Hartzell v. Connell

• Citation: 35 Cal.3d 899,201 Cal.Rptr. 601,679 P.2d 35
• Parties: , 679 P.2d 35, 17 Ed. Law Rep. 241 Barbara HARTZELL et al., Plaintiffs and Appellants, v. Margaret A. CONNELL et al., Defendants and Respondents. L.A. 31701.
• Decision Date: 20 April 1984
• Court: California Supreme Court

Page 601

201 Cal.Rptr. 601

35 Cal.3d 899, 679 P.2d 35, 17 Ed. Law Rep. 241

Barbara HARTZELL et al., Plaintiffs and Appellants, v. Margaret A. CONNELL et al., Defendants and Respondents.

L.A. 31701.

Supreme Court of California,

In Bank.

April 20, 1984.

Kirk Ah Tye, Channel Counties Legal Services Assn., Santa Barbara, for plaintiffs and appellants.

Thomas P. Anderle, Santa Barbara, for defendants and respondents.

BIRD, Chief Justice.

May a public high school district charge fees for educational programs simply because they have been denominated "extracurricular"?

I.

The Santa Barbara High School District (District) offers a wide variety of extracurricular activities, ranging from cheerleading to madrigal singing, and from archery to football. Many of these activities are of relatively recent origin. For example, in 1956, Santa Barbara High School fielded six athletic teams while today there are thirty-eight.

Prior to the 1980-1981 school year, any student could participate in these activities free of charge. The programs were financed by a combination of District contributions (mostly state aid and local tax revenues), ticket sales, and fundraising activities conducted by the constituent high schools.

In the spring of 1980, the District school board (Board) decided to cut its budget by $1.1 million. This decision reflected a drop in revenues due to the combined effects of inflation, declining enrollment, and the adoption of Proposition 13. ¹ Among the items to be reduced was the District's contribution to the high school extracurricular programs.

The Board considered two plans for adapting the programs to fit its reduced budget. The first plan called for a major cut in interscholastic athletic competition, including the reduction of the high school program from over 30 teams to only 8 and the elimination of interscholastic competition at the ninth grade level. Under this plan, the surviving programs were to remain open to all students free of charge.

The second plan provided for a less extensive cut in athletic competition--elimination of the ninth grade program only. To make up the difference, it proposed to raise money by charging students fees for participation in dramatic productions, musical performances, and athletic competition.

The Board chose the second option. Under the plan finally adopted, students are required to pay $25 for each athletic team in which they wish to participate, and $25 per category for any or all activities in each of the following four categories: (1) dramatic productions (e.g., plays, dance performances, and musicals); (2) vocal music groups (e.g., choir and madrigal groups); (3) instrumental groups (e.g., orchestra, marching band, and related groups such as the drill team and flag twirlers); and (4) cheerleading groups.

Thus, a student who desires to play football in the fall and tennis in the spring, in addition to participating in a dramatic production, must pay $75. A more musically inclined student, who plays an instrument, sings in a group, and performs in a musical, also pays $75.

None of the affected activities yield any credit toward graduation. However, each is connected to a credit course. For example, students enrolled in vocal music courses for credit spend much of their in-class time rehearsing for the noncredit performances. Similarly, students enrolled in the varsity football class spend much of their class time preparing for interscholastic competition. The trial court found that students could derive "some" value from the credit courses without participating in the noncredit performances. All parties are agreed that the activities are "important educational experiences" for the students.

According to the District's stated policy, students are given the option of participating in the credit course but not the fee-paid performance, or vice versa. Outside the drama program, no student chose either of these options during the first six months of the plan's operation. ² In the drama program, students were permitted to participate in backstage aspects of the production without paying the fee. A number of students enrolled in the course and did not pay the fee, but the record does not reveal how many of these students elected to participate in the backstage activities which were open to them as nonfeepayers.

The teachers of the credit courses also supervise the noncredit performances. District policy prohibits them from considering the performances in calculating grades. ³ Each of the affected activities is supervised by school personnel, nearly all of whom are teachers. The teachers are compensated by one of two methods: extra pay (in the form of a "stipend") or "release time." The stipends are paid partly from general school revenues (derived mostly from taxes) and partly from fees. Under the "release time" policy, teachers are "released" from one hour of regular teaching duties for each hour spent supervising extracurricular activities.

The activities are sponsored by the schools and their respective student bodies. School personnel handle preparations, including arrangements for facilities and ticket sales.

In an attempt to ensure that the fees would not prevent any students from participating, the District has implemented a fee-waiver program. Upon a showing of financial need, a student may obtain a "scholarship" to participate without paying the fee. The standard of need is similar to that of the free lunch program. ⁴

The fee-waiver policy has been supplemented with an outreach program. Teachers and coaches are asked to inform their principals of any students who, though expected to participate in an activity, do not do so. These students are then interviewed by the principal to determine whether the fee prevented them from participating.

The District's three high schools granted a total of seventy-seven waivers. Four students were denied waivers, but were permitted to delay payment. There was no evidence that any student was prevented from participating because of the fees.

Shortly before the start of the 1980-1981 school year, Barbara Hartzell, a taxpayer with two children in the public schools, and the Coalition Opposing Student Fees, a grouping of community organizations, ⁵ filed this taxpayers' action against the District, various school officials, and the members of the Board. Plaintiffs sought declaratory and injunctive relief, claiming that defendants' fee program violates the "free school" and equal protection guarantees of the California Constitution (Cal. Const., arts. IX, § 5, IV, § 16, I, § 7), that it is barred by title 5, section 350, of the California Administrative Code, and that it is preempted by state law.

The trial court rejected all of plaintiffs' claims, primarily on the ground that none of the activities covered by the fee program are "integral" to credit courses.

II.

The California Constitution requires the Legislature to "provide for a system of common schools by which a free school shall be kept up and supported in each district ...." (Cal. Const., art. IX, § 5, emphasis added.) This provision entitles "the youth of the State ... to be educated at the public expense." (Ward v. Flood (1874) 48 Cal. 36, 51.)

Plaintiffs assert that the imposition of fees for educational extracurricular activities violates the free school guarantee. They are correct.

The first question raised by plaintiffs' challenge is whether extracurricular activities fall within the free education guaranteed by section 5. California courts have not yet addressed this issue. The reported decisions from other jurisdictions reveal two distinct approaches.

One approach restricts the free school guarantee to programs that are "essential to the prescribed curriculum." (Smith v. Crim (1977) 240 Ga. 390, 391, 240 S.E.2d 884; see also Paulson v. Minidoka County School District No. 331 (1970) 93 Idaho 469, 472, 463 P.2d 935.) Under this view, the right to an education does not extend to activities that are "outside of or in addition to the regular academic courses or curriculum of a school." (Paulson, ibid., fn. omitted.) Accordingly, it has been held that students have no right to participate in extracurricular activities. (Smith v. Crim, supra, 240 Ga. at p. 391, 240 S.E.2d 884; see also Granger et al. v. Cascade Co. Sch. Dist. (1972) 159 Mont. 516, 499 P.2d 780. ⁶ )

The second approach holds that the free school guarantee extends to all activities which constitute an "integral fundamental part of the elementary and secondary education" or which amount to " 'necessary elements of any school's activity.' " (Bond v. Ann Arbor School District (1970) 383 Mich. 693, 702, 178 N.W.2d 484; see also Moran v. School District # 7, Yellowstone County (D.Mont.1972) 350 F.Supp. 1180, 1184.) Courts applying this approach have held that "the right to attend school includes the right to participate in extracurricular activities." (Moran, ibid.) In particular, courts have struck down extracurricular activities fees as unconstitutional. (See Bond v. Ann Arbor School District, supra, 383 Mich. at p. 698, 178 N.W.2d 484; Pacheco v. Sch. Dist. No. 11 (1973) 183 Colo. 270, 516 P.2d 629. ⁷ )

To determine which, if either, of these approaches is consistent with California's free school guarantee, this court must examine the role played by education in the overall constitutional scheme. Because the nature of the free school concept has rarely been addressed by the courts, it will be necessary to explore its underpinnings in some depth.

The free school guarantee was enacted at the Constitutional Convention of 1878-1879. Also adopted was article IX, section 1, which proclaims that "[a] general diffusion of knowledge and intelligence [is] essential to the preservation of the rights and liberties of the people ...." (Emphasis added.) Joseph W. Winans, chairperson for the convention's Committee on Education, elaborated: "Public education forms the basis of...