Hartzell v. Connell

BIRD, C. J.

It may come as a surprise to the reader, but I concur fully in my opinion for the court. I write separately to advance an additional argument in support of the holding. In my view the District’s fee program violates the equal protection guarantee of the California Constitution. 1

This court strictly scrutinizes governmental classifications that touch upon fundamental interests or involve suspect classifications. (Serrano v. Priest (1976) 18 Cal.3d 728, 768 [ 135 Cal.Rptr. 345 , 557 P.2d 929 ] [hereafter, Serrano II], cert. den. sub nom., Clowes, Superintendent of Schools of Los Angeles County, et al. v. Serrano et al. (1977) 432 U.S. 907 [ 53 L.Ed.2d 1079 , 97 S.Ct. 2951 ].) Under this standard, the governmental entity “bears the burden of establishing not only that it has a compelling interest which justifies the law but that the distinctions drawn by the law are necessary to further its purpose.” (Westbrook v. Mihaly (1970) 2 Cal.3d 765, 785 [ 87 Cal.Rptr. 839 , 471 P.2d 487 ], cert. den. (1971) 403 U.S. 922 [ 29 L.Ed.2d 700 , 91 S.Ct. 2225 ]; see also In re Antazo (1970) 3 Cal.3d 100, 111 [ 89 Cal.Rptr. 255 , 473 P.2d 999 ].)

Plaintiffs argue that the District’s fee program: (1) touches upon a fundamental interest—education; and (2) classifies on the basis of a suspect classification—wealth. For the reasons stated below, I agree and, applying *922 strict judicial scrutiny, conclude that the fees are not necessary to the achievement of a compelling governmental interest.

It is well established that education constitutes a fundamental interest under the California Constitution. (Serrano II, supra, 18 Cal.3d at pp. 765-766; Serrano v. Priest (1971) 5 Cal.3d 584, 608-609 [ 96 Cal.Rptr. 601 , 487 P.2d 1241 , 41 A.L.R.3d 1187 ] [hereafter, Serrano I].) At issue in this case is whether noncredit, after-school educational activities are encompassed within this concept.

Defendants argue that the fundamental right to an “education” guarantees nothing more than an opportunity to progress from grade to grade and receive a diploma. Under this view, a classification affecting programs that do not carry credit toward grade progression or graduation does not touch upon a fundamental interest regardless of the programs’ actual educational value.

However, the Serrano concept of education as a fundamental interest is not defined by the whims of scheduling or by the formalities of credit, grading, or diplomas. In Serrano /, this court recognized education as a fundamental interest not because of its role in conferring credentials, but because of its extensive and indispensable benefits—to society as well as to individual children—in imparting information, training, and social experience. (Serrano I, supra, 5 Cal.3d at pp. 606-610; see also maj. opn., ante, at pp. 907-908.) The harms inherent in unequal education result not merely from inequalities in the distribution of credentials, but also from disparate training, experience, and knowledge. The contrary view cannot account for this court’s recognition that ‘“[ujnequal education . . . leads to . . . handicapped ability to participate in the social, cultural, and political activity of our society.’” (Serrano I, supra, at p. 606 , citing San Francisco Unified School Dist. v. Johnson (1971) 3 Cal.3d 937, 950 [ 92 Cal.Rptr. 309 , 479 P.2d 669 ], cert. den. sub nom., Fehlhaber et al. v. San Francisco Unified School Dist. etal, 401 U.S. 1012 [ 28 L.Ed.2d 549 , 91 S.Ct. 1266 ], italics added.)

As the majority explain, educational extracurricular activities play an integral role in imparting the many benefits of education. (See maj. opn., ante, at pp. 909-911.) The value of educational activities in promoting the political, economic, and social functions of education is not contingent upon the granting of academic credit. 2 Indeed, it is widely recognized that athletic *923 competition and other group activities, including those offered on a noncredit basis, are particularly suited to the development of leadership qualities and citizenship. (See, e.g., McGrath v. Burkhard (1955) 131 Cal.App.2d 367, 376 [ 280 P.2d 864 ]; Alexander v. Phillips (1927) 31 Ariz. 503 [ 254 P. 1056, 1059 , 52 A.L.R. 244 ]; Parrish v. Moss (1951) 200 Mise. 375 [ 106 N.Y.S.2d 577, 584 ], affd. 279 App.Div. 608 [ 107 N.Y.S.2d 580 ].)

Nor does formal credit determine the value of educational activities in promoting economic democracy. It requires no leap of logic to recognize that students with performance experience will be better prepared for future employment. (Cf. Cabrillo Community College Dist. v. California Junior College Assn. (1975) 44 Cal.App.3d 367, 373 [ 118 Cal.Rptr. 708 ].) Moreover, the leadership qualities and cooperative spirit developed in group activities are useful not only for political activities narrowly defined, but also for participation in labor unions and business enterprises, the institutions that exercise power in the “private” economic sphere. In the words of John Dewey, “[i]t is not enough to see to it that education is not actively used as an instrument to make easier the exploitation of one class by another. School facilities must be secured of such amplitude and efficiency as will in fact and not simply in name discount the effects of economic inequalities, and secure to all the wards of the nation equality of equipment for their future careers.” (Dewey, Democracy and Education (1957) p. 114.)

Finally, the performances and competitions affected by the fee program require teamwork and cooperation. 3 In that respect, they contribute directly to the function of education as a “unifying social force” (Serrano I, supra, 5 Cal.3d at p. 608) regardless of whether or not they are offered for credit.

In short, educational extracurricular activities—like their credit-generating counterparts—promote the constitutionally recognized purposes of public education. Accordingly, they are encompassed within the concept of education as a fundamental interest.

In Serrano I, this court held that classifications based upon wealth are suspect—at least when they touch upon fundamental interests such as edu *924 cation. (5 Cal.3d at pp. 597-610; see also Serrano II, supra, 18 Cal.3d at pp. 765-766.) Wealth classifications introduce a capricious and arbitrary factor into the distribution of educational services. Moreover, to the extent that such classifications further disadvantage economically needy students or further advantage wealthy students, they have a pernicious effect on the constitutionally recognized role of education in preparing all members of society for effective participation in the political, economic, and social “mainstream of American Society” (Serrano I, supra, 5 Cal.3d at p. 609 ). Further, to permit wealth-based inequalities in public education—one of few institutions with the potential to bring rich and poor together on a nonhierarchical basis—would be to disrupt the role of education in promoting social cohesion.

A fee uniformly imposed as a precondition for the exercise of a fundamental right directly classifies on the basis of wealth. (Harper v. Virginia State Bd. of Elections (1966) 383 U.S. 663, 666-668 [ 16 L.Ed.2d 169, 172-173 , 86 S.Ct. 1079 ] [flat fee, imposed as a precondition of voting, classifies on the basis of wealth]; Griffin v. Illinois (1956) 351 U.S. 12, 16-18 [ 100 L.Ed. 891 , 897-898, 76 S.Ct. 585 , 55 A.L.R.2d 1055 ] [requirement that all noncapital criminal defendants pay for their own transcript on appeal discriminates on the basis of wealth]; Tate v. Short (1971) 401 U.S. 395, 397-399 [ 28 L.Ed.2d 130, 132-133 , 91 S.Ct. 668 ] [requirement that all criminal defendants convicted of specified offenses pay a fine as a condition of avoiding imprisonment classifies on the basis of wealth]; In re Antazo, supra, 3 Cal.3d 100, 112 [same]; see also Williams v. Illinois (1970) 399 U.S. 235 [ 26 L.Ed.2d 586 , 90 S.Ct. 2018 ]; Douglas v. California (1963) 372 U.S. 353 [ 9 L.Ed.2d 811 , 83 S.Ct. 814 ].)

Defendants’ program imposes a fee as a precondition for students’ participation in activities integral to their fundamental interest in education. To some families, the fees represent a significant expenditure (see post, fn. 4); to others, they are minimal. Hence, it is apparent that the fee program imposes disparate burdens on students according to their families’ wealth.

Defendants contend that their fee-waiver program corrects any constitutional deficiency in the fee requirement. They argue that because an indigent student may obtain a “scholarship” to participate without paying a fee, the fee program does not impose any serious burden on a group defined by wealth. As evidence for this proposition, they point to the fact that the record gives no indication that any student was prevented from participating in the noncredit activities. Hence, they conclude, there was no invidious discrimination.

However, as defendants concede, the waiver is available only to those students who meet a specified standard of need. (See maj. opn., ante, p. 904, *925 fn. 4, and accompanying text.) And—at least where education is concerned—the protection afforded by the equal protection guarantee does not stop at the poverty line. It also addresses inequalities within the category of “nonneedy” families. 4 This conclusion flows from an analysis of cases involving wealth classifications affecting fundamental interests. These cases fall into two groups—one involving the rights of defendants in criminal cases, and the other involving the right to vote.

It is true that in cases concerning the rights of criminal defendants, wealth classifications have been invalidated only to the extent that they affect indigent litigants. (See, e.g., Tate v. Short, supra, 401 U.S. at pp. 400-401 [ 28 L.Ed.2d at p. 134 ]; Williams v. Illinois, supra, 399 U.S. at pp. 243-244 [ 26 L.Ed.2d at p. 594 ]; Douglas v. California, supra, 372 U.S. at p. 355 [ 9 L.Ed.2d at p. 813 ]; Griffin v. Illinois, supra, 351 U.S. at p. 16 [100 L.Ed. at p. 897]; In re Antazo, supra, 3 Cal.3d at pp. 113-115.) In these cases, the equal protection analysis is substantially identical to the analysis applied where the constitutional right of due process is at issue: the focus is on the absolute deprivation of a right, not upon relative disparities in individuals’ access to a right. (Cf. Boddie v. Connecticut (1971) 401 U.S. 371, 382 [ 28 L.Ed.2d 113, 121 , 91 S.Ct. 780 ] [fee, imposed upon indigent spouses as a precondition for obtaining a divorce violates due process clause].)

However, where the right to vote is concerned, wealth classifications are invalid whether or not anyone has actually been prevented from voting. In Harper v. Virginia Bd. of Elections, supra, 383 U.S. 663 , the court struck down a $1.50 poll tax and declared: “We say the same whether the citizen, otherwise qualified to vote, has $1.50 in his pocket or nothing at all, pays the fee or fails to pay it. The principle that denies the State the right to dilute a citizen’s vote on account of his economic status or other such factors by analogy bars a system which excludes those unable to pay a fee to vote or who fail to pay.” (Id., at p. 668 [ 16 L.Ed.2d at p. 173 ]," italics added.)

The Serrano decisions leave no doubt as to which approach should be applied here: “The analogy between education and voting is much more *926 direct: both are crucial to participation in, and the functioning of, a democracy.” (Serrano I, supra, 5 Cal.3d at p. 607 .) 5 Whereas the indigent criminal defendant cases are concerned with the effective denial of a fundamental right due to an inability to pay, Harper and the Serrano decisions are concerned with inequalities affecting the relative ability of individuals to exercise their fundamental rights. Both Serrano I and Serrano II rejected arguments that assistance to poverty-stricken districts, short of complete equalization of funding sources, could remedy the constitutional defect. ( 5 Cal.3d at p. 598 ; 18 Cal.3d at pp. 754-755.)

In Serrano I, defendants raised an argument analogous to that raised by defendants in this case. They suggested that there was no infirmity in a school funding scheme based on district property wealth so long as all districts could, by varying their tax rates, achieve the same level of spending per pupil. This court rejected that argument, reasoning that “obviously, the richer district is favored when it can provide the same educational quality for its children with less tax effort.” ( 5 Cal.3d at p. 599 , italics added.) Here, the fee program obviously favors richer families since they can obtain the same access to educational programs with less financial effort. Conversely, poorer families bear a greater burden whether they “pay[] the fee or failll to pay it.” (Harper v. Virginia Bd. of Elections, supra, 383 U.S. at p. 668 [ 16 L.Ed.2d at p. 173 ].)

For all of these reasons, wealth classifications affecting educational programs—whether denominated “curricular” or “extracurricular,” and whether or not accompanied by fee-waiver programs—are subject to strict scrutiny under the equal protection guarantee of the California Constitution.

It remains to be determined whether the fee program is “necessary to achieve a compelling state interest.” (Serrano II, supra, 18 Cal.3d at p. 768 .)

Defendants claim that the fee policy is necessary to finance the performance programs. They argue that abolition of the fees would deprive all students of these “important educational experiences.” Therefore, they conclude, the fees are necessary to achieve the district’s educational purposes.

This court has recognized that, as a general matter, “[preservation of the fisc is an insufficient justification” under heightened scrutiny. (Darces v. *927 Woods (1984) ante, page 894 [ 201 Cal.Rptr. 807 , 679 P.2d 458 ].) This observation applies with particular force to classifications affecting education.

Defendants’ argument misconstrues the nature of education as a fundamental interest. The analogy to voting is instructive on this point. The value of the right to vote hinges upon rigorous equality among voters. (See Reynolds v. Sims (1964) 377 U.S. 533, 562-564 [ 12 L.Ed.2d 506, 527-529 , 84 S.Ct. 1362 ].) Hence, a state interest in some general benefit, such as financing, cannot justify the disparate imposition of burdens on voters according to their wealth, an invidious basis of classification. (See Harper v. Virginia Bd. of Elections, supra, 383 U.S. at p. 668 [ 16 L.Ed.2d at p. 173 ] [“the interest of the State, when it comes to voting, is limited to the power to fix qualifications.”].)

The constitutional value of education, like that of voting, depends upon rigorous equality. Inequalities in education produce “ ‘unequal job opportunities, disparate income, and handicapped ability to participate in the social, cultural, and political activity of our society.’” (Serrano I, supra, 5 Cal.3d at p. 606.) Accordingly, “the opportunity to receive the schooling furnished by the state must be made available to all on an equal basis.” (Ibid., citing Jackson v. Pasadena City School Dist. (1963) 59 Cal.2d 876, 880 [ 31 Cal.Rptr. 606 , 382 P.2d 878 ].)

In view of the integral importance of equality to education, defendants’ asserted interest in maintaining extracurricular programs rests upon a logically unsound foundation. The District claims that, by imposing fees, it is preserving educational opportunities. However, the fee requirement introduces serious inequalities into the affected programs, thus damaging their usefulness in performing the constitutionally mandated functions of education. (See ante, at pp. 902-904.) In short, the District seeks to save educational opportunities by undermining their constitutional value.

In Serrano II, this court struck down a school financing plan partly because it permitted wealthy districts to override restrictive revenue limits, thus permitting them to gain an advantage over poorer districts. (18 Cal.3d at pp. 768-769.) This reasoning implicitly rejected the notion that the maintenance of high quality education for some can justify the introduction of inequalities in the financing scheme. Applying that principle here, it is clear that the maintenance of extracurricular programs cannot be bought at the cost of introducing wealth-based inequalities among students.

Admittedly, the District is operating within a difficult structure of legal constraints. The electorate has voted to reduce taxation and expenditures, thus making it hard for local districts to maintain their accustomed levels *928 of educational offerings. But local districts cannot alleviate the effects of taxation and expenditure limits by introducing constitutionally impermissible inequalities into public education. If the voters want higher quality education they must find a solution through the political process, either by employing the remaining permissible methods for raising revenues, or by relaxing the system of constraints.

In conclusion, I would hold that defendants’ fee program violates the equal protection guarantee of the California Constitution as well as the constitutional free school guarantee and title 5, section 350 of the Administrative Code.

This guarantee is contained in three separate provisions. Article I, section 7, subdivision (a) provides in part: “A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws . . . Article I, section 7, subdivision (b) states in part: “A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens.” Article IV, section 16, subdivision (a) provides: “All laws of a general nature have uniform operation.”

This point has been well expressed by educational theorists: “Wrestling with the problems of democratic government as they are met in the student council or the homeroom is as much a part of the curriculum as study in the classroom about the form of government of ancient Rome or modern Detroit. In fact, it may be much more significant, for the latter *923 in the hands of an unimaginative teacher may remain merely facts-to-be-learned and represent in no real sense an experience of the pupil. Planning an assembly program, ... reporting student activities for the school paper, participation on an athletic team—all represent pupil experience in a learning situation and consequently comprise a definite part of the curriculum." (Johnston & Faunce, Student Activities in Secondary Schools (1952) p. 7.)

For example, the director of vocal music at Dos Pueblos High School testified at trial that “the group is the important thing, the bringing together of many individuals in a single group [and] making it a performing unit.” In class, students learn to sing together; at the performances they realize that they have accomplished something, and “are able to share that experience in a group situation with each other and [with the teacher] and with an audience.”

It is apparent that financial constraints short of “inability to pay” may substantially influence a family’s decision whether to pay the fee. The record shows that at least four students applied for fee waivers, but did not meet the need criteria. These students were enabled to participate only because the assistant superintendent exercised his discretion to waive the payment deadline. In Modesto High School Band and Orchestra Booster Club, Inc. et al. v. Modesto High School District et al. (Dec. 28, 1982) (Super. Ct. Stanislaus Co., No. 178769) (unpub. opn.), brought to this court’s attention by both plaintiffs and defendants, two students were prevented from participating in extracurricular activities by a $30 fee. Neither student qualified for the Modesto district’s waiver plan, which applied to all students whose families were recipients of AFDC benefits.

In Serrano I, this court also noted that “[although an individual’s interest in his freedom is unique, we think that from a larger perspective, education may have far greater social significance than a free transcript or a court-appointed lawyer. . . . ‘[EJducation . . . supports each and every . . . value of a democratic society—participation, communication, and social mobility, to name but a few.’ ” ( 5 Cal.3d at p. 607 .)