Thursday, March 30, 2006

Indiana Supremes Declare School Service Fees Unconstitutional

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."

1 comment:

Anonymous said...

Well, if you ever wanted proof that the General ASSembly was violating our Indiana Constitution, here it is!!

Look at the last line of their proposed amendment! They are striking out the ONLY property tax listed...a tax on the property of corporations!

WHY? The language allows the GA the option to tax, or NOT to tax, by employing the word "may" within the clause. I can't imagine a valid reason why they would want to strike this language from our Constitution. I'm forced to conclude there is some other insidious goal the GA wishes to achieve, and I strongly suspect this goal would NOT be friendly to taxpayers and residential property owners.

I have been challenging the taxation of private residential property for the support of the 'common schools' for years. Article 8 sets out nine (9) specific funding methods to support our common schools. The Delegates that crafted the language did NOT give the General Assembly a blank check to tax everything in existence -- and the voters ratified the language crafted by the Delegates.

Had the 'intent' of the Delegates and voters been to allow the GA to tax anything they wanted to support the common schools, they would have said so.

Let us review.

The GA didn't like the inventory tax. Beginning in 2002 or so, they began 'phasing-out' the tax, even though the Constitution specifically barred them from doing so. Then, they manage to get an amendment before the voters in 2004, and told us that by ratifying this amendment, the GA "could" exempt their homes from taxation, and that the loss of the inventory tax would NOT shift to them. The media helped government in getting this message out.

In November 2004, the voters -- believing what they had been told -- ratified the amendment. Now, the GA could 'legally' (constitutionally) exempt inventory from taxation.

The inventory tax immediately shifted onto the backs of residential property owners.

Now, members of the GA want to amend Article 10 to abolish the taxation of property of corporations.

Does anyone but me wonder why the government might want to do this?

Alas, still nothing in this decision that really addressed school funding as described in Article 8 Section 2.

The original 1816 Constitution did not fund education. This was remedied with Art 8 Sect 2 of the 1851 Constitution.

There are 9 specific funding funding methods authorized in Section 2.

The ONLY time that ANY type of TAX on PROPERTY is the LAST method:

"Taxes on the property of corporations, that may be assessed by the General Assembly for common school purposes."

Some in the General Assmebly want to amend Article 8 Section 2 by STRIKING OUT this last method of funding!

Then, they want to ADD the following:

Section 9. (a) Except as provided by subsection (b), property may not be taxed for common school purposes.
(b) The General Assembly may authorize the assessment of taxes for the following common school purposes:
(1) Transportation costs.
(2) Capital project costs and debts related to capital projects.

Here is the link to SJR0015:

Hmmm....a reading of the DIGEST of the proposed Bill would lead the unwary to believe that goal of the amendment is to relieve ALL property from taxation for the support of the common schools. Alas, I fear that THIS is what voters would see and believe. Only a relative few would bother to read AND understand the actual language of the proposed amendment, and then discern what it REALLY means to them.

I wonder why the DIGEST doesn't inform the casual voter that the ONLY tax the GA want to abolish is a tax on corporations?

I'm also left wondering why the GA wants to INCLUDE a provision to Constitutionally-fund transportation!

Certainly, it couldn't be that taxing property to pay for transportation and associated costs is UNCONSTITUTIONAL, could it?

Below is our Indiana Constitution, Article 8 - Common Schools. It already prohibits the taxation of any 'property' except the "property of corporations". What, are they wanting to do to Article 8 what they did with the 'inventory tax'??

I would prefer that they left Article 8 alone, and simply followed it as written. Article 8 Section 2 -- as written -- prohibits the GA from taxing private residential property for the common schools!!

YES, I know that they are doing it anyway. BUT, if they manage to get this into our Constitution, then they will SOAK us, and it will be Constitutional!

REMEMBER, the ONLY time that taxation of property is listed anywhere in the funding scheme is the last funding item below -- and embraces ONLY taxation on the property of corporations !!

You might want to peruse SJR-16 also, as it contains similar information.

All Resolutions of the GA can be found here: