Indiana Supremes Declare School Service Fees Unconstitutional

FEES FOR TEXTBOOKS OK
By way of the Indiana Law Blog, we learn that the Indiana Supreme Court released an opinion today for Nagy v. Evansville-Vanderburgh County School Corporation, a case in which the constitutionality of a $20 student services fee charged to all students of a public school system was challenged on both federal and state grounds. In a 4-1 decision, the Court held that the student services fee violates Article 8, Section 1 of the Indiana Constitution. Unlike the Court of Appeals, however, its ruling did not extend the "free tuition" coverage in the state's constitution to include textbook rental fees.

The provision of the Indiana Constitution in question pertains to a requirement that the "General Assembly . . . provide, by law, for a general and uniform system of Common Schools, wherein tuition shall be without charge, and equally open to all." The plaintiffs also challenged the student services fee under the due process clause of the 14th Amendment to the Constitution, but the Court did not consider that ground because the decision was decided by the Court of Appeals to be in violation of the state constitution.

The student services fee challenged by parents of the school system was used "to pay for, among other things, a coordinator of student services, nurses, media specialists, alternative education, elementary school counselors, a police liaison program, and activities such as athletics, drama and music." Every student was required to pay the $20 fee, including those who qualified for free or reduced fees for school lunches and textbooks. Parents who failed to pay the fee were taken to court and charged a collection fee of up to $100.

The majority opinion written by Justice Rucker examines the legislative history surrounding this particular provision of the Indiana Constitution. The majority took issue with a sweeping read of the provision by the Court of Appeals which interpreted Article 8, Section 1 "to mean that not only must Indiana public schools not charge for ‘tuition’ in the sense of the services of a teacher or instruction, but also must not charge for those functions and services which are by their very nature essential to teaching or ‘tuition,’" which could include textbook fees as well. Rucker wrote, "We are of the view that that the holding expressed by our colleagues sweeps a little too broadly." He continued, "[U]nlike constitutions in a number of states, the framers of Indiana’s constitution were careful not to provide for a free school system. Rather, at most the framers provided that tuition would be free, or more precisely "tuition shall be without charge."

Rucker's opinion takes a fascinating look at the history surrounding the free common school debate in Indiana in the 1840s. A public referendum on the question in 1848 was approved by just 56% of the state's voters. Strong opposition came from the state's wealthier and poorer residents. Interestingly, some voters feared that a free public school system would endanger religious freedom. One resident said, "The bait is to give our children an education; the chief object is to religiously traditionize them, and then unite Church and state." Perhaps that person perceptively had in mind someone like D.C. Stephenson or Eric Miller. Interpreting the text of the constitution in the context of the history surrounding its passage, Rucker concludes a narrower meaning of "tuition without charge." He writes, "Rather than completely subsidizing education, which would fall within the meaning of a "free school" system, the framers pursued a more modest, and perhaps less controversial, route: a uniform statewide system of public schools that would be supported by taxation. Indeed the term "common school" was widely understood to mean "public school."

The Court then looked at how the Indiana General Assembly had gone about creating a general and uniform system of public schools. Rucker writes:

Where the legislature—or through delegation of its authority the State Board—has identified programs, activities, projects, services or curricula that it either mandates or permits school corporations to undertake, the legislature has made a policy decision regarding exactly what qualifies as a part of a uniform system of public education commanded by Article 8, Section 1 and thus what qualifies for funding at public expense. And of course the legislature has the authority to place appropriate conditions or limitations on any such funding. However, absent specific statutory authority, fees or charges for what are otherwise public education cost items cannot be levied directly or indirectly against students or their parents. Only programs, activities, projects, services or curricula that are outside of or expand upon those identified by the legislature—what we understand to be "extracurricular"—may be considered as not a part of a publicly-funded education. And thus a reasonable fee may be assessed, but only against those students who participate in or take advantage of them.

The Court noted that the items for which the student service fees were charged by the school were all items that had been deemed by the legislature or the State Board of Education to be "part and parcel of a public school education and by extension qualify for public funding." The problem the court found with the fee was that it also included "programs, services or activities that are outside of or expand upon those deemed by the legislature or State Board." Rucker writes, "[T]he mandatory fee [the school] imposed generally on all students, whether the student avails herself of a service or participates in a program or activity or not, becomes a charge for attending a public school and obtaining a public education. Such a charge contravenes the "Common Schools" mandate as the term is used in Article 8, Section 1 and is therefore unconstitutional. Rucker hastens to add though, "The Indiana Constitution does not prohibit [schools] from charging individual students for their participation in such extracurriculars or for their consumption of such services."

Rucker's opinion seems to leave room for the legislature to enact a law which specifically permits schools to levy a student services fee on all students as long as they don't fall within the "extra-curricular" gambit.

Justice Sullivan issued a very short dissenting opinion. He writes, "Because the trial court found that the things for which the fee was imposed were things that, to use the Court’s formulation, were "outside of or expand[ed] upon those identified by the legislature" as part of the constitutionally commanded uniform system of public education, I believe that even under the Court’s construction of Article 8, Section 1, the fee was permissible."