806 F.2d 516 (4th Cir. 1986), 85-1857, Phan v. Com. of Va.

Docket Nº:85-1857.
Citation:806 F.2d 516
Party Name:Nhi V. PHAN, Appellant, v. The COMMONWEALTH OF VIRGINIA, Dickerson, Altamont Jr., Comm. Va. Dept. of Rehabilitative Service, Appellees.
Case Date:December 12, 1986
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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806 F.2d 516 (4th Cir. 1986)

Nhi V. PHAN, Appellant,


The COMMONWEALTH OF VIRGINIA, Dickerson, Altamont Jr., Comm.

Va. Dept. of Rehabilitative Service, Appellees.

No. 85-1857.

United States Court of Appeals, Fourth Circuit

December 12, 1986

Argued May 6, 1986.

Steven A. Standiford, Washington, D.C., for appellant.

Phyllis Katz, Asst. Atty. Gen., Richmond, Va., (Mary Sue Terry, Atty. Gen., Paul J. Forch, Senior Asst. Atty. Gen., Richmond, Va., on brief) for appellees.

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Before WINTER, Chief Judge, and RUSSELL and PHILLIPS, Circuit Judges.


Nhi V. Phan, an indigent handicapped Virginia resident, sought a declaratory judgment and supplemental relief to establish that he is entitled to financial assistance to enable him to attend St. Andrews Presbyterian College, a church-affiliated liberal arts college in North Carolina that provides special services and facilities for handicapped students, and to require the Commonwealth to provide such aid.

Essentially Phan challenges a series of appropriations restrictions embodied in the Constitution of Virginia. While Virginia provides financial assistance to handicapped residents attending any college in Virginia, including church-affiliated schools, or any nonsectarian college outside of Virginia, the Attorney General of Virginia has issued a formal opinion that the state constitution prohibits payment of state funds to church-affiliated colleges located outside Virginia.

The district court dismissed Phan's complaint, and he appeals. Because the record is unclear as to whether there is a reasonable basis for the discrimination apparent in the Virginia scheme of financial educational aid to the handicapped and whether the Virginia law is being evenly applied, we vacate the judgment and remand the case for further proceedings.


The facts of the case were stipulated and need only be briefly stated.

Phan is a 20 year old citizen of the Republic of Vietnam and is a permanent resident alien of the United States. His foster father, Steven A. Standiford, is a citizen and resident of Virginia. As a result of polio, Phan is unable to walk without aid. He achieves mobility by means of crutches and leg braces, a wheelchair and a motor vehicle specially equipped with hand controls. He is "severely handicapped" as defined in the Vocational Rehabilitation Act of 1973, 29 U.S.C. Secs. 701 et. seq.

Phan graduated from Washington & Lee High School, Arlington, Virginia, in June, 1984. After consulting with his high school guidance counselor to determine which colleges were accessible to the mobility impaired, Phan applied for admission to St. Andrews Presbyterian College in Laurinburg, North Carolina, a non-profit liberal arts college affiliated with the Presbyterian synod of North Carolina. Although church related, 1 the primary purpose of St. Andrews is to provide collegiate or graduate education and not to provide religious training by theological education.

Phan was accepted at St. Andrews and he was granted financial assistance from St. Andrews in the amount of $7,600 for the 1984-85 academic year contingent upon his matriculation in September, 1984.

Phan and his foster father both sought financial assistance from the Commonwealth, under its program of financial aid to the handicapped, financed approximately 80% by the federal government and approximately 20% by Virginia. Phan was determined to be eligible for a grant.

Virginia has no policy against persons eligible for grants using out-of-state institutions for higher learning. While recipients are encouraged to use in-state facilities, they may, with the approval of the Virginia Department of Rehabilitative Services, obtain training services out-of-state. Virginia has paid for handicapped students to attend church-related schools in Virginia, such as Liberty Baptist College, Eastern Mennonite College, Virginia Union University, Virginia Wesleyan College, Terrum College and the University of Richmond. The primary purpose of these institutions is to provide collegiate or graduate education and not to provide religious training or theological education. Virginia has paid for handicapped students to attend non-

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church-related schools throughout Virginia and elsewhere throughout the nation including schools in California, Texas, Pennsylvania, Washington, D.C., Maryland and Georgia.

Phan has been denied financial aid to attend St. Andrews solely because it is a church-related school.

The denial of aid to attend St. Andrews is grounded upon three overlapping provisions of the Constitution of Virginia that operate to deny Phan financial aid to defray expenses associated with attendance at any church-affiliated school outside Virginia. Article IV, Sec. 16 prohibits appropriations of public funds to any church or sectarian society or any institution controlled by a church or sectarian society:

The General Assembly shall not make any appropriation of public funds, personal property or real estate to any church or sectarian society, or any association or institution of any kind whatever which is entirely or partly, directly or indirectly, controlled by any church or sectarian society. 2

Article VIII, Sec. 10 governs appropriations of state funds to non-public schools:

No appropriations of public funds shall be made to any school or institution of learning not owned or exclusively controlled by the state ... provided ... that the General Assembly may ... appropriate funds for education purposes which may be expended in furtherance of ... collegiate ... education of Virginia students in public and nonsectarian private schools and institutions of learning, in addition to those owned or exclusively controlled by the State.

For more than 25 years, the state has interpreted the provision for appropriations for nonpublic education to permit tuition grants to students attending nonsectarian private schools both inside and outside Virginia.

Until the passage of Article VIII, Sec. 11, Virginia could not provide assistance to church-affiliated schools. Art. VIII, Sec. 11 was proposed primarily to permit state assistance to financially hard-pressed private institutions of higher learning, whether church-related or not, by making loan programs available to students in such institutions. See The Constitution of Virginia--Report of the Commission on Constitutional Review, pp. 273-74 (1969). The relevant language of Sec. 11 as finally adopted is:

The General Assembly may provide for loans to, and grants to or on behalf of, students attending nonprofit institutions of higher education in the Commonwealth whose primary purpose is to provide collegiate or graduate education and not to provide religious training or theological education.

Unlike Sec. 10, Sec. 11 contains an explicit geographic limitation; Virginia provides financial aid to students attending church-affiliated institutions only within the Commonwealth.

Phan challenges this collage of restrictions, which permits state assistance to students attending both in-state and out-of-state nonsectarian schools and to students attending sectarian schools located in-state. His arguments are based upon the Establishment Clause and the Fourteenth Amendment. He also argues that even if tuition aid to attend St. Andrews was validly denied him, he nevertheless may validly receive payment for books, transportation and related expenses. We consider these contentions seriatim.

II. Establishment Clause

For a statute to survive scrutiny under the establishment clause, (1) it must have a secular legislative purpose; (2) its primary effect must neither advance nor inhibit religion; and (3) it must not foster excessive entanglement with religion. Wallace v. Jaffree, 472 U.S. 38, 105 S.Ct.

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2479, 2489, 86 L.Ed.2d 29 (1985), citing Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). Phan contends that distinguishing out-of-state schools on the basis of religious affiliation violates the second prong of the Lemon test, in that it impermissibly disfavors church-affiliated colleges.

Existing jurisprudence renders this contention unpersuasive. Phan concedes that Virginia could permissibly ban any use of state funds which might aid religion, as indeed the Supreme Court has suggested. See Witters v. Washington Department of Services for the Blind, --- U.S. ----, 106 S.Ct. 748, 88 L.Ed.2d 846 (1986) (Washington's program of providing tuition assistance to blind students seeking higher education does not offend federal Constitution's prohibition on the establishment of religion, even though at least one student used tuition subsidy to finance his study for the ministry). In remanding that case, the Court noted that the state courts were free to consider whether the funding program ran afoul of the stricter prohibition of establishment of religion embodied in the Washington state constitution. 3 Thus, the Court recognized that whether to fund religious studies along with other post-secondary education lies within a permissible zone of accommodation of religion but is not mandatory. A choice not to...

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