Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGLO 1980 No. 7 -
Attorney General Slade Gorton


Funds appropriated by §§ 14 and 15 of chapter 118, Laws of 1979, 1st Ex. Sess., for administration of the mandatory school immunization program thereby established may not be disbursed to private, church-related schools (a) because of a lack of statutory authority and (b) because of the constitutional prohibitions in Article IX, § 4 and Article VIII, § 7 of the Washington Constitution; the legislature, however, could make certain suggested amendments to the law which, if enacted, would establish a constitutionally permissible contractual basis for such payments.

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                                                                 January 28, 1980

Honorable Rod Chandler
State Rep., 45th Dist.
434 House Office Building
Olympia, Washington 98504                                                                                                                 Cite as:  AGLO 1980 No. 7

Dear Sir:

            By recent letter you made note of a certain memorandum opinion written to the Office of the Superintendent of Public Instruction by Assistant Attorney General Thomas L.  Anderson on October 4, 1979.  You then requested our formal review of that opinion and, in addition, you asked whether, in the event of our confirmation of Mr. Anderson's advice, ". . . there is anything the Legislature can do to rectify this situation by amending . . ." the subject statute.


            Question (1):

The statute referred to in your letter is chapter 118, Laws of 1979, 1st Ex. Sess.  By that enactment the legislature  [[Orig. Op. Page 2]] established (with certain exemptions) a mandatory immunization program for children attending both public and private schools in this state.  Accord, AGO 1979 No. 6, copy enclosed, in which this office extensively reviewed and then upheld the constitutionality of this legislation while it was still pending before the 1979 legislature.

            The term "school," for purposes of the law, is defined by § 2(4) to mean and include both public schools and ". . . any private school or private institution subject to approval by the state board of education . . ."  Another defined term in the law is "chief administrator" which, under § 2(1), means,

            ". . . the person with the authority and responsibility for the immediate supervision of the operation of a school or day care center as defined in this section or, in the alternative, such other person as may hereafter be designated in writing for the purposes of sections 1 through 12 of this act by the statutory or corporate board of directors of the school district, school, or day care center or, if none, such other persons or person with the authority and responsibility for the general supervision of the operation of the school district, school or day care center."

            Sections 7 and 8 (which are quoted in full on pp. 4 and 5 of AGO 1979 No. 6) then require each such "chief administrator" to compile and maintain immunization records pertaining to all children enrolled in their respective schools and to perform certain other related administrative functions in connection with the immunization law.  It is the funding of those record keeping and administrative functions with which our October 4, 1979, memorandum opinion, supra, was concerned.

By §§ 14 and 15 of the law, the legislature made the following two appropriations for the 1979-81 biennium:

            Sec. 14:

            "There is hereby appropriated from the state general fund to the superintendent of public instruction for the biennium  [[Orig. Op. Page 3]] ending June 30, 1981, the sum of one hundred thousand dollars, or so much as necessary, to carry out the purposes of this act."

            Sec. 15:

            "There is hereby appropriated from the state general fund to the department of social and health services for the biennium ending June 30, 1981, the sum of two hundred forty thousand dollars, or so much as necessary, to carry out the purposes of this act."

            The question posed was whether any portion of those appropriated funds could be distributed to private church-related schools for the purpose of funding their performance of the record keeping and other administrative functions required by §§ 7 and 8 of the act, supra.  In response, Assistant Attorney General Thomas L. Anderson of our Education Division said:

            "In conclusion, depending upon the entanglement associated with its implementation, a reimbursement program to fund administrative costs associated with state mandated immunization paid directly to private church related schools may violate the First Amendment of the federal Constitution.  It is almost certain that the program, if challenged, would be held to violate the Washington State Constitution.  There is no such thing as a 'de minimus' violation of Article 9, section 4.  Such a direct reimbursement program would benefit private, church-related schools by relieving them of the financial burden associated with the record-keeping requirements of the immunization.  Such direct reimbursement would in all probability violate the strict dictates of the Washington State Constitution."

                         [[Orig. Op. Page 4]]

We have, since receiving your request, carefully reviewed both the content and reasoning of Mr. Anderson's opinion and the above conclusion stated therein.  It is our considered judgment that the advice there given was correct.

Specifically, it is first our opinion that any disbursement of state funds appropriated by §§ 14 and 15 of chapter 118, Laws of 1979, 1st Ex. Sess., supra, to private parochial schools for the purpose of finding their performance of the administrative obligations imposed upon them by §§ 7 and 8 of that law would (as Mr. Anderson indicated) be violative of Article IX, § 4 of our state constitution, which reads, in full, as follows:

            "All schools maintained or supported wholly or in part by the public funds shall be forever free fromsectarian control or influence."  (Emphasis supplied)

            Accord,Weiss v. Bruno, 82 Wn.2d 199, 509 P.2d 973 (1973).

Second, as was also indicated by Mr. Anderson, there could all be (depending upon all of the factual circumstances) a serious problem under the First Amendment to the United States Constitution as well.  See,Lemons v. Kurtzman, 403 U.S. 602, 29 L.Ed.2d 745, 91 S.Ct. 2105 (1971) in which the United States Supreme Court invalidated a Pennsylvania statute providing reimbursement to non-public primary and secondary schools for teachers' salaries and instructional materials used in teaching secular subjects.

Third, although this further issue was not discussed in Mr. Anderson's memorandum opinion, we would also have to conclude that any distribution of the subject funds to a private school, church-related or otherwise, would (under the law as it is now written) result in the unconstitutional gift of state funds in violation of Article VIII, § 5 of the Washington Constitution. Cf., Washington State Highway Commission v. Pacific Northwest Bell Telephone Co., 59 Wn.2d 216, 367 P.2d 605 (1961); and compare,Anderson v. O'Brien, 84 Wn.2d 64, 524 P.2d 390 (1974) which upheld grants of state funds to federally-recognized Indian tribes only because those tribes were regarded by the legislature as "other governmental agencies" rather than private entities.

             [[Orig. Op. Page 5]]

And finally, aside from any of the foregoing constitutional prohibitions, we further agree with the conclusion reached by Mr. Anderson on the basis of a simple lack of statutory authority.  Both the State Superintendent of Public Instruction and the Department of Social and Health Services, to which the respective appropriations were made, are subject to the well-established principle that state agencies have only those powers which have been granted to them by the legislature, either expressly or by necessary implication.  State ex rel. Holcomb v. Armstrong, 39 Wn.2d 860, 239 P.2d 545 (1952).  There is, however, nothing in chapter 118, supra, or in any other existing statute, which authorizes either of the two agencies to fund the performance, by a private school, of those administrative functions which the legislature has required them to perform in connection with the immunization law here in question.

           Question (2):

In the event of the foregoing response to your first question, you have further asked ".  . . if there is anything the Legislature can do to rectify this situation by amending this statute."

As above indicated, a principle reason for our disposition of your first question is that the law, as it is now written, requires the schools themselves (through their chief administrative officers) to perform the record keeping and other administrative functions involved.  And, since the obligation of those schools to perform those functions is in no way dependent, statutorily, upon state funding, it necessarily follows that any payment voluntarily made by the state to the private schools involved would be an unconstitutional gift.  Likewise, this same factor is of legal significance insofar as the constitutional question raised by Article IX, § 4,supra, is concerned.

Conceivably, however, the legislature could amend the law so as to provide that, in the case of private schools, a public agency such as the local health department, or, perhaps, the Department of Social and Health Services‑-or any other public agency for that matter‑-would be responsible for administering the immunization law.  Funds could then be disbursed to that public agency to defray the administrative expenses involved (assuming that such disbursements were statutorily  [[Orig. Op. Page 6]] authorized) without running afoul of any of the above‑cited constitutional provisions, state or federal.  Then, in turn, given the further statutory authority to do so, the public agency or agencies involved could contract with those private schools covered by the immunization law to have the schools carry our certain functions with respect to the law, as agents of the public agency, for the expenses of which the schools could be reimbursed pursuant to that contract.

In essence, this suggested approach is comparable to one which was upheld by this office a number of years ago in the context of House Bill 419 (1971) authorizing contract purchases of "secular educational service" from non-public schools by the State Superintendent of Public Instruction.  See, letter opinion dated March 3, 1971, to then State Representative Dale E. Hoggins, copy enclosed.  Unquestionably, however, it would require substantial amendments to the existing law.1/

            It is hoped that the foregoing will be of assistance to you.

Very truly yours,

Attorney General

Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/In addition, while approving of this suggested approach from a constitutional standpoint, we would leave to the legislature the further question of whether or not it would be administratively practical.