Prepared by: Christian Homeschool Network

Date: May 11, 2005

Many people have inquired about the use of religious curriculum in these programs. We hope that this report will help to answer their questions.

Can religious curriculum be used in public school Alternative Learning Programs (ALP) funded under WAC 392-121-182?

No, religious curriculum/instruction cannot be used in these programs. What many parents do not realize is that this also applies to all learning activities conducted off-site, including in the home, at private co-ops, through tutors, etc.

Once enrolled in an ALP the student is a public school student and therefore under public school laws and rules. The school district is now responsible for supervision of the child’s education. The school district develops a written learning plan for the student that should include learning activities, instructional materials, hours, etc. The student’s written learning plan is a tool used by the school district to monitor the child’s progress and is tied to receiving funding for the program.

Since the school district receives state funding for the program, the learning plan must be “free from sectarian control or influence”; this would include any learning activity and instructional material used to meet the student’s learning plan.

Note: Many ALP sites allow for part-time attendance, which is currently not permitted under WAC 392-121-182. This report assumes that the student is enrolled as a full-time student. Many parents think that their student is only part-time since some sites may require as little as one hour on-site. If your student has a written learning plan, chances are they are being claimed as a full-time public school student.

1. First, let us look at what state law says.

The law is clear that a school district must provide a list of recommended curriculum, and must meet the standards of the school district.

State law RCW 28A.320.230 requires that school districts appoint an instructional materials committee to select instructional material.

     (1) Prepare, negotiate, set forth in writing and adopt, policy relative to the selection or deletion of instructional materials. Such policy shall:
     (a) State the school district's goals and principles relative to instructional materials;
     (b) Delegate responsibility for the preparation and recommendation of teachers' reading lists and specify the procedures to be followed in the selection of all instructional materials including text books;
     (c) Establish an instructional materials committee to be appointed, ...

2. Does this state law apply to Alternative Learning Programs?

Yes, according to the State Attorney General’s Office and the Superintendent of Public Instruction.

1.Informal opinion from the Attorney General’s Office , requested by Senator Stevens, June 11, 1998. The request included the following question: What if religious instruction were provided at home in addition to the course of work supervised by the school district as described in WAC 392-121-182?

Selections taken from the reply letter sent to Senator Stevens from the Attorney General’s office.

However, constitutional issues would arise if a school district included religious instruction in a course conducted or supervised by the district, even if taught outside the classroom, or in a student’s home.

…the term alternative learning experience” is a specifically defined term, and refers only to certain educational programs which are both planned and directly supervised by the public school district. As WAC 392-121-182 makes clear, any involvement by a student’s parent or guardians in such a program is incidental and is subject to the direct supervision of the district.

Since an “alternative learning experience” is planned and supervised by the public school, and results in allowing the students undergoing the “experience” to be counted in the district’s funding allotment, it is virtually certain that the courts would treat any religious instruction within such an “experience” in the same way they would treat it in the regular classroom.

2. Memo from Superintendent of Public Instruction;  J.J. Coolican, Deputy Superintendent, August 7, 1998. Sent to: Education Service District Superintendents, Chief School District Administrators, Alternative Learning Experience Program Administrators.

Must a school district assume and exercise responsibility for the instructional content of a student’s off-campus learning activities, including the instructional or learning material used by the student, as a condition to claiming state funding based on the time spent by the student while engaged in such activities?  “Yes”

Accordingly, we conclude that for a district to claim state funding for time spent by a student while engaged in off-campus independent study, the district must have assumed and exercised responsibility for the selection of the instructional materials used by the student in accordance with RCW 28A.320.230.

3. What does Washington State’s constitution say about the use of religious curriculum?

Article 1, section 11

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; but the liberty of conscience herby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the state.  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. (emphasis added)

Article 9, section 4

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

4. Is this in conflict with the First Amendment of the United State Constitution?

No, these articles (called the Blaine Amendments) were challenged in a 2003 court case, “Locke versus Davey.” By a vote of 7-2 the United State Supreme Court upheld Washington State’s Constitution and statutes prohibiting any taxpayer monies from being used for “religious” purposes.

5. The State Auditor’s Office is conducting a statewide-audit of these programs, what do they have to say about the use of religious curriculum?

Last session the legislature requested an investigation into ALPs. This investigation was to be done along with the State Auditor’s Office which was already in the middle of a two year statewide audit of the programs. In February 2005, JLARC and SAO released their preliminary report and presented their findings to the legislature. They focused on ALPs that offered distance learning and/or parent partnership programs.

The State Auditor’s report commented on a couple of sites that allowed the use of religious curriculum/textbooks by parents. If the use of religious curriculum is permitted, then why would the State Auditor’s report have listed the use of religious curriculum/textbooks under violations in their report? We asked the SAO about this and they said the use of religious curriculum/textbooks is in violation of state law.

Note: The State Auditor’s Office has not yet notified these sites about their violations, but will do so at the conclusion of the audit. Their final report is due this summer.  The State Auditor’s Office will then work with the State Superintendent’s office on resolutions to the non-compliance issues found at many of the sites.

In conclusion

ALPs are programs run by local school districts that allow students to conduct much or all of their schoolwork off-site. In many of these cases the parent is the primary teacher. Students enrolled in these programs are, by law, under the direct supervision of the school district. Some have referred to this as homeschooling which has led to confusion.

The “pink book” (Washington State Laws Regulating Home-based Instruction, published by OSPI) asks this question: Are there any circumstances by which a school district may provide the same model of instruction that home-based instructed students receive to students who are full-time public school students? “No” they go on to explain that students enrolled in an ALP are public school students. So we can conclude that they are therefore under public school laws, which means that parents/students are subject to state laws/rules for curriculum- the law is clear that curriculum must not be religious.

This report was written for informational purposes only. It is not intended to constitute legal advice.

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