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AGLO 1972 No. 34 -
Attorney General Slade Gorton

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                                                                    May 9, 1972

Honorable Richard L. Smythe
State Representative, 49th District
5204 Du Bois Dr.
Vancouver, Washington 98661                                                                                            Cite as:  AGLO 1972 No. 34 (not official)

Dear Sir:
            This is written in response to your recent letter requesting our opinion on the question of whether the board of directors of a school district would be prohibited by any existing state statute or regulation from permitting the use of tobacco by students on the campuses of high schools under its jurisdiction.
            We begin our response to this inquiry by noting the general regulatory authority which is vested in the boards of directors of public school districts in this state.  RCW 28A.58.101 provides that:
            "Every board of directors, unless otherwise specifically provided by law, shall:
            "(1) Enforce the rules and regulations prescribed by the superintendent of public instruction and the state board of education for the government of schools, pupils, and certificated employees.
            "(2) Adopt and make available to each pupil and parent in the district reasonable written rules and regulations regarding pupil conduct, discipline, and rights.  Such rules and regulations shall not be inconsistent with law or the rules and regulations of the superintendent of public instruction or the state board of education and shall include such substantive and procedural due process guarantees as prescribed by the state board of education under RCW 28A.04.132.
            "(3) Suspend, expel, or discipline pupils in accordance with RCW 28A.04.132."
             [[Orig. Op. Page 2]]
            RCW 28A.04.132, to which reference is made in subsection (2) of this statute, codifies the recently enacted provisions of § 2, chapter 268, Laws of 1971, 1st Ex. Sess., and reads as follows:
            "The state board of education shall adopt and distribute to all school districts lawful and reasonable rules and regulations prescribing the substantive and procedural due process guarantees of pupils in the common schools."
            In accordance with this provision the state board of education, earlier this year, adopted a comprehensive set of rules relating to pupil conduct ‑ now codified as WAC 180-40-005 through 180-40-160.  We are enclosing a copy of these regulations for your general background information; however, you will note that none of these new rules relating to pupil conduct address themselves in any manner to the question of the use of tobacco on school premises.
            Prior to the adoption of these rules there was a state board regulation, codified as WAC 180-40-020, which did speak to this subject in the following manner:
            "Wilful disobedience, irregular attendance, vulgarity or profanity, the use of tobacco, narcotics or alcoholic beverages, stealing, the carrying of deadly weapons or dangerous playthings, shall constitute good cause for suspension or expulsion from school whether or not such acts are committed during the time school is in session or otherwise if such conduct is detrimental to the best interests of the school and tends to subvert the authority of the board of directors or interfere with the management of the school."  (Emphasis supplied.)
            Because of the qualifying language at the end of this prior regulation, however, it will be seen that even under its provisions the state board did not purport to have declared the use of tobacco, per se (or in and of itself) a ground for suspension or expulsion of a student.  Instead, this now repealed regulation meant  [[Orig. Op. Page 3]] only that if such conduct (use of tobacco) was determined by a school board to be ". . . detrimental to the best interests of the school . . ." etc., it was to constitute a ground for this disciplinary action.
            In any event, as of February 28, 1972, when the state board's repeal of WAC 180-40-020, supra, became effective, this regulation is no longer with us.  This does not mean, however, that a local school board, in the exercise of its broad discretionary rule‑making authority under subsection (2) of RCW 28A.58.101, supra, may no longer prohibit "on campus" smoking by students.
            In the early case of Wayland v. Hughes, 43 Wash. 441, 86 Pac. 642 (1906), the Washington court had occasion to pass upon the rule‑making power of a school board under this statute.  The court stated therein:
            ". . .  It would be difficult to confer a broader discretionary power than that conferred by these sections.  Manifestly it was the intention of the legislature that the management and control of school affairs should be left entirely to the discretion of the board itself, and not to the judicial determination of any court.  These powers have been properly and legally conferred upon the board, and unless it arbitrarily exceeds its authority, . . . the courts cannot interfere with its action.  [Citations omitted.]"  (Emphasis supplied.)
            See, also, AGO 59-60 No. 105 [[to Pat Nicholson, State Representative, March 10, 1960]], copy enclosed, in which we summarized the rule to be derived from this and other similar cases as follows:
            "The board of directors of a school district may adopt reasonable rules and regulations to protect the welfare, good order, discipline and morality of pupils attending high schools in the district.  . . ."
            It is beyond dispute, in our opinion, that a school board regulation prohibiting smoking or other uses of tobacco by students on school premises remains a valid exercise of this discretionary rule‑making authority.  Accord, letter dated October 16, 1940, to the Superintendent of Schools in Kalama, Washington, copy enclosed, in which (after quoting § 6, page 287, Laws of 1909, from which RCW 28A.58.101 (2) is derived) we said:
             [[Orig. Op. Page 4]]
            "It is our opinion that the above quoted statute gives to the board of directors the power to make such rules and regulations pertaining to the use of tobacco in school buildings and on school property by teachers, students and employees as they deem necessary."
            Your immediate question, however, is whether the converse would also be true; i.e., whether a school board would be violating any prohibition contained in a state statute or regulation if, in the exercise of its discretionary authority under RCW 28A.58.101, the board were, instead, to permit the use of tobacco by students on its campuses ‑ particularly, high school campuses.
            Aside from the former provision of WAC 180-40-020, discussed above, we know of no other administrative regulation at the state level which would necessarily be violated by such a local school board regulation ‑ irrespective of whether it were to take the form of a mere repeal of an existing regulation against smoking or that of an affirmative regulation allowing (for example) student smoking either throughout a campus or in certain designated areas only.  We say "necessarily violated" at this point, however, because we would be remiss not to point out the possibility of an enforceable ban against smoking in specific areas of a school building arising by reason, for example, of fire safety standards promulgated either by the state fire marshal or by local fire protection authorities.  See, in this regard, § 29.101 of the uniform fire code which is among the sources of fire safety standards that have been adopted by the state fire marshal under WAC 212-12-010.  This section of the uniform code provides as follows:
            "Where conditions are such as to make smoking a hazard in any areas of piers, wharves, warehouses, stores, industrial plants, institutions, schools, places of assembly, and in open spaces where combustible materials are stored or handled, the Chief is empowered and authorized to order the owner or occupant in writing to post 'NO SMOKING' signs in each building, structure, room or place in which smoking shall be prohibited.  Such signs shall be  [[Orig. Op. Page 5]] conspicuously and suitably located.  The Chief shall designate specific safe locations, if necessary, in any building, structure or place in which smoking may be permitted."  (Emphasis supplied.)
            We understand the term "chief" as used in this provision to mean the chief of the fire department having jurisdiction over the area in which the posted buildings are located.  The message here, of course, is obvious:  If smoking is prohibited in certain areas of a school building by reason of action taken either by a local fire chief or, similarly, by the governing body of the county, city or town in which the particular school building is located, the school board must be viewed as being without authority to allow smoking in these areas by anybody ‑ whether it be students, faculty or other employees.
            Insofar as state statutes are concerned (as opposed to regulations promulgated by an administrative agency), we begin our exploration of this area with another notation of a repeal situation.  At one time RCW 13.04.010 (15) defined a "dependent child" under the juvenile court act to include any child under eighteen years of age ". . .  Who uses intoxicating liquor as a beverage, or who uses tobacco in any form, . . ."  However, by § 1, chapter 302, Laws of 1961, the reference in this statute to any use of tobacco was deleted by the legislature ‑ and thus, the use of tobacco is no longer a ground for declaring a child under eighteen years of age to be a "dependent child" who would, thereby, be subject to the jurisdiction of the juvenile court.
            However, while the use or possession of cigarettes or other tobacco products by young persons themselves is no longer statutorily regulated in this state, the selling or giving of such products to "any person under the age of eighteen years" is still prohibited ‑ by RCW 26.28.080 (as last amended by § 37, chapter 292, Laws of 1971, 1st Ex. Sess.).  This statute reads, in material part, as follows:
            "Every person who:
            "(1) . . .
            "(4) Shall sell or give, or permit to be  [[Orig. Op. Page 6]] sold or given to any person under the age of . . . eighteen years any cigar, cigarette, cigarette paper or wrapper, or tobacco in any form; . . .
            "Shall be guilty of a gross misdemeanor."
            See, AGO 1971 No. 38 [[to James A. McDermott, State Representative, November 30, 1971]], copy enclosed, for a further discussion of this statute and of the fact that it is not directed to the young person himself but rather to those other persons with whom he deals in obtaining the proscribed tobacco products.  Therefore, while the public policy enunciated therein most certainly must be said to represent the sound basis for continued enforcement of existing school board regulations against "on campus" smoking ‑ at least by those typical high school students who are ordinarily under eighteen years of age ‑ it cannot be said that this statute goes so far as to prohibit such a school board as a matter of law from permitting the use of tobacco by these or other students on school premises.
            We have found no other statute which would appear to be violated by a school board rule to this effect and for this reason we must answer your specific question in the negative; i.e., such a rule would not be prohibited by any state statute or regulation.  However, in thus concluding we cannot avoid either forming or expressing the thought that, on policy rather than legal grounds, any school board regulation which appears to sanction or encourage conduct by others in violation of a state law such as RCW 26.28.080, supra, should be viewed with at least some apprehension.
            We trust the foregoing will be of assistance to you.
Very truly yours,
Philip H. Austin
Deputy Attorney General