         Authority of FEMA to Provide Disaster Assistance to
                       Seattle Hebrew Academy
The Stafford Disaster Relief and Emergency Assistance Act of 1974 and its implementing regulations
  permit the Federal Emergency Management Agency to provide federal disaster assistance for the
  reconstruction of Seattle Hebrew Academy, a private religious school that was damaged in an
  earthquake in 2001.
The Establishment Clause of the First Amendment does not pose a barrier to the Academy’s receipt of
  such aid.

                                                                             September 25, 2002

                 MEMORANDUM OPINION FOR THE GENERAL COUNSEL
                   FEDERAL EMERGENCY MANAGEMENT AGENCY

   You asked us to analyze whether the Federal Emergency Management Agency
(“FEMA”) may, consistent with the Stafford Disaster Relief and Emergency
Assistance Act of 1974 (“the Act”), 42 U.S.C.A. §§ 5121-5206 (1995 & West
Supp. 2002), the Act’s implementing regulations, and the Establishment Clause of
the First Amendment, provide disaster assistance to the Seattle Hebrew Academy
(“the Academy”). The Academy, like many other Seattle institutions, sustained
severe damage as a result of the Nisqually Earthquake on February 28, 2001. For
the reasons set forth below, we conclude that the Act and its implementing
regulations permit FEMA to provide a disaster assistance grant to the Academy,
and that the Establishment Clause does not pose a barrier to the Academy’s receipt
of such aid.

                                                I.

   The Academy, a private nonprofit educational facility for Jewish students,
applied to FEMA for disaster assistance pursuant to section 406 of the Act, 42
U.S.C.A. § 5172(a)(1)(B). The Act authorizes the President to “make contribu-
tions . . . to a person that owns or operates a private nonprofit facility damaged or
destroyed by a major disaster for the repair, restoration, reconstruction, or
replacement of the facility and for associated expenses incurred by the person.” Id.
(emphasis added). In 1979, the President transferred to FEMA this and other
disaster relief functions that previously had been delegated or assigned to other
Federal agencies. See Exec. Order No. 12148, § 1-102, 3 C.F.R. 412, 413 (1980).
   On March 28, 2001, a FEMA Public Assistance Officer denied the Academy’s
application for assistance. The Academy appealed to the FEMA Region X
Regional Director. The Region X Acting Regional Director denied the appeal on
October 19, 2001, on the ground that the Academy’s building was not a “private
nonprofit facility” for purposes of section 406(a)(1)(B) because it was not open to




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      Authority of FEMA to Provide Disaster Assistance to Seattle Hebrew Academy


“the general public.” See Letter for Donna J. Voss, Deputy State Coordinating
Officer, Public Assistance, Emergency Management Division, State of Washing-
ton Military Department, from Tamara D. Doherty, Acting Regional Director,
Region X, FEMA, at 1 (Oct. 19, 2001) (“Doherty Letter”). In so ruling, the Acting
Regional Director determined that a religiously affiliated educational facility is not
open to “the general public” if it only admits students of a particular faith. Id.
   The Academy has appealed the Acting Regional Director’s decision. See Letter
for Donna Voss, Washington State Public Assistance Officer, Washington State
Disaster Field Office, from Ulrike I. Boehm, Attorney for SHA, Latham &
Watkins, Re: Seattle Hebrew Academy (Dec. 21, 2001) (“Boehm Letter”). It is our
understanding that the Academy’s appeal is presently being considered by the
FEMA Associate Director for Response and Recovery. See 44 C.F.R.
§ 206.206(b)(2) (2001). You asked for our views on whether FEMA is required by
statute or regulation to apply a “general public” requirement to all eligible private
nonprofit facilities or otherwise to disqualify a religiously sponsored educational
facility on the ground that it only admits students of a particular faith. If the Act
and its implementing regulations do not require that FEMA deny funding to the
Academy, you also asked for our views on whether such funding would violate the
Establishment Clause of the First Amendment.

                                          II.

                                          A.

    On its face, 42 U.S.C.A. § 5172(a)(1)(B) requires the President to find only that
a potential disaster relief recipient “owns or operates a private nonprofit facility”
damaged or destroyed in a major disaster. The Acting Regional Director’s denial
of the Academy’s application added another requirement—that the facility be open
to “the general public.” In so ruling, she relied upon the FEMA regulation defining
“private nonprofit facility,” which provides in relevant part:

       Private nonprofit facility means any private nonprofit educational,
       utility, emergency, medical, or custodial care facility, including a
       facility for the aged or disabled, and other facility providing essential
       governmental type services to the general public, and such facilities
       on Indian reservations.

44 C.F.R. § 206.221(e) (2001) (second emphasis added). The Acting Regional
Director construed this regulation to mean that, in order to qualify for relief under
section 406(a)(1)(B) of the Act, any and all private nonprofit facilities—including
educational facilities—must provide essential governmental type services to “the
general public,” and that a religiously affiliated educational facility does not




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                      Opinions of the Office of Legal Counsel in Volume 26


satisfy this requirement if it limits admission to students of a particular religious
faith. See Doherty Letter. 1
     We believe that the Acting Regional Director’s reading of 44 C.F.R.
§ 206.221(e) is not the better interpretation of that regulation. Under the most
natural reading of section 206.221(e), the phrase “providing essential governmen-
tal type services to the general public” modifies only the “other facilit[ies]”
referenced in the clause in which that phrase appears; the requirement to be open
to the general public does not apply to the types of facilities—namely, “education-
al, utility, emergency, medical, or custodial care facilit[ies], including a facility for
the aged or disabled”—enumerated prior to the regulation’s “general public”
clause. These five types of facilities, and “facilities on Indian reservations,” are
both set off in independent clauses. 2 Thus, the text of the regulation does not
support imposition of a “general public” requirement upon any of these facilities. 3
    FEMA has defined four of the types of facilities identified in the statute in a
manner that does not impose a “general public” requirement. Most important for
present purposes, FEMA’s definition of “[e]ducational facilities” does not impose
such a requirement. Id. § 206.221(e)(1). See also id. § 206.221(e)(2), (5), (6)
(defining “[u]tility,” “[m]edical facility,” and “[c]ustodial care facility” in a
manner that does not impose a “general public” requirement upon such facilities). 4

    1
      The record is somewhat unclear as to whether the Academy strictly limits admission to Jewish
students. At the time of the earthquake, the Academy’s by-laws prohibited admission of non-Jewish
students, although the Academy maintains that it no longer abides by this by-law. See Doherty Letter
at 1. It is undisputed that the Academy grants admission only to otherwise eligible non-Jewish students
who agree to “seriously study[] and practic[e] Jewish law and culture in their home[s], under the
supervision and instruction of a rabbi.” Boehm Letter at 9. Our reasoning, however, does not depend
upon the precise nature of the Academy’s admission requirements.
    2
      As explained below, although section 206.221(e) was crafted to implement a 1988 statutory
definition that references the provision of services “to the general public” (42 U.S.C.A. § 5122(9)), that
provision cannot fairly be read to require that educational facilities provide services “to the general
public.” We begin with the regulatory language, however, because it differs slightly from the statutory
language: in promulgating its definition of “private nonprofit facility,” FEMA (1) replaced the statutory
phrase “other private nonprofit facilities which provide” with the phrase “and other facility providing,”
and (2) added the term “such” before “facilities on Indian reservations.” Collectively, these changes
make it slightly more plausible to conclude that all of the referenced facilities are subject to the
“general public” requirement. As explained in the text, however, we think it is most reasonable to read
the three clauses of section 206.221(e)—the first, which lists five types of covered facilities; the
second, which pertains to facilities providing “essential governmental type services”; and the third,
which pertains to “facilities on Indian reservations”—as separate and independent clauses, of which
only the second contains a “general public” requirement.
    3
      Notably, the Acting Regional Director replaced the middle and final clauses of 44 C.F.R.
§ 206.221(e) with ellipses, so as to make the provision appear to state: “Private nonprofit facility means
any nonprofit educational . . . facility providing essential governmental type services to the general
public . . . .” Doherty Letter at 1. As explained in the text, this quotation is relevant for what it omits.
    4
      For some reason section 206.221(e) contains no definition of “rehabilitational” facilities, although
that term appears, along with the other types of facilities enumerated in the first clause of the rule, in 42
U.S.C.A. § 5122(9).




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       Authority of FEMA to Provide Disaster Assistance to Seattle Hebrew Academy


By contrast, FEMA’s definition of “[o]ther essential governmental service
facility” does contain a “general public” requirement. Id. § 206.221(e)(7). 5 Thus, if
the portion of section 206.221(e) relied upon by the Acting Regional Director is
simply interpreted in a manner consistent with FEMA’s own regulatory definition
of “educational facilities,” there is no basis for imposing a “general public”
requirement upon the Academy. As explained above, however, we do not believe
that the text of section 206.221(e) supports imposition of a “general public”
requirement upon any of the facilities enumerated in the first clause of that
regulation.
    It is evident that FEMA promulgated section 206.221(e) in order to implement
a 1988 statutory definition that references the provision of services “to the general
public.” 42 U.S.C.A. § 5122(9). 6 It thus appears that the Acting Regional Director
may have adopted her construction of section 206.221(e) on the assumption that it
is the best, or only, interpretation of the statutory definition of “private nonprofit
facility.” As we explain below, 42 U.S.C.A. § 5122(9) cannot fairly be interpreted
in that manner. Furthermore, once it is understood that 42 U.S.C.A. § 5122(9) does
not support, let alone compel, a regulation of such breadth, the regulatory interpre-
tation adopted by the Acting Regional Director becomes far less tenable.

                                                    B.

   Second, and more importantly, even if 44 C.F.R. § 206.221(e) could reasonably
be construed to require the denial of FEMA assistance to the Academy, such a
result would be inconsistent with the terms of the statutory provision that sec-
tion 206.221(e) implements (42 U.S.C.A. § 5122(9)), and is not authorized by the


    5
      Although FEMA’s regulatory definitions do impose a “general public” requirement on
“[i]rrigation facilit[ies]” and “[e]mergency facilit[ies],” 44 C.F.R. § 206.221(e)(3)-(4), we are aware of
(and FEMA has provided) no reason, based in the statute or policy, why these facilities ought to be
treated differently from the other types of facilities enumerated in the first clause of section 206.221(e).
We are aware that in 2000, Congress amended the statutory definition to add the word “irrigation” to
the definition of private nonprofit facilities, and the legislative history indicates that “[i]rrigation
facilities should be eligible for Federal assistance to the extent that they provide water for essential
services of a governmental nature to the general public.” 146 Cong. Rec. 20,583 (2000) (statement of
Rep. Fowler) (emphasis added). Representative Fowler, however, appears to have assumed (mistaken-
ly) that the statute requires that all eligible private nonprofit facilities provide services to the general
public, and that likewise appears to be the only explanation for the express references to the “general
public” in FEMA’s definitions of “emergency” and “irrigation” facilities. As explained in the text
below, the statute itself—even as amended in 2000—provides no warrant for treating irrigation or
emergency facilities any differently than educational facilities.
    6
      Prior to 1989-90, when FEMA promulgated the regulatory definition of “private nonprofit facili-
ty” now found in section 206.221(e), see 54 Fed. Reg. 11,610 (1989) (interim rule with request for
comments); 55 Fed. Reg. 2297 (1990) (final rule), FEMA’s regulatory definition of that term did not
make any reference to “the general public.” Congress’s 1988 statutory amendment, however, did
include such a reference. See infra p. 119. Thus, it is fair to presume that FEMA promulgated the new
definition in order to implement the definition contained in the 1988 Act.




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                 Opinions of the Office of Legal Counsel in Volume 26


statutory provision that the Acting Regional Director invoked (42 U.S.C.A.
§ 5151(a)). Upon careful reading, neither of these provisions requires that eligible
private nonprofit facilities provide services to “the general public,” or that
religious schools that limit admission to students of a particular faith be deemed
ineligible for disaster relief.
    In 1988, in Public Law No. 100-707, 102 Stat. 4689, Congress amended the
Disaster Mitigation Act of 1974 to add for the first time a statutory definition of
“private nonprofit facility.” See 102 Stat. at 4690. Section 103(f) of the 1988 Act,
as amended and codified, presently provides:

       “Private nonprofit facility” means private nonprofit educational, util-
       ity, irrigation, emergency, medical, rehabilitational, and temporary or
       permanent custodial care facilities (including those for the aged and
       disabled), other private nonprofit facilities which provide essential
       services of a governmental nature to the general public, and facilities
       on Indian reservations as defined by the President.

42 U.S.C.A. § 5122(9). In a manner similar to 44 C.F.R. § 206.221(e) (see supra
note 2), the provision defines three categories of private nonprofit facilities: seven
types of enumerated facilities; other facilities that provide “essential services of a
governmental nature to the general public”; and facilities on Indian reservations.
The language and structure of this provision indicate that the phrase “which
provide essential services of a governmental nature to the general public” modifies
only the second category of eligible facilities—“other private nonprofit facili-
ties”—which is identified in the same, middle clause as the “general public”
requirement. The phrase does not modify either the first category of enumerated
eligible facilities (“private nonprofit educational, utility, irrigation, emergency,
medical, rehabilitational, and temporary or permanent custodial care facilities
(including those for the aged and disabled)”) or the third category of eligible
facilities (“facilities on Indian reservations as defined by the President”), both of
which are set off in separate, independent clauses. Indeed, the range of institutions
found in the first phrase of section 5122(9) itself suggests that the “general public”
requirement does not extend to those facilities: in particular, one would not
ordinarily think of an “irrigation facility” as being open to the general public, and
the text provides no basis for treating irrigation facilities any differently than the
other enumerated facilities in this regard. See supra note 5.
    The statutory history of this definition confirms this interpretation. Private
educational institutions first became eligible for disaster assistance in 1972, when
Congress gave the President authority to make grants to private nonprofit schools
that suffered damage from Hurricane Agnes. Act of Aug. 16, 1972, Pub. L. No.
92-385, § 4, 86 Stat. 554, 556-57. That statute defined which “educational
institution[s]” were eligible and further imposed certain conditions on the grants




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       Authority of FEMA to Provide Disaster Assistance to Seattle Hebrew Academy


made to such institutions. Id. § 4(b)-(d), 86 Stat. at 556-57. Nowhere, however, did
Congress impose any requirement that eligible educational facilities provide
services “to the general public.”
    Congress amended the governing statute in the Disaster Relief Act of 1974
(now known as the Stafford Act), Pub. L. No. 93-288, 88 Stat. 143, which gave the
President still broader authority to make grants for the repair or replacement of
certain private facilities damaged in major disasters. See id. § 402(b), 88 Stat. at
153 (authorizing the President to make grants “to help repair, restore, reconstruct,
or replace private nonprofit educational, utility, emergency, medical, and custodial
care facilities, including those for the aged or disabled, and facilities on Indian
reservations as defined by the President, which were damaged or destroyed by a
major disaster”). Here again, however, the statute did not include any reference to
facilities providing services to “the general public.” Nor, as far as we are aware,
did the legislative history suggest a “general public” limitation. See, e.g., H.R.
Rep. No. 93-1037, at 37 (1974) (Conf. Rep.), reprinted in 1974 U.S.C.C.A.N.
3091, 3102. Not surprisingly, therefore, the regulations implementing the 1974
Act—which contained extensive, detailed limitations on eligibility for funding—
thereafter defined “[p]rivate non-profit organization,” “[e]ducational [i]nstitution,”
“[p]rivate non-profit facility,” and “[e]ducation[al] facilities,” all without reference
to any “general public” requirement. See, e.g., 24 C.F.R. § 2205.54(a)(1)-(3), (e),
(f) (1976) (HUD regulations); 44 C.F.R. § 205.54(a)(1)-(3), (e), (f) (1979) (FEMA
regulations adopting former HUD regulations); 44 C.F.R. §§ 205.2(15), 205.71(a),
(d), (e), 205.72(b) (1980-1988) (revised FEMA regulations). It is therefore clear
that, prior to the 1988 statutory amendment, neither the statute nor its implement-
ing regulations required educational facilities to provide services to the general
public. 7
    It was not until the 1988 amendment discussed above that the governing Act
contained any reference to the “general public” whatsoever, and nothing in the
language of that amendment or its legislative history suggests that Congress
intended to impose a new “general public” requirement for eligibility of those
facilities of nonprofit organizations that already were eligible for relief prior to
the amendment. As the statute’s text confirms, Congress did intend that facilities
within the newly codified “catch-all” category of “other private nonprofit facilities
which provide essential services of a governmental nature” would be required to
provide services “to the general public.” But the only change that Congress made


    7
      From the time of their initial promulgation, the pre-1988 regulations defined “[e]mergency
facilit[ies]” to mean “those buildings, structures, or systems used to provide emergency services, such
as fire protection, ambulance, or rescue, to the general public.” See, e.g., 24 C.F.R. § 2205.54(a)(3)(iii)
(1976); 44 C.F.R. § 205.71(d)(3) (1980) (emphasis added). When it first promulgated this regulation,
HUD did not explain why it included the “general public” qualifier for emergency facilities. See 39
Fed. Reg. 28,212, 28,221 (1974). Notably, however, that same qualifier was not included in any of the
other definitions prior to the 1988 amendment, including the definition of “education facilities.”




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                  Opinions of the Office of Legal Counsel in Volume 26


concerning the eligibility of private nonprofit organizations (other than codifying
the definition itself) was to establish this new category of eligible facilities—a
change that, in the words of the House Committee Report, “broadened” the
“definition” of eligible private nonprofit facilities to “include facilities which
provide to the general public services of a governmental nature,” such as “muse-
ums, zoos, community centers, libraries, homeless shelters, senior citizen centers,
rehabilitation facilities, and shelter workshops.” H.R. Rep. No. 100-517, at 4
(1988), reprinted in 1988 U.S.C.C.A.N. 6085, 6088; see also 134 Cong. Rec. 4186
(1988) (Congressional Budget Office Cost Estimate, March 16, 1988, included in
statement of Rep. Nowak). In sum, there is no evidence that Congress intended to
place new restrictions on those facilities that already were eligible for assistance
prior to 1988.
   For whatever reason, the Acting Regional Director did not invoke sec-
tion 5122(9) as authority for her decision, notwithstanding the fact that it contains
the phrase “general public.” Instead, the only statute she cited was 42 U.S.C.A.
§ 5151(a), which provides:

       The President shall issue, and may alter and amend, such regulations
       as may be necessary for the guidance of personnel carrying out Fed-
       eral assistance functions at the site of a major disaster or emergency.
       Such regulations shall include provisions for insuring that the distri-
       bution of supplies, the processing of applications, and other relief
       and assistance activities shall be accomplished in an equitable and
       impartial manner, without discrimination on the grounds of race,
       color, religion, nationality, sex, age, or economic status.

Doherty Letter at 1. For at least two reasons, however, this statutory provision
cannot serve as authority either for a rule that all eligible nonprofit facilities must
provide services “to the general public,” or, more specifically, for a rule making
ineligible for aid all private nonprofit facilities that limit admission on the basis of
religion.
    First, section 5151(a) says nothing about requiring that private recipients of aid
provide services “to the general public.” Second, and more fundamentally,
section 5151(a) is addressed not to discrimination by the recipients of FEMA aid,
but to discrimination—including religious discrimination—by those engaged in
the provision of FEMA aid. The regulations that the President is required to issue
are “for the guidance of personnel carrying out Federal assistance functions at the
site of a major disaster or emergency,” and must insure “that the distribution of
supplies, the processing of applications, and other relief and assistance activities
shall be accomplished in an equitable and impartial manner.” (Emphasis added.)
Accordingly, we do not think that section 5151(a) is authority for the broad




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        Authority of FEMA to Provide Disaster Assistance to Seattle Hebrew Academy


“general public” requirement that the Acting Regional Director would impose on
all eligible private nonprofit facilities. 8
    In sum, we have found no statutory provision that requires either that all eligi-
ble private nonprofit facilities “provide services to the general public,” 9 or that


    8
      FEMA’s definition of eligible private nonprofit “[e]ducational facilities” further provides that
such facilities “[may] not include buildings, structures and related items used primarily for religious
purposes or instruction.” 44 C.F.R. § 206.221(e)(1). We note that there is no longer any basis for this
requirement in the text of the Act (the Act formerly provided that educational institutions were
ineligible if used primarily for religious purpose, see Pub. L. No. 92-385, § 4(c)(4), 86 Stat. at 557)—
and, in light of current doctrine (see infra Part III), there is some question whether it is consistent with
the First Amendment to the Constitution—but in any event the Acting Regional Director specifically
found that the religious components of the Academy’s class requirements amount to less than 50% of
the curriculum, and thus that the Academy’s building is not used “primarily for religious purposes or
instruction.” See Letter for Tamara Doherty, Acting Regional Director, Region X, FEMA, from Donna
J. Voss, Deputy State Coordinating Officer, Public Assistance, State of Washington, at 1 (July 21,
2001); Staff Analysis, Prepared by Bruce Baardson, Public Assistance Section Supervisor, and Donna
Voss, Deputy State Coordinating Officer, Public Assistance, State of Washington, Re: Seattle Hebrew
Academy, First Appeal at 1, 2 (July 24, 2001) (“Staff Analysis”).
    9
      We also note that, even if it were proper to interpret 44 C.F.R. § 206.221(e) to require that all
eligible facilities (including educational facilities) applying for assistance under the Act be open “to the
general public,” it is not entirely clear, in light of FEMA policy, why a school should be deemed to fail
this requirement because it uses religious criteria as a basis for admission. In its Private Nonprofit
Facility Eligibility Policy, FEMA states that an organization fails its “general public” requirement if
“[m]embership” therein “excludes individuals of certain discrete groups.” Policy No. 9521.3, ¶ 7.E.1.e
(Apr. 25, 2000). On the other hand, an organization will “likely” satisfy the test if, inter alia, “[u]se
restrictions, if any, are clearly related to the nature of the facility.” Id. ¶ 7.E.2.d. The Policy goes on to
provide examples of facilities limited to senior citizens, children’s day care, and care for abused
spouses, all of which presumptively satisfy the “general public” requirement. Id. ¶ 7.B.4.
    In light of these examples, it appears that FEMA does not construe the “general public” require-
ment to require that facilities be open to all persons. Senior citizens’ homes serve only elderly people,
excluding the young and middle-aged; child care facilities serve only young people, excluding adults;
facilities for abused spouses serve only abused married people, excluding those who are unmarried (and
presumably those who are abused by people other than their spouses). It cannot be denied that these
facilities “exclude[] individuals of certain discrete groups.” Yet FEMA permits these facilities to
receive aid notwithstanding the fact that they are not open to everyone, because their admission
practices are “clearly related to the nature of the facility,” which is to serve people with specific needs
or backgrounds.
    Insofar as the same can be said of a school that restricts admission to students of a particular faith—
such restrictions on admission “are clearly related to the nature of the facility,” which, in part, is to
provide religious education—it is not evident why the Academy should be viewed as not providing
services “to the general public” simply because it applies religious criteria in its admission practices
and thus is not open to everyone. To the extent that the Acting Regional Director may have rested on
the policy judgment that religious discrimination is more invidious than other types of discrimination,
we note that the statute contains no such judgment and that many federal statutes permit religious
organizations to preserve their autonomy by limiting their associations to co-religionists. See 42
U.S.C.A. § 2000e-1 (2000) (Title VII provision permitting religious nonprofit organizations to hire on a
religious basis); id. § 2000d (Title VI provision prohibiting recipients of federal funding from
discriminating on the basis of “race, color, or national origin,” but not religion); 20 U.S.C.A. § 1681(a)
(2000) (Title IX provision prohibiting federally funded educational institutions from discriminating on
the basis of sex, but not religion).




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                      Opinions of the Office of Legal Counsel in Volume 26


schools that limit admission to students of a particular faith be deemed ineligible
for disaster relief.10

                                                    III.

   You also asked us to analyze whether the Establishment Clause of the First
Amendment would require another result. Although there is no precedent that
directly controls this specific issue, we conclude that the Establishment Clause
does not pose a barrier to FEMA’s provision of a disaster assistance grant to the
Academy. The aid that is authorized by federal law is made available on the basis
of neutral criteria to an unusually broad class of beneficiaries defined without
reference to religion and including not only educational institutions but a host of
other public and private institutions as well. Moreover, the program’s design is not
characterized by the sort of administrative discretion that can readily be used to
favor religion, and the evidence demonstrates that FEMA has exercised its

    10
       Under 42 U.S.C.A. § 5151(b), which the Acting Regional Director did not cite, the President has
authority to promulgate “regulations relating to nondiscrimination” that apply to institutions that
receive FEMA disaster assistance. See id. (“As a condition of . . . receiving assistance under this
chapter, . . . organizations shall be required to comply with regulations relating to nondiscrimination
promulgated by the President . . . .”). The President, however, has not promulgated regulations
prohibiting recipients of FEMA disaster assistance from discriminating on the basis of religion. See 44
C.F.R. § 7.920 (2001) (prohibiting recipients of assistance from discriminating on the basis of age, but
not religion). Nor are we aware of any other provision of federal law that would impose such a
requirement upon the Academy. See 20 U.S.C.A. § 1681(a) (2000) (Title IX) (prohibiting educational
institutions from discriminating on the basis of sex, but not religion); 44 C.F.R. pt. 19 (2001)
(implementing Title IX for purposes of FEMA assistance); 42 U.S.C.A. § 2000d (prohibiting recipients
of federal funding from discriminating on the basis of “race, color, or national origin”); 44 C.F.R. § 7.3
(2001) (prohibiting recipients of FEMA assistance under various statutes from discriminating on the
basis of “race, color, or national origin”); see also Staff Analysis at 2 (finding that the Academy
complies with Title VI).
    FEMA Director’s Policy 2-01 provides that “[i]t is the policy of [FEMA] to ensure that the Civil
Rights of all persons receiving services or benefits from agency programs and activities are protected”
and that “[n]o person shall, on the grounds of . . . religion . . . be denied the benefits of, be deprived of
participation in, or be discriminated against in any program or activity conducted by or receiving
financial assistance from FEMA.” Id., Re: Civil Rights Program, ¶ 1 (July 17, 2001). See also id. ¶ 4
(explaining that these requirements apply to “educational institutions” that receive FEMA assistance).
We note, however, that this policy has not been adopted by regulation, and thus cannot be said to
implement 42 U.S.C.A. § 5151(b). Nor are we aware of any other statutory authority that would
authorize FEMA to impose a “general public” or religious nondiscrimination requirement on the
Academy. Sections 5164 and 5201(a)(1) of title 42 (2000) authorize the President to “prescribe such
rules and regulations as may be necessary and proper to carry out any of the provisions of this chapter,”
but we are doubtful that those provisions would permit FEMA to impose a “general public” require-
ment where Congress, in the statutory provision that speaks directly to the question, has imposed such a
requirement on other institutions but not on educational institutions such as the Academy. See 42
U.S.C.A. § 5122(9). Similarly, there is some question whether these provisions would authorize FEMA
to adopt a “policy” imposing a religious nondiscrimination requirement upon participating institutions
where another provision of the same statute (42 U.S.C.A. § 5151(b)) mandates that such requirements
be imposed pursuant to “regulations.”




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       Authority of FEMA to Provide Disaster Assistance to Seattle Hebrew Academy


discretion in a neutral manner. Thus, we believe that provision of disaster assis-
tance to the Academy cannot be materially distinguished from aid programs that
are constitutional under longstanding Supreme Court precedent establishing that
religious institutions are fully entitled to receive generally available government
benefits and services, such as fire and police protection.
    The Supreme Court’s general framework for analyzing Establishment Clause
issues is familiar. A statute violates the Establishment Clause if it lacks a “secular
legislative purpose,” has a “primary effect” of advancing religion, or results in an
“excessive entanglement” between government and religion. See Lemon v.
Kurtzman, 403 U.S. 602, 612-13 (1971); see also Agostini v. Felton, 521 U.S. 203
(1997) (reformulating the Lemon test by incorporating its “entanglement” prong
into its “effects” prong). Here, as in the vast majority of situations implicating the
Establishment Clause, the critical question is whether allowing the Academy to
receive direct disaster assistance would have the “primary effect” of advancing
religion.11 Accordingly, our analysis will focus on decisions that illuminate that
inquiry.
    Ever since its first modern Establishment Clause decision in Everson v. Board
of Education, 330 U.S. 1, 17 (1947), the Supreme Court has indicated that
religious institutions are entitled to receive “general government services” made
available on the basis of neutral criteria. Everson held that the Establishment
Clause does not bar students attending religious schools from receiving generally
available school busing services provided by the government. In reaching its
decision, the Court explained that even if the evenhanded provision of busing
services increased the likelihood that some parents would send their children to
religious schools, the same could be said of other “general state law benefits” that
were even more clearly constitutional because they were equally available to all
citizens and far removed from the religious function of the school. Id. at 16. As
examples, the Court cited “such general government services as ordinary police
and fire protection, connections for sewage disposal, public highways and
sidewalks,” concluding:


    11
       It is clear that allowing a range of nonprofit organizations like the Academy to receive rehabilita-
tion grants serves the secular purpose of rehabilitating the community by helping to rebuild institutions
that perform quasi-public functions and are (by virtue of their nonprofit status) most in need of
assistance. See Pub. L. No. 92-385, § 4, 86 Stat. at 556-57 (explaining that disaster relief for private,
nonprofit educational facilities was appropriate because such institutions “have a secular educational
mission,” and because the public schools would have to bear the cost of educating the students
attending such private schools if the damaged institutions were not restored); see also 57 Fed. Reg.
18,441 (1992) (preamble to FEMA proposed rule explaining that the 1972 statute permitted grants to
private schools “because of the public function which they served”). Nor is there any basis for
concluding that allowing the Academy to receive aid would “excessively entangle” the Academy with
the state, as there is even less governmental monitoring of aid recipients here than in other cases in
which the Court has not questioned the provision of aid under Lemon’s entanglement prong. Cf., e.g.,
Agostini, 521 U.S. 203; Mitchell v. Helms, 530 U.S. 793 (2000).




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      cutting off church schools from these services, so separate and so
      indisputably marked off from the religious function, would make it
      far more difficult for the schools to operate. But such is obviously
      not the purpose of the First Amendment. That Amendment requires
      the state to be a neutral in its relations with groups of religious
      believers and non-believers; it does not require the state to be their
      adversary. State power is no more to be used so as to handicap reli-
      gions, than it is to favor them.

Id. at 17-18. See also id. at 16 (“[The state] cannot exclude individual Catholics,
Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyteri-
ans, or the members of any other faith, because of their faith, or lack of it, from
receiving the benefits of public welfare legislation. . . . [W]e must be careful, in
protecting the citizens of New Jersey against state-established churches, to be sure
that we do not inadvertently prohibit New Jersey from extending its general state
law benefits to all its citizens without regard to their religious belief”).
    We believe that a FEMA disaster assistance grant is analogous to the sort of aid
that qualifies as “general government services” approved by the Court in Everson.
Although such aid is not available to all citizens or buildings—and thus is not as
broadly available as, say, utility services—neither is it limited to educational
institutions or, for that matter, to just a few classes of buildings. As noted above,
the FEMA grants in question are made available not only to public and private
schools, but to “private nonprofit . . . utility, irrigation, emergency, medical,
rehabilitational, and temporary or permanent custodial care facilities (including
those for the aged and disabled), other private nonprofit facilities which provide
essential services of a governmental nature to the general public, and facilities on
Indian reservations as defined by the President.” 42 U.S.C.A. § 5122(9). Accord-
ingly, we think that the “circumference” of this program can fairly be said to
“‘encircle[] a class so broad that it can be fairly concluded that religious institu-
tions could be thought to fall within the natural perimeter.’” Texas Monthly, Inc. v.
Bullock, 489 U.S. 1, 17 (1989) (plurality opinion) (quoting Walz v. Tax Comm’n,
397 U.S. 664, 696 (1970) (Harlan, J.)). As the Court stated in Widmar v. Vincent,
454 U.S. 263, 274 (1981), “[t]he provision of benefits to so broad a spectrum of
groups is an important index of secular effect.” Accord Texas Monthly, 489 U.S. at
14-15 (plurality opinion) (footnote omitted) (“[i]nsofar as [a] subsidy is conferred
upon a wide array of nonsectarian groups as well as religious organizations in
pursuit of some legitimate secular end, the fact that religious groups benefit
incidentally does not deprive the subsidy of the secular purpose and primary effect
mandated by the Establishment Clause”); Zobrest v. Catalina Foothills Sch. Dist.,
509 U.S. 1, 8 (1993) (“we have consistently held that government programs that
neutrally provide benefits to a broad class of citizens defined without reference to
religion are not readily subject to an Establishment Clause challenge”); Board of




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      Authority of FEMA to Provide Disaster Assistance to Seattle Hebrew Academy


Educ. of Kiryas Joel v. Grumet, 512 U.S. 687, 704 (1994) (“we have frequently
relied explicitly on the general availability of any benefit provided religious
groups or individuals in turning aside Establishment Clause challenges”).
    In Walz v. Tax Commission, 397 U.S. 664, 673 (1970), for example, the Court
rejected an Establishment Clause challenge to a property tax exemption made
available not only to churches, but to several other classes of nonprofit institutions,
such as “hospitals, libraries, playgrounds, scientific, professional, historical, and
patriotic groups.” See also id. at 667 n.1. In upholding the program, the Court
relied in part upon the breadth of the tax exemption: the exemption did “not
single[] out one particular church or religious group or even churches as such,” but
rather was available to “a broad class of property owned by nonprofit, quasi-public
corporations.” Id. at 673. As the Court stated in reference to Everson, if “buses can
be provided to carry and policemen to protect church school pupils, we fail to see
how a broader range of police and fire protection given equally to all churches,
along with nonprofit hospitals, art galleries, and libraries receiving the same tax
exemption, is different for purposes of the Religion Clauses.” Id. at 671. Thus, just
as a broad category of beneficiary institutions was sufficient to sustain the
inclusion of religious institutions in the tax benefit in Walz, we believe the breadth
of the eligibility categories in the FEMA program is sufficient to sustain the
provision of FEMA aid to the Academy. Put another way, we do not think that
providing FEMA grants to religious institutions that qualify for disaster relief on
the basis of wholly neutral criteria—a wide array of nonprofit organizations may
receive aid for buildings that have suffered structural damage from a natural
disaster—lacks a secular purpose or effect. See generally Lemon, 403 U.S. at
612-13; Agostini, 521 U.S. at 223-30.
    We cannot say, however, that there are no arguments to the contrary. Most
important, there is an argument that providing FEMA disaster relief to repair a
school used for religious instruction would run afoul of Supreme Court precedent
restricting the use of “direct” aid that can be put to specifically religious uses. In
particular, one might argue that insofar as the grant used to rebuild the Academy’s
building would ultimately support the building’s use for secular and religious
purposes—i.e., both secular and religious teaching—such aid is unlawful under
Supreme Court decisions from the 1970s holding that public construction grants
for educational institutions may not be applied toward buildings used for religious
purposes. See Tilton v. Richardson, 403 U.S. 672 (1971) (federal construction
grants for college and university facilities must be restricted indefinitely to use for
secular purposes); Committee for Pub. Educ. v. Nyquist, 413 U.S. 756 (1973)
(invalidating the provision of state maintenance and repair grants to religious
schools on the basis that such aid could not be restricted to secular purposes); see
also Hunt v. McNair, 413 U.S. 734, 744 (1973) (sustaining state financing of
construction for religious college under program that barred financing of “build-
ings or facilities used for religious purposes”).




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    In Tilton, for example, the Court sustained the provision of federal construction
grants to religious colleges insofar as the program at issue barred aid for “‘any
facility used or to be used for sectarian instruction or as a place for religious
worship,’” but invalidated such grants insofar as the program permitted funding
the construction of buildings that might someday be used for religious activities.
See 403 U.S. at 675, 683 (plurality opinion) (citations omitted) (concluding that a
20-year limitation on the statutory prohibition on use of the buildings for religious
activities violated the Establishment Clause, because “[i]f, at the end of 20 years,
the building is, for example, converted into a chapel or otherwise used to promote
religious interests, the original federal grant will in part have the effect of advanc-
ing religion”).12 Similarly, in Nyquist the Court invalidated state maintenance and
repair grants for nonpublic elementary and secondary schools because it was not
possible to “restrict payments to those expenditures related to the upkeep of
facilities used exclusively for secular purposes.” 413 U.S. at 774. These portions
of the holdings of these decisions, so far as they go, have not been specifically
overruled, even where government aid is distributed to both religious and nonreli-
gious schools on the basis of neutral criteria.13


    12
       This portion of the holding in Tilton was unanimous. See also id. at 692 (Douglas, J., dissenting
in part, joined by Black and Marshall, JJ.); Lemon, 403 U.S. at 659-61 (separate opinion of Brennan, J.,
concurring in judgment in part in Tilton); id. at 665 & n.1 (White, J., concurring in judgment in Tilton)
(“accept[ing] the Court’s invalidation of the provision in the federal legislation whereby the restriction
on the use of buildings constructed with federal funds terminates after 20 years”).
    13
       See Mitchell, 530 U.S. at 840 (O’Connor, J., concurring in the judgment) (“Although ‘[o]ur cases
have permitted some government funding of secular functions performed by sectarian organizations,’
our decisions ‘provide no precedent for the use of public funds to finance religious activities’” (citation
omitted)); see also id. (where government has given aid directly to a religious institution, “diversion of
secular government aid to religious indoctrination” is “constitutionally impermissible”); id. at 865 (the
principle that “‘any use of public funds to promote religious doctrines violates the Establishment
Clause,’ . . . of course remains good law” (citation omitted)); id. at 856-57 (discussing Tilton); id. at
857 (if plaintiffs were to prove “that the aid in question actually is, or has been, used for religious
purposes,” they would “establish a First Amendment violation”); id. at 843-44 (emphasizing that the
constitutional concern that direct aid might be impermissibly diverted to religious activities is
especially pronounced when the aid is in the form of direct monetary subsidies).
    We would also note, however, that while the relevant holdings of these cases have not been over-
ruled, significant portions of their reasoning is subject to serious question in light of more recent
decisions. Separate portions of the Nyquist decision, for example, were overruled by the Court last
Term in Zelman v. Simmons-Harris, 536 U.S. 639 (2002), and the “pervasively sectarian” doctrine,
which comprised the basis for many of the Court’s Establishment Clause decisions in the early 1970s
(including Nyquist, 413 U.S. at 774-75), no longer enjoys the support of a majority of the Court. See
Mitchell, 530 U.S. at 825-29 (plurality opinion); id. at 857-58 (O’Connor, J., concurring in judgment)
(requiring proof of actual diversion of public support to religious uses to invalidate direct aid to schools
and explaining that “presumptions of religious indoctrination are normally inappropriate when
evaluating neutral school-aid programs under the Establishment Clause”); Columbia Union College v.
Oliver, 254 F.3d 496, 502-04 (4th Cir. 2001) (explaining that the pervasively sectarian test is no longer
valid in light of the holdings of six Justices in Mitchell). Moreover, even if decisions such as Tilton and
Nyquist were controlling, they would limit the provision of a construction grant to the Academy only




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       Authority of FEMA to Provide Disaster Assistance to Seattle Hebrew Academy


    Assuming, arguendo, that Tilton and Nyquist remain valid precedents in these
respects, we do not believe that those decisions control the question whether
FEMA may provide a disaster assistance grant to the Academy. In Nyquist, the
Court distinguished fire and police services from construction grants and repair aid
on the ground that police and fire protection are “provided in common to all
citizens, are ‘so separate and so indisputably marked off from the religious
function,’ that they may fairly be viewed as reflections of a neutral posture toward
religious institutions.” 413 U.S. at 782 (citation omitted). But we see no principled
reason why the constitutionality of an aid program should turn on whether the aid
is provided to all citizens rather than, say, a wide array of organizations that falls
somewhat short of the entire populace. There is a range of aid programs that are
not as “general” as aid provided universally (to every person), but yet are not as
circumscribed as aid to education,14 and the grants provided by FEMA admittedly
fall somewhere within this middle ground. But such aid is more closely analogous
to the provision of “general” government services like those sanctioned by the
Court in Everson (and many times since, e.g., Nyquist, 403 U.S. at 781-82) than to
the construction grants at issue in Tilton and Nyquist, which were available only to
educational institutions.
    The vast majority of the Supreme Court’s Establishment Clause decisions
rendered since Everson have concerned aid provided solely to educational
institutions as a class (in many cases, moreover, this aid was directed toward the
educational process itself), and these decisions rest in part on the theory that aid
directed solely to schools is reasonably perceived as advancing the educational
mission of those that receive it. See, e.g., Mitchell v. Helms, 530 U.S. 793, 843


insofar as the grant would be used to reconstruct those portions of buildings in which specifically
religious activities take place.
    In a prior memorandum, Constitutionality of Awarding Historic Preservation Grants to Religious
Properties, 19 Op. O.L.C. 267 (1995) (“Historic Preservation Memo”), this Office concluded that
Tilton and Nyquist prohibited the Interior Department from providing historic preservation grants to
religious properties. That opinion did not consider whether the rule of Tilton and Nyquist should apply
where the grants at issue are available to a wide array of nonprofit institutions, rather than being limited
to educational institutions. Moreover, the Historic Preservation Memo relied heavily on the fact that
qualification for historic preservation grants depended on the application of “subjective criteria,” such
as historical importance, in determining “project worthiness.” Id. at 271-72. We continue to believe that
the degree of discretion exercised by governmental officials, and the manner in which such discretion is
exercised, are relevant to the constitutionality of direct aid programs (although we express no opinion
here on the Memo’s conclusion regarding historic preservation grants). But to the extent that the
Historic Preservation Memo failed to consider the possibility that the rule of Tilton and Nyquist does
not apply where direct aid is more generally available than was the aid in those cases, it does not
represent our current thinking, which is set forth in this memorandum.
    14
       See Mitchell, 530 U.S. at 875 (Souter, J., dissenting) (stating that “government spending resists
easy classification as between universal general service or subsidy of favoritism,” and noting that “[t]he
5-to-4 division of the Everson Court turned on the inevitable question whether reimbursing all parents
for the cost of transporting their children to school was close enough to police protection to tolerate its
indirect benefit in some degree to religious schools”).




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                      Opinions of the Office of Legal Counsel in Volume 26


(2000) (O’Connor, J., concurring in judgment). The argument that direct aid to
education unlawfully advances the mission of religious schools applies with the
greatest force where such schools constitute a substantial percentage of those that
receive aid. See Lemon, 403 U.S. at 610 (noting that 96% of students at recipient
institutions were pupils at religious schools and that “most” of those schools were
Catholic); Nyquist, 413 U.S. at 768 (“all or practically all” of the schools eligible
for maintenance or repair grants were Catholic, and 85% of those eligible for other
forms of aid were church-affiliated); Meek v. Pittenger, 421 U.S. 349, 364 (1975)
(“more than 75% [of the qualifying schools] are church-related or religiously
affiliated educational institutions”), overruled in relevant part by Mitchell, 530
U.S. 793; Wolman v. Walter, 433 U.S. 229, 234 (1977) (of 720 private schools
eligible for aid, “all but 29” were religious), overruled in relevant part by Mitchell,
530 U.S. 793.15 That argument is much harder to make where the aid is provided to
a range of nonprofit institutions of which schools are but one part. The broad class
of beneficiaries that are eligible for aid under the statute here—which includes
“educational, utility, irrigation, emergency, medical, rehabilitational, and tempo-
rary or permanent custodial care facilities (including those for the aged and
disabled), other private nonprofit facilities which provide essential services of a
governmental nature to the general public, and facilities on Indian reservations,”
42 U.S.C.A. § 5122(9)—confirms that, in contrast to the education-specific aid at
issue in the foregoing cases, the disaster relief provided by FEMA serves goals
entirely unrelated to education—namely, rehabilitation of a community that has
suffered great loss from a natural disaster by helping to rebuild institutions that
perform quasi-public functions and are (by virtue of their nonprofit status) most in
need of assistance. Cf. Mitchell, 530 U.S. at 883 (Souter, J., dissenting)
(“[D]epending on the breadth of distribution, looking to evenhandedness is a way
of asking whether a benefit can reasonably be seen to aid religion in fact; we do
not regard the postal system as aiding religion, even though parochial schools get
mail”).

    15
       We are not suggesting that an aid program has the unlawful effect of advancing religion merely
because a large number of its beneficiaries are religious in nature. The Supreme Court has repeatedly
repudiated the view that the percentage of a program’s religious beneficiaries is relevant to its
constitutionality under the Establishment Clause. See Mueller v. Allen, 463 U.S. 388, 391, 401 (1983)
(sustaining a tax deduction for educational expenses made available to both religious and secular
parents, notwithstanding evidence that “about 95%” of eligible beneficiaries were parents whose
children attended religious schools); Agostini v. Felton, 521 U.S. 203, 229 (1997) (noting that the Court
was not “willing to conclude that the constitutionality of an aid program depends on the number of
sectarian school students who happen to receive the otherwise neutral aid”); Mitchell, 530 U.S. at 812
n.6 (plurality opinion) (citing Agostini for the proposition that “the proportion of aid benefiting students
at religious schools pursuant to a neutral program involving private choices [is] irrelevant to the
constitutional inquiry”); Zelman, 536 U.S. at 658 (refusing to “attach constitutional significance to the
fact that 96% of scholarship recipients have enrolled in religious schools” and stating that “[t]he
constitutionality of a neutral educational aid program simply does not turn on whether and why, in a
particular area, at a particular time, most private schools are run by religious organizations”).




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      Authority of FEMA to Provide Disaster Assistance to Seattle Hebrew Academy


    We find further support for our decision in the fact that Tilton and Nyquist are
in considerable tension with a long and growing line of cases holding that the Free
Speech Clause does not permit the government to deny religious groups equal
access to the government’s own property, even where such groups seek to use the
property “‘for purposes of religious worship or religious teaching.’” Widmar v.
Vincent, 454 U.S. 263, 265 (1981). See Lamb’s Chapel v. Center Moriches Sch.
Dist., 508 U.S. 384, 394 (1993); Capital Square Rev. & Advisory Bd. v. Pinette,
515 U.S. 753 (1995); Good News Club v. Milford Central Sch., 533 U.S. 98
(2001); see also Board of Educ. v. Mergens, 496 U.S. 226 (1990). Providing
religious groups with access to property is a form of direct aid—albeit not
financial aid—and allowing such groups to conduct worship services plainly
“advances” their religious mission. The Court, however, has consistently refused
to permit (let alone require) state officials to deny churches equal access to public
school property “on the ground that to permit its property to be used for religious
purposes would be an establishment of religion.” Lamb’s Chapel, 508 U.S. at 394.
Indeed, the Court has gone so far as to extend the reasoning of these cases to
require equal funding of religious student expression, reasoning that “[e]ven the
provision of a meeting room . . . involve[s] governmental expenditure” for
“upkeep, maintenance, and repair of the facilities.” See Rosenberger v. Rector of
Univ. of Virginia, 515 U.S. 819, 842-43 (1995); see also Prince ex rel. Prince v.
Jacoby, No. 99-35490, 2002 WL 31007791, at *16-*18 (9th Cir. Sept. 9, 2002)
(extending the principles of Rosenberger to monetary and other benefits provided
to student groups that are entitled to meet on school grounds under the Equal
Access Act).
    As in Rosenberger, the issue here “lies at the intersection of the principle of
government neutrality and the prohibition on state funding of religious activities.”
515 U.S. at 846 (O’Connor, J., concurring). In such a case, “[r]eliance on categori-
cal platitudes,” such as an absolute “no direct aid” principle, “is unavailing.” Id. at
847. Accordingly, we do not think it would be appropriate to conclude that the
Tilton-Nyquist decisions govern the constitutionality of allowing a religious school
to receive disaster assistance on the same terms as a wide array of institutions that
provide a public service, whether they are educational or non-educational, secular
or religious. If the diversity of recipients in Walz and the “equal access” line of
cases was sufficient to dispel any Establishment Clause problems, we see no
reason why a similar array of recipients in the FEMA program should not likewise
suffice to sustain it. See also Zelman v. Simmons-Harris, 536 U.S. 639, 727 (2002)
(Breyer, J., dissenting) (arguing that establishment concerns are “far more”
implicated by “government involvement in religious primary education” than by
“tax deductions for charitable contributions,” which “come far closer to exempli-
fying the neutrality that distinguishes, for example, fire protection on the one hand
from direct monetary assistance on the other”). Accordingly, we conclude that the




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                      Opinions of the Office of Legal Counsel in Volume 26


FEMA assistance here is more analogous to the police and fire services discussed
in Everson than to the educational assistance at issue in Tilton and Nyquist.16
    For similar reasons, we do not believe that a reasonable observer would per-
ceive an endorsement of religion in the government’s evenhanded provision of aid
to a religious school damaged by an earthquake. See Mitchell, 530 U.S. at 842-44
(O’Connor, J., concurring in judgment).1 7 In a direct aid program limited to
educational recipients, one could argue that if a school “uses the aid to inculcate
religion in its students, it is reasonable to say that the government has communi-
cated a message of endorsement.” Id. at 843 (O’Connor, J.). The notion is that,
where the government provides education-specific aid, it is fair to say that the
government is providing the assistance because of the content of the funded
education. Such a presumption of governmental endorsement is not present,
however, where the aid is provided to a wide array of nonprofit institutions
(educational and noneducational alike), where the aid is not provided because of
the content of any activities that take place within the building, and where the
government is indifferent to the religious or secular orientation of any education
that may occur within the building. Indeed, much of the aid here is given to
nonprofit institutions that provide services that do not involve any “pedagogy” or
“speech” whatsoever.18
    Our conclusion is strongly supported by the evidence regarding FEMA’s appli-
cation of the criteria for receiving funds under the Act. Apart from the Academy,



     16
        We acknowledge, as Justice O’Connor noted in her concurrence in Mitchell, 530 U.S. at 840, that
the Court has never approved of any direct financial assistance to religious institutions absent assurance
that the aid may not lawfully be diverted to religious activities, and the Court’s cases contain rhetoric to
the effect that “‘any use of public funds to promote religious doctrines violates the Establishment
Clause.’” Id. at 865 (quoting Bowen v. Kendrick, 487 U.S. 589, 623 (1988) (O’Connor, J., concurring)).
At the same time, however, the Court has never passed on a program in which direct financial aid was
extended to schools as part of a broader array of public and private institutions.
     17
        See generally County of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 592
(1989) (the Court has, “[i]n recent years, . . . paid particularly close attention to whether the challenged
governmental practice either has the purpose or effect of ‘endorsing’ religion”); see also id. at 624-32
(O’Connor, J., concurring in part and concurring in the judgment); Santa Fe Indep. Sch. Dist. v. Doe,
530 U.S. 290, 307-08 (2000); Agostini, 521 U.S. at 235.
     18
        One could also argue that fire protection is distinguishable from disaster assistance in that the
latter is a more “substantial” form of aid that permits the construction of an entire facility, whereas fire
protection merely prevents such a facility from being destroyed. We do not find this argument
persuasive, however. To begin with, the Supreme Court’s decisions decreasingly focus on the
“substantiality” of aid provided to religious institutions. See, e.g., Agostini, 521 U.S. at 205 (rejecting
the rule “that all government aid that directly aids the educational function of religious schools is
invalid”); Mitchell, 530 U.S. at 820-25 (plurality opinion); id. at 849-57 (O’Connor, J., concurring in
judgment); Zelman, 536 U.S. 639. Moreover, we think it would “exalt form over substance” (Zobrest v.
Catalina Foothills Sch. Dist., 509 U.S. 1, 13 (1993)) to say that the government may provide aid that
helps a religious organization avoid a disaster but not aid that would help such an organization recover
from a disaster.




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       Authority of FEMA to Provide Disaster Assistance to Seattle Hebrew Academy


of the 268 Nisqually Earthquake applications on which FEMA has ruled,19 267
applicants—all but one—were declared eligible for funding. See Exhibit A. It thus
appears that there is little exercise of discretion regarding religion in the distribu-
tion of grant funds—indeed, in this instance, funding was virtually automatic—
and the diverse makeup of those that have received funds confirms that the
program’s administration is not “skewed towards religion.” Witters v. Washington
Dep’t of Servs., 474 U.S. 481, 488 (1986). This largely (if not entirely) eliminates
any “special risks” that direct aid “will have the effect of advancing religion (or,
even more, a purpose of doing so).” Mitchell, 530 U.S. at 819 n.8 (plurality
opinion). An examination of the array of institutions funded by FEMA confirms
that the program is neutral in practice. Of the funded institutions, 245 are public
facilities, while only 22 are private nonprofit facilities. The public facilities
include, among other things, schools and school districts (of which there are 63),
fire stations, libraries, prisons, utilities, and buildings that provide public social
services. The private facilities likewise include a broad array of institutions—
hospitals and other health facilities, low income housing centers, social services
organizations, and even a “maritime discovery center.”20 Judging from the names
of the private organizations, moreover, it appears that only a handful have
religious affiliations.21 In sum, the record reveals no basis for concern that FEMA

     19
        FEMA received 336 applications for funding in response to the Nisqually Earthquake, 68 of
which were withdrawn. We are informed that FEMA does not keep records of the reasons for
withdrawn applications, and that FEMA does not generally know why applications are withdrawn.
Thus, the record does not reflect the reasons for the withdrawals of these applications. Nonetheless, we
note that of these 68 withdrawn applications, 61 were withdrawn by public institutions and seven were
withdrawn by private nonprofit facilities. Thus, an almost identical percentage of public entity
applications (22.22%) and private nonprofit facility applications (23.33%) were withdrawn. In addition,
nothing in the record suggests that these withdrawals, to the extent that they were motivated by
FEMA’s actions at all, were based on any effort to skew the program in favor of religion, or that FEMA
considered the content of activities that take place within the buildings for which construction and
repair funds were sought. Moreover, FEMA personnel have informed us that the basis for any
withdrawals prompted by the agency would have been purely objective, neutral, and statutory.
     20
        The private nonprofit facilities that received funding from FEMA as a result of the Nisqually Earth-
quake are as follows: (1) Bayview Manor Foundation ($2,008); (2) Bread of Life Mission Association
($23,463); (3) Community Health Centers of King County ($11,910); (4) Graham Hill Mutual Water
Company ($36,594); (5) Group Health Cooperative of Puget Sound ($87,522); (6) Interim Housing
Association ($6,885); (7) Kitsap Mental Health Services ($6,718); (8) Lake Alice Water Association
($33,345); (9) Madrona Beach Water Company, Inc. ($42,043); (10) Meridian Heights Water District
($7,048); (11) Odyssey, The Maritime Discovery Center ($15,768); (12) Pinewood Glen Improvement
Club ($2,911); (13) Pioneer Human Services ($163,708); (14) Plymouth Housing Group ($4,190);
(15) Providence Health System ($212,543); (16) Recovery Centers of King County ($2,866); (17) Safe
Homes ($35,942); (18) Seattle Indian Health Board ($48,463); (19) The Compass Center ($1,649,068);
(20) The Low Income Housing Institute ($543,553); (21) View Ranch Estates Water Association ($1,286);
(22) Virginia Mason Medical Center ($2,831,474).
     21
        See Exhibit A, No. 23 (Bread of Life Mission Association), No. 336 (YMCA of Greater Seattle).
It is our understanding that the application of the Archdiocesan Housing Authority (“AHA”) was
initially denied (Exhibit A, No. 9) on the basis that the AHA had not yet applied for a loan from the
Small Business Administration (“SBA”). The AHA subsequently did apply for such a loan, however,




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                      Opinions of the Office of Legal Counsel in Volume 26


administrators have discretion to favor religious applicants, or that those adminis-
trators have exercised what little discretion they do have in a manner that favors
religion.
    Finally, we would emphasize that although there is some risk that a court would
invalidate the provision of disaster assistance to the Academy—decisions under
the Establishment Clause are notoriously context-dependent and difficult to
predict—the facts provide an especially strong case for arguing that direct aid to
religious educational institutions is constitutional where made available on the
basis of genuinely neutral criteria, to an array of beneficiaries including both
educational and non-educational institutions. Indeed, there are arguments that
excluding religious organizations from disaster assistance made available to
similarly situated secular institutions would violate the Free Exercise Clause and
the Free Speech Clause. E.g., Church of Lukumi Babalu Aye v. City of Hialeah,
508 U.S. 520, 532 (1993) (“[a]t a minimum, the protections of the Free Exercise
Clause pertain if the law at issue discriminates against some or all religious
beliefs”); Employment Div. v. Smith, 494 U.S. 872, 877 (1990) (under the Free
Exercise Clause, the state may not “impose special disabilities on the basis of
religious views or religious status”); Rosenberger, 515 U.S. at 828 (“the govern-
ment offends the First Amendment when it imposes financial burdens on certain
speakers based on the content of their expression,” including religious expres-
sion).22 Moreover, four members of the Supreme Court have made clear that they
would sustain any program of aid that provides secular assistance, on the basis of
neutral criteria, to religious and secular schools alike, see Mitchell, 530 U.S. at
807-14 (plurality opinion), which is a narrower view of the Establishment Clause
than would be required to sustain the provision of FEMA aid to the Academy.

                                                                JAY S. BYBEE
                                                          Assistant Attorney General
                                                           Office of Legal Counsel

and its application was denied. Thus, its application is in the process of being reinstated. If the AHA’s
application is granted, it appears that not a single applicant that meets the objective criteria for funding
under the Act will have been denied eligibility for funding.
    22
       In July, for example, the Ninth Circuit—which might well hear any appeal involving a challenge
to the provision of disaster assistance to the Academy here—held that the State of Washington violated
the Free Exercise Clause of the First Amendment in denying public scholarship assistance to an
otherwise eligible college student on the ground that he intended to use the scholarship to pursue a
degree in theology. See Davey v. Locke, 299 F.3d 748 (9th Cir. 2002). There is an argument here, too,
that denying aid to the Academy solely on account of their religious faith would violate the Free
Exercise Clause.
    Editor’s Note: The Ninth Circuit’s decision in Davey v. Locke was subsequently reversed by Locke
v. Davey, 540 U.S. 712 (2004). In that decision, the Supreme Court ruled that the State of Washington
could decide not to fund instruction in devotional theology without violating the Free Exercise Clause,
because of the State’s “antiestablishment interest[]” in not “using tax funds to support the ministry,” for
which there was a long tradition of state constitutional prohibition. Id. at 722, 723.




                                                   132
     Authority of FEMA to Provide Disaster Assistance to Seattle Hebrew Academy


                                           Exhibit A

             Applications Received by FEMA in Response to the
                           Nisqually Earthquake

No   Disaster Applicant Name                              Pnp Elig Grant Amt
1     1361    Aberdeen School District                     N    Y    $13,097
2     1361    Aberdeen, City of                            N    Y    Withdrawn
3     1361    Adna School District No. 226                 N    Y    $16,203
4     1361    Alder Mutual Light Co                        N    Y    Withdrawn
5     1361    Allyn, Port of                               N    Y    $2,078
6     1361    Anacortes School District No. 103            N    Y    $39,610
7     1361    Anacortes, City of                           N    Y    $7,958
8     1361    Annapolis Water District                     N    Y    $24,254
9     1361    Archdiocesan Housing Authority               Y    N    Applicant in
                                                                     Process of Being
                                                                     Reinstated
10    1361    Auburn School District No. 408               N    Y    Withdrawn
11    1361    Bainbridge Island, City of                   N    Y    $2,458
12    1361    Bates Technical College                      N    Y    Withdrawn
13    1361    Bayview Manor Foundation                     Y    Y    $2,008
14    1361    Beaux Arts Village, Town of                  N    Y    Withdrawn
15    1361    Bellevue Community College                   N    Y    $1,227
16    1361    Bellevue, City of                            N    Y    $230,382
17    1361    Bethel School District No. 403               N    Y    $341,435
18    1361    Black Diamond City Fire Department           N    Y    Withdrawn
19    1361    Black Diamond, City of                       N    Y    $3,201
20    1361    Blaine School District No. 503               N    Y    $16,100
21    1361    Boistfort Valley Water Corporation           Y    Y    Withdrawn
22    1361    Bothell, City of                             N    Y    $470
23    1361    Bread of Life Mission Association            Y    Y    $23,463
24    1361    Bremerton School District                    N    Y    $101,876
25    1361    Bremerton, City of                           N    Y    $425,016
26    1361    Bridgeport School District                   N    Y    $15,515
27    1361    Bucoda, Town of                              N    Y    $3,141
28    1361    Burien, City of                              N    Y    $18,195
29    1361    Capitol Hill Housing Improvement Program     N    Y    $70,348




                                             133
                Opinions of the Office of Legal Counsel in Volume 26


No   Disaster Applicant Name                               Pnp Elig Grant Amt
30    1361   Carbonado Historical School District          N     Y     $59,799
31    1361   Carnation, City of                            N     Y     $3,305
32    1361   Cascadia Community College                    N     Y     Withdrawn
33    1361   Castle Rock School District No. 401           N     Y     Withdrawn
34    1361   Cedar Glen Community                          Y     Y     Withdrawn
35    1361   Cedar River Water & Sewer District            N     Y     $26,634
36    1361   Central Kitsap Fire & Rescue                  N     Y     $20,595
37    1361   Central Kitsap School District No. 401        N     Y     Withdrawn
38    1361   Centralia College                             N     Y     $9,006
39    1361   Centralia Public School District No. 401      N     Y     $29,431
40    1361   Centralia, City of                            N     Y     $42,326
41    1361   Chehalis School District No. 302              N     Y     $255,888
42    1361   Chehalis Tribe                                N     Y     $25,819
43    1361   Chehalis, City of                             N     Y     $34,119
44    1361   Clallam County Fire District No. 3            N     Y     $3,939
45    1361   Clear Lake Water District                     N     Y     $8,402
46    1361   Clover Park School District                   N     Y     $25,532
47    1361   Clover Park Technical College                 N     Y     Withdrawn
48    1361   Community Health Centers of King County       Y     Y     $11,910
49    1361   Cosmopolis                                    N     Y     $10,452
50    1361   Covington Water District                      N     Y     $3,880
51    1361   Cowlitz Cnty Fire Protection District No. 3   N     Y     $796
52    1361   Darrington School District                    N     Y     $25,253
53    1361   Darrington, Town of                           N     Y     Withdrawn
54    1361   Department of Corrections                     N     Y     $1,518,881
55    1361   Department of Labor & Industries              N     Y     $238,105
56    1361   Department of Licensing                       N     Y     $0
57    1361   Department of Social & Health Services        N     Y     $2,652,973
58    1361   Department of Veterans Affairs                N     Y     $16,936
59    1361   Dept. of Community, Trade, & Economic Dev.    N     Y     $14,584
60    1361   Des Moines, City of                           N     Y     $32,669
61    1361   Dieringer School District No. 343             N     Y     $17,988
62    1361   Eastside Fire & Rescue                        N     Y     $4,869
63    1361   Eatonville School District No. 404            N     Y     Withdrawn
64    1361   Eatonville, City of                           N     Y     $69,084




                                            134
     Authority of FEMA to Provide Disaster Assistance to Seattle Hebrew Academy


No   Disaster Applicant Name                                    Pnp Elig Grant Amt
65    1361    Elma, City of                                     N    Y   $917
66    1361    Employment Security Department                    N    Y   $34,227
67    1361    Enumclaw School District                          N    Y   $24,770
68    1361    Everett Community College                         N    Y   Withdrawn
69    1361    Everett, City of                                  N    Y   $30,603
70    1361    Evergreen State College                           N    Y   $350,537
71    1361    Everson, City of                                  N    Y   $1,653
72    1361    Federal Way Fire Dept.                            N    Y   $2,508
73    1361    Federal Way Public Schools                        N    Y   $44,060
74    1361    Ferndale School District                          N    Y   $19,895
75    1361    Fife School District                              N    Y   $21,587
76    1361    Fife, City of                                     N    Y   $25,078
77    1361    Fircrest, City of                                 N    Y   $8,879
78    1361    Franklin Pierce School District                   N    Y   $16,758
79    1361    Gig Harbor, City of                               N    Y   Withdrawn
80    1361    Graham Hill Mutual Water Co                       Y    Y   $36,594
81    1361    Grays Harbor Community Hospital                   Y    Y   Withdrawn
82    1361    Grays Harbor Fire Protection District No. 2       N    Y   $7,867
83    1361    Grays Harbor, County                              N    Y   $44,406
84    1361    Green River Community College                     N    Y   $283,842
85    1361    Group Health Cooperative of Puget Sound           Y    Y   $87,522
86    1361    Highline Community College                        N    Y   $8,385
87    1361    Highline School District No. 401                  N    Y   $465,625
88    1361    Highline Water District                           N    Y   $40,272
89    1361    Historic Seattle Preservation Development Auth.   N    Y   $202,594
90    1361    Hoquiam, City of                                  N    Y   $15,483
91    1361    Housing Authority of Clallam County               N    Y   $1,566
92    1361    Housing Authority of Seattle                      N    Y   $63,819
93    1361    Housing Authority of Tacoma                       N    Y   Withdrawn
94    1361    Housing Resources Group                           Y    Y   Withdrawn
95    1361    Interim Housing Association                       Y    Y   $6,885
96    1361    Issaquah, City of                                 N    Y   $110,792
97    1361    Joint Legislative Systems Committee               N    Y   $6,597
98    1361    Kalama, City of                                   N    Y   $19,663
99    1361    Kelso School District No. 458                     N    Y   Withdrawn




                                              135
                 Opinions of the Office of Legal Counsel in Volume 26


No    Disaster Applicant Name                               Pnp Elig Grant Amt
100    1361   Kelso, City of                                N     Y     $4,807
101    1361   Kent School District                          N     Y     $566,796
102    1361   Kent, City of                                 N     Y     $115,269
103    1361   King County Fire District No. 44              N     Y     Withdrawn
104    1361   King County Fire District No. 16              N     Y     Withdrawn
105    1361   King County Hospital District No. 1           N     Y     Withdrawn
106    1361   King County Housing Authority                 N     Y     Withdrawn
107    1361   King County International Airport             N     Y     Withdrawn
108    1361   King County Water District No. 90             N     Y     $7,123
109    1361   King, County                                  N     Y     $6,255,945
110    1361   Kirkland, City of                             N     Y     Withdrawn
111    1361   Kitsap County Fire District No. 12            N     Y     Withdrawn
112    1361   Kitsap County Fire District No. 7             N     Y     $2,224
113    1361   Kitsap Mental Health Services                 Y     Y     $6,718
114    1361   Kitsap, County of                             N     Y     $44,427
115    1361   La Conner School District No. 311             N     Y     $30,771
116    1361   Lacey, City of                                N     Y     $115,042
117    1361   Lake Alice Water Association                  Y     Y     $33,345
118    1361   Lake Stevens School District No. 4            N     Y     $14,683
119    1361   Lake Stevens Sewer District                   N     Y     $95,586
120    1361   Lake Washington School District               N     Y     Withdrawn
121    1361   Lake Washington Technical College             N     Y     $3,641
122    1361   Lakewood Fire District                        N     Y     $3,446
123    1361   Lakewood School District No. 306              N     Y     $15,548
124    1361   Lakewood Water District                       N     Y     $101,031
125    1361   Lakewood, City of                             N     Y     Withdrawn
126    1361   Lewis County Fire District No. 12             N     Y     $788
127    1361   Lewis County Fire District No. 14             N     Y     $784
128    1361   Lewis County Fire District No. 2              N     Y     Withdrawn
129    1361   Lewis County Fire District No. 5              N     Y     $5,276
130    1361   Lewis County Fire Protection District No. 9   N     Y     $788
131    1361   Lewis, County                                 N     Y     $49,271
132    1361   Longview, City of                             N     Y     Withdrawn
133    1361   Lower Columbia College                        N     Y     Withdrawn
134    1361   Lower Elwha Klallam Tribe                     N     Y     $2,783




                                             136
      Authority of FEMA to Provide Disaster Assistance to Seattle Hebrew Academy


No    Disaster Applicant Name                               Pnp Elig Grant Amt
135    1361    Lummi Nation                                 N    Y    $42,807
136    1361    Lynden Fire Department                       N    Y    $19,817
137    1361    Madrona Beach Water Company, Inc.            Y    Y    $42,043
138    1361    Makah Tribal Council                         N    Y    $11,598
139    1361    Manchester Water District                    N    Y    $44,950
140    1361    Maple Valley, City of                        N    Y    $35,395
141    1361    Mary M Knight School No. 311                 N    Y    $3,002
142    1361    Mason , County of                            N    Y    $127,535
143    1361    Mason County Fire District No. 6             N    Y    $788
144    1361    Mason County Public Utility District No. 3   N    Y    $230,502
145    1361    Mercer Island School District                N    Y    $0
146    1361    Mercer Island, City of                       N    Y    $7,109
147    1361    Meridian Heights Water District              Y    Y    $7,048
148    1361    Meridian School District                     N    Y    $3,091
149    1361    Milton, City of                              N    Y    $4,762
150    1361    Morton School District                       N    Y    Withdrawn
151    1361    Morton, City of                              N    Y    $10,865
152    1361    Mount Baker School District No. 507          N    Y    $3,693
153    1361    Mountlake Terrace, City of                   N    Y    $10,192
154    1361    Mukilteo School District                     N    Y    $25,608
155    1361    Mukilteo, City of                            N    Y    $6,017
156    1361    Museum Development Authority                 N    Y    $47,778
157    1361    Newcastle, City of                           N    Y    Withdrawn
158    1361    Nisqually Indian Tribe                       N    Y    $131,683
159    1361    Nooksack, City of                            N    Y    $1,460
160    1361    Normandy Park, City of                       N    Y    $835
161    1361    North Bend, City of                          N    Y    $5,384
162    1361    North Highline Fire District                 N    Y    Withdrawn
163    1361    North River School District                  N    Y    $8,739
164    1361    North Seattle Community College              N    Y    $6,244
165    1361    North Sound Regional Support Network         N    Y    Withdrawn
166    1361    North Thurston School District               N    Y    $90,258
167    1361    Northshore Utility District                  N    Y    $301,483
168    1361    Northwest Railway Museum                     Y    Y    Withdrawn
169    1361    Ocean Shores, City of                        N    Y    $8,126




                                               137
                 Opinions of the Office of Legal Counsel in Volume 26


No    Disaster Applicant Name                               Pnp Elig Grant Amt
170    1361   Odyssey, the Maritime Discovery Center        Y     Y     $15,768
171    1361   Office of the Attorney General                N     Y     Withdrawn
172    1361   Office of the Governor                        N     Y     Withdrawn
173    1361   Office of the Lieutenant Governor             N     Y     $4,705
174    1361   Office of the Secretary of State              N     Y     $835
175    1361   Office of the State Treasurer                 N     Y     Withdrawn
176    1361   Olympia School District No. 111               N     Y     $65,753
177    1361   Olympia, City of                              N     Y     $675,740
178    1361   Olympic College                               N     Y     Withdrawn
179    1361   Olympic View Water & Sewer District           N     Y     $0
180    1361   Onalaska School District No. 300              N     Y     $8,140
181    1361   Orting School District No. 344                N     Y     $2,144
182    1361   Orting, City of                               N     Y     $0
183    1361   Pacific Hospital Preservation & Dev. Auth     N     Y     $157,980
184    1361   Pacific, County of                            N     Y     $1,819
185    1361   Pe Ell, City of                               N     Y     $8,838
186    1361   Peninsula College                             N     Y     $93,971
187    1361   Peninsula Community Health Services           Y     Y     Withdrawn
188    1361   Peninsula School District No. 401             N     Y     Withdrawn
189    1361   Pierce College                                N     Y     $58,772
190    1361   Pierce County Fire District No. 17            N     Y     $1,479
191    1361   Pierce County Fire District No. 14            N     Y     $19,890
192    1361   Pierce County Fire District No. 18            N     Y     $23
193    1361   Pierce County Fire District No. 21            N     Y     $796
194    1361   Pierce County Fire District No. 5             N     Y     Withdrawn
195    1361   Pierce County Fire District No. 20            N     Y     Withdrawn
196    1361   Pierce County Fire District No. 23            N     Y     $19,695
197    1361   Pierce County Regional Support Network        N     Y     $0
198    1361   Pierce County Rural Library District          N     Y     $74,136
199    1361   Pierce Transit                                N     Y     Withdrawn
200    1361   Pierce, County of                             N     Y     $485,304
201    1361   Pike Place Preservation & Development Auth.   N     Y     $114,888
202    1361   Pinewood Glen Improvement Club                Y     Y     $2,911
203    1361   Pioneer Human Services                        Y     Y     $163,708
204    1361   Plymouth Housing Group                        Y     Y     $4,190




                                              138
      Authority of FEMA to Provide Disaster Assistance to Seattle Hebrew Academy


No    Disaster Applicant Name                              Pnp Elig Grant Amt
205    1361    Port Angeles, City of                        N    Y    $47,894
206    1361    Port Gamble S’klallam Housing Authority      N    Y    $12,856
207    1361    Port of Anacortes                            N    Y    $41,668
208    1361    Port of Chehalis                             N    Y    $8,398
209    1361    Port of Everett                              N    Y    $48,091
210    1361    Port of Olympia                              N    Y    $98,320
211    1361    Port of Port Angeles                         N    Y    $5,192
212    1361    Port of Seattle                              N    Y    $3,829,612
213    1361    Port of Tacoma                               N    Y    $164,646
214    1361    Port Orchard, City of                        N    Y    $27,478
215    1361    Providence Health System                     Y    Y    $212,543
216    1361    PUD #1 of Snohomish County                   N    Y    $38,401
217    1361    Puyallup School District                     N    Y    $194,400
218    1361    Puyallup, City of                            N    Y    $131,431
219    1361    Quinault Indian Nation                       N    Y    $1,980
220    1361    Rainier School District No. 307              N    Y    $350
221    1361    Rainier, Town of                             N    Y    $16,585
222    1361    Raymond, City of                             N    Y    $35,282
223    1361    Recovery Centers of King County              Y    Y    $2,866
224    1361    Redmond, City of                             N    Y    Withdrawn
225    1361    Renton School District                       N    Y    $0
226    1361    Renton Technical College                     N    Y    $35,134
227    1361    Renton, City of                              N    Y    $217,310
228    1361    Rochester School District 401                N    Y    $0
229    1361    Safe Homes                                   Y    Y    $35,942
230    1361    Sauk-Suiattle Indian Tribe of Washington     N    Y    $2,940
231    1361    Seattle-King County Department of Health     N    Y    Withdrawn
232    1361    Seattle Central Community College            N    Y    $39,047
233    1361    Seattle Chinatown Development Authority      N    Y    $34,704
234    1361    Seattle Indian Health Board                  Y    Y    $48,463
235    1361    Seattle Indian Services Commission           N    Y    $426,988
236    1361    Seattle School District No. 1                N    Y    $1,110,755
237    1361    Seattle, City of                             N    Y    $3,221,569
238    1361    Sedro Woolley, City of                       N    Y    $9,629
239    1361    Sentencing Guidelines Commission             N    Y    Withdrawn




                                               139
                 Opinions of the Office of Legal Counsel in Volume 26


No    Disaster Applicant Name                                   Pnp Elig Grant Amt
240    1361   Shelton School District No. 309                   N    Y   Withdrawn
241    1361   Shelton, City of                                  N    Y   $8,980
242    1361   Shoalwater Bay Indian Tribe                       N    Y   $1,871
243    1361   Shoreline Fire Department                         N    Y   Withdrawn
244    1361   Shoreline School District                         N    Y   $21,536
245    1361   Silverdale Water District No. 16                  N    Y   $16,152
246    1361   Skagit, County of                                 N    Y   Withdrawn
247    1361   Skokomish Indian Tribe                            N    Y   $4,396
248    1361   Snohomish County Emergency Management             N    Y   $4,398
249    1361   Snohomish County Fire District No. 17             N    Y   $23,087
250    1361   Snohomish School District                         N    Y   $22,072
251    1361   Snohomish, City of                                N    Y   $12,617
252    1361   Snohomish, County                                 N    Y   $74,291
253    1361   Snoqualmie Valley School District No. 410         N    Y   $135,794
254    1361   Snoqualmie, City of                               N    Y   $64,405
255    1361   Sound Transit                                     N    Y   $569,933
256    1361   South Bend School District No. 118                N    Y   $1,505
257    1361   South Bend, City of                               N    Y   $38,377
258    1361   South Kitsap School District No. 402              N    Y   $21,130
259    1361   South Prairie, Town of                            N    Y   $957
260    1361   South Puget Sound Community College               N    Y   $61,128
261    1361   South Seattle Community College                   N    Y   $4,781
262    1361   Southern Puget Sound Inter-Tribal Housing Auth.   N    Y   $1,529
263    1361   Southwest Suburban Sewer District                 N    Y   $43,149
264    1361   Squaxin Island Tribe                              N    Y   $1,268
265    1361   State Auditor’s Office                            N    Y   $1,370
266    1361   State Department of Financial Institutions        N    Y   Withdrawn
267    1361   State Department of General Administration        N    Y   $8,235,429
268    1361   Steilacoom Historical School District No. 01      N    Y   $277,798
269    1361   Steilacoom, City of                               N    Y   $21,859
270    1361   Sultan, City of                                   N    Y   $1,449
271    1361   Sumner School District                            N    Y   Withdrawn
272    1361   Sumner, City of                                   N    Y   $7,943
273    1361   Suquamish Indian Tribe                            N    Y   $10,734
274    1361   Swedish Health Services                           Y    Y   Withdrawn




                                            140
      Authority of FEMA to Provide Disaster Assistance to Seattle Hebrew Academy


No    Disaster Applicant Name                              Pnp Elig Grant Amt
275    1361    Swinomish Tribal Community                   N    Y    $4,819
276    1361    Tacoma Community College                     N    Y    $138,448
277    1361    Tacoma Department of Public Utilities        N    Y    Withdrawn
278    1361    Tacoma Metro Parks                           N    Y    $5,875
279    1361    Tacoma School District No. 10                N    Y    $225,927
280    1361    Tacoma, City of                              N    Y    $87,310
281    1361    Taholah School District No. 77               N    Y    $7,825
282    1361    The Compass Center                           Y    Y    $1,649,068
283    1361    The Low Income Housing Institute             Y    Y    $543,553
284    1361    Thurston County Fire District No. 3          N    Y    $4,839
285    1361    Thurston County Fire District No. 6          N    Y    Withdrawn
286    1361    Thurston, County                             N    Y    $381,389
287    1361    Timberland Regional Library                  N    Y    $6,909
288    1361    Timberlands Regional Support Network         N    Y    Withdrawn
289    1361    Toledo, City of                              N    Y    $1,967
290    1361    Tukwila, City of                             N    Y    $53,076
291    1361    Tulalip Tribes Housing Authority             N    Y    $7,016
292    1361    Tulalip Tribes Inc.                          N    Y    $3,283
293    1361    Tumwater School District                     N    Y    $80,924
294    1361    Tumwater, City of                            N    Y    $55,628
295    1361    University of Washington                     N    Y    $2,826,851
296    1361    University Place, City of                    N    Y    Withdrawn
297    1361    Valley Water District                        N    Y    $59,880
298    1361    Vashon Island School District                N    Y    $6,738
299    1361    Vashon Park District                         N    Y    $17,267
300    1361    View Ranch Estates Water Association         Y    Y    $1,286
301    1361    Virginia Mason Medical Center                Y    Y    $2,831,474
302    1361    Wash. State Major League Baseball Stadium    N    Y    $0
303    1361    Washington Department of Health              N    Y    Withdrawn
304    1361    Washington Dept. of Fish & Wildlife          N    Y    $40,657
305    1361    Washington Dept. of Information Services     N    Y    Withdrawn
306    1361    Washington Dept. of Natural Resources        N    Y    $134,437
307    1361    Washington Dept. of Transportation           N    Y    $266,563
308    1361    Washington State Arts Commission             N    Y    Withdrawn
309    1361    Washington State Board of Accountancy        N    Y    Withdrawn




                                               141
                 Opinions of the Office of Legal Counsel in Volume 26


No    Disaster Applicant Name                                Pnp Elig Grant Amt
310    1361   Washington State Code Reviser’s Office         N    Y     $0
311    1361   Washington State Convention & Trade            N    Y     $199,059
312    1361   Washington State Dept. of Agriculture          N    Y     $6,517
313    1361   Washington State Dept. of Ecology              N    Y     $21,078
314    1361   Washington State Dept. of Retirement Systems   N    Y     Withdrawn
315    1361   Washington State Historical Society            N    Y     Withdrawn
316    1361   Washington State House of Representatives      N    Y     $42,946
317    1361   Washington State Law Library                   N    Y     $77,365
318    1361   Washington State Library                       N    Y     $46,931
319    1361   Washington State Liquor Board                  N    Y     $0
320    1361   Washington State Military Department           N    Y     $2,077,599
321    1361   Washington State Office of Financial Mgmt.     N    Y     $4,472
322    1361   Washington State Parks & Recreation            N    Y     $393,085
323    1361   Washington State Patrol                        N    Y     $76,993
324    1361   Washington State Redistricting Commission      N    Y     Withdrawn
325    1361   Washington State Senate                        N    Y     $8,046
326    1361   Westport, City of                              N    Y     $2,386
327    1361   Whatcom, County of                             N    Y     $8,197
328    1361   White Pass School District                     N    Y     $11,112
329    1361   White River School District No. 416            N    Y     Withdrawn
330    1361   Wilkeson, City of                              N    Y     $66,081
331    1361   Winlock, City of                               N    Y     $17,139
332    1361   Woodinville Water District                     N    Y     $13,572
333    1361   Woodinville, City of                           N    Y     $23,782
334    1361   Yelm Community Schools District No. 2          N    Y     $2,553
335    1361   Yelm, City of                                  N    Y     Withdrawn
336    1361   YMCA of Greater Seattle                        Y    Y     $0




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