AGO 1962 No. 119 - Apr 20 1962
DISTRICTS ‑- SCHOOLS ‑- BACCALAUREATE EXERCISES ‑- CONSTITUTIONAL AND STATUTORY PROHIBITION AGAINST PARTICIPATION
A school district in the state of Washington is prohibited by the Washington constitution and applicable state law from participating in any way in the planning, promotion or execution of baccalaureate exercises which are religious in nature.
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April 20, 1962
Honorable Wilbur G. Hallauer
State Senator, First District
P.O. Box 70
Cite as: AGO 61-62 No. 119
By letter previously acknowledged you requested an opinion of this office on a question which we paraphrase as follows:
Does the Washington constitution or any state law prohibit a school district of the state of Washington from (1) participating in any way in the planning, promotion or execution of baccalaureate exercises or (2) making school premises available without payment of a rental fee for the conduct of baccalaureate exercises?
We answer part (1) of your question in the manner set forth in our analysis thus rendering unnecessary an answer to part (2).
As defined by Webster's Dictionary, New 20th Century Edition, a "baccalaureate" is "an address or sermon delivered to a graduating class at commencement; alsobaccalaureate sermon. . . pertaining to the degree of bachelor or to the conferring of it; as a baccalaureate sermon." (Emphasis supplied.) "Sermon" is defined in the same dictionary as "a discourse delivered in public, especially by a clergyman or preacher in a pulpit using a text from Scripture, for the purpose of religious instruction or the inculcation of morality; a similar discourse written or printed, whether delivered or not; . . ."
In the context of these definitions, we assume that the baccalaureate exercises to which you refer would be religious in nature, invoking a church-state relationship.
[[Orig. Op. Page 2]]
However, we wish to point out that pre‑commencement activities which might be labeled as baccalaureate exercises and are nonreligious in nature would not necessarily invoke the same problems of church-state relations. Indeed, it might be said that each individual baccalaureate should be judged on its own merits to determine whether or not it is essentially "religious" and "sectarian" in nature and, therefore, whether a problem of church-state relations in the constitutional sense is precipitated by the conduct of such an exercise. In such a situation it is our opinion that the individual school administrators concerned should be guided in the conduct or planning of such exercises by the following authorities. Thus, participation by a clergyman in the opening or closing of a public program cannot be considered, in and of itself, as making the program one of religious activity forbidden by the constitution.
The question is one essentially of church-state relationship, a question which the supreme court of the state of Washington, the United States supreme court and other courts of the United States and the several states of the United States have dealt with on numerous occasions. The following discussion of the leading decisions of the supreme court of the state of Washington and leading decisions from other jurisdictions, and references to the constitution of the state of Washington, will be helpful to the administrators of school districts and the planners of baccalaureate exercises in determining the bounds of discretion within which they may act without violating the rule of strict construction traditionally applied in the field of church-state relations.
In striking down a plan to allow school credits for Bible study done outside the school, the Washington state supreme court held, in State ex rel. Dearle v. Frazier, 102 Wash. 369, 173 Pac. 35, 8 A.L.R. 685 (1918).
"The framers of the constitution were not content to declare that our public schools should be kept free from sectarian control or influence; they went further and made it certain that their declaration should not be overcome by changing sentiments or opinions. They declared that 'no public money or property shall ever be appropriated or applied to anyreligious worship, exercise or instruction,' and in this respect our constitution differs from any other that has been called to our attention." (Emphasis supplied.) (p. 374.)
[[Orig. Op. Page 3]]
The court went on to declare:
"We shall not go far afield when we suggest that it is a matter within the common knowledge of those who followed the discussion attending the framing of our constitution that it was the purpose of the men of that time to avoid all of the evils of religious controversies, the diversion of school funds to denominational schools and institutions, and the litigation that had occurred in other states. For it was known that religious opinion is a thing that men will fight for, and sometimes in most insidious ways. The question then was‑-and the people who adopted the constitution were so advised‑-whether we should adopt a constitution which provided in terms that no religious instruction should ever be a part, directly or indirectly, of the curriculum of our schools.
"To compromise opinion in these matters is to lead to confusion which would make the courts the arbiter of what is and what is not religious worship, instruction, or influence, which would be as intolerable to the citizen as it would be to leave a decision to a school board. . . ." (p. 381.)
Noteworthy in the same connection is the language contained in the concurring opinion, Weaver, C.J., in the more recent case of Perry v. School District No. 81, 54 Wn. (2d) 886, 344 P. (2d) 1036 (1959):
". . . I wish to point out, however, that Art. IX, § 4, of the Washington constitution, which provides
"'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.',
is more proscriptive than the other constitutional provisions discussed in the opinion.
[[Orig. Op. Page 4]]
"That it is so is the result of deliberate action by the constitutional convention of 1899. It appears from the journal of the Washington State Constitutional Convention, 1889, p. 335 (unpublished; the original is in the office of the Secretary of State), that J. Z. Moore, a member of the convention and a lawyer from Spokane, moved to strike the words 'or influence' from the section. The motion lost 39 to 11." (p. 898.)
We note a prior opinion of this office dated November 1, 1930 [[1929-30 OAG 864]], addressed to the then President of the University of Washington. At that time the question was asked whether the holding of prayer and having a minister of the Gospel deliver a sermon on Commencement Sunday at the University violated the state constitution. This office answered in the negative, stating that while such exercises constituted a form of religious exercise or worship, the maxim of de minimis non curat lex should be invoked and the practice thereby approved. The case ofState ex rel. Conway v. District Board, 162 Wis. 482, 156 N.W. 477 (1916) was cited with approval in the opinion of this office dated November 1, 1930,supra. TheConway case, supra, and Miller et al. v. Cooper et al., 56 N.M. 355, 244 P. (2d) 520 (1952), both differ factually from the question we are discussing. In both instances the legality of holding baccalaureate exercises in churches, rather than on school premises, was the subject under consideration.
Our supreme court in thePerry case, supra, upholding a religious released-time program conducted by the Spokane School District said, insofar as the general problem of separation of church and state is concerned:
". . . This court, . . . has consistently strictly construed our state's constitutional prohibition against the use of public funds for any religious purpose, and has likewiseso construed the constitutional mandate that our schools supported by public funds shall be free from sectarian control or influence. SeeState ex rel. Dearle v. Frazier, 102 Wash. 369, 173 Pac. 35, 8 A.L.R. 685 (1918);State ex rel. Clithero v. Showalter, 159 Wash. 519, 293 Pac. 1000 (1930);Mitchell v. Consolidated School Dist. No. 201, 17 Wn. [[Orig. Op. Page 5]] (2d) 61, 135 P. (2d) 79, 146 A.L.R. 612 (1943);Visser v. Noksack Valley School Dist. No. 506, 33 Wn. (2d) 699, 207 P. (2d) 198 (1949)." (Emphasis supplied.) (p. 891.)
In the course of its opinion 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 in a manner not inconsistent with the constitutional limitations as outlined in this opinion." (Emphasis supplied.) (p. 897.)
While the court upheld the constitutionality of the released-time program generally, it did strike down certain aspects of the program.
"We hold the following practice in the released-time program, permitted by the respondent, to be in contravention of [[Orig. Op. Page 6]] Art. I, § 11 (as amended) and Art. IX, § 4 of the state constitution, i.e., the distribution of cards in public schools, or themaking 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." (Emphasis supplied.) (p. 898.)
The limitation placed on such a program was necessary because of the mandate of our constitution.
Article I, section 11 (Amendment 34) of the Washington state constitution 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: . . ."
Article IX, section 4, of the Washington state constitution provides:
"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."
See also RCW 28.02.040 which provides:
"All schools maintained or supported wholly or in part by the public funds shall be forever free from sectarian control or influence."
As far as the making of announcements by representatives of religious groups or school instructors relative to the program, in classes on school premises, the court went on to say:
"This practice has the further effect of influencing the pupils, while assembled in the classrooms, as a 'captive audience' to participate in a religious [[Orig. Op. Page 7]] program, contrary to the express provisions of Art. IX, § 4 of our state constitution:
"'. . . All schools maintained or supported wholly or in part by the public funds shall be forever free from sectarian control or influence.' (Italics ours.)" (pp. 896, 897.)
From the foregoing discussion of the pertinent provisions of our constitution and the interpretation thereof in the Perry case, supra, we must conclude, that baccalaureate services or precommencement activities which are religious in nature, would violate Article I, section 11, amendment 34, and Article IX, section 4, of the Washington state constitution and also RCW 28.02.040.
It is reasonable to anticipate that affirmative acts of the nature enjoined in thePerry case, supra, would not only be necessary but also a component part in any planning, promotion, or execution of such exercises; for example, announcements or other publicity made in connection therewith. However, we wish to point out that pre‑commencement activities (sometimes mistakenly labeled as baccalaureate exercise), which are nonreligious in nature, are perforce unobjectionable from a constitutional or statutory standpoint.
For a scholarly examination of the question of baccalaureate exercises and the problems it has raised in the state of Wisconsin, see 1953 Wis.L.Rev., pp. 196-207.
In the matter ofBoard of Education of Central School District No. 1 of the Town of Somers, 72 St. Dept. (Educ.) 57 (1951) New York Commissioner of Education restrained a local school district from holding a baccalaureate service on public school premises. It was determined that the proposed baccalaureate was essentially religious in nature and the Commissioner stated:
"A Baccalaureate Service is generally a religious service. The program before me indicates that the proposed service follows the general pattern and is a religious service. The fact that more than one religious denomination were represented on the program would not change its religious character. [Citation omitted]
". . .
[[Orig. Op. Page 8]]
"The courts have said many times that the holding that public property may not be so utilized indicates no hostility to religion on the part of government but rather the complete separation so that the free exercise of religion is in no way hampered by governmental interference. . . ."
The Commissioner further stated:
"The issue before me in this case is not whether the Baccalaureate Service should or should not be held but whether it may legally and properly be held in the school building. It is my view, as indicated heretofore, that the utilization of the type of service represented in this appeal constitutes the teaching of a religious tenet, and the use of the school for such purpose would violate the State Constitution."
The decision of the Commissioner was made without prejudice to the arrangement of separate services for the children of various faiths in the churches of the community.
The fact that baccalaureate exercises are a traditional aspect of the commencement programs of many schools is no doubt a compulsive reason in the minds of many for their continuation. In this connection seeHanna v. Board of Education of Wicomico Co. et al., 200 Md. 49, 87 A. (2d) 846 (1951), where the court of appeals of Maryland, discussing the powers of school boards, stated:
". . . However, we are certain that no Board, regardless of local custom, has the right to ignore or circumvent the mandate of the legislature. As said inRogan vs. Baltimore & Ohio R. Co., 188 Md. 44, 58; 52 A. (2d) 261, 268, no custom, however venerable, can nullify the plain meaning and purpose of a statute."
When constitutional provisions are involved as in the instant case, we need hardly add that this argument is even more conclusive.
To summarize, the holding of our court in the Perry case, supra, the history of strict construction by our supreme court in the [[Orig. Op. Page 9]] field of church-state relations, together with the decision of the New York Director of Education, supra, lead us to conclude that baccalaureate exercises which are religious in nature, for the reasons cited herein above, would be in violation of Article I, section 11, amendment 34, and Article IX, section 4, of the Washington state constitution and RCW 28.02.040.
We trust the foregoing will be of assistance to you.
Very truly yours,
JOHN J. O'CONNELL
JOSEPH B. LOONAM
Assistant Attorney General