Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1995 No. 8 -
Attorney General Christine Gregoire


It would violate the state and federal constitutions to place students at state-funded colleges and universities and student teachers in "pervasively religious" elementary or secondary schools, as defined in case law; whether a particular school is "pervasively religious" must be analyzed on a case-by-case basis.

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                                                                   May 25, 1995

The HonorableBob Morton
State Senator, District 7                                                                                   
107 Institutions Building, MS 40407
Olympia, Washington  98504-0407

                                                                                                            Cite as:  AGO 1995 No. 8

Dear Senator Morton:

            By letter previously acknowledged, you requested our opinion on a question we paraphrase as follows:

            Is it legally permissible for a public institution of higher education to place its teacher certification candidates in a private, religiously affiliated K-12 school for student teaching, if the contractual arrangement for the student involves only secular programs?

                                                               BRIEF ANSWER

            In our opinion, the answer depends on whether the private school in which the student teachers were placed is pervasively sectarian.  If so, the placement would violate the establishment clause of the federal constitution and the counterpart provision of the Washington constitution.


            Both the federal and state constitutions contain provisions relevant to your question.  We begin our analysis by considering the federal constitution.

            The First Amendment to the federal constitution provides in pertinent part as follows:

            Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof....

Although these prohibitions, read literally, apply only to Congress, courts have interpreted them as restricting the actions of states as well.  See,e.g.,Everson v. Board of Education, 330 U.S. 1, 91 L. Ed. 711, 67 S. Ct. 900 (1940).  Your question implicates the first of these two prohibitions, the establishment clause.  It proscribes "sponsorship, financial support, and active involvement of the sovereign in religious activity."  Grand Rapids School Dist. v. Ball, 473 U.S. 373, 381, 87 L. Ed. 2d 267, 105 S. Ct. 3216 (1985).

            In 1971, the United States Supreme Court announced a three-prong test to be used in evaluating laws and actions alleged to violate the establishment clause.  Lemon v. Kurtzman, 403 U.S. 602, 612, 29 L. Ed. 2d 745, 91 S. Ct. 2105,reh'g denied, 404 U.S. 876, 30 L. Ed. 2d 123, 92 S. Ct. 24 (1971).  To be valid under the establishment clause,

            [f]irst, the statute [or action] must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute [or action] must not "foster an excessive government entanglement with religion."

Id. at 612-13 (citations omitted).

            Our research has uncovered only one reported case in which a court examined the constitutionality of the practice about which you inquire -- the placement by public institutions of their teacher-certification candidates in student teaching positions at private religious schools.  The court inStark v. St. Cloud State University, 802 F.2d 1046 (8th Cir. 1986), concluded that the placement passed the first, but failed the second of the three prongs of theLemon test:  it advanced religion.  Since violating any one of the prongs renders a practice unconstitutional, the court did not reach the question whether the placement of student teachers in private schools also fostered an excessive entanglement between government and religion.  Id. at 1052.

            The university program challenged in Stark required students seeking a degree in education to complete a course in student teaching.  Id. at 1047.  At the beginning of the course, the student observed the teaching methods employed by the regular classroom teacher.  Id.  As the course progressed, the student teacher assumed increasing responsibility until he or she taught the class under the full-time supervision of the regular classroom teacher.  Id.  Student teachers taught only secular courses.  Id. at 1049.

            In addition to the relationship between the student teacher and the private school, the program inStark entailed a relationship between the university and the private school.  First, the university and the private school entered into a contract providing for the placement of student teachers.  Id. at 1047.  Under this contract, the university paid the private school $96 per student teacher per term.  Id.  This money could be used as the private school saw fit.  Id.

            Second, a university field experience coordinator had to approve the placement of a student teacher at any school, including a private religious school.  Id.  Students placed at religious schools were advised that their participation in any religious aspect of the school was "exclusively between the parochial school's personnel and the student teacher."  Id.

            Third, a supervisor from the university visited the student teacher's classroom approximately once a week to observe the student's performance.  Id.  Following the visit, the supervisor evaluated the student's performance and discussed it with the student and the regular classroom teacher.  Id.

            The court found that this program satisfied the first prong of theLemon test because it served a secular purpose.  That is, by including private religious schools in the list of available student teaching sites, the program increased the number of such sites.  Id. at 1049.  This furthered the secular aim of providing practical experience for aspiring teachers.

            However, the court concluded that the program violated the secondLemon criterion.  Because the private schools at which the student teachers taught were "pervasively sectarian," the primary effect of the program was to advance religion, the court found.  SeeHunt v. McNair, 413 U.S. 734, 743, 37 L. Ed. 2d 923, 93 S. Ct. 2868 (1973) (pervasively sectarian institution is one in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission).  The schools in question were members of the Catholic Diocese, and received some funding from their parishes.  Students at these schools were required to take religion courses.  Relying on these facts and on certain statements contained in school publications[1], the court found that the schools provided an "integrated secular and religious education." Id. at 1050.

            Since secular education is inextricably intertwined with the religious mission of pervasively sectarian schools, the court found that even teaching exclusively secular courses, as the student teachers did, advanced religion.  It did so by creating a perception that the state endorsed the institutions' religious mission.  Id.  According to the court,

            [w]hen a state program fosters the appearance of [ ] a union [of government and religion], the state places its imprimatur on the religion and thereby "promotes religion as effectively ... as when it attempts to inculcate specific religious doctrines."

Id., quoting Grand Rapids School Dist. v. Ball, supra.

            WhileStark squarely addresses your question, we note that it is binding only in the Eighth Circuit, the federal court circuit in which the case arose.  Other circuits, including our own, the Ninth, might rule differently, as might the U. S. Supreme Court.  Although your question therefore cannot be answered definitively under existing case law, we believe that the holding in Stark is consistent with decisions that the U.S. Supreme Court has reached in other cases involving the furnishing of teachers to religious schools.  For example, the Court has found programs that supplied publicly-funded teachers to private religious schools violative of the establishment clause.  SeeGrand Rapids School Dist. v. Ball, supra; Aguilar v. Felton, 473 U.S. 402, 87 L. Ed. 2d 290, 105 S. Ct. 3232 (1985).

            InBall, the Court examined two programs devised by the school district of Grand Rapids.  For one of the two programs, known as the Shared Time program, the district hired instructors to teach secular courses -- such as remedial and advanced mathematics, reading, art, music, and physical education -- in classrooms leased from private religious schools.  Students from the private religious schools received instruction from these teachers during their regular schoolday.  For the other program, known as the Community Education program, the district also hired instructors to teach secular courses -- in this case, arts and crafts, home economics, Spanish, gymnastics, yearbook production, and so on -- in classrooms leased from private religious schools.  Community Education classes, however, were offered after the regular schoolday ended.  Although the Community Education classes were open to both children and adults, the students attending these classes were the same students who attended the private religious schools in which the classes were conducted.  Almost all of these schools were pervasively sectarian.  Id. at 379.

            The Court held that both programs failed the second prong of theLemon test.  According to the Court, the programs could advance religion in three ways.  First, teachers in the program could intentionally or unintentionally inculcate in their students particular religious tenets or beliefs.  Id. at 385.  As the Court wrote, "[t]eachers in [a pervasively sectarian] atmosphere may well subtly (or overtly) conform their instruction to the environment in which they teach, while students will perceive the instruction provided in the context of the dominantly religious message of the institution, thus reinforcing the indoctrinating effect."[2]  Id. at 388.

            Second, the programs could provide a symbolic link between government and the religious denominations that operated the schools at which program courses were offered.  Id. at 385.  Conducting the program courses in a pervasively sectarian environment made it very difficult for students to discern the difference between private, religious instruction and public, religion-neutral instruction.  Id. at 391-92.  Even if the teachers did not espouse a religious message, therefore, the programs "foster[ed] a close identification of [government] powers and responsibilities with those of religion," thereby advancing religion.  Id. at 389.

            Finally, the programs could subsidize the primary religious mission of the pervasively sectarian schools.  Id. at 385.  They would do so by relieving the religious schools of the responsibility for providing secular instruction, thus allowing the schools to use their funds instead to further their religious objectives.  Id. at 397.

            InAguilar v. Felton, decided at the same time as Ball, the Court also concluded that a program in which publicly-paid instructors taught secular courses in pervasively sectarian schools violated the establishment clause.  The City of New York, which ran the program challenged in Aguilar, had added a safeguard missing from the programs challenged inBall:  it arranged for supervisors periodically to visit the classes, unannounced, to ensure that the teachers did not convey religious messages to their students.  Aguilar, 473 U.S. at 406-07.  While this safeguard may have avoided some of the dangers the Court found in theBall programs, it caused the program to fail the third prong of theLemon test, the excessive entanglement element.  Monitoring the content of the secular curriculum, as well as the presence of religious symbols in the classrooms in which program instructors taught, resulted in government intrusion into the affairs of the religious school.  Id. at 413.  This, the Court said, was forbidden by the establishment clause.

            Your question to us provides no details of how the student teacher program would operate -- whether, for example, the public college or university would supervise the student it placed, or whether it would provide payment to the religious school.  Furthermore, you do not specify the particular religious schools in which the students would be placed.  Courts' analyses of establishment clause issues often hinge on the specifics of a particular program.  Similarly, the determination whether a school is pervasively sectarian is very fact-specific.  Without these details, we cannot provide a complete answer to your question.

            Based on the principles articulated in the cases cited above, however, we believe that courts probably would find the assignment of teacher certification candidates enrolled at public institutions of higher education to student teaching posts in pervasively sectarian schools violative of the establishment clause of the federal constitution, even if the candidates taught only secular courses.

            We do not believe that the establishment clause would prohibit the assignment of student teachers to private, religiously-affiliated schools that did not meet the courts' definition of pervasively sectarian.  Of course, we offer no opinion whether particular religiously-affiliated schools in this state would be deemed pervasively sectarian.

            Finally, we briefly consider the restrictions of the Washington constitution.  Article 1, section 11 provides in pertinent part as follows:

            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.

            Washington courts have not been asked to decide whether the placement of student teachers in private, religiously-affiliated schools would violate this provision.  In general, however, this portion of the state constitution is interpreted as requiring even a stricter separation between church and state than is required by the establishment clause of the federal constitution.  SeeWitters v. Commission for the Blind, 112 Wn.2d 363, 370, 771 P.2d 1119, cert. denied 493 U.S. 850 (1989).  It seems likely, therefore, that the placement of student teachers in pervasively sectarian schools would be found violative of article 1, section 11 of the state constitution.

            We trust that this opinion will assist you.

                                                                        Very truly yours,

                                                                        TANYA BARNETT
                                                                        Assistant Attorney General

    [1]  The court quoted the following from a brochure that one of the schools provided to prospective students:

            On the basketball court, in the chemistry lab, around the lunch table, during a hard test, at Mass, in the morning when you greet friends in the hall, and at night when you wave good-bye from your bus, God is the center of all we do.

            Stark, 802 F.2d at 1050.

    [2]  The Court has been more willing to allow public entities to provide to pervasively sectarian schools services that do not afford "the same opportunity for the transmission of sectarian views as attends the relationship between teacher and student."  Wolman v. Walter, 433 U.S. 229, 244, 53 L. Ed. 2d 714, 97 S. Ct. 2593 (1977).  InWolman, the Court found no constitutional infirmity in a state law that authorized expenditures for diagnostic speech, hearing, and psychological services at private religious schools.  Such services had little or no educational content, the Court wrote.  Id.  Furthermore, the diagnostician had limited contact with students, and that contact primarily involved the use of "objective and professional testing methods."  Id.

            Services that are offered in locations other than pervasively sectarian schools also are more likely to survive scrutiny under the establishment clause.  InWolman, the Court upheld the provision of publicly-funded therapeutic, guidance, and remedial services to religious school students, "[s]o long as these services are offered at truly religiously neutral locations."  Id. at 247.  At such locations, there was little danger that therapists and counselors would succumb to pressures of the religious environment that might alter their normal behavior.  Id.