OFFICES AND OFFICERS ‑- STATE ‑- SUPERINTENDENT OF PUBLIC INSTRUCTION ‑- STATE BOARD OF EDUCATION ‑- SCHOOL DISTRICTS ‑- DISCRIMINATION ‑- EMPLOYMENT

OFFICES AND OFFICERS ‑- STATE ‑- SUPERINTENDENT OF PUBLIC INSTRUCTION ‑- STATE BOARD OF EDUCATION ‑- SCHOOL DISTRICTS ‑- DISCRIMINATION ‑- EMPLOYMENT

(1) Neither the superintendent of public instruction nor the state board of education has the authority under any existing statute or constitutional provision to formulate and implement a state‑wide [[statewide]]affirmative or corrective action policy for disadvantaged groups such as women or racial minorities which would be binding on all local school districts in their employment of personnel; under the supervisory authority granted to him by Article III, § 23 of the state constitution, however, the state superintendent of public instruction may require local school districts, in connection with their employment of personnel, to formulate and implement their own affirmative action policies for such disadvantaged groups, subject to such constitutional standards as may be applicable to those kinds of programs.

(2) Such a requirement may be enforced by a mandamus action against any noncomplying school districts.

(3) The state superintendent of public instruction has the authority to enforce federal affirmative action programs by refusing to disburse federal funds to noncomplying school districts.

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                                                                  January 8, 1975

Honorable Lorraine Wojahn
State Representative, 27th District
3592 East "K" Street
Tacoma, Washington 98404

                                                                                                                   Cite as:  AGO 1975 No. 1

Dear Representative Wojahn:

            By letter previously acknowledged you asked for our opinion on several questions pertaining to the powers of the state superintendent of public instruction and state board of education.  We paraphrase those questions as follows:

             [[Orig. Op. Page 2]]

            (1) Do either the superintendent of public instruction or the state board of education have the authority to require local school districts, in connection with their employment of personnel, to formulate and implement affirmative or corrective action policies for disadvantaged groups such as women or racial minorities?

            (2) If this first question is answerable in the affirmative, what legal means of enforcing such a requirement are available to either of these agencies?

            (3) Does the superintendent of public instruction have the authority to enforce federal affirmative action programs by refusing to disburse federal funds to noncomplying districts?

            We answer questions (1) and (3) in the qualified affirmative; and question (2) as set forth in our analysis.

                                                                     ANALYSIS

            Question (1):

            Affirmative action programs are a fairly recent development, and are designed to correct past patterns of discrimination in, among other things, employment.  The state human rights commission has adopted rules and regulations for the implementation of such programs, and is encouraging voluntary participation by employers in cases where affirmative action policies are appropriate.  See, WAC chapter 162-18.  The legal rationale for such rules and regulations is that, in cases where there has been a pattern of discrimination in the past, factors such as age, sex, race, creed, color or national origin may be considered in order to correct a condition of unequal employment opportunity.  Accord, WAC 162-18-020 and 162-18-030.  In cases where an affirmative action program is deemed proper, these human rights commission rules further provide for avoidance of conflict with chapter 49.60 RCW, the law against discrimination, by allowing for recognition of race, creed, color, national origin, age or sex as a "bona fide occupational qualification" thus bringing the case within the exception to RCW 49.60.180(1), which allows for discrimination upon the above‑listed grounds where those factors constitute such a qualification.  See, WAC 162-18-090.

            Insofar as the constitutionality of affirmative action  [[Orig. Op. Page 3]] policies is concerned, we find a similar expression of legal rationale in the seven-judge majority opinion inDeFunis v. Odegaard, 82 Wn.2d 11, 29, 30, 507 P.2d 1169 (1973).  In upholding an affirmative action program related to the admission of students to the University of Washington Law School, Justice Neill, in writing that opinion, stated that:

            ". . . the constitution is color conscious to prevent the perpetuation of discrimination and to undo the effects of past segregation. . . .

            ". . .

            "Clearly, consideration of race by school authorities does not violate the Fourteenth Amendment where the purpose is to bring together, rather than separate, the races. . . ."

            Although it is true that the court's decision in that case has since been ordered vacated by the United States Supreme Court on the ground of mootness,1/ it is not thereby to be deemed to have been overturned on its merits.  Furthermore, as far as our own state supreme court is concerned, it appears to us that even though less than a majority favored reinstating the court's earlier judgment upon remand from the United States Supreme Court, the underlying concept of affirmative action is still supported by at least five if not more of the present nine members of our court ‑ given a factual justification such as that which the majority earlier found to exist with respect to the law school admissions policy upon which the court earlier ruled with favor.2/ 

             [[Orig. Op. Page 4]]

            For the purposes of this opinion, therefore, we will proceed from that premise without here attempting to pass upon the constitutional validity of any given affirmative action programs which might be adopted by a particular school district in accordance with the views hereinafter set forth.  In other words, we will here assume that the program in question is one that conforms to the standards of constitutionality which were deemed by the court inDeFunis,supra, to be applicable to such programs if they are to be upheld, and, from that starting point, proceed to pass upon your question from the standpoint, specifically, of the authority of the state superintendent of public instruction.

            RCW 28A.58.100, a part of the state education code, provides that:

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

            "(1) Employ for not more than one year, and for sufficient cause discharge all certificated and noncertificated employees, . . ."

            Under this statute there can be no doubt that a given school board may establish reasonable employment policies ‑ including such corrective or affirmative action policies as are constitutionally permissible under theDeFunis test as above explained and qualified.  The basic issue to be considered, however, is whether either the superintendent of public instruction or the state board of education has the authority under existing law to require those local districts throughout the state to do so ‑ as opposed to their individual formulation and implementation of such programs at the discretion of each school district acting through its own board of directors.

            As you know, both the superintendent of public instruction and the state board of education are state agencies and are, therefore, limited to the exercise of those powers granted by the state constitution or by the legislature.  That is, they may exercise only those powers expressly granted to them by these sources, those necessarily or fairly implied or incident to the powers thus granted, and those essential to the declared objects and purposes of  [[Orig. Op. Page 5]] such agencies.  State ex rel. Eastvold v. Maybury, 49 Wn.2d 533, 304 P.2d 663 (1956);State ex rel. Holcomb v. Armstrong, 39 Wn.2d 860, 239 P.2d 545 (1952).

            Under RCW 28A.58.101, every local school board is required to:

            "(1) Enforce the rules and regulations prescribed by the superintendent of public instruction and the state board of education for the government of schools, pupils, and certificated employees."

            Likewise, RCW 28A.58.110 provides that:

            "Every board of directors shall have power to make such bylaws for their own government, and the government of the common schools under their charge, as they deem expedient, not inconsistent with the provisions of this title,or rules and regulations of the superintendent of public instruction or the state board of education."  (Emphasis supplied.)

            Thus, presumably, any directive by either the state superintendent or state board of education would, in order to be effective, have to be in the form of a rule or regulation that would spell out the kinds of action to be required of all local districts in relation to their employment practices.  With this in mind, we have initially keyed our research in the preparation of this opinion to an examination of all existing statutes which currently contain express authority for either of these agencies to adopt and promulgate rules of one kind or another pertaining to the activities of local school districts; and, following through on this approach, we have requested and obtained from the state code reviser's office a computer search of all possible sources of such authority.

            Although both the state superintendent and the state board of education have on numerous occasions been granted rulemaking powers by the legislature, none of the statutes  [[Orig. Op. Page 6]] granting these powers relate to, or purport to provide for the regulation of, any of the employment or hiring practices of local school boards acting under RCW 28A.58.100, supra.  Instead, those involving the state superintendent, insofar as they empower him to adopt regulations governing such boards or their districts, cover such matters as the design and operation of school buses (RCW 46.61.380), the design of school buildings (RCW 28A.04.310), the operation of programs for handicapped children (RCW 28A.13.010), budgeting procedures (RCW 28A.65.180), libraries (RCW 28A.58.104), various funding programs (e.g., RCW 28A.34.020 regarding the funding of nursery schools) and a myriad of other matters not touching upon employment practices.  In the case of the state board, existing statutes authorize it to regulate with respect to the conduct of mandatory studies of the state and federal constitutions (RCW 28A.02.080), the establishment of secondary programs in nonhigh districts (RCW 28A.04.120(5)), the extension of substantive and procedural due process to pupils (RCW 28A.04.132), the designation of compulsory courses (RCW 28A.05.010), the operation of nursery schools (RCW 28A.34.020) and programs for superior students (RCW 28A.16.020), the processing of applications for school plant facilities financial aid (RCW 28A.47.060, et seq.) and the eligibility of prospective and current professional employees for certification (RCW 28A.70.005).  Certification is, of course, a condition to employment (RCW 28A.67.010), but is not controlling with respect to a school district's discretionary decision as to which certificated individuals it shall employ.

            Within this entire body of existing statutes authorizing the adoption of rules and regulations there is only one which, although not expressly referring to employment practices, could, conceivably, reach this topic.  RCW 28A.04.120(6), dealing with the state board of education, broadly authorizes it to

            ". . . prescribe such rules for the general government of the common schools, as shall seek to secure regularity of attendance, prevent truancy, secure efficiency, and promote the true interest of the common schools."

            We would, however, be most reluctant to place much weight on  [[Orig. Op. Page 7]] this provision insofar as the regulation of employment policies is concerned, except to the extent that the state board might legitimately find it necessary to require a particular practice in order to achieve one or more of the objectives stated therein.  While it might be possible,within a given school district, that an affirmative action program for the employment of teachers or other personnel would bear an appropriate relationship to one of these objectives, we doubt that this could properly be said without exception in the case of all such districts so as to afford authority for the kind of rule or regulation apparently visualized by your request.

            Thus, in summary at this juncture, we do not find in any existingstatutes which can be read as authorizing either the state superintendent or board of education to adopt rules or regulations to require all local school districts to formulate and implement such affirmative action programs as you have in mind.  There is, however, another possible source of authority to be explored; namely, Article III, § 22 of our stateconstitution which provides that:

            "The superintendent of public instruction shall have supervision over all matters pertaining to public schools, and shall perform such specific duties as may be prescribed by law. . . ."

            InState ex rel. Miller v. Board of Ed. of U. Sch. D. No. 398, Kan., 511 P.2d 705 (1973), the Kansas Supreme Court was concerned with a similar provision of that state's constitution which reads as follows:

            "The legislature shall provide for a state board of education which shall have general supervision of public schools, educational institutions and all the educational interests of the state, except educational functions delegated by law to the state board of regents.  The state board of education shall perform such other duties as may be provided by law."

            At issue was the authority of the state board of education,  [[Orig. Op. Page 8]] under this provision, to have promulgated a rule providing that:

            "'The boards of education of every unified school district and boards of control of every area vocational-technical school in Kansas shall adopt rules which:  (a) Govern the conduct of all persons employed by or attending such institutions, and (b) provide specific procedures for their enforcement . . ."

            In passing upon the validity of this rule the court first determined that the constitutional provision under which it was adopted was a self-executing grant of authority to the state board to "supervise" the public schools of Kansas, and then it turned to the meaning to be given to that verb.  Interestingly, it found the "case most helpful in getting to the problem" to be an early Washington case,Great Northern Ry. Co. v. Snohomish County, 48 Wash. 478, 93 Pac. 924 (1908), from which it quoted at length as follows:

            "What is meant bygeneral supervision?  Counsel for respondents contend that it means, to confer with, to advise, and that the board acts in an advisory capacity only.  We cannot believe that the legislature went through the idle formality of creating a board thus impotent.  Defining the term 'general supervision' in Vantongeren v. Heffernan, 5 Dak. 180, 38 N.W. 52, the court said:

            "'The secretary of the interior, and, under his direction, the commissioner of the general land office has a general "supervision over all public business relating to the public lands."  What is meant by "supervision?"  Webster says supervision means "To oversee for direction; to superintend; to inspect; as to supervise the press for correction."  And, used in its general and accepted meaning, the secretary has the power to oversee all the acts of the local officers for their direction; or as  [[Orig. Op. Page 9]] illustrated by Mr. Webster, he has the power to supervise their acts for the purpose of correcting the same; and the same power is exercised by the commissioner under the secretary of the interior.  It is clear, then, that a fair construction of the statute gives the secretary of the interior, and, under his direction, the commissioner of the general land office the power to review all the acts of the local officers, and to correct, or direct a correction of, any errors committed by them.  Any less power than this would make the "supervision" an idle act,‑-a mere overlooking without power of correction or suggestion.'

            "Defining the like term inState v. Fremont etc. R. Co., 22 Neb. 313, 35 N.W. 118, the court said:

            "'Webster defines the word "supervision" to be "The act of overseeing; inspection; superintendence."  The board therefore, is clothed with the power of overseeing, inspecting and superintending the railways within the state, for the purpose of carrying into effect the provisions of this act, and they are clothed with the power to prevent unjust discriminations against either persons or places.'

            "It seems to us that the term 'general supervision' is correctly defined in these cases.  Certainly a person or officer who can only advise or suggest to another has no general supervision over him, his acts or his conduct. . . ."

            Thereupon, the Kansas court upheld the validity of the state board rule with which it was concerned, as above quoted, saying:

            "Considering the frame of reference in which the term appears both in the constitution and the statutes, we believe  [[Orig. Op. Page 10]] 'supervision' means something more than to advise but something less than to control.  The board of regents has suchcontrol over institutions of higher learning as the legislature shall ordain, but not so the board of education over public schools; its authority is tosupervise.  While the line of demarcation lies somewhere between advice and control, we cannot draw the line with fine precision at this point; we merely conclude that the regulation which is the bone of contention between the state and district boards in this case falls within the supervisory power of the state board of education.

            "As forcefully pointed out in the brief ofamicus,the regulation makes no attempt to prescribe what the rules of conduct shall be or what procedures are to be adopted for enforcing compliance with the rules adopted.  As is stated in the brief, 'The content of such rules and regulations was left entirely to the discretion of the local board.'"  (Emphasis supplied.)

            We have underscored the final paragraph of this quotation because it signifies to us the crux of the matter.  It is one thing for a state agency vested with supervisory authority over local governmental bodies to required those bodies to engage in some general course of conduct ‑ there, the adoption by local school districts of their own regulations governing the conduct of their employees and students.  It is another for the supervising agency to prescribe the details of what those local regulations shall say.

            Applying this same approach to the subject of your present inquiry, it follows by analogy that the state superintendent of public instruction in our state ‑ being possessed by virtue of Article III, § 22, supra, with essentially the same power of supervision as is vested in the Kansas state board of education by that state's constitution ‑ may adopt a rule directing all local school boards in the state to  [[Orig. Op. Page 11]] adopt their own regulations with regard to the standards to be followed in employing teachers or other personnel.  But, solely in the exercise of his power to supervise, he cannot himself establish those standards.  Therefore, in summary, our answer to your first question is as follows:

            Neither the superintendent of public instruction nor the state board of education has the authority under any existing statute or constitutional provision to formulate and implement a state‑wide [[statewide]]affirmative or corrective action policy for disadvantaged groups such as women or racial minorities which would be binding on all local school districts in their employment of personnel.  Under the supervisory authority granted to him by Article III, § 22 of the state constitution, however, the state superintendent of public instruction may require local school districts, in connection with their employment of personnel, to formulate and implement their own individual affirmative or corrective action policies for such disadvantaged groups ‑ subject, as above explained, to such constitutional standards as may be applicable to those kinds of policies or programs.

            Question (2):

            The foregoing affirmative answer to so much of your first question as visualizes a requirement by the state superintendent for the adoption of individualized local affirmative action programs by all school districts ‑ as distinguished from a single state‑wide [[statewide]]affirmative action policy formulated and implemented by either the state board of education or state superintendent ‑ requires that we consider, next, the legal means that would be available to the state superintendent to enforce such a requirement.

            The basic legal remedy which would be available to the state superintendent3/ in the event of noncompliance by a local school district would be a mandamus action under the provisions of chapter 7.16 RCW.  In particular, RCW 7.16.160 provides that a writ of mandamus

             [[Orig. Op. Page 12]]

            ". . . may be issued by any court, except a justice's or a police court, to any inferior tribunal, corporation, board or person, to compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust or station, or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled, and from which he is unlawfully precluded by such inferior tribunal, corporation, board or person."

            A second possible enforcement mechanism which we have considered but largely rejected as being without sufficient existing statutory authority would be that of withholding some form of state financial support from the noncomplying school district.  The difficulty with this approach is that without a specific statutory authorization, any such withholding of funds from a school district entitled to their receipt under the applicable statute (e.g., RCW 28A.41.130, the general state apportionment law) would, in all probability, be successfully met by a mandamus actionby the district against the state superintendent.

            Thirdly, there is the always present but nonlegal remedy of public pressure.  Obviously, the state superintendent could bring such pressure to bear upon any noncomplying school district by simply publicizing the facts and, possibly, bringing the situation to the attention of the Washington state human rights commission for investigation by it to see if the noncomplying school district involved might, thereby, be committing unfair practices under the state law against discrimination, chapter 49.60 RCW.