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AGO 1963 No. 41 - July 29, 1963
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John J. O'Connell | 1957-1968 | Attorney General of Washington


DISTRICTS ‑- SCHOOLS ‑- PHYSICAL EDUCATION ‑- WHEN STUDENTS MAY BE EXCUSED.

Students in public high schools, colleges and universities may be excused from physical education courses on account of physical disability, or religious belief, or because of participation in directed athletics or military science tactics.  Additionally, individual high school students must be excused from physical education courses upon written request of the parent or guardian.

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                                                                    July 29, 1963

Honorable Audley F. Mahaffey
State Representative, 46th District
5241 16th N.E.
Seattle, Washington

                                                                                                                Cite as:  AGO 63-64 No. 41

Dear Sir:

            By letter previously acknowledged you have requested an opinion from this office on two questions which we have paraphrased as follows:

            (1) How does RCW 28.05.040 read after its amendment by chapter 235, Laws of 1963?

            (2) May individual students be excused from physical education training for other than "physical disability, employment or religious belief, or because of participation in directed athletic or military science tactics?"

            We answer your questions in the manner set forth in our analysis.

                                                                     ANALYSIS

            (1) Prior to the 1963 amendment, RCW 28.05.040 read as follows:

            "All high schools of the state may, and all state colleges of education, the University of Washington and the State College of Washington shall emphasize the work of physical education, and shall carry into effect all such courses provided by the state board of education; which shall provide for a minimum of ninety minutes in each school week:  Provided, That individual students may be excused  [[Orig. Op. Page 2]] on account of physical disability or religious belief, or because of participation in directed athletics or military science and tactics:  Provided further, That individual high school students shall be excused therefrom upon the written request of parents or guardians."

            As you are well aware, the recent legislature proposed several amendments to such law including a deletion of the second proviso.  This attempted deletion was vetoed by the governor.  Inasmuch as the governor, when exercising his veto power, is deemed to be acting as a part of the legislative body, the correct construction to be placed upon the amendment bill is to treat it as if the "vetoed provision had never been written into the bill."  Gottstein v. Lister, 88 Wash. 462, 153 Pac. 595 (1915); and State ex rel. Stiner v. Yelle, 174 Wash. 402, 25 P.2d 91 (1933).

            Thus, the attempted deletion having failed, the language of the second proviso still remains as a part of the present law unaffected by the 1963 changes.  Accordingly, as of June 13, 1963, RCW 28.05.040 reads as follows:

            "All high schools of the state and community colleges shall, and all state colleges, the University of Washington and the Washington State University, shall, each of them, emphasize the work of physical education, and shall carry into effect all such courses provided by the state board of education; which shall provide for a minimum of ninety minutes in each school week:  PROVIDED, That individual students may be excused on account of physical disability, employment or religious belief, or because of participation in directed athletics or military science and tactics:  PROVIDED FURTHER, That individual high school students shall be excused therefrom upon the written request of parents or guardians."  (Emphasis supplied.)

            (2) In so far as your second question is concerned, we are of the opinion that RCW 28.05.040, as it now reads, is plain, clear and unambiguous.

            The second proviso, underlined above, provides that "individual high  [[Orig. Op. Page 3]] school students shall be excused upon written request of parents or guardians."  The legislature has placed no restrictions upon this request in respect to high school pupils.

            The legislaturehas not, however, provided in RCW 28.05.040 for any other classification of students to be excused upon written request.  Therefore, excuses for individual students, other than high school pupils, who are subject to the provisions of the statute, are accordingly confined to the express items of "physical disability, employment or religious belief, or participation in directed athletics or military science and tactics," as set out in RCW 28.05.040.

            We trust this information will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

CHARLES F. MURPHY
Assistant Attorney General

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