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"Justices Focus on Church-State Implications as Court Hears Arguments in Scholarship Case," The Chronicle of Higher Education, December 3, 2003, online.
By WILL POTTER
WASHINGTON — As the U.S. Supreme Court heard oral arguments on Tuesday on whether Washington State can deny a scholarship to a student studying to become a minister, the focus of the justices was not on higher education. Rather, the court wondered about the implications of the case for broader questions of church-state relations.
The justices were sharply divided on the case, criticizing what they said were inconsistencies in Washington's scholarship program but also noting that the court's decision could push the doors wide open for additional state support of religious causes, such as school vouchers and faith-based organizations.
The student, Joshua Davey, was denied a state scholarship in 1999 because he had chosen to major in business administration and pastoral ministries at Northwest College, which is affiliated with the Assemblies of God Church. He planned on becoming a minister.
Washington State told Mr. Davey that he could receive the scholarship if he stayed at Northwest but changed his major, or if he studied theology at a secular institution, but he refused to do either. Instead, he sued the state and won his case on appeal. The U.S. Court of Appeals for the Ninth Circuit held that in denying his scholarship, Washington State had violated the First Amendment's religious-freedom provision and the 14th Amendment's equal-protection clause. Mr. Davey is now a law student at Harvard University.
In Tuesday's arguments before the Supreme Court, Justices David H. Souter and Anthony M. Kennedy said the scholarship program is inconsistent with the state's goal of not using taxpayer money for religious training.
"This student could have taken all of these religious courses if only he had not double-majored," Justice Kennedy said. The entire college teaches courses from a religious perspective, he said, so prohibiting students from majoring in theology is discriminatory.
The state cannot evaluate scholarships on a "class-by-class, student-by-student basis," replied Narda Pierce, Washington's solicitor general. Theology students at Northwest need 125 credits to graduate, she said, and 79 of them must be in theology courses taught from a religious perspective. A student could take some of the same courses as Mr. Davey, but not all, and still receive the scholarship.
Justice Ruth Bader Ginsberg came to Ms. Pierce's defense. "The state has decided," she said, that "it doesn't want to fund training of clergy, and it's trying to be as accommodating as possible in doing that."
The justices questioned Mr. Davey's lawyer, Jay Sekulow, about what would be "acceptable" discrimination. Mr. Sekulow said that states could restrict scholarships to, say, nurses, but could not allow scholarships for all majors except theology. And states could make scholarships available only to students who attended public universities, he said, but if the scholarships were open to students at all accredited universities, theology majors could not be excluded.
Justice Sandra Day O'Connor was quick to note that more than 30 other states have constitutional provisions similar to Washington's, and that a ruling in this case could have a sweeping effect on all of them.
But a ruling in the case itself, Locke v. Davey, would affect very few college students, universities say. Few students major in theology taught from a religious perspective, and in states with such scholarship restrictions.
"This case is perhaps a small matter... but the implications of this case are breathtaking," said Justice Stephen G. Breyer. He asked the U.S. solicitor general, Theodore B. Olson, what the case could mean for the future separation of church and state.
The country has long been moving in a direction that would favor Mr. Davey, replied Mr. Olson, who had the Justice Department file a brief siding with Mr. Davey in the case. "It's not as far-reaching as the excessive doom your question suggests," he said.
The Supreme Court is expected to rule on the case, No. 02-1315, by next summer.
