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AGLO 1971 No. 034 - March 03, 1971
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Slade Gorton | 1969-1980 | Attorney General of Washington
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                                                                   March 3, 1971
Honorable Dale E. Hoggins
State Representative, 21st District
Legislative Building
Olympia, Washington 98501
                                                                                            Cite as:  AGLO 1971 No. 34 (not official)
Dear Sir:
            This is written in response to your recent request for our opinion on the constitutionality of House Bill No. 419, in the light of certain provisions of our state and federal constitutions relating to, or otherwise inhibiting, the use of public funds in aid of private educational institutions.
            An appropriate starting point for a brief summary of this bill is § 1, thereof, which contains a number of legislative findings.  The general gist of these findings is (1) that a substantial share of the burden of educating elementary and secondary school pupils in this state is borne by "nonpublic schools"1/ and (2) that because of this, the state's costs in performing its responsibilities for the education of these persons is less than it otherwise would be.  In addition, this section also contains a somewhat more specific finding (in terms of the concept involved in the remainder of the bill), as follows:
            "(5) That this state has the right and freedom, in the fulfillment of its duties, to enter into contracts for the purchase of needed services with persons or institutions whether public or nonpublic, sectarian or nonsectarian; . . ."
             [[Orig. Op. Page 2]]
            Section 2 is a definitions section, one subsection of which has already been noted; others will be noted later.  Thus, the first substantive section of the bill is § 3, which would establish a "nonpublic elementary and secondary education fund" within the state treasury.  Into this fund would be paid five percent of the receipts obtained from cigarette excise taxes imposed under various existing statutes2/ - to the extent that any of such tax revenues are not otherwise committed for debt service on certain bond issues.3/   The fund would then be made available to the state superintendent of public instruction by legislative appropriation
            ". . . for the purpose of purchasing secular educational service consisting of courses solely in the following subjects:  Mathematics, modern foreign languages, physical science, and physical education:  . . ."
            Such services would be purchased by the state superintendent from various "nonpublic elementary and secondary schools"4/ on an "actual expense" reimbursement basis under contracts executed pursuant to the following provisions of § 4:
            ". . . the superintendent of public instruction . . . shall . . . make contracts and execute all instruments necessary for the purchase of secular educational service under this act.  . . ."
            This same section would also provide that all expenses incurred in connection with the act would be paid solely out of the "nonpublic elementary and secondary education fund" as above described, and that
            ". . . no money raised for the support of the public schools of this state shall be used in connection with the administration of this act."
             [[Orig. Op. Page 3]]
            Finally, by way of establishing controls over the uses to be made of this fund, § 5 (1) of the bill would provide that:
            "(1) Requests for reimbursement in payment for the purchase of secular educational service under this act shall be made on such forms and under such conditions as the superintendent of public instruction shall prescribe.  Any nonpublic school seeking such reimbursement shall maintain such accounting procedures, including maintenance of separate funds and accounts pertaining to the cost of secular educational service, as to establish that it actually expended in support of such service an amount of money equal to the amount of money sought in reimbursement.  Such accounts shall be subject to audit by the state auditor.  Reimbursement payments shall be made by the superintendent of public instruction in four equal installments payable on the first day of September, December, March and June of the school term following the school term in which the secular educational service was rendered."
            There are four separate sections of our state Constitution which either directly relate to, or otherwise inhibit the use of public funds to aid private educational institutions.  In pertinent part, these sections read as follows:
            Article IX, § 2:
            ". . . the entire revenue derived from the common school fund and the state tax for common schools shall be exclusively applied to the support of the common schools."
            Article I, § 11 (Amendment 34):
            ". . .  No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment:  . . ."
            Article IX, § 4:
            "All schools maintained or supported wholly or in part by the public funds shall be forever free from sectarian control or influence."
             [[Orig. Op. Page 4]]
            Article VIII, § 5:
            "The credit of the state shall not, in any manner be given or loaned to, or in aid of, any individual, association, company or corporation."
            In addition, under the doctrine of such cases as Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940), any state legislation such as is proposed by House Bill No. 419 must also comply with the First Amendment to the United States Constitution, which provides:
            "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." (Emphasis supplied.)
            Because the programs contemplated by House Bill No. 419 would be funded solely out of cigarette excise tax revenues not comprising any part of the common school fund or of tax revenues imposed for the support of common schools, it seems evident to us that the first of the four state constitutional prohibitions above noted would not be violated by this bill.  With regard to the second and third of these state prohibitions (as well as the single federal limitation), it is evident that each of these represents an obstacle to the constitutionality of the bill only to the extent that the bill contemplates payments of state funds to such "nonpublic schools" as are either directly or indirectly controlled or operated by some sectarian religious institution.  However, on the other hand, so long as the participating school is a private rather than a public institution, Article VIII, § 5, supra, would apply regardless of the school's nonsectarian character.  Accord, Rands v.Clarke County, 79 Wash. 152, 139 Pac. 1090 (1914).
            A second factor regarding these constitutional provisions which must be noted and understood relates particularly to Article I, § 11 (Amendment 34) and Article IX, § 4 of our state Constitution.  As interpreted by the Washington court, these prohibitions are considerably more stringent than is Amendment I to the federal Constitution, so that even if a bill such as House Bill No. 419 could pass muster in a test under this federal provision, it would not necessarily be thereby validated under the applicable state constitutional provisions.  Compare Everson v. Board of Education, 330 U.S. 1, 91 L.Ed. 711, 67 S.Ct. 504 (1946), upholding the public  [[Orig. Op. Page 5]] busing of students to parochial schools under the First Amendment, with Visser v. Nooksack Valley School Dist., 33 Wn.2d 699, 207 P.2d 198 (1949), invalidating a similar program as violating our state Constitution.  At p. 711 of its decision in Visser, our court expressed itself on this point as follows:
            "Our own state constitution provides that no public money or property shall be used in support of institutions wherein the tenets of a particular religion are taught.  Although the decisions of the United States supreme court are entitled to the highest consideration as they bear on related questions before this court, we must, in light of the clear provisions of our state constitution and our decisions thereunder, respectfully disagree with those portions of the Everson majority opinion which might be construed, in the abstract, as stating that transportation, furnished at public expense, to children attending religious schools, is not in support of such schools.  While the degree of support necessary to constitute an establishment of religion under the first amendment to the Federal constitution is foreclosed from consideration by reason of the decision in the Everson case, supra, we are constrained to hold that the Washington constitution, although based upon the same precepts, is a clear denial of the rights herein asserted by appellants."
            With these two matters in mind, we next believe it appropriate to make reference to the well-established principle of statutory construction that where a statute is open to two constructions, one of which will render it constitutional and the other unconstitutional or open to grave doubt in this respect, the former construction and not the latter is to be adopted.  Soundview Pulp Co. v. Taylor, 21 Wn.2d 261, 268, 150 P.2d 839 (1944), and cases cited therein.  House Bill No. 419, if enacted, would obviously have to be interpreted and administered within the purview of this rule ‑ to the end that only such contractual purchases of "secular educational service" as might be paid for out of public funds on a basis consistent with each of the applicable constitutional provisions ‑ state and federal ‑ could be said to be authorized.
             [[Orig. Op. Page 6]]
            Clearly none of these constitutional provisions prohibit legitimate and bona fide contracts between state agencies and private institutions, religious or otherwise.  See, e.g., our opinion dated October 10, 1956, to the vice‑president of the University of Washington, copy enclosed, in which (after quoting the pertinent language of Article I, § 11 (Amendment 34), supra, we said with respect to a proposed rental of Husky Stadium to a religious organization:
            "It is our opinion that the renting of these facilities for such a purpose would not be in violation of . . . the Constitution.  We base this opinion upon a close examination and study of this amendment.  It is readily apparent from reading the same that its purpose is to prevent the free use of public funds or facilities for the dissemination of religious teachings.  The rental of the University of Washington Stadium for this purpose, or for any other purpose, is not violative of the intent of this amendment to the constitution.  The public property here involved is not being applied, at taxpayers' expense, to religious worship.  It is being rented for the purpose of raising revenue, and the fact that the renting group is religious in character would not seem to be material in so far as the Constitution is concerned."
            Accord, Gruen v. State Tax Commission, 35 Wn.2d 1, 211 P.2d 651 (1949), in the case of Article VIII, § 5, supra.  However, while it thus may be said that payments of state funds to either sectarian or nonsectarian private schools on a contractual basis for services legitimately purchased is not unconstitutional, merely labeling an expenditure as contractual in nature does not make it so.
            This brings us, then, to the obvious crux of the matter ‑ and that is not so much whether House Bill No. 419 is constitutional, per se, as it is whether its enactment would truly authorize the degree and extent of state financial assistance to "nonpublic" schools which at least some of its sponsors and proponents may have in mind.  If this bill is enacted, this office will no doubt be called upon by the state superintendent of public instruction for guidance and counsel in the execution of the various purchase contracts which are contemplated by the bill.  At that time, it will be necessary for us to review the facts of each case in order to determine such matters as the sufficiency of the contracting private school's performance as contractual consideration  [[Orig. Op. Page 7]] (necessary for the formation of a valid "purchase" contract); and the degree of control retained by the state over the performance of those services for which payments are to be made (for the purpose of attempting to obtain compliance with Article IX, § 4, supra).5/   And if it then develops that the bill is to be utilized merely as a vehicle for funding the operation of "nonpublic schools" pursuant to arrangements which are contracts of purchase in form only, it will undoubtedly be necessary for us then to advise the state superintendent against proceeding without first having the matter tested in court.
            Within the context of this expression of a probable necessity (because of the diverse scope of the bill) for litigation to test the constitutionality of at least some of the procedures which may be envisioned by the sponsors and proponents of House Bill No. 419, should it be enacted into law, an additional factor presently affecting our ability to express any sort of a definitive opinion as to the over-all constitutionality of this bill is that of pending litigation involving similar statutes in other jurisdictions.  As you may be aware, House Bill No. 419 is patterned closely after measures which have recently been enacted in a number of other states including several, Pennsylvania, Rhode Island, Connecticut and Louisiana, where litigation has already taken place.  Lower court rulings going "both ways" on the basic constitutional issues have been obtained, and the matter is now pending before the supreme court on the basis of appeals taken in the following cases:
            (1) Lemon v. Kurtzman, 310 F.Supp. 35 (D.C. E.D. Pa. 1969), prob. jur. noted 397 U.S.1034, 90 S.Ct. 1354, 25  [[Orig. Op. Page 8]] L.Ed.2d 646.  Here, a three‑judge United States District Court in Pennsylvania upheld 2 to 1 the Pennsylvania Nonpublic Elementary And Secondary Education Act against attack on First Amendment grounds.  This statute is almost identical to House Bill No. 419 with the payment of nonpublic teachers' salaries, textbooks and instructional materials made by the state through the racetrack admissions tax.  The court dismissed the case, finding that the fact that the vast majority of schools which would contract were sectarian schools did not support the conclusion of law that the purpose was to support religion.  Instead, the court accepted the stated legislative intent, allowing payment only for secular courses even though the payee may be a religious institution.  The primary effect was neither to advance nor to inhibit religion and there was a secular legislative purpose.  A strong dissent was registered.
            (2) DiCenso v. Robinson, 316 F.Supp. 112 (D.C., D. R.I. 1970), stay order for appeal issued 399 U.S. 918, 90 S.Ct. 2225, 26 L.Ed.2d 785.  Here, a three‑judge United States District Court in Rhode Island overturned the Rhode Island Salary Supplement Act which provided for payments to teachers of secular subjects in nonpublic elementary schools from state funds.  The decision was based upon the establishment clause of the First Amendment, with the statutory scheme similar in force and effect to House Bill No. 419.  Conceding that there may have been a secular purpose to this statute, the court held that the statute had a primary effect that both advanced and inhibited religion.  "Primary" was defined as "essential" or "fundamental" rather than "first in order of importance."  The act had two significant effects:  on the one hand, it aided the quality of secular education; on the other, it provided support to a religious enterprise.  In this regard, the court commented that judicial efforts to decide which of these effects is "the primary effect" are likely to be no more satisfactory "than efforts to rank the legs of a table in order of importance."
            (3) Johnson v. Sanders, 319 F.Supp. 421 (D.C., D. Conn. 1970), holding that the Connecticut Nonpublic School Secular Education Act violated the establishment clause of the First Amendment.  Again, this was a three‑judge district court decision ruling on a statute almost identical to House Bill No. 419.  Here the court, although acknowledging that the statute in question would promote the education of children attending contracting schools, thereby contributing to the general welfare, went on to observe as follows:
             [[Orig. Op. Page 9]]
            ". . .  But the primary effect of the type of 'promotion' prescribed would be much more extensive, transforming a unitary public school system into a dual one which partially incorporates participating private schools as its administrative appendages."  (319 F.Supp. 426.)
            The court then held that this would create excessive government involvement which would, in turn, mean that the private schools involved would have to become public for more purposes than the church could wish.  Furthermore, the court said
            ". . .  'Certainly it would be anomalous if the First Amendment required the State to exclude religion from the public schools but at the same time to support an entire separate school system in order to facilitate the teaching of religion.'  . . ."  (319 F.Supp. 435.)
            The first two of these three cases was argued to the supreme court earlier during this week, while the third is still awaiting argument.  In the case of the fourth state above mentioned, Louisiana, the outcome with respect to the constitutionality of legislation such as House Bill No. 419 was also negative ‑ this time in consequence of a state court decision in which both federal and state constitutional prohibitions were invoked.  See, Seegers v. Parker, La. 241 So.2d 213 (1970).  One of the state constitutional provisions which was there involved, Louisiana Constitution, Article IV, § 8, was quite similar in language to our own Article I, § 11 (Amendment 34), supra, and another, Louisiana Constitution, Article XII, § 13, stated (somewhat like our Article IX, § 4, supra) that:
            "No appropriation of public funds shall be made to any private or sectarian school.  . . ."
            Of course, the present pendency of the Pennsylvania, Rhode Island and Connecticut cases before the United States Supreme Court6/ places us in much the same position with respect to the over-all constitutionality of House Bill No. 419 as we were in earlier this session in the case of House Bill  [[Orig. Op. Page 10]] No. 6, relating to the mandatory busing of certain public school pupils.  There, also, we were presented with an opinion request which raised constitutional issues identical to those involved in cases pending before the supreme court ‑ thus necessitating the following response:7/
            "Obviously, until the supreme court has spoken in these two cases, no definitive answer can be given by this office with regard to the constitutionality of House Bill No. 6, supra, or any of the other similar bills which are presently pending before the legislature.  Therefore, consistent with our long-standing policy of not attempting to pass, in an opinion, upon any questions presently pending before the courts, we must respectfully decline to issue an opinion on the question which you have presented.  In so advising you, we recognize a practical need for guidance on the part of the legislature during its current session ‑ and we will be happy to meet with you or any other members of the legislature for discussions on an informal basis regarding the constitutional risks involved in any of the various approaches to mandatory bussing which are currently being considered.  However, until the United States Supreme Court has disposed of its pending cases regarding this question, we will simply not be able to express any formal opinion as to the constitutionality of any of the pending proposals."
            Likewise, in the final analysis, this must be our basic response to your present opinion request.  To the extent that House Bill No. 419 is regarded as authorizing only true, legally enforceable contracts of purchase of legitimate secular educational services which the state, itself, is empowered to provide for its citizens, we believe its provisions would be constitutionally defensible.  However, in so far as the bill may contemplate something more than this ‑ i.e., "contracts" based solely upon the proposition that nonpublic schools in this state, by their very existence, are  [[Orig. Op. Page 11]] performing a public service justifying state financial assistance on a controlled basis to pay for certain of their secular educational activities ‑ no complete and definitive opinion can be given at this time either that this approach is constitutional or that it is not.

            It is hoped, nevertheless, that the foregoing analysis and discussion will be of some assistance to you and the rest of the legislature in its deliberations on this bill.
Very truly yours,
Philip H. Austin
Deputy Attorney General
Thomas L. Anderson
Assistant Attorney General
                                                         ***   FOOTNOTES   ***
1/Defined in § 2 as meaning:
            ". . . any school, other than a public school within the state of Washington, wherein a resident of this state may legally fulfill the compulsory school attendance requirements of chapter 28A.27 RCW or as otherwise provided by law."
2/Chapters 82.24, 28A.47, 73.32, and 73.33 RCW.
3/See, opinion dated February 8, 1971, to State Representative Robert F. Goldsworthy, in which the present state of such commitments was described.
4/Ibid.  Note 1.
5/It will be recalled that under the bill, only secular educational services are to be purchased; and further, under § 5, supra, an auditing procedure is to be established in order to insure that the school from which such a service is purchased ". . . actually expended in support of such service an amount of money equal to the amount of money sought in reimbursement.  . . ."  With regard to the extent to which an approach such as this has been successful in overcoming constitutional objections, compare Crain v. Walker, 222 Ky. 828, 2 S.W.2d 654 (1928), with Williams v. Board of Trustees, Etc. 173 Ky. 708, 191 S.W. 507 (1917); see, also, California State Employees Association v. Williams, 6 CA 3rd 554 [[6 Cal. App. 3rd 554]](1970).
6/No appeal appears to have been taken in the Louisiana case.
7/See letter dated February 8, 1971, to State Representative Paul Kraabel.
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