HARTZELL v. CONNELL (1982)

Plaintiffs Barbara Hartzell and the Coalition Opposing Student Fees, an unincorporated association of taxpayers, brought a taxpayers' suit seeking to enjoin the officials involved with the Santa Barbara high schools from continuing to impose and collect a $25 activity fee for students involved in after school performances such as sports activities, choral groups, and drama performances.   Challenges to the fee were based primarily on article IX, section 5, of the California Constitution;  title 5, section 350 of the California Administrative Code;  and the Equal Protection Clauses of the California and United States Constitutions.   The trial court denied the request for injunction and ordered that the authorization and implementation of the collection of fees was valid.   Plaintiffs appeal from the judgment.

Facts

Faced with financial constraints in the Spring of 1980 (see Gurfinkel v. Los Angeles Community College Dist. (1981) 121 Cal.App.3d 1, 9, 175 Cal.Rptr. 201), the Santa Barbara School District decided to impose a fee for participation by high school students in after school sports, drama, choral and orchestra performances.   Because of the generous contribution of private sources in the Santa Barbara community, the fee was reduced from $44 to $25 per student for each of the various activities.

Each of the performance activities corresponds to a class in the high school for which credit towards graduation is given; ¹ such classes generate daily attendance revenues.   The performance activities are taught or supervised by school personnel.   The facilities used for performances are prepared and cleaned by school personnel.

Administration of the fee system has been delegated to the principals of the three high schools and to the assistant superintendent of the school district.   The fee is collected by a clerk at each high school, hired by the school district for that purpose.   The clerks, who work half time, occupy an empty desk at each school.   The fees they collect go into a general fund.

Each school has an “outreach” program whereby instructors inquire into nonparticipation by students who “should be involved” in the activities.   A fee waiver based on economic need is available upon application by the student.

Prior to concluding that “the performance aspect of the courses in question is not such an integral part of the credit course that the defendant District may not treat the course as part of the regular school curriculum and the performance or activity as [therefore] extra-curricular,” the trial court made the following observations:

“Plaintiffs assert that the activities for which a fee is charged cannot be separated from the credit courses, as they are an integral part of those courses․

“From the evidence it is clear that the defendant District, through its School Board, has determined that the courses do have value without the performance․

“The court cannot say that the performance or activity does not enhance the value of the course.   It is clear from the evidence presented by plaintiffs that an athlete's skills are enhanced by competition.   Commonsense also suggests that a drama or music student's talent is refined by performance.   This does not mean that the course learning and preparation have no value without the performance.   The defendant School Board has determined that the courses do have value without performance and the court cannot, as a matter of law, rule that they do not․”

The trial court concluded the fees were not proscribed by article IX, sections 5 and 6, of the California Constitution;  title 5, section 350, of the California Administrative Code;  Education Code sections 37105, 60070, 35272, or 40001;  or the equal protection guarantees of the state and federal Constitutions, especially as interpreted in Serrano v. Priest (1971) 5 Cal.3d 584, 96 Cal.Rptr. 601, 487 P.2d 1241 and (1976) 18 Cal.3d 728, 135 Cal.Rptr. 345, 557 P.2d 929.²

Contentions on Appeal

Appellants, supported by the State Board of Education and the California Music Educators Association, as amici curiae, contend as follows:

1. Article IX, section 5, of the California Constitution prohibits the activity fees charged to students in the Santa Barbara School District.

2. Title V, section 350, of the California Administrative Code prohibits the charging of the subject fee and has not been overruled by enactment of Education Code section 35160.

3. The fee constitutes “tuition” which is prohibited by Education Code section 37105 and other provisions of the Education Code.

4. Since the fee system enacted in Santa Barbara produces substantial disparity between school districts, it contravenes the equal protection mandate of Serrano v. Priest, supra, 18 Cal.3d 728, 135 Cal.Rptr. 345, 557 P.2d 929, and is therefore illegal.

Discussion

Title V, section 350, of the California Administrative Code provides:  “A pupil enrolled in a school shall not be required to pay any fee, deposit, or other charge not specifically authorized by law.”   Accompanying the provision is a note that reads:  “Specific authority cited for Section 350:  Section 5 of Article IX, California Constitution.” ³  Appellants maintain that since the subject fee is “not specifically authorized by law” it must fall under section 350.   Respondents argue that section 350 is void, having been superseded by Education Code section 35160, which provides:  “On and after January 1, 1976, the governing board of any school district may initiate and carry on any program, activity, or may otherwise act in any manner which is not in conflict with or inconsistent with, or preempted by, any law and which is not in conflict with the purposes for which school districts are established.”   The trial court took a middle course, concluding that both the state Constitution and section 350 prohibit fees only for courses for which credit is earned towards graduation and therefore is consistent with section 35160, which cannot authorize a school district to charge a fee for a curricular offering for which the student receives credit.

 The most narrow ground upon which we could reverse this case is that, even assuming the trial court's legal reasoning is correct in that districts are prohibited only for charging fees for courses for which credit is earned towards graduation, the “performances” for which activity fees are charged in the case at bench fall within this category.   The “performances,” while labelled “extra-curricular” by the respondents, are in fact an important part of the courses to which they relate, even if the student may receive credit for graduation without taking part in the performances.   We are bound by the trial court's factual determination that while the performance or activity enhances the value of the course “this does not mean that the course learning and preparation have no value without the performance.”

The fact that the courses have value without the performance does not mean that the performances are not part of the essence of the courses.   The distinction respondents have attempted to make between the courses and the performance is artificial.   These “performances” are not the equivalent of activities engaged in by off-campus social clubs or groups of students, who attend the same school and get together on their own and without school sanction for personal pleasure such as the enjoyment of hobbies, music, sports, or social activities.   The performances are directed by school personnel and use school facilities;  they are inextricably linked to courses offered for credit by the school.

We believe the situation that exists in the present appeal is analogous to that in California Teachers Assn. v. Board of Education (1980) 109 Cal.App.3d 738, 167 Cal.Rptr. 429.   While upholding a summer school operation under a grant of use agreement to a private organization, the court observed that while there are no requirements that a school district operate a summer school program, if it does choose to operate a summer school “there are no laws authorizing fees or other charges for summer school operated by local districts.”  (Id., at p. 746, 167 Cal.Rptr. 429.)   The court, citing article IX of the California Constitution as well as section 350 of Title V of the California Administrative Code, observed that “[i]t is absolutely clear that pupils attending public schools operated by local school districts in California are entitled to attend those schools free of any charge or tuition not specifically authorized by law.”  (Id., at p. 745, 167 Cal.Rptr. 429.)   Similarly, schools need not offer some of these performance activities;  but if they are offered—and in connection with credit courses—there can be no fee not specifically authorized by law.

Furthermore, since these fees are “not specifically authorized by law,” they are impermissible under section 350, even if to some degree “extracurricular.”  Education Code section 35160 does not allow school districts to impose such fees in violation of section 350.   As the trial court recognized in its memorandum decision, several opinions of the California Attorney General prior to the passage of section 35160 held that a variety of fees charged by school districts were unlawful because not authorized by law as required by section 350.   While “the construction of a statute is a judicial rather than an administrative function” (Smith v. Anderson (1967) 67 Cal.2d 635, 641, fn. 5, 63 Cal.Rptr. 391, 433 P.2d 183), opinions of the Attorney General are entitled to “great weight․”  (Smith v. Municipal Court (1959) 167 Cal.App.2d 534, 539, 334 P.2d 931;  Miranda v. Department of Human Resources Development (1973) 33 Cal.App.3d 314, 319, 109 Cal.Rptr. 35;  Cristmat, Inc. v. County of Los Angeles (1971) 15 Cal.App.3d 590, 595, 93 Cal.Rptr. 325.)   In 39 Ops.Cal.Atty.Gen. 136 (1962), the Attorney General ruled that high school districts could not charge fees for elective bowling classes offered by the district.   Relying on the California Constitution, the predecessor to section 350, and Ward v. Flood (1874) 48 Cal. 36, 51,⁴ the opinion referred to a series of opinions by the Attorney General's office that school districts have “no authority to charge fees for any classes, elective or compulsory, offered as part of their instructional programs.  [Citations.]”  (Id., at p. 137.)   The opinion also observed “we have previously concluded that school districts were not empowered to charge fees for registration, catalogs, examinations, program changes, towels for use in physical education courses, materials and supplies required for courses, laboratory use, R.O.T.C. insignia, and diplomas.”  (Id., at p. 137.) ⁵  Registration guides of the high schools, introduced in evidence at the trial, demonstrate how important the performance is considered to all of these courses.   A charge for the performances is, in light of the entire record in this case, a charge for instructional programs.

 In hailing Education Code section 35160 as a beacon for “permissive decision making by local boards,” respondents and some amici curiae neglect the limitations on the authority of section 35160 by its very terms.   The governing board of a school district may act only if the action “is not in conflict with or inconsistent with, or preempted by, any law and which is not in conflict with the purposes for which school districts are established.”   As discussed above, the California Supreme Court in Ward v. Flood, supra, 48 Cal. at page 51, clearly stated that one of the purposes for which the school districts in California were established was to educate children “at the public expense.”  Education Code section 35160 does not permit local school districts to educate students by means other than at public expense.

 In addition, we believe the doctrine of preemption applies.  “ ‘When there is a doubt as to whether an attempted regulation relates to a municipal or to a state matter, or if it be the mixed concern of both, the doubt must be resolved in favor of the legislative authority of the state․’  (Abbott v. City of Los Angeles (1960) 53 Cal.2d 674, 681 [3 Cal.Rptr. 158, 349 P.2d 974] ․)   A local ordinance that deals with matters of statewide concern is void if it conflicts with general state law intended by the Legislature to occupy the field to the exclusion of municipal regulation.  [Citations.]”  (Younger v. Berkeley City Council (1975) 45 Cal.App.3d 825, 830, 119 Cal.Rptr. 830.)   The subject fees are in conflict with, inconsistent with, and preempted by section 350.  “The provisions of the Administrative Code, ․ have the force and effect of state law.  [Citation.]”  (Alta-Dena Dairy v. County of San Diego (1969) 271 Cal.App.2d 66, 75, 76 Cal.Rptr. 510.) ⁶  Such regulations must be adhered to.  (McKinny v. Board of Trustees (1982) 31 Cal.3d 79, 93, 181 Cal.Rptr. 549, 642 P.2d 460.)   While section 35160 might allow local school districts more freedom in other areas, it does not allow them to charge fees that cannot be charged under section 350, Title V, of the California Administrative Code.⁷

Because of our resolution of this issue, it becomes unnecessary to decide whether equal protection considerations (see Serrano v. Priest (1971) 5 Cal.3d 584, 96 Cal.Rptr. 601, 487 P.2d 1241;  Serrano v. Priest (1976) 18 Cal.3d 728, 135 Cal.Rptr. 345, 557 P.2d 929);  article IX, section 5, of the California Constitution;  or other sections of the Education Code independently prohibit the types of fees charged by respondent high school district in the case at bench.

Like the trial court, this court acknowledges the serious fiscal constraints faced by the school district.   We further acknowledge the good faith effort by parents and citizens to provide a means whereby school athletics, drama, band, and choir can be maintained for the benefit of students;  these activities broaden the experiences and horizons of our student population.   As asserted by the State Board of Education, however, the issue is not whether the fees are reasonable in their amount or purpose.   Rather, the issue is whether they are legally permissible.  (Concerned Parents v. Caruthersville Sch. D. (1977 Mo.) 548 S.W.2d 554.)

There may be ways in which valid state-wide legislation permitting such fees may be enacted.   However, for the reasons we have stated, the activity fee before us, however reasonable from an economic standpoint, is not legal in view of section 350.

The judgment is reversed.

FOOTNOTES

1.   Although the school board adopted the policy that a student could pay the fee and, with the permission of the instructor, participate in the activity without attending the class, the trial court found no evidence any student elected this option.   Moreover, in its memorandum of opinion, the trial court noted the choral director at one high school testified he would not have consented to such an arrangement.

2.   The trial court further concluded that plaintiffs had standing to sue, an issue raised below but not contested on appeal.

3.   Article IX, section 5, of the California Constitution 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.”  (Emphasis added.)

4.   Ward v. Flood, supra, 48 Cal. at page 51, provides in part, “[t]he public law of the State—both the Constitution and Statute—having established public schools for educational purposes, to be maintained by public authority and at public expense, the youth of the State are ․ equally entitled to be educated at the public expense.”  (Emphasis added.)

5.   Opinions of the Attorney General subsequent to the enactment of section 35160 or its predecessor statute corroborate the view that the permissive education concept “authorizes the Legislature to permit each school district to devise its education programs to fit local educational needs.”  (Emphasis added.)  (60 Ops.Cal.Atty.Gen. 177, 178 (1977);  64 Ops.Cal.Atty.Gen. 146, 147 (1981).)   In a community college case involving analogous statutes to section 35160 and section 350 (Educ.Code, §§ 72233 and 72289), the Attorney General in 60 Ops.Cal.Atty.Gen. 353, 355 (1977) found that since no statute specifically provided authority for a mandatory fee to finance construction of a student union, the district does not have such authority.

6.   Section 350, unlike the administrative regulation found inconsistent with the statute it was intended to implement in Rosas v. Montgomery (1970) 10 Cal.App.3d 77, 92, 88 Cal.Rptr. 907, is completely consistent with the California Constitution provision mandating “free” schools.

7.   Our review of the legislative history of section 35160 convinces us that the intent was to authorize the Legislature to delegate power, as it chooses, to school districts to promote flexibility in educational programs, but not as to school financing.  (The Final Report of the Advisory Committee for a Permissive Education Code, Recommendations for a Permissive Education Code, submitted to Assembly Education Committee, September 1977;  The Detailed Analysis by the Legislative Counsel on Proposition 5 in the Voter's Pamphlet for the November 7, 1972, general election (White v. Davis (1975) 13 Cal.3d 757, 775, fn. 11, 120 Cal.Rptr. 94, 533 P.2d 222).)

LUI, Associate Justice.

KLEIN, P.J., and DANIELSON, J., concur.