State ex rel. Bartmess v. Board of Trustees of School Dist. No. 1

• Decision Date: 18 September 1986
• Docket Number: No. 85-540,L,No. 1,1,85-540
• Citation: 43 St.Rep. 1713,726 P.2d 801,223 Mont. 269
• Parties: , 35 Ed. Law Rep. 564 STATE of Montana, ex rel., Bob BARTMESS, Pat Bartmess, Mary K. Bartsch, Julie Cloninger, Nita Creach, Gary A. Hull, Ed Kibler, Diana Kibler, et al., Relators and Appellants, v. BOARD OF TRUSTEES OF SCHOOL DISTRICT NO. 1 and High School Districtewis & Clark County, et al., Respondents and Respondents.
• Court: Montana Supreme Court

Page 801

726 P.2d 801

223 Mont. 269, 35 Ed. Law Rep. 564

STATE of Montana, ex rel., Bob BARTMESS, Pat Bartmess, Mary K. Bartsch, Julie Cloninger, Nita Creach, Gary A Hull, Ed Kibler, Diana Kibler, et al. Relators and Appellants, v. BOARD OF TRUSTEES OF SCHOOL DISTRICT NO. 1 and High School District No. 1, Lewis & Clark County, et al Respondents and Respondents.

No. 85-540.

Supreme Court of Montana.

Submitted Aug. 25, 1986.

Decided Sept. 18, 1986.

Robert T. Cummins argued and Randy K. Dix argued, Helena, for relators and appellants.

Smith Law Firm, Chadwick H. Smith argued for School Dist. No. 1 & Bd. of Trustees, Helena, for respondents.

Goetz, Madden & Dunn; James H. Goetz, Bozeman, for amicus curiae Helena School Dist. No. 1, et al.

Leaphart Law Firm, Helena, for amicus curiae Bd. of Public Educ.

Charles Erdmann, Helena, for amicus curiae Montana School Bd. Ass'n.

Gough, Shanahan, Johnson & Waterman, Ronald Waterman argued, Helena, for amicus curiae Montana High School Ass'n.

WEBER, Justice.

This is an appeal of a summary judgment of the District Court for Lewis and Clark County which upheld the requirement that Helena high school students participating in extracurricular activities maintain a 2.0 grade average. We affirm.

Relators appeal and raise the following issue: Did the District Court err as a matter of law in holding that under the United States and Montana Constitutions participation in existing extracurricular activities is not a fundamental right?

Relators are citizens and taxpayers of Lewis and Clark County and parents of students enrolled in the two Helena high schools. They object to the rule adopted by respondents requiring a student to maintain a 2.0, or "C", grade average for the preceding nine weeks in order to participate in extracurricular activities in the following nine week grading period. Extracurricular activities are those which do not earn credit toward graduation, including athletics, band, choir, speech, drama, cheerleading, drill team, student council, and holding class office. The 2.0 rule does not apply to special education students or students with learning disabilities.

The Helena high schools are members of the Montana High School Association (MHSA). The MHSA requires a 1.0, or "D", grade average for participation in extracurricular activities. Its regulations permit member schools to adopt more stringent policies. The National Collegiate Athletic Association (NCAA) requires a minimum grade point average of 2.0 to participate at the college level in practice, regular season competition and athletically related financial aid during the first academic year.

Respondents adopted the 2.0 rule as an incentive for students who desire to participate in extracurricular activities. The 2.0 rule is a higher standard than that needed for graduation from Helena high schools, which is a 1.0 grade average in required courses. Respondents admit the 2.0 policy is not based on any scientific or statistical studies showing academic improvement by students following the adoption of such a policy.

Relators brought an action in District Court requesting injunctive relief and a declaratory judgment that the 2.0 rule was unconstitutional. The complaint alleged violation of the equal protection and equal educational opportunity clauses of the Montana Constitution. Following briefing and summary judgment motions by both parties, the District Court ruled in favor of respondents. The District Court found the 2.0 rule to be "a reasonable, fair, equitable and non-discriminatory policy, promulgated for the purpose of implementing the constitutional and statutory mandated educational goals of the school district. In its application, the requirement does not violate any constitutionally protected rights of these Relators, State or Federal ..."

Amicus briefs were filed by several parties, some of whom addressed wider issues than the one now before us. We are not ruling upon the issue of whether or not the right to education itself is a fundamental right. We are not ruling upon whether the failure to offer any extracurricular activities may result in a constitutional deprivation, nor whether extracurricular activities are in any way an indispensable component of the basic system of free quality public education. We are not in any way considering or ruling upon the question of funding education in Montana, including the funding of extracurricular activities, and are not considering any of the contentions being made that equal educational opportunity may require some specific types of funding. None of these issues is before us.

The issue appealed concerns the standard of review under which the 2.0 rule will be considered. Equal protection analysis traditionally involves one of two standards. A state action which burdens a fundamental right is subject to strict scrutiny and must be based upon a compelling state interest. An action which infringes upon a right which is not fundamental must only be rationally related to a legitimate government objective. A third middle-tier level of constitutional analysis has been recently recognized in Montana. See Butte Community Union v. Lewis (Mont.1986), 712 P.2d 1309, 43 St.Rep. 65.

The relators contend that the right to participate in extracurricular activities is fundamental and that the strict scrutiny standard therefore applies. The United States Supreme Court has held that education is not a fundamental right guaranteed by the federal Constitution. San Antonio School District v. Rodriguez (1973), 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16. Based on that holding, we conclude that participation in extracurricular activities is not a fundamental right under the U.S. Constitution. However, that does not preclude a finding that the right is fundamental under Montana's Constitution.

The relators cite Moran v. School District # 7, Yellowstone County (D.Mont.1972), 350 F.Supp. 1180. In that case, Federal District Judge Murray said this Court had recognized extracurricular activities as an "integral part of the total educational process." The court there overturned a school rule which denied a married high school student the right to participate in extracurricular activities. Since that case involved the right to marriage, there was a separate ground for heightened constitutional scrutiny. While we agree that extracurricular activities are part of the educational process, the case is not authority because of the marriage aspect.

The Moran decision was based on language in a case which relators also cited, McNair v. School Dist. No. 1 (1930), 87 Mont. 423, 428, 288 P. 188, 190.

Under the heading "Education," our Constitution declares that "it shall be the duty of the legislative assembly of Montana to establish and maintain a general, uniform and thorough system of public, free, common schools." ... [I]t is clear that the solemn mandate of the Constitution is not discharged by the mere training of the mind; mentality without physical well-being does not make for good citizenship--the good citizen, the man or woman who is of the greatest value to the state, is the one whose every faculty is developed and alert.

That case arose out of a taxpayer's objection to the construction of a gymnasium and athletic field. This Court held the school board had been granted the authority to provide such facilities. The 'solemn mandate of the Constitution' discussed in McNair has been reworded in our 1972 Constitution, Art. X, Sec. 1(3): "The legislature shall provide a basic system of free quality public elementary and secondary schools." The emphasis in McNair was that education should attempt to improve mental, physical, and moral powers.

This Court recently recognized that not all constitutionally important rights are fundamental rights. The holding in Butte Community Union was that a right to welfare, which is lodged in our State Constitution, "is an interest whose abridgement requires something more than a rational relationship to a governmental objective." However, we concluded that the right to welfare was not a fundamental right, and stated:

In order to be fundamental, a right must be found within Montana's Declaration of Rights or be a right "without which other constitutionally guaranteed rights would have little meaning." In the Matter of C.H. (Mont.1984), 683 P.2d 931, 940, 41 St.Rep. 997, 1007.

Butte Community Union, 712 P.2d at 1311. The right to welfare was not found within Montana's Declaration of Rights nor did we conclude it was a right without which other constitutionally guaranteed rights would have little meaning.

Participation in extracurricular educational activities is not found within Montana's Declaration of Rights. The second portion of the test, whether the right is one without which other constitutionally guaranteed rights would have little meaning, is more difficult and we conclude, is best addressed by an analysis of Montana's constitutional provisions as to education.

The McNair case demonstrates that physical and moral development are important aspects of education. The state has an important interest in seeing that its young citizens receive a basic quality education under Art. X, Sec. 1, Mont. Const. (1972): "It is the goal of the people to establish a system of education which will develop the full educational potential of each person." The provisions of Art. X demonstrate that there are constitutional rights and obligations which extend to all sides of the question of education. There is the right to equality of educational opportunity guaranteed to each person. There is the goal to establish a system of education which will develop the full educational potential of each person. There is a requirement that the State's educational goals recognize and preserve the cultural heritage of American Indians. The legislature is obligated to provide a basic system of free quality education. The state board of education is...