Frank NAGY, on behalf of himself, his children, Weston Nagy and Jordan Nagy, and those similarly situated, and Sonia Brackett, on behalf of herself, her children, Cory Brashear and Cameron Brackett, and those similarly situated, Appellants (Petitioners below) v. EVANSVILLE-VANDERBURGH SCHOOL CORPORATION, Appellee (Respondent below).
No. 82S01-0409-CV-428
Supreme Court of Indiana
March 30, 2006
844 N.E.2d 481
The Clerk of this Court is directed to forward notice of this order to the respondent and his attorney; to the Indiana Supreme Court Disciplinary Commission, to the hearing officer, Leslie C. Shivеly, and to all other entities as provided in Admis.Disc.R. 23(3)(d).
SHEPARD, C.J., and SULLIVAN, BOEHM and RUCKER, JJ., concur.
DICKSON, J. dissents, believing that the respondent‘s misconduct requires a longer suspension from the practice of law.
Patrick A. Shoulders, Robert L. Burkhart, Ziemer Stayman Weitzel & Shoulders, LLP, Evansville, for Appellee.
Lisa F. Tanselle, Indianapolis, for Amicus Curiae Indiana School Boards Association.
RUCKER, Justice.
The question presented is whether the mandatory $20 student services fee imposed on students enrolled in a school corporation violates
I. Facts and Procedural History
The facts of this case are largely undisputed. For the 2002-2003 school year, the Evansville-Vanderburgh School Corporation (“EVSC“) imposed a $20 student services fee on all students in grades Kindergarten through Twelve.1 EVSC ac-
Frank Nagy and Sonja Brackett are residents of Evansville whose children are enrolled in public schools under EVSC‘s jurisdiction. EVSC charged Nagy and Brackett a $20 fee for each of their children enrolled for the 2002-2003 academic year. The Brackett children qualify for the reduced or free school lunch and textbook programs.
In October 2002, on behalf of himself and others similarly situated, Nagy filed a class action complaint seeking declaratory and injunctive relief. The complaint was later amended to add Sonja Brackett.2 Among other things the complaint alleged that the imposition of the fee violated
In a divided opinion, the Court of Appeals reversed the judgment of the trial court, holding that the $20 fee violates
II. Discussion
A. Rules of Constitutional Construction
a search for the common understanding of both those who framed it and those who ratified it. Furthermore, the intent of the framers of the Constitution is paramount in determining the meaning of a provision. In order to give life to their intended meaning, we examine the language of the text in the context of the history surrounding its drafting and ratification, the purpose and structure of our constitution, and case law interpreting the specific provisions. In construing the constitution, we look to the history of the times, and examine the state of things existing when the constitution or any part thereof was framed and adopted, to ascertain the old law, the mischief, and the remedy. The language of each provision of the Constitution must be treated with particular deference, as though every word had been hammered into place.
McIntosh v. Melroe Co., 729 N.E.2d 972, 986 (Ind.2000) (quotation marks and citations omitted).
B. Context of the Historical Development of Common Schools
Exploring the framers’ understanding of tuition and its applicаtion to the case before us, the Court of Appeals set forth the historical framework of
We are of the view that the holding expressed by our colleagues sweeps a little too broadly. The idea that tuition includes “those functions and services which are by their very nature essential to teaching” is certainly descriptive of what is meant by a “free” school system. See, e.g., Randolph County Bd. of Educ. v. Adams, 196 W.Va. 9, 467 S.E.2d 150, 159 (1995) (citations omitted) (“[W]hatever items are deemed necessary to accomplish the goals of a school system and are in fact an ‘integral fundamental part of the elementary and secondary education’ must be provided
1. The Free Common School Debate
At least one pair of commentators has noted, “The crusade for free, common schools ... is one of the best known episodes in American educational history ....” Claudia Goldin & Lawrence F. Katz, The Virtues of the Past: Education in the First Hundred Years of the New Republic 16, Working Paper 9958, National Bureau of Economic Research (September 2003). Caleb Mills, a professor at what was later to become Wabash College, and often referred to as the “father of the Indiana common school system,” see Scott Walter, ‘Awakening the Public Mind‘: The Dissemination of the Common School Idea in Indiana, 1787–1852, in Hoosier Schools: Past and Present 1, 1, 8-9 (William J. Reese ed., 1998), addressed the Indiana General Assembly six times between 1846 and 1852 with appeals for the creation of free common schools. Among other things, Mills argued for a quality education open to all Indiana children “without distinction of rank or color” and that “our common schools should be free as the atmosphere we breathe.” Calеb Mills, An Address to the Legislature of Indiana at the Commencement of its Session (December 7, 1846), reprinted in Charles W.
In apparent response to the efforts of the free common school movement supporters, the General Assembly called for a convention, to be held in Indianapolis, for the purpose of “‘consulting and devising the best course to be pursued to promote common school education‘” in Indiana. Donald F. Carmony, 2 The History of Indiana 381 (1998) (quoting Indiana House Journal 387 (1846–47)). The Indiana State Journal reported: “It is the laying [sic] the very corner stone of the durability of the republic; the commencement of a system of free schools ....” Carmony, supra, at 381. The convention first met on May 26, 1847 and lasted three days. Justice Blackford presided, and about 300 persons attended. Richard G. Boone, History of Education in Indiana 96 (New York, D. Appleton 1892). The convention‘s delegates recommended that, “(1) additional [school] funds should be provided by a general tax; (2) [the schools] should be free, ‘perfectly free, as the dew of heaven, to rich and poor, without the least recognition of pauperism or charity‘; (3) they should be made as good as any other schools in the State; (4) a suitable standard of qualification should be erected for teachers...; [and] (5) there should be provided a superintendent of free common schools.” Id. at 97. An address of the arguments emerging from the convention was produced and a thousand copies were printed and distributed across the State of Indiana. Id. at 97-98.
Still, many Indiana residents opposed free common schools.
Even before the adjournment of the [1847-48] Legislature the campaign for free schools began, and the friends of the movement in using every agency to help it on were only equaled by its enemies in their efforts to retard it. Partisan politics, sectarian bias, the antagonisms of social classes, and personal preferences were all arrayed against the establishment of State, tax-supported schools. Id. at 102. The Indiana House passed а bill similar in form and containing similar provisions to those recommended by the common school convention delegates. However, the Senate did not act on the bill. Instead, it submitted the question of free schools to the people of Indiana. Id. at 101. A referendum on the subject was placed on the ballot during the 1848 elections. It was straightforward: “Are you in favor of free schools?” An Act to Authorize the People to Vote for or Against a Tax for the Support of Free Schools, ch. 49, 1848 Ind. Acts 48.
There were several reported incidents of residents opposed to free common schools appearing at polls to intimidate those who would vote in favor. Boone, supra, at 103-04 (citing Indiana School Journal 298 (1876)). Some Hoosiers objected because their existence would make education too cоmmon, decreasing the value of privately funded education. Vigorous opposition came from both the wealthiest and poorest economic classes—both those who had the finest education money could afford and
The 1848-49 General Assembly responded to the referendum with a legislative enactment to “increase and extend the benefits of the common schools.” An Act to Increase and Extend the Benefits of Common Schools, ch. 116, 1849 Ind. Acts 123. Although the new act addressed aspects of school funding, it stopped far short of establishing free schools. See id. at § 31. It was in this environment—a lively and sometimes acrimonious public debate over the establishment of free common schools and a referendum vote of 56% in support of free common schools—that the framers of Indiana‘s second constitution assembled at Indianapolis on October 7, 1850.
2. The Constitutional Convention
Drafted in 1816, Indiana‘s first constitution provided the following provisions concerning education:
Sect. 1st. Knowledge and learning generally diffused, through a community, being essential to the preservation of a free Government, and spreading the opportunities, and advantages of education through the various parts of the Country, being highly conducive to this end, it shall be the duty of the General Assembly to provide, by law, for the imprоvement of such lands as are, or hereafter may be granted, by the [U]nited States to this state, for the use of schools, and to apply any funds which may be raised from such lands, or from any other quarters to the accomplishment of the grand object for which they are or may be intended. But no lands granted for the use of schools or seminaries of learning shall be sold by authority of this state, prior to the year eighteen hundred and twenty; and the monies which may be raised out of the sale of any such lands, or otherwise obtained for the purposes aforesaid, shall be and remain a fund for the exclusive purpose of promoting the interest of Literature, and the sciences, and for the support of seminaries and public schools. The General Assembly shall from, time to time, pass such laws as shall be calculated to encourage intellectual, Scientifical, and agricultural improvement, by allowing rewards and immunities for the promotion and improvement of arts, sciences, commerce, manufactures, and natural history; and to countenance and encourage
the principles of humanity, honesty, industry, and morality. Sect. 2. It shall be the duty of the General Assembly, as soon as circumstances will permit, to provide, by law, for a general system of education, ascending in a regular gradation, from township schools to a state university, wherein tuition shall be gratis, and equally open to all.
Sec. 1. Knowledge and learning generally diffused through a community being essential to the preservation of a free government, it shall be the duty of the General Assembly to encourage, by all suitable means, moral, intellectual, scientific, and agricultural improvement, and to provide by law for a general and uniform system of common schools, wherein tuition, as soon as circumstances will permit, shall be gratis, and equally open to all.
Journal of the Convention of the People of the State of Indiana to Amend the Constitution 407-08 (Indianapolis, A.H. Brown 1851) [hereinafter Journal]. The proposed section was read a first time and passed to a second reading. Id. at 409.
At the time of the second reading, on January 27, 1851, committee member James R.M. Bryant of Warren County noted a discrepancy between the proposed text and the intended proposal of the committee. Realizing that the proposed provision contained the clause “as soon as circumstances will permit,” delegate Bryant declared: “I will say that this clause was inserted inadvertently by the committee. It was not intended to retain anything more of the first section of the present Constitution, than those parts of it that were applicable to our system. We certainly did not intend to insert anything that would have the effect of preventing or postponing the establishment of free schools.” 2 Report of the Debates and Proceedings of the Convention for the Revision of the Constitution of the State of Indiana 1850 (Indianapolis, A.H. Brown 1851) [hereinafter Debates]. See also Journal, supra at 801. The delegates agreed with Bryant‘s motion to remove the clause from the provision, and the revised section was set for a third reading. Debates, supra, at 1858; Journal, supra, at 801.
On January 28, 1851, Bryant reminded the convention delegates of recent developments in Indiana education and corresponding legislative responses.7 Debates, supra, at 1888-91. Quoting from the 1850 census, Bryant argued that more than 73,
Sec. 1. Knowledge and learning generally diffused throughout a community, being essential to the preservation of a free government, it shall be the duty of the General Assembly to encourage, by all suitable means, moral, intellectual, scientific, and agriсultural improvement; and to provide by law for a general and uniform system of Common Schools, wherein tuition shall be without charge, and equally open to all.
Id. at 945. Ultimately the delegates completed their work on February 10, 1851. After ratification by the voters, the Constitution took effect November 1, 1851. Kettleborough, supra, at 425.
C. Application of Section 1 to the School Activity Fee
Despite delegate Bryant‘s comments that the committee did not intend to insert anything that would have the effect of preventing or postponing “the establishment of free schools” (emphasis added), the text of the provision itself was far short of such a declaration. Rather than completely subsidizing education, which would fall within the meaning of a “free school” system, the framers pursued a more modest, and perhaps less controversial, route: a uniform statewide system of public sсhools that would be supported by taxation. Indeed the term “common school” was widely understood to mean “public school.” See State v. O‘Dell, 187 Ind. 84, 118 N.E. 529, 530 (1918) (declaring that the phrase “common schools” is synonymous with “public schools” and includes high schools); Embry v. O‘Bannon, 798 N.E.2d 157, 162 n.4 (Ind.2003) (quoting Noah Webster, An American Dictionary of the English Language 988 (Springfield, Mass., Merriam 1856) [hereinafter Webster 1856]) (noting that a “common school” is one that is “open to the children of all the inhabitants of a town or district“); see also Goldin & Katz, supra, at 11 (observing that the term “common school” was not so much a phrase meant to imply a free school but rather was a term “used in opposition to a private school, either secular or denominational“). In fact, “[t]he original common schools in America were not ‘free,’ since parents had to pay tuition in the form of ‘rate bills.‘” Edwin G. West, The Rise of the State in Education, Policy: A Journal of Public Policy and Ideas 59, 60 (1991). The rаte bill was a fee charged to parents for sending their children to public school.
By the mid-19th century, American fee-paying common schools had become numerically dominant partly because of land grants that enabled them to charge lower tuition fees than private schools. The latter, being largely denominational establishments, were precluded from such publicly-provided advantages. Enjoying this differential cost advantage, the common schools eventually became widespread and numerous .... [T]heir access to tax revenues ultimately enabled them to abolish the fees.
We observe that other than arguments concerning the funding of public schools there is nothing in the Journal or Debates of the second cоnstitutional convention concerning what the framers meant by the use of the term “tuition.”8 However this is not surprising in that the historical record suggests that the term was neither technical nor particularly controversial. For example a period dictionary defines tuition as:
- Guardianship; superintending care over a young person; the particular watch and care of a tutor or guardian over his pupil or ward.
- More especially, instruction; the act or business of teaching the various branches of learning. We place our children under the preceptors of academies for tuition. [This is now the common acceptation of the word.]
- The money paid for instruction. In our colleges, the tuition is from thirty to forty dollars a year.
Noah Webster, An American Dictionary of the English Language 1181 (Springfield, Mass., Merriam 1854) (emphasis in origi-
Arguing that tuition contemplates only fees for instruction, EVSC insists that “[e]xpenses incidental to credited, academic instruction such as heat, light, facility maintenance, non-instructional salaries/stipend do not fall within the commonly understood definition of ‘tuition.‘” Br. of Appellee/Cross-Appellant at 13. EVSC suggests that other than legislatively-mandated curriculum requirements all other educationally related expenses may be assessed against students and their parents.
We agree in principle with EVSC‘s understanding of tuition as the term is used in
It is of course true that what constitutes a public education has dramatically expanded over these several decades. We doubt for example that the framers could have had in their contemplation such cost items as computer labs, athletic departments, and media specialists. But it is equally true that determining the components of a public education is left within the authority of the legislative branch of government.
Consistent with its constitutional mandate, the Indiana General Assembly has enacted a body of law directed at providing a general and uniform system of public schools. It is detailed, comprehensive, and includes among other things provisions for revenue and funding sources, curriculum requirements, and an assortment of special programs and projects. See generally
Where the legislature—or through delegation of its authority the State Board—has identified programs, activities, projects, services or curricula that it either mandates or permits school corporations to undertake, the legislature has made a policy decision regarding exactly what qualifies as a part of a uniform system of public education commanded by
In this case the $20 fee that EVSC imposes on all students is deposited into its general fund and is used to offset the costs of such things as: a coordinator of student services, nurses, media specialists, alternative education, elementary school counselors, a drama program, a music program, speech and debate programs, academic academies, athletic programs, and a police liaison program. See Appellant‘s App. at 21. But either the legislature or the State Board has already determined that all such items are part and parcel of a public school education and by extension qualify for public funding. For example public schоols are required to provide student assistance services and to employ a qualified coordinator, see 511 IAC 4-1.5-5, provide health services and employ at least one registered nurse, see 511 IAC 4-1.5-6, and have a media program and employ a licensed media specialist, see 511 IAC 6.1-5-6. A school corporation is authorized to establish an alternative education program. See
In essence, the very programs, services, and activities for which EVSC charges a fee already are a part of a publicly-funded education in the state of Indiana. However, this conclusion does not prеclude EVSC from offering programs, services or activities that are outside of or expand upon those deemed by the legislature or State Board as part of a public education. The Indiana Constitution does not prohibit EVSC from charging individual students for their participation in such extracurriculars or for their consumption of such services. However the mandatory fee EVSC imposed generally on all students, whether the student avails herself of a service or participates in a program or activity or not, becomes a charge for attending a public school and obtaining a public education. Such a charge contravenes the “Common Schools” mandate as the term is used in
Conclusion
We reverse the judgment of the trial court and remand this cause for further proceedings.
SHEPARD C.J., and DICKSON and BOEHM, JJ., concur.
SULLIVAN, J., dissents with separate opinion.
SULLIVAN, Justice, dissenting.
Justice Ruckеr has produced a scholarly and erudite recounting of the history of
The Court holds that under
And the Court determines that a school may assess a reasonable fеe that is imposed absent specific statutory authority for those things “that are outside of or expand upon those identified by the legis-
The Court goes on to conclude that the fee at issue here violates these principles because the costs it offsets are for items that the legislature has identified as public education cost items. But the trial court made the following findings of fact13 with respect to these items:
13. EVSC imposed the Fee in order to balance its budget and so that EVSC could continue to offer programs that are not state-funded or state required and that enrich students’ lives and to provide additional educational related options that do not hurt the integrity of EVSC‘s core curriculum....
17. The Fee proceeds are not used by EVSC to offset state mandated education, instruction, curriculum or service requirements....
20. The Fee proceeds are used solely by EVSC to contribute to the cost of personnel, or services or programs which are offered by EVSC in addition to those required by the Indiana General Assembly and/or Indiana State Board of Education....
App. at 20-21. Because the trial court found that the things for which the fee was imposed were things that, to use the Court‘s formulation, were “outside of or expand[ed] upon those identified by the legislature” as part of the constitutionally commanded uniform system of public education, I believe that even under the Court‘s construction of