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AGO 1955 No. 169 - December 03, 1955
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Don Eastvold | 1953-1956 | Attorney General of Washington

EXCUSE OF STUDENTS ON RELIGIOUS GROUNDS FROM PHYSICAL, DENTAL, AND X-RAY EXAMINATIONS AND FROM REQUIRED HEALTH INSTRUCTION

Pupils of the public schools should not be excused from physical, dental, and x-ray examinations or from health instruction because of their religious beliefs.

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                                                                December 3, 1955

Honorable John J. O'Connell
Prosecuting Attorney
Pierce County
Tacoma, Washington                                                                                                              Cite as:  AGO 55-57 No. 169


Attention:  Mr. Thomas R. Garlington, Deputy

Dear Sir:

            You have requested an opinion from this office on the following question:

            May school authorities excuse pupils in the public schools from physical, dental and X-ray examinations, as well as from the required health instruction classes, for religious reasons?

            Our opinion is in the negative.

                                                                     ANALYSIS

            The statutory mandate for compulsory school attendance carries with it an obligation to take reasonable precautions to safeguard the health of the children.

            RCW 28.31.070 provides as follows:

             [[Orig. Op. Page 2]]

            "A first class school district may appoint a practicing physician, resident of the school district, who shall be known as the school district medical inspector.  He shall decide for the board of directors all questions of sanitation and health affecting the safety and welfare of the public schools of the district; he or his authorized deputies shall make monthly inspections of each school in the district and report their condition to the board of education and to the board of health:Provided, That children shall not be required to submit to vaccination against the will of their parents or guardians."

            RCW 28.31.080 provides:

            "The board of directors of any school district of the second or third class, in addition to other powers and duties, may employ a regularly licensed physician or a licensed public health nurse, for the purpose of protecting the health of the children in the district."

            These statutes authorize school districts to appoint medical inspectors who are given rather broad authority in the field of sanitation and health.  It seems clear that the purpose of these laws is to enable the individual districts to take precautions calculated to minimize the incidence of disease in the schools.  Inspections are made of school facilities to make certain that high standards of sanitation are met.  In addition many districts have a program of regular, routine physical examinations of all pupils and school employees.

            Attempts to avoid compliance with regulations requiring physical, dental and X-ray examinations on the ground that such compulsory examinations violated certain constitutional rights and privileges have generally been unsuccessful.  79 C.J.S. Schools and School Districts, secs. 452 and 453; 164 A.L.R. 984, and 25 A.L.R. (2d) 1415.

             [[Orig. Op. Page 3]]

            In 1920 this office advised the superintendent of public instruction that school district medical inspectors have authority to make dental inspections of pupils in public schools.  InState ex rel. Holcomb v. Armstrong, 39 Wn. (2d) 860, a university student claimed that the required chest X-ray examination violated the religious freedom guaranteed by the first amendment of the constitution of the United States.  In rejecting this contention, the court stated at page 864:

            "* * * we cannot say the questioned regulation violates any constitutional inhibition.  Here the public interest threatened is the health of all of the students and employees of the university.  It may lawfully be protected.  In this case, it is of more importance than the right of appellant which is infringed.  The danger to this interest is clear and present, grave and immediate.  Infringement of appellant's rights is a necessary consequence of a practical attempt to avoid the danger.  * * *"

            Based upon the above reasoning and authority we do not believe that students in the public schools should be excused from the required dental, physical or X-ray examinations aimed at discovering infectious and contagious diseases for the ultimate protection of all the students and school employees.

            Chapter 28.05 RCW prescribes the common school curriculum, and among the required courses are physiology and hygiene.  It should be noted that physical education is also listed as a required course.  However, with respect to physical education the legislature has specifically provided that students may be excused on account of physical disability or religious beliefs.  The fact that there is no corresponding provision for excusing students from instruction in physiology and hygiene seems significant.

            InApplication of Auster, 100 N.Y.S. (2d) 60, the court considered the constitutionality of the New York State Education Law.  This act provides that the course of study shall provide instruction in "arithmetic, reading, spelling, writing, the English language, geography, United States history, civics, hygiene, physical training and the history of New York state."  The respondent urged that the court had no right to require his boy to receive systematic secular education on the ground that it was forbidden by the laws of his religion, which in turn were protected by the constitution of the United States.  In rejecting this contention, the court stated at page 63:

             [[Orig. Op. Page 4]]

            "It appears to be the plain duty of this Court to enforce the provisions of the State Education Law.  This law was enacted to protect and to strengthen the youth of our state, to insure the adequate preparation of our children for useful and productive lives, and to set up standards of education which the Legislature, in its wisdom, determined to be the minimum for each minor from seven to sixteen years of age."

            See, also,Commonwealth v. Beiler, Pa. 79 Atl. (2d) 134.

            In 1950 the New York legislature amended the state education law to provide that a pupil may be excused from the study of health and hygiene by the Board of Regents if such study conflicts with the religion of his parent or guardian.

            We recognize that the area of apparent conflict between the required course of study and religious beliefs is a particularly sensitive one.  The infringement of religious freedom should not be regarded lightly.  Religious freedom is a priceless heritage, the safeguards of which shall apply with equal force to all groups alike.  However, we sincerely believe that the problem is one to be resolved by the legislature, as was done in the physical education courses.

            We conclude that pupils in the public schools may not be excused from required physical, dental and X-ray examinations because of their religious beliefs.  We do not believe that pupils may be excused from instruction in health and hygiene courses included in the required course of study under existing law.

            We hope the foregoing analysis will prove helpful.

Very truly yours,

DON EASTVOLD
Attorney General


ANDY G. ENGEBRETSEN
Assistant Attorney General

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