Davey

This appeal challenges Washington law that denies a statefunded “Promise Scholarship” to students who are qualified for it by virtue of high school grades, family income, and attendance at an accredited college in the state, solely because the student decides to pursue a degree in theology.

Joshua Davey was awarded the Scholarship but lost it when he declared a major in Pastoral Ministries at Northwest College. He claims that this was discriminatory and denied him access to funds that were otherwise available to all eligible students in violation of the religion clauses of the First Amendment and his federal and state constitutional rights to freedom of speech and equal protection. Washington’s Higher Education Coordinating Board (HECB), which administers the Promise Scholarship, defends its action on the ground that the state did not prohibit Davey from pursuing religious studies but simply declined to fund them; that state funding for Davey’s religious instruction is barred by state law, Wash. Rev.Code § 28B.10.814, 1 and the state constitution’s provision regarding the separation of church and state; 2 and that refusing to award aid to students pursuing a degree in theology is…

dissenting:

The majority suggests that we begin with first principles, and I do as well. The genesis of this controversy is not the *761 Washington statute or- its implementing regulations. Instead, we must start where the State of Washington began over a hundred years ago — long before it created the Promise Scholarship — when it defined its vision of religious freedom as one completely free of governmental interference, a vision the State explicitly refused to taint by the influx of public monies into religious instruction. Specifically, I refer to that original provision of the state’s 1889 constitution which provides that “No money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment.” Wash. Const, art. I, § 11.

As for guiding federal principles, I likewise recognize that the First and Fourteenth Amendments circumscribe a state’s ability to interfere with an individual’s exercise of religion, specifically mandating that a state “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” In the State of Washington’s case, it has assiduously…