The Institute for Justice, the public interest law firm that helped successfully defend Cleveland school choice parents, is launching a series of test cases seeking to remove state constitutional barriers to school choice, with the goal of securing a national precedent in the U.S. Supreme Court. IJ will fight to clear the path for school choice programs by removing obstacles that block the implementation of educational reform in the states.
The Institute’s campaign to remove state constitutional barriers to school choice begins in Washington State. On September 24, 2002, IJ filed suit in Thurston County Superior Court challenging Washington State’s policy that forbids students in public universities from student teaching in religious schools. The policy requires state programs to discriminate against religious schools and students.
The suit marks the first challenge to a state constitutional provision that limits school choice since the U.S. Supreme Court upheld the Cleveland voucher program. The Institute seeks to end Washington State’s long history of discriminating against religion in its general education programs. It also seeks to bring states such as Washington into line with the federal Constitution’s guarantee of religious neutrality, thereby removing any remaining legal questions that might hinder the implementation of school choice in the states.
On June 27, 2002, the U.S. Supreme Court definitively held that school choice programs that are neutral toward religion, giving parents the power to independently choose where to send their children, are constitutional. The Supreme Court has spoken. Yet opponents are living up to their pledge, made even before the Supreme Court issued its decision, to fight school choice using “whatever grounds available, [including] ‘Mickey Mouse’ procedural issues.” But the new weapons in the school choice opponents’ arsenals are not mere Mickey Mouse issues. Perhaps cynically or perhaps unwittingly, opponents are using state constitutional provisions—“Blaine Amendments” and others—that are the product of religious bigotry to thwart school choice programs.
Thirty-seven states have “Blaine Amendments” in their constitutions that forbid public support of sectarian institutions. The provisions emanate from a 19th century campaign to preserve Protestant dominance in public schools and to prevent public funds from flowing to Catholic schools. Despite what the U.S. Supreme Court has called the Blaine Amendments’ “shameful pedigree”—laws that were “born of bigotry”—these state constitutional provisions have the potential to hinder the implementation of effective school choice programs—with religious options—unless challenged and brought into line with the federal Constitution.
Stage One: Striking the Blaine Legacy in Washington State
Carolyn Harrison is a schoolteacher with 17 years of experience teaching in Catholic schools. She is currently studying at the University of Washington, Tacoma, pursuing a Masters of Education and an administration credential, which requires a lengthy internship to be served at a primary or secondary school. Harrison, like most teachers pursuing this degree, wishes to serve her internship at the school where she teaches, but the State will not allow her. Harrison teaches at Bellarmine Preparatory School, a Jesuit school. The State will not honor Harrison’s choice to complete her internship at a “sectarian” school. The State’s prohibition prevents Harrison from acting on her religious beliefs and will require her to leave her job every other day to intern at a public school.
Donnell Rene Penhallurick is preparing to become a schoolteacher. She is getting her education degree with a major in reading and a minor in special education at Eastern Washington University. To receive her teaching certificate she must complete an internship—the student teaching requirement—before she can graduate. Penhallurick is a life-long member of the Seventh-day Adventist Church. She plans to teach at a Seventh-day Adventist school once she graduates and wishes to do her student teaching requirement at a Seventh-day Adventist school. Just as the State will not allow Harrison to serve her internship at a religious school, the State will not allow Penhallurick to complete her student teaching at a religious school.
The rationale for refusing to allow Harrison and Penhallurick to teach at a religious school is Washington State’s Blaine Amendment. According to the Washington Attorney General, Washington’s Blaine Amendment requires “a stricter separation of government from sectarian influence” than the First Amendment to the federal Constitution. This prohibition is not “stricter separation,” however. This prohibition is discrimination, plain and simple, and it stands in violation of federal rights to free speech and the free exercise of religion.
The Institute for Justice filed its lawsuit in Thurston County Superior Court on behalf of Harrison and Penhallurick to give the state courts a chance to reconcile the Washington Constitution with the federal Constitution and restore federally guaranteed rights.
Historical Context: Religious Discrimination in Public Schools
What other nations call religious toleration, we call religious rights. They are not exercised in virtue of governmental indulgence, but as rights of which Government cannot deprive any portion of citizens, however small. United States Senate Committee Report of 1829.
Regretfully, the religious freedom that distinguishes our system of government and our religious pluralism was not reflected in the birth of our public school system. Rather, the “common school” movement began, in part, out of a desire to inculcate non-denominational Protestantism in students in addition to teaching traditional secular subjects.
At a time when many Protestant denominations were lamenting that “parents had abandoned their responsibility for moral education,” Horace Mann, the first secretary of education for Massachusetts, advocated the creation of a “common school” that would act as the “nursery of piety.” Tellingly, Mann wrote:
How many are those, who swarm in our cities . . . who receive no religious instruction? They hear it not from the lips of an ignorant and vicious parent. . . . If in the common school, the impulses of these souls are not awakened and directed by judicious religious instruction, they will grow up active in error.
To ensure that no one grew up “active in error,” Mann advocated daily readings from the King James Bible. Mann agitated for the “progressive purification of Christianity from the superstitious inheritance of priestcraft.” Mann’s “judicious religious instruction” was the inculcation of mainstream Protestantism.
The inculcation of Protestant values in the young was also a goal of early public education throughout the country. For example, a typical lesson in a New York classroom of 1821 included daily readings from the King James Bible. The lessons also included a structured dialogue between teachers and students about the role of God in the students’ lives from a Protestant perspective. The combination of mandatory readings from the King James Bible and the recitation of Protestant lessons regardless of the students’ particular beliefs led one commentator to note that “the common school was an instrument for the propagation of a mainstream Protestant morality . . . that prepared the nation for the Blaine Amendment and the mentality it fostered.” Initially, the objections of non-Protestants passed with little notice, but as a new wave of immigrants entered the country in the 1830s and 1840s religious intolerance and nativism would rise.
The Anti-Catholic and Anti-Immigrant Reaction
By the 1840s, a wave of immigrants, primarily Irish and German Catholics, challenged the indoctrination of Protestant beliefs. All too often, the Protestant majority reacted by enacting laws and implementing policies that discriminated against other religions.
Nativist intolerance was evident in many of the slogans of Protestant leaders at the time. They maintained that they were not opposed to immigration so long as the immigrants were “respectable Protestant immigrants.” In the context of education, the Protestant majority fought to exclude non-Protestant ideas from the school curriculum and to mandate that schools continue to teach non-denominational Protestantism.
At the time, school libraries stocked such books as An Irish Heart, which warned that if immigration continued “our country might be appropriately styled the common sewer of Ireland.” Commentators of the day wrote, “Popery is the natural enemy of general education. . . . [I]f it is establishing schools, it is to make them prisons.”  Others wrote that Catholics were but “senseless machines” who posed a particular threat to the United States. The Protestant Christian Examiner of Massachusetts decried the legislature’s decision to allow the founding of Holy Cross University, writing:
We should grieve for our Commonwealth if . . . the gross perversion of the Christian faith and life which Romanism involves would ever renew its blighting influences here . . . . [O]ur fathers sought this region for the everlasting riddance of Popery . . . they hated it, they were absolutely and irreconcilably disgusted with it. . . . [The founding of Holy Cross] is almost too much for the children of Puritans to bear. Out of our beloved Commonwealth are now to graduate Jesuit priests—the O’Briens, the O’Flahertys, and the McNamaras.
Catholics and many other non-Protestant groups challenged the mandated Bible readings and other Protestant lessons. These challenges failed. Courts routinely held that the reading of the Bible was not a sectarian activity.  “Sectarian” became code for Catholic. These cases stood for the proposition that Protestant proselytizing as a mandatory part of the school curriculum was “non-sectarian” activity but that contrary ideas were “sectarian.” The courts had sanctioned the double standard.
Various school committees and legislatures also believed that Protestantism could not be considered “sectarian.” Nearly without exception, these bodies decided that laws against “sectarian” instruction did not prohibit Protestant teachings. Mann said that the ban on sectarian texts was designed only “to restrict those books of a controversial or divisive nature,” and not to prevent the instruction of Christian tenets that had been taught since the Colonial days. As one commentator noted, there was at the time a general failure of school officials to understand that their “version of nonsectarianism was sectless Protestantism.” 
The failure to acknowledge the teaching of Protestant principles as being sectarian continued for decades. In 1889 New Hampshire Senator Henry Blair submitted a bill in the U.S. Senate that would have forbade public funds going to “sectarian schools” while simultaneously mandating that public schools teach the “principles of the Christian faith.”
A Massachusetts legislative committee debating a similar provision in the 1870s refused to define “sectarianism” except to note that sectarianism included “parish schools” (Catholic schools) and that atheism and agnosticism were also sects—and therefore were “sectarian”—and could not be taught in the schools. By the definition of the time, “sectarian” meant anything that did not conform to mainstream Protestant thought; Jews, agnostics and Catholics were all “sectarian” and could not have their ideas discussed in a public classroom. The support for the common school did not stem solely from a desire to ensure that everyone received an education. As the above evidence demonstrates, a significant motivating factor was to ensure that every child was indoctrinated in the ideas and moral notions of the majority, regardless of the wishes of the child’s parents.
The Blaine Amendment: A Cloak for the Most Unworthy Motives
In 1875 when James Blaine introduced his amendment to the Constitution in Congress, anti-Catholic and anti-immigrant sentiment had been perpetually simmering, with occasional violent outbursts, for nearly 40 years. Contemporaneous with Blaine’s amendment were other bills introduced at state and federal levels that sought to ensure that Bible reading and Protestant ideas would continue to be taught in schools, while “sectarian” ideas—primarily Catholicism, but Judaism and agnosticism as well—were forbidden. The New York Tribune commented that “the signs of the times all indicate an intention on the part of the managers of the Republican party to institute a general war against the Catholic Church.”
In 1875 Blaine was a senator from Maine who had decided to run for president. Blaine’s contemporaries knew that he was courting the anti-Catholic vote to propel him into the presidency. Blaine wanted to appeal to those voters who stood against “Rum, Romanism, and Rebellion.” He introduced his bill in late 1875—it would not be voted on until late August of 1876. In the intervening months several state legislatures introduced similar legislation that targeted Catholics.
In February 1876, the Rhode Island state legislature introduced a bill that made it a crime to dissuade anyone from attending a public school. The bill deliberately targeted Catholic priests because the merest suggestion that a child should attend a parochial school over a public school would result in a violation. The Rhode Island Independent described the bill as “an outrage to religious liberty and a disgrace to the state of Rhode Island.” The bill did not pass.
Despite the minor setbacks of similar bills in some states, Blaine knew his electorate and still courted the anti-Catholic vote. In prior years, nativists such as the Know Nothings had been able to achieve wide electoral success. Whether Blaine’s amendment passed was not as important as its ability to garner him the support of the anti-Catholic vote. As The Nation noted, “[A]ll that Mr. Blaine means to do or can do with his amendment is, not to pass it but to use it in the campaign to catch anti-Catholic votes.” Rather than representing any ideal of the separation of church and state, Blaine designed his amendment to further his own ambition, making himself appealing to anti-Catholic bigots whose ideas about religious and parental liberty were and are repugnant to the Constitution.
Initially the amendment read as follows:
No state shall make any law respecting the establishment of religion, prohibiting the free exercise thereof; and no money raised by taxation in any State, for the support of the public schools or derived from any public fund therefore, shall ever be under the control of any religious sect; nor shall such money so raised ever be divided between religious sects or denominations.
The House added the following provision to the proposed amendment: “This article shall not be construed to prohibit the reading of the Bible in any school or institution.” Although the text may facially appear to be innocuous, it was designed to further Blaine’s aims—as was noted during the debate on the amendment.
The House passed the Blaine Amendment by a large majority. However, the Blaine Amendment met resistance in the Senate. During the course of the Senate debate one Senator noted:
I think I know the motive and the animus which have prompted all this thing. I do not believe it is because of a great devotion to the principles of religious liberty. That great idea which is now moving in the modern world is used merely as a cloak for the most unworthy partisan motives.
Several other senators noted the flat contradiction in having a bill that called for a ban on sectarian teaching but also required the teaching of the Bible. A senator supporting the amendment retorted with “the Bible is a religious book and not a sectarian book.” This statement provides additional evidence that “sectarian” was code for Catholic and reveals that the purpose of the amendment was to discriminate against Catholics, or at least promote Protestantism at the expense of other views.
A majority of the Senate voted for the amendment. However, it received an insufficient number of votes to meet the super-majority requirements necessary to amend the Constitution. Nonetheless, the Blaine Amendment did not die in Congress. Not only did many states amend their state constitutions to include Blaine language, Congress required new states entering the Union to have Blaine Amendment language in their state constitutions as a condition of joining the Union. 
Why State Policies That Discriminate Against Religion Are Unconstitutional
Most states have religion clauses that differ from the federal Establishment and Free Exercise Clauses. The most notorious religion clauses in state constitutions are, as discussed above, the Blaine Amendments. However, there are also so-called “compelled support” clauses. These clauses, generally found in older states, addressed the problem of Colonial-era governments compelling attendance at or support for an official church. Although the exact number of states that have Blaine Amendments is a matter of some debate, at least 37 states have Blaine Amendments. As many as 29 states have “compelled support” clauses—several states have both “compelled support” clauses and Blaine Amendments. Only three states have neither “compelled support” clauses nor Blaine-type provisions—Maine, North Carolina and Louisiana.
Because school choice programs are designed to benefit children and families and empower them to make their own independent choices, they are not intended to aid or support religious schools. State restrictions on aid to institutions are irrelevant. Blaine Amendments, and similar clauses, only address the issue of aid to institutions, not aid to individuals. Nevertheless, opponents of choice want states to use their Blaine Amendments to prevent parents from freely choosing religious options for their children.
Currently, much of the capacity in the private school system exists in religious schools. If parents cannot direct their children to religious schools, the number of options parents have is greatly diminished. Often in inner cities, a majority of families with children in religious schools are not members of the churches affiliated with the schools, choosing the schools for educational purposes instead. Others choose such schools because they accord with their religious beliefs. Giving parents the power to choose religious schools is a matter both of educational necessity and of protecting federally guaranteed rights to free speech and religious liberty.
Opponents of choice intend to stymie choice programs by urging—or even compelling—states to deny parents’ ability to freely choose religious schools, hoping that such restrictions will prevent school choice programs from being able to offer sufficient capacity to function properly. The clearest example is the ongoing litigation in Florida, launched before the U.S. Supreme Court upheld the Cleveland school choice program, where opponents are relying on the state constitution’s Blaine Amendment to thwart the nation’s first statewide voucher program. (IJ is defending Florida choice parents in the litigation.) In Florida, about half of the 700 students participating in the program attend religious schools. Tellingly, after the Supreme Court’s decision in Cleveland, opponents dropped their federal claims and focused their case exclusively on Florida’s Blaine Amendment.
However, a long line of U.S. Supreme Court cases suggests that the strategy of choice opponents will not succeed. The Supreme Court has long held that the government cannot suppress speech with which it disagrees. Specifically, in the context of religious speech, the Court, in Widmar v. Vincent, 454 U.S. 263 (1981), held that a state university that made its facilities open and generally available to the public could not prevent groups from using the facilities for religious worship. The Court disallowed the university’s attempt to proscribe speech simply because the university disagreed with the speech. As Justice Stevens wrote in his concurrence, “Quite obviously, the university could not allow a group of Republicans or Presbyterians to meet while denying Democrats or Mormons the same privilege.”
In Lamb’s Chapel v. Center Moriches Union Free District, 508 U.S. 384 (1993), the Court again held that state action that discriminated against a religious viewpoint violated the First Amendment. The case concerned a school district that had made its rooms generally available for such things as “social, civic and recreational meetings and entertainments” or “other uses pertaining to the social welfare.” A Christian group wanted to use some of the space to show a film about family values from a religious perspective. The Court held that the district could not deny the group access based on its religious viewpoint.
The University of Virginia, in Rosenberger v. Rector and Visitors of the Univ. of Virginia, 515 U.S. 819 (1995), provided reimbursement to student journals for their printing costs but refused to provide reimbursement to a student journal with a religious message. The Court held that the University’s decision to withhold reimbursement violated the First Amendment. Specifically, the Court held that “the guarantee of neutrality is respected not offended, when the government, following neutral criteria and evenhanded policies, extends benefits to recipients whose ideologies and viewpoints, including religious ones, are broad and diverse.”
Recently, the U.S. Court of Appeals for the Ninth Circuit, in Davey v. Locke, held that when students are eligible to participate in a state-funded education program, the state cannot discriminate against students who choose to study religious topics. Davey concerned a Washington State scholarship program for university students. Washington defended its exclusion of students who wanted to study religion by citing its Blaine Amendment. The Court rejected Washington’s contention that its state constitution demanded “a stricter separation” than that required by the federal Constitution. The Court held that “stricter separation” violated the First Amendment.
In Kotterman v. Killian, the Arizona Supreme Court upheld a school choice tax credit program and rejected applying a “stricter separation” under its Blaine Amendment. The Court recognized that “the Blaine amendment was a clear manifestation of religious bigotry, part of a crusade manufactured by the contemporary Protestant establishment to counter what was perceived as a growing ‘Catholic menace.’”
Increasingly, courts are becoming aware of the Blaine Amendment’s invidious history. Even if some state courts do not recognize the religious prejudice that inspired the Blaine Amendment, the rights of free speech and free exercise of religion demand that parents have the ability to choose religious options in programs that are generally applicable and religiously neutral.
Many states have not issued opinions interpreting their Blaine Amendments or compelled support clauses. Other states have not given weight to Blaine’s bigotry and have interpreted their provisions to be coextensive with the federal religion clauses. Other states, however, have interpreted their religion clauses as demanding “a stricter separation.” The Institute for Justice believes that states that have interpreted their Blaine Amendments or compelled support clauses broadly are violating the federal Constitution. IJ believes that the U.S. Supreme Court will ultimately hold, consistent with its jurisprudence on this matter, that state provisions that require discrimination against religious options violate the Constitution.
IJ is currently litigating this issue in Florida, representing parents and children participating in the Opportunity Scholarship program—one component of the State’s broad A-Plus reform program. Opponents of school choice, apparently indifferent to the Blaine Amendment’s history and to the effects of denying hundreds of students the chance to attend a quality school, are using Florida’s Blaine Amendment to urge Florida courts to stop the Opportunity Scholarship program from operating. In defense of the program, IJ is arguing that limiting parents’ choices violates parental and religious liberty—both of which are protected by the U.S. Constitution.
The Institute will soon bring challenges in several states—with the aim of securing a federal precedent, applicable nationwide—so that parents throughout the country will have the same right to express their religious beliefs when they participate in general programs as parents who wish to express a secular opinion. Such a precedent would remove any remaining legal questions that might hinder the implementation of school choice programs in the states.
The lead attorney in this case is Institute for Justice Vice President and National Director of State Chapters Clint Bolick. Bolick co-founded the Institute for Justice in 1991 and has led the nationwide effort to defend school choice programs, with victories in the Wisconsin, Ohio and Arizona Supreme Courts and culminating in Zelman v. Simmons-Harris in the U.S. Supreme Court. Assisting the Institute as local counsel is John E. Turner, an Olympia, Wash., lawyer who is a former judge on the Washington Court of Appeals.
Through strategic litigation, communications, training and outreach, the Institute for Justice advances a rule of law under which individuals can control their own destinies as free and responsible members of society. We litigate to secure economic liberty, school choice, private property rights, freedom of speech and other vital individual liberties, and to restore constitutional limits on the power of government. Through these activities we challenge the ideology of the welfare state and illustrate and extend the benefits of freedom to those whose full enjoyment of liberty is denied by government. The Institute was founded in 1991 by William H. Mellor and Clint Bolick.
For more information, or to arrange an interview with the Institute for Justice and its clients, please contact:
Lisa Knepper, Director of Communications
John E. Kramer, Vice President for Communications
Institute for Justice
901 N. Glebe Road, Suite 900
Arlington, VA 22203
Phone: (703) 682-9320
Fax: (703) 682-9321
See Witters v. State of Washington Commission for the Blind, 771 P.2d 1119 (Wash. 1989) (preventing a disabled resident from participating in a job retraining program to become a religious worker); Visser v. Nooksack Valley School District, 207 P.2d 198 (Wash. 1949) (denying transportation benefits to children who enrolled in religious schools).
 Zelman v. Simmons-Harris, 122 S.Ct. 2460 (2002).
 Inching Towards Reform, The Economist, July 6, 2002 (quoting an unnamed attorney for one of the teachers’ unions).
 Mitchell v. Helms, 530 U.S. 793, 829-30 (2000) (Thomas, J., plurality opinion).
 Letter of James K. Pharris, Senior Assistant Attorney General, to Hon. Bob Morton (Nov. 6, 2000).
 Quoted in Charles Glenn, The Myth of the Common School, at xi (1987).
 See Joseph Viteritti Choosing Equality: Religious Freedom and Educational Opportunity Under Constitutional Federalism 15 Yale L. & Pol’y Rev. 113 (1996); Steven K. Green The Blaine Amendment Reconsidered 36 Am. J. Legal Hist. 38 (1992); Douglas Laycock The Underlying Unity of Separation and Neutrality 46 Emory L.J. 43 (1997); Diane Ravitch The Great School Wars (1974).
 Glenn, supra note 4, at 82.
 Id. at 82.
 Eighth Annual Report of the Secretary of the Board. pp. 64 – 65 (emphasis added).
 Glenn, supra, at 83.
 Diane Ravitch. The Great School Wars at 18 (1974).
 Joseph Viteritti, supra, at 179.
 Glenn at 68.
 Ravitch at 51.
 Glenn at 69 (quoting Samuel Morse Foreign Conspiracies Against the United States (1835)).
 Id. at 69.
 Id. at 70-71.
 See Donahoe v. Richards, 385 Me. 376, 379 (1854); Commonwealth v. Cook 7 Am. L. Rep. 417 (Ma. 1859). Green, supra, at 44 – 45.
 Glenn, supra, at 152.
 Ravitch, supra, at 35.
 Glenn, supra, at 252.
 Green, supra, at 44.
 Id. at 54. Blaine lost the Republican nomination for president to Rutherford B. Hayes in 1876. In 1884, Blaine received the Republican nomination for president but lost the election to Grover Cleveland.
 Id. at 55.
 Id. at 55.
 Id. at 54.
 4 Cong. Rec. 5453 (1876) quoted in Green, supra, at 38.
 Id. quoted in Green, supra, at 61.
 Senator Bogy 4 Cong. Record at 5589. Id at 66.
 Id. at 66 (In noting the contradiction, one senator asked “is not the Bible a religious book?”).
 See the Federal Enabling Act of 1889, ch. 180, sec. 4, 25 Stat. 676-77 (1889). For a list of states with Blaine Amendment language, see Note 31, infra.
 These are states that have language preventing legislatures from aiding “sectarian institutions.” The states are: Alabama, Alaska, Arizona, California, Colorado, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Kansas, Kentucky, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Dakota, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Virginia, Washington, Wisconsin and Wyoming.
 The following states have compelled support clauses (as noted above some also have Blaine Amendments): Alabama, Arkansas, Colorado, Connecticut, Delaware, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Maryland, Massachusetts, Michigan, Minnesota, Nebraska, New Hampshire, New Jersey, New Mexico, Ohio, Pennsylvania, Rhode Island, South Dakota, Tennessee, Texas, Vermont, Virginia, West Virginia and Wisconsin.
 Id. at 281.
 Id. at 386.
 Id. at 839. See also Good News v. Milford Central School, 121 S.Ct. 2093 (2001) (striking down school’s restriction against religious group’s ability to meet on school grounds when school had made facilities open to the public after school hours).
 Davey v. Locke, 2002 U.S. App. LEXIS 14461 * 3 (9th Cir. July 18, 2002).
 Id. at * 33.
 Kotterman v. Killian, 972 P.2d 606, 624 (Ariz. 1999).
 See Simmons-Harris v. Goff, 711 N.E.2d 203 (Ohio 1999); Jackson v. Benson, 578 N.W.2d 602 (Wis. 1998); and, Kotterman v. Killian, 972 P.2d 606 (Ariz. 1999).
 The most notorious example of a state interpreting its Blaine Amendment to be more restrictive than the federal Establishment Clause is Witters v. State of Washington Commission for the Blind, 771 P.2d 1119 (Wash. 1989). The Witters case concerned a severely visually-impaired person, Mr. Witters, who qualified for Washington State’s job retraining program. Mr. Witters wanted to study to become a religious worker. The U.S. Supreme Court, in Witters v. Wash. Dep’t of Services for the Blind, 474 U.S. 481 (1986), unanimously held that Mr. Witters’ independent decision to use state assistance, as a part of a religiously neutral program, to become a religious worker did not violate the Establishment Clause. However, the Washington Supreme Court ruled that its Blaine Amendment required a stricter separation than that demanded by the Establishment Clause. This reasoning was recently rejected by the U.S. Court of Appeals for Ninth Circuit in Davey v. Locke, supra.