Washington

AMENDMENT LANGUAGE

State Constitutional Provisions

Wash. Const. art. IX, § 4: "All schools maintained or supported wholly or in part by the public funds shall be forever free from sectarian control."

Wash. Const. art. I, § 11: "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…."

Wash. Const. art. XXVI, § 4: "Fourth: Provision shall be made for the establishment and maintenance of systems of public schools free from sectarian control, which shall be open to all the children of said state."

Federal Enabling Act

Act of Feb. 22, 1889, 25 Stat. 676, ch. 180, § 4 (1889), requiring "the establishment and maintenance of systems of public schools, which shall be open to all the children of said States, and free from sectarian control."

IMPLEMENTING STATUTES AND REGULATIONS

Statutes

RCW § 71A.22.060: "A day training center and a group training home under this chapter shall be a nonsectarian training center and a nonsectarian group training home."

RCW § 28A.150.305(1)(f): "The board of directors of school districts may contract with alternative educational service providers for eligible students. Alternative educational service providers that the school district may contract with include, but are not limited to…other public or private organizations, excluding sectarian or religious organizations."

RCW § 28C.04.410(3): "… Any education institution receiving a jobs skills grant … shall be free of sectarian control or influence as set forth in Article IX, section 4 of the state Constitution."

RCW § 28B.80.255(3)(c), (4)(d): "The academic grant may not be used for any courses that include any religious worship or exercise, or apply to any degree in religious, seminarian, or theological academic studies."

RCW § 28B.10.040: "All institutions of higher education supported wholly or in part by state funds, and by whatsoever name so designated, shall be forever free from religious or sectarian control or influence."

RCW § 28B.10.814: "No state aid shall be awarded to any student pursuing a degree in theology." This statute was recently ruled unconstitutional by Davey v. Locke, 299 F.3d 748 (9th Cir. 2002).

RCW § 28B.101.040: "The participant shall not be eligible for a grant [from the Educational Opportunity Grant Program] if it will be used for any programs that include religious worship, exercise, or instruction or to pursue a degree in theology."

RELEVANT CASES

State Courts

State ex rel. Gawley v. Grimm, 48 P.3d 274 (Wash. 2002) (Colleges, universities, and other institutions of higher education are not "schools," within meaning of State Constitution, overruling Weiss v. Bruno and State Higher Education Assistance Authority v. Graham. The program which provided grants to "placebound" two-year community college students who could not travel to a State institution to finish their junior and senior years of college did not violate the Establishment Clauses of the federal and State Constitutions).

Malyon v. Pierce County, 131 Wn.2d 779, 935 P.2d 1272 (Wash. 1997) (Ultimate utilization of money or property is necessary but insufficient part of test for violation of religious freedom provision of State Constitution; religious purpose is key).

Witters v. Comm'n for the Blind, 112 Wn.2d 363, 771 P.2d 1119 (Wash. 1989) (Wash Art. 1, § 11, prohibiting applying public monies to any religious instruction prohibited granting state financial assistance to visually handicapped student to enable him to attend private Bible college with goal of becoming pastor, missionary, or church youth director).

Washington Higher Educ. Facilities Authority v. Gardner, 103 Wn.2d 838, 699 P.2d 1240 (Wash. 1985) (Authorization of bonds under Washington Higher Education Facilities Authority Act to benefit universities with ties to religious institutions did not violate State Constitution provisions that no public money shall be applied to support of any religious establishment, all schools shall be free from sectarian control and that the credit of the state shall not be loaned to any association or corporation).

Washington Health Care Facilities Authority v. Spellman, 633 P.2d 866 (Wash. 1981) (Act that provided tax-exempt capital financing for nonprofit healthcare facilities, including religiously affiliated hospitals, was challenged on the ground that it violated constitutional provisions concerning the relationship between church and state. The court held that since no authority expenses could be paid with state funds, the hospitals were not even aided indirectly by public money. Repayments of the bonds did not pass through the public treasury. Although the bonds were enabled by a public body, the money was not acquired either for or from the general public).

State Higher Educ. Assistance Auth. v. Graham, 84 Wn.2d 813, 529 P.2d 1051 (Wash. 1974) (The use of public funds to purchase loans made to students at sectarian schools as authorized under RCWA ch. 28B.17 [repealed], while indirect and incidental, was an unconstitutional attempt to circumvent the provisions of Wash. Art. 9, §4, which forbids any use of public funds in support of sectarian schools), overruled by Gallwey v. Grimm, 146 Wn.2d 445, 48 P.3d 274 (2002).

Weiss v. Bruno, 82 Wn.2d 199, 509 P.2d 973 (Wash. 1973) (Law which provides public funds to supplement tuition payments of resident students at nonpublic colleges and universities throughout the state, and the administrative plan adopted to implement the statute, are violative of the provisions of Wash. Art. 9, § 4 requiring that any schools maintained or supported by any public funds be free from sectarian control or influence), overruled by Gallwey v. Grimm, 146 Wn.2d 445, 48 P.3d 274 (2002).

Calvary Bible Presbyterian Church v. Bd. of Regents, 72 Wn.2d 912, 436 P.2d 139 (Wash. 1967) (Prohibition against expending public money for religious instruction in Wash. Art. 1, § 11, is confined to that category of instruction that resembles worship and manifests devotion to religion and religious principles in thought, feeling, belief and conduct, i.e., instruction that is devotional in nature and designed to induce faith and belief in student).

Perry v. Sch. Dist. No. 81, 54 Wn.2d 886, 344 P.2d 1036 (Wash. 1959) (Use of public school facilities for promotion of religious program is in violation of Wash 1, § 11 by the distribution of cards in schools on which parents of public school children could indicate their desire to have their children attend religious education instruction held in locations off school grounds during released time and by making of announcements regarding this program in classrooms or on school premises by representatives of religious groups or school instructors).

Visser v. Nooksack Valley Sch. Dist. No. 506, 33 Wn.2d 699, 207 P.2d 198 (Wash. 1949) (Since transportation of pupils to and from school constituted support of religious schools, in so far as RRS § 4719-1 (formerly RCWA 28.24.060) purported to compel school district to furnish transportation to pupils of sectarian school, it was violative of this provision).

Mitchell v. Consol. Sch. Dist. 201, 17 Wn.2d 61, 135 P.2d 79 (Wash. 1943) (Former statute providing that pupils attending private schools should have same privileges as to transportation as were provided for by school boards for pupils attending public schools was violative of provision of this section that no public money shall be applied to any religious worship or instruction, or support of any religious establishment).

State v. Showalter, 159 Wash. 519, 293 P. 1000 (Wash. 1930) (Bible instruction in public schools is prohibited).

State ex rel. Dearle v. Frazier, 102 Wash. 369, 173 P. 35 (Wash. 1918) (Resolution of board of education providing for high school credits for Bible study after successful passing of examination covering historical, biographical, narrative, and literary features of Bible is invalid).

Lichtman v. Shannon, 90 Wash. 186, 155 P. 783 (Wash. 1916) (Whether a system of education provided by the legislature was not uniform and discriminated in favor of students attending another state college was a matter committed solely to the discretion of the legislative body).

Federal Courts

Locke v. Davey, 540 U.S. 712 (2004) (Court upheld decision based on Washington State Constitution to rescind state college scholarship because student chose to study religion. "The amici contend that Washington's Constitution was born of religious bigotry because it contains a so-called 'Blaine Amendment,' which has been linked with anti-Catholicism. . . . [H]owever, the provision in question is not a Blaine Amendment. . . . Accordingly, the Blaine Amendment's history is simply not before us.").

Garnett v. Renton Sch. Dist. No. 403, 987 F.2d 641 (9th Cir. 1993) (Mandatory provisions of Equal Access Act [20 U.S.C.A. § 4071 et seq.], seeking to provide constitutional means for public schools to allow religious as well as secular groups to use school premises, so long as there was no school sponsorship of religious group initiated by students, could not be applied in Washington state to permit religious organizations to meet on school premises owing to Wash. Art. 9, § 4 and Art. 1, § 11, requiring stricter separation of church and state than Federal Constitution).

Witters v. Dept. of Servs. for the Blind, 474 U.S. 481 (1986). (A Christian student suffering from a progressive visual condition was eligible for state vocational rehabilitation assistance to blind persons. However, the student was studying to become a pastor, missionary, or youth director. He was denied on the ground that his training constituted religious instruction for which the state constitution prohibited the use of public funds. The Court held that the extension of aid under the statute to finance the student's training at a Christian college would not advance religion in a manner inconsistent with the First Amendment's Establishment Clause).

SECONDARY MATERIALS

State Attorney General Opinions

1998 Op. Atty. Gen. No. 8. (Appropriating state funds for background checks for certain employees of private schools, would not operate to support or facilitate sectarian instruction or other sectarian activity, except in the most incidental, attenuated way. Thus, such a bill as written would not be inconsistent with art. I, sec. 11 or art. IX, sec. 4 of the State Constitution.)

1997 Op. Atty. Gen. No. 4. (It would not violate Wash 1, § 11 to include religiously-affiliated schools and colleges in the K-20 Educational Network, provided that there is consideration in the form of monetary payment and services, and provided that the Network in not operated in such a way as to violate the constitution.)

1995 Op. Atty. Gen. No. 8. (It would violate the state and federal constitutions to place students at state-funded colleges and universities and student teachers in "pervasively religious" elementary or secondary schools, as defined in case law; whether a particular school is "pervasively religious" must be analyzed on a case-by-case basis.)

1995 Op. Atty. Gen. No. 3. (1. The State Constitution does not prohibit schools from adopting a "limited open forum" policy for student organizations making use of school districts' facilities so long as it is clear that the school district maintains a neutral position on religious matters. 2. A school district may recognize student groups engaged in religious activity and grant such groups access to school time and space on the same basis offered to other student organizations, so long as the district grants equal access to all points of view and neither endorses nor opposes the activities of any particular group).

1978 Op. Atty. Gen. No. 10. (School district may lease surplus facilities to private schools, profit or nonprofit organizations, or other governmental agencies, provided competitive bidding is utilized, sufficient rent is paid, and provided that religious- related activities of licensee are sufficiently remote from remaining public school operations.)

1971 Op. Atty. Gen. No. 49. (Legislation providing state funds, directly to needy students whether in the form of loans or cash awards, to use for educational expenses at any institution in Washington accredited by the Northwest College Association, whether state or private, and including private sectarian institutions, would be constitutional.)

1963-64 Op. Atty. Gen. No. 130. (Power to permit students of private or parochial school to attend district schools on part-time basis.)

1957-58 Op. Atty. Gen. No. 226. (Authority to use state funds for needy students in colleges, including sectarian institutions.)

1945-46 Op. Atty. Gen. p. 365. (Authority of city and county to appropriate public funds to sectarian school for purpose of improving playground of school, where playground after such improvement is made available to public generally as well as to members of parish to which school belongs.)

1937-38 Op. Atty. Gen. p. 391 (Transportation of children attending parochial schools).

1937-38 Op. Atty. Gen. p. 591.

State Legislative History

Journal of the Washington State Constitutional Convention, 1889 (Beverly Paulik Rosenow ed. 1962).

Books and Articles

Katie Hosford, The Search for a Distinct Religious-Liberty Jurisprudence Under the Washington State Constitution, 75 WASH. L. REV. 643 (2000).

L.K. Beale, Charter Schools, Common Schools, and the Washington State Constitution, 72 WASH. L. REV. 535 (1997).

Kristine Kuenzli, Free Speech Versus the Establishment Clause: Funding of Religious Publication by State University, 32 GONZ. L. REV. 85 (1996/97).

Robert F. Utter & Edward J. Larson, Church and State on the Frontier: The History of the Establishment Clauses in the Washington State Constitution, 15 HASTINGS CONST. L.Q. 451 (1988).

Frank J. Conklin & James M. Vache, The Establishment Clause and the Free Exercise Clause of the Washington Constitution - A Proposal to the Supreme Court, 8 U. PUGET SOUND L. REV. 411 (1985).

Betty Parkany, "Religious Instruction" in the Washington Constitution (1965).

State aid to private sectarian education, 9 GONZ. L. REV. 791 - not available online (only volume 18 on)

9 GONZ. L. REV. 272 - not available online

Aid to private education, 16 GONZ. L. REV. 171 (1980).

REPEAL EFFORTS

See the Heritage Foundation website for a list of state contacts.