Catholic versus Public Schools in Pawtucket RI

On October 14, 2009, the ACLU, on behalf of seven plaintiffs and their families, brought a lawsuit against the City of Pawtucket “charging that the Parks and Recreation Division has, for a number of years, given preferential treatment to parochial schools over public schools in granting permits for the use of city athletics fields.”  The suit sought a court order declaring the preferential treatment towards religious schools and the lack of objective standards for granting permits for field use unconstitutional. Though the suit says “religious” it could just as easily read “Catholic,” as in Roman Catholic.

The Diocese of Providence claims to represent nearly 619,964 Catholics in Rhode Island.  A 2009 survey by Gallup placed the percentage of Catholics in the state at 53%.  (A recent survey by Trinity College places the number at 46%) The United States Census determined that Rhode Island has about 1,053,209 people in it, which works out to 558,201 self-identifying Catholics. The significant difference of over 61 thousand people should be noted.

Still despite these caveats, Rhode Island is the most Catholic of the United States, which has the effect of sometimes warping our politics and policies towards a kind of fundamentalist Catholic mindset. It may surprise the rest of the country that there is still an official “School Prayer” on the wall of Cranston West High School, or that a huge flap can be made about what to call a decorated evergreen on state property between Thanksgiving and New Year’s Day, but if you live here and pay attention, you would understand this to just be the way things are. The RI Tea Party, such as it is, is made up of many Catholics. I watched the same Catholic priest give the opening prayer at two Tea Party rallies at our state house, and then follow with a speech about how the First Amendment guarantees freedom of religion, not freedom from religion. It was both sad and creepy.

So the latest suit to be brought by the ACLU can be seen as yet another attempt to stem the tide of this right wing Catholic trend. Public property is being used for private Catholic school’s sporting events and the private Catholic schools have long been given first dibs on using the property. The ACLU press release explains:

For example, O’Brien Field, a public field that was refurbished with tax money in 2001… has since been reserved exclusively for use by Saint Raphael Academy, “particularly on week-day afternoons in the fall season, despite repeated requests by various public school officials for use of [the field] for public school sponsored interscholastic sports.” The suit further alleges that public junior high school teams have been denied the use of at least two other fields, which have often been reserved for the use of St. Raphael and/or Bishop Keough Regional High School’s athletic teams, both of which are private sectarian schools.

At the time the suit was filed in 2009, Maggi Rogers, who once stood on the Parks and recreation board and is also the lead plaintiff, had this too say:

We are frustrated by six years of stonewalling by city officials, grateful for the assistance of the RI ACLU, and optimistic that the Constitution will prevail. It is discouraging to teach our public school students about the Bill of Rights in the classroom and then see them look out those same classroom windows to see it violated on a daily basis.

RI ACLU director Steve Brown added:

It is appalling that city officials have so cavalierly, and for so long, discriminated against their own public school students in order to benefit religious schools. We are hopeful that today’s lawsuit will bring an end to this disturbing practice.

Though Maggi Rogers mentions that she has been working for six years to remedy this situation, the preferential treatment for Catholic schools goes back much farther than 2003. Maybe even forty years farther back, as we will see shortly. Maggi Rogers adds, “The implied message is that the ruling class of Pawtucket takes care of St. Raphael Academy.”  It should be noted that two of  the other the plaintiffs in the suit were once members of the Pawtucket School Committee, so they have an insider’s knowledge of the way the city works. These are not trouble making atheists, they are concerned, involved citizens and parents.

Named in the suit is William Mulholland, Pawtucket Parks and Recreation superintendent. He made a habit of not speaking directly to the press, and of letting the City Solicitor, Margaret Lynch-Gadaleta, speak for him. The allegations in the lawsuit were, of course, denied. St Raphael’s Academy, named in the suit for receiving special favor, but not actually being sued, issued the following statement:

St. Raphael said that it does not believe it gets special treatment and that more than half the families of its student athletes live in the city and pay taxes.

Which in my mind amounts to “we don’t receive any special treatment but even if we did, half our kids are residents and therefore it’s kind of okay.” In fact, as the Boston.com article points out, St. Raphael’s Academy had obtained an exclusive permit to use the field, year in and year out, a field that is maintained by city workers and city funds. Maggi Rogers points out that:

public school students have sometimes been denied a field on which to practice or have been forced onto subpar playing facilities. She recalled a time when a public high school girls’ soccer team had to play on a field that she said was littered with glass and dog feces.

Private school kids get a well maintained field, paid for with city taxpayer dollars, while public school kids get broken glass and dog shit. Sounds about right.

Oddly, part of the City of Pawtucket’s defense is that there is a “long-standing lack of written policies [that] has enabled and continues to enable [Pawtucket] to provide preferential field allocation to religious schools.” A weird defense to be sure. Until recently the decision as to what schools get which fields rested entirely with the Pawtucket Parks and Recreation Superintendent.

Maggi Rogers had been trying to get the city to enact some sort of policy regarding the fields for at least six years, but the actual problem goes back much farther than that. Testifying at the trial, which began December 15, 2011, the now retired Mulholland testified:

that the assigning of fields and other facilities had been a “grandfathered” process going back before his time. When conflicts arose, he said, he sought guidance from the city public works director.

“I continued what my predecessors did,” Mulholland said, noting he had worked for three or four past parks and recreation superintendents. “I’d say 99 out of 100 times [the various fields and facilities for school teams] were grandfathered in.”

The use of this “grandfathering” procedure simply ensured that the preferential treatment the parochial schools were receiving would continue forever. There was no way any well meaning citizen’s group could have broken through this, no appeal to fairness or the Constitution that could sway policy. A lawsuit became the only recourse.

After months of discovery, during which time the City of Pawtucket slyly adopted a policy for assigning fields to schools, on February 3, 2011 the ACLU asked the court for a summary judgement. As the ACLU volunteer attorney Sandra Lanni points out:

until last year, the Office of Parks and Recreation had no written policies governing the issuance of permits for city owned athletic fields. Even the new policy, which the ACLU claims is still deficient, is ignored anyway, leaving parks Superintendent William Mulholland with total discretion in deciding what schools get to use the fields.

So an inadequate policy was adopted and never used, surely this was a ruse to trick the court into thinking that the City had changed its ways. The motion continued:

There is no dispute that City of Pawtucket has and continues to empower the Superintendent of Parks and Recreation to issue permits for the use of its fields and related facilities in his complete and absolute discretion, in violation of the First and Fourteenth Amendments of the United States Constitution.  Further, the Superintendent has exercised his authority in such a way as to benefit private, sectarian schools operated by the Roman Catholic Diocese of Providence.   By so doing, the City has failed to abide by the neutrality towards religion required by the Establishment Clause.

The City, of course, denied all wrongdoing:

Mayor Doyle and other city officials have maintained that the city's position regarding the use of playing fields had been one of trying to accommodate all of the city schools' athletic teams, both public and private.


For some reason, the Roman Catholic Diocese of Providence felt compelled to issue a statement, though they are not actually named in the suit:

A spokesman for the Roman Catholic Diocese of Providence had also previously issued a statement saying that St. Raphael Academy did not believe that it received preferential treatment with regard to athletic fields in the City.

While the RI ACLU case was underway, a local Pawtucket attorney, Mark McBurney, considered a lawsuit that would seek to end the free use of public fields for private schools on the grounds of the First Amendment clause regarding church/state separation.   McBurney tried to generate interest in the issue, but the mainstream media in Rhode Island did not want to give McBurney the time of day. Perhaps his action, launched at a time that the ACLU was suing the City of Pawtucket, confused the issue.

McBurney did get some press, though. A local progressive newsweekly, The Providence Phoenix,   had this to say, courtesy of contributors Phillipe and Jorge’s “Cool, Cool World” on August 24, 2011:

A couple of weeks ago, I met with Pawtucket attorney Mark McBurney, a member of the storied Pawtucket clan. He is suing Pawtucket in Federal District Court for alleged First Amendment violations. He wanted me to take a look at the case and, perhaps, let readers of the "Cool, Cool World" know what it's all about.

Mark, in an unpublished op-ed he showed me, says that for "44 years and counting, Pawtucket City Hall has violated the 1st Amendment by subsidizing and giving preferential treatment to Catholic school athletics."

He says that the "grandfather clause" that claims an unwritten policy by which "Catholic schools in Pawtucket are allowed to use the City's best athletic fields, for eternity, and for free," flies in the face of the First Amendment. He notes, "Compare feces- and glass-strewn Abeka Field (which Tolman has been forced to use in recent years) with plush O'Brien Field (which City Hall reserves exclusively for St. Raphael's Academy) for tangible proof of Pawtucket's apartheid."

Yes, McBurney compares what Pawtucket is doing to conditions in the segregated South of yore. He says that such policies flourish in an atmosphere of secrecy and that the city of Pawtucket is blatantly following this course. "City Hall knows secrecy is the key to continue diverting City assets to Catholic voters. With four violations of the Access to Public Records Act, the only recorded failure of a RI city to comply with an Attorney General ruling on the Public Records Act, and a long-standing refusal to create a written policy governing field allocation, Pawtucket stands apart — and not in a good way."

The ball is now in Pawtucket Mayor Donald Grebien's court. Jorge has great admiration and respect for Mayor Grebien and no reason to believe that he is not a man of honor and integrity. Everything he has done since his election indicates that. I hope that he'll be able to see this current imbroglio for what it is. Attorney McBurney is right about this matter.

Despite the optimism about Mayor Grebien being a man of honor, in fact nothing was done by city officials to resolve the issue, just more stonewalling and business as usual. McBurney and his potential lawsuit were just ignored. He was interviewed on Freethought Rhode Island, a locally produced broadcast by the Rhode Island Atheists and invited to speak at their monthly meeting, but other than that, very little press.

To attract attention to his cause, McBurney decided to “crash” as the Pawtucket Valley Breeze put it, a City of Pawtucket photo contest. The Valley Breeze showed little in the way of Constitutional understanding or journalistic integrity when they described McBurney as

A disgruntled local attorney, an activist who has taken local officials to task on a number of fronts.

McBurney’s entries into the photo contest were Photoshopped editorials, with titles such as “Pawtucket Politicians Who'd Rather Raise Taxes Than Cut Subsidies to Catholic Schools” and “You Must Be Catholic to Enter Per Order of Mayor Grebien.” Calling the titles of the photos too long, Pat Zacks, the photo contest organizer shortened the titles on many of McBurney’s photos. The first mentioned above was shortened to merely “Pawtucket Politicians” and the second to “You Must be Catholic to Enter.” According to McBurney, the alterations “eviscerated artistic intent and rendered the photos meaningless.” The photos were also apparently placed close to the floor and in a hard to see place when displayed with other entries. Pat Zacks, the woman who censored McBurney’s titles, whether for length or content, is a supporter of Mayor Grebien.

A letter written by a Catholic priest, the Reverend Ronald E. Brassard of the Immaculate Conception Parish in Cranston RI and a graduate of St Raphael Academy went after McBurney and called his photos “classless” :

More disturbing than the discussion of the playing field is the article concerning the classless photographs of Mark McBurney. Obviously, angry with the church, Mr. McBurney is both callous and calumnious in his portrayal of the relationship between faith and government. The richness of the Blackstone Valley is how many different dimensions of faith exist side by side with government and politics. The petty photographs that Mr. McBurney submitted are shameful, not for their lack of good photographic skills, but for the baseness of their intent and the lack of respect contained therein.

What is so strange is Mr. McBurney, as well as many of those who have opposed the use of O'Brien Field by Saint Raphael Academy, were all educated at St. Raphael Academy.

Whenever a Catholic, or former Catholic criticizes the Church, some official will accuse them of simply being “angry with the church.” This is an attempt at infantilizing the person making the complaint. Brassard goes on to point out that McBurney is himself a graduate of St. Raphael’s Academy, basically accusing him of biting the hand that fed him. Nowhere does the Reverend actually make a case for or against the preferential treatment of parochial schools in field assignments.

Note how often the church gets involved. If there is no preferential treatment, why is the church so keen to issue statements in favor of the status quo? What are they fighting to hang onto if everything is so fair? It is perhaps unfair for this article to point out that Brassard is named on BishopAccountability.org in connection with an abuse case from the 1970’s.  From the website:

Summary of Case: Plaintiff claims he was 13 and student at St. Henry's Seminary in Illinois in 1970s when abuse began. Said Brassard and several other priests abused him. Sued 1995. Diocese said that, due to inconsistencies, Brassard would remain active at Immaculate Conception Parish in Cranston pending further investigation. Still active pastor at same church per diocesan website accessed Feb. 4, 2010.

and:

Man in 1994 alleged a ring of priests at the Our Lady of the Snows sexually abused him in the early 1980s, and pressured him and other teenage boys into soliciting men as sexual partners for the priests (St. Louis Post-Dispatch February 7, 1994). Brassard named as one of the abusive priests (Providence Journal-Bulletin May 5, 1995)

No criminal charges seem to have been brought.

The same day the McBurney photo story made the paper there was an interesting development in the case, and city officials were quick to capitalize on it to claim their hands were unstained by charges of favoritism to Catholic schools. Apparently St. Raphael Academy filled out the application for field use after the June 15 deadline. Remember the new policy put in place by Mulholland, the one he was accused of ignoring at his leisure? Well Mulholland retired, and his replacement, John Blais, decided to enforce the policy, as inadequate as the ACLU maintained it was.

Staff at St. Raphael Academy never filled out a required application to use city fields this fall, and now Pawtucket officials have dropped the private Catholic school to the bottom of the list as they get ready to hand out fall permits for use of the best facilities.

[St Raphael Academy] was required to submit an application to use fields by June 15 of this year, according to a new written policy adopted last year, an action city officials realized only recently never happened.

"Permit applications received past deadlines will be filed on an as-available basis," states the policy. "Absolutely no action will be taken on incomplete applications."

Of course it wasn’t that simple. It was only the looming lawsuit that caused the City of Pawtucket to move Saint Raphael Academy to the bottom of the list for field picks.

City officials initially said last week that because the intent was there on the part of St. Ray's officials when they e-mailed their desired fields earlier this year, the private school would be counted just as much "in compliance" with the regulations as the public school officials who submitted their applications on time.

The new policy would only apply to the first half of the academic year, with new applications to be reviewed for the spring by the parks and recreation department. Said Blais, “No 'favoritism' is being shown to St. Ray's or anyone else.”

The aforementioned man of honor Mayor Grebian, after saying that “no favoritism is being played,” summed it up this way:

“I’ve received more calls on this in the past couple weeks because of how it was handled," said Grebien. No one brought up the issue in July and August because no one was in school and thinking much about fall sports, said the mayor, but the issue has exploded since it was revealed that no application was ever submitted by St. Ray's.

The frustration of public school athletic directors has always been that St. Ray's seems to get O'Brien and other fields by default every year, said Grebien, but that can no longer happen now that there are written policies in place.

"It's never been a First Amendment issue. It's been about a best practice issue."

Parents of St Raphael Academy students were at first less than understanding about the new policy:

Grebien spoke of "concerned" and "emotional" St. Ray's parents who approached city workers last week to express a lack of understanding on how the whole fields mix-up could have happened. "I think they understand now that it was a legitimate mistake," he said.

Under the new rules for assigning fields:

the past history an organization has developed with the Parks and Recreation Department, as well as the "length of time a particular organization has been at a site," are no longer the first determining factors in deciding who gets priority use of city fields. New written requirements lay out the following criteria for deciding who plays where in order of importance:

* Type of activity that is most conducive to a given field.

* Field proximity and access.

* The history of an organization's use of a field in general and the particular field at issue. This would include parking and discipline issues, and issues surrounding alcohol, fighting and cleanliness.

* And "miscellaneous criteria."

It’s the last two points that are most prone to abuse on the part of the city. Let’s face it, only half the kids who go to St Raphael Academy are from Pawtucket, the rest are bussed in from all over the state. A public high school, like Tolman, will be made up entirely of Pawtucket residents, and though many will legitimately choose to go there, others are too poor to afford to go anywhere else. It is way more likely that discipline, alcohol, fighting and cleanliness issues will come from the public school than from the private. Also, “miscellaneous criteria” can mean anything.

It may have been something like this that caused Maggi Rogers, who is suing the City over unfair field use assignments to say:

“I apologize for taking the wind out of your sails, but it's the legal process that works, not the application process,” she said. “In my opinion, the (application) rules are not well-written, and we (in the city) don't have enough fields. I'd encourage people to really look at that application process.”

Note that for many, many years, St Raphael Academy got everything they wanted, but the first year they did not, it became a major issue, with Parks Commission Chair Terry Mercer conducting “an emergency meeting Wednesday night to request further information as to the fall season permitting process for school athletic and recreational field usage.” The wealthy and powerful of Pawtucket are prominently represented among St Raphael alumni, and the parents that pay to send their kids to the school want plenty of bang for their buck. As Maggi Rogers pointed out, “the ruling class of Pawtucket takes care of St. Raphael Academy.”

Reverend Brassard’s letter did something for Mark McBurney that was accidentally very helpful. It gave McBurney a chance to respond in print, and he responded beautifully, and with a lawyer's flair:

I welcome Rev. Brassard to the debate over whether public or religious school students should have first choice of Pawtucket's athletic fields, and whether Pawtucket taxpayers should continue their 44-year subsidy of Catholic school use of those fields.

In entering this debate, he ventures further than St. Raphael Academy principal Donohue-Lynch (who ignored my 2/1/11 request for a meeting) and Bishop Thomas Tobin (who referred my 3/31/11 request to his lawyers).

Rev. Brassard appears new to the issue, and may not know the problem started when the Diocese sold [St Raphael Academy]'s athletic field in 1967, thereafter dumping its responsibility onto Pawtucket taxpayers.

Or that [St Raphael Academy] recently raised funds for and built itself a $7 million dollar indoor athletic facility ("the premier high school athletics facility in R.I. and Southeastern Massachusetts," according to [St Raphael Academy]'s website) while continuing to quietly take subsidies from Pawtucket's beleaguered taxpayers.

Or that Bishop Tobin and Principal Donohue-Lynch (and Mayor Grebien) thoroughly stonewalled my attempts at "reasonable discourse" before I reluctantly filed suit.

Pawtucket's athletic fields and taxpayer dollars are finite. Someone gets first choice and someone doesn't. Someone pays and someone doesn't.

The 1st Amendment, and common sense, requires that the entity that caused this problem rectify it; that if [St Raphael Academy] can spend $7 million to build "the premier high school athletics facility in R.I." then it certainly doesn't need taxpayer subsidies for outdoor athletic facilities; that a city $13 million in debt shouldn't be in the subsidy or religious-preference business; and that the days of Pawtucket's 8,600 public school children taking a back seat to [St Raphael Academy]'s 200 Pawtucket students are over.

God loves public school children, too.

Finally, Rev. Brassard raises the age-old boogeyman of finding "strange" that beneficiaries of Catholicism (here, a Catholic education) dare challenge their benefactors. It is a sentiment heard less and less this last decade, both here and abroad.

Still, I wouldn't trade my Catholic education at [St Raphael Academy] (or Catholic University or Providence College or Notre Dame Law School) for anything.

But that education didn't teach me to turn a blind eye to misconduct, no matter who or what the perpetrator (especially where the malefactors know better). Instead, it taught me that a high wall of separation between church and state is in everyone's best interest and that to sin by silence when one should protest makes cowards of men.

That’s right, this problem goes back to 1967, when Saint Raphael academy sold the field in question to the City of Pawtucket, basically getting the city to subsidize the private school by taking care of their field. Since that time the city has maintained the field, and always given St Raphael Academy first dibs on using it. Most of the time, St Raphael Academy had exclusive use of the field, which was cared for at taxpayer’s expense. Meanwhile, they built themselves a private indoor sports complex, a complex you can bet will never be shared with students from a public school. So great is St Raphael Academy’s hold over the public fields in the city that O’Brien Field, one of the contested locations, is named for a deceased coach from St Raphael Academy!

The ACLU lawsuit began December 15, 2011. In a legal memorandum RI ACLU volunteer attorney Sandra Lanni cited the following examples:

* O’Brien Field has, with exceptions for only two seasons, routinely been kept off limits to public school interscholastic sports programs in order to favor St Raphael Academy. Further, the field “is locked to the public for the entire year other than the months it has been permitted to the St Raphael Academy football team for practice. These actions of the City not only impact municipal taxpayers as a whole, they directly and specifically impact the programs available to public junior and senior high school students in Pawtucket.”

* A request by public school athletic directors for the use of the McKinnon/Alves soccer field permitted to St Raphael Academy was denied even when it resulted in the canceling of public school games and practices as a result of insufficient field space.

The ACLU’s memo concludes: “The manner in which the City of Pawtucket issues field permits benefits only one type of private entity – private schools operated by the Roman Catholic Diocese of Providence. The City’s actions are not neutral and therefore impermissibly advance religion in violation of the Establishment Clause of the First Amendment.”

On December 21, 2011, the final day of testimony in the ACLU case, it was revealed that O’Brien Field was being held for St Raphael Academy, even in the fall of 2011, as had been the practice for decades, until it was realized that the school had neglected to hand in an application.  Despite all the talk from city officials, had anything actually changed? It seemed unlikely. As the Providence Journal reported:

John Scanlon, the Tolman High School athletics director who requests fields for Tolman and several junior high school teams, sought O’Brien Field for several years, but was regularly denied it as it went to St. Raphael’s. Scanlon said his schools have needed more field space and that scheduling problems arose, with some practices canceled.

It was only a mistake on the part of the Parks and Recreation department and the team manager at St. Raphael Academy that prevented the parochial school from once again getting favored status over public schoolchildren. US District Chief Judge Mary M Lisi expects final arguments from both sides by February 1st for written final arguments. We can only hope the judge will do what is right, and find for the plaintiffs.

Meanwhile Brian McBurney continues to fight his lonely quest to get private schools to pay the city adequately for the use of its fields. It is certainly time to stop subsidizing private schools when so many public institutions are suffering severe cuts.