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March 31, 1971
Honorable Booth Gardner
State Senator, 26th District
Olympia, Washington 98501 Cite as: AGLO 1971 No. 57 (not official)
By letter dated March 24, 1971, you requested our opinion regarding the constitutionality and effect of Senate Bill No. 577 should this bill be enacted into law in its present form.
In response, we are enclosing herewith a copy of our letter dated February 2, 1971, to State Senator Jack Metcalf, the sponsor of the present bill, in which we expressed our evaluation of the substantially similar provisions of Senate Bill No. 30. Specifically, we there proposed certain alterations in the original terms of Senate Bill No. 30 and then concluded that if these alterations were all made, the bill would be constitutionally defensible in all respects save only the possibility of a constitutional due process challenge against § 6 thereof based upon the severity of the sanction therein imposed. This section, like § 6 of Senate Bill No. 577, would provide that:
"No student who has been expelled under the provisions of this act shall be enrolled in any institution of higher learning for five years from the date of expulsion."
Speaking of this provision we said:
". . . The severity of the sanctions imposed may constitute a denial of equal protection of the law. It has been stated that a statute denies an individual the right to the equal protection of the law guaranteed by the Fourteenth Amendment to the United States Constitution where it subjects him to an unreasonable and arbitrary exercise of governmental power by assessing penalties so severe and oppressive as to be wholly disproportionate to the offense committed or actual damages sustained. 36 Am.Jur.2d Forfeitures and Penalties, § 54 (1968), St. Louis, I. M. & So. Ry. Co. [[Orig. Op. Page 2]] v. Williams, 251 U.S. 63 (1919). We have discovered only a few cases that discussed this question. Nevertheless, we believe it prudent to apprise you of the possibility that a court might find Senate Bill 30 to be unconstitutional because of the severity of the sanctions it imposes on violators of its provisions."
Since § 6 of the present bill and § 6 of Senate Bill No. 30 are identical, the foregoing constitutional analysis is equally applicable to both bills. As for the remainder of Senate Bill No. 577, the only changes which have been made in it as compared to our recommended version of Senate Bill No. 30 are three deletions of the words "intentionally" or "intended," and a possibly inadvertent omission of the word "officer" after the word "hearing" § 5. These changes are indicated in red ink in the copy of Senate Bill No. 577 which we are returning herewith.
We must advise you that the three omitted references to "intentionally" or "intended" would very much undermine the constitutionality of this proposal from a due process standpoint, and we would therefore strongly recommend that these words be restored to the bill if it is to be enacted. Likewise, the omitted word "officer" in § 5 should be restored, but here simply for the purposes of clarity rather than constitutionality.
Next, we note that you have made reference in your letter to the absence of any court hearing on the question of whether or not a violation of § 3 has occurred prior to the expulsion of an accused student. The absence of a court hearing at this point in the proceedings is not analogous, however, to the total absence of any sort of a hearing prior to "immediate expulsion," a constitutional infirmity in the bill relating to student conduct discussed in our opinion dated September 23, 1970, to State Senator Elmer C. Huntley, copy enclosed. See, also, a similar disposition of House Bill No. 234 (1969), as expressed in our opinion dated March 3, 1969, to State Representative Marjorie Lynch, copy enclosed.
Procedural due process does not necessarily require that the fair hearing given to a person charged with a statutory violation be held in, or before, a court of law. See, 16 Am.Jur.2d, Constitutional Law, § 581, (pp. 986-987) and authorities cited therein. Thus, as indicated by our [[Orig. Op. Page 3]] implicit approval of the procedures set forth in § 5 of Senate Bill No. 30 in our letter dated February 2, 1971, to Senator Metcalf, supra, the bill in question cannot be characterized as unconstitutional by reason of the fact that the hearing procedure which it would provide for is administrative rather than judicial.
Lastly, somewhat aside from your inquiry regarding the constitutionality of Senate Bill No. 577, you have also asked whether ". . . this bill adds any provision not now present in Washington law, . . ." Most certainly, the technical answer to this question would have to be in the affirmative, for there simply is no statute which contains the same provisions as Senate Bill No. 577 presently in effect in this state.
On the other hand, of course, many of the affected institutions of higher education, both public and private, already have promulgated various regulations governing student conduct by institutional rule. To this extent, it may well be that Senate Bill No. 577 would partially complement, or in some instances, perhaps, alter, the procedures followed by these institutions in disciplining their students under their own rules.
In view of the existence of such procedures under currently effective institutional rules and regulations, one might question whether the enactment of legislation such as Senate Bill No. 577 is at all necessary; however, this is a policy judgment for the legislature to make. Our legal answer to your secondary question must be that this bill, if enacted, would add substantive provisions to the statutes of this state which are not presently to be found there.
It is hoped that the foregoing will be of some assistance to you.
Very truly yours,
FOR THE ATTORNEY GENERAL
Philip H. Austin
Deputy Attorney General