Washington Administrative Code

In determining the constitutionality of the program, the court examined the facts of the case in light of article I, section 11 of the Washington State Constitution, which provides for freedom of religion. Consistent with its previous holding in Malyon v. Pierce County, the court found that so long as the disputed program did not have a religious purpose as its objective, article I, section 11 was not violated.

Here, the court found that since the purpose of the EOG program was to increase the accessibility of universities to individuals seeking baccalaureate degrees, the purpose of the program was secular in nature. Nevertheless, the court still needed to resolve the issue of whether the state-funded college courses at private, sectarian institutions could be considered "religious instruction," constituting a clear constitutional violation. Since participants in the EOG program were expressly forbidden from enrolling in classes that were religious in nature, the court found that article I, section 11 was not violated.

According to Stephanie Wisdo, the decision presented in the Gallwey case is interesting not just because it is consistent with case law, but because the case law is incongruous with the broader theme of both the federal and state establishment clauses. She explains that it is an accepted principle of constitutional law that the Federal Constitution provides a baseline for the protection of the separation of church and state, while the states are permitted to make laws that call for stricter protection.

However, in this particular case, state jurisprudence merely requires that the appropriation of public funding not advance a religious purpose. On the other hand, federal law demands that there can be no religious purpose, effect, or excessive entanglement between government and religion in order for a program to be deemed constitutional. Thus, it can be inferred that a state-funded program that is upheld under article 1, section 11 of the Washington State Constitution because it has a secular purpose, could be overturned because it fosters the "excessive entanglement" that was prohibited in an earlier case.

In addition, Gallwey court was cognizant of the implications of finding that the EOG program fosters excessive entanglement, concluding that most forms of federal student financial aid might also be found unconstitutional under this test. But the court has yet to face the question of whether excessive entanglement inevitably results when the court is forced to decide whether a class should be deemed "religious instruction. " Nevertheless, the court would likely decline to apply such a strict interpretation of excessive entanglement in order to preserve the entitlement of publicly funded student financial aid.

However, in doing so, the court would implicitly substitute its own less onerous standard than the three-part Lemon test articulated by the United States Supreme Court in interpreting the Establishment Clause of the United States Constitution. In fine, the case of Gallwey v. Grimm is testament to the Washington Supreme Court’s achievement of two goals. First, the court remedied a previous divergence in case law and held that universities were not subject to the strict prohibitions against the public funding of sectarian education in the same manner as grade schools and high schools.

In doing so, the court reaffirmed its commitment to interpret the Washington Constitution in accordance with the intent of its drafters. Next, the court determined that the publicly funded tuition grant program did not violate the constitutional safeguard provided by the doctrine of separation of church and state, thereby sustaining the legislature's objective of improving access to education through publicly funded financial aid.

Despite upholding the use of publicly funded financial aid to support students enrolled at private universities in the State of Washington, the Gallwey court did not completely foreclose the possibility of subsequent constitutional challenges in similar situations.


A. United States Laws 4 Cong. Rec. at 5595 (1876) Washington Administrative Code of 2000, Section 250-80-020(12) Washington Constitution. Art. I, Section 11 American Jurisprudence, Constitutional Law Section 421