Nagy v. Evansville-Vanderburgh School Corp.

• Citation: 808 N.E.2d 1221
• Decision Date: 28 May 2004
• Docket Number: No. 82A01-0308-CV-299.,82A01-0308-CV-299.
• Parties: Frank NAGY, on behalf of himself, his children, Weston Nagy and Jordan Nagy, and those similarly situated, and Sonja Brackett, on behalf of herself, her children, Cory Brashear and Cameron Brackett, and those similarly situated, Appellants/Cross-Appellees-Plaintiffs, v. EVANSVILLE-VANDERBURGH SCHOOL CORPORATION, Appellee/ Cross-Appellant-Defendant.
• Court: Court of Appeals of Indiana

808 N.E.2d 1221

Frank NAGY, on behalf of himself, his children, Weston Nagy and Jordan Nagy, and those similarly situated, and Sonja Brackett, on behalf of herself, her children, Cory Brashear and Cameron Brackett, and those similarly situated, Appellants/Cross-Appellees-Plaintiffs, v. EVANSVILLE-VANDERBURGH SCHOOL CORPORATION, Appellee/ Cross-Appellant-Defendant.

No. 82A01-0308-CV-299.

Court of Appeals of Indiana.

May 28, 2004.

Jacquelyn Bowie Suess, Kenneth J. Falk, Indiana Civil Liberties Union, Indianapolis, IN, Attorneys for Appellants.

Patrick A. Shoulders, Robert L. Burkart, Ziemer Stayman Weitzel & Shoulders, LLP, Evansville, IN, Attorneys for Appellee.

OPINION

SULLIVAN, Judge.

The Appellants/Cross-Appellees in this case, Frank Nagy, on behalf of himself and his children Weston and Jordan Nagy, and Sonja Brackett, on behalf of herself and her children Cory Brashear and Cameron Brackett, and those similarly situated ("the Parents"), challenge the trial court's grant of summary judgment in favor of the Appellee/Cross-Appellant, the Evansville-Vanderburgh School Corporation ("EVSC") on the Parents' claim that the EVSC's policy of charging students a certain fee violates Article 8, Section 1 of the Indiana Constitution. In its cross-appeal, the EVSC challenges the trial court's grant of summary judgment in favor of the Parents on their claim that the EVSC's policy violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

We reverse and remand.

The relevant facts are substantially undisputed. Beginning with the 2002-2003 school year, the EVSC imposed a twenty-dollar student activity fee upon students in kindergarten through twelfth grade. The EVSC School Board imposed this fee at the recommendation of the teacher's union and the EVSC, which worked together to find a solution to the EVSC's budget deficit without raising taxes. In 2002, the EVSC had incurred a budget deficit of $2,300,000, and for 2003, the projected budget deficit was $5,500,000. Approximately $1,500,000 of the 2002 deficit was the result of the State's failure to provide funds which had been anticipated, and the remainder of the deficit was the result of increased costs in the EVSC's standard operations. The EVSC is required by State law to have a balanced budget. The fee, along with State funds and local property tax revenues are deposited into the EVSC's general fund, which is used to fund school expenses. The EVSC does not maintain a specific object number or function number to track what the money collected as a result of the fee is used to pay for.

Nevertheless, the EVSC claims that the fee is used to pay for the following expenses: (1) the coordinator of student services; (2) elementary school counselors; (3) media specialists, formerly known as librarians; (4) school nurses; (5) alternative education; (6) the police liaison program; and (7) extra-curricular activities, which includes athletic programs, the drama program, the music program, academic programs, and speech and debate programs.

The fee was assessed against all students, regardless of whether they were eligible to participate in the reduced or free lunch and textbook programs. If the parents of a student fail to pay the fee, the parents are notified that their bill will be referred to a law firm for collection and that attorneys fees of up to $100 will be charged regardless of whether a collection suit is actually brought against them. After the filing of the current action, and by agreement of the parties, the EVSC has decided not to initiate any collection proceedings until a final judgment has been rendered in the present case.

Frank Nagy is the parent of two children enrolled in EVSC schools. On October 4, 2002, Mr. Nagy filed a class action complaint for declaratory and injunctive relief. On October 18, 2002, the complaint was amended by the addition of Sonja Brackett as the named representative of a putative subclass. Ms. Brackett's children were eligible in the 2002-2003 school year for the free or reduced school lunch and textbook programs. The amended complaint asserted two claims for relief: (1) that the imposition of the fee violates Article 8, Section 1 of the Indiana Constitution, and (2) that the fee violates the substantive due process rights guaranteed by the Fourteenth Amendment to the United States Constitution.

The EVSC filed a motion to dismiss the Parents' due process claim on November 27, 2002. On December 10, 2002, the parties filed an agreed entry as to certification of the class, which the trial court approved. On January 16, 2003, before the trial court acted on the motion to dismiss, the Parents moved for summary judgment. The EVSC filed a cross-motion for summary judgment on March 3, 2003. On April 21, the trial court granted the EVSC's motion to dismiss the Parents' due process claim. The Parents filed a motion to reconsider this dismissal on May 2, 2003.

Thereafter, on June 23, 2003, the trial court granted summary judgment to the EVSC upon the claim brought under Article 8, Section 1, but granted summary judgment to the subclass, concluding that imposing the fee upon those who qualified for the reduced or free school lunch and textbook programs violated substantive due process.¹ Because the trial court had earlier granted the motion to dismiss the due process claim, the Parents filed a motion to correct error, to which the EVSC objected. In granting the Parents' motion to correct error, the trial court certified the sub-class relative to the due process claim. On August 11, 2003, the Parents filed a notice of appeal, and on August 18, 2003, the EVSC also filed a notice of appeal.

Summary judgment

When reviewing a grant or denial of a motion for summary judgment, we stand in the shoes of the trial court. Cox v. Town of Rome City, 764 N.E.2d 242, 245 (Ind.Ct. App.2002), reh'g denied. We do not weigh the evidence, but rather we consider the facts in the light most favorable to the non-moving party. Id. at 246. Summary judgment is appropriate only if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Id. (citing Ind. Trial Rule 56(C)). A genuine issue of material fact exists when there is a dispute, or when undisputed facts are capable of supporting conflicting inferences, about an issue which would dispose of the litigation. Id. at 245-46. Once the moving party demonstrates, prima facie, that there are no genuine issues of material fact as to any determinative issue, the burden shifts to the non-moving party to come forward with contrary evidence. Id. at 246. We may sustain the judgment upon any theory supported by the designated evidence. Id. Cross-motions for summary judgment do not alter our standard of review. Id.

I Article 8, Section 1 of the Indiana Constitution

In their appeal, the Parents challenge the trial court's grant of summary judgment in favor of the EVSC upon the Parents' claim that the EVSC's imposition of the fee violates Article 8, Section 1 of the Indiana Constitution, which reads:

"Knowledge and learning, generally diffused throughout a community, being essential to the preservation of a free government; it shall be the duty of the General Assembly to encourage, by all suitable means, moral, intellectual, scientific, and agricultural improvement; and to provide, by law, for a general and uniform system of Common Schools,²wherein tuition shall be without charge, and equally open to all." (emphasis supplied).

According to the Parents, the fee amounts to a charge for tuition, which is violative of the constitutional provision in question. Our task is to determine what is meant by the phrase "wherein tuition shall be without charge."

We analyze questions arising under the Indiana Constitution by examining the language of the text in the context of the history surrounding its drafting and ratification, the purpose and structure of our constitution, and case law interpreting the specific provisions. Indiana Gaming Comm'n v. Moseley, 643 N.E.2d 296, 298 (Ind.1994). The task of interpreting a particular provision of the Indiana Constitution is a search for the common understanding of both those who framed it and those who ratified it. Bayh v. Sonnenburg, 573 N.E.2d 398, 412 (Ind.1991). In placing a construction upon a constitution or any clause or part thereof, we should look to the history of the times and examine the state of things existing when the constitution or any part thereof was framed and adopted in order to ascertain the old law, the mischief, and the remedy. Id.

The only Indiana case which directly deals with the meaning of "tuition" within Article 8, Section 1 is Chandler v. South Bend Cmty. Sch. Corp., 160 Ind.App. 592, 312 N.E.2d 915 (1974). In Chandler, the Third District of this court was faced with a challenge to the constitutionality of charging students a textbook rental fee. The plaintiffs claimed that charging for textbooks violated the free tuition provision of Article 8, Section 1. The court concluded:

"We can find no basis for interpreting the word `tuition,' to include textbooks used in public schools of the State. Black's Law Dictionary defines tuition as `The act or business of teaching the various branches of learning.' Webster's Third New International Dictionary adds `... the act of teaching: the services or guidance of a teacher: ... the price of or payment for instruction.' Neither definition states or implies that the word entails textbooks. Nor does the case law interpreting constitutional mandates of free tuition similar to that in Article 8, Section 1, indicate a contrary result. See Rheam v. Bd. of Regents of University of Oklahoma (1933), 161 Okl. 268, 18 P.2d 535, 538 and State ex rel. Priest v. Regents of University of Wisconsin (1882), 54 Wis. 159, 11 N.W. 472, 473." Chandler, 160 Ind.App. at 601, 312 N.E.2d

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