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September 8, 2003
Union Of Orthodox Jewish Congregations Joins In Asking U.S. Supreme Court
To Reject Religious Discrimination In State College Scholarship Awards To
Students
Today, the Union of Orthodox
Jewish Congregations of America – the nation’s largest Orthodox Jewish
umbrella organization – through its Institute for Public Affairs, joined
with other national Orthodox Jewish organizations in filing a “friend of
the court” brief with the United States Supreme Court urging the court to
guarantee that religious college students who qualify for state-funded
scholarships are not disqualified on the basis of religiously
discriminatory policies. The brief, filed in the case of Locke v. Davey
under the aegis of the National Jewish Coalition On Law & Political
Affairs, was principally authored by Washington attorney and Union board
member Nathan Lewin.
The case arises from a decision by Washington State to revoke its award of
a “Promise Scholarship” to Joshua Davey. Washington established the
Promise program to reward achieving students and encourage their further
study in-state. Davey met all of eligibility criteria (which had nothing
to do with religion) and was awarded his Promise Scholarship. The
scholarship was revoked when the State learned that Davey decided to
attend Northwest College a (duly accredited Christian college) and pursue
as one of his two majors Pastoral Studies. Upon his scholarship being
revoked, Davey sued claiming that his constitutionally protected rights to
the free exercise of religion, freedom of speech and equal protection
rights were violated. Washington State asserted that their revocation of
his scholarship was required by a state constitutional ban on public funds
supporting religious activity. While a federal trial court ruled for
Washington, the federal appeals court ruled in favor of Davey. The U.S.
Court of Appeals stated that the policy disqualifying Davey “lacked
neutrality on its face” and that forcing Davey to choose between forgoing
his chosen course of study or foregoing his scholarship was a clear
violation of the First Amendment to the U.S. Constitution which could not
be ignored on the basis of a state constitutional provision.
In the friend of the court brief, the UOJCA and other Orthodox Jewish
organizations sought to inform the court how, from the Jewish perspective,
the study of religious text is an essential component of the free exercise
of religion protected by the Constitution. The brief informs the court
that study of religious teachings is a central component for observant
Jews, including Jewish college students. Thus, states the brief: “The
effect of the Washington State statute that disqualifies any student who
is ‘pursuing a degree in theology’ from receiving a Promise Scholarship is
equivalent, in a constitutional sense, to a disqualification of any
student who wears a yarmulke, or any student who eats only food prescribed
by religious dietary laws, or any student who observes Saturdays as the
Sabbath. It removes a student who is otherwise fully qualified and
eligible for personal financial assistance from the roster of eligible
students exclusively because he or she takes his or her religion
seriously. That form of discrimination violates the Free Exercise Clause
of the United States Constitution and cannot be justified by a purported
policy of Washington State to erect a higher “Wall of Separation” between
Church and State than is provided by the Establishment Clause.”
For more commentary and perspective on this case, see the
published op ed.
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