Request By:
Honorable James F. Ogden
Attorney at Law
500 First National Bank Building
Sixth and Madison Avenue
Covington, Kentucky 41011
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert L. Chenoweth, Acting Deputy Attorney General
As the attorney for the Campbell County Schools you have asked for an opinion from the Office of the Attorney General regarding the constitutionality of the practice of Bible reading each morning in the Campbell County Schools. We are of the long-standing opinion that this practice is prohibited by the First Amendment of the United States Constitution made applicable to the states through the Fourteenth Amendment.
Kentucky public common schools are faced with a perturbing problem relative to this matter in that our school law still requires the reading of the Bible. KRS 158.170 reads as follows:
"The teacher in charge shall read or cause to be read a portion of the Bible daily in every classroom or session room of the common schools of the state in the presence of the pupils therein assembled, but no child shall be required to read the Bible against the wish of his parents or guardian."
The penalty provision linked to this section, until repealed by the 1978 General Assembly, called for the revocation of a teacher's certificate for the failure to conform to KRS 158.170. Unfortunately, the General Assembly neglected the responsibility of also repealing KRS 158.170.
This Office has looked at the constitutionality of KRS 158.170 at least twice before. In 1963, the late Attorney General, John B. Breckinridge, in writing OAG 63-790, copy attached, found this section of our school laws to be unconstitutional. Then in 1964, Attorney General Robert Matthews, in writing OAG 64-111, copy attached, reaffirmed the Breckinridge opinion, and reiterated the advice that in light of the United States Supreme Court decisions, KRS 158.170 is unenforceable.
It has been brought to our attention for several years now that many school systems throughout the Commonwealth are still following the directive of KRS 158.170. While we are quite cognizant of the fact our advisory opinions are just that - advisory, we believe the previous advisory opinions regarding this matter are so unquestionably correct that it is very unwise for any school system to continue to permit Bible reading and prayer 1 in the public common school classroom. The two previously referred to opinions of this Office considered the constitutionality of KRS 158.170 in light of Engel v. Vitale, 370 U.S. 421 (1962) and Abington Sch. District v. Schempp, 374 U.S. 203 (1963). In OAG 63-790, Attorney General Breckinridge wrote:
"The Court's opinion clearly declares as unconstitutional those statutory or regulatory practices or provisions, including those contained in KRS 158.170, which require the reading of the Bible or praying in a religious or devotional context as a part of a regular school program.
In fact, so unequivocal and comprehensive is the language chosen by the Court in Abington and Murray that it is evident that the reach of the Establishment Clause of the First Amendment is such as to prohibit our common schools - through the action, direction or instigation of the Commonwealth's boards, officers, agents or employees - from the utilization of any devise which would impose upon any student the necessity of exercising even a voluntary choice between participating in, attending or absenting himself from a place in which devotional Bible reading or prayer is being conducted as a part of the school's regular program."
And, Attorney General Matthews added this reminder in OAG 64-111:
"The Federal Constitution, as interpreted finally by the United States Supreme Court, is the law of the land; Supreme Court decisions must be followed."
It is true that the constitutionality of KRS 158.170 has never been tested in either a state or federal court. However, there is really very little need for such litigation because the outcome of the lawsuit is certain.
We would be satisfied in simply reiterating in this opinion what we have stated before and let it go at that if it were not for the need to advise on the legal ramifications of the continued practice of Bible reading in some of our public common school classrooms. As has been pointed out, this practice violates First Amendment rights held by us all, including school children. For those school officials, employees and school board members that participate in or permit the continued practice of Bible reading as denounced by the United States Supreme Court, there stands a strong possibility of a legal claim by a student against them that the student's constitutional rights are being infringed under color of state law by these school personnel's actions. Such a cause of action could be asserted in federal court under 42 U.S.C. § 1983, and accompanying such a legal complaint would very likely be a request for compensatory and punitive damages in what at times seems to be box-car figures. We mention this possibility not as a tactic to scare school personnel but to advise them of the legitimate legal risk attendant to a continued practice of violating known constitutional rights of school children. While school officials have been determined by the United States Supreme Court to have a degree of immunity for their actions, the United States Supreme Court, in Wood v. Strickland, 420 U.S. 308, 321-322 (1975), stated:
"The official must himself be acting sincerely and with a belief that he is doing right, but an act violating a student's constitutional rights can be no more justified by ignorance or disregard of settled, indisputable law on the part of one entrusted with supervision of students' daily lives than by the presence of actual malice. To be entitled to a special exemption from the categorical remedial language of § 1983 in a case in which his action violated a student's constitutional rights, a school board member, who has voluntarily undertaken the task of supervising the operation of the school and the activities of the students, must be held to a standard of conduct based not only on permissible intentions, but also on knowledge of the basic, unquestioned constitutional rights of his charges. Such a standard neither imposes an unfair burden upon a person assuming a responsible public office requiring a high degree of intelligence and judgment for the proper fulfillment of its duties, nor an unwarranted burden in light of the value which civil rights have in our legal system."
The Court then continued, albeit related to a school discipline problem, stating "that a school board member is not immune from liability for damages under § 1983 if he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the student affected, or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to the student."
Thus, in a situation such as we have with Bible reading in our schools in the manner you described, there does exist settled, indisputable law. School board members and other school personnel cannot reasonably in good faith claim they are unaware that reading the Bible each morning in the classroom violates the First Amendment rights of the School children. We, therefore, again strongly encourage and advise each board of education in the Commonwealth to forbid the reading from the Bible each morning in the school classrooms in their system.
Footnotes
Footnotes
1 Although we have not rendered an opinion on KRS 157.175 regarding the recitation of the Lord's Prayer in the classroom, there is serious doubt of the constitutionality of this relatively new section of our school laws.