Request By:
Honorable Edward L. Fossett
Attorney
Department of Education
Capital Plaza Tower
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear
In your capacity as attorney for the Department of Education and Superintendent of Public Instruction Raymond Barber, you have asked the Office of the Attorney General to reconsider OAG 78-605 which dealt with KRS 158.178 and the posting of copies of the Ten Commandments on the walls of each public common school classroom in the Commonwealth. It was the conclusion of the Office of the Attorney General in OAG 78-605 that KRS 158.178 was constitutional and further that various arrangements existed by which local public school districts could implement the provisions of the 1978 legislation codified as KRS 158.178. However, as you know the United States Supreme Court, in a per curiam Opinion dated November 17, 1980, has concluded that KRS 158.178 is unconstitutional under the
First Amendment Establishment Clause of the United States Constitution. Stone v. Graham, U.S., 101 S. Ct. 192 (1980). This opinion reversed the Kentucky Supreme Court's decision in
Stone v. Graham, Ky., 599 S.W.2d 157 (1980).
After receiving your request for an opinion, the decision was made for you to present a "Petition for Rehearing for Purpose of Clarification" to the United States Supreme Court in the Stone case. For purposes of that Petition it was accepted that the United States Supreme Court had determined KRS 158.178 was unconstitutional because the statute was found to have no "secular legislative purpose. "
The question presented to the United States Supreme Court in the Petition was "whether it is unconstitutional in and of itself for copies of the Ten Commandments to be permanently hung in the public school classrooms. " Petition, at page 3. On January 12, 1981, the United States Supreme Court denied the Petition.
The question presented to the United States Supreme Court in the Petition is precisely the question you had requested this office to consider in an advisory opinion before the Petition was filed. This office held in abeyance the rendering of any advisory opinion while the Petition was being presented to the United States Supreme Court and until final action by the Court was taken on the Petition. Now that the Supreme Court has declined to further comment on the question presented in the Petition, it is proper for this office to address this question.
It is the advisory opinion of this office that the United States Supreme Court in Stone v. Graham has concluded that the permanent posting of copies of the Ten Commandments in the public common schools in Kentucky is an unconstitutional practice under the First and Fourteenth Amendment of the United States Constitution. We further believe that the United States Supreme Court by its decision is requiring the removal of the copies of the Ten Commandments presently hanging on the walls of our Kentucky public common schools.
The conclusion reached above comes only after repeated readings and review of the United States Supreme Court decision in
Stone v. Graham, supra, as well as the case references made in that per curiam Opinion of the Court and other pertinent resources. A careful analysis of the Court's holding in Stone v. Graham is in order.
It must be noted that the Court in Stone was particularly concerned with the aspect of the "posting" of the Ten Commandments. The Court considered the Establishment Clause issue presented in the case and concluded, stating:
"We conclude that Kentucky's statute requiring the posting of the Ten Commandments in public schoolrooms had no secular legislative purpose, and is therefore unconstitutional." 101 S. Ct. at page 193.
The United States Supreme Court did not end its discussion of the "posting" element after it concluded KRS 158.178 to be unconstitutional. The key language of the decision that followed, upon which we substantially have based this present advisory opinion, is found at 101 S. Ct. at page 194. The Court stated as follows:
"The pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature."
The Court then pointed out that while the Bible and the Ten Commandments could be used in "an appropriate study of history, civilization, ethics, comparative religion, or the like," citing School District of Abington Township v. Schempp, such is not the case with the posting of the Ten Commandments. The Court stated:
"Posting of religious texts on the wall serves no such education function. If the posted copies are to have any effect at all, it will be to induce the school children to read, meditate upon, perhaps to venerate and obey, the Commandments. However desirable this might be as a matter of private devotion, it is not a permissible state objective under the Establishment Clause." Id.
The Court also stated it made no difference that the posted copies of the Ten Commandments are financed by voluntary private contributions. Likewise, KRS 160.580, allowing local school boards to accept gifts and donations, has no relevance here. As the Court has pointed out, it is the posting of the Ten Commandments, and not the manner in which the school board received that document, which violates the United States Constitution.
The Establishment Clause prohibits "sponsorship, financial support, and active involvement of the sovereign in a religious activity."
Walz v. Tax Comm'n. 397 U.S. 664, 668 (1970). The United States Supreme Court has noted that "Americans regard the public schools as a most vital civil institution for the presentation of a democratic system of government."
School District of Abington Township v. Schempp, 374 U.S. 203 (1963), at page 230, Brennan, J., concurring. Mr. Justice Brennan further stated in that case:
"[T]he American experiment in free public education available to all children has been guided in large measure by the dramatic evolution of the religious diversity among the population which our public schools serve. . . . It is implicit in the history and character of American public education that the public schools serve a uniquely public function. The training of American citizens in an atmosphere free of parochial, devisive, or separatist influences of any sort - an atmosphere in which children may assimilate a heritage common to all American groups and religions. . . . This is a heritage neither theistic nor atheistic, but simply civic and patriotic." 374 U.S. at 241-242. (Emphasis in the original.)
It is clear that the State Board of Education has duties regarding the management and control of public common schools (KRS 156.070(1); that local school board members are state officers who also have management and control responsibilities, KRS 160.160, and that teachers and school administrators are state employees. Therefore, in our opinion, the United States Supreme Court by its decision in Stone will not allow a school board policy which would either require or permit copies of the Ten Commandments to continue to be posted in the public common schools.
We feel it is necessary in order to assist all school officials in Kentucky on this matter to briefly discuss the possible effects of a decision by a local board of education in Kentucky to continue to permit copies of the Ten Commandments to be hung in the public common schools. First, we are required as the chief legal office of the Commonwealth to state that the United States Constitution, as interpreted finally by the United States Supreme Court, is the law of the land, and regardless of personal feeling, must be followed.
Secondly, there also exists the possibility of legal action brought by private individuals against school personnel who continue a practice known or believed to be violative of federal constitutional rights. We believe that local school boards who may choose to ignore the decision of the United States Supreme Court run the risk of being sued individually by private individuals with possible requests for compensatory and even punitive demages. Therefore, each local school board is encouraged to carefully consider the legal ramifications of their actions concerning the posting of copies of the Ten Commandments.
OAG 78-605 is hereby withdrawn.