AGO 1977 No. 11 - May 6 1977
DISTRICTS ‑- SCHOOLS ‑- CHURCHES ‑- RELIGION ‑- CONSTITUTIONALITY OF MANDATORY MINUTE OF SILENCE FOR MEDITATION OR PRAYER
Legislation providing for a mandatory minute of silence at the commencement of each school day in the public schools of our state, to be observed for meditation or prayer at the discretion of the students involved, would, if enacted by the state legislature, be constitutionally defensible.
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May 6, 1977
Honorable Jerry Hughes
State Representative, Fifth District
345 House Office Building
Olympia, Washington 98504
Cite as: AGO 1977 No. 11
By letter previously acknowledged you have directed our attention to House Bill No. 736, currently pending before the legislature, which, if enacted, would establish the following requirement within the common schools of our state:
"At the commencement of the first class of each day in all grades in all common schools the teacher in charge of the room in which each such class is held shall announce that a period of silence not to exceed one minute in duration shall be observed for meditation or prayer, and during any such period silence shall be maintained and no activities engaged in."
You have then asked for our opinion regarding the constitutionality of such a law. We respond to your inquiry in the manner set forth below.
In the spring of 1962 the United States Supreme Court, in [[Orig. Op. Page 2]] a landmark decision, held it to be unconstitutional under the First Amendment to the United States Constitution,1/ which is applicable to the states as well through the Fourteenth Amendment,2/ for a state to require a prayer to be said at the beginning of each school day in its public schools. See,Engel v. Vitale, 370 U.S. 421, 8 L. [[L.Ed.]]2d 601, 82 S.Ct. 1261 (1962);3/ - and also, Abington School District v. Schempp, 374 U.S. 203, 10 L.ed. [[L.Ed.]]2d 844, 83 S.Ct. 1560 (1963).4/ Since then, various attempts, some successful and some not, have been made either to overcome the effects of that decision by a constitutional amendment (so far unsuccessful) or to side step it by a different form of either mandatory or permissive conduct.
House Bill No. 736 obviously represents one such effort and, in our opinion, its proponents are on sound ground as far as any question of its constitutionality under the First Amendment is concerned. Simply stated, such is the case because of the fact that House Bill No. 736 is identical, in all material respects, to a Massachusetts law the constitutionality of which was only recently upheld by a unanimous three‑judge federal district court panel inGains v. Andrews, 421 F.Supp. 337 (1976). In so ruling the court relied upon [[Orig. Op. Page 3]] the fact that the law provided for secular meditation as a permissible alternative to sectarian prayer during its prescribed minute of silence ‑ saying, at p. 344:
"We think that the lack of any mandatory direction to students to meditate or pray clearly indicates a legislative purpose to maintain neutrality, and that the defendants understand this to be the statutory purpose and effect. The fact that the Framingham program provides an opportunity for prayer for those students who desire to pray during the period of silence does not render the program unconstitutional. See McGowan v. Maryland,supra; Everson v. Board of Education,supra."
The court then distinguishedEngel v. Vitale, supra, and Abington School District v. Schempp, supra, as follows:
"The Supreme Court has held that it is no part of the business of the state to direct the recitation of officially prescribed prayers in the classrooms of public schools,Engel v. Vitale, supra, or to require the reading of verses from the Bible and public recitation of the Lord's Prayer at the opening of the school day by pupils in unison. Abington School Dist. v. Schempp, supra. In those cases the Court found the prayer exercises to be religious, and violative of the First Amendment even if individual pupils could be excused from attending or participating in the exercises. But the statutory schemes in Engel and Schempp had features not present in the statute and guidelines before us, which persuade us that neither Engel nor Schempp necessarily controls this case. We think that the absence of any mandate by the statute or the teacher to the students to participate in prayer is not an attempt to save an unconstitutional program of school prayer, seeEngel v. Vitale, supra; Abington School Dist. v. Schempp,supra, but, as we have seen, shows a legislative purpose to maintain neutrality. . . ."
While this decision is only that of a lower federal court which has not been appealed to the supreme court, its reasoning seems entirely valid to us. Therefore, on the basis [[Orig. Op. Page 4]] thereof, it is our opinion that a law such as is proposed by House Bill No. 736, if enacted in its present form, would likewise most likely be held not to be violative of Amendment I to the United States Constitution,supra.
There remains, however, an additional question to be considered in this opinion since our own state constitution also contains provisions dealing with the separation of church and state. First, there is in Article I, § 11 (Amendment 34) the following prohibition:
". . . 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: . . ."
And then, in addition, Article IX, § 4 of the Washington constitution (which deals specifically with the public schools) says that:
"All schools maintained or supported wholly or in part by the public funds shall be forever free from sectarian control or influence." (Emphasis supplied.)
Moreover, it is clear that these are more stringent constitutional restrictions than those contained in the First Amendment, as is perhaps best illustrated by a comparison ofVisser et al. v. Nooksack Valley School Dist., 33 Wn.2d 699, 207 P.2d 198 (1949), with Everson v. Board of Education, 330 U.S. 1, 91 L. [[ L.Ed.]]2d 711, 67 S.Ct. 504 (1945). In the Vissercase the Washington supreme court struck down the incidental use of public school buses to transport children to sectarian private schools even though that very practice had been upheld by the United States Supreme Court in Everson, saying, at pp. 711-12:
"Our own state constitution provides that no public money or property shall be used in support of institutions wherein the tenets of a particular religion are taught. Although the decisions of the United States supreme court are entitled to the highest consideration as they bear on related questions before this court, we must, in light of the clear provisions of our state constitution and our decisions thereunder, respectfully disagree with those portions of the Everson majority opinion which might [[Orig. Op. Page 5]] be construed, in the abstract, as stating that transportation, furnished at public expense, to children attending religious schools is notin support of such schools. While the degree of support necessary to constitute an establishment of religion under the first amendment to the Federal constitution is foreclosed from consideration by reason of the decision in theEverson case, supra, we are constrained to hold that the Washington constitution, although based upon the same precepts, is a clear denial of the rights herein asserted by appellants.
"Speaking from the viewpoint of Art. I, § 11, and Art. IX, § 4, of our constitution, we are in full accord with the following pronouncement made by Justice Rutledge in his dissenting opinion in the Everson case, supra:
"'By no declaration that a gift of public money to religious uses will promote the general or individual welfare, or the cause of education generally, can legislative bodies overcome the Amendment's bar. Nor may the courts sustain their attempts to do so by finding such consequences for appropriations which in fact give aid to or promote religious uses. [Citing cases.] Legislatures are free to make, and courts to sustain, appropriations only when it can be found that in fact they do not aid, promote, encourage or sustain religious teaching or observances, be the amount large or small. No such finding has been or could be made in this case. The Amendment has removed this form of promoting the public welfare from legislative and judicial competence to make a public function. It is exclusively a private affair.'"5/
Therefore, the fact that a law such as is proposed by House Bill No. 736 has been upheld on First Amendment grounds by a [[Orig. Op. Page 6]] federal court6/ does not necessarily mean that such a law would also pass muster under the above referenced sections of the Washington constitution; and it is thus for that reason we must proceed further in order to answer your present question.
The obvious point of vulnerability in the bill as now written is, of course, its inclusion of the phrase "or prayer." Without that phrase the bill would only require a minute of silence for the purpose of "meditation" and thus would have no apparent religious or sectarian overtones at all. In fact, it is notable in that regard that the original, 1966, version of the Massachusetts law after which House Bill No. 736 has been modeled also only spoke of meditation and that law was not even challenged in the courts until after the 1973 Massachusetts legislature amended it to read ". . . meditation or prayer. . ."7/ Accordingly, in terms of the more stringent Washington constitution the question presented by your request, referring as it does to the bill in its current form, is essentially as follows:
Would a state law requiring a brief period of silence at the commencement of each school day (a) for prayer (also, of necessity, in silence) by those students or teachers desiring to pray, or (b) for silent meditation by those preferring to do that instead, because it would thus permit school facilities to be used for a limited type of sectarian activity, have the effect of either:
(a) Causing public funds or property to be applied to religious worship or the support of any religious establishment;8/ or
(b) Injecting a constitutionally impermissible degree of sectarian influence into the public schools?9/
In addition to theVisser andMitchell cases, supra, there are several other cases which are worthy of note for the purpose of seeing how Article I, § 11 (Amendment 34) and [[Orig. Op. Page 7]] Article IX, § 4,supra, are looked upon by the Washington court with particular reference to the use of school property or facilities.10/ Chronologically, the first of those cases is State ex rel. Dearle v. Frazier, 102 Wash. 369, 173 Pac. 35 (1918), which involved a plan to allow public school credits for Bible study done outside the school. In striking down that plan the court said, at p. 374:
"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.)
The court then went on to say, at p. 381:
"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 [[Orig. Op. Page 8]] 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. . . ."
Next to be noted isPerry v. School Dist. No. 81, 54 Wn.2d 886, 344 P.2d 1036 (1959). At issue in that case was a "released time" program under which students desiring to participate (the program being entirely voluntary) in off-campus religious instruction were "released" from school at ". . . the appointed hour for religious instruction, . . ." in order to do so. In addition, however, representatives of the religious groups involved and school instructors were allowed to distribute enrollment cards and make announcements regarding the program ". . . in the classrooms or on school premises . . ." The court upheld the basic concept of the program as not being violative of Article I, § 11 (Amendment 34) or Article IX, § 4, saying, at p. 897:
"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:
[[Orig. Op. Page 9]]
"'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.)
However the court then struck down the related use of school facilities for the distribution of enrollment cards and the making of announcements relative to the program. With reference to this aspect of the plan the court ruled both Article I, § 11 (Amendment 34) and Article IX, § 4 to be violated, saying, (at p. 896):
". . . this is ause of school facilities supported by public funds for the promotion of a religious program, which contravenes Art. I, § 11 of our state constitution. State ex rel. Dearle v. Frazier,supra; State ex rel. Clithero v. Showalter, supra;Mitchell v. Consolidated School Dist. No. 201,supra;Visser v. Nooksack Valley School Dist. No. 506, supra.
"This practice has the further effect of influencing the pupils, while assembled in the classrooms, as a 'captive audience' to participate in a religious 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.)"
Another case to be considered in connection with the question of using school facilities or property for religious purposes is the even more recent case ofCalvary Bible Presb. v. Bd. of Regents, 72 Wn.2d 912, 436 P.2d 189 (1967), which involved a course of study designated "English 390: The Bible as Literature" as offered by the University of Washington. [[Orig. Op. Page 10]] In ruling upon the constitutional validity of that course 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 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. Kevishian v. Board of Regents, 385 U.S. 589, 17 L.Ed. 2d 629, 87 Sup.Ct. 675 (1967)."
"English 390: The Bible as Literature" was then upheld by the court in the light of these observations because, [[Orig. Op. Page 11]] 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)
At the same time, however, the court reaffirmed its earlier decision inState ex rel. Dearle v. Frazier, supra, on the basis of what it apparently viewed as having there been a materially different factual situation, saying, at p. 922:
"Dearle was an action of mandamus to force the school board to give the petitioner an examination in the course of Bible study and to give high school credits for graduation therefor. Clearly, the program set up by the state board of education and the local school board violated our constitutional prohibitions."11/
In addition to these cases there are a number of prior opinions of this office of which mention should be made. In AGO 57-58 No. 82 [[to Wilbur G. Hallauer, State Senator, on June 13, 1957]], for example, relying mainly on theDearle case, we ruled that it would be unconstitutional for the University of Washington to
". . . authorize and assist in the presentation of a program on the campus wherein representatives of various religious groups and University personnel speak and participate in meetings in the classrooms for the purpose of promoting certain religious attitudes."
And in AGO 61-62 No. 118 [[to Wilbur G. Hallauer, State Senator, on April 20, 1962]]we likewise concluded (citing both [[Orig. Op. Page 12]] Dearle and the Perry (released time) cases, supra) that:
". . . the board of directors of a school district may not permit the distribution of Gideon Bibles on school premises by either school employees or representatives of the Gideon Society in view of the prohibition found in the constitution and statutes of this state regarding separation of church and state."
Similarly in AGO 61-62 No. 119 [[to Wilbur G. Hallauer, State Senator, on April 20, 1962]], a companion opinion written on the same day, we also advised that:
"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."
Then, in AGO 63-64 No. 130 [[to Louis Bruno, State Superintendant of Public Instruction, on December 12, 1964]], relying on so much of Perry v. School Dist., supra, as sustained the concept of released time12/ we upheld the correlative idea of "shared time"; i.e., permitting students enrolled in private or parochial schools also to attend public schools on a part time basis. In so concluding we said, at pp. 10-11 of that opinion:
". . . We believe that thePerry 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. 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. [[ L.Ed.]]954, 72 S.Ct. 679 (1951). Quoted with approval [[Orig. Op. Page 13]] from Zorach was the following passage:
"' . . . Here, as we have said, the public schools do no 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.)
"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."
Also of note is a somewhat earlier letter opinion written to the University of Washington on October 10, 1956, in which this office advised that so long as it was the policy of the University to rent its athletic stadium to various outside groups when not needed for school functions it would not be violative of Article I, § 11 (Amendment 34),supra, for the stadium to be rented, on the same basis, to a religious organization for the purpose of ". . . an open-air meeting, nonsectarian in nature, and devoted to the subject of prayer." Contrast, AGO 57-58 No. 82,supra, where the University itself was to develop and present a religious program.
Finally and most recently, in AGLO 1974 No. 12 [[to Edward G. Ellis, State Representative, on January 29, 1974, an Informal Opinion, AIR-74512]], we opined that a then pending bill13/ proposing to require the theory of divine creation to be taught in the public schools whenever [[Orig. Op. Page 14]] evolution is also taught in the same school curriculum ". . . would clearly be unconstitutional . . ." At the same time, however, relying onCalvary Bible Presb. v. Board of Regents,supra,14/ we advised that with certain changes the bill might nevertheless be salvaged, saying, at pp. 5-6:
". . . 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 or the other, it is at least possible to conceive of a bill requiring this to be done being upheld by the court."15/
What, then, does all of this mean insofar as the constitutionality of a law such as is proposed by House Bill No. 736 is concerned? Clearly, it means that the question presented is an open one ‑ one which has never before been squarely decided (expressly or by analogy) either by this office or by our state supreme court. And thus, we would most certainly expect that if a bill should be enacted in the present form of House Bill No. 736 its validity would soon be the subject of litigation, particularly in view of what is obviously a somewhat controversial issue. In our considered opinion, however, such an enactment would most probably survive such a challenge ‑ not only on federal constitutional grounds as above indicated but on state constitutional grounds as well.
With regard to Article I, § 11 (Amendment 34), supra, we base this prognosis on the premise that whatever else that section of the state constitution may mean, it does not mean that persons may not pray, silently to themselves, simply because they happen to be physically situated within a public school-room or on the premises of some other public institution ‑ including, most certainly, the confines of the state legislature [[Orig. Op. Page 15]] itself. In fact, we have no doubt that most legislators have, at one time or another, done precisely that before speaking out or voting upon some particularly crucial piece of pending legislation. Yet never has it been suggested that such conduct is unconstitutional merely because it occurred within a building constructed and maintained with public funds. In fact, it could well be argued to be a violation of the "free exercise" clause of the First Amendment to the United States Constitution, supra, for a state to attempt to prohibit such limited and unobtrusive religious activity. Cantwell v. Connecticut, 310 U.S. 296, 84 L.ed. [[L.Ed]]1213, 60 S.Ct. 900 (1940). And, of course, under the supremacy clause of the federal constitution16/ not even a state constitutional prohibition can overcome such an expression of a federal constitutional right.
This is not to say, by any means, that a state may not prohibit the use of public facilities by individuals for the purpose of attempting to influence the religious views of others. See, e.g. the very recent decision of our own state supreme court in Kallas v. Dept. of Motor Vehicles, 88 Wn.2d 354, 560 P.2d 709 (1977), holding it not to be a violation of a state employee's constitutional rights under the free exercise clause of the First Amendment to prohibit such an employee from attempting to impose his own religious views on fellow workers during office hours. Government is required by the "establishment" clause of the same federal constitutional provision to maintain a neutrality with regard to religion;17/ and thus it may act to prevent its facilities from being used, even under the aegis of "free exercise," in support of a particular religious establishment. As explained by the court in theKallas case,
". . . The State must be neutral. It cannot thrust belief or nonbelief upon anyone. . . ."18/
Having said that, however, we come perhaps to the crux of the matter here ‑ at least in terms of Article I, § 11 (Amendment 34), supra. If neutrality justifies a ban against the use of public facilities in aid of a given religion it would seem [[Orig. Op. Page 16]] equally logical to say that, in the interest of neutrality, the state may permit its facilities to be used for religious conduct which does not interfere with the rights of others to precisely the same extent as it permits those same facilities to be used for nonreligious conduct of the same basic kind. In fact that is really, in essence, quite close to what we have earlier said in slightly different contexts both in AGLO 1974 No. 12, supra, with regard to the balanced and objective teaching of both the theory of evolution and that of divine creation in the public schools, and in our 1956 letter opinion, supra, in terms of the nondiscriminatory rental of the University of Washington stadium.
This brings us, finally, to Article IX, § 4, supra. Repeated for ease of reference, that provision of our state constitution says that:
"All schools maintained or supported wholly or in part by the public funds shall be forever free from sectarian control or influence." (Emphasis supplied.)
Merely permitting school premises to be used for such limited religious activity as silent prayer would most certainly not result in sectariancontrol of the public schools. Thus, clearly, it is only the underscored additional phrase "or influence" in this provision of our state constitution which poses any problem in terms of legislation such as is proposed by House Bill No. 736. Yet it is also important to note that this phrase was quite deliberately placed in the constitution by its framers at the constitutional convention of 1889. See, the concurring opinion of Weaver, C.J., in Perry v. School Dist., supra, at p. 898.19/
In the Perry case, as we have seen, the court held that the practice of distributing enrollment cards and making announcements in the classrooms regarding the released time program [[Orig. Op. Page 17]] was violative of Article IX, § 4, because it had the effect of influencing the pupils, there assembled, as ". . . a captive audience." Conversely, however, inCalvary Bible Presb. v. Bd. of Regents,supra, the court held that the same constitutional provision ". . . do[es] not proscribe open, free, critical, and scholarly examination of the literature, experiences, and knowledge of mankind, . . ." including the Bible, even though such an objective examination conflicts with the religious beliefs of certain persons based upon their religious convictions.20/
It would not seem to us sufficient, in order to distinguish these two cases, merely to hang one's hat on the fact that English 390, as offered by the University of Washington, was an elective course. While that is true it most certainly is also correct to say that once a student had enrolled in the course that student was expected to maintain regular class attendance and, quite probably, would be unable to achieve a passing grade unless he or she did so. Thus, once enrolled, students who had signed up for the course were as much a "captive audience" as are pupils enrolled in any other public school program and at any level, college or below.
Nor, as above indicated are we particularly impressed by sometimes argued distinction between the two cases based strictly upon the comparative age levels of the students involved. While it is probably true that younger children are more easily influenced by activities which are intended to influence them than are students at the college level, we find not the slightest hint in the Calvary Bible Presb. case, supra, that our court would further be prepared to sanction the presentation of true religious propaganda in the classrooms of a public college or university merely because the students involved are older and presumably less easily influenced than those at the common school level.
What, then, may be said to validly distinguish these two cases?
As we view it the direct answer to that question is best expressed by use of the same word as we earlier found so significant in terms of both the First Amendment and our own Article I, § 11 (Amendment 34), supra ‑ neutrality. InPerry neutrality was lacking because, although participation in the released time program was voluntary all of the students, as a captive audience, were compelled to be exposed [[Orig. Op. Page 18]] to attempts, at least, to encourage orinfluence them to particpipate in what was clearly a sectarian religious program. InCalvary Bible Presb., on the other hand, although there was also, at least to some extent, a captive audience in that case the course involved, although it dealt with the subject of religion, was neutral in terms of its treatment of that subject. It was, simply stated, a study of the "Bible as Literature" and not a veiled attempt to influence or encourage the students to subscribe to any of the religious doctrine to be found therein.
Thus, it is to be seen that the critical issue under Article IX, § 4, in terms of sectarian influence, is really not all that different from the one which exists under Article I, § 11 (Amendment 34), supra, with respect to the use of public facilities in support of a religious establishment or program. As a consequence those activities which violate the latter will, if conducted within the public schools, most likely be held to violate the former as well, as in thePerry case. But likewise, those activities which can pass muster under Article I, § 11 (Amendment 34) will, in all probability, also be held to do so under Article IX, § 4 as inCalvary Bible Presb., supra, even where classroom facilities and students are involved. In fact, in none of the previous supreme court cases or attorney general's opinions above summarized has that not been so.
It is on that basis, in the final analysis, that we here venture the opinion that a law such as is proposed by House Bill No. 736, supra, even if enacted in the present form of that bill, would be constitutionally defensible. The prescribed minute of silence would be a neutral period during which silent prayer would be permitted but not required. Those desiring to use the period for prayer would be doing nothing more than that which they would have a constitutional right to do anyway; i.e., pray, to themselves, silently, even though on the premises of a public school. Likewise, those desiring to use the period for nonreligious meditation would also be totally free to do so ‑ and so far as any outward manifestation of the conduct of those involved is concerned it would, presumably, be virtually impossible to ascertain which students were actually doing what.
Having said that, however, we would again suggest to you that legislation such as this could, in all probability, be rendered totally safe from constitutional challenge without doing [[Orig. Op. Page 19]] violence to its purpose by deleting the words "or prayer." If that were done we would doubt that the constitutionality of the law would even be seriously litigated whereas, if enacted in its present form, a challenge seems most likely. But that, for now, is a legislative question.
We trust that the foregoing will be of some assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
*** FOOTNOTES ***
1/"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 redress of grievances."
2/See, e.g., Whitney v. California, 274 U.S. 357, 71 L.ed. [[L.Ed.]]1095, 47 S.Ct. 641 (1922).
3/The text of the prayer involved in the Vitale case was as follows:
"'Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country.'"
4/Reading aloud, verses from the Bible at the start of each school day.
5/See, also, Mitchell v. Consolidated School Dist., 17 Wn.2d 61, 135 P.2d 79 (1943), in which the Washington court had previously come to the same conclusion on the question of busing prior toEverson, supra.
6/Gains v. Anderson, supra.
7/See, 421 F.Supp. 337, supra, at pp. 341-2 for a description of this legislative history.
8/Article I, § 11 (Amendment 34).
9/Article IX, § 4
10/Except for the two busing cases, Visser andMitchell, supra, which involve both the concept of using school facilities (buses) for sectarian purposes and that of state aid to parochial schools, we are omitting from this survey of state supreme court cases and prior A.G. opinions regarding Article I, § 11 (Amendment 34) and Article IX, § 4,supra, a number of other cases and opinions dealing with various forms of state financial assistance to parochial schools because those cases and opinions involve a somewhat different issue than is raised by your present question. In the event you are interested in that area as well, however, we would refer you to an article appearing in 9 Gonzaga Law Review 791 (1974), and to the cases which are cited and discussed therein.
11/Some have suggested that the only real distinction between the Dearle and Calvary Bible cases is that the former involved grade or high school students while the latter pertained to students at the university level. However it is also notable that in Dearle the courses in Bible study for which school credit was unsuccessfully sought were actually taught outside of the schools themselves and thus were, in all probability, truly sectarian in nature.
12/As opposed to the portion of the court's opinion in Perry which struck down the distribution of enrollment cards, etc., on school premises.
13/House Bill No. 1021 then pending before the 1974 state legislature.
14/Of the several attorney general's opinions above discussed, AGLO 1974 No. 12 [[to Edward G. Ellis, State Representative, on January 29, 1974, an Informal Opinion, AIR-74512]]is the only one written since the Calvary Presb. case was decided by the state supreme court.
15/In fact, however, no such revised revision of House Bill No. 1021 was ever passed by the legislature.
16/U.S. Const., Art. VI, Cl.2.
17/Cantwell v. Connecticut, supra.
18/See, also, Warren v. Killory, 44 LW 3215 (U.S.D.C. Mass. 1975), holding that a school district's ban on voluntaryaudible prayers by students did not violate the First Amendment.
19/Conversely, the requirement of Article IX, § 4, supra, that the public schools be ". . . free from sectarian control . . ." was mandated by the provisions of our statehood enabling act, 25 U.S. Statutes at Large, chapter 180. See, § 4, para. 4 thereof which required that:
". . . provision shall be made for the establishment and maintenance of systems of public schools, which shall be open to all the children of said States, and free from sectarian control."
20/72 Wn.2d 912, at 919.