SEATTLE — The state and its Higher Education Coordinating Board were wrong to deny a Promise Scholarship to a recipient who decided to pursue a degree in religious studies, a federal appeals panel ruled yesterday.
In a 2-1 decision, a panel of the 9th U.S. Circuit Court of Appeals ruled that the state did not have "a compelling reason to withhold scholarship funds" from student Joshua Davey in 1999.
The decision flies in the face of both the state constitution and state law seeking to separate church and state, said Marc Gaspard, the HEC Board's executive director.
Lawyers for the student praised the decision.
"This is a resounding victory for equal treatment of people of faith," said Jay Sekulow, chief counsel of the American Center for Law and Justice in Virginia Beach, Va.
"A student should not be penalized financially for pursuing a degree in theology," he said.
Davey's scholarship was withdrawn when he declared a major in Pastoral Ministries and Business Management at Northwest College, an accredited school in suburban Kirkland.
The office of state Attorney General Christine Gregoire has not decided whether to appeal. "It's too early to determine that. We are going to be looking at what our options are," said spokeswoman Cheryl Reid.
"We will certainly support the AG's office if they decide to appeal," said spokeswoman Diane Prigge in the office of Gov. Gary Locke, who pressed the Legislature to establish the scholarships for high-performing low- and middle-income students in 1999.
The San Francisco-based appellate panel overturned an October 2000 summary judgment against Davey by U.S. District Judge Barbara Rothstein.
The HEC Board's decision to withdraw Davey's scholarship was based on state law and the state constitution, Gaspard said.
"So from our perspective we have been following state law, and therefore have been quite surprised by the decision from the 9th Circuit Court," he said.
While the court has a reputation for liberal rulings, it is also known for its "unpredictable-ness," he said.
Earlier this month, the 9th Circuit was in the headlines when a three-judge panel voted 2-1 to declare the Pledge of Allegiance unconstitutional because of the phrase "under God," added in the Cold War 1950s.
Yesterday's decision "dismissed state concern with the separation of church and state and invalidated state law as it applies," Gaspard said. The ruling could affect other state aid programs, he said.
State law bars aid to "any student who is pursuing a degree in theology." The state constitution specifically prohibits appropriation of public money or property "for or applied to any religious worship, exercise or instruction."
But 9th Circuit Judge Pamela Ann Rymer, whose ruling was joined by Judge Ronald M. Gould, wrote: "We conclude that HECB's policy lacks neutrality on its face."
Since the policy makes the aid "available to all students who meet generally applicable criteria, except for those who choose a religious major ... it must survive strict scrutiny."
"We are not persuaded that it does; Washington's interest in avoiding conflict with its own constitutional constraint ... is not a compelling reason to withhold scholarship funds ... from an eligible student just because he personally decides to pursue a degree in theology."
Judge M. Margaret McKeown disagreed. While the First and 14th Amendments limit a state's ability to interfere with an individual's exercise of religion, "This is a funding case, not a free exercise case or a free speech case," she wrote.
"I conclude that Washington has successfully navigated the tensions between the free exercise of religion and the prohibition of its endorsement when, at the time of statehood, it decided to refrain from funding religious instruction."