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AGLO 1970 No. 16 -
Attorney General Slade Gorton

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                                                                 February 3, 1970
Honorable Fred H. Dore
State Senator, 37th District
Legislative Building
Olympia, Washington 98501
                                                                                                               Cite as:  AGLO 1970 No. 16
Dear Sir:
            We acknowledge receipt of your letter dated January 28, 1970, requesting our opinion on three questions pertaining to the state's responsibility for providing educational facilities for handicapped children.  Basically, your questions pertain to the ramifications of the preamble section to Article IX of our state Constitution, which reads as follows:
            "It is the paramount duty of the state to make ample provision for the education of all children residing within its borders, without distinction or preference on account of race, color, caste, or sex."
            This constitutional provision imposes two distinct requirements upon the state ‑ a requirement to make ample provision for the education of all children residing within its borders ‑ and a requirement that such provisions for education shall be made without distinction or preference on account of race, color, caste, or sex.
            Question (1):
            Your first question, as we understand it, inquires as to whether the duty imposed upon the state by this section includes the making of "ample provision for the education" of physically or mentally handicapped children who reside within this state.  It seems readily apparent to us that, as an abstract question of state constitutional law, this question is answerable in the affirmative ‑ for we can conceive of no basis for construing the term "all children" to exclude those with physical or mental handicaps.
            Question (2):
            Your second question assumes the foregoing answer to your first question, and asks for the advice of this office as to ". . . the specific nature that 'provision for the education of all handicapped children in the state could or should take.'"

             [[Orig. Op. Page 2]]
            Inasmuch as Article IX, § 1 of the Constitution, supra, is obviously not self-executing, this question, as we view it, raises issues of policy rather than legal issues.  Therefore, generally speaking, it is a matter for the legislature, in its wisdom, to determine.
            However, among the obviously available approaches which could be considered ‑ either singly or in combination with each other ‑ are:  (1)  To make provision for special facilities in some or all public schools ‑ especially designed for the needs of handicapped children;1/ (2) to establish and operate special public schools for such handicapped children; and/or (3) to make provision for the education of handicapped children in other state institutions (e.g., the various state residential schools which are currently governed by chapter 72.33 RCW).
            Question (3):
            Your final question inquires as to whether the state superintendent of public instruction ". . . has the constitutional authority to make payments to private schools and agencies who provide an educational program for retarded children for whom there is no education provided by the local school district."  (Emphasis supplied.)
            Our examination of the provisions of our state Constitution relating to the functions of the state superintendent of public instruction reveals no grant of such authority contained therein.  Thus, any authority to be granted to the state superintendent to make such payments would have to be granted by the legislature ‑ through the enactment of appropriate legislation.
            We trust that the foregoing will be of assistance to you.
Very truly yours,
Philip H. Austin
Assistant Attorney General
                                                         ***   FOOTNOTES   ***
1/See chapter 28.13 RCW, which presently deals with this approach on a permissive rather than mandatory basis.