Witters v. Washington Department of Services for the Blind
Decided on Jan. 27, 1986; 474 US 481


A. Issues Discussed: Establishment Clause

B. Legal Question Presented:

Does extending assistance under a state vocational rehabilitation assistance program to a blind person studying at a Christian college and seeking to become a pastor violate the Establishment Clause of the First Amendment?

A. Background:

"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). 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.' Petitioner, suffering from a progressive eye condition, was eligible for vocational rehabilitation assistance under the terms of the statute. 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.

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,' and on its conclusion that petitioner's training was 'religious instruction' subject to that ban. That ruling was affirmed by a state hearings... 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. 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."

On certiorari the US Supreme Court reversed and remanded the judgment of the Supreme Court of Washington.

B. Counsel of Record:
Opposing Side
Unavailable Unavailable
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Charles B. Wiggins, Jack D. Novik, Charles S. Sims, and Burt Neuborne; for Americans United for Separation of Church and State by Lee Boothby and Walter E. Carson; and for the Anti-Defamation League of B'nai B'rith et al. by Ruti G. Teitel, Justin J. Finger, Jeffrey P. Sinensky, and Steven M. Freeman.

Timothy R. Malone, Assistant Attorney General of Washington, argued the cause for respondent. With him on the brief were Kenneth O. Eikenberry, Attorney General, Philip H. Austin, Senior Deputy Attorney General, and David R. Minkel, Assistant Attorney General.
Briefs of amici curiae urging reversal were filed for the United States by Acting Solicitor General Fried, Acting Assistant Attorney General Willard, Michael C. McConnell, Anthony J. Steinmeyer, and Michael Jay Singer; for the American Jewish Committee by Samuel Rabinove and Richard T. Foltin; for the American Jewish Congress by Marc D. Stern and Ronald A. Krauss; for the Christian Legal Society et al. by Samual Eric Hans Ericsson, Kimberly Wood Colby, and Forest D. Montgomery; for the Rutherford Institute et al. by Larry L. Crain, Guy O. Farley, Jr., John W. Whitehead, James J. Knicely, Thomas O. Kotouc, Wendell R. Bird, and William B. Hollberg; and for the National Legal Christian Foundation.

Michael P. Farris argued the cause and filed briefs for petitioner.

"We are guided, as was the court below, by the three-part test set out by this Court in Lemon.... 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 well-being of the visually handicapped through the provision of vocational rehabilitation 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 or that the secular purpose articulated by the legislature is merely 'sham.'

The answer to the question posed by the second prong of the Lemon test is more difficult.... 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... 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. Washington's program is 'made available generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited,' and is in no way skewed towards religion. ...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.

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 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. ...On the facts present here, we think the Washington program works no state support of religion prohibited by the Establishment Clause."

The US Supreme Court reversed and remanded the judgment of the Supreme Court of Washington.

Justice Vote: 0 Pro vs. 9 Con
  • Marshall, T. Con (Wrote majority opinion)
  • Burger, W. Con (Joined majority opinion)
  • Brennan, W. Con (Joined majority opinion)
  • White, B. Con (Wrote concurring opinion)
  • Blackmun, H. Con (Joined majority opinion)
  • Powell, L. Con (Wrote concurring opinion)
  • Rehnquist, W. Con (Joined majority opinion)
  • Stevens, J.P. Con (Joined majority opinion)
  • O'Connor, S.D. Con (Wrote concurring opinion)

    The ACLU, as amicus curiae, urged affirmance of the Supreme Court of Washington's judgment; the Supreme Court reversed and remanded in a 9-0 vote, giving the ACLU an apparent loss.