Nagy v. Evansville-Vanderburgh School Corp.

BAILEY, Judge,

dissenting.

I respectfully dissent from the majority's determination that the fee policy at issue violates the Indiana Constitution. In particular, I disagree with the majority's conclusion that the word "tuition," as used in Article VIII, Section 1 of the Indiana Constitution, includes "the services of a teacher or instruction," as well as "those functions and services which are by their very nature essential to teaching or 'tuition.'" Op. at 1280. The issue before us is whether the imposition of a student activity fee-which is used to fund the following expenses: (1) the coordinator of student services; (2) elementary school counselors; (8) media specialists; (4) school nurses; (5) alternative education; (6) the police liaison program; and (7) extra-curricular - activities-violates the Indiana Constitution's mandate that the General Assembly provide a "uniform system of Common Schools, wherein tuition shall be without charge, and equally open to all." See Inp. Cowst. art. VIII, § 1.

Resolution of this issue requires us to interpret the constitutional meaning of the *1236term "tuition." In so doing, we are bound by established doctrines of constitutional construction. "A fundamental canon of construction requires that we presume each word of the Constitution was carefully chosen and intentionally placed, '... as though it had been hammered into the instrument."" Chandler v. South Bend Cmty. Sch. Corp., 160 Ind.App. 592, 600, 312 N.E.2d 915, 920 (1974) (quoting Chadwick v. City of Crawfordsville, 216 Ind. 399, 409, 24 N.E.2d 937, 942 (1940)). In addition, we must give words employed in the Constitution their ordinary meaning, unless it affirmatively appears from the wording of the entire instrument that a contrary meaning was intended. See Chandler, 160 Ind.App. at 600-01, 312 N.E.2d at 920.

The term "tuition" is defined as "the act of teaching: the services or guidance of a teacher: ... the price of or payment for instruction." Waessrer's Tairp New Inter-wnationat Dictionary 2461 (2002). This definition does not encompass expenses such as the salaries of the student services coordinator, elementary school counselors, media specialists, and school nurses, nor dssoes it extend to the funding of programs such as police liaison, alternative education, and extracurricular activities. See Chandler, 160 Ind.App. at 604, 312 N.E.2d at 922 (holding that the aforementioned definition of tuition does not include textbooks). Because we must construe words according to their plain and ordinary meaning, I disagree with the majority's broad interpretation of the term tuition and, instead, favor the more narrow construction enunciated in Chandler.

In adopting such an expansive interpretation of the word tuition, the majority appears to be concerned that under the more narrow definition asserted in Chandler, public school corporations might place a price tag on education that is beyond the means of many Hoosiers, i.e., rather than charginga an activity fee of $20.00, school corporations might charge a fee of $200.00, or even $2,000.00. Op. at 1230. The majority concludes that "(ilt would be a cold comfort indeed to inform a Hoosier family of limited means that [it] could send [its] children to public schools without being charged for teachers' salaries, but to say that [it] would be charged for school buildings, heating, electricity, textbooks, etc." Id.

Undoubtedly, our goal as a society must be to ensure that our children enjoy the opportunity to obtain an education. In this regard, our legislature has enunciated the minimum curricula required for all Indiana elementary- and secondary-schoo!l students. See Ind.Code §§ 20-10.1-4-1 to -14, In so doing, the legislature has charged local school officials with financing the costs associated with this curricula-including but not limited to purchasing textbooks; employing teachers, nurses, and teacher aides performing non-instrue-tional duties; providing a lunch program; and transporting students-by levying taxes against the local citizenry. See Ind. Code § 20-5-2-2; see also Ind.Code § 20-5-2-1.2, As such, I believe that, instead of broadening the scope of the term "tuition" beyond that intended by the framers of the Indiana Constitution, we should allow local communities to determine how best to educate their citizenry, limited only by the constitutional mandate to provide tuition, as defined in Chandler, free of charge. Ultimately, there are limitations on the amount of funding (whether it be taxes, sale of admission tickets, activity fees, book fees, candy sales, or corporate sponsorships to name but a few) that can be raised to educate the children of any given community. Where there are limits, choices must be made, and it is for our locally elected officials to make such choices. See, eg., Ind.Code §§ 20-5-2-*12371.2, -2. While most of us would prefer a luxury ride, most of us can afford only basic transportation.

Should parents and taxpayers become disillusioned over the academic, athletic, or extracurricular offerings or the level of funding allocated to a particular program, they can confront their local officials and insist upon appropriate changes. If local school and community officials determine, for example, that athletie equipment is more important than the advancement of a foreign language program, or that the construction of a multi-million dollar athletic facility is more vital to the school's la than a computer lab, the local community, via the democratic process, will respond by either affirming the corporation's decision-ie., retaining the local school and community officials-or by opposing the decision-ie., voting the officials out of office. Though we, as a judiciary, may disagree with a community's decision to affirm or oppose the school corporation's policy, we must leave that choice to the wisdom of the local community.

Moreover, I believe that community control of education is consistent with our constitutional history, which was well developed by the majority opinion. Op. at 1226-1229. From this history, it is clear that the framers understood the benefits derived from allowing the citizenry to voice its opinion on education. Indeed, Article VIII, Section 1 of the Indiana Constitution was enacted to ensure an educated democratic society. Providing the appropriate educational opportunities for the decision makers of the future is imperative to preserve our democratic traditions. However, expanding the definition of tuition beyond that intended by the framers of our Constitution will not achieve this goal. To the contrary, expanding the definition will merely permit local school and community officials to demand more funding from the State for "tuition," thereby, providing some cover from the difficult choices required of them when confronted with a finite budget. Therefore, deciding whether to buy more books or basketballs, hire more teachers or trainers, or build more science labs or soccer fields should rest with the local authorities, and so too should the costs. Choose wrong today and the decision makers of tomorrow will be ill-equipped to fend off the modern day "Music Man.15

Put another way, local control of education should equate to local costs. Our state legislature has determined the minimum standards required for educating our children and has provided funding accordingly. See Ind.Code §§ 20-10.1-4-1 to - 14. Costs over and above these minimum requirements should be funded locally through property taxes and fees, not through a subterfuge based upon an expanded definition of tuition. Unless the mechanism for funding public education in Indiana is revamped, there will continue to be a disparity of educational opportunities between the various socio-economic communities in our State. Ultimately, the responsibility to remedy these perceived disparities rests with the legislature. Accordingly, I would affirm the trial court's grant of summary judgment on this issue.

On eross-appeal, EVSC also contends that the trial court erroneously granted summary judgment to the Parents on their *1238claim that the EVSC's fee policy violates the Due Process Clause of the Fourteenth Amendment to the United State Constitution. Specifically, the trial court determined that the imposition of the twenty-dollar fee on students in the free or reduced lunch and textbook programs violates the students Fourteenth Amendment substantive due process rights. The Fourteenth Amendment to the United States Constitution provides that "no person shall be deprived of life, liberty, or property without due process of law." U.S. Congr. amend. XIV, § 1.

Substantive due process under the Constitution prohibits state action that deprives one of life, liberty, or property without a rational basis for the deprivation. Parks v. Madison County, 783 N.E.2d 711, 724 (Ind.Ct.App.2002), trans. denied. To determine whether the state action at issue, le., the fee policy, violates the United States Constitution, we first determine whether a fundamental right is affected. Id. In the instant case, the parties concede that the fee policy does not involve a fundamental right. Where, as here, no fundamental right is implicated, EVSC will prevail upon a showing that the policy bears a rational relationship to a legitimate state interest. Id.

808 NORTH EASTERN REPORTER, 2d SERIES

In the present case, although EVSC has a legitimate interest in funding education and education-related services, its policy of charging a twenty-dollar fee to every student, regardless of the student's means and ability to pay such fee, is not rationally related to its superlative interest in educating its students. Indeed, for such a fee policy to survive constitutional serutiny, it must contain, at the very least, a waiver provision for those students who cannot afford to pay the mandatory fee, potentially including but not limited to those students deemed eligible to participate in other financially subsidized programs, le., free or reduced lunch and textbook programs. Accordingly, I would affirm the trial court's determination that imposing the mandatory fee on students who cannot afford to pay such fee is not rationally related to EVSC's interest in raising money for school funding purposes.16

For these reasons, I respectfully dissent from the majority's opinion.

. Meredith Willson & Franklin Lacey, The Music Man (1962). "The Music Man" is a musical wherein a conman intends "to cheat the community with his standard scam of offering to equip and train a boy's marching band, then skip town with the money since he has no music skill anyway." See Kenneth Chisholm, Plot Summary for Music Man, available at- http://www.us.imbd.com/ti-tle/tt0056262/ plotsummary.htm (last visited April 30, 2004).

. Because my resolution of this case is not dependent upon the trial court's subclass determination, I decline to address EVSC's argument that the trial court abused its discretion by certifying as a subclass the students and parents in the free or reduced lunch and textbook programs, without conducting a hearing as required by Indiana Trial Rule 23(C). See, e.g., McCart v. Chief Executive Officer in Charge, Indep. Fed. Credit Union, 652 N.E.2d 80, 84 n. 3 (Ind.Ct.App.1995) ("Subclasses must satisfy the class action requirements before they may be certified"), reh'g denied, trans. denied.