dissenting.
I cannot agree with the majority’s analysis of the free public education constitutional issue or the result reached. Accordingly, I dissent.
The question presented for decision is, "What is 'an adequate education’ within the meaning of Article VIII, Section I, Paragraph I of the Constitution of Georgia of 1976, Code Ann. § 2-4901?” If the "summer school program” in question fits within the meaning of the phrase "an adequate education” as used in the free public education clause of our Constitution, then the City of Atlanta Public School System cannot charge the "tuition fees” that lie at the heart of the controversy in the present case.
"A public school system from which resident pupils can be excluded because they are unable or unwilling to pay for admission, is not the system contemplated by the constitution . . . There is no hint in the constitution that these schools are to be open to persons who pay and closed *870against those who do not pay.. . There can be no doubt that municipal public schools, in so far as they perform the functions of common schools, are to be free to the children of the municipality, just as the ordinary common schools are free to the children of the State.” Irvin v. Gregory, 86 Ga. 605, 613 (13 SE 120) (1890). "The schools forming a part of the common-school system of the State shall, by express provision of the constitution, be free to the children of the State... A charge for matriculation cannot be imposed as a condition of admission, to a public school forming a part of such general system, of a child living in the territory of the school and otherwise qualified.” Wilson v. Stanford, 133 Ga. 483, 485 (66 SE 258) (1909). See also Claxton v. Stanford, 160 Ga. 752 (128 SE 887) (1925); Moore v. Brinson, 170 Ga. 680 (154 SE 141) (1930). "By the constitution of this State the common schools ... shall be free to all the children of the State . . . The State system of education provided for in the above provision of the constitution embraces high schools operated by funds whether derived from taxation or otherwise; and no matriculation fee can be charged for children within the school age.” Brinson v. Jackson, 168 Ga. 353 (1) (148 SE 96) (1929).
The Constitution itself does not answer the question presented. Accordingly, this court must. Thompson v. Talmadge, 201 Ga. 867, 872 (41 SE2d 883) (1947). Acts of the General Assembly are instructive in reaching our decision and are entitled to great weight. However, the General Assembly cannot by its enactments deprive the citizens of rights either granted or protected by the Constitution. Thompson v. Talmadge, supra.
The majority relies upon the 180-day minimum school year requirement of Code Ann. § 32-658a for its conclusion that the summer school program, which is commenced and conducted after the termination of the 180-day period, is not to be considered a part of "an adequate education” which must be provided free of charge to pupils attending the public elementary and secondary schools. I regard Code Ann. § 32-658a as being instructive but not controlling. Code Ann. § 32-658a (a) provides one of the many factors of the complicated statewide funding laws pursuant to which it is *871determined whether, and if so, how much, state funding shall be received by each local board of education to help defray the costs of providing an adequate program of education. Equally indicative of the intention of the General Assembly is the compulsory school attendance law, which states that "The minimum session of annual school attendance required... shall be 175 School days, or for the full session or sessions of the school which the child is eligible to attend.” Code Ann. § 32-2105. Another indicator of legislative intent is to be found in Code Ann. § 32-645a (b) (2), pertaining to year-round operation of the public schools, wherein it is stated "that for a student’s first 165 or more days constituting three quarters or an equivalent plan approved by the State Board of Education, attendance shall be on a tuition free basis...” From these varied provisions, this court at least should have determined that the 180-day period of days relied upon by the majority is not the only indicator of legislative intent. Each of these provisions, in its own way, is indicative of what the General Assembly considers to be what might be termed "a complete or regular school year” for the public elementary and secondary schools. However, this approach to analysis of the issues is valid only if one accepts Atlanta’s contention that the General Assembly is the sole arbiter of what is "an adequate education” within the meaning of the constitutional provision in question. See Thompson v. Talmadge, supra. Were that to be the case, then, presumably, the General Assembly could reduce or increase from year to year the number of days of public elementary and secondary schooling it is willing to support partially with State funds, and our free public education clause thereby would expand and contract in its reach from year to year based alone upon the willingness of the General Assembly to support public education or based alone upon the funds at its disposition from which appropriations of matching state aid could be made. Surely there is more substance to the free public education clause than the majority’s analysis would suggest. The majority’s construction of the clause entirely ignores the fact that a substantial portion of the public funds expended on public elementary and secondary education are raised at the local level. See Code *872Ann. § 32-639a. It further ignores the fact that a substantial portion of the decision-making power regarding education is vested by the Constitution in the local boards of education. See Bedingfield v. Parkerson, 212 Ga. 654 (94 SE2d 714) (1956); Warren v. Davidson, 218 Ga. 25 (126 SE2d 221) (1962).
In considering these matters, the majority should have been mindful that the issue presented is not whether or not Atlanta must provide any particular quantity or quality of education. Cf., Callihan v. Reid, 149 Ga. 704 (101 SE 914) (1919). Neither is the issue one of whether Atlanta is authorized to conduct the "summer school program.” Cf., Worth v. Bd. of Public Ed., 177 Ga. 166 (170 SE 77) (1933). Rather, the sole question is whether the Atlanta Board of Education may charge tuition for a particular program it voluntarily has chosen to provide for its pupils who voluntarily have chosen to attend.
The courses in question were taught after the end of the regular school year. They were offered to regular high school students, who received regular high school credits if they "achieved designated course goals.” Accordingly, this case is to be distinguished from Smith v. Crim, 240 Ga. 390 (240 SE2d 884) (1977), which was concerned with interscholastic sports that were extracurricular in the sense that they were "not essential to the prescribed curriculum which must be made available to all of Georgia’s children.” 240 Ga. at 391. The courses in question in the present case not only are academic; they also may be counted among a pupil’s high school credits if the student attains the requisite level of familiarity with the course materials. These courses thus are to be distinguished from the non-credit "adult education” or "enrichment” courses as to which the amicus parties have expressed serious concerns.
Another point seemingly overlooked by the majority is the fact that if Atlanta may charge a modest "tuition fee” to help defray the costs of the courses in question, then there is absolutely nothing in the laws of Georgia cited to this court or found by me which would preclude Atlanta from charging its "summer school” pupils the entire cost of their summer program, with no public funds of any sort, local or otherwise, being expended in support *873of the program. Perhaps the laws are silent in this regard because it never occurred to anyone until now that even a partial charge was permissible.
As I read the majority’s opinion, two tests are applied to reach the result that the "tuition fee” charges may be levied against the pupils of Atlanta’s "summer school.” The majority first notes that the courses of study are offered after what I have termed "the regular school year” has ended. Secondly, the courses are offered, according to the stipulations of the parties, without "direct” state financial aid. The parties, it will be noted, most carefully have avoided contending that there are no state tax dollars expended in support of the "summer school program” and have strictly limited their stipulations by the adjective "direct.” I, for one, fail to comprehend how it matters under the free public education clause whether the state aid is "direct” or "indirect,” whatever those modifiers mean, as long as it is present, a fact which is denied by no one. And, as I have said, even were it to be the case that no state financial aid at all is provided for the program in question, I cannot overlook the locally raised public funds that are expended in support of the program. Brinson v. Jackson, 168 Ga. 353 (1) (148 SE 96) (1929). The free public elementary and secondary education that is guaranteed by the Constitution is provided by the state through the cooperative efforts of the State Board of Education and the various local boards of education, and by local as well as state public funds. See generally, Code Ann. § 32-601a et seq. The decision of the majority should not have been influenced by the absence of state funding, much less by the absence alone of "direct” state funding. Brinson v. Jackson, supra.
The Atlanta Public School System seeks to distinguish the "summer school program” from the educational program conducted .during the regular school year on the basis that the summer program is a separate period of instruction beginning after the end of one regular school year and ending before the commencement of the next; and that it is voluntary, rather than compulsory. I believe this is a classical example of a distinction without a difference of substance. According to the stipulations of the parties, most, if not all, of the courses *874being taught during the "summer school program” are high school credit courses that are taught during the regular school year. If the courses were not taken voluntarily by these students during the "summer school program,” then they (if they are mandatory courses) or other credit courses (if they are electives) would have to be taken during the upcoming regular school term or during some other school term before graduation. The substance of the instructional programs thus is the same, and I cannot perceive how this substance somehow is changed by virtue of when the pupil takes the course, either mandatorily during the regular school year or voluntarily during "summer school.” Suppose that instead of ending the regular session before commencing the "summer school program,” Atlanta had chosen merely to extend for a few days the length of the regular program. This would cause the program to be mandatory instead of voluntary. Code Ann. § 32-2105. But the substance of the courses of study would be the same. Can the constitutional command be so easily evaded?
In reaching the conclusion that at least some of the courses contained in the program of education challenged in the present case fall within the ambit of the "adequate education” which must be free to our citizens, I am influenced most by the fact that some (if not all) of the courses are regular high school courses for which regular high school credit is given upon successful completion of required academic goals. These courses merely are being taught at a time of the year when the regular school year has closed, and their costs are not being partially defrayed by "direct” state aid, whatever that is. It matters not at all to me when the courses were taken. Nor does it matter that "direct” state aid was not received by Atlanta. The test I would apply is simply stated and is easy to apply. When the Atlanta public schools decided to give high school credit for a course of study, that course became a part of "an adequate education” for which no "tuition fee” may be charged. The reason is that both elementary and secondary education (but not post-secondary education) now are the components of "an adequate education.” State of Ga. v. Regents, University System, 179 Ga. 210 (175 SE 567) (1934); Brinson v. Jackson, 168 Ga. 353 (1), supra.
*875The majority seeks to distinguish Claxton v. Stanford, supra, and Brinson v. Jackson, supra, from the present case on the basis that the fees in those cases had to be paid before the student was allowed to enter the regular school term, whereas, in the present case, the pupils were allowed to enter the regular school term without paying fees. Appellees deny that the pupils in Claxton or Brinson were precluded from attending the regular program if they did not pay for the extra program. Appellants admit that Claxton does not indicate that the fee was required to be paid prior to entering the regular program, although they contend this often was the practice in those days. Under these circumstances, I believe the majority has failed to distinguish those two cases on their facts. Accordingly, those cases control the result in the present case, and the majority should have followed them and held that the "tuition fees” in this case cannot constitutionally be collected.
The ruling suggested by this dissent would have no effect on programs of instruction offered to public elementary or secondary school pupils, older children, adults, or the elderly, for which no elementary or high school credit is offered. Programs of education beyond high school credit courses are not within the ambit of the free public education clause. State of Ga. v. Regents, University System, supra.
Atlanta and the parties amicus curiae contend that the ruling proposed by this dissent could cause "summer school programs” to be discontinued for lack of funds. This is the mischief Atlanta says it seeks to avoid. An even worse mischief could result from the decision of the majority. The majority’s opinion is an open invitation to local boards of education to cease all public financial support for "summer school programs,” and to fund these programs entirely from "tuition fees,” when there are no "direct” contributions of financial assistance for these programs forthcoming from the state. I fear the discontinuance of these programs due to the loss of all public funding far worse than I fear their discontinuance due to the absence of ten-dollar contributions from participating students.
Accordingly, I respectfully dissent.
*876I am authorized to state that Justice Hall joins in this dissent.