act excluded

facilities used for sectarian instruction or religious wor-

ship. The Court held, however, that a provision in the act

that effectively allowed facilities to be converted entirely

to religious purposes after twenty years violated the

Establishment Clause. Id. at 682-684. At no point did the

Court address any free-speech challenge to the act, and

l4a

nothing in the opinion implied that its decision uphold-

ing the remainder of the act against an Establishment

Clause challenge could be extended to protect similar

statutory language against a free-speech challenge. Fur-

thermore, the Court revisited the Tilton case in Widmar

and warned against such an expansive reading:

“[N]jothing in Tilton suggested a limitation on the State’s

capacity to maintain forums equally open to religious and

other discussions. Cases before and after Tilton have

acknowledged the right of religious speakers to use pub-

lic forums on equal terms with others.” 454 U.S. at 272 n.

12.

VIII. Conclusion

The City of Albuquerque has failed to show a com-

pelling interest that justifies its policy prohibiting sec-

tarian instruction and religious worship at its Senior

Centers. For that reason, we hold that the policy is an

unconstitutional restriction on expression. We therefore

REVERSE the judgment of the district court and enjoin

the City from barring the showing of the film Jesus and

the distribution of New Testaments at its Senior Centers.

We also award reasonable attorney’s fees to the appel-

lants in the district court and on appeal, as provided

under 42 U.S.C. § 1988, and remand this matter to the

district court for the determination of appropriate fee

amounts.

15a

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

CHURCH ON THE ROCK and

PASTOR DON KIMBRO,

Plaintiffs,

VS. CIV 94-1101 JC/ WWD

CITY OF ALBUQUERQUE, TONI MARTORELLI,

in her official capacity as Director of Family and

Community Services for the City of Albuquerque,

and MARK SANCHEZ, in his official capacity as

Deputy Director of Family and Community Services

for the City of Albuquerque, and KATHLEEN STARK,

in her official capacity as Supervisor, Bear Canyon Senior

Center, City of Albuquerque,

Defendants.

ORDER GRANTING SUMMARY JUDGMENT

THIS MATTER came on for consideration of the

Plaintiff’s Notice of Motion for Preliminary Injunction,

filed October 3, 1994. The Court received evidence and

testimony and heard the arguments of counsel on Decem-

ber 5, 1994 and again on this date. Having announced my

reasoning aid the ruling from the bench and the parties

agreeing to converting the motion to one for Summary

Judgment, the Court enters judgment.

Wherefore,

IT IS ORDERED, ADJUDGED AND DECREED that

Summary Judgment is hereby entered for the Defendants

on the Complaint.

16a

Dated December 16, 1994.

/s/ John E. Conway

CHIEF UNITED STATES

DISTRICT JUDGE

Date of Entry 12-16-94

17a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

HONR. JOHN E. CONWAY, JUDGE PRESIDING

CHURCH ON THE ROCK and

PASTOR DON KIMBRO,

Plaintiffs, No. CIV 94-1101-JC

cee eae eee ee

CITY OF ALBUQUERQUE,

et al.,

)

VS. )

)

a Defendants.

REPORTER’S TRANSCRIPT OF PROCEEDINGS

VOLUME II

December 16, 1994

APPEARANCES

FOR THE PLAINTIFF:

MR. BENJAMIN W. BULL

Attorney at Law

11811 N. Tatum Boulevard

# P155

Phoenix, Arizona 85028

MR. PAUL BECHT

Attorney at Law

1709 Moon Street, N.E.

Albuquerque, New Mexico 87112

18a

FOR THE DEFENDANT:

OFFICE OF THE CITY ATTORNEY

One Civic Plaza

11th Floor

Albuquerque, New Mexico 87102

BY: MR. WILLIAM D. WINTER

* * *

[p. 100] thing as the Establishment Clause, because in this

context, that’s the only way those words can pass consti-

tutional muster is if they’re interpreted or defined to

mean the Establishment Clause. Because if they mean

anything else, then they’re on a collision course with

Lamb’s Chapel, which I believe is controlling in this partic-

ular case.

Your Honor, unless the Court has any more questions

for me, that’s all I have.

THE COURT: All right. Appreciate the argu-

ments this morning, I'll give you a decision at 11:30.

MR. BULL: 11:30?

THE COURT: Yes.

(Recess held.)

THE COURT: All right. This is my decision in

the case of Church on the Rock and Pastor Don Kimbro v.

City of Albuquerque et al.

First, I find the plaintiffs have failed to show a likeli-

hood of success on the merits. To reach this decision, I do

not need to decide whether the senior center should be

characterized as a designated limited purpose public

forum or a nonpublic forum. Even if the senior center is a

‘

ron cae

Noisy Het hesitate aap Be ew 06 Hag 28 LOE EE EIEN Ht aE IE

OO eA NI eT

iad aa dee Reals Me aN RAKO TIO ws

19a

limited public forum which permits the City to impose

lesser restrictions on [p. 101] speech, I find that the

restrictions in this case are constitutional.

In the case of a limited purpose public forum, the

government may create a forum, even if not officially

required to do so, and limit that forum to particular

groups or subject matter. Bell v. Little Axe Independent

School District, 766 F.2d 1391, at page 1401, a 1985 deci-

sion; and also Cornelius and Perry Education Association

from the U. S. Supreme Court.

The evidence supports the City’s position that the

purpose of the senior centers, as defined by the Older

Americans Act, is to provide a variety of services, includ-

ing recreation, health, nutrition, referral to senior citizen

service providers and education. Mr. Perdue’s affidavit at

paragraph 8 and 42 United States Code Section 3002

subparagraph (35) from the West Supplement. By defini-

tion, this purpose does not include sect#:ian instruction

or religious worship. See 42 U. S. Code Section

3027(14)(a){iv).

Both parties agree that Jesus that the “Jesus” movie is

patently religious in nature and is intended to spread the

word that Jesus is the savior. In fact, plaintiffs’ counsel

concedes that the film’s primary purpose is to prosely-

tize. Therefore, I conclude that it is sectarian instruction

and not [p. 102] within the limited purpose of the senior

centers.

I also find the City is not restricting speech here on

the basis of viewpoint. In Lamb's Chapel, it was clear that

the school district had opened up the forum on family

values and child rearing, yet it excluded instruction from

20a

a Christian viewpoint. Here the City has not opened up

the senior center forum for sectarian instruction. There-

fore, no matter what viewpoint the speaker proposes,

Christian, Jewish, Muslim, Hindu or whatever, the

speaker may not offer sectarian instruction.

I'll put in my order that it’s a matter of “potentially

different” so you can take an immediate appeal.

MR. BULL: Thank you, Your Honor.

THE COURT: Or I'll convert it into summary

judgment now and enter a summary judgment in favor of

the City and you can take that up on appeal.

MR. BULL: We prefer that the whole thing be

converted into summary judgment. That way we can take

the whole thing up on that basis.

THE COURT: Everything that you've presented

by way of exhibits will be part of the record. So — and I'll

enter summary judgment, then, in favor of the City. Any-

thing further?

[p. 103] MR. BULL: Not from the plaintiffs.

MR. WINTER: No, thank you.

THE COURT: We'll be in recess.

(Proceedings concluded.)

2la

APPENDIX D

§ 3027. State plans

(a) Criteria for eligibility; contents

Except as provided in the succeeding sentence and

section 3029(a) of this title, each State, in order to be

eligible for grants from its allotment under this subchap-

ter for any fiscal year, shall submit to the Assistant Secre-

tary a State plan for a two-, three-, or four-year period

determined by the State agency, with such annual revi-

sions as are necessary, which meets such criteria as the

Assistant Secretary may by regulation prescribe. If the

Assistant Secretary determines, in the discretion of the

Assistant Secretary, that a State failed in 2 successive

years to comply with the requirements under this sub-

chapter, then the State shall submit to the Assistant Secre-

tary a State plan for a 1-year period that meets such

criteria, for subsequent years until the Assistant Secretary

determines that the State is in compliance with such

requirements. Each such plan shall comply with all of the

following requirements:

(1) The plan shall contain assurances that

the State plan will be based upon area plans

developed by area agencies on aging within the

State designated under section 3025(a)(2)(A) of

this title and that the State will prepare and

distribute a uniform format for use by area

agencies on aging in developing area plans

under section 3026 of this title.

(2) The plan shall provide that each area

agency on aging designated under section

3025(a)(2)(A) of this title will develop and sub-

mit to the State agency for approval an area plan

22a

which complies with the provisions of section

3026 of this title.

(3)(A) The plan shall provide that the State

agency will evaluate the need for supportive

services (including legal assistance and trans-

portation services), nutrition services, and mul-

tipurpose senior centers within the State and

determine the extent to which existing public or

private programs meet such need. To conduct

the evaluation, the State agency shall use the

procedures implemented under section

3012(a)(29) of this title.

(B) The plan shall provide assurances that

the State agency will spend in each fiscal year,

for services to older individuals residing in rural

areas in the State assisted under this subchapter,

an amount equal to not less than 105 percent of

the amount expended for such services (includ-

ing amounts expended under subchapter V and

subchapter VII of this chapter) in fiscal year

1978.

(4) The plan shall provide for the use of

such methods of administration (including

methods relating to the establishment and main-

tenance of personnel standards on a merit basis,

except that the Assistant Secretary shall exercise

no authority with respect to the selection, tenure

of office, or compensation of any individual

employed in accordance with such methods) as

are necessary for the proper and efficient

administration of the plan, and, where neces-

sary, provide for the reorganization and reas-

signment of functions to assure such efficient

administration.

(5) The plan shall provide that the State

agency will afford an opportunity for a hearing

Sn i tei ba S ES ES A Eb RNG E GI SR ill A Get * Silas iii ania 2a gees,

= Rea alla Cie eS a ils Sih,

pling ihe leaky! Ke te ate WE

ah et C0

2 ROAR Ente tit BRE mili. a> LP vides

23a

upon request to any area agency on aging sub-

mitting a plan under this subchapter, to any

provider of a service under such a plan, or to

any applicant to provide a service under such a

plan. The State agency shall establish and pub-

lish procedures for requesting and conducting

such hearing.

(6) The plan shall provide that the State

agency will make such reports, in such form,

and containing such information, as the Assis-

tant Secretary may require, and comply with

such requirements as the Assistant Secretary

may impose to insure the correctness of such

reports.

(7)(A) The plan shall provide satisfactory

assurance that such fiscal control and fund

accounting procedures will be adopted as may

be necessary to assure proper disbursement of,

and accounting for, Federal funds paid under

this subchapter to the State, including any such

funds paid to the recipients of a grant or con-

tract.

(B) The plan shall provide assurances that -

(i) no individual (appointed or other-

wise) involved in the designation of the

State agency or an area agency on aging, or

in the designation of the head of any subdi-

vision of the State agency or of an area

agency on aging, is subject to a conflict of

interest prohibited under this chapter;

(ii) no officer, ernployee, or other rep-

resentative of the State agency or an area

agency on aging is subject to a conflict of

interest prohibited under this chapter; and

24a

(iii) mechanisms are in place to iden-

tify and remove conflicts of interest prohib-

ited under this chapter.

the State agency and each area agency on aging

will -

(i) maintain the integrity and public

purpose of services provided, and service

providers, under the State plan in all con-

tractual and commercial relationships;

(ii) disclose to the Assistant Secretary -

(I) the identity of each nongovern-

mental entity with which the State

agency or area agency on aging has a

contract or commercial relationship

relating to providing any service to

older individuals; and

(II) the nature of such contract or

such relationship;

(iii) demonstrate that a loss or diminu-

tion in the quantity or quality of the ser-

vices provided, or to be provided, under

this chapter by such agency has not resulted

and will not result from such contract or

such relationship;

(iv) demonstrate that the quantity or

quality of the services to be provided under

the State plan will be enhanced as a result of

such contract or such relationship; and

(v) on the request of the Assistant Sec-

retary, for the purpose of monitoring com-

pliance with this chapter (including

conducting an audit), disclose all sources

25a

and expenditures of funds the State agency

and area agency on aging receive or expend

to provide services to older individuals.

(8) The plan shall provide that the State

agency will conduct periodic evaluations of, and

public hearings on, activities and projects car-

ried out under the State plan, including an eval-

uation of the effectiveness of the State agency in

reaching older individuals with greatest eco-

nomic need and older individuals with greatest

social need, with particular attention to low-

income minority individuals. In conducting

such evaluations and public hearings, the State

agency shall solicit the views and experiences of

entities that are knowledgeable about the needs

and concerns of low-income minority older indi-

viduals.

(9) The plan shall provide for establishing

and maintaining information and assistance ser-

vices in sufficient numbers to assure that all

older individuals in the State who are not fur-

nished adequate information and assistance ser-

vices under section 30?4(a)(4) of this title will

have reasonably convenient access to such ser-

vices.

(10) The plan shall provide that no sup-

portive services, nutrition services, or in-home

services (as defined in section 3030i of this title)

will be directly provided by the State agency or

an area agency on aging, except where, in the

judgment of the State agency, provision of such

services by the State agency or an area agency

on aging is necessary to assure an adequate

supply of such services, or where such services

are directly related to such State or area agency

on aging’s administrative functions, or where

26a

such services of comparable quality can be pro-

vided more economically by such State or area

agency on aging.

(11) The plan shall provide that subject to

the requirements of merit employment systems

of State and local governments -

(A) preference shall be given to older

individuals; and

(B) special consideration shall be

given to individuals with formal training in

the field of aging (including an educational

specialty or emphasis in aging and a train-

ing degree or certificate in aging) or equiva-

lent professional experience in the field of

aging;

for any staff positions (full time or part time) in

State and area agencies for which such individ-

uals qualify.

(12) The plan shall provide assurances that

the State agency will carry out, through the

Office of the State Long-Term Care Ombuds-

man, a State Long-Term Care Ombudsman pro-

gram in accordance with section 3058g of this

title and this subchapter.

(13) The plan shall spioneomolts with respect to

nutrition services that —

(A) each project providing nutrition

services will be available to older individ-

uals and to their spouses, and may be made

available to handicapped or disabled indi-

viduals who have not attained 60 years of

age but who reside in housing facilities

occupied primarily by older individuals at

27a

which congregate nutrition services are pro-

vided;

(B) primary consideration shall be

given to the provision of meals in a congre-

gate setting, except that each area agency on

aging (i) may award funds made available

under this subchapter (other than under

section 3023(b)(3) of this title) to organiza-

tions for the provision of home delivered

meals to older individuals in accordance

with the provisions of subpart II of part C of

this subchapter, based upon a determination

of need made by the recipient of a grant or

contract entered into under this subchapter,

without requiring that such organizations

also provide meals to older individuals in a

congregate setting; and (ii) shall, in award-

ing such funds, select such organizations in

a manner which complies with the provi-

sions of subparagraph (H);

(C)(i) each project will permit recip-

ients of grants or contracts to solicit volun-

tary contributions for meals furnished in

accordance with guidelines established by

the Assistant Secretary, taking into consid-

eration the income ranges of eligible indi-

viduals in local communities and other

sources of income of the recipients of a

grant or contract; and

(ii) such voluntary contributions will

be used to increase the number of meals

served by the project involved, to facilitate

access to such meals, and to provide other

supportive services directly related to nutri-

tion services;

28a

(D) in the case of meals served in a

congregate setting, a site for such services

and for comprehensive supportive services

is furnished in as close proximity to the

majority of eligible individuals’ residences

as feasible, with particular attention upon a

multipurpose senior center, a school, a

church, or other appropriate community

facility, preferably within walking distance

where possible, and where appropriate,

transportation to such site is furnished;

(E) each project will establish outreach

activities which assure that the maximum

number of eligible individuals may have an

opportunity to participate;

(F) each project will establish and

administer the nutrition project with the

advice of dietitians (or individuals with

comparable expertise), persons competent

in the field of service in which the nutrition

project is being provided, older individuals

who will participate in the program, and of

persons who are knowledgeable with

regard to the needs of older individuals;

(G) each project will provide special

menus, where feasible and appropriate, to

meet the particular dietary needs arising

from the health requirements, religious

requirements, or ethnic backgrounds of eli-

gible individuals;

(H) each area agency on aging will

give consideration, where feasible, in the

furnishing of home delivered meals to the

use of organizations which (i) have demon-

strated an ability to provide home delivered

meals efficiently and reasonably; and (ii)

x See eee eee

29a

furnish assurances to the area agency on

aging that such an organization will main-

tain efforts to solicit voluntary support and

that funds made available under this sub-

chapter to the organization will not be used

to supplant funds from non-Federal sources;

(I) each area agency on aging shall

establish procedures that will allow nutri-

tion project administrators the option to

offer a meal, on the same basis as meals are

provided to participating older individuals,

to individuals providing volunteer services

during the meal hours, and to individuals

with disabilities who reside at home with

and accompany older individuals who are

eligible under this chapter;

(J) each nutrition project shall provide

nutrition education on at least a semiannual

basis to participants in programs described

in part C of this subchapter;

(K) each project shall comply with

applicable provisions of State or local laws

regarding the safe and sanitary handling of

food, equipment, and supplies used in the

storage, preparation, service, and delivery

of meals to an older individual;

(L) the State agency will monitor,

coordinate, and assist in the planning of

nutritional services, with the advice of a

dietitian or an individual with comparable

expertise; and

(M) the State agency will -

30a

(i) develop nonfinancial criteria

for eligibility to receive nutrition ser-

vices under section 3030f of this title;

and

(ii) periodically evaluate recip-

ients of such services to determine

whether they continue to meet such cri-

teria.

(14) The plan shall provide, with respect to

the acquisition (in fee simple or by lease for 10

years or more), alteration, or renovation of exis-

ting facilities (or the construction of new facili-

ties in any area in which there are no suitable

structures available, as determined by the State

agency, after full consideration of the recom-

mendations made by area agencies on aging, to

be a focal point for the delivery of services

assisted under this subchapter) to serve as mul-

tipurpose senior centers, that -

(A) the plan contains or is supported

by reasonable assurances that (i) for not less

than 10 years after acquisition, or not less

than 20 years after the completion of con-

struction, the facility will be used for the

purpose for which it is to be acquired or

constructed, unless for unusual circum-

stances the Assistant Secretary waives the

requirement of this division; (ii) sufficient

funds will be available to meet the non-

Federal share of the cost of acquisition or

construction of the facility; (iii) sufficient

funds will be available when acquisition or

construction is completed, for effective use

of the facility for the purpose for which it is

being acquired or constructed; and (iv) the

facility will not be used and is not intended

3la

to be used for sectarian instruction or as a

place for religious worship;

(B) the plan contains or is supported

by reasonable assurances that, in the case of

purchase or construction, there are no exis-

ting facilities in the community suitable for

leasing as a multipurpose senior center;

facility are in accordance with regulations

relating to minimum standards of construc-

tion, promulgated with particular emphasis

on securing compliance with the require-

ments of the Act of August 12, 1968, com-

monly known as the Architectural Barriers

Act of 1968 [42 U.S.C. § 4151 et seq.];

(D) the plan contains or is supported

by adequate assurance that any laborer or

mechanic employed by any contractor or

subcontractor in the performance of work

on the facility will be paid wages at rates

not less than those prevailing for similar

work in the locality as determined by the

Secretary of Labor in accordance with

the Act of March 3, 1931 (40 U.S.C.

§§ 276a-276a-5; commonly known as the

Davis-Bacon Act), and the Secretary of

Labor shall have, with respect to the labor

standards specified in this subparagraph,

the authority and functions set forth in reor-

ganization plan numbered 14 of 1950 (15

F.R. 3176; 64 Stat. 1267), and section 276c of

Title 40; and

(E) the plan contains assurances that

the State agency will consult with the Secre-

tary of Housing and Urban Development

32a

with respect to the technical adequacy of

any proposed alteration or renovation.

(15) The plan shall provide that with

respect to legal assistance —

(A) the plan contains assurances that

area agencies on aging will (i) enter into

contracts with providers of legal assistance

which can demonstrate the experience or

capacity to deliver legal assistance; (ii)

include in any such contract provisions to

assure that any recipient of funds under

division (i) will be subject to specific restric-

tions and regulations promulgated under

the Legal Services Corporation Act [42

U.S.C. § 2996 et seq.] (other than restrictions

and regulations governing eligibility for

legal assistance under such Act and govern-

ing membership of local governing boards)

as determined appropriate by the Assistant

Secretary; and (iii) attempt to involve the

private bar in legal assistance activities

authorized under this subchapter, including

groups within the private bar furnishing

services to older individuals on a pro bono

and reduced fee basis;

(B) the plan contains assurances that

no legal assistance will be furnished unless

the grantee administers a program designed

to provide legal assistance to older individ-

uals with social or economic need and has

agreed, if the grantee is not a Legal Services

Corporation project grantee, to coordinate

its services with existing Legal Services Cor-

poration projects in the planning and ser-

vice area in order to concentrate the use of

funds provided under this subchapter on

33a

individuals with the greatest such need; and

the area agency on aging makes a finding,

after assessment, pursuant to standards for

service promulgated by the Assistant Secre-

tary, that any grantee selected is the entity

best able to provide the particular services;

the coordination of the furnishing of legal

services to older individuals within the

State, and provide advice and technical

assistance in the provision of legal assis-

tance to older individuals within the State

and support the furnishing of training and

technical assistance for legal assistance for

older individuals;

(D) the plan contains assurances, to

the extent practicable, that legal services

furnished under the plan will be in addition

to any legal services for older individuals

being furnished with funds from sources

other than this chapter and that reasonable

efforts will be made to maintain existing

levels of legal services for older individuals;

and

(E) the plan contains assurances that

area agencies on aging will give priority to

legal assistance related to income, health

care, long-term care, nutrition, housing,

utilities, protective services, defense of

guardianship, abuse, neglect, and age dis-

crimination.

‘

(16) The plan shall provide, whenever the

State desires to provide for a fiscal year for

services for the prevention of abuse of older

individuals -

34a

(A) the plan contains assurances that

any area agency on aging carrying out such

services will conduct a program consistent

with relevant State law and coordinated

with existing State adult protective service

activities for -

(i) public education to identify

and prevent abuse of older individuals;

(ii) receipt of reports of abuse of

older individuals;

(iii) active participation of older

individuals participating in programs

under this chapter through outreach,

conferences, and referral of such indi-

viduals to other social service agencies

or sources of assistance where appro-

priate and consented to by the parties

to be referred; and

(iv) referral of complaints to law

enforcement or public protective ser-

vice agencies where appropriate;

(B) the State will not permit involun-

tary or coerced participation in the program

of services described in this paragraph by

alleged victims, abusers, or their house-

holds; and

course of receiving reports and making

referrals shall remain confidential unless all

parties to the complaint consent in writing

to the release of such information, except

that such information may be released to a

law enforcement or public protective ser-

vice agency.

35a

(17) The plan shall provide assurances that

each State will provide inservice training oppor-

tunities for personnel of agencies and programs

funded under this chapter.

(18) The plan shall provide assurances that

each State will assign personnel (one of whom

shall be known as a legal assistance developer)

to provide State leadership in developing legal

assistance programs for older individuals

throughout the State.

(19) The plan shall provide, with respect to

education and training services, assurances that

area agencies on aging may enter into grants

and contracts with providers of education and

training services which can demonstrate the

experience or capacity to provide such services

(except that such contract authority shall be

effective for any fiscal year only to such extent,

or in such amounts, as are provided in appro-

priations Acts).

(20) The plan shall provide assurances

that, if a substantial number of the older indi-

viduals residing in any planning and service

area in the State are of limited English-speaking

ability, then the State will require the area

agency on aging for each such planning and

service area —

(A) to utilize, in the delivery of out-

reach services under section 3026(a)(2)(A) of

this title, the services of workers who are

fluent in the language spoken by a predomi-

nant number of such older individuals who

are of limited English-speaking ability; and

(B) to designate an individual

employed by the area agency on aging, or

36a

available to such area agency on aging on a

full-time basis, whose responsibilities will

include -

(i) taking such action as may be

appropriate to assure that counseling

assistance is made available to such

older individuals who are of limited

English-speaking ability in order to as-

sist such older individuals in participat-

ing in programs and receiving

assistance under this chapter; and

(ii) providing guidance to individ-

uals engaged in the delivery of suppor-

tive services under the area plan

involved to enable such individuals to

be aware of cultural sensitivities and to

take into account effectively linguistic

and cultural differences.

(21) The plan shall provide assurances that

the State agency, in carrying out the State Long-

Term Care Ombudsman program under subsec-

tion (a)(12) of this section, will expend not less

than the total amount expended by the agency

in fiscal year 1991 in carrying out such a pro-

gram under this subchapter.

(22) The plan shall specify a minimum per-

centage of the funds received by each area

agency on aging for part B of this subchapter

that will be expended, in the absence of the

waiver granted under section 3026(b)(1) of this

title, by such area agency on aging to provide

each of the categories of services specified in

section 3026(a)(2) of this title.

a 37a

(23) The plan shall, with respect to the

fiscal year preceding the fiscal year for which

such plan is prepared -

(A) identify the number of low-

income minority older individuals in the

State; and

(B) describe the methods used to sat-

isfy the service needs of such minority older

individuals.

(24) The plan shall provide assurances that

the State agency will require outreach efforts

that will -

(A) identify individuals eligible for

assistance under this chapter, with special

emphasis on -

(i) older individuals residing in

rural areas;

(ii) older individuals with greatest

economic need (with particular atten-

tion to low-income minority individ-

uals);

(iii) older individuals with great-

est social need (with particular atten-

tion to low-income minority individ-

uals);

(iv) older individuals with severe

disabilities;

(v) older individuals with limited

English-speaking ability; and

(vi) older individuals with

Alzheimer’s disease or related disor-

ders with neurological and organic

38a

brain dysfunction (and the caretakers of

such individuals); and

(B) inform the older individuals

referred to in clauses (i) through (vi) of

subparagraph (A), and the caretakers of

such individuals, of the availability of such

assistance.

(25) The plan shall provide, with respect to

the needs of older individuals with severe dis-

abilities, assurances that the State will coordi-

nate planning, identification, assessment of

needs, and service for older individuals with

disabilities with particular attention to individ-

uals with severe disabilities with the State agen-

cies with primary responsibility for individuals

with disabilities, including severe disabilities,

and develop collaborative programs, where

appropriate, to meet the needs of older individ-

uals with disabilities.

(26) The plan shall provide assurances that

area agencies on aging will conduct efforts to

facilitate the coordination of community-based,

long-term care services, pursuant to section

3026(a)(6)(1) of this title, for older individuals

who -

(A) reside at home and are at risk of

institutionalization because of limitations

on their ability to function independently;

(B) are patients in hospitals and are at

risk of prolonged institutionalization; or

facilities, but who can return to their homes

if community-based services are provided

to them.

BI ac oie a i a tei as

39a

(27) The plan shall provide assurances of

consultation and coordination in planning and

provision of in-home services under section

3030h of this title with State and local agencies

and private nonprofit organizations which

administer and provide services relating to

health, social services, rehabilitation, and men-

tal health services.

(28) The plan shall provide assurances that

if the State receives funds appropriated under

section 3023(e) of this title, the State agency and

area agencies on aging will expend such funds

to carry out part E of this subchapter.

(29) The plan shall, with respect to the

fiscal year preceding the fiscal year for which

such plan is prepared, describe the methods

used to satisfy the service needs of older indi-

viduals who reside in rural areas.

(30) The plan shall include the assurances

and description required by section 3058d(a) of

this title.

(31)(A) If 50 percent or more of the area

plans in the State provide for an area volunteer

services coordinator, as described in section

3026(a)(12) of this title, the State plan shall pro-

vide for a State volunteer services coordinator,

who shall -

(i) encourage area agencies on

aging to provide for area volunteer ser-

vices coordinators;

(ii) coordinate the volunteer ser-

vices offered between the various area

agencies on aging;

40a

(iii) encourage, organize, and pro-

mote the use of older individuals as

volunteers to the State;

(iv) provide technical assistance,

which may include training, to area vol-

unteer services coordinators; and

(v) promote the recognition of the

contribution made by volunteers to the

programs administered under the State

plan.

(B) If fewer than 50 percent of the area

plans in the State provide for an area volun-

teer services coordinator, the State plan may

provide for the State volunteer services

coordinator described in subparagraph (A).

(32) The plan shall provide assurances that

special efforts will be made to provide technical

assistance to minority providers of services.

(33) The plan -

(A) shall include the statement and

the demonstration required by paragraphs

(2) and (4) of section 3025(d) of this title;

and

(B) may not be approved unless the

Assistant Secretary approves such statement

and such demonstration.

(34) The plan shall provide an assurance

that the State agency will coordinate programs

under this subchapter and subchapter X of this

chapter, if applicable.

(35) The plan shall -

(A) provide an assurance that the

State agency will pursue activities to

4la

increase access by older individuals who are

Native Americans to all aging programs and

benefits provided by the agency, including

programs and benefits under this subchap-

ter, if applicable; and

(B) specify the ways in which the State

agency intends to implement the activities.

(36) If case management services are

offered to provide access to supportive services,

the plan shall provide that the State agency shall

ensure compliance with the requirements speci-

fied in section 3026(a)(20) of this title.

(37) The plan shall identify for each fiscal

year, the actual and projected additional costs of

providing services under this subchapter,

including the cost of providing access to such

services, to older individuals residing in rural

areas in the State (in accordance with a standard

definition of rural areas specified by the Assis-

tant Secretary).

(38) The plan shall provide assurances that

funds received under this subchapter will not be

used to pay any part of a cost (including an

administrative cost) incurred by the State or an

area agency on aging to carry out a contract or

commercial relationship that is not carried out

to implement this subchapter.

(39) The plan shall provide assurances that

preference in receiving services under this sub-

chapter will not be given by the area agency on

aging to particular older individuals as a result

of a contract or commercial relationship that is

not carried out to implement this subchapter.

(40) The plan shall provide assurances that

if the State receives funds appropriated under

42a

section 3023(g) of this title the State agency and

area agencies on aging will expend such funds

to carry out part G of this subchapter.

(41) The plan shall provide assurances that

demonstrable efforts will be made -

(A) to coordinate services provided

under this chapter with other State services

that benefit older individuals; and

(B) to provide multigenerational activ-

ities, such as opportunities for older indi-

viduals to serve as mentors or advisers in

child care, youth day care, educational

assistance, at-risk youth intervention, juve-

nile delinquency treatment, and family sup-

port programs.

(42) The plan shall provide assurances that

the State will coordinate public services within

the State to assist older individuals to obtain

transportation services associated with access to

services provided under this subchapter, to ser-

vices under subchapter X of this chapter, to

comprehensive counseling services, and to legal

assistance.

(43) The plan shall provide that the State

agency shall issue guidelines applicable to

grievance procedures required by section

3026(a)(6)(P) of this title.

(44) The plan shall include assurances that

the State has in effect a mechanism to provide

for quality in the provision of in-home services

under this subchapter.

a ee ee SP ON A! nie a

ee ee we et

Ai dtenkentvaate abit dk ripitdiniete

43a

(b) Approval by Assistant Secretary; waiver of require-

ments

(1) The Assistant Secretary shall approve any State

plan which the Assistant Secretary finds fulfills the

requirements of subsection (a) of this section, except the

Assistant Secretary may not approve such plan unless the

Assistant Secretary determines that the formula submit-

ted under section 3025(a)(2)(D) of this title complies with

the guidelines in effect under section 3025(a)(2)(C) of this

title.

(2) The Assistant Secretary, in approving any State

plan under this section, may waive the requirement

described in paragraph (3)(B) of subsection (a) of this

section if the State agency demonstrates to the Assistant

Secretary that the service needs of older individuals

residing in rural areas in the State are being met, or that

the number of older individuals residing in such rural

areas is not sufficient to require the State agency to com-

ply with such requirement.

(1) The Assistant Secretary shall not make a final

determination disapproving any State plan, or any mod-

ification thereof, or make a final determination that a

State is ineligible under section 3025 of this title, without

first affording the State reasonable notice and oppor-

tunity for a hearing.

(2) Not later than 30 days after such final deter-

mination, a State dissatisfied with such final determina-

tion may appeal such final determination to the Secretary

44a

for review. If the State timely appeals such final deter-

mination in accordance with subsection (e)(1) of this sec-

tion, the Secretary shall dismiss the appeal filed under

this paragraph.

(3) If the State is dissatisfied with the decision of

the Secretary after review under paragraph (2), the State

may appeal such decision not later than 30 days after

such decision and in the manner described in subsection

(e) of this section. For purposes of appellate review under

the preceding sentence, a reference in subsection (e) of

this section to the Assistant Secretary shall be deemed to

be a reference to the Secretary.

(d) Discontinuance of payments; disbursement of

withheld funds to agencies with approved plans;

matching funds ©

Whenever the Assistant Secretary, after reasonable

notice and opportunity for a hearing to the State agency,

finds that -

(1) the State is not eligible under section

3025 of this title,

(2) the State plan has been so changed that

it no longer complies substantially with the pro-

visions of subsection (a) of this section, or

(3) in the administration of the plan there

is a failure to comply substantially with any

such provision of subsection (a) of this section,

the Assistant Secretary shall notify such State agency that

no further payments from its allotments under section

3024 of this title and section 3028 of this title will be made

to the State (or, in the Assistant Secretary’s discretion,

45a

that further payments to the State will be limited to

projects under or portions of the State plan not affected

by such failure), until the Assistant Secretary is satisfied

that there will no longer be any failure to comply. Until

the Assistant Secretary is so satisfied, no further pay-

ments shall be made to such State from its allotments

under section 3024 of this title and section 3028 of this

title (or payments shall be limited to projects under or

portions of the State plan not affected by such failure).

The Assistant Secretary shall, in accordance with regula-

tions the Assistant Secretary shall prescribe, disburse the

funds so withheld directly to any public or nonprofit

private organization or agency or political subdivision of

such State submitting an approved plan in accordance

with the provisions of this section. Any such payment

shall be matched in the proportions specified in section

3024 of this title.

(e) Appeal

(1) A State which is dissatisfied with a final action

of the Assistant Secretary under subsection (b), (c), or (d)

of this section may appeal to the United States court of

appeals for the circuit in which the State is located, by

filing a petition with such court within 30 days after such

final action. A copy of the petition shall be forthwith

transmitted by the clerk of the court to the Assistant

Secretary, or any officer designated by the Assistant Sec-

retary for such purpose. The Assistant Secretary there-

upon shall file in the court the record of the proceedings

on which the Assistant Secretary’s action is based, as

provided in section 2112 of Title 28.

46a

(2) Upon the filing of such petition, the court shall

have jurisdiction to affirm the action of the Assistant

Secretary or to set it aside, in whole or in part, tempo-

rarily or permanently, but until the filing of the record,

the Assistant Secretary may modify or set aside the Assis-

tant Secretary’s order. The findings of the Assistant Secre-

tary as to the facts, if supported by substantial evidence,

shall be conclusive, but the court, for good cause shown,

may remand the case to the Assistant Secretary to take

further evidence, and the Assistant Secretary shall, within

30 days, file in the court the record of those further

proceedings. Such new or modified findings of fact shall

likewise be conclusive if supported by substantial evi-

dence. The judgment of the court affirming or setting

aside, in whole or in part, any action of the Assistant

Secretary shall be final, subject to review by the Supreme

Court of the United States upon certiorari or certification

as provided in section 1254 of Title 28.

(3) The commencement of proceedings under this

subsection shall not, unless so specifically ordered by the

court, operate as a stay of the Assistant Secretary’s action.

(f) Confidentiality of information relating to legal

assistance; protection of commercial information

(1) Neither a State, nor a State agency, may require

any provider of legal assistance under this subchapter to

reveal any information that is protected by the attorney-

client privilege.

(2) Information disclosed under section

3026(a)(14)(B)(i) of this title or subsection (a)(7)(C)(i1)(1)

of this section may be disclosed to the public by the State

‘ 47a

agency or the State only if such information could be

disclosed under section 552 of Title 5 by an agency of the

United States.

48a

(Pub. L. 89-73, Title III, § 307, as added Pub. L. 95-478,

Title L, § 103(b), Oct. 18, 1978, 92 Stat. 1524; amended Pub.

L. 97-115, §§ 3(d), 7, Dec. 29, 1981, 95 Stat. 1597, 1598;

Pub. L. 98-459, Title III, § 307, Oct. 9, 1984, 98 Stat. 1775;

Pub. L. 100-175, Title 1, §§ 128, 129(d), (e), 130(b), 131(b),

132(c), 136(c), 137(b), 138, 140(c), 141(c), 142, 144(d),

155(e)(2), 182(k), Nov. 29, 1987, 101 Stat. 934, 935, 938,

939, 940, 943, 944, 946, 947, 949, 953, 965; Pub. L. 100-628,

Title VII, § 705(6), Nov. 7, 1988, 102 Stat. 3247; Pub. L.

102-375, Title I, § 102(b)(4), (5), (10)(A), (C), (E), (F), Title

IIL, § 307, Title VII, § 708(c)(4), Title IX, § 904(a)(13), Sept.

30, 1992, 106 Stat. 1201, 1202, 1228, 1293, 1308; Pub. L.

103-171, §§ 2(9), 3(a)(5), Dec. 2, 1993, 107 Stat. 1988, 1990.)

REFERENCES IN TEXT

Subchapter V and subchapter VII of this chapter,

referred to in subsec. (a)(3)(B), were repealed by Pub. L.

95-478, Title V, § 501(a), Oct. 18, 1978, 92 Stat. 1558.

Act of August 12, 1968, commonly known as the

Architectural Barriers Act of 1968, referred to in subsec.

(a)(14)(C), is Pub. L. 90-480, Aug. 12, 1968, 82 Stat. 718, as

amended, which is classified generally to chapter 51 (sec-

tion 4151 et seq.) of this title. For complete classification

of this Act to the Code, see Short Title note set out under

section 4151 of this title and Tables.

Act of March 3, 1931 (40 U.S.C. 276a-276a-5; com-

monly known as the Davis-Bacon Act), referred to in

subsec. (a)(14)(D), is Act Mar. 3, 1931, ch. 411, 46 Stat.

1494, as amended, which is classified generally to sec-

tions 276a to 276a-5 of Title 40, Public Buildings, Property,

and Works. For complete classification of this Act to the

49a

Code, see Short Title note set out under section 276a of

Title 40 and Tables.

Reorganization plan numbered 14 of 1950 (15 ER.

3176; 64 Stat. 1267), referred to in subsec. (a)(14)(D), is set

out in the Appendix to Title 5, Government Organization

and Employees.

The Legal Services Corporation Act, referred to in

subsec. (a){15)(A), is Title X of Pub. L. 88-452, as added by

Pub. L. 93-355, § 2, July 25, 1974, 88 Stat. 378, as amended,

which is classified generally to subchapter X (§ 2996 et

seq.) of chapter 34 of this title. For complete classification

of this Act to the Code, see Short Title note set out under

section 2996 of this title and Tables.

Prior PROvIsIONS

A prior section 3027, Pub. L. 89-73, title III, § 307, as

added Pub. L. 93-29, title III, § 301, May 3, 1973, 87 Stat.

44, related to payment of grants or contracts, prior to the

general amendment of this subchapter by Pub. L. 95-478.

See section 3029 of this title.

Provisions similar to those comprising this section

were contained in Pub. L. 89-73, title III, § 305, as added

Pub. L. 93-29, title III, § 301, May 3, 1973, 87 Stat. 41; Pub.

L. 94-135, title I, §§ 106(a), (b), 114(e), Nov. 28, 1975, 89

Stat. 715, 725, which was classified to section 3025 of this

title prior to repeal by Pub. L. 95-478.

50a

AMENDMENTS

1993 - Pub. L. 103-171, § 3(a)(5)(B), substituted

“Assistant Secretary” for “Commissioner” wherever

appearing.

Subsec. (a)(8). Pub. L. 103-171, § 2(9)(A)(i), substi-

tuted “knowledgeable” for “knowledgable”.

Subsec. (a)(24). Pub. L. 103-171, § 2(9)(A)(ii), substi-

tuted period for semicolon at end.

Subsec. (b)(2). Pub. L. 103-171, § 2(9)(B), substituted

“such requirement” for “the requirement described in

clause (3)(B) of subsection (a) of this section”.

Subsecs. (d), (e). Pub. L. 103-171, § 3(a)(5)(A), substi-

tuted “Assistant Secretary’s” for “Commissioner’s” wher-

ever appearing.

1992 — Subsec. (a). Pub. L. 102-375, § 307(a)(1), (2),

inserted “the succeeding sentence and” after “provided

in” in first sentence and inserted after first sentence “If

the Commissioner determines, in the discretion of the

Commissioner, that a State failed in 2 successive years to

comply with the requirements under this subchapter,

then the State shall submit to the Commissioner a State

plan for a 1-year period that meets such criteria, for

subsequent years until the Commissioner determines that

the State is in compliance with such requirements.”

before “Each such plan shall comply”.

Subsec. (a)(1). Pub. L. 102-375, § 102(b)(10)(F), substi-

tuted “agencies on aging in” for “agencies in”.

Subsec. (a)(3)(A). Pub. L. 102-375, § 307(a)(3), inser-

ted “and transportation services” after “legal assistance”

5la

and inserted at end “To conduct the evaluation, the State

agency shall use the procedures implemented under sec-

tion 3012(a)(29) of this title.”

Subsec. (a)(5). Pub. L. 102-375, § 307(b), inserted at

end “The State agency shall establish and publish pro-

cedures for requesting and conducting such hearing.”

Subsec. (a)(7). Pub. L. 102-375, § 307(c), designated

existing provisions as subpar. (A) and added subpars. (B)

and (C).

Subsec. (a)(8). Pub. L. 102-375, § 904(a)(13)(A)(i), sub-

stituted “greatest economic need and older individuals

with greatest social need” for “the greatest economic or

social needs”.

Pub. L. 102-375, § 307(d), inserted at end “In conduct-

ing such evaluations and public hearings, the State

agency shall solicit the views and experiences of entities

that are knowledgeable about the needs and concerns of

low-income minority older individuals.”

Subsec. (a)(9). Pub. L. 102-375, § 102(b)(4), substi-

tuted “information and assistance” for “information and

referral” in two places.

Subsec. (a)(10). Pub. L. 102-375, 102(b)(5), substituted

“section 3030i of this title” for “section 3030i(1) of this

title”.

Subsec. (a)(11). Pub. L. 102-375, § 307(e), substituted

“governments —” for “governments, preference shall be

given to individuals aged 60 or older”, and added sub-

pars. (A) and (B).

52a

Subsec. (a)(12). Pub. L. 102-375, § 307(f), amended

par. (12) generally, substituting provisions requiring the

plan to provide assurances that a State Long-Term Care

Ombudsman program be carried out in accordance with

section 3058g of this title for provisions setting out, in

subpars. (A) to (K), the assurances required to be pro-

vided by the plan with respect to such a program.

Subsec. (a)(13)(A). Pub. L. 102-375,

§ 904(a)(13)(A)(ii)(D, (ID, substituted “ to older individ-

uals” for “to individuals aged 60 or older” and “by older

individuals” for “by the elderly”.

Subsec. (a)(13)(B). Pub. L. 102-375,

§ 904(a)(13)(A)(ii)(IID, substituted “subparagraph” for

“subclause”.

Pub. L. 102-375, § 307(g)(1), inserted “(other than

under section 3023(b)(3) of this title)” after “available

under this subchapter”.

Pub. L. 102-375, § 102(b)(10)(C), substituted “area

agency on aging” for “area agency”.

Subsec. (a)(13)(F). Pub. L. 102-375, § 307(g)(2), inser-

ted “dietitians (or individuals with comparable experi-

ence),” after “advice of” and substituted “project will” for

“project may”.

Subsec. (a)(13)(H). Pub. L. 102-375, § 307(g)(3), struck

out “and” at end.

Pub. L. 102-375, § 102(b)(10)(E), substituted “area

agency on aging” for “area agency” in two places.

53a

Subsec. (a)(13)(H). Pub. L. 102-375,

§ 904(a)(13)(A)(ii)(IV), substituted “participating older

individuals” for “elderly participants”.

Pub. L. 102-375, § 307(g)(4), substituted semicolon for

period at end.

Pub. L. 102-375, § 102(b)(10)(C), substituted “area

agency on aging” for “area agency”.

Subsec. (a)(13)(J) to (M). Pub. L. 102-375, § 307(g)(5),

added subpars. (J) to (M).

Subsec. (a)(14). Pub. L. 102-375, § 102(b)(10)(A), sub-

stituted “area agencies on aging” for “area agencies”.

Subsec. (a)(14)(D). Pub. L. 102-375,

§ 904(a)(13)(A)(iii), substituted “subparagraph” for

“clause”.

Subsec. (a)(15)(B). Pub. L. 102-375, § 102(b)(10)(C),

substituted “area agency on aging” for “area agency”.

Subsec. (a)(15)(E). Pub. L. 102-375, § 307(h), added

subpar. (E).

Subsec. (a)(16). Pub. L. 102-375, § 307(i), substituted

“shall provide,” for “shall provide that” and “provide for

a” for “, if funds are not appropriated under section

3023(g) of this title for a fiscal year, provide that for

such”,

Subsec. (a)(16)(B). Pub. L. 102-375,

§ 904(a)(13)(A)(iv), substituted “paragraph” for “clause”.

Subsec. (a)(18). Pub. L. 102-375, § 307(j), inserted

“(one of whom shall be known as a legal assistance

developer)” after “personnel”.

54a

Subsec. (a)(20)(A). Pub. L. 102-375, § 708(c)(4), substi-

tuted “section 3026(a)(2)(A) of this title” for “sections

3026(a)(2)(A) and 3026(a)(6)(P) of this title”.

Subsec. (a)(21). Pub. L. 102-375, § 307(k), amended

par. (21) generaliy. Prior to amendment, par. (21) read as

follows: “The State plan shall provide that the State

agency, from funds allotted under section 3024(a) of this

title for part B of this subchapter and for paragraph (12)

(relating to the State long-term care ombudsman) shall

expend to carry out paragraph (12), for each fiscal year in

which the allotment for part B of this subchapter for the

State is not less than the allotment for fiscal year 1987 for

part B of this subchapter for such State, an amount which

is not less than the amount expended from funds received

under this chapter by such State in fiscal year 1987 to

carry out paragraph (12) as in effect before the effective

date of the Older Americans Act Amendments of 1987.

This paragraph shall not apply to American Samoa,

Guam, the Virgin Islands, the Trust Territory of the Pacific

Islands, and the Commonwealth of the Northern Mariana

Islands.”

Subsec. (a)(22). Pub. L. 102-375, § 102(b)(10)(E), sub-

stituted “area agency on aging” for “area agency” in two

places.

Subsec. (a)(24). Pub. L. 102-375, § 307(l), amended

par. (24) generally. Prior to amendment, par, (24) read as

follows: “The plan shall provide assurances that the State

agency will require outreach efforts that will -

“(A) identify older individuals who are eli-

gible for assistance under this chapter, with spe-

cial emphasis on older individuals with greatest

55a

economic need (with particular attention to low-

income minority individuals), older individuals

with greatest social need (with particular atten-

tion to low-income minority individuals), and

older individuals who reside in rural areas; and

“(B) inform such individuals of the avail-

ability of such assistance.”

Subsec. (a)(30). Pub. L. 102-375, § 307(m), amended

par. (30) generally. Prior to amendment, par. (30) read as

follows: “The plan shall provide assurances that if the

State receives funds appropriated under section 3023(g)

of this title, the State agency and area agencies on aging

will expend such funds to carry out part G of this sub-

chapter”.

Subsec. (a)(31). Pub. L. 102-375, § 307(n), amended

par. (31) generally, substituting provisions relating to an

area or State volunteer services coordinator for provi-

sions that State agency make funds available to eligible

area agencies on aging based on number of older individ-

uals with greatest economic need and inadequacy of out-

reach activities and applicat‘on assistance, that State

agency require area agency to submit application describ-

ing and evaluating activities for which funds were

sought, that State agency distribute to area agencies cer-

tain eligibility information, and that State agency submit

to Commissioner a report on evaluations required to be

submitted to it by area agencies.

Subsec. (a)(32) to (44). Pub. L. 102-375, § 307(n),

added pars. (32) to (44).

Subsec. (b)(1). Pub. L. 102-375, § 307(0), inserted

before period at end “, except the Commissioner may not

56a

approve such plan unless the Commissioner determines

that the formula submitted under section 3025(a)(2)(D) of

this title complies with the guidelines in effect under

section 3025(a)(2)(C) of this title”.

Subsec. (b)(2). Pub. L. 102-375, § 904(a)(13)(B), substi-

tuted “described in paragraph” for “described in clause”.

Subsec. (c). Pub. L. 102-375, § 307(p), designated exist-

ing provisions as par. (1) and added pars. (2) and (3).

Subsec. (f). Pub. L. 102-375, § 307(q), (r), redesignated

subsec. (g) as subsec. (f)(1), added subsec. (f)(2), and

struck out former subsec. (f), which related to demonstra-

tion projects for health and nutrition education.

Subsec. (g). Pub. L. 102-375, § 307(r)(1), redesignated

subsec. (g) as subsec. (f)(1).

1988 — Subsec. (a)(3)(A). Pub. L. 100-628 substituted a

period for “; and” at end.

1987 — Subsec. (a). Pub. L. 100-175, § 182(k)(1), substi-

tuted “Each such plan shall comply with all of the follow-

ing requirements:” for “Each such plan shall —”.

Subsec. (a)(1). Pub. L. 100-175, § 182(k)(2), (3), inser-

ted “The plan shall” and substituted a period for semi-

colon.

Subsec. (a)(3)(A). Pub. L. 100-175, § 182(k)(4)(A),

inserted “The plan shall”.

Subsec. (a)(3)(B), (4) to (7). Pub. L. 100-175,

§ 182(k)(4)(B), (5)-(8), inserted “The plan shall” and sub-

stituted a period for semicolon.

ey ee ee ee

57a

Subsec. (a)(3), Pub. L. 100-175, § 182(k)(9), inserted

“The plan shall” and substituted a period for semicolon.

Pub. L. 100-175, § 132(c)(1), inserted “, including an

evaluation of the effectiveness of the State agency in

reaching older individuals with the greatest economic or

social needs, with particular attention to low-income

minority individuals” before semicolon.

Pub. L. 100-175, § 128, inserted “, and public hearings

”

on,” after “evaluations of”.

Subsec. (a)(9). Pub. L. 100-175, § 182(k)(10), inserted

“The plan shall” and substituted a period for semicolon.

Subsec. (a)(10). Pub. L. 100-175, § 182(k)(11), inserted

“The plan shall” and substituted a period for semicolon.

Pub. L. 100-175, § 140(c)(1), which directed that par.

(10) be amended by substituting “nutrition services, or

in-home services (as defined in section 3030i(1) of this

title)” for “including nutrition services,”, was executed

by making the substitution for “or nutrition services,” to

reflect the probable intent of Congress and a previoiis’

amendment made by Pub. L. 98-459, § 307(a)(2).. See 1984

Amendment note below. :

Subsec. (a)(11). Pub. L. 100-175, § 182(k)(12), inserted

“The plan shall” and substituted a period for semicolon.

Subsec. (a)(12)(A). Pub. L. 100-175, § 129(d), amended

par. (12) generally, revising and restating as subpars. (A)

to (K) provisions of former subpars. (A) to (E).

Subsec. (a)(13). Pub. L. 100-175, § 182(k)(13), inserted

“The plan shall” and in subpar. (I) substituted a period

for semicolon.

58a

Subsec. (a)(13)(I). Pub. L. 100-175, § 136(c)(1), inser-

ted “, and to individuals with disabilities who reside at

home with and accompany older individuals who are

eligible under this chapter” before semicolon.

Subsec. (a)(14). Pub. L. 100-175, § 182(k)(14), inserted

“The plan shall” and in subpar. (E) substituted a period

for semicolon.

Subsec. (a)(15). Pub. L. 100-175, § 182(k)(15), inserted

“The plan shall” and in subpar. (D) substituted a period

for semicolon.

Subsec. (a)(16). Pub. L. 100-175, § 182(k)(16), inserted

“The plan shall” and in subpar. (C) substituted a period

for semicolon.

Pub. L. 100-175, § 144(d)(1), substituted “”, if funds

are not appropriated under section 3023(g) of this title for

a fiscal year, provide that for such fiscal year” for second

reference to “provide”.

Subsec. (a)(17) to (19). Pub. L. 100-175,

§ 182(k)(17)-(19), inserted “The plan shall” and substi-

tuted a period for semicolon.

Subsec. (a)(20). Pub. L. 100-175, § 182(k)(20), inserted

“The plan shall” and in subpar. (B)(ii) substituted a

period for “; and”.

Subsec. (a)(20)(A). Pub. L. 100-175, § 155(e)(2)(A),

substituted “sections 3026(a)(2)(A) and 3026(a)(6)(P) of

this title” for “section 3026(a)(2)(A) of this title”.

Subsec. (a)(21). Pub. L. 100-175, § 129(e), amended

par. (21) generally. Prior to amendment, par. (21) read as

noe ee

59a

follows: “provide that the State agency, from funds allot-

ted under section 3024(a) of this title for part B will use

an amount equal to an amount not less than 1 percent of

such allotment or $20,000, whichever is greater, for the

purpose of carrying out the provisions of clause (12),

except that (A) the requirement of this clause shall not

apply in any fiscal year in which a State spends from

State or local sources an amount equal to the amount

required to be spent by this clause; and (B) the provisions

of this clause shall not apply to American Samoa, Guam,

the Virgin Islands, the Trust Territory of the Pacific

Islands, and the Commonwealth of the Northern Mariana

Islands.”

Subsec. (a)(22). Pub. L. 100-175, § 130(b), added par.

(22).

Subsec. (a)(23). Pub. L. 100-175, § 131(b), added par.

(23).

Subsec. (a)(24). Pub. L. 100-175, § 132(c)(2), added

par. (24).

Subsec. (a)(25). Pub. L. 100-175, § 136(c)(2), added

par. (25).

Subsec. (a)(26). Pub. L. 100-175, § 138, added par.

(26).

Subsec. (a)(27). Pub. L. 100-175, § 140(c)(2), added

par. (27).

Subsec. (a)(28). Pub. L. 100-175, § 141(c), added par.

(28).

Subsec. (a)(29). Pub. L. 100-175, § 142, added par.

(29).

60a

Subsec. (a)(30). Pub. L. 100-175, § 144(d)(2), added

par. (30).

Subsec. (a)(31). Pub. L. 100-175, § 155(e)(2)(B), added

par. (31).

Subsec. (g). Pub. L. 100-175, § 137(b), added subsec.

(g).

1984 — Subsec. (a)(3)(A). Pub. L. 98-459, § 307(a)(1),

substituted “legal assistance” for “legal services”.

Subsec. (a)(10). Pub. L. 98-459, § 307(a)(2), substituted

“supportive services or nutrition services” for “suppor-

tive services, including nutrition services”, and inserted

“, or where such services are directly related to such State

or area agency on aging’s administrative functions, or

where such services of comparable quality can be pro-

vided more economically by such State or area agency on

aging”.

Subsec. (a)(12)(A). Pub. L. 98-459, § 307(a)(3)(A)-(C),

substituted “, other than an agency or organization which

is responsible” for “which is not responsible”, “which is

an association” for “which is not an association”, and

“which provides an individual who will, on a full-time

basis —” for “which will —” in provisions preceding cl. (i).

Subsec. (a)(12)(A)(iv). Pub. L. 98-459, § 307(a)(3)(D),

substituted “training staff and volunteers” for “training

volunteers”.

Subsec. (a)(12)(E). Pub. L. 98-459, § 307(a)(3)(E)-(G),

added subpar. (E).

Subsec. (a)(13)(B). Pub. L. 98-459, § 307(a)(4)(A), sub-

stituted “subclause (H)” for “subparagraph (H)”.

Ditessey eee Se

6la

Subsec. (a)(13)(C)(i). Pub. L. 98-459, § 307(a)(4)(B),

substituted “solicit voluntary contributions” for “charge

participating individuals”.

Subsec. (a)(13)(C)(ii). Pub. L. 98-459, § 307(a)(4)(C),

substituted “voluntary contributions” for “charges”.

Subsec. (a)(15). Pub. L. 98-459, § 307(a)(5), substituted

“legal assistance” for “legal services” wherever appear-

ing.

Subsec. (a)(15)(A). Pub. L. 98-459, § 307(a)(5), substi-

tuted “legal assistance” for “legal services” wherever

appearing. 7

Subsec. (a)(15)(B). Pub. L. 98-459, § 307(a)(6), in

amended subpar. (B) generally, substituted provisions

requiring assurances regarding the furnishing of legal

assistance by grantees administering programs designed

to provide legal assistance to older individuals with

social or economic need for provisions requiring assur-

ances regarding the furnishing of legal services by

grantees who were either recipients of funds under the

Legal Services Corporation Act or who administered pro-

grams designed to provide legal services to all older

individuals with social or economic need.

Subsec. (a)(16) to (18). Pub. L. 98-459, § 307(a)(10),

added pars. (16) to (18). Former pars. (16) to (18) redesig-

nated (19) to (21), respectively.

Subsec. (a)(19), (20). Pub. L. 98-459, § 307(a)(9),

redesignated former pars. (16) and (17) as (19) and (20),

respectively.

Subsec. (a)(20){B)(ii). Pub. L. 98-459, § 307(a)(7), sub-

stituted “; and” for the period at the end.

62a

Subsec. (a)(21). Pub. L. 98-459, § 307(a)(9), redesig-

nated former par. (18) as (21).

Subsec. (a)(21)(B). Pub. L. 98-459, § 307(a)(8), substi-

tuted “Commonwealth of the Northern Mariana Islands”

for “Northern Mariana Islands”.

Subsec. (b)(1). Pub. L. 98-459, § 307(b), substituted

“the Commissioner finds” for “he finds”.

Subsec. (d). Pub. L. 98-459, § 307(c), substituted “in

the Commissioner's discretion” for “in his discretion”,

“until the Commissioner is satisfied” for “until he is

satisfied”, “Until the Commissioner is so satisfied” for

“Until he is so satisfied”, “the Commissioner shall pre-

scribe” for “he shall prescribe”, and “the provisions of

this section” for “the provisions of section 307”.

Subsec. (e)(1). Pub. L. 98-459, § 307(d)(1), substituted

“designated by the Commissioner” for “designated by

him” and “the Commissioner's action is based” for “he

based his action”.

Subsec. (e)(2). Pub. L. 98-459, § 307(d)(2), substituted

“set aside the Commissioner’s order” for “set aside his

order”.

Subsec. (f). Pub. L. 98-459, § 307(e), added subsec. (f).

1981 - Subsec. (a). Pub. L. 97-115, § 7(a}, substituted

“for a two-, three-, or four-year period determined by the

State agency,” for “for a 3-year period,” in the provisions

preceding par. (1).

Subsec. (a)(3)(A), (10). Pub. L. 97-115, § 3(d), substi-

tuted “supportive services” for “social services”.

’

‘

63a

Subsec. (a)(13)(A). Pub. L. 97-115, § 7(b), substituted

“aged 60 or older and to their spouses, and may be made

available to handicapped or disabled individuals who

have not attained 60 years of age but who reside in

housing facilities occupied primarily by the elderly at

which congregate nutrition services are provided” for

“aged 60 or older, and to their spouses”.

Subsec. (a)(13)(B). Pub. L. 97-115, § 7(c), substituted

“primary consideration shall be given to the provision of

meals in a congregate setting, except that each area

agency (i) may award funds made available under this

subchapter to organizations for the provision of home

delivered meals to older individuals in accordance with

the provisions of subpart II of part C, based upon a

determination of need made by the recipient of a grant or

contract entered into under this subchapter, without

requiring that such organizations also provide meals to

older individuals in a congregate setting; and (ii) shall, in

awarding such funds, select such organizations in a man-

ner which complies with the provisions of subparagraph

(H)” for “each project will provide meals in a congregate

setting, except that each such project may provide home

delivered meals based upon determination of need made

by the recipient of a grant or contract entered into under

this subchapter”.

Subsec. (a)(13)(C)(ii). Pub. L. 97-115, § 7(d), inserted

“, to facilitate access to such meals, and to provide other

supportive services directly related to nutrition services”

after “the project involved”.

Subsec. (a)(13)(D). Pub. L. 97-115, §§ 3(d), 7(e), inser-

ted “in the case of meals served in a congregate setting,”

64a

before “a site for such services”, substituted “supportive

services” for “social services”, and struck out “or home

delivered meals are furnished to eligible individuals who

are homebound” after “transportation to such site is fur-

nished”.

Subsec. (a)(13)(I). Pub. L. 97-115, § 7(f), substituted

“each area agency shall establish procedures that will

allow nutrition project administrators the option to offer

a meal, on the same basis as meals are provided to elderly

participants, to individuals providing volunteer services

during the meal hours” for “each State agency may only

for fiscal years 1979 and 1980, use not to exceed 20

percent for the amounts allotted under part C to the State

for supportive services, including recreational activities,

informational services, heaith and welfare counseling,

and referral services, directly related to the delivery of

congregate or home delivered meals, except that the

Commissioner may approve an application from a State

to use not to exceed 50 percent of its amount allotted

under part C in areas with unusually high supportive

services costs”.

Subsec. (a)(16) to (18). Pub. L. 97-115, § 7(g), added

pars. (16) and (17) and redesignated former par. (16) as

(18).

Subsec. (b)(2). Pub. L. 97-115, § 7(h), redesignated

par. (3) as (2). Former par. (2), which related to the

authority of the Commissioner to waive particular

requirements of State plans for fiscal years 1979 and 1980,

was struck out.

65a

Errective Dare or 1992 AMENDMENT

Amendment by sections 307 and 708(c)(4) of Pub. L.

102-375 inapplicable with respect to fiscal year 1993, see

section 4(b) of Pub. L. 103-171, set out as a note under

section 3001 of this title.

Amendment by sections 307 and 708(c)(4) of Pub. L.

102-375 inapplicable with respect to fiscal year 1992, see

section 905(b)(2), (6) of Pub. L. 102-375, set out as a note

under section 3001 of this title.

Errective Date or 1987 AMENDMENT

Amendment by Pub. L. 100-175 effective Oct. 1, 1987,

except not applicable with respect to any area plan sub-

mitted under section 3026(a) of this title or any State plan

submitted under section 3027(a) of this title and

approved for any fiscal year beginning before Nov. 29,

1987, see section 701(a), (b) of Pub. L. 100-175, set out as a

note under section 3001 of this title.

Errective Dare or 1984 AMENDMENT

Amendment by Pub. L. 98-459 to take effect Oct. 9,

1984, see section 803(a) of Pub. L. 98-459, set out as a note

under section 3001 of this title.

ASSESSMENT OF UNsatisFiep DEMAND POR SUPPORTIVE SERVICES

PROVIDED AT SENIOR CENTERS AND OTHER SiTEs

Section 111 of Pub. L. 100-175 directed Commissioner

on Aging, not later than Sept. 30, 1989, to submit to

66a

Congress a report assessing national unmet need for sup-

portive services, nutrition services, and multipurpose

senior centers by summarizing in detail for each State the

results of the most recent evaluation conducted by the

State agency under the then current plan submitted

under section 307(a)(3)(A) and containing recommenda-

tions of the Secretary with respect to the for ad:zninistra-

tive action and legislation relating to satisfying the

demand for supportive services provided at senior cen-

ters and other sites.

SruDpY OF OMBUDSMAN PROGRAM

Section 129(b) of Pub. L. 100-175 directed Commis-

sioner on Aging, not later than Dec. 31, 1989, to conduct a

study and submit a report to Congress concerning

involvement in the ombudsman program established

under 42 U.S.C. 3027(a)(12) and its impact upon issues

and problems affecting residents of board and care facili-

ties and other similar adult care homes who are older

individuals as defined in 42 U.S.C. 3022(10), and the

effectiveness of recruiting, supervising, and retaining vol-

unteer ombudsmen.

SecTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 1395i-3, 1396r,

3002, 3011, 3012, 3017, 3020e, 3021, 3024, 3025, 3026, 3028,

3029, 3030d, 3030e, 3030f, 3030g-11, 3030h, 3030i, 30301,

3030m, 3030p, 3035a, 3035c, 30350, 3057e, 3058d of this

title.

67a

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

CHURCH ON THE ROCK and

PASTOR DON KIMBRO,

Plaintiffs,

v. No. CIV 94-1101-JC/WWD

CITY OF ALBUQUERQUE, and

TONI MARTORELLI, in her official

capacity as Director of Family

and Community Services for the

City of Albuquerque, and MARK

SANCHEZ, in his official

capacity as Deputy Director of

Family and Community Services

for the City of Albuquerque,

and KATHLEEN STARK, in her

official capacity as Supervisor,

Bear Canyon Senior Center,

City of Albuquerque,

Defendants.

AFFIDAVIT OF LORRAINE R. NUNEZ

IN OPPOSITION TO MOTION

FOR PRELIMINARY INJUNCTION

COUNTY OF BERNALILLO )

) ss.

STATE OF NEW MEXICO )

COMES NOW the affiant, LORRAINE R. NUNEZ,

being first duly sworn upon her oath, deposes and states:

68a

1. I am employed by the City of Albuquerque (the

“City”) in the position of Legal Secretary for the Legal

Department.

2. I personally audio recorded and then transcribed

the last approximately 5 minutes of the JESUS tape, a true

and correct copy of which transcript is attached hereto

and made a part hereof as Exhibit “A”.

/s/ Lorraine R. Nufiez

LORRAINE R. NUNEZ

SUBSCRIBED AND SWORN TO before me this 18th

day of October, 1994, by LORRAINE R. NUNEZ.

/s/ Janet L McCallister

Notary Public

My Commission Expires:

August 15, 1995

EXHIBIT “A”

TRANSCRIPT — LAST 5 MINUTES

The place where the body of the Lord Jesus was placed is

empty. Three days after His crucifixion He rose from the

dead. He is alive. He wants to come into your life. Jesus

himself said “I am the resurrection and the life. He that

believes in me though he were dead yet shall he live.”

Almost 2,000 years have past since Jesus rose from the

dead and He still lives today as the greatest and most

powerful influence in the world. The proud statesmen of

the past centuries have come and gone. Rulers, scholars,

<b, lie bitte

69a

scientists, philosophers and theologians have come and

gone, but Jesus still lives today.

He is the most unique person who has ever lived. His

birth was unique. The Bible tells us He was born of the

Virgin Mary. His life was unique. His life was charac-

terized by the supernatural. He lived a holy life without

sin and performed greater miracles than anyone who ever

lived. His message was unique. He offers love, forgive-

ness, and a new way of life to all who receive Him as

Savior and Lord. Wherever His message has gone, new

life, new hope, and new purpose for living have resulted.

His death on the cross was unique. Two thousand years

ago, the God of the universe sent His only Son, Jesus

Christ, to be the sacrifice for the sin of all men. He died

for you. His resurrection was unique. Three days after

His death the most amazing event in history took place,

Jesus rose from the dead. His birth, His life, His death,

and His resurrection, all prove that Jesus is exactly who

He claimed to be, the Son of God, the Savior of all

mankind.

This same Jesus Christ is alive today. He wants to come

into your life, forgive your sins, and give you the power

to live an abundant life. Listen to His words: “Come unto

me all you that labor and are heavy laden and I will give

you rest. I am the way, the truth and the life. No man

cometh unto the Father but by Me.” The Bible says, “for

all have sinned and come short of the glory of God.” It

also says “for the wages of sin is death but the gift of God

is eternal life through Jesus Christ our Lord.”

When Jesus died He paid the penalty for your sin. Right

now He stands ready to come into your life. “Behold, I

70a

stand at the door and knock. If any man hear my voice

and open the door, I will come into him.” To experience

His love and forgiveness and receive eternal life, you

must receive Him as God’s sacrifice for your sin and

invite Him to come into your life by faith. If this is the

desire of your heart you can pray a prayer of faith and

Jesus Christ will come into your life. This is a suggested

prayer, I will say it first:

Lord, Jesus, I need you. Thank you for dying on

the cross for my sins. I open the door of my life

and receive you as my Savior and Lord. Take

control of my life, make me the kind of person

you want me to be. Amen.

If this prayer expresses the desire of your heart pray this

prayer right now where you are, pray after me silently as

I repeat it one phrase at a time:

Lord, Jesus, I need you. -

Thank you for dying on the cross for my sins. -

I open the door of my life and receive you as my

Savior and Lord. -

Take control of life, make me the kind of person

you want me to be. -

Amen.

Now that you have prayed this prayer of faith and

invited Jesus Christ to come into your life, you can be

sure that He came in because He promised He would if

only you would ask Him. You can also be sure that your

sins are forgiven, that you are a child of God and have

eternal life. If you want to experience the full and abun-

dant life which Jesus promised, talk with Him every day

in prayer. Discover His wonderful plan for your life by

7la

reading the scriptures and meet with others who love and

follow Him. Finally, remember always, His wonderful

promises. “I will never leave you or forsake you. Lo, I am

with you always even unto the end of the world.”

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APPENDIX F

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

CHURCH ON THE ROCK and

PASTOR DON KIMBRO,

Plaintiffs,

v. No. CIV 94-1101-JC/WWD

CITY OF ALBUQUERQUE, and

TONI MARTORELLI, in her official

capacity as Director of Family

and Community Services for the

City of Albuquerque, and MARK

SANCHEZ, in his official

capacity as Deputy Director of

Family and Community Services

for the City of Albuquerque,

and KATHLEEN STARK, in her

official capacity as Supervisor,

Bear Canyon Senior Center,

City of Albuquerque,

Defendants.

AFFIDAVIT OF KIM H. PERDUE IN OPPOSITION

TO MOTION FOR PRELIMINARY INJUNCTION

COUNTY OF BERNALLILO )

) ss.

STATE OF NEW MEXICO )

COMES NOW the affiant, KIM H. PERDUE, being

first duly sworn upon his oath, deposes and states:

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1. I am employed by the City of Albuquerque (the

“City”) in the position of Senior Center Network Man-

ager in the Department of Senior Affairs. I have held this

position for about 15 years, and my general duties

encompass the management and control of the City’s six

senior centers and the programs that are run from those

facilities, among them being the Bear Canyon Senior Cen-

ter.

2. Contrary to the facts stated in Paragraph 4 of the

Affidavit of Pastor Don Kimbro in Support of Motion for

Preliminary Injunction, the City does not on a “space

available basis” allow the Bear Canyon Senior Center —- or

any senior center — “to be used by members of the general

public for the showing of films, lectures, various pro-

grams, and discussions on an unfettered range of sub-

jects.” The City, as demonstrated hereinbelow, has

numerous restrictions on use of senior centers that are

designed to ensure that the centers are kept for the bene-

fit of and be appropriate for senior citizens.

3. The City prohibits use of any of the senior centers

“for sectarian instruction or as a place of religious wor-

ship”. (See Section 6, Paragraph 1.G. - “Facilities” — of

Senior Center Policy and Procedures Manual, a true and

correct copy of which is attached hereto as Exhibit “A”

and incorporated herein by reference). This policy was

prepared and implemented in accordance with, and as a

reflection of, the Older Americans Act, 42 U.S.C.A.

3027(a) (14) (A) (iv), which provides in pertinent part that

as a condition of receiving federal grant monies for senior

centers each State must give assurances that a senior

center “will not be used and is not intended to be used

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for sectarian instruction or as a place for religious wor-

ship.” The City has received federal monies in the acqui-

sition, alteration or renovation of a number of its senior

centers.

4. Moreover, City policy requires that use of senior

centers be restricted to “usage by center members, senior

citizen organizations, or organizations composed of at

least 75% senior citizen membership (55 years or older).”

(Exhibit “A”, Section 6, Paragraph 1.B.) The City does not

allow use of any senior center by members of the general

public who do not meet these restriction, except for occa-

sional meetings by City departments or groups meeting

to discuss issues specific to senior citizens (See Para. 7

hereinbelow).

5. Moreover, in addition to the prohibition against

use for sectarian or religious purposes, and the rule that

users meet the 75% senior citizen requirement, the City

prohibits use of senior centers by for-profit businesses,

except for limited and controlled advertising practices.

(See Exhibit “A”, Section 6, “Facilities”, Paragraph 1.E.)

6. Moreover, in addition to the other restrictions on

use of senior centers identified above, the City restricts

the use of such facilities for political purposes. In particu-

lar, City policy prohibits speeches by single candidates,

and restricts the distribution of campaign literature. (See

Section I, Paragraph 6 — “General Guidelines” — Office of

Senior Affairs Policy and Procedure Manual, a true and

correct copy of which is attached hereto as Exhibit “B”

and incorporated herein by reference.)

7. The City further restricts use of senior centers by

outside groups by requiring that such groups be

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approved by the center director, and that groups be com-_

prised of 75 percent senior citizens or be “for the express

purpose of studying or discussing senior citizen issues”.

(Exhibit “C”, Section XI, “General Guidelines for Facili-

ties”) In addition, the Older Americans Act requires that

members be involved in determining the programs that

are offered at each facility, and the City implements this

policy.

8. The purpose of senior centers, including the Bear

Canyon Senior Center, is not to promote expression, but

rather, as stated at 42 U.S.C.A. Section 3002(35), to pro-

vide a variety of “services” to senior citizens, including

recreation, health and fitness, nutritional needs, referral

to senior citizen service providers, health assessment and

screening, education, shopping assistance, and tax prepa-

ration assistance.

9. The City has never had a policy or practice of

opening its senior centers, including the Bear Canyon

Senior Center, for discourse by the public at large on an

unrestricted basis.

10. Senior centers, including the Bear Canyon

Senior Center, are not intended for the purpose of solic-

itation or religious proselytizing. In fact, the practices of

selling products or recruiting members, including reli-

gious proselytizing, are inconsistent with the intended

use of such centers — and are prohibited — because such

practices tend to target an often frail and vulnerable

audience and because they are contrary to the intended

purpose of senior centers, which is to provide a largely

self-governing haven for recreation, services and socializ-

ing by senior citizens.

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11. The City policy against use of the Bear Canyon

Senior Center by religious groups is consistently enforced

through programmatic oversight against all persons,

regardless of religious denomination, belief or creed.

12. In addition to the reasons stated hereinabove,

the City has denied use of the Bear Canyon Senior Center

to show the Jesus film and to distribute Bibles because it

would constitute a violation of 42 U.S.C.A. Section 3027,

and because it would result in opening the door to unre-

stricted religious and nonreligious solicitation at senior

centers, and cause unmanageable competition and clamor

among religious, political and for-profit business for lim-

ited senior center space in order to gain the captive ear of

senior citizens. The result would be to alter the character

of such facilities.

13. On May 18, 1994, the City offered to permit the

Church on the Rock to use of one of its multi-service

centers, which are open to the general public, to show the

Jesus film. (See Exhibit “8” to Affidavit of Pastor Don

Kimbro). The Church on the Rock did not respond to that

offer.

/s/ Kim H. Perdue

KIM H. PERDUE

SUBSCRIBED AND SWORN TO before me this 18th

day of October, 1994, by KIM H. PERDUE.

/s/ Janet L. McCallister

Notary Public

My Commission Expires:

August 15, 1995

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Exhibit “A”

SECTION 6

FACILITIES

All facilities are to be maintained so as to provide for

health, safety, and comfort of senior citizen participants

during conduction of programs. Responsible for the facil-

ity is the Senior Center Director or his/her designated

representative. The facility includes the building

designed for senior center activities, the grounds it is

situated on, the equipment used for programming, and

for maintenance and upkeep.

Building

1. Operation and Usage

A. The facility will be made available for pro-

grams based on budgetary limitations.

B. The facility will be made available for usage by

center members, senior citizen organizations,

or organizations composed of at least 75%

senior citizen membership (55 years or older).

1. During the off hours of the center pro-

grams, the facility is available for usage

provided an amount offsetting the cost of

staffing the event is paid.

2. Rental written agreements with relevant

parties will state hours to be used, respon-

sibility for maintenance and repairs, equip-

ment usage, cost of event, security of

building, liability, and insurance.

C. Smoking permitted in designated smoking

rooms only.

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D. No gambling is allowed in the facilities as per

city ordinance and state statutes.

E. Advertising for profit of a private company or

business can be conducted in the following

manner:

1. Through the senior centers newsletter

where cash is handled by Advisory Council

members and all proceeds go to the council

or,

2. Sponsoring a function by purchasing food

items, supplies, and/or entertainment for

an event. The company can then post a sign

with their name and phone number and

have literature or trinkets available (during

the event) for people to pick up.

F. It is prohibited to use any Office of Senior

Affairs staff, equipment, food, facilities, or

vans to cater private parties and non-OSA

functions.

G. It is prohibited to use any OSA facility for

sectarian instruction or as a place for religious

workship [sic].

2. Maintenance

A. Interior

1. A daily check of all tables and chairs will

be made by staff personnel as they are

used, and needed repairs be immediately

referred to the facility director.

2. Furnishings will be attractive, comfortable,

safe and suitable for participants with

mobility and visual limitations.

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The city’s Building Maintenance Division

will be contacted before season use of heat-

ing or cooling units.

a) Inspection of units should be made

periodically for adequate quiet heating,

cooling, and ventilation systems.

Provisions for past control shall be made a

minimum of once a month.

Floors and carpets shall be cleaned imme-

diately upon report of spillage for health

and safety reasons.

In order to provide adequate lighting, fix-

tures will be checked periodically.

Restrooms will be cleaned, checked for

repairs, and maintained with proper sup-

plies daily.

The facilities will be closed one week every

six months for renovations, painting, and

cleaning.

Ingress and Egress for handicapped shall

always be accessible and movement within

the facility will be barrier free in confor-

mance with a city ordinance.

Exterior

The building shall be constantly main-

tained to provide an attractive appearance.

Identification signs and iettering on build-

ing shall be in good repair to make clear

the purpose of the facility.

Roof leakage shall be repaired immediately

in order to prevent damage in the interior.

80a

4. Lighting shall be constantly maintained for

visual protection of the building.

3. Safety

A. Fire Safety

1. Periodic firedrills will be conducted on a

quarterly basis.

2. Smoke detectors will be checked for proper

functioning semi-annually.

3. Fire extinguishers will be provided as

required by City fire code.

4. Arrangements will be made with the Fire

Dept. for required inspections.

5. Fire Department regulations will be posted

and complied regarding maximum number

of people allowed at a function.

6. Combustible materials will be stored

according to Fire Dept. regulations.

B. Participant Safety

1. First Aid Kits will be kept in the staff office

and restocked as necessary.

2. Handrails will be provided in all lavatories.

3. Floors will be maintained with non-skid

supplies.

4. Handles and latches will be checked fo

proper functioning and replaced as neces-

sary.

5. Hallways will be barrier free and well

lighted.

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Grounds

1. Maintenance

A. It is the responsibility of the facility director to

see that the grounds, parking lots and irriga-

tion systems shall be maintained according to

the contract between OSA and the Parks and

Recreation Department.

B. Handicapped parking will be provided accord-

ing to City Ordinance R-40 Sec. 40.E. (2%).

C. Ingress and egress will always be accessible for

emergency vehicles.

D. All roads, paths, sidewalks, etc. will be

repaired immediately as needed.

E. The facility director is responsible for arrang-

ing for refuse containers and for refuse

removal.

F. Air conditioning and heating units will be

checked by Building Maintenance before the

season starts.

2. Safety

A. Snow and/or ice removal from all roads, paths,

sidewalks and parking lots shall be done

immediately.

B. The parking lot will be sufficiently illuminated.

Arrangement for police surveillance will be on

a daily basis.

Equipment

All equipment will be described and serial numbers

noted on Inventory cards. One copy to go to fiscal

accounting and one retained at the center where the

equipment is located.

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Building

1. Kitchen

A. Ovens will be cleaned daily so that they may

always be sanitary for cooking.

B. Freezers and refrigerators will be checked

daily for proper functioning so there will not

be any food loss.

C. Icemakers will be checked daily so that seniors

will be assured of having cool drinks.

D. All coffeepots, urns, pans, dishes, glasses, meat

cutters, grinders, cups, utensils, knives, etc.,

will be cleaned immediately

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.