The State of Washington, on the relation of Mary Gallwey, Respondent, v. Daniel K. Grimm, as State Treasurer, et al., Appellants, 146 Wash. 2d 445

Madsen, J. — Mary Gallwey filed this matter as an original action under

article IV,

section 4 of the Washington State Constitution, seeking a writ of prohibition against Higher Education Coordinating Board (HECB), Daniel Grimm (former State Treasurer), and the Washington Association of Independent Colleges and Universities (WAICU). Gallwey’s complaint alleged that Washington’s educational opportunity grant (EOG) program, RCW 28B.101.010, violates

article IX,

section 4,

article I,

section 11, and

article VIII,

section 5 of the Washington State Constitution, and the First Amendment to the United States Constitution.

The EOG program provides tuition grants of up to $2,500 for upper division course work, which may be used at public or private institutions, for students who have completed an associate of arts degree or its equivalent and are considered “placebound.” A placebound student is one who “because of family or employment commitments, health concerns, financial consideration, or similar factors, [is] unlikely to complete the junior or senior year of a baccalaureate degree without enhanced financial assistance.” Clerk’s Papers (CP) at 1081; RCW 28B.101.020.

We initially transferred this case to Thurston County Superior Court for trial. The trial court struck down the EOG Program on the ground that it violated

article IX,

section 4 of the Washington State Constitution, which provides that “[a] 11 schools maintained or supported wholly or in part by the public funds shall be forever free from sectarian control or influence.” Although the trial court found that

article IX,

section 4 was not intended to apply to institutions of higher education, it nevertheless determined that it was bound by two of this court’s prior decisions, Weiss v. Bruno, 82 Wn.2d 199, 509 P.2d 973 (1973), and State Higher Education Assistance Authority v. Graham, 84 Wn.2d 813, 529 P.2d 1051 (1974), to hold otherwise. The trial court did not reach any of Gallwey’s additional contentions. In order to answer the questions in this case we are called on to resolve conflicting cases from this court relating to both

article IX,

section 4, and

article I,

section 11. After a thorough review of the constitutional provisions at issue, we reverse and uphold the EOG program under the Washington and United States Constitutions. FACTS The findings of fact in this case are uncontested and, therefore, are verities on appeal. St. Francis Extended Health Care v. Dep’t of Soc. & Health Servs., 115 Wn.2d 690, 692, 801 P.2d 212 (1990). a. The EOG Program In the late 1960s, the Legislature created a system of community colleges designed to provide Washington’s citizens with convenient geographic access to the first two years of college and vocational training. CP at 1077.

Washington’s community college system achieved one of the highest participation rates of any program in the nation. Id. This high participation rate has consistently stood in stark contrast to the comparatively low, and declining, participation rate for upper division (junior and senior level) college course work. Id. In response to this trend, the HECB was formed in 1985. The HECB was instructed by the Legislature to create a master plan.

In its first master plan, in 1987, the HECB determined that Washington ranked 39th in participation at four-year colleges, concluding that “much of the state’s population, especially in the Spokane, Tri-Cities, Vancouver and Puget Sound areas, has insufficient and inequitable access to upper division baccalaureate education.” CP at 1078. It was this revelation that served as the impetus for creation of Washington’s branch campus university system, with the branch campuses being limited to upper division course work.

As a further response, a 1988 University of Washington study commissioned by and for the HECB recommended a tuition voucher program for students who had completed the associate of arts degree or its equivalent to use at the region’s private universities. This recommendation was based on three findings:

(1) Washington’s participation rate for upper division course work was 10 percent below the national average; (2) the State’s largest population growth was occurring in areas surrounding Seattle that were not served by a public university; and (3) there was a significant disparity in access to upper division course work based on geography. The Washington Business Roundtable joined in the call for a financial aid program providing grants that would allow students the choice of public or independent institutions to complete their upper division course work. In 1990, the Legislature enacted Laws of 1990,

chapter 288, which provides for an EOG of up to $2,500 per year to prospective upper division college students as an incentive to help them complete a baccalaureate degree at schools where there is existing capacity. Applicants must have an associate of arts degree at their enrolling institution, live in an eligible county, have sufficient financial need, and be “placebound.” The EOG program is now codified at

chapter 28B.101 ROW. The HECB was called upon to promulgate rules to implement the statutory mandate. The significant program

definitions and eligibility criteria follow: (

a) Students must have completed at least two years of college; (

b) They must have earned an associate degree or its equivalent but not a baccalaureate; (

c) They must intend to complete a baccalaureate degree; (

d) They must meet the definition of “placebound,” i.e., because of family or employment commitments, health concerns, financial consideration, or similar factors, they are unlikely to complete the junior or senior year of a baccalaureate degree without enhanced financial assistance; (

e) Their place of permanent residence must be within a branch campus service area, defined as Benton, Clark, Cowlitz, Franklin, King, Kitsap, Pierce, Skamania, Snohomish, Spokane, Thurston, Walla Walla, and Yakima Counties; (

f) They must be willing to attend a Washington public or private four year college or university with existing unused capacity; (

g) Recipients may not use the grant at any of the five branch campuses; (

h) They must adhere to the EOG Program’s religious exclusion; (

i) The student must demonstrate financial need as calculated by the institution using the federal methodology formula. The student’s EOG award, in combination with other forms of aid, may not exceed the calculated need; (

j) The award must replace unmet need or self-help assistance. CP at 1081. Students submit an application to apply for an EOG. The application consists of three parts. The student completes parts A and B.

Part C, the “School Financial Aid Worksheet,” is completed by the financial aid administrator using financial aid information to determine applicant eligibility and to provide the database for recipient profiles. The student may submit parts A and B directly to the HECB or to the school, which will then forward the entire application to the HECB.

As part of the application the student must sign an agreement, including a statement of understanding, that the college “shall not require the student to be enrolled in any program that includes religious worship, exercise, or instruction, and that the student cannot be pursuing any degree in religious, seminarian, or theological academic studies while receiving the EOG.” CP at 1082. Once an application is received the HECB screens it for completeness and eligibility. Then, a selection committee reviews the applications, awarding points based on an applicant’s placebound status and financial need.

Priorities for available funding are for renewals first, new full-time applicants second, and third year petitions last. No preference is given, dependent on an applicant’s desire to attend either a public or private institution. Public institutions may disburse the EOG to the student or credit it to the student’s account. Private institutions must disburse the EOG directly to the student rather than automatically placing the funds in the student’s account at the school.

Students must be provided the opportunity to cash the EOG at his or her own bank or to request that the funds be disbursed directly to the student’s account at the educational institution. Title to the grant funds transfers from the State to the student during disbursement. Just as the student must sign an agreement, the institution’s financial aid officer must sign the HECB-produced Institutional Certification of Student Eligibility form, which certifies: (

a) The student will not be required by the institution to be involved in any educational program that includes any religious worship, exercise, or instruction; (

b) Will not, for the duration of the academic year during which the grant is disbursed, be enrolled for any classes that include any religious worship, exercise, or instruction, or be pursuing a degree in religion, seminarian, or theological academic studies; and further, (

c) Is precluded by the institution, for the duration of the award period during which the grant is disbursed, from enrolling in any classes determined by the institution to include any religious worship, exercise, or instruction, or from pursuing a degree in religion, seminarian, or theological academic studies. CP at 1086. b. Procedural History of this Lawsuit In 1995, Mary Gallwey, in her capacity as a taxpayer and resident of Washington, filed this matter as an original action under

article IV,

section 4 of the Washington State Constitution, seeking a writ of prohibition. The named respondents were the HECB and Daniel Grimm, the State Treasurer at the time. The WAICU also intervened as a respondent. Gallwey alleged that Washington’s EOG program, RCW 28B.101.010, violates

article IX,

section 4,

article I,

section 11, and

article VIII,

section 5 of the Washington State Constitution, and the First Amendment Establishment Clause of the United States Constitution. She sought a judgment declaring the EOG program invalid and prohibiting further disbursements by the State. The Supreme Court Commissioner transferred the case to Thurston County Superior Court for trial. After a trial, the Thurston County Superior Court struck down the EOG program on the ground that it violated

article EX,

section 4 of the Washington State Constitution, which provides that “[a]ll schools maintained or supported wholly or in part by the public funds shall be forever free from sectarian control or influence.” Specifically, the trial court found that [t]he EOG Program, as applied to students attending Northwest College and all private institutions of higher learning represented by intervenor respondent WAICU (except the University of Puget Sound), violates

Article IX, § 4 of the Washington Constitution. CP at 1245. Those institutions affected by the trial court’s ruling are St. Martin’s College, Seattle University, Pacific Lutheran University, Gonzaga Universfiy Whitworth College, Seattle Pacific University, Northwest College, and Heritage College. CP at 1248-50. The Thurston County Superior Court found that

article EX,

section 4 was not intended to apply to institutions of higher education, but nevertheless determined that it was bound by this court’s decisions in Weiss, 82 Wn.2d 199 and Graham, 84 Wn.2d 813. In both Weiss and Graham, this court applied

article EX,

section 4 to institutions of higher education without addressing the specific question of whether the provision should apply to higher education. The trial court did not reach any of Gallwey’s additional contentions, and, on its own motion, determined that the EOG program should not be enjoined pending a decision by this court. As explained by the trial court: As I have previously stated during other hearings, I fully expect that this decision will be reversed by the Supreme Court because

Article IX, § 4 was never intended to apply to institutions of higher education, however, that decision rests with the Supreme Court not with the Superior Court of Thurston County. Because I expect that my decision will be reversed, I am not inclined to order the Higher Education Coordinating Board to stop payments during this interim time period. If petitioner requests a moratorium on payments while the case is on appeal, that request should be made to the Supreme Court. CP at 647.

The University of Puget Sound, the Pacific Legal Foundation and American Civil Rights Union, the Becket Fund for Religious Liberty, and the National Association of Independent Colleges and Universities (NAICU) have all filed amici curiae briefs in support of reversal. Americans United for the Separation of Church and State, and People for the American Way, have jointly filed an amici curiae brief in support of affirmance.

ANALYSIS We begin our analysis with the settled principle that a party challenging the constitutionality of a statute must demonstrate beyond a reasonable doubt that the statute is invalid and must rebut the presumption that all legally necessary facts exist. County of Skamania v. State, 102 Wn.2d 127, 132, 685 P.2d 576 (1984); In re Marriage of Johnson, 96 Wn.2d 255, 258, 634 P.2d 877 (1981); City of Bellevue v. State, 92 Wn.2d 717, 720, 600 P.2d 1268 (1979). With this principle in mind, we will, in turn, analyze each of Gallwey’s constitutional arguments. A.

Article IX,

section 4 The principal issue in this case is whether the EOG program is invalid under

article IX,

section 4 of the Washington State Constitution. That provision provides: All schools maintained or supported wholly or in part by the public funds shall be forever free from sectarian control or influence. Const, art. IX, § 4 (emphasis added). It is this court’s “duty under

article 9,

section 4 to ascertain first whether [the EOG program] supports the subject schools, even in part, with public funds and second, if so, whether these schools are free from sectarian control or influence.” Weiss, 82 Wn.2d at 205-06. Neither party seriously disputes that the EOG program supports the subject colleges and universities with public funds. Indeed, our prior decisions have foreclosed any credible argument to the contrary.

See id. at 207 (“we long ago rejected the theory that ‘indirect’ or ‘incidental’ state support... is permissible”); Graham, 84 Wn.2d at 817 (invalidating program that purchased school loans of needy college students because such funds will “assist D the student to stay in school”). Instead, appellants contend that

article IX,

section 4 was not intended to be applied to institutions of higher education because the phrase “all schools” does not bring them within its grasp. Appellants further argue that even if the provision is applied to institutions of higher education, the member schools of the WAICU are free from sectarian control or influence. As noted, the trial court accepted appellants’ argument “that

Article IX, § 4 of the Washington Constitution was not intended to apply to institutions of higher education,” CP at 1245, but felt constrained to hold otherwise by two of this court’s prior unanimous decisions, Weiss, 82 Wn.2d 199, and Graham, 84 Wn.2d 813. The parties dispute the extent to which Weiss and Graham are precedential on this point. Although both decisions applied

article IX,

section 4 to institutions of higher education, neither directly addressed the question of whether the phrase “all schools” encompasses institutions of higher education. Prior to addressing the import of Weiss and Graham to this case, it is important to note that the question of whether or not a “school” under

article IX,

section 4 includes a university was not totally untouched by this court at the time these cases were decided. In Litchman v. Shannon, 90 Wash. 186, 155 P. 783 (1916), this court was presented with a challenge to the University of Washington’s ability to charge tuition. It was alleged that

article XXVI and

article EX, sections 1 and 2, which mandate that the State provide free “public school” education, applied to the State’s universities. This court held that the University of Washington was not a public school within the meaning of

article EX. Id. at 191 (“A school is ‘an institution of learning of a lower grade, below a college or a university. A place of primary instruction.’ ”). Also, just prior to this court’s decisions in Weiss and Graham, in a case dealing with

article EX,

section 1, this court flatly stated that “[ajrticle 9 does not apply to the University of Washington, but is addressed only to the ‘common schools.’ ” DeFunis v. Odegaard, 82 Wn.2d 11, 43, 507 P.2d 1169 (1973) (citation omitted). Neither Weiss nor Graham acknowledged Litchman or DeFunis. Two separate legislative enactments were challenged in Weiss. The first was a financial assistance program for students in grades 1-12, which provided monetary grants to needy students attending public and private schools.

Funds were disbursed to help students with purchasing supplies, tuition, books, and incidental and other fees. The second enactment was a “ ‘tuition supplement program to undergraduate resident students attending an accredited independent or private institution of higher education within the state of Washington.’ ” Weiss, 82 Wn.2d at 222 (quoting former RCW 28B.10.832 (1971) (repealed 1985)). This court struck down both of the programs, noting that the breadth of

article EX,

section 4 is sweeping: [T]he proscription of

article 9,

section 4 is far stricter than the more generalized prohibition of the first amendment to the United States Constitution. While the establishment clause broadly condemns any law “respecting an establishment of religion,” our constitution specifically demands that no public funds be used to maintain or support any school which is under sectarian control or influence. There is no such thing as a “de minimis” violation of

article 9,

section 4. Nor is a violation of this provision determined by means of a balancing process. The words . . . mean precisely what they say; the prohibition is absolute. ... In interpreting this provision we long ago rejected the theory that “indirect” or “incidental” state support of a sectarian school is permissible. Id. at 206-07 (footnote omitted). In striking down the higher education tuition supplement program, this court stated that “the ultimate result of both the act and the plan here is to support, in part, the schools in question with public funds.” Id. at 224. Despite this court’s reference to institutions of higher education as “the schools” the question of whether

article IX,

section 4 was intended to apply to institutions of higher education was neither raised nor critically examined. One year after Weiss, in 1974, this court decided Graham. The enactment challenged in Graham was a student loan purchase program, whereby a corporate authority was established to buy student loans from financial institutions and educational institutions as a form of aid to needy students. This court unanimously struck down the enactment, stating that [t]he whole problem of aid to sectarian schools has been considered by this court on many occasions. The most recent case on that issue was Weiss v.

Bruno .... In Weiss v. Bruno ... the money was required to be used for tuition. In the instant case the funds are loaned to the student to use in attending college. Part of the loaned funds will almost certainly be used to pay tuition, and the remainder will benefit the college in many ways by assisting the student to stay in school. In short, the form is different from Weiss, but the substance is in no way different. Graham, 84 Wn.2d at 817. Just as in Weiss, this court applied

article IX,

section 4 to institutions of higher education, but did not address the question of whether the provision was intended to apply to higher education. No party in either Weiss or Graham briefed the issue. Nevertheless, there is no doubt that the holdings of Weiss and Graham assume that

article IX,

section 4 applies to institutions of higher education. As our review of the cases makes clear, this court’s

article IX,

section 4 jurisprudence has been traveling on two divergent tracks. Accordingly, it is our obligation to resolve the apparent conflict between our decisions in Litchman and DeFunis and the Weiss and Graham cases. Initially, it should be noted that this court is not constrained to follow a decision where the opinion’s holding controls an issue, but the issue was not raised in the case.

As this court has stated: Without discussing the economic loss rule or whether a cause of action may be brought in tort for economic damages due to construction delays, this court affirmed the subcontractor’s jury verdict against the architect for negligence. In cases where a legal theory is not discussed in the opinion, that case is not controlling on a future case where the legal theory is properly raised. See Webster v. Fall, 266 U.S. 507, 511, 69 L. Ed. 411, 45 S.

Ct. 148 (1925) (questions which merely lurk in the record, but are neither brought to a court’s attention nor ruled upon, are not considered to have been decided so as to constitute precedent).... Berschauer/Phillips Constr. Co. v. Seattle Sch. Dist. No. 1, 124 Wn.2d 816, 824, 881 P.2d 986 (1994); see also ETCO, Inc. v. Dep’t of Labor & Indus., 66 Wn. App. 302, 306-07, 831 P.2d 1133 (1992). As this court noted in Greene v.

Rothschild, 68 Wn.2d 1, 8, 402 P.2d 356 (1965), stare decisis will not be applied where to do so would perpetuate error so long as no property rights would be affected by overruling the prior decision. Accordingly, since Weiss and Graham contain no analysis concerning whether institutions of higher learning are “schools” within the meaning of

article IX,

section 4, they are not binding precedent. As in any dispute involving a constitutional question, we must determine the intended meaning of

article IX,

section 4. “Appropriate constitutional analysis begins with the text and, for most purposes, should end there as well. The text necessarily includes the words themselves, their grammatical relationship to one another, as well as their context.” Malyon v. Pierce County, 131 Wn.2d 779, 799, 935 P.2d 1272 (1997) (footnote omitted). This court’s “objective is to define the constitutional principle in accordance with the original understanding of the ratifying public so as to faithfully apply the principle to each situation which might thereafter arise.” Id.

Respondent’s first argument is that the term “all” in the phrase “all schools” acts to include institutions of higher education within its scope. Specifically, respondent notes that within

article IX the term “school” is normally used as a compound term. See art. IX, § 2 (common schools, public schools, high schools, normal schools, technical schools). According to respondent, this means that the term “all” is broad enough to sweep within its scope universities. However, respondent’s argument turns on one major assumption, that the term “school” can fairly be said to include institutions of higher education. Respondent cites to a 1990 edition of Black’s Law Dictionary that broadly defines school as an “institution or place for instruction or education.” Br. of Resp’t at 27.

But, as appellants note, a dictionary definition published over one hundred years after the constitution’s ratification provides little guidance in ascertaining “the original understanding of the ratifying public.” Malyon, 131 Wn.2d at 799. In fact, as appellants observe, there are significant indications that a different meaning may have been intended by the delegates. Congress allowed Washington to join the Union pursuant to the Enabling Act, which also permitted the admittance of North Dakota, South Dakota, and Montana. Enabling Act, ch. 180, 25 Stat. 676 (1889).

As a condition of statehood, Washington was required to provide “for the establishment and maintenance of systems of public schools, which shall be open to all the children of said States, and free from sectarian control.” Enabling Act § 4. This mandate was embodied in the portion of Washington’s constitution reiterating its contract with the United States.

Article XXVT of Washington’s constitution provides that “[provision shall be made for the establishment and maintenance of systems of public schools free from sectarian control, which shall be open to all the children of said state.” The Honorable W. Lair Hill proposed a constitution for the State of Washington that was submitted to the delegates of the constitutional convention of 1889, and served as a working draft. The Journal of the Washington State Constitutional Convention, 1889, at v (Beverly Paulik Rosenow ed., 1962). The original complete text of what was later to become

article IX,

section 4, provides: The legislature shall provide for the establishment and maintenance of a thorough and efficient system of common schools which shall be open to all the children of the state, and in which all the children of the state may receive a good common school education; and may establish such schools of higher grade as may be deemed expedient. All schools maintained or supported wholly or in part by the public funds shall be forever free from sectarian control or influence. (Emphasis added.) This draft provision was ultimately separated out in the Washington State Constitution. The second sentence was taken verbatim and became

article IX,

section 4. The first sentence was rewritten and became

article IX,

section 2: The legislature shall provide for a general and uniform system of public schools. The public school system shall include common schools, and such high schools, normal schools, and technical schools as may hereafter be established. But the entire revenue from the common school fund and the state tax for common schools shall be exclusively applied to the support of the common schools. Respondent contends that Hill’s draft provision provides evidence that the term “all schools” includes institutions of higher education.

According to respondent, because the first sentence of the draft states that the Legislature “may establish such schools of higher grade as may be deemed expedient,” and the second sentence refers to “all schools,” the second sentence must refer to universities.

However, this argument assumes that “schools of higher grade” include universities, and further fails to take into account that this part of the provision was deleted by the delegates and rewritten to include only “high schools, normal schools, and technical schools.” In fact, Hill’s commentary provides some insight as to his intentions in the drafting of this provision: This

section is taken from the constitution of Illinois, modified only so far as it seems necessary to bring it in conformity to the provision of this subject in the act of congress providing for the admission of the state. Hill, of course, is referring to the Enabling Act, and specifically that provision dealing with the creation of public schools, which was later embodied in

article XXVI of the Washington State Constitution. The Illinois constitutional provision Hill refers to required the state to provide “ ‘a thorough and efficient system of free schools, whereby all children of this state may receive a good common school education.’ ” Robert F. Utter & Edward J. Larson, Church and State on the Frontier: The History of the Establishment Clauses in the Washington State Constitution, 15 Hastings Const. L.Q. 451, 475 n.122 (1988) (quoting III. Const, of 1870, art. VIII, § 1).

Early case law from this court indicates that Hill’s use of the term “school” was intended to be far more limited than that term is commonly interpreted today. See State v. Reece, 110 Wn.2d 766, 779, 757 P.2d 947 (1988) (“early constructions by the courts are relevant to the intent of various constitutional provisions”); Ino Ino, Inc. v. City of Bellevue, 132 Wn.2d 103, 120, 937 P.2d 154 (1997) (“[sjtate cases and statutes from the time of the constitution’s ratification, rather than recent case law, are more persuasive in determining” the protections of a constitutional provision).

In Litchman, 90 Wash. 186, decided in 1916, less than 30 years after ratification, this court was presented with a challenge to the University of Washington’s ability to charge tuition. Specifically, it was alleged that

article XXVI and

article EX, sections 1 and 2, mandate that the State provide free education at the State’s universities. This court was thus required to interpret the meaning of the phrase “public school.” This court stated: The framers of the constitution, had they desired, might in that

section have included the university, but did not. Public schools are usually defined as schools established under the laws of the state, usually regulated in matters of detail by the local authorities in the various districts, towns, or counties, and maintained at the public expense by taxation, and open without charge to the children of all the residents of the town or other district. Black[’s] Law Dictionary (2d ed.); Jenkins v. Andover, 103 Mass. 94 [1869]; Merrick v. Amherst, [94 Mass.] 12 Allen 500 [1866]. A school is “an institution of learning of a lower grade, below a college or a university.

A place of primary instruction.” Black’s Law Dictionary (2d ed.). Id. at 191 (emphasis added). It is only if Hill intended the term “school” to exclude universities, that his commentary indicating that his draft provision is in compliance with the Enabling Act and consistent with the Illinois constitution (which did not apply to higher education) is tenable. Amicus NAICU notes that in the original constitution, as drafted in 1889, there is additional evidence that the term “school” was not understood to include universities at the time of ratification.

Article XVI,

section 2, a provision not at issue in this case, refers to “school and university land”: None of the lands granted to the state for educational purposes shall be sold otherwise than at public auction to the highest bidder . . . Provided, That the sale of all school and university land heretofore made by the commissioners of any county or the university commissioners when the purchase price has been paid in good faith, may be confirmed by the legislature. Art. XVI, § 2. If the phrase “all schools” encompassed universities,

article XVTs differential treatment of the terms would be merely nullified. See Nisqually Delta Ass’n v. City of DuPont, 95 Wn.2d 563, 568, 627 P.2d 956 (1981) (whenever possible, courts should avoid a statutory construction which nullifies, voids, or renders meaningless or superfluous any

section or words). The structure and history of

article IX lend further support to the conclusion that

article IX,

section 4 was not intended to apply to institutions of higher education. The most notable fact is that

article IX does not contain any references to higher education. In fact, in

article IX,

section 2, which contains a more specific definition than

article IX,

section 4, universities were specifically excluded. That provision states that “[t]he public school system shall include common schools, and such high schools, normal schools, and technical schools.” “[T]he mention of one thing implies the exclusion of others . . . .” W. Telepage, Inc. v. City of Tacoma, 140 Wn.2d 599, 611, 998 P.2d 884 (2000). Indeed, just prior to this Court’s decisions in Weiss and Graham, in a case dealing with

article IX,

section 1, this Court stated that “[a]rticle 9 does not apply to the University of Washington, but is addressed only to the ‘common schools.’ ” DeFunis, 82 Wn.2d at 43 (citations omitted). Additionally, as appellants note, during the Constitutional Convention all explicit references to higher education were purged from

article IX. On October 7, 1889, the Committee on Education and Educational Institutions submitted its report to the Constitutional Convention. Journal at 276-77. The proposed

section 3 of

article IX stated: The principal of the common school fund shall remain permanent and irreducible. The said fund shall be derived from the following named sources, to wit: Appropriations and donations by the state to this fund; donations and bequests by individuals to the state or public for educational institutions', the proceeds of lands .... Journal at 277. The proposed

section 5 of

article IX also contained a reference to higher education: All losses to the permanent common school or any state college or university fund, which shall have been occasioned by defalcation, mismanagement or fraud .... Id. On August 10, 1889, the Constitutional Convention took up the committee’s proposals. Mr. Turner moved to strike the words “educational institutions” from

section 3 and insert “common schools.” The motion passed. Journal at 328. Mr. Bowen moved to strike “any State or University” from

section 5 and insert the words “other state educational.” The motion passed. Journal at 330. Mr. Lindsley offered an additional

section to

article IX that would have pertained to the University of Washington: The University of Washington shall constitute a public trust and its organization and government shall be subject to legislative control, but it shall forever be independent and free from partisan and sectarian influence. Journal at 330. Mr. Lindsley’s proposed

section was not adopted. In the end,

article IX was left devoid of references to higher education. These institutions were instead addressed in

article XIII: Educational. . . and such other institutions as the public good may require, shall be fostered and supported by the state, subject to such regulations as may be provided by law. The regents, trustees, or commissioners of all such institutions existing at the time of the adoption of this Constitution, and of such as shall thereafter be established by law, shall be appointed by the governor, by and with the advice and consent of the senate; and upon all nominations made by the governor, the question shall be taken by ayes and noes, and entered upon the journal. Art. XIII. See 1967 Op. Att’y Gen.

No. 101, at 3 n.2 (article XIII addresses governance of institutions of higher education). Based on the abundance of structural and historical evidence available, we hold that

article IX,

section 4 was not intended to apply to institutions of higher education. Accordingly, it is unnecessary for us to address other questions raised with respect to this constitutional provision. In reaching our conclusion, we affirm our prior decisions in Litchman and DeFunis and overrule Weiss and Graham to the extent that they conflict with our analysis here. Nothing in today’s decision is intended to disturb this court’s holding in Weiss as it relates to common schools. B.

Article I,

section 11 Although the issue was not reached by the trial court, respondent additionally contends that the EOG program violates

article I,

section 11 of the Washington State Constitution. That

section provides in part: 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.... Art. I, § 11. The terms “appropriated” and “applied” modify religious worship, exercise or instruction, and the support of any religious establishment. Thus, what

article I,

section 11 prohibits is the “appropriation” or “application” of public money to any of these enumerated purposes. This court recently held that the terms “appropriated” and “applied” as used in

article I,

section 11 require one to determine whether our government has purposefully transferred, or made available, money or property for the defined objective. Ultimate utilization of the money or property is a necessary but insufficient part of the constitutional test; a religious purpose is the key. Without proceeding further it is at once apparent that the appropriation of money, or application of property, to effectuate any objective other than religious worship, exercise, instruction, or religious establishment is not within the prohibition. Malyon, 131 Wn.2d at 799-800.

Regardless of the ultimate impact of the EOG program, it is clear that it was not enacted with the “objective” of aiding religious establishment and it has no “religious purpose.” Given the obvious purpose of the EOG program, the trial court appropriately found that [t]he funds issued under the terms of

Chapter 28B.101 RCW and the administrative regulations adopted pursuant thereto are issued to students to assist them in completing a four year undergraduate degree. The purpose of this legislation and the funds issued to students pursuant to it is entirely secular. CP at 1099-1100. Cases prior to our decision in Malyon, although differing in their approach, also support the conclusion that the EOG program is constitutional under

article I,

section 11. In interpreting the phrase “religious . . . instruction,” as used in

article I,

section 11, this court stressed that the words appear after two more specific terms: “worship” and “exercise.” This, we believe, is an indication that the framers of our constitution did not intend the word “instruction” to be construed without limit, but that the proscribed field be confined to that category of instruction that resembles worship and manifests a devotion to religion and religious principles in thought, feeling, belief, and conduct, i.e., instruction that is devotional in nature and designed to induce faith and belief in the student. Calvary Bible Presbyterian Church v.

Bd. of Regents, 72 Wn.2d 912, 919, 436 P.2d 189 (1967). In Witters v. Commission for the Blind, 112 Wn.2d 363, 771 P.2d 1119 (1989) (Witters II), this court considered whether the Washington State Constitution prohibited the State Commission for the Blind from granting vocational rehabilitation funds to a visually handicapped applicant to use at a religious institution for a course of study designed to prepare him for a career as a pastor, missionary or youth director.

The court focused on the term “religious instruction.” Recognizing that religious instruction means, “ ‘instruction that is devotional in nature and designed to induce faith and belief in the student,’ ” the court was persuaded that the use of vocational assistance funds would violate

article I,

section 11 because the plaintiff, who was pursuing a degree in biblical studies, would necessarily be required to attend courses that provided indoctrination in the specific beliefs of Christianity. Witters II, 112 Wn.2d at 369 (quoting Calvary Bible, 72 Wn.2d at 919). The plaintiff’s course of study included Old and New Testament studies, ethics, speech and church administration. Witters II, 112 Wn.2d at 365. The court concluded, “our state constitution prohibits the taxpayers from being put in the position of paying for the religious instruction of aspirants to the clergy with whose religious views they may disagree.” Witters II, 112 Wn.2d at 365. In Witters (

I) this court observed that “[alppellant is not pursuing a secular course of study with the personal objective of becoming a minister.... It is not the role of the State to pay for the religious education of future ministers.” Witters v. Comm’n for the Blind, 102 Wn.2d 624, 629, 689 P.2d 53 (1984). The distinction between this case and Witters is obvious. Here, the grants are made contingent upon a student’s adherence to the EOG program’s religious exclusion which provides that no student will be enrolled in any program that includes religious worship, exercise, or instruction. Former RCW 28B. 101.040 (1993).

It is also clear that the EOG program does not support “religious establishment,” as that phrase has been interpreted by this court. The phrase “religious establishment” is a term of art in constitutional jurisprudence. See U.S. Const, amend I (“Congress shall make no law respecting an establishment of religion . . . .” (emphasis added)). In its most general sense, “religious establishment” refers to the prohibition against governmental creation of a state religion.

The corollary to this principle is that the state should not support those institutions that indoctrinate others into a religious faith, and thus place the imprimatur of the state on a particular religious doctrine, or the preference of religion over no religion. See Visser v. Nooksack Valley Sch. Dist. No. 506, 33 Wn.2d 699, 708, 207 P.2d 198 (1949) (holding that Christian school that teaches the tenets of a religion to induce faith, and inculcate youth into its religious beliefs, is a religious establishment); Mitchell v. Consol. Sch. Dist.

No. 201, 17 Wn.2d 61, 64, 135 P.2d 79 (1943) (emphasizing “that the religious tenets of such sect are taught as a part of the regular curriculum of the school”). In this case, in contrast, no funding is given for “religious . . . instruction,” as the EOG program requires that the student not ‘Tie enrolled for any programs that include any religious worship, exercise, or instruction,” nor is support given for religious establishment.

This is aptly illustrated by the trial court’s uncontested findings of fact, which we are bound to accept on appeal: None of the [WAICU] colleges or universities identified in General Finding No. 1 teach the tenets of any denomination or religious sect as a regular part of their curriculum. No church, religious denomination or religious sect controls the conduct of the faculty in their classroom, the course material used in any class or the course offerings in any curriculum at any of the colleges or universities. CP at 1099.

The dissent is not satisfied, however, and looks beyond the fact that funds are expended to enable “placebound” needy students to receive a general, nonreligious four-year college degree to the ultimate use to which the educational institution may put those tuition dollars. “[0]nce public funds are provided to an educational institution controlled by a religious organization with a religious mission, functionally, do those funds advance religious doctrine?” Dissent at 491. The dissent goes too far.

Under the dissent’s reasoning, the State could not provide medical coupons to an eligible Department of Social and Health Services client if the coupons were to be used at a hospital with religious affiliations simply because the funds might be used to advance the religious goals of the hospital. However, this court’s cases have not drawn the dissent’s boundary. In Health Care Facilities Authority v. Spellman, 96 Wn.2d 68, 633 P.2d 866 (1981) this court held that religious hospitals can raise money through public tax exempt bonds without violating

article I,

section 11, even though this method of financing conferred a great benefit on the religious establishment. As this court stated in Perry v. School District No. 81, 54 Wn.2d 886, 897, 344 P.2d 1036 (1959), “[i]t was never the intention that our constitution should be construed in any manner indicating any hostility toward religion.” A further concern created by the dissent’s approach is that it fails to apply the analytical framework set forth so recently in Malyon. The dissent claims that Malyon sets up a test under

article I,

section 11 that does not apply to education. According to the dissent, we apply a strict construction of

article I,

section 11 and

article IX,

section 4 in the context of education. “If, however, the challenge does not involve education, we merely determine whether the State’s objective was support of ‘religious worship.’ ” Dissent at 493. The dissent’s reasoning reflects the same confusion that led the court in Weiss and Graham to conflate

article I,

section 11 and

article IX,

section 4. The history of

article IX,

section 4, as set out above, reflects a concern with religious influence in public schools. Accordingly, most of the cases cited by the dissent involve public schools, which fall within the prohibitions of

article IX,

section 4. See, e.g., State ex rel. Dearle v. Frazier, 102 Wn. 369, 173 P. 35 (1918) (curricula of public high school cannot include religious exercise or instruction); Perry, 54 Wn.2d 886 (use of public school facilities to promote attendance at religious education program unconstitutional); Mitchell, 17 Wn.2d 61 (statute permitting use of common school funds to provide transportation to private schools violates state constitution); Visser, 33 Wn.2d 699 (bus transportation to private school children violates state constitution). As Justice Weaver pointed out in his concurrence in Perry, 54 Wn.2d at 898, Art.

IX, § 4, ... is more proscriptive than [art. I, sec. 11]. That it is so is the result of deliberate action by the constitutional convention of 1889. It appears from the journal of the Washington State Constitutional Convention, 1889, p. 335 (unpublished; the original is in the office of the Secretary of State), that J. Z. Moore, a member of the convention and a lawyer from Spokane, moved to strike the words “or influence” from the section. The motion lost 39 to 11.

Article IX,

section 4 and its history justifies the rigorous scrutiny given by this court to cases involving public schools. However, there is no support for the dissent’s claim that

article I,

section 11, when applied to issues involving colleges and universities, requires heightened scrutiny that is not applied to any other situations challenged under

article I,

section 11. The prohibitions in

article I,

section 11 are the same regardless of the circumstances, and the constitutional analysis should, accordingly, be evenhanded with regard to all challenges. This does not abandon the framers’ specific concern with schools because

article IX,

section 4 assures separation of church and state in public funding of schools. Although not followed by the dissent, Malyon provides the proper analysis in this case. We hold that the EOG program does not violate

article I,

section 11 of the Washington State Constitution. C. The First Amendment to the United States Constitution Respondent’s final contention is that the EOG program violates the First Amendment to the United States Constitution, which provides: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. U.S. Const, amend I. In Lemon v.

Kurtzman, the Supreme Court identified three criteria used to evaluate government programs challenged under the establishment clause: 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, 612-13, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971) (citation omitted) (quoting Walz v. Tax Comm’n, 397 U.S. 664, 674, 90 S. Ct. 1409, 25 L. Ed. 2d 697 (1970)).

Respondent’s sole argument under the establishment clause is that the EOG program fosters an excessive government entanglement with religion. Before reaching this issue, we note that if respondent’s argument were meritorious virtually every form of federal student financial aid, which is given neutrally to public and private school students, would run afoul of the First Amendment. In Agostini v. Felton, 521 U.S. 203, 117 S. Ct. 1997, 138 L. Ed. 2d 391 (1997), the Supreme Court upheld the state supported use of public school teachers to teach remedial subjects in parochial schools.

In Agostini, the Court noted that the question of “excessive entanglement” cannot be addressed in a vacuum: Regardless of how we have characterized the issue, however, the factors we use to assess whether an entanglement is “excessive” are similar to the factors we use to examine “effect.” That is, to assess entanglement, we have looked to “the character and purposes of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship between the government ánd religious authority.” Agostini, 521 U.S. at 232 (quoting Lemon, 403 U.S. at 615).

The Supreme Court has upheld neutrally applied state educational aid that is significantly more invasive and linked with religion than the EOG program, which, as already noted, contains myriad easily administered religious safeguards. For example, in Witters v. Department of Services for the Blind, 474 U.S. 481, 106 S. Ct. 748, 88 L. Ed. 2d 846 (1986), the Supreme Court upheld the use of neutrally administered state funds to fund a blind student’s tuition at the Inland Empire School of the Bible where he pursued a religious education to prepare himself for a career as a pastor, missionary, or youth director.

As the Court stated: 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.

Id. at 487-88 (footnote and citation omitted) (quoting Comm, for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 782 n.38, 93 S. Ct. 2955, 37 L. Ed. 2d 948 (1973)). We hold that the EOG program does not violate the First Amendment to the United States Constitution. We share the heartfelt concerns expressed by the dissent regarding religious freedom. However, as the United States Supreme Court has observed: [T]he Constitution [does not] require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any.

Lynch v. Donnelly, 465 U.S. 668, 673, 104 S. Ct. 1355, 79 L. Ed. 2d 604 (1984). “ ‘[T]he question is not whether government and religion will interact, but how.’ ” Malyon, 131 Wn.2d at 805 (emphasis added) (quoting Lawrence H. Tribe, American Constitutional Law § 14-14, at 1276 (2d ed. 1988)). CONCLUSION The EOG program was designed to meet the critical needs of “placebound” students, like Richard Pacheo who, because he cares for his blind mother and diabetic father with Alzheimer’s disease, cannot travel to a state institution to obtain a college degree.

The Legislature enacted the grant program based upon findings that

(1) Washington’s participation rate for upper division course work was 10 percent below the national average; (2) the state’s largest population growth was occurring in areas surrounding Seattle that were not served by a public university; and (3) there was a significant disparity in access to upper division course work based on geography. The funds associated with this program are disbursed directly to financially needy students who then choose the institution that is most accessible. We hold that the EOG program does not violate

article IX,

section 4 of the Washington State Constitution because that provision does not apply to institutions of higher education. We further hold that the EOG program does not violate

article I,

section 11 of the Washington State Constitution or the First Amendment to the United States Constitution. Alexander, C.J., and Smith, Johnson, and Owens, JJ., concur. The record in this case is replete with examples of “placebound” students. One such student is Mr. Richard Pacheo, a 34-year-old Heritage College student who is a part-time social and health services worker. Mr. Pacheo was considered placebound to the Toppenish area because he was caring for his blind mother and his father who is diabetic and in the early stages of Alzheimer’s Disease. Ex. 2040. The closest public institution for Mr.

Pacheo is Central Washington University, which is a one hour and 20 minute drive from his home in an area that is described as “treacherous” in the winter. Report of Proceedings at 268-69. The HECB proposal called for the creation of several branch campuses:

(1) Washington State University to operate campuses in Spokane, Tri Cities, and Vancouver; (2) the University of Washington in Tacoma; and

(3) Central Washington University to serve the Yakima Valley. Clerk’s Papers at 1078.