February 27, 2004

Resources on Locke v. Davey

On February 25, 2004, the United States Supreme Court announced its ruling in Locke v. Davey, holding that Washington State is allowed to deny scholarship funds to students studying devotional theology. Justice Rehnquist wrote for the majority: “The State of Washington established the Promise Scholarship Program to assist academically gifted students with postsecondary education expenses. In accordance with the State Constitution, students may not use the scholarship at an institution where they are pursuing a degree in devotional theology. We hold that such an exclusion from an otherwise inclusive aid program does not violate the Free Exercise Clause of the First Amendment.”

Background

In 1999, the Washington Legislature created the Promise Scholarship program, which offers scholarships to students graduating from a public or private high school located in the state. To receive the scholarship, a student must meet certain academic, income and enrollment criteria. When a student enrolls at an eligible educational institution, the school confirms the student’s enrollment requirements.

One of those enrollment requirements is that the student is not pursuing a degree in theology. The state bases this requirement on the Washington constitutional provision, which states: “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.” In a brief filed with the Supreme Court, the state of Washington explains that it interprets this provision not to prohibit the use of public funds for “the secular study of the topic of religion” but to prohibit the use of such funds for “religious instruction – that is, instruction that inculcates belief (or disbelief) in God…” (Brief for the Petitioners, p. 5). Thus, as Davey has claimed, the state apparently “disqualifies from the Promise Scholarship those who declare a major in theology if that major is taught from a religious viewpoint,” but “[t]hose students who declare a major in theology taught from a secular perspective may keep their Promise Scholarship” (Brief for the Respondents, pp.6-7, emphasis deleted).

Joshua Davey applied for and was granted a Promise Scholarship for use beginning with the 1999-2000 academic year. However, when he met with the director of financial aid at Northwest College, the private college he attended, the director determined that Davey did not meet the enrollment requirements for the scholarship because he was pursuing a degree in theology. Davey double majored in Pastoral Studies and Business Management and Administration; he plans to seek a career in the ministry. The appellate court noted that “[a] Pastoral Ministries major at Northwest is designed to prepare students for a career as a Christian minister” and “[c]lasses are taught from a viewpoint that the Bible represents truth and is foundational whereas, [according to the state], theology courses at public postsecondary institutions in Washington are taught from an historical and scholarly point of view.” Thus Davey did not receive the Promise Scholarship during the two years in which he was otherwise eligible to receive it.

Davey sued the state of Washington, arguing that Washington’s refusal to provide him with a Promise Scholarship violated the state and federal constitutions. The trial court rejected Davey’s challenge, finding that the state’s action did not violate the Free Exercise Clause of the First Amendment to the U.S. Constitution. It also rejected Davey’s other constitutional claims. Davey appealed and the U.S. Court of Appeals for the Ninth Circuit reversed the lower court’s ruling, finding that the state’s action violated Davey’s free exercise rights. The Ninth Circuit did not address Davey’s other constitutional claims. The state of Washington asked the Supreme Court to hear the case and, on May 19, 2003, the Court agreed to do so.

In terms of its practical impact, the ruling in this case could affect not only government aid programs for students who attend religious colleges and universities, but also government voucher programs for elementary and secondary education and faith-based initiatives in which government funding flows to religious social service providers.

For example, the Supreme Court ruled in 2002 that the U.S. Constitution allows religious schools to participate in “neutral” voucher programs that offer a “genuine choice among options, public and private, secular and religious.” But a remaining barrier to the implementation of some voucher plans is the fact that a number of state constitutions have or could be interpreted to bar them. This case may determine whether those stricter state limits are themselves constitutional under the federal constitution.

A Pew Forum publication entitled School Vouchers: Settled Questions, Continuing Disputes briefly explored some of these issues, as did a Forum conference, jointly sponsored with the UNC First Amendment Law Review, which focused on the issue of state constitutional restrictions on government aid and religious institutions. The Forum has an issue page on school vouchers that contains these resources and others, as well as an overview of the Supreme Court’s ruling in the Cleveland school voucher case, and the latest news clips on current debates over school voucher programs.

Oral argument before the Court in the Locke v. Davey case was heard on December 2, 2003, and, as noted above, the decision in favor of Locke was handed down on February 25, 2004. On February 27, 2004, the Pew Forum hosted a discussion of the decison. Read the transcript.

Resources from the Courts

Opinion
Brief of Petitioner: Governor Gary Locke, Governor of Washington, et al.
Brief of Respondent: Joshua Davey
Brief of the Solicitor General of the United States
Reply Brief
Supreme Court Docket
Joint Opening Brief
Transcript of Oral Argument

Amicus Briefs in support of Petitioner:
American Civil Liberties Union
American Jewish Congress
Anti-Defamation League
Historians and Law Scholars
National Education Association
National School Boards Association
State of Vermont

Amicus Briefs in support of Respondent:
Black Alliance for Educational Options
Becket Fund for Religious Liberty
Common Good Legal Defense Fund and Your Catholic Voice Foundation
Conference of Catholic Bishops
Council for Christian Colleges & Universities, et al.
Fairness Foundation
Institute for Justice
Landmark Legal Foundation
Liberty Counsel
National Jewish Commission on Law and Public Justice
Religious Universities and Colleges, et. al.
Solidarity Center for Law and Justice
State of Alabama
State of Florida
States of Texas, Mississippi and Utah
Teresa M. Becker