Perry v. School Dist. No. 81, Spokane

Citation344 P.2d 1036,54 Wn.2d 886
Decision Date08 October 1959
Docket NumberNo. 34866,34866
CourtWashington Supreme Court
PartiesWilliam PERRY, Bud Cox, Kenneth Roberts and Ray Parringer, Appellants, v. SCHOOL DISTRICT NO. 81, SPOKANE, Washington, Respondent, and Upper Columbia Mission Society of Seventh Day Adventists, Inc., a Washington corporation, and International Religious Liberty Association, Appellants.

Carl Maxey, Spokane, for appellants.

John J. Lally, Pros. Atty., Donald N. Olson, Spokane, for respondent.

Benjamin H. Kizer, Robert D. Dellwo and Kenneth E. Gemmill, Spokane, Sam L. Levinson, Melville Oseran, Howard P. Pruzan and Solie M. Ringold, Seattle, Bernard L. Swerland, Spokane, Leonard W. Schroeter, Donald S. Voorhees and Alfred J. Schweppe, Seattle, amici curiae.

HUNTER, Judge.

This appeal involves the constitutionality of the released-time program carried on in Spokane in school district No. 81.

The action was instituted by the plaintiffs, William Perry, Bud Cox, Kenneth Roberts and Ray Parringer. They, as taxpayers, sought to have the released-time program, being carried out in Spokane, declared unconstitutional. The Upper Columbia Mission Society of Seventh Day Adventists, Inc., and the International Religious Liberty Association were granted leave to file their complaint as plaintiffs in intervention.

No assignments of error have been made to the findings of fact and they therefore become the established facts of the case. Rule on Appeal 43, 34A Wash.2d 17, as amended, effective January 2, 1953; Hector v. Martin, 1958, 51 Wash.2d 707, 321 P.2d 555. The findings of fact show that, on September 28, 1938, the school board by resolution authorized the release of public school children for one hour per week for religious education upon the written request of their parents. Since that date a released-time program has been in effect within school district No. 81, and since its inception the program has been primarily administered by the Spokane council of churches representing the following denominations: American Baptist, Disciples of Christ, Congregational, Covenant, Lutheran, Methodist, Episcopal, Presbyterian, and United Presbyterian. There is nothing in the board's resolution limiting the program to any particular church or religious faith. In recent years one parish of the Catholic church has participated in the program. The expense of the program is borne by the religious groups involved. No money out of the common school fund or tax funds is contributed to or received directly or indirectly by those instructing the religious classes, nor for incidental costs of books and supplies needed or used. The class-rooms used for the religious instruction are located off the school grounds, usually in a nearby church. The procedural aspect of the released-time program is carried out in the following manner.

Early in the year, a representative from the religious group calls upon the principal of each individual school and provides a supply of cards upon which parents may indicate their desire to have their children attend the religious instruction. Depending upon the preference of the principal involved, the cards are distributed to the students either by the representative of the religious group or by the individual class-room instructors. In the distribution of these cards, the children are informed of the availability of the religious instruction and are requested to take the cards home to their parents. The Catholic parish involved distributes the request forms from the church, but there is no finding that they do not also distribute the cards in the public schools.

At the appointed hour for the religious instruction, those children whose parents have requested that their children receive the instruction, by signing and returning the request cards, are released from their regular classroom activities. They are met at the school by an escort provided by the religious group and are taken to the religious instruction classroom. At the end of the religious instruction, the children are returned to their public school classroom by the escort from the religious group.

The religious instruction period corresponds to a school period. In most instances this is from forty-five minutes to one hour, but not in excess of one hour. These religious instruction classes are held once a week, in some instances during all of the school term and in others during only a portion of the term. The children whose parents have not requested their release remain in the classroom where their public school activities continue. In most instances, where there are but few children remaining, the regular group instruction ceases, but the remaining children are kept occupied with special projects, additional individual help, or some other school activity, depending upon the discretion of the classroom teacher. The program is being carried out only in the elementary grades; all students are free to participate or not as their parents desire or request.

The school district, its directors, employees, and agents exercise no control or supervision over the instructors or the material used in any of the religious instruction classes, nor over the scope of the instruction. No report is made by any instructor of the released-time program to the teacher or employee of the district with respect to whether or not a child who was released to participate in the program had actually attended the class. No record is kept by the district or its employees as to actual attendance at the religious instruction classes. The responsibility for attendance at such classes is left with the person who escorts the children for the particular religious group. The children receive no school credit for participation in the released-time program. The function of the defendant school district is to facilitate the distribution of the request cards and thereafter note which children are to be released.

The facts in the trial court were determined by the pleadings and depositions, and by requests for certain admissions of fact served on the defendant, pursuant to Rule of Pleading, Practice, and Procedure 36, 34A Wash.2d 99, effective January 2, 1951. The plaintiffs thereupon made a motion for summary judgment pursuant to Rule of Pleading, Practice, and Procedure 19, 34A Wash.2d 29, as amended, effective November 1, 1955. Both parties consented that the constitutionality of the released-time program should be determined in this manner. The trial court thereupon entered summary judgment holding that the released-time program was constitutional. The plaintiffs have appealed.

By their assignments of error, the appellants contend the released-time program maintained by the respondent school district is in contravention of the following provisions of the United States constitution, our state constitution, and certain statutory provisions of the state of Washington:

United States constitution, amendment I: '* * * Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; * * *.'

United States constitution, amendment XIV, § 1: '* * * No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.'

Washington constitution, Art. I, § 11 (as amended by amendment 4): 'Religious Freedom. Absolute freedom of conscience in all matters of religious sentiment, belief, and worship, shall be guaranteed to every individual, and no one shall be molested or disturbed in person, or property, on account of religion; * * *. 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. * * *' (Italics ours.)

Washington constitution, Art. IX, § 4: 'Sectarian Control Or Influence Prohibited. All schools maintained or supported wholly or in part by the public funds shall be forever free from sectarian control or influence.'

RCW 28.02.040: '* * * All schools maintained or supported wholly or in part by the public funds shall be forever free from sectarian control or influence.'

RCW 28.27.010: 'All parents, * * * shall cause such child to attend the public school of the district in which the child resides for the full time when the school is in session or to attend a private school for the same time.

'The superintendent of the schools of the district in which the child resides, or the county superintendent if there is no district superintendent, may excuse a child from such attendance if the child is physically or mentally unable to attend school, * * * or for any other sufficient reason. * * *'

The released-time program in public schools is not a new question in other jurisdictions, but it is a question that has not been passed upon in this state. This court, however, has consistently strictly construed our state's constitutional prohibition against the use of public funds for any religious purpose, and has likewise so construed the constitutional mandate that our schools supported by public funds shall be free from sectarian control or influence. See State ex rel. Dearle v. Frazier, 1918, 102 Wash. 369, 173 P. 35, L.R.A.1918F, 1056; State ex rel. Clithero v. Showalter, 1930, 159 Wash. 519, 293 P. 1000; Mitchell v. Consolidated School Dist. No. 201, 1943, 17 Wash.2d 61, 135 P.2d 79, 146 A.L.R. 612; Visser v. Nooksack Valley School Dist. No. 506, 1949, 33 Wash.2d 699, 207 P.2d 198.

The precise question raised in the instant case was before the United States supreme court in People of State of Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649; and Zorach v. Clauson, 343 U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954. In the former, the...

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12 cases
  • Society of Separationists, Inc. v. Whitehead, 920233
    • United States
    • Supreme Court of Utah
    • December 10, 1993
    ...436 P.2d 189, 193 (1967) (en banc) (interpreting meaning to be given "religious instruction"); Perry v. School Dist., 54 Wash.2d 886, 344 P.2d 1036, 1039 (1959) (en banc) (examining both article I, section 11, and article 9, section 4); Visser v. Nooksack Valley Sch. Dist., 33 Wash.2d 699, ......
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    • United States State Supreme Court of Washington
    • June 13, 2002
    ...conferred a great benefit on the religious establishment. As this court stated in Perry v. School District No. 81, 54 Wash.2d 886, 897, 344 P.2d 1036 (1959), "[i]t was never the intention that our constitution should be construed in any manner indicating any hostility toward A further conce......
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    • April 20, 1989
    ...that court has considered an identical issue under the federal establishment clause. Thus, in Perry v. School Dist. 81, 54 Wash.2d 886, 344 P.2d 1036 (1959), this court followed the approach of the United States Supreme Court in holding that a "release time" program allowing students in the......
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