Petitioner, suffering from a progressive eye condition, applied
to the Washington Commission for the Blind for vocational
rehabilitation assistance pursuant to a Washington statute. At the
time, he was attending a private Christian college seeking to
become a pastor, missionary, or youth director. The Commission
denied aid on the ground that it was prohibited by the State
Constitution, and this ruling was upheld on administrative appeal.
Petitioner then brought an action in State Superior Court, which
affirmed the administrative ruling on the same state law grounds.
The Washington Supreme Court affirmed but based its ruling on the
Establishment Clause of the First Amendment, holding that the
provision of aid to petitioner would have the primary effect of
advancing religion in violation of that Clause.
Held: On the record, extension of aid under the
Washington vocational rehabilitation program to finance
petitioner's training at the Christian college would not advance
religion in a manner inconsistent with the Establishment Clause.
Pp.
474 U. S.
485-490.
(a) As far as the record shows, assistance provided under the
Washington program is paid directly to the student, who then
transmits it to the educational institution of his or her choice.
The program is in no way skewed towards religion, and creates no
financial incentive for students who undertake sectarian education.
Pp.
474 U. S.
487-488.
(b) Moreover, nothing in the record indicates that, if
petitioner succeeds, any significant portion of the aid expended
under the Washington program as a whole will end up flowing to
religious education. P.
474 U. S.
488.
(c) On the facts, it is inappropriate to view any aid ultimately
flowing to the Christian college as resulting from a state action
sponsoring or subsidizing religion. Nor does the mere circumstance
that petitioner has chosen to use neutrally available state aid to
help pay for his religious education confer any message of state
endorsement of religion. Pp.
474 U. S.
488-489.
102 Wash.
2d 624,
689
P.2d 53, reversed and remanded.
MARSHALL, J., delivered the opinion of the Court, in which
BURGER, C.J., and BRENNAN, WHITE, BLACKMUN, POWELL, REHNQUIST, and
STEVENS, JJ., joined, and in Parts I and III of which O'CONNOR,
J.,
Page 474 U. S. 482
joined. WHITE, J., filed a concurring opinion,
post, p.
474 U.S. 490. POWELL, J.,
filed a concurring opinion, in which BURGER, C.J., and REHNQUIST,
J., joined,
post, p.
474
U.S. 490. O'CONNOR, J., filed an opinion concurring in part
and concurring in the judgment,
post, p.
474 U. S.
493.
JUSTICE MARSHALL delivered the opinion of the Court.
The Washington Supreme Court ruled that the First Amendment
precludes the State of Washington from extending assistance under a
state vocational rehabilitation assistance program to a blind
person studying at a Christian college and seeking to become a
pastor, missionary, or youth director. Finding no such federal
constitutional barrier on the record presented to us, we reverse
and remand.
Page 474 U. S. 483
I
Petitioner Larry Witters applied in 1979 to the Washington
Commission for the Blind for vocational rehabilitation services
pursuant to Wash.Rev.Code § 74.16.181 (1981). [
Footnote 1] That statute authorized the
Commission,
inter alia, to "[p]rovide for special
education and/or training in the professions, business or trades"
so as to "assist visually handicapped persons to overcome
vocational handicaps and to obtain the maximum degree of
self-support and self-care."
Ibid. Petitioner, suffering
from a progressive eye condition, was eligible for vocational
rehabilitation assistance under the terms of the statute. [
Footnote 2] He was at the time
attending Inland Empire School of the Bible, a private Christian
college in Spokane, Washington, and studying the Bible, ethics,
speech, and church administration in order to equip himself for a
career as a pastor, missionary, or youth director. App. 7-8.
The Commission denied petitioner aid. It relied on an earlier
determination embodied in a Commission policy statement that
"[t]he 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,"
id. at 4, and on its conclusion that petitioner's
training was "religious
Page 474 U. S. 484
instruction" subject to that ban.
Id. at 1. That ruling
was affirmed by a state hearings examiner, who held that the
Commission was precluded from funding petitioner's training "in
light of the State Constitution's prohibition against the state
directly or indirectly supporting a religion." App. to Pet. for
Cert. F-6. The hearings examiner cited Wash.Const., Art. I, § 11,
providing in part that
"no 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 Wash.Const., Art. IX, § 4, providing that "[a]ll schools
maintained or supported wholly or in part by the public funds shall
be forever free from sectarian control or influence." App. to Pet.
for Cert. F-4. That ruling, in turn, was upheld on internal
administrative appeal.
Petitioner then instituted an action in State Superior Court for
review of the administrative decision; the court affirmed on the
same state law grounds cited by the agency. The State Supreme Court
affirmed as well.
Witters v. Commission for the
Blind, 102 Wash.
2d 624,
689 P.2d
53 (1984). The Supreme Court, however, declined to ground its
ruling on the Washington Constitution. Instead, it explicitly
reserved judgment on the state constitutional issue and chose to
base its ruling on the Establishment Clause of the Federal
Constitution. The court stated:
"The Supreme Court has developed a 3-part test for determining
the constitutionality of state aid under the establishment clause
of the First Amendment."
"First, the statute must have a secular legislative purpose;
second, its principal or primary effect must be one that neither
advances nor inhibits religion . . . ; finally, the statute must
not foster 'an excessive government entanglement with
religion.'"
"
Lemon v. Kurtzman,
[
403 U.S.
602,
403 U. S. 612-613 (1971)].
To withstand attack under the establishment clause, the challenged
state action
Page 474 U. S. 485
must satisfy each of the three criteria."
Id. at 627-628, 689 P.2d at 55.
The Washington court had no difficulty finding the "secular
purpose" prong of that test satisfied. Applying the second prong,
however, that of "principal or primary effect," the court held
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."
Id. at 629, 689 P.2d at 56. The court, therefore, held
that provision of aid to petitioner would contravene the Federal
Constitution. In light of that ruling, the court saw no need to
reach the "entanglement" prong; it stated that the record was in
any case inadequate for such an inquiry.
We granted certiorari, 471 U.S. 1002 (1985), and we now
reverse.
II
The Establishment Clause of the First Amendment has consistently
presented this Court with difficult questions of interpretation and
application. We acknowledged in
Lemon v. Kurtzman,
403 U. S. 602
(1971), that "we can only dimly perceive the lines of demarcation
in this extraordinarily sensitive area of constitutional law."
Id. at
403 U. S. 612,
quoted in
Mueller v. Allen, 463 U.
S. 388,
463 U. S. 393
(1983). Nonetheless, the Court's opinions in this area have at
least clarified "the broad contours of our inquiry,"
Committee
for Public Education and Religious Liberty v. Nyquist,
413 U. S. 756,
413 U. S. 761
(1973), and are sufficient to dispose of this case.
We are guided, as was the court below, by the three-part test
set out by this Court in
Lemon and quoted
supra,
at
474 U. S.
484-485.
See Grand Rapids School District v.
Ball, 473 U. S. 373,
473 U. S.
382-383 (1985). Our analysis relating to the first prong
of that test is simple: all parties concede the unmistakably
secular purpose of the Washington program. That program was
designed to promote the wellbeing of the visually handicapped
through the provision of vocational rehabilitation
Page 474 U. S. 486
services, and no more than a minuscule amount of the aid awarded
under the program is likely to flow to religious education. No
party suggests that the State's "actual purpose" in creating the
program was to endorse religion,
Wallace v. Jaffree,
472 U. S. 38,
472 U. S. 74
(1985), quoting
Lynch v. Donnelly, 465 U.
S. 668,
465 U. S. 690
(1984) (O'CONNOR, J., concurring), or that the secular purpose
articulated by the legislature is merely "sham."
Wallace,
supra, at
472 U. S. 64
(POWELL, J., concurring).
The answer to the question posed by the second prong of the
Lemon test is more difficult. We conclude, however, that
extension of aid to petitioner is not barred on that ground either.
[
Footnote 3] It is well settled
that the Establishment Clause is not violated every time money
previously in the possession of a State is conveyed to a religious
institution. For example, a State may issue a paycheck to one of
its employees,
Page 474 U. S. 487
who may then donate all or part of that paycheck to a religious
institution, all without constitutional barrier; and the State may
do so even knowing that the employee so intends to dispose of his
salary. It is equally well settled, on the other hand, that the
State may not grant aid to a religious school, whether cash or in
kind, where the effect of the aid is "that of a direct subsidy to
the religious school" from the State.
Grand Rapids School
District v. Ball, 473 U.S. at
473 U. S. 394.
Aid may have that effect even though it takes the form of aid to
students or parents.
Ibid.; see, e.g., Wolman v. Walter,
433 U. S. 229,
433 U. S.
248-251 (1977);
Committee for Public Education and
Religious Liberty v. Nyquist, supra; Sloan v. Lemon,
413 U. S. 825
(1973). The question presented is whether, on the facts as they
appear in the record before us, extension of aid to petitioner and
the use of that aid by petitioner to support his religious
education is a permissible transfer similar to the hypothetical
salary donation described above, or is an impermissible "direct
subsidy."
Certain aspects of Washington's program are central to our
inquiry. As far as the record shows, vocational assistance provided
under the Washington program is paid directly to the student, who
transmits it to the educational institution of his or her choice.
Any aid provided under Washington's program that ultimately flows
to religious institutions does so only as a result of the genuinely
independent and private choices of aid recipients. [
Footnote 4] Washington's program is "made
available generally, without regard to the sectarian-nonsectarian,
or public-nonpublic, nature of the institution benefited,"
Committee for Public Education and Religious
Page 474 U. S.
488
Liberty v. Nyquist, 413 U.S. at
413 U. S.
782-783, n. 38, and is in no way skewed towards
religion. It is not one of "the ingenious plans for channeling
state aid to sectarian schools that periodically reach this Court,"
id. at
413 U. S. 785.
It creates no financial incentive for students to undertake
sectarian education,
see id. at
413 U. S.
785-786. It does not tend to provide greater or broader
benefits for recipients who apply their aid to religious education,
nor are the full benefits of the program limited, in large part or
in whole, to students at sectarian institutions. On the contrary,
aid recipients have full opportunity to expend vocational
rehabilitation aid on wholly secular education, and, as a practical
matter, have rather greater prospects to do so. Aid recipients'
choices are made among a huge variety of possible careers, of which
only a small handful are sectarian. In this case, the fact that aid
goes to individuals means that the decision to support religious
education is made by the individual, not by the State.
Further, and importantly, nothing in the record indicates that,
if petitioner succeeds, any significant portion of the aid expended
under the Washington program as a whole will end up flowing to
religious education. The function of the Washington program is
hardly "to provide desired financial support for nonpublic,
sectarian institutions."
Id. at
413 U. S. 783;
see Sloan v. Lemon, supra; cf. Meek v. Pittenger,
421 U. S. 349,
421 U. S.
363-364 (1975). The program, providing vocational
assistance to the visually handicapped, does not seem well suited
to serve as the vehicle for such a subsidy. No evidence has been
presented indicating that any other person has ever sought to
finance religious education or activity pursuant to the State's
program. The combination of these factors, we think, makes the link
between the State and the school petitioner wishes to attend a
highly attenuated one.
On the facts we have set out, it does not seem appropriate to
view any aid ultimately flowing to the Inland Empire School of the
Bible as resulting from a
state action sponsoring or
subsidizing religion. Nor does the mere circumstance
Page 474 U. S. 489
that petitioner has chosen to use neutrally available state aid
to help pay for his religious education confer any message of state
endorsement of religion.
See Lynch v. Donnelly, 465 U.S.
at
465 U. S. 688
(O'CONNOR, J., concurring). Thus, while
amici supporting
respondent are correct in pointing out that aid to a religious
institution unrestricted in its potential uses, if properly
attributable to the State, is "clearly prohibited under the
Establishment Clause,"
Grand Rapids, supra, at
473 U. S. 395,
because it may subsidize the religious functions of that
institution, that observation is not apposite to this case. On the
facts present here, we think the Washington program works no state
support of religion prohibited by the Establishment Clause.
[
Footnote 5]
III
We therefore reject the claim that, on the record presented,
extension of aid under Washington's vocational rehabilitation
program to finance petitioner's training at a Christian college to
become a pastor, missionary, or youth director would advance
religion in a manner inconsistent with the Establishment Clause of
the First Amendment. On remand, the state court is, of course, free
to consider the applicability of the "far stricter" dictates of the
Washington State Constitution,
see Witters v. Commission for
the Blind, 102 Wash. 2d at 626, 689 P.2d at 55. It may also
choose to reopen the factual record in order to consider the
arguments made by respondent and discussed in nn.
3 and |
3
and S. 481fn5|>5,
supra. We decline petitioner's
invitation to leapfrog consideration of those issues by holding
that the Free Exercise Clause requires Washington to extend
vocational rehabilitation aid to petitioner regardless of what the
State Constitution commands or further factual development reveals,
and we express �
3 and S. 490�
no opinion on that matter.
See Rescue Army v. Municipal
Court, 331 U. S. 549,
331 U. S. 568
(1947).
The judgment of the Washington Supreme Court is reversed, and
the case is remanded for further proceedings not inconsistent with
this opinion.
It is so ordered.
[
Footnote 1]
In 1983, the Washington Legislature repealed chapters 74.16 and
74.17 of the Code, enacting in their place a new chapter 74.18. The
statutory revision abolished the Commission for the Blind and
created respondent Department of Services for the Blind.
See 1983 Wash.Laws, ch.194, § 3. We shall refer to
respondent for purposes of this opinion as "the Commission. "
[
Footnote 2]
Washington Rev.Code, ch. 74.18,
see n 1,
supra, establishes a requirement
that aid recipients be persons who
"(1) have no vision or limited vision which constitutes or
results in a substantial handicap to employment and (2) can
reasonably be expected to benefit from vocational rehabilitation
services in terms of employability."
Wash.Rev.Code § 74.18.130 (1983) (effective June 30, 1983). It
has not been established whether petitioner is eligible for aid
under the new standard. That determination, however, will have no
effect on any claim asserted by petitioner for reimbursement of aid
withheld beginning in 1979.
[
Footnote 3]
Respondent offers extensive argument before this Court relating
to the practical workings of the state vocational assistance
program. Focusing on the asserted practical "nature and operation
of that program," Brief for Respondent 6, respondent asserts that
the nature of the program in fact leads to an impermissible
"symbolic union" of governmental and religious functions,
"requir[ing] government choices at every step of the rehabilitation
process" and "intertwining . . . governmental decisionmaking . . .
with decisionmaking by church and school authorities."
Id.
at 20. Respondent contends that the program therefore violates the
second and third prongs of the
Lemon test in a way that
"hands off" aid, such as that provided pursuant to the GI Bill,
does not.
Id. at 11.
This argument, however, was not presented to the state courts,
and appears to rest in large part on facts not part of the record
before us. Because this Court must affirm or reverse upon the case
as it appears in the record,
Russell v.
Southard, 12 How. 139,
53 U. S. 159
(1851);
see also New Haven Inclusion Cases, 399 U.
S. 392,
399 U. S. 450,
n. 66 (1970), we have no occasion to consider the argument here.
Nor is it appropriate, as a matter of good judicial administration,
for us to consider claims that have not been the subject of factual
development in earlier proceedings. On remand, it will be up to the
Washington Supreme Court as a matter of state procedural law
whether and to what extent it should reopen the record for the
introduction of evidence on the issues raised for the first time in
this Court.
[
Footnote 4]
This is not the case described in
Grand Rapids School
District v. Ball, 473 U. S. 373,
473 U. S. 396
(1985) ("Where . . . no meaningful distinction can be made between
aid to the student and aid to the school,
the concept of a loan
to individuals is a transparent fiction'"), quoting Wolman v.
Walter, 433 U. S. 229,
433 U. S. 264
(1977) (opinion of POWELL, J.); see also Wolman, supra, at
433 U. S.
250.
[
Footnote 5]
We decline to address the "entanglement" issue at this time. As
a prudential matter, it would be inappropriate for us to address
that question without the benefit of a decision on the issue below.
Further, we have no reason to doubt the conclusion of the
Washington Supreme Court that that analysis could be more
fruitfully conducted on a more complete record.
JUSTICE WHITE, concurring.
I remain convinced that the Court's decisions finding
constitutional violations where a State provides aid to private
schools or their students misconstrue the Establishment Clause and
disserve the public interest. Even under the cases in which I was
in dissent, however, I agree with the Court that the Washington
Supreme Court erred in this case. Hence, I join the Court's opinion
and judgment. At the same time, I agree with most of JUSTICE
POWELL's concurring opinion with respect to the relevance of
Mueller v. Allen, 463 U. S. 388
(1983), to this case.
JUSTICE POWELL, with whom THE CHIEF JUSTICE and JUSTICE
REHNQUIST join, concurring.
The Court's omission of
Mueller v. Allen, 463 U.
S. 388 (1983), from its analysis may mislead courts and
litigants by suggesting that
Mueller is somehow
inapplicable to cases such as this one. [
Footnote 2/1] I write separately to emphasize that
Mueller strongly supports the result we reach today.
As the Court states, the central question in this case is
whether Washington's provision of aid to handicapped students has
the "principal or primary effect" of advancing religion.
Lemon
v. Kurtzman, 403 U. S. 602,
403 U. S. 612
(1971).
See also Committee for Public Education and Religious
Liberty v. Nyquist, 413 U. S. 756,
413 U. S.
783-785, n. 39 (1973).
Mueller makes the answer
clear: state programs that are wholly
Page 474 U. S. 491
neutral in offering educational assistance to a class defined
without reference to religion do not violate the second part of the
Lemon v. Kurtzman test, [
Footnote 2/2] because any aid to religion results from
the private choices of individual beneficiaries.
Mueller,
463 U.S. at
463 U. S.
398-399. Thus, in
Mueller, we sustained a tax
deduction for certain educational expenses, even though the great
majority of beneficiaries were parents of children attending
sectarian schools.
Id. at
463 U. S. 401.
We noted the State's traditionally broad taxing authority,
id. at
463 U. S. 396,
but the decision rested principally on two other factors. First,
the deduction was equally available to parents of public school
children and parents of children attending private schools.
Id. at
463 U. S. 397;
see Nyquist, supra, at
413 U. S.
782-783, n. 38. Second, any benefit to religion resulted
from the "numerous private choices of individual parents of
school-age children."
Mueller, supra, at
463 U. S.
399.
The state program at issue here provides aid to handicapped
students when their studies are likely to lead to employment. Aid
does not depend on whether the student wishes to attend a public
university or a private college, nor does it turn on whether the
student seeks training for a religious or a secular career. It
follows that, under
Mueller, the State's program does not
have the "principal or primary effect" of advancing religion.
[
Footnote 2/3]
Page 474 U. S. 492
The Washington Supreme Court reached a different conclusion
because it found that the program had the practical effect of
aiding religion
in this particular case. Witters v.
Commission for the Blind, 102 Wash.
2d 624, 628-629,
689
P.2d 53, 56 (1984). In effect, the court analyzed the case as
if the Washington Legislature had passed a private bill that
awarded petitioner free tuition to pursue religious studies.
Such an analysis conflicts with both common sense and
established precedent. [
Footnote
2/4] Nowhere in
Mueller did we analyze the effect of
Minnesota's tax deduction on the parents who were parties to the
case; rather, we looked to the nature and consequences of the
program
viewed as a whole. Mueller, supra, at
463 U. S.
397-400. The same is true of our evaluation of the
tuition reimbursement programs at issue in
Nyquist, supra,
at
413 U. S.
780-789, and
Sloan v. Lemon, 413 U.
S. 825,
413 U. S.
830-832 (1973).
See also Board of Education v.
Allen, 392 U. S. 236,
392 U. S.
243-244,
392 U. S. 248
(1968);
Everson v. Board of Education, 330 U. S.
1,
330 U. S. 16-17
(1947). This is the appropriate perspective for this case as well.
Viewed in the proper light, the Washington program easily satisfies
the second prong of the
Lemon test.
I agree, for the reasons stated by the Court, that the State's
program has a secular purpose, and that no entanglement challenge
is properly raised on this record. I therefore join the Court's
judgment. On the understanding that nothing we do today lessens the
authority of our decision in
Mueller, I join the Court's
opinion as well.
Page 474 U. S. 493
[
Footnote 2/1]
The Court offers no explanation for omitting
Mueller
from its substantive discussion. Indeed, save for a single citation
on a phrase with no substantive import whatever,
ante at
474 U. S. 485,
Mueller is not even mentioned.
[
Footnote 2/2]
Cf. Sloan v. Lemon, 413 U. S. 825,
413 U. S. 832
(1973):
"The State has singled out a class of its citizens for a special
economic benefit. Whether that benefit be viewed as a simple
tuition subsidy, as an incentive to parents to send their children
to sectarian schools, or as a reward for having done so, at bottom,
its intended consequence is to preserve and support
religion-oriented institutions."
[
Footnote 2/3]
Contrary to the Court's suggestion,
see ante at
474 U. S. 488,
this conclusion does not depend on the fact that petitioner appears
to be the only handicapped student who has sought to use his
assistance to pursue religious training. Over 90% of the tax
benefits in
Mueller ultimately flowed to religious
institutions.
Compare Mueller v. Allen, 463 U.S. at
463 U. S. 401,
with id. at
463 U. S. 405
(MARSHALL, J., dissenting). Nevertheless, the aid was thus
channeled by individual parents, and not by the State, making the
tax deduction permissible under the "primary effect" test of
Lemon.
[
Footnote 2/4]
Under the Washington Supreme Court's approach, the government
could never provide aid of any sort to one who would use it for
religious purposes, no matter what the characteristics of the
challenged program. This Court has never taken such an approach.
See Walz v. Tax Comm'n, 397 U. S. 664
(1970);
Everson v. Board of Education, 330 U. S.
1,
330 U. S. 16
(1947).
JUSTICE O'CONNOR, concurring in part and concurring in the
judgment.
I join Parts I and III of the Court's opinion, and concur in the
judgment. I also agree with the Court that both the purpose and
effect of Washington's program of aid to handicapped students are
secular. As JUSTICE POWELL's separate opinion persuasively argues,
the Court's opinion in
Mueller v. Allen, 463 U.
S. 388 (1983), makes clear that
"state programs that are wholly neutral in offering educational
assistance to a class defined without reference to religion do not
violate the second part of the
Lemon v. Kurtzman test,
because any aid to religion results from the private decisions of
beneficiaries."
Ante at
474 U.S.
490-491 (POWELL, J., concurring) (footnote omitted). The aid
to religion at issue here is the result of petitioner's private
choice. No reasonable observer is likely to draw from the facts
before us an inference that the State itself is endorsing a
religious practice or belief.
See Lynch v. Donnelly,
465 U. S. 668,
465 U. S. 690
(1984) (O'CONNOR, J., concurring).