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AGO 1964 No. 130 - December 12, 1964
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John J. O'Connell | 1957-1968 | Attorney General of Washington


DISTRICTS ‑- SCHOOLS ‑- SHARED-TIME PROGRAM ‑- PART-TIME ATTENDANCE OF STUDENTS IN THE PUBLIC SCHOOLS WHO ARE ALSO ENROLLED IN A PRIVATE OR PAROCHIAL SCHOOL ‑- AUTHORITY OF BOARD OF DIRECTORS ‑- ATTENDANCE CREDIT.

(1) The board of directors of a school district has the authority but is not required to permit students enrolled in a private or parochial school to attend the schools of the district on a part-time basis; however, in determining the constitutionality of a particular shared-time program, each case must be determined by its own facts.  See, Perry v. School Dist. No. 81, 54 Wn. (2d) 886, 344 P. (2d) 1036 (1959).

(2) The district may not claim or use such attendance in computing its average daily attendance pursuant to chapter 28.41 RCW, unless such student attends for a school day as defined by RCW 28.01.010.

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                                                               December 12, 1964

Honorable Louis Bruno
Superintendent of Public Instruction
Old Capitol Building
Olympia, Washington

                                                                                                              Cite as:  AGO 63-64 No. 130

Dear Sir:

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

            (1) Does the board of directors of a school district have authority to permit children to attend its schools on a part-time basis where the children are also enrolled at a private or parochial school?

            (2) If such attendance is permissible, may the district claim or use such attendance in computing its average daily attendance pursuant to chapter 28.41 RCW?

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

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            A school district is a municipal corporation, and as such has only those powers expressly granted by the legislature, those necessarily or fairly implied in and incident to the powers granted, and those essential to the declared objects and purposes of the municipal corporation.  Seattle High School Chapter No. 200 v. Sharples, 159 Wash. 424, 293 Pac. 994 (1930);Juntila v. Everett School District No. 24, 178 Wash. 637, 35 P. (2d) 78 (1934).  The governing body of the district, empowered to exercise the foregoing powers, is, of course, the elected board of directors.  RCW 28.57.330;State ex rel. Griffiths v. Superior Court, 177 Wash. 619, 33 P. (2d) 94 (1934).

            Before discussing the general laws of the state of Washington governing the powers and duties of school districts found in Title 28 of the Revised Code of Washington, reference should be made to the provisions of our state constitution requiring the establishment of our public school system.

            The education ofall children residing within the state of Washington is a "paramount duty" of the state.  Article IX, § 1, of the Washington State Constitution;State ex rel. DuPont Etc. v. Bruno, 62 Wn. (2d) 790, 384 P. (2d) 608 (1963).  Furthermore, the state in setting up the required system of "public schools," Article IX, § 2, of the Washington State Constitution, must open the public schools "to all children of the state."  Article XXVI, § 4, Washington Constitution.  Pursuant thereto the legislature established a system of common schools open to everyone between the ages of six and twenty-one years of age.  RCW 28.58.190 reads as follows:

            "Common schools shall include schools that are maintained at public expense in each school district and under the control of boards of directors.  Every common school, not otherwise provided for by law, shall be open to the admission ofall children between the ages of six and twenty-one years residing in that school district."  (Emphasis supplied.)

             [[Orig. Op. Page 3]]

            Thus, it is obvious that a student between the ages of six and twenty-one has aright to attend on a full-time basis the public schools of the district in which he resides.  We shall next consider whether authority exists under which the board of directors may permit a student to attend the public schools of the district on a part-time basis.

            With the passage of RCW 28.58.110, the legislature has vested school district boards of directors with broad discretionary powers, as follows:

            "Any board of directors shall have power to make such bylaws for their own government, and the government of the common schools under their charge, as they deem expedient, not inconsistent with the provisions of this act, or the instructions of the superintendent of public instruction or the state board of education."

            In passing upon this statute our court in Wayland v. Hughes, 43 Wash. 441, 449, 86 Pac. 642 (1906), said:

            ". . . It would be difficult to confer a broader discretionary power than that conferred by these sections. . . ."

            A second statute to be noted is RCW 28.27.010, reading:

            "All parents, guardians and other persons in this state having or who may hereafter have immediate custody of any child between eight and fifteen years of age . . . or of any child between fifteen and sixteen years of age . . . not regularly and lawfully engaged in some useful and remunerative occupation, shall cause such child to attend the public school of the district, in which the child resides, for the full time when such school may be in session or to attend a private school for the same time, unless the superintendent of the schools of the district in which the child resides, . . . shall have excused such child from such attendance  [[Orig. Op. Page 4]] because the child . . . has already attained a reasonable proficiency in the branches required by law to be taught in the first eight grades of the public schools of this state . . . or for some other sufficient reason. . . ."

            Of this latter statute our court, in Perry v. School Dist. No. 81, 54 Wn. (2d) 886, 897, 344 P. (2d) 1036 (1959), said:

            ". . . The superintendent of schools is vested with statutory discretion to excuse pupils from the operation of the enactment for reasons recited in the statute and for 'any other sufficient reason.' . . ."

            Thereupon the court held that a "released-time" program which had been established by the defendant Spokane County School District No. 81, did not violate this compulsory attendance statute, stating:

            ". . . The release of children from school upon the parent's request for religious instruction, constitutes an exercise of this statutory authority."  (p. 897)

            In this same case the court also met and rejected arguments to the effect that the "released-time" program, under which public school children were released for one hour per week for religious education upon the written request of their parents, violated the due process clause of Amendment 14 of the United States Constitution, and Article I, § 111/  [[Orig. Op. Page 5]]

and Article IX, § 42/ of the Washington Constitution.  On this aspect of the case the court said:

            "Our state constitution like that of the United States and every state in the Union, by the language used, indicates the framers were men of deep religious beliefs and convictions, recognizing a profound reverence for religion and its influence in all human affairs essential to the well-being of the community.  SeeGordon v. Board of Education, supra (concurring opinion).  Our Preamble reads as follows:

            "'We, the people of the State of Washington, grateful to the Supreme Ruler of the Universe for our liberties, do ordain this constitution.'  (Italics ours.)

            "It was never the intention that our constitution should be construed in any manner indicating any hostility toward religion.  Instead, the safeguards and limitations were for the preservation of those rights.  No limitations of the constitution are contravened by the respondent school district permitting a released-time program in its schools, if practiced  [[Orig. Op. Page 6]] in a manner not inconsistent with the constitutional limitations as outlined in this opinion."

            While the court found a minor inconsistency with the constitution in the defendant school district's practice of permitting

            ". . . the distribution of cards in public schools, or the making of announcements or explanations for the purpose of obtaining the parents' consent for their children's participation in the released-time program, by representatives of religious groups or instructors in the schools."  (54 Wn. (2d) 886, 898.)

            and, therefore, invalidated this particular facet of the program, its decision, by and large, clearly stands for the propositions:

            (1) That a school district may permit less than full-time attendance ". . . for any . . . sufficient reason." (including the specific reasons listed in RCW 28.27.010, supra); and,

            (2) that participation by the student in an off-campus voluntary program of religious instruction upon the parent's request, in effect, constitutes a sufficient and valid reason for less than full-time public school attendance.

            The first of these two propositions obviously means that the board of directors of a school district may allow part-time attendance in its public schools where the educational interests of the student will be properly served by such a policy.  See, also, RCW 28.58.110,supra, and the excerpt here quoted fromWayland v. Hughes, supra.

            We are thus left basically with the question of whether the particular reason for permitting part-time public school attendance in the instant case; i.e., part-time attendance at a private or parochial school, comes within the purview of this proposition.  In our opinion, it does.

            In the first place, it is notable that the mandatory  [[Orig. Op. Page 7]] attendance feature of RCW 28.27.010,supra, requires only that they attend school‑-public or private‑-full time.  A student attending a private school is not required to attend the public school of the district in which he resides. Thus, the legislature itself has, in effect, declared that attendance at a private school is a "sufficient reason" for excusing a student from full-time attendance in public school.

            This is not to suggest that the legislature has sanctioned, as a matter of right, part-time attendance in public school complemented by part-time attendance at a private school.  We mean only to say that if in the exercise of their discretionary powers the members of the school board decide to permit such a practice, the decision would be proper within the scope of their statutory authority.

            Particularly this would be true where, because of the particular facts of the case, a need for such a program can be demonstrated.  This factor would appear to be present in the case which you have described.  The plan which you have outlined is proposed in a community where there are several private grade schools but no private high schools.  Thus, it is necessary for all private students to enter the public school system for their required secondary education.  Due to various circumstances the private schools cannot offer many of the courses offered in the public schools.  Accordingly, it has been proposed to allow the private school students to enroll in the courses unavailable to them at their own schools when space is available in the public schools.  Thus no wholesale transfer of students is envisioned nor would there be a necessity for additional teachers or classrooms.  Enrollment in such courses as music, language, laboratory, and vocational courses would be allowed as space became available.  This would allow these students to enter the secondary level on a par with the public school students, generally equalizing the educational opportunities of all students.

            What we have said thus far makes no distinction between a private nonsectarian school and private sectarian or parochial school.  Therefore, we must consider next whether dual enrollment with a portion of the attendance in a sectarian institution violates any of our constitutional provisions which were considered by our court in another context in Perry v. School District, supra.

             [[Orig. Op. Page 8]]

            Repeated for ease of reference, Article I, § 11, of the Washington Constitution provides, in material part, that:

            ". . . 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, § 2, provides in part:

            ". . . 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 IX, § 4, contains the following:

            "All schools maintained or supported wholly or in part by the public funds shall be forever free from sectarian control or influence."

            Our state supreme court has consistently been strict in construing the prohibition against the use of public funds for any religious purpose, and likewise has strictly construed the mandate that our state supported schools shall be free from sectarian control or influence.  See,Perry v. School Dist. No. 81, 54 Wn. (2d) 886, 344 P. (2d) 1036 (1959), supra, Visser v. Nooksack Valley School Dist., 33 Wn. (2d) 699, 207 P. (2d) 198 (1949); Mitchell v. Consolidated School Dist., 17 Wn. (2d) 61, 135 P. (2d) 79 (1943);State ex rel. Clithero v. Showalter, 159 Wash. 519, 293 Pac. 1000 (1930); andState ex rel. Dearle v. Frazier, 102 Wash. 369, 173 Pac. 35 (1918).  Further, this office has on several occasions noted that our constitution differs from others in that its provisions are broader and more positive than similar provisions found in other constitutions.  See, Volume 1, Opinions of the Attorney General, page 142; OAG 1909-10, p. 135 [[1909-10 OAG 135 to Office of Superintendent of Public Instruction on December 20, 1909]]; OAG 1914-16, p. 254 [[1915-16 OAG 254 to Prosecuting Attorney, Whatcom County on March 24, 1916]]; AGO 61-62 No. 118 [[to Wilbur G. Hallauer, State Senator on April 20, 1962]]and AGO 61-62 No. 119 and AGO 61-62 No. 119.

            In light of the above noted cases and opinions, the question that must be answered may be stated as follows: To the extent that it contemplates "shared-time" attendance  [[Orig. Op. Page 9]] as between public schools and privatesectarian or parochial schools, is the plan in question one which would result in public support of a religious establishment?3/

             In our opinion this question is answerable in the negative.  The shared-time program contemplated by your inquiry, as briefly described above, does not in our opinion constitute "support" of any sectarian institution.4/   Any expenditure of public funds or the use of public property will be solely for the established public school system.5/   If a district desires to establish a shared-time program, its program will directly benefit the students involved who otherwise have a right to attend the public schools on a full-time basis.  See, Article XXVI, § 4, Washington constitution, and RCW 28.58.190,supra.

            We are of course aware of and have previously cited herein the cases ofVisser v. Nooksack Valley School Dist., 33 Wn. (2d) 699, 207 P. (2d) 198 (1949),supra, and Mitchell v. Consolidated School Dist., 17 Wn. (2d) 61, 135 P. (2d) 79 (1943),supra, in which our court ruled that the public transportation of students toparochial schools constituted support of a religious establishment in violation of Article I, § 11, supra.

             [[Orig. Op. Page 10]]

            These two cases are distinguishable from the instant case because here we are only dealing with expenditures of public funds for the support of the public schools.  In theVisser and Mitchell cases, supra, by way of contrast, public funds were not used to support the public schools but were used to directly subsidize the transportation aspect of asectarian school operation.

            Further we believe that the Perry case, supra, supports the conclusion that shared time would do no violence to the constitutional provisions previously noted.  The facts of the Perry case are much more akin to those in question than the facts in the transportation cases.  The Perry case,supra, would appear to require something more than a mere accommodation or indirect benefit in order to constitute "support" of a religious establishment.6/   In thePerry case, as noted above, our court approved a released-time program in general principle while striking down the practice of the distribution of registration cards by the public school teachers.  The court in reaching this conclusion quoted extensively from Zorach v. Clauson, 343 U.S. 306, 96 L.Ed. 954, 72 S.Ct. 679 (1951).  Quoted with approval fromZorach was the following passage:

            ". . . Here, as we have said, the public schools dono more than accommodate their schedules to a program of outside religious instruction.  We follow the McCollum Case.  But we cannot expand it to cover the present released time program unless separation of Church and State means that public institutions can make no adjustments of their schedules to accommodate the religious needs of the people.  We can not read into the Bill of Rights such a philosophy of hostility to religion."  (343 U.S. at p. 315.) (Emphasis supplied.)

             [[Orig. Op. Page 11]]

            Clearly the total effect of allowing "shared time" enrollment of private or parochial school students in the normal public school educational program is nothing more than a mere accommodation or indirect benefit.  The funds which the school district may spend to educate each and every student in their schools, whether these funds be classified generally as public funds or more specifically as common school funds, will, under the question posed, be spent in furtherance of the paramount purpose for which these schools have been established, i.e., the equal education of all children residing within the district.

            At this point it should be noted that the legislature has already established a similar pattern in regard to driver education.  See, RCW 46.81.020.  In addition it is clear that under chapter 28.09 RCW, wherein it is possible for a district to offer part-time vocational programs, there are no inhibitions against parochial students enrolling in such classes.  The same can be said of other courses offered in night schools operated as a part of a district program.

            We hasten to add, however, that facts other than those which appear to be present in the situation you have described may alter the validity of the program.  As our court stated in thePerry case, supra:

            "It is safe to say that the released-time program in itself has never been held to be in contravention of the doctrine of separation of church and state, nor of any state or federal constitutional provisions; it is only the manner in which it has been practiced that has constituted a violation.  Each case is determined by its own facts."  (Emphasis supplied.) (54 Wn. (2d) p. 892.)

            In summary, it is our conclusion that a child has a right to attend public schools in the district in which he resides for the full time that the school is in session; and while he has no absolute right to attend on a part-time  [[Orig. Op. Page 12]] basis, there is no constitutional7/ or statutory barrier which would limit or prohibit a board of directors of a school district, if it so desires, from admitting to the public schools for regular instruction on a part-time basis students who otherwise attend a private or parochial school.  Whether or not such a program would be feasible or practicable is a matter which must be decided by each board of directors.

            (2) We restate your second question as follows:

            If such attendance is permissible, may the district claim or use such attendance in computing its average daily attendance pursuant to chapter 28.41 RCW?

            The formula for state support of school districts based upon attendance is set forth in chapter 28.41 RCW.  The formula allots a statutory amount for "actual days attendance," additional amounts for certain programs, and attendance based upon hourly attendance for "part-time schools."  The phrase "part-time schools" refers not to the situation in question but to the statutorily defined part-time schools referred to earlier in this opinion.  Further, the apportionment formula does not refer to less than a full day's attendance, except in regard to kindergartens, where attendance credit for half days is allowed.  However, while the above‑noted provisions do not define what constitutes an "actual day's allowance," the term "school days" is defined in RCW 28.01.010 as follows:

            "A school day shall consist of six hours for all pupils above the primary grades, exclusive of an intermission at noon; but any board of  [[Orig. Op. Page 13]] directors may fix as a school day for their district a less number of hours than six:  Provided, That for pupils belonging to the primary grades the school day shall not be less than four hours, exclusive of an intermission at noon, and for pupils belonging to grades above the primary grade the minimum school day shall not be less than five hours, exclusive of an intermission at noon.  In the absence of any by law or order of the board of directors defining the school day for their district, any teacher may dismiss all pupils belonging to the primary grades after an attendance of four hours, exclusive of said intermission. . . ."

            Additionally, RCW 28.48.070 provides for credit in certain cases of excused attendance, but they are not determinative or relative to your inquiry.  Accordingly, since RCW 28.41.070 does not provide for attendance credit for partial days attendance, and RCW 28.01.010 sets out the number of hours which constitutes a school day, a district, under existing law, may only claim attendance when a student attends a public school of the district for the number of hours required by the foregoing statutes.

            In summary, it is our conclusion that there are no constitutional barriers which would prevent a school district from allowing students regularly enrolled in a private school to attend the schools of the district on a part-time basis.  However, under existing law, a district may only claim attendance for students who are enrolled in the district's regular program if the students attend for an "actual day," as legislatively defined.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

BRUCE W. COHOE
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/"RELIGIOUS FREEDOM.  Absolute freedom of conscience in all matters of religious sentiment, belief and worship, shall be guaranteed to every individual, and no one shall be molested or disturbed in person or property on account of religion; . . . No public money or propertyshall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment: . . ." (Emphasis supplied.)

2/"SECTARIAN CONTROL OR INFLUENCE PROHIBITED.  All schools maintained or supported wholly or in part by the public funds shall be forever free from sectarian control or influence."

3/We pose the question in these terms rather than in terms of the imposition of a sectarian influence on the public schools, contra Article IX, § 4, supra, because we view the crucial question here to be simply whether "shared time" as described above constitutes the use of public money or property in support of a religious establishment; i.e., the participating parochial schools.

4/This conclusion is supported by the only judicial authority we have found on the subject.  Commonwealth ex rel. Wehrle v. School District of Altoona, 241 Pa. 224, 88 Atl. 481 (1913).  See, also,Scales v. Board of Education, 245 N.Y.S.2d 449 (1963).

5/Accord: Article IX, § 2, supra.

6/Some examples of this proposition are found in the fact that the state provides daily police and fire protection to various religious establishments.

7/In reaching this conclusion we have not overlooked the First and Fourteenth Amendments of the United States Constitution.  However, we believe thatEverson v. Board of Education, 330 U.S. 1, 91 L.Ed. 711 (1946); andCochran v. Louisiana State Board of Education, 281 U.S. 370, 74 L.Ed. 913 (1930), are

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