Opinion

Authority of FEMA to Provide Disaster Assistance to Seattle Hebrew Academy

Court: Department of Justice Office of Legal Counsel
Filed: Sep 25, 2002
Status: Published
Cited by: 0 cases
Authority: More cited than 3.4%

“[a]t a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs”

How later courts described this case

“[a]t a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs”
sustaining a tax deduction for educational expenses made available to both religious and secular parents, notwithstanding evidence that “about 95%” of eligible beneficiaries were parents whose children attended religious schools
sustaining state financing of construction for religious college under program that barred financing of “build- ings or facilities used for religious purposes”
federal construction grants for college and university facilities must be restricted indefinitely to use for secular purposes

Written by the judges who cited it.

The opinion

Authority of FEMA to Provide Disaster Assistance to

Seattle Hebrew Academy

The Stafford Disaster Relief and Emergency Assistance Act of 1974 and its implementing regulations

permit the Federal Emergency Management Agency to provide federal disaster assistance for the

reconstruction of Seattle Hebrew Academy, a private religious school that was damaged in an

earthquake in 2001.

The Establishment Clause of the First Amendment does not pose a barrier to the Academy’s receipt of

such aid.

September 25, 2002

MEMORANDUM OPINION FOR THE GENERAL COUNSEL

FEDERAL EMERGENCY MANAGEMENT AGENCY

You asked us to analyze whether the Federal Emergency Management Agency

(“FEMA”) may, consistent with the Stafford Disaster Relief and Emergency

Assistance Act of 1974 (“the Act”), 42 U.S.C.A. §§ 5121-5206 (1995 & West

Supp. 2002), the Act’s implementing regulations, and the Establishment Clause of

the First Amendment, provide disaster assistance to the Seattle Hebrew Academy

(“the Academy”). The Academy, like many other Seattle institutions, sustained

severe damage as a result of the Nisqually Earthquake on February 28, 2001. For

the reasons set forth below, we conclude that the Act and its implementing

regulations permit FEMA to provide a disaster assistance grant to the Academy,

and that the Establishment Clause does not pose a barrier to the Academy’s receipt

of such aid.

The Academy, a private nonprofit educational facility for Jewish students,

applied to FEMA for disaster assistance pursuant to section 406 of the Act, 42

U.S.C.A. § 5172(a)(1)(B). The Act authorizes the President to “make contribu-

tions . . . to a person that owns or operates a private nonprofit facility damaged or

destroyed by a major disaster for the repair, restoration, reconstruction, or

replacement of the facility and for associated expenses incurred by the person.” Id.

(emphasis added). In 1979, the President transferred to FEMA this and other

disaster relief functions that previously had been delegated or assigned to other

Federal agencies. See Exec. Order No. 12148, § 1-102, 3 C.F.R. 412, 413 (1980).

On March 28, 2001, a FEMA Public Assistance Officer denied the Academy’s

application for assistance. The Academy appealed to the FEMA Region X

Regional Director. The Region X Acting Regional Director denied the appeal on

October 19, 2001, on the ground that the Academy’s building was not a “private

nonprofit facility” for purposes of section 406(a)(1)(B) because it was not open to

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Authority of FEMA to Provide Disaster Assistance to Seattle Hebrew Academy

“the general public.” See Letter for Donna J. Voss, Deputy State Coordinating

Officer, Public Assistance, Emergency Management Division, State of Washing-

ton Military Department, from Tamara D. Doherty, Acting Regional Director,

Region X, FEMA, at 1 (Oct. 19, 2001) (“Doherty Letter”). In so ruling, the Acting

Regional Director determined that a religiously affiliated educational facility is not

open to “the general public” if it only admits students of a particular faith. Id.

The Academy has appealed the Acting Regional Director’s decision. See Letter

for Donna Voss, Washington State Public Assistance Officer, Washington State

Disaster Field Office, from Ulrike I. Boehm, Attorney for SHA, Latham &

Watkins, Re: Seattle Hebrew Academy (Dec. 21, 2001) (“Boehm Letter”). It is our

understanding that the Academy’s appeal is presently being considered by the

FEMA Associate Director for Response and Recovery. See 44 C.F.R.

§ 206.206(b)(2) (2001). You asked for our views on whether FEMA is required by

statute or regulation to apply a “general public” requirement to all eligible private

nonprofit facilities or otherwise to disqualify a religiously sponsored educational

facility on the ground that it only admits students of a particular faith. If the Act

and its implementing regulations do not require that FEMA deny funding to the

Academy, you also asked for our views on whether such funding would violate the

Establishment Clause of the First Amendment.

II.

On its face, 42 U.S.C.A. § 5172(a)(1)(B) requires the President to find only that

a potential disaster relief recipient “owns or operates a private nonprofit facility”

damaged or destroyed in a major disaster. The Acting Regional Director’s denial

of the Academy’s application added another requirement—that the facility be open

to “the general public.” In so ruling, she relied upon the FEMA regulation defining

“private nonprofit facility,” which provides in relevant part:

Private nonprofit facility means any private nonprofit educational,

utility, emergency, medical, or custodial care facility, including a

facility for the aged or disabled, and other facility providing essential

governmental type services to the general public, and such facilities

on Indian reservations.

44 C.F.R. § 206.221(e) (2001) (second emphasis added). The Acting Regional

Director construed this regulation to mean that, in order to qualify for relief under

section 406(a)(1)(B) of the Act, any and all private nonprofit facilities—including

educational facilities—must provide essential governmental type services to “the

general public,” and that a religiously affiliated educational facility does not

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satisfy this requirement if it limits admission to students of a particular religious

faith. See Doherty Letter. 1

We believe that the Acting Regional Director’s reading of 44 C.F.R.

§ 206.221(e) is not the better interpretation of that regulation. Under the most

natural reading of section 206.221(e), the phrase “providing essential governmen-

tal type services to the general public” modifies only the “other facilit[ies]”

referenced in the clause in which that phrase appears; the requirement to be open

to the general public does not apply to the types of facilities—namely, “education-

al, utility, emergency, medical, or custodial care facilit[ies], including a facility for

the aged or disabled”—enumerated prior to the regulation’s “general public”

clause. These five types of facilities, and “facilities on Indian reservations,” are

both set off in independent clauses. 2 Thus, the text of the regulation does not

support imposition of a “general public” requirement upon any of these facilities. 3

FEMA has defined four of the types of facilities identified in the statute in a

manner that does not impose a “general public” requirement. Most important for

present purposes, FEMA’s definition of “[e]ducational facilities” does not impose

such a requirement. Id. § 206.221(e)(1). See also id. § 206.221(e)(2), (5), (6)

(defining “[u]tility,” “[m]edical facility,” and “[c]ustodial care facility” in a

manner that does not impose a “general public” requirement upon such facilities). 4

The record is somewhat unclear as to whether the Academy strictly limits admission to Jewish

students. At the time of the earthquake, the Academy’s by-laws prohibited admission of non-Jewish

students, although the Academy maintains that it no longer abides by this by-law. See Doherty Letter

at 1. It is undisputed that the Academy grants admission only to otherwise eligible non-Jewish students

who agree to “seriously study[] and practic[e] Jewish law and culture in their home[s], under the

supervision and instruction of a rabbi.” Boehm Letter at 9. Our reasoning, however, does not depend

upon the precise nature of the Academy’s admission requirements.

As explained below, although section 206.221(e) was crafted to implement a 1988 statutory

definition that references the provision of services “to the general public” (42 U.S.C.A. § 5122(9)), that

provision cannot fairly be read to require that educational facilities provide services “to the general

public.” We begin with the regulatory language, however, because it differs slightly from the statutory

language: in promulgating its definition of “private nonprofit facility,” FEMA (1) replaced the statutory

phrase “other private nonprofit facilities which provide” with the phrase “and other facility providing,”

and (2) added the term “such” before “facilities on Indian reservations.” Collectively, these changes

make it slightly more plausible to conclude that all of the referenced facilities are subject to the

“general public” requirement. As explained in the text, however, we think it is most reasonable to read

the three clauses of section 206.221(e)—the first, which lists five types of covered facilities; the

second, which pertains to facilities providing “essential governmental type services”; and the third,

which pertains to “facilities on Indian reservations”—as separate and independent clauses, of which

only the second contains a “general public” requirement.

Notably, the Acting Regional Director replaced the middle and final clauses of 44 C.F.R.

§ 206.221(e) with ellipses, so as to make the provision appear to state: “Private nonprofit facility means

any nonprofit educational . . . facility providing essential governmental type services to the general

public . . . .” Doherty Letter at 1. As explained in the text, this quotation is relevant for what it omits.

For some reason section 206.221(e) contains no definition of “rehabilitational” facilities, although

that term appears, along with the other types of facilities enumerated in the first clause of the rule, in 42

U.S.C.A. § 5122(9).

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Authority of FEMA to Provide Disaster Assistance to Seattle Hebrew Academy

By contrast, FEMA’s definition of “[o]ther essential governmental service

facility” does contain a “general public” requirement. Id. § 206.221(e)(7). 5 Thus, if

the portion of section 206.221(e) relied upon by the Acting Regional Director is

simply interpreted in a manner consistent with FEMA’s own regulatory definition

of “educational facilities,” there is no basis for imposing a “general public”

requirement upon the Academy. As explained above, however, we do not believe

that the text of section 206.221(e) supports imposition of a “general public”

requirement upon any of the facilities enumerated in the first clause of that

regulation.

It is evident that FEMA promulgated section 206.221(e) in order to implement

a 1988 statutory definition that references the provision of services “to the general

public.” 42 U.S.C.A. § 5122(9). 6 It thus appears that the Acting Regional Director

may have adopted her construction of section 206.221(e) on the assumption that it

is the best, or only, interpretation of the statutory definition of “private nonprofit

facility.” As we explain below, 42 U.S.C.A. § 5122(9) cannot fairly be interpreted

in that manner. Furthermore, once it is understood that 42 U.S.C.A. § 5122(9) does

not support, let alone compel, a regulation of such breadth, the regulatory interpre-

tation adopted by the Acting Regional Director becomes far less tenable.

Second, and more importantly, even if 44 C.F.R. § 206.221(e) could reasonably

be construed to require the denial of FEMA assistance to the Academy, such a

result would be inconsistent with the terms of the statutory provision that sec-

tion 206.221(e) implements (42 U.S.C.A. § 5122(9)), and is not authorized by the

Although FEMA’s regulatory definitions do impose a “general public” requirement on

“[i]rrigation facilit[ies]” and “[e]mergency facilit[ies],” 44 C.F.R. § 206.221(e)(3)-(4), we are aware of

(and FEMA has provided) no reason, based in the statute or policy, why these facilities ought to be

treated differently from the other types of facilities enumerated in the first clause of section 206.221(e).

We are aware that in 2000, Congress amended the statutory definition to add the word “irrigation” to

the definition of private nonprofit facilities, and the legislative history indicates that “[i]rrigation

facilities should be eligible for Federal assistance to the extent that they provide water for essential

services of a governmental nature to the general public.” 146 Cong. Rec. 20,583 (2000) (statement of

Rep. Fowler) (emphasis added). Representative Fowler, however, appears to have assumed (mistaken-

ly) that the statute requires that all eligible private nonprofit facilities provide services to the general

public, and that likewise appears to be the only explanation for the express references to the “general

public” in FEMA’s definitions of “emergency” and “irrigation” facilities. As explained in the text

below, the statute itself—even as amended in 2000—provides no warrant for treating irrigation or

emergency facilities any differently than educational facilities.

Prior to 1989-90, when FEMA promulgated the regulatory definition of “private nonprofit facili-

ty” now found in section 206.221(e), see 54 Fed. Reg. 11,610 (1989) (interim rule with request for

comments); 55 Fed. Reg. 2297 (1990) (final rule), FEMA’s regulatory definition of that term did not

make any reference to “the general public.” Congress’s 1988 statutory amendment, however, did

include such a reference. See infra p. 119. Thus, it is fair to presume that FEMA promulgated the new

definition in order to implement the definition contained in the 1988 Act.

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statutory provision that the Acting Regional Director invoked (42 U.S.C.A.

§ 5151(a)). Upon careful reading, neither of these provisions requires that eligible

private nonprofit facilities provide services to “the general public,” or that

religious schools that limit admission to students of a particular faith be deemed

ineligible for disaster relief.

In 1988, in Public Law No. 100-707, 102 Stat. 4689, Congress amended the

Disaster Mitigation Act of 1974 to add for the first time a statutory definition of

“private nonprofit facility.” See 102 Stat. at 4690. Section 103(f) of the 1988 Act,

as amended and codified, presently provides:

“Private nonprofit facility” means private nonprofit educational, util-

ity, irrigation, emergency, medical, rehabilitational, and temporary or

permanent custodial care facilities (including those for the aged and

disabled), other private nonprofit facilities which provide essential

services of a governmental nature to the general public, and facilities

on Indian reservations as defined by the President.

42 U.S.C.A. § 5122(9). In a manner similar to 44 C.F.R. § 206.221(e) (see supra

note 2), the provision defines three categories of private nonprofit facilities: seven

types of enumerated facilities; other facilities that provide “essential services of a

governmental nature to the general public”; and facilities on Indian reservations.

The language and structure of this provision indicate that the phrase “which

provide essential services of a governmental nature to the general public” modifies

only the second category of eligible facilities—“other private nonprofit facili-

ties”—which is identified in the same, middle clause as the “general public”

requirement. The phrase does not modify either the first category of enumerated

eligible facilities (“private nonprofit educational, utility, irrigation, emergency,

medical, rehabilitational, and temporary or permanent custodial care facilities

(including those for the aged and disabled)”) or the third category of eligible

facilities (“facilities on Indian reservations as defined by the President”), both of

which are set off in separate, independent clauses. Indeed, the range of institutions

found in the first phrase of section 5122(9) itself suggests that the “general public”

requirement does not extend to those facilities: in particular, one would not

ordinarily think of an “irrigation facility” as being open to the general public, and

the text provides no basis for treating irrigation facilities any differently than the

other enumerated facilities in this regard. See supra note 5.

The statutory history of this definition confirms this interpretation. Private

educational institutions first became eligible for disaster assistance in 1972, when

Congress gave the President authority to make grants to private nonprofit schools

that suffered damage from Hurricane Agnes. Act of Aug. 16, 1972, Pub. L. No.

92-385, § 4, 86 Stat. 554, 556-57. That statute defined which “educational

institution[s]” were eligible and further imposed certain conditions on the grants

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Authority of FEMA to Provide Disaster Assistance to Seattle Hebrew Academy

made to such institutions. Id. § 4(b)-(d), 86 Stat. at 556-57. Nowhere, however, did

Congress impose any requirement that eligible educational facilities provide

services “to the general public.”

Congress amended the governing statute in the Disaster Relief Act of 1974

(now known as the Stafford Act), Pub. L. No. 93-288, 88 Stat. 143, which gave the

President still broader authority to make grants for the repair or replacement of

certain private facilities damaged in major disasters. See id. § 402(b), 88 Stat. at

153 (authorizing the President to make grants “to help repair, restore, reconstruct,

or replace private nonprofit educational, utility, emergency, medical, and custodial

care facilities, including those for the aged or disabled, and facilities on Indian

reservations as defined by the President, which were damaged or destroyed by a

major disaster”). Here again, however, the statute did not include any reference to

facilities providing services to “the general public.” Nor, as far as we are aware,

did the legislative history suggest a “general public” limitation. See, e.g., H.R.

Rep. No. 93-1037, at 37 (1974) (Conf. Rep.), reprinted in 1974 U.S.C.C.A.N.

3091, 3102. Not surprisingly, therefore, the regulations implementing the 1974

Act—which contained extensive, detailed limitations on eligibility for funding—

thereafter defined “[p]rivate non-profit organization,” “[e]ducational [i]nstitution,”

“[p]rivate non-profit facility,” and “[e]ducation[al] facilities,” all without reference

to any “general public” requirement. See, e.g., 24 C.F.R. § 2205.54(a)(1)-(3), (e),

(f) (1976) (HUD regulations); 44 C.F.R. § 205.54(a)(1)-(3), (e), (f) (1979) (FEMA

regulations adopting former HUD regulations); 44 C.F.R. §§ 205.2(15), 205.71(a),

(d), (e), 205.72(b) (1980-1988) (revised FEMA regulations). It is therefore clear

that, prior to the 1988 statutory amendment, neither the statute nor its implement-

ing regulations required educational facilities to provide services to the general

public. 7

It was not until the 1988 amendment discussed above that the governing Act

contained any reference to the “general public” whatsoever, and nothing in the

language of that amendment or its legislative history suggests that Congress

intended to impose a new “general public” requirement for eligibility of those

facilities of nonprofit organizations that already were eligible for relief prior to

the amendment. As the statute’s text confirms, Congress did intend that facilities

within the newly codified “catch-all” category of “other private nonprofit facilities

which provide essential services of a governmental nature” would be required to

provide services “to the general public.” But the only change that Congress made

From the time of their initial promulgation, the pre-1988 regulations defined “[e]mergency

facilit[ies]” to mean “those buildings, structures, or systems used to provide emergency services, such

as fire protection, ambulance, or rescue, to the general public.” See, e.g., 24 C.F.R. § 2205.54(a)(3)(iii)

(1976); 44 C.F.R. § 205.71(d)(3) (1980) (emphasis added). When it first promulgated this regulation,

HUD did not explain why it included the “general public” qualifier for emergency facilities. See 39

Fed. Reg. 28,212, 28,221 (1974). Notably, however, that same qualifier was not included in any of the

other definitions prior to the 1988 amendment, including the definition of “education facilities.”

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concerning the eligibility of private nonprofit organizations (other than codifying

the definition itself) was to establish this new category of eligible facilities—a

change that, in the words of the House Committee Report, “broadened” the

“definition” of eligible private nonprofit facilities to “include facilities which

provide to the general public services of a governmental nature,” such as “muse-

ums, zoos, community centers, libraries, homeless shelters, senior citizen centers,

rehabilitation facilities, and shelter workshops.” H.R. Rep. No. 100-517, at 4

(1988), reprinted in 1988 U.S.C.C.A.N. 6085, 6088; see also 134 Cong. Rec. 4186

(1988) (Congressional Budget Office Cost Estimate, March 16, 1988, included in

statement of Rep. Nowak). In sum, there is no evidence that Congress intended to

place new restrictions on those facilities that already were eligible for assistance

prior to 1988.

For whatever reason, the Acting Regional Director did not invoke sec-

tion 5122(9) as authority for her decision, notwithstanding the fact that it contains

the phrase “general public.” Instead, the only statute she cited was 42 U.S.C.A.

§ 5151(a), which provides:

The President shall issue, and may alter and amend, such regulations

as may be necessary for the guidance of personnel carrying out Fed-

eral assistance functions at the site of a major disaster or emergency.

Such regulations shall include provisions for insuring that the distri-

bution of supplies, the processing of applications, and other relief

and assistance activities shall be accomplished in an equitable and

impartial manner, without discrimination on the grounds of race,

color, religion, nationality, sex, age, or economic status.

Doherty Letter at 1. For at least two reasons, however, this statutory provision

cannot serve as authority either for a rule that all eligible nonprofit facilities must

provide services “to the general public,” or, more specifically, for a rule making

ineligible for aid all private nonprofit facilities that limit admission on the basis of

religion.

First, section 5151(a) says nothing about requiring that private recipients of aid

provide services “to the general public.” Second, and more fundamentally,

section 5151(a) is addressed not to discrimination by the recipients of FEMA aid,

but to discrimination—including religious discrimination—by those engaged in

the provision of FEMA aid. The regulations that the President is required to issue

are “for the guidance of personnel carrying out Federal assistance functions at the

site of a major disaster or emergency,” and must insure “that the distribution of

supplies, the processing of applications, and other relief and assistance activities

shall be accomplished in an equitable and impartial manner.” (Emphasis added.)

Accordingly, we do not think that section 5151(a) is authority for the broad

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Authority of FEMA to Provide Disaster Assistance to Seattle Hebrew Academy

“general public” requirement that the Acting Regional Director would impose on

all eligible private nonprofit facilities. 8

In sum, we have found no statutory provision that requires either that all eligi-

ble private nonprofit facilities “provide services to the general public,” 9 or that

FEMA’s definition of eligible private nonprofit “[e]ducational facilities” further provides that

such facilities “[may] not include buildings, structures and related items used primarily for religious

purposes or instruction.” 44 C.F.R. § 206.221(e)(1). We note that there is no longer any basis for this

requirement in the text of the Act (the Act formerly provided that educational institutions were

ineligible if used primarily for religious purpose, see Pub. L. No. 92-385, § 4(c)(4), 86 Stat. at 557)—

and, in light of current doctrine (see infra Part III), there is some question whether it is consistent with

the First Amendment to the Constitution—but in any event the Acting Regional Director specifically

found that the religious components of the Academy’s class requirements amount to less than 50% of

the curriculum, and thus that the Academy’s building is not used “primarily for religious purposes or

instruction.” See Letter for Tamara Doherty, Acting Regional Director, Region X, FEMA, from Donna

J. Voss, Deputy State Coordinating Officer, Public Assistance, State of Washington, at 1 (July 21,

2001); Staff Analysis, Prepared by Bruce Baardson, Public Assistance Section Supervisor, and Donna

Voss, Deputy State Coordinating Officer, Public Assistance, State of Washington, Re: Seattle Hebrew

Academy, First Appeal at 1, 2 (July 24, 2001) (“Staff Analysis”).

We also note that, even if it were proper to interpret 44 C.F.R. § 206.221(e) to require that all

eligible facilities (including educational facilities) applying for assistance under the Act be open “to the

general public,” it is not entirely clear, in light of FEMA policy, why a school should be deemed to fail

this requirement because it uses religious criteria as a basis for admission. In its Private Nonprofit

Facility Eligibility Policy, FEMA states that an organization fails its “general public” requirement if

“[m]embership” therein “excludes individuals of certain discrete groups.” Policy No. 9521.3, ¶ 7.E.1.e

(Apr. 25, 2000). On the other hand, an organization will “likely” satisfy the test if, inter alia, “[u]se

restrictions, if any, are clearly related to the nature of the facility.” Id. ¶ 7.E.2.d. The Policy goes on to

provide examples of facilities limited to senior citizens, children’s day care, and care for abused

spouses, all of which presumptively satisfy the “general public” requirement. Id. ¶ 7.B.4.

In light of these examples, it appears that FEMA does not construe the “general public” require-

ment to require that facilities be open to all persons. Senior citizens’ homes serve only elderly people,

excluding the young and middle-aged; child care facilities serve only young people, excluding adults;

facilities for abused spouses serve only abused married people, excluding those who are unmarried (and

presumably those who are abused by people other than their spouses). It cannot be denied that these

facilities “exclude[] individuals of certain discrete groups.” Yet FEMA permits these facilities to

receive aid notwithstanding the fact that they are not open to everyone, because their admission

practices are “clearly related to the nature of the facility,” which is to serve people with specific needs

or backgrounds.

Insofar as the same can be said of a school that restricts admission to students of a particular faith—

such restrictions on admission “are clearly related to the nature of the facility,” which, in part, is to

provide religious education—it is not evident why the Academy should be viewed as not providing

services “to the general public” simply because it applies religious criteria in its admission practices

and thus is not open to everyone. To the extent that the Acting Regional Director may have rested on

the policy judgment that religious discrimination is more invidious than other types of discrimination,

we note that the statute contains no such judgment and that many federal statutes permit religious

organizations to preserve their autonomy by limiting their associations to co-religionists. See 42

U.S.C.A. § 2000e-1 (2000) (Title VII provision permitting religious nonprofit organizations to hire on a

religious basis); id. § 2000d (Title VI provision prohibiting recipients of federal funding from

discriminating on the basis of “race, color, or national origin,” but not religion); 20 U.S.C.A. § 1681(a)

(2000) (Title IX provision prohibiting federally funded educational institutions from discriminating on

the basis of sex, but not religion).

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schools that limit admission to students of a particular faith be deemed ineligible

for disaster relief.10

III.

You also asked us to analyze whether the Establishment Clause of the First

Amendment would require another result. Although there is no precedent that

directly controls this specific issue, we conclude that the Establishment Clause

does not pose a barrier to FEMA’s provision of a disaster assistance grant to the

Academy. The aid that is authorized by federal law is made available on the basis

of neutral criteria to an unusually broad class of beneficiaries defined without

reference to religion and including not only educational institutions but a host of

other public and private institutions as well. Moreover, the program’s design is not

characterized by the sort of administrative discretion that can readily be used to

favor religion, and the evidence demonstrates that FEMA has exercised its

Under 42 U.S.C.A. § 5151(b), which the Acting Regional Director did not cite, the President has

authority to promulgate “regulations relating to nondiscrimination” that apply to institutions that

receive FEMA disaster assistance. See id. (“As a condition of . . . receiving assistance under this

chapter, . . . organizations shall be required to comply with regulations relating to nondiscrimination

promulgated by the President . . . .”). The President, however, has not promulgated regulations

prohibiting recipients of FEMA disaster assistance from discriminating on the basis of religion. See 44

C.F.R. § 7.920 (2001) (prohibiting recipients of assistance from discriminating on the basis of age, but

not religion). Nor are we aware of any other provision of federal law that would impose such a

requirement upon the Academy. See 20 U.S.C.A. § 1681(a) (2000) (Title IX) (prohibiting educational

institutions from discriminating on the basis of sex, but not religion); 44 C.F.R. pt. 19 (2001)

(implementing Title IX for purposes of FEMA assistance); 42 U.S.C.A. § 2000d (prohibiting recipients

of federal funding from discriminating on the basis of “race, color, or national origin”); 44 C.F.R. § 7.3

(2001) (prohibiting recipients of FEMA assistance under various statutes from discriminating on the

basis of “race, color, or national origin”); see also Staff Analysis at 2 (finding that the Academy

complies with Title VI).

FEMA Director’s Policy 2-01 provides that “[i]t is the policy of [FEMA] to ensure that the Civil

Rights of all persons receiving services or benefits from agency programs and activities are protected”

and that “[n]o person shall, on the grounds of . . . religion . . . be denied the benefits of, be deprived of

participation in, or be discriminated against in any program or activity conducted by or receiving

financial assistance from FEMA.” Id., Re: Civil Rights Program, ¶ 1 (July 17, 2001). See also id. ¶ 4

(explaining that these requirements apply to “educational institutions” that receive FEMA assistance).

We note, however, that this policy has not been adopted by regulation, and thus cannot be said to

implement 42 U.S.C.A. § 5151(b). Nor are we aware of any other statutory authority that would

authorize FEMA to impose a “general public” or religious nondiscrimination requirement on the

Academy. Sections 5164 and 5201(a)(1) of title 42 (2000) authorize the President to “prescribe such

rules and regulations as may be necessary and proper to carry out any of the provisions of this chapter,”

but we are doubtful that those provisions would permit FEMA to impose a “general public” require-

ment where Congress, in the statutory provision that speaks directly to the question, has imposed such a

requirement on other institutions but not on educational institutions such as the Academy. See 42

U.S.C.A. § 5122(9). Similarly, there is some question whether these provisions would authorize FEMA

to adopt a “policy” imposing a religious nondiscrimination requirement upon participating institutions

where another provision of the same statute (42 U.S.C.A. § 5151(b)) mandates that such requirements

be imposed pursuant to “regulations.”

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Authority of FEMA to Provide Disaster Assistance to Seattle Hebrew Academy

discretion in a neutral manner. Thus, we believe that provision of disaster assis-

tance to the Academy cannot be materially distinguished from aid programs that

are constitutional under longstanding Supreme Court precedent establishing that

religious institutions are fully entitled to receive generally available government

benefits and services, such as fire and police protection.

The Supreme Court’s general framework for analyzing Establishment Clause

issues is familiar. A statute violates the Establishment Clause if it lacks a “secular

legislative purpose,” has a “primary effect” of advancing religion, or results in an

“excessive entanglement” between government and religion. See Lemon v.

Kurtzman, 403 U.S. 602, 612-13 (1971); see also Agostini v. Felton, 521 U.S. 203

(1997) (reformulating the Lemon test by incorporating its “entanglement” prong

into its “effects” prong). Here, as in the vast majority of situations implicating the

Establishment Clause, the critical question is whether allowing the Academy to

receive direct disaster assistance would have the “primary effect” of advancing

religion.11 Accordingly, our analysis will focus on decisions that illuminate that

inquiry.

Ever since its first modern Establishment Clause decision in Everson v. Board

of Education, 330 U.S. 1, 17 (1947), the Supreme Court has indicated that

religious institutions are entitled to receive “general government services” made

available on the basis of neutral criteria. Everson held that the Establishment

Clause does not bar students attending religious schools from receiving generally

available school busing services provided by the government. In reaching its

decision, the Court explained that even if the evenhanded provision of busing

services increased the likelihood that some parents would send their children to

religious schools, the same could be said of other “general state law benefits” that

were even more clearly constitutional because they were equally available to all

citizens and far removed from the religious function of the school. Id. at 16. As

examples, the Court cited “such general government services as ordinary police

and fire protection, connections for sewage disposal, public highways and

sidewalks,” concluding:

It is clear that allowing a range of nonprofit organizations like the Academy to receive rehabilita-

tion grants serves the secular purpose of rehabilitating the community by helping to rebuild institutions

that perform quasi-public functions and are (by virtue of their nonprofit status) most in need of

assistance. See Pub. L. No. 92-385, § 4, 86 Stat. at 556-57 (explaining that disaster relief for private,

nonprofit educational facilities was appropriate because such institutions “have a secular educational

mission,” and because the public schools would have to bear the cost of educating the students

attending such private schools if the damaged institutions were not restored); see also 57 Fed. Reg.

18,441 (1992) (preamble to FEMA proposed rule explaining that the 1972 statute permitted grants to

private schools “because of the public function which they served”). Nor is there any basis for

concluding that allowing the Academy to receive aid would “excessively entangle” the Academy with

the state, as there is even less governmental monitoring of aid recipients here than in other cases in

which the Court has not questioned the provision of aid under Lemon’s entanglement prong. Cf., e.g.,

Agostini, 521 U.S. 203; Mitchell v. Helms, 530 U.S. 793 (2000).

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cutting off church schools from these services, so separate and so

indisputably marked off from the religious function, would make it

far more difficult for the schools to operate. But such is obviously

not the purpose of the First Amendment. That Amendment requires

the state to be a neutral in its relations with groups of religious

believers and non-believers; it does not require the state to be their

adversary. State power is no more to be used so as to handicap reli-

gions, than it is to favor them.

Id. at 17-18. See also id. at 16 (“[The state] cannot exclude individual Catholics,

Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyteri-

ans, or the members of any other faith, because of their faith, or lack of it, from

receiving the benefits of public welfare legislation. . . . [W]e must be careful, in

protecting the citizens of New Jersey against state-established churches, to be sure

that we do not inadvertently prohibit New Jersey from extending its general state

law benefits to all its citizens without regard to their religious belief”).

We believe that a FEMA disaster assistance grant is analogous to the sort of aid

that qualifies as “general government services” approved by the Court in Everson.

Although such aid is not available to all citizens or buildings—and thus is not as

broadly available as, say, utility services—neither is it limited to educational

institutions or, for that matter, to just a few classes of buildings. As noted above,

the FEMA grants in question are made available not only to public and private

schools, but to “private nonprofit . . . utility, irrigation, emergency, medical,

rehabilitational, and temporary or permanent custodial care facilities (including

those for the aged and disabled), other private nonprofit facilities which provide

essential services of a governmental nature to the general public, and facilities on

Indian reservations as defined by the President.” 42 U.S.C.A. § 5122(9). Accord-

ingly, we think that the “circumference” of this program can fairly be said to

“‘encircle[] a class so broad that it can be fairly concluded that religious institu-

tions could be thought to fall within the natural perimeter.’” Texas Monthly, Inc. v.

Bullock, 489 U.S. 1, 17 (1989) (plurality opinion) (quoting Walz v. Tax Comm’n,

397 U.S. 664, 696 (1970) (Harlan, J.)). As the Court stated in Widmar v. Vincent,

454 U.S. 263, 274 (1981), “[t]he provision of benefits to so broad a spectrum of

groups is an important index of secular effect.” Accord Texas Monthly, 489 U.S. at

14-15 (plurality opinion) (footnote omitted) (“[i]nsofar as [a] subsidy is conferred

upon a wide array of nonsectarian groups as well as religious organizations in

pursuit of some legitimate secular end, the fact that religious groups benefit

incidentally does not deprive the subsidy of the secular purpose and primary effect

mandated by the Establishment Clause”); Zobrest v. Catalina Foothills Sch. Dist.,

509 U.S. 1, 8 (1993) (“we have consistently held that government programs that

neutrally provide benefits to a broad class of citizens defined without reference to

religion are not readily subject to an Establishment Clause challenge”); Board of

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Authority of FEMA to Provide Disaster Assistance to Seattle Hebrew Academy

Educ. of Kiryas Joel v. Grumet, 512 U.S. 687, 704 (1994) (“we have frequently

relied explicitly on the general availability of any benefit provided religious

groups or individuals in turning aside Establishment Clause challenges”).

In Walz v. Tax Commission, 397 U.S. 664, 673 (1970), for example, the Court

rejected an Establishment Clause challenge to a property tax exemption made

available not only to churches, but to several other classes of nonprofit institutions,

such as “hospitals, libraries, playgrounds, scientific, professional, historical, and

patriotic groups.” See also id. at 667 n.1. In upholding the program, the Court

relied in part upon the breadth of the tax exemption: the exemption did “not

single[] out one particular church or religious group or even churches as such,” but

rather was available to “a broad class of property owned by nonprofit, quasi-public

corporations.” Id. at 673. As the Court stated in reference to Everson, if “buses can

be provided to carry and policemen to protect church school pupils, we fail to see

how a broader range of police and fire protection given equally to all churches,

along with nonprofit hospitals, art galleries, and libraries receiving the same tax

exemption, is different for purposes of the Religion Clauses.” Id. at 671. Thus, just

as a broad category of beneficiary institutions was sufficient to sustain the

inclusion of religious institutions in the tax benefit in Walz, we believe the breadth

of the eligibility categories in the FEMA program is sufficient to sustain the

provision of FEMA aid to the Academy. Put another way, we do not think that

providing FEMA grants to religious institutions that qualify for disaster relief on

the basis of wholly neutral criteria—a wide array of nonprofit organizations may

receive aid for buildings that have suffered structural damage from a natural

disaster—lacks a secular purpose or effect. See generally Lemon, 403 U.S. at

612-13; Agostini, 521 U.S. at 223-30.

We cannot say, however, that there are no arguments to the contrary. Most

important, there is an argument that providing FEMA disaster relief to repair a

school used for religious instruction would run afoul of Supreme Court precedent

restricting the use of “direct” aid that can be put to specifically religious uses. In

particular, one might argue that insofar as the grant used to rebuild the Academy’s

building would ultimately support the building’s use for secular and religious

purposes—i.e., both secular and religious teaching—such aid is unlawful under

Supreme Court decisions from the 1970s holding that public construction grants

for educational institutions may not be applied toward buildings used for religious

purposes. See Tilton v. Richardson, 403 U.S. 672 (1971) (federal construction

grants for college and university facilities must be restricted indefinitely to use for

secular purposes); Committee for Pub. Educ. v. Nyquist, 413 U.S. 756 (1973)

(invalidating the provision of state maintenance and repair grants to religious

schools on the basis that such aid could not be restricted to secular purposes); see

also Hunt v. McNair, 413 U.S. 734, 744 (1973) (sustaining state financing of

construction for religious college under program that barred financing of “build-

ings or facilities used for religious purposes”).

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In Tilton, for example, the Court sustained the provision of federal construction

grants to religious colleges insofar as the program at issue barred aid for “‘any

facility used or to be used for sectarian instruction or as a place for religious

worship,’” but invalidated such grants insofar as the program permitted funding

the construction of buildings that might someday be used for religious activities.

See 403 U.S. at 675, 683 (plurality opinion) (citations omitted) (concluding that a

20-year limitation on the statutory prohibition on use of the buildings for religious

activities violated the Establishment Clause, because “[i]f, at the end of 20 years,

the building is, for example, converted into a chapel or otherwise used to promote

religious interests, the original federal grant will in part have the effect of advanc-

ing religion”).12 Similarly, in Nyquist the Court invalidated state maintenance and

repair grants for nonpublic elementary and secondary schools because it was not

possible to “restrict payments to those expenditures related to the upkeep of

facilities used exclusively for secular purposes.” 413 U.S. at 774. These portions

of the holdings of these decisions, so far as they go, have not been specifically

overruled, even where government aid is distributed to both religious and nonreli-

gious schools on the basis of neutral criteria.13

This portion of the holding in Tilton was unanimous. See also id. at 692 (Douglas, J., dissenting

in part, joined by Black and Marshall, JJ.); Lemon, 403 U.S. at 659-61 (separate opinion of Brennan, J.,

concurring in judgment in part in Tilton); id. at 665 & n.1 (White, J., concurring in judgment in Tilton)

(“accept[ing] the Court’s invalidation of the provision in the federal legislation whereby the restriction

on the use of buildings constructed with federal funds terminates after 20 years”).

See Mitchell, 530 U.S. at 840 (O’Connor, J., concurring in the judgment) (“Although ‘[o]ur cases

have permitted some government funding of secular functions performed by sectarian organizations,’

our decisions ‘provide no precedent for the use of public funds to finance religious activities’” (citation

omitted)); see also id. (where government has given aid directly to a religious institution, “diversion of

secular government aid to religious indoctrination” is “constitutionally impermissible”); id. at 865 (the

principle that “‘any use of public funds to promote religious doctrines violates the Establishment

Clause,’ . . . of course remains good law” (citation omitted)); id. at 856-57 (discussing Tilton); id. at

857 (if plaintiffs were to prove “that the aid in question actually is, or has been, used for religious

purposes,” they would “establish a First Amendment violation”); id. at 843-44 (emphasizing that the

constitutional concern that direct aid might be impermissibly diverted to religious activities is

especially pronounced when the aid is in the form of direct monetary subsidies).

We would also note, however, that while the relevant holdings of these cases have not been over-

ruled, significant portions of their reasoning is subject to serious question in light of more recent

decisions. Separate portions of the Nyquist decision, for example, were overruled by the Court last

Term in Zelman v. Simmons-Harris, 536 U.S. 639 (2002), and the “pervasively sectarian” doctrine,

which comprised the basis for many of the Court’s Establishment Clause decisions in the early 1970s

(including Nyquist, 413 U.S. at 774-75), no longer enjoys the support of a majority of the Court. See

Mitchell, 530 U.S. at 825-29 (plurality opinion); id. at 857-58 (O’Connor, J., concurring in judgment)

(requiring proof of actual diversion of public support to religious uses to invalidate direct aid to schools

and explaining that “presumptions of religious indoctrination are normally inappropriate when

evaluating neutral school-aid programs under the Establishment Clause”); Columbia Union College v.

Oliver, 254 F.3d 496, 502-04 (4th Cir. 2001) (explaining that the pervasively sectarian test is no longer

valid in light of the holdings of six Justices in Mitchell). Moreover, even if decisions such as Tilton and

Nyquist were controlling, they would limit the provision of a construction grant to the Academy only

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Authority of FEMA to Provide Disaster Assistance to Seattle Hebrew Academy

Assuming, arguendo, that Tilton and Nyquist remain valid precedents in these

respects, we do not believe that those decisions control the question whether

FEMA may provide a disaster assistance grant to the Academy. In Nyquist, the

Court distinguished fire and police services from construction grants and repair aid

on the ground that police and fire protection are “provided in common to all

citizens, are ‘so separate and so indisputably marked off from the religious

function,’ that they may fairly be viewed as reflections of a neutral posture toward

religious institutions.” 413 U.S. at 782 (citation omitted). But we see no principled

reason why the constitutionality of an aid program should turn on whether the aid

is provided to all citizens rather than, say, a wide array of organizations that falls

somewhat short of the entire populace. There is a range of aid programs that are

not as “general” as aid provided universally (to every person), but yet are not as

circumscribed as aid to education,14 and the grants provided by FEMA admittedly

fall somewhere within this middle ground. But such aid is more closely analogous

to the provision of “general” government services like those sanctioned by the

Court in Everson (and many times since, e.g., Nyquist, 403 U.S. at 781-82) than to

the construction grants at issue in Tilton and Nyquist, which were available only to

educational institutions.

The vast majority of the Supreme Court’s Establishment Clause decisions

rendered since Everson have concerned aid provided solely to educational

institutions as a class (in many cases, moreover, this aid was directed toward the

educational process itself), and these decisions rest in part on the theory that aid

directed solely to schools is reasonably perceived as advancing the educational

mission of those that receive it. See, e.g., Mitchell v. Helms, 530 U.S. 793, 843

insofar as the grant would be used to reconstruct those portions of buildings in which specifically

religious activities take place.

In a prior memorandum, Constitutionality of Awarding Historic Preservation Grants to Religious

Properties, 19 Op. O.L.C. 267 (1995) (“Historic Preservation Memo”), this Office concluded that

Tilton and Nyquist prohibited the Interior Department from providing historic preservation grants to

religious properties. That opinion did not consider whether the rule of Tilton and Nyquist should apply

where the grants at issue are available to a wide array of nonprofit institutions, rather than being limited

to educational institutions. Moreover, the Historic Preservation Memo relied heavily on the fact that

qualification for historic preservation grants depended on the application of “subjective criteria,” such

as historical importance, in determining “project worthiness.” Id. at 271-72. We continue to believe that

the degree of discretion exercised by governmental officials, and the manner in which such discretion is

exercised, are relevant to the constitutionality of direct aid programs (although we express no opinion

here on the Memo’s conclusion regarding historic preservation grants). But to the extent that the

Historic Preservation Memo failed to consider the possibility that the rule of Tilton and Nyquist does

not apply where direct aid is more generally available than was the aid in those cases, it does not

represent our current thinking, which is set forth in this memorandum.

See Mitchell, 530 U.S. at 875 (Souter, J., dissenting) (stating that “government spending resists

easy classification as between universal general service or subsidy of favoritism,” and noting that “[t]he

5-to-4 division of the Everson Court turned on the inevitable question whether reimbursing all parents

for the cost of transporting their children to school was close enough to police protection to tolerate its

indirect benefit in some degree to religious schools”).

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(2000) (O’Connor, J., concurring in judgment). The argument that direct aid to

education unlawfully advances the mission of religious schools applies with the

greatest force where such schools constitute a substantial percentage of those that

receive aid. See Lemon, 403 U.S. at 610 (noting that 96% of students at recipient

institutions were pupils at religious schools and that “most” of those schools were

Catholic); Nyquist, 413 U.S. at 768 (“all or practically all” of the schools eligible

for maintenance or repair grants were Catholic, and 85% of those eligible for other

forms of aid were church-affiliated); Meek v. Pittenger, 421 U.S. 349, 364 (1975)

(“more than 75% [of the qualifying schools] are church-related or religiously

affiliated educational institutions”), overruled in relevant part by Mitchell, 530

U.S. 793; Wolman v. Walter, 433 U.S. 229, 234 (1977) (of 720 private schools

eligible for aid, “all but 29” were religious), overruled in relevant part by Mitchell,

530 U.S. 793.15 That argument is much harder to make where the aid is provided to

a range of nonprofit institutions of which schools are but one part. The broad class

of beneficiaries that are eligible for aid under the statute here—which includes

“educational, utility, irrigation, emergency, medical, rehabilitational, and tempo-

rary or permanent custodial care facilities (including those for the aged and

disabled), other private nonprofit facilities which provide essential services of a

governmental nature to the general public, and facilities on Indian reservations,”

42 U.S.C.A. § 5122(9)—confirms that, in contrast to the education-specific aid at

issue in the foregoing cases, the disaster relief provided by FEMA serves goals

entirely unrelated to education—namely, rehabilitation of a community that has

suffered great loss from a natural disaster by helping to rebuild institutions that

perform quasi-public functions and are (by virtue of their nonprofit status) most in

need of assistance. Cf. Mitchell, 530 U.S. at 883 (Souter, J., dissenting)

(“[D]epending on the breadth of distribution, looking to evenhandedness is a way

of asking whether a benefit can reasonably be seen to aid religion in fact; we do

not regard the postal system as aiding religion, even though parochial schools get

mail”).

We are not suggesting that an aid program has the unlawful effect of advancing religion merely

because a large number of its beneficiaries are religious in nature. The Supreme Court has repeatedly

repudiated the view that the percentage of a program’s religious beneficiaries is relevant to its

constitutionality under the Establishment Clause. See Mueller v. Allen, 463 U.S. 388, 391, 401 (1983)

(sustaining a tax deduction for educational expenses made available to both religious and secular

parents, notwithstanding evidence that “about 95%” of eligible beneficiaries were parents whose

children attended religious schools); Agostini v. Felton, 521 U.S. 203, 229 (1997) (noting that the Court

was not “willing to conclude that the constitutionality of an aid program depends on the number of

sectarian school students who happen to receive the otherwise neutral aid”); Mitchell, 530 U.S. at 812

n.6 (plurality opinion) (citing Agostini for the proposition that “the proportion of aid benefiting students

at religious schools pursuant to a neutral program involving private choices [is] irrelevant to the

constitutional inquiry”); Zelman, 536 U.S. at 658 (refusing to “attach constitutional significance to the

fact that 96% of scholarship recipients have enrolled in religious schools” and stating that “[t]he

constitutionality of a neutral educational aid program simply does not turn on whether and why, in a

particular area, at a particular time, most private schools are run by religious organizations”).

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Authority of FEMA to Provide Disaster Assistance to Seattle Hebrew Academy

We find further support for our decision in the fact that Tilton and Nyquist are

in considerable tension with a long and growing line of cases holding that the Free

Speech Clause does not permit the government to deny religious groups equal

access to the government’s own property, even where such groups seek to use the

property “‘for purposes of religious worship or religious teaching.’” Widmar v.

Vincent, 454 U.S. 263, 265 (1981). See Lamb’s Chapel v. Center Moriches Sch.

Dist., 508 U.S. 384, 394 (1993); Capital Square Rev. & Advisory Bd. v. Pinette,

515 U.S. 753 (1995); Good News Club v. Milford Central Sch., 533 U.S. 98

(2001); see also Board of Educ. v. Mergens, 496 U.S. 226 (1990). Providing

religious groups with access to property is a form of direct aid—albeit not

financial aid—and allowing such groups to conduct worship services plainly

“advances” their religious mission. The Court, however, has consistently refused

to permit (let alone require) state officials to deny churches equal access to public

school property “on the ground that to permit its property to be used for religious

purposes would be an establishment of religion.” Lamb’s Chapel, 508 U.S. at 394.

Indeed, the Court has gone so far as to extend the reasoning of these cases to

require equal funding of religious student expression, reasoning that “[e]ven the

provision of a meeting room . . . involve[s] governmental expenditure” for

“upkeep, maintenance, and repair of the facilities.” See Rosenberger v. Rector of

Univ. of Virginia, 515 U.S. 819, 842-43 (1995); see also Prince ex rel. Prince v.

Jacoby, No. 99-35490, 2002 WL 31007791, at *16-*18 (9th Cir. Sept. 9, 2002)

(extending the principles of Rosenberger to monetary and other benefits provided

to student groups that are entitled to meet on school grounds under the Equal

Access Act).

As in Rosenberger, the issue here “lies at the intersection of the principle of

government neutrality and the prohibition on state funding of religious activities.”

515 U.S. at 846 (O’Connor, J., concurring). In such a case, “[r]eliance on categori-

cal platitudes,” such as an absolute “no direct aid” principle, “is unavailing.” Id. at

847. Accordingly, we do not think it would be appropriate to conclude that the

Tilton-Nyquist decisions govern the constitutionality of allowing a religious school

to receive disaster assistance on the same terms as a wide array of institutions that

provide a public service, whether they are educational or non-educational, secular

or religious. If the diversity of recipients in Walz and the “equal access” line of

cases was sufficient to dispel any Establishment Clause problems, we see no

reason why a similar array of recipients in the FEMA program should not likewise

suffice to sustain it. See also Zelman v. Simmons-Harris, 536 U.S. 639, 727 (2002)

(Breyer, J., dissenting) (arguing that establishment concerns are “far more”

implicated by “government involvement in religious primary education” than by

“tax deductions for charitable contributions,” which “come far closer to exempli-

fying the neutrality that distinguishes, for example, fire protection on the one hand

from direct monetary assistance on the other”). Accordingly, we conclude that the

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Opinions of the Office of Legal Counsel in Volume 26

FEMA assistance here is more analogous to the police and fire services discussed

in Everson than to the educational assistance at issue in Tilton and Nyquist.16

For similar reasons, we do not believe that a reasonable observer would per-

ceive an endorsement of religion in the government’s evenhanded provision of aid

to a religious school damaged by an earthquake. See Mitchell, 530 U.S. at 842-44

(O’Connor, J., concurring in judgment).1 7 In a direct aid program limited to

educational recipients, one could argue that if a school “uses the aid to inculcate

religion in its students, it is reasonable to say that the government has communi-

cated a message of endorsement.” Id. at 843 (O’Connor, J.). The notion is that,

where the government provides education-specific aid, it is fair to say that the

government is providing the assistance because of the content of the funded

education. Such a presumption of governmental endorsement is not present,

however, where the aid is provided to a wide array of nonprofit institutions

(educational and noneducational alike), where the aid is not provided because of

the content of any activities that take place within the building, and where the

government is indifferent to the religious or secular orientation of any education

that may occur within the building. Indeed, much of the aid here is given to

nonprofit institutions that provide services that do not involve any “pedagogy” or

“speech” whatsoever.18

Our conclusion is strongly supported by the evidence regarding FEMA’s appli-

cation of the criteria for receiving funds under the Act. Apart from the Academy,

We acknowledge, as Justice O’Connor noted in her concurrence in Mitchell, 530 U.S. at 840, that

the Court has never approved of any direct financial assistance to religious institutions absent assurance

that the aid may not lawfully be diverted to religious activities, and the Court’s cases contain rhetoric to

the effect that “‘any use of public funds to promote religious doctrines violates the Establishment

Clause.’” Id. at 865 (quoting Bowen v. Kendrick, 487 U.S. 589, 623 (1988) (O’Connor, J., concurring)).

At the same time, however, the Court has never passed on a program in which direct financial aid was

extended to schools as part of a broader array of public and private institutions.

See generally County of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 592

(1989) (the Court has, “[i]n recent years, . . . paid particularly close attention to whether the challenged

governmental practice either has the purpose or effect of ‘endorsing’ religion”); see also id. at 624-32

(O’Connor, J., concurring in part and concurring in the judgment); Santa Fe Indep. Sch. Dist. v. Doe,

530 U.S. 290, 307-08 (2000); Agostini, 521 U.S. at 235.

One could also argue that fire protection is distinguishable from disaster assistance in that the

latter is a more “substantial” form of aid that permits the construction of an entire facility, whereas fire

protection merely prevents such a facility from being destroyed. We do not find this argument

persuasive, however. To begin with, the Supreme Court’s decisions decreasingly focus on the

“substantiality” of aid provided to religious institutions. See, e.g., Agostini, 521 U.S. at 205 (rejecting

the rule “that all government aid that directly aids the educational function of religious schools is

invalid”); Mitchell, 530 U.S. at 820-25 (plurality opinion); id. at 849-57 (O’Connor, J., concurring in

judgment); Zelman, 536 U.S. 639. Moreover, we think it would “exalt form over substance” (Zobrest v.

Catalina Foothills Sch. Dist., 509 U.S. 1, 13 (1993)) to say that the government may provide aid that

helps a religious organization avoid a disaster but not aid that would help such an organization recover

from a disaster.

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Authority of FEMA to Provide Disaster Assistance to Seattle Hebrew Academy

of the 268 Nisqually Earthquake applications on which FEMA has ruled,19 267

applicants—all but one—were declared eligible for funding. See Exhibit A. It thus

appears that there is little exercise of discretion regarding religion in the distribu-

tion of grant funds—indeed, in this instance, funding was virtually automatic—

and the diverse makeup of those that have received funds confirms that the

program’s administration is not “skewed towards religion.” Witters v. Washington

Dep’t of Servs., 474 U.S. 481, 488 (1986). This largely (if not entirely) eliminates

any “special risks” that direct aid “will have the effect of advancing religion (or,

even more, a purpose of doing so).” Mitchell, 530 U.S. at 819 n.8 (plurality

opinion). An examination of the array of institutions funded by FEMA confirms

that the program is neutral in practice. Of the funded institutions, 245 are public

facilities, while only 22 are private nonprofit facilities. The public facilities

include, among other things, schools and school districts (of which there are 63),

fire stations, libraries, prisons, utilities, and buildings that provide public social

services. The private facilities likewise include a broad array of institutions—

hospitals and other health facilities, low income housing centers, social services

organizations, and even a “maritime discovery center.”20 Judging from the names

of the private organizations, moreover, it appears that only a handful have

religious affiliations.21 In sum, the record reveals no basis for concern that FEMA

FEMA received 336 applications for funding in response to the Nisqually Earthquake, 68 of

which were withdrawn. We are informed that FEMA does not keep records of the reasons for

withdrawn applications, and that FEMA does not generally know why applications are withdrawn.

Thus, the record does not reflect the reasons for the withdrawals of these applications. Nonetheless, we

note that of these 68 withdrawn applications, 61 were withdrawn by public institutions and seven were

withdrawn by private nonprofit facilities. Thus, an almost identical percentage of public entity

applications (22.22%) and private nonprofit facility applications (23.33%) were withdrawn. In addition,

nothing in the record suggests that these withdrawals, to the extent that they were motivated by

FEMA’s actions at all, were based on any effort to skew the program in favor of religion, or that FEMA

considered the content of activities that take place within the buildings for which construction and

repair funds were sought. Moreover, FEMA personnel have informed us that the basis for any

withdrawals prompted by the agency would have been purely objective, neutral, and statutory.

The private nonprofit facilities that received funding from FEMA as a result of the Nisqually Earth-

quake are as follows: (1) Bayview Manor Foundation ($2,008); (2) Bread of Life Mission Association

($23,463); (3) Community Health Centers of King County ($11,910); (4) Graham Hill Mutual Water

Company ($36,594); (5) Group Health Cooperative of Puget Sound ($87,522); (6) Interim Housing

Association ($6,885); (7) Kitsap Mental Health Services ($6,718); (8) Lake Alice Water Association

($33,345); (9) Madrona Beach Water Company, Inc. ($42,043); (10) Meridian Heights Water District

($7,048); (11) Odyssey, The Maritime Discovery Center ($15,768); (12) Pinewood Glen Improvement

Club ($2,911); (13) Pioneer Human Services ($163,708); (14) Plymouth Housing Group ($4,190);

(15) Providence Health System ($212,543); (16) Recovery Centers of King County ($2,866); (17) Safe

Homes ($35,942); (18) Seattle Indian Health Board ($48,463); (19) The Compass Center ($1,649,068);

(20) The Low Income Housing Institute ($543,553); (21) View Ranch Estates Water Association ($1,286);

(22) Virginia Mason Medical Center ($2,831,474).

See Exhibit A, No. 23 (Bread of Life Mission Association), No. 336 (YMCA of Greater Seattle).

It is our understanding that the application of the Archdiocesan Housing Authority (“AHA”) was

initially denied (Exhibit A, No. 9) on the basis that the AHA had not yet applied for a loan from the

Small Business Administration (“SBA”). The AHA subsequently did apply for such a loan, however,

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Opinions of the Office of Legal Counsel in Volume 26

administrators have discretion to favor religious applicants, or that those adminis-

trators have exercised what little discretion they do have in a manner that favors

religion.

Finally, we would emphasize that although there is some risk that a court would

invalidate the provision of disaster assistance to the Academy—decisions under

the Establishment Clause are notoriously context-dependent and difficult to

predict—the facts provide an especially strong case for arguing that direct aid to

religious educational institutions is constitutional where made available on the

basis of genuinely neutral criteria, to an array of beneficiaries including both

educational and non-educational institutions. Indeed, there are arguments that

excluding religious organizations from disaster assistance made available to

similarly situated secular institutions would violate the Free Exercise Clause and

the Free Speech Clause. E.g., Church of Lukumi Babalu Aye v. City of Hialeah,

508 U.S. 520, 532 (1993) (“[a]t a minimum, the protections of the Free Exercise

Clause pertain if the law at issue discriminates against some or all religious

beliefs”); Employment Div. v. Smith, 494 U.S. 872, 877 (1990) (under the Free

Exercise Clause, the state may not “impose special disabilities on the basis of

religious views or religious status”); Rosenberger, 515 U.S. at 828 (“the govern-

ment offends the First Amendment when it imposes financial burdens on certain

speakers based on the content of their expression,” including religious expres-

sion).22 Moreover, four members of the Supreme Court have made clear that they

would sustain any program of aid that provides secular assistance, on the basis of

neutral criteria, to religious and secular schools alike, see Mitchell, 530 U.S. at

807-14 (plurality opinion), which is a narrower view of the Establishment Clause

than would be required to sustain the provision of FEMA aid to the Academy.

JAY S. BYBEE

Assistant Attorney General

Office of Legal Counsel

and its application was denied. Thus, its application is in the process of being reinstated. If the AHA’s

application is granted, it appears that not a single applicant that meets the objective criteria for funding

under the Act will have been denied eligibility for funding.

In July, for example, the Ninth Circuit—which might well hear any appeal involving a challenge

to the provision of disaster assistance to the Academy here—held that the State of Washington violated

the Free Exercise Clause of the First Amendment in denying public scholarship assistance to an

otherwise eligible college student on the ground that he intended to use the scholarship to pursue a

degree in theology. See Davey v. Locke, 299 F.3d 748 (9th Cir. 2002). There is an argument here, too,

that denying aid to the Academy solely on account of their religious faith would violate the Free

Exercise Clause.

Editor’s Note: The Ninth Circuit’s decision in Davey v. Locke was subsequently reversed by Locke

v. Davey, 540 U.S. 712 (2004). In that decision, the Supreme Court ruled that the State of Washington

could decide not to fund instruction in devotional theology without violating the Free Exercise Clause,

because of the State’s “antiestablishment interest[]” in not “using tax funds to support the ministry,” for

which there was a long tradition of state constitutional prohibition. Id. at 722, 723.

132

Authority of FEMA to Provide Disaster Assistance to Seattle Hebrew Academy

Exhibit A

Applications Received by FEMA in Response to the

Nisqually Earthquake

No Disaster Applicant Name Pnp Elig Grant Amt

1 1361 Aberdeen School District N Y $13,097

2 1361 Aberdeen, City of N Y Withdrawn

3 1361 Adna School District No. 226 N Y $16,203

4 1361 Alder Mutual Light Co N Y Withdrawn

5 1361 Allyn, Port of N Y $2,078

6 1361 Anacortes School District No. 103 N Y $39,610

7 1361 Anacortes, City of N Y $7,958

8 1361 Annapolis Water District N Y $24,254

9 1361 Archdiocesan Housing Authority Y N Applicant in

Process of Being

Reinstated

10 1361 Auburn School District No. 408 N Y Withdrawn

11 1361 Bainbridge Island, City of N Y $2,458

12 1361 Bates Technical College N Y Withdrawn

13 1361 Bayview Manor Foundation Y Y $2,008

14 1361 Beaux Arts Village, Town of N Y Withdrawn

15 1361 Bellevue Community College N Y $1,227

16 1361 Bellevue, City of N Y $230,382

17 1361 Bethel School District No. 403 N Y $341,435

18 1361 Black Diamond City Fire Department N Y Withdrawn

19 1361 Black Diamond, City of N Y $3,201

20 1361 Blaine School District No. 503 N Y $16,100

21 1361 Boistfort Valley Water Corporation Y Y Withdrawn

22 1361 Bothell, City of N Y $470

23 1361 Bread of Life Mission Association Y Y $23,463

24 1361 Bremerton School District N Y $101,876

25 1361 Bremerton, City of N Y $425,016

26 1361 Bridgeport School District N Y $15,515

27 1361 Bucoda, Town of N Y $3,141

28 1361 Burien, City of N Y $18,195

29 1361 Capitol Hill Housing Improvement Program N Y $70,348

133

Opinions of the Office of Legal Counsel in Volume 26

No Disaster Applicant Name Pnp Elig Grant Amt

30 1361 Carbonado Historical School District N Y $59,799

31 1361 Carnation, City of N Y $3,305

32 1361 Cascadia Community College N Y Withdrawn

33 1361 Castle Rock School District No. 401 N Y Withdrawn

34 1361 Cedar Glen Community Y Y Withdrawn

35 1361 Cedar River Water & Sewer District N Y $26,634

36 1361 Central Kitsap Fire & Rescue N Y $20,595

37 1361 Central Kitsap School District No. 401 N Y Withdrawn

38 1361 Centralia College N Y $9,006

39 1361 Centralia Public School District No. 401 N Y $29,431

40 1361 Centralia, City of N Y $42,326

41 1361 Chehalis School District No. 302 N Y $255,888

42 1361 Chehalis Tribe N Y $25,819

43 1361 Chehalis, City of N Y $34,119

44 1361 Clallam County Fire District No. 3 N Y $3,939

45 1361 Clear Lake Water District N Y $8,402

46 1361 Clover Park School District N Y $25,532

47 1361 Clover Park Technical College N Y Withdrawn

48 1361 Community Health Centers of King County Y Y $11,910

49 1361 Cosmopolis N Y $10,452

50 1361 Covington Water District N Y $3,880

51 1361 Cowlitz Cnty Fire Protection District No. 3 N Y $796

52 1361 Darrington School District N Y $25,253

53 1361 Darrington, Town of N Y Withdrawn

54 1361 Department of Corrections N Y $1,518,881

55 1361 Department of Labor & Industries N Y $238,105

56 1361 Department of Licensing N Y $0

57 1361 Department of Social & Health Services N Y $2,652,973

58 1361 Department of Veterans Affairs N Y $16,936

59 1361 Dept. of Community, Trade, & Economic Dev. N Y $14,584

60 1361 Des Moines, City of N Y $32,669

61 1361 Dieringer School District No. 343 N Y $17,988

62 1361 Eastside Fire & Rescue N Y $4,869

63 1361 Eatonville School District No. 404 N Y Withdrawn

64 1361 Eatonville, City of N Y $69,084

134

Authority of FEMA to Provide Disaster Assistance to Seattle Hebrew Academy

No Disaster Applicant Name Pnp Elig Grant Amt

65 1361 Elma, City of N Y $917

66 1361 Employment Security Department N Y $34,227

67 1361 Enumclaw School District N Y $24,770

68 1361 Everett Community College N Y Withdrawn

69 1361 Everett, City of N Y $30,603

70 1361 Evergreen State College N Y $350,537

71 1361 Everson, City of N Y $1,653

72 1361 Federal Way Fire Dept. N Y $2,508

73 1361 Federal Way Public Schools N Y $44,060

74 1361 Ferndale School District N Y $19,895

75 1361 Fife School District N Y $21,587

76 1361 Fife, City of N Y $25,078

77 1361 Fircrest, City of N Y $8,879

78 1361 Franklin Pierce School District N Y $16,758

79 1361 Gig Harbor, City of N Y Withdrawn

80 1361 Graham Hill Mutual Water Co Y Y $36,594

81 1361 Grays Harbor Community Hospital Y Y Withdrawn

82 1361 Grays Harbor Fire Protection District No. 2 N Y $7,867

83 1361 Grays Harbor, County N Y $44,406

84 1361 Green River Community College N Y $283,842

85 1361 Group Health Cooperative of Puget Sound Y Y $87,522

86 1361 Highline Community College N Y $8,385

87 1361 Highline School District No. 401 N Y $465,625

88 1361 Highline Water District N Y $40,272

89 1361 Historic Seattle Preservation Development Auth. N Y $202,594

90 1361 Hoquiam, City of N Y $15,483

91 1361 Housing Authority of Clallam County N Y $1,566

92 1361 Housing Authority of Seattle N Y $63,819

93 1361 Housing Authority of Tacoma N Y Withdrawn

94 1361 Housing Resources Group Y Y Withdrawn

95 1361 Interim Housing Association Y Y $6,885

96 1361 Issaquah, City of N Y $110,792

97 1361 Joint Legislative Systems Committee N Y $6,597

98 1361 Kalama, City of N Y $19,663

99 1361 Kelso School District No. 458 N Y Withdrawn

135

Opinions of the Office of Legal Counsel in Volume 26

No Disaster Applicant Name Pnp Elig Grant Amt

100 1361 Kelso, City of N Y $4,807

101 1361 Kent School District N Y $566,796

102 1361 Kent, City of N Y $115,269

103 1361 King County Fire District No. 44 N Y Withdrawn

104 1361 King County Fire District No. 16 N Y Withdrawn

105 1361 King County Hospital District No. 1 N Y Withdrawn

106 1361 King County Housing Authority N Y Withdrawn

107 1361 King County International Airport N Y Withdrawn

108 1361 King County Water District No. 90 N Y $7,123

109 1361 King, County N Y $6,255,945

110 1361 Kirkland, City of N Y Withdrawn

111 1361 Kitsap County Fire District No. 12 N Y Withdrawn

112 1361 Kitsap County Fire District No. 7 N Y $2,224

113 1361 Kitsap Mental Health Services Y Y $6,718

114 1361 Kitsap, County of N Y $44,427

115 1361 La Conner School District No. 311 N Y $30,771

116 1361 Lacey, City of N Y $115,042

117 1361 Lake Alice Water Association Y Y $33,345

118 1361 Lake Stevens School District No. 4 N Y $14,683

119 1361 Lake Stevens Sewer District N Y $95,586

120 1361 Lake Washington School District N Y Withdrawn

121 1361 Lake Washington Technical College N Y $3,641

122 1361 Lakewood Fire District N Y $3,446

123 1361 Lakewood School District No. 306 N Y $15,548

124 1361 Lakewood Water District N Y $101,031

125 1361 Lakewood, City of N Y Withdrawn

126 1361 Lewis County Fire District No. 12 N Y $788

127 1361 Lewis County Fire District No. 14 N Y $784

128 1361 Lewis County Fire District No. 2 N Y Withdrawn

129 1361 Lewis County Fire District No. 5 N Y $5,276

130 1361 Lewis County Fire Protection District No. 9 N Y $788

131 1361 Lewis, County N Y $49,271

132 1361 Longview, City of N Y Withdrawn

133 1361 Lower Columbia College N Y Withdrawn

134 1361 Lower Elwha Klallam Tribe N Y $2,783

136

Authority of FEMA to Provide Disaster Assistance to Seattle Hebrew Academy

No Disaster Applicant Name Pnp Elig Grant Amt

135 1361 Lummi Nation N Y $42,807

136 1361 Lynden Fire Department N Y $19,817

137 1361 Madrona Beach Water Company, Inc. Y Y $42,043

138 1361 Makah Tribal Council N Y $11,598

139 1361 Manchester Water District N Y $44,950

140 1361 Maple Valley, City of N Y $35,395

141 1361 Mary M Knight School No. 311 N Y $3,002

142 1361 Mason , County of N Y $127,535

143 1361 Mason County Fire District No. 6 N Y $788

144 1361 Mason County Public Utility District No. 3 N Y $230,502

145 1361 Mercer Island School District N Y $0

146 1361 Mercer Island, City of N Y $7,109

147 1361 Meridian Heights Water District Y Y $7,048

148 1361 Meridian School District N Y $3,091

149 1361 Milton, City of N Y $4,762

150 1361 Morton School District N Y Withdrawn

151 1361 Morton, City of N Y $10,865

152 1361 Mount Baker School District No. 507 N Y $3,693

153 1361 Mountlake Terrace, City of N Y $10,192

154 1361 Mukilteo School District N Y $25,608

155 1361 Mukilteo, City of N Y $6,017

156 1361 Museum Development Authority N Y $47,778

157 1361 Newcastle, City of N Y Withdrawn

158 1361 Nisqually Indian Tribe N Y $131,683

159 1361 Nooksack, City of N Y $1,460

160 1361 Normandy Park, City of N Y $835

161 1361 North Bend, City of N Y $5,384

162 1361 North Highline Fire District N Y Withdrawn

163 1361 North River School District N Y $8,739

164 1361 North Seattle Community College N Y $6,244

165 1361 North Sound Regional Support Network N Y Withdrawn

166 1361 North Thurston School District N Y $90,258

167 1361 Northshore Utility District N Y $301,483

168 1361 Northwest Railway Museum Y Y Withdrawn

169 1361 Ocean Shores, City of N Y $8,126

137

Opinions of the Office of Legal Counsel in Volume 26

No Disaster Applicant Name Pnp Elig Grant Amt

170 1361 Odyssey, the Maritime Discovery Center Y Y $15,768

171 1361 Office of the Attorney General N Y Withdrawn

172 1361 Office of the Governor N Y Withdrawn

173 1361 Office of the Lieutenant Governor N Y $4,705

174 1361 Office of the Secretary of State N Y $835

175 1361 Office of the State Treasurer N Y Withdrawn

176 1361 Olympia School District No. 111 N Y $65,753

177 1361 Olympia, City of N Y $675,740

178 1361 Olympic College N Y Withdrawn

179 1361 Olympic View Water & Sewer District N Y $0

180 1361 Onalaska School District No. 300 N Y $8,140

181 1361 Orting School District No. 344 N Y $2,144

182 1361 Orting, City of N Y $0

183 1361 Pacific Hospital Preservation & Dev. Auth N Y $157,980

184 1361 Pacific, County of N Y $1,819

185 1361 Pe Ell, City of N Y $8,838

186 1361 Peninsula College N Y $93,971

187 1361 Peninsula Community Health Services Y Y Withdrawn

188 1361 Peninsula School District No. 401 N Y Withdrawn

189 1361 Pierce College N Y $58,772

190 1361 Pierce County Fire District No. 17 N Y $1,479

191 1361 Pierce County Fire District No. 14 N Y $19,890

192 1361 Pierce County Fire District No. 18 N Y $23

193 1361 Pierce County Fire District No. 21 N Y $796

194 1361 Pierce County Fire District No. 5 N Y Withdrawn

195 1361 Pierce County Fire District No. 20 N Y Withdrawn

196 1361 Pierce County Fire District No. 23 N Y $19,695

197 1361 Pierce County Regional Support Network N Y $0

198 1361 Pierce County Rural Library District N Y $74,136

199 1361 Pierce Transit N Y Withdrawn

200 1361 Pierce, County of N Y $485,304

201 1361 Pike Place Preservation & Development Auth. N Y $114,888

202 1361 Pinewood Glen Improvement Club Y Y $2,911

203 1361 Pioneer Human Services Y Y $163,708

204 1361 Plymouth Housing Group Y Y $4,190

138

Authority of FEMA to Provide Disaster Assistance to Seattle Hebrew Academy

No Disaster Applicant Name Pnp Elig Grant Amt

205 1361 Port Angeles, City of N Y $47,894

206 1361 Port Gamble S’klallam Housing Authority N Y $12,856

207 1361 Port of Anacortes N Y $41,668

208 1361 Port of Chehalis N Y $8,398

209 1361 Port of Everett N Y $48,091

210 1361 Port of Olympia N Y $98,320

211 1361 Port of Port Angeles N Y $5,192

212 1361 Port of Seattle N Y $3,829,612

213 1361 Port of Tacoma N Y $164,646

214 1361 Port Orchard, City of N Y $27,478

215 1361 Providence Health System Y Y $212,543

216 1361 PUD #1 of Snohomish County N Y $38,401

217 1361 Puyallup School District N Y $194,400

218 1361 Puyallup, City of N Y $131,431

219 1361 Quinault Indian Nation N Y $1,980

220 1361 Rainier School District No. 307 N Y $350

221 1361 Rainier, Town of N Y $16,585

222 1361 Raymond, City of N Y $35,282

223 1361 Recovery Centers of King County Y Y $2,866

224 1361 Redmond, City of N Y Withdrawn

225 1361 Renton School District N Y $0

226 1361 Renton Technical College N Y $35,134

227 1361 Renton, City of N Y $217,310

228 1361 Rochester School District 401 N Y $0

229 1361 Safe Homes Y Y $35,942

230 1361 Sauk-Suiattle Indian Tribe of Washington N Y $2,940

231 1361 Seattle-King County Department of Health N Y Withdrawn

232 1361 Seattle Central Community College N Y $39,047

233 1361 Seattle Chinatown Development Authority N Y $34,704

234 1361 Seattle Indian Health Board Y Y $48,463

235 1361 Seattle Indian Services Commission N Y $426,988

236 1361 Seattle School District No. 1 N Y $1,110,755

237 1361 Seattle, City of N Y $3,221,569

238 1361 Sedro Woolley, City of N Y $9,629

239 1361 Sentencing Guidelines Commission N Y Withdrawn

139

Opinions of the Office of Legal Counsel in Volume 26

No Disaster Applicant Name Pnp Elig Grant Amt

240 1361 Shelton School District No. 309 N Y Withdrawn

241 1361 Shelton, City of N Y $8,980

242 1361 Shoalwater Bay Indian Tribe N Y $1,871

243 1361 Shoreline Fire Department N Y Withdrawn

244 1361 Shoreline School District N Y $21,536

245 1361 Silverdale Water District No. 16 N Y $16,152

246 1361 Skagit, County of N Y Withdrawn

247 1361 Skokomish Indian Tribe N Y $4,396

248 1361 Snohomish County Emergency Management N Y $4,398

249 1361 Snohomish County Fire District No. 17 N Y $23,087

250 1361 Snohomish School District N Y $22,072

251 1361 Snohomish, City of N Y $12,617

252 1361 Snohomish, County N Y $74,291

253 1361 Snoqualmie Valley School District No. 410 N Y $135,794

254 1361 Snoqualmie, City of N Y $64,405

255 1361 Sound Transit N Y $569,933

256 1361 South Bend School District No. 118 N Y $1,505

257 1361 South Bend, City of N Y $38,377

258 1361 South Kitsap School District No. 402 N Y $21,130

259 1361 South Prairie, Town of N Y $957

260 1361 South Puget Sound Community College N Y $61,128

261 1361 South Seattle Community College N Y $4,781

262 1361 Southern Puget Sound Inter-Tribal Housing Auth. N Y $1,529

263 1361 Southwest Suburban Sewer District N Y $43,149

264 1361 Squaxin Island Tribe N Y $1,268

265 1361 State Auditor’s Office N Y $1,370

266 1361 State Department of Financial Institutions N Y Withdrawn

267 1361 State Department of General Administration N Y $8,235,429

268 1361 Steilacoom Historical School District No. 01 N Y $277,798

269 1361 Steilacoom, City of N Y $21,859

270 1361 Sultan, City of N Y $1,449

271 1361 Sumner School District N Y Withdrawn

272 1361 Sumner, City of N Y $7,943

273 1361 Suquamish Indian Tribe N Y $10,734

274 1361 Swedish Health Services Y Y Withdrawn

140

Authority of FEMA to Provide Disaster Assistance to Seattle Hebrew Academy

No Disaster Applicant Name Pnp Elig Grant Amt

275 1361 Swinomish Tribal Community N Y $4,819

276 1361 Tacoma Community College N Y $138,448

277 1361 Tacoma Department of Public Utilities N Y Withdrawn

278 1361 Tacoma Metro Parks N Y $5,875

279 1361 Tacoma School District No. 10 N Y $225,927

280 1361 Tacoma, City of N Y $87,310

281 1361 Taholah School District No. 77 N Y $7,825

282 1361 The Compass Center Y Y $1,649,068

283 1361 The Low Income Housing Institute Y Y $543,553

284 1361 Thurston County Fire District No. 3 N Y $4,839

285 1361 Thurston County Fire District No. 6 N Y Withdrawn

286 1361 Thurston, County N Y $381,389

287 1361 Timberland Regional Library N Y $6,909

288 1361 Timberlands Regional Support Network N Y Withdrawn

289 1361 Toledo, City of N Y $1,967

290 1361 Tukwila, City of N Y $53,076

291 1361 Tulalip Tribes Housing Authority N Y $7,016

292 1361 Tulalip Tribes Inc. N Y $3,283

293 1361 Tumwater School District N Y $80,924

294 1361 Tumwater, City of N Y $55,628

295 1361 University of Washington N Y $2,826,851

296 1361 University Place, City of N Y Withdrawn

297 1361 Valley Water District N Y $59,880

298 1361 Vashon Island School District N Y $6,738

299 1361 Vashon Park District N Y $17,267

300 1361 View Ranch Estates Water Association Y Y $1,286

301 1361 Virginia Mason Medical Center Y Y $2,831,474

302 1361 Wash. State Major League Baseball Stadium N Y $0

303 1361 Washington Department of Health N Y Withdrawn

304 1361 Washington Dept. of Fish & Wildlife N Y $40,657

305 1361 Washington Dept. of Information Services N Y Withdrawn

306 1361 Washington Dept. of Natural Resources N Y $134,437

307 1361 Washington Dept. of Transportation N Y $266,563

308 1361 Washington State Arts Commission N Y Withdrawn

309 1361 Washington State Board of Accountancy N Y Withdrawn

141

Opinions of the Office of Legal Counsel in Volume 26

No Disaster Applicant Name Pnp Elig Grant Amt

310 1361 Washington State Code Reviser’s Office N Y $0

311 1361 Washington State Convention & Trade N Y $199,059

312 1361 Washington State Dept. of Agriculture N Y $6,517

313 1361 Washington State Dept. of Ecology N Y $21,078

314 1361 Washington State Dept. of Retirement Systems N Y Withdrawn

315 1361 Washington State Historical Society N Y Withdrawn

316 1361 Washington State House of Representatives N Y $42,946

317 1361 Washington State Law Library N Y $77,365

318 1361 Washington State Library N Y $46,931

319 1361 Washington State Liquor Board N Y $0

320 1361 Washington State Military Department N Y $2,077,599

321 1361 Washington State Office of Financial Mgmt. N Y $4,472

322 1361 Washington State Parks & Recreation N Y $393,085

323 1361 Washington State Patrol N Y $76,993

324 1361 Washington State Redistricting Commission N Y Withdrawn

325 1361 Washington State Senate N Y $8,046

326 1361 Westport, City of N Y $2,386

327 1361 Whatcom, County of N Y $8,197

328 1361 White Pass School District N Y $11,112

329 1361 White River School District No. 416 N Y Withdrawn

330 1361 Wilkeson, City of N Y $66,081

331 1361 Winlock, City of N Y $17,139

332 1361 Woodinville Water District N Y $13,572

333 1361 Woodinville, City of N Y $23,782

334 1361 Yelm Community Schools District No. 2 N Y $2,553

335 1361 Yelm, City of N Y Withdrawn

336 1361 YMCA of Greater Seattle Y Y $0

142

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.