ARCADIA UNIFIED SCHOOL DISTRICT et al., Plaintiffs and Appellants, v. STATE DEPARTMENT OF EDUCATION, Defendant and Respondent; FRANCISCO SALAZAR, Intervener and Respondent.
No. S021288
Supreme Court of California
Mar. 16, 1992.
2 Cal. 4th 251
Breon, O‘Donnell, Miller, Brown & Dannis, Priscilla Brown, Nancy B. Bourne and Martha Buell Scott for Plaintiffs and Appellants.
Joseph R. Symkovick, Roger D. Wolfertz and Joanne Lowe for Defendant and Respondent.
Robert K. Miller, M. Carmen Ramirez, Grant R. Specht, Barbara Macri-Ortiz, Peter D. Roos and Deborah Escobedo for Intervener and Respondent.
Cynthia L. Rice, Ellen Braff-Guajardo, Tina L. Rasnow, Carol K. Smith, Elizabeth E. Guillan, Vibiana Andrade and Stephen P. Wiman as Amici Curiae on behalf of Intervener and Respondent.
PANELLI, J.- We granted review to decide whether
FACTS
This case has its roots in an earlier case. In 1985, Francisco Salazar (the intervener in the present case) filed a taxpayers’ suit in Ventura County Superior Court against the State Department of Education, the State Board of Education, the Superintendent of Public Instruction, and the Fillmore Unified School District,3 alleging that defendants’ implementation of
Pursuant to the superior court‘s order, the State Department of Education (Department) issued a legal advisory, informing all school districts that
The present action was instituted to determine the validity of
Salazar successfully moved to intervene. He also moved to dismiss, alleging that the Department was bound by the judgment in the Ventura County action as a party and that the school districts were bound as agents of the Department. The trial court denied the motion to dismiss and granted judgment for the Department, ruling that
The Court of Appeal, Third District, in a unanimous decision, reversed. The court held that the districts were not collaterally estopped to maintain the action, because the public interest exception to the rule of collateral estoppel applied; the court therefore did not consider whether the districts were agents of the Department or in privity with it. The court also held that
COLLATERAL ESTOPPEL
As a threshold matter, we must determine whether the Court of Appeal was correct in holding that this action is not barred by the earlier judgment in Salazar v. Honig (supra, Cal.App.).
Salazar contends that the Department is bound by the judgment in Salazar v. Honig (supra, Cal.App.), and that the school districts are also
As we will discuss, it appears that the Court of Appeal properly applied the public interest exception. Therefore, like the Court of Appeal, we need not consider whether the districts were agents of the Department or in privity with it. We would be reluctant to do so in the absence of a factual record when our decision might have unforeseeable consequences in other cases and there is an alternative basis for our conclusion.
We recently affirmed the rule that, “‘when the issue is a question of law rather than of fact, the prior determination is not conclusive either if injustice would result or if the public interest requires that relitigation not be foreclosed. [Citations.] ‘” (City of Sacramento, supra, 50 Cal.3d at p. 64, quoting Consumers Lobby Against Monopolies v. Public Utilities Com. (1979) 25 Cal.3d 891, 902 [160 Cal.Rptr. 124, 603 P.2d 41].) The issue in City of Sacramento was whether local governments were entitled to subvention of the costs of extended mandatory unemployment insurance coverage. We determined that the state should not be bound by a prior judgment on the issue because “the consequences of any error transcend those which would apply to mere private parties“; any error would also affect the taxpayers and employers of the state. (City of Sacramento, supra, 50 Cal.3d at pp. 64-65.)
It would be equally detrimental to the public interest to apply collateral estoppel here. Because Salazar v. Honig (supra, Cal.App.) was ordered not to be officially published and may not be cited as legal authority, there has been a continuing and demonstrable uncertainty about the validity of
In addition, the unusual history of Salazar v. Honig (supra, Cal.App.) suggests that it would be in the public interest to permit this action to go forward. Although Salazar presented evidence at that trial on the unconstitutionality of
The practical result of Salazar‘s position would be that the constitutionality of
None of the cases Salazar relies on convinces us that the Court of Appeal erred in applying the public interest exception. Salazar points out that the injustice exception to the rule of collateral estoppel has been criticized; however, that exception is distinct from the public interest exception, on which the Court of Appeal relied. (See Slater v. Blackwood (1975) 15 Cal.3d 791, 796 [126 Cal.Rptr. 225, 543 P.2d 593], criticizing Greenfield v. Mather
The public interest exception is an extremely narrow one; we emphasize that it is the exception, not the rule, and is only to be applied in exceptional circumstances. However, the unusually compelling facts in this case make it appropriate for us to apply the exception here. The matter before us involves a pure question of law. It affects the public in general, including children, parents and taxpayers; it also affects the ability of school districts to provide and finance school transportation. Because the school districts were not parties to the earlier case of Salazar v. Honig (supra, Cal.App.) they have not had the opportunity to litigate the constitutionality of
FREE SCHOOL GUARANTEE
Salazar argues that
The first step in interpreting an ambiguous constitutional provision is to look at the intent of the framers. (See Story v. Richardson (1921) 186 Cal. 162, 165 [198 P. 1057, 18 A.L.R. 750].) The California free school guarantee was adopted during the 1878-1879 Constitutional Convention. It substantially followed a provision of the state‘s 1849 Constitution, but, unlike the earlier provision, it required schools to be “free.” (See Debates & Proceedings, Cal. Const. Convention 1878-1879, p. 1100, remarks of Mr. Winans.) The history of the 1878-1879 constitutional debates gives very little guidance on the meaning of the term “free school,” except to note that “[a] free school is a school at which pupils may attend without charge.” (Debates & Proceedings, Cal. Const. Convention 1878-1879, supra, at p. 1100, remarks of Mr. Jones.) The only evidence we have located of whether the framers expected schools to provide transportation is the statement of one delegate that he knew “many a small common school, or district, where children ride on horseback a distance of five or eight miles to school in the morning, and home at night.” (Ibid.) This statement suggests that although the framers were aware of the difficulties students might face in getting to school, they did not consider transportation part of the school system. Thus, although the history of the 1879 Constitution does not make entirely clear whether the framers would have intended to allow school districts to charge a fee for transportation if they chose to provide that service, it supports the view that transportation is not included within the free school guarantee.
In the absence of more explicit guidance on the intent of the framers, the next step is to look to our previous cases to shed light on the meaning of the
The leading case interpreting California‘s free school provision is Hartzell v. Connell, supra, 35 Cal.3d 899 (Hartzell). Hartzell involved a challenge to the fees a school district charged for participation in such extracurricular activities as dramatic productions, music groups, and cheerleading groups. As previously noted, there was no statutory authorization for such fees. We held that the free school guarantee extends not only to classes, but also to extracurricular activities which are “‘educational’ in character.” (Hartzell, supra, 35 Cal.3d at p. 911.) However, Salazar asks us to hold that the guarantee includes transportation to and from school, which none of the educator parties maintain is an educational activity.8 Salazar asserts that school-provided transportation, although not educational in character, is nonetheless covered by Hartzell‘s understanding of the free school guarantee because it is an “integral fundamental part of [] elementary and secondary education,” or a “necessary element[] of any school‘s activity.” (Id. at p. 905, citing Bond v. Ann Arbor School District (1970) 383 Mich. 693, 702 [178 N.W.2d 484, 41 A.L.R.3d 742].)
In attempting to determine whether the extracurricular activities in Hartzell came within the protection of the free school guarantee, we considered two approaches to resolution of the issue used by other states with similar constitutional provisions. The first approach, which we rejected, restricts the free school guarantee to “programs that are ‘essential to the prescribed curriculum.’ [Citations.]” (Hartzell, supra, 35 Cal.3d at p. 905.) This approach would not have guaranteed free access to activities that are not
Applying this second approach in Hartzell, we noted that the activities in question served the purposes of education: to prepare students for participation in political affairs and in institutional structures such as labor unions and business enterprises and to serve as a “unifying social force.” (Hartzell, supra, 35 Cal.3d at pp. 907-908.) We determined that extracurricular activities constitute “an integral component of public education” and are “a fundamental ingredient of the educational process.” We also noted that extracurricular activities are “[no] less fitted for the ultimate purpose of our public schools, to wit, the making of good citizens physically, mentally, and morally, than the study of algebra and Latin. . . .” (Id. at p. 909, internal quotation marks and citations omitted.) We therefore concluded that, “[s]ince it is not disputed that the programs involved in this case are ‘educational’ in character, they fall within [the free school] guarantee.” (Id., at p. 911, italics added.)
It is clear that we adopted the second of the two approaches, in which we looked at whether an activity is an integral, fundamental part of education or a necessary element of any school‘s activity, specifically because that approach focuses “upon the educational character of the activities in question.” (Hartzell, supra, 35 Cal.3d at p. 909, italics added.) The two parts of the approach we adopted both focus on whether an activity is educational in character. (“The second approach . . . focuses not upon the formalities of credit, but upon the educational character of the activities in question.” (Ibid.)) As a result, we twice stated our holding that ”all educational activities . . . offered to students by school districts fall within the free school guarantee” (id. at p. 911, italics added), and that “the imposition of fees for educational activities offered by public high school districts violates the free school guarantee.” (Id., at p. 913, italics added.) Thus, neither our holding nor our reasoning in Hartzell leads to the conclusion that noneducational activities are protected by the free school guarantee. Although in Hartzell we
Against this conclusion, Salazar contends that, although bus transportation is not educational, it is a “’ “necessary element[] of any school‘s activity.” ’ ” (Hartzell, supra, 35 Cal.3d at p. 905.) However, it appears that Salazar has misunderstood what the cases mean by the quoted language. We believe that the Court of Appeal in this case was correct when it concluded that transportation is not an essential element of school activity.
The language we adopted in Hartzell was derived from Bond v. Ann Arbor School District (supra, 383 Mich. 693 [178 N.W.2d at p. 487]), which held that, under the Michigan free school guarantee, schools could not charge a fee for textbooks and school supplies. Quoting Paulson v. Minidoka County School District No. 331 (1970) 93 Idaho 469 [463 P.2d 935, 938-939], the Michigan Supreme Court stated that ” ‘[t]extbooks are necessary elements of any school‘s activity. They represent a fixed expense peculiar to education, the benefits from which inure to every student in equal proportion . . . solely as a function of his being a student. Unlike pencils and paper, the student has no choice in the quality or quantity of textbooks he will use if he is to earn his education. He will use exactly the books, prescribed by the school authorities, that his classmates use; and no voluntary act of his can obviate the need for books nor lessen their expense. School books are, thus, indistinguishable from other fixed educational expense items such as school building maintenance or teachers’ salaries.’ ” (Bond, supra, 178 N.W.2d at p. 487.) Thus, the court concluded, textbooks and school supplies were “necessary elements of any school‘s activity,” and must be provided without cost to the students. (Id. at p. 488.)9
None of these considerations apply to school bus transportation. Students are not required to use the same means of transportation as their classmates
This conclusion is especially true in this state, since, as the Court of Appeal correctly noted, school districts are permitted, but not required, to provide bus transportation. (
Our conclusion appears to be in accord with the authority in other states with similar free school guarantees. Courts that have considered the issue have arrived at the conclusion that states or school districts may charge a fee for bus transportation without violating the free school guarantee. A Michigan court relied on Bond v. Ann Arbor School District, supra, for its conclusion that transportation was not an essential part of a system of free public schools in the way that books and school supplies were. (Sutton v. Cadillac Area Public Schools (1982) 117 Mich. App. 38, 583-584 [323 N.W.2d 582], citing Bond, supra, 383 Mich. 693 [178 N.W.2d 484].) Citing Sutton, the North Dakota Supreme Court held in Kadrmas v. Dickinson Public Schools
Finally, Salazar contends that
As noted earlier,
Salazar also argues that
Salazar‘s claims that school transportation fees discriminate against the poor and burden the exercise of a fundamental right might have merit if the statute were to be applied in such a way that children were prevented from attending school because they could not afford to pay the fees. However,
Because this is a challenge to the facial validity of
CONCLUSION
For the foregoing reasons, we conclude that, on its face,
Lucas, C. J., Kennard, J., Arabian, J., Baxter, J., and George, J., concurred.
MOSK, J., Dissenting. The majority opinion holds that Education Code section 39807.5, which purports to authorize school districts to charge fees for pupil transportation, does not violate the free school guaranty (
The present case presents even more compelling reasons for finding a violation of the free school guaranty. If the fees in Hartzell threatened free schooling by endangering noncredit cultural development, the fees imposed here on school transportation go even further by threatening to abort the educational opportunity itself. In Hartzell, discussing low-income families that may not qualify for or be aware of the fee-waiver program, we stated that a student‘s opportunity to participate in extracurricular activities “cannot be made to depend upon his or her family‘s decision whether to pay a fee or buy a toaster.” (Hartzell, supra, 35 Cal.3d at p. 912.)
That pronouncement applies even more strongly to the present case. The very act of sending a child to school should not be foreclosed because the choice comes down to busfare or grocery money. It is common knowledge that these are difficult economic times, a fact that probably explains why a number of school districts have resorted to charging transportation fees. However, to try to save public money by instituting measures that threaten education for low-income children is not only shortsighted, it is violative of the democratic principles that give our political system its legitimacy.
The majority appear to conclude that unlike textbooks or teachers’ salaries, “transportation is not an essential element of school activity.” (Maj. opn., ante, p. 263.) Certainly transportation in and of itself is not essential to education; but transportation to and from school is essential to education because it is a prerequisite to it. For the student who cannot walk to school and cannot afford public or private transportation, a school bus is as essential to the process of education as the school building, the desk, the blackboard and the teacher.
As Justice Rutledge, joined by Justices Frankfurter, Jackson, and Burton, eloquently observed: “Without buildings, without equipment, without library, textbooks and other materials, and without transportation to bring
California cases have also emphasized the importance of transportation in the education process. (See, e.g., San Francisco Unified School District v. Johnson (1971) 3 Cal.3d 937, 959-960, fn. 29 [92 Cal.Rptr. 309, 479 P.2d 669]: “[t]he educational structure of California is not, and cannot be, so designed that every pupil is provided with a school within walking distance of his home. In rural areas almost all students travel by school bus; in urban regions the attendance zones of secondary schools often exceed a walking radius“; Bowker v. Baker (1946) 73 Cal.App.2d 653, 660 [167 P.2d 256], declaring that the function of free school transportation is to induce pupil attendance.) The majority‘s attempt to distinguish school transportation from textbooks, teachers’ salaries and other elements of the educational process is unpersuasive.
Nor are the fees justified by the fact that school districts are not required to provide transportation. In Hartzell, supra, 35 Cal.3d 899, extracurricular activities were provided at the school‘s discretion, but that fact did not resolve the issue of permissibility of fee charges. Apart from the basic curriculum, much is left to the discretion of individual school districts. It is inconsistent with the free school guaranty to hold that where there is discretion there may automatically be fees. Nor am I persuaded by the speculative argument that without bus fees, transportation will be terminated entirely to the detriment of the indigent and handicapped; nearly a decade has passed since Hartzell was decided and extracurricular activities have not vanished.
Finally, fee waivers for the “indigent” cannot save the statute. The Constitution guarantees free schooling to all, not just to indigents. Thus, the presence or absence of a waiver is irrelevant to the free school clause issue. Even were this not the case, the potential for fee waivers for the indigent
If it comes down to a choice between grocery money and busfare, the child will be the loser.
Contrary to the opinions in Michigan and North Dakota relied upon by the majority, the importance of transportation to the process of education was emphasized by this court a quarter of a century ago in Manjares v. Newton (1966) 64 Cal.2d 365, 374-375 [49 Cal.Rptr. 805, 411 P.2d 901]. In that case we ordered bus service to be provided to a group of pupils arbitrarily excluded by the district. We dismissed the claim that “economic considerations” justified the exclusion (id. at pp. 374-375), observing that “society has a compelling interest in affording children an opportunity to attend school.” (Id. at p. 375.) Clearly we were not speaking in terms of curriculum or even extracurricular activities, but rather simply of the opportunity to attend school, which encompasses the means necessary to get there.
Transportation to school is a “necessary element” of schooling within the meaning of Hartzell, supra, 35 Cal.3d at page 905. I would therefore reverse the judgment of the Court of Appeal. As I believe the statute violates the free school guaranty, I see no need to reach the equal protection issue.
Notes
“When the governing board of any school district provides for the transportation of pupils to and from schools in accordance with the provisions of Section 39800, or between the regular full-time day schools they would attend and the regular full-time occupational training classes attended by them as provided by a regional occupational center or program, the governing board of the district may require the parents and guardians of all or some of the pupils transported, to pay a portion of the cost of such transportation in an amount determined by the governing board.
“The amount determined by the board shall be no greater than the statewide average nonsubsidized cost of providing such transportation to a pupil on a publicly owned or operated transit system as determined by the Superintendent of Public Instruction, in cooperation with the Department of Transportation.
“For the purposes of this section, ‘nonsubsidized cost’ means actual operating costs less federal subventions.
“The governing board shall exempt from these charges pupils of parents and guardians who are indigent as set forth in rules and regulations adopted by the board.
“No charge under this section shall be made for the transportation of handicapped children.
“Nothing in this section shall be construed to sanction, perpetuate, or promote the racial or ethnic segregation of pupils in the schools.”
In our view, whether or not the districts were agents or privies of the Department, the public interest demanded that the parties not be barred from litigating the facial validity of the statute. We see no objection to their bringing the action in the county of the Department‘s principal place of business. This action does not directly interfere with the injunction against the Superintendent of Public Instruction which, as Salazar points out, is still in effect. (See 8 Witkin, Cal. Procedure (3d ed. 1985) Attack on Judgment in Trial Court, §§ 1-3, pp. 403-407.) After our decision, we are confident that the parties will file the appropriate action to challenge the continued propriety of the injunction against the Superintendent of Public Instruction.
The qualification regarding school assignment and transportation was adopted by the voters in 1979. The history of the amendment makes clear that the qualification was adopted in order the limit the use of compulsory busing designed to desegregate schools. (See Ballot Pamp., Proposed Amends. to Cal. Const. with arguments to voters, Special Statewide Elec. (Nov. 16, 1979) at pp. 6-9.) This case addresses a different concern; it does not consider the use of busing, but rather whether the imposition of a fee for transportation establishes a suspect class or impermissibly affects poor children‘s exercise of a fundamental right. Neither the Court of Appeal nor the parties have addressed the amendment in this case. Accordingly, we express no opinion on this provision of the Constitution.