Kaptein By and Through Kaptein v. Conrad School Dist., 96-490

• Citation: 251 Mont. 152,931 P.2d 1311
• Decision Date: 06 February 1997
• Docket Number: No. 96-490,96-490
• Parties: , 116 Ed. Law Rep. 435 Tami KAPTEIN, a minor child, By and Through her parents Kathy KAPTEIN and Marvin Kaptein, Plaintiffs and Appellants, v. CONRAD SCHOOL DISTRICT, State of Montana, Defendant and Respondent.
• Court: United States State Supreme Court of Montana

Page 1311

931 P.2d 1311

251 Mont. 152, 116 Ed. Law Rep. 435

Tami KAPTEIN, a minor child, By and Through her parents Kathy KAPTEIN and Marvin Kaptein, Plaintiffs and Appellants, v. CONRAD SCHOOL DISTRICT, State of Montana, Defendant and Respondent.

No. 96-490.

Supreme Court of Montana.

Submitted on Briefs Jan. 16, 1997.

Decided Feb. 6, 1997.

Cameron Ferguson; Hartelius, Ferguson, Baker & Kazda, Great Falls, for Plaintiffs and Appellants.

Ronald F. Waterman and Catherine M. Swift; Gough, Shanahan, Johnson & Waterman, Helena, for Defendant and Respondent.

Janice Frankino Doggett, Helena, for Amicus, Montana School Boards Association.

Elizabeth A. Kaleva, Helena, for Amicus, School Administrators of Montana.

Dennis Moreen, Helena, for Amicus, Montana Education Association.

Geralyn Driscoll, Helena, for Amicus, Office of Public Instruction.

Jock O. Anderson, Helena, for Amicus, Montana High School Association.

LEAPHART, Justice.

Kathy and Marvin Kaptein (Kapteins) are residents and taxpayers in Conrad, Montana. In October of 1995, the Kapteins filed suit in the Ninth Judicial District Court, Pondera County, asking the court to enter a judgment requiring that the Conrad School District Board of Trustees allow their 7th grade daughter, Tami, to participate in the public school sports programs. Tami was, and is, a student at the Conrad Christian School. The private school in which Tami is enrolled offers ski days and arranges for basketball practices and an intramural game. The Conrad area offers some additional athletic programs which Tami participates in, for example, soccer and softball. In addition, Tami seeks to play on the public school athletic teams for social purposes related to friendship and team camaraderie. Tami participated in the public school girls' sports program during the 1994-95 school year. This participation was without the approval of the Superintendent or the Board of Trustees. Her participation in the public school program was terminated upon discovery by the Board of Trustees. The Board of Trustees refused to allow Tami to further participate in the public school sports programs since the Board's policy limited participation to students enrolled full time in public school. The Kapteins contend that the school's policy is unconstitutional under the provisions of Article X, Section 1 of the Montana Constitution. ¹ On November 20, 1995 the District Court issued a preliminary injunction which allowed Tami to play 7th grade volleyball. Subsequently,

both parties moved for summary judgment. The District Court upheld the constitutionality of the Board's policy, granted summary judgment for the Conrad School District and dissolved the preliminary injunction. The Kapteins then sought an injunction pending appeal under Rule 40, Montana Rules of Appellate Procedure, which this Court denied. We affirm the District Court's grant of summary judgment.

DISCUSSION

The Kapteins based their constitutional argument on Article X, Section 1, of the Montana Constitution, which states:

It is the goal of the people to establish a system of education which will develop the full educational potential of each person. Equality of educational opportunity is guaranteed to each person of the state.

Citing our decision in State, ex rel., Bartmess v. Board of Trustees (1986), 223 Mont. 269, 726 P.2d 801, Kapteins contend that Tami has a constitutionally protected right to participate in public school extracurricular activities and that this Court should apply a middle-tier analysis in balancing Tami's right to participate against the governmental interests to be served by infringing that right. The School District takes the position that middle-tier analysis is not appropriate in this case and, even if middle-tier analysis were applied, the school's educational interests in permitting only students enrolled in the school district to participate in school-sponsored extracurricular activities outweighs any right that Tami may have to participate.

Our review of cases from other jurisdictions reveals no decisions, federal or state, which recognize a constitutional right of a nonenrolled student to participate in a public school sports program.

The United States Constitution, unlike the Montana Constitution, does not explicitly or implicitly guarantee a right to education. San Antonio Indep. School Dist. v. Rodriguez (1973), 411 U.S. 1, 35, 93 S.Ct. 1278, 1297-98, 36 L.Ed.2d 16. In keeping with the Rodriguez precedent, the federal courts have applied a rational relationship test to claims that private school students have been unconstitutionally excluded from participating in public school extracurricular activities. In Denis J. O'Connell High School v. Virginia High School League (1978), 581 F.2d 81, a parochial school sought admission to the Virginia High School League which regulates and governs all athletic, literary and debating contests between the public high schools in the state of Virginia. The private school contended that, in restricting membership to public high schools, the League, and thus the state, was violating equal protection. The Fourth Circuit held that, since there was no fundamental right or suspect classification involved, the classification would be subject to the rational relationship test. Denis J. O'Connell High School, 581 F.2d at 84. The court held that the classification was rationally related to the League's policy of limiting student transfers to defined geographic areas and of discouraging the recruiting of students for purposes of athletic competition. Since private schools in Virginia suffer no geographic limitation with respect to the areas from which they may draw students, the court held that admission of private schools into the League would undermine that policy. Denis J. O'Connell High School, 581 F.2d at 84-87. Accord Valencia v. Blue Hen Conference (D.Del.1979), 476 F.Supp. 809, 826 (holding that the public high school association's exclusion of private schools was supported by legitimate interests in preventing athletic recruiting and maintaining a competitive balance among schools within the association).

We note the following three decisions from foreign jurisdictions which address the question of whether a nonenrolled student has a right under state law to participate in public school courses or extracurricular activities.

In Swanson v. Guthrie Independent School Dist. No. I-1, et al. (D.Okla.1996), 942 F.Supp. 511, parents who were home schooling their daughter sought permission from the board of education to have their daughter attend the public school on a part-time basis. The board denied the request and adopted a policy that required all students enrolling in the Guthrie Public Schools to do so on a full-time basis. Swanson, 942 F.Supp. at 512. The parents challenged the policy on various grounds including a contention that the policy violated the child's constitutional right to attend public schools and her right to a free public education under the Oklahoma Constitution which provides constitutional guarantees of a "system of public schools ... open to all of the children of the state" as well as a "system of free public schools wherein all the children of the state may be educated." Swanson, 942 F.Supp. at 514. The court acknowledged that under Oklahoma law, home schooling is considered an alternative education option. The court concluded, however, that the parents were seeking to "judicially abrogate the equivalency requirement for home schooling and replace it with an absolute right to use public schools to supplement the home school education. [Citation omitted.] This the Court will not do." Swanson, 942 F.Supp. at 515. In rejecting the parents' contention that the Oklahoma Constitution gave them the right to choose public school courses on a piecemeal basis, the court said:

Plaintiffs have failed to provide any evidence that defendants have deprived Annie of her right to a free public education. Annie has always been and continues to be entitled to a free public education. Nor have Plaintiffs provided any support for their contention that they may "pick and choose" what courses Annie will take in the public schools. Oklahoma law is clear that the local boards of education have the power to "[m]aintain and operate a complete public school system of such character as the board of education shall deem best suited to the needs of the school district." Okla.Stat.Ann. tit. 70 § 5-117(A)(3) (West Supp.1995-96). The Oklahoma Legislature has also vested the State Board of Education with the authority to determine curricular standards for public schools. See Okla.Stat.Ann. tit. 70 § 11-103.6 (West Supp.1995-96) ("By February 1, 1991, the State Board of Education shall adopt curricular standards for instruction of students in the public schools of this state that are to be implemented not later than the 1993-94 school year."). In light of existing Oklahoma law, the Court finds Plaintiffs' reliance on School Board, District No. 18 of Garvin County v. Thompson, 24 Okla. 1, 103 P. 578 (1909) is misplaced. [Footnote omitted.] The Court also declines to adopt Plaintiffs' strained interpretation of Oklahoma law to create a right to a free part-time public education.

Swanson, 942 F.Supp. at 514.

In Thomas v. Allegany County Board of Education (Md.Ct.Spec.App.1982), 443 A.2d 622, 626, the appellate court applied heightened scrutiny to the claims of private school students who requested to participate in an all-county music program offered to full-time students enrolled in the public schools. The court applied the "compelling state interest" test to determine whether the board's rule limiting participation to school district enrollees violated the equal protection clauses of the state or federal constitution. Thomas, 443 A.2d at 626-27. The court utilized the heightened scrutiny test because the private school students claimed that their exclusion infringed upon...