What would Jesus do?

Published in CommonWealth Magazine

Boston cardinal seán o’malley condemns the Obama administration’s requirement that all employers, even religious ones, offer insurance covering the cost of birth control, even after the president backtracked and offered a compromise. “It is important that Catholics not be deceived into thinking that this issue is simply another battle in the ‘culture wars,’” O’Malley wrote on his blog in February. “Rather, it is an attack on the right of all people of faith to live their faith in freedom.”

Yet O’Malley appears to have no First Amend­ment qualms about a legally questionable real estate practice by the Boston Archdiocese that seeks to impose the church’s religious mores and anticompetitive mandates on those who buy surplus church property. Scores of sales over the past several years come with deed restrictions that prohibit the use of the buildings or land for abortion clinics, abortion counseling services, stem cell research, euthanasia counseling, and birth control advice.

The Boston Archdiocese isn’t alone. The Spring­field Diocese opts for a blanket deed restriction, barring the use of former church property for anything that conflicts with Catholic teachings. The restriction theoretically could bar a law office that handles divorces because of the Vatican’s stance against divorce. It could bar gay couples because the church views homosexuality as “unnatural” and a sin against God. And it could ban a bookseller from selling books deemed satanic or pornographic.

All of the activities forbidden by the Boston and Spring­field branches of the Catholic Church are lawful and in some cases constitutionally protected, yet the deeds bar purchasers from engaging in them. Most of the deeds also extend the prohibitions to subsequent purchasers for a period of 90 years. In some cases, the deeds state the prohibitions will remain in effect forever.

The restrictions imposed by the Boston Archdiocese in some instances go beyond church teachings and are designed to stave off competition for parishioners and parochial school students. On some deeds, the archdiocese has required purchasers of shuttered churches to agree to never sell the property to anyone who wants to use it as a church or house of worship. In the case of closed parochial schools, the church has let some stand empty while selling a handful of others with a restriction in the deed barring their use as a charter school.

In Lawrence, a city with such bad public schools that the state has taken them over, the charter school restriction is becoming a major public policy issue. More than 4,400 children are on waiting lists for the limited number of coveted seats in the city’s two existing charter schools and the two charters expected to open this fall. The nonprofit Community Group Inc., which operates the Community Day Charter Public School and will run the two new charter schools, has had a difficult time finding appropriate and affordable space in the city.

The most logical solution would be for Community Day to expand into parochial school buildings abandoned by the Boston Archdiocese, but the archdiocese won’t sell to the charter or to its surrogates. One of the parochial school buildings, St. Mary of the Assumption School, sits empty except for Thursday night bingo games, while another was recently sold with a 90-year deed restriction that specifically bars the purchaser and all subsequent buyers from using the building as a charter school.

A church spokesman refused to discuss the archdiocese’s deed restrictions in any detail and declined to make any official, including Cardinal O’Malley, available for questions. The charter schools also declined comment, hoping the church will soften its stance. Yet individuals who have tried to buy the closed schools on behalf of the charters say they are astonished at the church’s actions. The individuals say they have made above-market offers for the properties and even agreed to financially compensate the church’s remaining schools in Lawrence if their enrollment drops. But the archdiocese has refused to budge.

Suzanne Wright, a trustee of a foundation that tried to buy a closed parochial school on behalf of Community Day, says she finds the Boston Archdiocese’s actions mind-boggling. For Wright, the moral course of action for the archdiocese is simple: Sell the buildings to charter schools and give a future to children hungering for a quality education. “Anybody who believes in God has a responsibility to do that,” she says, “especially people who believe in Jesus.”

Lots of unused property

For generations, the Catholic Church has accumulated properties cumulatively worth billions of dollars, mainly through bequests or gifts, and built churches, schools, rectories, parish centers, seminaries, convents, and a host of other facilities that became intertwined with communities.

But after the clergy sex abuse scandal exploded in 2001, the church’s fortunes, especially in the Boston Archdiocese, began to plummet. Mass attendance dropped and donations began to dry up. To right its finances, the Boston Archdiocese responded by closing or merging 108 parishes since 2000. The archdiocese’s schools have also been hard hit; their enrollment, which hit a peak of 153,000 in the 1960s, began a rapid decline in the past decade and is now down to 42,000. The cutbacks have left the archdiocese with a lot of unused property, which the church has been selling to individuals, developers, and communities.

A months-long review by CommonWealth of hundreds of land transactions over the last 20 years found the four Massachusetts Catholic dioceses handle real estate sales very differently. The Fall River and Worcester dioceses do not appear to attach use restrictions to deeds but the Springfield Diocese and the Boston Archdiocese do.

Since the mid-1990s, Springfield has opted for one very broad restriction, a prohibition on any use of former church property for any activity that is inconsistent with or contrary to Catholic teachings—forever. The restriction even extends to signage. A 2005 deed legalizing the sale of a piece of church land in Westfield bars any outside advertising inconsistent with church teaching, as determined by church officials. Mark Dupont, a spokesman for the diocese, declined to answer hypothetical questions about what types of activities the restriction would prevent.

The Boston Archdiocese began attaching use restrictions to its land sales around 2007. Since then, the archdiocese has sold nearly 60 of its properties for more than $150 million. Many other properties are empty and presumably for sale. The standard Boston Archdiocese restriction lasts 90 years and prohibits church property from being used for abortion clinics, abortion counseling services, stem cell research, euthanasia counseling, and birth control advice. Many deeds contain the standard restriction but tack on additional prohibitions, such as a ban on rooming houses, exotic dance clubs, or sale of books and magazines the church deems sinful. The church also requires its legal fees be paid by the buyer in the event of a court challenge, regardless of the result or who brings the challenge. Other “extras” include:

 

• A provision barring church land in Boston’s Back Bay from being used as a church or house of worship. ADG Scotia, which purchased the land in 2008 for $13.9 million, is planning a mixed-use retail, hotel, and housing development on the site.
• A restriction banning a “fast food operation or some other retail or restaurant use which will detract from the solemnity or religious tenor” of St. Anthony’s Church in Woburn. The restriction is included in the deed to a piece of vacant property next door to the church that the archdiocese sold for $857,000 in April.
• A prohibition on any activity involving “prurient or sexually explicit activity” included in deeds for properties the church sold near the former St. Casimir School in Brockton and the former Sacred Heart School in Lowell.

 

More recently, the Boston Archdiocese began attaching deed restrictions to the sale of a handful of its closed schools, barring their use as schools or, in at least one instance, a charter school. The archdiocese’s policy on school use is evolving and appears to reflect a change in attitude. Previously, the church frequently leased space in closed schools to charters, but as more and more church schools closed and charters expanded, the archdiocese has become less welcoming.

In September 2007, the archdiocese sold the former St. Mary’s Parish, including the rectory and school, in Marlborough for $1.1 million with the restriction that it could be used for “housing only,” precluding any possibility of a school on the property. That same year, a parent-led group that purchased the former Our Lady of the Presentation School in Brighton for $1 million had to agree to a clause that forbids opening any kind of school for grades 1 through 8 at the site, to avoid competition with another nearby parochial grammar school.

Last year, the archdiocese moved in the other direction. It sold an abandoned school in Quincy to the city for use as a public school. It also sold the former St. Mary’s Star of the Sea School in East Boston to the Excel Academy Charter School for $1.85 million. After the Excel purchase, other charter school leaders asked the church if the Excel sale indicated a willingness to sell to them. Sources say the church’s response was that the sale was an anomaly and, likely, the last such sale to any charter school organization for the foreseeable future.

That sentiment was reinforced in May when church officials agreed to enter into a three-way compact of cooperation with Boston Mayor Thomas Menino and the Boston Alliance of Charter Schools. The archdiocese balked at a portion of the agreement requiring it to assist in finding facilities for charter schools but acquiesced after the language clarified that the church would only have to “discuss” ways of helping charters find facilities.

The deed restriction in Lawrence prohibiting the use of a closed parochial school as a charter school appears to confirm the church’s new, hardening attitude toward charters. The shift coincides with the launch of the “2010 Ini­tiative for Catholic Education,” an effort led by Boston advertising mogul Jack Connors and a foundation led by Fidelity Investments legend Peter Lynch. The initiative seeks to merge church schools into academies that would consolidate students and faculty from several struggling or closed schools into one campus and place them under regional oversight rather than individual parishes.

One source who is working on the initiative says there is no written policy barring sales to charters but confirms there has been a shift in approach by “miseducated” church leaders who now believe sales or leases to charters should be blocked. The source, who did not want to be identified for fear of upsetting archdiocese officials, says the decision whether to sell surplus property to charters has shifted from pastors at individual churches to the archdiocese’s central office. >

The source says some outside the church have urged the archdiocese to rethink the change in approach as a way to help communities, especially poor urban areas, and bring in badly needed revenue. Those in favor of selling surplus property to charters point to a recent study by the Pioneer Institute indicating only 6 percent of charter school enrollment comes from parochial schools.

Archdiocesan officials declined to say what is prompting their opposition to charters. “As a practice we do not generally discuss our real estate strategies related to church property,” says Terrence Donilon, a spokesman for the archdiocese. “This is consistent with most organizations that want to protect their competitive ability to market property and get a fair return.”

Legality of restrictions questioned

In 1945, a black family bought a home in St. Louis that, unbeknownst to its new owners, had a deed restriction that barred the sale of the property “to people of the Negro or Mongolian race.” The deed restriction had been in place since 1911. The white owner of a nearby property sued to block the sale. A lower court refused to overturn the sale, but the Missouri Supreme Court ruled against the black family, holding that the deed restriction was a valid agreement between two private parties and ran with the land. The case, Shelley v. Kraemer, was appealed to the US Sup­reme Court, which held in 1948 that the race-based deed restriction was illegal because it violated the equal protection clause of the Fourteenth Amend­ment, the same clause that formed the basis for the court’s landmark 1954 school desegregation decision in Brown v. Board of Education.

“We have noted that freedom from discrimination by the states in the enjoyment of property rights was among the basic objectives sought to be effectuated by the framers of the Fourteenth Amendment,” Chief Justice Fred M. Vinson wrote in the majority opinion.

Some of the same issues raised by the Supreme Court in its 1948 decision arise with the deed restrictions imposed by the Catholic Church in Massachusetts. Alfred Brophy, who teaches property law at the University of North Carolina, says some of the church’s deed restrictions, particularly those prohibiting use of a property as a church,  may violate constitutional protections.

“A restriction on use of property for religious purposes would be a clear violation of the Fourteenth Amend­ment,” Brophy wrote in an email after reviewing some of the church deeds for CommonWealth. “I’m guessing that a court would be very, very reluctant to give effect to that.”

The church’s 90-year restrictive covenants, not to mention the restrictions put in place for perpetuity, also appear to violate Massachusetts property laws that cap use restrictions at 30 years, with possible extensions for an additional 20 years under certain circumstances. Church officials, however, say the state restrictions don’t apply to a religious organization.

The archdiocese’s restrictions also raise delicate questions for municipal buyers, who use tax dollars to buy church property that comes with restrictions that some taxpayers may object to. Some Massachusetts municipalities have backed out of sales because of the restrictions, while others have gone along with them, convinced problems will never surface.

In May, Wellesley officials entered into an agreement to buy the former St. James Church on Route 9 for $3.8 million. Town officials tentatively acquiesced to restrictions on the eight-acre property dealing with abortion and stem cell research. After some residents raised concerns about whether the restrictions are constitutional and legally enforceable, town officials sought a legal opinion. In the opinion, the town counsel insisted the restrictions were legal while acknowledging they were “religion-based.”

But after the American Civil Liberties Union of Massa­chusetts expressed concern that the “religion-based” restrictions gave the Catholic Church effective control of the town’s public property, Wellesley officials renegotiated the purchase and sales agreement, replacing the 90-year restrictions on abortion and stem cell research with a 40-year agreement barring non-municipal uses of the property. The new restriction would bar charter schools, which are not municipally owned or run, even though they are considered public schools.

Barbara Searle, head of the Wellesley Board of Select­men, says she was “not personally” troubled by the church’s initial restrictions but agreed to modify them to avoid delays in purchasing the property. “Everybody has an opinion, but I would say we got the best outcome,” she says.

In Quincy, Mayor Thomas Koch, a devout Catholic whose children attend parochial schools, agreed last year to purchase the former St. Ann’s School on Hancock Street for $4 million as the site of the city’s new middle school. He agreed to the church’s standard restrictions without question. A spokesman for Koch says the church’s restrictions on use of the land don’t pose a problem. “It would probably be the city’s contention that it’s going to be a school for 90 years,” says Christopher Walker. “This is a site and an area that has always been home to a school.”

Sarah Wunsch, a staff attorney for the ACLU who reviewed the Wellesley deed, says no community should agree to limit use of property it purchases from the church regardless of the intended use. “Government can’t be controlled by religious doctrine,” she says. “Even if you’re building a recreation facility, you’ll likely have programs for teens, which could include sex education. Or a senior center, where some of the seniors will look for and receive end-of-life counseling. Ninety years is a long time. You don’t know how things will change. . .The control of religious doctrine over public uses and the discrimination aspect over other religious entities [are] unenforceable.”

Church officials insist their restrictions are legal, noting their freedom to pursue religious rights cannot be limited by state laws. Donilon, the archdiocese’s spokes­man, says the church’s push for property restrictions is also part of being a good citizen, helping to keep communities in line with Christian mores. “Money is not the only factor we take into account,” he writes in an email. “We want what is good for the Church and also the local community.”

Dupont, the Springfield Diocese spokesman, says the deed restrictions are based on the teachings of the church. In a 2005 deed, however, the Springfield Diocese acknowledged the courts could overrule the church. The Springfield Diocese sold a closed church school to the city of Springfield for $1.6 million. The accompanying deed prohibited any practice contradicting Catholic doctrine but added a caveat, unseen in other deeds. The caveat said that if a court rules the restriction invalid or unenforceable, title to the property shall pass to future grantees free of the restriction. Dupont and Springfield officials declined to comment on the caveat.

Dupont says the diocese’s restrictions are not imposed on anyone. “It’s a free marketplace so individuals are made aware of the conditions upfront,” he says. “If they don’t agree with the restrictions, they can choose not to buy our property. If we lose a sale because of these conditions, so be it.”

No charter schools

The Holy Trinity School sits vacant on a dead-end street in Lawrence, its isolation giving shelter to drug dealers and the homeless since it closed in 2004. The playground where generations of parochial students once laughed and screamed during recess is now fenced in and locked up, piles of branches strewn around the asphalt.

Alberto Nuñez says he was negotiating with the archdiocese for more than a year to buy the property to use it as a charter school, which he says is the best use for the building. But Nuñez, who has developed about 50 properties in Lawrence for affordable housing, says church officials were unyielding. He went ahead and purchased Holy Trinity in March for $500,000, accepting a restriction that the former school not be used as charter school for the next 90 years.

But Nuñez says he is considering challenging the restriction in court because of his belief in the importance of charter schools to lift his embattled city up. Charter schools, he says, could be “the future of the city of Lawrence.”

In some ways, that future is already here. The performance of the city’s charter schools is so impressive that the state receiver in charge of the Lawrence schools has invited Community Day to assist in the management of several of the troubled district schools. Five of the city’s public schools have been designated underperforming for the past two years, part of the trigger for the state takeover of the system, and the district as a whole has been fraught with inconsistent teaching and unstable leadership. Less than half of the city’s 12,000 public school students—48 percent—scored proficient or higher on the English language arts component of the MCAS test compared with 69 percent statewide, and only 28 percent scored proficient or higher in math, compared with the statewide average of 58 percent. Half of Lawrence’s high school students never make it to graduation, and nearly one out of every four freshmen fail to get promoted to 10th grade.

By contrast, Community Day Charter Public School and Lawrence Family Development Charter School, both K-8 schools, have MCAS results that meet or exceed state­wide averages, especially in the upper grades. Com­munity Day is bursting at the seams and has more than 3,000 students waiting for a chance to enroll. The school has already received charters from the state to open up two more schools this fall, initially with 120 students each, rising to 400 apiece by 2019. The lottery for admission occurred in March but there is still no announcement on where the two schools will open come fall. The operators of Law­rence Family Develop­ment have also announced they will seek a new charter for a second school for the fall of 2013.

Across the intersection on Haverhill Street from where Community Day operates in a former public library building, teachers, students, and parents can see salvation. The former St. Mary of the Assumption School closed its doors last year and the building now sits largely unused. The 70,000-square foot building with dozens of classrooms would be ideal as a charter school but the Boston Archdiocese won’t sell it for that purpose.

Suzanne Wright, a trustee of the Ibra­him el-Hefni Tech­nical Training Founda­tion, named after her late father, who was an Egyptian-born engineer and fierce education advocate, says her group made an offer to the archdiocese to buy the building, fix it up, and lease it to the charter school. The response was silence, she says. Wright says she and other charter supporters were told the church did not want competition for their remaining parochial schools in the city.

“I didn’t know they had this aversion to charter schools,” Wright says. “If they could improve education in Lawrence, they could turn the city around.”

Vincent Manzi, a local attorney and product of Law­rence’s parochial schools and graduate of a Catholic college, tried to broker the St. Mary’s deal for Wright’s foundation. The foundation initially offered $1.5 million for the school, which also houses Notre Dame High School, and agreed to assume the cost for all of the repairs, in­cluding a collapsing roof and $170,000 to replace an aging heating system. While city records show the building and land were assessed at $4.8 million at the time of the offer, Wright says she had an independent assessment of the property done and the $1.5 million offer the foundation made “was at the high end.” The foundation would lease the buildings back to both Notre Dame and Community Day at a nominal price.

After learning the archdiocese did not want the competition, Wright instructed Manzi to send a follow-up letter to in­crease the offer to include a five-year, $75,000 donation to the Lawrence Catholic Acad­emy for scholarships as well as $50,000 in grants to the academy to ensure the church would not be economically harmed. Manzi says the offers were again met with silence. With Catholic churches and schools boarded up across the city, he says the archdiocese’s hard line on stifling competition is irrational.

“We have a drastic need for charter schools to supplement the remaining Catholic schools in Lawrence,” says Manzi, who ticked off a list of shuttered parishes and their schools around Lawrence. “St. Augustine’s is empty, Mount Carmel is empty. It’s an absolute waste of valuable space. Education is education is education in a city that desperately needs it. There’s no logical reason to deny this.”  It’s an absolute waste of valuable space. Education is education in a city that needs it.Donilon, the archdiocese spokesman, would not directly address the reasons for not selling to charter schools, only indicating that the church’s top priority is to maintain its own schools even as enrollment is dropping. “The Arch­diocese of Boston is committed to excellence in education,” Donilon wrote in an email response. “Our particular focus is on Catholic education where our schools are responsible for the education of more than 42,000 students.”

While the Boston Archdiocese has tried to tamp down competition, others in the church don’t share that vision as part of their mission. Dupont, the spokesman for the Springfield Diocese, says the western Massachusetts diocese would never consider barring schools or other churches even as enrollment and attendance diminishes.

“We’ve suffered an erosion of enrollment but that is not a reason to restrict use,” Dupont says. “Our Catholic community extends beyond just those who use our schools and our churches. We see no advantage to say we will not sell to charter schools because we see a threat to our Catholic schools…We’re not Wal-Mart competing against Kmart. To some degree, we’re all in the business of saving souls.”