I respectfully dissent. In my view, a local school district properly may charge a fee for optional participation by high school students in extracurricular activities.
Article IX, section 5 of the California Constitution directs: “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.” In clarification, section 6 of that article provides in part: “The Public School System shall include all kindergarten schools, elementary schools, secondary schools, technical schools, and State colleges, established in accordance with law and, in addition, the school districts and the other agencies authorized to maintain them.”
As early as 1874 we interpreted article IX, section 5, to guarantee to children in this state the right to be educated at public expense. (See Ward v. Flood (1874) 48 Cal. 36, 50.) Yet there appears to be no decisional or other law which purports to prescribe definitively the content of the educational program which must be provided by the state under this constitutional mandate of a “free school.” Indeed, there is little recent law in this area at all. In Serrano v. Priest (1971) 5 Cal.3d 584 [96 Cal.Rptr. 601, 487 P.2d 1241, 41 A.L.R.3d 1187], however, in expressly rejecting the contention that article IX, section 5, applied to school financing, we cited with approval our earlier constructions of the provisions: “We have held that the word ‘system,’ as used in article IX, section 5, implies a ‘unity of purpose as well as an entirety of operation, and the direction to the legislature to provide “a” system of common schools means one system which shall be applicable to all the common schools within the state.’ (Kennedy v. Miller (1893) 97 Cal. 429, 432 . . . .) However, we have never interpreted the *929constitutional provision to require equal school spending; we have ruled only that the educational system must be uniform in terms of the prescribed course of study and educational progression from grade to grade. (Piper v. Big Pine School Dist. (1924) 193 Cal. 664, 669, 673 .. . .)” (5 Cal.3d at pp. 595-596, second italics added.)
Although that discussion was tangential to the primary, financing issue in Serrano, it was central to the holding in Piper. In the latter case, we issued a writ of mandamus compelling a local school district to admit to its school a 15-year-old American Indian who had been excluded therefrom. (193 Cal. at p. 674.) Our ruling was based on the mandate of article IX, section 5, and on state statutes adopted in implementation thereof. (Id., at pp. 668-669.) In attempting to define the “enforceable rights” embodied in the “free school” guarantee, we declared that the provisions required “a uniform system and course of study” pursuant to which “pupils advance progressively from one grade to another and, upon the record made, are admitted from one school into another pursuant to a uniform system of educational progression.” (Id., at p. 669.) In elaboration, we observed; “Each grade forms a working unit in a uniform, comprehensive plan of education. Each grade is preparatory to a higher grade, and indeed, aifords an entrance into schools of technology, agriculture, normal schools, and the University of California. In other words, the common schools are doorways opening into chambers of science, art, and the learned professions, as well as into fields of industrial and commercial activities. Opportunities for securing employment are often more or less dependent upon the rating which a youth, as a pupil of our public institutions, has received in his school work. These are rights and privileges that cannot be denied.” (Id., at p. 673.)
In essence, Piper construed the constitutional mandate to provide a free school as encompassing “a uniform system and course of study” pursuant to which students could progress from grade to grade by satisfying uniform requirements of a prescribed course of study. The goals of the public school system and the hoped-for consequences of participation therein have changed little from that time to this, and I believe that Piper's constitutional interpretation is equally valid today. Accordingly, any attempt to impose a fee or charge upon any student as a condition of his obtaining the benefits of such system would be proscribed. Most clearly within that proscription would be fees charged as a condition of academic progression or of receiving credit toward graduation. The fact that a class, course or activity bears credit towards progression through the free school system which is the gist of the constitutional right would clearly bar any charge therefor.
Neither Piper nor any other case of which I am aware, however, has held that article IX, section 5, prohibits the imposition of fees for participation
*930in extracurricular activities. By definition such activities are not within the prescribed course of study necessary for progression from grade to grade. No credit toward graduation is given for extracurricular activities and no student is required to participate therein in order to progress through the system or to receive credit for related credit-bearing courses in the regular curriculum. Thus, I see no impairment of the constitutional right to attend free schools by an activity fee program, such as the Santa Barbara School District’s (District), limited to extracurricular activities.
Apparently, the Legislative Counsel of California has interpreted our law similarly. At plaintiffs’ request, the trial court took judicial notice of two opinions of that office. In one, the legislative counsel opined that school districts could not charge a fee or require pupils to purchase necessary materials for a “school-sponsored activity.” While that activity was not specifically identified in the opinion, the counsel’s rationale was more illuminating. The declared ground for the opinion was that there was neither statutory nor regulatory authority “to require pupils to pay a fee in order to participate in a course offered as part of the regular school program,” and that title 5, section 350 of the California Administrative Code expressly forbade any charge “not specifically authorized by law.” (Ops.Cal.Legis.Counsel, No. 17529 (undated) School Fees, pp. 1-4, italics added.) While that opinion obviously was cited by plaintiffs to further their contention that the fees at issue here are objectionable, the underscored portion of the quotation arguably implies that the prohibition was being applied to courses which were á part of the regular school curriculum and not to extracurricular activities.
Of clearer relevance is the other opinion relied Upon by plaintiffs. (See Ops.Cal.Legis.Counsel, No. 17036 (Nov. 16, 1979) School Fees.) There the legislative counsel discussed the practice of school districts to charge fees for a variety of materials and activities, including musical instruments for extracurricular band, special uniforms for extracurricular activities, expenses of extracurricular athletic teams, and club dues. Though ultimately concluding that such fees were barred by title 5, section 350 of the California Administrative Code—a conclusion with which I deal below—the legislative counsel nonetheless acknowledged that each of the four items identified above relates to “extracurricular activities outside the regular course requirements .... Fees and deposits for [these] items . . ., we think, would not be prohibited by Section 5 of Article IX of the California Constitution because they do not concern a regular course of study.” (Id., at p. 4, italics added.)
I agree with the latter conclusion. (I note, further, that the disparity between the constitutional provision and the administrative code provision
*931which induced the legislative counsel to conclude that extracurricular activity fees which were not barred by the former nonetheless were barred by the latter is germane to our analysis of the regulation hereafter.) The opinions of the Legislative Counsel of California thus would appear to support the validity of the activity fee program at issue here rather than to undermine it.
Recent opinions of the high courts of several other jurisdictions have construed in similar fashion like state constitutional provisions. In Paulson v. Minidoka County School District No. 331 (1970) 93 Idaho 469, 471 [463 P.2d 935], the Idaho Supreme Court construed a constitutional mandate that “ ‘it shall be the duty of the legislature of Idaho, to establish and maintain a general, uniform and thorough system of public, free common schools.’ ” The provision was held to bar the imposition of mandatory $25 annual fees upon all high school students as a cost of their receiving a transcript of courses studied and grades received upon completion of high school. (Id., at p. 473.) Although the fee was assigned one-half to “Text Book Fees” and one-half to “School Activity Fees,” the court noted that partial payment of the fee was not accepted by the school district. Insofar as the fee was charged for textbooks, it was found to infringe the students’ right to free education. (Id., at pp. 472-473.) Further, because that portion of the fee assigned to “activities” was charged whether or not a student participated in any activity, the court observed that it thereby became a flat charge on attendance at high school, and so was barred for the same reason. (Id., at p. 472.) The rationale for each half of the fee thus was objectionable under traditional analyses of the right to “free common schools.”
Most important to the Idaho court’s ruling was the manner in which payment of the fee was enforced. Although failure to pay the fee apparently did not actually interfere in any way with a student’s progression through the school system—textbooks being provided, grades and credit given and diplomas awarded despite such nonpayment—it was clear that no transcript could be obtained unless the entire fee was paid. Because the school district was under a clear duty, as part of the state’s obligation to maintain free schools, to furnish transcripts to eligible graduates, the court concluded that “the $25.00 fee as it was charged in this case offended the requirement that the ‘common schools’ be ‘free’.” (Id., at p. 471, italics in original.)
Speaking directly on the point with which we are here concerned, however, the Idaho court observed: “But it should be noted that, because social and extra-curricular activities are not necessary elements of a high school career, the constitution does not prohibit appellants from setting fees to cover costs of such activities to be paid by students who xHsh to exercise *932an option to participate in them.” (Id., at p. 472.) This discussion is fully consistent with the interpretation of article IX, section 5 herein suggested.
Similarly, in Granger et al. v. Cascade Co. Sch. Dist. (1972) 159 Mont. 516, 524 [499 P.2d 780], the Montana Supreme Court construed a state constitutional provision requiring the state legislature “ ‘to establish and maintain a general, uniform and thorough system of public, free, common schools.’” In identifying those activities for which fees could not be charged, the court established the following test: “Is a given course or activity reasonably related to a recognized academic and educational goal of the particular school system?” (Id., at p. 527.) If so, the constitutional command for a free public school system barred the charge; if not, “reasonable fees or charges may be imposed.” (Id., at p. 528.)
In explaining that its test provided a degree of flexibility, the Montana court declared: “The school may thus define its own academic and educational goals and the courses and activities that will carry credit toward graduation within the limits provided by law. At the same time, the individual student has a freedom of choice, within the limits of the educational framework so established, to pursue a course of study directed toward . . . [his personal academic goal] without regard to his financial ability to pay additional fees or charges.” (159 Mont, at p. 528, italics added.) The Montana Supreme Court’s apparent construction of that state’s constitutional guarantee of “free” schools as being limited to credit-bearing courses thus also conforms to my reading of similar constitutional language in the case at bar. (See also Concerned Parents v. Caruthersville Sch. D. (Mo. 1977) 548 S.W.2d 554, 562 [constitutional requirement of “free public schools for the gratuitous instruction of all persons” interpreted to bar all fees for academic credit courses]; compare Board of Education v. Sinclair (1974) 65 Wis.2d 179, 187 [222 N.W.2d 143] [constitutional mandate that “schools shall be free and without charge for tuition” allows the charging of textbook fees but prohibits instructional fees for credit courses].)
The foregoing analyses of cases from other jurisdictions thus corroborate the view that article IX, section 5 of the California Constitution does not prohibit a school district from charging a fee for participation in extracurricular activities which neither bear credit toward graduation nor are necessary for progression from grade to grade through the school system.
Plaintiffs also cite Education Code section 37105 in support of their challenge to the activity fee program. That statute does not appear particularly helpful to their position, however. Apart from certain inapplicable exceptions, the statute provides that “No charge for tuition shall be made in any school district of this state . . . .” While “tuition” is not defined by statute, *933the common understanding of that term as payment for instruction in a school curriculum and for materials incident thereto would appear to make the statute inapplicable by its terms to the extracurricular activity fees involved here. The same factual finding of the trial court that those extracurricular activities were separable from the regular school curriculum obviously facilitates distinguishing the fees charged for the former activities from “tuition” charges for curricular instruction, which are prohibited. In effect, by enacting section 37105 the Legislature simply appears to have implemented the constitutional mandate that it provide a “free school.” In addition, of course, that enactment tends to corroborate the interpretation of the content of the constitutional command as including only those courses whose satisfactory completion can contribute to a student’s academic progression and ultimate graduation—in short, credit-bearing courses.
Plaintiffs place their strongest reliance upon an administrative regulation, namely, title 5, section 350 of the California Administrative Code. That regulation, presumably adopted by the State Board of Education pursuant to its general power to “adopt rules and regulations not inconsistent with the laws of this state” (§ 33031), 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 that regulation is a note—the origin of which is not specified—which asserts: “Specific authority cited for Section: Section 5 of Article IX, California Constitution.”
As previously indicated, however, the constitutional provision cannot be read to bar the extracurricular activity fee at issue; nor is the fee barred by statute. In my view, a regulation which purports to proscribe activity fees which are neither constitutionally nor statutorily prohibited would be “inconsistent with the laws of this state” and so beyond the power of the state board to adopt. (See § 33031.)
We have said that “Where a statute empowers an administrative agency to adopt regulations, such regulations ‘must be consistent, not in conflict with the statute, and reasonably necessary to effectuate its purpose.’ (Mooney v. Pickett (1971) 4 Cal.3d 669, 679 . . .; Gov. Code, § 11342.2.) The task of the reviewing court in such a case ‘ “is to decide whether the [agency] reasonably interpreted the legislative mandate.” [Citation.]’ (Credit Ins. Gen. Agents Assn. v. Payne (1976) 16 Cal.3d 651, 657 . . . .) Such a limited scope of review constitutes no judicial interference with the administrative discretion in that aspect of the rulemaking function which requires a high degree of technical skill and expertise. [Citation.] Correspondingly, there is no agency discretion to promulgate a regulation which is inconsistent with the governing statute.
*934“We repeat our admonition expressed in Morris v. Williams (1967) 67 Cal.2d 733, 737 . . .: ‘Our function is to inquire into the legality of the regulations, not their wisdom .... Administrative regulations that violate acts of the Legislature are void and no protestations that they are merely an exercise of administrative discretion can sanctify them.’ Acknowledging that the interpretation of a statute by one charged with its administration was entitled to great weight, we nonetheless affirmed: ‘ “Whatever the force of administrative construction . . . final responsibility for the interpretation of the law rests with the courts.” [Citations.] Administrative regulations that alter or amend the statute or enlarge or impair its scope are void and courts not only may, but it is their obligation to [,] strike down such regulations. ’ (Id., at p. 748.)” (Woods v. Superior Court (1981) 28 Cal.3d 668, 679 [170 Cal.Rptr. 484, 620 P.2d 1032], italics added.)
What is true of a regulation which enlarges the scope of a statutory prohibition—and so is fatally inconsistent therewith—would seem equally true where a constitutional mandate is at issue. At the very least, it is clear that the “free school” mandate of article IX, section 5 of the Constitution did not provide independent authority for the promulgation of section 350 by the State Board of Education.
From the foregoing, I conclude that any absolute regulatory prohibition against charging a student “any fee, deposit, or other charge’ ’—including such fee for extracurricular activities of the sort involved here—would be neither consistent with, nor reasonably required to effectuate the purpose of, either article IX, section 5 of our Constitution or section 37105. So read, section 350 would be invalid.
Based on the foregoing analysis, I find unpersuasive plaintiffs’ argument that certain opinions of the Attorney General support their challenge to the activity fee program. One such opinion, issued in 1962, concluded that mandatory fees for “elective bowling classes” were prohibited by the Constitution and Administrative Code, declaring that “school districts have no authority to charge fees for any classes, elective or compulsory, offered as part of their instructional programs.” (39 Ops.Cal.Atty.Gen. 136, 137 (1962).) Read carefully, that opinion would appear to undercut, rather than support, plaintiffs’ position; for although it is not stated therein whether credit was awarded for the classes at issue, the fact that they were part of the regular school curriculum—“offered as part of their instructional programs”—would suggest that they were credit-bearing. The Attorney General’s determination that fees cannot be charged for a credit course in the regular curriculum, albeit an “elective” course, is completely consistent with the foregoing analysis. His opinion does not purport to forbid the charging of fees for extracurricular activities.
*935Further, I find inapposite other opinions of the Attorney General cited by plaintiffs which arguably did more clearly indicate that the latter fees would be prohibited. It should be carefully noted that such opinions were issued prior to the expansion of the powers of local school districts accomplished by the Legislature’s adoption of section 35160 in 1976. Prior to that year it generally was understood that local school districts had only those powers which the Legislature had granted to them expressly by statute. (See San Juan Teachers Assn. v. San Juan Unified Sch. Dist. (1974) 44 Cal.App.3d 232, 250 [118 Cal.Rptr. 662]; Yreka etc. School Dist. v. Siskiyou etc. School Dist. (1964) 227 Cal.App.2d 666, 670 [39 Cal.Rptr. 112].) In 1976 the Education Code was amended, transforming what had been a “restrictive” code into a “permissive” one. Included in the new provisions was 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.” (That statute was adopted pursuant to specific constitutional authorization therefor effected by the amendment of article IX, section 14 of the Constitution, eff. July 1, 1973.) That sweeping and fundamental legislative enhancement of local decisionmaking power, in my view, renders obsolete earlier opinions of the Attorney General construing local school districts’ more limited powers under the earlier, “restrictive” code.
In addition, Attorney General opinions issued after the effective date of section 35160 clearly imply that the new code was designed to authorize flexibility in financial, as well as educational, decisions of local school districts. In one such opinion the Attorney General discussed the relief from the constraints of the former Education Code accomplished by the 1976 enactments in the context of section 72233, which affords to community college districts the same broad powers granted to local school districts by section 35160. (See 60 Ops.Cal.Atty.Gen. 353 (1977).) In concluding that the community college districts were still bound by the “traditional constraints previously operative upon the authority of school districts” notwithstanding the enactment of section 72233, the Attorney General relied specifically upon a contemporaneously enacted statute (§ 72289) which continued to limit the power of community college districts to establish only those fees “it is authorized to establish by law.” (Id., at p. 354.) The clear implication of that opinion is that in the absence of the Legislature’s adoption of the prohibition, community colleges could have charged the fees at issue. Such opinion thus supports a conclusion that in the absence of a comparable statutory prohibition against the charging of such fees by local school districts, a regulation which purports to forbid any “fee, deposit, or other charge” does not properly implement any state law.
*936It may be possible, however, to construe section 350 in a less restrictive manner, and so save it. Apparently, that regulation has been in effect in substantially the same form at least since 1940. Thus, when section 350 (or its predecessor) was adopted, its absolute terms conformed to the then prevalent restrictive view of the powers of school boards, and reading the regulation literally created no inconsistency with state law. In view of the substantial modification of state law in 1976, however, reinterpretation of the regulation to conform to that modification is preferable to its invalidation. In short, the Legislature’s determination to broaden the powers of local school districts warrants a correspondingly narrowing construction of section 350. By reading that regulation to prohibit only fees for courses bearing credit towards academic progression through the school system and graduation therefrom, we both acknowledge the Legislature’s 1976 expansion of the powers of local school districts and construe the regulation harmoniously with the relevant constitutional and statutory provisions. So read, section 350 does not bar the District’s fee program for extracurricular activities and retains its vitality.
Plaintiffs’ final challenge to the activity fee program is based on equal protection grounds. They assert that the program discriminates on the basis of wealth and so violates article I, section 7 of the California Constitution as construed by us in Serrano v. Priest, supra, 5 Cal.3d 584. Plaintiffs do not assert that they are denied equal protection as a result of action which allegedly discriminates against them. Rather, as residents of the District, they argue vicariously as to students in other districts, that “similarly situated students of poorer districts unable to raise proportionately equal amounts ... are deprived of an equal educational opportunity.”
Whatever the implications of plaintiffs’ inverted posture here, their equal protection argument is faulty for several additional reasons. Implicit in their argument is the assumption that the existence of the District’s activity fee program does, in fact, create a disparity between the extracurricular activities available in the District and those available elsewhere. The trial court did not so find and plaintiffs did not challenge that failure to find.
Giving plaintiffs the benefit of the doubt on this factual issue, however, their conclusion that any such disparity denies equal protection to residents of poorer districts rests on the further assumption that extracurricular activities are integral to the educational interest which this court characterized as “fundamental” in Serrano. (5 Cal.3d at p. 589.) As already indicated, however, the constitutional “right to an education in our public schools” which we there identified pertained to the opportunity to participate in an “educational system [which] must be uniform in terms of the prescribed course of study and educational progression from grade to grade.” (Id., at *937p. 596.) But as the trial court found in the case at bar, the extracurricular activities for which a fee is charged are not included within the “prescribed course of study” or necessary to “educational progression from grade to grade.” That conclusion renders Serrano’s equal protection analysis inapposite.
Finally, I note that Serrano’s finding of a denial of equal protection in the public school financing system was premised on state action which resulted in unequal treatment of its citizens: “[G]overnmental action is the cause of the wealth classifications. The school funding scheme is mandated in every detail by the California Constitution and statutes.” (5 Cal.3d at p. 603, italics in original.) “We find that such financing system as presently constituted is not necessary to the attainment of any compelling state interest.” (Id., at p. 614.) Accordingly, that state-mandated system was held to deny equal protection. (Id., at pp. 614-615.) In the instant case, in contrast, plaintiffs do not explain how discriminatory state action is involved in the District’s self-supporting activity fee program which makes certain extracurricular activities available to all students within the District regardless of ability to pay. The governmental entity here—the District—treats all of its constituents alike in the implementation of its activity fee program. Serrano does not aid plaintiffs.
There is a final practical reason sustaining the validity of the activity fee program. The District thereby has made available to its high school students on a nondiscriminatory basis the opportunity to participate in extracurricular athletic competition, musical performances and dramatic productions. Without the program—and with the full sanction of the law—the District apparently would have eliminated one or more of those activities. Who seriously can argue that anyone-student or parent, within the District or without—is worse off by the District’s choice?
For the foregoing reasons I conclude that a local school district may charge a fee for optional participation by its students in extracurricular activities which bear no credit towards progression from grade to grade within the school system or graduation therefrom, where such participation is not barred by any student’s inability to pay. Because the District’s activity fee program comes within this formulation, I would affirm the judgment of the trial court which upholds it.
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council.