USE OF COMMUNITY COLLEGE FACILITIES IN CONNECTION WITH POLITICAL CAMPAIGNS

INITIATIVE NO. 276 ‑- COMMUNITY COLLEGES ‑- USE OF COMMUNITY COLLEGE FACILITIES IN CONNECTION WITH POLITICAL CAMPAIGNS

Lawfulness of the expenditure of funds or use of facilities by a community college for the purpose of conducting a campaign for the support of or opposition to a political campaign or issue; legal status of certain political science course in practical politics as offered by North Seattle Community College; use by students of work product of such course; constitutional ability of the legislature to regulate or prohibit the conduct of a given course of study by a community college.

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                                                                     July 7, 1976

Honorable William M. Polk
State Representative, 41st District
7220 92nd S.E.
Mercer Island, Washington 98040                                                                                                               Cite as:  AGLO 1976 No. 43

Dear Sir:

            By letter previously acknowledged you requested our opinion on several questions pertaining to the legality of a certain course of study in political science which, over the past several years, has been offered at North Seattle Community College.  The essence of this course, as described in the 1975-76 college catalogue which accompanied your letter, is as follows:

            "POL 216

            "Campaign Politics (5)

            "Examination of the strategies, tactics, and techniques of effective political action as practiced in political campaigns.  Features extensive use of knowledgeable specialists from political campaigns, commercial agencies and interest groups.  Provides students with a working knowledge of effective practical politics by providing an opportunity for students to plan and execute a simulated campaign.  (No prerequisites)."

            In addition, you provided us with a copy of the course instructor's introductory assignment sheet for POL 216 which further describes the actual conduct of the course as follows:

            "APPROACH TO COURSE:  This course will integrate lectures on political behavior and political parties with presentations by experts on specific strategies and tactics (nuts n' bolts) of campaigning.  These presentations will prepare you for your participation in planning, organizingand theoretically executing a simulated campaign.

            "Each student will self-select or be assigned to a simulated campaign steering committee.  The steering committee will  [[Orig. Op. Page 2]] select their candidate (from a choice of 5 profiles)and simulate the total campaign of their candidate in a real legislative district.

            "ASSIGNMENTS:  Journal of Simulation Committee.  It is the responsibility of each campaign committee to fully record the progress of their campaign.  This journal will begin with the selection of the candidate, the development of same, and continue a detailed account of all subsequent activities; e.g., allocation of respective roles and responsibilities, strategy, budget master plan, etc.

            "The journal will maintain a dual dating system that reflects the real date in the quarter and the approximate date that described campaign activity would take place on a campaign schedule.  All journal entries that involve adjustments or reversals of previous committee decisions should be noted along with the date of the previous decision that is altered.

            "Comprehensive Campaign Report.  Each campaign committee is jointly responsible for submitting a comprehensive report on the campaign which they have planned, organized, and executed (theoretically) during the quarters; e.g., a detailed master plan and execution of the assigned campaign.  This report should include, for example, a description of the candidate, his political assets and liabilities, etc.; campaign research projects, manner of execution and findings; campaign master plan (strategy and tactics), budget, etc.; overview of organization and projects (doorbelling operation, fund raising events, etc.).  The appendices might include such items as a list of newspapers and press deadlines, instructions to doorbelling volunteers, etc."  (Emphasis supplied.)

            From our examination of various additional materials which you also supplied us along with your request for our opinion, we may readily confirm that the foregoing represents an accurate description of POL 216, as specifically offered at North Seattle Community College during its 1976 winter quarter.  It is our understanding, however, that the course is not scheduled to be repeated until some time during the 1976-77 academic year at the community college.

             [[Orig. Op. Page 3]]

            Your several questions regarding the above described community college program are as follows:

            "(1) Is it lawful for the facilities of a public institution, namely a community college, to be used in any way either for or against a political candidate or issue?

            "(2) Is the political science course described in this letter a lawful activity for a public institution of higher education, namely a community college?

            "(3) Would it be lawful for anyone to take a campaign plan developed in a political science class at a community college and implement such a plan in an actual situation?

            "(4) Would it be lawful for a student to take a political science course, such as described herein, fully intending to implement the plan, and then actually implement it in an actual situation?

            "(5) If either situation described in questions 3 or 4 above were to exist, would a political science course described in this letter be a lawful activity for a public institution of higher education, namely a community college?

            "(6) Is there any constitutional prohibition against the legislature determining that any of the activities described in the preceding questions is contrary to good public policy and shall therefore be unlawful?"

            We answer questions (2) through (5) in the affirmative and questions (1) and (6) in the manner set forth in our analysis.

                                                                     ANALYSIS

            Unquestionably, North Seattle Community College is a public institution and its governing board of trustees a state agency.  Centralia College Ed. Ass'n v. Board of Trustees, 82 Wn.2d 128, 508 P.2d 1357 (1973).  From this premise we turn, directly, to your questions.

            Question (1):

            With the passage of Substitute House Bill No. 1329 by the 1975-76 special session of the state legislature, the governing law with respect to your first question is now contained in RCW 42.17.130.  This statute, which originated  [[Orig. Op. Page 4]] as a part of Initiative No. 276 in 1972, formerly applied only to public offices headed by elected officials.  Now, as recently amended, it applies to other public agencies also ‑ as will be seen from the following quotation of the statute, as amended, in bill form for ease of comprehension:

            "(1) No elective official nor any employee of his office nor any person appointed to or employed by any public office or agency may use or authorize the use of any of the facilities of ((his))a public office or agency, directly or indirectly, for the purpose of assisting ((his))a campaign for ((reelection to the office he holds, or for election to any other office, or for)) election of any ((other)) person to any office or for the promotion of or opposition to any ballot proposition.  Facilities of public officeor agency include, but are not limited to, use of stationery, postage, machines, and equipment, use of employees of the officeor agency during working hours, vehicles, office space, publications of the officeor agency, and clientele lists of persons served by the officeor agency:  PROVIDED, Thatthe foregoing provisions of this section shall not apply to those activities ((performed by the official or his office)) which are part of the normal and regular conduct of the office or agency."1/

             This is not to say, however, that a nonelective body such as the board of trustees of Community College District No. 6 (of which North Seattle Community College is a part) was previously free to allow its facilities to be used for political purposes without any limitation for, as we have explained on several previous occasions, RCW 42.17.130 is basically a codification of preexisting common-law principles2/ forbidding or restricting the use of public funds for certain purposes, which were recognized in this state long before the passage of Initiative No. 276 in 1972.  See, AGO 1975 No. 23 [[to Arthur C. Braun, State Representative on November 14, 1975]], copy enclosed, at p. 3.  Likewise, as we there also indicated, the proviso to that statute must also be characterized as a codification of preexisting common-law principles insofar as it exempts from the statutory prohibition those activities which are a part of the ". . . regular conduct of the office."

             [[Orig. Op. Page 5]]

            In terms of your opening question we have found no statute which, either expressly or by necessary implication, empowers the board of trustees or other officers or employees of a community college to use its facilities for the purpose of directly promoting or opposing the candidacy of any person for elective office or any ballot proposition.  Thus, in view of the fundamental principle that if a power has not been granted, either expressly or impliedly, to a public agency its existence must be denied,3/ it must be concluded that a community college is barred, both by common-law principles and (now) by RCW 42.17.130, supra, from expending its funds or using its facilities for that purpose.

            Furthermore, even if it could be said that, as a broad general proposition, a community college has the requisite statutory authority to do whatever its board of trustees believes will enhance a particular part of the college's curriculum we would still have to express strong doubt that the board of trustees could be considered to have been "authorized" by the legislature to engage in the kind of activity to which your first question generally refers.  All statutes must be construed, if possible, in such a manner as to sustain their constitutionality rather than to render them open to grave doubt in that respect.  Soundview Pulp Co. v. Taylor, 21 Wn.2d 261, 150 P.2d 839 (1944).  In this case, a construction of the statutes relating to community colleges which would permit a board of trustees to sanction the use of college facilities for the purpose of directly promoting or opposing the candidacy of a selected person or persons for elective office would render those statutes of dubious constitutionality under the provisions of Article VII, § 1 (Amendment 14) of our state constitution which, in material part, requires that all public funds be spent for public purposes only.  See, State ex rel. Collier v. Yelle, 9 Wn.2d 317, 115 P.2d 373 (1941).

            In short, we doubt very much that expenditures by a community college, made on a selective basis4/ directly in support of or in opposition to a person's candidacy for elected public office, would be for a "public" purpose.  This being so, we fail to see how such a direct expenditure could be  [[Orig. Op. Page 6]] justified merely by labeling it as "in aid of an overall educational purpose."  Authorities on the subject in analogous cases generally agree that ". . . it is the essential character of thedirect object of the expenditure which must determine its validity, . . ." (emphasis supplied), as opposed to some indirect and ultimate public purpose.  See, e.g., 63 Am.Jur.2d, Public Funds, §§ 59-60.  Moreover, this rationale appears to be applicable whether or not there is some other specific constitutional prohibition against the primary expenditure ‑ such as that appearing in Article VIII, § 5 of our constitution with respect to gifts or loans of public credit or funds to private individuals.

            In summary, therefore, it is our opinion (in response to your first question) that if the board of trustees or other officers or employees of a community college district were to expend its funds or use the facilities of a community college for the purpose of conducting a campaign in support of or opposition to a political candidate or issue such action, being totally unauthorized by statute, would violate both RCW 42.17.130, supra, as amended, and the common-law principles upon which that statute is based.  Furthermore, except to the extent authorized by law, the officers or employees of a community college may not authorize the use of its facilities for such purposes.

            Question (2):

            This answer to your first question, however, does not necessarily mean that the particular program here in question, POL 216, is, in its actual operation, violative of RCW 42.17.130 or any other statute or constitutional provision.

            At the outset we note that nothing in the factual description of POL 216 tells us that the course, as conducted, will necessarily involve an actual campaign for or against any "live" candidate for elective public office.  Instead, it is our understanding that the "campaign" envisioned by the course is merely "simulated."  Further, the only contact between students taking the course and members of the public is in the form of information gathering (such as poll taking) for use in such simulated campaign which, in turn, is conducted wholly within the confines of the class itself.  Assuming, for the purposes of your second question, that this is so it follows, in terms of the general criteria referred to in our answer to your first question, that the direct  [[Orig. Op. Page 7]] and primary object of the course may be classified as "educational."  Conversely, any effect upon the campaign of a given "live" candidate for public office would be indirect and incidental.

            Nevertheless, because of this possible indirect effect which the activity in question might have upon an actual candidacy we must still consider the possible applicability of RCW 42.17.130, supra, to the program.  Based upon the foregoing assumptions, however, the issue at this point is essentially one to be analyzed in the terms of the proviso thereto.  In other words, if a course in political science such as POL 216, as above dsscribed, is an activity which constitutes a part of the "normal and regular" conduct of the agency here involved ‑ North Seattle Community College ‑ then it will fall within the coverage of the proviso to RCW 42.17.130 (or analogous pre1976 common-law principles) and thus not be subject to the prohibition contained in the main part of the statute (or, in the case of past conduct, the common law which it codifies) even though a significant use of public facilities is present.  But in order to meet this test the activity must first be one which is "lawful" (your word).  And, in the case of a state agency, this denotes not only the absence of any legal (constitutional or statutory) prohibition but, as well, that the activity is actually permitted by law ‑ either expressly or by necessary implication.  As we said in AGO 1973 No. 26 [[to Alan Bluechel, State Representative on December 26, 1973]], copy enclosed:

            "A determination of what is 'normal and regular conduct' of an office necessitates a review of the statutes pertaining to that office.  The question is principally one of statutory construction, because public officers have only those powers which are granted to them by statute.  State ex rel. Eastvold v. Maybury, 49 Wn.2d 533, 304 P.2d 663 (1956); Pacific Etc. Ass'n v. Pierce County, 27 Wn.2d 347, 178 P.2d 351 (1947).  Conversely, for illustration, any conduct of a public officer which is not thus authorized by law cannot be considered 'normal and regular'; rather, its characterization is that of ultravires."

            Accord, AGO 1975 No. 23, supra, another previous opinion dealing with the meaning of the phrase "normal and regular" as used in RCW 42.17.130.  In addition, as will be seen from the following excerpts from pp. 5-9 of the latter opinion, the activity in question must also fall within the "usual" conduct of the agency:

             [[Orig. Op. Page 8]]

            "The phrase '. . . normal and regular conduct . . .' is not defined anywhere in the law or in any other related provision.  Therefore, we must resort to general and basic considerations, including principles of statutory construction, to determine the meaning of that phrase.

            "The only object of statutory construction is to determine the legislative body's intention, and first resort must be made to the language and content of the statutory provision involved.  Graffell v. Honeysuckle, 30 Wn.2d 390, 191 P.2d 858 (1948).  To the extent, however, that such language is ambiguous or unclear, it must be construed in a manner consistent with the apparent intention of the legislative body.  Cory v. Nethery, 19 Wn.2d 326, 142 P.2d 488 (1943).  Furthermore, it must be interpreted in such a manner as to avoid, if possible, absurd results.  State v. Lake City Bowlers' Club, Inc., 26 Wn.2d 292, 173 P.2d 783 (1946).  And finally, the legislative body must be presumed to have enacted a statute with full knowledge of existing law on the subject.  See,State v. Thornbury, 190 Wash. 549, 69 P.2d 815 (1937); Graffell v. Honeysuckle,supra.

            "Consistent with these principles it would appear to us that any definition of 'normal and regular,' when referring to the 'conduct' of an 'office' in this state, must initially include an element of lawfulness.  In other words, the phrase can encompass only those activities which are actually permitted by law ‑ either expressly or by necessary implication. . . .

            "A further principle of construction to be here considered is that usage and custom may become a basis for determining the scope of an officer's powers or duties where the statutes are unclear on the subject ‑ simply because long-established custom or usage may be evidence of actual legislative intent.  See, 63 Am.Jur.2d, Public Officers & Employees, §§ 264-265.  As is further stated in this text, however,

            "'. . . usage or custom cannot be availed of to enlarge the statutory powers of a public officer to include acts otherwise unauthorized or contrary to established law, or to enable the officer to perform his duties in a manner other than that prescribed by statute.'

            "Finally, in determining whether an elected official  [[Orig. Op. Page 9]] is or is not in compliance with RCW 42.17.130,supra, one cannot safely rely solely upon a determination of whether a particular act may be legal in a technical sense.  The phrase 'normal and regular' in the proviso thereto must be taken to denote some qualification of conductover and above that of being merely lawful; otherwise, presumably, the proviso would have used that term.  Every word and phrase of a statute must be given its full meaning, where possible, and no word or choice of wording should be regarded as insignificant.  Murray v. Dept. of Labor & Industries, 151 Wash. 95, 275 Pac. 66 (1929).  Consequently, to give full effect to the proviso, the phrase must be construed to mean such activities as are not only lawful, but also to at least some extent, within the 'usual' conduct of the office in question.  Thus, an action by an elected official for a purpose prohibited by RCW 42.17.130 will not necessarily be saved by the proviso merely because the governing body of the agency ultimately ratified the expenditure ‑ or even gave the official in question special authority, in advance, to expend funds for the purpose in question.  In practical effect what this means is that the proviso must be strictly construed as provisos usually are.  Tabb v. Funk, 170 Wash. 545, 17 P.2d 18 (1932).  Generally, therefore, expenditures made in extraordinary cases, or authorized in some extraordinary manner or by some extraordinary process of reasoning, cannot be held to be 'normal and regular conduct' of an office under the proviso with which we are here concerned."

            Bearing in mind this analysis of RCW 42.17.130, and of its qualifying proviso, we may now turn to the precise question at hand; i.e., the legality of the operation by a community college of a course such as POL 216 under (1) the statute's provisions (insofar as future conduct is concerned) and (2) the similarly qualified common-law prohibition which it generally codifies (in the case of past conduct).  Since the statute is basically a codification of the common law (AGO 1975 No. 23,supra) there would appear to be no reason for us to apply any significantly different standards in advising you as to the legality of that course as taught in the past than are now to be applied, under RCW 42.17.130, if a similar course in political science is offered again in the future.  In each case the basic questions are:

            (a) Is the conduct of such a course prohibited by any law other than, qualifiedly, by the main clause of RCW 42.17.130 or its common-law counterpart?

             [[Orig. Op. Page 10]]

            (b) If not, is such a course lawful in the sense that it is, or has been, actually authorized or permitted by or pursuant to law ‑ either expressly or by necessary implication?

            (c) Does it constitute a normal or usual use of the public facilities of the agency involved ‑ as opposed to an extraordinary (even though lawful) activity?

            We may quickly answer the first of these three questions in the negative.  Simply stated, we have in our research discovered no other law which, on its face or by implication, would bar a community college from offering a course such as POL 216 as above described.  If, then, the remaining two questions are, conversely, answered in the affirmative your ultimate inquiry may likewise be so answered ‑ for under the above outlined terms of RCW 42.17.130, the course involved will henceforth be exempt from the prohibition of that statute by reason of the proviso thereto.  Similarly, because of the absence of any other potential statutory prohibition, such affirmative answers to questions (b) and (c) would also support a conclusion that POL 216, as offered in the past (prior to the 1976 legislature's action extending the provisions of RCW 42.17.130 to cover public agencies not headed by elected officials), was also a lawful activity.

            The basic authority for establishing community college courses and curriculum lies with the local board of trustees of each community college district.  See, RCW 28B.50.140(11), which reads as follows:

            "Each community college board of trustees:

            ". . .

            "(11) Shall prescribe, with the assistance of the faculty, the course of study in the various departments of the community college or colleges under its control, and notwithstanding any other provision of law, publish such catalogues and bulletins as may become necessary;"

            The state board for community college education also has authority in this area, pursuant to RCW 28B.50.090(7)(c), which provides that the state board shall have the authority to:

            "(7) Establish minimum standards to govern the operation of the community colleges with respect to:

            ". . .

            "(c) the content of the curriculums and other  [[Orig. Op. Page 11]] educational and training programs, and the requirements, degrees and diplomas awarded by the colleges,

            ". . ."

            This authority, however, has not yet been exercised with respect to academic, as opposed to vocational, courses.  In other words, while the state board has adopted policies (but not as APA regulations) pursuant to RCW 28B.50.090(7)(c) which set forth minimum standards, those policies relate only to vocational preparatory programs and vocational supplementary programs.  Thus, for now, the "lawfulness" of an academic course such as POL 216 is initially dependent simply upon whether or not it has been prescribed as a part of the curriculum through the procedures permitted by the board of trustees of the community college at which it is offered ‑ as provided for by RCW 28B.50.140(11),supra.  If it has, and its conduct is not barred by some other law, the first requisite of "normality and regularity" under RCW 42.17.130 will be met.

            Typically, we are informed that a proposal to add a new course to the curriculum at a facility operated by Community College District No. 6 (Seattle) is initiated at the individual college campus level.  It must then be endorsed by the academic department or division in which it will be offered and receive the endorsement of the chief instructional officer (dean of instruction) of the particular institution.  But since the state board has established no minimum standards for academic courses, each district is free, by its own means or procedures, to construct a given academic program or course of study much as it wishes to do so.

            In the case of POL 216 at the North Seattle Community College we have been provided with documentation, in connection with our processing of your opinion request, showing that these procedures were in fact followed in the initial establishment of that course in 1971, although the original course title was "Politics of Persuasion."  As thus formulated and approved the course was offered at the college during the fall quarter of 1971 and winter and spring quarters of 1972.  Then, in 1973, also in accordance with the above described procedures, the title was changed to "Campaign Politics" with a format basically as described at the beginning of this opinion.  In this manner the course was first conducted during winter quarter of 1973, and then again during each ensuing winter quarter only, from 1974 through 1976.

            As far as the use of "live" incumbent officeholders is  [[Orig. Op. Page 12]] concerned, we are advised that simulated campaigns were developed involving races against such incumbents in the case of four of the seven quarters during which the course has thus far been offered.  Specifically, during fall quarter, 1971, a simulated campaign was instituted against then United States Congressman Thomas Pelly; during spring quarter, 1972, such campaigns were developed against State Representatives Jeff Douthwaite and James McDermott; in the winter of 1975 the "live" incumbent involved was State Representative George Hurley; and, most recently, during winter quarter, 1976, it was State Representative Kenneth Eikenberry.  Conversely, as conducted during the winter quarters of 1972, 1973 and 1974, the course assumed the existence of an "open seat," with no incumbent seeking reelection to the offices involved; i.e., King County Executive (1972), 44th District State Senator (1973) and 43rd District State Representative (1974).  We are advised that the decision to use "live" incumbent officeholders or to assume the existence of an "open seat" is solely that of the students in the class not that of the instructor.  We are also advised that the instructor does not permit that decision to be made by the students until nearly two weeks of classes have elapsed and that such decision is generally made during the third or fourth week of classes.

            What all of this means, in our judgment, may be summarized as follows:

            Because this political science course has been prescribed as a part of the curriculum at North Seattle Community College through the procedures permitted by the board of trustees of Community College District No. 6 in accordance with the authority granted to it by the legislature under RCW 28B.50.140(11), and because, further, the course has, over the nearly five years during which it has been offered, become an accepted part of the political science program at that community college, its conduct by the college in the manner above outlined must now be regarded as "normal and regular" within the meaning of RCW 42.17.130,supra, and thus not barred by that statute if similarly conducted in the future.  Moreoever, by reason of the foregoing factors ‑ together with the absence of any statutory or constitutional prohibition ‑ the conduct of POL 216 in the past may also be characterized as "lawful" (again, your word) in the terms of your second question.

            Questions (3) ‑ (5):

            Having thus answered your second question in the affirmative we turn to the next three questions appearing in your opinion request, here repeated for ease of reference as follows:

             [[Orig. Op. Page 13]]

            "(3) Would it be lawful for anyone to take a campaign plan developed in a political science class at a community college and implement such a plan in an actual situation?

            "(4) Would it be lawful for a student to take a political science course, such as described herein, fully intending to implement the plan, and then actually implement it in an actual situation?

            "(5) If either situation described in questions 3 or 4 above were to exist, would a political science course described in this letter be a lawful activity for a public institution of higher education, namely a community college?"

            In view of our conclusion that such a course as POL 216, if established and conducted in the manner above described, is permissible in the absence of any law to the contrary we think that each of these questions must also be answered in the affirmative.  It would likewise be lawful, in our opinion, for a student or other person legally in possession of the "work product" of such a class to make use of it, later, in "an actual situation"; and this would be so, absent a statute or regulation to the contrary even though the student might have enrolled in the course in the first place with that specific purpose or objective in mind.  Any campaign plan developed by the students in a class, unless otherwise specified, would not be the property of the institution but, rather, the property of the respective students which they may utilize or dispose of at their discretion.  Finally, we do not believe that such action by a student or other person would affect the basic lawfulness of the course itself under the reasoning employed in our answer to your second question.

            Question (6):

            Lastly you have asked:

            "Is there any constitutional prohibition against the legislature determining that any of the activities described in the preceding questions is contrary to good public policy and shall therefore be unlawful?"

            Except as it may be restricted by some specific provision of our state of federal constitution, the legislature  [[Orig. Op. Page 14]] has plenary power over the operation of public educational institutions in this state ‑ both at the local, school district, level and in the case of our state universities, colleges and community colleges.  Accord, AGLO 1974 No. 12 [[to Edward G. Ellis, State Representative on January 29, 1974]], copy enclosed.  Such institutions have only those powers that have been granted to them by the legislature, either expressly or by necessary implication.  State ex rel. Holcomb v. Armstrong, 39 Wn.2d 860, 239 P.2d 545 (1952);Seattle High School Chapter No. 200 v. Sharples, 159 Wash. 424, 293 Pac. 994 (1930); Juntila v. Everett School District No. 24, 178 Wash. 637, 35 P.2d 78 (1934); see, also, 15 Am.Jur.2d, Colleges and Universities, § 7, and cases cited therein.  Conversely, neither a local school district nor a state college or university may lawfully engage in any activity which the legislature has prohibited it from doing ‑ assuming the constitutional validity of the legislative act.

            A clear example of an unconstitutional attempt by the legislature to regulate public school curricula would be a statute purporting to authorize or require the advocacy of sectarian religious doctrine in a publicly funded educational institution.  See,State ex rel. Dearle v. Frazier, 102 Wash. 369, 173 Pac. 35 (1918); but compare,Calvary Bible Presb. v. Bd. of Regents, 72 Wn.2d 912, 436 P.2d 189 (1967), in which our court upheld a course entitled "The Bible as Literature" at the University of Washington.  Likewise, within this same general area of constitutionally protected religious freedom, a statute, for example, purporting to prohibit the teaching of evolution in the public schools would also quite clearly be unconstitutional.  See,Epperson v. Arkansas, 393 U.S. 97, 21 L. ed. 2d [[L.Ed.2d]]228, 89 S.Ct. 266 (1968).  Such laws, however, would be invalid because of specific constitutional restraints upon governmental action (i.e., Amendment I to the United States Constitution along with Article I, § 11 and Article IX, § 4 of the constitution of our own state) and not by reason of the mere fact of their abstract impact upon the conduct or content of given academic courses or programs.

            It is true that in recent years the concept of "academic freedom," which is generally said to have originated within the universities of 19th century Germany,5/ has begun to receive significant constitutional status in our own country.  For example, in declaring New York's teacher loyalty laws and regulations unconstitutional the United States Supreme Court, in Keyishian v. Board of Regents of New York, 385 U.S. 589, 17 L. ed. 2d [[L.Ed.2d]]629, 87 S.Ct. 675 (1967), evidenced a strong commitment to that concept in the following language:

             [[Orig. Op. Page 15]]

            "Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned.  That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. 'The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.'  Shelton v. Tucker, supra, 364 U.S. at 487, 5 L ed 2d [[L.Ed.2d]]at 236.  The classroom is peculiarly the 'marketplace of ideas.'  The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth 'out of a multitude of tongues, [rather] than through any kind of authoritative selection.'  United States v. Associated Press, 52 F.Supp. 362, 372.  In Sweezy v. New Hampshire, 354 U.S. 234, 250, 1 L ed 2d [[L.Ed.2d]]1311, 1324, 77 S.Ct. 1203, we said:

            "'The essentiality of freedom in the community of American universities is almost self-evident.  No one should underestimate the vital role in a democracy that is played by those who guide and train our youth.  To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation.  No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made.  Particularly is that true in the social sciences, where few, if any, principles are accepted as absolutes.  Scholarship cannot flourish in an atmosphere of suspicion and distrust.  Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.'"

            This case and others are digested and discussed in Developments in the Law ‑ Academic Freedom, 81 Harv.L.Rev. 1045 (1968), which represents perhaps the most comprehensive treatment of this subject from a legal standpoint that has so far been published.  However, a reading of this article reveals that while academic freedom has thus been successfully invoked in cases such as Keyishian,supra, to protect teachers at both the college or university and lower school levels from governmental interference with theirextramural  [[Orig. Op. Page 16]] activities ‑ involving both association and speech ‑ this doctrine, by and of itself,6/ has not yet been applied to legislative or other governmental controls uponintramural conduct, including the context of particular course programs or the like.  As observed on pp. 1051-2:

            "Although the principles of freedom to teach and freedom to learn were central to the nineteenth-century German concept of academic freedom, they have been tempered in American educational thought by a recognition of the power of the institution and, in certain contexts, the state, over curriculum.  Furthermore, the interests of teachers and students in freedom from restraints on classroom speech have received virtually no legal recognition.  In the very few cases dealing with the subject, the courts have almost unanimously upheld the power of the educational institution or state to regulate curriculum and classroom speech.  The very paucity of litigation suggests that restraints on classroom speech rarely occasion an injury thought either appropriate or sufficiently severe for the invocation of the judicial process.  If the concept of academic freedom has any legal meaning in this context, it denotes the freedom of educational institutions from judicial interference with academic decisions."

            This, then, is the general legal framework within which the constitutionality of a law such as appears to be contemplated by your final question would be determined.  Of course, there may well be various forms which such a law could take and we would, obviously, be in no position to advise you as to the constitutionality of any particular proposal except on the basis of your submission to us of a specific bill.  If and when such a bill is prepared, however, we would be happy to review it for that purpose if desired.

             [[Orig. Op. Page 17]]

            We trust that the foregoing will be of some assistance to you.

Very truly yours,