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"U.S. Supreme Court to Hear Challenge to State Ban on Aid for Theology Majors: The Restrictions Affect Few Students, But the Case Has Become an Ideological Battleground," The Chronicle of Higher Education, November 28, 2003, 27.
By WILL POTTER
A legal challenge to a college-scholarship program in Washington State now before the U.S. Supreme Court has become an ideological battleground for religious and civil-liberties groups.
Conservative groups hope that a Supreme Court ruling against the program, which excludes students studying to become ministers, could buttress their campaigns in support of school vouchers and even state appropriations for faith-based organizations. Meanwhile, groups like the American Civil Liberties Union say the future of the separation of church and state is at stake.
Absent from the debate, so far, has been most of higher education. Unlike in the recent University of Michigan affirmative-action cases, higher-education officials say not much is at risk in the case since such restrictions affect a tiny fraction of college students in about a dozen states.
Even so, some religious colleges say the outcome of Locke v. Davey, which the court is scheduled to hear on December 2, could affect any public dollars they receive from state coffers.
The justices will review a decision by the U.S. Court of Appeals for the Ninth Circuit that held that Washington State violated the First Amendment's religious-freedom provision and the 14th Amendment's equal-protection clause when it rescinded Joshua Davey's scholarship in 1999, after he decided to major in both business administration and pastoral ministries at Northwest College. The Kirkland, Wash., institution is affiliated with the Assemblies of God Church. Mr. Davey planned to become a minister and use his business education to manage church finances.
The state told Mr. Davey that he could use the scholarship to study theology, but not if it was taught from a religious perspective. Mr. Davey was given the choice of changing his major, switching institutions, or giving up the money.
When he refused to change his major, the state withdrew the scholarship. Mr. Davey then sued the state, arguing that he met all the criteria for the Promise Scholarship: He had graduated in the top 10 percent of his high-school class, his family income was less than 135 percent of the state's median income, and he attended an accredited state college.
"Yes, I was planning on becoming a minister," says Mr. Davey, who is now a student at Harvard University's law school. "But in a more immediate sense, I was just going to college."
Second Washington Case
Jay Sekulow, the lawyer for Mr. Davey, argues that the state violated his client's freedom of religion by telling him he needed to change majors or colleges to get an education.
"What if the expressway had signs that said Jews and Catholics can't use the HOV lane?" Mr. Sekulow asks. "They're not prohibited from driving, but that doesn't make it okay."
This is not the first time that a case involving a scholarship in Washington State has made its way to the U.S. Supreme Court. In 1986, the court ruled in Witters v. Washington Department of Services for the Blind that giving scholarships to students at religious institutions did not violate the U.S. Constitution.
But Washington officials said that the state constitution supported a ban on such awards, an issue the Supreme Court remained silent on in its 1986 decision.
Since then, Washington has applied its restrictions on student aid inconsistently, Mr. Davey's supporters say. Northwest students who have not declared a major, for instance, can use a state scholarship to enroll in the same courses as Mr. Davey.
And every major at the college "looks through the eyes of faith at all subjects," says Robert C. Andringa, president of the Council for Christian Colleges & Universities, of which Northwest is a member. "You may have a biblical worldview expressed very strongly in business, economics, or courses on the environment that could, in fact, be more religious than a course on theology."
In arguing their position, lawyers for Washington State make the same point. In Northwest with another major and still "be exposed to that Christian point of view. The only thing he cannot do is use the scholarship to pursue a degree in theology."
While students have the right to pursue degrees in pastoral ministries, "the fact you have a constitutional right does not mean the government has to fund that right," says Narda Pierce, Washington's solicitor general.
A Precedent for Others?
Religious colleges fear that a strong ruling in favor of Washington could reduce the amount of state-based financial aid their students receive, especially if other states put similar restrictions on their scholarships. Or, in a scenario higher-education officials say is less likely, states could exclude students at religious institutions from financial aid altogether.
"Washington says, 'We're not punishing you, we're just not funding you,'" saysThomas C. Berg, a professor of law at the University of St. Thomas, in St. Paul, Minn., who filed a supporting brief on behalf of groups representing Catholic and Southern Baptist colleges. "If the court accepts that argument, it could extend well beyond theology degrees."
A court ruling in support of Mr. Davey, though, could empower religious colleges to ask for more state money. Since the mid-1960s, leaders of religious institutions say they have become increasingly secular in order to qualify for public dollars. "Schools could abandon that secular trend and return to their religious traditions, because they could qualify for aid," says Marc D. Stern, a lawyer for the American Jewish Congress.
If that happens, it is likely that state lawmakers who oppose giving scholarships to would-be ministers would respond by structuring aid programs so narrowly that they exclude many students, Mr. Stern says.
Either way, many colleges say this case is not about them. By some estimates, the decision would affect less than 2 percent of all college students.
Washington's restrictions on financial aid, and similar laws in other states, stem from the campaign of U.S. Sen. James G. Blaine, Republican of Maine, to amend the U.S. Constitution in the 1870s. Senator Blaine said that a growing number of Irish immigrants, and their Catholic beliefs, threatened the country's Protestant culture. His efforts to add tougher church-state separations to the U.S. Constitution failed, but 37 states adopted versions of his proposal.
"I think this is really about wanting to test the constitutionality of the Blaine amendments," said Jon Fuller, a senior fellow at the National Association of Independent Colleges and Universities, which has not taken a stand on the case.
A ruling in favor of Mr. Davey could put the Blaine amendments in question. Conservative activists could argue that if states must give scholarships to students attending religious colleges, then they must also give vouchers for students to attend religious schools.
The American Center for Law and Justice, which represents Mr. Davey, was started by the evangelist Pat Robertson to "undo the damage done by almost a century of liberal thinking and activism," according to a statement on its Web site.
Recently, the group has been busy trying to get other states to change their restrictions on student aid. After the group filed a lawsuit in Kentucky, state officials agreed to change their policies in January. The lawsuit mirrored the Washington case: Woods Nash, a junior at Cumberland College, was denied about $2,000 in scholarship funds after he declared a major in religion. "We went to them and said the Sixth Circuit [Court of Appeals] would likely rule the same way" as the Ninth Circuit did in the Washington case, said Francis J. Manion, a lawyer for the center.
Meanwhile, a judge in Michigan has postponed a similar case there until the Supreme Court issues a ruling sometime in the spring. In the Michigan case, Teresa Becker was denied $2,300 in scholarships when she declared a major in theology at Ave Maria College.
As for the criticism that conservative groups have used state scholarship programs to further their larger political agenda, Patrick T. Gillen, a lawyer for Ms. Becker, says he simply responded to a student in need. "I got a call from a young lady who was stripped of her scholarship unfairly," he says. "That's what I acted on. It may not seem like a lot of money, ... but it's a lot of money to Teresa."
