No. 85-540
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
STATE OF MONTANA, ex rel., BOB
BARTMESS, PAT BARTMESS, MARY K.
BARTSCH, JULIE CLONINGER, NITA
CREACH, GARY A HULL, ED KIBLER,
DIANA KIBLER, et al.,
Relators and Appellants,
BOARD OF TRUSTEES OF SCHOOL DISTRICT
NO. 1 and HIGH SCHOOL DISTRICT NO. 1,
LEWIS & CLARK COUNTY, et al,
Respondents and Respondents.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Frank Davis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Robert T. Cumrnins argued, Helena, Montana
Randy K. Dix argued, Helena, Montana
For Respondent:
Smith Law Firm; Chadwick H. Smith argued for School
Dist. No. 1 & Bd. of Trustees, Helena, Montana
For Amicus Curiae:
Goetz, Madden & Dunn; James H. Goetz for Helena
School Dist. No. 1, et al., Bozeman, Montana
Leaphart Law Firm for Board of Public Education,
Helena, Montana
Charles Erdmann for Mont. School Board Assoc.,
Helena, Montana
Gough, Shanahan, Johnson & Waterman; Ronald Waterman
argued for Montana High School Assoc., Helena, Montana
Submitted: August 251 1986
Decided: September 18, 1986
Filed: SEP 13 1986
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
This is an appeal of a summary judgment of the District
Court for Lewis and Clark County which upheld the requirement
that Helena high school students participating in extracur-
ricular activities maintain a 2.0 grade average. We affirm.
Relators appeal and raise the following issue: Did the
District Court err as a matter of law in holding that under
the United States and Montana Constitutions participation in
existing extracurricular activities is not a fundamental
right?
Relators are citizens and taxpayers of Lewis and Clark
County and parents of students enrolled in the two Helena
high schools. They object to the rule adopted by respondents
requiring a student to maintain a 2.0, or "C", grade average
for the preceding nine weeks in order to participate in
extracurricular activities in the following nine week grading
period. Extracurricular activities are those which do not
earn credit toward graduation, including athletics, band,
choir, speech, drama, cheerleading, drill team, student
council, and holding class office. The 2.0 rule does not
apply to special education students or students with learning
disabilities.
The Helena high schools are members of the Montana High
School Association (MHSA) . The MHSA requires a 1.0, or "D",
grade average for participation in extracurricular activi-
ties. Its regulations permit member schools to adopt more
stringent policies. The National Collegiate Athletic Associ-
ation (NCAA) requires a minimum grade point average of 2.0 to
participate at the college level in practice, regular season
competition and athletically related financial aid during the
first academic year.
Respondents adopted the 2.0 rule as an incentive for
students who desire to participate in extracurricular activi-
ties. The 2.0 rule is a higher standard than that needed for
graduation from Helena high schools, which is a 1.0 grade
average in required courses. Respondents admit the 2.0
policy is not based on any scientific or statistical studies
showing academic improvement by students following the adop-
tion of such a policy.
Relators brought an action in District Court requesting
injunctive relief and a declaratory judgment that the 2.0
rule was unconstitutional. The complaint alleged violation
of the equal protection and equal educational opportunity
clauses of the Montana Constitution. Following briefing and
summary judgment motions by both parties, the District Court
ruled in favor of respondents. The District Court found the
2.0 rule to be "a reasonable, fair, equitable and
non-discriminatory policy, promulgated for the purpose of
implementing the constitutional and statutory mandated educa-
tional goals of the school district. In its application, the
requirement does not violate any constitutionally protected
rights of these Relators, State or Federal. . ."
Amicus briefs were filed by several parties, some of
whom addressed wider issues than the one now before us. We
are not ruling upon the issue of whether or not the right to
education itself is a fundamental right. We are not ruling
upon whether the failure to offer any extracurricular activi-
ties may result in a constitutional deprivation, nor whether
extracurricular activities are in any way an indispensable
component of the basic system of free quality public
education. We are not in any way considering or ruling upon
the question of funding education in Montana, including the
funding of extracurricular activities, and are not consider-
ing any of the contentions being made that equal educational
opportunity may require some specific types of funding. None
of these issues is before us.
The issue appealed concerns the standard of review under
which the 2.0 rule will be considered. Equal protection
analysis traditionally involves one of two standards. A
state action which burdens a fundamental right is subject to
strict scrutiny and must be based upon a compelling state
interest. An action which infringes upon a right which is
not fundamental must only be rationally related to a legiti-
mate government objective. A third middle-tier level of
constitutional analysis has been recently recognized in
Montana. - Butte Community Union v. Lewis (~ont.1986), 712
See
The relators contend that the right to participate in
extracurricular activities is fundamental and that the strict
scrutiny standard therefore applies. The United States
Supreme Court has held that education is not a fundamental
right guaranteed by the federal Constitution. San Antonio
School District v. Rodriguez (1973), 411 U.S. 1, 93 S.Ct.
1278, 36 L.Ed.2d 16. Based on that holding, we conclude that
participation in extracurricular activities is not a funda-
mental right under the U.S. Constitution. However, that does
not preclude a finding that the right is fundamental under
Montana's Constitution.
The relators cite Moran v. School District # 7,
Yellowstone County (D.Mont. 1972), 350 F.Supp. 1180. In
that case, Federal District Judge Murray said this Court had
recognized extracurricular activities as an "integral part of
the total educational process." The court there overturned a
school rule which denied a married high school student the
right to participate in extracurricular activities. Since
that case involved the right to marriage, there was a sepa-
rate ground for heightened constitutional scrutiny. While we
agree that extracurricular activities are part of the educa-
tional process, the case is not authority because of the
marriage aspect.
The Moran decision was based on language in a case which
relators also cited, McNair v. School Dist. No. 1 (1930), 87
Mont. 423, 428, 288 P. 188, 190:
Under the heading "Education," our Constitution
declares that "it shall be the duty of the legisla-
tive assembly of Montana to establish and maintain
a general, uniform and thorough system of public,
free, common schools." . . .
[I]t is clear that
the solemn mandate of the Constitution is not
discharged by the mere training of the mind; men-
tality without physical well-being does not make
for good citizenship--the good citizen, the man or
woman who is of the greatest value to the state, is
the one whose every faculty is developed and alert.
That case arose out of a taxpayer's objection to the con-
struction of a gymnasium and athletic field. This Court held
the school board had been granted the authority to provide
such facilities. The 'solemn mandate of the Constitution'
discussed in McNair has been reworded in our 1972 Constitu-
tion, Art. X, § l(3): "The legislature shall provide a basic
system of free quality public elementary and secondary
schools." The emphasis in McNair was that education should
attempt to improve mental, physical, and moral powers.
This Court recently recognized that not all constitu-
tionally important rights are fundamental rights. The hold-
ing in Butte Community Union was that a right to welfare,
which is lodged in our State Constitution, "is an interest
whose abridgement requires something more than a rational
relationship to a governmental objective." However, we
concluded that the right to welfare was not a fundamental
right, and stated:
In order to be fundamental, a right must be found
within Montana's Declaration of Rights or be a
right "without which other constitutionally guaran-
teed rights would have little meaning." In
the Matter of C.H. (Mont. 1984), 683 P.2d 931, 940,
41 St.Rep. 997, 1007.
Butte Community Union, 712 P.2d at 1311. The right to wel-
fare was not found within Montana's Declaration of Rights nor
did we conclude it was a right without which other constitu-
tionally guaranteed rights would have little meaning.
Participation in extracurricular educational activities
is not found within Montana's Declaration of Rights. The
second portion of the test, whether the right is one without
which other constitutionally guaranteed rights would have
little meaning, is more difficult and we conclude, is best
addressed by an analysis of Montana's constitutional provi-
sions as to education.
The McNair case demonstrates that physical and moral
development are important aspects of education. The state
has an important interest in seeing that its young citizens
receive a basic quality education under Art. X, S 1, Mont.
Const. (1972): "It is the goal of the people to establish a
system of education which will develop the full educational
potential of each person." The provisions of Art. X demon-
strate that there are constitutional rights and obligations
which extend to all sides of the question of education.
There is the right to equality of educational opportunity
guaranteed to each person. There is the goal to establish a
system of education which will develop the full educational
potential of each person. There is a requirement that the
State's educational goals recognize and preserve the cultural
heritage of American Indians. The legislature is obligated
to provide a basic system of free quality education. The
state board of education is responsible for long-range plan-
ning, coordination and evaluation of the systems with regard
to such rights and obligations. The school trustees are
vested with the authority to discharge these obligations and
protect the rights.
Our review of the educational provisions of the Montana
Constitution demonstrates the extreme importance attached to
the various elements of education by the people of Montana in
adopting the Constitution. This review suggests that the
various aspects of education under our Montana Constitution
could be classed as "fundamental" because of the critical
importance of developing the full educational potential of
each citizen. However, we are required to analyze the educa-
tional aspect of extracurricular activities from an equal
protection standpoint. Gerald Gunther, in his law review
article entitled The Supreme Court 1971 Term - Forward:
In Search of Evolving Doctrine on a Changing Court: A Model
for a Newer Equal Protection, 86 Harv.L.Rev. 1 (1972), points
out that where a statute impinges on a right which is classed
as fundamental, strict scrutiny of that statute is required
and the result is invariably fatal to the statute. Justice
Marshall commented on the fatal nature of strict scrutiny
analysis in his dissenting opinion in Massachusetts Bd. of
Retirement v. Murgia (1976), 427 U.S. 307, 318, 96 S.Ct.
2562, 2569, 49 L.Ed.2d 520, 528:
Although the Court outwardly adheres to the
two-tier model, it has apparently lost interest in
recognizing further "fundamental" rights and "sus-
pect" classes. ..In my view, this result is the
natural consequence of the limitations of the
Court's traditional equal protection analysis. If
a statute invades a 'lfundamental" right or discrim-
inates against a "suspect" class, it is subject to
strict scrutiny. If a statute is subject to strict
scrutiny, the statute always, or nearly
always ... is struck down. Quite obviously, the
only critical decision is whether strict scrutiny
should be invoked at all. It should be no sur-
prise, then, that the Court is hesitant to expand
the number of categories of rights and classes
subject to strict scrutiny, when each expansion
involves the invalidation of virtually every clas-
sification bearing upon a newly covered category.
In a similar manner, we pointed out that the strict scrutiny
test requires the State to show a compelling state interest
and is seldom satisfied. Butte Comrnunitv Union. 7 1 2 P.2d at
Our analysis of the educational provisions of our Mon-
tana Constitution demonstrates there are competing and in
some cases contradictory viewpoints which must be considered
in determining whether the educational aspects of extracur-
ricular activities are a right under our Constitution. We
conclude that the only standard of constitutional review
which allows a careful balancing of these competing interests
is middle-tier analysis. We therefore hold that the
middle-tier constitutional analysis is to be applied in
determining whether the 2.0 rule violates students1 right to
participate in existing extracurricular activities. We
further hold that this right is not a fundamental right under
the Montana Constitution; but that such right is clearly
subject to constitutional protection and that a middle-tier
analysis is to be applied for constitutional equal protection
purposes.
The standard of review used under Montana's middle-tier
constitutional analysis is a "balancing of the rights in-
fringed and the governmental interest to be served by such
infringement." Butte Community Union, 712 P.2d at 1314. As
in Butte Community Union, our first inquiry is whether the
classification is reasonable. Specifically, is the classifi-
cation of students eligible to participate in extracurricular
activities on the basis of a 2.0 rule reasonable? Then we
must examine whether the government interest in making this
classification based upon academic grades is more important
than the students' interest in participating in existing
extracurricular activities. In other words, the school
district must demonstrate that its classification is substan-
tially related to an important governmental objective.
The action of the trustees places attaining minimum
grades in academic subjects above participating in
non-academic or extracurricular activities for which no
graduation credits are given. The 2.0 rule does not apply to
special education students or students with learning disabil-
ities. While it is not based on studies showing improved
grades for students operating under such a rule, it cannot be
denied that the rule is an incentive for those students who
wish to participate in extracurricular activities. It also
promotes adequate time to study for those students who have
not maintained a 2.0 grade average. We conclude that the
classification is a reasonable one.
The priority given to academic over non-academic work to
the extent found here does not contradict this Court's state-
ment in McNair that physical and moral education are also
important. We are not able to conclude, as the relators
urge, that an opportunity to participate in extracurricular
activities is more important than the achievement of average
academic performance. We conclude that the government inter-
ests in developing the full educational potential of each
person and providing a basic system of quality public educa-
tion by the enactment of the 2.0 rule outweigh the students'
interest in participating in existing extracurricular
activities.
We hold that the District Court did not err in holding
that participation in existing extracurricular activities is
not a fundamental right. We further hold that the 2.0 rule
does not violate the Constitution of the State of Montana.
Affirmed.
We Concur: 0"
I
Justices
Mr. Justice Frank B. Morrison, Jr. specially concurs as
follows:
I concur in the result but the majority Opinion is not
entirely clear on a central issue.
First we must decide whether education is a. fundamental
right. The United States Supreme Court has held that
education is not a fundamental right guaranteed by the
federal Constitution. San Antonio School District v.
Rodriquez (1972), 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16.
In Rodriquez, it was argued that education is fundamental
because it is essential to the effective exercise of First
Amendment freedoms and the right to vote. The Court
disagreed, stating " [W] have never presumed to possess
e
either the ability or the authority to guarantee to the
citizenry the most effective speech or the most informed
electoral choice." 411 U.S. at 36, 93 S.Ct. at 1298, 36
In the recent case of Plyler v. Doe (1981), 457 U.S.
202, 102 S.Ct. 2382, 72 L.Ed.2d 786, the Supreme Court
reaffirmed its holding in Rodriquez that education is not a
fundamental right guaranteed by the federal Constitution.
Despite its holding, the Court placed great emphasis on the
importance of education:
But neither is it merely some governmental
"benefit" indistinguishable from other forms of
social welfare legislation. Both the importance of
education in maintaining our basic institutions,
and the lasting impact of its deprivation on the
life of the child, mark the distinction. The
"American people have always regarded education and
[the] acquisition of knowledge as matters of
supreme importance." Meyer v. Nebraska, 262 U.S.
390, 400 (1923).
Plyler, 457 U.S. at 221, 102 S.Ct. at 2397, 72 L.Ed.2d at
801.
This Court is not bound by the decisions of the United
States Supreme Court where independent state grounds exist
for developing expanded rights under our state Constitution.
Butte Community Union v. Lewis (Mont. 1986), 712 ~ . 2 d1309,
43 St.Rep. 65; Pfost v. State (Mont. 1985), 713 P.2d 495, 42
St.Rep. 1957.
In Butte Community Union, supra, we said, "1n order to
be fundamental, a right must be found within Montana's
Declaration of Rights or be a right without which other
constitutionally guaranteed rights would have little
meaning." 712 P.2d at 1311, 43 St.Rep. at 68; citing In the
Matter of C.H. (Mont. 1984), 683 P.2d 931, 940, 41 St.Rep.
997, 1007.
The right to education is not enumerated in Montana's
Declaration of Rights but is found in Art. XI 1,
Mont.Const. (1972). This section provides in part: "It is
the goal of the people to establish a system of education
which will develop the full educational potential of each
person," and further directs the legislature to "provide a
basic system of free quality public elementary and secondary
schools. '
I
The official committee comment to Art. X I S 1, opens
with a statement stressing the importance of education in
Montana:
Education occupies a place of cardinal importance
in the public realm. The educational system is
charged with the task of shaping and cultivating
the mind of each succeeding generation and with
developing the capacities for cultural and
technical advancement of society.
For many, denial of a basic education would result in
either illiteracy or severely retarded growth. Such
individuals would be restricted from exercising, in a
meaningful way, fundamental rights guaranteed in the
Declaration of Rights such as the right to vote, right of
participation, and right to know. Education is essential to
even the most elemental exercise of many rights guaranteed by
the Montana Constitution.
Education cannot be characterized as merely a benefit as
was welfare in Butte Community Union , supra. The right to
an education is not restricted in any manner. One need not
qualify. Education is for all. Pursuant to Art. X, § 1, the
legislature must provide a basic system of public schools,
and each person is guaranteed equality of educational
opportunity. In view of this constitutional mandate and the
fact that education is essential to the exercise of other
constitutionally guaranteed rights, we should clearly hold
that basic education is a fundamental right under the Montana
Constitution.
Next, we should address relators' contention that
participation in extracurricular activities is a fundamental
right which may be infringed only upon a showing of a
compelling state interest. Relators cite Moran v. School
District No. 7 (D.Mont. 1972), 350 F.Supp. 1180, in which the
federal district court found that the right to attend school
includes the right to participate in extracurricular
activities. In Moran, the court found the school board's
rule prohibiting married students from participating in
extracurricular activities did not meet even a rational basis
test. The court cited language from this Court's decision in
McNair v. School District No. 1 (1930), 87 Mont. 423, 288 P.
188:
[Ilt is clear that the solemn mandate of the
Constitution is not discharged by the mere training
of the mind; mentality without physical well-being
does not make for good citizenship--the good
citizen, the man or woman who is of the greatest
value to the state, is the one whose every faculty
is developed and alert.
Education may be particularly directed to either
mental, moral or physical powers or faculties, but
in its broadest and best sense it embraces them
all.
87 Mont. at 428, 288 P. at 190.
Apparently we have not retreated from the position
announced in McNair, although the majority analysis is
somewhat murky. That case arose as a challenge by a
taxpayer objecting to the construction of a gymnasium and
athletic field. There this Court held the school board had
been granted the authority to provide such facilities. The
emphasis in McNair was that education should attempt to
improve mental, physical, and moral powers. That rationale
still holds force today, but I find the Helena high schools'
2.0 rule is an attempt to guarantee a sound education.
Regardless of whether the extracurricular activity is
academic or non-academic, the state has a compelling interest
in seeing that its young citizens receive a basic quality
education. While the 2.0 rule is not based on studies
showing improved grades by students operating under such a
rule, there can be no denying it is sound incentive for those
students who desire to engage in extracurricular activities.
Further, it assures adequate time to study for those students
affected by the rule.
Montana's strong commitment to providing a quality
system of education is clear under our Constitution. The
state's compelling interest in educating its citizens is
reflected in Art. X, $ 1, Mont.Const. (1972): "It is the
goal of the people to establish a system of education which
will develop the full educational potential of each person."
Respondents' 2.0 rule is a policy designed to achieve this
constitutional directive.
The supervision and control of the public schools in
each district is vested in a board of trustees pursuant to
Art. X I § 8. The trustees' action does not deny educational
opportunity, whether academic or nonacademic, to any
students. Rather it seeks to create priorities within the
curriculum to the end that students will receive the best
education possible.
Relators contend the 2.0 rule violates the guarantee of
equal educational opportunity found in Art. X, $ 1, Mont.
Const. (1972). The committee comments to Art. XI S 1,
reflect a concern that Montana's educational financing system
provide equal educational opportunity.
The subject of "equal educational opportunity" has
become a particularly important doctrine in modern
education. Recent federal, district and state
court decisions have interpreted the Fourteenth
Amendment to the federal Constitution as applying
to educational financing. Under this doctrine, the
state must show a compelling interest to maintain a
classification system by wealth which interferes
with the individual's fundamental right to an
education.
To satisfy the burden of proving the denial of equal
educational opportunity, relators would first have to show
that affected students are incapable of maintaining a 2.0
grade average and are thereby banned in fact from activity
participation. Learning disabled and special education
students are exempted from the rule. Relators have not shown
that they are unable to meet the requirement. With the
exemption noted for special education youngsters, all
students are given the same opportunity.
I would hold that respondents' 2.0 rule is a
constitutionally sound method of furthering the state's
compelling interest in educating its citizens.
Mr. Justice John C. Sheehy, dissenting:
The issue in this case is the validity of the academic
eligibility requirement for participation in extracurricular
activities in High School District No. 1, Lewis and Clark
County, Montana, as follows:
Academic Eligibility. To be eligible to
participate in a Montana High School Association
contest a student must have received a passing
grade in at least twenty periods of prepared work
per week or its equivalent during the last
preceding semesters in which he/she was in
attendance. If a student is assigned an
"incomplete" in a subject, he/she has not received
a passing grade in this subject. The record at the
end of the semester is final and scholastic
deficiencies may not be "made up" in any way.
In addition, Helena School Dist. #1 High School
activity participants (including Athletics, Band,
Vocal, Speech, Drama, Cheerleaders, Drill Team,
Student Council, Class and Organizational
Officers) , must have a 2.0 grade point average the
previous semester. If not in conflict with Montana
High School Association policy, a student will have
two (2) weeks to make up an incomplete.
Further, Helena School Dist. #1 High School
activity participants must be present the entire
day to compete or practice unless permission is
granted through the Principal's office.
On July 22, 1985, the respondent Board of Trustees
enacted the following amendment to the academic eligibility
requirement:
If the grades of a student who is participating in
activities falls below a 2.0 grade point average
for any nine week grading period the student will
be ineligible to participate in activities during
the next nine week grading period. The policy
change will be retroactive to the 1984-85 spring
quarter.
[NOTE: School Board grammar, not mine.]
Under the agreed statement of facts before this Court,
1) extracurricular activities mean activities which do not
earn credit toward graduation; 2) a 2.0 grade point average
is a "C" average; 3) the rule sets a high standard which is
required. for graduation from Helena high schools--whereby in
order to graduate, a student must obtain 21. credits by
receiving a grade of "D" or better in 21 courses.
Participation by Helena high school students in
interscholastic activities in Montana, for Class AA schools
(both Helena high schools are Class AA schools) is allowed
under the rules of Montana High School Association for
students who receive a passing grade "D" in at least 20
periods of prepared work per week. None of the other Class
AA schools, 14 others, require more than a "D" passing grade
for participation in interscholastic activities.
Colleges, on paper at least, have higher standards for
intercollegiate competition. The National Collegiate
Association rule requires a 2.0 grade point average for a
student to be eligible for practice, participation in regular
season competition, and financial aid.
The single issue in this case is the constitutional
validity of the academic requirement rule for participation
in extracurricular activities adopted by the Helena High
School District.
Until today, this Court had followed the rule that a
student's right to participate in extracurricular activities
was constitutionally protected. To be sure, that was not the
majority rule among the several states, but in Montana, we
held unswervingly to that rule, based on our special
constitutional provisions and the interpretation of this
Court in McNair v. School Dist. No. 1 (1930), 87 Mont. 423,
288 P. 188.
In McNair, a Casacade County taxpayer attacked the
validity of a bond issue proposed by School District No. 1 of
that county "for the purpose of constructing an outdoor
gymnasium and athletic field in said district, furnishing and
equipping the same." NcNair attacked the proposed bond issue
on the grounds that the 1889 Constitution did not contemplate
athletic fields, and that the statute which permitted the
erection of gymnasiums did not include athletic fields. The
1889 Constitution provided that the duty of the legislature
was to establish and maintain "a general, uniform and
thorough system of public, free, common schools." In
construing what a "thorough system" meant, this Court said:
What, then, constitutes a "thorough" system of
educa.tion in our public schools? By its voluntary
act, the state has assumed the function of
education primarily resting upon the parents, and
by laws on compulsory education has decreed that
the custody of children be yielded to the state
during the major portion of their waking hours for
five days of the week, and, usually, nine months in
the year. In doing so, the state is not actuated
by motives of philanthropy or charity, but for the
good of the state, and, for what it expends on
education, it expects substantial returns in good
citizenship. With this fact in mind, it is clear
that the solemn mandate of the Constitution is not
discharged by the mere training of the mind;
mentality without physical well-being does not make
for good citizenship--the good citizen, the man or
woman who is of the greatest value to the state is
the one whose every faculty is developed and alert.
Education may be particularly directed to either
mental, moral or physical powers or faculties, but
in its broadest and best sense it embraces them
all. (Emphasis added.)
87 Mont. at 428, 288 P. at 190.
Following McNair, we had the case of Perkins v. Trask,
(1933), 95 Mont. 1, 23 P.2d 982. This was an action against
the members of the School Board for the drowning death of a
pupil in a swimming pool maintained by the School District of
Powell County. The trustees of the School District were
immune from suit if they were performing a governmental
function, and it wa.s the contention of the plaintiff that
because the trustees had authority construct swimming
pool, they were individually liable. In disposing of the
argument that the trustees were not engaged in a governmental
function, this Court said:
Our Constitution imposes the duty upon the
legislative assembly "to establish and ma.intain a
general, uniform and thorough system of public,
free, common schools." (Sec. 1, Art. XI.) This
the legislature has done by the enactment of our
school laws. The courses of study are prescribed
by Section 1054, Revised Codes of 1921, with power
in the boards of trustees "to determine what
branches, if any, in addition to those required by
law, shall be taught in any school in the
district. " [citing authority] .
Also by Chapter
147, Laws 1927, the trustees are given authority to
issue bonds for the purpose of constructing or
acquiring a gymnasium and for furnishing and
equipping the same. (Sec. 1) Under the broad
rules announced in McNair v. School District, 87
Mont. 423, 288 P. 188, 69 ATL.R.866, the trustees
have authority to cons-tructand maintain a swimming
pool for the use of the pupils.
It is also contended that, if the board has the
right to maintain a swimming pool, its right is
optional and not mandatory, and hence the rule of
immunity does not apply. This fact does not alter
the legal principle applicable. (citing
authority).
95 Mont. at 7-8, 23 P.2d at 984.
Thus did our Court hold that a swimming pool in a school
was a performance of an educational duty by the school
trustees.
In Flathead Lake Methodist Camp v. Webb (1965), 144
Mont. 565, 399 P.2d 90, the question was whether the
Methodist Church was entitled to a Montana property tax
exemption for the maintenance of a summer camp on Flathead
Lake in Lake County. The tract involved and consisted of 22
acres on which the Methodist congregations had erected
cottages, dormitories, dining rooms, bathing facilities,
garages, boat dock, water supplies, etc. Webb maintained
that the church was not entitled to a tax exemption for the
property which was used for educational purposes. This Court
said:
Our review of the record leads us to the conclusion
that the "exclusive" use of the premises is for
"educational purposes" within the meaning of the
statute. The term "educational purposes" is not,
by the weight of authority, defined in terms of the
common scholastic institutions of grammar school,
high school, and university or college. (Citing
authority.) Organizations for the social,
intellectual, physical, or religious welfare of
children are exempt equally. - - -of education
The end
may - - develop either - mental, physical, or
be to the
moral qualities. (Citing authority.) ~eligious
education is exempt as an "educational purpose"
Our court has stated: "Education may be
particularly directed to either mental, moral, or
physical powers or faculities, but it is broadest
and best sense it embraces them all." McNair v.
School Dist. No. 1 of Cascade County, 87 Mont. 423,
[428,] 288 P.2d 188, 190, 69 A.L.R. 866. (Emphasis
added. )
144 Mont. at 569, 570, 399 P.2d at 93.
Then came Granger v. Cascade County School Dist. (19721,
159 Mont. 516, 499 P.2d 780. In that case Cascade County
School District had imposed fees in the grade school and high
school for such items as workbooks, chemistry notebooks,
manual arts materials, musical instrument rentals, summer
school, and others. The fees were attacked by the plaintiffs
on the grounds that the constitutional requirement of a.
"thorough system" of public, free schools encompass all
categories of activities in the school and no such fees can
be imposed. There this Court reaffirmed its statement that
education may be directed to mental, moral and physical
powers, and provided this test:
Is a given course or activity reasonably related to
a recognized academic and educational goal of the
particular school system? If it is, it constitutes
part of the free, public school system commanded by
Art. XI, Sec. 1 of the Montana Constitution and
additional fees or charges cannot be levied,
directly or indirectly, against the student or his
parents. If it is not, reasonable fees or charges
may be imposed.
159 Mont. at 516, 527, 499 P.2d at 706.
In addition, the federal district court in Montana
construed our holding in McNair and its following cases as
granting a constitutionally protected right to participate in
extracurricular activities. In Moran v. School Dist. No. 7,
Yellowstone County (D. Mont. 19721, 350 F.Supp. 1180, the
federal court, recognizing the holding in McNair, stated:
In relying on this case the present Montana Supreme
Court has recognized the importance of
extracurricular activities as an integral part of
the total education process. Courts have begun to
recognize that extracurricular activities such as
football are "qenerally recognized - - fundamental
as a
ingredient - - educational process."
in the Kelly v.
Metropolitan County Board of Education of
Nashville, etc., 293 F.Supp. 485, 493 (D.C. 1968).
See also Lee v. Macon County Board of Education,
283 F.Supp. 194 (D.C. 1968). Thus it is apparent
that the right to attend school includes the right
to participate in extracurricular activities.
(Emphasis added.)
In brief and in oral argument, the School Board concedes
that extracurricular activities are "a fundamental ingredient
of the educational process," but, without further explanation
contends that the "fundamental ingredient" is not
constitutionally protected. Some may distinguish a
fundamental ingredient from a fundamental right, but it takes
a quantum jump.
Thus, it was the law in this state until today that
participation in extracurricular activities was a fundamental
ingredient of the educational process; that school boards
which issue bonds or otherwise finance through taxpayers the
erection of athletic fields and gymnasiums or other
provisions for extracurricular activities do so as part of
the educational process; and that fees cannot be charged by
the School Board if a given course or activity is reasonably
related to recognized academic or educational goal. That was
the state of the law when the constitutional framers in 1972
in the new constitution adopted Art. X, § 1, which provides:
(1) It is the goal of the people to establish a
system of education which will develop the full
educational potential of each person. Equality of
educational opportunity is guaranteed to each
person of the state.
Fe
J have been shown no record from the 1972
Constitutional Convention that would indicate that the
constitutional framers wanted to divert extracurricular
activities in schools from the other educational goals.
Indeed, the language used by the constitutional framers in
1972 seems to encompass physical development in the term
"educational potential." For this must be true, if nothing
else is, that the end of our educational system must be to
develop students physically, mentally and morally to meet the
challenges of life.
Of the approximately 2,500 students attending both
Helena high schools, more than 500 of them, with the approval
of this Court, are ousted by the eligibility rule from any
extracurricular activities. If these students found little
to relish in classrooms heretofore, their tedium will never
be relieved by the sweet mix of association with their peers
in other school endeavors, now branded as
"nonessential"--drama, debate, cheerleading, drill team,
student government, class and/or organizational officers, and
yes, interscholastic track, football, basketball and golf.
It is now possible for a student to graduate from either of
Helena's high school without ever being eligible for any
extracurricular activity!
r, Jr, ' 3
We have never had before us a scheme of government so
patently discriminatory. This Court has followed convoluted
equal protection analyses - absurdum to a silly result.
ad Now
a Helena High School girl with a 1.98 grade average and a
good soprano voice is excluded from singing with the Helena
Starlighters. A Gary Cooper or a Myrna Loy, both Helena
products, may now be excluded from the Helena drama classes.
A student can sign up for Spanish, but that student cannot
belong to the Spanish Club, even with a passing grade in
Spanish, if his or her overall average is less than "C." In
any test of fair dealing, those results should instantly be
held irrational, but this Court does not want to apply
rationality standards. It wants to talk about strict
scrutiny and middle term reviews to deny these students
perhaps the only time in their lives to use their God-given
skills to run in track, to twirl batons, to play in bands.
We shoulcl not resort to high-flown concepts of equal
protection law, which are with us today and tomorrow are gone
with the wind, to deny constitutional protection to these
affected students. Even if we reverse this Court in its
prior decisions by holding that no fundamental right is
involved, or by holding that we do not have an inherently
suspect class, equal protection still requires that the rule
be rationally related to a legitimate state interest.
Sullivan v. University Interscholastic League (Tex. 1981),
616 S.W.2d. 170.
The only stated purpose for the rule set out in the
agreed statement of facts is that the rule is "to encourage
higher academic achievement to students who wish to
participate in extracurricular activities." A rule which
places physical, educational and moral development below
mental education slaps at the three legs upon which the
educational stool is built.
This rule is not rationally related to its object for
two reasons: it is guilty of bad breadth, and it is not
rationally related to its intended purpose.
When I say bad breadth, I mean that this rule is so
overbroad that it must eventually be modified by the School
District trustees, and indeed it has already been modified
once. Its intended purpose, to encourage greater academic
achievement, is not supported by any evidence in the agreed
statement of facts or otherwise. It is built more on wish
than fact. No rational relationship has been shown.
It is noteworthy that the exclusion of high school
students from extracurricular activities is so drastic that
it is one of the punishments allowed to trustees for students
who show open defiance of authority, deface school buildings
or threaten other persons. Section 20-5-201, MCA. Thus has
the School Board placed students who earn a grade point
average of less than 2.0 in the category of the rebellious
and defiant. It is patently irrational.
--
il Justice2
lA .
Q &
Mr. Justice William H. Hunt, Sr:
I concur in the dissent of Justice Sheehy.
H