96-490

No. 96-490

IN THE SUPREME COURT OF THE STATE OF MONTANA

1997

TAMI KAPTEIN, a minor child, by and through

her parents KATHY KAPTEIN and MARVIN KAPTEIN,

Plaintiffs and Appellants,

v.

CONRAD SCHOOL DISTRICT, STATE OF MONTANA,

Defendant and Respondent.

APPEAL FROM: District Court of the Ninth Judicial District,

In and for the County of Pondera,

The Honorable Marc Buyske, Judge presiding.

COUNSEL OF RECORD:

For Appellants:

Cameron Ferguson; Hartelius, Ferguson, Baker & Kazda

Great Falls, Montana

For Respondent:

Ronald F. Waterman and Catherine M. Swift; Gough,

Shanahan, Johnson & Waterman, Helena, Montana

For Amicus:

Janice Frankino Doggett, Attorney at Law, Helena,

Montana (for Montana School Boards Association)

Elizabeth A. Kaleva, Attorney at Law, Helena,

Montana (for School Administrators of Montana)

Dennis Moreen, Attorney at Law, Helena, Montana

(for Montana Education Association)

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Geralyn Driscoll, Attorney at Law, Helena, Montana

(for Office of Public Instruction)

Jock O. Anderson, Attorney at Law, Helena, Montana

(for Montana High School Association)

Submitted on Briefs: January 16, 1997

Decided: February 6, 1977

Filed:

__________________________________________

Clerk

Justice W. William Leaphart delivered the Opinion of the Court.

 Kathy and Marvin Kaptein (Kapteins) are residents and

taxpayers in Conrad, Montana. In October of 1995, the Kapteins

filed suit in the Ninth Judicial District Court, Pondera County,

asking the court to enter a judgment requiring that the Conrad

School District Board of Trustees allow their 7th grade daughter,

Tami, to participate in the public school sports programs. Tami

was, and is, a student at the Conrad Christian School. The private

school in which Tami is enrolled offers ski days and arranges for

basketball practices and an intramural game. The Conrad area

offers some additional athletic programs which Tami participates

in, for example, soccer and softball. In addition, Tami seeks to

play on the public school athletic teams for social purposes

related to friendship and team camaraderie. Tami participated in

the public school girls' sports program during the 1994-95 school

year. This participation was without the approval of the

Superintendent or the Board of Trustees. Her participation in the

public school program was terminated upon discovery by the Board of

Trustees. The Board of Trustees refused to allow Tami to further

participate in the public school sports programs since the Boardþs

policy limited participation to students enrolled full time in

public school. The Kapteins contend that the schoolþs policy is

unconstitutional under the provisions of Article X, Section 1 of

the Montana Constitution. On November 20, 1995 the District Court

issued a preliminary injunction which allowed Tami to play 7th

grade volleyball. Subsequently, both parties moved for summary

judgment. The District Court upheld the constitutionality of the

Boardþs policy, granted summary judgment for the Conrad School

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District and dissolved the preliminary injunction. The Kapteins

then sought an injunction pending appeal under Rule 40, Montana

Rules of Appellate Procedure, which this Court denied. We affirm

the District Courtþs grant of summary judgment.

 DISCUSSION 

 The Kapteins based their constitutional argument on Article X,

Section 1, of the Montana Constitution, which states:

 It is the goal of the people to establish a system of

 education which will develop the full educational

 potential of each person. Equality of educational

 opportunity is guaranteed to each person of the state. 

Citing our decision in State, ex rel., Bartmess v. Board of

Trustees (1986), 223 Mont. 269, 726 P.2d 801, Kapteins contend that

Tami has a constitutionally protected right to participate in

public school extracurricular activities and that this Court should

apply a middle-tier analysis in balancing Tamiþs right to

participate against the governmental interests to be served by

infringing that right. The School District takes the position that

middle-tier analysis is not appropriate in this case and, even if

middle-tier analysis were applied, the schoolþs educational

interests in permitting only students enrolled in the school

district to participate in school-sponsored extracurricular

activities outweighs any right that Tami may have to participate. 

 Our review of cases from other jurisdictions reveals no

decisions, federal or state, which recognize a constitutional right

of a nonenrolled student to participate in a public school sports

program. 

 The United States Constitution, unlike the Montana

Constitution, does not explicitly or implicitly guarantee a right

to education. San Antonio Indep. School Dist. v. Rodriguez (1973),

411 U.S. 1, 35, 93 S.Ct. 1278, 36 L.Ed.2d 16. In keeping with the

Rodriguez precedent, the federal courts have applied a rational

relationship test to claims that private school students have been

unconstitutionally excluded from participating in public school

extracurricular activities. In Denis J. OþConnell High School v.

Virginia High School League (1978), 581 F.2d 81, a parochial school

sought admission to the Virginia High School League which regulates

and governs all athletic, literary and debating contests between

the public high schools in the state of Virginia. The private

school contended that, in restricting membership to public high

schools, the League, and thus the state, was violating equal

protection. The Fourth Circuit held that, since there was no

fundamental right or suspect classification involved, the

classification would be subject to the rational relationship test. 

Denis J. O'Connell High School, 581 F.2d at 84. The court held

that the classification was rationally related to the League's

policy of limiting student transfers to defined geographic areas

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and of discouraging the recruiting of students for purposes of

athletic competition. Since private schools in Virginia suffer no

geographic limitation with respect to the areas from which they may

draw students, the court held that admission of private schools

into the League would undermine that policy. Denis J. O'Connell

High School, 581 F.2d at 84-87 Accord Valencia v. Blue Hen

Conference (D. Del. 1979), 476 F.Supp. 809, 826 (holding that the

public high school association's exclusion of private schools was

supported by legitimate interests in preventing athletic recruiting

and maintaining a competitive balance among schools within the

association). 

 We note the following three decisions from foreign

jurisdictions which address the question of whether a nonenrolled

student has a right under state law to participate in public school

courses or extracurricular activities.

 In Swanson v. Guthrie Independent School Dist. No. I-1, et al.

(D. Okla. 1996), 942 F.Supp. 511, parents who were home schooling

their daughter sought permission from the board of education to

have their daughter attend the public school on a part-time basis. 

The board denied the request and adopted a policy that required all

students enrolling in the Guthrie Public Schools to do so on a

full-time basis. Swanson, 942 F.Supp. at 512. The parents

challenged the policy on various grounds including a contention

that the policy violated the childþs constitutional right to attend

public schools and her right to a free public education under the

Oklahoma Constitution which provides constitutional guarantees of

a "system of public schools . . . open to all of the children of

the state" as well as a "system of free public schools wherein all

the children of the state may be educated." Swanson, 942 F.Supp.

at 514. The court acknowledged that under Oklahoma law, home

schooling is considered an alternative education option. The court

concluded, however, that the parents were seeking to "judicially

abrogate the equivalency requirement for home schooling and replace

it with an absolute right to use public schools to supplement the

home school education. [Citation omitted.] This the Court will

not do." Swanson, 942 F.Supp. at 515. In rejecting the parents'

contention that the Oklahoma Constitution gave them the right to

choose public school courses on a piecemeal basis, the court said:

 Plaintiffs have failed to provide any evidence that

 defendants have deprived Annie of her right to a free

 public education. Annie has always been and continues to

 be entitled to a free public education. Nor have

 Plaintiffs provided any support for their contention that

 they may "pick and choose" what courses Annie will take

 in the public schools. Oklahoma law is clear that the

 local boards of education have the power to "[m]aintain

 and operate a complete public school system of such

 character as the board of education shall deem best

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 suited to the needs of the school district." 

 Okla.Stat.Ann.tit. 70 5- 117(A)(3) (West Supp.

 1995-96). The Oklahoma Legislature has also vested the

 State Board of Education with the authority to determine

 curricular standards for public schools. See

 Okla.Stat.Ann.tit. 70 11-103.6 (West Supp. 1995-96) 

 ("By February 1, 1991, the State Board of Education shall

 adopt curricular standards for instruction of students in

 the public schools of this state that are to be

 implemented not later than the 1993-94 school year."). 

 In light of existing Oklahoma law, the Court finds

 Plaintiffs' reliance on School Board, District No. 18 of

 Garvin County v. Thompson, 24 Okla. 1, 103 P. 578 (1909)

 is misplaced. [Footnote omitted.] The Court also

 declines to adopt Plaintiffs' strained interpretation of

 Oklahoma law to create a right to a free part-time public

 education.

Swanson, 942 F.Supp. at 514.

 In Thomas v. Allegany County Board of Education

(Md.Ct.Spec.App. 1982), 443 A.2d 622, 626, the appellate court

applied heightened scrutiny to the claims of private school

students who requested to participate in an all-county music

program offered to full-time students enrolled in the public

schools. The court applied the "compelling state interest" test to

determine whether the boardþs rule limiting participation to school

district enrollees violated the equal protection clauses of the

state or federal constitution. Thomas, 443 A.2d at 626-27. The

court utilized the heightened scrutiny test because the private

school students claimed that their exclusion infringed upon their

freedom of religion under the free exercise clause of the First

Amendment. The court concluded that the school district had

satisfied the compelling state interest test in view of the "de

minimi burden on the appellantþs freedom of religion and the

legitimate interest in avoiding administrative inefficiency." 

Thomas, 443 A.2d at 626. 

 Although the administrative impact of a decision

 mandating the participation of the private students into

 this public school program appears to us to be trivial,

 the precedent as it affects the broader spectrum of

 school administration is of a far more deleterious

 nature. With the opening of such "Pandoraþs box", there

 would be no device to preclude, for example, a private

 school having difficulty securing a qualified chemistry

 teacher from unilaterally deciding to transport the

 entire student body to a nearby public school for their

 chemistry education. The potential for administrative

 disruption is obvious. Thus, while we may agree that

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 little if any administrative hardship would inure to the

 Board in permitting these three students to participate

 in the All-County Band, it is not for this Court to hold

 that the Board must admit them, in view of the broader

 implications involved. We think the school

 administrators and not courts, should decide how much

 administrative disruption is too much.

Thomas, 443 A.2d at 625-26.

 The plaintiffs in Thomas also argued that, since the Maryland

Constitution guaranteed "a thorough and efficient System of Free

Public Schools . . ." that they, as school-age children, were

entitled not merely to be admitted to the public schools, but to

any part or portion of the public school system which they choose.

Thomas, 443 A.2d at 627. The court rejected this contention in

view of the unreasonable burden such construction would place on

the efficient administration of the public school system. The

court recognized that if the legislature or school board wished to

permit participation by parochial students, the court saw no

impediment but did not think it was for any court to mandate the

admission of those students. Thomas, 443 A.2d at 627.

 Kapteins cite to the Michigan decision in Snyder v. Charlotte

Public School District, Eaton City (Mich. 1984), 365 N.W.2d 151. 

In Snyder, the Michigan Supreme Court held that a private school

student was entitled to enroll in a public grade school band

course. In Snyder, the Michigan Supreme Court specifically

declined to rule on the basis of constitutional arguments, relying

instead upon a 60-year history of such sharing between public and

private schools in Michigan and an interpretation of Michigan

statutory law which permitted the "sharing" of school programs.

Snyder, 365 N.W.2d at 157. In recognition of the potential problem

acknowledged by the Maryland court in Thomas, i.e. private school

students picking and choosing among various core academic courses,

the Michigan court limited its decision to certain nonessential

elective courses like band, art and shop. Snyder, 365 N.W.2d at

161-62.

 Kapteins suggest that we should decide this case solely upon

the basis of Tamiþs right to participate in extracurricular

activities; that we should not consider any "worse case scenarios,"

and that we can, as the Michigan court did, narrowly craft a

decision recognizing a right to participate only in certain

nonacademic activities such as sports, shop, band and art. Given

that Kapteins are asserting a constitutional right to the "full

educational potential of each person" under Article X, Section 1,

of the Montana Constitution, Tami's appeal cannot be decided in

such a vacuum. If Tamiþs right to participate in extracurricular

activities outweighs the School Districtþs interest in limiting

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participation to enrolled students, then Tami will not be the only

nonenrolled person entitled to partake of the public school

programs. Home-schoolers, dropouts and adults would have a right

equal to that of private school students such as Tami Kaptein to

participate in school programs on a part-time or piecemeal basis. 

Furthermore, as recognized by the Maryland court in the Thomas

decision, there would be nothing preventing a private school from

unilaterally deciding to transport its entire student body to the

public school for purposes of taking an academic course such as

computer science. Thomas, 443 A.2d at 626.

 Having reviewed some of the relevant decisions from elsewhere

around the country, we turn to a discussion of two Montana

decisions which address a studentþs right to participate in

extracurricular activities: Moran v. School District #7

Yellowstone County (D. Mont. 1972), 350 F.Supp. 1180 and State, ex

rel., Bartmess v. Board of Trustees (1986), 223 Mont. 269, 726 P.2d

801. 

 In 1972, the United States District Court for the District of

Montana was presented with an issue as to whether a public school

could, pursuant to school policy, prohibit a student from

participating in extracurricular activities because the student was

married. Moran, 350 F.Supp. at 1181-82. Moran argued that, in

violation of the equal protection clause, the policy discriminated

against married persons without any reasonable basis. The school

district argued that the policy was justified as it helped

discourage teenage marriages and helped those students who did

marry to achieve academic success. Moran, 350 F.Supp. at 1183. 

The court rejected these rationales, stating:

 There is no legislative authority for school board action

 in the area of matrimony. What married persons do with

 their time outside of school and how they discharge their

 matrimonial responsibilities is outside the statutory

 authority of the school board.

Moran, 350 F.Supp. at 1186. Judge Murray then went on to point out

that if encouraging academic success of married students is the

stated goal, that goal could be achieved in a nondiscriminatory

fashion by tying participation in extracurricular activities to

academic performance for all students, not just married students. 

 Further, a simple requirement that those unable to keep

 up academic work may not participate in extracurricular

 activities would have the same effect as limiting married

 students to academic work if the extra activities are the

 cause of the academic failure but this of course would be

 in no way discriminatory. This simple and easy method of

 ensuring that participation in extracurricular activities

 by any student is not done at the expense of his academic

 work dramatizes the prejudicial and invidious effects of

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 the Boardþs rule.

Moran, 350 F.Supp. at 1186. 

 For the above reasons, the federal district court issued a

preliminary injunction restraining the board from enforcing its

rule excluding married students. Moran, 350 F.Supp. at 1187.

 Fourteen years later, the Helena School District adopted the

very policy envisioned in Moran. That is, the Helena District

integrated academic performance and extracurricular activity when,

for purposes of furthering academic achievement, it adopted a

policy requiring that no student (regardless of marital status)

could participate in extracurricular activities unless he or she

maintained a 2.0 grade point average. Bartmess, 726 P.2d at 802. 

The relators in Bartmess argued that the right to participate in

extracurricular activities was a fundamental right and challenged

the 2.0 rule as being a denial of equal protection and equal

educational opportunity. Bartmess, 726 P.2d at 802. Without

addressing the question of whether education itself is a

fundamental right, we held that participation in extracurricular

activities was not a fundamental right; that the claim warranted a

middle-tier analysis and that the 2.0 rule did not violate either

the equal protection clause or the equal educational opportunity

clause found in Article X, Section 1, of the Montana Constitution. 

Bartmess, 726 P.2d at 804-805. 

 We determine that Kapteins' claim of a right to participate,

like the relators in Bartmess, must be analyzed under a middle-tier

analysis. We recognized in Bartmess that a studentþs right to

participate in extracurricular activities, although not a

fundamental right, is "clearly subject to constitutional

protection." Bartmess, 726 P.2d at 805. Under a middle-tier

analysis there must be a "balancing of the rights infringed and the

governmental interest to be served by such infringement." Butte

Community Union v. Lewis (1986), 219 Mont. 426, 434, 712 P.2d 1309,

1314. Thus, in the present context, the right to participate must

be balanced against the School Districtþs interests in restricting

participation to students enrolled in the public school system. 

Consistent with the middle-tier analysis conducted in Bartmess, we

must first determine whether the classification based upon enrolled

students is reasonable. We then examine whether the governmental

interest in making this classification based upon enrollment is

more important than Tami Kapteinþs interest in participating in

existing extracurricular activities. 

 As to the "reasonableness" of classifying students based upon

whether they are enrolled in the public school system, we note that 

Article X of the Montana Constitution places a heavy emphasis on

the concept of an educational "system." Article X, Section 1(1),

states that it is the goal of the people to "establish a system of

education which will develop the full educational potential of each

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person." Article X, Section 1(3), provides: "The legislature shall

provide a basic system of free quality public elementary and

secondary schools." Article X, Section 9(1), creates a state board

of education responsible for planning and evaluating programs for

the stateþs "educational systems."

 Article X, Section 9(3), creates a board of public education

"to exercise general supervision over the public school system. .

. ." Given this heavy emphasis on the creation, supervision and

quality of the stateþs educational "system," we hold that the

School Districtþs classification of students based upon whether

they are enrolled in the public school "system" is entirely

reasonable. 

 We must then examine the School Districtþs interest in making

this classification and weigh that interest against Tami Kapteinþs

interest in participating. 

 The School District has set forth an extensive list of

"educational reasons" for its policy of restricting participation

to enrolled students. We will not delve into the particulars of

that list other than to note that the primary "educational reason"

propounded by the School District is that of providing a unified

program in which required academic courses, elective courses and

extracurricular activities are "integrated" so as to complement

each other. The Board takes the position that the integrating of

the academic and extracurricular activities does not lend itself to

participation by nonenrolled students. This rationale finds ample

support in our decision in Bartmess. In Bartmess, Helena School

District No. 1 chose to adopt a policy whereby students in the

system needed to maintain a 2.0 or "C" grade average for the

preceding nine weeks in order to participate in extracurricular

activities. The 2.0 standard was a higher standard than the 1.0

average needed to graduate from high school and was not based upon

any scientific or statistical studies showing academic improvement

as a result of such a policy. Bartmess, 762 P.2d at 802. Although

the label "integrating" was not used to characterize the policy in

Bartmess, the Helena School District was, in effect, "integrating"

the athletic/extra-curricular program with the academic program. 

That is, the Helena School District made a policy decision that

participation in extracurricular activities was tied to academic

performance. In upholding this integrated approach, we stated:

 We are not able to conclude, as the relators urge, that

 an opportunity to participate in extracurricular

 activities is more important than the achievement of

 average academic performance. We conclude that the

 government interests in developing the full educational

 potential of each person and providing a basic system of

 quality public education by the enactment of the 2.0 rule

 outweigh the studentsþ interest in participating in

 existing extracurricular activities.

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Bartmess, 726 P.2d at 805. 

 In the present case, we are likewise unable to conclude that

a private school studentþs interest in participating in

extracurricular activities is more important than the School

Districtþs policy decision that, in order to effectively integrate 

academics and extracurricular activities, it needs to restrict

participation to those students who are enrolled in the public

school system. 

 Accordingly, we affirm the decision of the District Court. 

 /S/ W. WILLIAM LEAPHART

 

We concur:

/S/ J. A. TURNAGE

/S/ JAMES C. NELSON

/S/ TERRY N. TRIEWEILER

Justice James C. Nelson specially concurs.

 I concur in our analysis and in the result of our decision,

and I have, accordingly, signed our opinion. I write separately

only to set forth my position on two points, one of which is 

mentioned in our opinion.

 First, in the context of the narrow legal question that was at

issue in State, ex rel., Bartmess v. Board of Trustees (1986), 223

Mont. 269, 726 P.2d 801, and in the context of the legal issue

here, I agree that a student's participation in extracurricular

school activities is not a fundamental right and that using middle

tier analysis is justified. We have correctly so limited our

analysis to those facts.

 Beyond the narrow issues addressed in Bartmess and in the

instant case, however, I do not want my agreement with our opinion

to be read as any sort of concession that a Montanan's rights under

Article X, Section 1, of the Montana Constitution, to equal

educational opportunity and to "a basic system of free quality

public elementary and secondary" education are anything but

fundamental rights. 

 As our opinion points out, Montanans, uniquely, are

constitutionally guaranteed important equal public education

rights. Moreover, the legislature is obligated by our constitution

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to provide the mechanism that will enable each person in this State

to exercise those rights to effectuate the goal of the people of

this state "to establish a system of education which will develop

the full educational potential of each person." Art. X, Sec. 1,

Mont.Const.

 In that context, and as to those rights, I believe that such

rights are, indeed, fundamental. In truth, when one considers the

obvious fact that, without a quality education, a person's ability

to exercise his or her other constitutional rights is severely

circumscribed, then it becomes readily apparent just how

fundamental the educational rights set forth in Article X, Section

1, really are. In our modern, technological, information-oriented

society one's constitutional right to seek gainful employment, to 

vote, to express one's views, to pursue life's basic necessities,

to acquire and possess property and to seek safety, health and

happiness, all, in a very real sense, depend upon a person's

education. And these are but just a few of the constitutional

rights which Montanans enjoy. Simply put, educational rights are

fundamental because they are rights without which other

constitutional rights would have little meaning. See Butte

Community Union v. Lewis (1986), 219 Mont. 426, 430, 712 P.2d 1309,

1311-13.

 Second, as to the precise question at issue in the instant

case, I would also conclude that Article X, Section 6, of the

Montana Constitution prevents a public school district from

allowing sectarian school students to participate in district

activities. This provision of Montana's Constitution provides:

 Aid prohibited to sectarian schools. (1) The

 legislature, counties, cities, towns, school districts,

 and public corporations shall not make any direct or

 indirect appropriation or payment from any public fund or

 monies, or any grant of lands or other property for any

 sectarian purpose or to aid any church, school, academy,

 seminary, college, university, or other literary or

 scientific institution, controlled in whole or in part by

 any church, sect, or denomination. (Emphasis added).

 Article X, Section 6, which was carried over from our 1889

Constitution, represents the Constitutional Convention's strong and

continuing belief in the necessity to maintain Montana's public

school systems apart from any entanglements with private sectarian

schools and to guard against the diversion of public resources to

sectarian school purposes. As Delegate Burkhardt stated:

 The primary and significant advantage secured by the

 present provision is the unequivocal support it provides

 for a strong public school system. The traditional

 separation between church and state, an important part of

 the American social framework, has also become a

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 fundamental principle of American education. The growth

 of a strong, universal, and free educational system in

 the United States has been due in part to its exclusively

 public character. . . . Any diversion of funds or effort

 from the public school system would tend to weaken that

 system in favor of schools established for private or

 religious purposes.

Montana Constitutional Convention, verbatim transcript, March 11,

1972, Vol. VI at pages 2008-09.

 If Tami is allowed to participate in the public school sports

programs, it is clear to me that the School District will be

providing aid, either directly or indirectly, to the Conrad

Christian School in violation of this express prohibition of

Montana's Constitution. This is so because sectarian schools

derive their operating funds, for the most part, from tuition or

church resources. To the extent that a sectarian school determines

that it cannot afford, for example, a volleyball program, or a

chemistry lab, or a band from these private sources, such schools

can shift the financial burden of such programs to the public

treasury by sending sectarian school students to the public school

volleyball program, chemistry lab or band. In short, the public

school district ends up effectively subsidizing the sectarian

school's educational program. This is precisely what Article X,

Section 6, prohibits--indirect aid to sectarian schools.

 Moreover, Montana's constitutional prohibition against aid to

sectarian schools is even stronger than the federal government's. 

The former expressly prohibits either direct or indirect aid, while

the latter prohibits aid which is found to be "direct." See, e.g.,

Sloan v. Lemon (1973), 413 U.S. 825, 832, 93 S.Ct. 2982, 2987, 37

L.Ed.2d 939, 945, reh'g denied 414 U.S. 881, 94 S.Ct. 30, 38

L.Ed.2d 128 (tuition subsidies to parents of parochial students

struck down) and Meek v. Pittenger (1975), 421 U.S. 349, 363, 95

S.Ct. 1753, 1762-63, 44 L.Ed.2d 217, 230, reh'g denied 422 U.S.

1049, 95 S.Ct. 2668, 45 L.Ed.2d 702 (direct loan of instructional

materials has effect of advancing religion), and compare State ex

rel. Chambers v. School District No. 10 (1970), 155 Mont. 422, 472

P.2d 1013 (Article XI, Section 8, of Montana's 1889 Constitution,

the predecessor of Article X, Section 6, prevents the busing of

parochial students even though busing was permissible under the

federal constitution).

 Accordingly, while I concur fully in our analysis and in our

opinion, I am also convinced that Montana's Constitution expressly

prohibits what Tami and the Conrad Christian School hoped to

accomplish in this litigation. The School District may not allow

her to participate in its programs unless she enrolls in the public

school system.

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 /S/ JAMES C. NELSON

Justice W. William Leaphart concurs in the foregoing special

concurrence.

 /S/ W. WILLIAM LEAPHART

Justice Karla M. Gray, concurring in part and dissenting in part.

 Notwithstanding my disagreement with the Court's analysis of

the issue before us, I concur in the result the Court reaches. The

basis of my disagreement is set forth briefly below, followed by a

brief statement of my view regarding the appropriate constitutional

basis on which this case should be resolved. In this latter

regard, I join in Justice Nelson's reasoning that Article X,

Section 6, of the Montana Constitution clearly prohibits the Conrad

School District from allowing Tami to participate in public school

sports.

 The critical facts of this case are that Tami is enrolled in

the Conrad Christian School, a sectarian educational facility; she

is not enrolled in the Conrad public school system. Tami seeks to

play on public school athletic teams for social purposes and

camaraderie. The School District refused to allow her to do so

pursuant to its policy limiting participation to students enrolled

full time in the public school. 

 Under these facts, Tami asserts a constitutional right to

participate under Article X, Section 1, of the Montana

Constitution. The Court relies on Bartmess in concluding that Tami

has such a constitutional right. It then applies the Bartmess

middle-tier scrutiny and concludes that the School District's

policy decision to restrict participation in extracurricular

activities in order to effectively integrate academics and

extracurricular activities is more important than Tami's interest

in participating. It holds that the School District's policy does

not violate the Montana Constitution.

 While I agree that the policy does not violate the Montana

Constitution, it is my view that Bartmess is inapplicable under the

facts now before us with regard to both the constitutional right to

participate and the resulting application of middle-tier scrutiny. 

In Bartmess, the challenge to the 2.0 GPA rule for participation in

extracurricular activities was asserted by students enrolled full

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time in the public schools. We held that a public school student's

right to participate in extracurricular activities offered by the

public school system in which the student is enrolled is entitled

to some degree of constitutional protection. 

 Unlike in Bartmess, however, the right being asserted by Tami

is totally separate and apart from any asserted right to

participate in the overall educational system of the School

District. She has a right, of course, to attend public schools but

has chosen not to do so. Thus, she does not have the same right to

participate as the students in Bartmess. I simply do not perceive

any tie to Article X, Section 1, of the Montana Constitution such

as existed in Bartmess and, as a result, middle-tier scrutiny is

not appropriate. 

 In any event, the Montana Constitution contains a provision

which affirmatively precludes the School District from permitting

Tami to participate and which, therefore, provides the appropriate

basis on which to resolve the present case. That provision--

Article X, Section 6, of the Montana Constitution--is discussed in

Justice Nelson's special concurring opinion and needs no further

discussion here. I join in that portion of Justice Nelson's

opinion.

 Tami advances several cases, including a recent United States

Supreme Court case, which she contends establish that no

constitutional problems involving separation of church and state

arise by allowing her to participate in public school athletics. 

In particular, she relies on Zobrest v. Catalina Foothills School

Dist. (1993), 509 U.S. 1, 13-14, 113 S.Ct. 2462, 2469, 125 L.Ed.2d

1, 14, in which the Supreme Court held that the "no establishment

of religion" clause in the First Amendment to the United States

Constitution does not bar a public school district from providing

a sign language interpreter to accompany a deaf student to classes

at a sectarian school where the service was part of a general

governmental program. As Justice Nelson points out, however, the

First Amendment generally prohibits only direct aid. Article X,

Section 6, of the Montana Constitution, on the other hand,

prohibits school districts from extending both direct and indirect

aid to sectarian schools. Thus, the federal and sister state cases

on which Tami relies have no application to the unique and broad

proscription contained in the Montana Constitution regarding aid to

sectarian schools.

 I join the Court in affirming the District Court, although I

would accomplish that result under a different analysis.

 /S/ KARLA M. GRAY

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