299 F.3d 748 (9th Cir. 2002), 00-35962, Davey v. Locke

Docket Nº:00-35962
Citation:299 F.3d 748
Party Name:Davey v. Locke
Case Date:July 18, 2002
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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299 F.3d 748 (9th Cir. 2002)

Joshua DAVEY, Plaintiff-Appellant,


Gary LOCKE, Gov., individually and in his official capacity; Marcus S. Gaspard, individually, and in his official capacity as Executive Director of the Higher Education Coordinating Board; Bob Craves, individually, and in his official capacity as Chair of the Higher Education Coordinating Board; John Klacik, individually, and in his official capacity as Associate Director of the Higher Education Coordinating Board, Defendants-Appellees.

No. 00-35962.

United States Court of Appeals, Ninth Circuit

July 18, 2002

Argued and Submitted May 6, 2002.

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Stuart J. Roth, The American Center for Law and Justice, Mobile, Alabama, and Kevin H. Theriot, The American Center for Law and Justice, Virginia Beach, VA, for the plaintiff-appellant.

Michael J. Shinn, Assistant Attorney General, Seattle, WA, for the defendants-appellees.

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Appeal from the United States District Court for the Western District of Washington; Barbara J. Rothstein, Chief District Judge, Presiding. D.C. No. CV-00-00061-BJR.

Before: RYMER, McKEOWN, and GOULD, Circuit Judges.

RYMER, Circuit Judge.

This appeal challenges Washington law that denies a statefunded "Promise Scholarship" to students who are qualified for it by virtue of high school grades, family income, and attendance at an accredited college in the state, solely because the student decides to pursue a degree in theology.

Joshua Davey was awarded the Scholarship but lost it when he declared a major in Pastoral Ministries at Northwest College. He claims that this was discriminatory and denied him access to funds that were otherwise available to all eligible students in violation of the religion clauses of the First Amendment and his federal and state constitutional rights to freedom of speech and equal protection. Washington's Higher Education Coordinating Board (HECB), which administers the Promise Scholarship, defends its action on the ground that the state did not prohibit Davey from pursuing religious studies but simply declined to fund them; that state funding for Davey's religious instruction is barred by state law, Wash. Rev.Code § 28B.10.814,1 and the state constitution's provision regarding the separation of church and state;2 and that refusing to award aid to students pursuing a degree in theology is reasonably related to the bar in the Washington Constitution.

We conclude that HECB's policy lacks neutrality on its face. It makes the Promise Scholarship (which is neutral toward religion) available to all students who meet generally applicable criteria, except for those who choose a religious major. As this classification facially discriminates on the basis of religion, it must survive strict scrutiny. We are not persuaded that it does; Washington's interest in avoiding conflict with its own constitutional constraint against applying money to religious instruction is not a compelling reason to withhold scholarship funds for a college education from an eligible student just because he personally decides to pursue a degree in theology. Accordingly, we hold that HECB impermissibly deprived Davey of his scholarship.


In 1999, Washington created a new college scholarship program for low and middle income students who achieve an excellent academic record throughout their high school careers. The award is known as a "Promise Scholarship." It is available for the first year of a student's postsecondary education, and may be renewed for one additional year. The Scholarship was worth $1,125 for the year 1999-2000, and

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$1,542 for 2000-01. Private school students may spend their funds on any education-related expense, including room and board.

The Washington Higher Education Coordinating Board administers the Promise Scholarship. Its overview announcing the program stated:

To be eligible you must meet these criteria:

1. Be designated by your high school as in the top 10% of the 1999 graduating senior class.

2. Have a family income that is equal to or less than 135% of the state's median.

3. Attend an accredited public or private university, college or other accredited post-secondary institution in the state of Washington.

Davey applied for the Scholarship and was selected as a Washington Promise Scholarship recipient in August 1999. In the fall he enrolled at Northwest College, an accredited institution affiliated with the Assembly of God. Students applying to Northwest are required to indicate "a personal commitment to Jesus Christ as Lord and Savior," and the college educates students from a "distinctly Christian" point of view.

As he is a Christian who intends to become a cleric, Davey declared a double major in Pastoral Ministries and Business Management and Administration. Davey wanted to go to college, and to pursue this major, because of his religious beliefs. A Pastoral Ministries major at Northwest is designed to prepare students for a career as a Christian minister. Classes are taught from a viewpoint that the Bible represents truth and is foundational whereas, according to HECB, theology courses at public postsecondary institutions in Washington are taught from an historical and scholarly point of view.

On October 12, 1999 HECB notified financial aid administrators throughout the state that students pursuing a degree in theology are not eligible to receive the Washington Promise Scholarship.3 Northwest determined that majors in Pastoral Ministries are pursuing a degree in theology, so it could not certify Davey's eligibility as HECB required. As a result, Davey had to choose whether to follow his calling, or forego the Scholarship. He decided to give up the Scholarship, but has been able to pursue his major.

Davey brought this action against the Governor and officials of HECB 4 to enjoin HECB from refusing to award the Scholarship to an otherwise eligible student solely because the student is pursuing a degree in theology, and for damages. He and HECB agreed to escrow Scholarship funds for the 2000-01 school year. Both parties moved for summary judgment,

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which the district court granted in HECB's favor.

Davey timely appealed.



The parties analyze the authorities from every possible angle. Their arguments distill to this:

On the one hand, singling Davey out for unfavorable treatment in an otherwise neutral program on account of a religious major violates the free exercise rule of Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993), as well as the rule of McDaniel v. Paty, 435 U.S. 618, 98 S.Ct. 1322, 55 L.Ed.2d 593 (1978), that a state offering a benefit may not impose a disability on the basis of religious status. Thus, Washington's restriction may not stand unless it is narrowly tailored to advance a compelling state interest.

On the other hand, declining to subsidize the exercise of a constitutional right is permissible under Rust v. Sullivan, 500 U.S. 173, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991), and Regan v. Taxation With Representation of Wash., 461 U.S. 540, 103 S.Ct. 1997, 76 L.Ed.2d 129 (1983). The focus in free exercise inquiries is on what the government prohibits rather than on what the individual can exact. Lyng v. Northwest Indian Cemetery Protective Ass'n., 485 U.S. 439, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988). Here, Washington simply refuses to underwrite the education of students who pursue a degree in theology, but does not prohibit Davey from freely practicing or pursuing his religious views, speaking about them, or associating with others of like mind. Accordingly, strict scrutiny is inapplicable.

The rejoinder is that Regan and Rust do not apply because the programs there were set up for the government's own purposes as a speaker. As a speaker, the government may selectively fund a program to encourage activities that it believes are in the public interest. By contrast, the purpose of the Promise Scholarship program is broad: to fund the educational pursuits of outstanding students. For this reason, administration of the Scholarship must be viewpoint neutral under Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995). However, it isn't, because state policy excludes only those recipients who pursue the study of theology from a religious perspective.

We recur to basic principles. The First Amendment declares: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Thus, the state may neither favor, nor disfavor, religion. A law targeting religious beliefs as such is never permissible. In McDaniel, for example, the Court held that a state law that disqualified members of the clergy from being delegates to a constitutional convention violated a minister's right to the free exercise of his religion. 435 U.S. at 629, 98 S.Ct. 1322. As the Supreme Court explained in Lukumi, "[a]t a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons." 508 U.S. at 532, 113 S.Ct. 2217.

The Free Exercise Clause "protect[s] religious observers against unequal treatment." Lukumi 508 U.S. at 542, 113 S.Ct. 2217 (quoting Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U.S. 136, 148, 107 S.Ct. 1046, 94 L.Ed.2d 190 (1987) (Stevens, J., concurring in judgment)).

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Whereas a law that is neutral and of general applicability need not be justified by a compelling government interest even if it has the incidental effect of burdening a religious practice, a "law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny. To satisfy the commands of the First Amendment, a law restrictive of religious practice must...

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