Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGLO 1973 No. 60 - May 31 1973
Attorney General Slade Gorton

The Washington Supreme Court's decision in Weiss v. Bruno, 82 Wn.2d 199 (1973), renders action by the state board in implementation of chapter 81, Laws of 1973 (providing for state financial assistance to students attending private and public schools) unconstitutional.
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                                                                    May 31,1973
Honorable Frank B. Brouillet
President, State Board of Education
Old Capitol Building
Olympia, Washington 98504
                                                                                                               Cite as:  AGLO 1973 No. 60
Dear Sir:
            This is written in response to your request for our advice with respect to the impact of the Washington Supreme Court's recent decision in Weiss v. Bruno upon the constitutionality of chapter 81, Laws of 1973 (SB 2194).
            In Weiss v. Bruno,      Wn.2d      (May 10, 1973) [[82 Wn.2d 199 (1973)]], the supreme court held that the financial assistance program for needy and disadvantaged students which was there in issue was in violation of both Article IX, § 4 of the Washington Constitution and Amendment 1 to the United States Constitution.
            During the course of the 1973 legislative session, while this case was still pending before the supreme court, we were asked by State Senator Ted G. Peterson to advise as to the constitutionality of Senate Bill No. 2194 ‑ since enacted as chapter 81, Laws of 1973.  At that time we advised that any determination of this office as to the constitutionality of this measure would have to await the outcome of Weiss v. Bruno, supra, for the reason that the constitutional issues raised by this then proposed legislation were, essentially, the same as those involved in this litigation.
            In response to your immediate request we have now compared the legislation which was declared unconstitutional by the supreme court in Weiss v. Bruno, with the newly enacted financial assistance program for needy and disadvantaged students in grades 1 through 12 attending both public and private schools which is contained in chapter 81, Laws of 1973 (SB 2194).  It is our judgment that the two enactments are substantially identical, and that, therefore, the supreme court's decision in the  [[Orig. Op. Page 2]] Weiss case is equally applicable to this newly enacted, 1973 legislation.

            Accordingly, it is the recommendation of this office, as legal counsel for the State Board of Education, that no action be taken by the board to implement the provisions of chapter 81, Laws of 1973, supra, for the reason that any such action would be violative of the state and federal Constitutions as construed by the supreme court in said decision.1/
            Very truly yours,
Richard M. Montecucco
Assistant Attorney General
                                                         ***   FOOTNOTES   ***
1/In so advising you we are cognizant of the fact that this 1973 act contains a standard "severability" clause in § 9.  However, our court has previously held that the true test of whether an unconstitutional portion of an act may be severed from an otherwise constitutional portion is not the presence or absence of such a clause.  Instead, the true test is (1) whether the invalid portion is in fact severable and (2) whether it can reasonably be believed that the legislature would have passed the remainder without it.  O'Connell v. Conte, 76 Wn.2d 280, 456 P.2d 317 (1969).  Our reading of the court's opinion in the Weiss case, supra, and of chapter 81 lead us to believe that the legislature would not have passed the portion of that act relating to children attending public schools without also passing the other portion dealing with those attending private schools.