DISTRICTS ‑- SCHOOLS ‑- BOARD OF DIRECTORS ‑- DISTRIBUTION OF GIDEON BIBLES ON SCHOOL PREMISES

DISTRICTS ‑- SCHOOLS ‑- BOARD OF DIRECTORS ‑- DISTRIBUTION OF GIDEON BIBLES ON SCHOOL PREMISES.

A Board of directors of a school district may not permit the distribution of Gideon Bibles on school premises by either school employees or representatives of the Gideon Society in view of the prohibition found in the constitution and statutes of this state regarding separation of church and state.

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                                                                   April 20, 1962

Honorable Wilbur G. Hallauer
State Senator, First District
P.O. Box 70
Oroville, Washington

                                                                                                              Cite as:  AGO 61-62 No. 118

Dear Sir:

            By letter previously acknowledged, you requested an opinion of this office on a question which we paraphrase as follows:

            Does the Washington constitution or any law prohibit a school district of the state of Washington from distributing or permitting to be distributedon school premises Bibles offered for distribution by the Gideon Society?

            We answer this question in the affirmative.

                                                                     ANALYSIS

            Article I, section 11, Amendment 4, of the Washington state constitution provides in pertinent part 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. . . ."

            Article IX, section 4, of the Washington state constitution provides:

            "All schools maintained or supported wholly or in part by the public funds shall be forever free from sectarian control or influence."

            RCW 28.02.040 provides:

             [[Orig. Op. Page 2]]

            "All schools maintained or supported wholly or in part by the public funds shall be forever fee from sectarian control or influence."

            The supreme court of this state in State ex rel. Dearle v. Frazier, 102 Wash. 369, 173 Pac. 35, 8 A.L.R. 685 (1918), in discussing certain decisions of the highest courts of other states has said:

            "The framers of the constitution were not content to declare that our public schools should be kept free from sectarian control or influence; they went further and made it certain that their declaration should not be overcome by changing sentiments or opinions.  They declared that 'no public money or property shall ever be appropriated or applied to any religious worship, exercise or instruction,' and in this respect our constitution differs from any other that has been called to our attention."  (Emphasis supplied.)

            The more recent case ofPerry v. School District No. 81, 54 Wn. (2d) 886, 344 P. (2d) 1036 (1959), decided by our supreme court is most significant.  A religious released-time program conducted by the Spokane school district was upheld, subject to the elimination of certain activities in connection therewith.  The court cited with approval the case ofZorach v. Clauson, 343 U.S. 306, 96 L.Ed. 954, 72 S.Ct. 679, but pointed out differences as to the facts involved in thePerry case, supra.

            "The significant difference in the facts of the Zorach case and the instant case can be at once observed and that is the practice permitted by the respondent of the distribution of the cards and the making of announcements by the representatives of religious groups or school instructors relative to the program in the classrooms or on school premises.  This practice was among those present in the McCollum case, and which was absent in the Zorach case.  Moreover, this is a use of school facilities supported by public funds for the promotion of a religious program, which contravenes Art. I, § 11 of our state constitution. . . . [Citations omitted.]

             [[Orig. Op. Page 3]]

            "This practice has the further effect of influencing the pupils, while assembled in the classrooms, as a 'captive audience' to participate in a religious program, contrary to the express provisions of Art. IX, § 4 of our state constitution:

            "'. . . All schools maintained or supported wholly or in part by the public funds shall be forever free from sectarian control or influence.'  (Italics ours.)"  (pp. 896, 897.)

            While approving the overall program the court concluded:

            "We hold the following practice in the released-time program, permitted by the respondent, to be in contravention of Art. I, § 11 (as amended) and Art. IX, § 4 of the state constitution, i.e.,the distribution of cards in public schools, or the making of announcements or explanations for the purpose of obtaining the parents' consent for their children's participation in the released-time program, by representatives of religious groups or instructors in the schools."  (Emphasis supplied.)  (p. 898.)

            We note the decision inTudor v. Board of Education of the Borough of Rutherford, 14 N.J. 31, 100 A. (2d) 857, 45 A.L.R. (2d) 729 (1953), cert. den. sub. nom.Gideons International v. Tudor, 348 U.S. 816, 75 S.Ct. 25, 99 L.Ed. 644 (1954), where the New Jersey supreme court held that the distribution of Gideon Bibles in the public schools of that state was unconstitutional.  See also,Brown v. Orange County Board of Public Instruction, Fla. 128 So. (2d) 181, cert. den., see 129 So. (2d) 141 (3), which cites theTudor case, supra, with approval.  Also noteworthy are the opinions of the attorneys general of Colorado, California and Arizona which have likewise held to be unconstitutional distribution of Gideon Bibles in the public schools of their respective states.

            Prior opinions of this office covering the same question are noted:  See AGO 55-57 No. 277, letter written to Mr. Harold G. Best, Principal, Foster Junior High School, February 21, 1953; AGO written to the Prosecuting Attorney, Jefferson County, dated April 28, 1948, and a letter written to Mr. Karl W. Von Walter, President, Tacoma Gideon Camp, Tacoma, Washington, dated June 21, 1938.  Distribution of Gideon Bibles was approved in all but the  [[Orig. Op. Page 4]] 1938 letter.  All of these opinions were issued prior to the Perry case which was filed by the supreme court of this state in 1959; hence, any opinion of this office in conflict with the views expressed by our court in thePerry case is hereby overruled.

            Accordingly, in answer to the question submitted by you, it is the opinion of this office that under the rule of the Perry case, supra, the board of directors of a school district may not permit the distribution of Gideon Bibles on school premises by either school employees or representatives of the Gideon Society in view of the prohibition found in the constitution and statutes of this state regarding separation of church and state.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

JOSEPH B. LOONAM
Assistant Attorney General