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AGLO 1974 No. 12 -
Attorney General Slade Gorton


House Bill No. 1021, a bill proposing to prohibit school districts from teaching either creation or evolution unless both are granted equal time, would probably be unconstitutional if enacted in its present form.

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                                                                 January 29, 1974

Honorable Edward G. Ellis
State Representative, 14th District
Legislative Building
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1974 No. 12

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office with respect to the constitutionality of House Bill No. 1021, a measure presently pending before the state legislature.

            We respond to your inquiry in the manner set forth in the following analysis.


            House Bill No. 1021, which was sponsored by Representatives Pullen and Paris and is presently pending before the house committee on education, is entitled:

            "AN ACT Relating to education, and the teaching of multiple philosophical viewpoints (thought by some to be scientific or religious) in certain public educational insitiutions; and adding a new section to chapter 223, Laws of 1969 ex. sess. and to chapter 28A.05 RCW."

            The new section thus to be added to the education code, as set forth in § 1 of the bill, reads as follows:

            "Neither evolution (natural materialistic process) or creation (by fiate) shall be taught or promoted in the public schools, orally, or by selection of materials used, to the exclusion of the other basic viewpoint.  Both shall receive equally serious consideration and fair treatment within the context of the subject matter under consideration at the time.

             [[Orig. Op. Page 2]]

            "Theistic evolution (the belief that the creator acted through the process of evolution) is not to be considered as an acceptable attempt to teach both viewpoints at once.

            "Further, neither catastrophisa (the belief that changes have come about quickly, closely associated with the creation concept) or uniformitarianism (the belief that changes have come very slowly over very long periods of time, closely associated with the evolution viewpoint) shall be taught or promoted in the public schools, orally, or be selection of materials used, to the exclusion of the other, as an explanation of the present condition of the earth, or the process by which it came to be in its present state.

            "Each school district shall conduct in-service workshops and/or training sessions to adequately prepare all teachers for the above requirements by exposing them to the concepts, assumptions, and rationale underlying each basic viewpoint.

            "Textbooks, reference materials and other instructional materials touching on these areas, if they present these viewpoints as fact, shall be replaced by materials that are either unbiased, or in which the bias is acknowledged, when they would normally be replaced by reason of wear, deterioration, depreciation, or in the process of the selection of new texts, reference materials or instructional materials."

            Except as it may be restricted by some specific provision of our state or federal Constitution, the legislature has plenary power over the operation of all public school districts in this state.  Accord, AGLO 1974 No. 1 [[to Jeff Douthwaite, State Representative on January 4, 1974, an Informal Opinion AIR-74501]].  Such districts have only those powers that have been granted to them by the legislature, either expressly or by necessary implication.  Seattle High School Ch. No. 200 v. Sharples, 159 Wash. 424, 293 Pac. 994 (1930);Juntila v. Everett School Dist. No. 24, 178 Wash. 637, 35 P.2d 78 (1934).  Conversely, a school district may not lawfully  [[Orig. Op. Page 3]] engage in any activity which the legislature has prohibited it from doing ‑ assuming the constitutional validity of the legislative act.

            The first constitutional restriction to be noted in considering the validity of House Bill No. 1021, is Amendment I to the United States Constitution, which is applicable to the states as well as to Congress by virtue of the due process clause of Amendment XIV,1/ and provides that:

            "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

            InEpperson v. Arkansas, 393 U.S. 97, 21 L.Ed. 2d 228, 89 S.Ct. 266 (1968), the United States Supreme Court held this provision to render unconstitutional a statute declaring the teaching of evolution to be unlawful in the public schools of Arkansas.  Thus, if that was what House Bill No. 1021, supra, purported to do here as well, our consideration of your question would have to proceed no further.  But because this bill, instead of attempting to prohibit the teaching of that theory of the origin of mankind, allows it to be taught so long as "equal time," so to speak, is given to the teaching of the Biblical theory or concept of devine creation, we must look beyond the First Amendment and the Epperson case to certain provisions of our own state Constitution and related cases.

            Article I, § 11 of the Washington Constitution provides that:

            ". . . No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, . . ."

            In addition, Article IX, § 4 requires that:

             [[Orig. Op. Page 4]]

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

            In the early case ofState ex rel. Dearle v. Frazier, 102 Wash. 369, 173 Pac. 35 (1918), our court held that these provisions bar the teaching of any Bible study courses for high school credit in the public schools of Washington.  More recently, however, inCalvary Bible Presb. v. Bd. of Regents, 72 Wn.2d 912, 919, 436 P.2d 189 (1967), the court in upholding a course entitled "The Bible as Literature" at the University of Washington, limited their thrust (at least at the university level) to such courses involving the Bible as are ". . . devotional in nature and designed to induce faith and belief in the student."  In so ruling the court expressed itself, in pertinent part, as follows:

            "The touchstone of the problem is the meaning attributed to 'religious . . . instruction,' as used in article 1, section 11 of our constitution.  It must be kept in mind that the words appear after two more specific terms:  'worship' and 'exercise.'  This, we believe, is an indication that the framers of our constitution did not intend the word 'instruction' to be construed without limit, but that the proscribed field be confined to that category of instruction that resembles worship and manifests a devotion to religion and religious principles in thought, feeling, belief, and conduct, i.e., instruction that is devotional in nature and designed to induce faith and belief in the student.

            "There can be no doubt that our constitutional bars are absolute againstreligious instruction and indoctrination in specific religious beliefs or dogma; but they do not proscribe open, free, critical, and scholarly examination of the literature, experiences, and knowledge of mankind.  If they did, many fields of scholarship ‑ anthropology, zoology, the theory of evolution, astronomy, the germ theory of disease and medical cure, to mention only a few ‑ would have to be removed from our university.  It might be said that the  [[Orig. Op. Page 5]] objective examination of these theories conflicts with the religious beliefs of certain persons entertaining contrary beliefs based upon their religious convictions.  This would, indeed, be true 'sectarian control or influence,' which is prohibited by article 9, section 4 of our constitution.  It would, as Mr. Justice Brennan said so recently,

            "cast a pall of orthodoxy over the classroom.  Keyishian v. Board of Regents, 385 U.S. 589, 17 L.ed. [[L.Ed.]]2d 629, 87 Sup. Ct. 675 (1957)."

            "English 390:  The Bible as Literature" was then upheld by the court in the light of these observations because, in its judgment based upon the evidence, this particular course

            ". . . was taught in a completely objective manner; had no effect on religious beliefs; was not slanted toward any particular theological or religious point of view; did not indoctrinate anyone; did not enter into the realm of belief or faith; and was not taught from a religious point of view."  (p. 921.)

            It is, we think, axiomatic that the imposition of a condition which is impossible of performance upon the lawful performance of some other act is tantamount to a prohibition against that other act.  Accordingly, in terms of the constitutionality of a bill such as House Bill No. 1021,supra, it follows that if such a legislative enactment were to require the theory of devine creation to be taught or promoted in the public schools in the form of religious construction ". . . designed to induce faith and belief in the student . . .," whenever evolution is also taught or promoted in the same school curriculum, it would be clearly unconstitutional.  On the other hand, because it would now appear to be constitutionally permissible for a school district to include both a consideration of the theory of evolution and that of creation within the ambit of its curriculum so long as both theories can be and are taught objectively, without any indoctrination of the students with one  [[Orig. Op. Page 6]] or the other, it is at least possible to conceive of a bill requiring this to be done being upheld by the court.

            What, then about House Bill No. 1021 itself?  In its present form we are troubled, in the light of the foregoing analysis, by two facets of this bill.  First, we are concerned with its use of the phrase "taught or promoted" because both of these words, and most certainly the second, imply an intent to induce belief in that which is being taught ‑ an indoctrination, if you will.  And secondly, we are also bothered by its requirement that:

            "Each school district shall conduct in-service workshops and/or training sessions to adequately prepare all teachers for the above requirements by exposing them to the concepts, assumptions, and rationale underlying each basic viewpoint."

            Our problem with this latter provision is that we find it difficult to see how this mandate can be met without some measurable expenditure of school district funds for some form of ". . . religious worship, exerciseor instruction. . .," contrary to Article I, § 11,supra.

            Because of these two features of House Bill No. 1021, therefore, we believe that if it is enacted in its present form it will more likely than not be held to be unconstitutional if therafter tested in the courts.  If rewritten, however, to eliminate these problem areas and to express a clear intentnot to require or authorize either evolution or creation to be taught in any manner other than as an impartial study of the mere existence of those two competing theories as to the origin of mankind, it would, in our judgment, at least stand a reasonable chance of being constitutionally defensible.

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

Very truly yours,

Attorney General

Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/Engel v. Vitale, 370 U.S. 421, 8 L.Ed. 2d 601, 82 S.Ct. 1261 (1962).