State Ex Rel. Gallwey v. GrimmState Ex Rel. Gallwey v. Grimm
Mary Gallwey filed this matter as an original action under
The EOG Program provides tuition grants of up to $2,500 for upper division course work, which may be used at public or private institutions, for students who have completed an associate of arts degree or its equivalent and are considered “placebound.” A placebound student is one who “because of family or employment commitments, health concerns, financial consideration, or similar factors, [is] unlikely to complete the junior or senior year of a baccalaureate degree without enhanced financial assistance.”1 Clerk‘s Papers (CP) at 1081;
We initially transferred this case to Thurston County Superior Court for trial. The trial court struck down the EOG Program on the ground that it violated
In order to answer the questions in this case we are called on to resolve conflicting cases from this court relating to both
FACTS
The findings of fact in this case are uncontested and, therefore, are verities on appeal. St. Francis Extended Health Care v. Dep‘t of Soc. & Health Servs., 115 Wash.2d 690, 692, 801 P.2d 212 (1990).
a. The EOG Program
In the late 1960s, the Legislature created a system of community colleges designed to provide Washington‘s citizens with convenient geographic access to the first two years of college and vocational training. CP at 1077. Washington‘s community college system achieved one of the highest participation rates of any program in the nation. Id. This high participation rаte has consistently stood in stark contrast to the comparatively low, and declining, participation rate for upper division (junior and senior level) college course work. Id.
In response to this trend, the HECB was formed in 1985. The HECB was instructed by the Legislature to create a master plan. In its first master plan, in 1987, the HECB determined that Washington ranked 39th in participation at four year colleges, concluding that “much of the state‘s population, especially in the Spokane, Tri-Cities, Vancouver and Puget Sound areas, has insufficient and inequitable access to upper division baccalaureate
As a further response, a 1988 University of Washington study commissioned by and for the HECB recommended a tuition voucher program for students who had completed the associate of arts degree or its equivalent to use at the region‘s private universities. This recommendation was based on three findings: (1) Washington‘s participation rate for upper division course work was 10 percent below the national average; (2) the State‘s largest population growth was occurring in areas surrounding Seattle that were not served by a public university; and (3) there was a significant disparity in access to upper division course work based on geography. The Washington Business Roundtable joined in the call for a financial aid program providing grants that would allow students the choice of public or independent institutions to complete their upper division course work.
In 1990, the Legislature enacted Laws of 1990, chapter 288, which provides for an EOG of up to $2,500 per year to prospective upper division college students as an incentive to help them complete a baccalaureate degree at schools where there is existing capacity. Applicants must have an associate of arts degree at their enrolling institution, live in an eligible county, have sufficient financial need, and be “placebound.”
The EOG program is now codified at chapter 28B.101 RCW. The HECB was called upon to promulgate rules to implement the statutory mandate. The significant program definitions and eligibility criteria follow:
(a) Students must have completed at least two years of college;
(b) They must have earned an associate degree or its equivalent but not a baccalaureate;
(c) They must intend to complete a baccalaureate degree;
(d) They must meet the definition of “placebound,” i.e., because of family or employment commitments, health concerns, financial consideration, or similar factors, they are unlikely to complete the junior or senior year of a baccalaureate degree without enhanced financial assistance;
(e) Their place of permanent residence must be within a branch campus service area, defined as Benton, Clark, Cowlitz, Franklin, King, Kitsap, Pierce, Skamania, Snohomish, Spokane, Thurston, Walla Walla, and Yakima Counties;
(f) They must be willing to attend a Washington public or private four year college or university with existing unused capacity;
(g) Recipients may not use the grant at any of the five branch campuses;
(h) They must adhere to the EOG Program‘s religious exclusion;
(i) The student must demonstrate financial need as calculated by the institution using the federal methodology formula. The student‘s EOG award, in combination with other forms of aid, may not exceed the calculated need;
(j) The award must reрlace unmet need or self-help assistance.
Students submit an application to apply for an EOG. The application consists of three parts. The student completes parts A and B. Part C, the “School Financial Aid Worksheet,” is completed by the financial aid administrator using financial aid information to determine applicant eligibility and to provide the database for recipient profiles. The student may submit parts A and B directly to the HECB or to the school, which will then forward the entire application to the HECB. As part of the application the student must sign an agreement, including a statement of understanding, that the college “shall not require the student to be enrolled in any program that includes religious worship, exercise,
Once an application is received the HECB screens it for completeness and eligibility. Then, a selection committee reviews the applications, awarding points based on an applicant‘s placebound status and financial need. Priorities for available funding are for renewals first, new full-time applicants second, and third year petitions last. No preference is given, dependent on an applicant‘s desire to attend either a public or private institution.
Public institutions may disburse the EOG to the student or credit it to the student‘s account. Private institutions must disburse the EOG directly to the student rather than automatically placing the funds in the student‘s account at the school. Students must be provided the opportunity to cash the EOG at his or her own bank or to request that the funds be disbursed directly to the student‘s account at the educational institution. Title to the grant funds transfers from the State to the student during disbursement.
Just as the student must sign an agreement, the institution‘s financial aid officer must sign the HECB-produced Institutional Certification of Student Eligibility form, which certifies:
(a) The student will not be required by the institution to be involved in any educational program that includes any religious worship, exercise, or instruction;
(b) Will not, for the duration of the academic year during which the grant is disbursed, be enrolled for any classes that include any religious worship, exercise, or instruction, or be pursuing a degree in religion, seminarian, or theological academic studies; and further,
(c) Is precluded by the institution, for the duration of the award period during which the grant is disbursed, from enrolling in any classes determined by the institution to include any religious worship, exercise, or instruction, or from pursuing a degree in religion, seminarian, or theological academic studies.
CP at 1086.
b. Procedural History of this Lawsuit
In 1995, Mary Gallwey, in her capacity as a taxpayer and resident of Washington, filed this matter as an original action under
After a trial, the Thurston County Superior Court struck down the EOG program on the ground that it violated
[t]he EOG Program, as applied to students attending Northwest College and all privatе institutions of higher learning represented by intervenor respondent WAICU (except the University of Puget Sound), violates
Article IX, § 4 of the Washington Constitution .
CP at 1245. Those institutions affected by the trial court‘s ruling are St. Martin‘s College, Seattle University, Pacific Lutheran University, Gonzaga University, Whitworth College, Seattle Pacific University, Northwest College, and Heritage College. CP at 1248-50.
The Thurston County Superior Court found that
The trial court did not reach any of Gallwey‘s additional contentions, and, on its own motion, determined that the EOG Program should not be enjoined pending a decision by this court. As explained by the trial court:
As I have previously stated during other hearings, I fully expect that this decision will be reversed by the Supreme Court because
Article IX, § 4 was never intended to apply to institutions of higher education, however, that decision rests with the Supreme Court not with the Superior Court of Thurston County.Because I expect that my decision will be reversed, I am not inclined to order the Higher Education Coordinating Board to stop payments during this interim time period. If petitioner requests a moratorium on payments while the case is on appeal, that request should be made to the Supreme Court.
CP at 647. The University of Puget Sound, the Pacific Legal Foundation and American Civil Rights Union, the Becket Fund for Religious Liberty, and the National Association of Independent Colleges and Universities (NAICU) have all filed amici curiae briefs in support of reversal. Americans United for the Separation of Church and State, and People for the American Way, have jointly filed an amici curiae brief in support of affirmance.
ANALYSIS
We begin our analysis with the settled principle that a party challenging the constitutionality of a statute must demonstrate beyond a reasonable doubt that the statute is invalid and must rebut the presumption that all legally necessary facts exist. County of Skamania v. State, 102 Wash.2d 127, 132, 685 P.2d 576 (1984); In re Marriage of Johnson, 96 Wash.2d 255, 258, 634 P.2d 877 (1981); City of Bellevue v. State, 92 Wash.2d 717, 720, 600 P.2d 1268 (1979). With this principle in mind, we will, in turn, analyze each of Gallwey‘s constitutional arguments.
A. Article IX, section 4
The principal issue in this case is whether the EOG Program is invalid under
All schools maintained or supported wholly or in part by the public funds shall be forever free from sectarian control or influence.
Neither party seriously disputes that the EOG Program supports the subject colleges and universities with public funds. Indeed, our prior decisions have foreclosed any credible argument to the contrary. See id. at 207, 509 P.2d 973 (“we long ago rejected the theory that `indirect’ or `incidental’ state support... is permissible“); Graham, 84 Wash.2d at 817, 529 P.2d 1051 (invalidating program that purchased school loans of needy college students because such funds will “assist[] the student to stay in school“). Instead, appellants contend that
As noted, the trial court accepted appellants’ argument “that
Prior to addressing the import of Weiss and Graham to this case, it is important to note that the question of whether or not a “school” under
Two separate legislative enactments were challenged in Weiss. The first was a financial assistance program for students in grades 1-12, which provided monetary grants to needy students attending public and private schools. Funds were disbursed to help students with purchasing supplies, tuition, books, and incidental and other fees. The second enactment was a “`tuition supplement program to undergraduate resident students attending an accredited independent or private institution of higher education within the state of Washington.‘” Weiss, 82 Wash.2d at 222, 509 P.2d 973 (quoting former RCW 28B.10.832 (1971) (repealed 1985)).
This court struck down both of the programs, noting that the breadth of
[T]he proscription of
article 9, section 4 is far stricter than the more generalized prohibition of thefirst amendment to the United States Constitution . While the establishment clause broadly condemns any law “respecting an establishment of religion,” our constitution specifically demands that no public funds be used to maintain or support any school which is under sectarian control or influence. There is no such thing as a “de minimis” violation ofarticle 9, section 4 . Nor is a violation of this provision determined by means of a balancing process. The words ... mean precisely what they say; the prohibition is absolute.. . . .
In interpreting this provision we long ago rejected the theory that “indirect” or “incidental” state support of a sectarian school is permissible.
Id. at 206-07, 509 P.2d 973 (footnote omitted). In striking down the higher education tuition supplement program, this court stated that “the ultimate result of both the act and the plan here is to support, in part, the schools in question with public funds.” Id. at 224, 509 P.2d 973. Despite this court‘s reference to institutions of higher education as “the schools” the question of whether
One year after Weiss, in 1974, this court decided Graham. The enactment challenged in Graham was a student loan purchase program, whereby a corporate authority was established to buy student loans from financial institutions and educational institutions as a form of aid to needy students. This court unanimously struck down the enactment, stating that
[t]he whole problem of aid to sectarian schools has been considered by this court on many occasions. The most recent case on that issue was Weiss v. Bruno ....
. . . .
In Weiss v. Bruno ... the money was required to be used for tuition. In the
Graham, 84 Wash.2d at 817, 529 P.2d 1051.
Just as in Weiss, this court applied
As our review of the cases makes clear, this court‘s
Initially, it should be noted that this court is not constrained to fоllow a decision where the opinion‘s holding controls an issue, but the issue was not raised in the case. As this court has stated:
Without discussing the economic loss rule or whether a cause of action may be brought in tort for economic damages due to construction delays, this court affirmed the subcontractor‘s jury verdict against the architect for negligence. In cases where a legal theory is not discussed in the opinion, that case is not controlling on a future case where the legal theory is properly raised. See Webster v. Fall, 266 U.S. 507, 511, 45 S.Ct. 148, 69 L.Ed. 411 (1925) (questions which merely lurk in the record, but are neither brought to a court‘s attention nor ruled upon, are not considered to have been decided so as to constitute precedent)....
Berschauer/Phillips Constr. Co. v. Seattle Sch. Dist. No. 1, 124 Wash.2d 816, 824, 881 P.2d 986 (1994); see also ETCO, Inc. v. Dep‘t of Labor & Indus., 66 Wash.App. 302, 306-07, 831 P.2d 1133 (1992). As this court noted in Greene v. Rothschild, 68 Wash.2d 1, 8, 402 P.2d 356 (1965), stare decisis will not be applied where to do so would perpetuate error so long as no property rights would be affected by overruling the prior decision. Accordingly, since Weiss and Graham contain no analysis concerning whether institutions of higher learning are “schools” within the meaning of
As in any dispute involving a constitutional question, we must determine the intended meaning of
Respondent‘s first argument is that the term “all” in the phrase “all schools” acts to include institutions of higher education within its scope. Specifically, respondent notes thаt within article IX the term “school” is normally used as a compound term. See
However, respondent‘s argument turns on one major assumption, that the term “school” can fairly be said to include institutions of higher education. Respondent cites to a 1990 edition of Black‘s Law Dictionary that broadly defines school as an “institution or place for instruction or education.” Br. of Resp‘t at 27. But, as appellants note, a dictionary definition published over one hundred years after the constitution‘s ratification provides little guidance in ascertaining “the original understanding of the ratifying public.” Malyon, 131 Wash.2d at 799, 935 P.2d 1272. In fact, as appellants observe, there are significant indications that a different
Congress allowed Washington to join the Union pursuant to the Enabling Act, which also permitted the admittance of North Dakota, South Dakota, and Montana. Enabling Act, ch. 180, 25 Stat. 676 (1889). As a condition of statehood, Washington was required to provide “for the establishment and maintenance of systems of public schools, which shall be open to all the children of said States, and free from sectarian control.” Enabling Act, § 4. This mandate was embodied in the portion of Washington‘s constitution reiterating its contract with the United States.
The Honorable W. Lair Hill proposed a constitution for the State of Washington that was submitted to the delegates of the constitutional convention of 1889, and served аs a working draft. Journal of the Washington State Constitutional Convention, 1889, at v (Beverly Paulik Rosenow ed., 1962). The original complete text of what was later to become
The legislature shall provide for the establishment and maintenance of a thorough and efficient system of common schools which shall be open to all the children of the state, and in which all the children of the state may receive a good common school education; and may establish such schools of higher grade as may be deemed expedient. All schools maintained or supported wholly or in part by the public funds shall be forever free from sectarian control or influence.
(Emphasis added.)
This draft provision was ultimately separated out in the Washington State Constitution. The second sentence was taken verbatim and became
The legislature shall provide for a general and uniform system of public schools. The public school system shall include common schools, and such high schools, normal schools, and technical schools as may hereafter be established. But the entire revenue from the common school fund and the state tax for common schools shall be exclusively applied to the support of the common schools.
Respondent contends that Hill‘s draft provision provides evidence that the term “all schools” includes institutions of higher education. According to respondent, because the first sentence of the draft states that the Legislature “may establish such schools of higher grade as may be deemed expedient,” and the second sentence refers to “all schools,” the second sentence must refer to universities. However, this argument assumes that “schools of higher grade” include universities, and further fails to take into аccount that this part of the provision was deleted by the delegates and rewritten to include only “high schools, normal schools, and technical schools.”
In fact, Hill‘s commentary provides some insight as to his intentions in the drafting of this provision:
This section is taken from the constitution of Illinois, modified only so far as it seems necessary to bring it in conformity to the provision of this subject in the act of congress providing for the admission of the state.
Hill, of course, is referring to the Enabling Act, and specifically that provision dealing with the creation of public schools, which was later embodied in
Early case law from this court indicates that Hill‘s use of the term “school” was intended to be far more limited than that term
In Litchman, 90 Wash. 186, 155 P. 783, decided in 1916, less than 30 years after ratification, this court was presented with a challenge to the University of Washington‘s ability to charge tuition. Specifically, it was alleged that
The framers of the constitution, had they desired, might in that section have included the university, but did not. Public schools are usually defined as schools established under the laws of the state, usually regulated in matters of detail by the local authorities in the various districts, towns, or counties, and maintained at the public expense by taxation, and open without charge to the children of all the residents of the town or other district. Black[‘s] Law Dictionary (2d ed.); Jenkins v. Andover, 103 Mass. 94; Merrick v. Amherst, 94 Mass. 500, 12 Allen 500. A school is “an institution of learning of a lower grade, below a college or a university. A place of primary instruction.” Black‘s Law Dictionary (2d ed.).
Id. at 191, 155 P. 783 (emphasis added). It is only if Hill intended the term “school” to exclude universities, that his commentary indicating that his draft provision is in compliance with the Enabling Act and consistent with the Illinois constitution (which did not apply to higher education) is tenable.
Amicus NAICU notes that in the original constitution, as drafted in 1889, there is additional evidence that the term “school” was not understood to include universities at the time of ratification.
None of the lands granted to the state for educational purposes shall be sold otherwise than at public auction to the highest bidder ... provided, that the sale of all school and university land heretofore made by the commissioners of any county or the university commissioners when the purchase price has been paid in good faith, may be confirmed by the legislature.
The structure and history of
Additionally, as appellants note, during the Constitutional Convention all explicit references to higher education were purged from article IX. On October 7, 1889, the Committee on Education and Educational Institutions submitted its report to the Constitutional Convention. Journal at 276-77. The proposed section 3 of article IX stated:
Journal at 277. The proposed section 5 of article IX also contained a reference to higher education:
All losses to the permanent common school or any state college or university fund, which shall have been occasioned by defalcation, mismanagement or fraud....
On August 10, 1889, the Constitutional Convention took up the committee‘s proposals. Mr. Turner moved to strike the words “educational institutions” from section 3 and insert “common schools.” The motion passed. Journal at 328. Mr. Bowen moved to strike “any State or University” from section 5 and insert the words “other state educational.” The motion passed. Journal at 330. Mr. Lindsley offered an additional section to article IX that would have pertained to the University of Washington:
The University of Washington shall constitute a public trust and its organization and government shall be subject to legislative control, but it shall forever be independent and free from partisan and sectarian influence.
Journal at 330. Mr. Lindsley‘s proposed section was not adopted.
In the end,
Educational ... and such other institutions as the public good may require, shall be fostered and supported by the state, subject to such regulations as may be provided by law. The regents, trustees, or commissioners of all such institutions existing at the time of the adoption of this Constitution, and of such as shall thereafter be established by law, shall be appointed by the governor, by and with the advice and consent of the senate; and upon all nominations made by the governor, the question shall be taken by ayes and noes, and entered upon the journal.
Based on the abundance of structural and historical evidence available, we hold that
In reaching our conclusion, we affirm our prior decisions in Litchman and DeFunis and overrule Weiss and Graham to the extent that they conflict with our analysis here. Nothing in today‘s decision is intended to disturb this court‘s holding in Weiss as it relates to common school.
B. Article I, section 11
Although the issue was not reached by the trial court, respondent additionally contends that the EOG Program violates
No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment....
The terms “appropriated” and “applied” modify religious worship, exercise or instruction, and the support of any religious establishment. Thus, what
This court recently held that the terms “appropriated” and “applied” as used in
require one to determine whеther our government has purposefully transferred, or made available, money or property for the defined objective. Ultimate utilization of the money or property is a necessary but insufficient part of the constitutional test; a religious purpose is the key.
Without proceeding further it is at once apparent that the appropriation of money, or application of property, to effectuate any objective other than religious worship, exercise, instruction, or religious establishment is not within the prohibition.
Malyon, 131 Wash.2d at 799-800, 935 P.2d 1272.
Regardless of the ultimate impact of the EOG Program, it is clear that it was not enacted with the “objective” of aiding religious establishment and it has no “religious purpose.” Given the obvious purpose of the EOG Program, the trial court appropriately found that
[t]he funds issued under the terms of Chapter 28B.101 RCW and the administrative regulations adopted pursuant thereto are issued to students to assist them in completing a four year undergraduate degree. The purpose of this legislation and the funds issued to students pursuant to it is entirely secular.
CP at 1099-1100.
Cases prior to our decision in Malyon, although differing in their approach, also support the conclusion that the EOG is constitutional under
that the words appear after two more specific terms: “worship” and “exercise.” This, we believe, is an indication that the framers of our constitution did not intend the word “instruction” to be construed without limit, but that the proscribed field be confined to that category of instruction that resembles worship and manifests a devotion to religion and religious principles in thought, feeling, belief, and conduct, i.e., instruction that is devotional in nature and designed to induce faith and belief in the student.
Calvary Bible Presbyterian Church v. Bd. of Regents, 72 Wash.2d 912, 919, 436 P.2d 189 (1967).
In Witters v. Commission for the Blind, 112 Wash.2d 363, 771 P.2d 1119 (1989) (Witters II), this court considered whether the Washington State Constitution рrohibited the State Commission for the Blind from granting vocational rehabilitation funds to a visually handicapped applicant to use at a religious institution for a course of study designed to prepare him for a career as a pastor, missionary or youth director. The court focused on the term “religious instruction.” Recognizing that religious instruction means, ““instruction that is devotional in nature and designed to induce faith and belief in the student,“” the court was persuaded that the use of vocational assistance funds would violate
The distinction between this case and Witters is obvious. Here, the grants are made contingent upon a student‘s adherence to the EOG Program‘s religious exclusion which provides that no student will be enrolled in any program that includes religious worship, exercise, or instruction. Former RCW 28B.101.040 (1993).
It is also clear that the EOG Program does not support “religious establishment,” as that phrase has been interpreted by this court. The phrase “religious establishment” is a term of art in constitutional jurisprudence. See
None of the [WAICU] colleges or universities identified in General Finding No. 1 teach the tenets of any denomination or religious sect as a regular part of their curriculum. No church, religious denomination or religious sect controls the conduct of the faculty in their classroom, the course material used in any class or the course offerings in any curriculum at any of the colleges or universities.
CP at 1099.
The dissent is not satisfied, however, and looks beyond the fact that funds are expended to enable “placebound” needy students to receive a general, non-religious four-year college degree to the ultimate use to which the educational institution may put those tuition dollars. “[O]nce public funds are provided to an educational institution controlled by a religious organization with a religious mission, functionally, do those funds advance religious doctrine?” Dissent at 297.
The dissent goes too far. Under the dissent‘s reasoning, the State could not provide medical сoupons to an eligible Department of Social and Health Services client if the coupons were to be used at a hospital with religious affiliations simply because the funds might be used to advance the religious goals of the hospital. However, this court‘s cases have not drawn the dissent‘s boundary. In Health Care Facilities Authority v. Spellman, 96 Wash.2d 68, 633 P.2d 866 (1981) this court held that religious hospitals can raise money through public tax exempt bonds without violating
A further concern created by the dissent‘s approach is that it fails to apply the analytical framework set forth so recently in Malyon. The dissent claims that Malyon sets up a test under
The history of
Art. IX, § 4 , ... is more proscriptive than [art. I, sec. 11 ].That it is so is the result of dеliberate action by the constitutional convention of 1889. It appears from the journal of the Washington State Constitutional Convention, 1889, p. 335 (unpublished; the original is in the office of the Secretary of State), that J.Z. Moore, a member of the convention and a lawyer from Spokane, moved to strike the words “or influence” from the section. The motion lost 39 to 11.
However, there is no support for the dissent‘s claim that
We hold that the EOG Program does not violate
C. The First Amendment to the United States Constitution
Respondent‘s final contention is that the EOG Program violates the
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster “an excessive government entanglement with religion.”
Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) (citation omitted).
Respondent‘s sole argument under the establishment clause is that the EOG program fosters an excessive government entanglement with religion. Before reaching this issue, we note that if respondent‘s argument were meritorious virtually every form of federal student financial aid, which is given neutrally to public and private school students, would run afoul of the First Amendment.
In Agostini v.
Felton, 521 U.S. 203, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997), the Supreme Court upheld the state supported use of public school teachers to teach remedial subjects in parochial schools. In Agostini, the Court noted that the question of “excessive entanglement” cannot be addressed in a vacuum:Regardless of how we have characterized the issue, however, the factors we use to assess whether an entanglement is “excessive” are similar to the factors we use to examine “effect.” That is, to assess entanglement, we have looked to “the character and purposes of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship between the government and religious authority.”
Agostini, 521 U.S. at 232, 117 S.Ct. 1997.
The Supreme Court has upheld neutrally applied state educational aid that is significantly more invasive and linked with religion than the EOG program, which, as already
As far as the record shows, vocational assistance provided under the Washington program is paid directly to the student, who transmits it to the educational institution of his or her choice. Any aid provided under Washington‘s program that ultimately flows to religious institutions does so only as a result оf the genuinely independent and private choices of aid recipients. Washington‘s program is `made available generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited,’ and is in no way skewed towards religion.
Id. at 487-88, 106 S.Ct. 748 (footnote and citation omitted).
We hold that the EOG Program does not violate the
We share the heartfelt concerns expressed by the dissent regarding religious freedom. However, as the United States Supreme Court has observed:
[T]he Constitution [does not] require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any.
Lynch v. Donnelly, 465 U.S. 668, 673, 104 S.Ct. 1355, 79 L.Ed.2d 604, 610 (1984). “The question is not whether government and religion will interact, but how.” Malyon, 131 Wash.2d at 805, 935 P.2d 1272 (quoting Lawrence H. Tribe, American Constitutional Law § 14-14, at 1276 (2d ed.1988)).
CONCLUSION
The EOG Program was designed to meet the critical needs of “placebound” students, like Richard Pacheo who, because he cares for his blind mother and diabetic father with Alzheimer‘s disease, cannot travel to a state institution to obtain a college degree. The Legislature enacted the grant program based upon findings that (1) Washington‘s participation rate for upper division course work was 10 percent below the national average; (2) the state‘s largest population growth was occurring in areas surrounding Seattle that were not served by a public university; and (3) there was a significant disparity in access to upper division course work based on geography. The funds associated with this program are disbursed directly to financially needy students who then choose the institution that is most accessible.
We hold that the EOG Program does not violate
ALEXANDER, C.J., SMITH, JOHNSON, MADSEN, OWENS, JJ., concur.
JOHNSON, J. (concurring).
I agree with the result of Justice Madsen‘s majority opinion and with most of its analysis, but write separately to providе a more structured analytical framework to support the majority‘s conclusions regarding the interplay between article IX and article I, section 11 of the Washington Constitution. I fully concur with Justice Madsen‘s conclusion that article IX does not apply to universities. To the extent they suggest otherwise, Weiss v. Bruno1 and State Higher Education Assistance Authority v. Graham2 must be overruled.
A structured analysis also exposes the weaknesses permeating Justice Chambers’ dissent. These weaknesses flow from his
In Litchman, we were faced with a challenge that article IX, by requiring public schools to be open to all children, prevented the University of Washington from charging tuition because tuition would prevent some children from attending the university. To analyze this issue, we looked at state constitutional and common law history and the text of the state constitution and its parallel provisions (particularly the definition of “schools” in
The foundation of Justice Chambers’ analysis linking article IX with article I, section 11 completely crumbles when this critical limitаtion on the reach of article IX is recognized. Article I, section 11 must be analyzed separately. Stripped from the unfounded approach advocated by Justice Chambers, a structured analysis shows Washington‘s Educational Opportunity Grant Program (EOG Program) does not violate
In State v. Gunwall,3 we adopted a factored approach to apply in resolving questions of state constitutional interpretation. The Gunwall factors are: (1) the textual language of the state constitution; (2) the text of parallel provisions of the state constitution; (3) state constitutional and common law history; (4) preexisting state law; (5) the structure of the state constitution; and (6) matters of particular state interest or local concern. Gunwall, 106 Wash.2d at 61-62, 720 P.2d 808. We most recently applied these factors in interpreting article I, section 11 in Malyon v. Pierce County, 131 Wash.2d 779, 935 P.2d 1272 (1997). They have also been examined and applied in the dissenting opinion in Witters v. Commission for the Blind, 112 Wash.2d 363, 373, 771 P.2d 1119 (1989) (Utter, J., dissenting).
Gunwall Factors 1 and 2
Textual Language of the State Constitutional Provision
Significant Differences in Parallel Provisions of State Constitution
Combining and analyzing Gunwall factors 1 and 2, the Malyon court first examined the language of the state constitutional provision and the significant differences between its text and that of its federal counterpart.
Absolute freedom of conscience in all matters of religious sentiment, belief and worship, shall be guaranteed to every individual, and no one shall be molested or disturbed in person or property on account of religion; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the state. No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment....
Since we are not dealing in this case with public schools under article IX, we must look further to the principles contemplated in article I, section 11. While significant textual differences are apparent, and the language of article I, section 11 considerably more specific, a commonality of principles exists in both the state and federal provisions. This common principle ensures a separation between government (and public funds) and religion and religious worship, exercise, or instruction. Both state and federal provisions ensure this separation by focusing on the statute or law enacted.
The specific language of
The verb “appropriated” means “[t]o prescribe a particular use for particular moneys; to designate or destine a fund or property for a distinct use ....” BLACK‘S LAW DICTIONARY 101 (6th ed.1990). Similarly, “applied” generally means “to use or employ for a particular purpose; to appropriate and devote to a particular use, object, demand, or subject matter.” Id. at 99. In this text the tеrms require one to determine whether our government has purposefully transferred, or made available, money or property for the defined objective. Ultimate utilization of the money or property is a necessary but insufficient part of the constitutional test; a religious purpose is the key.
Malyon, 131 Wash.2d at 799, 935 P.2d 1272. We stated, “the appropriation of money, or application of property, to effectuate any objective other than religious worship, exercise, instruction, or religious establishment is not within the prohibition.” Malyon, 131 Wash.2d at 799-800, 935 P.2d 1272. We concluded the proper focus under article I, section 11 is whether the program at issue has a religious purpose.
The program at issue in this case does not have a religious purpose. The EOG Program was created by the Legislature “as a demonstration project to serve placebound financially needy students by assisting them to obtain a baccalaureate degree at public and private institutions of higher education which have the capacity to accommodate such students within existing educational programs and facilities.”
Grants may be used by eligible participants to attend any public or private college or university in the state of Washington that is accredited by an accrediting association recognized by rule of the higher education coordinating board and that has an existing unused capacity. Grants shall not be used to attend any branch campus or educational program established under chapter 28B.45 RCW. The participant shall not be eligible for a grant if it will be used for any programs that include religious worship, exercise, or instruction or to pursue a degree in theology. Each participating student may receive up to two thousand five hundred dollars per academic year, not to exceed the student‘s demonstrated financial need for the course of study. Resident students as defined in RCW 28B.15.012(2)(f) are not eligible for grants under this chapter.
(1) For the purposes of this chapter, “placebound” means unable to relocate to complete a college program because of family or employment commitments, health concerns, monetary inability, or other similar factors.
(2) To be eligible for an educational opportunity grant, applicants must be placebound residents of the state of Washington
who are needy students as defined in RCW 28B.10.802(3) and who have completed the associate of arts degree or its equivalent. A placebound resident is one who may be influenced by the receipt of an enhanced student financial aid award to attend an institution that has existing unused capacity rather than attend a branch campus established pursuant to chapter 28B.45 RCW. An eligible placebound applicant is further defined as a person whose residence is located in an area served by a branch campus who, because of family or employment commitments, health concerns, monetary need, or other similar factors, would be unable to complete an upper-division course of study but for receipt of an educational opportunity grant.
The focus of the EOG Program is to aid placebound financially needy students. University programs including religious worship, exercise, or instruction or efforts by any placebound financially needy student to pursue a degree in theology are explicitly excluded from the EOG Program. No religious purpose can be found anywhere within thе statutory scheme.
Gunwall Factor 3
State Constitutional and Common Law History
In Malyon, we next applied the third factor of Gunwall to analyze the state constitutional and common law history of article I, section 11.
The driving concern of the state constitutional convention was religious influence in, and control over, public education. The Enabling Act carried a strict requirement that the new state constitution include a stern separation of church and public education clause. As noted, the resulting state constitution contains three separate prohibitions of religious involvement in public education. By contrast the First Amendment, drafted with fresh memories of the Church of England, resulted from the distinctly different concern to prevent the establishment of a national religion and to keep the national government from interfering with the religious establishments of the several sovereign states. This difference also suggests the state constitutional clause was not intended to be identical to its federal counterpart.
Malyon, 131 Wash.2d at 794-95, 935 P.2d 1272 (footnotes omitted). While not identical, certain features are common to both.
In Witters, Justice Utter thoroughly discussed the state constitution and common law history of article I, section 11 in his dissenting opinion. Justice Utter analyzed the common and ordinary meaning of the term “religious instruction” to the drafters and ratifiers of the state constitution, in particular drawing up the Enabling Act and the Journal of the State Constitutional Convention, 1889 (Beverly Paulik Rosenow ed., 1962). Justice Utter concluded,
This evidence is considerable and leads to only one conclusion: the historic purpose of the religious instruction clause of Const. art. 1, 11 was to prevent public aid to parochial schools and to prohibit religious instruction in public primary and secondary schools.
Witters, 112 Wash.2d at 389, 771 P.2d 1119 (Utter, J., dissenting). Although drawn from Justice Utter‘s dissent, a thorough review of the analysis does not reveal any faults.
Gunwall Factors 4, and 6
Preexisting State Law and Matters of Particular State Interest or Local Concern
In analyzing the fourth Gunwall factor in Malyon, we determined it was a nondispositive factor and provided no guidance, reasoning this factor usually pertains to state law preexisting ratification. Malyon, 131 Wash.2d at 797, 935 P.2d 1272. Considering the constitutional and common law history included in Justice Utter‘s dissent discussed above, in this case the factor is equally unhelpful. Similarly, matters of state interest or local concern do not shed significant light on our inquiry, as the separation of church and state is of both federal and state concern. Malyon, 131 Wash.2d at 797, 935 P.2d 1272.
Structural Differences Between State and Federal Governments
The “fifth [Gunwall] factor, the differences in structure between state and federal governments, `always favors an independent state interpretation.‘” Malyon, 131 Wash.2d at 797, 935 P.2d 1272 (quoting Richmond v. Thompson, 130 Wash.2d 368, 382, 922 P.2d 1343 (1996)). We noted, “[t]his factor is most valuable when the differences ... are relevant and can be articulated. Certainly factors of federalism are indicative of different considerations served by the First Amendment than by article I, section 11.” Malyon, 131 Wash.2d at 797, 935 P.2d 1272.
We have stated many times the “United States Constitution is a grant of limited power authorizing the federal government to exercise only those constitutionally enumerated powers expressly delegated to it by the states, whereas our state constitution imposes limitations on the otherwise plenary power of the state to do anything not expressly forbidden by the state constitution or federal law.” Gunwall, 106 Wash.2d at 66, 720 P.2d 808. The Missouri Supreme Court expressed the effect of this structural difference best, noting that state courts should recognize and enforce legislative enactments “as embodying the will of the people unless they are plainly and palpably a violation of the fundamental law of the [state] constitution.” Ams. United v. Rogers, 538 S.W.2d 711, 716 (Mo.1976).
However, this difference does not mean the First Amendment principles recognized by the United States Supreme Court cannot guide our interpretation of similar state provisions. Rather, federally recognized First Amendment protections provide a “floor” below which the states may not go. That is, state provisions cannot be interpreted to provide lesser protections than the federal constitution.
We know already the EOG Program does not violate principles of separation between church and state under the
Mueller v. Allen, 463 U.S. 388, [103 S.Ct. 3062, 77 L.Ed.2d 721] (1983), makes clear that “state programs that are wholly neutral in offering educational assistance to a class defined without reference to religion do not violate the second part of the Lemon v. Kurtzman [403 U.S. 602, 91 S.Ct. 2135, 29 L.Ed.2d 745 (1971)] test, because any aid to religion results from the private decisions of beneficiaries.” Ante, at 754 (Powell, J., concurring) (footnote omitted). The aid to religion at issue here is the result of petitioner‘s private choice. No reasonable observer is likely to draw from the facts before us an inference that the State itself is endorsing a religious practice or belief.
Witters, 474 U.S. at 493, 106 S.Ct. 748 (O‘Connor, J., concurring in part and concurring in the judgment).
While the structural differences in federal and state constitutions mean the federal analysis is not binding upon our state constitutional analysis, it can still guide us because both recognize similar constitutional principles. The structural differences in state and federal constitutions may require a different analytical approach. That does not mean, however, that our result will always be inconsistent with the United States Supreme Court.
The state constitutional decisions of other state courts may also be helpful under the fifth Gunwall factor. These cases provide useful guidance when interpreting our state constitutional provisions because other states often face the same constitutional concerns. These cases may also clarify our analysis because they occur in a state constitutional setting.
In Americans United v. Rogers,4 the Missouri Supreme Court was faced with a constitutional challenge to a financial assistance
In its review, the Missouri Supreme Court noted that provisions of the state constitution had previously been construed as “more `restrictive’ than the First Amendment ... in prohibiting expenditures of public funds in a manner tending to erode an absolute separation of church and state.” Ams. United, 538 S.W.2d at 720. The court located this heightened restriction in two provisions of the Missouri state constitution. The first,
That no money shall ever be taken from the public treasury, directory or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such; and that no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship.
The second,
Neither the general assembly, nor any county, city, town, township, school district or other municipal corporation, shall ever make an appropriation or pay from any public fund whatever, anything in aid of any religious creed, church or sectarian purpose, or to help to support or sustain any private or public school, academy, seminary, college, university, or other institution of learning controlled by any religious creed, church or sectarian denomination whatever....
Proponents of the state program for tuition assistance argued the language of the program was clear and explicit in providing that the program was designed and implemented for the benefit of the students, not of the institutions, and that the awards were made to the students, not the institutions. Ams. United, 538 S.W.2d at 720 (quoting oral argument transcript). The Missouri Supreme Court agreed, holding “those schools statutorily qualified would not be subjected to that `control’ prohibited by
The EOG Program at issue in this case contains the same important limiting factors. Any grants awarded are based upon individual student eligibility. The students must meet the qualifying criteria before receiving grant moneys. The prohibitions of
The Nebraska Supreme Court reviewed a similar challenge to a scholarship award program in Lenstrom v. Thone, 209 Neb. 783, 311 N.W.2d 884 (1981). In that case, the trial court had declared a program, similar to the EOG Program at issue here, violated the state constitution. The Nebraska program provided financial assistance to eligible college students and allowed grant moneys to be applied to educational services at private colleges. The Nebraska Supreme Court held the program did not violate the
Similar to Nebraska‘s constitution, our state constitution contains no specific prohibition against a program designed to benefit eligible students in pursuing college educations.
Lastly, the Minnesota Court of Appeals upheld a challenge to a post secondary enrollment options program providing tuition aid to eligible students enrolled in participating private colleges in Federation of Teachers v. Mammenga, 500 N.W.2d 136 (Minn.Ct. App.1993). Under the program, a college or university could be reimbursed only for nonsectarian courses attended by eligible students. The trial court found the program constitutional. The Minnesota Court of Appeals agreed and held the program did not violate the establishment clauses to the Minnesota Constitution. Fed‘n of Teachers, 500 N.W.2d at 138-39.
The establishment clauses of the
In no case shall any public money or property be appropriated or used for the support of schools wherein the distinctive doctrines, creeds or tenets of any particular Christian or other religious sect are promulgated or taught.
The Minnesota Court of Appeals determined state benefits under the program were limited to nonsectarian purposes because the program was designed to benefit students, not private colleges; eligible students could attend either public or private universities and colleges; and the state could only reimburse these institutions for nonsectarian classes. Fed‘n of Teachers, 500 N.W.2d at 139.
Our state EOG Program has restrictions similar to Minnesota‘s, as thoroughly discussed by Justice Madsen in the majority opinion. These restrictions include: (1) students must adhere to the EOG Program‘s religious exclusion; (2) students must sign an agreement containing a statement of understanding that the college may not require the student to be enrolled in any program including religious worship, exercise, or instruction; (3) colleges must agree to the same prohibition against requiring religious worship, exercise, or instruction; and (4) aid is distributed to the student not to the college. The restrictions the EOG Program places on aid to students prevent the aid from being applied to any religious worship, exercise or instruction, or the support of any religious establishment.
Other states, when interpreting their “more restrictive” state constitutions, have looked to the principles underlying their state constitutionаl provisions.5 The distinctions these states have drawn are similar to those we have recognized in Malyon and our other decisions. That is, where the legislature establishes a program providing benefits to eligible students for a college education, the state constitution is not violated when the student chooses to receive his or her education at a private college or university, particularly when specific conditions and restrictions have been imposed on the program and the student‘s course of study to prevent sectarian influence.
Under the analysis applied in other state decisions, the EOG Program would not violate the more specific separation of the church and state provisions in those state‘s constitutions. Nor does the EOG Program violate
Justice Madsen correctly analyzes the principles our cases have recognized and rightly concludes no state constitutional violation exists. That an independent state constitutional analysis is consistent with the result we would have reached under the First amendment is not remarkable or unexpected. Parallel provisions often result in consistent results because the principle that church and state must remain separate is deeply ingrained in our constitutional jurisprudence. This principle animates both the
JOHNSON and SANDERS, JJ., concur.
CHAMBERS, J. (dissenting).
I respectfully dissent. No issue is more fundamental to American liberty than freedom of religion. This freedom requires separation of church and state. Our nation‘s founders cherished religious independence. A core pragmatism underlies our Constitutions’ safeguards of religious liberties: our founders were wise enough to know if they imposed their religious beliefs onto others, one day, religious beliefs of others could be imposed upon them.
Freedom from government interference, an essential component of the protection of religious liberty, can be guaranteed only by imposing absolute neutrality in religious matters upon the State. As Thomas Jefferson eloquently insisted, “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves ... is sinful and tyrannical.”1 In 1789, the founders of the United States were content with the establishment and free exercise clauses of the
One hundred years later, the drafters of the Washington State Constitution met. They were not content with simply mirroring the First Amendment. Specifically, the events of the intervening century caused them deep concern about religion in public schools.2 The result is that our state constitution strictly prohibits both “sectarian”3 influence on state schools and state funds going to support religious schools. They crafted this language:
All schools maintained or supported wholly or in part by the public funds shall be forever free from sectarian control or influence.
This overriding protectiveness of the separation of church and state was and is not limited to education. Our state constitution also goes further than the federal establishment clause, by providing:
No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment....
The majority finds comfort in a finding below that none of the institutions in question teach the tenets of any particular denomination or sect as part of their regular curriculum. Our inquiry should not end there. We must look beyond the regular curriculum to determine if public money is being “applied to any religious worship, exercise or instruction, or the support of any religious establishment.”
The findings below, and the trial court‘s determination that the program violated the state constitution, should cause us great concern. A survey of the findings below with respect to five of the colleges and universities eligible for the Educational Opportunity Grant (EOG) Program,
Northwest College. Northwest College is an institution of the Assemblies of God. Northwest College requires students to take the following courses in order to graduate: Exploring the Bible, Foundations of the Christian Life, Evangelism in the Christian Life, and Christian Doctrine. The college‘s mission statement includes, “Help to fulfill the Great Commission and to propagate the historic faith of the sponsoring church.” Clerk‘s Papers (CP) at 1126. Chapel at Northwest College is held daily and attendance by all students is required.
Walla Walla College. Walla Walla College is governed by a board of trustees, all of whom must be members in good standing of the Seventh-Day Adventist Church. Students are required to take 16 hours in religion and theology to graduate. Approximately 90 percent of the full-time faculty members of Walla Walla College are members in good and regular standing of the Seventh-Day Adventist Church. The Walla Walla College student handbook provides:
Observing the seventh day of the week as a day of rest from daily activities is a practice of the Seventh-Day Adventist Church and a distinctive part of life at Walla Walla College. All students are expected to respect that observance by refraining from ordinary activities, attending Friday evening and Sabbath services, and treating the day with special respect in keeping with the ethos of this academic community.
CP at 1220.
Faculty and students are encouraged to offer Christian prayer in classes.
CP at 1221.
Students at Walla Walla College are not allowed to ... undermine the religious ideals of the College.
CP at 1221.
Pacific Lutheran University. Pacific Lutheran University is controlled by the Evangelical Lutheran Church in America. Graduating students must have taken eight hours of religious courses. Faculty shall “set a worthy example of Christian life and seek to inculcate in the students the highest ideals of
Seattle Pacific University. Seattle Pacific Univеrsity is a Free Methodist Church institution. “All members of the [governing] Board are to be in sympathy and accord with the doctrinal position and standards of the University as a Free Methodist school.” CP at 1170. Students are required to take 15 credit hours of religion to graduate, and among those credit hours a student must take Christian Formation, Christian Scriptures, and Christian Theology. The faculty handbook describes “effective teaching” to include “[k]nowledge of and ability to communicate the relationship between one‘s discipline and Christian faith and life and willingness to guide and mentor in matters of spiritual formation.” CP at 1175-76. The faculty handbook also sets forth that service to the church is a significant factor in evaluating a faculty member‘s application for tenure.
Whitworth College. Two-thirds of the governing board of Whitworth College must be members of the Synod of Alaska-Northwest of the Presbyterian Church and between one-sixth and one-third of the members are to be ordained Presbyterian ministers. There are three core religious courses all students must take to satisfy graduation requirements. The Whitworth College mission statement states, “[i]t is policy or at least a `cultural expectation’ at Whitworth to encourage the integration of faith and learning in the classroom.... Whitworth also engages in efforts to use the transforming power of Jesus Christ to transform lives of students in response to student requests.” CP at 1240. Ministry coordinators appear to be hired by the school and are directed to “motivate and empower students to minister to one another.” CP at 1241. In the residence halls, students are paid to act as ministry coordinators.
Our founders sought to guarantee each of us the right to choose our own religious path. They understood that, once having chosen, many of us would believe that our path should be the path for others. Indeed, many religious faiths encourage believers to win over converts. Education, by its essential nature, affords those who teach access to minds that are often eager and willing to learn and accept what is taught. The State cannot constitutionally induce principles, beliefs and thoughts of a devotional nature, and cannot pay others to do so. The institutions before us provide a great public and humanitarian service. But once public funds are provided to an educational institution controlled by a religious organization with a religious mission, functionally, do those funds advance religious doctrine? Our founders chose not to take a chance that they might.
The founders did not intend, nor has this Court ever permitted, public educational funds be entrusted to those who teach or those who receive religious instruction. The EOG Program relies solely upon statements signed by the schools and students, including the five institutions surveyed above, to meet the constitutional requirements. Those statements merely assert the grant recipient is not enrolled in a program that includes religious worship, exercise, or instruction or pursuing a religious, seminarian or theological degree; there is no other enforcement mechanism. Given that each of the institutions surveyed above is controlled or significantly influenced by a religious organization and requires courses in religion as a prerequisite for graduation, it is likely that the students, colleges, and universities are interpreting “religious instruction” as meaning “religious instruction in preparation for the ministry.” That is not all that our state constitution forbids.
Recognizing our state constitution‘s unique treatment of education and religion, this Court has developed two different analytical approaches to resolve challenges of alleged support of religion by the State. Compare State Higher Educ. Assistance Auth. v. Graham, 84 Wash.2d 813, 529 P.2d 1051 (1974) (prohibiting loans to students attending sectarian institutes for violating state constitution), with Malyon v. Pierce County, 131 Wash.2d 779, 935 P.2d 1272 (1997) (permitting expenditure of county funds on local law enforcement chaplaincy program). If the challenge involves some element of public education, we have applied a broad construction of article I, section 11 and article IX,
In summary, we have applied a broad construction of the provisions of article I, section 11 and article IX, section 4 in the context of education, whether or not the institutions were “schools” as otherwise intended by article IX. If, however, the challenge does not involve education, we merely determine whether the State‘s objective was support of “religious worship, exercise, or religious establishment.” Malyon, 131 Wash.2d at 799-800, 935 P.2d 1272.
Structurally and analytically, this Court has frequently analyzed constitutional challenges involving education through both article IX and article I, section 11. We have developed a rich body of law applying article I, section 11 to education, both at the common school level and at the university level. Concluding that article IX generally does not apply to higher education does not permit us, as Justice Johnson proposes, to ignore the specific protections of article IX, section 4. Article IX, section 4 goes beyond the practical command to the Legislature to establish general and uniform common schools, but instead embodies a deep principle of Washington law: that we jealously honor and protect the separation of church and state. Even indirect support of a religious school can violate article I, section 11 and article IX, section 4. See generally Weiss, 82 Wash.2d 199, 509 P.2d 973. Unfortunately, the majority has nearly abandoned article IX, section 4 and consequently has nearly abandoned our jurisprudence demanding strict separation in matters of religion and education. In its place, the majority has substituted the antiestablishment jurisprudence of the United States Supreme Court. I fear that abandonment of article I, section 11 of the Washington Constitution in favor of the Lemon test (Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971)) has not taken merely two small steps but two giant leaps in constitutional law, first Malyon and now Gallwey.
I disagree with my learned colleague that Litchman v. Shannon, 90 Wash. 186, 155 P. 783 (1916), foredooms the majority‘s result here. Litchman established that the University of Washington was not a common school for the purposes of article IX, sections 1-2, and therefore could charge tuition. I have no quarrel with this conclusion. Article IX, section 4, and the deep principle it articulates, was simply not implicated.
Historically, this Court has never shied away from finding unconstitutional state support for religious worship, exercise or instruction in public schools. See, e.g., Dearle, 102 Wash. 369, 173 P. 35. In Dearle, this Court considered high school credit given for outside Bible study. Dearle, 102 Wash. 369, 173 P. 35. We found the required examination was public support for religious instruction, and thus unconstitutional. Dearle, 102 Wash. at 370, 380-85, 173 P. 35. Cogently, one Justice observed of article I, section 11:
That is plain, simple and mandatory, and by it the legislature, school authorities and courts are bound. The school authorities are forbidden to apply any of the public money or property to any religious exercise or instruction. The curricula of the public educational institutions cannot be made to include any kind of religious worship, exercise, or instruction. The language is most comprehensive and argues itself.
Dearle, 102 Wash. at 386, 173 P. 35 (Holcomb, J., concurring). This program presents parallel constitutionаl concerns. The EOG Program functions to give public money to schools controlled by religious organizations that require or make available to the students religious worship, exercise, and instruction. This is unconstitutional in public schools, and it is unconstitutional in private schools supported by state funds, no matter how de minimis the support.
We rearticulated these principles in Mitchell. There, we considered a program similar in form to the EOG Program. Washington State provided transportation to all students, regardless of whether they attended a public, private, or religious school. Mitchell, 17 Wash.2d at 63, 135 P.2d 79. This was couched by the statute as an individual entitlement of the pupil, rather than as direct support for a sectarian school. Id. We concluded the program was public support for a religious institution and, in effect, created sectarian schools partially supported by public funds, and thus violated both article I, section 11 and article IX, section 4. Mitchell, 17 Wash.2d at 66-67, 135 P.2d 79; accord Visser, 33 Wash.2d 699, 207 P.2d 198 (transportation a benefit to religious school and violative of both article I, section 11 and article IX, section 4). We rejected the fig leaf there that the support was merely a benefit to individuals, and we should reject it here.
In Perry, this Court again made clear even de minimis use of school facilities to further religious education was forbidden by our state constitution. A school district in Spokane allowed students to spend an hour a week during the school day in off campus religious instruction sponsored by local churches. Perry, 54 Wash.2d at 889, 344 P.2d 1036. The school involvement was limited to collecting permission cards from parents and brief announcements or explanations of the program. Perry, 54 Wash.2d at 888, 344 P.2d 1036. The distribution of the cards was found to be ”use of school facilities supported by public funds for the promotion of a religious program, which contravenes
We refined our analysis in Calvary Bible. There, we considered whether an undergraduate course, “English 390: The Bible as Literature,” taught in a state controlled university, constituted religious instruction. Calvary Bible, 72 Wash.2d at 913, 436 P.2d 189. We concluded it did not. The trial court issued extensive findings of fact establishing, “English 390 is taught as a study of the Bible for its literary and historic qualities and is presented objectively as a part of a secular program of education” and did not promote a particular theology or indoctrinate a particular religious belief. Calvary Bible, 72 Wash.2d at 916, 436 P.2d 189. We took a hard look at the meaning of “religious instruction” as used in article I, section 11 and concluded:
[T]he framers of our constitution did not intend the word “instruction” to be construed without limit, but that the proscribed field be confined to that category of instruction that resembles worship and manifests a devotion to religion and religious principles in thought, feeling, belief, and conduct, i.e., instruction that is devotional in nature and designed to induce faith and belief in the student.
Calvary Bible, 72 Wash.2d at 919, 436 P.2d 189.
Calvary Bible was rightly decided. Rightly understood, its holding is limited to establishing a particular University of Washington “Bible as Literature” class is not “religious
The majority attempts to squeeze the EOG Program within this Court‘s holding in Calvary Bible that the prohibition on “instruction” did not extend to every course involving religion. They give insufficient weight to the fact the University of Washington was not alleged to be controlled by any religious establishment, and do not address the remaining prohibitions against worship, exercise or support of any religious establishment of article I, section 11.
Not long after Calvary Bible, this Court was faced with a funding plan not entirely dissimilar to the EOG Program. State Higher Educ. Assistance Auth., 84 Wash.2d 813, 529 P.2d 1051. The State had established a program where loans from educational institutions to students attending college would be purchased by the State, whether the sсhool was religious or secular. Graham, 84 Wash.2d at 815, 529 P.2d 1051. The money to support this came from a combination of general funds and a tax exempt bond. Graham, 84 Wash.2d at 815-16, 529 P.2d 1051. We found the program was support to religious institutions and therefore violated
“Any use of public funds that benefits schools under sectarian control or influence—regardless of whether that benefit is characterized as “indirect” or “incidental“—violates this provision.”
Graham, 84 Wash.2d at 817, 529 P.2d 1051 (quoting Weiss, 82 Wash.2d at 211, 509 P.2d 973). Accord Witters v. Comm. for the Blind, 112 Wash.2d 363, 771 P.2d 1119 (1989) (grant to visually handicapped student to enable him to attend a religious college in preparation for the ministry unconstitutional). Clearly, if merely purchasing a loan made to a college student is fatal support of a religious educational institution, giving a grant to a student at a sectarian educational institution is also fatal support.
Our broad construction of our constitutional prohibition of the use of public funds for any religious purpose was clear by the time we announced Perry. In recognition of the special place public education holds in our system of government, this standard remains. However, we do not apply such a strict standard in other cases. See generally Malyon, 131 Wash.2d at 801, 935 P.2d 1272. Admittedly, Malyon does not fit within the doctrine laid out by our prior article I, section 11 and article IX, section 4 cases. However, critically, Malyon was not an education case, and our jurisprudence treats public schools and education different from the way it treats chaplaincy programs. Because Malyon does not implicate education, it does not provide us with guidance here. The majority suggests that my approach would necessitate barring the State from providing medical coupons redeemable at religious hospitals. I respectfully disagree. Article I, section 11 and article IX, section 4, read together do not reach the State‘s police power to protect the health of state residents; such programs would be analyzed solely under article I, section 11. Under Malyon, such programs would almost certainly be upheld as constitutional.
The founders of our nation and our state cherished religious independence. The founders were not hostile to religion; instead, I am of the firm conviction they believed the best way to encourage authentic religious devotion was to keep government out of religion. The drafters of our state constitution declared that schools supported by public funds shall forever be free from sectarian influence.
CHAMBERS, BRIDGE and IRELAND, JJ., dissents.