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Why the Supreme Court Was Wrong To Allow States to Discriminate Against Theology Students,
and What States Can Still Constitutionally Do


Tuesday, Mar. 09, 2004

On February 25 of this year, the U.S. Supreme Court issued its decision in the religious freedom case of Locke v. Davey. In that decision, the Court upheld the State of Washington's decision to strip state scholarship funds only from recipients who major in "devotional theology."

The Court's decision was a serious error. Washington's decision was just what it appeared to be: An instance of explicit religious discrimination that violates students' rights under the U.S. Constitution's Free Exercise Clause. Fortunately, the decision is quite narrow in its scope. Moreover, states remain free to treat theology students fairly, if they choose.

The Promise Scholarship Program and Its Theology Study Exception

Under the Promise Scholarship Program, academically talented, financially needy students may receive state grants for their first two years of college study. The scholarship money can be used for any educational expenses -- including tuition, fees, room and board, and transportation -- the student may incur while attending any accredited college in the State of Washington.

Promise Scholars can take any courses they desire. Moreover, they can declare any major whatsoever, or no major at all -- with one crucial exception. Anyone pursuing a major in "theology" is disqualified from receipt of a Promise grant, if -- but only if -- the theology major is taught from a "religious" perspective.

The restriction applies, in other words, only when the instruction is given from the point of view of actually believing what is being taught.

Joshua Davey's Lawsuit

Because Joshua Davey met the eligibility criteria for the scholarship, he applied for and was accepted into the Promise program. Davey enrolled at Northwest College, an eligible Washington institution, and he declared a double major in Pastoral Ministries and Business Management and Administration.

But because the Pastoral Ministries major was deemed to be "theology," Davey's declaration meant he had to forfeit over $2,600 in Promise Scholarship funds. Those lost funds would have helped Davey during his first two years of college.

Davey sued in federal court, challenging the exclusionary policy as blatantly antireligious and viewpoint-discriminatory. Although the federal district court rebuffed Davey's claims, the Ninth Circuit reversed, ruling that the state's explicit discrimination against students' choice of a religious major violated the U.S. Constitution's Free Exercise Clause. Then, as noted above, the U.S. Supreme Court reversed again -- holding that this discrimination was constitutionally permissible.

What The Court's Ruling in Locke v. Davey Does and Does Not Say

Fortunately, the Supreme Court's ruling, though erroneous, was narrow in a number of respects.

First, the ruling was highly dependent on - and limited to - its unique historical circumstances. The Court found a 200-year-old tradition of "formal prohibitions against using tax funds to support the ministry." The State of Washington, the Court noted, had incorporated this concern into its state constitution: "No public money or property shall be appropriated for or applied to any religious worship, exercise, or instruction . . ." (Emphasis added.)

"Given this historic and substantial state interest," the Court explained, "we therefore cannot conclude that the denial of funding for vocational religious instruction alone is inherently constitutionally suspect." (Emphasis added.)

Locke thus does not legitimize other discrimination against religion; it is confined to the specific context it addressed. The Supreme Court carefully limited its decision to the unique historical context of objections to tax-funded clergy training.

As the Court explained, "the only interest at issue here is the State's interest in not funding the religious training of clergy." (Emphasis added.) "In fact," the Court said, "we can think of few areas in which a State's antiestablishment interests come more into play." In short, this decision dealt with a special case: tax-funded clergy training. And the Court was clear that because a unique history came into play in this special case, its ruling was limited.

Second, the ruling does not prohibit other States from disagreeing with Washington, and funding all student scholarships equally, regardless of the subject or the beliefs of the student or instructor. Put another way, Locke v. Davey does not require states to deny funding to students pursuing religious degrees. To the contrary, the Supreme Court declared that there is "no doubt" that the state could, if it wishes, "permit Promise Scholars to pursue a degree in devotional theology." The Court only ruled that a state does not have to do so. The option remains open -- and even the State of Washington could choose to amend its Constitution and opt the other way.


, then, leaves the states free to abandon the vestiges of religious bias. Just because a state may discriminate against needy students like Joshua Davey does not mean that it must -- or should -- do so. Nothing in Locke compels a state to maintain a regimen of antireligious bigotry.

After Locke, Voucher Programs and Neutral Funding of Religion Courses Are Left Intact

In light of these restrictions, one can confidently say that Locke casts no shadow over government voucher programs, such as the one upheld in Zelman v. Simmons-Harris, that nondiscriminatorily allow funding to be used for secular and religious schools alike. Indeed, the Court cited Zelman approvingly in Locke, noting that the "independent and private choice" of voucher recipients properly eliminates any alleged unconstitutional "link between government funds and religious training."

Nor, after Locke, may states exclude religious schools from voucher programs that otherwise include private schools. States are free to set religion-neutral parameters for their grant programs, even if such requirements effectively bar some schools from participation. But if a school completely satisfies all other eligibility criteria set by the state for the voucher program, and yet the state nevertheless categorically disqualifies the school solely because of its religious nature, this would be unconstitutional antireligious discrimination.

In Locke, the Court specifically noted that Washington included even "pervasively religious schools" in its Promise program. Moreover, as the Court explained, students who receive Promise funds could still "take devotional theology courses," if that was not their major. Indeed, the Court observed, the college Davey attended required all its students to take "at least four devotional courses," yet the college was nevertheless an eligible institution for state-funded Promise Scholars.

Plainly, then, the Court had no problem with States' opting to grant state funds to all instruction -- including religious instruction -- on a nondiscriminatory basis.

"Equal Access" and Bias Cases, Too, Survive the Ruling in Locke

Finally, like Zelman and religious discrimination precedents, precedents involving equal access for religious voices to governmentally-devised speech forums are also left undisturbed by Locke.

Indeed, the Court specifically distinguished "cases dealing with speech forums." It pointed out that the state neither denied Davey access to a speech forum, nor excluded him from a funding program designed "to encourage a diversity of views from private speakers."

Thus, the Locke decision certainly should not be taken as a mandate to purge religious speakers from government forums. To the contrary, the decision underlines that religious views are rightly within the diversity of views such forums seek to encourage.

While the ruling in Locke was a mistake, for all the reasons I have cited, it ought not to be a mistake with a ripple effect. Locke is best seen as what it was: The Court's reluctance to disrupt a narrow historic tradition enshrined in a state Constitution. The ruling has no relevance to more enlightened contemporary practices that treat students (and others) equally, regardless of what they choose to study, and what their beliefs may be.

Walter M. Weber, Esq., is Senior Litigation Counsel in the Washington DC office of the American Center for Law and Justice. For the other side of this issue, please see an earlier column by FindLaw columnist Marci Hamilton.

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