Untitled California Attorney General Opinion ( 1987 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
JOHN K. VAN DE KAMP
Attorney General
--------------------------------------------
:
OPINION :
:
of : No. 86-604
:
JOHN K. VAN DE KAMP : December 17, 1987
Attorney General :
:
RONALD M. WEISKOPF :
Deputy Attorney General :
:
----------------------------------------------------------------
THE HONORABLE DON ROGERS, MEMBER OF THE STATE SENATE, has
requested an opinion on the following question:
May a high school district admit students enrolled in
private schools during the regular school year to classes in the
district's core academic area summer school program?
CONCLUSION
A high school district may lawfully admit students
enrolled in private schools during the regular school year to
classes in the district's core academic area summer school program,
provided such admissions do not provide a substantial benefit to
the private schools.
ANALYSIS
Article IX, section 5 of the California Constitution
calls for the Legislature to "provide for a system of common
schools by which a free school shall be kept up and supported in
each district at least six months in every year . . . ." Pursuant
thereto, the Legislature has adopted a comprehensive scheme which
requires school districts to provide and maintain certain courses
of study in grades 1 through 12 (Ed. Code, Pt. 26, chs. 1 & 2, §
51000, et seq., § 51200, et seq.) in regular day schools for 175
days each year. (Id., § 41420.)1
1
All unidentified statutory references herein are to the
Education Code.
1. 86-604
The Legislature has also authorized the governing boards
of elementary school districts and high school districts to
maintain various types of summer school programs. (§§ 51730,
37250-37253, respectively; California Teachers Assn. v. Board of
Education (1980) 109 Cal.App.3d 738, 745.) One of them, authorized
by section 37253, subdivision (a) (Stats. 1984, ch. 97), is a high
school district's program of "instruction in mathematics, science,
or other core academic areas designated by the Superintendent of
Public Instruction." In its regard we are asked whether a high
school district may admit pupils who do not attend the district's
public schools during the regular academic year but attend private
schools instead.2 We conclude that in its discretion a high school
district may permit such students to attend core academic summer
school classes it offers pursuant to Education Code section 37253,
subdivision (a), with some caveats.
School districts have been granted general authority
under section 35160 to initiate and carry on any program or
activity compatible with law 3 and they have been granted broad
permissive authority to offer summer school programs if they wish.
(Cf. Pt. 22, ch. 2, art. 4, § 37250, et seq.; California Teachers
2
Under California's Compulsory Education Law (Ed. Code, tit.
2, div. 4, pt. 27, ch. 2, § 48200 et seq.), every person between 6
and 16, not otherwise exempt, is required to attend public full-
time day school. (§ 48200.) That obligation though may be
satisfied, inter alia, by attending a private full-time day school
that meets certain statutory standards. (§§ 48220, 48222; cf.
Roman Cath. etc. Corp. v. City of Piedmont (1955) 45 Cal.2d 325,
330.) While we have loosely referred to students who attend such
schools as "private school students" it should be noted that their
status in the summer months is not that easily categorized. For
example, our generic categorization would not automatically apply
to a student who attended a private school during the prior
academic year but intends to attend public school in the fall. In
light of our conclusion that a school district may admit "private
school students" to classes in its core academic area summer school
program, we need not dwell on the "status" question.
3
Section 35160 provides:
"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."
(See also Cal. Const., art. IX, § 14; cf. 67 Ops.Cal.Atty.Gen.
(1980) 851, 853; 60 Ops.Cal.Atty.Gen. (1977) 206, 207-208; 60
Ops.Cal.Atty.Gen. (1977) 177, 180.)
2. 86-604
Assn. v. Board of Education, supra, 109 Cal.App.3d at 745.)
Section 37250 provides:
"The governing board of a district maintaining one
or more high schools may maintain a summer school at any
of such high schools during the period between the close
of one academic year and the beginning of the succeeding
academic year in accordance with rules and regulations of
the State Board of Education.
"The term 'academic year' as used in this section
means that portion of the school year during which the
regular day high school is maintained, which period must
include not less than the number of days of teaching
required to entitle the district to apportionments of
state funds." (Emphasis added.)4
The governing board of a high school district that offers summer
school instructional programs may also offer "summer school
programs for instruction in mathematics, science, or other core
academic areas designated by the Superintendent of Public
Instruction." (§ 37253, subd. (a).) 5 The other areas designated
4
"No mandatory requirement of summer school is found in
section [37250] and it must therefore be concluded that the
establishment and maintenance of summer school classes and programs
is only permissive rather than mandatory." California Teachers
Assn. v. Board of Education, supra, 109 Cal.App.3d 738, 745.)
Under section 37252, however, a governing board of a district
maintaining any of the grades 7 through 12--i.e., high school
districts (cf. § 52; Meyer v. Board of Trustees (1961) 195
Cal.App.2d 420, 425)--must offer summer school programs for pupils
enrolled in those grades who have not met the district's adopted
standards of proficiency in basic skills (§ 37252, subd. (a); cf.
§ 51215, et seq.), but that mandate involves a program different
from the core academic area program discussed herein. It also does
not concern private school pupils, but only those attending the
public schools of the district. (Cf. § 51215, et seq.)
5
Section 37253 provides in pertinent part:
"(a) The governing board of any school district
which offers summer school instructional programs
pursuant to this article [i.e., art. 4] may also offer
summer school programs for instruction in mathematics,
science, or other core academic areas designated by the
Superintendent of Public Instruction.
"(b) . . . . . . . . . . . . . . . . . . . . . .
"(c) . . . . . . . . . . . . . . . . . . . . . .
3. 86-604
by the Superintendent include social science/history, English
language/arts, foreign language, fine arts and computer education.
(Letter, State Department of Education (Jan. 29, 1987).)
As its name implies, core academic areas embrace those
subjects which are basic to a student's education: They are an
integral part of the high school curriculum (§ 51220, cf. § 51007)6
and but for the last, a student may not receive a diploma of
graduation from high school without completing them. (§ 51225.3.)7
Since under section 48222 a private school must "offer instruction
in the several branches of study required to be taught in the
public schools of the state," private high schools also have a duty
to offer instruction in the subjects covered by the core academic
area curriculum, and a student who attends a private high school
must take them as a prerequisite to graduation. (§§ 48222,
51225.3; cf. In re Shinn (1961) 195 Cal.App.2d 683, 686-687.)
School districts are reimbursed by the state for core
academic area summer school programs in accordance with a formula,
set forth in section 42239, which essentially limits the
reimbursement to an amount computed upon a factor of "5 percent of
the district's total enrollment for the prior fiscal year . . . ."
(§ 42239, subd. (e)(1).)8 In its discretion a district may enroll
"(d) The Superintendent of Public Instruction shall
adopt rules and regulations necessary to implement this
section, including, but not limited to, the designation
of academic areas other than mathematics and science as
core academic areas."
6
Section 51200 provides that the provisions of chapter 2 of
part 28 (of div. 4 of tit. 2) prescribe the requirements for
courses of study in grades 1 through 12. (Cf. § 51014 "course of
study".) Section 51220 provides that the course of study for
grades 7 through 12 include courses in the following areas:
(a) English, (b) social sciences, (c) foreign language(s),
(d) physical education, (e) science, (f) mathematics, (g) fine
arts, (h) applied arts, (i) vocational-technical education, and (j)
driver education. Section 51007 stresses the importance of
computer education programs in strengthening technical skills.
7
Section 51225.3 provides that commencing with the 1986-87
school year, no pupil may receive a diploma from high school who in
grades 9 through 12 has not completed all of the following: three
courses in English, two courses in mathematics, two courses in
science, three courses in social studies (history, government and
civics), one course in visual or performing arts or foreign
language, and two courses in physical science.
8
Section 42239 provides in part:
4. 86-604
more than 5 percent of its students in core academic summer school
programs as long as the state apportionment to the district does
not exceed that computed amount. ( Id., subd. (e)(1); cf. § 75
["may" is permissive].) In such a case, the district would have to
finance the extra enrollment from other resources. ( Id., subd.
(e)(2); cf., § 41000, et seq.)
May a high school district then, admit private school
students to a summer school core academic program? We believe so.
Section 48030 of the Education Code provides:
"Any graduate of the elementary schools of this
state and any other person who furnishes to the principal
of the high school and to the county or to the city
superintendent of schools having immediate jurisdiction
"For the 1984-85 fiscal year and each fiscal year
thereafter, the county superintendent shall compute an
amount for each school district's summer school
attendance in the following manner:
"(d) Commencing in the 1984-85 fiscal year, summer
school attendance shall be the sum of paragraphs (1) and
(2).
"(1) The hours of attendance in the categories
identified in Section 42238.6 as it reads in the 1983-84
fiscal year.
"(2) Any summer school hours of attendance for
mathematics, science, or other core academic areas
designated by the Superintendent of Public Instruction.
"(e)(1) A school district's maximum entitlement for
reimbursement for pupil attendance in summer school
programs offered pursuant to paragraph (2) of subdivision
(d) shall be an amount equal to 5 percent of the
district's total enrollment for the prior fiscal year
times 120 hours, times the hourly rate for the current
fiscal year determined pursuant to subdivision (c).
"(2) A district may enroll more than 5 percent of
its students, or may enroll students for more than 120
hours per year in summer school programs offered pursuant
to paragraph (2) of subdivision (d), as long as the total
state apportionment to the district for those programs
does not exceed the amount computed pursuant to paragraph
(1). A district shall earn its entitlement at the per
pupil hourly rate pursuant to subdivision (c)."
(Emphases added.)
5. 86-604
over the high school, satisfactory evidence of his
fitness for high school work, may attend high school in
the district in which he resides under such regulations
as the high school board may prescribe."
In 39 Ops.Cal.Atty.Gen. 149 (1962) we were asked whether the
governing board of an elementary school district might allow a
pupil who attends a full time private school to also regularly
attend one or more classes in a public elementary school. We
concluded that in its discretion the governing board of the
district might allow a pupil to attend certain classes, including
summer school classes. ( Id. at 150-151.) We find the same
discretion with high school districts.
In that earlier opinion, we noted that no statute
prohibited an elementary school board from establishing special
classes and adopting rules and regulations designed to permit the
privately schooled child to attend one or more of them. (39
Ops.Cal.Atty.Gen. at 150.) To the contrary, we viewed the broad
provisions of the Education Code that dealt with the authority of
elementary school districts to provide "special day and evening
classes and summer schools" as making it apparent that the
Legislature intended that the school board should have the power to
provide special classes for other than these pupils admitted to and
attending public elementary school. (39 Ops.Cal.Atty.Gen. at
151.)9 We can extrapolate these answers to our situation.
As just mentioned, in 39 Ops.Cal.Atty.Gen. 149, we
answered the cognate question with respect to elementary school
districts in the affirmative, finding such discretion supported by
9
Section 51730 authorizes the governing body of an elementary
school district to establish and maintain "special day and evening
classes and summer schools, consisting of special day or special
evening classes or both."; section 51731 authorizes it to convene
those classes "at such hours and for such lengths of time . . . and
at such period and for such lengths of time during the school year
as [it determines]"; and section 51732 authorizes the board to
admit to "the evening elementary schools and the special day and
evening classes of the elementary schools . . . such minors and
adults as [it judges] may profit from the instruction offered."
Since section 51730 contemplates that an elementary district's
summer schools might consist of special day and evening classes,
the authorization of section 51732 could apply and permit a board
to admit non-public school minors to them. (39 Ops.Cal.Atty.Gen.,
supra, at 151; accord 12 Ops.Cal.Atty.Gen. 214 (1948).) And so we
concluded that in its discretion an elementary school district
governing board may admit private school pupils to one or more
special classes it offers in its public school system, including by
implication, summer school classes. (39 Ops.Cal.Atty.Gen., supra,
at 149.)
6. 86-604
the broad authority found in various statutes which authorize the
maintenance of the various elementary school programs. ( Id. at
151.) The core academic area program at issue here is offered by
a high school district "which offers summer school instructional
programs pursuant to [article 4 of chapter 2 of part 22 (§§ 37250­
37253) of the Ed. Code]." (§ 37253, subd. (a).) It is true that
no specific authority is found therein for a district to admit
private school pupils to those programs, but we believe such
authority may be found in other sections of the Education Code:
The various statutes authorizing the various elementary school
classes, find almost-parallel provision with respect to high school
districts (i.e., § 37250 [authority to maintain summer schools], §§
48040, 52500, et seq. [adult schools and evening high schools]),
and from them we find a similar authority for high school districts
to admit private school pupils to their core academic area summer
school programs.
Regarding the time factor, sections 52501 and 52502
authorize the governing board of a high school district to
establish "classes for adults"; section 52512 provides that
"classes for adults may be maintained in conjunction with day or
evening high schools . . . [or] day or evening adult schools"; and
section 52505 provides that classes for adults may be convened at
such hours and for such length of time during the day or evening
and at such period and for such length of time during the school
year as may be determined by the governing authority."10 Since the
10
Section 52502 provides:
"The governing board of a high school district or
unified school district may establish classes for adults.
If such classes result in average daily attendance in any
school year of 100 or more, such districts shall
establish an adult school for the administration of the
program."
Section 52501 provides:
"The governing board of any school district
maintaining secondary schools shall have power with the
approval of the Department of Education to establish and
maintain classes for adults, except program and classes
in outdoor science education and conservation education
as the term is employed in Section 8760, for the purpose
of providing instruction in civic, vocational, literacy,
health, homemaking, technical and general education."
Section 52512 provides:
"Classes for adults may be maintained in conjunction
with day or evening high schools, day or evening
7. 86-604
"school year" begins on the first day of July and ends on the last
day of June" (§ 37200), it covers the time during which summer
school classes are offered (§ 37250, supra) and thus, as we have
concluded previously, special classes for adults may be maintained
in the summer months . . . ." (12 Ops.Cal.Atty.Gen. (1948) 214,
217.)
With respect to the content of such classes, section
52504 provides that "classes for adults shall conform to any course
of study and graduation requirements otherwise imposed by law or
under the authority of law." (§ 52504, cf. § 52506.) We believe
that such clearly includes core academic area subjects. (See fns.
6, 7, ante & accompanying text.)
Then, the "sixty-four dollar" factor--who may attend such
classes -- is resolved by sections 52500 and 48040. The former
provides that "[a]dult schools and evening high schools shall
consist of classes for adults" and that "[m]inors may be admitted
to such classes pursuant to section 48040." The latter section
reads:
"Adult school and evening high schools shall be open
for the admission of adults and of such minors as in the
judgment of the governing board may be qualified for
admission thereto. (Emphasis added.)
To recapitulate, section 52512 permits adult classes to
be maintained in conjunction with day or evening high schools, and
sections 52500 and 48040 permit adult schools and evening high
schools to be "open for the admission of . . . such minors as in
the judgment of the governing board may be qualified for admission
thereto". We therefore accept the proposition that despite "the
lack of clarity, if not confusion, in the various sections of the
Education Code dealing with the establishment of classes during the
community colleges, day or evening adult schools, or day
or evening regional occupational centers."
Section 52503 provides:
"The governing board of a high school district or
unified school district may establish and maintain one or
more adult schools by resolution of the governing board."
Section 52505 provides:
"Such classes [for adults] may be convened at such
hours and for such length of time during the day or
evening and at such period and for such length of time
during the school year as may be determined by the
governing authority."
8. 86-604
summer vacation period" (12 Ops.Cal.Atty.Gen., supra, 214, 215), a
high school district does have authority to establish and maintain
special classes during the summer vacation period in core academic
area subjects and admit pupils to it other than those who are
regularly enrolled in its public school system, if it deems them
"qualified for admission thereto" pursuant to section 48040. (Cf.
39 Ops.Cal.Atty.Gen., supra, at 151; cf. 12 Ops.Cal.Atty.Gen.,
supra, at 217.) Such students "may attend [the] high school
[classes] . . . under such regulations as the . . . board may
provide." (§ 48030, supra.)11
The size of a summer school program will principally be
determined by the available funds and student interest as indicated
by the number of applications for it. When state funding is
available to accommodate the total number of applicants, including
those "private school" students who wish to attend, there would
appear to be no reason to exclude them. In fact admitting the
private school students in that situation could benefit the
district and its regular students in several ways. To begin with
a district could find itself in the position of needing a minimum
number of students to enroll in summer school in order to make the
program feasible. If an insufficient number of its own students
applied for summer school enrollment, the district's authority to
admit private school students might provide the additional students
necessary to make it so. In such a situation, the primary benefits
would accrue to the district and its students who might not
otherwise be able to supplement their studies in a summer school
program. Then, too, the admission of the private school students
would increase the district's ADA used in calculating the state
funding it will receive for its next year's program (§ 46330) and
the benefit secured thereby will be enjoyed by the district and its
regularly enrolled students after the private school students
return to their private schools in the fall.
11
We also note that the Legislature has specifically spoken to
the issue of private school students attending classes in public
schools in section 37113. The section provides that the governing
boards of districts maintaining a high school "shall, subject to
space being available, admit pupils regularly enrolled in non-
public schools to enroll in vocational and shop classes and in
classes relating to the natural and physical sciences." In 55
Ops.Cal.Atty.Gen. (1972) 393, 395, we concluded that the governing
board of a high school district would not have to provide extra
classes or additional teachers to accommodate the private students
under the section. (55 Ops.Cal.Atty.Gen., supra, 393, 395 [former
§ 5665].) In light of the express legislative directive to enroll
non-public school students in section 37113's limited high school
courses subject to space availability, we perceive the ability of
a district to enroll them in other classes as being within its
considered discretion given the circumstances. (Cf. §§ 35160,
48040.)
9. 86-604
Different considerations arise however when the number of
applicants exceeds the capacity of the summer school program
(determined by the available funds). In that case a system of
priorities must be developed to determine which applicants are to
be admitted to the summer school program. This is because section
42229, subdivision (e)(2) does not require a district to tap its
own funds or other resources to even accommodate all of its own
students who wish to participate in the program. It "may" do so,
but need not. (§ 42239, subd. (e)(2); cf. § 75; Tomlinson v.
Pierce (1968) 178 Cal.App.2d 112, 117.) In that situation the
governing board may determine priority for admission on any
reasonable basis consistent with constitutional and statutory
requirements.
Accordingly, we conclude that a high school district in
its discretion may admit private school pupils to a core academic
summer school class subject to priorities it would establish given
the limits of available state funding for the program. But a word
of caution is necessary.
As mentioned prefatorily, the core academic area program
involves subjects which are basic to a student's education, are
those which a private school is required to teach, and are among
those a student must complete to be graduated from the private high
school. (See fns. 6, 7, ante, & accompanying text.) When, as a
general proposition, private school students are allowed to satisfy
any of those subjects by taking a class in it elsewhere, as in a
public school's core academic program, the private school may be
relieved of its educational responsibility of "providing that class
[and the necessary classroom space, the necessary teachers and the
necessary support materials, including textbooks] for the student."
(Klein, California Education Code section 37113--Permitting
Parochial School Children to Attend Public School Classes Violates
the California Constitution (1984) 24 Santa Clara L.Rev. 947, 962;
cf. Aguilar v. Felton (1985) 473 U.S. 402, 406, 409; Grand Rapids
School District v. Ball (1985) 473 U.S. 373, 375-379, 396-397;
Americans United, etc. v. Porter (W.D. Mich. 1980) 485 F.Supp. 432,
435, 437; Snyder v. Charlotte Pub. Schools (Mich. 1984) 365 N.W. 2d
151, 161; Thomas v. Allegany County Bd. of Ed ., supra, 443 A.2d
662, 665-666; Norwood v. Harrison (1973) 413 U.S. 455, 463-464.
When such is the case, a public benefit accrues to the private
school which may run afoul of the constitutional prohibition.
Article IX, section 8 of the California Constitution
prohibits the appropriation of public monies "for the support of .
. . [a] school not under the exclusive control of the officers of
the public schools." 12 The language of the section "has remained
12
Article IX, section 8 provides:
"No public money shall ever be appropriated for
10. 86-604
unchanged since its proposal in the constitutional convention of
1878-1879 . . . [where] [i]t was approved without significant
debate." ( Board of Trustees v. Cory (1978) 79 Cal.App.3d 661,
665.) The reports of the Convention proceedings indicate "the
delegates were seriously concerned with assuring that public funds
should only be used for support of the public school system they
were creating in article IX of the Constitution." (Ibid.)
In California Teachers Assn. v. Riles (1981) 29 Cal.3d
794, our Supreme Court held that section 60315 of the Education
Code--which authorized the Superintendent of Public Instruction to
lend textbooks used in the public schools to students attending
non-profit, non-public schools--violated section 8 of article IX
(and section 5 of article XVI)13 of the California Constitution.
(29 Cal.3d at 801, 813.) Even though the textbooks were provided
to the students and not to the schools, the latter were inexorably
involved with the state program in selecting, receiving and storing
the books for their students. They directly benefitted from it,
and since the benefit involved the schools' fundamental purpose,
the education of the students, it could not be characterized as
being indirect, remote, or incidental to pass constitutional muster
under earlier cases which established that private schools might
receive indirect or incidental benefits from an expenditure of
public funds without a violation of article IX, section 8 taking
place (e.g., California Educational Facilities Authority v. Priest
(1974) 12 Cal.3d 593, 604; Board of Trustees v. Cory, supra, 79
Cal.App.3d 661, 666-667; Bowker v. Baker (1946) 73 Cal.App.2d 653,
the support of any sectarian . . . school, or any
school not under the exclusive control of the
officers of the public schools."
13
Article XVI, section 5 of the Constitution prohibits the
grant of anything in support of a sectarian school. The
possibility that such religiously-affiliated or sectarian schools
would be involved herein is real. In Riles, the facts showed that
87 percent of the private school participating in the textbook loan
program under former sections 60315 and 60246 (therein declared to
be unconstitutional) were religious schools. (29 Cal.3d at 799.)
The State Department of Education's statistics for 1982-83 showed
that 64 percent of private schools (having ten or more students)
were religiously affiliated. (Enrollment and Staff in California
Private Elementary Schools and High Schools, Cal. Dept. of Ed.
1982-83; see also, Meek v. Pittenger (1975) 421 U.S. 349, 364 [75%
of Pennsylvania's compulsory attendance private schools eligible
for state loan of textbooks were religiously affiliated]; Aguilar
v. Felton, supra, 473 U.S. 402, 406 [92%]; Wolman v. Walter (1977)
433 U.S. 229, 234 [96%]; Klein, California Education Code Section
37113--Permitting Parochial School Children to Attend Public School
Classes Violates the California Constitution, op. cit. supra, 24
Santa Clara L.Rev. at 947 fn. 2.)
11. 86-604
663, 666; compare Committee for Public Education v. Nyquist (1972)
413 U.S. 756, 771-772). (29 Cal.3d at 809-811.)
Funding for core academic summer school programs involves
an appropriation of public funds (§ 42239), and private schools are
not "under the exclusive control of the officers of the public
schools." (Cf., § 48222, 60026.) A constitutional question could
thus arise as to whether private schools would "benefit" when their
students are able to satisfy required courses by taking them in a
core academic area class offered in a high school district's summer
school program, and whether the character of the "benefit" results
in an impermissible "support" to the private school under article
IX, section 8. ( California Teachers Assn. v. Riles, supra, 29
Cal.2d 794, 809.)
We believe the Riles rationale has its limits. We do not
think that the courts would hold that every governmental program or
service which involves a private school's fundamental purpose of
the education of its students would be held unconstitutional as a
direct benefit to the private school. For example, the use of
public libraries and museums by private school students often
provides education to such students by providing research materials
for school assignments. We do not think the courts would hold that
private school students could not use such public facilities in
ways that enhance their education because to do so would constitute
a direct benefit to the private schools they attend. Instead we
believe such public institutions would provide, if at all, only an
insubstantial benefit to the private schools which would be
considered "indirect" or "remote" under the Riles rationale.
Accordingly, we do not believe the constitutional
impermissibility would be reached by private school students
occasionally attending summer classes in the public schools. The
private schools would still have their statutory obligation to
teach the required subject(s) (§ 48222) and any "benefit", if
indeed it could be characterized as such, from the student taking
the class(es) would be insubstantial. The situation would be quite
different from that in Riles because there would be no direct
connection between the state program and the schools to involve the
state in their teaching processes or otherwise foster an inexorable
connection with them. (Compare, Aguilar v. Felton, supra, 473 U.S.
402, 409; Grand Rapids School District v. Ball, supra, 473 U.S.
373,387-391, 395-397; Norwood v. Harrison, supra, 413 U.S. 455,
465-466 with Committee For Public Education v. Regan (1980) 444
U.S. 646, 654-657; Wolman v. Walter, supra, 433 U.S. 229, 236-238
& 251 fn. 18; Meek v. Pittinger, supra, 421 U.S. 349, 359-362.)
Rather, the active participants in the process would be the
students, their parents, and the district, and not the private
schools. Indeed, it is not even clear that a nonpublic school
would necessarily be aware that one of its students was attending
a public summer school.
12. 86-604
A recent high court decision elucidates the issue.
Witters v. Wash. Dept. of Serv. For The Blind (1986) 474 U.S. 481involved a challenge to the expenditure of public funds under a
program to provide special education and/or training to assist
visually handicapped persons overcome vocational handicaps in a
case involving a student pursuing a theological career. Challenge
was made on the ground that the expenditure in the situation
violated the state constitutional prohibitions against the
expenditure of public funds to support religion and using public
funds to support schools that were not free from sectarian
influence. (Compare, Cal. Const. art. XVI, § 5, art. IX, § 8.)
The Washington Supreme Court had held that in providing financial
assistance to a theology student, the program had the primary
effect of advancing religion. The high court disagreed.
It noted that under the program aid went directly to the
student who transmitted it to the educational institution of his
choice. Thus the court said that any "aid" under the program that
might ultimately flow to a religious institution would do so "only
as a result of the genuinely independent and private choices of aid
recipients" ( 474 U.S. at 487), and it thus distinguished the case
from others, such as Grand Rapids School District v. Ball, supra,
and Wolman v. Walter, supra, where no meaningful distinction could
be made between aid to the student and aid to his or her school so
that to the former inevitably (and impermissibly) flowed to the
latter. (474 U.S. at 487, fn. 4.)
The same result would undoubtedly be reached in a
California case involving Education Code section 56300, et seq.
which directs school districts to "actively and systematically seek
out all individuals with exceptional needs, ages 0 through 21
years, including children not enrolled in public school programs,
who reside in the district" for assessment of their needs, the
planning of individualized instructional programs and referral for
instruction or other services. The Legislature has realized that
such aid would be provided the children and not their private
schools.
Similarly in the situation presented herein, it would not
necessarily follow that because a private school student might
benefit from a public school summer program that his or her private
school would also automatically "benefit" thereby. In fact since
the content and instructional methods of the summer school classes
would remain at all times within the control of the school
district, it is possible that the courses could even conflict with
the approach of the private school
.
There are some situations when the constitutional hurdle
might act as a bar. For example where attendance by private school
students at a public summer school affects the educational program
of the private school, or where the number of its students taking
classes in required subjects in summer school is such that the
13. 86-604
school might be relieved of its responsibility to teach them in
significant respects, one could no longer say with certainty that
the school would not "benefit" thereby or that the benefit would be
"indirect" and not involve its educational mission. The same would
be true where a connection between the private school and the
public district is such that the two are inextricably intertwined
in formulating or providing the educational effort for the
students. But such happenings would depend on the circumstances
involved in a particular situation. As a general matter though, we
do not believe that the ordinary summer school scenario would work
such significant impacts of material "benefit" to private schools.
With the caution as to the constitutional prohibition on
state support for non-public schools in mind then, we conclude that
a high school district may admit private school students to classes
in its core academic area summer school program along priorities it
develops to meet constraints of available funding.
* * * * *
14. 86-604