AGO 1995 No. 3 - Mar 23 1995
SCHOOLS - DISTRICTS - STUDENTS - RELIGION - USE OF SCHOOL DISTRICTS' FACILITIES BY STUDENT GROUPS FOR RELIGIOUS PURPOSES
1. The state constitution does not prohibit schools from adopting a "limited open forum" policy for student organizations making use of school districts' facilities, even where federal law requires that equal access be granted to student groups for religious purposes, so long as it is clear that the school district maintains a neutral position on religious matters.
2. A school district may recognize student groups engaged in religious activity and grant such groups access to school time and space on the same basis offered to other student organizations, so long as the district grants equal access to all points of view and neither endorses nor opposes the activities of any particular group.
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March 23, 1995
Dr. Larry Swift
Washington State School Director's Association
221 College Street NE
Olympia, WA 98516-5313
Cite as: AGO 1995 No. 3
Dear Dr. Swift:
By letters previously acknowledged, you have requested our opinion on several questions which we have reordered and paraphrased as follows:
1. Does the Washington State Constitution (specifically article 1, section 11 and/or article 9, section 4) permit public school districts to provide access to school facilities for student groups for religious meetings?
2. If Question 1 is answered in the negative, is the state constitution preempted by either the United States Constitution or the federal Equal Access Act (20 U.S.C. §§ 4071-4074)?
3. If it is a violation of the state constitution for school districts to provide access to school facilities for meetings held by student religious groups, and if federal law requires a school district to provide access on an equal basis to religious groups if it provides access to other noncurricular student groups, are school districts required to deny all access to school facilities for noncurricular student groups in order to comply with both state and federal law?
4. Assuming Question 1 is answered in the affirmative, to what extent and under what circumstances may student religious clubs be recognized by school districts or student body organizations, such as being listed or registered as an "official" student organization, being granted access to space in school publications and bulletin boards for announcements concerning meetings and club activities, or being assigned a faculty member or other school district employee to serve as adviser to such a group?
Although the Washington State Constitution prohibits the use of public funds and public property to support religious activity, and although school districts are specifically required by the constitution to be free of sectarian control and influence, these provisions are not violated if voluntarily organized student religious organizations incidentally receive the same benefits of access to school district property as would be granted to another student organization whose purpose was not religious, so long as the circumstances are clear that the school district in no sense sponsors or endorses the views of any such organization and neither favors nor disfavors any group on the basis of the specific views advanced within such an organization. In light of this interpretation of the state constitution, we do not need to consider the extent to which the state constitution is preempted by federal statute, or whether school districts must deny access to all noncurricular student groups in order to comply with both state and federal law. School districts may extend "recognition" to student groups organized to engage in religious activity if the "recognition" merely opens access to a limited public forum on the same basis that other groups organized for other purposes have access. However, forms of "recognition" which amount to official school district endorsement or support of a religiously-oriented organization would violate the state constitution (and perhaps the federal constitution as well).
Our basis for these answers is more thoroughly discussed in the analysis below.
This opinion is not based upon the actual circumstances at any particular school, but is rather an attempt to assess the constitutional options available to school districts who are considering whether to allow school property and facilities to be used by various categories of organizations consisting of students of the school. As we understand it, it is a common practice in this state for secondary schools to allow the formation of clubs and other organizations among the student body. Some of these clubs may be closely related to a course or a series of courses offered in the school (such as a French club which is an outgrowth of a French class, or a future farmers organization which is directly related to classes on agriculture). Some organizations may be educational in nature, but not specifically related to courses offered in the school (such as clubs devoted to discussion of great literature or current events, or drama societies or musical ensembles which may supplement the school's educational offerings, but are not directly an outgrowth of them). Still other organizations are not specifically educational in nature, but are primarily social, recreational, or charitable in nature (booster clubs for the school's athletic teams, clubs whose primary function is to plan and organize dances and social events, or organizations that engage in community outreach projects ranging from care for the sick and homeless to conserving natural resources). In many schools, student organizations of all these types are allowed to conduct meetings and other activities at the school, and many schools designate or set aside times (before or after the school day, or during the lunch hour, or during a designated activity period) in which student organizations may hold meetings or otherwise conduct their business. Beyond supplying time and space, the extent to which school staff and administration are directly involved with student activities can vary greatly (see discussion in response to Question 4, at pages 15-17 below). For purposes of your questions, however, we will assume at a minimum a district which supplies both school owned property and school controlled time as a sort of "public forum" for students to engage in club or organization activities. We will also assume that, for purposes of your question, participation by an individual student in a particular organization is completely voluntary, and that the school is not encouraging students to join particular organizations or to engage in any particular activities. We further assume that students who join such organizations are neither favored (such as by earning class credit) nor disfavored by the school for their participation.
Students in some schools have formed (or have requested permission to form) organizations which are religious in nature. In effect, these students are asking for the opportunity to spend their time praying or engaged in theological discussion while their fellow students are playing chess or planning a banquet. Religious organizations can vary a great deal too, of course. Some such organizations promote a specific religious point of view, or engage in prayer or ceremonial practices related to a particular religion. Other groups which might be formed to discuss philosophical and theological issues in general, or to organize debates among students holding varying religious points of view. It is also conceivable that students who are atheists or otherwise irreligious could form organizations advocating their positions. For the purposes of your questions, we will assume all of these as possibilities.
Based upon these factual assumptions, we turn now to the legal background which must be discussed before we answer your questions.
Federal Constitutional Law
The opening language of the first amendment to the United States Constitution contains a few simple words which have provided one of the most fertile fields of inquiry in the entire constitution for courts and scholars:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof[.]
While nearly all scholars and citizens agree that one purpose of this language was to prohibit Congress from establishing an official religion or from intermeddling in the religious affairs of citizens, the inherent tension between the "Establishment Clause" and the "Free Exercise Clause" has been the subject of a great deal of scholarly writing and litigation, as well as the cause for a great deal of confusion and misunderstanding about freedom of religion and the United States Constitution. See, e.g., Robert T. Miller & Ronald B. Flowers, Toward Benevolent Neutrality: Church, State, and the Supreme Court (4th ed. 1992); James E. Ellsworth, Esq., "Religion" in Secondary Schools: An Apparent Conflict of Rights—Free Exercise, the Establishment Clause, and Equal Access, 26 Gonz. L. Rev. 505 (1991).
The tension between the two religious freedom clauses can be illustrated nicely with the subject of your question. If a school district allows a Christian prayer group to meet on school property during school hours, has the school district violated the constitutional provision prohibiting the "establishment" of religion? On the other hand, if a school district prohibits its students from organizing religious discussions, or engaging in religious practices on school property or during school time, is the district interfering with the students' "free exercise" of their religion? Confronted with student requests to conduct religious activities on school property, school districts must deal with the uncomfortable possibility that federal constitutional litigation may ensue whether the request is granted or denied. The final result of that litigation is not perfectly predictable, and usually depends upon the particular context of a case.
In the area of your inquiry, there is at least a leading case which lays down an analysis which appears to continue to enjoy the support of most of the United States Supreme Court. Widmar v. Vincent, 454 U.S. 263, 70 L. Ed. 2d 440, 102 S. Ct. 269 (1981), was a challenge to a policy of the University of Missouri at Kansas City whereby any registered student association was allowed use of university facilities for its meetings except religious organizations. The university apparently believed that allowing the use of university facilities by a religious group would violate the Establishment Clause of the federal constitution as well as portions of the Missouri State Constitution. Although the federal district court ruled in the university's favor (Chess v. Widmar, 480 F. Supp. 907 (W.D. Mo. 1979)), the Eighth Circuit reversed (Chess v. Widmar, 635 F.2d 1310 (8th Cir. 1980)) and the United States Supreme Court affirmed the Eighth Circuit. Basing its reasoning as much on free speech as on freedom of religion grounds, the Court found that the university's policy amounted to creation of an "open public forum" in university facilities for organizations advocating all types of positions and points of view. The Court found that the adoption of such a policy, and its extension to religious groups, would not violate the Establishment Clause of the federal constitution because it would meet all three prongs of the test established in Lemon v. Kurtzman, 403 U.S. 602, 29 L. Ed. 2d 745, 91 S. Ct. 2105 (1971),reh'g denied 404 U.S. 876, 30 L. Ed. 2d 123, 92 S. Ct. 24: (1) that the governmental policy have a secular legislative purpose; (2) that its principal or primary effect be one that neither advances nor inhibits religion; and (3) that the policy not "foster an excessive government entanglement with religion". The Court disposed of the first two prongs quite easily, holding that an "open public forum" policy, at least if honestly adopted and administered, had a secular purpose and neither advanced nor inhibited religion. The Court found that such a policy would not "entangle" government with religion, and agreed with the Eighth Circuit in suggesting that the opposite policy—of excluding religious groups from an otherwise open public forum—amounted to greater "entanglement" than the "open public forum" policy in question. Widmar v. Vincent, 454 U.S. at 272.
The Court also rejected the argument that extending the "open public forum" to religious groups would foster religion because religious groups would benefit from access to public facilities. The Court found that the benefit to religion was entirely incidental and could not be shown to be a primary effect of an open public forum. Widmar v. Vincent, 454 U.S. at 272-75. Indeed, the Court quoted an earlier case in noting that a strict reading of the Establishment Clause would prohibit churches from being protected by police and fire departments, or from having their public sidewalks kept in repair. Widmar v. Vincent, 454 U.S. at 274-75 (quoting Roemer v. Maryland Pub. Works Bd., 426 U.S. 736, 747, 49 L. Ed. 2d 179, 96 S. Ct. 2337 (1976)).
TheWidmar Court noted the University of Missouri's arguments that the policy of excluding religious groups was necessary to comply with certain provisions of the Missouri State Constitution. Noting that the Missouri courts had never ruled on the state constitutionality of an "open public forum" policy, the Supreme Court found that the policy actually adopted violated the Free Exercise Rights (as well as the Free Speech Rights) of persons desiring to use an open public forum for religious purposes. Therefore, granting equal access to religious groups was not only constitutionally permissible, but constitutionally required.
Federal Equal Access Act
At least partly in response to Widmar, Congress sought to extend Widmar's "open public forum" principles to federally-supported secondary schools through the enactment of the Equal Access Act. Pub. L. No. 98-377, Title VIII, 98 Stat. 1302-04 (1984), codified as 20 U.S.C. §§ 4071-74. The most relevant portion of this law is 20 U.S.C. § 4071(a) which reads as follows:
It shall be unlawful for any public secondary school which receives Federal financial assistance and which has a limited open forum to deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings.
20 U.S.C. § 4071(b) defines "limited open forum" as follows: "A public secondary school has a limited open forum whenever such school grants an offering to or opportunity for one or more noncurriculum related student groups to meet on school premises during noninstructional time." The purpose and effect of this language, then, was to extend to religious groups the benefit of any access to a "limited open forum" which a secondary school might choose to provide for its students.
The Equal Access Act was inevitably the source of litigation, and its constitutionality was upheld by the Supreme Court in Board of Educ. of Westside Comm'ty Schs. v. Mergens, 456 U.S. 226, 110 L. Ed. 2d 191, 110 S. Ct. 2356 (1990). The Court had before it a policy of the Westside High School, a public secondary school in Omaha, Nebraska. By this policy, students were encouraged to form clubs which met certain broadly defined school district goals and such clubs, upon recognition by the school, were entitled to access to district space and time for their meetings and certain other activities. Several students applied for the formation of a Christian club and the school denied the request, apparently on the reasoning that (1) to be recognized as an official student activity, a club had to have a faculty sponsor; (2) the school could not assign a faculty sponsor to the Christian club without violating the Establishment Clause of the federal constitution; and (3) therefore, school district policy did not allow the district to recognize the Christian club or grant it access to school facilities. The school denied that it maintained a "limited open forum" as defined in the Equal Access Act, and further contended that the Equal Access Act was unconstitutional as applied to the school.
Although the U.S. District Court for the District of Nebraska upheld the policy, finding that Westside did not have a "limited open forum" because all of its clubs were curriculum related, the Eighth Circuit reversed the district court (867 F.2d 1076 (8th Cir. 1989)) and, again, the U.S. Supreme Court upheld the Eighth Circuit. Most of the opinion dealt with the problem of defining the term "noncurriculum related student groups". The Court adopted a fairly broad reading of this term, concluding that a club or other organization is "noncurricular" if it is not directly tied to a specific course being offered in the school. Because Westside had groups such as a chess club, a stamp collecting club, and a community service club whose activities were not related to any particular course in the high school curriculum, the Court found that Westside had a "limited open forum" as defined in the Equal Access Act.
The Court also found that the Equal Access Act as applied to Westside was constitutional. On this point, there was no majority opinion, but eight of the nine justices upheld the Act. Justice O'Connor, joined by Chief Justice Rehnquist and Justices White and Blackmun, concluded that the Equal Access Act met theLemon v. Kurtzman test referred to above and thus did not violate the Establishment Clause. Justices Kennedy and Scalia rejected theLemon v. Kurtzman test, but applied their own test to find that the Act neither granted any special benefits to religion nor coerced students into religious activity. In a third opinion, Justices Marshall and Brennan agreed that the Act was theoretically constitutional, but warned that a school district was in danger of violating the Establishment Clause if it did not take affirmative steps to disassociate itself with Christian clubs and similar organizations and make it sufficiently clear that these organizations were in no sense endorsed or supported by the school district. Justice Stevens dissented.
Based onWidmar and Mergens, and the language of the Equal Access Act itself, we conclude that (1) a secondary school which establishes an open forum or a "limited open forum" as described inMergens does not violate the Establishment Clause of the federal constitution; (2) the Equal Access Act itself is constitutional and applies to any secondary school in this state which receives federal assistance; and (3) a school district policy denying access to school facilities to religious groups based on the religious nature of the organization or the specific religious content of the positions advocated by such groups, while access was broadly granted to other voluntarily organized student groups, might well be held to violate the Free Exercise Clause of the federal constitution, even if the Equal Access Act were not involved.
Washington State Constitution and its Case Law
The Washington State Constitution contains its own provisions intended to guarantee freedom of religion, and phrased in somewhat different terms from the federal constitutional language discussed above. Article 1, section 11 of the state constitution provides in part as follows:
Absolute freedom of conscience in all matters of religious sentiment, belief and worship, shall be guaranteed to every individual, and no one shall be molested or disturbed in person or property on account of religion; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the state. No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment. . . .[]
(Emphasis added.) In addition to this general provision, there is a specific provision for schools, article 9, section 4, which reads as follows: "All schools maintained or supported wholly or in part by public funds shall be forever free from sectarian control or influence."
From the language of the state constitutional provisions, which are more specific and include more details than the equivalent federal provisions, it seems clear that the drafters of the state constitution intended to guarantee the free exercise of religion in this state more vigorously than the federal constitution, and (on the free exercise question at least) our state courts have so held. First Covenant Church v. Seattle, 120 Wn.2d 203, 840 P.2d 174 (1992). As to the other aspect of freedom of religion in the Bill of Rights—the prohibition against the establishment of religion—the state constitution, again, seems intended (note the underlined language above in article 1, section 11, and the whole of article 9, section 4) to require, if anything, a stricter separation of religion from governmental support or involvement than the federal provisions. While the state courts have not explicitly so held, this is the clear implication of cases such asWitters v. Commission for the Blind, 112 Wn.2d 363, 771 P.2d 1119,cert. denied, 493 U.S. 850 (1989).
Granting that the state constitution intended a stricter separation of government from religious activity than the federal, the state courts have never had occasion to interpret the "open public forum" issues discussed above. In cases dealing with a variety of other matters, the state supreme court has held to a very strict rule with respect to the appropriation of public funds and their use, even incidentally, for religious or sectarian instruction. InState ex rel. Dearle v. Frazier, 102 Wash. 369, 173 P. 35 (1918), the state supreme court invalidated a scheme by which schools would give school credit for bible classes taught outside the school by religious educators. The court found such a practice violative of article 1, section 11 of the state constitution. InPerry v. School Dist. 81, 54 Wn.2d 886, 344 P.2d 1036 (1959), the court invalidated a "released time" program in which students were released for a part of their classroom day to leave the school and attend religious instruction. The religious instruction was on a purely voluntary basis, but the program included distribution in the school of cards and other material announcing and describing the released time program, and also involved representatives of religious groups appearing in the school to discuss the program. InWeiss v. Bruno, 82 Wn.2d 199, 509 P.2d 973 (1973), the State Supreme Court struck down a scheme of tuition grants by the state to students at non-public schools, holding that such grants were clearly a violation of article 9, section 4 of the state constitution.
By contrast, the courts have upheld certain practices which, in the opinion of the court, amounted to no significant support of religion with public funds or property. InCalvary Bible Presbyterian Church v. Board of Regents, 72 Wn.2d 912, 436 P.2d 189 (1967), the state supreme court held that it did not violate either the federal or state constitutions for the University of Washington (a state supported institution) to offer courses discussing the bible as literature. InHealth Care Facilities Auth. v. Spellman, 96 Wn.2d 68, 633 P.2d 866 (1981), the court upheld the establishment of a state agency to market non-recourse revenue bonds in the state's name for the purpose of financing capital improvements to hospitals and other health care facilities in the state, even though health care facilities owned and operated by religious organizations would receive the benefit of the program. The court found, in effect, that the state was merely lending its name, without any risk of expenditure of public funds, in order to take advantage of certain provisions in the federal tax laws. The same principles were reaffirmed and somewhat expanded in Higher Ed. Facilities Auth. v. Gardner, 103 Wn.2d 838, 699 P.2d 1240 (1985), in which the Legislature adopted essentially the same scheme for privately-owned higher education institutions in the state.
Garnett v. Renton School District
The passage of the federal Equal Access Act, when taken against the background of the state's strictly worded constitutional provisions concerning the use of public money and property for religious purposes, led to disagreement and ultimately litigation concerning the applicability of the Equal Access Act to school district practices in the state of Washington. Students at Lindbergh High School in Renton requested permission to hold religious meetings in a high school classroom before the start of the school day. The district denied their request and litigation was filed in federal district court to test the applicability of the Equal Access Act to Renton School District's policies. The district court initially denied relief to the students. Garnett v. Renton Sch. Dist., 675 F. Supp. 1268 (W.D. Wash. 1987). The Court of Appeals affirmed. 874 F.2d 608 (9th Cir. 1989). However, the United States Supreme Court granted certiorari, vacated judgment and remanded the case in light of its decision inMergens. 496 U.S. 914, 110 L. Ed. 2d 628, 110 S. Ct. 2608 (1990).
On remand, the district court, applying the analysis of Mergens to the facts before it, concluded (1) that the Renton School District was offering a "limited open forum" for purposes of the Equal Access Act; (2) that the Washington State Constitution absolutely prohibited the use of school property for sectarian purposes; and (3) the school district was excused from compliance with the Equal Access Act by virtue of the fact that it could not lawfully comply with the federal act without violating the state constitution. Garnett v. Renton Sch. Dist., 772 F. Supp. 531 (W.D. Wash. 1991).
The matter was again appealed to the circuit court, and the Ninth Circuit reversed. The circuit court accepted the district court's finding that Lindbergh High School operated a "limited open forum" but found that the Equal Access Act was intended to preempt state law. The appellate court found that the Equal Access Act did not excuse school districts from compliance, even if compliance would result in a violation of the state constitution. The appellate court did not explicitly attempt to construe state law to determine whether or not the school district could have granted the religious group's request for access to school facilities without violating the state constitution. Garnett v. Renton Sch. Dist. 403, 987 F.2d 641 (9th Cir. 1993).
With all of this as background, we turn to your specific questions.
Does the Washington State Constitution, and specifically article 1, section 11 and/or article 9, section 4, permit public school districts to allow access to school facilities to student groups who intend to use the access for meetings relating to the practice of a religion?
Reviewing the question you have posed in light of the state case law discussed above, we note first of all that this is an area in which the state appellate courts have not had an opportunity to interpret the constitution. Access to school facilities to conduct religious meetings is certainly a more significant involvement of public property than was at issue in Health Care Facilities Authority, discussed above. However, allowing access to school facilities for religious groups in a "public forum" context is a far less clear application of public money or property to a religious exercise or instruction than the tuition assistance involved inWeiss v. Bruno, also discussed above. Answering your question inevitably involves some guesswork about where Washington courts might draw the line between those two types of cases.
In our opinion, it would not be a violation of article 1, section 11, or article 9, section 4 of the state constitution for school districts to make space and/or time available to student groups for religious purposes, at least if all of the following conditions are present: (1) school policy generally makes school facilities available for noncurricular student groups; (2) if the school places any restrictions on the type of groups entitled to use school facilities, such restrictions are based upon "neutral" factors such as the need to keep order or protect school property, and not upon the specific content of the ideas expressed or advocated by a particular group; (3) school officers and employees maintain a position of neutrality with respect to the content of the discussions in a student group and do not endorse, oppose, or otherwise entangle themselves in the substantive issues such groups might deal with.
To explain our conclusion, we turn initially to the language of the state constitution itself. As noted earlier, the key sentence in article 1, section 11 reads as follows: "No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment[.]" Assuming for purposes of argument that the activities of a student religious group might include "worship, exercise or instruction", the question becomes whether allowing access by such a group to school facilities amounts to the appropriation or application of public money or property to such activities. Since the constitution does not define the terms "appropriated" or "applied", we give them their generally understood meanings. The ordinary meaning of "appropriate" is to "set apart for or assign to a particular use in exclusion of all others". Webster's Third New International Dictionary at 106 (1981). The term "apply" is slightly broader, but the dictionary gives the following relevant definitions: "[T]o make use of as suitable, fitting, or relevant . . . to put to use esp. for some practical purpose". Id. at 105.
Both of these terms connote some action, some conscious policy decision by a public officer (legislative or executive) to use public funds or property in a particular manner. Since your question is based upon the assumption that the school district in no sense created or made any conscious decision to apply state money or property to the group in question, we think the better view is that merely allowing access to public property to noncurricular student groups is not an "appropriation" or "application" of either public funds or public property for a religious purpose, even though some groups may use this access for religious conduct.
To the extent that a school creates an open forum for student groups, and does not take steps to endow the groups formed with an official stamp of approval, and to the extent one or more of the student groups formed use the forum to express views on religious matters, the resulting use of school facilities is a merely passive or incidental use that could be best analogized to the incidental use of public property which is made available to the general citizenry without restriction (other than restrictions imposed to keep the peace, or to protect public safety or public property) as to the specific nature of use. There is a great deal of public property (whether owned and controlled by the state government or by the various local governments organized under state law). Some of that property is dedicated to particular uses and is not generally open to private citizens unless they happen to have specific business there. However, many categories of public property—roads and streets, forests and parklands, and publicly owned amphitheaters and auditoriums are the obvious examples—are left open for private citizens to use as they choose, restricted only by laws designed to protect public safety and keep the peace. Still other categories of public property, while not always open for private use, are not needed all the time for the designated public purpose and are (to an extent defined in statute, ordinance, or policy) made available for general use at certain times.
While it would surely violate article 1, section 11 for a public body to specifically designate some public property for a religious use, no one has seriously suggested that the voluntary incidental use by private citizens of public property to perform religious ceremonies or engage in worship or religious discussion is an "appropriation" or "application" of public property for a religious purpose. If article 1, section 11 were read that strictly, it would be unconstitutional to conduct a religious procession on a public street, to perform a religious wedding in a public park, or to meditate silently on matters eternal as a member of the audience at a school board meeting.
The context of the "non-establishment" language in article 1, section 11 makes it unlikely that the framers of the constitution intended to exclude all religious practices from public property. The opening language of that section of the constitution provides that "[a]bsolute freedom of conscience in all matters of religious sentiment, belief and worship, shall be guaranteed to every individual, and no one shall be molested or disturbed in person or property on account of religion". Thus, the purpose of article 1, section 11 was not to denigrate, repudiate, or isolate religion, such as by confining religious practices exclusively to private property, but to protect and enhance religious liberty by assuring that every citizen could follow his or her own religious faith without fear of government entanglement.
Allowing students to use a school room for a religious activity on the same basis that other students are using adjacent rooms to play chess or plan a party is not an "application" of school property for a religious use in the sense prohibited by article 1, section 11. On the facts as you have given them to us, school property is merely the incidental location, in which private citizens (the students) are given time to engage in non-curricular activities of their own choosing.
Article 9, section 4 of the state constitution appears to have a narrower purpose than article 1, section 11. Article 9, section 4 provides that "[a]ll schools maintained or supported wholly or in part by the public funds shall be forever free from sectarian control or influence". On the facts as you have supplied them, merely allowing students to conduct voluntary meetings could not be construed as "sectarian control or influence" over a school maintained by public funds. Allowing the students free expression is not an indication that the school is improperly subject to influence or control by the ideas which the students might happen to express.
In finding that religiously-oriented student groups can be included in an "open public forum" policy, we recognize that we are disagreeing with the federal district court inGarnett v. Renton Sch. Dist., 772 F. Supp. 531. WhileGarnett is a thoughtful opinion, we think it overstates the extent to which the state constitution prohibits private uses of public property. Garnett relies heavily on Weiss v. Bruno,supra, and on Witters v. Commission for the Blind, 102 Wn.2d 624, 689 P.2d 53 (1984),reversed on other grounds sub nom., Witters v. Washington Dep't of Servs. for the Blind, 474 U.S. 481, 88 L. Ed. 2d 846, 106 S. Ct. 748 (1986). BothWeiss and Witters, however, involved appropriations of state funds and their use to support religious education. Neither of those cases involved a mere passive use of public property otherwise made available as an open public forum. Accordingly, in our opinion, the Garnett court mischaracterized the state constitution in stating that it "denies religious groups anyuse of public money or property". Garnett v. Renton Sch. Dist., supra, 772 F. Supp. at 535 (emphasis added). In our opinion, mere "use" of public property is not necessarily an "appropriation" or "application" of such property. The words of the constitution require some specific, knowing choice by public officers, more than a decision to make public property available for general use.
Finally, we think our suggested reading of the state constitution is more likely to put state constitutional law in harmony with federal law than an alternative reading. While federally-supported schools could escape the effects of the Equal Access Act by closing school facilities to all student groups except those meeting the supreme court's definition of "curricular", Widmar was based directly upon the constitution and not upon the Equal Access Act or another federal statute. AlthoughWidmar involved the higher education system, and courts have been somewhat more accepting of restrictions on free speech and freedom of religion in the elementary and secondary schools, there is no obvious distinction between high school and college students that would clearly justify a result different fromWidmar if a federal constitutional challenge were brought against a school denying access to religious groups to an otherwise open forum, even apart from the Equal Access Act.
Since the language of the state constitution is not so plain that it must be read as the district court in Garnett read it, and since a narrower reading carries forward sound policies of allowing free exercise of religion without excessive government entanglement, we answer your first question in the affirmative, always assuming the facts as they were laid out earlier in this opinion.
Questions 2 and 3:
If Question 1 is answered in the negative, is the state constitution preempted by either the United States Constitution or the federal Equal Access Act (20 U.S.C. §§ 4071-4074)?
If it is a violation of the state constitution for school districts to provide access to school facilities for meetings held by student religious groups, and if federal law requires a school district to provide access on an equal basis to religious groups if it provides access to other noncurricular student groups, are school districts required to deny all access to school facilities for noncurricular student groups in order to comply with both state and federal law?
Because we have answered Question 1 in the affirmative, it is not necessary for us to reach the issues posed by your second and third questions. As a general matter of course, state laws (including state constitutional provisions) are superseded and preempted by properly enacted and constitutionally sound federal statutes and by the federal constitution. The Ninth Circuit Court of Appeals specifically found that state law is preempted by the Equal Access Act to the extent they are inconsistent. Garnett, 987 F.2d 641.
Your third question presents a fascinating and unresolved issue of constitutional law: if engaging in certain discretionary conduct would violate state law under circumstances where the state law is preempted by federal law, is one obligated to avoid the clash of conflicting state/federal policies by avoiding the conduct altogether? We gratefully defer consideration of this issue since we do not need to reach it in light of our answer to your first question.
Assuming Question 1 is answered in the affirmative, to what extent and under what circumstances may student religious clubs be recognized by school districts or student body organizations, such as being listed or registered as an "official" student organization, being granted access to space in school publications and bulletin boards for announcements concerning meetings and club activities, or assignment of a faculty member or other school district employee to serve as adviser to such a group?
The shortest answer to your fourth question is that it is impossible to predict precisely where the courts will draw the line between school conduct which merely facilitates the exercise of free speech and free exercise of religion rights by the students and conduct which amounts to "excessive entanglement" of the school district in religious matters or constitutes a violation of the establishment clauses of the federal and/or state constitutions. At least as to the federal constitution, the familiar test of Lemon v. Kurtzman, 403 U.S. 602, appears still to be good law, and would require (as applied to the facts of your questions) that school districts meet the following standards: (1) that their policy have a secular purpose; (2) that the school policy's principal or primary effect be one that neither advances nor inhibits religion; and (3) that the policy not foster an excessive government entanglement with religion.
We will briefly discuss certain of the issues you have raised, without presuming to give very definite answers.
First, you have asked about "registering" or "recognizing" groups as student body organizations. As we understand it, schools which offer time and space for student group activities often require groups to get some sort of official recognition in order to qualify for access to school district facilities. As to such a requirement, the answer to your question would depend upon the standards that the school district employs in deciding which groups qualify. At one end of the scale, some schools might grant access only to student groups whose activities are directly related to the school curriculum. Another school might grant recognition to any group which forms requiring minimal information about the nature and membership of the group. Most schools would range in between these two extremes.
If the standards adopted by the school are secular in purpose, and do not either promote or discourage religion, and do not entangle school officials in religious matters, the courts under current thinking would likely uphold the school policy. Merely requiring student groups to register would appear to meet the test, like requiring those using a state park to register with the ranger. The purpose of such a requirement would be orderly management of school property and affairs, so the school would know which groups were using school facilities and whom to hold responsible for proper conduct on and use of school property.
The question of access to space on school bulletin boards, or in student newspapers, presents analogous issues. What are the school's general policies with regard to access to such school facilities? If a school newspaper is generally open to the expression of views by individual students, or to announcement of upcoming meetings by non-curricular student groups in general, it would not seem to present serious constitutional problems to make the newspaper available for religious student organizations. By contrast, a school publication which is otherwise limited to announcements about official school district policies and events would seem an inappropriate place to insert an announcement about the activities of a student religious group, and might, given the context, give the impression that the religious group has some official connection with the school. If a student newspaper or school bulletin board is treated as an open forum for expressions of private views and announcements about non-curricular activities, such a forum presumably may (and arguably must) be open for expressions and announcements concerning religious matters.
The assignment of a faculty member or other school district employee as an adviser to a student organization appears to be a continuing issue, just as it was at the heart of the facts in Mergens. Schools may wish to require that recognized student groups have an assigned adviser. What is the role of the adviser? If the adviser's role is to keep order, to supervise the conduct of the students to protect their safety and to protect school property, and perhaps to serve as a neutral communications link between the group and the school administration, the assignment of a faculty adviser to a religiously oriented student organization on the same basis as they would be assigned to any other non-curricular student group, or the mere presence of the adviser at meetings of the organization, would not constitute a violation of the state constitution as we interpret it. Again, the analogy of the park ranger comes to mind. The mere presence of a faculty adviser at a meeting in which religious ideas are discussed or advanced would not appear to constitute official endorsement or support of religion any more than the presence of a park ranger in a state park would constitute public endorsement of the various views expressed around the campfires.
However, it is also possible that faculty advisers are expected to play (or in fact do play) a much more active role in the activities of the student groups they advise. Advisers might lead or call meetings, direct or participate in discussions, actively recruit new members, be heavily involved in the activities conducted by the group, drive or accompany the students on field trips or other activities outside the school, or serve as the group's advocate in meetings both inside and outside the school. If the group's activities are not religious in nature, these heavier levels of involvement by faculty or staff advisers present no serious constitutional or other legal problems, so long as they are consistent with school policy and with the purposes for which the school was established. But heavy involvement by a paid school employee in the activities of a religious group (or, for that matter, a group which actively opposes religion) might well, in our opinion, be interpreted as an application of public money or property to support religious activity. Given these considerations, and the difficulty of drawing a clear line between permitted and unpermitted activities, we can only suggest, in this area as well as the others posed by your fourth question, that school districts consult carefully with their own legal counsel to develop policies designed to protect the free exercise of religion without involving district employees in religious affairs or employing district resources to promote or oppose any particular religious view.
We trust this opinion will be of assistance to you.
Very truly yours,
CHRISTINE O. GREGOIRE
JAMES K. PHARRIS
Senior Assistant Attorney General
We understand your opinion request to concern student organizations at the high school (secondary) level of education. Many of the same principles discussed in this opinion might apply to similar activities conducted at other levels in the public education system, such as elementary school on the one hand, or colleges and vocational schools on the other. It is well to point out, however, that federal case law interpreting the applicability of free speech and freedom of religion in schools does vary somewhat depending upon the age of the students. We will not attempt in this opinion to analyze the potential variations in analysis that varying the age of the students could inspire. The use of surplus school property for nonschool community activity, including use by churches and other religious groups, also presents a somewhat analogous situation to the one presented in this opinion. However, because, again, the federal statutes and constitutional case law are not quite the same with respect to this category of school property use, the reasoning of this opinion should not be read as automatically extending to other forms of use of school property by religious groups. This opinion relates only to uses of school property by student groups, and does not cover uses by groups composed wholly or partially of non-students.
Like other parts of the Bill of Rights, the religion clauses of the First Amendment are applicable to state government by virtue of the adoption of the Fourteenth Amendment. Committee for Pub. Ed. & Religious Liberty v. Nyquist, 413 U.S. 756, 37 L. Ed. 2d 948, 93 S. Ct. 2955 (1973).
Although the Equal Access Act only reaches public secondary schools which receive federal financial assistance, it is interesting to note that the same act specifically provides that failure to comply with the act will not subject the school to a denial or withholding of federal financial assistance. 20 U.S.C. § 4071(e). Congress's apparent intent was merely to create a new statutory right on the part of students at such a school, to be enforced through civil litigation, rather than to use the administrative machinery of withholding federal benefits to districts which were out of compliance with the act.
The remainder of article 1, section 11, not of direct relevance to our discussion, permits certain state institutions to employ chaplains, prohibits any kind of religious test or qualification for public office in this state, and provides that no person will be incompetent as a witness or juror in consequence of his opinion on matters of religion.
As will be discussed more extensively later, a federal court interpreting Washington law has concluded that the state constitution requires a stricter separation of church and state than does the federal constitution. Garnett v. Renton Sch. Dist. 403, 675 F. Supp. 1268 (W.D. Wash. 1987). However, on matters of state constitutional interpretation, the Supreme Court has held that federal courts lack appellate review authority, with the implication that a state's supreme court is the final judge as to state law interpretation. See, e.g., Murdock v. Memphis, 87 U.S. 590 (1874).
The Perry court suggested that a released time program not including announcement cards for in-school discussion of the contents of religious instruction might not violate the constitution. It appears that this issue has never been tested in the appellate courts, however, and it is not certain whether courts today would follow the Perry dictum.
Our own office has issued a series of opinions which, again, draw the distinction between direct involvement by school districts with religious activity and the merely incidental connection of a public institution with religion. In AGO 1961-62 No. 119, we held that a school could not foster, sponsor, or participate directly in baccalaureate exercises that are religious in nature. In AGO 1961-62 No. 118, we held that a school could not undertake to distribute bibles on school premises. By contrast, we had earlier found that a college could permit the distribution of bibles to students who had requested them. AGO 1955-57 No. 277. And we found no violation of the state constitution for public libraries to purchase bibles and other religious material and make them available for public reading and borrowing. AGO 1955-57 No. 226.
The cited language, as well as the sentence under discussion in this opinion, have appeared in every version of article 1, section 11. Compare original text, article 1, section 11, to the language in Amendment 4 (1904), Amendment 34 (1957), and Amendment 88 (1993).
The answer could be very different, of course, if school officers and employees actively encouraged or participated in student religious organizations, or specifically set aside school money or property for such activities. Note discussion in response to Question 4 at pages 15-17.
In 1993, Congress passed the Religious Freedom Restoration Act of 1993 (Pub. L. No. 103-141, § 2, 107 Stat. 1488, 42 U.S.C.A. § 2000bb), generally prohibiting government at any level from burdening the exercise of religion without "compelling justification". We note the existence of this new federal statute without speculating as to its applicability in school affairs.