Crim v. McWhorter

Jordan, Justice.

This appeal presents the question of whether a public school system within the State of Georgia can establish a policy requiring the payment of a tuition fee as a precondition for attendance during a summer school session.

Appellants represent the Atlanta Public School System which, as they traditionally have done in the past, operated a limited summer quarter session of high school during the summer of 1978. Appellants received no direct state funding for the operation of its summer school program, but rather relied upon general operating revenue supplemented with funds raised by charging a minimum tuition fee to summer quarter students to defray the expenses of operating a summer school session.

Prior to the initiation of this action, appellants’ tuition policy for the summer session of 1977 imposed a charge often ($10.00) dollars for each five hours of courses taken by a resident student unless the student obtained a waiver of tuition. Appellants’ waiver policy provided that all students receiving Medicaid benefits would automatically receive a waiver of the tuition fee, and that any other students unable to pay the tuition charges could apply to the principal of their school for a waiver, and if the principal found a sufficient case of hardship to have been presented, a waiver of tuition would be granted.

Appellees, two high school students acting through their mothers and on behalf of all others similarly situated, filed this action seeking to declare the tuition policy of the Atlanta Board of Education and the Atlanta Public School System for their 1977 summer school session in violation of constitutional and statutory mandates and seeking to enjoin appellants from charging any tuition fees for attendance at their summer school session. After a stipulation of facts, the trial court entered an interlocutory injunction enjoining appellants from requiring any student in the Atlanta Public School System who was financially unable to pay the summer session tuition to pay that tuition as a condition for their attendance at summer school.

Following discovery, both appellees and appellants filed motions for summary judgment. On April 4, 1978, the trial court denied appellants’ motion and granted appellees’ motion for summary judgment in all respects holding that appellants’ tuition policy for the summer quarter of 1977 violated Code§ 32-937; Art. Ill, Sec. I, Par. I of the Constitution of Georgia (Code Ann. § 2-4901); and the equal protection clauses of the Constitutions of Georgia (Code Ann. § 2-203) and the United States. The trial court also issued a permanent injunction requiring appellants to refrain from charging any tuition to any student wishing to attend all subsequent summer sessions operated by appellants.

Representatives of the Atlanta Public School System appeal, and we reverse the trial court’s decision.

1. Appellees’ motion for summary judgment before the trial court argued that appellants’ 1977 summer quarter tuition policy violated Art. VIII, Sec. I, Par. I of the Georgia Constitution (Code Ann. § 2-4901) and Code § 32-937 because summer quarter was part of appellants’ "common school system,” admission to which must be free. Code Ann. § 2-4901 states: "The provision of an adequate education for the citizens shall be a primary obligation of the State of Georgia, the expense of which shall be provided for by taxation.” In addition to this constitutional basis for a free system of common schools in Georgia, Code § 32-937 mandates that "admission to all common schools shall be gratuitous to all children between the ages of six and 19 years residing in the districts in which the schools are located.”

For a proper construction of the educational opportunities constitutionally guaranteed the citizens of this state, we feel it is necessary to consider the provisions of Code § 32-658a along with Code §§ 2-4901 and 32-937. Code § 32-658a provides that "public and secondary schools of this state receiving state aid . . . shall be operated so as to provide that each eligible student has access to no less than 180 school days of education.”

Appellants’ summer school session receives no direct state aid and is operated in addition to the 180 school day requirement mandated by Code § 32-658a. It is clear that under our present statutes, appellants could not be compelled to operate a summer school session since it is neither required nor supported by direct state funding. Callihan v. Reid, 149 Ga. 704 (101 SE 914) (1919).

Callihan, supra, decided under the Constitution of 1877 which guaranteed only an elementary education, involved a student who wished to continue in the common schools after completing the elementary grades. This court, in interpreting the statutory provision that admission to all common schools be gratuitous, held that gratuitous admission was limited to the prescribed minimum educational requirements. "Neither in the statutes nor the provisions of the Constitution ... do we find anything rendering it mandatory upon the school authorities of a school district where the money arising from taxes levied for the purpose raises funds only sufficient to conduct and operate the common school, to have and maintain, . . . grades appropriate to a high school.” Id., at 707.

Appellees have argued that once a summer session has been put into operation, it becomes part of the common school system of a particular district and must be offered to all students without charge, relying on Claxton v. Stanford, 160 Ga. 752 (128 SE 887) (1925) and Brinson v. Jackson, 168 Ga. 353 (148 SE 96) (1929). In Claxton, the school authorities attempted to charge a matriculation fee in order to finance the operation of their school system for a nine-month term when state law required that schools remain open for only six months each academic year and state public school funds and taxes collected from the school district only financed a six-month term. In rejecting this plan this court held that "a charge for matriculation cannot be imposed as a condition precedent to admission to a public school forming a part of such general system...” Id., at 753 (2). (Emphasis supplied.) In this present case the payment of a summer session fee is not a condition precedent for attendance during the statutorily provided nine-month term.

Brinson v. Jackson, supra, involved the same school district as in Claxton and the identical matriculation plan. Brinson held that an Act of the legislature passed subsequent to the Claxton decision and relating to the powers of trustees of school districts did not empower them to impose a matriculation fee.

Other jurisdictions which have reviewed this issue in a similar constitutional context have also upheld the payment of summer school tuition fees.

In Granger v. Cascade County School District, 159 Mont. 516 (499 P2d 780) (1972), the Supreme Court of Montana held that summer school tuition fees did not violate a constitutional requirement that the legislature establish and maintain a "general, uniform and thorough system of public, free, common schools.” Id., at 524. The Montana court explained that summer school was "both historically and logically not included in the free public school system required by our constitution” and that "(a)ccordingly, reasonable fees and charges may be imposed therefor.” Id., at 528.

Likewise, we do not find that summer school sessions are historically or logically included in the free system of common schools mandated by the Constitution and statutes of this state.

2. Appellees’ motion for summary judgment also contended that, even if appellants’ summer session is found not to be a part of the common school system mandated by Code § 32-937, appellants’ summer session tuition policy violates Art. VIII, Sec. I, Par. I of the Georgia Constitution (Code Ann. § 2-4901), because summer session becomes an integral part of appellants’ plan to provide an adequate education for the citizens of Atlanta, and Code Ann. § 2-4901 requires that an adequate education be provided for the citizens of Georgia at no expense. Our construction of the "Adequate Program for Education in Georgia Act,” Code Chapter 32-6A does not support this conclusion.

Code § 32-644a provides: "The board of education on any local unit of administration may, in its discretion, provide for continued operation of one or more public schools of the local unit for a period of time beyond the normal school year . . . for the purpose of providing summer school education programs. . .” (Emphasis supplied.) If the legislature had intended that summer school be considered part of the "adequate education” guaranteed by the Constitution, the operation of summer quarter sessions would have been mandatory rather than discretionary.

Code § 32-645a (b) (1) provides that the State Board of Education shall certify that a local unit of administration has a year-round operation for one or more grade levels if the operation of the program is for "220 official attendance days or more constituting four quarters.” Code § 32-645a (b) (2) provides that "for a student’s first 165 or more days constituting three quarters . . . attendance shall be on a tuition free basis.” Implicit within the rationale of these provisions is the legislative recognition that a student may be charged tuition for additional educational programs operated beyond the first three quarters of tuition-free school.

3. The final grounds of appellees’ motion for summary judgment are that appellants’ tuition policy violated the equal protection clauses of both the Constitutions of Georgia and the United States.

Although the right to a free education is guaranteed by the Constitution of the State of Georgia, we have held in Division 1 of this opinion that this right is presently limited to 180 days of tuition-free education. Appellees do not have a constitutional right to attend school for the summer quarter. Therefore, the denial of attendance at summer school to students who do not pay a tuition or students who reside in school districts which choose not to conduct summer school sessions is not a denial of equal protection under the Georgia Constitution.

Appellees also claim that summer school tuition fees discriminate among classes of persons on the basis of wealth and, therefore, violate the equal protection clause of the United Spates Constitution. The equal protection ause of the Phurteenth Amendment to the United States onstitution does not absolutely deny a state the power to classify groups of persons differently. Equal protection does require that such a classification be rationally related to the object of the legislation so that all persons similarly situated will be treated alike. Dandridge v. Williams, 397 U. S. 471 (1970). This "rational relationship” test gives way to the more stringent test of strict judicial scrutiny only where a "fundamental right” or "suspect classification” is involved. Mitchell v. Louisiana High School Athletic Assn., 430 F2d 1155 (1970).

In San Antonio Independent School District v. Rodriguez, 411 U. S. 1 (1973), the pre-eminent case involving the interaction between equal protection and public education, the United States Supreme Court held that before a state’s laws and the justifications for the classifications they create are subjected to strict judicial scrutiny certain threshold questions must be analyzed. One of these threshold questions was "whether the relative — rather than absolute — nature of the asserted deprivation is of significant consequence.” Id., at 19.

In analyzing this question in Rodriguez, the court noted, that in every case involving discrimination based on wealth, had the state provided some "adequate substitute” for the resulting deprivation, there would have been no denial of equal protection. Id., at 20, 21, citing Griffin v. Illinois, 351 U. S. 12 (1956); Britt v. North Carolina, 404 U. S. 226 (1971); Gardner v. California, 393 U. S. 367 (1969); Draper v. Washington, 372 U. S. 487 (1963); Eskridge v. Washington Prison Board, 357 U. S. 214 (1958).

As stipulated by the parties to this action, appellants’ summer session tuition policy contains a waiver policy which waives the tuition fee for students who desire to attend summer school, but who are financially unable to pay tuition. This waiver policy provides the "adequate substitute” noted in Rodriguez, and, as a result, appellees do not face an absolute denial of an opportunity to attend appellants’ summer school session.

Therefore, the strict scrutiny test is not applicable, and appellants need show only that a rational relationship existed between the classifications created by appellants’ tuition policy and the object of this legislation. Under this test appellants’ tuition policy certainly does not violate equal protection. The requisite rational relationship is present in this case because the tuition fee is used to partially defer the cost of an additional educational opportunity which is not supported by direct state funding.

Argued September 18, 1978 Decided January 5, 1979 Rehearing denied January 23, 1979. Smith, Cohén, Ringel, Kohler & Martin, Warren C. Fortson, Bruce H. Beerman, for appellants. Deborah S. Ebel, Robert Connelly, for appellees. Sutherland, Asbill & Brennan, James P. Groton, Thomas A. Cox, amicus curiae.

The trial court erred in granting appellees’ motion for summary judgment. Because we have rejected each ground of appellees’ motion for summary judgment which embraced each allegation in their complaint, this case is remanded with the direction that summary judgment be entered in favor of appellants.

Judgment reversed with direction.

All the Justices concur, except Nichols, C. J., and Hall, J., who dissent.