No. 12169
I N THE SUPREME COURT O THE STATE O MONTANA F F
GEORGE GRANGER, MARJORY BROWN, e t a1 ., P l a i n t i f f s and A p p e l l a n t s ,
CASCADE COUNTY SCHOOL DISTRICT NO. 1,
Defendant and Respondent.
Appeal from: District Court of t h e Eighth J u d i c i a l District, Honorable Paul G. H a t f i e l d , Judge p r e s i d i n g .
Counsel of Record:
For A p p e l l a n t s :
Robert B. G i l l a n argued, Great F a l l s , Montana.
For Respondent:
Hon. Robert L. Woodahl, Attorney General, Helena, Montana. J. Fred Bourdeau, County Attorney, Great F a l l s , Montana. Michael T. Greely, Deputy County Attorney, argued, Great F a l l s , Montana.
Submitted: A p r i l 17, 1972
Decided: JUL2 0 1972 Filed : JUL 2 0 1a
Mr. Justice Frank I. Haswell delivered the Opinion of the Court.
Several parents whose children attend elementary and secondary schools operated by defendant school district filed a class action against the district seeking a declaratory judgment and injunction against certain school fees and charges. The district court of Cascade County, the Hon. Paul G. Hatfield, district judge, granted a judgment awarding in part the relief sought by plaintiffs and denying it in part. Plaintiffs appeal from the final judgment. The facts in the case are undisputed. All are contained in admis- sions in the pleadings, answers to interrogatories, and exhibits attached to the answers to the interrogatories. Neither oral testimony nor depositions were offered in evidence. In July 1970, a complaint was filed in the district court seeking (1) a declaratory judgment that certain fees and charges for educational materials furnished by defendant school district to pupils attending the elementary and secondary schools therein were illegal, and (2) a permanent injunction (a) prohibiting collection of such fees and charges, and (b) en- joining the school district from requiring that parents furnish at their own expense items and materials used in school courses. The complaint was filed as a class action by three plaintiffs who had children attending various public elementary schools, junior high schools and high schools in Great Falls, Montana. Defendant was Cascade County School District No. 1 , which operates such pub1 ic schools. The fees and charges alleged to be illegal were "fees of any nature in respect of any classes offered by schools within said school district and in respect of any facilities or equipment employed in said classes", includ- ing fees for the use by pupils of "laboratory, musical, home economics, trade training and commercial equipment" and "fees for the purchase and use of athletic equipment, school suppl ies and work books". According to the complaint,
the various elementary and secondary schools within the defendant school d i s t r i c t intends to impose such fees and charges during the 1970-1971 school year unless restrained by the d i s t r i c t court. On August 27, 1970, because of the imminence of the school year, the d i s t r i c t court granted an injunction pendente 1i t e restraining defend- ant school d i s t r i c t from imposing specified fees on children supported by federal , s t a t e , or local welfare and pub1 i c assistance programs o r whose parents could otherwise establ ish economic hardship. Defendant's answer can be characterized as a general denial. Forty-eight interrogatories by p l a i n t i f f s t o defendant school dis- t r i c t were f i l e d which the school d i s t r i c t answered in a comprehensive docu- ment of twenty-seven pages including two exhibits. These answers furnish most of the factual data involved in t h i s action. The case was submitted t o the d i s t r i c t court on t h i s basis with briefs. On A u g u s t 30, 1971, the d i s t r i c t court entered i t s findings of f a c t , conclusions of law, and judgment s e t forth in f u l l as follows: "FINDINGS OF FACT
"That during a l l the times herein pertinent p l a i n t i f f s and others similarly situated have been required to pay certain fees and furnish certain materials and supplies.
"That certain of these fees were required to be paid and certain of these materials were required t o be furnished f o r courses or projects t h a t are required by the defend- ant School District.
"That certain of these fees were required t o be paid and these materials were required to be furnished f o r courses and projects which a r e not required or f o r a c t i v i t i e s which are optional or extra curricular. "IV. "The items referred t o in paragraph I1 include, but are not restricted t o , work books, towel usage fees f o r man- datory physical education, f i e l d trip fees i f the f i e l d
t r i p i s part of a regular class project, current event magazines .
"Items referred t o in paragraph 111. include, b u t are not limited t o , school pictures of a l l varieties, activity tickets, year books, breakage fees, musical instrument rental, summer school fees, driver education fees, athletic health and accident insurance, assessments for l o f t or damaged school books. "VI . "Mi t h regard t o general use paper, pencils and notebooks, i t i s the finding of the Court that their usage varies greatly from individual t o individual and that their con- sumption i s n o t directly related to required courses. "Upon these findings of f a c t , the Court now makes the following: "CONCLUSIONS OF LAW
"All those items referred t o in paragraph 11. are necessary as a part of a free, public education.
" I t i s not necessary for a free, public education that the defendant furnish the items mentioned in paragraph 111. of the Findings of Fact. "Now the Court being fully advised as t o the facts of the matter and the applicable law, and having made i t s findings of f a c t and conclusions of 1a herein. w "IT IS HEREBY ORDERED, A J D E AND DECREED that those items DU G D mentioned in paragraph 11. of the Findings of Fact be fur- nished by the defendant School Board t o a l l students with- o u t charge. A1 1 other a r t i c l e s will be the responsibility of the individual students. " Thereafter plaintiffs filed exceptions and proposed additions t o these findings which were not granted. Plaintiffs now appeal from the final judgment to the extent i t does not g r a n t them full re1 i e f . The single issue presented for review i s whether defendant school d i s t r i c t can lawfully impose, directly or indirectly, fees or charges of any kind i n respect t o courses and activities within i t s control. P l a i n t i f f ' s basic position i s twofold: (1 ) that the legislature
has not granted school boards the power t o impose such fees and charges and without such s t a t u t o r y power school boards have no authority t o do so; (2) the Montana Constitution, Art. XI, Sec. 1 requires the l e g i s l a t u r e t o e s t a b l i s h and maintain a "general , uniform and thorough system of publ i c , f r e e , common schools" which precludes a school board from imposing fees or charges of any kind f o r school courses and a c t i v i t i e s . The t h r u s t of defendant school d i s t r i c t ' s contention, on the other hand, i s t h a t school boards a r e granted broad authority by s t a t u t e which encompasses the power t o impose the fees and charges here involved. That c o n s t i t u t i o n a l l y , a f r e e publ i c education simply means " t u i t i o n f r e e " a s f a r a s required courses a r e concerned, and does not prohibit fees and charges f o r optional, extra c u r r i c u l a r , o r e l e c t i v e courses and a c t i v i t i e s . The school d i s t r i c t a l s o points out t h a t no pupil i s denied attendance o r par- t i c i p a t i o n by reason of nonpayment of f e e s , and t h a t waiver of payment is granted i n cases of economic hardship. Finally, the school d i s t r i c t contends t h a t the fees charged enable i t t o provide a higher q u a l i t y education than would otherwise be possible. Before proceeding t o a discussion of the legal principles involved, a more thorough understanding of the fees and charges imposed by the school d i s t r i c t i s necessary. From kindergarten through grade three fees from $2 t o $5.50 per year a r e imposed f o r reading materials and workbooks, and charges of 20 t o 25 cents a r e imposed f o r f i e l d t r i p s . In grades four through s i x fees of $3.25 per year a r e charged f o r reading materials and workbooks; fees from 20 t o 35 cents a r e imposed f o r most f i e l d t r i p s w i t h $1.90 i n the f i f t h grade and $6.50 i n the s i x t h grade being charged f o r conservation f i e l d t r i p s ; a musical instrument rental f e e of 50 cents per month is imposed, and a $5.00 summer music t u i t i o n f e e is charged. In grades seven, eight and nine the following fees a r e imposed: $1 .OO per year f o r a current events paper i n Social Studies; $1 -00 i n English f o r a
s p e l l i n g book; $2.00 f o r materials i n Shop; 50 cents per month f o r rental of musical instruments; and $5.00 f o r summer music t u i t i o n . In grade nine a charge i n Shop f o r the actual costs of materials used supplants the f l a t $2.00 charge, and a summer school t u i t i o n f e e of $10.00 i s charged. In grades t e n , eleven and twelve the f e e s and charges vary somewhat depending on which of t h e two public high schools the pupil attends. In grade ten a t Great F a l l s High School the following f e e s a r e imposed: Basic Business workbooks $3.30; Personal Record Keeping workbooks $3.30. A t Russel 1 High School the fees are: Physical Education $1 .OO towel f e e and $3.00 suit fee; Personal Record Keeping workbooks $1 $25; French workbooks $1.00. In both high schools there i s a musical instrument rental f e e of 50 cents per month; a $10.00 f e e f o r d r i v e r education; a $5.00 t u i t i o n f e e f o r summer music; and a $10.00 t u i t i o n f e e f o r summer school. In grade eleven a t Great F a l l s High School the following f e e s a r e imposed: Personal typing workbooks $1.50; Bookkeeping workbooks $5.50; Busi- ness Data Processing workbook $3.50. A t Russell High School the f e e s are: Bookkeeping workbooks $4.55; Chemistry notebook $1.25; French workbook $3 -00; Sheet Metal & Power Mechanics materials $3.00; Electronics Technician $2.00. In both high schools there i s a 50 cents per month charge f o r musical instru- ment r e n t a l , a $5.00 t u i t i o n f e e f o r s u m e r music, and a $10.00 t u i t i o n f e e f o r summer school. A t Great Falls High School i n grade twelve t h e r e is a $3.50 charge f o r Office Machines workbook and 80 cent charge f o r an Office Education work- book. A t Russell High School the following f e e s a r e imposed: Typing work- book $2.00; Office Machines workbook $2.25; Shorthand workbook $1.60; and $2.00 f o r Drafting o r Electronics Technician. In both high schools there i s a $3.00 charge f o r Shop; 50 cents per month f o r musical instrument r e n t a l ; $5.00 t u i t i o n f o r summer music; and $10.00 t u i t i o n f o r summer school. In a l l grades pupils furnish t h e i r own pencils, paper, e r a s e r s , note- books, ballpoint o r fountain pens, glue, crayons and similar materials and
supplies. In Junior High School both boys and g i r l s furnish t h e i r own gym clothing and towels, and there i s a $1.00 a c t i v i t y fee. In Senior High School there is a charge of $6.00 f o r an a c t i v i t y t i c k e t ; $7.00 f o r a Year- book; and $9.00 i n a t h l e t i c fees f o r equipment and insurance. The interrogatories and answers do not disclose which courses a r e required f o r graduation and which a r e optional o r e l e c t i v e . However, i t i s c l e a r t h a t the pupil has a considerable freedom of choice i n the courses he pursues i n high school, subject only t o a t o t a l c r e d i t requirement f o r grad- uation i n addition t o c e r t a i n required individual courses. All courses i n elementary and junior high school carry c r e d i t toward graduation, while i n senior high school a l l courses carry c r e d i t toward graduation except Driver Education. The various fees and charges involved i n the i n s t a n t case can be roughly c l a s s i f i e d i n the fol 1owing categories: (1 ) personal school suppl i e s such as pencils, pens, e r a s e r s , crayons, glue and s i m i l a r supplies required t o be furnished by the student and his parents; ( 2 ) charges f o r workbooks and materials used i n s p e c i f i c courses; ( 3 ) charges f o r a t h l e t i c equipment and towel usage in mandatory physical education courses; (4) a t h l e t i c equip- ment, towel usage and insurance charges f o r i n t e r s c h o l a s t i c a t h l e t i c s ; ( 5 ) musical instrument rental fees f o r band and orchestra c l a s s e s ; (6) t u i t i o n fees f o r summer school and summer music; (7) Driver's Education charges; (8) miscel 1aneous charges f o r extracurricular a c t i v i t i e s such a s a c t i v i t y t i c k e t s , yearbooks, pictures and the 1i ke. P l a i n t i f f s ' argument is t h a t the school cannot impose fees o r charges f o r anything, whether required o r e l e c t i v e , t h a t is encompassed i n the con- s t i t u t i o n a l requirement of a "thorough system of pub1 i c , f e e , common school s " . According t o p l a i n t i f f s , t h i s would encompass a l l categories referred t o i n the foregoing paragraph and would prohibit the school d i s t r i c t from collecting o r attempting t o c o l l e c t any such fees o r charges, and from requiring or
attempting t o require students o r t h e i r parents t o furnish any supplies, equipment, o r materials necessary t o take part in any courses o r a c t i v i t i e s w i t h i n the scope of the authority of the school d i s t r i c t . A a corollary s proposition, p l a i n t i f f s contend t h a t i n addition t o constitutional prohibi- t i o n s , there i s no s t a t u t o r y authority granted t o school d i s t r i c t s t o impose any such f e e s or charges. Defendant School D i s t r i c t , on the other hand, contends t h a t the f r e e , public education required by the Montana Constitution means " t u i t i o n f r e e " mandatory courses and does not apply t o incidental fees and charges f o r elec- t i v e or optional courses o r extracurricular a c t i v i t i e s . The school d i s t r i c t contends t h a t the Constitution was n o t intended t o prohibit i t from furnish- ing b e t t e r educational opportunities and training than m i n i m u m standards would require which i s possible only through imposition of nominal fees f o r optional, extracurricular, and nonrequired courses and a c t i v i t i e s . The school d i s t r i c t asks us t o construe the constitutional requirement accordingly. A t the o u t s e t w find i t necessary t o decide this case on the basis e of Montana Constitutional requirements and not upon s t a t u t o r y grounds. The school year involved i n the i n s t a n t case i s the 1970-1971 school year. Midway i n t h a t school year, the Montana l e g i s l a t u r e repealed and recodified s t a t e . school laws e f f e c t i v e January 26, 1971 (Ch. 5, 1971 Session Laws) Accord- ingly, two d i f f e r e n t and t o some extent contradictory s e t s of s t a t u t e s apply t o d i f f e r e n t parts of the school year furnishing no d e f i n i t i v e answer t o the issue the p a r t i e s have raised herein. Accordingly, we must look t o Montana Consti tutional requirements. A r t i c l e XI, Sec. 1 of the Montana Constitution contains t h e pertinent constitutional requirement: " I t shall be the duty of the l e g i s l a t i v e assembly of Montana t o e s t a b l i s h and maintain a general, uniform and thorough system of pub1 i c , f r e e , common schools. " The meaning of a "thorough system" of public schools has been
interpreted by t h i s Court i n McNair v. School D i s t r i c t No. 1 , 87 Mont. 423, 288 P. 188. In holding t h a t school t r u s t e e s had the authority t o s e l l bonds f o r the construction of a gymnasium and outdoor a t h l e t i c f i e l d a t Great Falls High School, this Court s t a t e d i n relevant part: "What, then, constitutes a 'thorough' system of education i n our public schools? By i t s voluntary a c t , t h e s t a t e has assumed the function of education primarily resting upon the parents, and by laws on compulsory education has decreed t h a t the custody of children be yielded t o the s t a t e during the major portion of t h e i r waking hours f o r f i v e days i n the week, and, usually, nine months i n the year. In doing so, the s t a t e is not actuated by motives of philanthropy o r c h a r i t y , but f o r the good of the s t a t e , and, f o r what i t expends on education, i t expects substan- t i a l returns i n good citizenship. With t h i s f a c t in mind, i t is c l e a r t h a t the solemn mandate of the Constitution i s not discharged by the mere training of the mind; mentality without physical we1 1-being does not make f o r good c i t i z e n - ship--the good c i t i z e n , the man o r woman who is of the g r e a t e s t value t o the s t a t e , i s the one whose every f a c u l t y i s developed and a1 e r t . "Education may be p a r t i c u l a r l y directed t o e i t h e r mental, moral o r physical powers o r f a c u l t i e s , b u t i n i t s broadest and best sense i t embraces them a l l . (Mount Hermon Boys ' School v. G i l l , 145 Mass. 139, 13 N.E. 354.) To educate is t o 'lead f o r t h , bring up * * * t o develop physically,' and education is ' t h e t o t a l i t y of the qua1 i t i e s acquired through individual instruction and social t r a i n i n g , which f u r t h e r happiness, efficiency and capacity f o r social service of the educated." And again McNai r continues : " * * * The common schools a r e doorways opening i n t o chambers of science, a r t , and the 1earned professions, as well as i n t o f i e l d s of industrial and commercial ac- tivities." The recent Cal i f o r n i a case, Serrano v. P r i e s t , 96 Cal .Rptr. 601, 487 P.2d 1241, 1248, is persuasive concerning the meaning o f a general and uniform system of public, f r e e , common schools as used i n Art. XI, Sec. 1 , of our Constitution. This case has national significance i n the e n t i r e area of school financing. I t challenged the method of financing schools by local property taxes where 1egis1 a t i v e c l a s s i f i c a t i o n s discriminate on the basis of wealth. In t h a t case, the court rejected the argument t h a t the constitutional requirement f o r a "system of ( f r e e ) common schools" compels uniform education
expenditures. The court said: "Ue have held t h a t the word 'system,' as used in a r t i c l e IX, section 5, implies a 'unity of purpose, as well as an e n t i r e t y of operation; and the direction t o the l e g i s l a t u r e t o provide "a" system of common schools means - system, which shall be applicable t o a l l the one . common school s w i t h i n the s t a t e ' (Citing case. ) However, we have never interpreted the constitutional provision t o require equal school spending; w have ruled only e t h a t the educational system must be uniform i n terms of the prescribed course of study and education progression from grade t o grade. (Piper v. Big Pine School D i s t r i c t . . (1 924) 193 Cal 664, 669, 673, 226 P . 926). " See also Rodriguez v. San Antonio Independent School D i s t r i c t (W.D. Texas) 337 Fed.Supp. 280. This language i n Serrano goes t o the crux of the problem in the i n s t a n t case. Any d e f i n i t i o n of a "thorough system of publ i c , f r e e , common schoo1s"'must take into consideration the wide d i v e r s i t y of spending through- out Montana's school d i s t r i c t s . Certain course: and a c t i v i t y opportunities in Cascade County School D i s t r i c t No. 1 are not available i n other Montana d i s - tricts. A long as the individual student i s not deprived of equal access t o s educational courses and a c t i v i t i e s reasonably re1 ated t o recognized academic and educational goals of the p a r t i c u l a r school system, the constitutional man- date i s not violated. Idaho has construed i t s constitutional requirement of f r e e publ i c schools t o extend t o the "necessavy elements of any school ' s a c t i v i t y " . Paulson v. Minidoka County School D i s t r i c t No. 331, 93 Idaho 469, 463 P.2d 935. Mich- igan has construed i t s constitutional requirement t o mean t h a t f r e e schools means "without cost o r charge" and extends t o any school a c t i v i t y or function constituting an "integral fundamental part of the eJementary and secondary education" in the publ i c schools. Bond v. Pub1 i c Schools of Ann Arbor, 383 Mich. 693, 178 N.W.2d 484. In conformity with these holdings, the d i s t r i c t court has construed our constitutional provision t o mean t h a t mandatory school courses and a c t i v i - t i e s must be furnished f r e e of charge as p a r t of the constitutional requirement
of a f r e e , public education. Conversely, the d i s t r i c t court held t h a t school courses and projects which a r e optional o r a c t i v i t i e s t h a t are optional o r extra c u r r i c u l a r a r e not covered by the constitutional requirement and t h a t fees and charges may be assessed f o r these. Thus the d i s t r i c t court s e t u p what may be termed a "required course or a c t i v i t y " t e s t . While we consider t h a t the d i s t r i c t court was on the r i g h t track i n i t s approach, i t s choice of language i n i t s findings of f a c t and conclusions of law i s not correct. The fundamental d i f f i c u l t y w i t h the d i s t r i c t c o u r t ' s 1anguage 1i e s i n the use of the phrase "courses o r projects t h a t a r e required by the defendant School D i s t r i c t " f o r which fees may not be charged, on the one hand, and "courses and projects which a r e not required o r f o r a c t i v i t i e s which a r e optional o r extracurricular" f o r which fees may be charged on the other hand. J u s t what is meant by a "required course o r a c t i v i t y " as d i s t i n - guished from an "optional o r extracurricular course or a c t i v i t y " ? For example, a t the high school level c e r t a i n s p e c i f i c courses a r e required f o r graduation and no d i f f i c u l t y i s presented i n finding t h a t these f a l l i n the "required course" category. B u t what about the large number of courses offered, no one of which i s s p e c i f i c a l l y required f o r graduation, b u t from which the student must amass a given number of c r e d i t s i n order t o s a t i s f y the t o t a l educational requirement f o r graduation? Courses fa1 1ing in t h i s category a r e required in the sense t h a t a given number must be taken in order t o s a t i s f y the t o t a l educational requirements f o r graduation, b u t they a r e optional i n the sense t h a t the student may e l e c t which s p e c i f i c courses t o take i n order t o s a t i s f y such t o t a l education requirements. W believe t h a t the controlling principle o r t e s t should be s t a t e d e in t h i s manner: I s a given course o r a c t i v i t y reasonably related t o a recog- nized academic and educational goal of the p a r t i c u l a r school system? If i t i s , i t c o n s t i t u t e s part of the f r e e , public school system commanded by Art. XI, Sec. 1 of the Montana Constitution and additional fees o r charges cannot be levied, d i r e c t l y o r i n d i r e c t l y , against the student or his parents. If
i t i s not, reasonable fees o r charges may be imposed. In this manner a degree of f l e x i b i l i t y is insured. The school d i s - t r i c t may t h u s define i t s own academic and educational goals and the courses and a c t i v i t i e s t h a t will carry c r e d i t toward graduation w i t h i n the l i m i t s provided by law. A t the same time, the individual student has a freedom of choice, w i t h i n t h e l i m i t s of the educational framework so established, t o pursue a course of study directed toward business, a trade, college prepara- tory, commercial, s e c r e t a r i a l , o r some other goal without regard t o h i s financial a b i l i t y t o pay additional fees o r charges. In applying the foregoing principle o r t e s t , we wish t o make i t c l e a r t h a t i t applies only t o courses and a c t i v i t i e s offered by the school d i s t r i c t during the regular academic year as a part of normal school func- tions. I t has no application t o supplementary instruction offered by the school d i s t r i c t on a private basis during the summer recess o r a t special times. The l a t t e r a r e both h i s t o r i c a l l y and l o g i c a l l y not included i n the f r e e pub1 i c school system required by our Constitution. Accordingly, reason- able fees and charges may be imposed therefor. Finally the school d i s t r i c t argues t h a t i t s system of waiver of f e e s and charges f o r welfare recipients and i n other cases of economic hardship s a t i f i e s the constitutional requirement, and allows i t t o o f f e r a higher qua1 i t y of education by offering additional courses and a c t i v i t i e s beyond the minimum required which would otherwise be f i n a n c i a l l y impossible. We observe t h a t the defense of waiver has nothing t o do w i t h the constitutional issue. Constitutional requirements are a matter of r i g h t and cannot be s a t i s - f i e d by t h e i r denial i n the f i r s t instance and subsequent waiver of the e f f e c t s of such denial. The waiver system may well furnish a financial answer, but c l e a r l y i s not legally j u s t i f i a b l e . T h i s may appear t o some t o be an insig- n i f i c a n t matter unworthy of serious discussion, but t o a child o r h i s parents f i n a n c i a l l y unable t o pay the additional fees and charges imposed by a f r e e ,
public school system any waiver procedure is a degrading experience. While we do not disturb the specific findings of the district court, we do by this opinion modify the 1 anguage as heretofore set forth. We recognize that the findings are not specific as to each fee discussed in answers to interrogatories, but hold that the specifics are better left to administrative determination under the guide1 ines set forth. Accord- ingly, we affirm the judgment as modified herein.
Associate Justice