STATE AID

SCHOOLS ‑- DISTRICTS ‑- PRIVATE AND PUBLIC ‑- STUDENTS ‑-STATE AID

The proposed constitutional amendment in Engrossed House Joint Resolution No. 19, relating to state aid to students attending public and private schools, does not contain any authorization which would be in violation of Amendment 1 to the United States Constitution.

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                                                                   March 5, 1975

Honorable King Lysen
State Representative, 31st District
Legislative Building
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1975 No. 22

Dear Sir:

            By recent letter you have directed our attention to Engrossed House Joint Resolution No. 19, a proposal to add a new section to the Washington constitution reading as follows:

            "Section 1.  To the extent permitted by the Constitution of the United States, and notwithstanding any other provision of the Constitution of the state of Washington to the contrary, the legislature may provide assistance for students of public and private schools, and for students of public and private institutions for post secondary or higher education, for the purpose of advancing their education, regardless of the creed or religious affiliation of the students, or the creed or religious affiliation, influence, or nature of the educational entity which they attend."

            With respect to this proposal you have made the following inquiry:

            ". . .  I would like to know specifically if there is anything in EHJR 19 which in any way can be construed to be in violation of the United States Constitution, the first amendment."

            We answer this question in the negative for the reasons set forth below.

             [[Orig. Op. Page 2]]                       ANALYSIS

            Amendment 1 to the United States Constitution, to which you have referred, provides that:

            "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

            Although expressed only in terms of a restraint against acts by the Congress, this provision, under numerous decisions of the United States Supreme Court, has been held to be also applicable to state action by virtue of the due process clause of Amendment 14 to the United States Constitution.  See, e.g.,Whitney v. California, 274 U.S. 357 (1927).  As evidenced by such cases as Visser v. Nooksack Valley Sch. Dist. No. 506, et al., 33 Wn.2d 699, 207 P.2d 198 (1949), however, this federal constitutional provision is not as restrictive with respect to such state action touching upon aid to sectarian private schools or the like as are certain sections of our own state constitution; namely, Article I, § 11 (Amendment 34) and Article IX, § 4.  Accord,Weiss v. Bruno, 82 Wn.2d 199, 509 P.2d 973 (1973), and cases cited therein.

            The apparent thrust of EHJR No. 19, supra, is to modify our state constitution to the extent of allowing state financial assistance to students attending both public and private schools in this state, ". . . regardless of the creed or religious affiliation of the students, or the creed or religious affiliation, influence, or nature of the educational entity which they attend" but only to the extent that such action is permitted by the federal constitution ‑ and particulary, Amendment 1,supra ‑ as that constitutional provision has been interpreted.  See, e.g.,Lemon v. Kurtzman, 403 U.S. 602 (1971);Walz v. Tax Commission, 397 U.S. 664 (1970); and Board of Education v. Allen, 392 U.S. 236 (1968).  This, of course, is all that could be done by an amendment to the state constitution in any event ‑ even if the state amendment did not expressly so provide.  But in this case, in order to make the point abundantly clear to all who might have occasion to read it, the framers of EHJR No. 19 have expressly stated that intent.  See, the opening phrase of EHJR No. 19,supra, which contains the qualifying words "To the extent permitted by the Constitution of the United States, . . ."  Therefore, we fail to see how, in the words of your  [[Orig. Op. Page 3]] inquiry, anything in this proposed state constitutional amendment ". . . in any way can be construed to be in violation of the United States Constitution, the first amendment."

            It is hoped that the foregoing will be of some assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General