Can a Washington school district run its own health clinic on campus, lease space to one, or use district funds to advertise it?

Plain-English summary

Representative Monica Jurado Stonier asked AG Bob Ferguson to revisit two old AG opinions that had narrowly limited what Washington school districts could do around health care clinics. AGO 1988 No. 2 had said school districts could not run a clinic, could not pay to construct or remodel space for one, could not contract with a third party to run one, and could not advertise one. AGO 1989 No. 17 had clarified that districts could lease surplus space (as lessor) to outside operators but still could not advertise the clinic.

The 2010 legislature changed the legal landscape by adding RCW 28A.605.040, which encourages districts to "create spaces in school buildings, if space is available, where students and families can access the services they need, such as after-school tutoring, dental and health services, counseling, or clothing and food banks." Ferguson's 2023 opinion walks through the old conclusions and updates them.

The bottom line: a Washington school district still cannot itself operate a health care clinic, because nothing in the Education title of the RCW expressly grants that power and the implied-powers doctrine cannot reach that far under McGilvra v. Seattle School District 1 (1921). But the new statute changes the answer on three of the old questions. Districts can now use existing surplus space (and spend money to repurpose it) for a clinic operated by someone else. Districts can contract with that third-party operator. Districts can use district funds to advertise the clinic's services. The opinion also confirms that hosting a clinic is not an unconstitutional "gift of public funds" under article VIII, section 7 of the Washington Constitution, because protecting public health is a fundamental government purpose.

The walls that remain: the district cannot pay to construct or acquire new space for a clinic (only repurpose existing space), cannot pay clinic staff, cannot buy clinic equipment or supplies, and cannot bear maintenance costs that would not have existed if the space sat empty. The clinic itself, and the people running it, are someone else's responsibility. The district is the landlord and partner, not the provider.

What this means for you

If you are a school district superintendent or board member

You have more room to support student health than the 1988/1989 opinions allowed. If you have surplus, under-used, or otherwise available space in a building, you can let an outside operator (county health department, hospital system, FQHC, school-based health alliance) run a clinic in that space. You can spend district funds to make the space usable for that purpose, and you can advertise the clinic's services to students and parents. What you cannot do, under this opinion, is hire the medical staff, buy the equipment, or use district money to construct a new wing for the clinic.

Practical implications: build the clinic into your facilities planning by identifying surplus or convertible space; choose a third-party operator with the right credentialing, malpractice coverage, and Medicaid billing capacity; structure the agreement as both a use/license arrangement and a services contract with clear scope (what the clinic will do, what it will not do, parental consent rules, records access). The opinion does not address the consent and confidentiality questions specific to adolescent care; those are governed by chapter 70.02 RCW and chapter 71.34 RCW and need separate review.

If you are a school finance officer

The opinion gives you cover to budget for space conversion costs (build-out for exam rooms, plumbing, basic medical waiting area), routine utilities, and outreach and advertising for the clinic. It does not give you cover to budget for clinical staff salaries, durable medical equipment, supplies (gloves, syringes, vaccines), or new construction. Keep a clean line in your accounting between district expenditures (allowed) and clinic operations (not allowed).

If you are a county public health official or community clinic operator

The opinion confirms that you can be the operator behind a school-hosted clinic and that the district can support you with space, repurposing dollars, and outreach. It does not require the district to charge you rent or recoup utility costs from you. Build your proposal around the integrated student supports framing in RCW 28A.300.139, which the opinion treats as reinforcing the legislative encouragement of these partnerships.

If you are a parent or student

A clinic on school grounds is allowed in Washington under this opinion, but it is run by an outside provider, not by the school district. That matters for things like consent rules, billing, and what care is actually offered: those questions are decided by the operator (and applicable health-care law), not by the school board.

If you are a Washington state legislator

If you want school districts to be able to operate clinics directly, the opinion explicitly says that requires new legislation. The current scheme keeps the district as host and partner, not as health care provider.

Common questions

Why can't a school district run its own clinic?

School districts in Washington are quasi-municipal corporations with only the powers the legislature gives them, plus those necessarily implied. The 1921 McGilvra case said running a medical clinic is not implied from any power districts had then. RCW Title 28A still has no express grant. The 2010 statute (RCW 28A.605.040) authorizes districts to "create spaces" where families can access services, but the AG concluded that "create a space" and "operate a clinic" are different things.

What changed in 2010 that updated the old AG opinions?

RCW 28A.605.040 was added that year. It encourages districts to strengthen family, school, and community partnerships by making space available in school buildings for needed services, including dental and health care. That single sentence is what gave the AG room to update the 1988 and 1989 conclusions on hosting, contracting, and advertising.

Can the district pay to build a new addition for a health clinic?

No. The statutory authority is to use space "if space is available." That covers repurposing existing or surplus space. It does not cover constructing, leasing in, or renting brand-new space for the clinic. If you need new construction, you need either separate statutory authority or a non-district funding source.

Can the district pay clinic staff, buy equipment, or pay clinic supply costs?

No. The opinion is explicit: there is no authority for a district to spend its money on the operations of a health care clinic, including paying medical professionals, purchasing equipment, or covering maintenance costs the district would not otherwise incur.

Can the district use district money to advertise the clinic?

Yes, and this is one of the points the opinion explicitly updates. AGO 1989 No. 17 had said no. The 2023 opinion says that since the legislature wants districts to host these services and partnerships, districts must be able to make people aware they exist. So advertising and promotion of the clinic's services on school premises and through district communications is now permitted.

Is hosting a health clinic on school property a "gift of public funds"?

No. Article VIII, section 7 of the Washington Constitution forbids municipal corporations (including school districts) from giving money or property to private interests, but the courts use a two-step test. If the expenditure carries out a "fundamental purpose" of government, the analysis ends there and there is no gift. Protecting public health is a fundamental purpose. The state constitution also explicitly allows expenditure of public funds for the "necessary support of the poor and infirm." Both grounds defeat the gift-of-public-funds challenge.

Does the clinic have to be on school property to qualify?

The statutory authority is about creating spaces "in school buildings." If a third party wants to operate a clinic somewhere off campus, that is its own arrangement and not what RCW 28A.605.040 addresses.

What about adolescent consent, billing, and confidentiality?

The opinion does not get into those. They are governed by separate Washington statutes (the health care information statutes in chapter 70.02 RCW, the minor-consent provisions in chapter 71.34 RCW, the federal HIPAA framework, and Medicaid billing rules). Build the operating agreement to address them; do not assume the AG opinion answers them.

Background and statutory framework

Three pieces of law set the frame: McGilvra v. Seattle School District 1 (1921), the structure of school district powers in RCW Title 28A, and the 2010 amendment that became RCW 28A.605.040.

McGilvra is the foundational case. The Washington Supreme Court held that a school district lacked authority to set up clinics for medical, surgical, and dental treatment for students. The Court looked at the express powers the legislature had given school districts and the powers necessarily implied from them. Neither category supported running a clinic. The legislature could change that, the Court said, but had not done so.

That ruling has shaped how the AG analyzes school district health authority for over a century. AGO 1988 No. 2 followed it: districts cannot run clinics, cannot pay to build space for one, cannot rent space for one, cannot contract for one, and cannot advertise one. AGO 1989 No. 17 added one wrinkle: districts can lease out surplus property to a third party that wants to run a clinic, because districts had broad statutory authority to lease surplus property under former RCW 28A.58.033 (now RCW 28A.335.040).

In 2010, the legislature added RCW 28A.605.040: "School districts are encouraged to strengthen family, school, and community partnerships by creating spaces in school buildings, if space is available, where students and families can access the services they need, such as after-school tutoring, dental and health services, counseling, or clothing and food banks."

That single sentence is what does the work in the 2023 opinion. It is an express grant of authority to "create spaces" in school buildings for outside-operated services. The AG reads "create" and "operate" as different verbs (the legislature gave the first, not the second). It reads the authority to "create spaces" as necessarily implying authority to spend money to make those spaces usable, and as necessarily implying authority to advertise so families know the services exist. It also reads the statute as authorizing the district to enter contracts (including leases) with the third-party operator, with conditions on use.

The 2016 Washington Integrated Student Supports Protocol, codified at RCW 28A.300.139, reinforces the policy direction: state law expressly contemplates schools coordinating academic and nonacademic supports and integrating community-based providers (physicians, dentists, audiologists) into the school environment.

The constitutional gift-of-public-funds analysis comes from Const. art. VIII, § 7 (limits on municipal corporations) and the parallel state-level limit in § 5. Washington courts use the two-step test from In re Recall of Burnham and CLEAN v. State: if the expenditure carries out a fundamental government purpose, the inquiry ends. Protecting public health is on the list of recognized fundamental purposes (O'Brien). The "poor and infirm" exception in section 7 also independently saves the arrangement (Wash. Health Care Facilities v. Ray reads "infirm" disjunctively).

Citations

The implied-powers framework for quasi-municipal corporations comes from Noe v. Edmonds School District 15, Seattle High Sch. Chapter 200 v. Sharples, and State ex rel. Bellingham Sch. Dist. 301 v. Clausen. The McGilvra rule that medical clinics are not within school district authority remains the spine of the doctrine. Plain-meaning interpretation of "create" versus "operate" rests on Garrison v. Washington State Nursing Board and the grammar canon in State v. Bunker. The gift-of-public-funds analysis draws on O'Brien, Washington Public Ports Association v. Department of Revenue, Japan Line v. McCaffree, City of Tacoma v. Taxpayers of Tacoma, In re Recall of Burnham, CLEAN v. State, and Adams v. University of Washington. The "poor and infirm" carve-out comes from Washington Health Care Facilities v. Ray.

Source

• Landing page: https://www.atg.wa.gov/ago-opinions/authority-school-districts-regarding-health-care-clinics

Original opinion text

Attorney General

SCHOOLS—SCHOOL PROPERTY—HEALTH CARE SERVICES—STATUTORY AUTHORITY—Authority Of School Districts Regarding Health Care Clinics

1. The conclusion we reached in AGO 1988 No. 2 continues to be correct in that school districts lack the statutory authority to operate or establish adolescent health care clinics themselves; but

2. New statutory authority granted in RCW 28A.605.040 alters our earlier conclusion in AGO 1988 No. 2 because the statute now allows school districts to create spaces, if available, where students and families can access needed services, including dental and health services operated by others; and further

3. New authority in RCW 28A.605.040 also allows school districts to contract with private or public agencies to provide a health care clinic, modifying the contrary conclusion we reached under prior law in AGO 1988 No. 2; and moreover

4. The conclusion we reached in AGO 1989 No. 17 must also be updated based on RCW 28A.605.040, and a school district may use its funds to advertise or promote the services of a health care clinic for which the district has made space available; and

5. It is not an unconstitutional gift of state funds for a school district to provide space to another entity to operate a health clinic on district property; and finally

6. State law generally encourages school districts to support students by engaging with community partnerships that enable access to needed services, including health services.

January 3, 2023

The Honorable Monica Jurado Stonier
State Representative, District 49
PO Box 40600
Olympia, WA 98504-0600

Cite as:
AGO 2023 No. 2

Dear Representative Stonier:

By letter previously acknowledged, you have requested our opinion on a series of questions related to health clinics in public schools. You first asked whether the conclusions we reached in AGO 1988 No. 2 and AGO 1989 No. 17 are still valid. Those opinions answered a combined seven questions, and are attached to this opinion. Because we understand you are interested only in whether any of our negative answers to those questions have changed, we address only those questions and paraphrase your request as follows:

1. Is it still our opinion, as we stated in AGO 1988 No. 2, that school districts may not themselves operate or establish "adolescent health care clinics"?

2. Is it still our opinion, as we stated in AGO 1988 No. 2, that school districts may not use district funds for the construction, remodel, lease (as lessee), or rental of facilities to house such programs operated by others?

3. Is it still our opinion, as we stated in AGO 1988 No. 2, that school districts may not contract with private or public agencies to provide such programs, either in school district facilities or elsewhere?

4. Is it still our opinion, as we stated in AGO 1989 No. 17, that school districts may not use district funds to advertise or promote a clinic's services on school premises?

You subsequently asked us to address additional questions, which we paraphrase as follows:

5. Is it an unconstitutional gift of public funds for school districts to make space available to other entities to operate health clinics on district property?

6. Does state law encourage school districts to create community partnerships to provide integrated student supports, including for health care services?

BRIEF ANSWERS

1. Yes. School districts have only those powers explicitly granted to them by statute or necessarily implied, and in 1921 the Washington Supreme Court held that school districts lacked statutory authority to operate their own health care clinics. While the legislature could change that outcome by enacting a statute granting school districts authority to operate health care clinics themselves, it has not done so. Therefore, it is still our opinion that school districts lack express authority to operate health care clinics, and without such authority, districts may not do so.

2. No, we slightly change our earlier opinion on whether school districts may use district funds to remodel facilities to house a health care clinic operated by someone else. Under new authority in RCW 28A.605.040, school districts may expend funds to create space, if available, where students and families can access needed services, including dental and health services. This authority is not limitless, as we discuss more fully below. It continues to be our conclusion, however, that school districts may not use district funds to acquire or create new property through construction, lease (as lessee), or rental to house such a clinic.

3. No, we revise and clarify our earlier opinion on whether school districts may contract with private or public agencies to provide a health care clinic. Under new authority in RCW 28A.605.040, a school district may contract with a third party seeking to operate a health care clinic in space the district creates to house that service.

4. No, our opinion on this point has changed. When a school district creates space in a school building under RCW 28A.605.040 to house a health care clinic, then that school district may use its funds to advertise or promote that clinic's services.

5. No, it is not an unconstitutional gift of state funds for a school district to provide space to another entity to operate a health clinic on district property. Protecting public health is a fundamental public purpose, so school districts may expend funds for that purpose without violating the constitution. Further, even if that were not the case, the constitution explicitly allows expenditure of public funds to benefit those who need medical care.

6. Yes, state law does generally encourage school districts to support students by engaging with community partnerships that enable access to needed services, including health services.

BACKGROUND

Before we answer your questions, we provide some crucial historical background and outline the two earlier opinions that you ask about.

In McGilvra v. Seattle School District 1, 113 Wash. 619, 194 P. 817 (1921), the Washington Supreme Court addressed whether any provision then existing in state law authorized school districts to establish clinics for medical, surgical, and dental treatment for students. Id. at 627. The Court concluded that school districts had no such authority, and that more explicit legislative authorization would be required to give school districts such authority. Id. Thus, in answering your current opinion request and in the prior opinions you reference, we are not writing on a blank slate. We are bound by the Supreme Court's interpretation unless the statutes have changed in ways that lead to a different answer.

In AGO 1988 No. 2, at page 2, we answered questions about whether school districts have authority to establish "adolescent health care clinics" to provide health care and education to teenagers, using school funds, to minimize long-term consequences from: "(1) substance abuse, (2) abuse and neglect, (3) mental or emotional difficulties, (4) nutritional and health care deprivation, (5) sexual activity, (6) sexually transmitted diseases, (7) teen pregnancy, (8) low-birth-weight babies, (9) infant mortality, and (10) disruption of the family unit." Although we found that school districts have several health-related powers and functions, we found no express or implied authority that would change the conclusion in McGilvra and allow school districts to establish or operate health care clinics themselves. As part of that conclusion, we also found that school districts may not use district funds to construct, remodel, rent, or lease (as lessee) facilities to house such clinics. Finally, we concluded that school districts may not contract with public or private entities to jointly establish such clinics.

The following year, we were asked whether school districts could, rather than establish or operate clinics themselves, instead lease (as lessor) surplus school district facilities to public or private entities for those entities to establish and operate adolescent health care clinics. In AGO 1989 No. 17, we concluded that former RCW 28A.58.033 (1989) expressly granted school districts broad powers to lease surplus property for any number of lawful purposes. Thus, school districts could indeed lease surplus facilities to public or private entities for those entities to then establish and operate adolescent health care clinics. Along with the right to enter into a lease, we found that districts had similarly broad rights to set any lawful conditions on that lease. We also concluded that while a school district may not use district funds to operate such a clinic, school physicians and nurses, as part of their general charge to protect the health of the district's children, could refer students to such adolescent health care clinics. We likewise concluded that those school physicians and nurses could also distribute to students parental consent forms describing the clinics' services. Referrals and consent forms aside, we concluded that the districts may not expend district funds to advertise a clinic's services. As a non-district entity, however, the clinic could use its own funds to advertise its services on leased surplus school district property, assuming such advertising is permitted under the lease with the district.

We understand your questions asking us whether our conclusions in AGO 1988 No. 2 and AGO 1989 No. 17 are still valid to be concerned with whether our negative answers to the questions presented in those opinions, the answers restricting school districts, have changed.

ANALYSIS

1. Is it still our opinion, as we stated in AGO 1988 No. 2, that school districts may not themselves operate or establish "adolescent health care clinics"?

Yes. School districts in Washington are municipal or quasi-municipal corporations. RCW 28A.320.010; Noe v. Edmonds Sch. Dist. 15, 83 Wn.2d 97, 103, 515 P.2d 977 (1973). They possess the express powers granted by the legislature, together with those necessary, implied in, or incident to such expressed powers and those essential to the declared objects and purposes of the district. Noe, 83 Wn.2d at 103; Seattle High Sch. Chapter 200 v. Sharples, 159 Wash. 424, 428, 293 P. 994 (1930).

RCW Title 28A contains no express statutory authority for school districts to operate health care clinics. It did not in 1921 when the Washington Supreme Court decided McGilvra, it did not when we issued AGO 1988 No. 2, and it does not today. As we said in our earlier opinion, without express authority, the issue then is "whether such power can be implied from powers expressly granted to school districts." AGO 1988 No. 2, at 3.

In 1988, the general powers of the board of directors of a school district were found in RCW 28A.58. Today, those same powers are found in RCW 28A.320. Beyond these general powers, there are also a number of more specific statutory provisions dealing with the health of school children. For example, RCW 28A.330.100(12) gives the boards of first-class districts the power

[t]o appoint a practicing physician, resident of the school district, who shall be known as the school district medical inspector, and whose duty it shall be to decide for the board of directors all questions of sanitation and health affecting the safety and welfare of the public schools of the district who shall serve at the board's pleasure: PROVIDED, That children shall not be required to submit to vaccination against the will of their parents or guardian.

Although codified in a different location, this provision is otherwise the same as what we cited in our earlier opinion. See AGO 1988 No. 2, at 3 (citing former RCW 28A.59.180(12) (1987)). The same is true of other provisions we cited in our prior opinion. See, e.g., RCW 28A.230.020 (formerly RCW 28A.05.010 (1987)) (directing all common schools to give instruction in "physiology and hygiene with special reference to the effects of alcoholic stimulants and narcotics on the human system"); RCW 28A.230.050 (formerly RCW 28A.05.040 (1987)) (requiring all schools to emphasize "the work of physical education"); RCW 28A.210.300 (allowing second-class districts to employ a regularly licensed physician or licensed public health nurse to protect the health of children in the district). As none of these provisions have meaningfully changed, neither has our earlier conclusion that school districts' power to provide medical services cannot be implied from any of these express statutory authorities. See AGO 1988 No. 2, at 4-5 (citing McGilvra, 113 Wash. 619).

One relevant change from the legislative landscape that existed at the time of our earlier opinions is that in 2010 the legislature added a new section to RCW 28A.605. It provides:

School districts are encouraged to strengthen family, school, and community partnerships by creating spaces in school buildings, if space is available, where students and families can access the services they need, such as after-school tutoring, dental and health services, counseling, or clothing and food banks.

RCW 28A.605.040. This provision expressly authorizes school districts to "creat[e] spaces" where students and families can access dental and health services.

Your question, however, asks, in part, whether a school district may "operate" or "establish" health care clinics. We do not believe the legislature granted school districts this power.

Turning first to whether a school district can "operate" health care clinics, we believe that "creating spaces" for such services is not the same as operating the service. RCW Title 28A does not define "creating" or "create." In the absence of statutory definition, words in a statute have their plain meaning. Garrison v. Wash. State Nursing Bd., 87 Wn.2d 195, 196, 550 P.2d 7 (1976). In its usual and customary sense, "create" means to bring into being, or cause to exist. See, e.g., Create, American Heritage Dictionary ("To cause to exist; bring into being"). In contrast to "create," in its relevant context, "operate" means to manage or to direct the operation of a business, enterprise, or similar entity. See, e.g., Operate, American Heritage Dictionary ("To conduct the affairs of; manage: operate a business"). The two words have distinct meanings, and one cannot be read into the other. Thus, in granting districts the power to create spaces in school buildings to house health care clinics, we do not believe the legislature intended districts to run those clinics.

Moving now to whether a school district may "establish" a health care clinic, we again find no legislative authority. Starting with the words, "establish" and "create" do have similar definitions, and are thus somewhat interchangeable. See Create, Merriam-Webster's Collegiate Thesaurus (listing "establish" as a related word for "create"). Beyond commonly understood definitions, however, we also use traditional rules of grammar to discern a statute's plain meaning. State v. Bunker, 169 Wn.2d 571, 578, 238 P.3d 487 (2010). As it is used in RCW 28A.605.040, "creat[e]" is a transitive verb, the object of which is the noun "spaces." Whether one uses the word "create" or its near synonym "establish," what the legislature empowered school districts to create or establish are "spaces," not whatever service may ultimately operate in those spaces.

Based on the ordinary meaning of words and basic rules of grammar, we conclude that authority for a school district to operate or establish health care clinics cannot reasonably be implied from the authority to create spaces for such clinics. Thus, our conclusion in AGO 1988 No. 2 stands: absent express statutory authority, authority we do not find, school districts may not open or operate health care clinics. The legislature could, of course, change this outcome by enacting legislation authorizing school districts to operate health clinics themselves.

2. Is it still our opinion, as we stated in AGO 1988 No. 2, that school districts may not use district funds for the construction, remodel, lease (as lessee), or rental of facilities to house such programs operated by others?

In AGO 1988 No. 2 we concluded that absent express authority, school districts could not use district funds for the construction, remodeling, lease (as lessee), or rental of facilities to house such programs. The legislature enacted RCW 28A.605.040 after we issued AGO 1988 No. 2. Here, our opinion changes slightly to reflect the newer grant of authority found in RCW 28A.605.040.

It remains true that school districts have only that authority explicitly granted by statute or necessarily implied from, or incident to, an explicit grant of authority. Seattle High Sch. Chapter 200, 159 Wash. at 428; State ex rel. Bellingham Sch. Dist. 301 v. Clausen, 109 Wash. 37, 41, 186 P. 319 (1919). With RCW 28A.605.040, the legislature has expressly granted school districts the power to create space in school buildings, if space is available, where students and families can access needed services, including dental and health services.

Along with this express authority to "creat[e] spaces in school buildings, if space is available," we believe the legislature necessarily understood that a school district may have to expend funds to actually "creat[e]" such spaces. RCW 28A.605.040 does not limit how a school district can "creat[e] spaces in school buildings," other than that the space already be available. We thus believe the legislature intended school districts to have a certain degree of discretion in how they create usable space in their school buildings to house a service such as a dental or medical clinic. In short, expending funds to create such a space is implied from or incident to the explicit authority.

We think this express authority also implies that the school district could continue paying whatever costs it was already incurring in possessing the surplus space. In other words, in encouraging districts to create space for services that would "strengthen family, school, and community partnerships," we do not think the legislature intended school districts to have to charge rent or utilities for the use of that space, or to otherwise recoup costs that are not directly attributable to the clinic's use of the space.

The authority in RCW 28A.605.040, however, is not limitless. The express language limits school districts to creating space in school buildings only if that space is already available. Thus, this provision does not authorize a school district to use its funds to build or acquire brand new space, through construction, leasing, or rental, to house a clinic. School districts are, at most, authorized to repurpose unused, under-used, or otherwise surplus property that they already possesses.

Moreover, nothing in this express authority to create space from what already exists authorizes a school district to spend funds on the operation of a health care clinic. While a school district may expend funds to create space, if such space is available, for a separate entity to open and operate a health care clinic, the district cannot pay for that clinic to operate. At bottom, there is still no express grant of authority for a school district to expend its funds on clinic operations, including paying the physicians, nurses, or other medical professionals who staff the clinic, purchasing equipment or supplies for the clinic, or covering any maintenance costs that the district would not have incurred if the space went unused.

In summary, we conclude that school districts have implied authority to expend funds to create space from surplus district facilities to house dental and health services, and to keep paying the costs they would already incur if the surplus space went unused. A school district, however, has neither the express nor implied authority to expend district funds to construct or acquire new property or facilities, nor to operate a health care clinic.

3. Is it still our opinion, as we stated in AGO 1988 No. 2, that school districts may not contract with private or public agencies to provide such programs, either in school district facilities or elsewhere?

No, in light of subsequent legislative changes discussed below. In AGO 1988 No. 2, we found no express authority for school districts to contract with private or public agencies to establish adolescent health care clinics, and thus concluded they could not do so. In reaching this conclusion, we used the word "contracting" to mean a school district engaging and paying a third-party vendor to operate a health care clinic on the school district's behalf and at the school district's direction.

In concluding that a school district could not open a clinic by "contracting" with another party, we were not saying that the district could not enter into any form of contract with a third party seeking to operate a health care clinic on school grounds. To the extent that this point was lost, we clarified when we revisited the issue in AGO 1989 No. 17. In this follow-up opinion, we noted that under former RCW 28A.58.033 (1989), school districts had broad authority to lease surplus property, subject to certain limitations. See RCW 28A.335.040 (near identical language as former RCW 28A.58.033 (1989)). This broad authority included the ability to lease property to a lessee to carry out activities the district could not carry out itself, such as operating a health care clinic. Such a lease would be memorialized in a lease agreement, a contract.

We also concluded that under former RCW 28A.58.034(3) (1989), school districts, as lessors, could include restrictions in their lease agreements, including restricting the surplus property's use only to health care clinics and limiting the scope of services that may be performed at the clinic. See RCW 28A.335.050(3) (identical language as former RCW 28A.58.034(3) (1989)). In short, while we concluded in AGO 1988 No. 2 that a school district could not establish a health care clinic by "contracting" with another entity, our opinion in AGO 1989 No. 17 clarified that school districts may enter into certain contracts, there, leases, with entities that would open and operate health care clinics on school district grounds.

Subsequent legislative changes have now expanded a school district's ability to contract with a private or public agency to provide a health care clinic in a school facility or on school grounds. As noted in our answers to the questions above, RCW 28A.605.040 expressly authorizes school districts to create spaces in school buildings, if space is available, where students and families can access the services they need, including dental and health services. Implied in this explicit legislative grant is the recognition that school districts have control over the spaces they create, including control over how that space is used. This control includes the ability to place limits or other conditions on the entity seeking to use the space, including on those seeking to open and operate a health care clinic.

We thus conclude that a school district may contract with a private or public entity seeking to open and operate a health care clinic on district grounds.

4. Is it still our opinion, as we stated in AGO 1989 No. 17, that school districts may not use district funds to advertise or promote a clinic's services on school premises?

In AGO 1989 No. 17, we concluded that a school district may not use its funds for the express purpose of advertising or promoting a clinic's services. While our opinion was correct at the time, circumstances have changed.

Central to our prior opinion was that at that time, there was no legislative authority of any kind allowing a school district to establish or operate an adolescent health care clinic or contribute funds for this purpose. In the absence of express authority, we could only conclude that school districts lacked the authority to expend district funds on advertising. As it was then and remains true now, school districts have only that authority explicitly granted by statute or necessarily implied from an explicit grant of authority. Seattle High Sch. Chapter 200, 159 Wash. at 428.

Since we issued AGO 1989 No. 17, the legislature enacted RCW 28A.605.040, expressly authorizing school districts to create spaces for health care services. While this statute contains no express language authorizing the use of district funds to advertise or promote such clinics operating on school property, we believe the legislature's desire, indeed, its encouragement, that school districts make space for services such as health care clinics to "strengthen family, school, and community partnerships" would be defeated if no one knew the services were being offered. Thus the authority for a school district to create this space necessarily implies authority for the school district to make the community aware of both the existence of the space and the service(s) being offered.

5. Is it an unconstitutional gift of public funds for school districts to make space available to other entities to operate health clinics on district property?

No, it is not a gift of public funds for school districts to make space available to other entities to operate health clinics on district property.

Article VIII, section 7 of the Washington Constitution reads:

No county, city, town or other municipal corporation shall hereafter give any money, or property, or loan its money, or credit to or in aid of any individual, association, company or corporation, except for the necessary support of the poor and infirm, or become directly or indirectly the owner of any stock in or bonds of any association, company or corporation.

Our Supreme Court has recognized that when the constitutional convention adopted article VIII, section 5, the related provision that limits the state's lending of credit, it did not intend to hinder state government from carrying out its "essential function to secure the health and welfare of the state's citizens." See Wash. State Hous. Fin. Comm'n v. O'Brien, 100 Wn.2d 491, 495, 671 P.2d 247 (1983). The purpose of article VIII, sections 5 and 7 is "'to prevent state funds from being used to benefit private interests where the public interest is not primarily served.'" Wash. Pub. Ports Ass'n v. Dep't of Revenue, 148 Wn.2d 637, 653, 62 P.3d 462 (2003) (quoting Japan Line, Ltd. v. McCaffree, 88 Wn.2d 93, 98, 558 P.2d 211 (1977)). A government's use of public funds is presumed constitutional, and the burden of overcoming that presumption lies with the individual making the challenge. City of Tacoma v. Taxpayers of Tacoma, 108 Wn.2d 679, 702, 743 P.2d 793 (1987).

Washington courts "use a two-pronged analysis to determine whether a gift of public funds has occurred." In re Recall of Burnham, 194 Wn.2d 68, 77, 448 P.3d 747 (2019). First, the court asks whether the funds were expended "to carry out a fundamental purpose of the government[.]" Id. If the answer to that question is yes, the analysis ends, and there is no gift of public funds. Id.; CLEAN v. State, 130 Wn.2d 782, 797-98, 928 P.2d 1054 (1996). If the answer to that question is no, the court asks whether the funds were given with donative intent, and what the public received in exchange (also called "consideration"). CLEAN, 130 Wn.2d at 797-98. The consideration that the public receives is "the key factor." City of Tacoma, 108 Wn.2d at 703 (quoting Adams v. Univ. of Wash., 106 Wn.2d 312, 327, 722 P.2d 74 (1986)). Unless there is a proof of donative intent or a grossly inadequate return, courts do not inquire into the adequacy of consideration. City of Tacoma, 108 Wn.2d at 703.

State courts have not offered a complete list or definition of what constitutes a "fundamental purpose" of government. Case law applying article VIII, sections 5 and 7 of the Washington Constitution, however, provides several examples. Fundamental purposes of government include protecting public health, collecting taxes, furthering higher education, acquiring real property, controlling floods, enforcing child support obligations, disposing of solid waste, providing and administering workers' compensation, and obtaining and defending guardians ad litem.

Article VIII, section 7 also allows local governments to give or loan money for the "necessary support of the poor and infirm[.]" The phrase "poor and infirm" in article VIII, section 7 is read in the disjunctive, meaning the benefitted individual must be "poor" or "infirm," but does not need to be both. Wash. Health Care Facilities v. Ray, 93 Wn.2d 108, 116, 605 P.2d 1260 (1980). State courts generally do not assess who "belongs in the benefitted class" of the "poor and infirm." O'Brien, 100 Wn.2d at 497. Instead, they defer to the legislative determination of what constitutes need, and they assess the reasonableness of that determination. Id.

Finally, courts will likely consider a school district's motive when it gives or loans money or property to another entity. When analyzing the legislature's actions under article VIII, section 5, our Supreme Court has stated that it gives great weight to the government's stated declaration of purpose. O'Brien, 100 Wn.2d at 495-96. The Court does not accept the government's declaration as conclusive, but it will accept it unless it is arbitrary or unreasonable. Id. at 496.

Applying all of these principles here, it seems clear on multiple grounds that school districts may constitutionally provide or lease space to other entities to operate health care clinics. First, doing so serves a fundamental public purpose, in that such clinics are intended to promote and protect the health of the public. Second, health care clinics exist to support those needing medical care, who reasonably fall within the definition of the "infirm" referenced in the state constitution. Third, presumably, a school district's motive in providing or leasing space to another entity to operate a health care clinic would be related to supporting students by strengthening family, school, and community partnerships, as encouraged by RCW 28A.605.040. For these reasons, it is not a gift of public funds for a school district to make space available to another entity to operate a health clinic on district property.

6. Does state law encourage school districts to create community partnerships to provide integrated student supports, including for health care services?

Yes, state law does generally encourage school district engagement with the community regarding needed services, including health services.

RCW 28A.605.040 reads, in its entirety:

School districts are encouraged to strengthen family, school, and community partnerships by creating spaces in school buildings, if space is available, where students and families can access the services they need, such as after-school tutoring, dental and health services, counseling, or clothing and food banks.

(Emphases added.)

In 2016, the legislature adopted Fourth Substitute House Bill 1541, which, in relevant part, was codified as RCW 28A.300.139. This statute established the Washington Integrated Student Supports Protocol (WISSP), and its stated purposes include "[s]upporting a school-based approach to promoting the success of all students by coordinating academic and nonacademic supports to reduce barriers to academic achievement and educational attainment[,]" and "[e]ncouraging the creation, expansion, and quality improvement of community-based supports that can be integrated into the academic environment of schools and school districts[.]" RCW 28A.300.139(a), (c). The Center for the Improvement of Student Learning was charged with developing the WISSP based on the framework set forth in the statute (RCW 28A.300.139(1)), which includes facilitation of the ability of nonacademic providers, including physicians, dentists, and audiologists, to support the needs of at-risk students (RCW 28A.300.139(2)(c)).

Based on the plain language of these statutes, we conclude that state law generally encourages school districts to support students by engaging with community partnerships that enable access to needed services, such as health care services.

We trust that the foregoing will be useful to you.

ROBERT W. FERGUSON
Attorney General

KATE S. WORTHINGTON
Assistant Attorney General

ATTACHMENTS

AGO 1988 No. 2 - Feb 1 1988: https://www.atg.wa.gov/ago-opinions/health-care-clinics

AGO 1989 No. 17 - Sep 20 1989: https://www.atg.wa.gov/ago-opinions/school-districts-school-property-health-care-clinics

A first-class school district is "[a]ny school district in the state that has a student enrollment in its public schools of two thousand pupils or more . . . . Any other school district is a school district of the second class." RCW 28A.300.065(2).