Respondents Brief — Witters v. Washington Department of Services for the Blind

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Supreme Court, U.S,

<~ FILED

No. 84-1070

CLERK “i

IN THE

SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1984

LARRY WITTERS,

Petitioner,

STATE OF WASHINGTON

DEPa®TMENT OF SERVICES FOR THE BLIND,

Respondent.

On Writ of Certiorari To The

Supreme Court of the State of Washington

BRIEF FOR RESPONDENT

KENNETH QO. EIKENBERRY

Attorney General

Puiuip H. Austin

Senior Deputy Attorney General

TimoTHy R. MALONE

Davip R. MINIKEL

Assistant Attorneys General

Counsel of Record for Respondent

Post Office Address:

Temple of Justice

Olympia, Washington 98504

(206) 459-6558

OLYMPIA, WASHINGTON

BEST AVAILABLE COPY ©

QUESTIONS PRESENTED

I. Does the Establishment Clause prohibit a State

from utilizing a vocational rehabilitation program, which

meets the federal requirements for such program under 29

U.S.C. §§ 720-722 and applicable federal regulations, to

fund the training of a handicapped person for the minis-

try?

JI. If the Establishment Clause does not impose such

a prohibition, does the State’s refusal to provide the fund-

ing for such training, as required by State constitutional

provisions, violate the Free Exercise Clause?

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TABLE OF CONTENTS

EEL EEE

Constitutional, Statutory and Regulatory

EE EE

Counterstatement of the Case ..................00005.

a ee cee esos eccccccccsescecccs

Argument:

I. The Establishment Clause Prevents a State From

Funding the Education of a Ministerial Student Un-

der a Vocational Rehabilitation Program Which Re-

quires That the State Evaluate and Determine the

Suitability of the Individual Student for a Religious

Career, the Availability of Employment in that Ca-

reer, and the Suitability of a Specific Education Pro-

EEE EE 19

A. Nature of the Vocational Rehabilitation Program

eeu e chu nccceccebe ese deccces 10

B. Under the Second Prong of the Lemon Test, the

Vocational Rehabilitation Program Cannot be

Used to Fund the Training of Ministerial Stu-

EE EECEEUUGS cee cbccececceccccceces 16

C. Under the Third Prong of the Lemon Test, the

Vocational Rehabilitation Program Cannot be

Used to Fund the Training of Ministerial Stu-

eee eerawcenesseddcccccecccece 21

II. Denial of Funding for Ministerial Training Under the

Vocational Rehabilitation Program Does Not Result

in a Denial of Petitioner’s Rights Under the Freedom

ee ek eee seccesetcdccccccees 23

Teen eT TT ee wc cecsecccccce 27

TABLE OF AUTHORITIES

Cases:

Aguilar v. Felton, No. 84-237 (July 1, 1985).......... 9, 21,

22,23,24

Americans United v. Blanton, 433 F.Supp. 97 (M.D.

Tenn.), aff'd per curiam, 434 U.S. 803 (1977) ...... 19

TABLE OF AUTHORITIES (continued)

age

Committee for Public Education v. Nyquist, 413 U.S. 756

Ss iccdd ld ccnkisdddasddeetsbecebetnstine 17, 18, 24

Durham v. MeCloud, 259 S.C. 409, 192 S.E.2d 202 (1972),

app. dismissed 413 U.S. 902 (1973) ............00. 19

Grand Rapids Schools District v. Ball, No. 83-990 (July 1,

SE chk nadenceceneedesdtceuueceeheee 9, 10, 19, 22, 24

Harris v. McRae, 448 U.S. 297 (1980)................ 25

Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1984).... 22

Lemon v. Kurtzman, 403 U.S. 602 (1971)........... passim

McDaniel v. Paty, 435 U.S. 618 (1978)............... 26

Mueller v. Allen, 463 U.S. 388 (1983) ......... 7, 18, 19, 20

Roemer v. Board of Public Works, 426 U.S. 736 (1976) 21

Weiss v. Bruno, 82 Wn.2d 199, 509 P.2d 973 (1973) .. 6, 24

Widmar v. Vincent, 454 U.S. 263 (1982).......... 9, 10, 26

Constitution, statutes and regulations:

Wash. Const.:

a MSc v6 ck ees 6eeteeen cedeskeseaneed ene nen 4, 6

OR; Bie te Uh cad ch nde chk GeN ah deieenekanaeaverns 4

Rehabilitation Act of 1973, 29 U.S.C. 720 et seq..... passim

SP EL ae EE otee'o de nunteesndaweneceeneane 3, 11

SP de UN bic acs vednstbknedeae tnekesanaseks 12

SD R- e b.0o Swccasévicasivisisasersee 12

Sy Ss EP EEN dwane sts 0 seduseedeuanenan 12, 13, 15, 16

St es Se iss oe uddekeneecke dkeeueee 4

Se ED cin vende newses oak dau nesnienie 12

Sp Ws. te NE Bdeticccs aces didentetebevicasae 12, 13

ee es Ge SE ob week boy dodeueves osdenwkeeds 13

GE GE, 3B UBL. 8 B0G0 G0 O06. oc cdcccccccctuvecs passim

ee es ee an ccadecssNadaudecnnG@eeeks 10

OD. Beas OS OS ME chninccddnincensedecevonnn nd 10

TABLE OF AUTHORITIES (continued)

Page

ee Cs ae Oe ED oc bo cacentncess duckesseces 10

ee Se I a aca whse Sis stusevswcs 10

Wash. Rev. Code:

DS PED GUND Boies cease ccecsccccecens 2

SD PR I BI ok paved cobdcseviscesss 4

§ 74.16.590(1) (repealed 1063) ........ccccccccccces 4

DT Shee ee ele ddce eek sheave eka basdeess 2,3

i ae eee eee ls i eee 2

i. cach cen eGhdhad bake bred Ae Nee sbes aks 2

Washington Laws of 1983, chapter 194, § 3........... 2

34 C.F.R.:

Pt. 361:

ea eke e ieee ee ae 14

eee kaw coded aeedackieeakeanen 14

cade. sa eaneunsenenaeaucn 15, 16

a ae i od ce 4

GL Toc oe ces Leu We penddane ewes at 4

Wash. Admin. Code:

eg eh 2 a Se eee aéeue< 15

Miscellaneous:

S.Rep. No. 93-318, 93rd Cong. Ist Sess. (197. ...... 13, 14

Tribe, American Constitutional Law (1978).......... 17, 18

No. 84-1070

IN THE

SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1984

LARRY WITTERS,

Petitioner,

STATE OF WASHINGTON

DEPARTMENT OF SERVICES FOR THE BLIND,

Respondent.

On Writ of Certiorari To The

Supreme Court of the State of Washington

BRIEF FOR RESPONDENT

CONSTITUTIONAL, STATUTORY AND

REGULATORY PROVISIONS INVOLVED

In addition to the constitutional and statutory provi-

sions contained at pages 2-3 of Petitioner’s Brief, the fol-

lowing provisions are involved.

Washington Constitution, Article I, § 11:

“No public money or property shall be appropriated

for or applied to any religious worship, exercise or

instruction, or the support of any religious establish-

Washington State Constitution, Article IX, § 4:

“All schools maintained or supported wholly or in

part by the public funds shall be forever free from

sectarian control or influence.”

29 U.S.C. §§ 720-722, which are reproduced as Appen-

dix A.

RCW 74.18.130 which is reproduced as Appendix B.

34 C.F.R. §$§ 361.32, 361.33, 361.39, 361.40 and 361.41

which are reproduced as Appendix C.

COUNTERSTATEMENT OF THE CASE

In 1979, petitioner Larry Witters applied to the then

Washington State Commission for the Blind for vocational

rehabilitation services pursuant to RCW 74.16.181 which,

at the time, provided, in part:

“The commission may maintain or cause to be main-

tained a program of services to assist visually handi-

capped persons to overcome vocational handicaps and

to obtain the maximum degree of self-support and

self-care. * * * Under such program the commis-

sion may;

so% . *

“(3) Provide for special education and/or training in

the professions, business or trades under a vocational

rehabilitation plan, * * *”

An applicant for services from the Commission had to

meet the requirements of RCW 74.16.183. Mr. Witters

qualified under the requirement that an applicant have

“an eye condition of a progressive nature which may lead

to blindness.’

‘In 1983 the Washington Legislature repealed chapter 74.16 RCW,

abolishing the Commission for the Blind and creating a new state

agency, the Department of Services for the Blind. See Washington Laws

of 1983, chapter 194, § 3, effective June 30, 1983. The vocational rehabil-

itative services to be provided by this new department are now found in

RCW 74.18.140, which reads in part:

“The department may provide to eligible individuals vocational

rehabilitation services, including * * * vocational counseling,

guidance, referral, and placement; rehabilitation training;* * *

and other goods and services which can be reasonably expected to

benefit a client in terms of employability.”

“The current eligibility requirements for the program are found in

RCW 74.18.130, which reads:

The vocational rehabilitation program at issue is a

federally funded program (Pet. App. C-2, J. App. 7). The

federal funding is pursuant to the Rehabilitation Act of

1973, 29 U.S.C. § 720, et seg., which provides grants to

states “to meet the current and future needs of handi-

capped individuals, so that such individuals may prepare

for and engage in gainful employment to the extent of their

capabilities.” 29 U.S.C. § 720(a).

The Commission for the Blind was, and the Depart-

ment of Services for the Blind now is, the designated state

agency eligible to receive funds under this program as ap-

plied to the blind. As such it is governed by federal regula-

tions found in 34 C.F.R. part 361. (See relevant portions in

App. C.)

Mr. Witters sought assistance from the Commission

in order to go to Inland Empire School of the Bible to

pursue education and training to become a pastor, mission-

ary or Christian educator (Pet. App. F-2 — F-3).° The

Commission, however, denied his application on the

ground that:

“The department shall provide a program of vocational rehabilita-

tion to assist blind persons to overcome vocational handicaps and

to develop skills necessary for self-support and self-care. Appli-

cants eligible for vocational rehabilitation services shall be persons

who are blind as defined in RCW 74.18.020 and who also (1) have

no vision or limited vision which constitutes or results in a sub-

stantial handicap to employment and (2) can reasonably be ex-

pected to benefit from vocational rehabilitation services in terms

of employability.” (Emphasis supplied).

The underlined requirements were new in 1983.

Because of these changes it is unclear whether Mr. Witters is cur-

rently eligible for assistance. The Department has had no physical con-

tact with Mr. Witters to determine if these requirements would be met.

‘Because of the length of time that this case has been pending, Mr.

Witters, at the time of his initial application in 1979, had not entered

the school. However, by the time of the entry of the findings of fact,

conclusions of law and order in the superior court, May 26, 1982 (Pet.

App. C), Mr. Witters had apparently enrolled as a student in the school,

originally pursuing a three-year Bible diploma course of study and then

switching to the four-year program, which would also lead to a bachelor

of arts degree (Pet. App. A-3, C-3). The Department does not know

whether Mr. Witters ever completed his course of study.

“* * * the Washington State Constitution forbids

the use of public funds to assist an individual in the

pursuit of a career or degree in theology or related

areas.” (J. App. 4).

This was reiterated in the letter of denial dated March 11,

1980 (J. App. 1-2).

No individualized written rehabilitation program was

ever created as required by 29 U.S.C. § 722(a) together

with 34 C.F.R. § 361.40 and .41. That was so because the

decision to deny this specific aid request was made at the

threshold of a usually very lengthy process of state in-

volvement with a vocational rehabilitation client.

Mr. Witiers requested an administrative hearing un-

der the provisions of RCW 74.16.520, which resulted in an

initial decision affirming the denial of aid (Pet. App. F.).

Mr. Witters next requested a further review of the

initial decision—which was upheld in all respects. (Pet.

App. E). An appeal was then taken to the superior court

pursuant to the provision of RCW 74.16.536(1). The supe-

rior court, after hearings, likewise upheld the Commis-

sion’s order based upon the provisions of the Washington

State Constitution (Pet. App. C and J. App. 7-10), and a

further appeal was taken from that decision which was

certified to the Washington Supreme Court.

At each stage in the litigation the Commission and its

successor continued to base its denial of the application on

the State Constitution. Conversely, at no point did either

agency contend that a grant of assistance to Mr. Witters

would also violate the establishment clause of the First

Amendment to the United States Constitution since the

state constitutional provisions are more stringent regard-

ing the separation of church and state.‘

‘Article I, § 11 of the Washington State Constitution provides, in

part:

“No public money * * * shall be * * * applied to any reli-

gious * * ™* instruction, or the support of any religious establish-

ment.

Article IX, § 4 provides:

“All schools maintained or supported wholly or in part by the pub-

lic funds shall be forever free from sectarian control or influence.”

The Washington Supreme Court, by a seven to two

majority, affirmed the Commission’s decision to deny vo-

cational rehabilitation assistance to Mr. Witters. It did so,

however—acting on its own motion, so to speak—on the

basis of the establishment clause of the First Amendment

rather than the above-noted religion clause of the Wash-

ington State Constitution (Pet. App. A-2). Applying the

three-prong test of Lemon v. Kurtzman, 403 U.S. 602

(1971), the court held that although the first prong (non-

sectarian program) was met (Pet. App. A-7), the second

prong (primary effect) was not. The court concluded that

“the principal or primary effect of the aid sought by [Mr.

Witters] would be to advance religion” (Pet. App. A-10). It

reached that conclusion by focusing “on the particular aid

sought by the [petitioner]” since it was the “only transac-

tion presentiy before [the court]”—rather than on the vo-

cational rehabilitation program as a whole (Pet. App. A-8).

The court did not consider the third prong (excessive en-

tanglement) since it had “held that the aid sought by the

[petitioner] would violate the establishment clause be-

cause it would have the primary effect of advancing reli-

gion” (Pet. App. A-12).

The Washington Supreme Court then, in turn, re-

jected petitioner’s claim that his rights were infringed un-

der the Free Exercise Clause of the First Amendment (Pet.

App. A-14 to A-16), but the court did not address his equal

protection clause claim since its opinion was not based

upon the State Constitution (Pet. App. A-i6 — A-17).

SUMMARY OF ARGUMENT

The procedural history just described is the source of

several unusual features in this case. The first is the posi-

tion in which we find ourselves as counsel for the respon-

dent. In the typical establishment clause cases which have

reached this Court, the role of the state attorney general

has been to defend the constitutionality of the state stat-

ute or program under challenge. And that is certainly the

role we prefer.

Indeed, as seen from the procedural history, we have

tried from the beginning to have the petitioner’s claim de-

cided on the basis of the religion clauses of our State Con-

stitution, rather than the establishment clause. The reason

for this effort was that, at least in our view, these state

constitutional provisions afforded the simplest and surest

grounds for disposing of the petitioner’s claim. See, Weiss

v. Bruno, 82 Wn.2d 199, 509 P.2d 973 (1973). As noted by

the State Supreme Court in commenting on Weiss in the

opinion below, “* * * our state constitution requires a

far stricter separation of church and state than the federal

constitution * * *” (Pet. App. A-2).

This procedural history also explains why the record

in this case is much more sparse than in a typical estab-

lishment clause case. Under Article I, § 11 of our State

Constitution, which prohibits the application of public

money “* * * to any religious * * * instruction

* * *” there was only a need to focus upon a fact on

which all are agreed, viz., that the petitioner wants the

state to pay for his religious training, to fit him to pursue a

religious career. Under Weiss there was no necessity to

examine closely, if at all, the nature and operation of the

overal! program under which the state was to pay for that

training.

Now, however, the nature and operation of that pro-

gram become critical. And while the record tells us little

about that program, various statutes and regulations, espe-

cially on the federal level, tell us a great deal. Further, even

under a view of this Court’s establishment clause decisions

which accommodates as much as possible the interests of

religious education—a view which we share with the peti-

tioners and the Solicitor General—this particular program

presents insuperable problems when applied to the peti-

tioner.

_ Our disagreement with the briefs of the petitioner, the

Solicitor General, and other amici curiae,’ accordingly,

centers more on the relevance than on the accuracy of what

they say about this Court’s establishment clause decisions.

‘In this brief, we focus principally on the briefs of the petitioner

and the Solicitor General.

For those briefs have overlooked or obscured the decisive

factor in this case. They would make it appear that the

program under which the petitioner makes his claim is the

same, in all essentials, as the “GI Bill” or other federal

programs such as “Pell Grants.” Indeed, the court below

may have also had a similar belief. But in fact the program

is radically different from those federal programs; and it is

those differences which require affirmance of the court be-

low.®

We first examine those differences. The program in-

volved here is a federally assisted vocational rehabilitation

program, not a general scholarship or student aid program.

Thus the program here necessarily involves the fitting to-

gether of three sets of elements, viz., (1) the particular

skills and aptitudes of the specific individual, (2) the par-

ticular educational program which that individual wishes

to enter, and (3) the specific type of job the individual

wants. All three sets of elements must be evaluated by a

state official in order to determine whether a particular

type of job is likely to be available, whether that job fits

the particular individual, and whether the specific educa-

tional program, including a particular school, is the best

one for helping the individual attain that job.

All of these evaluations and judgments must be made

by the State before it spends money on a specific individ-

ual. Indeed, they are made on a continuing basis, i.e., an-

nually by the State in order to assure that the money is

being expended effectively.

A program such as the GI Bill, in contrast, requires

none of these sorts of governmental evaluations and judg-

ments. How the money wil] be expended is determined not

by the government, but rather “* * * only asa result of

numerous, private choices of individual” citizens. Mueller

*We thus submit that the court below was right, but for reasons

which it failed to articulate fully. This failure may be the source of the

concern, particularly on the part of the Solicitor General, over the effect

of the decision below on the GI Bill and Pell Grants as applied to

ministerial students. That concern, as we shall show, is misplaced. Un-

der our submission, those federal programs are in no jeopardy.

uv. Allen, 463 U.S. 388, 399 (1983). Under the GI Bill, or

any similar program, the government does not care

whether a particular job, or indeed any job at all, will be

available after college, or whether any particular school

will be best for a particular type of job. And whether the

individual’s skills and aptitudes fit with a particular course

of studies is the concern solely of the individual and the

school authorities, not the government. As long as the indi-

vidual can stay in an accredited school, the government

keeps paying until he finishes school or his benefits run

out.

To be sure, the government could provide a GI Bill

type of program for persons who are blind or otherwise

vocationally handicapped, and thereby avoid all the evalu-

ations and judgments of the sort involved here. It could

say: “What school you choose is none of our concern; and

as long as you stay in school, we’ll keep paying. Further,

what happens to you after school is none of our concern

either.”

Such a program would, however, undoubtedly be a

much more expensive program; and it certainly is not the

program in place in the State of Washington and before

the Court.

To show the types of evaluations and judgments

which the State must make, we will review the various

federal statutes which establish the conditions for federal

assistance for the program, and the federal regulations un-

der which it the program is operated. These statutes and

regulations clearly show the government involvement and

supervision in every step of the decision-making process, a

process in which government choices and private choices

are inextricably intertwined.

After our review of these statutes and regulations, we

will turn to the recent decisions of this Court which apply

the three-prong test established in Lemon v. Kurtzman,

403 U.S. at 612-613. Under those decisions, this intertwin-

ing of government and private choices which is inherent in

the program prevents that program from being used to

fund studies for the ministry. This is because of the second

and third prongs of that test, viz., the “effect” prong and

the “entanglement” prong.

Again, the contrast between a “GI Bill” type of pro-

gram and this vocational rehabilitation program illustrates

our point. Under the former type of program, there is no

danger of a “symbolic union” of government and religious

activities and no “imprimatur of state approval on reli-

gious sects and practices.” Widmar v. Vincent, 454 U.S.

263, 274 (1981), quoted in Grand Rapids School District v.

Ball, No. 83-990 (July 1, 1985), slip. op. at 16. Not so here,

however. Further, there is in a GI Bill type of program no

appreciable danger of entanglement between governmen-

tal and religious activities; here, however, such entangle-

ment “* * * inheres in the situation.” Lemon v.

Kurtzman, 403 U.S. at 617, quoted in Grand Rapids

School District, supra, slip. op. at 13. Far from just a dan-

ger of entanglement, we here have a certainty if the pro-

gram operates as it is designed. Nor is there any way,

administratively, to operate the program in a manner

which both avoids the entanglement and still complies

with the federal requirements.

The nature of the entanglement present here is ad-

mittedly somewhat different from that involved in Lemon

and in such cases as Aguilar v. Felton, No. 84-237 (July 1,

1985). In those cases the entanglement arose because of the

continuing supervision necessary to assure that the state

aid was not used for religious purposes, and that the sec-

ond prong of the Lemon test was thus not violated. Here,

the continuing state supervision serves a function which,

while different, makes the entanglement problem even

more aggravated than in those cases; its function is not to

keep religious and secular training separate, but to make

sure that a program of religious training is being carried

out in a manner, and with results, acceptable to the State.

We will then conclude with a word on the free exercise

issue. The decision of the court below is consistent with

the free exercise clause for the same reason that the deci-

sions of this Court such as Lemon, supra, and Grand

Rapids are consistent with that clause. That is, the free

exercise clause does not make constitutionally valid those

state programs and administrative actions which are in-

valid under the establishment clause. There is, we would

agree, a tension between the two clauses, a tension which

indeed is present in this case. That tension, however, does

not make the establishment clause any less applicable than

it was in Lemon, Grand Rapids, and similar decisions of

this Court.

ARGUMENT

The Establishment Clause Prevents a State From

Funding the Education of a Ministerial Student

Under a Vocational Rehabilitation Program

Which Requires That the State Evaluate and De-

termine the Suitability of the Individual Student

for a Religious Career, the Availability of Em-

ployment in That Career, and the Suitability of a

Specific Education Program for That Career.

A. Nature of the Vocational Rehabilitation Pro-

gram for the Blind.

The nature of the program here involved can perhaps

he best seen by comparing it with other types of educa-

tional programs found on the federal level, the most famil-

iar of which is the “GI Bill.” See, 38 U.S.C. §§ 1500-1521,

1601-1643, 1651-1693, and 1700-1766. The “GI Bill” and

other similar federal programs are fully described by the

Solicitor General in his amicus brief, pp. 2-4. As that de-

scription shows, such programs have two important char-

acteristics. First, they do not exclude ministerial students

from their scope. Secondly, the hand of the government is

not intrusive at all; on the contrary, a “hands off” policy on

the part of the government is embedded in these pro-

grams.’ The school which the student wishes to attend

‘Our basic submission in this case can be summarized in terms of

these two features: any program of educational aid which does not fully

incorporate a “hands off” policy cannot include aid for ministerial stud-

1es.

must be accredited by a recognized national or state ac-

crediting agency. Beyond that, all choices are those of the

student and the school. The government does not care, and

cannot control, which type of career the student might

seek, or indeed, whether the student has a career goal at

all. If the student wishes to take a degree in theology, sim-

ply because he is interested in theology, and then to be-

come a baseball player, rather than a minister, that is of no

concern to the government. Nor is it the government’s con-

cern whether the student is suited for a particular career,

be it in baseball, religion or anything else. If he happens to

choose to pursue a religious career, and attend a seminary

for the necessary training, his suitability for that career

will be determined by seminary or other church authori-

ties, not by the government. Further, if the student

chooses a school to obtain training in a career choice for

which there are no opportunities in the job market, that

too is of no concern to the government.

While a “GI Bill” type of program embodies a “hands

off” policy, the vocational rehabilitation program em-

bodies quite the opposite, viz., a “hands on” policy which

permeates the whole program. And this policy is traceable,

we suggest, to the federal statutes and regulations which

authorize federal financial assistance for the program and

establish the requirements which the state must meet in

order to obtain such assistance. We thus begin our exami-

nation of the nature of the program with a look at these

statutes and regulations.

The federal assistance is provided pursuant to the Re-

habilitation Act of 1973, 29 U.S.C. § 720, et seg. Section

720(a) provides:

“The purpose of this title is to authorize grants to

assist States to meet the current and future needs of

handicapped individuals, so that such individuals

may prepare for and engage in gainful employment to

the extent of their capabilities.”

The goal is gainful employment; but that employ-

ment, and the training necessary to attain that employ-

ment are to be matched to the needs and capabilities of the

individual. This matching function for 2 specific individua!

becomes even more prominent in subsequent statvory

provisions.

Thus, § 721 establishes the requirements for state

plans which are eligible for the federal assistance. Among

other requirements, the state plan must provide that an

“individualized written rehabilitation program * * *

will be developed for each handicapped individual

* * *” Section 721(a)(9). Section 722, in turn, spells out

what the individualized rehabilitation program must con-

tain, and how it is to be administered.

“* * * The Commissioner [of the federal Rehabili-

tation Services Administration] shall insure that the

individualized written rehabilitation program,

* * * in the case of each handicapped individual

is developed jointly by the csenttaall rehabilitation

counselor or coordinator and the handicapped indi-

vidual (or, in appropriate cases, his parents or guard-

ians), and that such programs meets the requirements

set forch in subsection (b) of this section. * * *” §

722(a). (Emphasis supplied)

Section 722(b) provides in pertinent part:

“Each individualized written rehabilitation program

shall be reviewed on an annual basis at which time

each such individual (or, in appropriate cases, his par-

ents or guardians) will be afforded an opportunity to

review such program and jointly redevelop and agree

to its terms. Such program shall include, but not be

limited to (1) a statement of long-range rehabilita-

tion goals for the individual and intermediate reha-

bilitation objectives related to the attainment of

such goals, (2) a statement of the specific vocational

rehabilitation services to be provided, (3) the pro-

jected date for the initiation and the anticip vend di:-

ration of each such service, (4) objective pe meet and

an evaluation procedure and schedule for determin-

ing whether such objectives and goals are being

achieved, * sai ro wee et supplied)

Section 722(c) provides in pertinent part:

“The Commissioner shall also insure that (1) in mak-

| any determination of ineligibility referred to in

ubsection (a) of this section, or in developing and

carrying out the individualized written rehabilita-

tion program required by section 101 [29 U.S.C. §

721] in the case of each handicapped individual, em-

phasis is placed upon the determination and

achievement of a vocational goal for such individual,

(2) a decision that such an individual is not capable of

achieving such a goal and thus not eligible for voca-

tional rehabilitation services provided with assistance

under this part [29 U.S.C. § § 720, et seq.], is made

only in full consultation with such individual (or, in

appropriate cases, his parents or guardians), and only

upon the certification, as an amendment to such writ-

ten program, or as a part of the specification of rea-

sons for an ineligibility determination, as appropriate,

that the preliminary diagnosis or evaluation of reha-

bilitation potential, as appropriate, has demonstrated

that such individual is not an capable of achieving

such a goal, * * *” (Emphasis supplied)

Under § 722(a)-(c), quoted above, joint agreement by

the individual client and his counselor is contemplated for

every step in the development and implementation of the

individualized rehabilitation plan. But if the client dis-

agrees with a decision of his counselor, a government offi-

cial, either state or federal, has the final word. See, §

722(d) entitled, “Review by Director of determinations by

rehabilitation counselors or coordinator; review of final de-

cision of Director by Commissioner.”

Under § 722 then, all decisions and determinations

ultimately rest with the government. But § 722 does assure

that the individual has input into the decision-making

process. As stated in the Senate Report on the Rehabilita-

tion Act of 1973:

“After hearing extensive testimony and reviewing the

data supplied to the Committee by the Department of

Health, icsation and Welfare, it became apparent

that the individual client was not being sufficiently

consulted on his own behalf in tailoring the rehabili-

tation program to his individual needs. This concern

led to the adoption in section 102 of the bill [29

U.S.C. § 722] of the formal written rehabilitation pro-

gram requirement for every individual who is served

under the vocational rehabilitation program.

66% * *

“It is the purpose of the Committee, in requiring an

individualized written rehabilitation pean to as-

sure that each handicapped individua! has an oppor-

tunity to participate in the decisionmaking regarding

services he is or is not to receive; to have a written

understanding that specifies the services to be pro-

vided and the objectives they are to achieve; to be

able to obtain information on the progress he is mak-

ing with regard to the objectives of the program; and

to rewrite jointly with the rehabilitation agency the

program when it is apparent that the stated objectives

cannot be achieved.* * *”S.Rep. No. 93-318, 93rd

Cong., Ist. Sess. 24 (1973). (Emphasis supplied)

One additional feature of the federal system should

be noted. The regulations require the state to provide two

types of diagnostic studies for the individual. The first is

called the “preliminary diagnostic study,” and the deter-

minations to be made under that study are the following:

“(1) Whether the individual has a physical or mental

disability which for that individual constitutes or

results in a substantial handicap to employment; and

“(2) Whether vocational rehabilitation services may

reasonably be expected to benefit the individual in

terms of employability, or whether an extended eval-

uation or vocational rehabilitation potential is neces-

sary to make this determination.” 34 C.F.R. §

361.32(a)(1)-(2). (Emphasis supplied)

At this juncture, the second determination is the im-

portant one. That determination requires, among other

things, consideration of “employability,” which, as defined

in the regulations,

“* * * refers to a determination that the provision

of vocational rehabilitation services is likely to enable

an individual to enter or retain employment consist-

ent with his capacities and abilities in the competi-

tive labor market; the practice of a profession;

self-employment; homemaking; farm or family work

(including work for which payment is in kind rather

than in cash); sheltered employment; homebound em-

ployment; or other gainful work.” 34 C.F.R. §

361.1(c)(2). (Emphasis supplied)

If this preliminary diagnostic study determines that

vocational rehabilitation services will benefit the individ-

ual in terms of “employability,” then a further diagnostic

study is to be made, termed a “thorough diagnostic study,”

which apparently serves as the basis for the individualized

rehabilitation plan required by 29 U.S.C. § 722. The scope

of that study

“* * * includes in all cases to the degree needed,

an appraisal of the individual’s personality, intelli-

gence level, educational achievement, work experi-

ence, personal, vocational, and social adjustment,

employment opportunities, and other pertinent data

helpful in determining the nature and scope of serv-

ices needed. The study also includes, as appropriate

for each individual, an appraisal of the individual’s

patterns of work behavior, ability to acquire occupa-

tional skill and capacity for successful job perform-

ance.” 34 C.F.R. ¢ 361.33(b). (Emphasis supplied)

Such is the federal system under which the state must

operate its program for the blind.’ How would the system

operate in the case of a disabled person, such as the peti-

tioner, who wishes to attend a training program for the

ministry? What sorts of evaluations must the counselor or

other state official make under the “preliminary” and sub-

sequent “thorough” diagnosis? And what sorts of decisions

must be made in formulating individualized written reha-

bilitation program?

Obviously, the individuals’ aptitudes for the ministry

must be evaluated. This evaluation would necessarily in-

clude the individual’s “personality, intelligence level, edu-

cational achievement, work experience, personal,

vocational, and social adjustment * * . *” insofar as they

might make him fit or unfit for the ministry. 34 C.F.R. §

361.33(b). And this would necessarily include an evalua-

*The implementing regulations on the state level follow the pattern

of individualized diagnosis and evaluation established in the federal

statutes and regulations. See Wash. Admin. Code ch. 67-25. These fed-

eral statutes and regulations, we should note, cover not just programs

for the blind, but all federally assisted programs under the Rehabilita-

tion Act of 1973, 29 U.S.C. § 720, et seg.

tion of what characteristics should be found in a successful

minister. Further, ar. evaluation must be made of “employ-

ment opportunities.” Jd. In other words, there must be an

evaluation of the market for ministers in the particular

denomination with which the individual wishes to be affili-

ated. (The possibility of no denominational affiliation, of

course, may exist; but that market too would have to be

evaluated if the individual wished to be such a minister.)

If these evaluations are positive, then the right train-

ing program must be determined, so that it can be incorpo-

rated into the individualized written rehabilitation

program required under § 722. This would require an eval-

uation of the training provided (e.g., at the Inland Empire

School of the Bible or Whitworth College) to assure that

the individual will be prepared for the particular type of

ministry which is his vocational goal. is the training at

these schools adequate? Is better training available else-

where? If so, where? And how is it better? These are the

sorts of questions the state must answer.’

Evaluations of this sort are not just likely, but indeed

cannot be avoided under the system we are dealing with

here. Yet, it is difficult to imagine evaluations which are

more at odds with the values embodied in the establish-

ment clause as construed by the decisions of this Court.

B. Under the Second Prong of the Lemon Test, the

Vocational Rehabilitation Program Cannot be

p tow to Fund the Training of Ministerial Stu-

ents.

While we believe the court below was correct in deny-

ing the petitioner relief om the basis of the second prong of

the Lemon test, viz., the “effect” prong, we differ with that

*The petitioner’s failure to comprehend the nature of the program

is strikingly shown by the following passage in his brief:

“The choices as to which school to attend and which career to

pursue are entirely up to the blind individual. No agency of the

state has the power to influence the choice. * * *” Pet. Br. at

page 20.

Both statements are absolutely incorrect.

court as to the proper approach which should be taken in

applying the prong.

As correctly pointed out by both the petitioner and

the Solicitor General, the court below focused solely on the

specific financial aid to the petitioner for funding his min-

isterial studies. It did not consider the nature of the overall

program under which that aid was to be provided. Pet. Br.

29-34, U.S. Br. 23-27. But these criticisms, though not

without force, should not change the result in this case. For

the nature of the overall program here involved requires

rejection, not acceptance, of the petitioner’s claim. To

show why this is so, we must first examine more closely the

second prong, as applied in cases subsequent to Lemon.

Though cast in terms of “principal or primary effect,”

Lemon, 403 U.S. at 612, this way of describing that prong

has become something of a misnomer. As noted by one

commentator:

“* * * (Whhile retaining the earlier label, the

Court has transformed it [the second prong] into a

requirement that any non-secular effect be remote,

indirect and incidental. This shift is significant, for

the remote-indirect-and-incidental standard plainly

compels a more searching inquiry, and comes closer to

the absolutist no-aid approach to the establishment

clause than the primary effect test did.” (Emphasis in

— Tribe, American Constitutional Law (1978),

p. ;

Thus, in Committee for Public Education v. Nyquist,

413 U.S. 756 (1973), the Court, in invalidating a state tui-

tion supplement program for private schools, declined to

determine whether the aid to parochial schools which re-

sulted from that program was “primary” or “secondary,”

rejecting the proposition that “such metaphysical judg-

ments are either possible or necessary * * *” 413 U.S.

756, 783-84, n. 39. As further stated in Nyquist:

“* * * ‘Our cases simply do not support the notion

that a law found to have a “primary” effect to pro-

mote some legitimate end under the State’s police

power is immune from further examination to ascer-

tain whether it also has the direct and immediate ef-

fect of advancing religion. * * *” Id.

But how does one distinguish a “direct and immediate

effect,” from an indirect, remote, and incidental effect? Are

such judgments any less “metaphysical” and any more

“possible” than judgments as to what is “primary” and

what is “secondary”?

Mueller v. Allen, 463 U.S. 388 (1983), we believe,

sheds light on these questions, and shows what is really at

the core of the second prong of the Lemon test. Mueller

involved a state program under which parents could de-

duct for state income tax purposes their expenditures for

tuition and other school costs. Though parents of parochial

school children were the primary beneficiaries of the pro-

gram, in terms of numbers, the program applied to all par-

ents of school children, whether the children were in

private or public schools. From the point of view of the

parents of parochial schoo! children who had enough in-

come to receive financial benefit from the tax deductions,

the program itself was hardly distinguishable from that

invalidated in Nyquist. Yet the court upheld it, as applied

to such parents, even while recognizing that this sort of aid

to the parents “* * * ultimately has an economic effect

comparable to that of aid given directly to the schools at-

tended by their children.” Mueller, 463 U.S. at 399.

The court went on to say:

“Where, as here, aid to parochial schools is available

only as a result of decisions of individual parents no

‘imprimatur of state approval’ * * * can be

deemed to have been conferred on any particular reli-

gion, or on religion generally.” /d.

Thus, one uf the important elements at the core of the

second prong is the element of symbolism. Will the pro-

gram in question be perceived as conferring any “imprima-

tur of state approval” on any particular religion or on

religion generally? If so, the effect of aiding religion will be

found to be direct and immediate, and thus violative of the

second prong, rather than indirect and incidental."

For a discussion of the importance of symbolism in applying the

second prong, see Tribe, op. cit., pp. 843-845. Thic importance has been

expressly recognized in the more recent decisions of this court, as shown

There are, to be sure, methods by which a government

can provide financial assistance for a religious education

while still avoiding the fatal symbolism. That financial as-

sistance can even be for ministerial studies. And in sug-

gesting otherwise, the court below erred. The GI Bill and

the system of tax deductions involved in Mueller are ex-

amples of such methods."

But under both of those methods the precise use of

the financial assistance is determined “* * * only asa

result of numerous, private choices of individual” citizens.

Mueller, 463 U.S. at 399. That factor, along with their

broad base of beneficiaries — who are determined without

regard to any criteria having to do with religion — removes

by Grand Rapids District, et al. v. Ball, No. 83-990 (July 1, 1985), slip.

op. 16-17;

“* * * As we stated in Larkin v. Grendel’s Den, Inc., 459 U.S.

116, 125-126 (1984): ‘[T]he mere appearance of a joint exercise of

legislative authority by Church and State provides a significant

symbolic benefit to religion in the minds of some by reason of the

power conferred.’ See also Widmar v. Vincent, 454 U.S. 263, 274

(1981) (finding effect ‘incidental’ and not ‘primary’ because it ‘does

not confer any imprimatur of state approval on religious sects or

practices’).

“It follows that an important concern of the effects test is whether

the symbolic union of church and state effected by the challenged

governmental action is sufficiently likely to be perceived by adher-

ents of the controlling denominations as an endorsement, and by

the nonadherents as a disapproval, of their individual religious

ageuscs.°* * *

“The difference in symbolic impact helps to explain the difference

between the cases. The symbolic connection of church and state in

the McCollum [v. Board of Education, 333 U.S. 203 (1948)] pro-

gram presented the students with a graphic symbol of the ‘concert

or union or dependency’ of church and state, see Zorach, [v. Clau-

son, 343 U.S. 306 (1952)] supra, at 312. This very symbolic union

was conspicuously absent in the Zorach program.” [footnote omit-

ted]

''So too are the financial aid systems for college students upheld in

Durham v. McCloud, 259 S.C. 409, 192 S.E.2d 202 (1972), app. dis-

missed 413 U.S. 902 (1973) and Americans United v. Blanton, 433

F.Supp. 97 (M.D. Tenn.) ajf'd per curiam, 434 U.S. 803 (1977).

from those two methods the fatal symbolism, and makes

the aid to religion indirect and incidental.'*

The vocational rehabilitation program involved here,

we agree, also has a broad base. This feature, which is

strongly emphasized by the petitioners and the Solicitor

General, certainly cuts in favor of the program’s constitu-

tionality. But unlike the GI Bill and the program involved

in Mueller, the program here requires government choices

at every step of the rehabilitation process. And this further

feature, we submit, overwhelms the effect of the first, and

brings about the forbidden symbolic union.

In short, the court below was wrong in stating flatly

and unqualifiedly: “It is not the role of the state to pay for

the religious education of future ministers;” (Pet. App. A-

10) this error, however, was not fatal to the court’s result.

For if the state takes on not only this role, but also the role

of determining whether a person should be a minister at

all, what his chances for success as a minister might be,

and what sort of training and what specific school are ap-

propriate for a particular type of ministry, then the state

has indeed taken on a forbidden role. The determinative

factor isthe “* * * cumulative impact of the entire rela-

tionship * * *” arising because of these roles. Lemon,

403 U.S. at 614. And these roles do not become permissible

simply because they are taken on as part of a broadly

based program of assistance to handicapped persons gen-

erally.

It is this intertwining of governmental decisionmak-

ing so closely with decisionmaking by church and school

authorities, combined with the fact of state aid for ministe-

‘Although our discussion has focused on the similarities between

the GI Bill and the program involved in Mueller, there are certainly

differences between these two types of programs. Benefits under the GI

Bill are, in a sense, “earned” by the veteran, and can be looked upon as

a type of deferred compensation, while the tax benefits in Mueller can-

not. In terms of symbolism, this makes the case for the validity of the

GI Bill, as applied to religious studies, even stronger. On the other hand,

the provision of aid for ministerial studies, which can occur under the

GI Bill, certainly raises, again in terms of symbolism, a more serious

question than would provision of aid for general tuition in a religiously

oriented school, as in Mueller.

er ON is a

Me es

rial studies, which forms the symbolic union. The program

at issue here makes this intertwining inevitable if the state

is to provide aid for such studies.

C. Under the Third Prong of the Lemon Test, the

Vocational Rehabilitation Program Cannot be

—— to Fund the Training of Ministerial Stu-

ents.

The third, or “excessive entanglement,” prong of the

Lemon test was not considered by the court below, which

found it “* * * ill suited to this case,” impossible to

apply because of the scanty record, and unnecessary to

apply because of the court’s conclusion under the second

prong (Pet. App. A-12).

We believe, however, that the third prong should be

considered and that it provides an additional ground for

affirming the decision of the court below. Because the

court below did not consider that prong, it thus did not

look closely at the overall nature of the program, as estab-

lished by the federal statutes and regulations. Had it fo-

cused on these statutes and regulations, however, the third

prong problem would have become obvious.

The court below was correct in noting that the factual

situation in Lemon was quite different from the factual

situation here (Pet. App. A-11 — A-12). This factual dif-

ference makes the role of the third prong here somewhat

different from its role in Lemon; but it no less important.

In Lemon, the relationship between the second and

third prongs was roughly the relationship between the pro-

verbial frying pan and the fire. In trying to separate out

sectarian instruction from the secular in order to avoid

funding the former and thereby avoid the second prong,

one runs up against the third prong; for this very effort in

marking the separation constitutes excessive entangle-

ment, at least in the context of elementary and secondary

schools. Compare, Roemer v. Board of Public Works, 426

U.S. 736 (1976) and Aguilar v. Felton, No. 84-237 (July 1,

1985). The second and third prongs together create a type

of “Catch-22,” to use the phrase of Mr. Justice Rehnquist’s

dissent in Aguilar, supra, slip ep. 1 (Rehnquist, J., dissent-

ing).

Here, however, there is no effort to separate out the

religious instruction from the secular; presumably all of

the instruction which the petitioner wishes to receive will

be religious in nature or orientation, since all of that in-

struction will be designed to train him for the ministry.

In this context, the second and third prongs each pro-

vide a different lens for examining the same factual situa-

tion;'’ and each emphasizes somewhat different

establishment clause constitutional values which are im-

paired by that factual situation. The second prong, with its

emphasis upon avoidance of any “symbolic union” of gov-

ernmental and religious functions, focuses upon the mes-

sage sent to the public. Will adherents perceive an

endorsement and nonadherents see disapproval of their in-

dividual religious choices? See Grand Rapids School Dist.

v. Ball, supra, slip. op. 16. The third prong focuses upon

the danger to the religious freedom of the adherents and

the institutions to which they adhere arising from the ex-

cessive administrative entanglement by the government.

The nature and degree of that administrative entan-

glement should, by now, be clear in this case; and we need

describe it no further. Instead, we merely note that it is,

like the entanglement in Lemon, one which arises from

“la] comprehensive, discriminating, and continuing state

surveillance * * *” 403 U.S. at 619.

In Lemon, the surveillance was primarily over the

teachers; here it is primarily over the student — though

certainly with one eye on the teachers to assure that they

are meeting the student’s needs as determined by the reha-

bilitation counselor. But that does not make it any less

comprehensive, discriminating, and continuing, nor any

less intrusive into areas of great religious sensitivity.

‘In this respect, this case is similar to Larkin v. Grendel's Den,

Inc., 459 U.S. 116 (1982), in which the Court invalidated a Massachu-

setts statute prohibiting the grant of a liquor license to an establish-

ment located within 500 feet of a church if the church objected. The

Court found this law invalid under both the second and third prongs.

See 459 U.S. at 126,127.

ee ee ee ee

fae. ee =

Is there any way to avoid this surveillance and intru-

sion? The only possibility for doing so which we can envi-

_ sion would be to adopt a “hands-off” policy similar to that

embodied in the GI Bill. Whether an individual should be

a minister, and what sort of training he should receive

would be left to the decisions of church and school authori-

ties, not the government. The problem, however, is that

there is no room for such a policy within the federal stat-

utes and regulations here involved. See pp. 10-16, supra.

Further, even if such a policy were legally possible, and

were adopted by the state agency administering the voca-

tional rehabilitation program, there is no assurance that it

could be successfully implemented on the lower levels, e.g.,

on the level of the individual counselor."

In short, the problem of administrative entanglement

is impossible of solution in any manner other than the one

we here urge: viz., not allowing the vocational rehabilita-

tion program to be used for the funding of ministerial

training at all.

II.

Denial of Funding for Ministerial Training Under

the Vocational Rehabilitation Program Does Not

Result in a Denial of Petitioner’s Rights Under

the Freedom of Religion Clause.

While the petitioner and the Solicitor General both

argue that the court below should be reversed on the estab-

lishment clause issue, they disagree as to what the next

step should be in the disposition of this case. The peti-

tioner urges the Court to go on to consider the free exercise

issue (Pet. Br. 40-49). The Solicitor General suggests that

the Court not do so, but instead leave that issue for the

court below to deal with on remand (U.S. Br. 27-29).

The solution to this problem will depend, to a large

extent, on how the establishment clause issue is resolved.

‘In this respect, we would then have both the “frying pan” and the

“fire,” as in Lemon and Aguilar.

If our submission on that issue is correct, the free

exercise issue is thereby disposed of as well. For the free

exercise clause cannot here validate a government program

or action that is otherwise invalid under the establishment

clause. There can be little doubt, for example, that such

decisions as Lemon, Nyquist, Grand Rapids, and Aguilar,

produce a severe practical restriction on the freedom of

choice for parents, especially poor parents, to follow their

religious convictions by sending their children to parochial

schools. But surely the free exercise clause is not thereby

violated. So too here. ,

If, however, the petitioner and the Solicitor General

are correct on the establishment clause issue, the problem

becomes less simple. If the religion clauses of our State

Constitution were not independent obstacles to granting

the petitioner the funding he wants, no free exercise issue

would then even arise. The free exercise clause comes into

play only where there is some prohibition against that

funding in a statute or a state constitutional provision. It is

clear that there are no such statutory prohibitions, state or

federal. We believe, however, that the prohibitions exist in

the religion clauses of the State Constitution, as discussed

at pp. 5-6, supra, and these are the source of the problem.'®

Let us be more specific: Should this Court determine

that the court below erred in finding a violation of the

establishment clause and remand this case to the court

below that court, we fully expect, would follow Weiss v.

Bruno, 82 Wn.2d 199, 509 P.2d 973 (1984). That is, it

would find a violation of the religion clauses of the State

Constitution which, as the same lower court noted in its

opinion in this case, “* * * requires a far stricter sepa-

ration of church and state than the federal constitution

* * *” (Pet. App. A-2). In turn, the petitioner, in those

‘The petitioner seems to suggest that the source of the problem is

an arbitrary bureaucracy which “meddle[d]” in questions that are none

of its businesses. Pet. Br. 43. We can only recommend that he read once

again Weiss v. Bruno, 82 Wn.2d 199, 509 P.2d 973 (1984), and the com-

ment on that case in the opinion below. (Pet. App. A-2).

proceedings on remand, would inevitably raise once again

the free exercise issue, and the court below would be

squarely faced with it. A ruling by this Court on that issue

would thus facilitate a final disposition of this case, and

thereby obviate the need for returning to this Court again.

For this reason, while recognizing the force of the So-

licitor General’s suggestion that the free exercise issue not

be considered, we urge the Court to resolve that issue as

well if it resolves the establishment clause issue in favor of

the petitioner. Accordingly, some additional discussion of

the free exercise issue is appropriate.

The free exercise clause would, of course, be violated

by an actual prohibition of religious schools; but govern-

mental inability to prohibit is far different from a govern-

mental duty to fund. As stated in Harris v. McRae, 448

U.S. 297 (1980), in upholding the validity of the “Hyde

Amendment,” which prohibited payment of federal medi-

cal aid funds for certain types of abortions:

“Although the liberty protected by the Due Process

Clause affords protection against unwarranted gov-

ernment interference with freedom of choice in the

context of certain personal decisions, it does not con-

fer an entitlement to such funds as may be necessary

to realize all the advantages of that freedom. To hold

otherwise would mark a drastic change in our under-

standing of the Constitution. It cannot be that be-

cause government may not prohibit the use of

contraceptives, Griswold v. Connecticut, 381 U.S.

479, * * * or prevent parents from sending their

child to a private school, Raves v. Society of Sisters,

268 U.S. 510, * * * government, therefore, has an

affirmative constitutional obligation to ensure that all

persons have the financial resources to obtain contra-

ceptives or send their children to private schools. To

translate the limitation on governmental power im-

licit in the Due Process Clause into an affirmative

unding obligation would require Congress to subsi-

dize the medically necessary abortion of an indigent

woman even if Congress had not enacted a Medicaid

rogram to subsidize other medically necessary serv-

ices. Nothing in the Due Process Clause supports such

an extraordinary result. [Footnote omitted] Whether

freedom of choice that is constitutionally protected

warrants federal subsidization is a question for Con-

gress to answer, not a matter of constitutional entitle-

ment. * * *” 448 U.S. at 317-318.

Here too, the petitioner would translate a limitation

on government power into an affirmative funding obliga-

tion and effectively deny to the state any room for choice

in determining the limits of what it will fund."

This is not to suggest that the free exercise clause has

no role at all to play in funding programs such as that

involved here. If the program.in Mueller had excluded

from its scope tuition payments which parents made to

Catholic schools, while allowing the deduction of tuition

payments to all other types of parochial schools, that

surely would have violated the free exercise clause. So, too,

if the GI Bill permitted payment of tuition for ali seminary

students except Lutherans or Episcopalians. But there is,

of course, no similar situation here.

Nor is the situation here similar to that in Widmar v.

Vincent, 454 U.S. 263 (1982) or McDaniel v. Patty, 435

U.S. 618 (1978). In Widmar, a group of students were he-

ing denied the right of free speech on public university

facilities because of the religious content of that speech,

while all other groups — over 100 in all — were granted

free access to those facilities. Conversely, however, Mr.

Witters’ right to free speech, including religious speech, is

in no way involved here.

In McDaniel, a minister was denied the right to hold

public office, simply because he was a minister. But surely

the right to hold public office, along with all other citizens,

is much more fundamental than the right to have the pub-

lic pay for one’s special education.

‘°The position of the petitioner seems to be that whatever the state

may fund, consistent with the establishment clause, it must fund — in

order to avoid a violation of the free exercise clause. More generally, the

free exercise clause would prohibit a state from being more strict in the

matter of separation of church and state than is required by the estab-

lishment clause. We believe this position is entirely too rigid.

CONCLUSION

For the reasons given above, the decision below

should be affirmed. If it is not affirmed, the free exercise

issue should be resolved in favor of respondent and the

case then remanded to the Washington Supreme Court for

further proceedings.

Respectfully submitted,

KENNETH QO. EIKENBERRY

Attorney General

Puitie H. AUSTIN

Senior Deputy Attorney General

TimoTHy R. MALONE

Assistant Attorney General

Davin R. MINIKEL

Assistant Attorney General

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A-1

APPENDIX A

29 U.S.C. §§ 720-722

§ 720. Federal grants

(a) Congressional declaration of purpose. The

purpose of this title is to authorize grants to assist States

to meet the current and future needs of handicapped indi-

viduals, so that such individuals may prepare for and en-

gage in gainful employment to the extent of their

capabilities.

§ 721. State Plans

(a) Three year plan; annual revisions; general

and specific requirements. In order to be eligible to

participate in programs under this title, a State shall sub-

mit to the Commissioner a State plan for vocational reha-

bilitation services for a three-year period and, upon

request of the Commissioner, shall make such annual revi-

sions in the plan as may be necessary. Each such plan

shall—

(9) Individualized written rehabilitation pro-

gram.

provide that (A) an individualized written rehabili-

tation program meeting the requirements of sec-

tion 102 [29 USC § 722] will be developed for each

handicapped individual eligible for vocational re-

habilitation services under this Act, (B) such serv-

ices will be provided under the plan in accordance

with such program, and (C) records of the charac-

teristics of each applicant will be kept specifying,

as to those individuals who apply for services un-

der this title and are determined not to be eligible

therefor, the reasons for such determinations in

such detail as required by the Commissioner in or-

der for him to analyze and evaluate annually the

reasons for and numbers of such ineligibility deter-

minations as part of his responsibilities under sec-

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tion 13 [29 USC § 712], and that the State agency

will at least annually categorize and analyze such

reasons and numbers and report this information

to the Commissioner and will, not later than 12

months after each such determination, review each

such ineligibility determination in accordance with

the criteria set forth in section 102 [29 USC § 722];

§ 722. Individualized written rehabilitation pro-

gram

(a) Joint development by counselor or coordina-

tor and handicapped individual; goods and serv-

ices for handicapped individual; terms and

conditions, rights and remedies. The Commissioner

shall insure that the individualized written rehabilitation

program, or the specification of reasons for a determina-

tion of ineligibility prior to initiation of such program

based on preliminary diagnosis, required by section

101(a)(9) [29 USC § 721(a)(9)] in the case of each handi-

capped individual is developed jointly by the vocational

rehabilitation counselor or coordinator and the handi-

capped individual (or, in appropriate cases, his parents or

guardians), and that such programs meets the require-

ments set forth in subsection (b) of this sectien. Such writ-

ten program shall set forth the terms and conditions, as

well as the rights and remedies, under which goods and

services will be provided to the individual, and, as appro-

priate, such specification of reasons for such an ineligibil-

ity determination shall set forth the rights and remedies,

including recourse to the process set forth in subsection

(b)(5) of this section, available to the individual in ques-

tion.

(b) Annual review; joint redevelopment and

agreement of terms; scope of program. Each indi-

vidualized written rehabilitation program shall be re-

viewed on an annual basis at which time each such

individual (or, in appropriate cases, his parents or guard-

ians) will be afforded an opportunity to review such pro-

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gram and jointly redevelop and agree to its terms. Such

program shall include, but not be limited to (1) a state-

ment of long-range rehabilitation goals for the individual

and intermediate rehabilitation objectives related to the

attainment of such goals, (2) a statement of the specific

vocational rehabilitation services to be provided, (3) the

projected date for the initiation and the anticipated dura-

tion of each such service, (4) objective criteria and an eval-

uation procedure and schedule for determining whether

such objectives and goals are being achieved, and, (5)

where appropriate, a detailed explanation of the availabil-

ity of a client assistance project established iu such area

pursuant to section 112 [29 USC § 732].

goal; decision respecting potential and capability

of achievement; annual review of decision. The

Commissioner shall also insure that (1) in maxing any de-

termination of ineligibility referred to in subsection (a) of

this section, or in developing and carrying out the individ-

ualized written rehabilitation program required by section

101 [29 USC § 721] in the case of each handicapped indi-

vidual, emphasis is placed upon the determination and

achievement of a vocational goal for such individual, (2) a

decision that such an individual is not capable of achieving

such a goal and thus not eligible for vocational rehabilita-

tion services provided with assistance under this part [29

USC §§ 720 et seq.], is made only in ful! consultation with

such individual (or, in appropriate cases, his parents or

guardians), and only upon the certification, as an amend-

ment to such written program, or as a part of the specifica-

tion of reasons for an ineligibility determination, as

appropriate, that the preliminary diagnosis or evaluation

of rehabilitation potential, as appropriate, has demon-

strated beyond any reasonable doubt that such individual

is not then capable of achieving such a goal, and (3) any

such decision, as an amendment to such written program,

shall be reviewed at least annually in accordance with the

procedure and criteria established in this section.

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(d) Review by Director of determinations by re-

habilitation counselor or coordinator; review

of final decision of Director by Commissioner.

(1) The Director of any designated State unit shall

establish procedures for the review of determinations

made by the rehabilitation counselor or coordinator

under this section, upon the request of a handicapped

individual (or, in appropriate cases, his parents or

guardians). Such procedures shall include a require-

ment that the final decision concerning the review of

any such determination be made in writing by the

Director. The Director may not delegate his responsi-

bility to make any such final decision to any other

officer or employee of the designated State unit.

(2) Any handicapped individual (or, in appropriate

cases, his parent or guardian) who is not satisfied with

the final decision made under paragraph (1) by the

Director of the designated State unit may request the

Commissioner to review such decision. Upon such re-

quest the Commissioner shall conduct such a review

and shall make recommendations to the Director as to

the appropriate disposition of the matter. The Com-

missioner may not delegate his responsibilities under

this paragraph to any officer of the Department of

Health, Education, and Weifare who is employed at a

position below that of an Assistant Secretary.

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APPENDIX B

RCW 74.18.130

RCW 74.18.1300 ,vcational rehabilitation—Eligi-

bility. The department shall provide a program of voca-

tional rehabilitation to assist blind persons to overcome

vocational handicaps and to develop skills necessary for

self-support and self-care. Applicants eligible for voca-

tional rehabilitation services shall be persons who are

blind as defined in RCW 74.18.020 and who also (1) have

no vision or limited vision which constitutes or results in a

substantial handicap to employment and (2) can reasona-

bly be expected to benefit from vocational rehabilitation

services in terms of employability.

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APPENDIX C

34 CFR §§ 361.32, 361.33,

361.39, 361.40 and 361.41

§ 361.32 Evaluation of vocational rehabilitation

potential: Preliminary diagnostic study.

(a) Basic conditions. The State plan must assure that,

in order to determine whether any individual is eligible for

vocational rehabilitation services, there is a preliminary

diagnostic study to determine:

(1) Whether the individual has a physical or mental dis-

ability which for that individual constitutes or results in a

substantial handicap to employment; and

(2) Whether vocational rehabilitation services may rea-

sonably be expected to benefit the individual in terms of

employability, or whether an extended evaluation of voca-

tional rehabilitation potential is necessary to make this

determination.

(b) Scope of diagnostic study. The State plan must as-

sure that the preliminary diagnostic study includes exami-

nations and diagnostic studies to make the determinations

specified in paragraph (a) of this section. In all cases, the

evaluation places primary emphasis upon determining the

individual’s potential for achieving a vocational goal.

sure that the preliminary diagnostic study includes an ap-

praisal of the current general health status of the

individual based, to the maximum extent ssible, on

available medical information. The State p.. must fur-

ther assure that in all cases of mental or emotional disor-

der, an examination is provided by a physician skilled in

the diagnosis and treatment of such disorders, or by, a psy-

chologist licensed or certified in accordance with State

laws and regulations, in those States where laws and regu-

lations pertaining to the practice of psychology have been

established.

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§ 361.33 Evaluation of vocational rehabilitation

potential: Thorough diagnostic study.

(a) General provision. The State plan must assure that,

as appropriate in each case, when an individual’s eligibility

for vocational rehabilitation services has been determined,

there is a thorough diagnostic study to determine the nat-

ure and scope of services needed by the individual. This

study consists of a comprehensive evaluation of pertinent

medical, psychological, vocational, educational, and other

factors relating to the individual’s handicap to employ-

ment and rehabilitation needs.

(b) Scope of thorough diagnostic study. The thorough

diagnostic study includes in all cases to the degree needed,

an appraisal of the individual’s personality, intelligence

level, educational achievement, work experience, personal,

vocational, and social adjustment, employment opportuni-

ties, and other pertinent data helpful in determining the

nature and scope of services needed. The study also in-

cludes, as appropriate for each individual, an appraisal of

the individual’s patterns of work behavior, ability to ac-

quire occupational skill and capacity for successful job per-

formance.

§ 361.39 The case record for the individual.

The State Plan must assure that the designated State

unit maintains for each applicant for, and recipient of, vo-

cational rehabilitation services a case record which in-

cludes, to the extent pertinent, the following information:

(a) Documentation concerning the preliminary diagnos-

tic study supporting the determination of eligibility, the

need for an extended evaluation of vocational rehabilita-

tion potential, and, as appropriate, documentation con-

cerning the thorough diagnostic study supporting the

nature and scope of vocational rehabilitation services to be

provided;

(b) In the case of an individual who has applied for vo-

cational rehabilitation services and has been determined to

be ineligible, documentation specifying the reasons for the

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ineligibility determination, and noting a review of the inel-

igibility determination carried out not later than twelve

months after the determina’ion was made;

the handicapped individual is a severely handicapped indi-

vidual;

(d) Documentation as to periodic assessment of the in-

dividual during an extended evaluation of vocational reha-

bilitation potential;

(e) An individualized written rehabilitation program as

developed under § 361.40 and § 361.41 and any amend-

ments to the program;

(f) In the event that physical and mental restoration

services are provided, documentation supporting the de-

termination that the clinical status of the handicapped in-

dividual is stable or slowly progressive unless the

individual is being provided an extended evaluation of re-

habilitation potential;

(g) Documentation supporting any decision to provide

services to family members;

(h) Documentation relating to the participation by the

handicapped individual in the cost of any vocational reha-

bilitation services if the State unit elects to condition the

provision of services on the financial need of the individ-

ual;

(i) Documentation relating to the eligibility of the indi-

vidual for any similar benefits, and the use of any similar

benefits;

(j) Documentation that the individual has been advised

of the confidentiality of all information pertaining to his

case, and documentation and other material concerning

any information released about the handicapped individ-

ual with his or her written consent;

(k) Documentation as to the reason for closing the case

including the individual’s employment status and, if deter-

mined to be rehabilitated, the basis on which the employ-

ment was determined to be suitable;

(1) Documentation of any plans to provide post-employ-

ment services after the employment objective has been

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achieved, the basis on which these plans were developed,

and a description of the services provided and the out-

comes achieved;

(m) Documentation concerning any action and decision

involving the handicapped individual’s request for an ad-

ministrative review of agency action or fair hearing under

§ 361.48; and

(n) In the case of an individual who has been provided

vocational rehabilitation services under an individualized

written program but who has been determined after the

initiation of these services to: be no longer capable of

achieving a vocational goal, documentation of any reviews

of this determination in accordance with § 361.40(d).

§ 361.40 The individualized written rehabiliation

program: Procedures.

(a) General Provisions. The State plan must assure that

an individualized written rehabilitation program is initi-

ated and periodically updated for each eligible individual

and for each individual being provided services under an

extended evaluation to determine rehabilitation potential.

The State plan must also assure that vocational rehabilita-

tion services are provided in accordance with the written

program. The individualized written rehabilitation pro-

gram must be developed jointly by the designated State

unit staff member and the handicapped individual or, as

appropriate, his or her parent, guardian or other represent-

ative. The State unit must provide a copy of the written

program, and any amendments, to the handicapped indi-

vidual or, as appropriate, his or her parent, guardian, or

other representative and must advise each handicapped

individual, or his or her representative of all State unit

procedures and requirements affecting the development

and review of individualized written rehabilitation pro-

grams.

(b) Initiation of program. The individualized written

rehabilitation program must be initiated after certification

of eligibility under § 361.35(a) or certification for extended

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evaluation to determine rehabilitation potential under §

361.35(b).

ized written program will be reviewed as often as necessary

but at least on an annual basis. Each handicapped individ-

ual, or, as appropriate, his or her parent, guardian on other

representative must be given an opportunity to review the

program and, if necessary, jointly redevelop and agree to

its terms.

(d) Review of ineligibility determination. The State

plan must assure that if services are to be terminated un-

der a written program because of a determination that the

handicapped individual is not capable of achieving a voca-

tional goal and is therefore no longer eligible, or if in the

case of a handicapped individual who has been provided

services under an extended evaluation of vocational reha-

bilitation potential, services are to be terminated because

of a determination that the individual cannot be deter-

mined to be eligible, the following conditions and proce-

dures will be met or carried out.

(1) This decision is made only with the full participa-

tion of the individual, or, as appropriate, his or her parent,

guardian, or other representative, unless the individual has

refused to participate, the individual is no longer present

in the State or his or her whereabouts are unknown, or his

or her medical condition is rapidly progressive or terminal.

When the full participation of the individual or a repre-

sentative of the individual has been secured in making the

decision, the views of the individual are recorded in the

individualized written rehabilitation program;

(2) The rationale for the ineligibility decision is re-

corded as an amendment to the individualized written re-

habilitation program certifying that the provision of

vocational rehabilitation services has demonstrated that

the individual is not capable of achieving a vocational goal,

and a certification of ineligibility under § 361.35(c) is then

executed; and

(3) There will be a periodic review, at least annually, of

the ineligibility decision in which the individual is given

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opportunity for full consultation in the reconsideration of

the decision, except in situations where a periodic review

would be precluded because the individual has refused

services or has refused a periodic review, the individual is

no longer present in the State, his or her whereabouts are

unknown, or his or her medical condition is rapidly pro-

gressive or terminal. The first review of the ineligibility

decision is initiated by the State unit. Any subsequent re-

views, however, are undertaken at the request of the indi-

vidual.

§ 361.41 The individualized written rehabilita-

tion program: Content.

(a) Scope of content. The State plan must assure that

the individualized written rehabilitation program places

primary emphasis on the determination and achievement

of a vocational goal, and as appropriate includes, but is not

necessarily limited to, statements concerning:

(1) The basis on which the determination of eligibility

has been made, or the basis on which a determination has

been made that an extended evaluation of vocational reha-

bilitation potential is necessary to make a determination

of eligibility;

(2) The long-range and intermediate rehabilitation ob-

jectives established for the individual:

(3) The determination of the specific vocational reha-

bilitation services to be provided in order to achieve the

established rehabilitation objectives;

(4) The projected date for the initiation of each voca-

tional rehabilitaion service, and the anticipated duration

of each service;

(5) A procedure and schedule for periodic review and

evaluation of progress toward achieving rehabilitation ob-

jectives based upon objective criteria, and a record of these

reviews and evaluations;

(6) The v'ews of the handicapped individual, or, as ap-

propriate, his or her parent, guardian, or other representa-

tive, concerning his or her goals and objectives and the

vocational rehabilitation services being provided;

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(7) The terms and conditions for the provision of voca-

tional rehabilitation services including responsibilities of

the handicapped individual in implementing the individu-

alized written rehabilitation program, the extent of client

participation in the cost of services if any, the extent to

which the individual is eligible for similar benefits under

any other programs; and the extent to which these similar

benefits have been used;

(8) An assurance that the handicapped individual has

been informed of his or her rights and the means by which

he or she may express and seek remedy for any dissatisfac-

tion, including the opportunity for an administrative re-

view of State unit action, fair hearing or review by the

Secretary under § 361.48;

(9) Where appropriate, assurance that the handicapped

individual has been provided a detailed explanation of the

availability of the resources within a client assistance pro-

ject established under Section 112 of the Act;

(10) The basis on which the individual has been deter-

mined to be rehabilitated under § 361.43; and

(11) Any plans for the provision of post-employment

services after a suitable employment goal has been

achieved and the basis on which such plans are developed.

(b) Coordination with education agencies. When serv-

ices are being provided to a handicapped individual who is

also eligible for services under the Education for Handi-

capped Children Act, the individualized written rehabilita-

tion program is prepared in coordination with the

appropriate education agency and includes a summary of

relevant elements of the individualized education program

for that individual.

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.