Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1954 No. 350 -
Attorney General Don Eastvold


Proposed legislation to allow the colleges of education to make a reasonable tuition charge would not contravene Art. XXVI and Art. IX, sec. 2, of Wash. Constitution.

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                                                                December 2, 1954

Dr. W. W. Haggard
Western Washington College
of Education
Bellingham, Washington                                                                                                              Cite as:  AGO 53-55 No. 350

Dear Sir:

            In your recent letter, you have requested our advice as to whether a proposed amendment to RCW 28.81.080 to allow tuition to be charged to students in the colleges of education would be in accord with Article IX, section 2 and Article XXVI of the State Constitution.

            It is our opinion that such proposed legislation would be in accord with those provisions of the Constitution.


            There is presently under consideration legislation authorizing tuition charges to the students of the colleges of education by amending RCW 28.81.080.  A question has been raised as to whether such legislation would be in accord with Article IX, section 2 and Article XXVI of the Washington State Constitution.  AGO 53-55 No. 333, dated October 5, 1954 [[to P. W. Ellis, Legislative Auditor]], held that the colleges of education have authority to charge special fees to students, but may not charge tuition fees under the present statutes.

            Article IX, section 2 of the State Constitution was enacted pursuant to the Enabling Act, (25 U.S. Statutes at Large, ch. 180, p. 876) sec. 4, 4th paragraph.  Visser v. Nooksack Valley School District, 33 Wn. (2d) 699 (1949).  This section  [[Orig. Op. Page 2]] provides as follows:

            "That provision shall be made for the establishment and maintenance of systems of public schools,which shall be open to all the children of said states, and free from sectarian control."  (Emphasis supplied)

            These words, modified slightly, were incorporated into Article XXVI, paragraph 4 of the Constitution as follows:

            "Provision shall be made for the establishment and maintenance of systems of public schools free from sectarian control which shall be open to all the children of said state."  (Emphasis supplied)

            Article IX, section 2 provides as follows:

            "The legislature shall provide for a general and uniform system of public schools.  The public school system shall include common schools, and such high schools,normal schools, and technical schools as may hereafter be established.  But the entire revenue derived from the common school fund and the state tax for common schools shall be exclusively applied to the support of the common schools."  (Emphasis supplied)

            Litchmen v. Shannon, 90 Wash. 186 (1916) has been called to our attention as standing for the proposition that public schools "should be open without charge to children of all the residents of the town or other district."  In our opinion this case did not purport to interpret Article XXVI of the Constitution as meaning that all public schools should be absolutely free.  The court was faced only with the problem of whether tuition could be charged to students of the University of Washington.  The appellant in that case argued that such tuition charge could contravene Article XXVI, claiming that the words "open  [[Orig. Op. Page 3]] to children of all the residents of the state" mean "free" to all children of the state.  The court, in answering this contention, said on page 190:

            "Whatever may be our view to the wisdom or policy of the present legislation, with which we have no concern, it is purely and simply a question of power.  While it may be true (though it is not now necessary to so determine) that, as to the common schools, the fourth paragraph of art. 26 may mean that such schools shall be open andfree to all the children of the state, we do not believe that it applies to the university of the state.

            Section 2, article 9 of the constitution, defines what the public school system shall include, viz.:  'common schools, and such high schools, normal schools, and technical schools as may hereafter be established.'"

            In referring to Article IX, section 2, the court said, at page 191:

            "The framers of the constitution, had they desired, might in that section have included the university, but did not.  Public schools are usually defined as schools established under the laws of the state, usually regulated in matters of detail by the local authorities in the various districts, towns, or counties, and maintained at the public expense by taxation, and open without charge to the children of all the residents of the town or other district.  Black, Law Dictionary (2d ed.); Jenkins v. Andover, 103 Mass. 94; Merrick v. Amherst, 12 Allen 500.  A school is 'an institution of learning of a lower grade, below a college or a university.  A place of primary instruction.'  Black's Law Dictionary (2d) ed.)."

            By this language the court apparently distinguished public schools as generally  [[Orig. Op. Page 4]] defined, from colleges and universities as they are generally defined.  The court, for the sake of argument, conceded all the points necessary to bring the problem within Article XXVI, yet still held that the University was not included within the term "public schools," as used in the State Constitution.  The rule for which this case is often cited was a statement taken out of context.  At most, it is merely dictum, and is not binding as to subsequent litigation on the question.

            The inclusion of normal schools within the definition of "public schools" is unusual.  Normal schools are not regarded as public schools within the contemplation of most constitutional and statutory provisions.  Gordon v. Cornes, 47 N.Y. 608 (1872).  School District v. Bryan, 51 Wash. 498, 504 (1909), quoting fromGordon v. Cornes, supra, said:

            "A normal school has been defined as a school,

            "'not intended for the education of the children of the inhabitants of the districts where they are located, but for the training of teachers, for all the common schools.  They are not open to all, but only to such as may be selected at times and in a manner to be prescribed by the superintendent of public instruction . . .  Applicants for admission are required to possess certain qualifications, which must be tested by preliminary examinations, and on the completion of their studies the pupils are to receive diplomas, which shall be evidence of their qualification to teach in common schools; but they are under no obligation to become teachers, and there is nothing to prevent their engaging in other pursuits.'  * * *"

            In discussing the problem of whether a model training school conducted at the state normal schools is a common school to be supported out of common school funds, the court made many observations as to the difference between the latter and the normal schools.  The court said on page 502:

             [[Orig. Op. Page 5]]

            "* * * In adopting a constitution, the people of this state saw fit to devote a chapter to the subject of education.  In it they were careful to emphasize the importance, as well as the distinct character, of the common school.  They endeavored to protect and preserve the funds set apart by law for the support of the common school from invasion, so that they might be applied exclusively to the current uses of such schools.  An ample provision for the education of children was made paramount, and the duty was imposed upon the legislature of providing a general and uniform system of public schools.  The system provided differentiates between the common school and the normal school, as does the constitution, and when adopted such system has the force of the constitutional provision which it elaborates.  * * *"

            On page 504 the court said:

            "* * * To summarize, a common school, within the meaning of our constitution, is one that is common to all children of proper age and capacity,free, and subject to and under the control of the qualified voters of the school district.  * * *"  (Emphasis supplied)

            Then, talking about the common school fund, the court said on page 505:

            "* * * Courts have been zealous in protecting the money set apart for the maintenance of thefree schools of the county.  * * *"  (Emphasis supplied)

            It would appear that the court, by describing and differentiating between the schools as it has, implied that common schools are by definition free, supported  [[Orig. Op. Page 6]] by state funds, and that the normal schools are to receive different treatment.  The court apparently interpreted these provisions of the constitution as protecting the common schools, as free schools, and not necessarily requiring anything but uniformity in the rest of the school system.

            It is difficult to imagine that the framers of the constitution had in mind treating normal schools as public schools in the sense that they should be free to children of residents of the state.  It is more reasonable to believe they intended that the state should operate such normal schools as a public institution as distinguished from a private institution.  This conclusion would not require the state to provide a free education to students in the colleges of education.

            A general rule, often applied through the United States, is that a student has a right, given to him by statute, to attend lower or grade schools, but to attend a college or university is a mere privilege.  Article XXVI requiring that public schools be open to children of all residents of the state apparently requires nothing more than that the children be given equal opportunity, without discrimination for reasons of race, creed, color or religious preferences.  There is no requirement that education above the common school level be free, except as provided by statute.  Logan City School District v. Kowallis, 94 Utah 342, 77 P. (2d) 348 (1938) construed a similar provision to Article XXVI, section 4 of the Washington Constitution.  Article X, section I of the Utah Constitution, provided:

            "The legislature shall provide for the establishment and maintenance of a uniform system of public schools, which shall be open to all children of the state, and be free from sectarian control."

            The court held that this provision requiring that the public school system shall be "open" to all children does not apply to financial matters or require that schools be free, but means that all children must have equal rights and  [[Orig. Op. Page 7]] opportunity to attend that grade or class of school for which they are suited by previous training or development.

            It would appear, therefore, that there is no specific constitutional provision forbidding a statutory enactment or amendment to RCW 28.81.080 to allow a reasonable tuition to be charged at the colleges of education.

Very truly yours,

Attorney General

Assistant Attorney General