b'Authority of FEMA to Provide Disaster Assistance to\nSeattle Hebrew Academy\nThe Stafford Disaster Relief and Emergency Assistance Act of 1974 and its implementing regulations\npermit the Federal Emergency Management Agency to provide federal disaster assistance for the\nreconstruction of Seattle Hebrew Academy, a private religious school that was damaged in an\nearthquake in 2001.\nThe Establishment Clause of the First Amendment does not pose a barrier to the Academy\xe2\x80\x99s receipt of\nsuch aid.\n\nSeptember 25, 2002\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL\nFEDERAL EMERGENCY MANAGEMENT AGENCY\nYou asked us to analyze whether the Federal Emergency Management Agency\n(\xe2\x80\x9cFEMA\xe2\x80\x9d) may, consistent with the Stafford Disaster Relief and Emergency\nAssistance Act of 1974 (\xe2\x80\x9cthe Act\xe2\x80\x9d), 42 U.S.C.A. \xc2\xa7\xc2\xa7 5121-5206 (1995 & West\nSupp. 2002), the Act\xe2\x80\x99s implementing regulations, and the Establishment Clause of\nthe First Amendment, provide disaster assistance to the Seattle Hebrew Academy\n(\xe2\x80\x9cthe Academy\xe2\x80\x9d). The Academy, like many other Seattle institutions, sustained\nsevere damage as a result of the Nisqually Earthquake on February 28, 2001. For\nthe reasons set forth below, we conclude that the Act and its implementing\nregulations permit FEMA to provide a disaster assistance grant to the Academy,\nand that the Establishment Clause does not pose a barrier to the Academy\xe2\x80\x99s receipt\nof such aid.\nI.\nThe Academy, a private nonprofit educational facility for Jewish students,\napplied to FEMA for disaster assistance pursuant to section 406 of the Act, 42\nU.S.C.A. \xc2\xa7 5172(a)(1)(B). The Act authorizes the President to \xe2\x80\x9cmake contributions . . . to a person that owns or operates a private nonprofit facility damaged or\ndestroyed by a major disaster for the repair, restoration, reconstruction, or\nreplacement of the facility and for associated expenses incurred by the person.\xe2\x80\x9d Id.\n(emphasis added). In 1979, the President transferred to FEMA this and other\ndisaster relief functions that previously had been delegated or assigned to other\nFederal agencies. See Exec. Order No. 12148, \xc2\xa7 1-102, 3 C.F.R. 412, 413 (1980).\nOn March 28, 2001, a FEMA Public Assistance Officer denied the Academy\xe2\x80\x99s\napplication for assistance. The Academy appealed to the FEMA Region X\nRegional Director. The Region X Acting Regional Director denied the appeal on\nOctober 19, 2001, on the ground that the Academy\xe2\x80\x99s building was not a \xe2\x80\x9cprivate\nnonprofit facility\xe2\x80\x9d for purposes of section 406(a)(1)(B) because it was not open to\n\n114\n\n\x0cAuthority of FEMA to Provide Disaster Assistance to Seattle Hebrew Academy\n\n\xe2\x80\x9cthe general public.\xe2\x80\x9d See Letter for Donna J. Voss, Deputy State Coordinating\nOfficer, Public Assistance, Emergency Management Division, State of Washington Military Department, from Tamara D. Doherty, Acting Regional Director,\nRegion X, FEMA, at 1 (Oct. 19, 2001) (\xe2\x80\x9cDoherty Letter\xe2\x80\x9d). In so ruling, the Acting\nRegional Director determined that a religiously affiliated educational facility is not\nopen to \xe2\x80\x9cthe general public\xe2\x80\x9d if it only admits students of a particular faith. Id.\nThe Academy has appealed the Acting Regional Director\xe2\x80\x99s decision. See Letter\nfor Donna Voss, Washington State Public Assistance Officer, Washington State\nDisaster Field Office, from Ulrike I. Boehm, Attorney for SHA, Latham &\nWatkins, Re: Seattle Hebrew Academy (Dec. 21, 2001) (\xe2\x80\x9cBoehm Letter\xe2\x80\x9d). It is our\nunderstanding that the Academy\xe2\x80\x99s appeal is presently being considered by the\nFEMA Associate Director for Response and Recovery. See 44 C.F.R.\n\xc2\xa7 206.206(b)(2) (2001). You asked for our views on whether FEMA is required by\nstatute or regulation to apply a \xe2\x80\x9cgeneral public\xe2\x80\x9d requirement to all eligible private\nnonprofit facilities or otherwise to disqualify a religiously sponsored educational\nfacility on the ground that it only admits students of a particular faith. If the Act\nand its implementing regulations do not require that FEMA deny funding to the\nAcademy, you also asked for our views on whether such funding would violate the\nEstablishment Clause of the First Amendment.\nII.\nA.\nOn its face, 42 U.S.C.A. \xc2\xa7 5172(a)(1)(B) requires the President to find only that\na potential disaster relief recipient \xe2\x80\x9cowns or operates a private nonprofit facility\xe2\x80\x9d\ndamaged or destroyed in a major disaster. The Acting Regional Director\xe2\x80\x99s denial\nof the Academy\xe2\x80\x99s application added another requirement\xe2\x80\x94that the facility be open\nto \xe2\x80\x9cthe general public.\xe2\x80\x9d In so ruling, she relied upon the FEMA regulation defining\n\xe2\x80\x9cprivate nonprofit facility,\xe2\x80\x9d which provides in relevant part:\nPrivate nonprofit facility means any private nonprofit educational,\nutility, emergency, medical, or custodial care facility, including a\nfacility for the aged or disabled, and other facility providing essential\ngovernmental type services to the general public, and such facilities\non Indian reservations.\n44 C.F.R. \xc2\xa7 206.221(e) (2001) (second emphasis added). The Acting Regional\nDirector construed this regulation to mean that, in order to qualify for relief under\nsection 406(a)(1)(B) of the Act, any and all private nonprofit facilities\xe2\x80\x94including\neducational facilities\xe2\x80\x94must provide essential governmental type services to \xe2\x80\x9cthe\ngeneral public,\xe2\x80\x9d and that a religiously affiliated educational facility does not\n\n115\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nsatisfy this requirement if it limits admission to students of a particular religious\nfaith. See Doherty Letter. 1\nWe believe that the Acting Regional Director\xe2\x80\x99s reading of 44 C.F.R.\n\xc2\xa7 206.221(e) is not the better interpretation of that regulation. Under the most\nnatural reading of section 206.221(e), the phrase \xe2\x80\x9cproviding essential governmental type services to the general public\xe2\x80\x9d modifies only the \xe2\x80\x9cother facilit[ies]\xe2\x80\x9d\nreferenced in the clause in which that phrase appears; the requirement to be open\nto the general public does not apply to the types of facilities\xe2\x80\x94namely, \xe2\x80\x9ceducational, utility, emergency, medical, or custodial care facilit[ies], including a facility for\nthe aged or disabled\xe2\x80\x9d\xe2\x80\x94enumerated prior to the regulation\xe2\x80\x99s \xe2\x80\x9cgeneral public\xe2\x80\x9d\nclause. These five types of facilities, and \xe2\x80\x9cfacilities on Indian reservations,\xe2\x80\x9d are\nboth set off in independent clauses. 2 Thus, the text of the regulation does not\nsupport imposition of a \xe2\x80\x9cgeneral public\xe2\x80\x9d requirement upon any of these facilities. 3\nFEMA has defined four of the types of facilities identified in the statute in a\nmanner that does not impose a \xe2\x80\x9cgeneral public\xe2\x80\x9d requirement. Most important for\npresent purposes, FEMA\xe2\x80\x99s definition of \xe2\x80\x9c[e]ducational facilities\xe2\x80\x9d does not impose\nsuch a requirement. Id. \xc2\xa7 206.221(e)(1). See also id. \xc2\xa7 206.221(e)(2), (5), (6)\n(defining \xe2\x80\x9c[u]tility,\xe2\x80\x9d \xe2\x80\x9c[m]edical facility,\xe2\x80\x9d and \xe2\x80\x9c[c]ustodial care facility\xe2\x80\x9d in a\nmanner that does not impose a \xe2\x80\x9cgeneral public\xe2\x80\x9d requirement upon such facilities). 4\n1\nThe record is somewhat unclear as to whether the Academy strictly limits admission to Jewish\nstudents. At the time of the earthquake, the Academy\xe2\x80\x99s by-laws prohibited admission of non-Jewish\nstudents, although the Academy maintains that it no longer abides by this by-law. See Doherty Letter\nat 1. It is undisputed that the Academy grants admission only to otherwise eligible non-Jewish students\nwho agree to \xe2\x80\x9cseriously study[] and practic[e] Jewish law and culture in their home[s], under the\nsupervision and instruction of a rabbi.\xe2\x80\x9d Boehm Letter at 9. Our reasoning, however, does not depend\nupon the precise nature of the Academy\xe2\x80\x99s admission requirements.\n2\nAs explained below, although section 206.221(e) was crafted to implement a 1988 statutory\ndefinition that references the provision of services \xe2\x80\x9cto the general public\xe2\x80\x9d (42 U.S.C.A. \xc2\xa7 5122(9)), that\nprovision cannot fairly be read to require that educational facilities provide services \xe2\x80\x9cto the general\npublic.\xe2\x80\x9d We begin with the regulatory language, however, because it differs slightly from the statutory\nlanguage: in promulgating its definition of \xe2\x80\x9cprivate nonprofit facility,\xe2\x80\x9d FEMA (1) replaced the statutory\nphrase \xe2\x80\x9cother private nonprofit facilities which provide\xe2\x80\x9d with the phrase \xe2\x80\x9cand other facility providing,\xe2\x80\x9d\nand (2) added the term \xe2\x80\x9csuch\xe2\x80\x9d before \xe2\x80\x9cfacilities on Indian reservations.\xe2\x80\x9d Collectively, these changes\nmake it slightly more plausible to conclude that all of the referenced facilities are subject to the\n\xe2\x80\x9cgeneral public\xe2\x80\x9d requirement. As explained in the text, however, we think it is most reasonable to read\nthe three clauses of section 206.221(e)\xe2\x80\x94the first, which lists five types of covered facilities; the\nsecond, which pertains to facilities providing \xe2\x80\x9cessential governmental type services\xe2\x80\x9d; and the third,\nwhich pertains to \xe2\x80\x9cfacilities on Indian reservations\xe2\x80\x9d\xe2\x80\x94as separate and independent clauses, of which\nonly the second contains a \xe2\x80\x9cgeneral public\xe2\x80\x9d requirement.\n3\nNotably, the Acting Regional Director replaced the middle and final clauses of 44 C.F.R.\n\xc2\xa7 206.221(e) with ellipses, so as to make the provision appear to state: \xe2\x80\x9cPrivate nonprofit facility means\nany nonprofit educational . . . facility providing essential governmental type services to the general\npublic . . . .\xe2\x80\x9d Doherty Letter at 1. As explained in the text, this quotation is relevant for what it omits.\n4\nFor some reason section 206.221(e) contains no definition of \xe2\x80\x9crehabilitational\xe2\x80\x9d facilities, although\nthat term appears, along with the other types of facilities enumerated in the first clause of the rule, in 42\nU.S.C.A. \xc2\xa7 5122(9).\n\n116\n\n\x0cAuthority of FEMA to Provide Disaster Assistance to Seattle Hebrew Academy\n\nBy contrast, FEMA\xe2\x80\x99s definition of \xe2\x80\x9c[o]ther essential governmental service\nfacility\xe2\x80\x9d does contain a \xe2\x80\x9cgeneral public\xe2\x80\x9d requirement. Id. \xc2\xa7 206.221(e)(7). 5 Thus, if\nthe portion of section 206.221(e) relied upon by the Acting Regional Director is\nsimply interpreted in a manner consistent with FEMA\xe2\x80\x99s own regulatory definition\nof \xe2\x80\x9ceducational facilities,\xe2\x80\x9d there is no basis for imposing a \xe2\x80\x9cgeneral public\xe2\x80\x9d\nrequirement upon the Academy. As explained above, however, we do not believe\nthat the text of section 206.221(e) supports imposition of a \xe2\x80\x9cgeneral public\xe2\x80\x9d\nrequirement upon any of the facilities enumerated in the first clause of that\nregulation.\nIt is evident that FEMA promulgated section 206.221(e) in order to implement\na 1988 statutory definition that references the provision of services \xe2\x80\x9cto the general\npublic.\xe2\x80\x9d 42 U.S.C.A. \xc2\xa7 5122(9). 6 It thus appears that the Acting Regional Director\nmay have adopted her construction of section 206.221(e) on the assumption that it\nis the best, or only, interpretation of the statutory definition of \xe2\x80\x9cprivate nonprofit\nfacility.\xe2\x80\x9d As we explain below, 42 U.S.C.A. \xc2\xa7 5122(9) cannot fairly be interpreted\nin that manner. Furthermore, once it is understood that 42 U.S.C.A. \xc2\xa7 5122(9) does\nnot support, let alone compel, a regulation of such breadth, the regulatory interpretation adopted by the Acting Regional Director becomes far less tenable.\nB.\nSecond, and more importantly, even if 44 C.F.R. \xc2\xa7 206.221(e) could reasonably\nbe construed to require the denial of FEMA assistance to the Academy, such a\nresult would be inconsistent with the terms of the statutory provision that section 206.221(e) implements (42 U.S.C.A. \xc2\xa7 5122(9)), and is not authorized by the\n\n5\nAlthough FEMA\xe2\x80\x99s regulatory definitions do impose a \xe2\x80\x9cgeneral public\xe2\x80\x9d requirement on\n\xe2\x80\x9c[i]rrigation facilit[ies]\xe2\x80\x9d and \xe2\x80\x9c[e]mergency facilit[ies],\xe2\x80\x9d 44 C.F.R. \xc2\xa7 206.221(e)(3)-(4), we are aware of\n(and FEMA has provided) no reason, based in the statute or policy, why these facilities ought to be\ntreated differently from the other types of facilities enumerated in the first clause of section 206.221(e).\nWe are aware that in 2000, Congress amended the statutory definition to add the word \xe2\x80\x9cirrigation\xe2\x80\x9d to\nthe definition of private nonprofit facilities, and the legislative history indicates that \xe2\x80\x9c[i]rrigation\nfacilities should be eligible for Federal assistance to the extent that they provide water for essential\nservices of a governmental nature to the general public.\xe2\x80\x9d 146 Cong. Rec. 20,583 (2000) (statement of\nRep. Fowler) (emphasis added). Representative Fowler, however, appears to have assumed (mistakenly) that the statute requires that all eligible private nonprofit facilities provide services to the general\npublic, and that likewise appears to be the only explanation for the express references to the \xe2\x80\x9cgeneral\npublic\xe2\x80\x9d in FEMA\xe2\x80\x99s definitions of \xe2\x80\x9cemergency\xe2\x80\x9d and \xe2\x80\x9cirrigation\xe2\x80\x9d facilities. As explained in the text\nbelow, the statute itself\xe2\x80\x94even as amended in 2000\xe2\x80\x94provides no warrant for treating irrigation or\nemergency facilities any differently than educational facilities.\n6\nPrior to 1989-90, when FEMA promulgated the regulatory definition of \xe2\x80\x9cprivate nonprofit facility\xe2\x80\x9d now found in section 206.221(e), see 54 Fed. Reg. 11,610 (1989) (interim rule with request for\ncomments); 55 Fed. Reg. 2297 (1990) (final rule), FEMA\xe2\x80\x99s regulatory definition of that term did not\nmake any reference to \xe2\x80\x9cthe general public.\xe2\x80\x9d Congress\xe2\x80\x99s 1988 statutory amendment, however, did\ninclude such a reference. See infra p. 119. Thus, it is fair to presume that FEMA promulgated the new\ndefinition in order to implement the definition contained in the 1988 Act.\n\n117\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nstatutory provision that the Acting Regional Director invoked (42 U.S.C.A.\n\xc2\xa7 5151(a)). Upon careful reading, neither of these provisions requires that eligible\nprivate nonprofit facilities provide services to \xe2\x80\x9cthe general public,\xe2\x80\x9d or that\nreligious schools that limit admission to students of a particular faith be deemed\nineligible for disaster relief.\nIn 1988, in Public Law No. 100-707, 102 Stat. 4689, Congress amended the\nDisaster Mitigation Act of 1974 to add for the first time a statutory definition of\n\xe2\x80\x9cprivate nonprofit facility.\xe2\x80\x9d See 102 Stat. at 4690. Section 103(f) of the 1988 Act,\nas amended and codified, presently provides:\n\xe2\x80\x9cPrivate nonprofit facility\xe2\x80\x9d means private nonprofit educational, utility, irrigation, emergency, medical, rehabilitational, and temporary or\npermanent custodial care facilities (including those for the aged and\ndisabled), other private nonprofit facilities which provide essential\nservices of a governmental nature to the general public, and facilities\non Indian reservations as defined by the President.\n42 U.S.C.A. \xc2\xa7 5122(9). In a manner similar to 44 C.F.R. \xc2\xa7 206.221(e) (see supra\nnote 2), the provision defines three categories of private nonprofit facilities: seven\ntypes of enumerated facilities; other facilities that provide \xe2\x80\x9cessential services of a\ngovernmental nature to the general public\xe2\x80\x9d; and facilities on Indian reservations.\nThe language and structure of this provision indicate that the phrase \xe2\x80\x9cwhich\nprovide essential services of a governmental nature to the general public\xe2\x80\x9d modifies\nonly the second category of eligible facilities\xe2\x80\x94\xe2\x80\x9cother private nonprofit facilities\xe2\x80\x9d\xe2\x80\x94which is identified in the same, middle clause as the \xe2\x80\x9cgeneral public\xe2\x80\x9d\nrequirement. The phrase does not modify either the first category of enumerated\neligible facilities (\xe2\x80\x9cprivate nonprofit educational, utility, irrigation, emergency,\nmedical, rehabilitational, and temporary or permanent custodial care facilities\n(including those for the aged and disabled)\xe2\x80\x9d) or the third category of eligible\nfacilities (\xe2\x80\x9cfacilities on Indian reservations as defined by the President\xe2\x80\x9d), both of\nwhich are set off in separate, independent clauses. Indeed, the range of institutions\nfound in the first phrase of section 5122(9) itself suggests that the \xe2\x80\x9cgeneral public\xe2\x80\x9d\nrequirement does not extend to those facilities: in particular, one would not\nordinarily think of an \xe2\x80\x9cirrigation facility\xe2\x80\x9d as being open to the general public, and\nthe text provides no basis for treating irrigation facilities any differently than the\nother enumerated facilities in this regard. See supra note 5.\nThe statutory history of this definition confirms this interpretation. Private\neducational institutions first became eligible for disaster assistance in 1972, when\nCongress gave the President authority to make grants to private nonprofit schools\nthat suffered damage from Hurricane Agnes. Act of Aug. 16, 1972, Pub. L. No.\n92-385, \xc2\xa7 4, 86 Stat. 554, 556-57. That statute defined which \xe2\x80\x9ceducational\ninstitution[s]\xe2\x80\x9d were eligible and further imposed certain conditions on the grants\n\n118\n\n\x0cAuthority of FEMA to Provide Disaster Assistance to Seattle Hebrew Academy\n\nmade to such institutions. Id. \xc2\xa7 4(b)-(d), 86 Stat. at 556-57. Nowhere, however, did\nCongress impose any requirement that eligible educational facilities provide\nservices \xe2\x80\x9cto the general public.\xe2\x80\x9d\nCongress amended the governing statute in the Disaster Relief Act of 1974\n(now known as the Stafford Act), Pub. L. No. 93-288, 88 Stat. 143, which gave the\nPresident still broader authority to make grants for the repair or replacement of\ncertain private facilities damaged in major disasters. See id. \xc2\xa7 402(b), 88 Stat. at\n153 (authorizing the President to make grants \xe2\x80\x9cto help repair, restore, reconstruct,\nor replace private nonprofit educational, utility, emergency, medical, and custodial\ncare facilities, including those for the aged or disabled, and facilities on Indian\nreservations as defined by the President, which were damaged or destroyed by a\nmajor disaster\xe2\x80\x9d). Here again, however, the statute did not include any reference to\nfacilities providing services to \xe2\x80\x9cthe general public.\xe2\x80\x9d Nor, as far as we are aware,\ndid the legislative history suggest a \xe2\x80\x9cgeneral public\xe2\x80\x9d limitation. See, e.g., H.R.\nRep. No. 93-1037, at 37 (1974) (Conf. Rep.), reprinted in 1974 U.S.C.C.A.N.\n3091, 3102. Not surprisingly, therefore, the regulations implementing the 1974\nAct\xe2\x80\x94which contained extensive, detailed limitations on eligibility for funding\xe2\x80\x94\nthereafter defined \xe2\x80\x9c[p]rivate non-profit organization,\xe2\x80\x9d \xe2\x80\x9c[e]ducational [i]nstitution,\xe2\x80\x9d\n\xe2\x80\x9c[p]rivate non-profit facility,\xe2\x80\x9d and \xe2\x80\x9c[e]ducation[al] facilities,\xe2\x80\x9d all without reference\nto any \xe2\x80\x9cgeneral public\xe2\x80\x9d requirement. See, e.g., 24 C.F.R. \xc2\xa7 2205.54(a)(1)-(3), (e),\n(f) (1976) (HUD regulations); 44 C.F.R. \xc2\xa7 205.54(a)(1)-(3), (e), (f) (1979) (FEMA\nregulations adopting former HUD regulations); 44 C.F.R. \xc2\xa7\xc2\xa7 205.2(15), 205.71(a),\n(d), (e), 205.72(b) (1980-1988) (revised FEMA regulations). It is therefore clear\nthat, prior to the 1988 statutory amendment, neither the statute nor its implementing regulations required educational facilities to provide services to the general\npublic. 7\nIt was not until the 1988 amendment discussed above that the governing Act\ncontained any reference to the \xe2\x80\x9cgeneral public\xe2\x80\x9d whatsoever, and nothing in the\nlanguage of that amendment or its legislative history suggests that Congress\nintended to impose a new \xe2\x80\x9cgeneral public\xe2\x80\x9d requirement for eligibility of those\nfacilities of nonprofit organizations that already were eligible for relief prior to\nthe amendment. As the statute\xe2\x80\x99s text confirms, Congress did intend that facilities\nwithin the newly codified \xe2\x80\x9ccatch-all\xe2\x80\x9d category of \xe2\x80\x9cother private nonprofit facilities\nwhich provide essential services of a governmental nature\xe2\x80\x9d would be required to\nprovide services \xe2\x80\x9cto the general public.\xe2\x80\x9d But the only change that Congress made\n\n7\nFrom the time of their initial promulgation, the pre-1988 regulations defined \xe2\x80\x9c[e]mergency\nfacilit[ies]\xe2\x80\x9d to mean \xe2\x80\x9cthose buildings, structures, or systems used to provide emergency services, such\nas fire protection, ambulance, or rescue, to the general public.\xe2\x80\x9d See, e.g., 24 C.F.R. \xc2\xa7 2205.54(a)(3)(iii)\n(1976); 44 C.F.R. \xc2\xa7 205.71(d)(3) (1980) (emphasis added). When it first promulgated this regulation,\nHUD did not explain why it included the \xe2\x80\x9cgeneral public\xe2\x80\x9d qualifier for emergency facilities. See 39\nFed. Reg. 28,212, 28,221 (1974). Notably, however, that same qualifier was not included in any of the\nother definitions prior to the 1988 amendment, including the definition of \xe2\x80\x9ceducation facilities.\xe2\x80\x9d\n\n119\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nconcerning the eligibility of private nonprofit organizations (other than codifying\nthe definition itself) was to establish this new category of eligible facilities\xe2\x80\x94a\nchange that, in the words of the House Committee Report, \xe2\x80\x9cbroadened\xe2\x80\x9d the\n\xe2\x80\x9cdefinition\xe2\x80\x9d of eligible private nonprofit facilities to \xe2\x80\x9cinclude facilities which\nprovide to the general public services of a governmental nature,\xe2\x80\x9d such as \xe2\x80\x9cmuseums, zoos, community centers, libraries, homeless shelters, senior citizen centers,\nrehabilitation facilities, and shelter workshops.\xe2\x80\x9d H.R. Rep. No. 100-517, at 4\n(1988), reprinted in 1988 U.S.C.C.A.N. 6085, 6088; see also 134 Cong. Rec. 4186\n(1988) (Congressional Budget Office Cost Estimate, March 16, 1988, included in\nstatement of Rep. Nowak). In sum, there is no evidence that Congress intended to\nplace new restrictions on those facilities that already were eligible for assistance\nprior to 1988.\nFor whatever reason, the Acting Regional Director did not invoke section 5122(9) as authority for her decision, notwithstanding the fact that it contains\nthe phrase \xe2\x80\x9cgeneral public.\xe2\x80\x9d Instead, the only statute she cited was 42 U.S.C.A.\n\xc2\xa7 5151(a), which provides:\nThe President shall issue, and may alter and amend, such regulations\nas may be necessary for the guidance of personnel carrying out Federal assistance functions at the site of a major disaster or emergency.\nSuch regulations shall include provisions for insuring that the distribution of supplies, the processing of applications, and other relief\nand assistance activities shall be accomplished in an equitable and\nimpartial manner, without discrimination on the grounds of race,\ncolor, religion, nationality, sex, age, or economic status.\nDoherty Letter at 1. For at least two reasons, however, this statutory provision\ncannot serve as authority either for a rule that all eligible nonprofit facilities must\nprovide services \xe2\x80\x9cto the general public,\xe2\x80\x9d or, more specifically, for a rule making\nineligible for aid all private nonprofit facilities that limit admission on the basis of\nreligion.\nFirst, section 5151(a) says nothing about requiring that private recipients of aid\nprovide services \xe2\x80\x9cto the general public.\xe2\x80\x9d Second, and more fundamentally,\nsection 5151(a) is addressed not to discrimination by the recipients of FEMA aid,\nbut to discrimination\xe2\x80\x94including religious discrimination\xe2\x80\x94by those engaged in\nthe provision of FEMA aid. The regulations that the President is required to issue\nare \xe2\x80\x9cfor the guidance of personnel carrying out Federal assistance functions at the\nsite of a major disaster or emergency,\xe2\x80\x9d and must insure \xe2\x80\x9cthat the distribution of\nsupplies, the processing of applications, and other relief and assistance activities\nshall be accomplished in an equitable and impartial manner.\xe2\x80\x9d (Emphasis added.)\nAccordingly, we do not think that section 5151(a) is authority for the broad\n\n120\n\n\x0cAuthority of FEMA to Provide Disaster Assistance to Seattle Hebrew Academy\n\n\xe2\x80\x9cgeneral public\xe2\x80\x9d requirement that the Acting Regional Director would impose on\nall eligible private nonprofit facilities. 8\nIn sum, we have found no statutory provision that requires either that all eligible private nonprofit facilities \xe2\x80\x9cprovide services to the general public,\xe2\x80\x9d 9 or that\n\n8\nFEMA\xe2\x80\x99s definition of eligible private nonprofit \xe2\x80\x9c[e]ducational facilities\xe2\x80\x9d further provides that\nsuch facilities \xe2\x80\x9c[may] not include buildings, structures and related items used primarily for religious\npurposes or instruction.\xe2\x80\x9d 44 C.F.R. \xc2\xa7 206.221(e)(1). We note that there is no longer any basis for this\nrequirement in the text of the Act (the Act formerly provided that educational institutions were\nineligible if used primarily for religious purpose, see Pub. L. No. 92-385, \xc2\xa7 4(c)(4), 86 Stat. at 557)\xe2\x80\x94\nand, in light of current doctrine (see infra Part III), there is some question whether it is consistent with\nthe First Amendment to the Constitution\xe2\x80\x94but in any event the Acting Regional Director specifically\nfound that the religious components of the Academy\xe2\x80\x99s class requirements amount to less than 50% of\nthe curriculum, and thus that the Academy\xe2\x80\x99s building is not used \xe2\x80\x9cprimarily for religious purposes or\ninstruction.\xe2\x80\x9d See Letter for Tamara Doherty, Acting Regional Director, Region X, FEMA, from Donna\nJ. Voss, Deputy State Coordinating Officer, Public Assistance, State of Washington, at 1 (July 21,\n2001); Staff Analysis, Prepared by Bruce Baardson, Public Assistance Section Supervisor, and Donna\nVoss, Deputy State Coordinating Officer, Public Assistance, State of Washington, Re: Seattle Hebrew\nAcademy, First Appeal at 1, 2 (July 24, 2001) (\xe2\x80\x9cStaff Analysis\xe2\x80\x9d).\n9\nWe also note that, even if it were proper to interpret 44 C.F.R. \xc2\xa7 206.221(e) to require that all\neligible facilities (including educational facilities) applying for assistance under the Act be open \xe2\x80\x9cto the\ngeneral public,\xe2\x80\x9d it is not entirely clear, in light of FEMA policy, why a school should be deemed to fail\nthis requirement because it uses religious criteria as a basis for admission. In its Private Nonprofit\nFacility Eligibility Policy, FEMA states that an organization fails its \xe2\x80\x9cgeneral public\xe2\x80\x9d requirement if\n\xe2\x80\x9c[m]embership\xe2\x80\x9d therein \xe2\x80\x9cexcludes individuals of certain discrete groups.\xe2\x80\x9d Policy No. 9521.3, \xc2\xb6 7.E.1.e\n(Apr. 25, 2000). On the other hand, an organization will \xe2\x80\x9clikely\xe2\x80\x9d satisfy the test if, inter alia, \xe2\x80\x9c[u]se\nrestrictions, if any, are clearly related to the nature of the facility.\xe2\x80\x9d Id. \xc2\xb6 7.E.2.d. The Policy goes on to\nprovide examples of facilities limited to senior citizens, children\xe2\x80\x99s day care, and care for abused\nspouses, all of which presumptively satisfy the \xe2\x80\x9cgeneral public\xe2\x80\x9d requirement. Id. \xc2\xb6 7.B.4.\nIn light of these examples, it appears that FEMA does not construe the \xe2\x80\x9cgeneral public\xe2\x80\x9d requirement to require that facilities be open to all persons. Senior citizens\xe2\x80\x99 homes serve only elderly people,\nexcluding the young and middle-aged; child care facilities serve only young people, excluding adults;\nfacilities for abused spouses serve only abused married people, excluding those who are unmarried (and\npresumably those who are abused by people other than their spouses). It cannot be denied that these\nfacilities \xe2\x80\x9cexclude[] individuals of certain discrete groups.\xe2\x80\x9d Yet FEMA permits these facilities to\nreceive aid notwithstanding the fact that they are not open to everyone, because their admission\npractices are \xe2\x80\x9cclearly related to the nature of the facility,\xe2\x80\x9d which is to serve people with specific needs\nor backgrounds.\nInsofar as the same can be said of a school that restricts admission to students of a particular faith\xe2\x80\x94\nsuch restrictions on admission \xe2\x80\x9care clearly related to the nature of the facility,\xe2\x80\x9d which, in part, is to\nprovide religious education\xe2\x80\x94it is not evident why the Academy should be viewed as not providing\nservices \xe2\x80\x9cto the general public\xe2\x80\x9d simply because it applies religious criteria in its admission practices\nand thus is not open to everyone. To the extent that the Acting Regional Director may have rested on\nthe policy judgment that religious discrimination is more invidious than other types of discrimination,\nwe note that the statute contains no such judgment and that many federal statutes permit religious\norganizations to preserve their autonomy by limiting their associations to co-religionists. See 42\nU.S.C.A. \xc2\xa7 2000e-1 (2000) (Title VII provision permitting religious nonprofit organizations to hire on a\nreligious basis); id. \xc2\xa7 2000d (Title VI provision prohibiting recipients of federal funding from\ndiscriminating on the basis of \xe2\x80\x9crace, color, or national origin,\xe2\x80\x9d but not religion); 20 U.S.C.A. \xc2\xa7 1681(a)\n(2000) (Title IX provision prohibiting federally funded educational institutions from discriminating on\nthe basis of sex, but not religion).\n\n121\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nschools that limit admission to students of a particular faith be deemed ineligible\nfor disaster relief.10\nIII.\nYou also asked us to analyze whether the Establishment Clause of the First\nAmendment would require another result. Although there is no precedent that\ndirectly controls this specific issue, we conclude that the Establishment Clause\ndoes not pose a barrier to FEMA\xe2\x80\x99s provision of a disaster assistance grant to the\nAcademy. The aid that is authorized by federal law is made available on the basis\nof neutral criteria to an unusually broad class of beneficiaries defined without\nreference to religion and including not only educational institutions but a host of\nother public and private institutions as well. Moreover, the program\xe2\x80\x99s design is not\ncharacterized by the sort of administrative discretion that can readily be used to\nfavor religion, and the evidence demonstrates that FEMA has exercised its\n10\nUnder 42 U.S.C.A. \xc2\xa7 5151(b), which the Acting Regional Director did not cite, the President has\nauthority to promulgate \xe2\x80\x9cregulations relating to nondiscrimination\xe2\x80\x9d that apply to institutions that\nreceive FEMA disaster assistance. See id. (\xe2\x80\x9cAs a condition of . . . receiving assistance under this\nchapter, . . . organizations shall be required to comply with regulations relating to nondiscrimination\npromulgated by the President . . . .\xe2\x80\x9d). The President, however, has not promulgated regulations\nprohibiting recipients of FEMA disaster assistance from discriminating on the basis of religion. See 44\nC.F.R. \xc2\xa7 7.920 (2001) (prohibiting recipients of assistance from discriminating on the basis of age, but\nnot religion). Nor are we aware of any other provision of federal law that would impose such a\nrequirement upon the Academy. See 20 U.S.C.A. \xc2\xa7 1681(a) (2000) (Title IX) (prohibiting educational\ninstitutions from discriminating on the basis of sex, but not religion); 44 C.F.R. pt. 19 (2001)\n(implementing Title IX for purposes of FEMA assistance); 42 U.S.C.A. \xc2\xa7 2000d (prohibiting recipients\nof federal funding from discriminating on the basis of \xe2\x80\x9crace, color, or national origin\xe2\x80\x9d); 44 C.F.R. \xc2\xa7 7.3\n(2001) (prohibiting recipients of FEMA assistance under various statutes from discriminating on the\nbasis of \xe2\x80\x9crace, color, or national origin\xe2\x80\x9d); see also Staff Analysis at 2 (finding that the Academy\ncomplies with Title VI).\nFEMA Director\xe2\x80\x99s Policy 2-01 provides that \xe2\x80\x9c[i]t is the policy of [FEMA] to ensure that the Civil\nRights of all persons receiving services or benefits from agency programs and activities are protected\xe2\x80\x9d\nand that \xe2\x80\x9c[n]o person shall, on the grounds of . . . religion . . . be denied the benefits of, be deprived of\nparticipation in, or be discriminated against in any program or activity conducted by or receiving\nfinancial assistance from FEMA.\xe2\x80\x9d Id., Re: Civil Rights Program, \xc2\xb6 1 (July 17, 2001). See also id. \xc2\xb6 4\n(explaining that these requirements apply to \xe2\x80\x9ceducational institutions\xe2\x80\x9d that receive FEMA assistance).\nWe note, however, that this policy has not been adopted by regulation, and thus cannot be said to\nimplement 42 U.S.C.A. \xc2\xa7 5151(b). Nor are we aware of any other statutory authority that would\nauthorize FEMA to impose a \xe2\x80\x9cgeneral public\xe2\x80\x9d or religious nondiscrimination requirement on the\nAcademy. Sections 5164 and 5201(a)(1) of title 42 (2000) authorize the President to \xe2\x80\x9cprescribe such\nrules and regulations as may be necessary and proper to carry out any of the provisions of this chapter,\xe2\x80\x9d\nbut we are doubtful that those provisions would permit FEMA to impose a \xe2\x80\x9cgeneral public\xe2\x80\x9d requirement where Congress, in the statutory provision that speaks directly to the question, has imposed such a\nrequirement on other institutions but not on educational institutions such as the Academy. See 42\nU.S.C.A. \xc2\xa7 5122(9). Similarly, there is some question whether these provisions would authorize FEMA\nto adopt a \xe2\x80\x9cpolicy\xe2\x80\x9d imposing a religious nondiscrimination requirement upon participating institutions\nwhere another provision of the same statute (42 U.S.C.A. \xc2\xa7 5151(b)) mandates that such requirements\nbe imposed pursuant to \xe2\x80\x9cregulations.\xe2\x80\x9d\n\n122\n\n\x0cAuthority of FEMA to Provide Disaster Assistance to Seattle Hebrew Academy\n\ndiscretion in a neutral manner. Thus, we believe that provision of disaster assistance to the Academy cannot be materially distinguished from aid programs that\nare constitutional under longstanding Supreme Court precedent establishing that\nreligious institutions are fully entitled to receive generally available government\nbenefits and services, such as fire and police protection.\nThe Supreme Court\xe2\x80\x99s general framework for analyzing Establishment Clause\nissues is familiar. A statute violates the Establishment Clause if it lacks a \xe2\x80\x9csecular\nlegislative purpose,\xe2\x80\x9d has a \xe2\x80\x9cprimary effect\xe2\x80\x9d of advancing religion, or results in an\n\xe2\x80\x9cexcessive entanglement\xe2\x80\x9d between government and religion. See Lemon v.\nKurtzman, 403 U.S. 602, 612-13 (1971); see also Agostini v. Felton, 521 U.S. 203\n(1997) (reformulating the Lemon test by incorporating its \xe2\x80\x9centanglement\xe2\x80\x9d prong\ninto its \xe2\x80\x9ceffects\xe2\x80\x9d prong). Here, as in the vast majority of situations implicating the\nEstablishment Clause, the critical question is whether allowing the Academy to\nreceive direct disaster assistance would have the \xe2\x80\x9cprimary effect\xe2\x80\x9d of advancing\nreligion.11 Accordingly, our analysis will focus on decisions that illuminate that\ninquiry.\nEver since its first modern Establishment Clause decision in Everson v. Board\nof Education, 330 U.S. 1, 17 (1947), the Supreme Court has indicated that\nreligious institutions are entitled to receive \xe2\x80\x9cgeneral government services\xe2\x80\x9d made\navailable on the basis of neutral criteria. Everson held that the Establishment\nClause does not bar students attending religious schools from receiving generally\navailable school busing services provided by the government. In reaching its\ndecision, the Court explained that even if the evenhanded provision of busing\nservices increased the likelihood that some parents would send their children to\nreligious schools, the same could be said of other \xe2\x80\x9cgeneral state law benefits\xe2\x80\x9d that\nwere even more clearly constitutional because they were equally available to all\ncitizens and far removed from the religious function of the school. Id. at 16. As\nexamples, the Court cited \xe2\x80\x9csuch general government services as ordinary police\nand fire protection, connections for sewage disposal, public highways and\nsidewalks,\xe2\x80\x9d concluding:\n\n11\nIt is clear that allowing a range of nonprofit organizations like the Academy to receive rehabilitation grants serves the secular purpose of rehabilitating the community by helping to rebuild institutions\nthat perform quasi-public functions and are (by virtue of their nonprofit status) most in need of\nassistance. See Pub. L. No. 92-385, \xc2\xa7 4, 86 Stat. at 556-57 (explaining that disaster relief for private,\nnonprofit educational facilities was appropriate because such institutions \xe2\x80\x9chave a secular educational\nmission,\xe2\x80\x9d and because the public schools would have to bear the cost of educating the students\nattending such private schools if the damaged institutions were not restored); see also 57 Fed. Reg.\n18,441 (1992) (preamble to FEMA proposed rule explaining that the 1972 statute permitted grants to\nprivate schools \xe2\x80\x9cbecause of the public function which they served\xe2\x80\x9d). Nor is there any basis for\nconcluding that allowing the Academy to receive aid would \xe2\x80\x9cexcessively entangle\xe2\x80\x9d the Academy with\nthe state, as there is even less governmental monitoring of aid recipients here than in other cases in\nwhich the Court has not questioned the provision of aid under Lemon\xe2\x80\x99s entanglement prong. Cf., e.g.,\nAgostini, 521 U.S. 203; Mitchell v. Helms, 530 U.S. 793 (2000).\n\n123\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\ncutting off church schools from these services, so separate and so\nindisputably marked off from the religious function, would make it\nfar more difficult for the schools to operate. But such is obviously\nnot the purpose of the First Amendment. That Amendment requires\nthe state to be a neutral in its relations with groups of religious\nbelievers and non-believers; it does not require the state to be their\nadversary. State power is no more to be used so as to handicap religions, than it is to favor them.\nId. at 17-18. See also id. at 16 (\xe2\x80\x9c[The state] cannot exclude individual Catholics,\nLutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from\nreceiving the benefits of public welfare legislation. . . . [W]e must be careful, in\nprotecting the citizens of New Jersey against state-established churches, to be sure\nthat we do not inadvertently prohibit New Jersey from extending its general state\nlaw benefits to all its citizens without regard to their religious belief\xe2\x80\x9d).\nWe believe that a FEMA disaster assistance grant is analogous to the sort of aid\nthat qualifies as \xe2\x80\x9cgeneral government services\xe2\x80\x9d approved by the Court in Everson.\nAlthough such aid is not available to all citizens or buildings\xe2\x80\x94and thus is not as\nbroadly available as, say, utility services\xe2\x80\x94neither is it limited to educational\ninstitutions or, for that matter, to just a few classes of buildings. As noted above,\nthe FEMA grants in question are made available not only to public and private\nschools, but to \xe2\x80\x9cprivate nonprofit . . . utility, irrigation, emergency, medical,\nrehabilitational, and temporary or permanent custodial care facilities (including\nthose for the aged and disabled), other private nonprofit facilities which provide\nessential services of a governmental nature to the general public, and facilities on\nIndian reservations as defined by the President.\xe2\x80\x9d 42 U.S.C.A. \xc2\xa7 5122(9). Accordingly, we think that the \xe2\x80\x9ccircumference\xe2\x80\x9d of this program can fairly be said to\n\xe2\x80\x9c\xe2\x80\x98encircle[] a class so broad that it can be fairly concluded that religious institutions could be thought to fall within the natural perimeter.\xe2\x80\x99\xe2\x80\x9d Texas Monthly, Inc. v.\nBullock, 489 U.S. 1, 17 (1989) (plurality opinion) (quoting Walz v. Tax Comm\xe2\x80\x99n,\n397 U.S. 664, 696 (1970) (Harlan, J.)). As the Court stated in Widmar v. Vincent,\n454 U.S. 263, 274 (1981), \xe2\x80\x9c[t]he provision of benefits to so broad a spectrum of\ngroups is an important index of secular effect.\xe2\x80\x9d Accord Texas Monthly, 489 U.S. at\n14-15 (plurality opinion) (footnote omitted) (\xe2\x80\x9c[i]nsofar as [a] subsidy is conferred\nupon a wide array of nonsectarian groups as well as religious organizations in\npursuit of some legitimate secular end, the fact that religious groups benefit\nincidentally does not deprive the subsidy of the secular purpose and primary effect\nmandated by the Establishment Clause\xe2\x80\x9d); Zobrest v. Catalina Foothills Sch. Dist.,\n509 U.S. 1, 8 (1993) (\xe2\x80\x9cwe have consistently held that government programs that\nneutrally provide benefits to a broad class of citizens defined without reference to\nreligion are not readily subject to an Establishment Clause challenge\xe2\x80\x9d); Board of\n\n124\n\n\x0cAuthority of FEMA to Provide Disaster Assistance to Seattle Hebrew Academy\n\nEduc. of Kiryas Joel v. Grumet, 512 U.S. 687, 704 (1994) (\xe2\x80\x9cwe have frequently\nrelied explicitly on the general availability of any benefit provided religious\ngroups or individuals in turning aside Establishment Clause challenges\xe2\x80\x9d).\nIn Walz v. Tax Commission, 397 U.S. 664, 673 (1970), for example, the Court\nrejected an Establishment Clause challenge to a property tax exemption made\navailable not only to churches, but to several other classes of nonprofit institutions,\nsuch as \xe2\x80\x9chospitals, libraries, playgrounds, scientific, professional, historical, and\npatriotic groups.\xe2\x80\x9d See also id. at 667 n.1. In upholding the program, the Court\nrelied in part upon the breadth of the tax exemption: the exemption did \xe2\x80\x9cnot\nsingle[] out one particular church or religious group or even churches as such,\xe2\x80\x9d but\nrather was available to \xe2\x80\x9ca broad class of property owned by nonprofit, quasi-public\ncorporations.\xe2\x80\x9d Id. at 673. As the Court stated in reference to Everson, if \xe2\x80\x9cbuses can\nbe provided to carry and policemen to protect church school pupils, we fail to see\nhow a broader range of police and fire protection given equally to all churches,\nalong with nonprofit hospitals, art galleries, and libraries receiving the same tax\nexemption, is different for purposes of the Religion Clauses.\xe2\x80\x9d Id. at 671. Thus, just\nas a broad category of beneficiary institutions was sufficient to sustain the\ninclusion of religious institutions in the tax benefit in Walz, we believe the breadth\nof the eligibility categories in the FEMA program is sufficient to sustain the\nprovision of FEMA aid to the Academy. Put another way, we do not think that\nproviding FEMA grants to religious institutions that qualify for disaster relief on\nthe basis of wholly neutral criteria\xe2\x80\x94a wide array of nonprofit organizations may\nreceive aid for buildings that have suffered structural damage from a natural\ndisaster\xe2\x80\x94lacks a secular purpose or effect. See generally Lemon, 403 U.S. at\n612-13; Agostini, 521 U.S. at 223-30.\nWe cannot say, however, that there are no arguments to the contrary. Most\nimportant, there is an argument that providing FEMA disaster relief to repair a\nschool used for religious instruction would run afoul of Supreme Court precedent\nrestricting the use of \xe2\x80\x9cdirect\xe2\x80\x9d aid that can be put to specifically religious uses. In\nparticular, one might argue that insofar as the grant used to rebuild the Academy\xe2\x80\x99s\nbuilding would ultimately support the building\xe2\x80\x99s use for secular and religious\npurposes\xe2\x80\x94i.e., both secular and religious teaching\xe2\x80\x94such aid is unlawful under\nSupreme Court decisions from the 1970s holding that public construction grants\nfor educational institutions may not be applied toward buildings used for religious\npurposes. See Tilton v. Richardson, 403 U.S. 672 (1971) (federal construction\ngrants for college and university facilities must be restricted indefinitely to use for\nsecular purposes); Committee for Pub. Educ. v. Nyquist, 413 U.S. 756 (1973)\n(invalidating the provision of state maintenance and repair grants to religious\nschools on the basis that such aid could not be restricted to secular purposes); see\nalso Hunt v. McNair, 413 U.S. 734, 744 (1973) (sustaining state financing of\nconstruction for religious college under program that barred financing of \xe2\x80\x9cbuildings or facilities used for religious purposes\xe2\x80\x9d).\n\n125\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nIn Tilton, for example, the Court sustained the provision of federal construction\ngrants to religious colleges insofar as the program at issue barred aid for \xe2\x80\x9c\xe2\x80\x98any\nfacility used or to be used for sectarian instruction or as a place for religious\nworship,\xe2\x80\x99\xe2\x80\x9d but invalidated such grants insofar as the program permitted funding\nthe construction of buildings that might someday be used for religious activities.\nSee 403 U.S. at 675, 683 (plurality opinion) (citations omitted) (concluding that a\n20-year limitation on the statutory prohibition on use of the buildings for religious\nactivities violated the Establishment Clause, because \xe2\x80\x9c[i]f, at the end of 20 years,\nthe building is, for example, converted into a chapel or otherwise used to promote\nreligious interests, the original federal grant will in part have the effect of advancing religion\xe2\x80\x9d).12 Similarly, in Nyquist the Court invalidated state maintenance and\nrepair grants for nonpublic elementary and secondary schools because it was not\npossible to \xe2\x80\x9crestrict payments to those expenditures related to the upkeep of\nfacilities used exclusively for secular purposes.\xe2\x80\x9d 413 U.S. at 774. These portions\nof the holdings of these decisions, so far as they go, have not been specifically\noverruled, even where government aid is distributed to both religious and nonreligious schools on the basis of neutral criteria.13\n\n12\nThis portion of the holding in Tilton was unanimous. See also id. at 692 (Douglas, J., dissenting\nin part, joined by Black and Marshall, JJ.); Lemon, 403 U.S. at 659-61 (separate opinion of Brennan, J.,\nconcurring in judgment in part in Tilton); id. at 665 & n.1 (White, J., concurring in judgment in Tilton)\n(\xe2\x80\x9caccept[ing] the Court\xe2\x80\x99s invalidation of the provision in the federal legislation whereby the restriction\non the use of buildings constructed with federal funds terminates after 20 years\xe2\x80\x9d).\n13\nSee Mitchell, 530 U.S. at 840 (O\xe2\x80\x99Connor, J., concurring in the judgment) (\xe2\x80\x9cAlthough \xe2\x80\x98[o]ur cases\nhave permitted some government funding of secular functions performed by sectarian organizations,\xe2\x80\x99\nour decisions \xe2\x80\x98provide no precedent for the use of public funds to finance religious activities\xe2\x80\x99\xe2\x80\x9d (citation\nomitted)); see also id. (where government has given aid directly to a religious institution, \xe2\x80\x9cdiversion of\nsecular government aid to religious indoctrination\xe2\x80\x9d is \xe2\x80\x9cconstitutionally impermissible\xe2\x80\x9d); id. at 865 (the\nprinciple that \xe2\x80\x9c\xe2\x80\x98any use of public funds to promote religious doctrines violates the Establishment\nClause,\xe2\x80\x99 . . . of course remains good law\xe2\x80\x9d (citation omitted)); id. at 856-57 (discussing Tilton); id. at\n857 (if plaintiffs were to prove \xe2\x80\x9cthat the aid in question actually is, or has been, used for religious\npurposes,\xe2\x80\x9d they would \xe2\x80\x9cestablish a First Amendment violation\xe2\x80\x9d); id. at 843-44 (emphasizing that the\nconstitutional concern that direct aid might be impermissibly diverted to religious activities is\nespecially pronounced when the aid is in the form of direct monetary subsidies).\nWe would also note, however, that while the relevant holdings of these cases have not been overruled, significant portions of their reasoning is subject to serious question in light of more recent\ndecisions. Separate portions of the Nyquist decision, for example, were overruled by the Court last\nTerm in Zelman v. Simmons-Harris, 536 U.S. 639 (2002), and the \xe2\x80\x9cpervasively sectarian\xe2\x80\x9d doctrine,\nwhich comprised the basis for many of the Court\xe2\x80\x99s Establishment Clause decisions in the early 1970s\n(including Nyquist, 413 U.S. at 774-75), no longer enjoys the support of a majority of the Court. See\nMitchell, 530 U.S. at 825-29 (plurality opinion); id. at 857-58 (O\xe2\x80\x99Connor, J., concurring in judgment)\n(requiring proof of actual diversion of public support to religious uses to invalidate direct aid to schools\nand explaining that \xe2\x80\x9cpresumptions of religious indoctrination are normally inappropriate when\nevaluating neutral school-aid programs under the Establishment Clause\xe2\x80\x9d); Columbia Union College v.\nOliver, 254 F.3d 496, 502-04 (4th Cir. 2001) (explaining that the pervasively sectarian test is no longer\nvalid in light of the holdings of six Justices in Mitchell). Moreover, even if decisions such as Tilton and\nNyquist were controlling, they would limit the provision of a construction grant to the Academy only\n\n126\n\n\x0cAuthority of FEMA to Provide Disaster Assistance to Seattle Hebrew Academy\n\nAssuming, arguendo, that Tilton and Nyquist remain valid precedents in these\nrespects, we do not believe that those decisions control the question whether\nFEMA may provide a disaster assistance grant to the Academy. In Nyquist, the\nCourt distinguished fire and police services from construction grants and repair aid\non the ground that police and fire protection are \xe2\x80\x9cprovided in common to all\ncitizens, are \xe2\x80\x98so separate and so indisputably marked off from the religious\nfunction,\xe2\x80\x99 that they may fairly be viewed as reflections of a neutral posture toward\nreligious institutions.\xe2\x80\x9d 413 U.S. at 782 (citation omitted). But we see no principled\nreason why the constitutionality of an aid program should turn on whether the aid\nis provided to all citizens rather than, say, a wide array of organizations that falls\nsomewhat short of the entire populace. There is a range of aid programs that are\nnot as \xe2\x80\x9cgeneral\xe2\x80\x9d as aid provided universally (to every person), but yet are not as\ncircumscribed as aid to education,14 and the grants provided by FEMA admittedly\nfall somewhere within this middle ground. But such aid is more closely analogous\nto the provision of \xe2\x80\x9cgeneral\xe2\x80\x9d government services like those sanctioned by the\nCourt in Everson (and many times since, e.g., Nyquist, 403 U.S. at 781-82) than to\nthe construction grants at issue in Tilton and Nyquist, which were available only to\neducational institutions.\nThe vast majority of the Supreme Court\xe2\x80\x99s Establishment Clause decisions\nrendered since Everson have concerned aid provided solely to educational\ninstitutions as a class (in many cases, moreover, this aid was directed toward the\neducational process itself), and these decisions rest in part on the theory that aid\ndirected solely to schools is reasonably perceived as advancing the educational\nmission of those that receive it. See, e.g., Mitchell v. Helms, 530 U.S. 793, 843\ninsofar as the grant would be used to reconstruct those portions of buildings in which specifically\nreligious activities take place.\nIn a prior memorandum, Constitutionality of Awarding Historic Preservation Grants to Religious\nProperties, 19 Op. O.L.C. 267 (1995) (\xe2\x80\x9cHistoric Preservation Memo\xe2\x80\x9d), this Office concluded that\nTilton and Nyquist prohibited the Interior Department from providing historic preservation grants to\nreligious properties. That opinion did not consider whether the rule of Tilton and Nyquist should apply\nwhere the grants at issue are available to a wide array of nonprofit institutions, rather than being limited\nto educational institutions. Moreover, the Historic Preservation Memo relied heavily on the fact that\nqualification for historic preservation grants depended on the application of \xe2\x80\x9csubjective criteria,\xe2\x80\x9d such\nas historical importance, in determining \xe2\x80\x9cproject worthiness.\xe2\x80\x9d Id. at 271-72. We continue to believe that\nthe degree of discretion exercised by governmental officials, and the manner in which such discretion is\nexercised, are relevant to the constitutionality of direct aid programs (although we express no opinion\nhere on the Memo\xe2\x80\x99s conclusion regarding historic preservation grants). But to the extent that the\nHistoric Preservation Memo failed to consider the possibility that the rule of Tilton and Nyquist does\nnot apply where direct aid is more generally available than was the aid in those cases, it does not\nrepresent our current thinking, which is set forth in this memorandum.\n14\nSee Mitchell, 530 U.S. at 875 (Souter, J., dissenting) (stating that \xe2\x80\x9cgovernment spending resists\neasy classification as between universal general service or subsidy of favoritism,\xe2\x80\x9d and noting that \xe2\x80\x9c[t]he\n5-to-4 division of the Everson Court turned on the inevitable question whether reimbursing all parents\nfor the cost of transporting their children to school was close enough to police protection to tolerate its\nindirect benefit in some degree to religious schools\xe2\x80\x9d).\n\n127\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\n(2000) (O\xe2\x80\x99Connor, J., concurring in judgment). The argument that direct aid to\neducation unlawfully advances the mission of religious schools applies with the\ngreatest force where such schools constitute a substantial percentage of those that\nreceive aid. See Lemon, 403 U.S. at 610 (noting that 96% of students at recipient\ninstitutions were pupils at religious schools and that \xe2\x80\x9cmost\xe2\x80\x9d of those schools were\nCatholic); Nyquist, 413 U.S. at 768 (\xe2\x80\x9call or practically all\xe2\x80\x9d of the schools eligible\nfor maintenance or repair grants were Catholic, and 85% of those eligible for other\nforms of aid were church-affiliated); Meek v. Pittenger, 421 U.S. 349, 364 (1975)\n(\xe2\x80\x9cmore than 75% [of the qualifying schools] are church-related or religiously\naffiliated educational institutions\xe2\x80\x9d), overruled in relevant part by Mitchell, 530\nU.S. 793; Wolman v. Walter, 433 U.S. 229, 234 (1977) (of 720 private schools\neligible for aid, \xe2\x80\x9call but 29\xe2\x80\x9d were religious), overruled in relevant part by Mitchell,\n530 U.S. 793.15 That argument is much harder to make where the aid is provided to\na range of nonprofit institutions of which schools are but one part. The broad class\nof beneficiaries that are eligible for aid under the statute here\xe2\x80\x94which includes\n\xe2\x80\x9ceducational, utility, irrigation, emergency, medical, rehabilitational, and temporary or permanent custodial care facilities (including those for the aged and\ndisabled), other private nonprofit facilities which provide essential services of a\ngovernmental nature to the general public, and facilities on Indian reservations,\xe2\x80\x9d\n42 U.S.C.A. \xc2\xa7 5122(9)\xe2\x80\x94confirms that, in contrast to the education-specific aid at\nissue in the foregoing cases, the disaster relief provided by FEMA serves goals\nentirely unrelated to education\xe2\x80\x94namely, rehabilitation of a community that has\nsuffered great loss from a natural disaster by helping to rebuild institutions that\nperform quasi-public functions and are (by virtue of their nonprofit status) most in\nneed of assistance. Cf. Mitchell, 530 U.S. at 883 (Souter, J., dissenting)\n(\xe2\x80\x9c[D]epending on the breadth of distribution, looking to evenhandedness is a way\nof asking whether a benefit can reasonably be seen to aid religion in fact; we do\nnot regard the postal system as aiding religion, even though parochial schools get\nmail\xe2\x80\x9d).\n15\nWe are not suggesting that an aid program has the unlawful effect of advancing religion merely\nbecause a large number of its beneficiaries are religious in nature. The Supreme Court has repeatedly\nrepudiated the view that the percentage of a program\xe2\x80\x99s religious beneficiaries is relevant to its\nconstitutionality under the Establishment Clause. See Mueller v. Allen, 463 U.S. 388, 391, 401 (1983)\n(sustaining a tax deduction for educational expenses made available to both religious and secular\nparents, notwithstanding evidence that \xe2\x80\x9cabout 95%\xe2\x80\x9d of eligible beneficiaries were parents whose\nchildren attended religious schools); Agostini v. Felton, 521 U.S. 203, 229 (1997) (noting that the Court\nwas not \xe2\x80\x9cwilling to conclude that the constitutionality of an aid program depends on the number of\nsectarian school students who happen to receive the otherwise neutral aid\xe2\x80\x9d); Mitchell, 530 U.S. at 812\nn.6 (plurality opinion) (citing Agostini for the proposition that \xe2\x80\x9cthe proportion of aid benefiting students\nat religious schools pursuant to a neutral program involving private choices [is] irrelevant to the\nconstitutional inquiry\xe2\x80\x9d); Zelman, 536 U.S. at 658 (refusing to \xe2\x80\x9cattach constitutional significance to the\nfact that 96% of scholarship recipients have enrolled in religious schools\xe2\x80\x9d and stating that \xe2\x80\x9c[t]he\nconstitutionality of a neutral educational aid program simply does not turn on whether and why, in a\nparticular area, at a particular time, most private schools are run by religious organizations\xe2\x80\x9d).\n\n128\n\n\x0cAuthority of FEMA to Provide Disaster Assistance to Seattle Hebrew Academy\n\nWe find further support for our decision in the fact that Tilton and Nyquist are\nin considerable tension with a long and growing line of cases holding that the Free\nSpeech Clause does not permit the government to deny religious groups equal\naccess to the government\xe2\x80\x99s own property, even where such groups seek to use the\nproperty \xe2\x80\x9c\xe2\x80\x98for purposes of religious worship or religious teaching.\xe2\x80\x99\xe2\x80\x9d Widmar v.\nVincent, 454 U.S. 263, 265 (1981). See Lamb\xe2\x80\x99s Chapel v. Center Moriches Sch.\nDist., 508 U.S. 384, 394 (1993); Capital Square Rev. & Advisory Bd. v. Pinette,\n515 U.S. 753 (1995); Good News Club v. Milford Central Sch., 533 U.S. 98\n(2001); see also Board of Educ. v. Mergens, 496 U.S. 226 (1990). Providing\nreligious groups with access to property is a form of direct aid\xe2\x80\x94albeit not\nfinancial aid\xe2\x80\x94and allowing such groups to conduct worship services plainly\n\xe2\x80\x9cadvances\xe2\x80\x9d their religious mission. The Court, however, has consistently refused\nto permit (let alone require) state officials to deny churches equal access to public\nschool property \xe2\x80\x9con the ground that to permit its property to be used for religious\npurposes would be an establishment of religion.\xe2\x80\x9d Lamb\xe2\x80\x99s Chapel, 508 U.S. at 394.\nIndeed, the Court has gone so far as to extend the reasoning of these cases to\nrequire equal funding of religious student expression, reasoning that \xe2\x80\x9c[e]ven the\nprovision of a meeting room . . . involve[s] governmental expenditure\xe2\x80\x9d for\n\xe2\x80\x9cupkeep, maintenance, and repair of the facilities.\xe2\x80\x9d See Rosenberger v. Rector of\nUniv. of Virginia, 515 U.S. 819, 842-43 (1995); see also Prince ex rel. Prince v.\nJacoby, No. 99-35490, 2002 WL 31007791, at *16-*18 (9th Cir. Sept. 9, 2002)\n(extending the principles of Rosenberger to monetary and other benefits provided\nto student groups that are entitled to meet on school grounds under the Equal\nAccess Act).\nAs in Rosenberger, the issue here \xe2\x80\x9clies at the intersection of the principle of\ngovernment neutrality and the prohibition on state funding of religious activities.\xe2\x80\x9d\n515 U.S. at 846 (O\xe2\x80\x99Connor, J., concurring). In such a case, \xe2\x80\x9c[r]eliance on categorical platitudes,\xe2\x80\x9d such as an absolute \xe2\x80\x9cno direct aid\xe2\x80\x9d principle, \xe2\x80\x9cis unavailing.\xe2\x80\x9d Id. at\n847. Accordingly, we do not think it would be appropriate to conclude that the\nTilton-Nyquist decisions govern the constitutionality of allowing a religious school\nto receive disaster assistance on the same terms as a wide array of institutions that\nprovide a public service, whether they are educational or non-educational, secular\nor religious. If the diversity of recipients in Walz and the \xe2\x80\x9cequal access\xe2\x80\x9d line of\ncases was sufficient to dispel any Establishment Clause problems, we see no\nreason why a similar array of recipients in the FEMA program should not likewise\nsuffice to sustain it. See also Zelman v. Simmons-Harris, 536 U.S. 639, 727 (2002)\n(Breyer, J., dissenting) (arguing that establishment concerns are \xe2\x80\x9cfar more\xe2\x80\x9d\nimplicated by \xe2\x80\x9cgovernment involvement in religious primary education\xe2\x80\x9d than by\n\xe2\x80\x9ctax deductions for charitable contributions,\xe2\x80\x9d which \xe2\x80\x9ccome far closer to exemplifying the neutrality that distinguishes, for example, fire protection on the one hand\nfrom direct monetary assistance on the other\xe2\x80\x9d). Accordingly, we conclude that the\n\n129\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nFEMA assistance here is more analogous to the police and fire services discussed\nin Everson than to the educational assistance at issue in Tilton and Nyquist.16\nFor similar reasons, we do not believe that a reasonable observer would perceive an endorsement of religion in the government\xe2\x80\x99s evenhanded provision of aid\nto a religious school damaged by an earthquake. See Mitchell, 530 U.S. at 842-44\n(O\xe2\x80\x99Connor, J., concurring in judgment).1 7 In a direct aid program limited to\neducational recipients, one could argue that if a school \xe2\x80\x9cuses the aid to inculcate\nreligion in its students, it is reasonable to say that the government has communicated a message of endorsement.\xe2\x80\x9d Id. at 843 (O\xe2\x80\x99Connor, J.). The notion is that,\nwhere the government provides education-specific aid, it is fair to say that the\ngovernment is providing the assistance because of the content of the funded\neducation. Such a presumption of governmental endorsement is not present,\nhowever, where the aid is provided to a wide array of nonprofit institutions\n(educational and noneducational alike), where the aid is not provided because of\nthe content of any activities that take place within the building, and where the\ngovernment is indifferent to the religious or secular orientation of any education\nthat may occur within the building. Indeed, much of the aid here is given to\nnonprofit institutions that provide services that do not involve any \xe2\x80\x9cpedagogy\xe2\x80\x9d or\n\xe2\x80\x9cspeech\xe2\x80\x9d whatsoever.18\nOur conclusion is strongly supported by the evidence regarding FEMA\xe2\x80\x99s application of the criteria for receiving funds under the Act. Apart from the Academy,\n\n16\nWe acknowledge, as Justice O\xe2\x80\x99Connor noted in her concurrence in Mitchell, 530 U.S. at 840, that\nthe Court has never approved of any direct financial assistance to religious institutions absent assurance\nthat the aid may not lawfully be diverted to religious activities, and the Court\xe2\x80\x99s cases contain rhetoric to\nthe effect that \xe2\x80\x9c\xe2\x80\x98any use of public funds to promote religious doctrines violates the Establishment\nClause.\xe2\x80\x99\xe2\x80\x9d Id. at 865 (quoting Bowen v. Kendrick, 487 U.S. 589, 623 (1988) (O\xe2\x80\x99Connor, J., concurring)).\nAt the same time, however, the Court has never passed on a program in which direct financial aid was\nextended to schools as part of a broader array of public and private institutions.\n17\nSee generally County of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 592\n(1989) (the Court has, \xe2\x80\x9c[i]n recent years, . . . paid particularly close attention to whether the challenged\ngovernmental practice either has the purpose or effect of \xe2\x80\x98endorsing\xe2\x80\x99 religion\xe2\x80\x9d); see also id. at 624-32\n(O\xe2\x80\x99Connor, J., concurring in part and concurring in the judgment); Santa Fe Indep. Sch. Dist. v. Doe,\n530 U.S. 290, 307-08 (2000); Agostini, 521 U.S. at 235.\n18\nOne could also argue that fire protection is distinguishable from disaster assistance in that the\nlatter is a more \xe2\x80\x9csubstantial\xe2\x80\x9d form of aid that permits the construction of an entire facility, whereas fire\nprotection merely prevents such a facility from being destroyed. We do not find this argument\npersuasive, however. To begin with, the Supreme Court\xe2\x80\x99s decisions decreasingly focus on the\n\xe2\x80\x9csubstantiality\xe2\x80\x9d of aid provided to religious institutions. See, e.g., Agostini, 521 U.S. at 205 (rejecting\nthe rule \xe2\x80\x9cthat all government aid that directly aids the educational function of religious schools is\ninvalid\xe2\x80\x9d); Mitchell, 530 U.S. at 820-25 (plurality opinion); id. at 849-57 (O\xe2\x80\x99Connor, J., concurring in\njudgment); Zelman, 536 U.S. 639. Moreover, we think it would \xe2\x80\x9cexalt form over substance\xe2\x80\x9d (Zobrest v.\nCatalina Foothills Sch. Dist., 509 U.S. 1, 13 (1993)) to say that the government may provide aid that\nhelps a religious organization avoid a disaster but not aid that would help such an organization recover\nfrom a disaster.\n\n130\n\n\x0cAuthority of FEMA to Provide Disaster Assistance to Seattle Hebrew Academy\n\nof the 268 Nisqually Earthquake applications on which FEMA has ruled,19 267\napplicants\xe2\x80\x94all but one\xe2\x80\x94were declared eligible for funding. See Exhibit A. It thus\nappears that there is little exercise of discretion regarding religion in the distribution of grant funds\xe2\x80\x94indeed, in this instance, funding was virtually automatic\xe2\x80\x94\nand the diverse makeup of those that have received funds confirms that the\nprogram\xe2\x80\x99s administration is not \xe2\x80\x9cskewed towards religion.\xe2\x80\x9d Witters v. Washington\nDep\xe2\x80\x99t of Servs., 474 U.S. 481, 488 (1986). This largely (if not entirely) eliminates\nany \xe2\x80\x9cspecial risks\xe2\x80\x9d that direct aid \xe2\x80\x9cwill have the effect of advancing religion (or,\neven more, a purpose of doing so).\xe2\x80\x9d Mitchell, 530 U.S. at 819 n.8 (plurality\nopinion). An examination of the array of institutions funded by FEMA confirms\nthat the program is neutral in practice. Of the funded institutions, 245 are public\nfacilities, while only 22 are private nonprofit facilities. The public facilities\ninclude, among other things, schools and school districts (of which there are 63),\nfire stations, libraries, prisons, utilities, and buildings that provide public social\nservices. The private facilities likewise include a broad array of institutions\xe2\x80\x94\nhospitals and other health facilities, low income housing centers, social services\norganizations, and even a \xe2\x80\x9cmaritime discovery center.\xe2\x80\x9d20 Judging from the names\nof the private organizations, moreover, it appears that only a handful have\nreligious affiliations.21 In sum, the record reveals no basis for concern that FEMA\n19\nFEMA received 336 applications for funding in response to the Nisqually Earthquake, 68 of\nwhich were withdrawn. We are informed that FEMA does not keep records of the reasons for\nwithdrawn applications, and that FEMA does not generally know why applications are withdrawn.\nThus, the record does not reflect the reasons for the withdrawals of these applications. Nonetheless, we\nnote that of these 68 withdrawn applications, 61 were withdrawn by public institutions and seven were\nwithdrawn by private nonprofit facilities. Thus, an almost identical percentage of public entity\napplications (22.22%) and private nonprofit facility applications (23.33%) were withdrawn. In addition,\nnothing in the record suggests that these withdrawals, to the extent that they were motivated by\nFEMA\xe2\x80\x99s actions at all, were based on any effort to skew the program in favor of religion, or that FEMA\nconsidered the content of activities that take place within the buildings for which construction and\nrepair funds were sought. Moreover, FEMA personnel have informed us that the basis for any\nwithdrawals prompted by the agency would have been purely objective, neutral, and statutory.\n20\nThe private nonprofit facilities that received funding from FEMA as a result of the Nisqually Earthquake are as follows: (1) Bayview Manor Foundation ($2,008); (2) Bread of Life Mission Association\n($23,463); (3) Community Health Centers of King County ($11,910); (4) Graham Hill Mutual Water\nCompany ($36,594); (5) Group Health Cooperative of Puget Sound ($87,522); (6) Interim Housing\nAssociation ($6,885); (7) Kitsap Mental Health Services ($6,718); (8) Lake Alice Water Association\n($33,345); (9) Madrona Beach Water Company, Inc. ($42,043); (10) Meridian Heights Water District\n($7,048); (11) Odyssey, The Maritime Discovery Center ($15,768); (12) Pinewood Glen Improvement\nClub ($2,911); (13) Pioneer Human Services ($163,708); (14) Plymouth Housing Group ($4,190);\n(15) Providence Health System ($212,543); (16) Recovery Centers of King County ($2,866); (17) Safe\nHomes ($35,942); (18) Seattle Indian Health Board ($48,463); (19) The Compass Center ($1,649,068);\n(20) The Low Income Housing Institute ($543,553); (21) View Ranch Estates Water Association ($1,286);\n(22) Virginia Mason Medical Center ($2,831,474).\n21\nSee Exhibit A, No. 23 (Bread of Life Mission Association), No. 336 (YMCA of Greater Seattle).\nIt is our understanding that the application of the Archdiocesan Housing Authority (\xe2\x80\x9cAHA\xe2\x80\x9d) was\ninitially denied (Exhibit A, No. 9) on the basis that the AHA had not yet applied for a loan from the\nSmall Business Administration (\xe2\x80\x9cSBA\xe2\x80\x9d). The AHA subsequently did apply for such a loan, however,\n\n131\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nadministrators have discretion to favor religious applicants, or that those administrators have exercised what little discretion they do have in a manner that favors\nreligion.\nFinally, we would emphasize that although there is some risk that a court would\ninvalidate the provision of disaster assistance to the Academy\xe2\x80\x94decisions under\nthe Establishment Clause are notoriously context-dependent and difficult to\npredict\xe2\x80\x94the facts provide an especially strong case for arguing that direct aid to\nreligious educational institutions is constitutional where made available on the\nbasis of genuinely neutral criteria, to an array of beneficiaries including both\neducational and non-educational institutions. Indeed, there are arguments that\nexcluding religious organizations from disaster assistance made available to\nsimilarly situated secular institutions would violate the Free Exercise Clause and\nthe Free Speech Clause. E.g., Church of Lukumi Babalu Aye v. City of Hialeah,\n508 U.S. 520, 532 (1993) (\xe2\x80\x9c[a]t a minimum, the protections of the Free Exercise\nClause pertain if the law at issue discriminates against some or all religious\nbeliefs\xe2\x80\x9d); Employment Div. v. Smith, 494 U.S. 872, 877 (1990) (under the Free\nExercise Clause, the state may not \xe2\x80\x9cimpose special disabilities on the basis of\nreligious views or religious status\xe2\x80\x9d); Rosenberger, 515 U.S. at 828 (\xe2\x80\x9cthe government offends the First Amendment when it imposes financial burdens on certain\nspeakers based on the content of their expression,\xe2\x80\x9d including religious expression).22 Moreover, four members of the Supreme Court have made clear that they\nwould sustain any program of aid that provides secular assistance, on the basis of\nneutral criteria, to religious and secular schools alike, see Mitchell, 530 U.S. at\n807-14 (plurality opinion), which is a narrower view of the Establishment Clause\nthan would be required to sustain the provision of FEMA aid to the Academy.\nJAY S. BYBEE\nAssistant Attorney General\nOffice of Legal Counsel\nand its application was denied. Thus, its application is in the process of being reinstated. If the AHA\xe2\x80\x99s\napplication is granted, it appears that not a single applicant that meets the objective criteria for funding\nunder the Act will have been denied eligibility for funding.\n22\nIn July, for example, the Ninth Circuit\xe2\x80\x94which might well hear any appeal involving a challenge\nto the provision of disaster assistance to the Academy here\xe2\x80\x94held that the State of Washington violated\nthe Free Exercise Clause of the First Amendment in denying public scholarship assistance to an\notherwise eligible college student on the ground that he intended to use the scholarship to pursue a\ndegree in theology. See Davey v. Locke, 299 F.3d 748 (9th Cir. 2002). There is an argument here, too,\nthat denying aid to the Academy solely on account of their religious faith would violate the Free\nExercise Clause.\nEditor\xe2\x80\x99s Note: The Ninth Circuit\xe2\x80\x99s decision in Davey v. Locke was subsequently reversed by Locke\nv. Davey, 540 U.S. 712 (2004). In that decision, the Supreme Court ruled that the State of Washington\ncould decide not to fund instruction in devotional theology without violating the Free Exercise Clause,\nbecause of the State\xe2\x80\x99s \xe2\x80\x9cantiestablishment interest[]\xe2\x80\x9d in not \xe2\x80\x9cusing tax funds to support the ministry,\xe2\x80\x9d for\nwhich there was a long tradition of state constitutional prohibition. Id. at 722, 723.\n\n132\n\n\x0cAuthority of FEMA to Provide Disaster Assistance to Seattle Hebrew Academy\n\nExhibit A\nApplications Received by FEMA in Response to the\nNisqually Earthquake\nNo\n\nDisaster Applicant Name\n\nPnp Elig Grant Amt\n\n1\n\n1361\n\nAberdeen School District\n\nN\n\nY\n\n$13,097\n\n2\n\n1361\n\nAberdeen, City of\n\nN\n\nY\n\nWithdrawn\n\n3\n\n1361\n\nAdna School District No. 226\n\nN\n\nY\n\n$16,203\n\n4\n\n1361\n\nAlder Mutual Light Co\n\nN\n\nY\n\nWithdrawn\n\n5\n\n1361\n\nAllyn, Port of\n\nN\n\nY\n\n$2,078\n\n6\n\n1361\n\nAnacortes School District No. 103\n\nN\n\nY\n\n$39,610\n\n7\n\n1361\n\nAnacortes, City of\n\nN\n\nY\n\n$7,958\n\n8\n\n1361\n\nAnnapolis Water District\n\nN\n\nY\n\n$24,254\n\n9\n\n1361\n\nArchdiocesan Housing Authority\n\nY\n\nN\n\nApplicant in\nProcess of Being\nReinstated\n\n10\n\n1361\n\nAuburn School District No. 408\n\nN\n\nY\n\nWithdrawn\n\n11\n\n1361\n\nBainbridge Island, City of\n\nN\n\nY\n\n$2,458\n\n12\n\n1361\n\nBates Technical College\n\nN\n\nY\n\nWithdrawn\n\n13\n\n1361\n\nBayview Manor Foundation\n\nY\n\nY\n\n$2,008\n\n14\n\n1361\n\nBeaux Arts Village, Town of\n\nN\n\nY\n\nWithdrawn\n\n15\n\n1361\n\nBellevue Community College\n\nN\n\nY\n\n$1,227\n\n16\n\n1361\n\nBellevue, City of\n\nN\n\nY\n\n$230,382\n\n17\n\n1361\n\nBethel School District No. 403\n\nN\n\nY\n\n$341,435\n\n18\n\n1361\n\nBlack Diamond City Fire Department\n\nN\n\nY\n\nWithdrawn\n\n19\n\n1361\n\nBlack Diamond, City of\n\nN\n\nY\n\n$3,201\n\n20\n\n1361\n\nBlaine School District No. 503\n\nN\n\nY\n\n$16,100\n\n21\n\n1361\n\nBoistfort Valley Water Corporation\n\nY\n\nY\n\nWithdrawn\n\n22\n\n1361\n\nBothell, City of\n\nN\n\nY\n\n$470\n\n23\n\n1361\n\nBread of Life Mission Association\n\nY\n\nY\n\n$23,463\n\n24\n\n1361\n\nBremerton School District\n\nN\n\nY\n\n$101,876\n\n25\n\n1361\n\nBremerton, City of\n\nN\n\nY\n\n$425,016\n\n26\n\n1361\n\nBridgeport School District\n\nN\n\nY\n\n$15,515\n\n27\n\n1361\n\nBucoda, Town of\n\nN\n\nY\n\n$3,141\n\n28\n\n1361\n\nBurien, City of\n\nN\n\nY\n\n$18,195\n\n29\n\n1361\n\nCapitol Hill Housing Improvement Program\n\nN\n\nY\n\n$70,348\n\n133\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nNo\n\nDisaster Applicant Name\n\nPnp Elig Grant Amt\n\n30\n\n1361\n\nCarbonado Historical School District\n\nN\n\nY\n\n$59,799\n\n31\n\n1361\n\nCarnation, City of\n\nN\n\nY\n\n$3,305\n\n32\n\n1361\n\nCascadia Community College\n\nN\n\nY\n\nWithdrawn\n\n33\n\n1361\n\nCastle Rock School District No. 401\n\nN\n\nY\n\nWithdrawn\n\n34\n\n1361\n\nCedar Glen Community\n\nY\n\nY\n\nWithdrawn\n\n35\n\n1361\n\nCedar River Water & Sewer District\n\nN\n\nY\n\n$26,634\n\n36\n\n1361\n\nCentral Kitsap Fire & Rescue\n\nN\n\nY\n\n$20,595\n\n37\n\n1361\n\nCentral Kitsap School District No. 401\n\nN\n\nY\n\nWithdrawn\n\n38\n\n1361\n\nCentralia College\n\nN\n\nY\n\n$9,006\n\n39\n\n1361\n\nCentralia Public School District No. 401\n\nN\n\nY\n\n$29,431\n\n40\n\n1361\n\nCentralia, City of\n\nN\n\nY\n\n$42,326\n\n41\n\n1361\n\nChehalis School District No. 302\n\nN\n\nY\n\n$255,888\n\n42\n\n1361\n\nChehalis Tribe\n\nN\n\nY\n\n$25,819\n\n43\n\n1361\n\nChehalis, City of\n\nN\n\nY\n\n$34,119\n\n44\n\n1361\n\nClallam County Fire District No. 3\n\nN\n\nY\n\n$3,939\n\n45\n\n1361\n\nClear Lake Water District\n\nN\n\nY\n\n$8,402\n\n46\n\n1361\n\nClover Park School District\n\nN\n\nY\n\n$25,532\n\n47\n\n1361\n\nClover Park Technical College\n\nN\n\nY\n\nWithdrawn\n\n48\n\n1361\n\nCommunity Health Centers of King County\n\nY\n\nY\n\n$11,910\n\n49\n\n1361\n\nCosmopolis\n\nN\n\nY\n\n$10,452\n\n50\n\n1361\n\nCovington Water District\n\nN\n\nY\n\n$3,880\n\n51\n\n1361\n\nCowlitz Cnty Fire Protection District No. 3\n\nN\n\nY\n\n$796\n\n52\n\n1361\n\nDarrington School District\n\nN\n\nY\n\n$25,253\n\n53\n\n1361\n\nDarrington, Town of\n\nN\n\nY\n\nWithdrawn\n\n54\n\n1361\n\nDepartment of Corrections\n\nN\n\nY\n\n$1,518,881\n\n55\n\n1361\n\nDepartment of Labor & Industries\n\nN\n\nY\n\n$238,105\n\n56\n\n1361\n\nDepartment of Licensing\n\nN\n\nY\n\n$0\n\n57\n\n1361\n\nDepartment of Social & Health Services\n\nN\n\nY\n\n$2,652,973\n\n58\n\n1361\n\nDepartment of Veterans Affairs\n\nN\n\nY\n\n$16,936\n\n59\n\n1361\n\nDept. of Community, Trade, & Economic Dev.\n\nN\n\nY\n\n$14,584\n\n60\n\n1361\n\nDes Moines, City of\n\nN\n\nY\n\n$32,669\n\n61\n\n1361\n\nDieringer School District No. 343\n\nN\n\nY\n\n$17,988\n\n62\n\n1361\n\nEastside Fire & Rescue\n\nN\n\nY\n\n$4,869\n\n63\n\n1361\n\nEatonville School District No. 404\n\nN\n\nY\n\nWithdrawn\n\n64\n\n1361\n\nEatonville, City of\n\nN\n\nY\n\n$69,084\n\n134\n\n\x0cAuthority of FEMA to Provide Disaster Assistance to Seattle Hebrew Academy\n\nNo\n\nDisaster Applicant Name\n\nPnp Elig Grant Amt\n\n65\n\n1361\n\nElma, City of\n\nN\n\nY\n\n$917\n\n66\n\n1361\n\nEmployment Security Department\n\nN\n\nY\n\n$34,227\n\n67\n\n1361\n\nEnumclaw School District\n\nN\n\nY\n\n$24,770\n\n68\n\n1361\n\nEverett Community College\n\nN\n\nY\n\nWithdrawn\n\n69\n\n1361\n\nEverett, City of\n\nN\n\nY\n\n$30,603\n\n70\n\n1361\n\nEvergreen State College\n\nN\n\nY\n\n$350,537\n\n71\n\n1361\n\nEverson, City of\n\nN\n\nY\n\n$1,653\n\n72\n\n1361\n\nFederal Way Fire Dept.\n\nN\n\nY\n\n$2,508\n\n73\n\n1361\n\nFederal Way Public Schools\n\nN\n\nY\n\n$44,060\n\n74\n\n1361\n\nFerndale School District\n\nN\n\nY\n\n$19,895\n\n75\n\n1361\n\nFife School District\n\nN\n\nY\n\n$21,587\n\n76\n\n1361\n\nFife, City of\n\nN\n\nY\n\n$25,078\n\n77\n\n1361\n\nFircrest, City of\n\nN\n\nY\n\n$8,879\n\n78\n\n1361\n\nFranklin Pierce School District\n\nN\n\nY\n\n$16,758\n\n79\n\n1361\n\nGig Harbor, City of\n\nN\n\nY\n\nWithdrawn\n\n80\n\n1361\n\nGraham Hill Mutual Water Co\n\nY\n\nY\n\n$36,594\n\n81\n\n1361\n\nGrays Harbor Community Hospital\n\nY\n\nY\n\nWithdrawn\n\n82\n\n1361\n\nGrays Harbor Fire Protection District No. 2\n\nN\n\nY\n\n$7,867\n\n83\n\n1361\n\nGrays Harbor, County\n\nN\n\nY\n\n$44,406\n\n84\n\n1361\n\nGreen River Community College\n\nN\n\nY\n\n$283,842\n\n85\n\n1361\n\nGroup Health Cooperative of Puget Sound\n\nY\n\nY\n\n$87,522\n\n86\n\n1361\n\nHighline Community College\n\nN\n\nY\n\n$8,385\n\n87\n\n1361\n\nHighline School District No. 401\n\nN\n\nY\n\n$465,625\n\n88\n\n1361\n\nHighline Water District\n\nN\n\nY\n\n$40,272\n\n89\n\n1361\n\nHistoric Seattle Preservation Development Auth.\n\nN\n\nY\n\n$202,594\n\n90\n\n1361\n\nHoquiam, City of\n\nN\n\nY\n\n$15,483\n\n91\n\n1361\n\nHousing Authority of Clallam County\n\nN\n\nY\n\n$1,566\n\n92\n\n1361\n\nHousing Authority of Seattle\n\nN\n\nY\n\n$63,819\n\n93\n\n1361\n\nHousing Authority of Tacoma\n\nN\n\nY\n\nWithdrawn\n\n94\n\n1361\n\nHousing Resources Group\n\nY\n\nY\n\nWithdrawn\n\n95\n\n1361\n\nInterim Housing Association\n\nY\n\nY\n\n$6,885\n\n96\n\n1361\n\nIssaquah, City of\n\nN\n\nY\n\n$110,792\n\n97\n\n1361\n\nJoint Legislative Systems Committee\n\nN\n\nY\n\n$6,597\n\n98\n\n1361\n\nKalama, City of\n\nN\n\nY\n\n$19,663\n\n99\n\n1361\n\nKelso School District No. 458\n\nN\n\nY\n\nWithdrawn\n\n135\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nNo\n\nDisaster Applicant Name\n\nPnp Elig Grant Amt\n\n100\n\n1361\n\nKelso, City of\n\nN\n\nY\n\n$4,807\n\n101\n\n1361\n\nKent School District\n\nN\n\nY\n\n$566,796\n\n102\n\n1361\n\nKent, City of\n\nN\n\nY\n\n$115,269\n\n103\n\n1361\n\nKing County Fire District No. 44\n\nN\n\nY\n\nWithdrawn\n\n104\n\n1361\n\nKing County Fire District No. 16\n\nN\n\nY\n\nWithdrawn\n\n105\n\n1361\n\nKing County Hospital District No. 1\n\nN\n\nY\n\nWithdrawn\n\n106\n\n1361\n\nKing County Housing Authority\n\nN\n\nY\n\nWithdrawn\n\n107\n\n1361\n\nKing County International Airport\n\nN\n\nY\n\nWithdrawn\n\n108\n\n1361\n\nKing County Water District No. 90\n\nN\n\nY\n\n$7,123\n\n109\n\n1361\n\nKing, County\n\nN\n\nY\n\n$6,255,945\n\n110\n\n1361\n\nKirkland, City of\n\nN\n\nY\n\nWithdrawn\n\n111\n\n1361\n\nKitsap County Fire District No. 12\n\nN\n\nY\n\nWithdrawn\n\n112\n\n1361\n\nKitsap County Fire District No. 7\n\nN\n\nY\n\n$2,224\n\n113\n\n1361\n\nKitsap Mental Health Services\n\nY\n\nY\n\n$6,718\n\n114\n\n1361\n\nKitsap, County of\n\nN\n\nY\n\n$44,427\n\n115\n\n1361\n\nLa Conner School District No. 311\n\nN\n\nY\n\n$30,771\n\n116\n\n1361\n\nLacey, City of\n\nN\n\nY\n\n$115,042\n\n117\n\n1361\n\nLake Alice Water Association\n\nY\n\nY\n\n$33,345\n\n118\n\n1361\n\nLake Stevens School District No. 4\n\nN\n\nY\n\n$14,683\n\n119\n\n1361\n\nLake Stevens Sewer District\n\nN\n\nY\n\n$95,586\n\n120\n\n1361\n\nLake Washington School District\n\nN\n\nY\n\nWithdrawn\n\n121\n\n1361\n\nLake Washington Technical College\n\nN\n\nY\n\n$3,641\n\n122\n\n1361\n\nLakewood Fire District\n\nN\n\nY\n\n$3,446\n\n123\n\n1361\n\nLakewood School District No. 306\n\nN\n\nY\n\n$15,548\n\n124\n\n1361\n\nLakewood Water District\n\nN\n\nY\n\n$101,031\n\n125\n\n1361\n\nLakewood, City of\n\nN\n\nY\n\nWithdrawn\n\n126\n\n1361\n\nLewis County Fire District No. 12\n\nN\n\nY\n\n$788\n\n127\n\n1361\n\nLewis County Fire District No. 14\n\nN\n\nY\n\n$784\n\n128\n\n1361\n\nLewis County Fire District No. 2\n\nN\n\nY\n\nWithdrawn\n\n129\n\n1361\n\nLewis County Fire District No. 5\n\nN\n\nY\n\n$5,276\n\n130\n\n1361\n\nLewis County Fire Protection District No. 9\n\nN\n\nY\n\n$788\n\n131\n\n1361\n\nLewis, County\n\nN\n\nY\n\n$49,271\n\n132\n\n1361\n\nLongview, City of\n\nN\n\nY\n\nWithdrawn\n\n133\n\n1361\n\nLower Columbia College\n\nN\n\nY\n\nWithdrawn\n\n134\n\n1361\n\nLower Elwha Klallam Tribe\n\nN\n\nY\n\n$2,783\n\n136\n\n\x0cAuthority of FEMA to Provide Disaster Assistance to Seattle Hebrew Academy\n\nNo\n\nDisaster Applicant Name\n\nPnp Elig Grant Amt\n\n135\n\n1361\n\nLummi Nation\n\nN\n\nY\n\n$42,807\n\n136\n\n1361\n\nLynden Fire Department\n\nN\n\nY\n\n$19,817\n\n137\n\n1361\n\nMadrona Beach Water Company, Inc.\n\nY\n\nY\n\n$42,043\n\n138\n\n1361\n\nMakah Tribal Council\n\nN\n\nY\n\n$11,598\n\n139\n\n1361\n\nManchester Water District\n\nN\n\nY\n\n$44,950\n\n140\n\n1361\n\nMaple Valley, City of\n\nN\n\nY\n\n$35,395\n\n141\n\n1361\n\nMary M Knight School No. 311\n\nN\n\nY\n\n$3,002\n\n142\n\n1361\n\nMason , County of\n\nN\n\nY\n\n$127,535\n\n143\n\n1361\n\nMason County Fire District No. 6\n\nN\n\nY\n\n$788\n\n144\n\n1361\n\nMason County Public Utility District No. 3\n\nN\n\nY\n\n$230,502\n\n145\n\n1361\n\nMercer Island School District\n\nN\n\nY\n\n$0\n\n146\n\n1361\n\nMercer Island, City of\n\nN\n\nY\n\n$7,109\n\n147\n\n1361\n\nMeridian Heights Water District\n\nY\n\nY\n\n$7,048\n\n148\n\n1361\n\nMeridian School District\n\nN\n\nY\n\n$3,091\n\n149\n\n1361\n\nMilton, City of\n\nN\n\nY\n\n$4,762\n\n150\n\n1361\n\nMorton School District\n\nN\n\nY\n\nWithdrawn\n\n151\n\n1361\n\nMorton, City of\n\nN\n\nY\n\n$10,865\n\n152\n\n1361\n\nMount Baker School District No. 507\n\nN\n\nY\n\n$3,693\n\n153\n\n1361\n\nMountlake Terrace, City of\n\nN\n\nY\n\n$10,192\n\n154\n\n1361\n\nMukilteo School District\n\nN\n\nY\n\n$25,608\n\n155\n\n1361\n\nMukilteo, City of\n\nN\n\nY\n\n$6,017\n\n156\n\n1361\n\nMuseum Development Authority\n\nN\n\nY\n\n$47,778\n\n157\n\n1361\n\nNewcastle, City of\n\nN\n\nY\n\nWithdrawn\n\n158\n\n1361\n\nNisqually Indian Tribe\n\nN\n\nY\n\n$131,683\n\n159\n\n1361\n\nNooksack, City of\n\nN\n\nY\n\n$1,460\n\n160\n\n1361\n\nNormandy Park, City of\n\nN\n\nY\n\n$835\n\n161\n\n1361\n\nNorth Bend, City of\n\nN\n\nY\n\n$5,384\n\n162\n\n1361\n\nNorth Highline Fire District\n\nN\n\nY\n\nWithdrawn\n\n163\n\n1361\n\nNorth River School District\n\nN\n\nY\n\n$8,739\n\n164\n\n1361\n\nNorth Seattle Community College\n\nN\n\nY\n\n$6,244\n\n165\n\n1361\n\nNorth Sound Regional Support Network\n\nN\n\nY\n\nWithdrawn\n\n166\n\n1361\n\nNorth Thurston School District\n\nN\n\nY\n\n$90,258\n\n167\n\n1361\n\nNorthshore Utility District\n\nN\n\nY\n\n$301,483\n\n168\n\n1361\n\nNorthwest Railway Museum\n\nY\n\nY\n\nWithdrawn\n\n169\n\n1361\n\nOcean Shores, City of\n\nN\n\nY\n\n$8,126\n\n137\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nNo\n\nDisaster Applicant Name\n\nPnp Elig Grant Amt\n\n170\n\n1361\n\nOdyssey, the Maritime Discovery Center\n\nY\n\nY\n\n$15,768\n\n171\n\n1361\n\nOffice of the Attorney General\n\nN\n\nY\n\nWithdrawn\n\n172\n\n1361\n\nOffice of the Governor\n\nN\n\nY\n\nWithdrawn\n\n173\n\n1361\n\nOffice of the Lieutenant Governor\n\nN\n\nY\n\n$4,705\n\n174\n\n1361\n\nOffice of the Secretary of State\n\nN\n\nY\n\n$835\n\n175\n\n1361\n\nOffice of the State Treasurer\n\nN\n\nY\n\nWithdrawn\n\n176\n\n1361\n\nOlympia School District No. 111\n\nN\n\nY\n\n$65,753\n\n177\n\n1361\n\nOlympia, City of\n\nN\n\nY\n\n$675,740\n\n178\n\n1361\n\nOlympic College\n\nN\n\nY\n\nWithdrawn\n\n179\n\n1361\n\nOlympic View Water & Sewer District\n\nN\n\nY\n\n$0\n\n180\n\n1361\n\nOnalaska School District No. 300\n\nN\n\nY\n\n$8,140\n\n181\n\n1361\n\nOrting School District No. 344\n\nN\n\nY\n\n$2,144\n\n182\n\n1361\n\nOrting, City of\n\nN\n\nY\n\n$0\n\n183\n\n1361\n\nPacific Hospital Preservation & Dev. Auth\n\nN\n\nY\n\n$157,980\n\n184\n\n1361\n\nPacific, County of\n\nN\n\nY\n\n$1,819\n\n185\n\n1361\n\nPe Ell, City of\n\nN\n\nY\n\n$8,838\n\n186\n\n1361\n\nPeninsula College\n\nN\n\nY\n\n$93,971\n\n187\n\n1361\n\nPeninsula Community Health Services\n\nY\n\nY\n\nWithdrawn\n\n188\n\n1361\n\nPeninsula School District No. 401\n\nN\n\nY\n\nWithdrawn\n\n189\n\n1361\n\nPierce College\n\nN\n\nY\n\n$58,772\n\n190\n\n1361\n\nPierce County Fire District No. 17\n\nN\n\nY\n\n$1,479\n\n191\n\n1361\n\nPierce County Fire District No. 14\n\nN\n\nY\n\n$19,890\n\n192\n\n1361\n\nPierce County Fire District No. 18\n\nN\n\nY\n\n$23\n\n193\n\n1361\n\nPierce County Fire District No. 21\n\nN\n\nY\n\n$796\n\n194\n\n1361\n\nPierce County Fire District No. 5\n\nN\n\nY\n\nWithdrawn\n\n195\n\n1361\n\nPierce County Fire District No. 20\n\nN\n\nY\n\nWithdrawn\n\n196\n\n1361\n\nPierce County Fire District No. 23\n\nN\n\nY\n\n$19,695\n\n197\n\n1361\n\nPierce County Regional Support Network\n\nN\n\nY\n\n$0\n\n198\n\n1361\n\nPierce County Rural Library District\n\nN\n\nY\n\n$74,136\n\n199\n\n1361\n\nPierce Transit\n\nN\n\nY\n\nWithdrawn\n\n200\n\n1361\n\nPierce, County of\n\nN\n\nY\n\n$485,304\n\n201\n\n1361\n\nPike Place Preservation & Development Auth.\n\nN\n\nY\n\n$114,888\n\n202\n\n1361\n\nPinewood Glen Improvement Club\n\nY\n\nY\n\n$2,911\n\n203\n\n1361\n\nPioneer Human Services\n\nY\n\nY\n\n$163,708\n\n204\n\n1361\n\nPlymouth Housing Group\n\nY\n\nY\n\n$4,190\n\n138\n\n\x0cAuthority of FEMA to Provide Disaster Assistance to Seattle Hebrew Academy\n\nNo\n\nDisaster Applicant Name\n\nPnp Elig Grant Amt\n\n205\n\n1361\n\nPort Angeles, City of\n\nN\n\nY\n\n$47,894\n\n206\n\n1361\n\nPort Gamble S\xe2\x80\x99klallam Housing Authority\n\nN\n\nY\n\n$12,856\n\n207\n\n1361\n\nPort of Anacortes\n\nN\n\nY\n\n$41,668\n\n208\n\n1361\n\nPort of Chehalis\n\nN\n\nY\n\n$8,398\n\n209\n\n1361\n\nPort of Everett\n\nN\n\nY\n\n$48,091\n\n210\n\n1361\n\nPort of Olympia\n\nN\n\nY\n\n$98,320\n\n211\n\n1361\n\nPort of Port Angeles\n\nN\n\nY\n\n$5,192\n\n212\n\n1361\n\nPort of Seattle\n\nN\n\nY\n\n$3,829,612\n\n213\n\n1361\n\nPort of Tacoma\n\nN\n\nY\n\n$164,646\n\n214\n\n1361\n\nPort Orchard, City of\n\nN\n\nY\n\n$27,478\n\n215\n\n1361\n\nProvidence Health System\n\nY\n\nY\n\n$212,543\n\n216\n\n1361\n\nPUD #1 of Snohomish County\n\nN\n\nY\n\n$38,401\n\n217\n\n1361\n\nPuyallup School District\n\nN\n\nY\n\n$194,400\n\n218\n\n1361\n\nPuyallup, City of\n\nN\n\nY\n\n$131,431\n\n219\n\n1361\n\nQuinault Indian Nation\n\nN\n\nY\n\n$1,980\n\n220\n\n1361\n\nRainier School District No. 307\n\nN\n\nY\n\n$350\n\n221\n\n1361\n\nRainier, Town of\n\nN\n\nY\n\n$16,585\n\n222\n\n1361\n\nRaymond, City of\n\nN\n\nY\n\n$35,282\n\n223\n\n1361\n\nRecovery Centers of King County\n\nY\n\nY\n\n$2,866\n\n224\n\n1361\n\nRedmond, City of\n\nN\n\nY\n\nWithdrawn\n\n225\n\n1361\n\nRenton School District\n\nN\n\nY\n\n$0\n\n226\n\n1361\n\nRenton Technical College\n\nN\n\nY\n\n$35,134\n\n227\n\n1361\n\nRenton, City of\n\nN\n\nY\n\n$217,310\n\n228\n\n1361\n\nRochester School District 401\n\nN\n\nY\n\n$0\n\n229\n\n1361\n\nSafe Homes\n\nY\n\nY\n\n$35,942\n\n230\n\n1361\n\nSauk-Suiattle Indian Tribe of Washington\n\nN\n\nY\n\n$2,940\n\n231\n\n1361\n\nSeattle-King County Department of Health\n\nN\n\nY\n\nWithdrawn\n\n232\n\n1361\n\nSeattle Central Community College\n\nN\n\nY\n\n$39,047\n\n233\n\n1361\n\nSeattle Chinatown Development Authority\n\nN\n\nY\n\n$34,704\n\n234\n\n1361\n\nSeattle Indian Health Board\n\nY\n\nY\n\n$48,463\n\n235\n\n1361\n\nSeattle Indian Services Commission\n\nN\n\nY\n\n$426,988\n\n236\n\n1361\n\nSeattle School District No. 1\n\nN\n\nY\n\n$1,110,755\n\n237\n\n1361\n\nSeattle, City of\n\nN\n\nY\n\n$3,221,569\n\n238\n\n1361\n\nSedro Woolley, City of\n\nN\n\nY\n\n$9,629\n\n239\n\n1361\n\nSentencing Guidelines Commission\n\nN\n\nY\n\nWithdrawn\n\n139\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nNo\n\nDisaster Applicant Name\n\nPnp Elig Grant Amt\n\n240\n\n1361\n\nShelton School District No. 309\n\nN\n\nY\n\nWithdrawn\n\n241\n\n1361\n\nShelton, City of\n\nN\n\nY\n\n$8,980\n\n242\n\n1361\n\nShoalwater Bay Indian Tribe\n\nN\n\nY\n\n$1,871\n\n243\n\n1361\n\nShoreline Fire Department\n\nN\n\nY\n\nWithdrawn\n\n244\n\n1361\n\nShoreline School District\n\nN\n\nY\n\n$21,536\n\n245\n\n1361\n\nSilverdale Water District No. 16\n\nN\n\nY\n\n$16,152\n\n246\n\n1361\n\nSkagit, County of\n\nN\n\nY\n\nWithdrawn\n\n247\n\n1361\n\nSkokomish Indian Tribe\n\nN\n\nY\n\n$4,396\n\n248\n\n1361\n\nSnohomish County Emergency Management\n\nN\n\nY\n\n$4,398\n\n249\n\n1361\n\nSnohomish County Fire District No. 17\n\nN\n\nY\n\n$23,087\n\n250\n\n1361\n\nSnohomish School District\n\nN\n\nY\n\n$22,072\n\n251\n\n1361\n\nSnohomish, City of\n\nN\n\nY\n\n$12,617\n\n252\n\n1361\n\nSnohomish, County\n\nN\n\nY\n\n$74,291\n\n253\n\n1361\n\nSnoqualmie Valley School District No. 410\n\nN\n\nY\n\n$135,794\n\n254\n\n1361\n\nSnoqualmie, City of\n\nN\n\nY\n\n$64,405\n\n255\n\n1361\n\nSound Transit\n\nN\n\nY\n\n$569,933\n\n256\n\n1361\n\nSouth Bend School District No. 118\n\nN\n\nY\n\n$1,505\n\n257\n\n1361\n\nSouth Bend, City of\n\nN\n\nY\n\n$38,377\n\n258\n\n1361\n\nSouth Kitsap School District No. 402\n\nN\n\nY\n\n$21,130\n\n259\n\n1361\n\nSouth Prairie, Town of\n\nN\n\nY\n\n$957\n\n260\n\n1361\n\nSouth Puget Sound Community College\n\nN\n\nY\n\n$61,128\n\n261\n\n1361\n\nSouth Seattle Community College\n\nN\n\nY\n\n$4,781\n\n262\n\n1361\n\nSouthern Puget Sound Inter-Tribal Housing Auth.\n\nN\n\nY\n\n$1,529\n\n263\n\n1361\n\nSouthwest Suburban Sewer District\n\nN\n\nY\n\n$43,149\n\n264\n\n1361\n\nSquaxin Island Tribe\n\nN\n\nY\n\n$1,268\n\n265\n\n1361\n\nState Auditor\xe2\x80\x99s Office\n\nN\n\nY\n\n$1,370\n\n266\n\n1361\n\nState Department of Financial Institutions\n\nN\n\nY\n\nWithdrawn\n\n267\n\n1361\n\nState Department of General Administration\n\nN\n\nY\n\n$8,235,429\n\n268\n\n1361\n\nSteilacoom Historical School District No. 01\n\nN\n\nY\n\n$277,798\n\n269\n\n1361\n\nSteilacoom, City of\n\nN\n\nY\n\n$21,859\n\n270\n\n1361\n\nSultan, City of\n\nN\n\nY\n\n$1,449\n\n271\n\n1361\n\nSumner School District\n\nN\n\nY\n\nWithdrawn\n\n272\n\n1361\n\nSumner, City of\n\nN\n\nY\n\n$7,943\n\n273\n\n1361\n\nSuquamish Indian Tribe\n\nN\n\nY\n\n$10,734\n\n274\n\n1361\n\nSwedish Health Services\n\nY\n\nY\n\nWithdrawn\n\n140\n\n\x0cAuthority of FEMA to Provide Disaster Assistance to Seattle Hebrew Academy\n\nNo\n\nDisaster Applicant Name\n\nPnp Elig Grant Amt\n\n275\n\n1361\n\nSwinomish Tribal Community\n\nN\n\nY\n\n$4,819\n\n276\n\n1361\n\nTacoma Community College\n\nN\n\nY\n\n$138,448\n\n277\n\n1361\n\nTacoma Department of Public Utilities\n\nN\n\nY\n\nWithdrawn\n\n278\n\n1361\n\nTacoma Metro Parks\n\nN\n\nY\n\n$5,875\n\n279\n\n1361\n\nTacoma School District No. 10\n\nN\n\nY\n\n$225,927\n\n280\n\n1361\n\nTacoma, City of\n\nN\n\nY\n\n$87,310\n\n281\n\n1361\n\nTaholah School District No. 77\n\nN\n\nY\n\n$7,825\n\n282\n\n1361\n\nThe Compass Center\n\nY\n\nY\n\n$1,649,068\n\n283\n\n1361\n\nThe Low Income Housing Institute\n\nY\n\nY\n\n$543,553\n\n284\n\n1361\n\nThurston County Fire District No. 3\n\nN\n\nY\n\n$4,839\n\n285\n\n1361\n\nThurston County Fire District No. 6\n\nN\n\nY\n\nWithdrawn\n\n286\n\n1361\n\nThurston, County\n\nN\n\nY\n\n$381,389\n\n287\n\n1361\n\nTimberland Regional Library\n\nN\n\nY\n\n$6,909\n\n288\n\n1361\n\nTimberlands Regional Support Network\n\nN\n\nY\n\nWithdrawn\n\n289\n\n1361\n\nToledo, City of\n\nN\n\nY\n\n$1,967\n\n290\n\n1361\n\nTukwila, City of\n\nN\n\nY\n\n$53,076\n\n291\n\n1361\n\nTulalip Tribes Housing Authority\n\nN\n\nY\n\n$7,016\n\n292\n\n1361\n\nTulalip Tribes Inc.\n\nN\n\nY\n\n$3,283\n\n293\n\n1361\n\nTumwater School District\n\nN\n\nY\n\n$80,924\n\n294\n\n1361\n\nTumwater, City of\n\nN\n\nY\n\n$55,628\n\n295\n\n1361\n\nUniversity of Washington\n\nN\n\nY\n\n$2,826,851\n\n296\n\n1361\n\nUniversity Place, City of\n\nN\n\nY\n\nWithdrawn\n\n297\n\n1361\n\nValley Water District\n\nN\n\nY\n\n$59,880\n\n298\n\n1361\n\nVashon Island School District\n\nN\n\nY\n\n$6,738\n\n299\n\n1361\n\nVashon Park District\n\nN\n\nY\n\n$17,267\n\n300\n\n1361\n\nView Ranch Estates Water Association\n\nY\n\nY\n\n$1,286\n\n301\n\n1361\n\nVirginia Mason Medical Center\n\nY\n\nY\n\n$2,831,474\n\n302\n\n1361\n\nWash. State Major League Baseball Stadium\n\nN\n\nY\n\n$0\n\n303\n\n1361\n\nWashington Department of Health\n\nN\n\nY\n\nWithdrawn\n\n304\n\n1361\n\nWashington Dept. of Fish & Wildlife\n\nN\n\nY\n\n$40,657\n\n305\n\n1361\n\nWashington Dept. of Information Services\n\nN\n\nY\n\nWithdrawn\n\n306\n\n1361\n\nWashington Dept. of Natural Resources\n\nN\n\nY\n\n$134,437\n\n307\n\n1361\n\nWashington Dept. of Transportation\n\nN\n\nY\n\n$266,563\n\n308\n\n1361\n\nWashington State Arts Commission\n\nN\n\nY\n\nWithdrawn\n\n309\n\n1361\n\nWashington State Board of Accountancy\n\nN\n\nY\n\nWithdrawn\n\n141\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nNo\n\nDisaster Applicant Name\n\nPnp Elig Grant Amt\n\n310\n\n1361\n\nWashington State Code Reviser\xe2\x80\x99s Office\n\nN\n\nY\n\n$0\n\n311\n\n1361\n\nWashington State Convention & Trade\n\nN\n\nY\n\n$199,059\n\n312\n\n1361\n\nWashington State Dept. of Agriculture\n\nN\n\nY\n\n$6,517\n\n313\n\n1361\n\nWashington State Dept. of Ecology\n\nN\n\nY\n\n$21,078\n\n314\n\n1361\n\nWashington State Dept. of Retirement Systems\n\nN\n\nY\n\nWithdrawn\n\n315\n\n1361\n\nWashington State Historical Society\n\nN\n\nY\n\nWithdrawn\n\n316\n\n1361\n\nWashington State House of Representatives\n\nN\n\nY\n\n$42,946\n\n317\n\n1361\n\nWashington State Law Library\n\nN\n\nY\n\n$77,365\n\n318\n\n1361\n\nWashington State Library\n\nN\n\nY\n\n$46,931\n\n319\n\n1361\n\nWashington State Liquor Board\n\nN\n\nY\n\n$0\n\n320\n\n1361\n\nWashington State Military Department\n\nN\n\nY\n\n$2,077,599\n\n321\n\n1361\n\nWashington State Office of Financial Mgmt.\n\nN\n\nY\n\n$4,472\n\n322\n\n1361\n\nWashington State Parks & Recreation\n\nN\n\nY\n\n$393,085\n\n323\n\n1361\n\nWashington State Patrol\n\nN\n\nY\n\n$76,993\n\n324\n\n1361\n\nWashington State Redistricting Commission\n\nN\n\nY\n\nWithdrawn\n\n325\n\n1361\n\nWashington State Senate\n\nN\n\nY\n\n$8,046\n\n326\n\n1361\n\nWestport, City of\n\nN\n\nY\n\n$2,386\n\n327\n\n1361\n\nWhatcom, County of\n\nN\n\nY\n\n$8,197\n\n328\n\n1361\n\nWhite Pass School District\n\nN\n\nY\n\n$11,112\n\n329\n\n1361\n\nWhite River School District No. 416\n\nN\n\nY\n\nWithdrawn\n\n330\n\n1361\n\nWilkeson, City of\n\nN\n\nY\n\n$66,081\n\n331\n\n1361\n\nWinlock, City of\n\nN\n\nY\n\n$17,139\n\n332\n\n1361\n\nWoodinville Water District\n\nN\n\nY\n\n$13,572\n\n333\n\n1361\n\nWoodinville, City of\n\nN\n\nY\n\n$23,782\n\n334\n\n1361\n\nYelm Community Schools District No. 2\n\nN\n\nY\n\n$2,553\n\n335\n\n1361\n\nYelm, City of\n\nN\n\nY\n\nWithdrawn\n\n336\n\n1361\n\nYMCA of Greater Seattle\n\nY\n\nY\n\n$0\n\n142\n\n\x0c'