Could Idaho's college work-study program legally pay students attending religious or church-affiliated colleges?

Plain-English summary

The Idaho State Board of Education asked the Attorney General whether the Idaho College Work Study Program (Idaho Code §§ 33-4401 through 33-4409) could constitutionally pay student earnings at postsecondary institutions affiliated with a church or religious denomination.

The Idaho program let the State pay up to 80% of student earnings at on-campus jobs and up to 50% of earnings at approved off-campus jobs related to the student's academic study (with the employer paying the other 50%). It allocated funds to eligible institutions based on full-time-equivalent enrollment.

The AG split the analysis along federal and state constitutional lines.

Federal Establishment Clause: program was OK. Under the U.S. Supreme Court's three-part Lemon v. Kurtzman test (secular purpose, primary effect not advancing religion, no excessive entanglement), the program passed. The 1986 Witters decision was directly on point. Witters held that vocational rehabilitation aid paid through a blind student to a Christian college for ministry training did not violate the Establishment Clause. The aid went to the student, not the school; the program was facially neutral; and there was no record that any significant portion of the total aid would flow to religious education. The Idaho work-study program had a clearly secular purpose (expanding employment opportunities), and its primary effect did not advance religion. Disbursement and recordkeeping by colleges did not amount to excessive entanglement.

Idaho Constitution art. 9, § 5: program was unconstitutional. Idaho's constitution is more restrictive than the federal First Amendment. Article 9, § 5 provides that "neither the legislature nor any county, city, town, township, school district, or other public corporation, shall ever make any appropriation, or pay from any public fund or moneys whatever, anything in aid of any church or sectarian or religious society, or for any sectarian or religious purpose, or to help support or sustain any school, academy, seminary, college, university or other literary or scientific institution, controlled by any church, sectarian or religious denomination whatsoever." The Idaho Supreme Court read that provision strictly in Epeldi v. Engelking (1971), striking down public funding for transportation of parochial-school students. Epeldi expressly rejected the "child benefit" theory (the argument that aid going to children rather than the institution doesn't violate the provision) and rejected the federal Lemon analogue. The court said Idaho's framers "intended to more positively enunciate the separation between church and state than did the framers of the United States Constitution."

The on-campus piece of the program (paying up to 80% of student earnings at the institution) was the clearest violation. The state's funds would directly support the religious institution by paying the wages of students it employed.

The off-campus piece was a closer question because the funds went directly to the student. The AG looked to other states with similar Blaine-type provisions. Washington State Higher Educational Assistance Authority v. Graham held a similar loan program unconstitutional under Washington Const. art. 1, § 11, even though the funds went to students, because the funds would inevitably be used for tuition or to support attendance, "benefiting the college in many ways by assisting the student to stay in school." The AG concluded that the same reasoning applied to the Idaho off-campus piece: because awards were based on the student's financial need (defined by the institutionally-set cost of education), the funds would inevitably support the institution.

The AG's bottom line: the Idaho program, as applied to church-controlled postsecondary institutions, violated Idaho Const. art. 9, § 5.

Currency note

This opinion was issued in 1989. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Idaho's College Work Study Program (Idaho Code §§ 33-4401 through 33-4409) was an employment-based aid program. The legislature declared it was in the public interest to assure educational opportunity to needy resident students by funding work that paid for their attendance at "accredited institutions of higher education in Idaho." The program could pay up to 80% of student earnings at on-campus jobs and up to 50% of earnings for approved off-campus jobs related to the student's academic study. It also matched up to 10% of the federal college work study program. The Board of Education allocated funds to eligible institutions based on full-time equivalent enrollment.

Article 9, § 5 of the Idaho Constitution is one of the more strongly worded "Blaine amendments" in the country. It prohibits any appropriation or payment "for any sectarian or religious purpose, or to help support or sustain any school, academy, seminary, college, university or other literary or scientific institution, controlled by any church, sectarian or religious denomination."

The Idaho Supreme Court's authoritative reading of the provision was Epeldi v. Engelking, 94 Idaho 390 (1971). Epeldi struck down a statute funding bus transportation for parochial-school students. The court rejected the "child benefit" theory, which argues that aid is to the student, not to the institution. It also rejected the federal Lemon test. Both rejections meant Idaho's analysis would not track Witters.

By 1989 the Witters litigation itself illustrated the gap. The U.S. Supreme Court held in 1986 that the Washington program did not violate the federal Establishment Clause. On remand the Washington Supreme Court held in 1989 that the program nevertheless violated Washington's stricter constitutional provision against appropriating public money for religious instruction. Witters v. Washington Comm'n for the Blind, 112 Wash.2d 363, 771 P.2d 1119 (1989). The pattern was the same one the Idaho AG was applying.

The AG also surveyed other states. Several Blaine-state programs had been upheld where they included safeguards. Colorado's program survived in Americans United for Separation of Church and State Fund v. State (1982) where the curriculum had no sectarian bent. Missouri's survived in Americans United v. Rogers (1976) when the institution had an independent governing board and academic freedom. Alabama's survived in Alabama Educational Association v. James (1976) where eligible institutions were not predominantly sectarian. The Idaho work-study program contained no such limiting provisions.

Washington State Higher Educ. Assistance Auth. v. Graham was the closest analog to the off-campus question. There, the Washington Supreme Court held a loan-purchasing agency unconstitutional even though loans went to students, because the funds would still be used for tuition and would benefit the college. The AG followed the same reasoning for Idaho's 50%-of-earnings off-campus payments.

Common questions

Did the AG say the federal Constitution barred the program?

No. Under the federal Establishment Clause and Witters v. Washington Department of Services for the Blind, the program was permissible. The federal Lemon test was satisfied because the program had a secular purpose, did not have the primary effect of advancing religion, and did not produce excessive entanglement.

Why did the AG conclude the program was unconstitutional anyway?

Because Idaho's constitution is more restrictive than the federal Constitution on aid to religious schools. Article 9, § 5 is a Blaine-style provision that the Idaho Supreme Court read strictly in Epeldi v. Engelking (1971). Epeldi expressly rejected the "child benefit" theory and the Lemon test as inadequate under Idaho's stricter standard.

Was the on-campus 80%-of-earnings piece the only issue?

The AG concluded it was the clearest violation. The 50%-of-earnings off-campus piece was a closer question because the money went to the student rather than the institution. But following Washington's reasoning in Graham, the AG concluded that off-campus aid would also support the religious institution by enabling the student to stay enrolled and pay tuition. Both pieces violated art. 9, § 5 as applied to church-controlled institutions.

What kind of provisions had saved similar programs in other states?

In Colorado, Missouri, and Alabama, programs survived where they limited eligibility to institutions without sectarian curriculum bent, with independent governance and academic freedom, or with non-predominantly-sectarian character. Idaho's program had none of those limits.

What is the difference between the federal Lemon test and Idaho art. 9, § 5?

The federal Lemon test focuses on purpose, effect, and entanglement, and tolerates aid that is facially neutral and reaches religious institutions only through individual choice. Article 9, § 5 of the Idaho Constitution categorically prohibits public payments "to help support or sustain" religious schools, and the Idaho Supreme Court has rejected indirect-benefit reasoning. The categorical prohibition makes Idaho's standard stricter.

Citations

Constitutions: First Amendment, U.S. Constitution; Article 1, § 3, Idaho Constitution; Article 9, § 5, Idaho Constitution.

Federal statutes: 42 U.S.C. § 2753(b)(1)(C) (1989).

Idaho statutes: Idaho Code §§ 33-4401 through 33-4409 (1989).

Federal cases: Lemon v. Kurtzman, 403 U.S. 602 (1971); Witters v. Washington Dep't of Serv. for the Blind, 474 U.S. 481 (1986).

Idaho cases: Epeldi v. Engelking, 94 Idaho 390, 488 P.2d 860 (1971), cert. denied, 406 U.S. 957 (1972).

Other state cases: Witters v. Washington Comm'n for the Blind, 112 Wash.2d 363, 771 P.2d 1119 (1989); Americans United for Separation of Church and State Fund v. State, 648 P.2d 1072 (Colo. 1982); Americans United v. Rogers, 538 S.W.2d 711 (Mo.), cert. denied, 429 U.S. 1029 (1976); Alabama Educ. Ass'n v. James, 373 So.2d 1076 (Ala. 1976); Washington State Higher Educ. Assistance Auth. v. Graham, 84 Wash. 2d 813, 529 P.2d 1051 (1974); Weiss v. Bruno, 82 Wash.2d 199, 509 P.2d 973 (1973).

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/OP89-05.pdf

Original opinion text

STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL

BOISE 83720

JIM JONES
ATTORNEY GENERAL

TELEPHONE
(208) 334-2400

ATTORNEY GENERAL OPINION NO. 89-5

TO: Rayburn Barton
Executive Director
State Board of Education
650 W. State Street
Statehouse Mail

Per Request for Attorney General's Opinion

QUESTION PRESENTED:

Is the Idaho College Work Study Program established under chapter 44, title 33, Idaho Code, unconstitutional as applied to postsecondary institutions with religious affiliations?

CONCLUSION:

Yes. The Idaho College Work Study Program established under chapter 44, title 33, Idaho Code, as applied to postsecondary institutions controlled by a church, sectarian or religious denomination, violates art. 9, § 5, of the Idaho Constitution.

ANALYSIS:

The legislature hereby recognizes and declares that it is in the public interest to assure educational opportunity to Idaho postsecondary students. The Idaho work study program is an employment program designed to allow resident needy students to earn funds to assist in attending accredited institutions of higher education in Idaho.

The purpose of the program is to expand employment opportunities for resident students. Employment may be in jobs at accredited institutions of higher education or in approved off-campus jobs. Students with financial need are to benefit through the program, and to do so while gaining work experience. Accordingly, efforts should be made whenever possible to provide job opportunities to students which relate to their academic and career goals.

Funds under this program may be used to pay up to eighty percent (80%) of earnings in on-campus jobs. Program funds may also be used to pay up to fifty percent (50%) of earnings for approved off-campus jobs where the jobs are directly related to the student's course of academic study and the employer pays fifty percent (50%) of the earnings. Program funds may also be used to fund up to ten percent (10%) of the total match required for the federal college work study program. Idaho program funds used as match will be governed by federal college work study policy. However, institutional funds used for federal matching purposes shall not be less than the amount allocated for the prior year.

The state board of education is directed to allocate program funds to eligible institutions based upon fall full-time equivalent enrollment in a manner established by board rule. Generally, employment which is allowable under the federal college work study program is allowed under the Idaho program. Each institution's financial aid office is responsible for ensuring that disbursements are made for appropriate work. Students must be paid by check or instrument which may be cashed by students on their own endorsement without further restrictions. The institution may credit earnings to the student's account only with written permission from the student. Idaho Code §§ 33-4401 through 33-4409.

The Idaho College Work Study Program does not violate the establishment clause of the first amendment of the United States Constitution. In Witters v. Washington Dep't of Serv. for the Blind, 474 U.S. 481, 106 S.Ct. 748, 88 L.Ed.2d 846 (1986), the Court held that the use of financial aid pursuant to Washington's vocational rehabilitation program to finance training for the ministry at a Christian college does not violate the establishment clause. The three-part test established in Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), was applied. First, the secular purpose of the legislation was clear. Second, the Court found that the primary effect of the legislation did not advance religion. Considerations were that the money was paid directly to the student, the aid was available without regard to the sectarian-nonsectarian nature of the benefitted institution, and the record did not indicate that any significant portion of the aid expended as a whole would be used for religious education. The Court did not discuss directly the third prong of the test, that the legislation must not foster excessive government entanglement with religion.

On remand, however, the Washington Supreme Court held that the statute violates that state's constitutional provision prohibiting the appropriation of public money for religious instruction. Witters v. Washington Comm'n for the Blind, 112 Wash.2d 363, 771 P.2d 1119 (1989).

Applying the principles of Witters, the Idaho Work Study Program does not violate the United States Constitution. The purpose of the work study program, to expand employment opportunities for resident students, is secular. The primary effect of the legislation does not advance religion. Although the aid would be funneled through the colleges, their involvement would largely consist of fund disbursement and recordkeeping, which would not result in excessive entanglement.

The Idaho College Work Study Program does, however, violate art. 9, § 5, of the Idaho Constitution as construed by the Idaho Supreme Court. That section provides:

Neither the legislature nor any county, city, town, township, school district, or other public corporation, shall ever make any appropriation, or pay from any public fund or moneys whatever, anything in aid of any church or sectarian, or religious society, or for any sectarian or religious purpose, or to help support or sustain any school, academy, seminary, college, university or other literary or scientific institution, controlled by any church, sectarian or religious denomination whatsoever; . . .

The Idaho Supreme Court in Epeldi v. Engelking, 94 Idaho 390, 488 P.2d 860 (1971), cert. denied, 406 U.S. 957, 92 S.Ct. 2058, 32 L.Ed.2d 343 (1972), held that a statute which provided for the allocation of public funds to provide transportation for private school students, including students enrolled in parochial schools, violates art. 9, § 5. The court specifically rejected the "child benefit" theory, i.e., the contention that the public assistance "is being furnished to the children and not to the institution and hence does not constitute any aid or benefit to the sectarian institution." 94 Idaho at 394, 488 P.2d at 864. The court likewise rejected the forerunner of the three-part Lemon test.

Idaho Const. art. 1, § 3, guarantees the exercise and enjoyment of religious faith and prohibits requiring a person to attend religious services, to support any particular religion or to pay tithes against his consent. Since these provisions of the Idaho Constitution are comparable to the free exercise and establishment clauses of the first amendment to the United States Constitution, the Idaho Supreme Court in Epeldi determined that the framers of the Idaho Constitution "intended to more positively enunciate the separation between church and state than did the framers of the United States Constitution" when they included the art. 9, § 5, prohibition of appropriations in aid of any church or to help support and sustain any sectarian school. Epeldi, 94 Idaho at 395, 488 P.2d at 865. The court found that since an effect of the legislation was to aid parochial schools by bringing students to them, the legislation violated the Idaho Constitution.

The legislation establishing the Idaho College Work Study Program provides that jobs which are allowed under the federal college work study program generally are acceptable under the Idaho program. Neither the Idaho statutes nor the federal statutes limit the application of the Idaho Work Study Program to college educational institutions which are not sectarian. Since an effect of the legislation providing for the Idaho College Work Study Program is to use state funds to pay up to eighty percent of the salaries of students working for sectarian postsecondary institutions, the legislation clearly violates art. 9, § 5, by helping to support postsecondary institutions controlled by churches, sectarian or religious denominations.

A closer question is presented by the provisions of the Idaho College Work Study Program that allow program funds to be used to pay up to fifty percent of earnings for approved off-campus jobs. Since the legislation requires that the money be paid directly to the student without restriction, the benefit to the institution is not as clear. Several states with constitutional provisions similar to Idaho's prohibition of support to religious institutions have considered the constitutional validity of financial aid legislation. Legislation has been upheld so long as it included provisions requiring that there be no sectarian bent in the curriculum, Americans United for Separation of Church and State Fund v. State, 648 P.2d 1072, 1075, 1083-85 (Colo. 1982); that an approved educational institution have an independent governing board and academic freedom, Id., Americans United v. Rogers, 538 S.W.2d 711, 721-22 (Mo.), cert. denied, 429 U.S. 1029, 97 S.Ct. 653, 50 L.Ed.2d 632 (1976); or that eligible educational institutions not be of predominantly sectarian character, Alabama Educ. Ass'n v. James, 373 So.2d 1076, 1078-81 (Ala. 1976).

The Washington Supreme Court considered legislation which created an agency to purchase loans made to eligible students by financial and educational institutions. That state's constitution provides:

All schools maintained or supported wholly or in part by the public funds shall be forever free from sectarian influence.

Wash. Const. art. 9, § 4. The Washington Constitution further states:

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.

Wash. Const. art. 1, § 11. Although the Washington legislation, like the Idaho legislation in question, did not require the money be used for tuition, the court stated:

Part of the loaned funds will most certainly be used to pay tuition, and the remainder will benefit the college in many ways by assisting the student to stay in school. . . .

Washington State Higher Educ. Assistance Auth. v. Graham, 84 Wash. 2d 813, 529 P.2d 1051, 1054 (1974). Using language from a previous case, the Washington court stated:

"Any use of public funds that benefits schools under sectarian control or influence — regardless of whether that benefit is characterized as 'indirect' or 'incidental' — violates this provision."

Id., 529 P.2d at 1053-54 (quoting Weiss v. Bruno, 82 Wash.2d 199, 509 P.2d 973, 981 (1973)).

In consideration of the Idaho Supreme Court's strict interpretation and application of art. 9, § 5, in Epeldi, 94 Idaho at 396, 488 P.2d at 866, the use of public funds to pay up to fifty percent of the earnings from approved off-campus jobs of students of an educational institution controlled by a church, sectarian or religious denomination also would violate the Idaho Constitution. Although the money is paid directly to the student, the award of funds is based upon the student's financial need, meaning the student's financial ability to meet the institutionally defined cost of education. Idaho Code § 33-4403(3) (1989). Like the Washington loan program, the Idaho funds likely would be used to pay tuition and would support the institution by assisting the student to stay in school. Providing Idaho College Work Study Program funds to students of an institution controlled by a church, sectarian or religious denomination in this manner would violate the Idaho Constitution.

AUTHORITIES CONSIDERED:

Constitutions:
First Amendment, U.S. Constitution.
Article 9, § 5, Idaho Constitution.

United States Statutes:
42 U.S.C. § 2753(b)(1)(C) (1989).

Idaho Statutes:
Idaho Code §§ 33-4401 through 33-4409 (1989).

United States Cases:
Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971).
Witters v. Washington Dep't of Serv. for the Blind, 474 U.S. 481, 106 S.Ct. 748, 88 L.Ed.2d 846 (1986).

Idaho Cases:
Epeldi v. Engelking, 94 Idaho 390, 488 P.2d 860 (1971), cert. denied, 406 U.S. 957, 92 S.Ct. 2058, 32 L.Ed.2d 343 (1972).

Other State Cases:
Witters v. Washington Comm'n for the Blind, 112 Wash.2d 363, 771 P.2d 1119 (1989).
Americans United for Separation of Church and State Fund v. State, 648 P.2d 1072, 1075, 1083-85 (Colo. 1982).
Americans United v. Rogers, 538 S.W.2d 711, 721-22 (Mo.), cert. denied, 429 U.S. 1029, 97 S.Ct. 653, 50 L.Ed.2d 632 (1976).
Alabama Educ. Ass'n v. James, 373 So.2d 1076, 1078-81 (Ala. 1976).
Washington State Higher Educ. Assistance Auth. v. Graham, 84 Wash. 2d 813, 529 P.2d 1051, 1054 (1974).

DATED this 7th day of June, 1989.

JIM JONES
Attorney General

Analysis by:
Barbara Reisner, Legal Intern

cc: Idaho Supreme Court
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Idaho State Library