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AGO 1979 No. 18 - September 26, 1979
AGO Opinion Header Image
Slade Gorton | 1969-1980 | Attorney General of Washington

DISTRICTS ‑- SCHOOLS ‑- RULES OF PROCEDURE ‑- EVALUATION OF TEACHING MATERIALS BY SCHOOL BOARDS

(1) Evaluations of teaching materials by a school district in public hearing pursuant to RCW 28A.58.758(2)(f) may be conducted either by the school board or by the administrative staff of a school district. 

(2) RCW 28A.58.758(2)(f) and RCW 28A.58.103(1)(e) do not provide alternative means for processing complaints registered by parents, guardians or custodians of students with respect to teaching materials deemed by them to be objectionable.

(3) Films used for teaching purposes are included within the term "teaching materials" as used in RCW 28A.58.758(2)(f).

(4) The legislature has not prescribed any particular rules of procedure to govern the conduct of an evaluation of teaching materials in public hearing pursuant to RCW 28A.58.758(2)(f); instead, each school district board of directors should be viewed as having the power to establish its own rules of procedure within the confines of judicially approved standards.

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                                                            September 26, 1979

Honorable Kent Pullen
State Senator, 47th Dist.
22844 172nd Avenue S.E.
Kent, Washington 98031

                                                                                                                 Cite as:  AGO 1979 No. 18

Dear Sir:

            By letter previously acknowledged you requested the opinion of this office on several questions involving the processing by a school district of complaints regarding teaching materials.  We paraphrase your questions as follows:

             [[Orig. Op. Page 2]]

            (1) Does RCW 28A.58.758(2)(f) require a school board to conduct an evaluation of teaching materials in public hearing or may the evaluation be conducted by the administrative staff of the school district?

            (2) Does RCW 28A.58.758(2)(f) require that the evaluation of teaching materials in the case of complaints by parents take place in public hearing or, instead, may an alternative system of evaluation be adopted by a school board pursuant to RCW 28A.58.103(1)(e)?

            (3) Are films used for teaching purposes included within the term "teaching materials" as it used in RCW 28A.58.758(2)(f)?

            (4) What rules of procedure govern the conduct of an evaluation of teaching materials in public hearing pursuant to RCW 28A.58.758(2)(f)?

            We answer your first, second and fourth questions as set forth in our analysis and your third question in the affirmative.

                                                                     ANALYSIS

            Both of the statutory provisions referenced by your questions address the duty of a school district board of directors to assure that complaints regarding teaching or instructional materials are considered and acted upon.  First to be enacted was RCW 28A.58.103 which provides, in pertinent part, as follows:

            "Every board of directors, unless otherwise specifically provided by law, shall:

            "(1) Prepare, negotiate, set forth in writing and adopt, policy relative to the selection of instructional materials.  Such policy shall:

            ". . .

            "(e) Provide a system for receiving, considering and acting upon written complaints regarding instructional materials used by the school district;

            ". . ."

             [[Orig. Op. Page 3]]

            This provision, in its present form, dates back to the recodification of the Education Code, Title 28A RCW, in 1969.  Later, however, in 1977 the legislature expanded upon the duty of school boards, in connection with complaints regarding teaching materials, through its enactment of RCW 28A.58.758(2)(f) as part of The Washington Basic Education Act of 1977.1/   This statute reads, in pertinent part, as follows:

            "(1) It is the intent and purpose of this section to guarantee that each common school district board of directors, whether or not acting through its respective administrative staff, be held accountable for the proper operation of their district to the local community and its electorate.  In accordance with the provisions of Title 28A RCW, as now or hereafter amended, each common school district board of directors shall be vested with the final responsibility for the setting of policies ensuring quality in the content and extent of its educational program and that such program meet the individual and collective needs of the particular students enrolled therein.

            "(2) In conformance with the provisions of Title 28A RCW, as now or hereafter amended, it shall be the responsibility of each common school district board of directors, acting through its respective administrative staff, to:

            ". . .

            "(f) Evaluate teaching materials, including text books, teaching aids, handouts, or other printed material, in public hearing upon complaint by parents, guardians or custodians of students who consider dissemination of such material to students objectionable.

            ". . . ."

             [[Orig. Op. Page 4]]

            It is at once apparent that these two statutory provisions compliment each other, rather than conflict.  Prior to September 1, 1978,2/ each school district was impressed with the duty to develop a system of its own design for the purpose of considering and acting upon complaints regarding teaching or instructional materials.  The effect of the 1977 Basic Education Act, in turn, was to require that such previously developed complaint processing systems provide for the evaluation of teaching materials in public hearing in those cases which involve complaints registered by parents, guardians or custodians of students.

            We now turn to the questions you have posed.

            Question (1):

            First your have asked:

            Does RCW 28A.58.758(2)(f) require a school board to conduct an evaluation of teaching materials in public hearing, or may the evaluation be conducted by the administrative staff of the school district?

            RCW 28A.58.758(1) provides it is the intent and purpose of the statute to hold each school board accountable to the public "whether or not acting through its respective administrative staff."  The legislature has thus said, in effect, that a school board is to be accountable for its direct actions and for its indirect actions taken by the districts's administrative staff in behalf of the board.

            The distinction between the actions of a school board and the actions of a board's agents (e.g., administrative staff members) is also recognized in subsection (2) of RCW 28A.58.758 which imposes the requirement of evaluations in public hearing.  In this respect, RCW 28A.58.758(2) prefaces the requirement in subpart (f) with ". . . it shall be the responsibility of each common school district board of directors,acting through its respective administrative staff, to: . . ." (emphasis supplied).  There thus appears to be no plausible basis for concluding that the legislature intended that the school board itself must actually conduct all of the evaluations called for by the law.  And, therefore, our direct answer to your first question is that  [[Orig. Op. Page 5]] the evaluations of teaching materials in public hearing pursuant to RCW 28A.58.758(2)(f) may be conducted either by the school board or by the administrative staff of a school district.

            Question (2):

            Next you have inquired as follows:

            Does RCW 28A.58.758(2)(f) require that the evaluation of teaching materials in the case of complaints by parents take place in public hearing, or, instead, may an alternative system of evaluation be adopted by a school board pursuant to RCW 28A.58.103(1)(e)?

            We find no basis for concluding that RCW 28A.58.758(2)(f) and RCW 28A.58.103(1)(e) provide alternative means for processing complaints registered by parents, guardians or custodians of students.  As we noted initially, the two statutes compliment each other rather than conflict.  RCW 28A.58.758(2)(f) simply requires that the complaint processing system otherwise established by a school board pursuant to RCW 28A.58.103(1)(e) also provides for the evaluation of teaching materials in public hearing in the case of complaints by parents, guardians or custodians of students.  Conversely, complaints registered by other persons may continue to be processed in a manner other than in public hearing.

            Question (3):

            Your third question asks:

            Are films used for teaching purposes included within the term "teaching materials" as it is used in RCW 28A.58.758(2)(f)?

            It is not difficult to ascertain the general meaning of the term "teaching materials."  It seems apparent the ordinary, everyday meaning of that term includes both written materials such as textbooks and motion pictures or other types of films used in instructing students.  The issue is whether the statutory context in which the term here appears limits its meaning to printed material which is physically distributed to students.

            The materials subject to evaluation pursuant to RCW 28A.58.758(2)(f) consist of (1) "teaching materials, including textbooks, teaching aids, handouts, or other printed materials, . . ." (2) ". . . [which] parents, guardians or custodians of  [[Orig. Op. Page 6]] students . . . consider dissemination of . . . to students objectionable."  RCW 28A.58.758(2)(f),supra.  Two questions must thus be answered.  First, does the specification of textbooks, etc., limit the meaning of "teaching materials" to materials in the nature of printed texts?  And second, does the fact that actionable complaints must address the "dissemination" of materials to students limit the meaning of "teaching materials" to materials which are physically distributed to students?  We think both of these subquestions must be answered in the negative.

            In response to the first question, it is not uncommon for the legislature to list or specify subject matter which it intends to be encompassed by a particular enactment.  Whether or not the subject matter encompassed is limited to that which is specified depends upon the context in which the specification appears.  For example, the rule of statutory construction stated in the Latin maximexpressio unis est exclusio alterius (the principle that the expression of one thing excludes the expression of another) would conceivably apply in this case if the legislature had not prefaced "textbooks, teaching aids," etc. with "teaching materials, including."  That maxim, however, requires caution in its application.  As indicated inState ex rel. Becker v. Wiley, 16 Wn.2d 340, 133 P.2d 507 (1943), it should be invoked only as one means of determining legislative intent, not as a means of defeating an underlying purpose of a statute.

            Here, the statutory context in which the delineation of "textbooks" and other types of materials appear indicates more strongly than not that the legislature intended the enumerated types of materials to be examples only.  If the legislature had intended to limit the application of RCW 28A.58.758(2)(f) to the materials listed it would not, in our judgment, have needlessly prefaced the list with "teaching materials, including."  The legislature is presumed to have used no superfluous words.  West American Insurance Company v. Buchanan, 11 Wn.App. 823, 827, 525 P.2d 831 (1974).

            As was aptly stated by one federal district court judge in the recent case ofIn Re Midas Coin Company, 264 F.Supp. 193 (U.S.D.C., E.D., Missouri, 1967),

            "The term 'including' has various shades of meaning, in some instances operating as a restriction upon and in others as an enlargement of the general language that precedes it and in still others simply as connoting illustrative examples. . . ."

             [[Orig. Op. Page 7]]

            See also, AGO 1979 No. 8, copy enclosed.  Based upon the context in which the word "including" appears in RCW 36.33.0203/ we there concluded that the items listed after it were, likewise, merely illustrative and not exclusive.

            In response to the second subquestion, the term "disseminate," as commonly defined, is not limited to an act of physical distribution, particularly when used in context with teaching.  For example,Webster's New International Dictionary, Second Edition, Unabridged, 1954, defines "disseminate" as:

            ". . . To sow broadcast or as seed; to scatter, like seed; to spread abroad; as ideas are disseminated when spread abroad for propagation; hence, to diffuse; . . ."  (Emphasis supplied)

            The term "dissemination" as used in the context of teaching materials and their evaluation can, thus, reasonably be construed as the spreading or dispersing of the ideas and other contents of the materials.  In any case, we deem it highly unlikely the legislature intended to limit RCW 28A.58.758(2)(f) to complaints regarding film actually handled by a student.  It is by far more reasonable to construe "dissemination" in the context of the modern instructional process as including the exposure of students to such ideas, facts, principles, etc., as are conveyed through the medium of film.

            Accordingly, our answer to your third question is that the term "teaching materials," as used in RCW 28A.58.758(2)(f), does include films used for teaching purposes, whether or not placed in the possession of a student, which are utilized in the instructional process to convey the ideas and other subject matter embodied in the film to students.

             [[Orig. Op. Page 8]]

            Question (4):

            Your fourth and final question is as follows:

            What rules of procedure govern the conduct of an evaluation of teaching materials in public hearing pursuant to RCW 28A.58.758(2)(f)?

            We begin our answer to this question by noting that RCW 28A.58.758 itself does not prescribe any rules of procedure.  Nor has our research disclosed any procedural requirements of general application in the common school code or any other state statute which purport to apply to the evaluation of teaching materials in public hearing by a school district.4/    It thus appears that, in the absence of a statute which prescribes applicable rules of procedure, the law simply does not dictate what particular rules of procedure a school district uses in the course of conducting an evaluation of teaching materials pursuant to RCW 28A.58.758(2)(f).  See,Smith v. Skagit County, 75 Wn.2d 715, 453 P.2d 832 (1969), where our State Supreme Court noted at page 742 that "[u]nless prescribed by law, a public hearing of a legislative nature need not conform to technical rules of procedure or evidence. . . ."5/

             Therefore, our direct answer to your fourth question is that the law does not prescribe any particular rules of procedure to govern the conduct of an evaluation of teaching materials in public hearing pursuant to RCW 28A.58.758(2)(f).  Instead, each school district board of directors should be viewed  [[Orig. Op. Page 9]] as having the power to establish its own rules of procedure‑-a power which is implicit in the duty established by RCW 28A.58.103(1)(e),supra, to "[p]rovide a system for receiving, considering and acting upon written complaints regarding instructional materials. . . ."6/

             We trust that the foregoing will be of some assistance to you.

Very truly yours,


SLADE GORTON
Attorney General


ROBERT E. PATTERSON
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/Chapter 359, Laws of 1977, 1st Ex. Sess.

2/The effective date of RCW 28A.58.758.

            3/"Any board of county commissioners may establish by resolution a cumulative reserve fund in general terms for several different county purposes as well as for a very specific county purpose, including that of buying any specified supplies, material or equipment, or the construction, alteration or repair of any public building or work, or the making of any public improvement. . . ."

4/The State Administrative Procedure Act (chapter 34.04 RCW), which does prescribe certain rules of procedure in the case of administrative hearings, applies only to state agencies and not to local government entities such as school districts; cf.,Messer v. Board of Adjustment, 19 Wn.App. 780, 783, 578 P.2d 50 (1978).a

5/A public hearing to evaluate instructional materials is at most administrative or quasi-legislative in nature as distinguished from a quasi-judicial proceeding where certain rules of procedure and evidence might apply as a matter of constitutional or statutory necessity.  SeeFrancisco v. Board of Directors of the Bellevue Public Schools, District No. 405, 85 Wn.2d 575, 537 P.2d 789 (1975), for a discussion of the tests used to determine whether an administrative agency functions in a judicial capacity or not.

6/To this we would only add that while no particular set of rules of procedure here apply on a statewide basis, all school districts, in formulating their own rules, should adhere to certain fundamental principles which the court has established in connection with cases involving other types of proceedings such as those regarding zoning and other land use matters.  Smith v. Skagit County, supra, falls within the group of cases we have in mind.  While that case does not necessarily apply to the evaluation of teaching materials in public hearing, the case does embody the following principles which government entitles should advisedly adhere to in connection with all proceedings held for the purpose of receiving public comment:  (1) Members of the public who are present should be afforded a reasonable opportunity to present their views; (2) the proceedings should be free from actual bias and prejudice on the part of the official(s) conducting the proceedings; (3) the official(s) conducting the proceedings should consider all matters presented and give reasonable credit to such matters according to the weight they are in reason entitled to; and (4) the proceedings should be conducted in a manner which not only actually complies with points (1), (2) and (3), but also in a manner which gives the appearance of such compliance or fairness.

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