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

«Supreme Court, US.

FILED

JUN @ 1985

()

No. 84-1070

AREXANDER L. STEVAS

Iu the Supreme Court of the

OCTOBER TERM, 1984

LARRY WITTERS, PETITIONER

Vv.

WASHINGTON DEPARTMENT OF SERVICES

FOR THE BLIND

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF WASHINGTON

BRIEF FOR THE UNITED STATES AS

AMICUS CURIAE SUPPORTING PETITIONER

CHARLES FRIED

Acting Solicitor General

RICHARD K. WILLARD

Acting Assistant Attorney General

MICHAEL W. McCONNELL

Assistant to the Solicitor General

ANTHONY J. STEIN MEYER

MICHAEL JAY SINGER

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

The United States will address the following ques-

tion:

Whether the Establishment Clause requires a State

to deny financial assistance for the education of a

blind person who is otherwise eligible for such assis-

tance under the State’s vocational rehabilitation pro-

gram solely because the handicapped applicant in-

tends to use that assistance to study for a church-

oriented career.

(I)

TABLE OF CONTENTS

I cscanneucccanenenacsccecees

Argument:

The Establishment Clause does not prevent a state

from providing vocational rehabilitation benefits to

a blind college student eligible under religiously

neutral criteria where the student intends to use

those benefits to pursue a church-oriented career...

A. The history surrounding the enactment and

early interpretation of the Establishment Clause

demonstrates that neutral assistance to educa-

tion is not unconstitutional 00000000000.

B. When, for secular purposes, the government

provides financial aid to individuals on a facially

neutral basis, the individuals’ use of that aid

for religious ends or in religious contexts does

not co. *titute an establishment ..........0000000000....

C. The court below erred in its “primary effects”

analysis by focusing on the religious use in isola-

tion rather than on the full context of the pro-

D. This Court need not, and should not, consider

the remaining issues in the case

SES TT

TABLE OF AUTHORITIES

Cases:

American ‘"nited for the Separation of Church &

State v. Blanton, 433 F. Supp. 97, aff’d, 434 U.S.

cs snsnsmtnecmsecs

Bender v. Williamsport Area School District, cert.

granted, No. 84-773 (Feb. 19, 1985) —....0....

(III)

11

12

16

IV

Cases—Continued : Page

Board of Education v. Allen, 392 U.S. 236 ............ 17, 26

Board of Trustees v. McCreary, No. 84-277 (Mar.

Riltiad TIED "<i sieliie ch cchcpsebsitbiadadadennaiielinndandenasaaninateteageiiebeieinbiien 28

Bob Jones University v. Johnson, 396 F. Supp.

Sa, ra: I ce 23

Committee for Public Education & Religious Lib-

erty Vv. Nyquist, 413 U.S. 756 ...................-.---........ 17, 22

Committee for Public Education & Religious Lib-

CC S 17

Everson V. Board of Education, 330 U.S. 1........ 12, 16, 17,

25, 26-27

Gillette v. United States, 401 U.S. 487 .................. 15

Grove City College v. Bell, No. 82-792 (Feb. 28,

a Pe eM FORA hs Pe ERE em 23

Hunt v. MeNair, 418 U.S. 734 ...-.................... dabis 25, 26

Larson V. Valente, 456 U.S. 228 ............................. 14

Lemon V. Kurtzman, 403 U.S. 602 —.................. 7,11, 17, 23

Lynch v. Donnelly, No. 82-1256 (Mar. 5, 1984) ..12, 13, 15,

18, 25

McDaniel v. Paty, 435 U.S. 618 _.................. 15, 16, 25, 28

Mueller v. Allen, 463 U.S. 388 .................................. passim

NLRB v. Catholic Bishop of Chicago, 440 U.S.

(I 55525 csctesedsentnnncnesabagadehuainadlenidausiiiesnedintiae 15

Pierce v. Society of Sisters, 268 U.S. 510 —............ 19

Roemer Vv. Board of Public Works, 426 U.S. 736.... 16

Sherbert v. Verner, 374 U.S. 398 ...................00....... 28

Terrett Vv. Taylor, 13 U.S. (9 Cranch) 48 ............... 13

Tilton Vv. Richardson, 403 U.S. 672 ........0000. 20000... 17, 25, 26

Wallace v. Jaffree, No. 83-812 (June 4, 1985) ........ 23

Walz v. Tax Commission, 397 U.S. 664....15, 17, 18, 19, 26

Widmar v. Vincent, 454 U.S. 263 _................ 15, 16, 26, 28

Wisconsin V. Yoder, 406 U.S. 205 0.00 .. 15

Wolman V. Essex, 342 F. Supp. 399, aff'd, 409 U.S.

RPT at ches ee ee nD a Se Ea 22

Wolman v. Walter, 483 U.S. 229 .............0000000. ee... 22

Zorach Vv. Clauson, 343 U.S. 306 .............................. 15

Constitution, statutes and regulations:

U.S. Const. :

a aa 9,11, 13

V

Constitution, statutes and regulations—Continued : Page

Free Evercise Clause .........................-.....-.. 8, 28

EER SE Ne 15, 22

Amend. XIV (Equal Protection Clause) ....2, 8, 28, 29

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

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IIIS dso icc ca csaditccteitsigaiannsibeahienilahlademensidietés

EES SS a OR Re MO

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a ocedanlanibunaeudies

SEE TN a oC eR ra sania

EC SA cn eae EOE

GE eet a a a

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SERINE Sea ee ee ee

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Northwest Ordinance, ch. VIII, art. III, 1 Stat. 52..

Wash. Rev. Code Ann.:

art. 1, § 11 (1966)

i

§ 74.16.181 (1982) revised and recodified in

pertinent part as §§ 74.18.130, 74.18.140

EERIE De uceee SS a 5, 7, 11

34 C.F.R.:

Pt. 76:

Section 76.532(a) (1) 0. 21

Section 76.532 (a) (4)

SSR aw

os

bh oo

a:

—

34

VI

Constitution, statutes and regulations—Continued : Page

Pt. 668:

a ED ccnsctcinernennctnsctnenenemanies 4

RE Rl <i aE gi nae Sen ON re 4

ee aeldaheelibieapiaeiitnienreraiaiets 4

I rr LT ae odenaieiianiienh 4

RS a a asenseveminunnenieaanin 4

Se Ee nner eRe ORES 4

a i LT diabetes 3

a ke ai 3,4

es cuulametieinteiueeaabennssine 3

Miscellaneous:

1 Annals of Cong. 731 (J. Gales ed. 1789) ............ 12, 18

C. Antieau, A. Downey & E. Roberts, Freedom

From Federal Establishment (1964) —................ 13, 14

R. Cord, Separation of Church and State (1982) .... 13

Department of Veterans Benefits Information

IS A nt eee Loe 3

49 Fed. Reg. 1275-1277 (1984) -............................... 4

M. Malbin, Religion and Politics (1978) —.............. 13

Program Guide (July 2, 1980) -.............................. 3

E. Reisner, Nationalism ad Education Since 1789

RRS SS ES ES en a 14

S. Rep. 376, 32d Cong., Ist Sess. (1853) —......... 13

3 J. Story, Commentaries on the Constitution of

Te een 13

Iu the Supreme Court of the United States

OCTOBER TERM, 1984

No. 84-1070

LARRY WITTERS, PETITIONER

v.

WASHINGTON DEPARTMENT OF SERVICES

FOR THE BLIND

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF WASHINGTON

BRIEF FUR THE UNITED STATES AS

AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

This case involves the Washington State Depart-

ment of Services for the Blind’s denial of vocational

rehabilitation benefits to petitioner Larry Witters, a

blind person who is otherwise eligible to receive such

benefits from the State, solely because of his inten-

tion to use those benefits to pursue a college-level

curriculum that would prepare him for a church-

oriented career. The Department’s decision was up-

held by the Supreme Court of the State of Washing-

ton on the ground that to grant petitioner benefits

under these circumstances would violate the Estab-

(1)

2

lishment Clause of the First Amendment, as applied

to the states through the Fourteenth Amendment.

Noting that petitioner is not “pursuing a secular

course of study with the personal objective of becom-

ing a minister,” but that the curriculum for his

course of study “includes classes in Old and New

Testament studies and church administration” (Pet.

App. A10), the court held that “[i]t is not the role

of the state to pay for the religious education of fu-

ture ministers” (ibid.).

The interest of the United States in the matter

arises because under several major federal programs

of long standing, administered by the Veterans’ Ad-

ministration and the Department of Education, the

federal government provides financial assistance to

students pursuing higher education in preparation

for church-oriented careers. The position of the

United States, as expressed by Congress in the stat-

ute establishing one of these programs, is that the

proper governmental criterion is whether the course

of study will assist the beneficiary “in attaining an

educational, professional, or vocational objective at

any educational institution * * * selected by the

[beneficiary], which will accept and retain the [ben-

eficiary] as a student or trainee in any field or branch

of knowledge which such institution finds the [bene-

ficiary] qualified to undertake or pursue.” 38 U.S.C.

1670 (emphasis added). It is not the role of the gov-

ernment, under these programs, to condition the

availability of these benefits on the student’s selec-

tion of a secular career.

The Veterans’ Administration (VA) administers a

widely-known educational assistance program, popu-

larly called the “GI Bill,” and similar programs un-

der which the government provides directly to quali-

3

fied veterans or dependents a sum of money to be

used at their discretion for subsistence, tuition, and

other costs of obtaining higher education. See 38

U.S.C. 1500-1521, 1601-1643, 1651-1693, and 1700-

1766." In each of these programs, the beneficiary is

permitted to select his own school and course of

study from among courses and institutions approved

for VA purposes by state approving agencies. See 38

U.S.C. 1770-1780; 38 C.F.R. 21.4200-21.4280. The

VA is prohibited by law from exercising any super-

vision or control over either the educational institu-

tions or the state approving agencies involved. 38

U.S.C. 1782. The Veterans’ Administration has long

provided educational benefits to students pursuing a

recognized educational objective that may lead to the

ministry. See, e.g., Department of Veterans Benefits

Information Bulletin, IB 7-76, at 5 (1954); Program

Guide § M-25, at 21-1 (July 2, 1980).

The Department of Education also administers ma-

jor programs under which higher education students

receive grants or loans to defray the costs of educa-

tion at institutions of their choice, in preparation for

careers of their choice. See 20 U.S.C. 1070a, 34

C.F.R. Pt. 690 (Pell Grant program); 20 U.S.C.

‘In addition, the VA administers a program under 38

U.S.C. 1500-1521, which provides support to veterans with

substantial service-related disabilities, including blindness, by

financing training, employment, and medical and sociological

services. Under this program, unlike those discussed in text,

the VA may itself select and approve the training facility, and

it pays the costs of tuition, fees, books, and other related items

directly to the facility ; subsistence payments are made directly

to the veteran. As under the other programs, however, bene-

fits under 38 U.S.C. 1500-1521 may be used for study in

religiously-affiliated institutions and for courses of study

leading to church-oriented careers.

4

1070b et seg., 34 C.F.R. Pt. 676 (Supplemental Edu-

catiowal Opportunity Grant program); 20 U.S.C.

1070c et seqg., 34 C.F.R. Pt. 692 (State Student Incen-

tive Grant program); 20 U.S.C. 1071 et seq., 34

C.F.R. Pt. 682 (Guaranteed Student Loan program) ;

20 U.S.C. 1078-2, 34 C.F.R. Pt. 683 (Parent Loans

for Undergraduate Students program); 20 U.S.C.

1087aa et seqg., 34 C.F.R. Pt. 674 (National Direct

Student Loan program); 42 U.S.C. 2751 et seq., 34

C.F.R. Pt. 675 (College Work-Study and Job Loca-

tion and Development program). Under each of these

programs, the student may attend essentially any in-

stitution of higher education accredited by a recog-

nized national or state accrediting agency. See 34

C.F.R. 668.2(a) (5). There is no prohibition in these

programs against a student using the federal finan-

cial assistance to attend a divinity school or a similar

school to train to be a minister, and students have

used federal assistance for these purposes. Indeed,

among the recognized national accrediting agencies

are the American Association of Bible Colleges, the

Rabbinical and Talmudic Education Association of

Advanced Rabbinical and Talmudic Schools, and the

Association of Theological Schools in the United

States and Canada. 49 Fed. Reg. 1275-1277 (1984).

The vocational rehabilitation program at issue here

is itself a federally assisted program (Pet. App. C2).

Although the record does not so reveal, the program

would appear to be funded under the Rehabilitation

Act of 1973, 29 U.S.C. 720 et seqg., which provides

grants to states “to meet the current and future

needs of handicapped individuals, so that such indi-

viduals may prepare for and engage in gainful em-

ployment to the extent of their capabilities” (29

U.S.C. 720(a)). Under this program, a designated

5

state agency prepares and implements a plan for the

provision of services in accordance with the statu-

tory purposes and federal program requirements.

Respondent Washington State Department of Serv-

ices for the Blind is a designated state agency eligible

to receive funds under this program, and has chosen

to use at least a portion of the funds to provide finan-

cial assistance to eligible persons for vocational train-

ing. Whether petij}oner satisfies the federal eligi-

bility requirements has not been addressed in this

litigation, and we express no view on the matter. It

is the view of the Department of Education, however,

that—insofar as federal law is concerned—assistance

to individual handicapped persons under this program

may be used for any course of study that will pro-

mote the goal of preparing the person for gainful em-

ployment, without restriction to secular employment.

See note 11, infra.

The decision of the court below, if not reversed,

would therefore have a substantial impact on major

federal programs, including the program under which

this case apparently arose. The United States has a

compelling interest in presenting its views in this

case, toward the end of ensuring that GI Bill and

other educational benefits continue to be provided to

students on a neutral basis, without distinctions on

the basis of religious content or the religious char-

acter of the student’s choice of career.

STATEMENT

Petitioner Larry Witters, a college student, is

blind. He is eligible for vocational assistance under

Wash. Rev. Code Ann. § 74.16.181 (1982) (Pet. App.

A2-A3, C2), revised and recodified in pertinent part

as Wash. Rev. Code Ann. §§ 74.18.130, 74.18.140

(Supp. 1985), which established a vocational rehabili-

6

tation program administered by respondent, the State

Department of Services for the Blind,’ and funded by

a combination of federal (80%) and state (20%)

monies (Pet. App. C2). Petitioner was enrolled in a

three-year Bible diploma course at the Inland Em-

pire School of the Bible in Spokane, Washington—a

private, nondenominational Christian college (Pet.

6)—when he first sought financial assistance from

the Department (Pet. App. A3, C2-C3). He later

changed to a four-year program that would also lead

to a bachelor of arts degree from Whitworth College

(id. at A3, C3), a private, accredited Presbyterian

school (Pet. 6).° Petitioner’s purpose in pursuing

this course of study was to prepare himself for a

position as a pastor, missionary, or church youth

director (Pet. App. Al-A2, A9, C3). The curriculum

for this course of study included classes in the Bible,

church administration, ethics, and speech (id. at A10,

C3-C4).

Respondent Department of Services for the Blind

denied petitioner’s application for financial assistance

because of its view that “‘[t]he Washington Consti-

tution forbids the use of public funds to assist an

individual in the pursuit of a career or degree in

2 The Department of Services for the Blind was formerly

called the Commission for the Blind, and is so denominated in

the opinions below. See Pet. App. Al n.l.

8 We are informed by the Department of Education and

the Veterans’ Administration that Whitworth College is a

participating institution under student aid programs adminis-

tered by the Department and has been approved fer GI Bill

purposes as an institution of higher learning. Courses at the

Inland Empire School of Bible have been approved for GI

Bill purposes as non-college degree courses, but the School

does not have a participation agreement with the Department

of Education. (This does not mean that the School is ineligi-

ble; it may have chosen not to participate. )

7

theology or related areas’” (Pet. App. C4, quoting

Department policy statement; see also id. at A2). Re-

spondent’s denial was upheld on administrative re-

view (id. at E1-E8, F1-F7) as well as on judi-

cial review in the state Superior Court (id. at

C1-C9, D1-D37). Petitioner then appealed to the

state Court of Appeals, which certified the case to

the state Supreme Court. At each stage in the liti-

gation, respondent based its position on the state

constitution, and at no stage in the litigation did re-

spondent contend that to grant the benefits to peti-

tioner would violate the federal constitution.

The Supreme Court of the State of Washington, by

a divided vote, affirmed respondent’s decision to deny

financial assistance to petitioner, but the court based

its decision on the Establishment Clause of the First

Amendment—not on the state constitution (Pet. App.

A2). Applying the three-part test of Lemon v. Kurtz-

man, 403 U.S. 602, 612-613 (1971), the state Su-

preme Court concluded, first, that the state vocational

assistance program had a secular purpose. The court

held that the purpose stated in Wash. Rev. Code Ann.

§ 74.16.181 (1982)—“to assist visually handicapped

persons to overcome vocational handicaps and to ob-

tain the maximum degree of self-support and self-

care’”—demonstrates that “this statute has a valid

secular legislative purpose” (Pet. App. A7). Turn-

ing to the second part of the Lemon test, however,

the court concluded that “the principal or primary

effect of the aid sought by [petitioner] would be to

advance religion” (Pet. App. Al0). It reached this

conclusion by focusing “on the particular aid sought

by the [petitioner]” rather than on the vocational re-

habilitation program as a whole (id. at A8). Finally,

8

the court concluded that the record did not provide an

“adequate factual basis” for determining whether the

provision of aid to petitioner would entail “excessive

entanglement,” and that the “ ‘entanglement’ inquiry

is ill-suited to this case” (id. at A12).

In addition, the court below rejected petitioner’s

claim that the denial of assistance under these cir-

cumstances infringed his rights under the Free Ex-

ercise Clause of the First Amendment (Pet. App.

A14-A16) and indicated that it was unnecessary to

address his Fourteenth Amendment Equal Protection

Clause claim (Pet. App. A16-A17).

SUMMARY OF ARGUMENT

The federal government has long provided financial

assistance, in the form of scholarships, grants, loans,

and work-study jobs, to students in higher education,

and has permitted them to choose (from among a

diverse and compendious list of institutions accred-

ited on a neutral educational basis) their place of

study and vocational objective. Some students (we

know not how many) have used this assistance to ob-

tain training for a religious career. The Supreme

Court of the State of Washington, however, has held

that the Establishment Clause requires the govern-

ment to exclude such students from assistance pro-

grams otherwise available. According to the court,

it is not the proper “role” of government to pay for

the “religious education of future ministers” (Pet.

App. Al0).

We submit that this decision is erroneous. The con-

stitutionality of a neutral program of assistance to a

broad class of beneficiaries, selected without regard

to religion, has never been questioned by this Court.

Nor should it be. The consequence of the holding of

9

the Washington court would be to require the govern-

ment to single out religious practice for disfavored

status, to deny individuals equal treatment under gov-

ernment assistance programs for no reason other

than their intended religious vocation. It would con-

vert the First Amendment into an instrument of hos-

tility to religion, rather than a protector of free

religious exercise; an instrument of secular conform-

ity, rather than a catalyst for greater diversity,

pluralism, and individual choice.

The history of the adoption and early interpreta-

tion of the Establishment Clause shows that the orig-

inal intention was not to deprive religion or religious

individuals of benefits bestowed by the government.

Rather, the framers intended the First Amendment

to guarantee religious liberty by preventing the fed-

eral government from placing its imprimatur of ap-

proval on any particular religious sect or sects. The

early practice in the area of government-supported

education is particularly instructive: both Congress

and the states frequently provided assistance to

schools, whether they were public or private, religious

or nonreligious.

Recent decisions of this Court have found many

forms of direct assistance to religious institutions,

including schools, troublesome because of the twin

problems of avoiding an appearance of government

endorsement of or involvement with the religious de-

nomination involved and preventing intrusive meth-

ods of avoiding such appearances. No hard and fast

rules have evolved in this difficult area. However,

when government assistance has been provided not to

the institutions, but to individual students and their

parents, this Court has concluded that—so long as

the assistance is provided neutrally to a broad spec-

10

trum of citizens—it is “not readily subject to chal-

lenge under the Establishment Clause.” Mueller v.

Allen, 463 U.S. 388, 399 (1983). The instant case

falls into this latter category. The aid is provided

not to religious institutions, but to a broad class of

persons (the blind), selected on a neutral basis, with-

out regard to religion. Under this Court’s precedents,

the Washington vocational rehabilitation program is

constitutional.

The principal error of the Washington Supreme

Court was in evaluating the “primary effect” of the

rehabilitation program on the basis of this particular

instance—the requested aid for petitioner Witters to

study for the ministry—rather than looking to the

program as a whole. Such an approach inevitably

leads to a conclusion that the effect is predominantly

religious; it makes a neutral program appear partial.

Evaluated in its full context, the program neither

advances nor inhibits religious practice. The Estab-

lishment Clause holding of the Washington Supreme

Court should therefore be reversed.

Other questions raised in the petition are prema-

ture. The only issue addressed by the Washington

Supreme Court was the federal Establishment Clause ;

state law issues remain to be decided. Although, as

petitioner points out, adverse decisions on those state

law issues could well give rise to further federal con-

stitutional questions (and federal statutory questions

as well), this Court should not reach out to decide

those questions in the present posture of the case.

11

ARGUMENT

THE ESTABLISHMENT CLAUSE DOES NOT PRE-

VENT A STATE FROM PROVIDING VOCATIONAL

REHABILITATION BENEFITS TO A BLIND COL-

LEGE STUDENT ELIGIBLE UNDER RELIGIOUSLY

NEUTRAL CRITERIA WHERE THE STUDENT IN-

TENDS TO USE THOSE BENEFITS TO PURSUE A

CHURCH-ORIENTED CAREER

Respondent, the Washington State Department of

Services for the Blind, with federal financial assis-

tance, has embarked on a program of assisting blind

persons “to overcome vocational handicaps and to ob-

tain the maximum degree of self-support and self-

care.” Wash. Rev. Code Ann. § 74.16.181 (1982).

Respondent provides, among other forms of assis-

tance, tuition reimbursement for vocational education.

The choice of vocation, and the choice of educational

institution, is left to the individuals involved.

Petitioner Witters is blind, and it is undisputed

that he is eligible for assistance under this program.

He has chosen to study for a career as a pastor, mis-

sionary, or religious education director. It is not con-

tended that such a career falls outside the purposes

for which the Washington program is established; a

career in the ministry would enable petitioner to over-

come vocational handicaps and to support himself.

Nonetheless, petitioner has been denied the benefits to

which he is entitled under the program. The sole rea-

son for the denial of these benefits, under the holding

of the state Supreme Court, is that to grant them

would violate the Establishment Clause of the First

Amendment.

We believe that the court below has committed a

basic analytical error in its application of the three-

part test of Lemon v. Kurtzman, 403 U.S. 602 (1971),

12

to the facts of this case. We will discuss that error

in detail below. But first, we wish to stand back from

the detailed doctrinal analysis of this case to pose the

fundamental question: whether, “in reality,” the pro-

vision of educational assistance to a blind college

student choosing to pursue a church-oriented career,

in common with other handicapped persons pursuing

careers of their choice, “establishes a religion or reli-

gious faith, or tends to do so.” Lynch v. Donnelly,

No. 82-1256 (Mar. 5, 1984), slip op. 8-9.

A. The History Surrounding The Enactment And Early

Interpretation Of The Establishment Clause Demon-

strates That Neutral Assistance To Education Is Not

Unconstitutional

James Madison, author of the draft of the Estab-

lishment Clause first introduced in Congress, ex-

plained on the floor of the House of Representatives

that “the object it was intended to prevent” was that

“one sect might obtain a pre-eminence, or two com-

bine together, and establish a religion to which they

would compel others to conform.” 1 Annals of Cong.

731 (J. Gales ed. 1789).* Almost fifty years later,

* Madison’s famous Memorial and Remonstrance (see Ever-

son V. Board of Education, 330 U.S. 1, 12 (1947) ) is not to the

contrary. The subject of the Memorial und Remonstrance was

a proposal before the state legislature to make “provision for

Teachers of the Christian Religion” (Memorial and Remon-

strance, reprinted in full at 330 U.S. at 63-72 (emphasis sup-

plied)), which Madison understood as a preference for

“Christianity, in exclusion of all other Religions” (id. at 65).

Central to Madison’s argument in the Memorial and Remon-

> strance } that the proposal “violates equality by subjecting

some to peculiar burdens; so it violates the same principle, by

granting to others peculiar exemptions” (id. at 66). The vice

13

Joseph Story, perhaps the leading commentator on

the Constitut’on in the early days of the Republic,

explained in a similar vein, “The real object of the

[First] Amendment was * * * to prevent any na-

tional ecclesiastical establishment, which should give

to an hierarchy the exclusive patronage of the na-

tional government.” 3 J. Story, Commentaries on

the Constitution of the United States 728 (1833),

quoted in Lynch v. Donnelly, slip op. 9. Similar in-

terpretations were offered during this period by a

unanimous Supreme Court in Terrett v. Taylor, 13

U.S. (9 Cranch) 48, 48-49 (1815) (concerning the

Virginia disestablishment), and the Judiciary Com-

mittee of the Senate in S. Rep. 376, 32d Cong., 1st

Sess. 1 (1853).

The Establishment Clause was not thought to pro-

hibit neutral aid to education, religious as well as

nonreligious. During the first half century under the

Constitution, Congress frequently made land grants

for the support of education, including schools op-

in the proposal, in other words, was that it preferred one

religion over the others.

The weight of the historical evidence indicates that the

Memorial and Remonstrance reflects a more strictly separa-

tionist view than that espoused by Madison in Congress in

connection with the Establishment Clause (which he in fact

deemed unnecessary (1 Annals of Cong., supra, at 758) ), and

that Madison’s views, in turn, were more radical on this issue

than Congress and the S.~tes were willing to accept (hence

the compromise language of the First Amendment). See,

e.g., C. Antieau, A. Downey & E. Roberts, Freedom From

Federal Establishment 126-142, 197-198 (1964); M. Malbin,

Religion and Politics 16-17 (1978) ; see also R. Cord, Separa-

tion of Church and State 20-36 (1982). Nonetheless, nondis-

criminatory aid of the sort at issue here is consistent even

with the views expressed in the Memorial and Remonstrance.

14

erated by religious denominations.’ See C. Antieau,

A. Downey & E. Roberts, Freedom From Federal Es-

tablishment 163-164 (1964). Congress made grants

of land in 1832 and 1833 to two denominational col-

leges in the District of Columbia—Columbia College

and Georgetown College. Not until 1845 did Con-

gress, for the first time, limit the use of land set

aside for schools to “public schools.” Jbid. States

having disestablishment laws of their own similarly

supported religious as well as nonreligious education.

Id. at 165, 168. One historian has commented that

“it was a very common thing indeed for the civil

authorities in the states which pretended to give free

education only to pauper children, to pay the tuition

of such children in denominational schools.” E. Reis-

ner, Nationalism and Education Since 1789, at 364

(1922). The overriding principle was (in this Court’s

later words) that ‘‘one religious denomination cannot

be officially preferred over another.” Larson v.

Valente, 456 U.S. 228, 244 (1982).

The fear of a “‘nap6nal ecclesiastical establishment”

may be remote at this juncture in our history; how-

ever, it is as Vital today as it was at the founding to

ensure that the power, resources, and prestige of the

government not be turned to the services of a reli-

gious sect or combination of sects. The point of the

Establishment Clause is not to exclude religious insti-

tutions or individuals from the benefits our society

provides, but to guarantee that the government does

not confer the “ ‘imprimatur of State approval’ ” on

any particular religion, or on religion generally.

5 Indeed, one of the reasons stated for land grants for edu-

cational purposes was to provide support for “[r]eligion,

morality, and knowledge.” See Northwest Ordinance, ch.

VIII, art. ITI, 1 Stat. 52.

15

Mueller vy. Allen, 463 U.S. at 399; Widmar v. Vin-

cent, 454 U.S. 268, 274 (1981); see Lynch v. Don-

nelly, No. 82-1256 (Mar. 5, 1984) (O’Connor, J., con-

curring).® As the Court stated in Walz v. Tax Com-

mission, 397 U.S. 664, 669 (1970), the “basic pur-

pose” of the Religion Clauses “is to insure that no

religion be sponsored or favored, none commanded,

and none inhibited.”

To allow individuals to receive the benefit of fa-

cially neutral government programs, even where the

individuals have a religious purpose or calling, does

not signal government approval for their religion, but

shows a wholesome “benevolent neutrality which will

permit religious exercise to exist without sponsorship

and without interference.” Walz, 397 U.S. at 669;

see McDaniel v. Paty, 435 U.S. 618, 638-639 (1978)

(Brennan, J., concurring). It no more “advances”

the cause of a religion to assist petitioner Witters,

like other handicapped citizens of the State of Wash-

ington, to obtain training for the career of his choice

than it does to accord police and fire protection to

® Government nonetheless may accommodate or facilitate

the practice of religion in ways not equally applied to non-

religious activities. So long as such accommodations are

neutral among religions, neither induce nor coerce religious

beliefs, and are administered in a way that does not interfere

with the autonomy of religious institutions, they are constitu-

tional. See, e.g., NLRB v. Catholic Bishop of Chicago, 440

U.S. 490 (1979) ; Wisconsin v. Yoder, 406 U.S. 205 (1972) ;

Gillette v. United States, 401 U.S. 487 (1971); Zorach v.

Clauson, 343 U.S. 306 (1952). Such accommodations do not

establish a religion, but—in keeping with the special status of

religion in the Constitution itself—accord special treatment

to the liberty of religious exercise. See McDaniel v. Paty,

435 U.S. 618, 639 (1978) (Brennan, J., concurring). This

case involves only equal treatment—not preferential accom-

modation—of religion.

16

churches (in common with other buildings), to allow

a Bible study group to meet in a public university (in

common with other student groups) ,’ or to allow par-

ents to deduct specified expenses of educating their

children in religious schools from their taxes (in com-

mon with other parents) .*

On the contrary, to single out petitioner Witters’

choice of vocation would be to discriminate against

religion—to relegate religion to a disfavored position

in the public arena. “[W]e must be careful, in pro-

tecting the citizens * * * against state-established

churches, to be sure that we do not inadvertently pro-

hibit [the State] from extending its general state

law benefits to all its citizens without regard to their

religious belief.” Everson v. Board of Education, 330

U.S. 1, 16 (1947); see McDaniel v. Paty, 435 U.S.

at 688 (Brennan, J., concurring).

B. When, For Secular Purposes, The Government Pro-

vides Financial Aid To Individuals On a Facially

Neutral Basis, The Individuals’ Use Of That Aid

For Religious Ends Or In Religious Contexts Does

Not Constitute Ar Establishment

One of the most vexing questions in constitutional

law has been when and under what terms religious

institutions may participate in or benefit from public

programs of general applicability. Although, as the

Court stated in Roemer v. Board of Public Works,

426 U.S. 736, 746 (1976), “religious institutions

need not be quarantined from public benefits that are

neutrally available to all,” some of the Court’s most

7 Widmar V. Vincent, supra; see also Bender v. Williamsport

Area School District, cert. granted, No. 84-773 (Feb. 19,

1985).

8 Mueller v. Allen, supra.

17

difficult and controversial decisions have been con-

cerned with how to ensure that government aid pro-

vided, for legitimate and secular purposes, to reli-

gious institutions is not used to foster their religion.

See, e.g., Lemon v. Kurtzman, supra; Tilton v. Rich-

ardson, 403 U.S. 672 (1971); Committee for Pu lic

Education & Religious Liberty v. Regan, 444 U.S.

646 (1980). The conflict over aid to parochial ele-

mentary and secondary schools has been especially

sensitive, because of the particular danger in that

context of government aid being understood as con-

tributing to religious indoctrination.

In contrast, the Court has rarely—indeed, only .

once, and then in circumstances far different from

these—found that the Constitution bars neutral fi-

nancial aid to individual recipients merely because

they choose to use the aid in religious contexts or for

their own religious purposes. It is “noteworthy that

all but one of [the Court’s] recent cases invalidating

state aid to parochial schools have involved the direct

transmission of assistance from the state to the

schools themselves.” Mueller v. Allen, 463 U.S. at 399.

The one exception is Committee for Public Education

& Religious Liberty v. Nyquist, 413 U.S. 756 (1973),

which involved a government aid program designed

exclusively for the benefit of parents with children

in nonpublic schools, rather than a general program

for the benefit of all schoolchildren.’

® See also Lemon v. Kurtzman, 403 U.S. at 621, in which the

Court distinguished Everson and Board of Education v. Allen,

392 U.S. 236 (1968), on the ground that in those cases the

“state aid was provided to the student and his parents—-not

to the church-related school” ; Committee for Public Education

& Religious Liberty vy. Nyquist, 413 U.S. at 781; Walz v. Taz

Commission, 397 U.S. at 675.

18

The reasons for this distinction follow directly from

the rationale for the Establishment Clause itself.

When government provides assistance to individuals

for secular reasons, it is evident that the govern-

ment is not using its resources to prefer one religion

over another, or even religion over nonreligion—even

though some individuals may make use of the bene-

fit in a religious manner. The ultimate use and allo-

cation of the benefit will not be determined by the

government, but “only as a result of numerous, pri-

vate choices of individual” citizens. Mueller v. Allen,

463 U.S. at 399.

In this respect, the provision of aid here is similar

to the tax deductibility of contributions to religious

organizations. Although tax deductions for contribu-

tions undoubtedly confer a substantial benefit on

churches and synagogues—along with countless other

charitable, educaticnal, scientific, cultural, and his-

torical organizations—their constitutionality has

never been questioned by this Court, precisely because

the deductions operate to increase the “diversity and

pluralism in all areas” of our society (see Lynch v.

Donnelly, slip op. 8) and facilitate both the free

exercise of religion by believers and similar volun-

tary associational activities by their adherents. See

generally Walz v. Tax Commission, 397 U.S. at 689

(Brennan, J., concurring).

The State could, if it chose, channel its vocational

assistance for handicapped persons toward careers

the State deems appropriate, or insist that rehabil-

itative programs be undertaken in educational insti-

tutions operated by the State. However, to leave

these decisions to the individuals involved is an

equally permissible approach—one which enhances

individual choice, increases the diversity of skills

19

available to society, and widens the range of educa-

tional institutions in the community.

Moreover, when government aid is provided w in-

dividuals, as opposed to institutions, there is no dan-

ger of entangling administrative relationships be-

tween government and religious officials. Other than

the relatively routine decision to accredit an educa-

tional institution on the basis of educational quality

—an administrative relation long held to be consti-

tutional (see Pierce v. Society of Sisters, 268 U.S.

510, 534 (1925))—such an approach does not in-

volve the government in the affairs of the institu-

tion. Cf. Walz v. Tax Commission, 397 U.S. at 675

(“Obviously a direct money subsidy would be a rela-

tionship pregnant with involvement and, as with most

governmental grant programs, could encompass sus-

tained and detailed administrative relationships for

enforcement of statutory or administrative stand-

ards.”). Accordingly, as this Court has recently ob-

served, “a program * * * that neutrally provides

state assistance to a broad spectrum of citizens is

not readily subject to challenge under the Establish-

ment Clause.” Mueller v. Allen, 463 U.S. at 398-399.

Federal government programs are structured in

accordance with this constitutional framework. Gen-

erally speaking, when benefits are provided to indi-

viduals, the government does not require that the

individual use the aid for nonreligious purposes or

in nonreligious settings. The very context in which

this case arises—higher education assistance—is a

prime example. Grants directly to students, such

as Pell Grants or GI Bill benefits, may be used by

those students, if they choose, for education in reli-

gious colleges or for training for church-oriented

careers. See pages 2-4, supra. The federal govern-

20

ment does not consider it appropriate, on Establish-

ment Clause grounds or any other, to limit the free-

dom of students assisted under these programs to

choose religious alternatives. The test for providing

such benefits should not be whether the student’s

chosen course of study is in a school sponsored by a

religious group, has religious content, or leads to a

religiously-oriented career, but whether it leads to a

valid “educational, professional, or vocational objec-

tive.” See 38 U.S.C. 1670.”

On the other hand, when aid is provided directly

to institutional grantees, limitations are often placed

on the aid to ensure that it is used for secular pur-

poses and not diverted to religious ends. See, ¢.g.,

20 U.S.C. 122 (grants to Howard University may not

be used for the support of the theological depart-

ment) ; 20 U.S.C. 1021(c) (college or research library

grants may not be used for written materials used

in sectarian instruction or religious worship); 20

U.S.C. 1070e, 1070e-1 (cost of instruction grants to

colleges may not be used for school of divinity, reli-

gious worship, or sectarian activity) ; 29 U.S.C. 1517,

1 The only provision of which we know that might be

considered an exception is 20 U.S.C. 1134e(g). The Secretary

ef Education is authorized to make grants to institutions of

higher education so that those institutions may ““mak[e] avail-

able the benefits of post-baccalaureate education to graduate

and professional students who demonstrate financial need.” 20

U.S.C. 1134d. Following provisions setting out priority cate

gories for institutions and individual students (see 20 U.S.C.

1134e(d) and (e)), Section 1134e(g) provides that “[n]o fel-

lowship shall be awarded under this part for study at a school

or department of divinity.”

21

1577(a) (Job Training Partnership Act funds may

not be used for religious facilities) ."

The decision of the court below conflicts with this

longstanding federal practice. Under the Washington

Supreme Court’s decision, the government would have

to engage in far more searching inquiry into stu-

dents’ career objectives and courses of study than

is now required—or even permitted—under law. A

narrow interpretation of the decision would suggest

1 Restrictions applicable to Rehabilitation Act grants,

which presumably are the source of federal funding for the

program at issue here, are of this sort. In general, Depart-

ment of Education regulations preclude grants to institutional

entities when such entities would use them for religious pur-

poses, but place no such restrictions on facially neutral grants

to individuals. Certain multi-program regulations now ap-

plicable to the Rehabilitation Act program prohibit the use of

funds for “[r]Jeligious worship, instruction, or proselytiza-

tion” (34 C.F.R. 76.532(a)(1)) or for “[a]n activity of a

school or department of divinity” (34 C.F.R. 76.532(a) (4) ).

These regulations are based on the Department’s interpre-

tation of constitutional requirements. The Departmen’. has

informed us that it interprets these restrictions as applying to

grants to institutional grantees and subgrantees, but aot as

precluding individuals who may be the ultimate beneficiaries

of financial assistance under this program from usin:; it for

vocational training in a school of divinity. The funds could

not, for example, be granted to a university to make its

divinity school accessible to the handicapped, but a scholarship

grant under the program could be used by a handicapped

individual to defray the cost of education at a divinity school.

The multi-program regulations quoted above became ap-

plicable to the Rehabilitation Act program only in 1981 (after

petitioner applied for and was denied benefits), after re-

sponsibility for administration of the program was trans-

ferred to the Department of Education. At the time of peti-

tioner’s application, grants under this program had no specific

restrictions regarding religious uses.

22

that the State is forbidden to fund only the “religious

education” of persons intending to become ministers

(Pet. App. A10); although, since petitioner’s entire

grant was disallowed, this narrow interpretation may

not be correct.’ Under the full force of the Wash-

ington Supreme Court’s logic, any funding of religious

studies is presumably suspect. Accordingly, the Vet-

erans’ Administration might well be required to

insist that its state approving agencies (see page 3,

supra) examine various unit courses taught at sec-

tarian schools (such as Notre Dame University or

Georgetown University) to determine whether they

are religious or sectarian in nature, and the Depart-

ment of Education might well have to require stu-

dents to certify, as a condition of receiving a student

loan, that they do not intend to enter the ministry.

We submit that it is neither administratively feasible

nor constitutionally appropriate for the government

to engage in this type of inquiry. A neutral program

of educational grants such as that now in place is,

we submit, fully consonant with the Religion Clauses

of the First Amendment.

Indeed, this Court has repeatedly distinguished

“public assistance (e.g., scholarships) made available

generally without regard to the sectarian-nonsectar-

ian, or public-nonpublic nature of the institution ben-

efitted”—-specifically referring to the “G.I. Bill”—

from impermissible forms of aid. Nyquist, 413 U.S.

at 782-783 n.38; see also Mueller v. Allen, 463 U.S.

at 398-399; Wolman v. Walter, 433 U.S. 229 (1977);

Wolman v. Essex, 342 F. Supp. 399, 412 n.17 (S.D.

Ohio), aff’d, 409 U.S. 808 (1972). And in Americans

United for the Separation of Church & State v.

12 Some of petitioner’s course work—e.g., speech instruction

(see page 6, swpra)—is apparently secular in nature.

23

Blanton, 433 F. Supp. 97 (M.D. Tenn.), aff’d, 434

U.S. 803 (1977), the Court summarily affirmed .a

lower court decision upholding a state statute provid-

ing aid to all needy college students, including but not

limited to those in religious colleges."* The judgment

of the Washington Supreme Court is inconsistent

with these decisions.

C. The Court Below Erred In Its “Primary Effects”

Analysis By Focusing On The Religious Use In

Isolation Rather Than On The Full Context Of The

Program

The Washington Supreme Court employed the

three-part Establishment Clause analysis of Lemon

v. Kurtzman, 403 U.S. at 612-613. See Pet. App. A5-

A6. The court had no difficulty in concluding that the

State’s program of vocational assistance to the blind

has a legitimate secular purpose (id. at A6-A7).

Cf. Wallace v. Jaffree, No. 83-812 (June 4, 1985),

13In Bob Jones University v. Jehnson, 396 F. Supp. 597

(D.S.C. 1974), aff’d, 529 F.2d 514 (4th Cir. 1975), the court

held that while the receipt by students of GI Bill benefits

constituted federal financial assistance to the church-affiliated

university involved in that case for purposes of the civil rights

laws, it did not constitute unconstitutional state aid for pur-

poses of the Establishment Clause. Cf. Grove City College v.

Bell, No. 82-792 (Feb. 28, 1984), slip op. 8, 10 n.15, citing

Bob Jones University v. Johnson, supra. The reasons ad-

vanced by the government and adopted by the Court in Grove

City College for treating student grants as aid to the institu-

tions for purposes of Title IX of the Education Amendments

of 1972 derive from the statutory objectives and unambiguous

legislative history. See slip op. 7-13. The constitutional

standard for judging whether the “primary effect” of a pro-

gram is to “advance religion,” which serves far different

purposes, is not the same as that adopted by Congress under

Title IX for determining when an institution must comply

with laws against discrimination.

24

slip op. 17. Moreover, commenting that the “ ‘entan-

glement’ inquiry is ill-suited to this case,” the court

stated that “the administrative and trial court records

do not provide an adequate factual basis to make the

oo type of [entanglement] inquiry contemplated by the

\. “i Sipreme Coure” tade-et Al12). The decision below

thus rested entirely on a finding that “the principal

or primary effect of the aid sought by [petitioner]

would be to advance religion” (id. at A10).™

In analyzing the “primary effect” of the program,

the court stated (Pet. App. A8) :

Rather than look to the face of the rehabilitation

statute, which is neutral in that benefits are pro-

vided to the student irrespective of the type of

school attended or the degree sought, we focus

our attention on the particular aid sought by the

[ petitioner].

The court accordingly found (id. at A9-A10) that

“[t]he provision of financial assistance by the state

to enable someone to become a pastor, missionary, or

church youth director clearly has the primary effect

of advancing religion. * * * It is not the role of the

state to pay for the religious education of future

ministers.”

4 If this Court reverses on the “primary effect” finding, and

respondent chooses to litigate the issue of “ ‘entanglement’ ”

on remand, it should be free to do so. As the court below

recognized (Pet. App. Al2), the factual record is insufficient

to support a finding of unconstitutionality on this ground, and

further fact-finding might be in order. On the merits we

submit, however, that the program at issue plainly does not

entail an excessive entanglement between church and state.

The only direct relationship involving the government is that

with petitioner Witters; the government is not involved in

overseeing or regulating the religious institutions at which

petitioner has studied.

25

This analytical approach is, we submit, fundamen-

tally in error. If a court focuses solely on the chal-

lenged element in an overall program—i.e., solely on

the religious element—it will always find that the

“primary effect” is to advance (or inhibit) religion.

“Focus exclusively on the religious component of any

activity would inevitably lead to its invalidation un-

der the Establishment Clause.” Lynch v. Donnelly,

slip op. 10. The “crucial question is not whether some

benefit accrues to a religious institution as a conse-

quence of the legislative program, but whether its

principal or primary effect advances religion.” Tilton

v. Richardson, 403 U.S. at 679 (emphasis supplied).

To determine whether the religious effect is “pri-

mary,” one must necessarily examine that effect in

the context of the program as a whole.”

Here, for example, there can be no claim that the

state vocational rehabilitation program, taken as a

whole, runs afoul of the “effects” test, properly con-

ceived. It is probable that only a tiny fraction of the

beneficiaries use their vocational rehabilitation grants

to prepare for a religious vocation.** Even the court

below acknowledged (Pet. App. A8) that the program

is “neutral in that benefits are provided to the stu-

15 The approach of the court below would be sound only if

the Establishment Clause were held to prohibit any govern-

ment action, the ultimate effect of which is to benefit religion

—a view that has been consistently rejected by this Court.

McDaniel v. Paty, 435 U.S. at 638 (Brennan, J., concurring) ;

Hunt v. McNair, 413 U.S. 734, 742-743 (1973); Everson v.

Board of Education, 330 U.S. at 16.

16 In this respect, the instant case is less troublesome than

Mueller. In Mueller, the evidence suggested that the “bulk”

of the benefits involved would flow to religious uses, partly

because 96% of the children in private schools attended

religiously-affiliated institutions. 463 U.S. at 401.

26

dent irrespective of the type of school attended or the

degree sought.” The effect of the rehabilitation pro-

gram is precisely the same as its purpose: it pro-

vides vocational training to handicapped persons to

improve their job skills and self-reliance. There is no

reason to assume that the benefit to religion from

providing aid to otherwise eligible students for the

ministry, to the extent there is any benefit, is other

than minor and incidental.

This Court has never used the analytical approach

employed below to strike down the neutral provision

of benefits to a wide spectrum of beneficiaries.

Rather, the Court has used the opposite approach—

to examine the challenged “effects” in the context of

the wider program.” See, e.g., Mueller vy. Allen, 463

U.S. at 397-399 (tax deduction statute available to

all parents of schoolchildren, including those with

children attending sectarian private schools) ; Widmar

v. Vincent, supra (access to university facilities by

all student groups, including religious groups) ; Tilton

v. Richardson, 403 U.S. at 687 (construction grants

for higher education facilities generally); Walz v.

Tax Commission, supra (tax exemptions for all edu-

cational and charitable non-profit institutions) ; Board

of Education v. Allen, 392 U.S. at 242 (textbook

loans to all schoolchildren) ; Everson v. Board of Edu-

17 The court below relied for its approach on a statement in

Hunt v. McNair, 413 U.S. at 742, that under the “effects”

inquiry a court must “narrow [its] focus from the statute as

a whole to the only transaction presently before us.” See Pet.

App. A8. However, in Hunt, the Court upheld the program

even on that narrow basis, making it unnecessary to consider

alternative bases for a finding of constitutionality. The deci-

sion there provides no warrant for invalidating a program

where, under the full context of the program, the “primary

effect” is not to advance or inhibit religion.

27

cation, 330 U.S. at 16 (bus fare extended to all school-

children). In any of these instances, the Washington

Supreme Court’s analysis would have led to invalida-

tion of the program.

The State’s vocational rehabilitation program in-

volved in this case has all the traditional indicia of

a secular government assistance program with a sec-

ular primary effect. The program is neutrally de-

signed to provide aid to all persons who fall within

the class of beneficiaries—the visually handicapped.

Contrary to the Washington Supreme Court’s view, a

program that assists a broad class of beneficiaries

without regard to religion does not violate the Estab-

lishment Clause merely because one, some, or even

many of the beneficiaries happen to be religious. “The

historic purposes of the [Establishment Clause] sim-

ply do not encompass th[is] sort of attenuated finan-

cial benefit [to religion], ultimately controlled by the

private choices of individual” beneficiaries. Mueller

v. Allen, 463 U.S. at 400.

D. This Court Need Not, And Should Not, Consider

The Remaining Issues In The Case

The sole basis for the decision below was the Es-

tablishment Clause of the First Amendment. This

rationale had not been advanced by respondent be-

fore the Washington Supreme Court or at any other

stage in the litigation. The theory most vigorously

pressed by respondent was that the provision of aid

to petitioner for his education for the ministry would

violate the State’s equivalents to the Establishment

Clause, Wash. Rev. Code Ann. art. 1, § 11; art. 9,

§ 4 (1966). The court below found it “unnecessary

to address the constitutionality of the aid under our

state constitution” (Pet. App. A2). The court did,

28

however, strongly hint that it would find the aid un-

constitutional under the state constitution, comment-

ing that “our state constitution requires a far stricter

separation of church and state tha[n] the federal

constitution” (ibid.).

If the state constitution is held to prohibit aid to

petitioner’s education, that holding will raise serious

and difficult questions of federal statutory and con-

stitutional law, which have not been addressed by the

lower courts. Specifically, it will raise the question

whether petitioner is entitled to participate in the

program under the terms of the federal grant to the

State, and, if so, whether the State is permitted un-

der the program to attach more stringent (and ar-

guably discriminatory) eligibility criteria than those

adopted by Congress and the Secretary of Education.

See 29 U.S.C. 721(a)(5)(A). Moreover, assuming

that there is no federal statutory bar to excluding

petitioner from the program, such an interpretation

of the state constitution would raise the question

whether petitioner’s rights under the Equal Protec-

tion Clause or the Free Exercise Clause would be in-

fringed by a ruling that church-oriented careers alone

are excluded from the benefits of the program. That

question, not dissimilar to the issues raised in Board

of Trustees v. McCreary, No. 84-277 (Mar. 27, 1985)

(equally divided Court); Widmar v. Vincent, supra;

McDaniel v. Paty, supra; and Sherbert v. Verner,

374 U.S. 398 (1963), is substantial, and the Supreme

Court of the State of Washington should have an op-

portunity to consider the question in the first in-

stance. Although that court has considered, and re-

jected, petitioner’s free exercise argument (Pet. App.

A14-A17), it did so on the assumption that the Es-

tablishment Clause would be violated by a grant of

the vocational rehabilitation benefits. If there are no

29

countervailing federal constitutional considerations,

the argument may appear in a different light. More-

over, the court expressly declined to address peti-

tioner’s “novel” equal protection claim because the

Establishment Clause holding made resolution of that

claim unnecessary (id. at A16-A17).

There is no need for this Court to grapple with

these issues in the current posture of the case, un-

assisted by the views of the courts below. Although

the Washington Supreme Court has adumbrated its

likely answer to the question whether the state con-

stitution would be violated by a grant for the support

of petitioner’s vocational education, the court expressly

declined to decide the issue in a formal sense. This

Court should not address the sensitive question of

the compatibility of a state’s constitution with the

federal constitution in the absence of a definitive in-

terpretation of the state constitution. Moreover, the

state courts have not explained the basis and ration-

ale for the state constitutional provision. It would

therefore be difficult to evaluate whether the distinc-

tions drawn by the State would pass muster under

the Equal Protection Clause or be sufficiently com-

pelling to outweigh petitioner’s free exercise rights.

Accordingly, we urge the Court to confine its con-

sideration to the Establishment Clause holding of the

court below, and allow the parties to raise any other

issues on remand, if the judgment is reversed.

30

CONCLUSION

The judgment of the Supreme Court of the State

of Washington should be reversed.

Respectfully submitted.

CHARLES FRIED

Acting Solicitor General

RICHARD K. WILLARD

Acting Assistant Attorney General

MICHAEL W. MCCONNELL

Assistant to the Solicitor General

ANTHONY J. STEIN MEYER

MICHAEL JAY SINGER

Attorneys

JUNE 1985

Uv. S&S. GOVERNMENT PRINTING OFrice; 1985 461531 10237