Kadrmas v. Dickinson Public Schools, 11262

Citation402 N.W.2d 897
Decision Date26 March 1987
Docket NumberNo. 11262,11262
Parties38 Ed. Law Rep. 766 Paula KADRMAS; Marsha Hall; Sarita Colton, a minor, by her next friend, Paula Kadrmas; Yvonne Hall, a minor, by her next friend, Marsha Hall; Howard Hall, a minor, by his next friend, Marsha Hall, Plaintiffs and Appellants, v. DICKINSON PUBLIC SCHOOLS; Ross Julson, in his capacity as Superintendent of the Dickinson Public Schools; Clarence Storseth, Nancy Johnson, Merry Johnston, Harold Krieg, Herb Herauf, in their capacity as members of the Dickinson School Board; Richard Rykowsky, in his capacity as Transportation Supervisor of the Dickinson Public Schools, Defendants and Appellees. Civ.
CourtUnited States State Supreme Court of North Dakota

North Dakota Legal Services, Inc., New Town, and Legal Assistance of North Dakota, Inc., Bismarck, for plaintiffs and appellants; argued by Duane Houdek. Appearance by Edward B. Reinhardt, Jr.

Freed, Dynes, Reichert & Buresh, Dickinson, for defendants and appellees; argued by George T. Dynes.

ERICKSTAD, Chief Justice.

This is an appeal from a district court judgment upholding, against constitutional attack, schoolbus fees charged by the Dickinson Public Schools (the School District). We affirm.

The School District offers schoolbus transportation to and from school for elementary level students residing more than three miles from the school and for high school students residing more than four miles from the school. For students to receive such transportation their parents must sign a contract agreeing to pay a fee to defray part of the cost. Plaintiffs Paula Kadrmas and Marsha Hall have children attending elementary school in Dickinson, and both families reside approximately sixteen miles from the school. Paula and Marsha refused to sign the School District's contract for schoolbus service for the 1985-86 school year; instead, they transported their children to and from school at costs to them which, the trial court found, "greatly exceed the bus fees charged by the Dickinson District."

During the period relevant to this case approximately 13 percent of the students were receiving schoolbus transportation. The fee charged by the School District for this service was $97.00 per school year for one student and $150.00 per school year for two students. This fee generated approximately 11 percent of the School District's total cost for providing the service. Approximately 89 percent of the total cost was provided to the School District from state and local tax revenues.

The plaintiffs filed this action against the School District seeking to enjoin collection of any fee for schoolbus transportation. The district court entered a judgment dismissing the action on its merits, and from that judgment the plaintiffs have filed this appeal.

Section 15-34.2-06.1, N.D.C.C., provides a limited authorization for school districts to charge for schoolbus service:

"The school board of any school district which has not been reorganized may charge a fee for schoolbus service provided to anyone riding on buses provided by the school district.... For schoolbus service started on or after July 1, 1981, the total fees collected may not exceed an amount equal to the difference between the state transportation payment and the local school district's cost for transportation during the preceding school year...."

The plaintiffs assert that the foregoing statute unconstitutionally authorizes fee charges for schoolbus services in violation of the mandate within Art. VIII, Sec. 2, N.D. Const., for a uniform system of free public schools:

"Section 2. The legislative assembly shall provide for a uniform system of free public schools throughout the state, beginning with the primary and extending through all grades up to and including schools of higher education, except that the legislative assembly may authorize tuition, fees and service charges to assist in the financing of public schools of higher education."

In Cardiff v. Bismarck Public School District, 263 N.W.2d 105 (N.D.1978), this court analyzed the language of Art. VIII, Sec. 2, N.D. Const., in holding that school districts are required to provide elementary school textbooks without charge:

"We must assume that the framers of the constitution made a deliberate choice of words which reflected or expressed their thoughts. The term 'free public schools' without any other modification must necessarily mean and include those items which are essential to education.

* * *

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"The word 'free' takes on its true and full meaning from the context in which it is used. There can be no doubt that the term means 'without charge or cost.' In the absence of any other showing we must conclude that the term was commonly understood by the people to mean 'without charge or cost.' Books and school supplies are a part of the education system. This is true whether we apply the necessary elements of the school's activities test or the integral part of the educational system test." 263 N.W.2d at 113.

The plaintiffs in this case urge us to construe Art. VIII, Sec. 2, N.D. Const., to require that school districts provide transportation for students to and from school without any fee or charge to the parents for such service.

In construing a constitutional provision we must undertake to ascribe to the words used that meaning which the people understood them to have when the constitutional provision was adopted. State ex rel. Sanstead v. Freed, 251 N.W.2d 898 (N.D.1977). In so doing, it is appropriate to consider contemporaneous and long-standing practical interpretations of the provision by the Legislature where there has been acquiescence by the people in such interpretations. Sanstead, supra; State ex rel. Linde v. Robinson, 35 N.D. 417, 421-422, 160 N.W. 514, 516-517 (1916). Section 148, of our original constitution adopted in 1889, the predecessor to Art. VIII, Sec. 2, N.D. Const., contained identical language mandating "a uniform system of free public schools." At that time there was no statutory provision requiring or authorizing school districts to provide student transportation or to compensate parents for transporting their children to and from school. Our statutory law remained silent with regard to school districts providing transportation or reimbursement for transporting students until 1903, when a law was enacted authorizing school boards to arrange and pay for student transportation under specified circumstances or when "petitioned by a majority of the district voters." 1903 N.D.Sess.Laws, Ch. 83, Secs. 3, 4. Section 15-34.2-06.1, N.D.C.C., specifically authorizing a limited schoolbus service charge by nonreorganized school districts, was first enacted in 1979. 1979 N.D.Sess.Laws, Ch. 229, Sec. 1.

The compulsory attendance law in effect in 1889, which required every parent to send school age children to a public school, exempted parents from that requirement where "no public school is taught for the time required, and within two miles by the nearest way to the home of such person within the school township." 1883 N.D.Sess.Laws, Ch. 44, Sec. 119. Although this provision was amended occasionally, it was not until 1971 that the Legislature entirely omitted distance between one's residence and the school as a basis for exemption from the compulsory attendance requirement. 1971 N.D.Sess.Laws, Ch. 158, Sec. 5. The compulsory attendance law was amended in 1907 to provide that the district school board, in districts with children residing beyond three miles from the school, "shall provide transportation for such children to and from school." From that time forward state law has in certain circumstances required and in other circumstances merely authorized school districts to participate in transporting or providing compensation for transporting students to and from school.

We do not believe that a detailed chronological recitation and analysis of the statutes relating to student transportation would be helpful in resolving the issue before us. Suffice it to say that our laws on this subject demonstrate a long-standing practice of state and school district involvement in student transportation. However, our laws also clearly demonstrate that the Legislature has never required that the state or school districts assume the entire responsibility or cost of transporting students. Although state and school district involvement in providing student transportation has been significant, the obligation of transporting students to and from school has been shared by the parents or other caretakers of the children, and the people of this state have acquiesced in sharing that responsibility from the first days of statehood to the present time. 1

Pursuant to Section 15-34.1-01, N.D.C.C., every parent, guardian, or other person having control of any educable child must "send or take such child to a public school" unless an exception applies. A substantively identical provision was in effect at the time our constitution was adopted in 1889. Revised Code 1889, Sec. 759. Section 14-09-08, N.D.C.C., places a duty upon parents to give a child "support and education suitable to the child's circumstances," and a substantively identical provision was likewise in effect in 1889. Revised Code 1889, Sec. 2779.

We believe the long-standing legislative practice of making student transportation a shared responsibility between school districts and parents provides some indication that the constitutional requirement of a "uniform system of free public schools" does not mandate free student transportation.

Such a conclusion is impliedly supported by this court's decision in Seiler v. Gelhar, 54 N.D. 245, 209 N.W. 376 (1926). The plaintiff parent in that case asserted that the constitutional mandate of a uniform system of free public schools required the school district to provide actual transportation for his child to and from school. The school district, having determined that it would be prohibitively expensive to provide...

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