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Court of Appeal, Second District, Division 6, California.

Francisco SALAZAR, et al., Plaintiffs and Appellants, v. Bill HONIG, et al., Defendants and Respondents.

Civ. No. B026629.

Decided: May 10, 1988

California Rural Legal Assistance and Peter D. Roos, Channel Counties Legal Services Ass'n Migrant Component, Robert K. Miller and M. Carmen Ramirez, for plaintiffs and appellants. John K. Van de Kamp, Atty. Gen., Anne S. Pressman, Supervising Deputy Atty. Gen., and Karen L. Fried, Deputy Atty. Gen., for defendants and respondents.

We decide that Education Code section 39807.5, enabling public school districts to charge pupils a fee for transportation, violates the California Constitution.


In April 1985, appellants Francisco Salazar and Irene Villalobos filed a taxpayers suit, seeking injunctive relief and writ of mandamus, and naming as defendants the California Department of Education, the State Board of Education, the State Superintendent of Public Instruction, and Fillmore Unified School District.   The suit charges the defendants with unlawfully implementing Education Code section 39807.5, which appellants claim violates the free school guaranty (art. IX, § 5) and the equal protection guaranty (art. I, § 7, subd. (a)) of the state Constitution.

Section 39807.5 states in pertinent part:  “When the governing board of any school district provides for the transportation of pupils to and from schools in accordance with the provisions of Section 39800, ․ the governing board of the district may require the parents and guardians of all or some of the pupils transported, to pay a portion of the cost of such transportation in an amount determined by the governing board.  [¶]  The amount determined by the board shall be no greater than the statewide average nonsubsidized cost of providing such transportation to a pupil on a publicly owned or operated transit system as determined by the Superintendent of Public Instruction, in cooperation with the Department of Transportation․  [¶] The governing board shall exempt from these charges pupils of parents and guardians who are indigent as set forth in rules and regulations adopted by the board.”  (Emphasis added.)   As noted by its language, the statute does not require school districts to assess transportation fees.   The Legislature has also exempted indigent parents from paying the fee.

After this action was instituted, Fillmore Unified School District elected not to impose the pupil transportation fee, and was dismissed from the lawsuit.   Thereafter, appellants filed a motion for summary judgment against the remaining State defendants (respondents) on the ground that respondents had no defense to the action.   Attached to appellants' motion were a number of declarations by parents living in school districts where fees were being charged pursuant to section 39807.5.1  Many of these families who were not eligible for the indigency waiver (in some districts, eligibility for the waiver is premised on the receipt of welfare assistance), but who nevertheless had low incomes, found the transportation fee an economic hardship.

Some families reported the choice at times boiled down to buying groceries or sending their children to school on the bus.   In several instances, parents stated that if their children either did not possess the free pass or the money to pay the fee on a particular day, the driver would not allow them on the school bus.   Several parents declared that, without bus transportation, their children were not able to attend school, either because no other method of transportation was available or the children were too young or unable because of health problems to walk to school.   One parent complained that her school district threatened to cancel bus transportation entirely if parents did not pay the transportation fee.   Other families reported that they were not informed by their local school district about the indigency provision, but learned about the possibility of obtaining free passes from neighbors and friends.   One father stated that he was not even able to apply for the indigency waiver because the school district refused to accept an application, referring him instead to the welfare department who, in turn, referred him back to the school district.

Respondents opposed the motion for summary judgment, claiming that appellants had no remedy against State defendants because neither the state Constitution or section 39807.5 revealed any specific powers or duties authorizing State defendants to prohibit local school districts from assessing transportation fees.  [[ ]]

Appellants' motion for summary judgment was denied.  [[ ]]

Trial of the case [[ ]] took place during a one-day hearing.  [[ ]]

The evidence offered at trial revealed that paid employees of the State Department of Education expend a small amount of employment time annually collecting and recording amounts assessed by local school districts pursuant to section 39807.5, obtaining the statewide transportation cost from the State Department of Transportation, and disseminating this figure to districts throughout the State along with a formula to assist local school officials in computing transportation fees.   Of the 1,049 school districts in California, 1,008 provide transportation to their pupils.   Only 60 districts of those providing transportation have elected to charge bus fees under section 39807.5.

The trial court denied appellants' request for an injunction and a writ of mandate.   The court's intended decision noted that the State's defense was predicated solely on procedural grounds and the State's response to the issue of the statute's illegality was one of “sepulchral silence.”   Nonetheless, the court agreed with respondents' position, [[ ]] that the 60 districts utilizing the statute were indispensable parties whose lack of participation in the litigation was inequitable.


Section 39807.5 Is UnconstitutionalFree School Guaranty

In many people's minds, the school bus is a symbol of public education.   Since the advent of motorized vehicles, buses have brought millions of children throughout this country to the school door.

Yet, the transportation of pupils is not just a symbol of school life.   In California, 1,008 out of the 1,049 public school districts, representing a total of 96 percent, provide transportation to students.   This, along with the funding of student transportation by public monies (Ed. Code, § 41850 et seq.), attests to the significant role of transportation in the State's public school system.   As long as 66 years ago, the California Supreme Court observed that “[t]he plan of transporting school pupils to and from their homes, particularly in large union districts, is quite common in this state, ․”  (Veterans' Welfare Board v. Riley (1922) 189 Cal. 159, 161, 208 P. 678.)   In 1946, a California appellate court wrote that “[i]t has been the practice in many primary and secondary school districts in California to furnish free transportation as public expense to pupils attending public schools․ It has been held that this does not amount to a gift of public funds but serves a public purpose.”  (Bowker v. Baker (1946) 73 Cal.App.2d 653, 662, 167 P.2d 256, citing Pasadena City High School Dist. v. Upjohn (1929) 206 Cal. 775, 276 P. 341.)

Despite the widespread practice of providing transportation, the Education Code provides that the “governing board of any school district may provide for the transportation of pupils to and from school whenever in the judgment of the board such transportation is advisable and good reasons exist therefor.”  (§ 39800.)   The section is permissive;  a school district is not required to provide transportation in any event.  (School District, 24 Ops.Cal.Atty.Gen. 157 (1954).)   Nevertheless, the voluntary nature of school transportation in no way detracts from the importance of transportation to the public education system (as seen by the number of districts providing transportation and the payment of local transportation costs by public funds), nor from the question presented here.   That is, once a school district elects to provide transportation to its students, must the district provide free transportation?

In decisions by courts invalidating student fees in jurisdictions outside California, the issue has often turned on whether (1) the fee is charged for necessary school activity, or (2) the fee is charged for an activity which is an essential part of the jurisdiction's system of free schools.  (41 A.L.R.3d 752, § 2(a), p. 755.)   Here, we hold that student transportation fees are invalid because pupil transportation (1) is a fundamental educational activity, (2) which is an integral part of California's system of free public education.

The free school guaranty of the California Constitution requires that the “Legislature shall 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.)   The “free school” provision entitles the State's youth to be educated at the public expense.  (Hartzell v. Connell (1984) 35 Cal.3d 899, 904–905, 201 Cal.Rptr. 601, 679 P.2d 35.)  “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.  [Citations and footnote.]   A school which conditions a student's participation in educational activities upon the payment of a fee clearly is not a ‘free school.’ ”  (Id., p. 911, 201 Cal.Rptr. 601, 679 P.2d 35.)

 Consequently, the free school guaranty extends to all educational activities offered to students by school districts.  (Id., p. 905, 201 Cal.Rptr. 601, 679 P.2d 35.)   The Constitution does not merely guarantee the right to a free “education;”  it guarantees the right to a free “school.”   As such, the school and the entire product received from it by the student are to be free.  (See Paulson v. Minidoka County School Dist. (1970) 93 Idaho 469, 473, 463 P.2d 935, 939.)

 The other question that remains is whether student transportation is an educational activity, therefore falling within the ambit of article IX, section 5.   We begin this discussion with the premise that the right to a public education must be made available to all equally.  (Hartzell v. Connell, supra, 35 Cal.3d at 913, 201 Cal.Rptr. 601, 679 P.2d 35;  Manjares v. Newton (1966) 64 Cal.2d 365, 376, 49 Cal.Rptr. 805, 411 P.2d 901.)   Therefore, any action of a public body which has the effect of depriving children of the opportunity to obtain an education is to be examined “unsympathetically.”  (Manjares v. Newton, supra.)

In Hartzell v. Connell, supra, the California Supreme Court held that the free school guaranty forbade a public high school district from charging students fees for extracurricular activities.  (35 Cal.3d at 911, 913, 201 Cal.Rptr. 601, 679 P.2d 35.)   The activities ranged from cheerleading to madrigal singing to athletics.   None of the affected activities yielded any credit toward graduation, although each was connected to a credit course and was supervised by school personnel.   The school district implemented a fee-waiver program so that students in financial need could participate in the extracurricular activities without paying the fee.   There was no evidence that any student was prevented from participating in the activities because of the fees.   The parties to the suit agreed that the activities provided important educational “experiences.”  (Pp. 902–904, 201 Cal.Rptr. 601, 679 P.2d 35.)

In deciding that the extracurricular activities were a necessary school activity, the court looked to case authority which generally recognized the important contribution of extracurricular programs toward public school education.  (Pp. 909–911, 201 Cal.Rptr. 601, 679 P.2d 35.)

 Likewise, in the present case, student transportation is generally viewed in a legal context as an essential component of the educational process.  “[T]he transportation of pupils to and from public schools is one of the legitimate methods adopted to help promote education and safeguard children.”  (Bowker v. Baker, supra, 73 Cal.App.2d at 663, 167 P.2d 256 [holding it is constitutional to allow pupils attending a private school to ride in public school buses].)  The particular educational benefits of transportation are considerable and varied.   Transportation promotes the safety of schoolchildren who have to travel across busy streets and highways (id., p. 665, 167 P.2d 256);  it has been employed to advance the cause of equal educational opportunity through busing plans;  and it conserves public funds for education by allowing for the creation of centralized school districts, thus preventing the need to build schools in rural or sparsely populated areas.  (Pasadena City High School Dist. v. Upjohn, supra, 206 Cal. at 780, 276 P. 341.)

Despite these valuable contributions, the most important function of transportation is that, when it is provided free, it induces pupil attendance.  (Bowker v. Baker, supra, 73 Cal.App.2d at 660, 167 P. 256.)   A more basic educational service cannot be performed, thus making student transportation an essential school activity.  “Without pupils there could be no school.   It is illogical to say that the furnishing of transportation is not an aid to the [school] while the employment of teachers and furnishing of books, accommodations and other facilities are such an aid.”  (Ibid.)

In Hartzell, the Supreme Court found that fees for extracurricular activities were illegal, even though the activities were not required courses of study and did not prevent students from participating in them due to the failure to pay the fees.   A more difficult and potentially drastic educational dilemma faces students who are unable or unwilling to pay transportation fees.   According to undisputed evidence in the record, the nonpayment of such fees can prevent students from even getting inside the school building.

Such a result is not to be tolerated.   Society has a compelling interest in affording children an opportunity to attend school.  (Manjares v. Newton, supra, 64 Cal.2d at 375, 49 Cal.Rptr. 805, 411 P.2d 901.)   Education is perhaps the most important function of government, exhibited by compulsory school attendance laws and the great expenditures for education.  (Serrano v. Priest (1971) 5 Cal.3d 584, 606, 96 Cal.Rptr. 601, 487 P.2d 1241 (Serrano I ).)  “ ‘It is the very foundation of good citizenship․ it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment.’ ”  (Ibid.)

As can also be seen from the record herein, the fee-waiver policy contained within section 39807.5 does not assure school attendance.   There is evidence that some families who are not eligible for the fee-waiver policy nevertheless have difficulty paying transportation fees.   One school district has apparently used the statute as a vehicle of intimidation to force parents to pay the fee.   Other school districts appear to not be enforcing the fee-waiver provision, either by failing to inform the community about the provision, or by not adopting application procedures.

Even if these abuses of local authority did not exist, the Hartzell court has ruled that fee-waiver policies do not satisfy the requirements of the free school guaranty.  (35 Cal.3d 911, 201 Cal.Rptr. 601, 679 P.2d 35.)  “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․  [¶] ․ 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.  [¶] ․ The stigma that results from recording some students as needy was recognized early in the struggle for free schools․  ‘[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.’ ”  (Id., pp. 911–912, 201 Cal.Rptr. 601, 679 P.2d 35.)   Likewise here, once a school district decides that student transportation is important enough to be offered, a student's utilization of that activity cannot be made to depend on his family's economic circumstances.

 The concern of local school districts in deriving income from section 39807.5, noted by the trial judge in the instant case, is further not a factor to be accorded any weight under the free school guaranty.   The defendants in Hartzell argued that, if the fees were invalidated, the result could produce the anomalous result of reducing the number of educational opportunities available to students.  (35 Cal.3d 912, 201 Cal.Rptr. 601, 679 P.2d 35.)   Since we do not have the benefit of opposing argument on the merits of the instant case, we can only assume respondents would have argued that the income from the statute would also benefit students by providing additional revenue for school facilities and curriculum.   Financial hardship is, however, not a defense to a violation of the free school guaranty.  (Ibid.)  “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․   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—․”  (Id., p. 913, 201 Cal.Rptr. 601, 679 P.2d 35.)

We conclude that the imposition of student transportation fees violates the free school guaranty of the state Constitution.   Further, because requiring the payment of such fees actually discourages school attendance in some cases, the fees defeat the purpose of the educational system of this State “to enable each child to develop all of his or her own potential.”  (Ed. Code, § 33080.)

Equal Protection Guarantee

 Appellants contend that fees for student transportation also violate the equal protection guarantee of the California Constitution.2  We agree.

A fee for a public education program or activity (1) touches upon a fundamental interest—education, and (2) classifies on the basis of a suspect classification—wealth.  (Hartzell v. Connell, supra, 35 Cal.3d at 921, 922, 923–924, 201 Cal.Rptr. 601, 679 P.2d 35 [concurring opinion by Bird] citing Serrano v. Priest (1976) 18 Cal.3d 728, 765–766, 135 Cal.Rptr. 345, 557 P.2d 929 (Serrano II );  and Serrano I, supra, 5 Cal.3d at 597–610, 96 Cal.Rptr. 601, 487 P.2d 1241.)

Like extracurricular activities, student transportation promotes public education and, therefore, is encompassed within the concept of education as a fundamental interest.  (See Hartzell v. Connell, supra, p. 923, 201 Cal.Rptr. 601, 679 P.2d 35.)   Moreover, student transportation fees interfere with a student's right to enjoy the benefits of a fundamental right—free public education.   Since some families who are not eligible for the fee-waiver find transportation fees an economic hardship, it is evident that the fees impose disparate burdens on students according to their families' wealth.   For another nonpoverty family, the transportation fee may have no financial impact.  (See p. 924, 201 Cal.Rptr. 601, 679 P.2d 35.)  “[A]t least where education is concerned—the protection afforded by the equal protection guaranty does not stop at the poverty line.   It also addresses inequalities within the category of ‘nonneedy’ families.”  (Id., p. 925, 201 Cal.Rptr. 601, 679 P.2d 35.)

Governmental classifications which touch upon fundamental interests or involve suspect classifications are subject to strict scrutiny under the equal protection guarantee.  (Pp. 921, 926, 201 Cal.Rptr. 601, 679 P.2d 35, citing Serrano II, supra, 18 Cal.3d at 768, 135 Cal.Rptr. 345, 557 P.2d 929.)   Under this test, the State has the burden of establishing not only that it has a compelling interest which justifies the law, but the classifications drawn by the law are necessary to further a legitimate State interest.  (35 Cal.3d at 921, 201 Cal.Rptr. 601, 679 P.2d 35.)

It may be respondents' view that the compelling State interest in imposing transportation fees is the need to derive additional income to operate public schools.   But as the majority in Hartzell wrote, any claim that a student fee is necessary to finance educational programs does not justify its legality on constitutional grounds.  (35 Cal.3d 913, 201 Cal.Rptr. 601, 679 P.2d 35.)   In addition, economic concerns are an insufficient justification under the heightened scrutiny test.  (P. 926, 201 Cal.Rptr. 601, 679 P.2d 35.)   The maintenance of educational programs or activities “cannot be bought at the cost of introducing wealth-based inequalities among students;”  the opportunity to receive an education must be supplied to every person on an equal basis.  (P. 927, 201 Cal.Rptr. 601, 679 P.2d 35.)

We hold, therefore, that section 39807.5 further violates the equal protection guaranty of the state Constitution.

Indispensable Party Issue

 Appellants contend that the school districts utilizing section 39807.5 are not indispensable parties because appellants are challenging a state law on the basis of the state Constitution.   Furthermore, appellants claim that the incidental effect on school districts of a loss of revenue from a ruling declaring the statute unconstitutional does not make the districts indispensable parties.

Respondents urge that local school districts charging transportation fees under section 39807.5 are indispensable parties to this action because they have an immediate interest in the subject of the statute's constitutionality due to the benefit of revenue they derive from the statute.   On the other hand, respondents argue, the State administration has no interest in the lawsuit since it has no duty or obligation to participate in decisions by local school officials to charge transportation fees.

 “Where the plaintiff seeks some type of affirmative relief which, if granted, would injure or affect the interest of a third person not joined, that third person is an indispensable party.”  (Sierra Club, Inc. v. California Coastal Com. (1979) 95 Cal.App.3d 495, 501, 157 Cal.Rptr. 190.)   Section 389 does not provide that the absence of an indispensable party deprives a court of jurisdiction.   The decision whether or not to proceed with the action in the absence of a particular party is one within the court's discretion.  (Id., p. 500, 157 Cal.Rptr. 190;  Kraus v. Willow Park Public Golf Course (1977) 73 Cal.App.3d 354, 368, 140 Cal.Rptr. 744.)

Here, we find that the trial judge's decision not to proceed with the merits of the case because of the lack of joinder is an abuse of discretion.

In Sierra Club, Inc. v. California Coastal Com., supra, relied upon by respondents, the issue was whether the developer of a real estate project was an indispensable party to an action brought by a third party to set aside a permit authorizing the project.   The appellate court ruled that the developer was indispensable to the action, since obviously a decision to set aside his permit to undertake certain construction directly affected and injured his interests.  (95 Cal.App.3d 501, 157 Cal.Rptr. 190.)

The Sierra Club case is inapposite, involving a case of personal interest.  “The only interests protected by section 389 are personal ones which may be prejudiced in a concrete way by a judgment rendered in the absence of joinder.”  (Van Atta v. Scott (1980) 27 Cal.3d 424, 451, 166 Cal.Rptr. 149, 613 P.2d 210.)  (Emphasis added.)   The interest of public officials in any case which challenges the constitutionality of statutes or their practices does not rise to a personal stake in the outcome of the litigation.  (Id., p. 452, 166 Cal.Rptr. 149, 613 P.2d 210.)   Indeed, seldom do public officers have a personal interest in the continued validity of their official acts.   (Blair v. Pitchess (1971) 5 Cal.3d 258, 269, 96 Cal.Rptr. 42, 486 P.2d 1242.)   Accordingly, local education officials do not possess the required nature of interest involved in a challenge to a State educational provision.

Respondents suggest that local school districts have a personal stake in the outcome of the present litigation by their special interest in receiving the revenue which section 39807.5 provides.   This suggestion is incorrect.   Local school administrations throughout California have an interest in receiving more operating revenue.   Such an interest is not peculiar or confined to the instant litigation, and is therefore not of the immediate or personal nature contemplated by section 389.

Moreover, the finding that the 60 school districts are indispensable parties unduly and inequitably burdens appellants' right as taxpayers to challenge the constitutionality of the subject law.   Not only would the expense and time of litigating the suit against 60 defendants probably discourage appellants from pursuing their meritable challenge, the voluntary nature of section 39807.5, which could increase or decrease at any time the list of schools imposing the fee, makes potentially impossible the complete joinder of all parties defendant.   Courts must be careful to avoid converting a discretionary rule of fairness in procedure into an arbitrary and burdensome requirement which may thwart rather than accomplish justice.  (Serrano II, supra, 18 Cal.3d at 753, 135 Cal.Rptr. 345, 557 P.2d 929.)

In Serrano II, supra, defendants State administrative officials contended they lacked all power to bring about the relief sought by plaintiffs, the restructuring of the state public school financing system, and argued that the Legislature and the Governor, who were not joined, were indispensable parties.   The Supreme Court rejected this argument, stating that the Legislature's and the Governor's interest in the subject litigation—the validity of statutes enacted by them—lacked the immediacy and directness requisite to party status.  (P. 752, 135 Cal.Rptr. 345, 557 P.2d 929.)   The court found that their interest could be fully and adequately represented by the appropriate State administrative officers.  (Ibid.)

Here, of course, respondents are the State officers and agencies charged with the administration and governance of the statewide public school system (Ed. Code, §§ 33031, 33112), and are represented in this suit by the State Attorney General, the highest California law enforcement officer.   The interest of the local school districts could receive no representation more adequate.

Even assuming the school districts are proper or necessary parties to this suit, they are not indispensable parties within the meaning of section 389.  (See Serrano II, supra, 18 Cal.3d 752, 135 Cal.Rptr. 345, 557 P.2d 929;  Camp v. Board of Supervisors (1981) 123 Cal.App.3d 334, 354, 176 Cal.Rptr. 620.) [[ ]]

The judgment is reversed and vacated.   The case is remanded to superior court with directions to issue an injunction and a writ of mandate against State defendants in accordance with the views expressed herein.

Costs on appeal are awarded to appellants.


1.   The practice of the school districts referred to in the declarations is to charge each student 25 cents per day for using the school bus.   Some schools also apparently offer bus tickets at an annual rate.

2.   This guarantee is contained in three provisions, article I, section 7, subdivisions (a) and (b);  and article IV, section 16, subdivision (a).

STONE, Presiding Justice.

GILBERT and ABBE, JJ., concur.