Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGLO 1981 No. 16 - Jun 26 1981
Attorney General Ken Eikenberry


The provisions of Article XIII, § 1 of the Washington Constitution do not mean that it would be unconstitutional for the legislature to repeal chapters 72.40 through 72.42 RCW which establish, and relate to the operation of, the state schools for the blind and deaf.

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                                                                   June 26, 1981

Honorable Al Bauer
St. Sen., 49th District
13611 NE 20th Avenue
Vancouver, Washington 98665                                                                                                               Cite as:  AGLO 1981 No. 16

Dear Senator Bauer:

            By recent letter you requested the opinion of this office on certain questions relating to the state schools for the blind and deaf.  We paraphrase the underlying issue raised by your questions as follows:

            In view of Article XIII, § 1 of the Washington Constitution, would it be permissible for the legislature to repeal chapters 72.40 through 72.42 RCW which establish, and relate to the operation of, the state schools for the blind and deaf?

            We answer the foregoing question in the affirmative for the reasons set forth in our analysis.1/

             [[Orig. Op. Page 2]]


            Article XIII, § 1 of the Washington Constitution reads as follows:

            "Educational, reformatory and penal institutions; those for the benefit of blind, deaf, dumb, or otherwise defective youth; for the insane or idiotic; and such other institutions as the public good may require, shall be fostered and supported by the state, subject to such regulations as may be provided by law. . . ."

            Interestingly, however, the original law providing for the establishment‑-in the city of Vancouver‑-of a school for the blind and a separate school for the deaf was actually passed by the Washington Territorial Legislature in 1886, three years prior to statehood and the adoption of the constitution.  See, Laws or 1886, page 136, § 1.  Subsequently, numerous additional laws have been passed to govern administration of the schools, criteria for admission, and other related matters.  The complete set of statutes relating to the two schools is now codified in chapters 70.40, 70.41 and 70.42 RCW.

            Your question is whether, in view of Article XIII, § 1, supra, the legislature may repeal those statutes and, thereby, close down and terminate the schools.2/   We believe that it may do so.

             [[Orig. Op. Page 3]]

            As a general proposition, it must be kept in mind that the legislature possesses all general legislative power not specifically or by fair inference denied by the constitution.Fain v. Chapman, 89 Wn.2d 48, 569 P.2d 1135 (1977);Clark v. Dwyer, 56 Wn.2d 425, 353 P.2d 941 (1960); andStandard Oil Co. v. Graves, 94 Wash. 291, 162 Pac. 558 (1917).  And likewise, it is also well settled that it is the exclusive prerogative of the legislature to amend or repeal its own statutes.  City of Union Gap v. Carey, 64 Wn.2d 43, 390 P.2d 674 (1964).  Bearing these points in mind, the question to be resolved is whether the obligation of the state, under Article XIII, § 1, supra, is nevertheless such as to require retention of those particular statutes to which you have referred.

            In order to determine the obligation of the state under Article XIII, § 1, we must analyze the words "shall foster and support."  That constitutional language has been the subject of only a few cases.  See,State v. Pierce County, 132 Wash. 155, 231 Pac. 801 (1925); State ex rel. Board of Commissioners v. Clausen, 95 Wash. 214, 163 Pac. 744 (1917); and Duffy v. Social and Health Services, 90 Wn.2d 673, 585 P.2d 470 (1978); see also, AGO 65-66 No. 101.  The proposition for which those cases stand, essentially, is that the constitution does not require full funding in support of those institutions therein referred to to come from the state.  Thus, in the early case ofState v. Pierce County, supra, the Court indicated that Article XIII, § 1 allows the legislature much discretion in determining the sort and nature of illness or informity to be treated as well as the method and extent of financial support which the state is to provide.  The Court also noted, in that case, that similar constitutional provisions in other states have been held not to be self-executing; meaning, again, that it is basically up to the legislature to determine how the state is to "foster and support" its institutional assistance for the mentally ill or handicapped.  In turn, in the recent case of Duffy v. DSHS,supra, the Court reaffirmed its holding inState v. Pierce Countysupra, and again ruled that the "shall foster and support" language of Article XIII, § 1 does not require that ". . . all funds supporting such institutions come from the state."

            From the foregoing we conclude, therefore, that it would be constitutional for the legislature to repeal the statutes  [[Orig. Op. Page 4]] cited in your questions, governing the schools for the blind and deaf.  And, because Article XIII, § 1 is not self-executing, repeal of those statutes would effect the closure of these institutions.

            This is not to say, however, that Article XIII, § 1 imposes no obligation on the part of the state to provide programs and facilities of any kind for persons, particularly the young, who are blind or deaf.  Instead, we believe that the constitution does anticipate that the state will provide for those persons in some manner, just as it must provide for the insane and felons under the same provision.  But, having said that, we also are of the opinion that this obligation is now adequately discharged through other programs currently in effect; most notably, the special education program for school age children which is provided for by chapter 28A.13 RCW.

            Chapter 28A.13 RCW codifies the provisions of chapter 66, Laws of 1971, 1st Ex. Sess. and it basically requires that each school district in the state provide an appropriate educational opportunity and give other appropriate aid and special attention to handicapped children.  "Handicapped children" are defined, in RCW 28A.13.010, as:

            ". . .

            ". . . those children in school or out of school who are temporarily or permanently retarded in normal educational processes by reason of physical or mental handicap, or by reason of emotional maladjustment, or by reason of other handicap, and those children who have specific learning and language disabilities resulting from perceptual-motor handicaps, including problems in visual and auditory perception and integration.

            ". . ."

            Thus, the term clearly includes the deaf and the blind.  Further, we believe that the common schools, themselves, are a form of "institution" for the purpose of Article XIII, § 1.  [[Orig. Op. Page 5]] See, State ex rel. Blakeslee v. Clausen, 85 Wash. 260, 148 Pac. 28 (1915).  Accordingly, support of special education programs in the common schools would, under this analysis, be tantamount to fostering and supporting institutions for the blind and deaf.


            In summary, for the above‑stated reasons, we conclude that the legislature could repeal the statutes establishing the state schools for the blind and deaf without violating the provisions of Article XIII, § 1 of the state constitution, supra.  It is our opinion, however, that Article XIII, § 1 imposes some obligation on the part of the state to provide educational programs for the blind and deaf children of the state.  But, in our opinion, the provision of services to those children pursuant to chapter 28A.13 RCW satisfies that obligation.3

Very truly yours,

Attorney General

Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/You have also asked, parenthetically, whether any federal law would require continued operation of the state schools for the blind and deaf.   Our research has revealed no such federal law, and we believe none exists.  As explained below, the state schools to which you refer were created by the legislature, in its discretion, pursuant to the state constitution.  No federal law mandates continuation or prevents closure of those institutions.

2/We note in this regard that § 52(2) of the recently enacted 1981-83 state budget act requires the Department of Social and Health Services, in conjunction with the State Superintendent of Public Instruction and a legislative study committee, to study the services provided by the state schools for the blind and deaf‑-presumably with an eye toward such possible legislative action in 1983.   We also note, in passing, that although Article XIII, § 1, supra, speaks, as well of ". . . institutions . . . for the benefit of . . . dumb or otherwise defective youth . . ." no separate school for such speechless persons has ever been established.

3/It thus follows that repeal of chapter 28A.13 RCW would, in addition to endangering eligibility for certain federal funding, raise a constitutional question regarding Article XIII, § 1 as well as Article IX, §§ 1 and 2 relating to the common school system.   However, examination of that issue is beyond the scope of the question here presented.