The State of Washington provides $2,500 each year to eligible students for tuition at public or private universities, including those that are sectarian. A state trial court held that such funding of sectarian schools violates Article IX § 4 of the Washington constitution, which requires that publicly-supported schools "be forever free from sectarian control or influence." On appeal, the defendants contended (among other things) that Article IX § 4 does not apply to colleges and universities. In May 2001, AU filed an amicus brief arguing that this provision does apply to universities and colleges, and that such application does not violate the Free Exercise or Equal Protection Clauses of the U.S. Constitution. In June 2002, the Washington Supreme Court rejected AU’s position in a 6-3 decision, finding that the term "schools" does not include institutions of higher learning; that the program does not violate a separate provision of the state Constitution that prohibits public moneys being "appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment" because the provision is limited to instances in which the legislature acts with a religious purpose; and that the program does not violate the Establishment Clause of the U.S. Constitution because it is neutrally available, much like the program upheld by the U.S. Supreme Court in Witters.
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