Washington’s Unconstitutional Exclusion of Religious Options

Under Washington’s Work-Study Program, the state government pays a portion of a student’s wages for work with a participating employer, commonly in a field related to the student’s major. The program’s stated intent is “to provide financial assistance to needy students, . . . thereby enabling them to pursue courses of study,” and “to provide such needy students, wherever possible, with employment related to their academic or vocational pursuits.”^[1]

The program is administered by the Washington Student Achievement Council (WSAC). Each year, WSAC establishes the amount of that year’s funds for the student body at each participating university. These funds, in turn, are used to reimburse participating employers, who pay students out-of-pocket, then submit student timesheets to obtain reimbursement.^[2]Reimbursement is set at a rate between 40 and 70 percent, with 70 percent available when a student works for a public school district, a nonprofit community service provider or a business whose primary activity is in science, technology, engineering or mathematics.

Participating employers have included public agencies (e.g., City of Seattle, Spokane Public School District); nonprofit organizations (e.g., Boys & Girls Club of Pierce County, Fred Hutchison Cancer Research Center); small businesses (e.g., Basillio’s Italian Restaurant, Bonney Lake Dental); and large, international corporations (e.g., Costco, Weyerhaeuser, American Express Financial, Amazon.com).

Students, however, may only work for “nonsectarian” employers.^[3]And like the employer, the job itself must also not be “sectarian related.”^[4]WSAC provides examples of ineligible “sectarian” employers in its literature concerning the Work-Study Program. They include “church sponsored daycare centers or educational institutions” and, at least in certain circumstances, “religiously affiliated hospitals.”^[5]

To assess a prospective employer’s eligibility for the program, WSAC requires completion of an “Employer Business Profile,” which asks, “Does your organization . . . have a religious affiliation?” If the prospective employer answers “Yes,” it must complete another form, a “Religious Affiliation Questionnaire,” which asks questions such as, “Is the work performed free from sectarian interest? If not, explain,” and, “Where is the business/organization housed? If housed in a church, what amount of rent is paid each month?”^[6]The prospective employer may also be required to include its articles of incorporation and bylaws with the completed questionnaire. The materials then go to WSAC and, in some situations, the Attorney General’s office for a determination as to whether the employer is “sectarian” and, thus, ineligible to participate.

In short, a student may work for the government, a nonsectarian nonprofit organization or an enormous international corporation (including in one of its international offices), but she may not feed the homeless at a church’s soup kitchen or tutor a child at a church-run school.

Such government-mandated exclusions are not merely hypothetical; as described below, they are happening right now.

The Washington Work-Study Program’s exclusion of “sectarian” options is unconstitutional. The First and Fourteenth Amendments to the U.S. Constitution require government’s neutrality—not hostility—toward religion. Accordingly, government may neither favor, nor disfavor, religion over non-religion. As the U.S. Supreme Court held in 2017 in Trinity Lutheran Church of Columbia, Inc. v. Comer, the First Amendment’s Free Exercise Clause requires that laws be “neutral and generally applicable without regard to religion.”^[7]They may not “single out the religious for disfavored treatment.”^[8]The Court reiterated that principle a year later, stressing that “[t]he Free Exercise Clause bars even subtle departures from neutrality on matters of religion.”^[9]By discriminating against “sectarian” employers and the students who desire to work for them, Washington’s Work-Study Program expressly singles out and disfavors religion and religious convictions. That is not the neutrality required by the Constitution.

Blaine Amendments: Relics of 19th-Century Bigotry

The reason for the prohibition on “sectarian” options, according to WSAC, is Washington’s Constitution, which contains two provisions commonly referred to as “Blaine Amendments.” These provisions state that “[n]o public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment,” and that “all schools maintained or supported wholly or in part by the public funds shall be forever free from sectarian control or influence.”^[10]Similar provisions are found in the constitutions of 36 other states. Blaine Amendments have a sordid history dating back to the early 19th century.

History of Religious Discrimination

Public schools of the 19th century were overtly religious—and non-denominationally Protestant. Bible reading, hymn singing and prayer were common in the public schools, and invariably it was the King James—or Protestant—version of the Bible that was read, Protestant prayers that were recited and Protestant hymns that were sung. As immigration increased in the middle of the 19th century, the newly arrived, largely Catholic parents objected to their children being compelled to attend the Protestant public schools. In some areas, Catholic students were beaten or expelled for refusing to participate in Protestant exercises.

After Catholics’ efforts to secure better treatment in the public schools failed, they began demanding a share of the public funds to support their own schools. This sparked a Protestant backlash, and a number of states passed laws or amended their constitutions to prohibit public funding of so-called “sectarian,” or Catholic, schools.

Enter James G. Blaine, a powerful congressman and a political opportunist. In 1875, Blaine seized on this anti-Catholic sentiment and proposed a similar amendment to the U.S. Constitution. It had the twin goals of preserving the Protestant nature of the nation’s public schools and prohibiting public funding of Catholic schools.

Blaine’s proposed amendment passed overwhelmingly in the House but fell just shy of the super-majority it needed in the Senate to go on to the states for ratification. Nevertheless, Blaine’s allies achieved through the back door what Blaine himself could not achieve through the front: As new states entered the Union, they included Blaine-type language in their own constitutions. Washington was one of those states.

The resulting “Blaine Amendments” are vestiges of 19th-century bigotry, not some high-minded statement about church-state relations. These engines of animus against Catholics have, over time, become engines of discrimination against all religion, as we see today in Washington’s Work-Study Program. In 2000, a four-justice plurality of the U.S. Supreme Court recognized this ignoble history, stressing that the Blaine movement was “born of bigotry” and calling for its legacy to be “buried now.”^[11]

Blaine Amendments Stifle Educational Choice Nationwide

Washington’s Blaine-based exclusion of “sectarian” options from the Work-Study Program is at loggerheads with the federal Constitution’s command of neutrality toward religion. But the problem is not confined to a single post-secondary financial aid program in the state of Washington: Blaine Amendments like Washington’s stand in the way of K-12 educational choice nationwide.

Opponents of educational choice programs—that is, vouchers, educational savings accounts and other programs that empower parents, rather than government, to choose the schools that are best for their children—routinely employ Blaine Amendments to attack such programs and thereby deprive students and their families of true educational choice. As the leading courtroom defender of educational choice, the Institute for Justice (IJ) is committed to fighting this modern incarnation of Blaine’s legacy, and this case is part of that effort.

The U.S. Constitution protects the freedom to choose an educational setting that students and their families believe will best serve them. As the U.S. Supreme Court explained in the 1925 case Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary, “The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”^[12]

Students and families ought not be deprived, by archaic and bigoted state constitutional provisions, of the freedom to choose an education that will suit them best. With this case, IJ aims to end the use of Blaine Amendments to deny educational opportunity to those who believe that religious options—whether at the elementary, secondary or post-secondary level—are right for them.

The Plaintiffs

The plaintiffs in this case are Summit Christian Academy and the Whitworth University Young Americans for Freedom Chapter. Both have been harmed by Washington’s exclusion of “sectarian” options from the Work-Study Program.

Summit Christian Academy is a private, nonprofit K-12 school located in Spokane, Washington. The school is approved by Washington’s Office of Superintendent of Public Instruction and accredited by AdvancED, a nonprofit accrediting organization for religious and non-religious schools alike. The school’s mission includes both “provid[ing] quality academic education in knowledge and understanding” and “promoting service to God and others.”^[13]

In August 2015, after a work-study-eligible student from Spokane Community College expressed a desire to work as a tutor at Summit Christian, the school applied to participate in the Work-Study Program as an employer. Representatives of Summit Christian and Spokane Community College—which, as a public college, can enter into contracts with Work-Study employers—agreed to an Employer Contract. After being forwarded a copy of the contract, however, WSAC requested that Summit Christian complete a Religious Affiliation Questionnaire and provide copies of its articles of incorporation and bylaws. Two WSAC staff members evaluated Summit’s responses and concluded that Summit Christian was not eligible to participate in the program because it is “sectarian.” Simply because of its religious affiliation, the school was denied the opportunity to provide mentorship and training that “nonsectarian” employers are permitted to provide.

Young Americans for Freedom Chapter (YAFC) is a chartered club at Whitworth University in Spokane, Washington, and a chapter of Young Americans for Freedom, a national, nonprofit youth activism organization. YAFC advocates for limited government and individual freedom, including religious freedom. It has members who are eligible for the State Work-Study Program and who desire the opportunity to work for employers considered ineligible because they are “sectarian.” In fact, YAFC members and other Whitworth students cannot undertake Washington Work-Study employment for Whitworth University itself, because the university is an evangelical, Presbyterian institution. Students attending nonsectarian private colleges and universities, by contrast, are free to work for their own colleges and universities under the program. The “sectarian” exclusion in Washington’s Work-Study Program is particularly harmful to YAFC members and other Whitworth students majoring in fields that are traditionally occupied by religious employers, such as education, social services and medicine, and who wish to perform the types of work that such employers perform. The program also specifically discriminates against those students who want to work for employers whose religious affiliations mirror their own convictions.

The Litigation Team

IJ Senior Attorney Michael Bindas^[14]and IJ Attorney Joshua House^[15]represent Summit Christian Academy and YAFC.

The Institute for Justice

The Institute for Justice is the national law firm for liberty and the nation’s leading legal defender of educational choice. Since its founding in 1991, IJ has successfully defended educational choice programs in numerous state supreme courts, intermediate courts of appeal and trial courts, as well as twice before the U.S. Supreme Court.^[16] It currently has three other educational choice cases pending in Montana,^[17]Florida^[18]and Puerto Rico.^[19]

^[1]Wash. Rev. Code § 28B.12.020.

^[2]Unlike public colleges and universities, which administer reimbursements themselves, reimbursements for students at private institutions are handled by WSAC.

^[3]Wash. Admin. Code § 250-40-030(6).

^[4]Id.§ 250-40-050(8).

^[5]WSAC, State Work Study Program Manual2018-1913, https://wsac.wa.gov/sites/default/files/2018-19_SWS_ProgramManual.pdf.

^[6]Id.at41-42.

^[7]137 S. Ct. 2012, 2020 (June 26, 2017).

^[8]Id.

^[9]Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1731 (June 4, 2018) (quotation marks omitted).

^[10]Wash. Const. art. I, § 11; id.art. IX, § 4.

^[11]Mitchell v. Helms, 530 U.S. 793, 829 (2000) (plurality).

^[12]268 U.S. 510, 526 (1925).

^[13]http://www.ncek12.com/about-us/mission-statement

^[14]https://ijstaging.wpengine.com/staff/mbindas/

^[15]https://ijstaging.wpengine.com/staff/joshua-house/

^[16]Zelman v. Simmons-Harris, 536 U.S. 639 (2002); Arizona Christian School Tuition Organization v. Winn, 563 U.S. 125 (2011).

^[17]https://ijstaging.wpengine.com/case/montana-school-choice/

^[18]https://ijstaging.wpengine.com/case/florida-school-choice/

^[19]https://ijstaging.wpengine.com/case/puerto-rico-school-choice/