Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGLO 1980 No. 6 -
Attorney General Slade Gorton


The Council for Postsecondary Education, in the exercise of its authority to suspend or modify the requirements of the Educational Services Registration Act of 1979 on the basis of hardship pursuant to RCW 28B.05.130, may not exempt an "educational institution" from otherwise required registration solely because of its sectarian religious ownership, management or curricula.

                                                               - - - - - - - - - - - - -

                                                             January 22, 1980

Honorable C. Gail Norris
Executive Coordinator
Council for Postsecondary Education
908 E. Fifth Avenue
Olympia, Washington 98504                                                                                                                 Cite as:  AGLO 1980 No. 6

Dear Sir:

            By recent letter you directed our attention to the provisions of chapter 28B.05 RCW, the Educational Services Registration Act of 1979.  You then requested our opinion on a number of questions, the essence of which, however, may be paraphrased as follows:

            May the Council for Postsecondary Education, in the exercise of its authority to suspend or modify the requirements of the registration act on the basis of hardship, exempt an "educational institution" from otherwise required registration solely because of its sectarian religious ownership, management or curricula?

            We answer the foregoing question in the negative.

             [[Orig. Op. Page 2]]


            In narrowing your several questions to the one above‑paraphrased, we have, in effect, applied at the outset a long-established policy of this office relating to the constitutionality of legislation once it has been duly enacted.  Simply stated, it has been the consistent policy of this office since statehood to presume all duly enacted statutes to be constitutional until they are otherwise held invalid by a court of competent jurisdiction.1/   The basic reasons for this consistent policy have been frequently set forth in our prior opinions.  Perhaps the most succinct explanation appeared in AGO 1945-46 p. 269, as follows:

            ". . . The power to declare an act constitutional or unconstitutional is vested solely in the courts.  Consequently, nothing can be gained by this office expressing an opinion as to the constitutionality of a statute.  A pronouncement of unconstitutionality would merely cause confusion and disorder among the administrative officers whose duty it is to give effect to the presumption of constitutionality which attaches to all laws until declared otherwise by a court of competent jurisdiction."

            As you have noted in your letter, although chapter 28B.05 RCW does exempt various categories of educational institutions2/  [[Orig. Op. Page 3]] from the requirements of the law,3/ none of those exemptions are predicated on the sectarian religious ownership, management or curricula of a given institution.  It is, basically, this policy decision of the legislature which must be presumed by this office to be constitutional as above indicated.  Therefore, it would be inappropriate for us to deal, in this opinion, with the issue of whether, and to what extent, generalized enforcement of the requirements of chapter 28B.05 RCW would, in the case of an educational institution owned or operated by a sectarian religious organization and/or offering a sectarian religious curricula, violate either the free exercise clause of the First Amendment to the United States Constitution or the comparable provisions of Article I, § 11 (Amendment 34) of our own state constitution.

            Insofar as the question of statutory or administrative exemptions of given educational institutions is concerned, we begin by noting RCW 28B.05.040,supra, the full text of which reads as follows:

            "The following education and institutions are exempted from the provisions of this chapter:

            "(1) Education sponsored by bona fide trade, business, professional, or fraternal organizations primarily for that organization's membership or offered by that organization on a no-fee basis;

            "(2) Education solely a vocational or recreational in nature and institutions offering such education exclusively;

            "(3) Education offered by charitable institutions, organizations, or agencies:  PROVIDED, That such education is not advertised or promoted as leading toward educational credentials;

            "(4) Institutions that are established, operated, and governed by this state or its political subdivisions under the provisions of Titles 28A, 28B and 28C RCW;

            "(5) Institutions that have been accredited by any accrediting association recognized by the  [[Orig. Op. Page 4]] agency for the purposes of this act:  PROVIDED, That an institution, branch, extension or facility operating within the state of Washington which is affiliated with an institution operating in another state must be a separately accredited member institution of any such accrediting association to qualify for this exemption.

            "(6) Any other institution to the extent that it has been exempted from some or all of the provisions of this chapter in accordance with the hardship exemption procedure in RCW 28B.05.130."

            In turn, RCW 28B.05.130, which is referred to both in RCW 28B.05.040(6),supra, and in our paraphrased statement of your question, provides that:

            "The agency, after hearing, by order approved and ratified by a majority of the membership of the agency, may suspend or modify any of the registration or other requirements contained in this chapter in a particular case if it finds that literal application of this chapter works a manifestly unreasonable hardship and if it also finds that such suspension or modification will not frustrate the purposes of this chapter."

            We also note that the term "agency," as thus used, is defined in RCW 28B.05.030(13) to mean,

            ". . . the council for postsecondary education in the case of degree granting institutions and the commission for vocational education in the case of private vocational schools."

            Clearly, in the case of an institution under its jurisdiction, the Council for Postsecondary Education may grant a hardship exemption to an educational institution owned or operated by a religious organization, or having a sectarian religious curricula, on the same basis and in accordance with the same criteria as it grants such hardship exemptions to any other educational institutions.  In our opinion, however, the mere fact that a given institution is owned or operated by a religious organization, or offers a religious curricula, would  [[Orig. Op. Page 5]] not by itself constitute a valid basis for granting a hardship exemption.  And, most certainly, the provisions of RCW 28B.05.130, supra do not authorize the council simply to adopt a blanket or class exemption for all religiously oriented educational institutions under its jurisdiction.

            As we read it, RCW 28B.05.130, supra, requires the agency involved to evaluate each educational institution seeking a hardship exemption on a case‑by-case basis, after hearing, and to grant such an exemption only in accordance with specific findings of fact; namely,

            (1) That literal application of the Educational Services Registration Act works a manifestly unreasonable hardship on the particular institution seeking an exemption; and

            (2) That such suspension or modification will not frustrate the purposes of the law.

            This is not to say that the council, in ruling upon a particular application for exemption, may not consider the sectarian religious aspects of the institutionas one of the facts to be evaluated.  In other words that fact, along with various others, could, conceivably, be legally relevant in a given instance.  On the basis, however, of what the legislature has thus far said (and, of equal importance, not said) we must conclude that the council is presently without the requisite statutory authority to do that which is contemplated by your question as above paraphrased.  We must, therefore, answer that question in the negative.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

Attorney General

Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/Only where faced with a Washington or United States Supreme Court decision directly in point have we deviated from this policy and, instead, characterized a statute as being "constitutionally unenforceable."   See,e.g., AGO 1976 No. 15 (mandatory death penalty) and AGO 1973 No. 7 (abortions).  No such determinative cases exist here, however.

2/Defined by RCW 28B.05.030(1) as follows:

            "(1) 'Educational institution' includes, but is not limited to, an academic, vocational, technical, home study, business, professional, or other school, institution, college, or university, or other organization or person not exempted under RCW 28B.05.040, offering educational credentials, instruction, or services primarily to persons who have completed or terminated their secondary education, or who are beyond the age of compulsory high school attendance, for attainment of educational, professional, or vocational objectives."

3/See, RCW 28B.05.040, quoted below.