State ex rel. Gallwey v. Grimm

Decision Date13 June 2002
Docket NumberNo. 68565-7.,68565-7.
Citation48 P.3d 274,146 Wash.2d 445
PartiesSTATE ex rel. Mary GALLWEY, Respondent, v. Daniel K. GRIMM, Treasurer of the State of Washington, et al., Appellants, Washington Association of Independent Colleges and Universities, Intervenor Appellant, The University of Puget Sound, Intervenor Appellant.
CourtWashington Supreme Court

Christine Gregoire, Attorney General, Warren Fischer, Asst., Maureen Hart, Asst., Olympia, Reed McClure, William Hickman, Seattle, Attorneys for Petitioner/Appellant.

Perkins Coie, John Alkire, Seattle, John Blankinship, Attorney at Law, Shoreline, Attorneys for Appellee/Respondent.

Aaron Caplan, Attorney at Law, Seattle, Attorney for Respondent.

James McCutcheon, Attorney at Law, Bellevue, Kevin Hasson, Eric W. Treene, Roman Storzer, Anthony Picarello, Washington, Amicus Curiae on Behalf of Becket Fund for Religious Liberty.

Pacific Legal Foundation, Russell Brooks, Bellevue, Pacific Legal Foundation, Sharon Browne, Sacramento, Amicus Curiae on Behalf of Pacific Legal Foundation and Amer. Civil Rights Union.

Davis Wright Tremaine, Michael Reiss, Bergitta Trelstad, Seattle, Amicus Curiae on Behalf of University of Puget Sound.

Wiggins Law Offices, Charles Wiggins, Kennthe Masters, Bainbridge Is., Amicus Curiae on Behalf of Nat'l Assn. of Independent Colleges.

Bendich Stobaugh & Strong, Judith Bendich, Seattle, Steven Green, Alex Luchenitser, Attorneys at Law, Washington, Amicus Curiae on Behalf of Americans United.

Frank Hayes, Attorney at Law, Olympia, Elliott Mincberg, Attorney at Law, Washington, Amicus Curiae on Behalf of People for the American Way.

MADSEN, J.

Mary Gallwey filed this matter as an original action under article IV, section 4 of the Washington State Constitution, seeking a writ of prohibition against Higher Education Coordinating Board (HECB), Daniel Grimm (former State Treasurer), and the Washington Association of Independent Colleges and Universities (WAICU). Gallwey's complaint alleged that Washington's Educational Opportunity Grant (EOG) Program, RCW 28B.101.010, violates article IX, section 4, article I, section 11, and article VIII, section 5 of the Washington State Constitution, and the First Amendment to the United States Constitution.

The EOG Program provides tuition grants of up to $2,500 for upper division course work, which may be used at public or private institutions, for students who have completed an associate of arts degree or its equivalent and are considered "placebound." A placebound student is one who "because of family or employment commitments, health concerns, financial consideration, or similar factors, [is] unlikely to complete the junior or senior year of a baccalaureate degree without enhanced financial assistance."1 Clerk's Papers (CP) at 1081; RCW 28B.101.020.

We initially transferred this case to Thurston County Superior Court for trial. The trial court struck down the EOG Program on the ground that it violated article IX, section 4 of the Washington State Constitution, which provides that "[a]ll schools maintained or supported wholly or in part by the public funds shall be forever free from sectarian control or influence." Although the trial court found that article IX, section 4 was not intended to apply to institutions of higher education, it nevertheless determined that it was bound by two of this court's prior decisions, Weiss v. Bruno, 82 Wash.2d 199, 509 P.2d 973 (1973), and State Higher Education Assistance Authority v. Graham, 84 Wash.2d 813, 529 P.2d 1051 (1974), to hold otherwise. The trial court did not reach any of Gallwey's additional contentions.

In order to answer the questions in this case we are called on to resolve conflicting cases from this court relating to both article IX, section 4, and article I, section 11. After a thorough review of the constitutional provisions at issue, we reverse and uphold the EOG program under the Washington and United States Constitutions.

FACTS

The findings of fact in this case are uncontested and, therefore, are verities on appeal. St. Francis Extended Health Care v. Dep't of Soc. & Health Servs., 115 Wash.2d 690, 692, 801 P.2d 212 (1990).

a. The EOG Program

In the late 1960s, the Legislature created a system of community colleges designed to provide Washington's citizens with convenient geographic access to the first two years of college and vocational training. CP at 1077. Washington's community college system achieved one of the highest participation rates of any program in the nation. Id. This high participation rate has consistently stood in stark contrast to the comparatively low, and declining, participation rate for upper division (junior and senior level) college course work. Id.

In response to this trend, the HECB was formed in 1985. The HECB was instructed by the Legislature to create a master plan. In its first master plan, in 1987, the HECB determined that Washington ranked 39th in participation at four year colleges, concluding that "much of the state's population, especially in the Spokane, Tri-Cities, Vancouver and Puget Sound areas, has insufficient and inequitable access to upper division baccalaureate education." CP at 1078. It was this revelation that served as the impetus for creation of Washington's branch campus university system, with the branch campuses being limited to upper division course work.2

As a further response, a 1988 University of Washington study commissioned by and for the HECB recommended a tuition voucher program for students who had completed the associate of arts degree or its equivalent to use at the region's private universities. This recommendation was based on three findings: (1) Washington's participation rate for upper division course work was 10 percent below the national average; (2) the State's largest population growth was occurring in areas surrounding Seattle that were not served by a public university; and (3) there was a significant disparity in access to upper division course work based on geography. The Washington Business Roundtable joined in the call for a financial aid program providing grants that would allow students the choice of public or independent institutions to complete their upper division course work.

In 1990, the Legislature enacted Laws of 1990, chapter 288, which provides for an EOG of up to $2,500 per year to prospective upper division college students as an incentive to help them complete a baccalaureate degree at schools where there is existing capacity. Applicants must have an associate of arts degree at their enrolling institution, live in an eligible county, have sufficient financial need, and be "placebound."

The EOG program is now codified at chapter 28B.101 RCW. The HECB was called upon to promulgate rules to implement the statutory mandate. The significant program definitions and eligibility criteria follow:

(a) Students must have completed at least two years of college;

(b) They must have earned an associate degree or its equivalent but not a baccalaureate;

(c) They must intend to complete a baccalaureate degree;

(d) They must meet the definition of "placebound," i.e., because of family or employment commitments, health concerns, financial consideration, or similar factors, they are unlikely to complete the junior or senior year of a baccalaureate degree without enhanced financial assistance;

(e) Their place of permanent residence must be within a branch campus service area, defined as Benton, Clark, Cowlitz, Franklin, King, Kitsap, Pierce, Skamania, Snohomish, Spokane, Thurston, Walla Walla, and Yakima Counties;

(f) They must be willing to attend a Washington public or private four year college or university with existing unused capacity;

(g) Recipients may not use the grant at any of the five branch campuses;

(h) They must adhere to the EOG Program's religious exclusion;

(i) The student must demonstrate financial need as calculated by the institution using the federal methodology formula. The student's EOG award, in combination with other forms of aid, may not exceed the calculated need;

(j) The award must replace unmet need or self-help assistance.

CP at 1081.

Students submit an application to apply for an EOG. The application consists of three parts. The student completes parts A and B. Part C, the "School Financial Aid Worksheet," is completed by the financial aid administrator using financial aid information to determine applicant eligibility and to provide the database for recipient profiles. The student may submit parts A and B directly to the HECB or to the school, which will then forward the entire application to the HECB. As part of the application the student must sign an agreement, including a statement of understanding, that the college "shall not require the student to be enrolled in any program that includes religious worship, exercise, or instruction, and that the student cannot be pursuing any degree in religious, seminarian, or theological academic studies while receiving the EOG." CP at 1082.

Once an application is received the HECB screens it for completeness and eligibility. Then, a selection committee reviews the applications, awarding points based on an applicant's placebound status and financial need. Priorities for available funding are for renewals first, new full-time applicants second, and third year petitions last. No preference is given, dependent on an applicant's desire to attend either a public or private institution.

Public institutions may disburse the EOG to the student or credit it to the student's account. Private institutions must disburse the EOG directly to the student rather than automatically placing the funds in the student's account at the school. Students must be provided the opportunity to cash the EOG at his or her own bank or to request that the funds be disbursed directly to the student's account at the educational institution. Title to the grant funds...

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    ...even if it can be shown that no voucher funds benefit or support a church or religious denomination. See State ex rel. Gallwey v. Grimm, 146 Wash.2d 445, 48 P.3d 274, 279 (2002)("Neither party seriously disputes that the EOG Program [which provides tuition grants for upper division course w......
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