The central question presented by this case is whether our state constitutional guarantee of a “general and uniform system of free public schools” precludes the charging of public school students with incidental course and instructional fees. We answer that it does not. We find no constitutional bar to the collecting by our public schools of modest, reasonable fees for the purpose of enhancing the quality of their educational effort.
Article IX, Section 2(1) of the North Carolina Constitution, as amended in 1970, directs that “ft]he General Assembly shall provide by taxation and otherwise for a general and uniform system of
free public schools . . .
wherein equal opportunities shall be provided for all students.”
The student fee schedule established by Greensboro City Board of Education is not substantially different from similar schedules established by many other local boards of education throughout the state.
1
The charges imposed fall into three categoreis: (1) “instructional fees” are charges imposed school-wide on each pupil at the beginning of each school semester. In
the Greensboro City System, these charges vary from as little as $5.00 per year ($2.50 per semester) for elementary school students to as much as $14.00 per year ($7.00 per semester) for students at the junior high school level. The fee proceeds are placed in an instructional materials fund in each school and are used to purchase supplemental educational materials and supplies. (2) “Course fees” are special fees imposed to defray the costs of fungible supplies and
At the initiation of the present suit, these fees were charged without ascertaining the financial ability of individual students or their parents to pay them. Some exceptions, or waivers of fees, were made on a case by case basis, but there was no uniform waiver policy or procedure. Students who did not pay the required fees were subject to a variety of sanctions. The schools would, for example, withhold diplomas and grade reports, refuse to grant enrollment in the next semester, or deny registration in individual courses.
Plaintiffs contend the collection of any and all such fees is now prohibited by the “free public schools” language of the 1970 constitutional amendment to Article IX, Section 2(1). Prior to 1970 this provision read:
“The General Assembly at its first session under this Constitution, shall provide by taxation and otherwise for a general and uniform system of public schools, wherein tuition shall be free of charge to all the children of the State between the ages of six and twenty-one years. And the children of the white race and the children of the colored race shall be taught in separate Public Schools, but there shall be no discrimination in favor of, or to the prejudice of either race.” (Emphasis supplied.)
Plaintiffs argue that the 1970 deletion of the reference to free “tuition” and the insertion into the section of the words “free public schools” clearly evidences the intent of both the drafters of the 1970 amendment and the voters who approved it to make a substantive change in Article IX. According to plaintiffs, the constitution now requires that the legislature provide a system of free public schools operated completely without any cost or charge to any pupil. Any other interpretation, plaintiffs say, would fly in the face of the plain meaning of clear and unambiguous language. We do not agree with this position.
Few words have so fixed and literal a meaning as to preclude the necessity of examining the circumstances of their context and occasion for use. Where the construction of a constitutional provision is at issue, as here, it is incumbent upon this Court to interpret the organic law in accordance with the intent of its framers and the citizens who adopted it. Inquiry must be had into the history of the questioned provision and its antecedents, the conditions that existed prior to its enactment, and the purposes sought to be accomplished by its promulgation. “The court should place itself as nearly as possible in the position of the men who framed the instrument.”
Perry v. Stancil,
Applying these well established principles of construction to the case, we find first that the use of the word “free”' in our constitution’s references to the public schools of this state is not a novelty of the 1970 constitutional revision. Although Article IX, Section 2 of the 1868 Constitution spoke only of “free”
tuition,
subsequent sections in the same article were replete with references to our system of “free public s.chools.” For example, Article IX, Section 4 of the 1868 Constitution
2
directed that certain state funds “be faithfully appropriated for establishing and perfecting in this State a system of free public schools . . . .” Section 5 provided that the University of North Carolina “shall be held to an inseparable
Second, a review of the general history of the development of our public schools establishes that the state’s provision of “free” schools has never been understood to require the absence of modest, supplementary support given by those able to pay it. Archibald Murphey’s ambitious proposal in 1817 that the state furnish universal education for “the rich and the poor, the dull and the sprightly” called for free instruction in the primary schools for indigent children, but provided that tuition would be charged to children able to pay. Lefler and Newsome, North Carolina: The History of a Southern State, 329-30 (1973); Coon, The Beginnings of Public Education in North Carolina: A Documentary History Vol. 1, 130, 143-44 (1908). The charity feature of Murphey’s plan was abandoned in the School Law of 1839, which established for the first time a statewide local option system of “common” schools, “free” in the sense that tuition and capital costs were paid out of state and local funds. 1839 N.C. Sess. Laws, c. 8. During Reconstruction, the state system was reorganized pursuant to Article IX of the 1868 Constitution and the Public School Law of 1869. 1869 N.C. Sess. Laws, c. 184. Even at that time, however, it was not understood that the constitutional requirement of a “free” public school system contemplated a complete prohibition of the collection of modest supplemental fees. Commenting on the school legislation of 1871-72, State Superintendent of Public Instruction Alexander Mclver wrote:
“It is much easier for those who are able to pay for the education of their children to supplement the aid which the state can give, and have a public school, than to employ a teacher and have a private school. In this manner a public school may be established in every school district in the state, wherein tuition or instruction shall be free of charge to all children between the ages of six and twenty-one years. A public school, however, cannot be maintained free of charge to such parents and guardians as may be able to pay. They must necessarily pay a tax to support the school; and if the law should compel every person, who sends one or more children to a public school, to pay fixed school rates to the teacher, except such persons as the district trustees and school committees might exempt on account of their inability to pay, it would, as I think, be no violation to the letter or spirit of the constitution.” Quoted in Noble, A History of the Public Schools of North Carolina 360 (1930). (Emphasis original.)
In one form or another, North Carolina has maintained its system of “free” public schools ever since 1840, with the exception of the few years immediately after the Civil
Third, an examination into the circumstances of the 1970 constitutional revision reveals not the slightest support for the sug- gestión that the insertion of the term “free public schools” into Article IX, Section 2(1) was intended to stop the then widespread collection of modest course or instructional fees. In the official commentary on the proposed revision to Article IX, the Constitution Study Commission noted merely that “Article IX has been rearranged to improve the order of treatment of the subject dealt with by that article, and its language has been modified to eliminate obsolete provisions and to make the article reflect current practice in the administration and financing of schools.” Report of the North Carolina State Constitution Study Commission 34 (1968). (Emphasis supplied.) Among the “obsolete provisions” eliminated from Section 2 was the reference in the 1868 constitution, as amended in 1875, to the separation of the races. That the previous concept of free tuition was not intended to be changed, however, is clearly implied by the Commission’s further comment: “Proposed Section 2 extends the mandatory school term from six months to a minimum of nine months and eliminates the restrictive age limits on tuition-free public schooling.” Id. (Emphasis supplied.) No other pertinent reference to the “free public schools” phrase in Section 2 is to be found in the official commentary.
In the presence of clear indications to the contrary, this Court cannot assume that it was the intent of the framers of the 1970 constitution to have enacted such a radical change in our organic law as plaintiffs contend. Surely “if such was the intention, it is reasonable to presume it would have been declared in direct terms and not be left as a matter of inference.”
Perry v. Stancil, supra,
We conclude, therefore, that the 1970 reference in Article IX, Section 2(1) to “a general and uniform system of free public schools” requires no substantive change in the state’s long standing policy of providing its citizens with a basic
tuition free
education. So long as public funds are used to provide the physical plant and personnel salaries necessary for the maintenance of a “general and uniform” system of basic public education, our public school system is “free” — that is, without tuition — within the meaning of our state constitution. That the administrative boards of certain school districts require those pupils or their parents who are financially able to do so to furnish supplies and materials for the personal use of such students does not violate the mandate of Article IX, Section 2(1).
We turn now to the matter of the fee waiver policy recently established by the Greensboro City School System. During the pendency of this suit in superior court, defendant Greensboro City Board of Education adopted a system-wide policy relating to the collection of its school fees. That policy provides inter alia that any student suffering economic hardship “shall be referred to the principal of the school, who in turn, shall determine if the . . . fees for the student should be waived.” The principal is to determine whether waiver or the charging of reduced fees is appropriate by referring to a sliding fee schedule based upon state guidelines established for free or reduced price school cafeteria meals. If no waiver is granted, however, failure to pay required fees will result in the denial of school enrollment in the next semester. In his order of 19 March, Judge Kivett found the waiver policy unconstitutional “in that it fails to provide a means for notifying parents and students of the change in the collection policy and a procedure for applying for a waiver.” We agree.
As noted above, Article IX, Section 2(1) of our constitution guarantees a uniform public school system “wherein equal opportunities shall be provided for all students.” Additionally, Article I, Section 15 provides that “[t]he people have a right to the privilege of education, and it is the duty of the State to guard and maintain that right.” The force of these constitutional provisions is recognized in the declared policy of this state “to ensure every child a fair and full opportunity to reach his full potential.” G.S. 115-1.1. It is clear, then, that equal access to participation in our public school system is a fundamental right, guaranteed by our state constitution and protected by considerations of procedural due process. U.S. Constitution, Amendment XIV; North Carolina Constitution, Article I, Section 19;
Givens v. Poe,
Defendants in this case concede that it would be unconstitutional to penalize or deny enrollment to a student who cannot pay required fees because of real economic hardship. Defendants’ brief further concedes that prior to the adoption of the new uniform waiver policy, economic hardship
which was not brought to the attention
of the school system “could have” resulted in
We note, however, that these infirmities can be easily cured. Defendants need only amend their waiver policy to ensure that all students and their parents are given adequate and timely notice of the waiver policy’s substance and the simple procedures by which they may confidentially apply for its benefits. So amended, the policy would then likely comport with the requirements of procedural due process. Until the waiver policy is sufficiently revised, however, the injunction prohibiting defendants from charging or collecting fees should remain in effect. Accordingly, we remand the case to the jurisdiction of the Superior Court of Guilford County with directions to the court to lift the injunction at such time as it may be satisfied that defendants’ fee collection and waiver procedures are constitutionally sound.
For the foregoing reasons, the decision by the trial court that defendant Greensboro City Board of Education cannot constitutionally charge students with instructional, course, or user fees is reversed. The decision by the trial court that defendant Board of Education’s fee waiver policy is unconstitutional is affirmed, and the case is remanded for such further proceedings not inconsistent with this opinion as may be required.
Affirmed in part.
Reversed in part and remanded.
Notes
. In 1977-78, nearly 80 percent of the state’s 145 school units required fees of one sort or another. Eighty-nine of the units imposed flat “instructional fees” upon every student within a given grade level. Dellinger, “The Unresolved Status of Public School Fees,” IX School Law Bulletin, No. 2, p. 2. (April 1978).
The collection of school fees is not uncommon in other states, despite the fact that the constitutions of 49 of the 50 states bear provisions that promise some sort of a “free” public school system.
Id.
Appellate courts of other jurisdictions have reached varying results where faced with state constitutional issues similar to those raised here.
See, e.g., Marshall v. School District Re #3 Morgan City,
. Substantially the same as Article IX, Section 6 of the 1970 constitution.
. Compare Article IX, Section 7 of the 1970 constitution.
. This language is now contained in Article IX, Section 4 of the 1970 constitution.
. What is a “modest, reasonable” fee depends of course upon the facts and circumstances of the individual case. According to the fee schedule adopted by defendant Greensboro City Board of Education, the highest instructional fee charged in the Greensboro City Schools in 1977-78 was the junior high school fee of $7.00 per semester. The highest course fee was a $4.00 per semester charge for a typing course. The highest rental or user fee imposed was a $5.00 per semester charge for the rental of a musical instrument. We view Jjiese fees to be entirely reasonable and their burden de minimis. Other school systems have charged substantially higher fees, especially for such courses as vocational and business education. See, e.g., N.C. Department of Public Instruction, 1978-79 Fee Reporting Forms Results.
. Our opinion today expresses no judgment upon the social merits of the fee policies of our public schools. We hold only that Article IX of the North Carolina Constitution does not preclude the imposition of supplementary school fees such as are involved in the instant case. Whether the levy of such fees is entirely consistent with certain ideals of universal education is a question of legislative policy, not constitutional prohibition.