KIRKLAND, Wash. — When Northwest College student Joshua Davey chose pastoral ministry as a major, he received a phone call from the college's financial aid department regarding his Washington Promise Scholarship.
“I could either change my major and get the money or keep my major and lose the scholarship,” Davey said.
Wanting to keep his major andthe money, Davey sued on the grounds that the state law denying his scholarship violated his religious freedom.
On July 21, a federal court decided it was all right for Davey to study theology without losing the state education grant.
Davey argued he had met the requirements for the scholarship: a top-10% ranking in his high school class, attendance at an accredited college and his family's income was less than 135% of the state's median income of approximately $77,600 in 1999-2000 for a family of four.
The scholarship is part of a state aid program awarded to high school students to defray costs during the first two years of college. Davey had earned the scholarship, totaling $2,600 over two years, which he used to attend the Assemblies of God-affiliated school.
In the landmark case, a three-judge panel of the 9th U.S. Circuit Court of Appeals ruled that Washington state could not prevent students such as Davey from using a state grant to study religion.
“I'm excited about the ruling,” Davey said. “I feel vindicated.”
The 2-1 decision came as a surprise to many, including Davey, because the 9th Circuit often rules the other way in such cases involving religion. The 9th Circuit is the court that recently ruled forcing children to recite the Pledge of Allegiance violated the Constitution.
“It has a reputation for being liberal and antagonistic to religion,” Davey said. “We were amazed.”
Northwest College President Don Argue welcomed the news and said he is happy to welcome Davey back to campus to finish his senior year.
“While Northwest College was never a participant in this suit, we are pleased with the outcome for two reasons,” Argue said. “First, it rewards Joshua Davey for his courage and tenacity in pursuing what he believed was right. Second, this decision reaffirms what has been the historical position on this matter — that financial aid issues are directly between the student and the corresponding governmental entity, whether state or federal. After receiving an award, the student is free to use it to invest in an educational future at any accredited institution.”
The American Center for Law and Justice argued the case for Davey.
“This was the only major that would make one ineligible for the scholarship,” said Stuart Roth, who argued the case before the court. “If someone studied theology from a secular viewpoint, he could still receive the scholarship.”
He accused the law of “creating a system of education where they can tell you what you can and cannot study.”
State officials argued that the law protects the state from establishing or sponsoring religion.
“The value of the state law is to put a clear separation between the state and religion,” said Marcus Gaspard, executive director of the state's Higher Education Coordinating Board.
But Judge Pamela Ann Rymer disagreed. “To the extent that the message behind the Promise Scholarship is that doing well in high school pays off and that going to college in Washington is a good thing, and that developing the talents of promising students is of great importance to the state, it is qualified with the message, ‘unless the student pursues a degree in theology from a religious perspective,'” Rymer wrote.
“This necessarily communicates disfavor, and discriminates in distributing the subsidy in such a way as to suppress a religious point of view,” she added.
Said Roth: “The state's justification was separation of church and state. The state has erected a higher wall than the federal Constitution. That's all fine and good. But the state constitution can't violate the First Amendment of the federal Constitution.”
Richard Garnett, professor at Notre Dame law, agreed with Roth's assessment.
“It's like Mississippi saying, ‘I know you have that 13th Amendment, but our state constitution allows slavery,'” he said.
Garnett said the case was a “major victory” because Washington's constitution has one of the nation's strictest bans on aid to religious institutions. Known as Blaine amendments, the provisions were demanded by anti-Catholic forces in Congress before states like Washington, Montana, North Dakota and South Dakota were admitted into the union. They prohibited any aid to “sectarian” institutions.
“It's now the law for 60 million people in the 9th Circuit. Blaine amendments can't be used to deny equal treatment in the context of state scholarship programs,” Garnett said.
He added that the timing of the case “couldn't be better.”
“Coming on the heels of Zellman, it's huge,” said Garnett, referring to the Supreme Court case in June that upheld the constitutionality of school vouchers.
“Opponents of vouchers said, ‘Not so fast, we've got these Blaine amendments,'” Garnett said. “To have the 9th Circuit say, ‘Hey, these Blaine amendments aren't the smart bombs you think,’ is quite a victory.”
Joshua Mercer writes from Washington, D.C.