*1 886
tion of the Pierce court in all county juvenile respects affirmed. J., Ott, JJ., C. concur.
Weaver, Mallery, Hunter, 14, December 1959. Petition denied. rehearing 34866. En Banc. October
[No. 1959.] Perry et al., William District Appellants, v. School No. Spokane Upper County, Respondent, Columbia Day Society Mission Adventists, of Seventh al., et Inc., Appellants.1 (2d) 1 Reported in P. 1036. *2 Maxey, appellants.
Carl Lally respondent. Donald N. Olson,
John J. Benjamin D. Kenneth Kizer, Dellwo, H. Robert E. Gem- mill, Levinson, Oseran, L. Melville Howard Pruzan, Sam P. Ringold, Schwéppe, M. Bernard J. Swerland, Solie Alfred Schroeter, and Voorhees, Leonard W. Donald S. amici curiae. appeal constitutionality J. This involves the
Hunter, program Spokane carried on district No. 81. plaintiffs, Perry, The action instituted William was Parringer. Ray They, Bud Kenneth Roberts and as Cox, sought program, taxpayers, to have the released-time be- ing Spokane, out in The carried declared unconstitutional. Society Upper Day Mission Seventh Columbia Ad- Religious Liberty ventists, Inc., International As- granted complaint leave file their sociation were as plaintiffs in intervention. assignments of error
No have been made to the they findings therefore of fact and become the established Appeal (2d) 17, Rule on 34A. Wn. facts of case. January 2, 1953; amended, Martin, effective Hector v. 51 888 (2d) (2d) (1958). findings
Wn. P. fact by- September 28, show 1938, the school board that, resolution authorized the release of school children per religious upon for one hour week for education request parents. written of their date a Since that released- program time in effect has. been within district No. inception program primarily 81, and since its has been Spokane repre- administered council of churches n senting following Baptist, denominations: American Disciples Congregational, Lutheran, Christ, Covenant, Presbyterian, Episcopal, Presbyter- Methodist, United nothing limiting ian. is. There the board’s resolution particular church or faith. years parish par- In recent one of the Catholic church has ticipated program. expense -in the groups money borne No out involved. the common school fund or tax funds is contributed to or *3 directly indirectly by instructing or received those the re- ligious supplies classes, or for incidental costs of books and religious used. The needed or classrooms used for the in- grounds, usually struction- are located off the school ain nearby procedural aspect The church. the reléased-time following carried out in the is manner. year, representative
Early religious the from the upon principal group the calls each individual school provides supply upon parents may and of cards their their desire to have children indicate attend the re- upon ligious Depending preference instruction. the of the principal involved, the are cards distributed to the stu- by representative religious group the of the dents either or the individual classroom instructors. In the distri- cards, children bution of the are these informed of the religious availability requested of the instruction and are parents. parish home to their The to take the cards Catholic request the forms from church, the involved distributes they finding that no do not also there is but distribute the schools. the cards in religious appointed hour At instruction, those requested parents have that their whose children children returning by signing re- instruction, receive the regular quest cards, are from their classroom released They pro- an activities. are met escort at school religious religious group are taken to the vided religious instruction instruc- classroom. At the end of tion, class- the children are returned to their school religious group. room the from escort religious period corresponds ato instruction forty-five minutes period. In from most instances this is hour. These hour, to one but not excess one week, in instances are once a some instruction classes held during during only a all of the school term and others portion parents not have of the term. children whose requested their their release remain in the classroom where instances, where activities continue. In most remaining, regular group few are children there' but kept remaining are ceases, instruction but the children help, special projects, occupied with additional individual activity, upon depending the discre- or some other school being car- tion of classroom teacher. The grades; only elementary ried all are out students request. participate parents free desire or or agents employees, district, directors, The school supervision exercise control or over instructors in.any classes, used material of the scope report nor is made over the of the instruction. No by any program instructor of the released-time respect employee to whether teacher district with participate who was not a child released to gram actually kept had attended class. No record *4 by employees at the district or as to actual attendance responsibility for instruction classes: The person es- attendance at such classes is left with the who religious group. particular the children for the corts participation receive children no credit program. The function of the defendant released-time request district is facilitate distribution of the to and thereafter note which children are to be cards released. by facts the trial court were determined
pleadings depositions, requests and and for certain ad- pursuant defendant, missions of fact served on to Rule Pleading, (2d) Practice, 36, 34A and Procedure Wn. January plaintiffs thereupon 99, effective 2,1951. The made summary judgment pursuant a motion for Rule of Plead- to ing, (2d) Practice, 19, and 34A Procedure Wn. parties amended, effective November 1955. Both con- constitutionality sented that the of the released-time gram should be determined this manner. The trial court thereupon summary judgment holding entered plaintiffs was constitutional.- The appealed. have
By assignments appellants error, contend respondent the released-time maintained following provisions school district is contravention of the constitution, of the United States our constitution, state provisions statutory Washington: certain of the state of “ constitution, United States amendment I: . . . Con- gress respecting shall make no law an establishment of re- ligion, prohibiting or free thereof; exercise ...” § United constitution, States XIV, amendment 1: “ any . . . abridge No state shall make or enforce law which privileges shall immunities or of citizens of the any deprive any person States; United life, nor shall liberty, process property, law; or without due nor deny any person jurisdiction equal pro- within its tection of the laws.”
Washington (as § constitution, I,Art. amended 4): amendment Absolute freedom “Religious Freedom. conscience in sentiment, all belief matters guaranteed worship, every shall individual, be person property one shall on molested or or disturbed religion; money prop- . account No or erty any religious appropriated applied shall be support worship, instruction, or the exercise re- (Italics ligious ours.) establishment. ...” Washington § constitution, IX, Art. 4: “Sectarian Con- All maintained or trol Prohibited. Influence wholly supported part or in funds shall be free from control forever sectarian or influence.”
891 sup- or “. . . All maintained RCW 28.02.040: schools wholly part public ported funds shall be for- in or from or influence.” ever free sectarian control parents, “All . shall cause such RCW 28.27.010: in which child to attend the child or to school of district in session for the full time when the school is resides time. for same attend superintendent in “The the district schools county superintendent if there is resides, or the the child no district
superintendent, may such child from excuse a physically mentally unable if the attendance child any reason. other sufficient school, attend ... 5J
The released-time
question
jurisdictions,
question
it is a
new
other
but
passed upon in
court,
not been
this state. This
has
consistently strictly
con
our
has
construed
state’s
however,
against
prohibition
the use of
funds
stitutional
any religious purpose,
and has likewise so construed
supported by pub
constitutional mandate that our schools
from
control
influence.
lic
be free
sectarian
funds shall
173
Frazier,
369,
ex rel. Dearle v.
102
Pac.
See State
Wash.
(1918);
Showalter,
rel.
35, 8 A. R. 685
State ex
Clithero v.
L.
(1930);
Consoli
519,
Pac. 1000
Mitchell v.
159 Wash.
293
(2d)
(2d)
201,
79,
135
61,
dated
No.
17
P.
School Dist.
Wn.
(1943);
Valley
A.
v. Nooksack
School
146 L. R. 612
Visser
(2d)
(2d)
(1949).
699, 207 P.
198
506,
Dist.
33
No.
Wn.
question
precise
be
raised
instant case was
supreme
ex rel. Mc
fore
United States
court
State
203,
649,
333
92 L. Ed.
Education,
Collum v. Board
U. S.
(2d)
Clauson,
1338;
Zorach v.
461,
68 S.
A. L. R.
Ct.
former,
In the
954,
343 U.
96 L. Ed.
In case, the McCollum the local board educa- Champaign, participated tion- Illinois, in a released-time (1) religious training place wherein took in school buildings (2) property; place and on school in- for designated by (3) pupils authorities; struction was school taking religious segregated by instruction were au- school according (4) super- faiths; thorities school to officials approved religious (5) pupils teachers; vised and were buildings (6) religious instruction; for solicited school registration cards were distributed school and printed by. one school. case program practiced
In York the released-time in New (Zorach supra), Clauson, v. none the above factors (1) present; supervision approval was was there no religious pupils teachers solicitation of and no distribu- (2) religious required cards; tion instruction was (3) buildings grounds; to held the school outside any permitted kind was in the announcement any program, neither comment was schools relative by any principal or teacher the attendance allowed on any religious pupil released for instruc- non-attendance excusing pupil All besides was tion. that- the did pur- any keep other not record, to which was availabe pose, advan- were taken in order to see that excuses being tage deceived, the same school was not of and that the respect procedure to absence school would follow Douglas, Justice O. other reason. William supra, compares majority opinion case, the Zorach programs under the Zorach and McCollum supra, cases, as follows: City permits York “New has day during release the school students so buildings they may grounds leave the school go centers for or de- A
votional exercises. student is released written re- stay quest parents. churches his Those not released in the class- weekly reports schools, make rooms. sending a have been released from list children who *7 reported religious public for in- but who have not school struction. religious expendi- program involves neither ‘released time’ “This public in school classrooms nor the including application All costs, ture funds. religious paid by organizations. The case blanks, are Education, unlike Board therefore McCollum v. program time’ from S. involved a ‘released U. which In turned over to that case the classrooms were Illinois. accordingly religious that the We held instructors. (by gram which reason violated the First Amendment Amendment) prohibits from states the Fourteenth establishing religion prohibiting free exercise.” arguments appellants case, Zorach of the supra, from those in essence do not differ are similar and Quoting appellants the instant case. advanced case, court from the Zorach said: further “ argument, elaborately Their various . . . stated weight ways, influence of the reduces itself to this: the religious put instruction; behind a school is for keeping police it, tab on students teachers come halt released; the activities to a who are while the tion are classroom religious instruc- students who are released on leave; crutch religious training; leaning support in their are churches cooperation time’ this ‘released without program, like the one in the case, McCollum be would futile and ineffective. ...” quote extensively reasoning
We from the Zorach supra, applicability case, in view of its here: “ problem . our reduces itself to whether New system prohibited York of this has either the ‘free exercise’ religion ‘respecting or has made a law an establishment religion’ meaning within the of the First Amendment. reasoning inject any “It takes obtuse issue of the religion present ‘free exercise’ of into the No one case. go religious religious is forced to classroom and no brought exercise or instruction is to the classrooms of the religious schools. A student need not take instruc- tion. He is left to his own desires as to the manner or time religious any. of his devotions, if suggestion system “There is a that the involves the use get public of coercion to school students class- into rooms. There is no evidence the record before us that supports present that conclusion. The record indeed tells regard us that the school authorities are neutral this parents and do no more than release students whose so request. If in fact coercion if used, were it were estab- using lished that to or more one teachers were office persuade or force students take the instruc- wholly presented. tion, a different case would Hence we put respects aside that claim of coercion both as the ‘free religion religion’ exercise’ and ‘an establishment of within meaning of the First Amendment. apart “Moreover, from claim of coercion, dowe type see how New York time’ this ‘released respecting religion has made law an establishment meaning within First Amendment. There is *8 separation much talk of of in the Church and State the history Rights clustering of Bill in the of and the decisions around the First Amendment. Everson v. Board Edu See of supra. cation, 1; Education, 330 U. S. McCollum v. Board slightest There that Amend cannot be the doubt the First philosophy Church and ment reflects the that State should separated. be And far as interference with the ‘free so religion religion exercise’ of and an ‘establishment’ are complete unequivo separation be concerned, the must scope The the of its cal. First Amendment within cover prohibition age exception; permits The the is absolute. say every in Amendment, does however, First separation respects a of Church and all State. there shall be specific studiously manner, Rather, the it defines the ways, or union de- there no concert shall be pendency That the common sense one on the other. religion be aliens would Otherwise the the matter. unfriendly. suspicious, and even hostile, to each other — required property pay even taxes. not be to Churches could police Municipalities permitted render be to would not helped groups. protection Policemen who fire parishioners to worship places would violate the into legislative Prayers appeals halls; the in our Constitution. Almighty messages Executive; Chief making Day holiday; help proclamations Thanksgiving a ‘so ref- me all other God’ in our courtroom oaths—these and through Almighty laws, our our erences public Amendment. that run flouting rituals, our ceremonies would be First agnostic A could even fastidious atheist object opens supplication which the each with Court Honorable session: save the United States and this ‘God Court.’ concept separation press would “We have to present
Church and State to these extremes to condemn grounds. law constitutional The nullification of this law profound A Catholic student wide and effects. would have applies during permission to his teacher for to leave Day Obligation Holy hours on to attend a mass. a permission A for Jewish student his teacher to after- asks Kippur. excused for Yom A Protestant wants family ceremony. baptismal In each case noon off for a requires writing. parental each teacher consent In. to make the student not a teacher, case the order sure goes requires report priest, from the truant, further and in other words rabbi, or the minister. teacher to making religious program cooperates the extent of participate possible it it. Whether for her students to regularly occasionally students, she does it a few designed pursuant systematized one, or to a does not further the needs of all the students alter of the act. the character (6 “ separation . The constitutional standard is many problem problems in like
of Church and State. degree. v. Board one of McCollum law, is See constitutonal supra, p. 231. Education, re- were used for “In the McCollum case classrooms
ligious public the force of the school was promote said, used to the schedules to that as we have Here, instruction. schools do more than accommodate their program of a outside instruction. We expand follow the to cover McCollum case. But we cannot it present separation the released time unless Church can make and State means that institutions adjustments no ligious the re- their schedules to accommodate people. of the the Bill needs We cannot read into Rights philosophy hostility religion.” such a n reasoning supra, re- case, the Zorach is sound and reasoning passed flects the the state courts which have question, upon except the Illinois same that of the state of degree supra. case, a limited It an- McCollum appellants swers the contentions of in instant case to the violation as of the States constitutional United by program practiced Spokane, visions in respondent in authorized so far as the facts of the applicable. Zorach case are here significant difference the facts of the Zorach case and the instant case can be at once observed and practice permitted respondent making distribution of and the cards announcements representatives religious groups in or school structors relative to the in the classrooms or on premises. practice among present This was those in McCollum case, and which was absent the Zorach supported Moreover, case. this a use of school facilities by public promotion religious program, funds of § which contravenes I, Art. 11 of our state constitution. supra; ex State rel. Dearle Frazier, v. ex State rel. Clithero supra; v. Mitchell Showalter, Consolidated v. School Dist. supra; Valley No. Visser v. Nooksack School Dist. No. supra. practice influencing This the further has effect pupils, “captive classrooms, while assembled as a participate program, contrary audience” provisions express § IX, of Art. 4 of our con stitution: supported wholly
"... All maintained from sec- part free be forever funds shall ours.) (Italics tarian control *10 influence.” pro appellants the released-time contend
The disrupts gram respondent the instruc permitted the remaining classrooms, tion of the children equal-protection clause a of the detriment, and is violation constitution. United States the state constitution supported the con record. To the This contention is not assigned trary, remaining are in school the children advantage special projects individual of receive the periods. during the released-time compulsory appellants the further contend The being by the released- school attendance laws are violated disagree. superintendent program. time of We statutory pupils from discretion to excuse is vested with operation recited in the the for reasons the enactment “any The release statute other sufficient reason.” request upon parent’s re of children from school the statutory ligious instruction, constitutes an of this exercise authority.
Our constitution like the United state that of States and every language Union, used, indicates deep men framers were beliefs and convic- religion recognizing profound tions, a reverence for and its well-being affairs essential to the influence in all human community. supra Education, v. Board See Gordon (concurring opinion). Our Preamble reads as follows: Washington, grateful people of the State “We, Supreme liberties, Ruler the Universe for our do or- (Italics ours.) dain constitution.” this
It the intention that our constitution should was never indicating any hostility manner toward construed safeguards religion. Instead, and limitations were for rights. preservation of No limitations of the con- those respondent are stitution contravened district permitting prac- if schools, in manner not inconsistent with the ticed constitutional opinion. as outlined this limitations 898 following practice
We hold the in the released-time gram, permitted by respondent, to be in contravention (as amended) §I, § of Art. IX, and Art. of the state constitution, i.e., schools, the distribution of cards in making explanations or the of announcements or for the purpose obtaining parents’ for their consent children’s participation program, by representa- in the released-time religious groups tives of the schools. instructors judgment subject trial court is affirmed ato remand the cause for modification consistent with this opinion. It so ordered.
All Concur. (concurring) signed forego- Weaver, C. J. have —I *11 ing opinion. point out, however, § 4, IX, I wish to that Art. Washington provides constitution, All “Sectarian Control Influence Prohibited. wholly supported part by schools maintained or or in public funds shall be from forever free sectarian control or influence.”, proscriptive provisions
is more than other constitutional opinion. discussed
That isit so is the of deliberate action result con- appears journal stitutional convention 1899. from It Washington Convention, 1889, State Constitutional p. original (unpublished; inis the officeof the Secre- tary State), Moore, Z. that J. a member of the convention lawyer Spokane, from moved to strike the “or words influence” from the section. The motion lost to 11. rehearing 16, 1959. Petition for
December denied.