ARCADIA UNIFIED SCHOOL DISTRICT v. Francisco Salazar, Intervenor and Respondent.

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Court of Appeal, Third District, California.

ARCADIA UNIFIED SCHOOL DISTRICT, et al., Plaintiffs and Appellants, v. DEPARTMENT OF EDUCATION, Defendant and Respondent, Francisco Salazar, Intervenor and Respondent.

No. C008489.

Decided: April 29, 1991

Breon, O'Donnell, Miller, Brown & Dannis, Priscilla Brown, Nancy B. Bourne, and Martha Buell Scott, for plaintiffs and appellants. Joseph R. Symkowick, Gen. Counsel, Roger D. Wolfertz, Asst. Gen. Counsel, and Joanne Lowe, Deputy Gen. Counsel, State Dept. of Educ., for defendant and respondent. Robert K. Miller, M. Carmen Ramirez of Channel Counties Legal Services Ass'n, and Peter Roos, Deborah Escobedo of Meta, Inc., for intervenor and respondent.

Education Code section 39807.5 authorizes public school districts to charge fees for pupil transportation.1  Plaintiffs, 25 California public school districts, and defendant, State Department of Education, submitted this action to determine whether section 39807.5 violates either the “free school” guarantee (Cal.Const., art. IX, § 5) or the equal protection clause (Cal.Const., art. I, § 7, subd. (a)) of the California Constitution.2

Relying on Hartzell v. Connell (1984) 35 Cal.3d 899, 904–913, 201 Cal.Rptr. 601, 679 P.2d 35, which holds that school districts' imposition of fees for extracurricular activities violates the free school guarantee, the trial court ruled that school bus transportation provides “access” to education and, like extracurricular activities, must be provided free of charge.   The trial court declined to rule on whether section 39807.5 violates the equal protection clause.

As we explain in the published portion of this opinion, the trial court's equation of school bus transportation with extracurricular activities is erroneous.   Unlike extracurricular activities, transportation is neither educational in character nor, in ordinary cases, a “necessary element[ ] of any school's activity.”  (Hartzell, supra, 35 Cal.3d at p. 905, 201 Cal.Rptr. 601, 679 P.2d 35, internal quotations omitted.)   Accordingly, free school bus transportation need not be provided to all students regardless of individual need.   Because students whose receipt of public education is dependent upon school-provided transportation are expressly exempted from the fee requirement, section 39807.5 does not facially violate the free school guarantee.

In addition, imposition of a fee for school bus transportation does not violate the equal protection clause.   Because such transportation is not educational in character, is not a necessary element of any school activity in most cases, and the statute exempts from the fee requirement students for whom school-provided transportation is the sole link to education, no fundamental interest is impaired by section 39807.5.   And, by exempting indigents from its application, the statute does not result in a suspect classification based on wealth.   Since there is a rational basis for the statute, it must be upheld as a valid exercise of the state's police power.

In the unpublished portion of this opinion, we explain that, although the constitutionality of section 39807.5 previously has been ruled upon in a judicial proceeding to which the State Department of Education was a party, the doctrine of collateral estoppel does not preclude relitigation of the issue.

FACTS AND PROCEDURAL BACKGROUND

In April 1985, intervenor Francisco Salazar filed a taxpayers' suit in Ventura County Superior Court, naming as defendants the State Department of Education, the State Board of Education, the State Superintendent of Public Instruction, and the Fillmore Unified School District.   The suit alleged that the defendants' implementation of section 39807.5 3 to charge a fee for school bus transportation violates the free school guarantee and the equal protection clause of the California Constitution.   After the suit was commenced, the Fillmore Unified School District was voluntarily dismissed from the action when it elected not to impose a pupil transportation fee.   Although the superior court entered judgment for the remaining defendants on procedural grounds and did not reach the constitutional issues, the Court of Appeal, Second Appellate District, reversed and declared section 39807.5 unconstitutional.  (Salazar v. Honig (Cal.App. B026629;  rev. den. Sept. 1, 1988, and opn. ordered nonpub.).)   The California Supreme Court denied review but ordered the Court of Appeal opinion depublished.   On remand, the superior court entered judgment against the defendants.

After the Supreme Court ordered depublication of the Salazar decision, the State Department of Education (the Department) issued a “Legal Advisory” “pursuant to an order of the Superior Court of the County of Ventura․”   The “advisory” informed all school districts in the State of California that section 39807.5 is unconstitutional and directed them “to cease and desist” charging for transportation costs.   However, numerous school districts which were not parties to the Ventura County action refused to abide by the Department's directive, claiming that the statute is not unconstitutional.

Due to this controversy over the validity of section 39807.5, the Department and 25 school districts agreed, pursuant to Code of Civil Procedure section 1138,4 to submit to the Sacramento County Superior Court a stipulated statement of facts “for judgment to determine the rights of the parties.”   Sacramento County was chosen for this “submission of controversy” because the Department's principal place of business is in the City of Sacramento.

The statement of facts provides in pertinent part:

“1. Plaintiffs, and each of them, are public school districts organized under the laws of the State of California.   Defendant, State Department of Education, is a state agency established pursuant to Education Code section 33300, et seq.

 .    .    .    .    .

“2. ․

“3. In school year 1987–88, pursuant to Education Code section 39807.5, Plaintiffs, and each of them, provided for the transportation of students to and from schools and charged the parents and guardians of those students for the cost of such transportation.   These charges complied with the law in that they did not exceed the amount determined by the Superintendent of Public Instruction to be the statewide average for non-subsidized cost of providing such transportation to a pupil on a publicly owned or operated transit system.

“4. Plaintiffs, and each of them, exempted parents and guardians of indigent and handicapped students from paying for such transportation costs in 1987–88 as required by law.

“5. On or about November 25, 1988, Defendant issued a Legal Advisory which ordered Plaintiffs and all school districts in the State of California to cease and desist charging for transportation costs pursuant to Education Code section 39807.5․

“6. The Legal Advisory was issued pursuant to a decision of the California Court of Appeal, Salazar v. Honig ․, holding Education Code section 39807.5 unconstitutional.   The California Supreme Court had ordered the depublication of Salazar v. Honig on September 1, 1988․

“7. Plaintiffs have responded to the [Ventura County] trial court's order and the State Department of Education's Legal Advisory with varying responses.   Specifically, seven Plaintiff school districts have ceased charging school transportation fees in light of the State Department's Legal Advisory.

“8. Eighteen plaintiffs have continued to charge transportation fees pursuant to Education Code section 39807.5.

“9. A controversy exists between the parties as to validity of Education Code section 39807.5.   Defendant contends that Education Code section 39807.5 violates the free school guarantee of California Constitution, Article IX, section 5 and the equal protection guaranty of California Constitution, Article I, section 7, subdivisions (a), and (b), and California Constitution, Article IV, section 16, subdivision (a).   Plaintiffs contend that transportation to and from school is not an integral fundamental part of elementary and secondary education and thus, does not violate the free school guaranty.   Plaintiffs further contend that Education Code section 39807.5 does not, on its face, violate the equal protection guaranty of the California Constitution.”

Salazar moved to intervene and sought to dismiss the submission of controversy.   Salazar's complaint in intervention alleged, in pertinent part, that on remand from the Second Appellate District, the Ventura County Superior Court entered a judgment stating:  “No public school district in this state can lawfully charge busing or transportation fees to school children or their parents for transportation to and from school;”  that the Ventura judgment became final;  and that plaintiffs are agents of the Department, which was a party to the Ventura action, and are bound by the Ventura judgment under the principle of collateral estoppel.   The court granted the motion to intervene but denied the motion to dismiss.

In holding that section 39807.5 is unconstitutional, the superior court stated:  “This Court can find no reasonable or logical way to distinguish the basic principles underlying the Hartzell case from those in this case․   To try to draw some strained or artificial distinction between free access to education through transportation and free access to extracurricular activities is unwarranted and unwise.   It is axiomatic that access to education is an integral part of education.   When the governing board of a school district in its sound judgment decides that transportation is needed to provide access to education, then transportation becomes an integral part of education in that school district.”   It further reasoned:  “On the scale of importance to education, providing access to basic curricular education through transportation is at least as important as providing extracurricular activities for students, and is far more important than providing free transportation in connection with extracurricular activities.”   The court declared:  “If there is a price to pay for access to education, then education is not free.”

Because it concluded that section 39807.5 facially violates the free school guarantee, the superior court did not consider whether the statute also violates the equal protection clause.   Judgment was entered, and this appeal followed.

DISCUSSION

I **

II

Plaintiffs contend that the free school guarantee of article IX, section 5, of the California Constitution does not extend to school-provided transportation because such transportation is neither an “integral fundamental part of the elementary and secondary education” nor a “necessary element of any school's activity” within the meaning of Hartzell v. Connell, supra, 35 Cal.3d 899, 905–909, 201 Cal.Rptr. 601, 679 P.2d 35.

To put this contention in context, we look to the reasoning of Hartzell, which considered whether a school's “wide variety of extracurricular activities, ranging from cheerleading to madrigal singing, and from archery to football,” fall within our state's free education guarantee.   (Hartzell, supra, 35 Cal.3d at pp. 902, 905, 201 Cal.Rptr. 601, 679 P.2d 35.)   Because California courts had not addressed the issue, Hartzell examined two distinct approaches used by other states to determine what activities are encompassed by their constitutional free school guarantees.   (Id., at p. 905, 201 Cal.Rptr. 601, 679 P.2d 35.)   The first “restricts the free school guarantee to programs that are ‘essential to the prescribed curriculum.’ ”  (Ibid., quoting Smith v. Crim (1977) 240 Ga. 390, 391, 240 S.E.2d 884.)  “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.” ’ ”  (Ibid., quoting Bond v. Ann Arbor School District (1970) 383 Mich. 693, 702, 178 N.W.2d 484;  see Annot., 41 A.L.R.3d 742, § 2(a), p. 755.)

To determine which, if either, approach to follow, the court considered “the role played by education in the overall constitutional scheme.”  (Hartzell, supra, 35 Cal.3d at p. 906, 201 Cal.Rptr. 601, 679 P.2d 35.)   Quoting several sources, from Thomas Jefferson to Ralph Waldo Emerson, the lead opinion concluded:  “The contribution of education to democracy has a political, an economic, and a social dimension.”  (Id., at p. 907, 201 Cal.Rptr. 601, 679 P.2d 35.)  “[E]ducation prepares students for active involvement in political affairs” by “stimulat[ing] an interest in the political process and provid[ing] the intellectual and practical tools necessary for political action.”  (Id., at pp. 907–908, 201 Cal.Rptr. 601, 679 P.2d 35.)  “[I]t also prepares individuals to participate in the institutional structures—such as labor unions and business enterprises—that distribute economic opportunities and exercise economic power.”  (Id., at p. 908, 201 Cal.Rptr. 601, 679 P.2d 35.)  “Finally, education serves as a ‘unifying social force’ among our varied population, promoting cohesion based upon democratic values.  [Citations.]   The public schools bring together members of different racial and cultural groups and, hopefully, help them to live in harmony and mutual respect.”  (Ibid., quotation deleted.) 5

Viewing the two approaches “in light of these constitutionally recognized purposes,” Hartzell rejected the first test because it “determines whether a given program falls within the [free school] guarantee not by assessing its actual educational value, but by deferring to a school board's decision whether or not to offer it for formal, academic credit.”  (Hartzell, supra, 35 Cal.3d at pp. 908–909, 201 Cal.Rptr. 601, 679 P.2d 35.)   Instead, Hartzell adopted the second approach because it “focuses not upon the formalities of credit, but upon the educational character of the activities in question.”   (Id., at p. 909, 201 Cal.Rptr. 601, 679 P.2d 35.)   Accordingly, “all educational activities—curricular or ‘extracurricular’—offered to students by school districts fall within the free school guarantee of article IX, section 5.”  (Id., at p. 911, 201 Cal.Rptr. 601, 679 P.2d 35.)

Although the second approach states two alternative criteria (that the activity constitutes an “integral fundamental part of ․ education” or amounts to “necessary elements of any school's activity” ), the Supreme Court had no occasion to divine the boundaries of each alternative because the parties in Hartzell had agreed that the programs involved in that case were “ ‘educational’ in character.”   Thus, they fell within the first criterion.   (Hartzell, supra, 35 Cal.3d at pp. 903, 911, 201 Cal.Rptr. 601, 679 P.2d 35.)   Consistent with several out-of-state authorities, Hartzell concluded that extracurricular educational activities are an “integral component” of the educational whole and, thus, are within the free school guarantee.  (Id., at pp. 909–911, 201 Cal.Rptr. 601, 679 P.2d 35.)

What was undisputed in Hartzell is contested in this case.   Plaintiffs contend that bus transportation to and from school is not an “educational activity” and, thus, cannot be deemed an “integral fundamental part” of a child's education.   They argue:  “Unlike extracurricular activities, the ride to and from school has no ‘educational character.’   Transportation does nothing ‘to stimulate an interest in the political process' or ‘provide the intellectual and practical tools necessary for political action.’   No academic requirements must be met before a student can take advantage of this supplementary service, as with extracurricular activities.  (§ 35160.5, subd. (b).)  The district does not provide supervision for the bus ride to school.   The school bus, like the school cafeteria, is a convenience for the community, not an educational experience.”

Both Salazar and the Department effectively concede the issue by declining to characterize school bus transportation as educational in character.   Rather, they argue that “home to school transportation is an integral component of public education or a fundamental ingredient of the educational process” because transportation is essential to provide pupils with access to an education.   Similarly, the trial court characterized bus transportation not as education but as “access” to education.

We, too, conclude that school bus transportation is not inherently educational in character within the meaning of the free school guarantee as construed by Hartzell.   By no stretch of the imagination can school bus transportation be deemed to prepare students for involvement in political affairs (Hartzell, supra, 35 Cal.3d at pp. 907–908, 201 Cal.Rptr. 601, 679 P.2d 35) or for participation in economic, “institutional structures.”  (Id., at p. 908, 201 Cal.Rptr. 601, 679 P.2d 35.)   And, anyone who has ever ridden on a school bus can attest that the unsupervised trip to and from school is not one which “serves as a ‘unifying social force’ ” or helps the usually frolicking students “to live in harmony and mutual respect.”  (Id., at p. 908, 201 Cal.Rptr. 601, 679 P.2d 35.)   To the extent there is any educational value in school bus transportation, it merely is collateral to the transportive function.   Stated another way, the educational aspect of the school experience takes place at school or during extracurricular activities but not, generally, during daily bus rides to and from school.   Thus, such transportation is not an “integral part” of a child's education.   (Id., at p. 905, 201 Cal.Rptr. 601, 679 P.2d 35.)

 Nevertheless, Salazar and the Department contend that school bus transportation falls within the free school guarantee because said transportation is an essential component of the educational process.   The Department argues:  “When a school district decides to provide home to school transportation, the school district is providing students access to school and an education.   It is assuming the responsibility for providing access to education.   Under those circumstances, access is an integral part of the educational process because without access there is no education․   Charging a fee for home to school transportation has the effect of depriving students the opportunity to obtain an education.”  (Italics in original.)   In Salazar's view, transportation to and from school is “a practical necessity.”   He states:   “This is borne out by the fact that transportation to the school house door is an activity which has been a necessary element of the California educational scheme since the advent of motorized transportation.   It is ‘necessary’ because it provides to an overwhelming number of children in California basic access to education.”

By asserting that school-provided transportation is essential to the education process even though it is not itself education, Salazar and the Department attempt, as they must, to bring transportation within the second, alternative criterion of Hartzell, i.e., that school bus transportation amounts to a “necessary element of any school's activity.”  (Hartzell, supra, 35 Cal.3d at p. 905, 201 Cal.Rptr. 601, 679 P.2d 35.)   The argument is not persuasive.6

The Legislature has authorized school districts to provide pupil transportation at their discretion.   Section 39800 states:  “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.”  (Italics added.)   Salazar and the Department acknowledge that this statute is permissive and that school districts are under no obligation to provide home to school transportation for students.  (Girard v. Monrovia School Dist. (1953) 121 Cal.App.2d 737, 743, 264 P.2d 115 [construing predecessor statute].)  Thus, in the eyes of the Legislature, at least, home to school transportation is not a necessary element of any school's activity.

The position proffered by Salazar and the Department presents a logical inconsistency.   On one hand, they assert that school-provided transportation is essential for access to education.   Since elementary and high school education is a fundamental interest (Serrano v. Priest (1976) 18 Cal.3d 728, 766, 135 Cal.Rptr. 345, 557 P.2d 929;  Crawford v. Board of Education (1976) 17 Cal.3d 280, 297, 130 Cal.Rptr. 724, 551 P.2d 28), it logically would follow that, if school bus transportation is essential to provide access to said education, every student would have a right to such transportation.   Yet, Salazar and the Department concede that school districts are not required to provide school transportation.   In their view, it is only when a school district exercises its discretion to transport students that it must do so free of cost because the transportation it provides should be deemed “essential,” i.e., necessary, to educational activity.7

 We reject this suggestion because it circuitously defines transportation as essential to education simply because the transportation exists, whether it is needed or not.   For lack of a compelling reason to do otherwise, we give the term “necessary” its ordinary meaning, namely, “cannot be done without,” “absolutely required,” “indispensable” in all circumstances.  (Webster's Third New Inter.Dict. (1986) p. 1511.)

 While school bus transportation has recognizable benefits,8 it is not indispensable in all situations.   School districts are not even required to provide transportation, and it is unnecessary for many students within each school district.   Although we lack the benefit of a factual record, we note from common experience that many students have a host of alternative modes to get to and from school.   Depending on the distance, they may walk, bicycle, skateboard, obtain rides from family or friends, use non-school public transportation or, if of sufficient age, drive themselves.   Where none of those choices suffices, they may ride on a school bus if the school district provides such transportation.   Simply stated, although schools are virtually the exclusive providers of extracurricular activities like those at issue in Hartzell, school districts are not the exclusive providers of the means for all students to get to and from school.

 We recognize that school-provided transportation is necessary to students whose physical or economic circumstances deny them any of the transportation alternatives discussed above.   Indeed, Manjares v. Newton (1966) 64 Cal.2d 365, 49 Cal.Rptr. 805, 411 P.2d 901 held that schools must provide free transportation to children who could not be educated without it.   (Id., at p. 375, 49 Cal.Rptr. 805, 411 P.2d 901.)   However, Manjares does “not hold as a matter of law that the [school] board would be required to comply with every request [for transportation] regardless of the individual circumstances.”  (Id., at p. 374, 49 Cal.Rptr. 805, 411 P.2d 901;  emphasis added.)   We decline to stand Manjares on its head by declaring that students' particular circumstances are irrelevant and that free transportation must be provided to all regardless of individual need.   Rather, the “necessity” of transportation is fact-specific and may not be resolved on this fact-barren record.   Long ago, the California Supreme Court recognized that school bus transportation may be provided to some but denied to others based on the specific circumstances of the students.  (Pasadena City High School Dist. v. Upjohn (1929) 206 Cal. 775, 782, 276 P. 341.)   For example, “there would seem to be a reasonable distinction between those who live within the city where [a] high school is maintained and who have access to the school without transportation and those who live in outlying and more inaccessible portions of the district and require transportation.   It cannot be said that under such circumstances the legislature may not provide for transportation to the latter and deny it to the former.”  (Ibid.)

For the reasons stated above, school-furnished transportation is not, as a matter of law, a necessary element of any school's activity.  (Cf. Hartzell, supra, 35 Cal.3d at p. 905, 201 Cal.Rptr. 601, 679 P.2d 35.)

 Because pupil transportation is neither an integral fundamental part of elementary or secondary education nor a necessary element of any school's activity, article I, section 7, of the California Constitution does not require that school bus transportation be provided free of charge regardless of individual students' circumstances.   The remaining question is whether section 39807.5 facially permits consideration of a student's situation in determining whether the student's family should be charged a fee for school bus transportation.   It does.

Section 39807.5 provides in pertinent part:  “The governing board shall exempt from [transportation fees] pupils of parents and guardians who are indigent as set forth in rules and regulations adopted by the board.  [¶ ] No charge under this section shall be made for the transportation of handicapped children.”   Thus, on its face, section 39807.5 precludes the imposition of transportation fees upon those pupils—the indigent and the handicapped—whose receipt of the free public education guaranteed by article IX, section 9, of the California Constitution depends upon school-furnished transportation.   Because the statute does not purport to impose any cost upon the “free” education of those most likely to be transit-dependent, it does not facially conflict with the free school guarantee.

We emphasize that the present case presents only a facial challenge to section 39807.5 and comes before us on a record devoid of any evidence of how the statute has been applied in particular circumstances.   We recognize that imposition of transportation fees on pupils physically or economically dependent upon the school bus for their education may violate those pupils' constitutional and statutory rights to a free education.   However, such a case is not presently before us.

III

 We also reject the contention that section 39807.5 facially violates the equal protection clause of the California Constitution.  (Cal.Const., art. I, § 7, subd. (a).)  This claim is based on Salazar's assertion that imposition of a fee for school bus transportation “may result in denying children in California their fundamental right to an education and impacts [sic] unfairly on low income children.”   The Department frames the issue as follows:  “[Section] 39807.5 provides for the payment of a fee for a public education program or activity which touches upon a fundamental interest—education, and classifies on the basis of a suspect classification—wealth.”

 There is no merit to the contention that section 39807.5 impairs a “fundamental interest” by authorizing a fee for school bus transportation.   Although public education is itself a fundamental interest (Serrano v. Priest, supra, 18 Cal.3d at p. 766, 135 Cal.Rptr. 345, 557 P.2d 929;  Crawford v. Board of Education, supra, 17 Cal.3d at p. 297, 130 Cal.Rptr. 724, 551 P.2d 28), this fact does not compel a finding that access to school bus transportation also is a fundamental interest entitled to the highest degree of constitutional protection.  (Cf. Steffes v. California Interscholastic Federation (1986) 176 Cal.App.3d 739, 748, 222 Cal.Rptr. 355 [a student has no fundamental right to participate in interscholastic athletics].)  As discussed in Part II, ante, school bus transportation is neither educational in character nor a necessary part of any school activity.   Rather, in most cases, it is nothing more than a supplemental service which should be given no greater constitutional significance than other supplemental services, such as access to subsidized school lunches (§§ 49550, et seq.), which do not involve a fundamental interest.  (Serrano v. Priest (1971) 5 Cal.3d 584, 598–599, fn. 13, 96 Cal.Rptr. 601, 487 P.2d 1241 (Serrano I);  Briggs v. Kerrigan (D.Mass.1969) 307 F.Supp. 295, aff'd. (1st Cir.1970) 431 F.2d 967.)   Indeed, it would be absurd to conclude that all students have a fundamental interest in school bus transportation regardless of their circumstances.   It makes no sense that a pupil who lives a block from school should have a fundamental right to ride the school bus in his or her one-block journey to school.

 It is only students for whom school-provided transportation is the sole link to education (compare Manjares, supra, 64 Cal.2d 365, 49 Cal.Rptr. 805, 411 P.2d 901) whose interest in obtaining school transportation effectively equals their fundamental interest in education itself.  Section 39807.5 expressly addresses this situation by forbidding the imposition of transportation fees on the indigent and handicapped whose fundamental interest in education depends upon school-furnished transportation.   Because the statute facially excludes those whose fundamental interests would be impaired by its application, it does not result in a classification touching on a fundamental interest.

 Similarly, section 39807.5 does not result in a suspect classification based on wealth.   The equal protection clause does not forbid government from charging for a service it provides simply because some who need the service are too poor to pay for it.   Otherwise, government could not impose a fee for any service because there always will be indigents who are unable to pay.   Instead, equal protection of the law compels government to exempt indigents from a fee requirement.   As stated in Serrano I, “where important rights are at stake, the state has an affirmative obligation to relieve an indigent of the burden of his own poverty by supplying without charge certain goods or services for which others must pay.”  (Serrano I, supra, 5 Cal.3d at p. 602, 96 Cal.Rptr. 601, 487 P.2d 1241, citing examples.)   This is precisely what section 39807.5 does on its face.

 Nor does section 39807.5 involve a suspect classification by, as Salazar argues, “allow[ing] for disparity in treatment with respect to children who attend districts which charge transportation fees and [students] who go to school districts which do not charge fees.”   It is well settled that “states may constitutionally create legislation that varies in effect between regions of the state inasmuch as equal protection relates to equality between persons rather than areas.  (Salsburg v. Maryland (1954) 346 U.S. 545, 551 [74 S.Ct. 280, 283, 98 L.Ed. 281, 288];  Department of Motor Vehicles v. Superior Court (1976) 58 Cal.App.3d 936, 942 [130 Cal.Rptr. 311].)”  (Abel v. Cory (1977) 71 Cal.App.3d 589, 597, 139 Cal.Rptr. 555.)

Since section 39807.5 involves neither a fundamental interest nor a suspect classification, it must be upheld if there is a rational relationship between the law and a legitimate state goal.  (Steffes, supra, 176 Cal.App.3d at p. 746, 222 Cal.Rptr. 355.)   The rational basis for section 39807.5 is self-evident.   By requiring those able to do so to pay for school bus transportation to and from school, the statute conserves scarce financial resources for those who are unable to pay their own way and for other education-related purposes.   In the words of plaintiff school districts, “Without student fees, many school districts would be faced with the choice between reducing educational services to pay for buses or dropping transportation altogether except in the isolated case where a student in a remote area has no alternative transportation available․   Should the district choose to provide transportation, state funds allocated for books, teachers' salaries, and innovative programs would then be depleted to pay for the purchase and repair of buses.   Charging students a small transportation fee avoids the pitfalls of further depleting the diminishing funds available for education and serves the legitimate state interest of providing transportation for the convenience of California students and their parents.”

For the reasons stated above, section 39807.5 is not unconstitutional on its face.

DISPOSITION

The judgment is reversed.   The trial court is directed to enter judgment for plaintiffs in accordance with this opinion.   Plaintiffs shall recover their costs on appeal.

FOOTNOTES

1.   Further statutory references are to the Education Code unless otherwise specified.

2.   Article IX, section 5, provides:  “The Legislature shall provide for a system of common schools by which a free school shall be kept up and supported in each district at least six months in every year, after the first year in which a school has been established.”Article I, section 7, subdivision (a), provides in pertinent part:  “A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws;․”

3.   Education Code section 39807.5 provides:“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, or between the regular full-time day schools they would attend and the regular full-time occupational training classes attended by them as provided by a regional occupational center or program, 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.   For the purposes of this section, ‘nonsubsidized cost’ means actual operating costs less federal subventions.“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.“No charge under this section shall be made for the transportation of handicapped children.“Nothing in this section shall be construed to sanction, perpetuate, or promote the racial or ethnic segregation of pupils in the schools.”

4.   Code of Civil Procedure section 1138 provides:  “Parties to a question in difference, which might be the subject of a civil action, may, without action, agree upon a case containing the facts upon which the controversy depends, and present a submission of the same to any court which would have jurisdiction if an action had been brought;  but it must appear, by affidavit, that the controversy is real and the proceedings in good faith, to determine the rights of the parties.   The court must thereupon hear and determine the case, and render judgment thereon, as if an action were depending.”

FOOTNOTE.   See footnote *, ante.

5.   The benefits of education as recited by the lead opinion engendered the following comment:  “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 education.”  (Conc. opn. Mosk, J. at p. 918, 201 Cal.Rptr. 601, 679 P.2d 35.)

6.   The Department suggests it is improper to divide the entire educational process into distinct components and attempt to analyze each separately.   Whatever the instrinsic merit of this suggestion, we believe separation into components is inevitable in a case such as this where a statute authorizing one component of that process is subjected to constitutional attack.

7.   Salazar and the Department rely on several early cases which do not support their argument.Veterans Welfare Board v. Riley (1922) 189 Cal. 159, 208 P. 678 rejected the contention that transportation allowances under the Veterans' Educational Act were unlawful gifts of public funds.   Noting that the furnishing of school transportation “is a method of partially equalizing the inequities arising out of the necessity of locating the [school] in a certain place,” the court concluded:  “There seems no good reason for holding that the legislature has no power under the constitution to in part equalize the opportunities afforded to the students.”  (Id., at p. 165, 208 P. 678.)Pasadena City High School Dist. v. Upjohn (1929) 206 Cal. 775, 276 P. 341 also rejected the contention that the furnishing of transportation as authorized by statute is a gift of public funds.   The court stated:  “The state has a vital interest in the education of its youth.   It furnishes free education, free text-books and supplies, and builds and maintains buildings representing large investments.   It recognizes the public duty to provide adequate and accessible school facilities not only for those who reside in populous centers but also for those who reside in sparsely settled communities.   The tendency to combine and enlarge high school districts in the interest of economy and proficiency is recognized.   It seems reasonable to assume that training in our schools may best be accomplished by such centralization of educational facilities and that greater economy may result by transporting the pupils residing in sparsely settled communities to a central high school than to expend large and perhaps unwarranted sums of money in constructing numerous high schools in such outlying sections.   Our laws have provided for transportation to be given to school children for many years as a maintenance cost [citations].   This has been done without question in the courts of this state on the ground that such provision is unconstitutional as a gift.”  (Id., at p. 780, 276 P. 341.)Bowker v. Baker (1946) 73 Cal.App.2d 653, 167 P.2d 256 declined to hold unconstitutional the practice of permitting parochial school children to ride on public school buses.   The court acknowledged that “[f]ree transportation of pupils induces attendance at the school” and that “[i]t is also true that the transportation of pupils to and from public schools is one of the legitimate methods adopted to help promote education and safeguard children.”  (Id., at pp. 660, 663, 167 P.2d 256.)These cases simply hold that providing school bus transportation is a permissible function of the school district due to the benefits such transportation provides to the state.   However, they did not consider the question presented here, whether free transportation must be provided as a matter of constitutional law, and none of the opinions may be read to support the proposition that school bus transportation is a necessary element of school activity.   To the contrary, in Pasadena City High School Dist. v. Upjohn, supra, 206 Cal. 775, 276 P. 341, the Supreme Court opined that school bus transportation may be denied to certain students.   It stated:  “[W]e think the classification is entitled to be tested by the conditions which usually and ordinarily exist.   On this basis there would seem to be a reasonable distinction between those who live within the city where the high school is maintained and who have access to the school without transportation and those who live in outlying and more inaccessible portions of the district and require transportation.   It cannot be said that under such circumstances the legislature may not provide for transportation to the latter and deny it to the former.”  (Id., at p. 782, 276 P. 341.)

8.   As Salazar and the Department point out, courts have recognized several benefits of public school transportation.   For example, it promotes education by inducing pupil attendance (Bowker v. Baker, supra, 73 Cal.App.2d at 660, 663, 167 P.2d 256), it fosters the safety of children who otherwise have to travel across busy thoroughfares to get to and from school (id., at pp. 663, 665, 167 P.2d 256), it has been used to desegregate school populations and advance the cause of equal educational opportunities through busing, and school districts have used it to centralize facilities in populous areas rather than construct numerous schools in sparsely settled communities.  (Pasadena City High School Dist., supra, 206 Cal. at p. 780, 276 P. 341.)   Because of these benefits, school transportation is a permissible service which does not violate the constitutional prohibition against the gift of public funds.  (See fn. 7, ante.)   However, as discussed in the body of this opinion, the fact that school bus transportation has significant benefits for school districts and the community as a whole does not mean that it is a necessary element of any school activity within the free school guarantee.

SCOTLAND, Associate Justice.

PUGLIA, P.J., and RAYE, J., concur.