Hartzell v. Connell

679 P.2d 35, 35 Cal. 3d 899, 201 Cal. Rptr. 601, 1984 Cal. LEXIS 171

• Court: California Supreme Court
• Decided: April 20, 1984
• Docket: L.A. 31701
• Status: Published

Opinions

Opinion

BIRD, C. J.

May a public high school district charge fees for educational programs simply because they have been denominated “extracurricular”?

I.

The Santa Barbara High School District (District) offers a wide variety of extracurricular activities, ranging from cheerleading to madrigal singing, and from archery to football. Many of these activities are of relatively recent origin. For example, in 1956, Santa Barbara High School fielded six athletic teams while today there are thirty-eight.

Prior to the 1980-1981 school year, any student could participate in these activities free of charge. The programs were financed by a combination of District contributions (mostly state aid and local tax revenues), ticket sales, and fundraising activities conducted by the constituent high schools.

In the spring of 1980, the District school board (Board) decided to cut its budget by $1.1 million. This decision reflected a drop in revenues due to the combined effects of inflation, declining enrollment, and the adoption of Proposition 13.¹ Among the items to be reduced was the District’s contribution to the high school extracurricular programs.

The Board considered two plans for adapting the programs to fit its reduced budget. The first plan called for a major cut in interscholastic athletic competition, including the reduction of the high school program from over 30 teams to only 8 and the elimination of interscholastic competition at the ninth grade level. Under this plan, the surviving programs were to remain open to all students free of charge.

The second plan provided for a less extensive cut in athletic competition-elimination of the ninth grade program only. To make up the difference, it proposed to raise money by charging students fees for participation in dramatic productions, musical performances, and athletic competition.

The Board chose the second option. Under the plan finally adopted, students are required to pay $25 for each athletic team in which they wish to participate, and $25 per category for any or all activities in each of the following four categories: (1) dramatic productions (e.g., plays, dance performances, and musicals); (2) vocal music groups (e.g., choir and madrigal groups); (3) instrumental groups (e.g., orchestra, marching band, and related groups such as the drill team and flag twirlers); and (4) cheerleading groups.

Thus, a student who desires to play football in the fall and tennis in the spring, in addition to participating in a dramatic production, must pay $75. A more musically inclined student, who plays an instrument, sings in a group, and performs in a musical, also pays $75.

None of the affected activities yield any credit toward graduation. However, each is connected to a credit course. For example, students enrolled in vocal music courses for credit spend much of their in-class time rehearsing for the noncredit performances. Similarly, students enrolled in the varsity football class spend much of their class time preparing for interscholastic competition. The trial court found that students could derive “some” value from the credit courses without participating in the noncredit performances. All parties are agreed that the activities are “important educational experiences” for the students.

According to the District’s stated policy, students are given the option of participating in the credit course but not the fee-paid performance, or vice versa. Outside the drama program, no student chose either of these options during the first six months of the plan’s operation.² In the drama program, students were permitted to participate in backstage aspects of the production without paying the fee. A number of students enrolled in the course and did not pay the fee, but the record does not reveal how many of these students elected to participate in the backstage activities which were open to them as nonfeepayers.

The teachers of the credit courses also supervise the noncredit performances. District policy prohibits them from considering the performances in calculating grades.³

Each of the affected activities is supervised by school personnel, nearly all of whom are teachers. The teachers are compensated by one of two methods: extra pay (in the form of a “stipend”) or “release time.” The stipends are paid partly from general school revenues (derived mostly from taxes) and partly from fees. Under the “release time” policy, teachers are “released” from one hour of regular teaching duties for each hour spent supervising extracurricular activities.

The activities are sponsored by the schools and their respective student bodies. School personnel handle preparations, including arrangements for facilities and ticket sales.

In an attempt to ensure that the fees would not prevent any students from participating, the District has implemented a fee-waiver program. Upon a showing of financial need, a student may obtain a “scholarship” to participate without paying the fee. The standard of need is similar to that of the free lunch program.⁴

The fee-waiver policy has been supplemented with an outreach program. Teachers and coaches are asked to inform their principals of any students who, though expected to participate in an activity, do not do so. These students are then interviewed by the principal to determine whether the fee prevented them from participating.

The District’s three high schools granted a total of seventy-seven waivers. Four students were denied waivers, but were permitted to delay payment. There was no evidence that any student was prevented from participating because of the fees.

Shortly before the start of the 1980-1981 school year, Barbara Hartzell, a taxpayer with two, children in the public schools, and the Coalition Opposing Student Fees, a grouping of community organizations,⁵ filed this taxpayers’ action against the District, various school officials, and the members of the Board. Plaintiffs sought declaratory and injunctive relief, claiming that defendants’ fee program violates the “free school” and equal protection guarantees of the California Constitution (Cal. Const., arts. IX, § 5, IV, § 16, I, § 7), that it is barred by title 5, section 350, of the California Administrative Code, and that it is preempted by state law.

The trial court rejected all of plaintiffs’ claims, primarily on the ground that none of the activities covered by the fee program are “integral” to credit courses.

II.

The California Constitution requires the Legislature to “provide for a system of common schools by which a free school shall be kept up and supported in each district . . . .” (Cal. Const., art. IX, § 5, italics added.) This provision entitles “the youth of the State ... to be educated at the public expense.” (Ward v. Flood (1874) 48 Cal. 36, 51.)

Plaintiffs assert that the imposition of fees for educational extracurricular activities violates the free school guarantee. They are correct.

The first question raised by plaintiffs’ challenge is whether extracurricular activities fall within the free education guaranteed by section 5. California courts have not yet addressed this issue. The reported decisions from other jurisdictions reveal two distinct approaches.

One approach restricts the free school guarantee to programs that are “essential to the prescribed curriculum.” (Smith v. Crim (1977) 240 Ga. 390, 391 [240 S.E.2d 884]; see also Paulson v. Minidoka County School District No. 331 (1970) 93 Idaho 469, 472 [463 P.2d 935].) Under this view, the right to an education does not extend to activities that are “outside of or in addition to the regular academic courses or curriculum of a school. ” (Paulson, ibid., fn. omitted.) Accordingly, it has been held that students have no right to participate in extracurricular activities. (Smith v. Crim, supra, 240 Ga. at p. 391; see also Granger et al. v. Cascade Co. Sch. Dist. (1972) 159 Mont. 516 [499 P.2d 780],⁶)

The second approach holds that the free school guarantee extends to all activities which constitute an “integral fundamental part of the elementary and secondary education” or which amount to “ ‘necessary elements of any school’s activity.’” (Bond v. Ann Arbor School District (1970) 383 Mich. 693, 702 [178 N.W.2d 484, 41 A.L.R.3d 742]; see also Moran v. School District #7, Yellowstone County (D. Mont. 1972) 350 F.Supp. 1180, 1184.) Courts applying this approach have held that “the right to attend school includes the right to participate in extracurricular activities.” (Moran, ibid.) In particular, courts have struck down extracurricular activities fees as unconstitutional. (See Bond v. Ann Arbor School District, supra, 383 Mich, at p. 698; Pacheco v. Sch. Dist. No. 11 (1973) 183 Colo. 270 [516 P.2d 629],⁷)

To determine which, if either, of these approaches is consistent with California’s free school guarantee, this court must examine the role played by education in the overall constitutional scheme. Because the nature of the free school concept has rarely been addressed by the courts, it will be necessary to explore its underpinnings in some depth.

The free school guarantee was enacted at the Constitutional Convention of 1878-1879. Also adopted was article IX, section 1, which proclaims that “[a] general diffusion of knowledge and intelligence [is] essential to the preservation of the rights and liberties of the people . . . .” (Italics added.) Joseph W. Winans, chairperson for the convention’s Committee on Education, elaborated: “Public education forms the basis of self-government and constitutes the very corner stone of republican institutions.” (Debates and Proceedings, Cal. Const. Convention 1878-1879, p. 1087 [hereafter Proceedings].)⁸ In support of section 1, delegate John T. Wickes argued that “a liberal education . . . breaks down aristocratic caste; for the man who has a liberal education, if he has no money, if he has no wealth, he can stand in the presence of his fellow-men with the stamp of divinity upon his brow, and shape the laws of the people . . . .” (Proceedings, at p. 1088.)

This theme runs like a unifying thread through the writings of our forefathers. In 1786, Thomas Jefferson wrote from France, then a monarchy: “I think by far the most important bill in our whole code is that for the diffusion of knowledge among the people. No other sure foundation can be devised for the preservation of freedom, and happiness. . . . Preach, my dear Sir, a crusade against ignorance; establish and improve the law for educating the common people. Let our countrymen know that the people alone can protect us against these evils [of kings, nobles, and priests].” (Jefferson, Letter to George Wythe, in The Portable Thomas Jefferson (Peterson edit. 1979) pp. 399-400.)

John Swett, California’s most prominent free school advocate at the time section 5 was adopted, warned: “Our destruction, should it come at all, will be ... . [f]rom the inattention of the people to the concerns of their government .... I fear that they may place too implicit confidence in their public servants and fail properly to scrutinize their conduct .... Make them intelligent, and they will be vigilant; give them the means of detecting the wrong, and they will apply the remedy.” (Quoted in Cloud, The Story of California’s Schools (194?) p. 20.) Without education for all, a majority of the people would be—in the words of Horace Mann—“the vassals of as severe a tyranny, in the form of capital, as the lower classes of Europe are bound to in the form of brute force.” (Mann, Twelfth Annual Report, in Educational Ideas in America: A Documentary History (Rippa edit. 1969) p. 199.)

Perhaps the most eloquent expression of the free school idea came not from a political leader or educator, but from the poet, Ralph Waldo Emerson: “We have already taken, at the planting of the Colonies, ... the initial step, which for its importance might have been resisted as the most radical of revolutions, thus deciding at the start the destiny of this country,—this, namely, that the poor man, whom the law does not allow to take an ear of corn when starving, nor a pair of shoes for his freezing feet, is allowed to put his hand into the pocket of the rich, and say, You shall educate me, not as you will, but as I will: not alone in the elements, but, by further provision, in the languages, in sciences, in the useful and in elegant arts.” (Emerson, Education, in Educational Ideas in America: A Documentary History, supra, at p. 176.)

The contribution of education to democracy has a political, an economic, and a social dimension.

As this court has previously noted, education prepares students for active involvement in political affairs. (Serrano v. Priest (1971) 5 Cal.3d 584, 607-608 [96 Cal.Rptr. 601, 487 P.2d 1241, 41 A.L.R.3d 1187] [hereafter, Serrano I].)⁹ Education stimulates an interest in the political process and provides the intellectual and practical tools necessary for political action. Indeed, education may well be “the dominant factor in influencing political participation and awareness.” (San Antonio School District v. Rodriguez (1973) 411 U.S. 1, 114, fn. 72 [36 L.Ed.2d 16, 90, 93 S.Ct. 1278] (dis. opn. of Marshall, J.).) With the rise of the electronic media and the development of sophisticated techniques of political propaganda and mass marketing, education plays an increasingly critical role in fostering “those habits of open-mindedness and critical inquiry which alone make for responsible citizens, who, in turn, make possible an enlightened and effective public opinion” (Wieman v. Updegraff (1952) 344 U.S. 183, 196 [97 L.Ed. 216, 225, 73 S.Ct. 215] (conc. opn. of Frankfurter, J.)). Without high quality education, the populace will lack the knowledge, self-confidence, and critical skills to evaluate independently the pronouncements of pundits and political leaders. Moreover, education provides more than intellectual skills; it also supplies the practical training and experience—from communicative skills to experience in group activities—necessary for full participation in the “uninhibited, robust, and wide-open” debate that is central to our democracy (New York Times Co. v. Sullivan (1964) 376 U.S. 254, 270 [11 L.Ed.2d 686, 701, 84 S.Ct. 710, 95 A.L.R.2d 1412]).

Not only does education provide skills useful in political activity, it also prepares individuals to participate in the institutional structures—such as labor unions and business enterprises—that distribute economic opportunities and exercise economic power. Education holds out a “bright hope” for the “poor and oppressed” to participate fully in the economic life of American society. (Serrano I, supra, 5 Cal.3d at p. 609.) And, it is “an essential step in providing the disadvantaged with the tools necessary to achieve economic self-sufficiency. ” (San Antonio School District v. Rodriguez, supra, 411 U.S. at p. 115, fn. 74 [36 L.Ed.2d at p. 91] (dis. opn. of Marshall, J.).)

Finally, education serves as a “unifying social force” among our varied population, promoting cohesion based upon democratic values. (Serrano I, supra, 5 Cal.3d at p. 608; see also Ambach v. Norwich (1979) 441 U.S. 68, 77 [60 L.Ed.2d 49, 56, 99 S.Ct. 1589].) The public schools bring together members of different racial and cultural groups and, hopefully, help them to live together “ ‘in harmony and mutual respect.’ ” (Washington v. Seattle School Dist. No. 1 (1982) 458 U.S. 457, 473 [73 L.Ed.2d 896, 909, 102 S.Ct. 3187, 3196].)

Viewed in light of these constitutionally recognized purposes, the first of the two tests described above is insufficient to ensure compliance with California’s free school guarantee. That approach determines whether a given program falls within the guarantee not by assessing its actual educational value, but by deferring to a school board’s decision on whether or not to offer it for formal, academic credit.¹⁰ Under this test, a for-credit program would fall within the guarantee, while a noncredit program with identical content—and equal value in fulfilling the constitutionally recognized purposes of education—could be offered for a fee.¹¹

The second approach, on the other hand, does not sever the concept of education from its purposes. It focuses not upon the formalities of credit, but upon the educational character of the activities in question.

It can no longer be denied that extracurricular activities constitute an integral component of public education. Such activities are “ ‘generally recognized as a fundamental ingredient of the educational process.’” (Moran v. School District #7, Yellowstone County, supra, 350 F.Supp. 1180, 1184; Kelley v. Metropolitan County Bd. of Ed. of Nashville, etc. (M.D.Tenn. 1968) 293 F.Supp. 485, 493 [hereafter, Kelley I].)¹² They are “[no] less fitted for the ultimate purpose of our public schools, to wit, the making of good citizens physically, mentally, and morally, than the study of algebra and Latin . . . .” (Alexander v. Phillips (1927) 31 Ariz. 503 [254 P. 1056, 1059].)

In a variety of legal contexts, courts have emphasized the vital importance of student participation in educational extracurricular programs. For example, in Kelley v. Metropolitan Cty. Bd. of Ed. (M.D.Tenn. 1980) 492 F.Supp. 167 (hereafter, Kelley II), the court struck down a school desegregation plan in part because it made no accommodation for students who desired to participate in after-school extracurricular activities, which constitute an “essential component of an education.” (Id., at p. 196.) Similarly, the court in Lee v. Macon County Board of Education (M.D.Ala. 1968) 283 F.Supp. 194 invalidated Alabama’s system of segregation in interscholastic athletics partly because such activities are “integral” to Alabama’s system of public education. (Id., at p. 197.) And, in Kelley I, supra, 293 F.Supp. 485, a school board’s suspension, without formal notice or hearing, of a high school’s athletic programs was held to have violated students’ due process rights in part because such programs constitute “a fundamental ingredient of the educational process.” (Id., at p. 493.)

Further, in McGrath v. Burkhard (1955) 131 Cal.App.2d 367 [280 P.2d 864], the court upheld a school board’s assignment of teachers to supervise extracurricular activities, reasoning that such supervision is “an important part of [a teacher’s] duties” because of the “great importance” of educating students in, among other things, principles of justice, fair play, and good citizenship. (Id., at p. 376.)¹³ Expenditures for such items as band uniforms have been upheld as “necessary” for instructional purposes. (Kay County Excise Board v. Atchison, T. & S.F. Ry. Co. (1939) 185 Okla. 327 [91 P.2d 1087, 1088-1089]; see also Alexander v. Phillips, supra, 254 P. at p. 1059 [approving construction of facility for interscholastic athletics on the ground that athletic competition is just as important to the purposes of public education as is instruction in academic subjects].)

Finally, in cases determining the scope of school-related tort liability and insurance coverage, courts have held that “school-sponsored activities, such as sports, drama, and the like,” though denominated “ ‘extracurricular,’ . . . nevertheless form an integral and vital part of the educational program.” (Feaster v. Old Security Life Ins. Co. (1965) 87 N.J.Super 339 [209 A.2d 354, 357], affd. (1966) 91 N.J.Super. 120 [219 A.2d 340]; see also Boulet by Boulet v. Brunswick Corp. (1983) 126 Mich.App. 240, 241 [336 N.W.2d 904, 905] [“A physical education program, as part of the general curriculum or as an extracurricular activity, is in furtherance of and an integral part of the total public education provided to students” (italics added)].)

In addition to the particular skills taught, group activities encourage active participation in community affairs, promote the development of leadership qualities, and instill a spirit of collective endeavor. These results are directly linked to the constitutional role of education in preserving democracy, as set forth in article IX, section 1, and elaborated in Serrano I, supra, 5 Cal.3d at pages 607-609.

Accordingly, this court holds that all educational activities—curricular or “extracurricular”—offered to students by school districts fall within the free school guarantee of article IX, section 5. Since it is not disputed that the programs involved in this case are “educational” in character, they fall within that guarantee.¹⁴

Defendants argue, however, that the fee-waiver policy for needy students satisfies the requirements of the free school guarantee. They suggest that the right “to be educated at the public expense” (Ward v. Flood, supra, 48 Cal. at p. 51) amounts merely to a right not to be financially prevented from enjoying educational opportunities. This argument contradicts the plain language of the Constitution.

In guaranteeing “free” public schools, article IX, section 5 fixes the precise extent of the financial burden which may be imposed on the right to an education—none. (See Granger et al. v. Cascade Co. Sch. Dist., supra, 159 Mont, at pp. 528-529; Bond v. Ann Arbor School District, supra, 383 Mich, at p. 700.)¹⁵ A school which conditions a student’s participation in educational activities upon the payment of a fee clearly is not a “free school.”

The free school guarantee reflects the people’s judgment that a child’s public education is too important to be left to the budgetary circumstances and decisions of individual families. It makes no distinction between needy and nonneedy families. Individual families, needy or not, may value education more or less depending upon conflicting budget priorities. As John Swett, the “father of the California public school system,” recognized in 1863, “[i]f left to their own unaided efforts, a great majority of the people will fail through want of means to properly educate their children; another class, with means at command, will fail through want of interest. The people then, can be educated only by a system of Free Schools, supported by taxation, and controlled directly by the people.” (Swett, Duties of the State to Public Schools, reprinted in Swett, History of the Public School System of California (1876) p. 110, italics added.)

The free school guarantee lifts budgetary decisions concerning public education out of the individual family setting and requires that such decisions be made by the community as a whole. Once the community has decided that a particular educational program is important enough to be offered by its public schools, a student’s participation in that program cannot be made to depend upon his or her family’s decision whether to pay a fee or buy a toaster.

Nor may a student’s participation be conditioned upon application for a special waiver. The stigma that results from recording some students as needy was recognized early in the struggle for free schools. Thaddeus Stevens once declared, in response to an 1835 proposal that teachers keep a list of “poor scholars”: “Sir, hereditary distinctions of rank are sufficiently odious; but that which is founded on poverty is infinitely more so. Such a law should be entitled ‘an act for branding and marking the poor, so that they may be known from the rich and proud.’” (Stevens, A Plea for Free Schools, in Educational Ideas in America: A Documentary History, supra, at p. 188.) Defendants’ extracurricular programs are not truly “free” even to those students who are eligible for waivers. “[T]o a child or his parents financially unable to pay the additional fees and charges imposed by a free, public school system any waiver procedure is a degrading experience.” (Granger et al. v. Cascade Co. Sch. Dist., supra, 159 Mont, at p. 529 [holding that a waiver plan cannot render a school fee constitutional].)

Finally, defendants warn that, if the fees are invalidated, many school districts may be forced to drop some extracurricular activities. They argue that invalidation would—in the name of the free school guarantee—produce the anomalous result of reducing the number of educational opportunities available to students.

This court recognizes that, due to legal limitations on taxation and spending (see ante, fn. 1), school districts do indeed operate under difficult financial constraints. However, financial hardship is no defense to a violation of the free school guarantee. In Piper v. Big Pine School Dist. (1924) 193 Cal. 664 [226 P. 926], for example, this court applied the free school guarantee to invalidate a school district’s policy of excluding Native American children from the public schools. The school district protested that the infusion of Indian children would overstrain local finances. In rejecting that argument, this court noted: “The economic question is no doubt an important matter to the district, but it may very properly be addressed to the legislative department of the state government.” (Id., at p. 674.)

Perhaps, in the view of some, public education could be more efficiently financed by peddling it on the open market. Under the California Constitution, however, access to public education is a right enjoyed by all—not a commodity for sale. Educational opportunities must be provided to all students without regard to their families’ ability or willingness to pay fees or request special waivers. This fundamental feature of public education is not contingent upon the inevitably fluctuating financial health of local school districts. A solution to those financial difficulties must be found elsewhere— for example, through the political process.

In conclusion, this court holds that the imposition of fees for educational activities offered by public high school districts violates the free school guarantee. The constitutional defect in such fees can neither be corrected by providing waivers to indigent students, nor justified by pleading financial hardship.

III.

Plaintiffs also argue that the fee requirement violates title 5, section 350 of the California Administrative Code (hereafter, title 5, section 350). That section provides: “A pupil enrolled in a school shall not be required to pay any fee, deposit, or other charge not specifically authorized by law.” (Italics added.)

Both the plain language of the regulation and the constructions supplied by the Legislative Counsel and the Department of Education indicate that title 5, section 350 bars school districts from charging fees for educational extracurricular activities.¹⁶ The Legislative Counsel has interpreted title 5, section 350 to bar fees for school-sponsored extracurricular activities such as school athletics and drama activities. (Ops.Cal.Legis. Counsel, No. 18293 (Oct. 13, 1982) School Fees: Extracurricular Activities.) In reaching this conclusion, the Legislative Counsel explained that although a governing board may not be required to provide extracurricular programs, “once the programs are provided, the governing board has no authority to impose a fee, charge or deposit for the programs.” (Id., at p. 4; see also Ops.Cal.Legis. Counsel, No. 17036 (Nov. 16, 1979) School Fees, pp. 1-5 [title 5, section 350 prohibits fees for musical instruments used in extracurricular band, special uniforms used in extracurricular activities, club dues, and extracurricular athletic teams].)

Similarly, the Department of Education has taken the position that title 5, section 350 prohibits membership fees as a condition of participation in “athletic or other activities” sponsored by a school. (Cal. Dept. of Ed., Fees, Deposits, and Charges in the Public Schools of California, Grades K-12 and Adult Schools (1979) pp. 1-2.) The construction given to a regulation by the officials charged with its enforcement is entitled to great weight. (Westfall v. Swoap (1976) 58 Cal.App.3d 109, 114 [129 Cal.Rptr. 750]; Intoximeters, Inc. v. Younger (1975) 53 Cal.App.3d 262, 271 [125 Cal.Rptr. 864].)

Defendants counter with two arguments. First, they contend that title 5, section 350, if interpreted to bar the defendants’ fee program, would exceed its constitutional and statutory bases of authority.

The state Board of Education (State Board) promulgated title 5, section 350 over 40 years ago pursuant to its statutory duty to “adopt rules and regulations not inconsistent with the laws of this state ... for the government of the . . . day and evening secondary schools.” (Former Pol. Code, § 1519, now Ed. Code, § 33031.¹⁷) A note appended to title 5, section 350 cites article IX, section 5 of the Constitution (the “free school” guarantee) as its specific basis of authority.

In determining whether a specific administrative rule falls within the coverage of a delegated power, “the sole function of this court is to decide whether the department reasonably interpreted the legislative mandate.” (Ralphs Grocery Co. v. Reimel (1968) 69 Cal.2d 172, 176 [70 Cal.Rptr. 407, 444 P.2d 79]; see also Morris v. Williams (1967) 67 Cal.2d 733, 737 [63 Cal.Rptr. 689, 433 P.2d 697]; Credit Ins. Cen. Agents Assn. v. Payne (1976) 16 Cal.3d 651, 657 [128 Cal.Rptr. 881, 547 P.2d 993].)

Regulations concerning school fee policies clearly fall well within the scope of the delegated power to adopt regulations “for the government ... of the day and evening secondary schools.” (§ 33031.) Hence, the only question is whether a ban on fees for noncredit activities represents a “reasonable interpretation” of a constitutional or legislative mandate. This court’s holding that the constitutional “free school” guarantee (Cal. Const., art. IX, § 5) prohibits the fees (ante, at p. 913) obviously nullifies any contention that section 350’s prohibition against fees for educational extracurricular activities is not mandated by law. However, even if article IX, section 5 is assumed not to bar the fees, it is clear that title 5, section 350’s ban on fees falls well within the State Board’s range of discretion.

To hold, as defendants urge, that administrative prohibitions are valid only when statutory or constitutional provisions independently prohibit the activities at issue would be to eliminate any role for administrative discretion. Here, the State Board—pursuant to its “general power” to adopt rules for the government of school districts (San Francisco v. Hyatt (1912) 163 Cal. 346, 352 [125 P. 751])—has determined that the broad constitutional and legislative policy¹⁸ in favor of free schools requires a prohibition on fees for extracurricular activities. No statute or constitutional provision suggests that the State Board is compelled to adopt a narrow, credit-centered view of education. Rather, the precise relation of noncredit activities to the policy in favor of free public education has properly been left to the expert judgment of the State Board.

Second, defendants suggest that Education Code section 35160,¹⁹ the “permissive code section,” effectively nullifies title 5, section 350. Prior to the effective date of section 35160, local school districts possessed little, if any, power to act without express legislative or administrative authorization. (See City of Oakland v. Oakland etc. Sch. Dist. (1956) 138 Cal.App.2d 406, 409 [291 P.2d 1001].) Section 35160 provides local districts with more flexibility. Defendants contend that their fee program represents a proper exercise of the discretion granted to school districts by that section.

However, the flexibility provided by section 35160 is not without limits. School districts are authorized only to “initiate and carry on any program, activity, or . . . otherwise act in any manner which is not in conflict with . . . any law . . . .” (Italics added.)

The District’s fee program is in clear conflict with title 5, section 350, (See ante, at pp. 913-914.) Nevertheless, defendants argue that the program is authorized because title 5, section 350 is only an administrative regulation, not a “law” within the meaning of section 35160.

Under defendants’ construction, section 35160 would work a radical change in the relationship between local school districts and the State Board. If valid administrative regulations were not “laws” under section 35160, the section would authorize local school districts to act in derogation of all regulations promulgated by the State Board. Such a construction of section 35160 would effectively repeal not only section 33031, which directs the State Board to adopt regulations for the government of the secondary schools, but also section 35014, which commands district boards to “prescribe and enforce rules not inconsistent with . . . the rules prescribed by the State Board of Education . . . .”

This far-reaching result is not supported either by the legislative history or by subsequent interpretations of section 35160. In 1972, California voters approved a constitutional amendment authorizing the Legislature to permit school districts “to initiate and carry on any programs, activities, or to otherwise act in any manner which is not in conflict with the laws and purposes for which school districts are established.” (Cal. Const., art. IX, § 14.) In the voters’ pamphlet which accompanied the initiative, the Legislative Counsel explained that the provision would enable the Legislature to relieve itself of the necessity of granting specific authorization for every activity carried out by local school districts. (Ballot Pamp., Proposed Amends, to Cal. Const, with arguments to voters, Gen. Elec. (Nov. 7, 1972) p. 14.) Neither the proposed amendment nor the Legislative Counsel’s analysis said anything about repealing existing regulations. (Id., at p. 14 & appen. p. 6.)²⁰

Section 35160, enacted by the Legislature in 1976, embodies language substantially similar to that of the initiative. (See ante, fn. 19.) Like the initiative, it evidences neither an intent to repeal existing regulations nor an intent to deprive the State Board of its power to promulgate binding regulations. On the contrary, it appears that the Legislature intended that validly enacted regulations would remain in effect.

This conclusion accords with the position taken by the Legislative Counsel and the Department of Education. The Legislative Counsel has advised that title 5, section 350 operates to prohibit fees for extracurricular activities notwithstanding section 35160. (Ops.Cal.Legis. Counsel, No. 18293 (Oct. 13, 1982) School Fees: Extracurricular Activities, pp. 3-4; Ops.Cal.Legis. Counsel, No. 17036 (Nov. 16, 1979) School Fees, p. 3; cf. Ops.Cal.Legis. Counsel, No. 17529 (undated) School Fees, p. 3.) Similarly, the Department of Education has expressed its opinion that “[title 5, sjection 350 is a ‘law’ ” and thus is not superseded by section 35160. (Cal. Dept. of Ed., Fees, Deposits, and Charges in the Public Schools of California, Grades K-12 and Adult Schools (1979) p. 6.)

In short, title 5, section 350 represents a valid exercise of the general regulatory authority delegated to the State Board under section 33031. The enactment of the permissive code section (§ 35160) did nothing to diminish this authority. In accordance with the plain language of title 5, section 350 and the constructions given it by the Legislative Counsel and the California Department of Education, this court concludes that defendants’ fee program is prohibited by title 5, section 350.

IV.

In conclusion, the imposition of fees as a precondition for participation in educational programs offered by public high schools on a noncredit basis violates the free school guarantee of the California Constitution and the prohibition against school fees contained in title 5, section 350 of the California Administrative Code.²¹

The judgment is reversed.

Broussard, J., and Reynoso, J., concurred.

1 Proposition 13, commonly known as the Jarvis-Gann initiative, was adopted by the voters in June of 1978. It enacted article XIII A of the California Constitution, which sharply limits the power of local and state governments to increase tax rates or enact new taxes.

2 testimony was taken on March 10, 1981, about six months after the program took effect.

3 The trial court made no finding on the actual effectiveness of this prohibition. Two school officials were asked whether a student’s grade would depend upon the after-school performances. Both responded that it “should” not. One, the principal of San Marcos High School, further elaborated: “It would probably vary with the different instructors and/or coaches.”

4 A student is eligible for the free lunch program if his family income is “not more than twenty-five percent above the income poverty guidelines prescribed by the United States Secretary of Agriculture for such family size.” (Cal. Admin. Code, tit. 5, § 15510, subd. (b).)

5 The Coalition includes the AfroAmerican Community Services, American Civil Liberties Union, Black Action Committee, Casa de la Raza, Community Action Commission, Gray Panthers, National Association for the Advancement of Colored People, Network, and the Social Concerns Committee of the Unitarian Church.

6 Granger, cited by both parties, appears to straddle the two approaches identified here. The trial court had enjoined fees for “required” activities, but not for “optional or extracurricular” activities. (Id., at pp. 526-527.) The Montana Supreme Court altered the standard to encompass all courses and activities “reasonably related to a recognized academic and educational goal of the particular school system.” (Id., at p. 527.) This alteration of the standard appears to have been grounded in the court’s desire to include optional, credit courses within the guarantee. (Ibid.)

As this court interprets the Granger standard, it would prohibit the defendants’ fee program because each of the performance activities involved is “reasonably related” to an optional, credit course. Indeed, preparation for the performances appears to be a major function of the credit courses.

However, nothing in the Granger standard would prevent local districts from evading the free school guarantee by the simple expedient of offering the underlying courses on an “extracurricular” basis. Nor would Granger prevent a district from offering any number of courses, for example advanced algebra or computer science, on a noncredit basis for a fee. Hence, Granger, in spite of its broadly stated holding, does not fundamentally depart from the “prescribed curriculum” standard.

7 In Bond, the trial court had held interscholastic athletic fees to be unconstitutional and had issued a permanent injunction barring their future collection. (383 Mich, at p. 698.) Neither party raised the constitutionality of the fees before the Michigan Supreme Court, which let the injunction stand.

In Pacheco, the trial court had held that a school policy requiring the purchase of an activities card as a precondition for participating in extracurricular activities such as athletic contests, dances, plays, and concerts, violated the free school guarantee as applied to children of indigent parents. (183 Colo, at pp. 272-273.) The Colorado Supreme Court upheld the trial court’s action without ruling on the constitutionality of such fees as applied to children of nonindigent parents. (Id., at pp. 273-275.)

Justice Kelley dissented from the court’s refusal to reach this issue, reasoning that “the entire educational program is required to be provided to all students ‘gratuitously.’ ” (Id., at p. 280.)

8 In quoting the remarks of delegates, this court is not suggesting that such remarks are authoritative on the question of construction. (See Helping Hand Home v. San Diego (1938) 26 Cal.App.2d 452, 457 [79 P.2d 778].) However, they are—at a minimum—useful in evaluating the historical and social context of the provisions. (See generally Tribe, Toward a Syntax of the Unsaid: Construing the Sounds of Congressional and Constitutional Silence (1981-1982) 57 Ind. L.J. 515.)

9 See also Board of Education v. Pico (1982) 457 U.S. 853, 868 [73 L.Ed.2d 435, 447, 102 S.Ct. 2799] (plurality opn.) (“[AJccess to ideas . . . prepares students for active and effective participation in die pluralistic, often contentious society in which they will soon be adult members”).

10 This is not to suggest that a school board’s decision to offer a program for credit is irrelevant as a measure of its educational value. However, as indicated by the numerous authorities cited below (post, at pp. 909-911), the fact that some activities are less suited to a formal, graded program does not mean that they are less essential to the goals of public education.

11 Under this standard, the Constitution would not prevent a school board from evading the constitutional guarantee by the simple expedient of labelling courses “extracurricular” and offering them for no credit. In addition to the performances involved in the present case, metal working courses, computer instruction, language laboratories, or even advanced algebra could be offered for a fee.

12 This conclusion echoes the views of many educational theorists. “A concept which finds general acceptance today is that which identifies the curriculum with the experiences of the pupil. ... ‘If the fundamental task of the school is to prepare children for life, the curriculum must be as wide as life itself. It should be thought of as comprising all the activities and the experiences afforded by the community through the school, whereby the children may be prepared to participate in the life of the community.’” (Johnston & Faunce, Student Activities in Secondary Schools (1952) pp. 6-7; see also Kilzer et al., Allied Activities in the Secondary School (1956) p. ix [“No longer is it possible to consider a large part of the non-instructional activities of the secondary school as merely ¿xíra-curricular. Many of these have become fundamentals of good education and are interwoven with the so-called curricular subjects until it is impossible to draw a clear-cut line of demarcation between them”]; Robbins & Williams, Student Activities in the Innovative School (1969) p. 42 [noncredit student activities are “an aspect of the curriculum”]; Frederick, Student Activities in American Education (1965) p. 3 [“(noncredit) (s)tudent activities, now *a part of the American educative process, constitute ... the third curriculum” (italics omitted)]; Gruber & Beatty, Secondary School Activities (1954) p. ix [“the student activity program is recognized as an essential, vital, and extensive part of the secondary school curriculum . . . .”].)

13 See also Board of Ed., etc. v. Asbury Park Education Ass’n. (1977) 155 N.J.Super. 76 [382 A.2d 392, 393] (The supervision of extracurricular activities is within the scope of a teacher’s duties in part because “ ‘extracurricular activities are an integral part of a child’s education . . . .’ ”); Parrish v. Moss (1951) 200 Mise. 375 [106 N.Y.S.2d 577, 584], affd. 279 App.Div. 608 [107 N.Y.S.2d 580] (Supervision of extracurricular activities is within the scope of a teacher’s duties in part because ‘“[t]he day in which the concept was held that teaching duty was limited to classroom instruction has long since passed. Children are being trained for citizenship and the inspiration and leadership in such training is the teacher. ’ ”)

14 Educational activities are to be distinguished from activities which are purely recreational in character. Examples of the latter might include attending weekend dances or athletic events.

15 In the words of one delegate to the constitutional convention: “A free school is a school at which pupils may attend without charge . . . .” (Proceedings, supra, at p. 1100 [remarks of L. F. Jones], italics added.)

16 Since no noneducational programs are involved in this case (see ante, fn. 14), this court need not decide whether title 5, section 350’s prohibition on fees extends beyond educational activities.

17 Unless otherwise noted, all statutory references are to the Education Code.

18 This policy is reflected not only in the constitutional free school guarantee, but also in article XVI, section 8, of the Constitution, which states that “[f]rom all state revenues there shall first be set apart the monies to be applied by the state for support of the public school system and public institutions of higher education.” (Italics added.) It is also apparent in numerous statutory provisions, among them section 37105 (high school districts prohibited from charging tuition) and section 60070 (school officials prohibited from requiring any pupil to purchase instructional materials).

19 Section 35160 states in full: “On and after January 1, 1976, the governing board of any school district may initiate and carry on any program, activity, or may otherwise act in any manner which is not in conflict with or inconsistent with, or preempted by, any law and which is not in conflict with the purposes for which school districts are established.”

20 After restating the text of the proposed initiative, the Legislative Counsel concluded: “Thus, the Legislature would not have to grant specific authority for a school board to carry out a particular activity, but could authorize school boards to carry out any activity if it is related to school purposes and is not prohibited by law.” (Ballot Pamp., supra, at p. 14.)

21 In view of the disposition of these issues, this court does not reach plaintiffs’ additional arguments that the fee policy violates the equal protection guarantee of the California Constitution and that it is preempted by state law.