- The Washington Times - Saturday, July 20, 2002

A federal appeals court has ruled that the state of Washington engaged in unlawful religious discrimination when it withdrew a state scholarship it had awarded to a needy college student after determining the recipient is studying theology at a Christian institution.
"This is a resounding victory for equal treatment of people of faith," said Jay Sekulow, chief counsel for the American Center for Law and Justice (ACLJ), which represented the successful plaintiff, Joshua Davey.
The 2-1 decision rendered Thursday by a three-judge panel of the U.S. Court of Appeals for the 9th Circuit in San Francisco was seen as uncharacteristic for that bench, known for its liberal bent. Last month, a different three-judge panel of the 9th Circuit set off a national furor when it declared that requiring the recitation of the Pledge of Allegiance in a public school was unconstitutional because it contains the words "under God." The court held that this constituted endorsement of religion, violating the separation of church and state.
The Pledge ruling sparked such outrage that Judge Alfred Goodwin, who wrote the opinion, quickly issued a stay until all appeals are exhausted.
"This was a different panel of judges, but it was not a conservative bench. The fact that they struck down the state of Washington's policy that bars theology students from receiving state scholarships just speaks in my mind to how discriminatory and egregious this policy is," said Stuart J. Roth, a senior counsel for the ACLJ.
"This policy made [tax-funded] financial aid available to a whole universe of individuals, except for individuals who are studying religion as truth. The statute says that if you are pursuing a degree in theology, you are ineligible for financial aid. They are singling out religion for discriminatory treatment," Mr. Roth said in a telephone interview from his office in Alabama.
Cheryl Reid, spokeswoman for the Washington state attorney general, said yesterday that it has not been decided whether state lawyers will seek a new hearing before a larger panel of 9th Circuit judges. "We're still reviewing the opinion," she said.
Mr. Roth says he expects an appeal but hopes there won't be one. He doesn't think the state should be trying to protect "such a discriminatory policy that's both morally wrong and legally wrong."
Mr. Davey, the plaintiff in the case, is a senior at Northwest College, a school affiliated with the Assemblies of God denomination, located in Kirkland, Wash., a Seattle suburb. Before starting college in the fall of 1999, Mr. Davey applied for a Promise Scholarship, an assistance program offered by the state that was new that year.
Promise Scholarships are earmarked for middle- and low-income students who graduate in the top 10 percent of their high school classes and are accepted at an accredited public or private university within Washington.
Mr. Roth said his client received a letter from the governor of Washington informing him he had met all requirements for the scholarship. Mr. Davey was awarded $1,125 for the 1999-2000 academic year and was to receive $1,500 the next year, the lawyer said.
But when he went for registration and state officials found out he was entering religious studies to become a pastor, "they practically grabbed the money out of his hand," Mr. Roth said. Mr. Davey elected to keep his major in pastoral ministries, even without the help of a scholarship. "He worked a couple of jobs," his attorney said.
Mr. Davey sued in U.S. District Court in Seattle, saying Washington state officials had violated his constitutional right to the free exercise of religion. "We lost this case twice in lower court, and in fact, the U.S. district judge said our claims had little merit," Mr. Roth said yesterday, referring to Judge Barbara J. Rothstein. "She felt our chance of winning on appeal was zero." .
In their appearances before Judge Rothstein as well as the three-judge panel of the 9th Circuit of the Court of Appeals, lawyers for the Washington state attorney general cited the law governing the scholarship program, which says any student "pursuing a degree in theology" is ineligible. They also pointed to a provision of the state constitution, adopted in 1889, that bars using public money for "any religious worship, exercise or instruction, or the support of any religious establishment."
In his oral arguments before the 9th Circuit in early April, Mr. Roth of the ACLJ called Washington's scholarship policy "vague and overbroad" and "conspicuously discriminatory."
While the state banned using educational funding to study for the ministry at Northwest College, it authorized money for a religious-studies program at Washington State University. "There they teach Christianity as theory. At Northwest, they teach it as truth," Mr. Roth said.
Appeals Court Judge Pamela Rymer, an appointee of President George H.W. Bush, wrote the 9th Circuit's majority opinion. Denying Mr. Davey a scholarship only because he chose "to pursue a degree in theology from a religious perspective infringes his right to the free exercise of his religion," she said.
Judge Ronald M. Gould, an appointee of President Clinton, concurred with Judge Rymer's opinion that Washington's scholarship program "discriminates on the basis of religion." They said the state lacked a "compelling reason" to deny Mr. Davey his financial aid.
But Judge M. Margaret McKeown, another Clinton appointee, who dissented, said, "Washington has neither prohibited or impaired Davey's free exercise of his religion. He is free to believe and practice his religion without restriction."
The 9th Circuit's decision follows the U.S. Supreme Court's ruling last month, which upheld the use of taxpayer money for vouchers toward tuition in Cleveland's private and parochial schools. The high court upheld the ruling despite the assertions of critics that the Cleveland voucher program violates the separation of church and state.


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