DISTRICTS ‑- SCHOOLS ‑- EDUCATION

DISTRICTS ‑- SCHOOLS ‑- EDUCATION

1.   School districts have broad powers over curricula and instructional materials.  Pursuant to this authority, a school district may select and use educational television programming even though that programming contains advertising so long as the primary and predominant purpose of the program is educational and the advertising content is incidental.

2.   School districts have broad authority over the selection of instructional materials and the acquisition of school equipment and supplies.  Pursuant to this authority, a school district may select school materials, supplies and equipment that contain advertising.

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                                                                November 1, 1990

Honorable David H. Bruneau
Clallam County Prosecuting Attorney
Clallam County Courthouse
223 East Fourth Street
Port Angeles, Washington 98362-3098

                                                                                                                 Cite as:  AGO 1990 No. 13

Dear Mr. Bruneau:

            By letter previously acknowledged, you requested our opinion on two questions that we have paraphrased as follows:

            1.         May a school district select and use educational television programming that contains advertising?
            2.         May a school district select and use curriculum materials, textbooks, athletic equipment, supplies, and other school-related materials that contain advertising?

            We answer your questions in the affirmative for the reasons set forth below.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS
Question 1

            Your first question concerns the use of educational television programs that contain commercial advertising, such as the program known as Channel One.  This is a daily, twelve‑minute satellite television program available to school districts.  The majority of the program, approximately ten minutes, consists of news and current events.  The remaining two minutes consists of commercial advertising.  The Channel One program, together with all necessary reception and playback equipment, is provided to the school district without charge.  The school district in return will show the entire program, including both the news and commercial segments, on the district's satellite‑equipped television sets.  In order to help assure that the programming is appropriate for the classroom environment, Channel One has agreed that certain types of products and services will be excluded from the commercial segments of the program.

            Your question is whether school districts may obtain and use programs such as Channel One in their respective districts.  We commence by observing that school districts in Washington are considered municipal or quasi-municipal corporations.  As such, they possess the powers contained in express legislative grants, together with those that are necessary to, implied in, or incident to such expressed powers, and those that are essential to the declared objects and purposes of the district.  Noe v. Edmonds Sch. Dist. 15, 83 Wn.2d 97, 103, 515 P.2d 977 (1973).

            RCW 28A.150.2301/ grants school district boards of directors broad authority and responsibility over the content of their educational programs.  This statute provides in part:

                        (1) . . .  In accordance with the provisions of Title 28A RCW, as now or hereafter amended, each common school district board of directors shall be vested with the final responsibility for the setting of policies ensuring quality in the content and extent of its educational program and that such program provide students with the opportunity to achieve those skills which are generally recognized as requisite to learning.

             [[Orig. Op. Page 3]]

                        (2) In conformance with the provisions of Title 28A RCW, as now or hereafter amended, it shall be the responsibility of each common school district board of directors, acting through its respective administrative staff, to:

                        (a) Establish performance criteria and an evaluation process . . . for all programs constituting a part of such district's curriculum;

                       . . .

                        (e) Establish final curriculum standards consistent with law and rules and regulations of the state board of education, relevant to the particular needs of district students or the unusual characteristics of the district, and ensuring a quality education for each student in the district.

            RCW 28A.320.230 further grants school district boards of directors broad authority and responsibility for the selection of instructional materials.  This statute provides in part:

            Every board of directors, unless otherwise specifically provided by law, shall:

                        (1) Prepare, negotiate, set forth in writing and adopt, policy relative to the selection or deletion of instructional materials.  Such policy shall:
                        (a) State the school district's goals and principles relative to instructional materials;
                        (b) . . . [S]pecify the procedures to be followed in the selection of all instructional materials including text books;
                        (c) Establish an instructional materials committee to be appointed, with the approval of the school board, by the school district's chief administrative officer. . . . ;

                       . . .

                        (f) Provide free text books, supplies and other instructional materials to be loaned to the pupils of the school, when, in its judgment, the best interests of the district will be subserved thereby . . . .

                        Recommendation of instructional materials shall be by the district's instructional materials committee in  [[Orig. Op. Page 4]] accordance with district policy.  Approval or disapproval shall be by the local school district's board of directors.

            Washington courts have frequently referred to the broad authority granted school districts in matters involving educational curricula and instructional materials.  InAdams v. Clover Park Sch. Dist. No. 400, 29 Wn. App. 523, 530, 629 P.2d 1336 (1981), the court noted that "[t]he determination of educational goals, programs and curricula is a matter within the broad discretion of the school board."  Accord Peters v. South Kitsap Sch. Dist. No. 402, 8 Wn. App. 809, 816, 509 P.2d 67 (1973).  InCamer v. Seattle Sch. Dist. No. 1, 52 Wn. App. 531, 762 P.2d 356 (1988), a case involving a parent's claim that the school district had failed to provide her child with adequate and proper education, the court elaborated further:

            [The statutory scheme] provides for periodic reviews of curriculum . . . by school district boards of directors, the SPI [Superintendent of Public Instruction], and the State Board of Education.  These matters are, by practical necessity, largely discretionary with those charged with the responsibilities of school administration.  Courts and judges are normally not in a position to substitute their judgment for that of school authorities, nor are [they] equipped to oversee and monitor day-to-day operations of a school system.

52 Wash. App. at 537.  (Citation omitted.)

            Accordingly, the courts have consistently declined to substitute their judgment for that of school districts in several cases involving discretionary district decisions, concerning not only the selection of curricula and instructional materials, but a broad range of school-related matters.  See, e.g.,Adams, 29 Wn. App. 523 (addition, elimination, and filling of teaching positions); Peters, 8 Wn. App. 809 (same); Millikan v. Board of Directors of Everett Sch. Dist. No. 2, 93 Wn.2d 522, 611 P.2d 414 (1980) (determination of acceptable teaching methods and curricula);Lane v. Ocosta Sch. Dist. No. 172, 13 Wn. App. 697, 537 P.2d 1052 (1975) (location of school bus stops); State ex rel. Lukens v. Spokane Sch. Dist. No. 81, 147 Wash. 467, 266 P. 189 (1928) (siting of school buildings).

            Applying the above‑cited statutes and case law to your question, we conclude that school districts may select and use educational television programming even though that programming may contain advertising.  Where the primary and predominant purpose of the program is educational and the advertising content incidental, we believe the school district has authority to  [[Orig. Op. Page 5]] acquire the program pursuant to its broad powers over curricula and instructional materials.  To phrase the issue as whether a school district may "engage in advertising" per se, we think, misstates the issue.  Rather, the question here is simply whether the district may determine that, taken as a whole, the television programming in question will provide a valuable teaching tool for the district's classrooms.  We conclude it has authority to do so.

            Whether the exposure of students to incidental advertising will have a harmful, beneficial, or neutral impact is, of course, a question that may be much debated, and one upon which reasonable minds may differ.  But policy determinations of this sort have been delegated to the school districts.2/

            As we recently indicated in AGO 1989 No. 17 at 5, involving a school district's authority to lease out surplus space for the establishment of an adolescent health care clinic:

            [W]e believe the determination of a school district's best interests and the activities that are compatible with those interests . . . must be left to the informed discretion of the individual school district.  It is neither our function nor duty to inquire into the wisdom of this determination.

            We therefore answer your first question in the affirmative.

Question 2

            May a school district select and use curriculum materials, textbooks, athletic equipment, supplies, and other school-related materials that contain advertising?

            For reasons similar to those set forth in our previous response, we answer this question in the affirmative as well.  School districts have broad authority over the selection of instructional materials and the acquisition of school equipment and supplies.  See, e.g., RCW 28A.320.230 (selection of books,  [[Orig. Op. Page 6]] supplies and other instructional materials); 28A.320.240 (stocking of libraries); 28A.335.170 (leasing of computers and other equipment); 28A.235.120 (equipping of school lunchrooms); 28A.335.190 (purchase of furniture, supplies and equipment through competitive procedures); 28A.320.110 (purchase of information and research services); 42.24.035 (purchase of magazines, other periodicals, and books).

            Furthermore, as indicated above, the courts have recognized the school districts' broad authority to exercise their discretion when carrying out school-related activities.  None of the above statutes, nor any others to our knowledge, prohibit school districts from selecting school materials, supplies, or equipment that contain advertising.  And given the pervasiveness of advertising in several school-related materials‑-magazines, journals, and newspapers, for example, are replete with advertising‑-we simply cannot conclude that the Legislature intended to bar school districts from acquiring otherwise permissible items simply because they contain advertising.  We decline to read such a limitation into the statutes.

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

Very truly yours,

KENNETH O. EIKENBERRY
Attorney General

GREGORY J. TRAUTMAN
Assistant Attorney General