Nagy v. Evansville-Vanderburgh School Corp.

14(A). locutory App. order." R. The trial payment NAGY,

court ordered the of Allen's attor Frank himself, on behalf of his ney fees for the settlement in the wrongful children, Nagy Weston and Jordan Young death claim on June 20083. filed Nagy, similarly situated, and those appeal her notice of on August 2008. Sonja Brackett, on behalf of her Young's appeal Because notice of filed was self, children, Cory her Brashear forty-five days interlocutory after the or Brackett, Cameron and those similar entered, Young's der was appeal is not ly situated, Appellants/Cross-Appel properly pursuant us App. before R. lees-Plaintiffs, 14(A).6 9(A)(5) ("Unless App. See R. filed, Appeal timely Notice of right v. appeal shall exeept pro be forfeited EVANSVILLE-VANDERBURGH 2.").

vided P.C.R. CORPORATION, SCHOOL Appel Young's interlocutory Because appeal is lee/Cross-Appellant-Defendant. properly App. here under R. we do jurisdiction not have appeal. over this No. 82A01-0308-CV-299. 5(B). App. R. Accordingly, must dis- Appeals miss. Court of of Indiana. Dismissed. May NAJAM, J., BAKER, J., concur. Young

6. We note that filed motion to cor- pellate Rules do not indicate a motion to entry rect error between the of the interlocu- filing correct error can extend the deadline tory filing order and the of the notice of appeal following an interlocu- notice However, appeal. as that motion was im- 14(A) tory App. order. R. does not mention a proper, Young procedural it cannot save error; simply provides motion to correct 59(C) explains default. Trial Rule that a mo- appeal the notice of must be filed within thir- filed, all, tion to correct error should be if at ty days interlocutory App. order. R. thirty days entry "not later than after the 9(A), filing which discusses the of the notice judgment of a appealable final or an final appeal, explains filing deadline for an suggested order." Nowhere in that Rule is it appeal judgment may from a final be extend- that a proper motion to correct error is fol- filing timely ed of "a motion correct lowing interlocutory an order. See TR. 59. error," 9(A)(1), App. provides see R. but no Supreme Court Committee Note to the interlocutory such extension for initiation of 59(B) perti- Amendment of TR. states in 9(A)(2). appeals, App. Accordingly, see R. nent part: motion to correct error did not extend the Filing: Time Judge. Service on [TR. timely filing appeal, deadline for the notice of 59(C)] replaces former rules found under Young's notice was late. See Hudson v. 59(C) 59(G). TR. This Committee does Tyson, Ind.App. 383 N.E.2d 72 n. applicable not intend to make the motion (1978) (noting Appellate under former Rules interlocutory Additionally, orders.... no filing a motion to correct error after interloc- change in the former case law has been utory "fraught danger" order is either, because contemplated and those cases which Appellate filing Rules do not extend the interlocutory addressed orders are interlocutory deadlines for a record after saved. Ann., order). Appendix See Ind.Code Title Court (Civil) (West 1996). Moreover, Rules Ap- Suess, Kenneth J.

Jacquelyn Bowie Union, Falk, India- Liberties Indiana Civil IN, Attorneys Appellants. napolis, Shoulders, L. Bur- A. Robert Patrick kart, & Stayman Weitzel Shoul- Ziemer ders, LLP, Evansville, IN, Attorneys for Appellee.

OPINION SULLIVAN, Judge. in this Appellants/Cross-Appellees

case, of himself and Nagy, Frank on behalf Nagy, his children Weston Jordan Brackett, Sonja on behalf of herself and Cameron Cory children Brashear her ("the Brackett, similarly situated and those Parents"), grant the trial court's challenge Ap- (3) in favor of the summary judgment specialists, formerly media known as (4) (5) the Evansville- librarians; nurses; pellee/Cross-Appellant, alterna- (6) education; police Corporation pro- tive liaison Vanderburgh Sehool ("EVSC") activities, gram; claim that extra-curricular on the Parents' programs, students a cer- which includes athletic the dra- policy EVSC's ma music program, program, the academic of the tain fee violates cross-appeal, programs, speech pro- Indiana Constitution. In its debate challenges grams. the trial court's the EVSC summary judgment in favor of the

grant of The fee against was assessed all stu- on their claim that the EVSC's Parents dents, regardless they of whether were policy violates the Due Process Clause of eligible participate in the reduced or the Fourteenth Amendment to the United programs. free lunch and textbook If the Constitution. States fee, parents pay of a student fail to the the parents are notified that their bill will be reverse and remand. referred to a law firm for collection and substantially facts are un- The relevant attorneys up that fees of will be $100 disputed. Beginning with the 2002-2008 charged regardless of whether a collection twenty- year, imposed the EVSC actually against is brought suit them. Af- activity students in dollar student action, filing the current ter the through grade. twelfth The kindergarten agreement parties, of the the has EVSC at imposed Board this fee EVSC School pro- decided not to initiate collection of the union the recommendation teacher's until a ceedings judgment final has been EVSC, together to and the which worked present rendered case. budget defi- find a solution to the EVSC's Nagy parent Frank is the of two chil- raising cit without taxes. budget of dren enrolled in schools. had incurred deficit EVSC On Octo- EVSC $2,300,000, projected and for 4, 2002, Nagy Mr. filed a class action ber $5,500,000. declaratory injunctive Approxi- complaint for budget deficit was 18, 2002, $1,500,000 mately complaint of the 2002 deficit was relief. On October Sonja provide the result of the failure to was amended the addition of State's of a anticipated, representative which had been and the Brackett as the named funds putative subclass. Ms. Brackett's children remainder of the deficit was result year in the 2002-2008 school eligible increased costs in the EVSC's standard were lunch and required by The for the free or reduced school operations. EVSC com- budget. programs. textbook The amended State law to have balanced relief; fee, (1) along prop- with State funds and local asserted two claims for plaint imposition of the fee violates Arti- erty deposited tax revenues are into the fund, 1 of the Indiana general which is used to cle Section EVSC's expenses. (2) fund school The EVSC does the fee violates the substan- object rights guaranteed by the specific process maintain a number or func- tive due to the money track col- Fourteenth Amendment United tion number to what pay lected as a result of the fee is used to States Constitution.

for. filed a motion to dismiss the The EVSC claim on November process Parents' due

Nevertheless, claims that EVSC following 10, 2002, fee is used to for the ex- par- December 2002. On agreed entry as to certification ties filed an (1) the coordinator of student ser- penses: class, approved. the trial court which vices; counselors; elementary 16, 2003, 56(C)). before the trial court January genuine On Ind. Trial Rule A issue of dismiss, motion to the Par- acted on the material fact exists when there is a dis- summary judgment. The moved for ents pute, undisputed capable or when facts are summary cross-motion for filed a EVSC inferences, supporting conflicting about April March 2008. On judgment on litiga- dispose issue which would granted the EVSC's motion court trial moving tion. 245-46. Onee the process Parents' due claim. dismiss the demonstrates, facie, that there party prima filed a motion to reconsider The Parents genuine no issues of material fact as to are 2,May this dismissal on issue, any determinative the burden shifts 28, 2003, Thereafter, non-moving party on the trial come forward June summary judgment to the granted contrary court with evidence. Id. at 246. We Arti brought the claim under upon EVSC judgment upon any theory sustain the 8, 1, granted summary cle Section but supported designated the evidence. Id. subclass, concluding to the that judgment summary judgment for Cross-motions do imposing upon qualified the fee those who not alter our standard of review. Id. free school lunch and for the reduced or violated substantive programs

textbook I process.1 the trial court had due Because granted the motion to dismiss the earlier 8, 1 Article Section the claim, process due the Parents filed mo Indiana Constitution error, the tion to correct to which EVSC appeal, challenge In their the Parents objected. granting the Parents' motion grant summary the trial court's judg- error, to correct the trial court certified ment in favor of the Par- EVSC the process to the due the sub-class relative ents' claim that imposition the EVSC's 11, 2008, the August claim. On Parents 8, the fee 1 violates Article Section 18, August and on appeal, filed a notice of Indiana which reads: ap a notice of the EVSC also filed peal. "Knowledge learning, generally dif

Summary judgment throughout fused a commu nity, being essential to the or denial of a reviewing grant When preservation gov of a free summary judgment, motion for we stand ernment; it shall be the v. the shoes of the trial court. Cox Town duty of the General Assem (Ind.Ct. N.E.2d City, Rome bly encourage, by all App.2002), weigh do not reh'g denied. We means, moral, in suitable evidence, the but rather we consider tellectual, scientific, ag light facts most favorable to the ricultural improvement; Summary non-moving party. Id. at 246. law, provide, by and to judgment only if appropriate desig is general sys and uniform nated evidentiary matter shows that there Schools,[2] no tem of Common genuine issue as to material fact moving party and that the is entitled to a wherein tuition shall be judgment (citing a matter of law. charge, equally without ruling effectively granted synonymous This Parents' mo- 2. "Common schools" is "public high schools" and includes schools. tion to dismissal the due reconsider the O'Dell, 84, 87, process claim and vacated that dismissal. State v. 187 Ind. 118 N.E. (1918). (emphasis sup to all." sion Section 1. The court

open concluded: plied). Parents, amounts can find no interpreting the fee "We basis for

According 'tuition,' tuition, is violative of the word to include textbooks to a which question. used in schools of the constitutional the State. Dictionary is to determine what is meant Black's Law defines tuition Our task teaching tuition shall be with- as 'The act or business of phrase "wherein various charge." learning' out branches Web ster's Third New International Dictio analyze questions arising un nary teaching: adds '... the act of by examining Indiana der the Constitution teacher; guidance services or of a the text in the context of language price of or payment for instruction. history surrounding drafting its implies Neither definition states or ratification, purpose and structure of the word entails textbooks. Nor does constitution, interpreting law case interpreting the case law constitutional specific provisions. Gaming Indiana mandates of free tuition similar Moseley, v. 643 N.E.2d Comm'n in Article indicate a con (Ind.1994). interpreting par task of a The trary result. See Rheam v. Bd. Re of of the Indiana ticular Constitu (1933), gents University Oklahoma of of common tion is a search for the under 268, 535, 161 Ok. 18 P.2d 538 and State it and standing of both those who framed Regents University ex rel. Priest v. Sonnenburg, of Bayh those who ratified it. v. (1882), 159, 54 11 Wisconsin Wis. N.W. (Ind.1991). 398, N.E.2d 412 In 73 5 Chandler, Ind.App. 473." 160 a a constitution placing construction 601, 312 N.E.2d at 920. thereof, any part or we should or clause history look to the of the times and exam fifth, sixth, Although and seventh edi things existing ine the state when Dictionary tions Black's Law contain no "tuition," any part entry for constitution or thereof was the Webster's defini to in adopted framed and order ascertain tion used Chandler is still current. law, mischief, remedy. Similarly, the old and the the non-obsolete definitions "tuition" contained in the Id. New Shorter are, Dictionary English Oxford "The ac directly only The Indiana case which tion, business, teacher; or function of meaning of "tuition" deals with the within teaching, (esp. instruction in return for a Article 1 is Chandler v. South Section 3 fee)." Thus, at 3418. Article See Cmty. Ind.App. Bend 160 Corp., Sch. very tion 1 mandates that the at the State (1974). Chandler, 312 N.E.2d 915 for least not students the functions Third District of this court was faced with teacher, in teaching, or services of a or challenge constitutionality struction. charging rental fee. students textbook court, although The acknowl- plaintiffs The claimed that for Chandler perspective "pro- that a historical provi- edging textbooks violated the free tuition English Dictionary originally includes, also lists the 3. obsolete definition "The ac- The looking taking person paid tion of after or care of of "A fee or fees American definition of; thing; being the condition of taken care perhaps tuition." Id. This more common defence, however, protection, custody, care.... usage, originated twentieth in the ward; guardian position of a to a relation century. See id. guardianship." Id. The New Shorter Oxford lands, may be raised from such or from to consider insight," refused a valid vide{s] surrounding the quarters accomplish- context other the historical 1, stating of Article Section adoption grand object they ment of the for which appropriate is that such consideration ... are or be intended. present. See 160 ambiguity

where an duty 2. It See. shall be the 602, 312 N.E.2d at 920-21. Ind.App. at [Alssembly, General as soon as circum- However, importance of such given law, permit, provide stances will forth in the standard set context and education, general system as- explore prudent feel it Bayh, supra, we cending regular graduation, in a provi of this history background township university, schools to a state sion. gratis, wherein tuition shall be long important been an Education has (em- equally open to all." Id. at 113-14 fundamental law of Indiana. part of the phasis supplied). is the Our current provisions in the 1816 successor to similar Supreme As observed our Court in and an educational Indiana Constitution State, ability Richardson v. discern provision of the Northwest Ordinance the intentions of the framers of the 1816 KertusBor- generally Cmarues See limited, journal Constitution is because the Inptama oucx, Maxima Consrrrurion of the 1816 constitutional convention does (1916). Article Three of the Northwest report delegates' remarks or dis part, "Religion, moral Ordinance stated procedural close informative matters. 717 ity, being necessary to knowledge, (Ind.1999) (citing N.E.2d Journat happiness of good government and the InpIaNaA or THECoNnvENTIONoF THE T'ERRITO- mankind, schools and the means of edu Inp. ry, in reprinted 61 Mac. Or Hist. 89- encouraged...." cation forever be shall (1965)). Indeed, 155 our review of the Upon Id. at Indiana's admittance 31-32. journal of the 1816 constitutional conven into in first State the Union tion insight reveals little into the edu following provi Constitution contained the provisions cational of the 1816 Constituti regarding sion education: However, on.4 one commentator has Knowledge learning Ist. and "See. that despite provision" stated this "liberal diffused, through a communi- generally Constitution, for education in the 1816 ty, being preservation essential to the of words, qualifying 'as cir soon as "Itlhe Government, spreading a and free permit, promise cumstances will left this opportunities, advantages of edu- by Assembly unfulfilled the General until through parts of the cation various it replaced was in the 1851 Constitution." Country, highly being conducive this InpIans P. Wiruram Tur end, duty of it shall be the General Guips Constrrurion, State A RererEncEe law, by

Assembly provide, for the (1996). are, improvement of such lands as granted, by hereafter the [UInit- The Indiana constitutional con- second vention, adoption which led to the of our state, ed States to this for the use of schools, apply any and to funds which current state left a more journal glean only 4. We from the could provisions Hist. at 143. The were then thai relative to a committee education was accepted by the convention without amend- convention, by and that this formed com KermwEsoroueH, ment. See id. at 149; supra, reported mittee later with the educational at 114 n. 56. Inp. provisions quoted above. See 61 Mas. or States, ignorant activities. most all the record of its Unfortu complete of free provides of this record nately, very little far, far, very many behind the slave of (emphasis to what the framers States." Debates at 1889-90 in insight direct they provided original). According Bryant, that "tuition to Mr. meant when 38,100 charge." Yet there was 1840 U.S. Census revealed that over shall be without in age twenty-one debate the convention re Indiana citizens over the considerable were illiterate.6 Id. at 1890. As a result garding provisions the educational constitution, particularly statistics, re proposed disturbing people new of these funding of the common sehool garding improvements this State called for and to Still, system.5 the debates do reveal that "adopt system general some education to citi important topic education was an in by marked out accordance day. delegate, Mr. Read zens of the One framers Constitution.... [the 1816] County, speaking support of Monroe passed through bill was [A] House Superintendent an office of establishing Representatives, and defeated the Sen ate, Schools, stated: question The was submitted to the are, sir, laying political people, they broader whether would have "We free They responded

foundations.... The education of schools or not. in the by every majority child the State has be- affirmative of about sixteen simply political necessity. (emphasis supplied). come thousand...." Id. Thereafter, necessary passed by It is a measure of de- a new bill was self-preservation. system House which established a of free fense with a tax." schools "limited sir, it, I must-yes, repeat citizenry have a devised and Senate then referred this to the must better general of the State that the law more efficient subject, operate this there should those counties education. On vote, opinion adopted popular can one in this which be but indeed, body, among peo- sixty more than counties did so. Id. See ple large." Rr- State, State also Maize v. Ind. 342 Anp ProcErp- 1849"). or tHE DeBatEs Port (referring "school law of Such THE late, INGSOF THE CONVENTIONFOR either too little or too efforts were THR the 1850 showed that Indiana REviston or CoNSTITUTIONOF U.S. Census 73,299 De had illiterate men and women.7 tus Srate (1850) (hereinafter bates at 1890. 1858-59 "De-

bates") (emphasis original). context, can light In of this historical certainty that the evil to be delegate, Bryant say Another Mr. with some Warren census, Article of our from the addressed what became County, quoted was a lack of education and indicated that Indiana was "the Constitution which age twenty-four population seem, under the was funding, 5. School it would has been topic quite 4,591. contentious some time. Id. Census, Census, According According pop- 7. to the 1850 U.S. 6. to the 1840 U.S. population of Indiana was His- 685,866. of Indiana was Historical ulation Browser, "Browser, http://fisher.lib.virgi- http://fisher.lib.virgi- torical Census Census (last (last vis- visit- nia.edu/collections/stats/histcensus/ nia.edu/collections/stats/histcensus/ total, 21, 2004). 21, 2004). May May Of this ed The same census indicates ited twenty age age population under the num- population that the white under the 410,649, 571,626. twenty numbered while the black bered conferring township to illiteracy (although statutes problem of subsequent general, to tax power trustees the must be response In to citizens. among Indiana's not be uni power exercise of such need the framers of the 1851 Con problem, this State); Shepardson throughout form v. our current Article See drafted stitution (1892) Gillett, 133 Ind. 31 N.E. 788 the most purposes, present tion 1. For claim was unconsti (rejecting that statute the 1816 and 1851 change between notable of incor tutional authorized trustees which pub providing provisions constitutional levy support to taxes for the porated towns the elimination of the lic was education corporations); within their of town schools as circumstances words "as soon qualifying Forrest, Ind. City Sch. Marion v. duty im This made the permit.8 will (stating that no 78 N.E. 187 Assembly immedi the General posed upon concerning question had been raised striking of this was ate. The validity authorizing school of statutes Bryant, of Mr. who stat upon the motion levy purposes, to taxes for certain boards ed: question power from the as to the to aside that this clause was inserted say "I will purposes). tax for tuition inadvertently by the committee. It was Schenck, 307, 1 v. 102 Ind. Robinson anything to retain more not intended (1885), Court, citing N.E. 698 Adam present Constitu- the first section of the Black, son, supra. overruled Maize and tion, parts those of it were than it be true that the "[I]f Court held system. certainly applicable to our local authorities be invested with au anything that to insert did not intend school-houses, thority levy taxes to build preventing or would have the effect of they may true that then must also be postponing the establishment free authority levy invested with taxes (emphasis at 1858 schools." Debates employ teachers." 102 Ind. at 1 N.E. supplied). describing authority at 704. In the broad an education to all citizens of Providing education, dealing legislature State, which the 1816 Constitu- goal the Court stated that the limits there reach, goal tion was the had failed were that the must be "'a framers of our current Constitution. one, general and uniform and tuition must new After the Consti ratification open free and to all." 102 Ind. at tution, arising under Ar the controversies N.E. at 705. The Court also withdrew Eight mainly ticle dealt with the issues from the distinction drawn Adamson funding. e.g., See surrounding school buildings: between teacher Black, 5 Ind. 557 Township Greencastle v. implication "There is not the remotest (1854) (local township pay expenses tax to authorizing the conclu- the Constitution of local and the State common schools sion that there is a difference between statute which were uncon authorized such right levy purpose to taxes for the uniformity stitutional of the because the erecting houses the accommodation system common be would de pupils, right levy of the and the to taxes them, instructing to teachers for stroyed); Adamson v. Auditor & Treasur power er and the court has no to create County, Warren 9 Ind. changes 8. Other notable between the 1816 university. change phrase state gratis" "wherein tuition shall be to "wherein regarding provisions 1851 constitutional township education are the elimination of charge" merely without sub- tuition shall be English phrase equiva- system stitutes an for its Latin schools in favor of uniform of com- lent. any mon schools and the lack of mention of Haworth, teaching only...." cash implication. such an The act 122 Ind. at as well as a implies place 492, (Berkshire, J., teach 23 N.E. at 956 dis teaching Both the and the teacher. senting). imparted instruction is are

place where discussing provision, this the Haworth language within the our embraced Court observed: things and the two are so "It is to be remembered that the statute they blended that can mot be closely every person does command that If separated. private the teacher of a books; buy shall it confines the re were to send to the father of one quirement to those who receive the ben tuition, pupils of his an account for efit schools. These schools place afterwards a for the use of the bill state, by are owned and maintained conducted, po- where the school was may and the state prescribe the terms would, principle, sition of the teacher pupils may and conditions which precisely occupied be the same as that them, except enter that it can not disre by power those who affirm that the gard injunction the constitutional levy a tax to erect school-houses be 'tuition shall be charge, without delegated, power levy but the a tax to open to equally all"" Ind. at 473- pay teachers can not be." 102 Ind. at 74, 23 N.E. at 949. 318, 1 (emphasis sup- N.E. 704-05 Thus, the Haworth Court was faced with a plied). required public statute which school chil Still, early none these cases dealt direct- purchase dren to books. in discussing And ly question with the of what tuition without 1, 23, an attack under Article Section charge means. 1, Court took note of Article Section but early An case which comes close to the mentioned no violation of Article Section Haworth, subject is State ex rel. Clark v. by requiring the statute pur students to (1890). 122 Ind. 28 N.E. 946 Haworth Although chase textbooks. could this challenge a constitutional under involved suggest read to that the Haworth Court Article to a statute providing Section 28 did not consider a for textbooks to bidding process for a statewide for the tuition, be included within of free procurement of 7 of textbooks.9 Section significant we find the Haworth question the statute stated relevant Court was not faced with a direct chal part: Arti lenge question to the statute under "upon receipt by books said such Any of Article cle Section discussion they school trustees shall furnish them passing 1 was in and not neces patrons on demand to the school sary far holding of the Court. As respective corpo- school children of their revealed, re price rations at the fixed therefor research has Chandler to have direct mains the Indiana case contract entered into between said ly question discussed the of what board of commissioners and said con- tractor; that tu duty and it shall of such Section means charge. school officers to sell such books for shall be without ition one, specifically lege granted right 9. The Haworth Court never iden no denied to tified under which section of the Indiana 470-71, any one...." 122 Ind. at 23 N.E. at challenge being Constitution the was made. this, reasonably 949. From we can conclude Instead, the Court to the "constitu referred provision being that the constitutional in- against monopo tional directed 1, Article voked was Section 23. lies," "[njo special privi- and also stated that 1230 background ly truly be said that the schools were the historical

Given 8, 1, Article we have Section all if purpose equally open poorest to of families respect holding to our doubts with to afford other charges. were unable these 8, mandate of Article If the Chandler. sure, To has remained be Chandler remedy problem 1 to Section was Too, unchallenged since it was decided. and the illiteracy prop- widespread lack lightly disagree long-stand we do not citizens, among Indiana such er education Nevertheless, ing precedent. ina matter easily pub- if be thwarted a mandate could relating to our state we are schools, charging not for "tu- although lie blindly not beholden to follow what we strictly construed as that term was ition" holding. consider to an erroneous Chandler, be charged for nevertheless that, conclude force necessary properly educate stu- therefore have things Chandler, all, 8, public Indiana ful meaning dents. Under Article Section must effectively, and constitution- schools could interpreted to mean that not must beyond the means of ally, price education charge Indiana schools not for "tu public mény Hoosiers. ition" the sense of the services of a instruction, teacher or but also must not

Although being charged by the fee charge for those functions services dollars, "only" twenty currently EVSC very which are their nature essential to logic argu- nothing EVSC's teaching or "tuition." High Indiana ment, holding, pro- would or the Chandler Cf. Carlberg, Sch. Athletic Ass'n. v. schools from a stu- public hibit (Ind.1997) fee, (recognizing or for that matter even a N.E.2d dent $200 that our specifies Constitution that knowl logic permit fee. This would our $2000 edge learning are priced essential to the system public schools out of raising preservation government to avoid local a free reach in order taxes. so It cold comfort in- pub would be a indeed to mandates a "statewide of free education."). family of limited form a Hoosier means lic It suggest is absurd to that their children to they pub- could send public may that charge schools not for the being charged lice schools without for teacher, services of a charge but stu salaries, say they but teachers' things dents a for as essential to teach charged buildings, would be for school ing and instruction as the services of the textbooks, electricity, heating, etc. teacher, such as school buildings, mainte nance, heating cooling, electricity, portion also find instructive that 'We hold, textbooks. To so as did the Chan immediately Article Section which fol- court, impo dler leaves Article Section 1 lows the mandate that the common schools effectively tent and meaningless. This context, tuition. not Article could not have been the intent of those Section states tuition common who drafted 1 in Section an charge, schools shall be without "and effort to equally open public adequate to all." ensure education for Were insengi- charged everything students all Indiana citizens.10 but the We are not tuition, definition of strictest could hard- tive to concerns of local officials faced with Although disagree directly simple with the Chandler overturn Chandler for the rea- interpretation that the issue son before the Chandler court is court's of Article today challenge we are not faced with a direct currently may, before us. Be that as it constitutionality of Indiana's prece- our decision the continued makes Thus, despite school textbook scheme. dential value of Chandler dubious at best. disagreement reasoning, with its we do not raising taxes or cut such accessories or "frills" choice of to their edu- the difficult popular programs. may, cational environment. Be that as it ting back on However, ignore cannot what we see as our holding specifically relates to by the mandate of our Constitution. "those functions and services which are very their nature essential to teaching or posi- merit to the indisputable There is 'tuition.'" atOp. holding 1280. The itself dissent to the extent that by tion taken is limited its inclusions. Judge Bailey sees the issue as one for community. by depart, We solution hand, On the other the dissent would however, ifit from that view be limited to limit requirement of free education community segment or a particular a local imposed by our Constitution of state-wide thereof. application to the lowest common denomi may nator of perceived what be to be

The education of the children of the teaching, nothing payment i.e. more than of Indiana is a concern of the State State of minimum teacher's salaries to the few precisely why That community. necessary est number of teachers to cover imposed drafters of our Constitution required curriculum. It would seem to ... duty "general system of a and uniform us, provide encouragement among to those charge tuition shall without wherein hopefully very minority, small who see to all." open in broadly no value based education and not, today holding suggest- Our does as curriculum but who adequate find teach dissent, necessarily require ed ing of "readin' writin' and 'rithmatic" with of ... trainers .. provision "basketballs foreign languages, out the "frills" of com (Dissent 1237) at no soccer fields" [and] science, puter programs. and honors Such expense to the immediate users bene- regression would be akin to a return to the items, facil- personnel, ficiaries of such solitary, one-room school house with a ded certainly imply do not that tax- ities. We icated, but limited scehool-marm.11 necessarily foot the bill for payers must recognize that courts in our sister arenas, We 10,000 state-of-the- seat basketball halls, faculty dining varying holdings art concert room states have reached china, tablecloths, fully regard questions properly with linen and a of what kitchen; say charged by public nor do we schools under their staffed chef's Ghent, Jeffrey taxpayers may pay local not choose to for constitutions.12 See F. Val rooms, heating janitors to 11. We view with admiration the dissent's of clean sought creative to the evils to be rooms, allusion such rooms and students' and for vari system visited the educational of River expenses ous other incidental did not violate City, Iowa Professor Harold Hill. find requiring university statute however, misleading, to be somewhat tuition), Segar students for v. Bd. resident of complete story. Any that it does not true City Rockford, Educ. Sch. Dist. 317 Ill. of of fan of The Music Man is aware that the kids (1925) (school provi 148 N.E. 289 board did in fact receive their musical instruments requiring pay deposit sion students promised, to extract as learned sounds loaned textbooks did not violate constitutional instruments, marching through those and in schools), of free Rheam gained displayed the town with them Oklahoma, Regents Univ. v. Bd. of shared, pride, immense sense of if not exceed- (1933) (fee imposed by 18 P.2d 535 Okla. ed, community. by the members of the university pay for costs of student union building and stadium was not in violation Compare Regents State ex rel. Priest v. prohibiting charging state statute resident stu Wisconsin, Univ. 54 Wis. 11 N.W. 472 tuition), (1882) (state Hamer v. Bd. Educ. university's requirement dents for of stu- covering expenses dents to such 47 Ill.2d 265 N.E.2d Sch. Dist. No. 1232 "tuition" be without requires tion Fees Children idity Exaction of from of however, system Pub Elementary Secondary explained, As charge.

Attending 752, (1972); Schools, 757 for all whereby charge 41 A.L.R.3d schools could public lic & School Districts Schools of tu- things 78A C.J.S. outside a narrow definition (1995); 68 Am.Jur.2d Schools meaningless in effect render could § 726-27 ition (2000). § 238-39 tuition, of free i.e. instruction. the mandate opinion also find instructive pres- distinguish seeks The EVSC Dick, in Supreme supra. Court of Kansas in those cases which from ent situation Dick, claimed that plaintiffs were held charged to students fees various provi- a tuition fee violated a collection of correctly noting that by improper to be at the Kansas Constitution which sion of cases, the constitutional those several of stated, Legislature ""The shall that time system for a of at issue called language intellectual, encourage promotion of schools," Indiana's Constitu- whereas "free schools."), (state ondary (1970) Paulson v. Minidoka Coun- mandate that constitutional 616 thorough effi legislature provide Dist., 469, and for ty Idaho 463 P.2d 935 Sch. 93 (fee schools, whereby (1970) applied towards textbooks and ex- all chil system free cient of may good common receive dren of the state improper given was tracurricular activities legislature prohibit did not school education provision requiring state constitutional state purchase authorizing schools to local from general legislature to establish and maintain a " students), and textbooks and rent them system 'public, of free common and uniform 1 Carpio High Sch. Dist. No. v. Tucson "), of County Granger v. Cascade schools.' Sch. 524 P.2d 948 127, 111 Ariz. Pima County, Dist., 516, (1972) P.2d 780 159 Mont. 499 (state (1974) providing clauses constitutional duty legislature (given state constitutional for public system general school and uniform for uniform, general, to establish and maintain a system of common schools providing that and free, thorough system public, common and be established and a free school which schools, charge public stu schools could not every district did school not maintained dents fees for those courses or activities high to include free textbooks intend recog reasonably to a which were related denied, 982, level), cert. 420 U.S. school goal nized academic and educational 1412, (1975), 43 L.Ed.2d 664 with Bd. S.Ct. system), particular school Concerned Parents Dick, City Lawrence v. 70 Kan. Educ. Dist., v. Caruthersville Sch. 548 S.W.2d 554 (the (1904) term "common 78 P. 812 (Mo.1977) (public constitutionally schools meant free com schools" in state constitution registration prohibited and schools, charge and of tuition was un mon prerequisites to enrollment and course fees Jackson, constitutional), v. 168 Ga. Brinson participation by school children in classes (1929) (charging public 148 S.E. 96 light academic offered for credit of state matriculation fee violated school students provision public constitutional free for common state constitutional " instruction), gratuitous schools for v. Hartzell 'shall be free to all the chil schools which Connell, Cal.Rptr. 35 Cal.3d "), the state.' Dowell v. Sch. Dist. No. dren of (1984) (imposition of fees for 679 P.2d 35 220 Ark. 250 S.W.2d 1, Boone County, activities, including educational extracurricu (1952) (registration fee could not be re activities, by public high lar offered public quired in schools because of state con guarantee violated state constitutional requirement that state maintain a stitutional schools which a free school "'common suitable, system general, efficient of free and kept up supported in each dis shall be and whereby persons the state be schools all "), Randolph County Bd. Educ. v. trict.' ages twenty-one years of six and tween the Adams, (1995) instruction), W.Va. 467 S.E.2d 150 gratuitous Bond v. receive {fundamental (textbooks integral part of are Dist., Sch. 383 Mich. Public Sch. Ann Arbor elementary secondary education (textbooks 178 N.W.2d 484 provided public must be school students part supplies of free were essential charge pro education and schools could without under state constitutional thorough and efficient light pro vision for constitutional such in of 1963 state elementary schools). vision for "free and sec- free moral, complain ents also agricultural improve money generat- scientific ment, commingled ed the fee is with other by establishing a uniform schools.....'"13 P. at 813 commons general monies in the EVSC's fund. This general pay fund expenses is used for 2). Af Art. Sec. (quoting Kans. Const. dictionaries, which even under the EVSC's narrow view quoting from several law ter follows, example, constitute tuition. For it is un- concluded, think it the court "We disputed that paid teachers' salaries are reason, therefore, authority from both general According from the fund. 'common schools' was used phrase that the Parents, because of the commingling, it is sense, in the Constitution in its technical impossible actually to tell what the fee is Id. at 814. which means free schools...." for, being pay used to ie. tuition or non- Debates, (referring at 1858 supra, See also tuition expenses, related and therefore the establishing Article 1 as Section necessarily charge amounts to a for schools). If common schools are "free" tuition. schools, synonymous with free then the pro

distinction between our constitutional support position, of their the Parents calling vision for common schools wherein deposition testimony refer to the of Robert charge, tuition shall be without and those Yeager, superintendent the assistant other states whose constitutions call for personnel and finance for the At EVSC. schools, significantly free is lessened. deposition, ques- the Parents' counsel Yeager money tioned Mr. regarding that public Our conclusion Indiana generated by the fee: charg prohibited only schools are not from "Q. exactly And what is all the student tuition, ing for but also for those functions Everything fee used for? it's used very and services which are their na for, the student services fee. instruction, teaching ture or is essential similar to the conclusion reached Paul- Well, A. there's a list of some of the Bond, supra. son and These cases held go items here. To in and define public may charge schools for exactly this what dollar went for "necessary elements of school's activi and that dollar went would be ty," "integral impossibility. you 463 P.2d at funda have What budget to do is look at the school part[s] elementary mental and see- ondary education." 178 at 488. and then look the line items N.W.2d budget. the school That's the holding, Given our re question money way you can see how that charged by mains: does the fee the EVSC pay things. filtered out to amount to a for tuition and those then, Q. budget the school does it And activities and functions essential to tuition? money show here's all the specifically complain The Parents that the fees and here's where it's student fee is used to for the cost of elementa out, separated Is it going? counselors, nurses, media ry school money? specialists, the coordinator of student ser separated A. It's not out. vices, program, the alternative education par- and extra-curricular activities. The schools, public

13. The current educational institutions may organized activities which related Kansas states, legislature provide "The shall for intel- changed provided in such manner as lectual, educational, vocational and scientific by law." maintaining improvement by establishing and on, you this in there and can see What is this based Q. Okay. examples of what the mon- list how much school nurses budget [of by the fee is used ey generated that, you cost. If look at then you do know that this is How that’s-obviously one of those areas for]. they're using it for? what money that the could be fed into. again I know that those you put together Because the entire When that we offer are items above budget you look at all these differ- the core curriculum is beyond what things ent and all these different corporation. the school items, and personnel services to all Okay. But then addition money that of the part becomes programs and activities and of the pool part that to balance listed here on this list personnel budget." Appendix at 102-05. memorandum, could be the there Upon appeal, deny the EVSC does not that for? things other it's used Is generated by that the funds the fee are you're saying? that what commingled general with other in the monies Well, again say there I would that However, fun d.14 the EVSC claims correlation dollar to direct from that the evidence establishes that impossible dollar would EVSC has not used the fee to offset costs you give if track. In other words education, instruction, of state mandated fee, goes into me a student $20 or curriculum. It upon ques is true that that funds most of the pot counsel, by tioning Yeager the EVSC's Mr. There's not corporation. money generated by testified that the say-there's specific things that way not in any was "used to offset object number or specific mot a education, instruction, state mandated the ac- cur number within function riculum requirement." App. or service counting system that all student only Yeager 169. Mr. also testified that go in and fees therefore ... if things certain out i "solely exclusive[ly] fees were used to trying to question you're that's the personnel contribute to the cost of or ser ask. vices or programs by which are offered by in addition to those required EVSC Yes, . that is. . legislature the Indiana State Board and/or Okay. App. Education." at 169-70. fees, Collected student service they go money in with the state First, claims that EVSC money- tax property and the money generated by the fee is used Correct. towards the of personnel cost or services just all -and it's distributed to that are in required by addition to those it? you wherever need Legislature or the Board of Education issue, dispositive is not because budget those line items Wherever it, interpretation under our might direct and one of those See- mean, you go I can tion might very pro- nurses. the EVSC well be inapposite question Indeed, to the of whether this the EVSC claims Ind.Code (Burns § Supp.2003) 21-2-11-4 Code Ed. unconstitutional; practice is the General As- "specifically grants authority to EVSC do so." sembly statutorily cannot authorize an other- argument EVSC at 20. This misses the Brief wise unconstitutional act. point. Whether a statute authorizes such is programs, amounts to a charging students for costs textbook vio- hibited process guaranteed lation of due of law as beyond personnel or services above and required by the State. Those the Fourteenth Amendment that are However, required by the United States Constitution. personnel and services concluded that practice indeed be within ambit we have State would necessary expenses ap- which the the fee is unconstitutional as those constitutionally charge plied regardless stu- to all students of whether EVSC dents, necessary they qualify programs, any under our for these but what dis- might go process students well cussion of the claim analysis to educate EVSC's due by the beyond required what is State. would constitute dicta. We therefore need upon appeal. not address this issue however, Yeag importantly, More Mr. that it testimony er's earlier indicated was judgment of the trial court is re- money gen

impossible to tell whether the pro- versed and the cause is remanded for specific erated the fee went to fund ceedings opinion. not inconsistent with this activity. money The collected from the fee budget. inside the

was not tracked EVSC's ROBB, J., concurs. commingling and not By practice the BAILEY, J., opinion. dissents with money generated by keeping track of the fee, iden specific the such funds lost their BAILEY, Judge, dissenting. Butler, N.E.2d tity. Stevens v. 639 See majori- I respectfully dissent from the (in (Ind.Ct.App.1994) 666-67 context ty's policy determination that the fee at money, claim of conversion of commin issue violates the Indiana Constitution. In separate, specifi to gled funds ceased disagree majority's I the particular, no cally plaintiffs identifiable chattel and "tuition," that in conclusion the word as used longer property had a interest those VIII, in 1 of the Article Section funds) Indiana specific (citing Kopis Savage, v. 498 includes "the services of a (Ind.Ct.App.1986)), 1270 N.E.2d instruction," well as "those teacher or as Thus, trans. denied. the Parents have functions and services which are their money generated by established that the teaching to or 'tu- very nature essential manner to the fee used some at 1280. The issue before us Op. ition.'" amounts to tuition. This amounts what imposition of a student is whether for tuition violation of activity is used to fund the fee-which 1. The trial court erred (1) the coordinator of following expenses: otherwise, concluding and we therefore re (2) services; elementary school student the trial court and judgment verse the (8) (4) counselors; specialists; media sum remand with instructions to enter (5) nurses; education; alternative mary judgment in favor of the Parents. (7) (6) program; liaison police - II extra-curricular activities-violates mandate that Indiana Constitution's Due Process sys- Assembly provide a "uniform General cross-appeal, In claims its EVSC Schools, wherein tuition tem of Common granting that trial court erred in sum- charge, equally open shall be without mary judgment in favor of the EVSC Inp. VIII, § 1. Cowst. art. to all." See that its grounds policy requires us to students, Resolution of this issue including fee to all those who meaning of the interpret the constitutional or free school lunch qualify for the reduced 1236 i.e., Hoosiers, many means of yond the are bound doing, we In "tuition."

term so activity fee charginga rather than of constitutional doctrines by established charge a might $20.00, corporations canon of fundamental "A construction. $2,000.00. at $200.00, Op. even presume that we requires construction "(ilt that majority concludes was careful the Constitution each word to inform comfort indeed a cold would be '... as intentionally placed, ly chosen [it] means family of limited Hoosier into hammered had been it though schools children [its] could send Bend v. South Chandler instrument."" sala charged for teachers' being without Ind.App. 160 Corp., Cmty. Sch. charged ries, say that would [it] but (quoting Chad 920 N.E.2d electricity, heating, buildings, for school Ind. Crawfordsville, City wick v. textbooks, etc." (1940)). In 399, 409, 24 N.E.2d must society Undoubtedly, goal our employed words addition, give must enjoy the children that our meaning, be to ensure ordinary their the Constitution an education. to obtain opportunity from the affirmatively appears unless has enunciated regard, legislature this instrument the entire wording of for all required curricula minimum See intended. meaning was contrary secondary-schoo!l elementary- and Indiana 600-01, Chandler, Ind.App. §§ 20-10.1-4-1 Ind.Code students. See at 920. N.E.2d -14, legislature has doing, In so act as "the is defined "tuition" The term financing officials charged local school of a guidance or the teaching: services curricula- with this costs associated payment for of or price ... teacher: purchasing not limited to including but Tairp Inter- New instruction." Waessrer's teachers, nurses, textbooks; employing Dictionary (2002). This wnationat non-instrue- performing and teacher aides expenses encompass does not definition duties; program; a lunch providing tional services of the student such as the salaries students-by levying tax- transporting and counselors, coordinator, elementary school citizenry. See Ind. the local against es nurses, nor and school specialists, media § 20-5-2-2; 20- § see also Ind.Code Code programs funding of dssoesit extend 5-2-1.2, that, such, I believe instead As liaison, edu alternative police such as term "tuition" broadening scope cation, activities. See and extracurricular by the framers of beyond that intended Chandler, 312 N.E.2d Ind.App. local should allow Indiana aforementioned (holding at 922 how best to edu- communities to determine not include text tuition does definition of only by the limited citizenry, cate their books). must construe words Because we tuition, provide constitutional mandate ordinary plain and to their according Chandler, charge. free of defined as majority's disagree with meaning, I limitations on the Ultimately, there are term tuition interpretation broad (whether taxes, it be funding amount instead, con and, the more narrow favor fees, tickets, activity of admission sale in Chandler. struction enunciated sales, fees, corporate spon- candy or book interpre few) that can be expansive adopting such sorships to name but tuition, majority any given the children raised to educate tation of the word limits, there are community. that under the Where concerned appears to be made, and it is for our must be asserted Chan choices definition more narrow make such officials to dler, might locally elected corporations See, §§ 20-5-2- that is be place price tag eg., on education Ind.Code choices. 1.2, prefer us would that intended the framers of our Con -2. most of While ride, can afford luxury most of us will not goal. stitution achieve this To the transportation. contrary, basic expanding the definition will merely permit community local school and taxpayers become parents Should officials to demand more funding academic, athletic, or disillusioned over the "tuition," thereby, providing State for or offerings the level extracurricular some cover from the difficult re choices particular program, to a funding allocated of them quired when confronted with a local they can confront their officials Therefore, budget. deciding finite wheth changes. If local upon appropriate insist basketballs, buy er to more books or hire determine, community officials school and trainers, teachers or or more build more equipment that athletie example, or science labs soccer fields should rest than advancement of a important more foreign language program, or that the con- authorities, with the local and so too wrong today of a multi-million dollar athletic should the costs. Choose struction to the school's facility is more vital the decision makers of tomorrow will be lab, computer la than a the local communi- ill-equipped day to fend off the modern "MusicMan.15 ty, respond via the democratic will process, affirming corporation's either deci- way, Put another local control of edu- sion-ie., local retaining the equate cation should to local costs. Our community by opposing officials-or legislature state has determined the mini- decision-ie., voting the officials out of required educating mum standards we, judiciary, may Though office. provided funding accord- children has community's disagree with decision - §§ ingly. See Ind.Code 20-10.1-4-1 corporation's affirm the school oppose minimum 14. Costs over and above these policy, we must leave that choice to the locally requirements should be funded community.

wisdom of the local fees, not through property taxes and Moreover, community I con believe through subterfuge upon based ex- of education is consistent with our trol of tuition. the panded definition Unless history, which was well de constitutional funding public mechanism for education veloped by majority opinion. Op. at revamped, Indiana is there will continue history, 1226-1229. From this it is clear disparity opportuni- to be a of educational that the framers understood the benefits the various socio-economic ties between citizenry to allowing derived from voice Ultimately, in our communities State. Indeed, opinion its on education. remedy perceived to these responsibility VIII, 1 of the Indiana Constitution legislature. Ac- disparities rests with an educated demo was enacted to ensure cordingly, I would affirm the trial court's society. Providing the appropriate cratic summary judgment on this issue. grant of opportunities educational for the decision eross-appeal, EVSC also contends On imperative pre makers of the future is to However, erroneously granted the trial court our democratic traditions. serve summary judgment to the Parents on their beyond the definition of tuition expanding Lacey, anyway." See Kenneth has no music skill 15. Meredith Willson & Franklin (1962). Man, Chisholm, "The Music Man" is a Summary Music Man Music Plot a conman intends "to cheat musical wherein http://www.us.imbd.com/ti- at- available community his standard scam of (last plotsummary.htm visited tle/tt0056262/ 2004). April30, boy's marching offering equip to and train a band, money skip since he then town with REPORTER, 2d 808 NORTH EASTERN SERIES case, policy present although violates In the has claim that the EVSC's EVSC of the Fourteenth legitimate funding the Due Process Clause interest education services, policy to the United State Constitu- and education-related its Amendment the trial court deter- Specifically, twenty-dollar every fee to stu tion. twenty- dent, imposition regardless that the of the student's means mined fee, ability pay rationally the free or re- such not dollar fee on students is programs superlative and textbook vio- duced lunch related its interest edu Indeed, Fourteenth Amendment cating lates the students its students. for such a fee process rights. policy serutiny, The Four- substantive due survive constitutional to the United States teenth Amendment contain, least, very must a waiver person that "no provides Constitution shall for those students who cannot life, liberty, fee, deprived property pay mandatory or afford to potential Congr. ly of law." U.S. process including without due but limited to those stu XIV, § 1. eligible participate amend. dents deemed in oth le., financially programs, er subsidized process due under the Con- Substantive pro free or reduced lunch and textbook action that de- prohibits stitution state grams. I Accordingly, would affirm the life, liberty, property with- prives one of trial court's imposing determination that deprivation. out a rational for the basis mandatory fee on who cannot students County, N.E.2d Parks v. Madison afford to rationally such fee is not (Ind.Ct.App.2002), trans. denied. To related to in raising EVSC's interest mon action at determine whether the state is- ey funding purposes.16 for school sue, le., the United policy, the fee violates States we first determine reasons, For I respectfully these dissent right whether a fundamental is affected. majority's from the opinion. case, parties Id. In the instant con- policy cede that the fee does not involve Where, here, as right.

fundamental no right implicated,

fundamental EVSC will

prevail showing policy legitimate

bears a to a relationship rational

state interest. my Because resolution of this case is not hearing required by Indiana Trial Rule dependent upon See, court's subclass de- 23(C). the trial e.g., McCart v. Executive Chief Union, termination, Charge, Indep. Fed. Credit I decline to address EVSC's ar- Officer (Ind.Ct.App.1995) 652N.E.2d 84 n. 3 gument court abused its the trial discre- ("Subclasses satisfy by certifying must the class action re tion subclass students parents certified"), quirements they may in the free or reduced lunch and before denied, conducting programs, reh'g textbook without trans. denied.

Case Details

Case Name: Nagy v. Evansville-Vanderburgh School Corp.

Court Name: Indiana Court of Appeals

Date Published: May 28, 2004

Citation: 808 N.E.2d 1221

Docket Number: 82A01-0308-CV-299

Court Abbreviation: Ind. Ct. App.