Request By:
Honorable Edward L. Fossett
Office Head
Legal and Legislative Services
Department of Education
Capital Plaza Tower
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert L. Chenoweth, Assistant Attorney General
As the Office Head, Legal and Legislative Services, Department of Education, you have asked the Office of the Attorney General to consider several problems believed to exist regarding the procedures to be followed in implementing House Bill 156, 1978 General Assembly. House Bill 156, to be codified as KRS 158.178, reads in full as follows:
"(1) It shall be the duty of the superintendent of public instruction, provided sufficient funds are available as provided in subsection (3) of this Section, to ensure that a durable, permanent copy of the Ten Commandments shall be displayed on a wall in each public elementary and secondary school classroom in the Commonwealth. The copy shall be sixteen (16) inches wide by twenty (20) inches high.
(2) In small print below the last commandment shall appear a notation concerning the purpose of the display, as follows: 'The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States.'
(3) The copies required by this Act shall be purchased with funds made available through voluntary contributions made to the state treasurer for the purposes of this Act."
You stated that sponsors of this bill and others would like to have a fund-raising drive in which they not only raise the funds but contract and acquire copies of the Ten Commandments, approved by the Department of Education, which they would in turn provide to the Department of Education for distribution to the local school districts. Also, others would like an arrangement where a local group would raise their own funds and supply to their own school district copies of the Ten Commandments. You have asked this office to advise as to the legality of the two described arrangements.
As a matter of practice and procedure this office does not address issues which have not been specifically brought to its attention for its consideration. However, we do not feel a discussion can be made of various possible arrangements to follow a new statutory provision when a very fundamental issue is involved such as the constitutionality of this law. Therefore, we are going to take the liberty of first discussing the constitutionality of House Bill 156 (KRS 158.178).
Without going to great lengths to come through the myriad of case law on separation of church and state, entanglement theory, it is the conclusion of this office that KRS 158.178 is not unconstitutional under either Kentucky Constitution Section 5 or the First Amendment of our Federal Constitution. In support of our conclusion, we refer the interested reader to OAG 71-179, copy attached, wherein this office advised then Governor Louie B. Nunn that the acceptance by the Commonwealth for the possible erection on the Capitol Grounds of a monolith and base on which is inscribed the Ten Commandments would, as a replica of a recognized code of law or moral conduct, not appear to offend either the Kentucky or United States Constitution. The interested observer may see this monolith now situated between the Governor's Mansion and the new parking lot and garage. Additionally, we find support for our conclusion in the federal Tenth Circuit Court of Appeals case,
Anderson v. Salt Lake City Corp., 475 F.2d 29 (10th Cir. 1973). This case concluded that the maintenance on a public courthouse grounds of an illuminated granite monolith on which Ten Commandments were inscribed together with other symbols involved primarily secular rather than religious purposes and was not proscribed by the establishment clause of the First Amendment of our Federal Constitution. Lastly, in passing, we note that in
Lenston v. Commonwealth, Ky., 497 S.W.2d 561, 563 (1973), a criminal case, the appellate court found no prejudice to a defendant who claimed the trial judge failed to remove a framed copy of the Ten Commandments from the wall of the courtroom.
The effort to implement statutory directives and obligations is at times confusing and too frequently frustrating. A little of each may be involved in regard to House Bill 156. Nevertheless, the letter and the spirit of the law requires detailed compliance with this provision.
The arrangement regarding the distribution of the Ten Commandments is spelled out quite clearly in the statute. The Superintendent of Public Instruction is to cause to be placed in each public elementary and secondary school classroom a copy of the Ten Commandments that is durable, permanent and sixteen inches wide by twenty inches high, from funds voluntarily contributed to the state treasurer for that purpose.
In looking at some other arrangement we must question whether any violence is done to the one statutorily prescribed. The first arrangement suggested would follow part of the law and bypass other parts of it. We see no reasonable way of approving such a practice. If the Ten Commandments are going to be distributed to local school districts by the Department of Education, we believe the statute must be followed and monies go through the state treasurer's office.
On the other hand, the second arrangement, we believe, would be permissible. The principal basis for this conclusion is the assistance given by a consideration of KRS 160.580, which states as follows:
"All sums arising from any gift, grant or devise by any person wherein the intent is expressed that the same is to be used to aid in the education of children in any school district in this state shall be held and used for the purposes specified in the gift, grant or devise. The district board of education shall receive the gift, grant or devise for the benefit of the schools of its district and shall hold and use it as requested by the donor or devisor, provided that the purpose for which it is used shall be in harmony with the aims and general program of public education in this state."
If the ends of the Ten Commandments statute are satisfied through a gift or donation of copies of the Ten Commandments in form required by statute to a local school district, the local board of education would have the authority to accept such gift or donation and such schools who would receive the copies of the Ten Commandments in this manner could be eliminated by the Superintendent of Public Instruction from consideration by him for distribution, using funds going through the state treasurer's office since these school districts will have been placed in a position of already being in compliance with the spirit of the 1978 legislation.
While the above construction may seem like the "splitting of hairs," so be it. We believe the arrangement last discussed above gives more than enough latitude to those desiring to see this statute put into effect.