Opinion No. 66-73

Topics:

SCHOOLS.

Summary conclusion

School districts may not charge fee for summer or night school to residents under twenty-one; may make charges for damage to school property and for extracurricular activities; must provide band instruments if credit is given for band participation; must furnish gym shoes to indigents; must furnish materials for making products as part of classes; may withhold transcript from student if he fails to pay a legal fee imposed for misuse of school property.

March 7, 1973

Dr. Arthur L. Mallory
Commissioner of Education
Department of Education
Jefferson State Office Building
Jefferson City, Missouri 65101

Dear Dr. Mallory:

 This opinion is in response to your request for a ruling on the constitutional legality of the following eight practices:

 The starting point for this opinion is Section 1(a) of Article IX of the Missouri Constitution of 1945, which reads in relevant part as follows:

 This office recently ruled that Section 1(a) forbids a school district from charging any fee to any resident student who wishes to enroll in a course offered for academic credit by that school district. Opinion No. 269, Hill, December 1, 1972. That opinion was specifically concerned with a $35 fee per student for an automobile driver's training course offered during the regular school term. In this request, you have asked us to explore the ramifications of that opinion as they relate to problems more difficult than a simple tuition charge for a course.

 (1) Fees for summer school.

 Missouri school districts are authorized to offer summer school programs by Section 178.280, RSMo 1969, approved first in 1961 (L. 1961, p. 353), which reads as follows:

 As can be seen, this section specifically authorizes the school district to impose tuition charges on all students, even though those students are normally eligible for free public schools; the section also provides that no state aid may be used for summer school.

 In passing this section, the General Assembly apparently desired to authorize the local school district to establish summer schools and finance them any way they could, without making the summer schools part of the state system of education mandated by the Constitution. A similar approach found favor with the Montana Supreme Court in the case of Granger v. Cascade County School District No. 1, 499 P.2d 780 (1972). In that case, the court, following recent precedent from Idaho and Michigan, held that a constitutional requirement of free public schools does not allow charges for courses and activities given credit toward graduation; the court, however, did not extend its ruling to include summer school, for the following reason:

 It could be argued, contrary to the conclusion of the Montana court, that summer school has become "included in the free public school system required by our Constitution. Attendance in a Missouri summer school is credited towards the four-year school attendance requirement at the rate of two units of summer school for onehalf year of "regular" school. School Administrator's Handbook (State. Dept. of Ed. Pub. No. 20-H, 1969) p. 104. Students who fail courses during the regular year can repeat them in the summer; students may take required courses in the summer to free themselves for more electives during the school year, and so on. In general, summer school has become an avenue available to students who choose it to improve their public school program.

 The fact question of whether or not summer school is part of the free public school system need not be decided here, however, for it is our view that the legislature determined that summer school must legally be deemed to be free when, in 1969, it amended the state school aid computation formula found in Section 163.031, RSMo Supp. 1971, in such a way that state aid is now.given for summer school. L. 1969, p. 268. This section reads in relevant part as follows:

 The money required to pay for state school aid comes from the State School Moneys Fund. Section 163.031(7), RSMo Supp. 1971. This fund, created in Section 166.051, RSMo 1969, is the fund discussed in Sections 3(a) and 3(b) of Article IX of the Constitution as the vehicle for appropriations by the state for the support of free public schools.

 It is our belief that the legislature is not authorized to spend any of the Public School Moneys Fund for any educational purpose which is not free, for to do so would contravene the Constitution. This being the case, the provisions of Section 178.280, which authorizes summer school tuition but not state aid, and the provisions of Section 163.031, which gives state aid to summer school, are in conflict. Applying the maxim that when two laws dealing with the same subject conflict, the more recent in time prevails over the older one, we must conclude that the legislature repealed the system of summer school financing in Section 178.280 ( at least so far as it deals with residents of the school district not in excess of twenty years of age) when it approved the language now found in Section 163.031, RSMo Supp. 1971. We do not reach the question of whether the legislature could authorize tuition for public summer school when no state aid is furnished, since that issue is not before us.

 (2) Fees for night school.

 School districts are authorized to establish night schools by Section 178.290, RSMo 1969, which reads as follows:

 A comparison of Section 178.290, establishing night schools, and Section 178.280, establishing summer schools, shows that the legislature has not authorized the charging of tuition for night school programs to patrons eligible for free school in the district. Both sections authorize a school district to fix tuition rates for the respective programs to be charged resident pupils above the age of twenty years and "others who are not entitled to receive free public school privileges in the district, " but only the summer school statute authorizes the board to "require tuition of all pupils resident in the district," including those pupils otherwise eligible for free public schools. The night school statute contains no such authorization. In light of the structural and substantive parallels between the two statutes, we must conclude that the legislature intended that a school district which establishes night school is not authorized to require tuition of pupils who are otherwise eligible to receive free public school privileges in that district. To allow a school district to charge tuition under these circumstances would require reading into the statute words which the legislature deliberately omitted. This conclusion does not, of course, apply to any privately operated night school, including those using public school facilities pursuant to the last part of Section 178.290.

 (3) Charges for library fines and lost books.

 You ask in this question whether a school district which has loaned its property to a student may charge that student for misuse of the property resulting in damage or destruction to the property or undue delay in returning the property. It is our view that such charges are authorized by Section 171.011, RSMo 1969, which reads in relevant part as follows:

 The right to receive gratuitous instruction at a free public school extends only to the right to be free from required charges imposed as part of the curriculum. Where the pupil increases the cost of his education by the willful or negligent destruction of property, the school district may make charges that will enable it to repair or replace the property. The student is in no way being charged for his education, but is merely being asked to replace property loaned to him for his temporary use. Of course, a school district may not assess damages in such a way that it becomes impossible for a student to avoid charges; students may not be charged for the reasonable wear and tear that occurs to a textbook in normal use, but they can be charged for unusual or unreasonable damage to property.

 Similarly, library fines are imposed to encourage students to return books and other supplies promptly to the library so that they may be used by other students. As long as the rules of the library give a student reasonable opportunity to use the books for his work without incurring library fines, such fines do not violate the requirement for gratuitous instruction.

 (4) Enforcing school charges.

 You ask next whether a school may enforce charges for lost books, etc., by withholding transcripts from students who have not paid them. This question seems to have been answered by the Springfield Court of Appeals in the case of State ex rel. Roberts v. Wilson, 297 S.W. 419 (1927) in which the court said that a school may withhold a transcript or certificate of attainment for nonpayment of fees properly charged, but may not do so if the fees themselves are illegal. The school district in that case, acting under the equivalent of Section 171.011, required the withholding of transcripts from students who had not paid a $20 tuition fee required by the board; since the fee was illegal, any attempt to enforce the fee was similarly illegal.

 We believe that a school may withhold a transcript from a pupil who has not paid a charge, if the charge was properly imposed by the school. This is so because the pupil has not complied with a legally-enacted rule and regulation of that school and therefore is not eligible to advance to a higher grade or graduate. Thus, a student may be required to return textbooks or pay for their replacement as a condition of receiving a transcript or certificate of achievement. However, a student's grades may not be withheld for the nonpayment of an illegal charge, such as a book or course fee, prohibited by the Constitution of the state of Missouri.

 (5) Required gym shoes and uniforms.

 Physical education classes are a required part of the curriculum of most Missouri public school students. Many schools require physical education students to have a particular type of clothing for gym activities, and in particular, many schools require soft-soled shoes for participation in physical education activities. You ask whether such a requirement is permissible and, if it is, whether a school which makes such a requirement must provide the clothing or shoes at public expense.

 In Opinion No. 269, 1972, this office rules that a school itself may not require a fee of a resident pupil as a condition of enrolling in a course. The present question is one of a large number of questions which asks whether a school may require a student to purchase items from a third person as a condition of attending or participating in school activity. These charges could range from requiring students to buy a particular book at a local bookstore to requiring students to be clothed at school (and thereby indirectly requiring them to purchase such clothing). The first of the recent "free school" cases relied upon in Opinion No. 269, Paulson v. Minidoka County School District No.331, 463 P.2d 935 (Idaho 1970) discussed this problem in these terms:

 We believe that the approach taken by the Idaho court is a sound one. If a school district requires a particular textbook, no other book will do; rarely, however, does a school district require a particular article of clothing as a condition for going to the school. Following this rule, if a particular article of clothing, specified as to brand or style, were required, then the school would be required to furnish that clothing free of charge under the constitutional requirement of gratuitous instruction. If, on the other hand, the school merely requires a generic type of clothing which it is not unreasonable to expect the students to have in any event and which is necessary for safety, health, or protection of people or property, then that clothing need not be provided by the school.

 It is the opinion of this office that a school may require t-shirts or soft-soled shoes as a condition of participation in physical education classes without providing those items at public expense. If, however, a school choses to require a particular type of soft-soled shoe or uniform and it is likely that a substantial portion of the students will not have the required clothing, then the school is required to provide the clothing for all students who request it.

 We recognize that there are some students for whom our assumption that students can be expected to own soft-soled shoes will not be valid. Indigent families may lack the means to supply their children with this type of clothing. Where this is the case, we believe that the children's right to obtain a free education guaranteed by the Missouri Constitution will be infringed by reason of their poverty if soft-soled shoes are required, and that such an infringement violates the United States Constitution. Boddie v. Connecticut, 401 U. S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971); cf. UnitedStates v. Kras, U.S. , 34 L.Ed.2d 626, 93 S.Ct. , 41 U.S.L.W. 417 7(January 10, 1973). For this reason, any child who can show an inability to obtain soft-soled shoes must be provided with those shoes if they are required for physical education classes. Absent a showing of poverty, however, a student must provide his own gym shoes and clothing.

 (The full reach of the Supreme Court cases cited above is not yet clear, but we do not believe that they require a waiver of fees for optional activites or for student-incurred damages to school property. Only charges necessary for school participation would be covered.)

 (6) Charges for nonrequired activities.

 In this question you ask whether charges for school activities such as yearbooks, athletic events and assemblies are proper. Section 177.121, RSMo 1969, authorizes a school district to make admission charges for athletic events conducted in a school stadium. There are no statutory provisions which either allow or forbid charges for other nonrequired activities.

 The only case which has ruled on the subject held that such charges are proper. In the Paulson case, supra, the court rules that:

 However, the Paulson case also said that students may not be required to pay fees for extracurricular activities where the fees are a condition for attending the schools and are imposed regardless of whether a student participates in the extracurricular activities he pays for. We believe that the rule in Paulson is a salutary one, and states the applicable " law in this field. The "instruction" which must be "gratuitous under the Constitution extends only to classroom and academic credit programs, and does not include the activities outside the curriculum, even though those activities are sponsored by the school.

 Therefore, it is the opinion of this office that a school district may charge students for nonrequired activities such as yearbooks, assemblies and athletic events, so long as participation in the activities or purchase of the product is not a school requirement. No school may require all students to pay a fee for any service, product or event as a condition of attendance without violating the constitutional mandate for gratuitous instruction.

 (7) Band instruments.

 Many schools in Missouri require students either to furnish their own band instruments or to rent them at a fee from the school in order to participate in the band. It is our view that the legality of this practice turns on.whether participation in band is given academic credit.

 In our Opinion No. 269, 1972, we stated that a school may not charge a fee for a course offered during the regular school day for academic credit. In many schools, band is part of the regular school curriculum, with students receiving academic credit for participation, and the school receiving state aid because the band class is offered during the six hour required school day used for computing average daily attendance. If a school structures its band program in this way, we do not believe it is possible to distinguish between a band instrument which a student is required to furnish himself or rent from the school and a textbook which a student is required to furnish himself or rent from the school: in each case, a student is required to make an expense as a condition of participating in an instructional activity which is part of the regular curriculum.

 On the other hand, if a school removes band from the regular curriculum and does not give academic credit for participation in band, then band occupies the same status as any other optional extracurricular activity for which fees or charges may be required. The test is whether the school, by giving academic credit, or the state, by granting state aid, has declared the activity to be a part of the free public school system. If neither body has so acted, then fees or charges may properly be made.

 (8) Student-supplied fabrication materials.

 In your last question you ask whether a school district may require a student to provide his own material used in constructing or making products in classes offered for academic credit. We presume that you are referring to shop, home economics, art, and other similar classes in which the educational process requires the consumption of raw materials and the fabrication of finished products ranging from sculpture and table lamps to clothing and baked goods.

 Since these materials are an integral part of the course, and indeed are required for successful completion of the course, a school may not require students to provide these materials without violating the constitutional mandate for gratuitous instruction. In this respect, a school district's expenses in operating this type of course, while higher than normal, have no different legal status than other expenses necessary to instruct pupils in any other course. However, it should be noted that the products made by the student become the property of the school, since the school provided the materials, and may be disposed of according to law.

 In the context of this opinion, it should be noted that the conclusions we reach with regard to free schools are based on opinions of the Supreme Courts of Idaho, Michigan, and Montana cited in this opinion and in Opinion No. 269, 1972. We are aware that the Supreme Court of Illinois in Hamer v. Board of Education of School District No. 109, 265 N.E.2d 616 (1970) reached a different result; the court there held that "free" in "free public schools" included only tuition charges, and schools are not forbidden from charging textbooks rentals or other fees required of students. We have examined both lines of authority, and we believe that the more legally sound is the one represented by the majority view which reads "free" more broadly. The legality of a fee must be based more firmly than on the distinction of nomenclature between "tuition fees," "incidental fees," and "textbook fees" especially since the money usually flows into the same treasury under any name.

CONCLUSION

 It is, therefore, the opinion of this office that:

 The foregoing opinion, which I hereby approve, was prepared by my assistant, Richard E. Vodra.

Very truly yours,

John C. Danforth
Attorney General