Hartzell v. Connell (1984) 35 Cal. 3d 899, 201 Cal. Rptr. 601; 679 P. 2d 35


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Hartzell v. Connell (1984) 35 Cal.3d 899 , 201

Cal.Rptr. 601; 679 P.2d 35

[L.A. No. 31701. Supreme Court of California. April 20, 1984.]

BARBARA HARTZELL et al., Plaintiffs and Appellants, v. MARGARET A. CONNELL et al.,

Defendants and Respondents

(Opinion by Bird, C. J., with Broussard and Reynoso, JJ., concurring. Separate concurring

opinion by Mosk, J. Separate concurring opinion by Grodin, J. Separate opinion by Kaus, J.,

concurring in the judgment. Separate concurring opinion by Bird, C. J. Separate dissenting

opinion by Richardson, J.)


Kirk Ah Tye, M. Carmen Ramirez, Moises Vazquez, Stephen P. Wiman and Ignacio S. Cota for

Plaintiffs and Appellants.

Palley & Palley, David B. Palley, Thomas M. Griffin and Roger D. Wolfertz as Amici Curiae on

behalf of Plaintiffs and Appellants.

Thomas P. Anderle for Defendants and Respondents.

Robert G. Walters, Christian M. Keiner, Walters, Bukey & Shelburne, Biddle, Walters & Bukey,

Breon, Galgani, Godino & O'Donnell, Keith V. Breon, Robert A. Galgani, Richard J. Tomoda,

John H. Larson, County Counsel (Los Angeles), and Nancy O'Hara, Deputy County Counsel, as

Amici Curiae on behalf of Defendants and Respondents.



May a public high school district charge fees for educational programs simply because they have

been denominated "extracurricular"? [35 Cal.3d 902]


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


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. fn. 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. [35 Cal.3d 903] 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. fn. 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. fn. 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. [35 Cal.3d


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. fn. 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, fn. 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.


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, italics added.) [35 Cal.3d 905] This provision entitles "the youth of the State ... to be educated

at the public expense." (Ward v. Flood (1874) 48 Cal. 36, 51.)

[1a] 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; see also Granger et al. v. Cascade Co. Sch. Dist. (1972)

159 Mont. 516 [499 P.2d 780]. fn. 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, 41 A.L.R.3d 742]; 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.) [35 Cal.3d 906] In particular, courts have struck down extracurricular

activities fees as unconstitutional. (See Bond v. Ann Arbor School District, supra, 383 Mich. at p.

698; Pacheco v. Sch. Dist. No. 11 (1973) 183 Colo. 270 [516 P.2d 629]. fn. 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 ...." (Italics

added.) Joseph W. Winans, chairperson for the convention's Committee on Education,

elaborated: "Public education forms the basis of self-government and constitutes the very corner

stone of republican institutions." (Debates and Proceedings, Cal. Const. Convention 1878-1879,

p. 1087 [hereafter Proceedings].) fn. 8 In support of section 1, delegate John T. Wickes argued

that "a liberal education ... breaks down aristocratic caste; for the man who has a liberal

education, if he has no money, if he has no wealth, he can stand in the presence of his fellowmen

with the stamp of divinity upon his brow, and shape the laws of the people ...." (Proceedings,

at p. 1088.)

This theme runs like a unifying thread through the writings of our forefathers. In 1786, Thomas

Jefferson wrote from France, then a monarchy: "I think by far the most important bill in our whole

code is that for the [35 Cal.3d 907] diffusion of knowledge among the people. No other sure

foundation can be devised for the preservation of freedom, and happiness. ... Preach, my dear

Sir, a crusade against ignorance; establish and improve the law for educating the common

people. Let our countrymen know that the people alone can protect us against these evils [of

kings, nobles, and priests]." (Jefferson, Letter to George Wythe, in The Portable Thomas

Jefferson (Peterson edit. 1979) pp. 399-400.)

John Swett, California's most prominent free school advocate at the time section 5 was adopted,

warned: "Our destruction, should it come at all, will be ... [f]rom the inattention of the people to the

concerns of their government .... I fear that they may place too implicit confidence in their public

servants and fail properly to scrutinize their conduct .... Make them intelligent, and they will be

vigilant; give them the means of detecting the wrong, and they will apply the remedy." (Quoted in

Cloud, The Story of California's Schools (194?) p. 20.) Without education for all, a majority of the

people would be ¶ in the words of Horace Mann ¶ "the vassals of as severe a tyranny, in the form

of capital, as the lower classes of Europe are bound to in the form of brute force." (Mann, Twelfth

Annual Report, in Educational Ideas in America: A Documentary History (Rippa edit. 1969) p.


Perhaps the most eloquent expression of the free school idea came not from a political leader or

educator, but from the poet, Ralph Waldo Emerson: "We have already taken, at the planting of

the Colonies, ... the initial step, which for its importance might have been resisted as the most

radical of revolutions, thus deciding at the start the destiny of this country, ¶ this, namely, that the

poor man, whom the law does not allow to take an ear of corn when starving, nor a pair of shoes

for his freezing feet, is allowed to put his hand into the pocket of the rich, and say, You shall

educate me, not as you will, but as I will: not alone in the elements, but, by further provision, in

the languages, in sciences, in the useful and in elegant arts." (Emerson, Education, in

Educational Ideas in America: A Documentary History, supra, at p. 176.)

The contribution of education to democracy has a political, an economic, and a social dimension.

As this court has previously noted, education prepares students for active involvement in political

affairs. (Serrano v. Priest (1971) 5 Cal.3d 584, 607-608 [96 Cal.Rptr. 601, 487 P.2d 1241, 41

A.L.R.3d 1187] [hereafter, Serrano I].) fn. 9 Education stimulates an interest in the political

process and [35 Cal.3d 908] provides the intellectual and practical tools necessary for political

action. Indeed, education may well be "the dominant factor in influencing political participation

and awareness." (San Antonio School District v. Rodriguez (1973) 411 U.S. 1, 114, fn. 72 [36

L.Ed.2d 16, 90, 93 S.Ct. 1278] (dis. opn. of Marshall, J.).) With the rise of the electronic media

and the development of sophisticated techniques of political propaganda and mass marketing,

education plays an increasingly critical role in fostering "those habits of open-mindedness and

critical inquiry which alone make for responsible citizens, who, in turn, make possible an

enlightened and effective public opinion" (Wieman v. Updegraff (1952) 344 U.S. 183, 196 [97

L.Ed. 216, 225, 73 S.Ct. 215] (conc. opn. of Frankfurter, J.)). Without high quality education, the

populace will lack the knowledge, self-confidence, and critical skills to evaluate independently the

pronouncements of pundits and political leaders. Moreover, education provides more than

intellectual skills; it also supplies the practical training and experience ¶ from communicative skills

to experience in group activities ¶ necessary for full participation in the "uninhibited, robust, and

wide-open" debate that is central to our democracy (New York Times Co. v. Sullivan (1964) 376

U.S. 254, 270 [11 L.Ed.2d 686, 701, 84 S.Ct. 710, 95 A.L.R.2d 1412]).

Not only does education provide skills useful in political activity, it also prepares individuals to

participate in the institutional structures ¶ such as labor unions and business enterprises ¶ that

distribute economic opportunities and exercise economic power. Education holds out a "bright

hope" for the "poor and oppressed" to participate fully in the economic life of American society.

(Serrano I, supra, 5 Cal.3d at p. 609.) And, it is "an essential step in providing the disadvantaged

with the tools necessary to achieve economic self-sufficiency." (San Antonio School District v.

Rodriguez, supra, 411 U.S. at p. 115, fn. 74 [36 L.Ed.2d at p. 91] (dis. opn. of Marshall, J.).)

Finally, education serves as a "unifying social force" among our varied population, promoting

cohesion based upon democratic values. (Serrano I, supra, 5 Cal.3d at p. 608; see also Ambach

v. Norwick (1979) 441 U.S. 68, 77 [60 L.Ed.2d 49, 56, 99 S.Ct. 1589].) The public schools bring

together members of different racial and cultural groups and, hopefully, help them to live together

"'in harmony and mutual respect.'" (Washington v. Seattle School Dist. No. 1 (1982) 458 U.S.

457, 473 [73 L.Ed.2d 896, 909, 102 S.Ct. 3187, 3196].)

Viewed in light of these constitutionally recognized purposes, the first of the two tests described

above is insufficient to ensure compliance with California's free school guarantee. That approach

determines whether a given program falls within the guarantee not by assessing its actual

educational [35 Cal.3d 909] value, but by deferring to a school board's decision on whether or

not to offer it for formal, academic credit. fn. 10 Under this test, a for-credit program would fall

within the guarantee, while a noncredit program with identical content ¶ and equal value in

fulfilling the constitutionally recognized purposes of education ¶ could be offered for a fee. fn. 11

The second approach, on the other hand, does not sever the concept of education from its

purposes. It focuses not upon the formalities of credit, but upon the educational character of the

activities in question.

It can no longer be denied that extracurricular activities constitute an integral component of public

education. Such activities are "'generally recognized as a fundamental ingredient of the

educational process.'" (Moran v. School District #7, Yellowstone County, supra, 350 F.Supp.

1180, 1184; Kelley v. Metropolitan County Bd. of Ed. of Nashville, etc. (M.D.Tenn. 1968) 293

F.Supp. 485, 493 [hereafter, Kelley I].) fn. 12 They are "[no] less fitted for the ultimate purpose of

our public schools, to wit, the making of good citizens physically, mentally, and morally, than the

study of algebra and Latin ...." (Alexander v. Phillips (1927) 31 Ariz. 503 [254 P. 1056, 1059].)

In a variety of legal contexts, courts have emphasized the vital importance of student participation

in educational extracurricular programs. For example, [35 Cal.3d 910] in Kelley v. Metropolitan

Cty. Bd. of Ed. (M.D.Tenn. 1980) 492 F.Supp. 167 (hereafter, Kelley II), the court struck down a

school desegregation plan in part because it made no accommodation for students who desired

to participate in after-school extracurricular activities, which constitute an "essential component of

an education." (Id., at p. 196.) Similarly, the court in Lee v. Macon County Board of Education

(M.D.Ala. 1968) 283 F.Supp. 194 invalidated Alabama's system of segregation in interscholastic

athletics partly because such activities are "integral" to Alabama's system of public education.

(Id., at p. 197.) And, in Kelley I, supra, 293 F.Supp. 485, a school board's suspension, without

formal notice or hearing, of a high school's athletic programs was held to have violated students'

due process rights in part because such programs constitute "a fundamental ingredient of the

educational process." (Id., at p. 493.)

Further, in McGrath v. Burkhard (1955) 131 Cal.App.2d 367 [280 P.2d 864], the court upheld a

school board's assignment of teachers to supervise extracurricular activities, reasoning that such

supervision is "an important part of [a teacher's] duties" because of the "great importance" of

educating students in, among other things, principles of justice, fair play, and good citizenship.

(Id., at p. 376.) fn. 13 Expenditures for such items as band uniforms have been upheld as

"necessary" for instructional purposes. (Kay County Excise Board v. Atchison, T. & S.F. Ry. Co.

(1939) 185 Okla. 327 [91 P.2d 1087, 1088-1089]; see also Alexander v. Phillips, supra, 254 P. at

p. 1059 [approving construction of facility for interscholastic athletics on the ground that athletic

competition is just as important to the purposes of public education as is instruction in academic


Finally, in cases determining the scope of school-related tort liability and insurance coverage,

courts have held that "school-sponsored activities, such as sports, drama, and the like," though

denominated "'extracurricular,' ... nevertheless form an integral and vital part of the educational

program." (Feaster v. Old Security Life Ins. Co. (1965) 87 N.J.Super 339 [209 A.2d 354, 357],

affd. (1966) 91 N.J.Super. 120 [219 A.2d 340]; see also Boulet by Boulet v. Brunswick Corp.

(1983) 126 Mich.App. 240, 241 [336 N.W.2d 904, 905] ["A physical education program, as part of

the general [35 Cal.3d 911] curriculum or as an extracurricular activity, is in furtherance of and an

integral part of the total public education provided to students" (italics added)].)

In addition to the particular skills taught, group activities encourage active participation in

community affairs, promote the development of leadership qualities, and instill a spirit of collective

endeavor. These results are directly linked to the constitutional role of education in preserving

democracy, as set forth in article IX, section 1, and elaborated in Serrano I, supra, 5 Cal.3d at

pages 607-609.

Accordingly, this court holds that all educational activities ¶ curricular or "extracurricular" ¶ offered

to students by school districts fall within the free school guarantee of article IX, section 5. Since it

is not disputed that the programs involved in this case are "educational" in character, they fall

within that guarantee. fn. 14

Defendants argue, however, that the fee-waiver policy for needy students satisfies the

requirements of the free school guarantee. They suggest that the right "to be educated at the

public expense" (Ward v. Flood, supra, 48 Cal. at p. 51) amounts merely to a right not to be

financially prevented from enjoying educational opportunities. This argument contradicts the plain

language of the Constitution.

In guaranteeing "free" public schools, article IX, section 5 fixes the precise extent of the financial

burden which may be imposed on the right to an education ¶ none. (See Granger et al. v.

Cascade Co. Sch. Dist., supra, 159 Mont. at pp. 528-529; Bond v. Ann Arbor School District,

supra, 383 Mich. at p. 700.) fn. 15 A school which conditions a student's participation in

educational activities upon the payment of a fee clearly is not a "free school."

The free school guarantee reflects the people's judgment that a child's public education is too

important to be left to the budgetary circumstances and decisions of individual families. It makes

no distinction between needy and nonneedy families. Individual families, needy or not, may value

education more or less depending upon conflicting budget priorities. As John Swett, the "father of

the California public school system," recognized in [35 Cal.3d 912] 1863, "[i]f left to their own

unaided efforts, a great majority of the people will fail through want of means to properly educate

their children; another class, with means at command, will fail through want of interest. The

people then, can be educated only by a system of Free Schools, supported by taxation, and

controlled directly by the people." (Swett, Duties of the State to Public Schools, reprinted in Swett,

History of the Public School System of California (1876) p. 110, italics added.)

The free school guarantee lifts budgetary decisions concerning public education out of the

individual family setting and requires that such decisions be made by the community as a whole.

Once the community has decided that a particular educational program is important enough to be

offered by its public schools, a student's participation in that program cannot be made to depend

upon his or her family's decision whether to pay a fee or buy a toaster.

Nor may a student's participation be conditioned upon application for a special waiver. The

stigma that results from recording some students as needy was recognized early in the struggle

for free schools. Thaddeus Stevens once declared, in response to an 1835 proposal that teachers

keep a list of "poor scholars": "Sir, hereditary distinctions of rank are sufficiently odious; but that

which is founded on poverty is infinitely more so. Such a law should be entitled 'an act for

branding and marking the poor, so that they may be known from the rich and proud.'" (Stevens, A

Plea for Free Schools, in Educational Ideas in America: A Documentary History, supra, at p. 188.)

Defendants' extracurricular programs are not truly "free" even to those students who are eligible

for waivers. "[T]o a child or his parents financially unable to pay the additional fees and charges

imposed by a free, public school system any waiver procedure is a degrading experience."

(Granger et al. v. Cascade Co. Sch. Dist., supra, 159 Mont. at p. 529 [holding that a waiver plan

cannot render a school fee constitutional].)

Finally, defendants warn that, if the fees are invalidated, many school districts may be forced to

drop some extracurricular activities. They argue that invalidation would ¶ in the name of the free

school guarantee ¶ produce the anomalous result of reducing the number of educational

opportunities available to students.

This court recognizes that, due to legal limitations on taxation and spending (see ante, fn. 1),

school districts do indeed operate under difficult financial constraints. However, financial hardship

is no defense to a violation of the free school guarantee. In Piper v. Big Pine School Dist. (1924)

193 Cal. 664 [226 P. 926], for example, this court applied the free school guarantee to invalidate

a school district's policy of excluding Native American [35 Cal.3d 913] children from the public

schools. The school district protested that the infusion of Indian children would overstrain local

finances. In rejecting that argument, this court noted: "The economic question is no doubt an

important matter to the district, but it may very properly be addressed to the legislative

department of the state government." (Id., at p. 674.)

Perhaps, in the view of some, public education could be more efficiently financed by peddling it

on the open market. Under the California Constitution, however, access to public education is a

right enjoyed by all ¶ not a commodity for sale. Educational opportunities must be provided to all

students without regard to their families' ability or willingness to pay fees or request special

waivers. This fundamental feature of public education is not contingent upon the inevitably

fluctuating financial health of local school districts. A solution to those financial difficulties must be

found elsewhere ¶ for example, through the political process.

In conclusion, this court holds that the imposition of fees for educational activities offered by

public high school districts violates the free school guarantee. The constitutional defect in such

fees can neither be corrected by providing waivers to indigent students, nor justified by pleading

financial hardship.


[2a] Plaintiffs also argue that the fee requirement violates title 5, section 350 of the California

Administrative Code (hereafter, title 5, section 350). That section provides: "A pupil enrolled in a

school shall not be required to pay any fee, deposit, or other charge not specifically authorized by

law." (Italics added.)

Both the plain language of the regulation and the constructions supplied by the Legislative

Counsel and the Department of Education indicate that title 5, section 350 bars school districts

from charging fees for educational extracurricular activities. fn. 16 The Legislative Counsel has

interpreted title 5, section 350 to bar fees for school-sponsored extracurricular activities such as

school athletics and drama activities. (Ops.Cal.Legis. Counsel, No. 18293 (Oct. 13, 1982) School

Fees: Extracurricular Activities.) In reaching this conclusion, the Legislative Counsel explained

that although a governing board may not be required to provide extracurricular programs, "once

the programs are provided, the governing board has no authority to impose a [35 Cal.3d 914]

fee, charge or deposit for the programs." (Id., at p. 4; see also Ops.Cal.Legis. Counsel, No.

17036 (Nov. 16, 1979) School Fees, pp. 1-5 [title 5, section 350 prohibits fees for musical

instruments used in extracurricular band, special uniforms used in extracurricular activities, club

dues, and extracurricular athletic teams].)

Similarly, the Department of Education has taken the position that title 5, section 350 prohibits

membership fees as a condition of participation in "athletic or other activities" sponsored by a

school. (Cal. Dept. of Ed., Fees, Deposits, and Charges in the Public Schools of California,

Grades K-12 and Adult Schools (1979) pp. 1-2.) [3] The construction given to a regulation by the

officials charged with its enforcement is entitled to great weight. (Westfall v. Swoap (1976) 58

Cal.App.3d 109, 114 [129 Cal.Rptr. 750]; Intoximeters, Inc. v. Younger (1975) 53 Cal.App.3d 262,

271 [125 Cal.Rptr. 864].)

[4a] , [5a] Defendants counter with two arguments. First, they contend that title 5, section 350, if

interpreted to bar the defendants' fee program, would exceed its constitutional and statutory

bases of authority.

The state Board of Education (State Board) promulgated title 5, section 350 over 40 years ago

pursuant to its statutory duty to "adopt rules and regulations not inconsistent with the laws of this

state ... for the government of the ... day and evening secondary schools." (Former Pol. Code, §

1519, now Ed. Code, § 33031. fn. 17) A note appended to title 5, section 350 cites article IX,

section 5 of the Constitution (the "free school" guarantee) as its specific basis of authority.

[6] In determining whether a specific administrative rule falls within the coverage of a delegated

power, "the sole function of this court is to decide whether the department reasonably interpreted

the legislative mandate." (Ralphs Grocery Co. v. Reimel (1968) 69 Cal.2d 172, 176 [70 Cal.Rptr.

407, 444 P.2d 79]; see also Morris v. Williams (1967) 67 Cal.2d 733, 737 [63 Cal.Rptr. 689, 433

P.2d 697]; Credit Ins. Cen. Agents Assn. v. Payne (1976) 16 Cal.3d 651, 657 [128 Cal.Rptr. 881,

547 P.2d 993].)

[5b] Regulations concerning school fee policies clearly fall well within the scope of the delegated

power to adopt regulations "for the government ... of the day and evening secondary schools." (§

33031.) Hence, the only question is whether a ban on fees for noncredit activities represents a

"reasonable interpretation" of a constitutional or legislative mandate. [4b] This court's holding that

the constitutional "free school" guarantee (Cal. [35 Cal.3d 915] Const., art. IX, § 5) prohibits the

fees (ante, at p. 913) obviously nullifies any contention that section 350's prohibition against fees

for educational extracurricular activities is not mandated by law. [5c] However, even if article IX,

section 5 is assumed not to bar the fees, it is clear that title 5, section 350's ban on fees falls well

within the State Board's range of discretion.

To hold, as defendants urge, that administrative prohibitions are valid only when statutory or

constitutional provisions independently prohibit the activities at issue would be to eliminate any

role for administrative discretion. Here, the State Board ¶ pursuant to its "general power" to adopt

rules for the government of school districts (San Francisco v. Hyatt (1912) 163 Cal. 346, 352 [125

P. 751]) ¶ has determined that the broad constitutional and legislative policy fn. 18 in favor of free

schools requires a prohibition on fees for extracurricular activities. No statute or constitutional

provision suggests that the State Board is compelled to adopt a narrow, credit-centered view of

education. Rather, the precise relation of noncredit activities to the policy in favor of free public

education has properly been left to the expert judgment of the State Board.

[7a] Second, defendants suggest that Education Code section 35160, fn. 19 the "permissive code

section," effectively nullifies title 5, section 350. Prior to the effective date of section 35160, local

school districts possessed little, if any, power to act without express legislative or administrative

authorization. (See City of Oakland v. Oakland etc. Sch. Dist. (1956) 138 Cal.App.2d 406, 409

[291 P.2d 1001].) Section 35160 provides local districts with more flexibility. Defendants contend

that their fee program represents a proper exercise of the discretion granted to school districts by

that section.

However, the flexibility provided by section 35160 is not without limits. School districts are

authorized only to "initiate and carry on any program, activity, or ... otherwise act in any manner

which is not in conflict with ... any law ...." (Italics added.) [35 Cal.3d 916]

[2b] The District's fee program is in clear conflict with title 5, section 350. (See ante, at pp. 913-

914.) [7b] Nevertheless, defendants argue that the program is authorized because title 5, section

350 is only an administrative regulation, not a "law" within the meaning of section 35160.

Under defendants' construction, section 35160 would work a radical change in the relationship

between local school districts and the State Board. If valid administrative regulations were not

"laws" under section 35160, the section would authorize local school districts to act in derogation

of all regulations promulgated by the State Board. Such a construction of section 35160 would

effectively repeal not only section 33031, which directs the State Board to adopt regulations for

the government of the secondary schools, but also section 35014, which commands district

boards to "prescribe and enforce rules not inconsistent with ... the rules prescribed by the State

Board of Education ...."

This far-reaching result is not supported either by the legislative history or by subsequent

interpretations of section 35160. In 1972, California voters approved a constitutional amendment

authorizing the Legislature to permit school districts "to initiate and carry on any programs,

activities, or to otherwise act in any manner which is not in conflict with the laws and purposes for

which school districts are established." (Cal. Const., art. IX, § 14.) In the voters' pamphlet which

accompanied the initiative, the Legislative Counsel explained that the provision would enable the

Legislature to relieve itself of the necessity of granting specific authorization for every activity

carried out by local school districts. (Ballot Pamp., Proposed Amends. to Cal. Const. with

arguments to voters, Gen. Elec. (Nov. 7, 1972) p. 14.) Neither the proposed amendment nor the

Legislative Counsel's analysis said anything about repealing existing regulations. (Id., at p. 14 &

appen. p. 6.) fn. 20

Section 35160, enacted by the Legislature in 1976, embodies language substantially similar to

that of the initiative. (See ante, fn. 19.) Like the initiative, it evidences neither an intent to repeal

existing regulations nor an intent to deprive the State Board of its power to promulgate binding

regulations. On the contrary, it appears that the Legislature intended that validly enacted

regulations would remain in effect.

This conclusion accords with the position taken by the Legislative Counsel and the Department of

Education. The Legislative Counsel has advised that [35 Cal.3d 917] title 5, section 350 operates

to prohibit fees for extracurricular activities notwithstanding section 35160. (Ops.Cal.Legis.

Counsel, No. 18293 (Oct. 13, 1982) School Fees: Extracurricular Activities, pp. 3-4;

Ops.Cal.Legis. Counsel, No. 17036 (Nov. 16, 1979) School Fees, p. 3; cf. Ops.Cal.Legis.

Counsel, No. 17529 (undated) School Fees, p. 3.) Similarly, the Department of Education has

expressed its opinion that "[title 5, section] 350 is a 'law'" and thus is not superseded by section

35160. (Cal. Dept. of Ed., Fees, Deposits, and Charges in the Public Schools of California,

Grades K-12 and Adult Schools (1979) p. 6.)

[5d] In short, title 5, section 350 represents a valid exercise of the general regulatory authority

delegated to the State Board under section 33031. [7c] The enactment of the permissive code

section (§ 35160) did nothing to diminish this authority. [2c] In accordance with the plain language

of title 5, section 350 and the constructions given it by the Legislative Counsel and the California

Department of Education, this court concludes that defendants' fee program is prohibited by title

5, section 350.


[1b] , [2d] In conclusion, the imposition of fees as a precondition for participation in educational

programs offered by public high schools on a noncredit basis violates the free school guarantee

of the California Constitution and the prohibition against school fees contained in title 5, section

350 of the California Administrative Code. fn. 21

The judgment is reversed.

Broussard, J., and Reynoso, J., concurred.


I concur in the judgment and in most of the analysis of the majority opinion. However, there are

certain limitations implicit in the rationale to which I cannot wholly subscribe.

Despite the sugar-coating of inspirational quotations from Jefferson, Emerson, John Swett,

Thaddeus Stevens and Horace Mann, the repeated emphasis of the majority opinion is on

pragmatism, i.e., the demonstrable benefit that education produces for the body politic and "for

active involvement in political affairs" (maj. opn. at p. 907). The majority declare, "Education

stimulates interest in the political process and provides the intellectual [35 Cal.3d 918] and

practical tools necessary for political action" (ibid.) and influences "political participation and

awareness" (ibid.). It makes possible "'an enlightened and effective public opinion'" (maj. opn. at

p. 908). It enables one "to evaluate independently the pronouncements of pundits and political

leaders" (ibid.). It prepares individuals to participate in labor unions and business enterprises

(ibid.). It is the bright hope of the "poor and oppressed" to participate in economic life (maj. opn.

at p. 908). It brings "together members of different racial and cultural groups" (ibid.). It is a

"'unifying social force'" (maj. opn. at p. 908) and develops "skills useful in political activity" (maj.

opn. at p. 908). It also has value in preparing for the exercise of "economic power" (ibid.).

The foregoing recitation of assets may be useful in preparing an economic or political balance

sheet. However, in my view education is inherently beneficial to the individual, without regard to

its contribution, if any, to his or society's economic, social or political well-being. The latter is a

potential tangential benefit, but not an essential ingredient in confirming the value of an


The framers of the California Constitution in 1849 demonstrated an appreciation of the inherent

value of an education. They provided in the original article IX, section 2, that "The legislature shall

encourage, by all suitable means, the promotion of intellectual ... improvement."

The person who reads Homer, Shakespeare, Byron, Joyce, and Yeats, studies music, dance and

drama, learns to appreciate art and architecture, or contemplates the wonders of nature and the

universe, may never achieve economic, social or political advantage, or contribute tangibly to

society. But his cultural attainments will produce the inner rewards and self-gratification of a wellrounded

human being that in and of themselves justify public education. As Justice Story wrote:

"It is one of the wise dispensations of Providence that knowledge should not only confer power,

but should also confer happiness." (Story, Miscellaneous Writings 124.)

Montaigne, in his classic essay on the Education of Children, declared that each person should

"be taught to know what it is to know, and what to be ignorant; what ought to be the end and

design of study; what valor, temperance and justice are; the difference between ambition and

avarice, servitude and subjection, license and liberty; by what token a man may know true and

solid contentment; how far death, afflication and disgrace are to be apprehended; by what secret

springs we move, and the reason of our various agitations and irresolutions; for, methinks, the

first doctrine with which one should season his understanding ought to be that which regulates his

manners and his sense, that teaches him to know himself, and how both [35 Cal.3d 919] well to

die and well to live." (Montaigne, Selected Essays (U. of Chi. Great Books ed.) p. 84.)

With the qualification of my belief that education is its own reward, without dependence upon any

supplemental societal virtues, I join in the conclusion that all aspects of public education are and

must remain free.


[1c] I concur in the conclusion of the Chief Justice that the fees here in issue are impermissible.

I agree that the values implicit in the constitutional "free school" guarantee extend beyond the

mere acquisition of credit and embrace the more fundamental benefits of education, both social

and individual, so eloquently described in the opinions of the Chief Justice and Justice Mosk. I

agree also that the charges sought to be imposed by the Santa Barbara High School District in

this case, well motivated as they undoubtedly are, constitute a breach of that basic compact. fn. 1

As Justice Kaus observes in his concurring opinion it is difficult for this court to anticipate the

variety of contexts in which the validity of school-related fees may be questioned, and for that

reason I think it wise to proceed with caution. Here, the District seeks to impose fees for the

privilege of participating in activities which occur on school property, under the instructional

supervision of school personnel, and which not only provide "important educational experiences,"

as the District concedes, but are functionally and intimately related to the District's established

curriculum. A child interested in drama is told, in effect, "you may attend the drama class, study

about plays, and participate in rehearsals, but when it comes to the actual performance you must

remain backstage unless you pay a fee." fn. 2 I have no hesitation in saying that such an artificial

bifurcation of the educational experience is incompatible with the constitutional mandate.


I concur in the judgment. Under Education Code section 35014, fn. 1 a local school district may

only adopt rules which are "not inconsistent with law or with the rules prescribed by the State

Board of Education." [2e] The local fees for extracurricular activities at issue here conflict with an

administrative regulation ¶ title 5, section 350 of the California [35 Cal.3d 920] Administrative

Code ¶ prescribed by the State Board of Education. (See Cal. Dept. of Ed., Fees, Deposits and

Charges in the Public Schools of California, Grades K-12 and Adult Schools (1979);

Ops.Cal.Legis. Counsel, No. 18293 (Oct. 19, 1982) School Fees: Extracurricular Activities;

Ops.Cal.Legis. Counsel, No. 17036 (Nov. 16, 1979) School Fees.) [5e] , [2f] Because I believe

that ¶ under familiar standards (see, e.g., Ralphs Grocery Co. v. Reimel (1968) 69 Cal.2d 172,

176 [70 Cal.Rptr. 407, 444 P.2d 79]; Credit Ins. Cen. Agents Assn. v. Payne (1976) 16 Cal.3d

651, 657 [128 Cal.Rptr. 881, 547 P.2d 993]) ¶ the state board had authority to promulgate the

regulation in question (see § 33031; City and County of San Francisco v. Hyatt (1912) 163 Cal.

346, 352-354 [125 P. 751]), I agree with the lead opinion that the challenged fees cannot stand.

In view of this conclusion, there is no need to reach the broad constitutional question discussed in

part II of the lead opinion.

Furthermore, in this case there are weighty reasons for not embarking on the constitutional

journey which the lead opinion undertakes. For judges, the "free school" guarantee is a rarely

traveled route; we have few, if any, helpful precedential guides in the California cases. In this

unmapped setting, it is difficult to predict the practical effect that a broad constitutional

pronouncement may have in a great variety of situations. Well-intentioned judicial efforts to

provide sweeping, "absolute" rules to protect the values underlying the "free school" provision

may well prove, in practice, to have precisely the opposite effect by foreclosing reasonable

legislative options.

If I understand the lead opinion correctly, it concludes that all "educational" activities offered by

public schools ¶ whether credit-bearing or extracurricular, whether taking place during the school

day, before or after school hours ¶ must, as a matter of constitutional mandate, be provided

absolutely "free." fn. 2 Although the lead opinion does not purport to pass on the matter, its

proposed rule would apparently invalidate a number of statutory provisions which authorize the

charging of fees in a variety of special settings. For example, section 35330 implicitly permits a

school district to impose a charge for field trips or excursions, while at the same time specifying

that no pupil shall be prevented from making the trip because of a lack of funds. (Cal. Dept. of

Ed., Fees, Deposits, and Charges in the Public Schools of California, Grades K-12 and Adult

Schools (1979) pp. 2-3.) Similarly, sections 32220 to 32224 ¶ after requiring districts to provide

medical and accident insurance for each member of an athletic team ¶ authorize a district to pass

such cost on to the parents of each member who can afford to pay. And section 48909 permits a

district to charge a parent when a pupil [35 Cal.3d 921] loses a loaned book. (See also §§ 39804

[permitting charges for transportation costs under certain circumstances]; 35335 [permitting

charges for school camp programs].)

My point is not that all of these statutory provisions are necessarily valid, but simply that their

existence points up the potential complexity of the school fee issue and the importance of

considering the particular setting in which the fee is imposed. The Legislature and educational

administrators have been involved with these issues for some years, and I believe that we would

do well to proceed cautiously and limit ourselves to the question before us.

Since, as noted at the outset, there is a valid administrative regulation which clearly prohibits the

local fees at issue, we should avoid a premature resolution of the constitutional mandate.


It may come as a surprise to the reader, but I concur fully in my opinion for the court. I write

separately to advance an additional argument in support of the holding. In my view the District's

fee program violates the equal protection guarantee of the California Constitution. fn. 1

This court strictly scrutinizes governmental classifications that touch upon fundamental interests

or involve suspect classifications. (Serrano v. Priest (1976) 18 Cal.3d 728, 768 [135 Cal.Rptr.

345, 557 P.2d 929] [hereafter, Serrano II], cert. den. sub nom., Clowes, Superintendent of

Schools of Los Angeles County, et al. v. Serrano et al. (1977) 432 U.S. 907 [53 L.Ed.2d 1079, 97

S.Ct. 2951].) Under this standard, the governmental entity "bears the burden of establishing not

only that it has a compelling interest which justifies the law but that the distinctions drawn by the

law are necessary to further its purpose." (Westbrook v. Mihaly (1970) 2 Cal.3d 765, 785 [87

Cal.Rptr. 839, 471 P.2d 487], cert. den. (1971) 403 U.S. 922 [29 L.Ed.2d 700, 91 S.Ct. 2225]; see

also In re Antazo (1970) 3 Cal.3d 100, 111 [89 Cal.Rptr. 255, 473 P.2d 999].)

Plaintiffs argue that the District's fee program: (1) touches upon a fundamental interest ¶

education; and (2) classifies on the basis of a suspect classification ¶ wealth. For the reasons

stated below, I agree and, applying [35 Cal.3d 922] strict judicial scrutiny, conclude that the fees

are not necessary to the achievement of a compelling governmental interest.

It is well established that education constitutes a fundamental interest under the California

Constitution. (Serrano II, supra, 18 Cal.3d at pp. 765-766; Serrano v. Priest (1971) 5 Cal.3d 584,

608-609 [96 Cal.Rptr. 601, 487 P.2d 1241, 41 A.L.R.3d 1187] [hereafter, Serrano I].) At issue in

this case is whether noncredit, after-school educational activities are encompassed within this


Defendants argue that the fundamental right to an "education" guarantees nothing more than an

opportunity to progress from grade to grade and receive a diploma. Under this view, a

classification affecting programs that do not carry credit toward grade progression or graduation

does not touch upon a fundamental interest regardless of the programs' actual educational value.

However, the Serrano concept of education as a fundamental interest is not defined by the whims

of scheduling or by the formalities of credit, grading, or diplomas. In Serrano I, this court

recognized education as a fundamental interest not because of its role in conferring credentials,

but because of its extensive and indispensable benefits ¶ to society as well as to individual

children ¶ in imparting information, training, and social experience. (Serrano I, supra, 5 Cal.3d at

pp. 606-610; see also maj. opn., ante, at pp. 907-908.) The harms inherent in unequal education

result not merely from inequalities in the distribution of credentials, but also from disparate

training, experience, and knowledge. The contrary view cannot account for this court's recognition

that "'[u]nequal education ... leads to ... handicapped ability to participate in the social, cultural,

and political activity of our society.'" (Serrano I, supra, at p. 606, citing San Francisco Unified

School Dist. v. Johnson (1971) 3 Cal.3d 937, 950 [92 Cal.Rptr. 309, 479 P.2d 669], cert. den. sub

nom., Fehlhaber et al. v. San Francisco Unified School Dist. et al., 401 U.S. 1012 [28 L.Ed.2d

549, 91 S.Ct. 1266], italics added.)

As the majority explain, educational extracurricular activities play an integral role in imparting the

many benefits of education. (See maj. opn., ante, at pp. 909-911.) The value of educational

activities in promoting the political, economic, and social functions of education is not contingent

upon the granting of academic credit. fn. 2 Indeed, it is widely recognized that athletic [35 Cal.3d

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