No. 85-540 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

STATE OF MONTANA, ex rel., BOB 

BARTMESS, PAT BARTMESS, MARY K. 

BARTSCH, JULIE CLONINGER, NITA 

CREACH, GARY A HULL, ED KIBLER, 

DIANA KIBLER, et al., 

Relators and Appellants, 

BOARD OF TRUSTEES OF SCHOOL DISTRICT 

NO. 1 and HIGH SCHOOL DISTRICT NO. 1, 

LEWIS & CLARK COUNTY, et al, 

Respondents and Respondents. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Frank Davis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Robert T. Cumrnins argued, Helena, Montana 

Randy K. Dix argued, Helena, Montana 

For Respondent: 

Smith Law Firm; Chadwick H. Smith argued for School 

Dist. No. 1 & Bd. of Trustees, Helena, Montana 

For Amicus Curiae: 

Goetz, Madden & Dunn; James H. Goetz for Helena 

School Dist. No. 1, et al., Bozeman, Montana 

Leaphart Law Firm for Board of Public Education, 

Helena, Montana 

Charles Erdmann for Mont. School Board Assoc., 

Helena, Montana 

Gough, Shanahan, Johnson & Waterman; Ronald Waterman 

argued for Montana High School Assoc., Helena, Montana 

Submitted: August 251 1986 

Decided: September 18, 1986 

Filed: SEP 1 3 1986 

Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

This is an appeal of a summary judgment of the District 

Court for Lewis and Clark County which upheld the requirement 

that Helena high school students participating in extracurricular activities maintain a 2.0 grade average. We affirm. 

Relators appeal and raise the following issue: Did the 

District Court err as a matter of law in holding that under 

the United States and Montana Constitutions participation in 

existing extracurricular activities is not a fundamental 

right? 

Relators are citizens and taxpayers of Lewis and Clark 

County and parents of students enrolled in the two Helena 

high schools. They object to the rule adopted by respondents 

requiring a student to maintain a 2.0, or "C", grade average 

for the preceding nine weeks in order to participate in 

extracurricular activities in the following nine week grading 

period. Extracurricular activities are those which do not 

earn credit toward graduation, including athletics, band, 

choir, speech, drama, cheerleading, drill team, student 

council, and holding class office. The 2.0 rule does not 

apply to special education students or students with learning 

disabilities. 

The Helena high schools are members of the Montana High 

School Association (MHSA) . The MHSA requires a 1.0, or "D", 

grade average for participation in extracurricular activities. Its regulations permit member schools to adopt more 

stringent policies. The National Collegiate Athletic Association (NCAA) requires a minimum grade point average of 2.0 to 

participate at the college level in practice, regular season 
competition and athletically related financial aid during the 

first academic year. 

Respondents adopted the 2.0 rule as an incentive for 

students who desire to participate in extracurricular activities. The 2.0 rule is a higher standard than that needed for 

graduation from Helena high schools, which is a 1.0 grade 

average in required courses. Respondents admit the 2.0 

policy is not based on any scientific or statistical studies 

showing academic improvement by students following the adoption of such a policy. 

Relators brought an action in District Court requesting 

injunctive relief and a declaratory judgment that the 2.0 

rule was unconstitutional. The complaint alleged violation 

of the equal protection and equal educational opportunity 

clauses of the Montana Constitution. Following briefing and 

summary judgment motions by both parties, the District Court 

ruled in favor of respondents. The District Court found the 

2.0 rule to be "a reasonable, fair, equitable and 

non-discriminatory policy, promulgated for the purpose of 

implementing the constitutional and statutory mandated educational goals of the school district. In its application, the 

requirement does not violate any constitutionally protected 

rights of these Relators, State or Federal. . ." 

Amicus briefs were filed by several parties, some of 

whom addressed wider issues than the one now before us. We 

are not ruling upon the issue of whether or not the right to 

education itself is a fundamental right. We are not ruling 

upon whether the failure to offer any extracurricular activities may result in a constitutional deprivation, nor whether 

extracurricular activities are in any way an indispensable 

component of the basic system of free quality public 
education. We are not in any way considering or ruling upon 

the question of funding education in Montana, including the 

funding of extracurricular activities, and are not considering any of the contentions being made that equal educational 

opportunity may require some specific types of funding. None 

of these issues is before us. 

The issue appealed concerns the standard of review under 

which the 2.0 rule will be considered. Equal protection 

analysis traditionally involves one of two standards. A 

state action which burdens a fundamental right is subject to 

strict scrutiny and must be based upon a compelling state 

interest. An action which infringes upon a right which is 

not fundamental must only be rationally related to a legitimate government objective. A third middle-tier level of 

constitutional analysis has been recently recognized in 

Montana. - See Butte Community Union v. Lewis (~ont. 1986), 712 

The relators contend that the right to participate in 

extracurricular activities is fundamental and that the strict 

scrutiny standard therefore applies. The United States 

Supreme Court has held that education is not a fundamental 

right guaranteed by the federal Constitution. San Antonio 

School District v. Rodriguez (1973), 411 U.S. 1, 93 S.Ct. 

1278, 36 L.Ed.2d 16. Based on that holding, we conclude that 

participation in extracurricular activities is not a fundamental right under the U.S. Constitution. However, that does 

not preclude a finding that the right is fundamental under 

Montana's Constitution. 

The relators cite Moran v. School District # 7, 

Yellowstone County (D.Mont. 1972), 350 F.Supp. 1180. In 

that case, Federal District Judge Murray said this Court had 
recognized extracurricular activities as an "integral part of 

the total educational process." The court there overturned a 

school rule which denied a married high school student the 

right to participate in extracurricular activities. Since 

that case involved the right to marriage, there was a separate ground for heightened constitutional scrutiny. While we 

agree that extracurricular activities are part of the educational process, the case is not authority because of the 

marriage aspect. 

The Moran decision was based on language in a case which 

relators also cited, McNair v. School Dist. No. 1 (1930), 87 

Mont. 423, 428, 288 P. 188, 190: 

Under the heading "Education," our Constitution 

declares that "it shall be the duty of the legislative assembly of Montana to establish and maintain 

a general, uniform and thorough system of public, 

free, common schools." . . . [I]t is clear that 

the solemn mandate of the Constitution is not 

discharged by the mere training of the mind; mentality without physical well-being does not make 

for good citizenship--the good citizen, the man or 

woman who is of the greatest value to the state, is 

the one whose every faculty is developed and alert. 

That case arose out of a taxpayer's objection to the construction of a gymnasium and athletic field. This Court held 

the school board had been granted the authority to provide 

such facilities. The 'solemn mandate of the Constitution' 

discussed in McNair has been reworded in our 1972 Constitution, Art. X, § l(3): "The legislature shall provide a basic 

system of free quality public elementary and secondary 

schools." The emphasis in McNair was that education should 

attempt to improve mental, physical, and moral powers. 

This Court recently recognized that not all constitutionally important rights are fundamental rights. The holding in Butte Community Union was that a right to welfare, 
which is lodged in our State Constitution, "is an interest 

whose abridgement requires something more than a rational 

relationship to a governmental objective." However, we 

concluded that the right to welfare was not a fundamental 

right, and stated: 

In order to be fundamental, a right must be found 

within Montana's Declaration of Rights or be a 

right "without which other constitutionally guaranteed rights would have little meaning." In 

the Matter of C.H. (Mont. 1984), 683 P.2d 931, 940, 

41 St.Rep. 997, 1007. 

Butte Community Union, 712 P.2d at 1311. The right to welfare was not found within Montana's Declaration of Rights nor 

did we conclude it was a right without which other constitutionally guaranteed rights would have little meaning. 

Participation in extracurricular educational activities 

is not found within Montana's Declaration of Rights. The 

second portion of the test, whether the right is one without 

which other constitutionally guaranteed rights would have 

little meaning, is more difficult and we conclude, is best 

addressed by an analysis of Montana's constitutional provisions as to education. 

The McNair case demonstrates that physical and moral 

development are important aspects of education. The state 

has an important interest in seeing that its young citizens 

receive a basic quality education under Art. X, S 1, Mont. 

Const. (1972): "It is the goal of the people to establish a 

system of education which will develop the full educational 

potential of each person." The provisions of Art. X demonstrate that there are constitutional rights and obligations 

which extend to all sides of the question of education. 

There is the right to equality of educational opportunity 

guaranteed to each person. There is the goal to establish a 
system of education which will develop the full educational 

potential of each person. There is a requirement that the 

State's educational goals recognize and preserve the cultural 

heritage of American Indians. The legislature is obligated 

to provide a basic system of free quality education. The 

state board of education is responsible for long-range planning, coordination and evaluation of the systems with regard 

to such rights and obligations. The school trustees are 

vested with the authority to discharge these obligations and 

protect the rights. 

Our review of the educational provisions of the Montana 

Constitution demonstrates the extreme importance attached to 

the various elements of education by the people of Montana in 

adopting the Constitution. This review suggests that the 

various aspects of education under our Montana Constitution 

could be classed as "fundamental" because of the critical 

importance of developing the full educational potential of 

each citizen. However, we are required to analyze the educational aspect of extracurricular activities from an equal 

protection standpoint. Gerald Gunther, in his law review 

article entitled The Supreme Court 1971 Term - Forward: 

In Search of Evolving Doctrine on a Changing Court: A Model 

for a Newer Equal Protection, 86 Harv.L.Rev. 1 (1972), points 

out that where a statute impinges on a right which is classed 

as fundamental, strict scrutiny of that statute is required 

and the result is invariably fatal to the statute. Justice 

Marshall commented on the fatal nature of strict scrutiny 

analysis in his dissenting opinion in Massachusetts Bd. of 

Retirement v. Murgia (1976), 427 U.S. 307, 318, 96 S.Ct. 

2562, 2569, 49 L.Ed.2d 520, 528: 
Although the Court outwardly adheres to the 

two-tier model, it has apparently lost interest in 

recognizing further "fundamental" rights and "suspect" classes. . . In my view, this result is the 

natural consequence of the limitations of the 

Court's traditional equal protection analysis. If 

a statute invades a 'lfundamental" right or discriminates against a "suspect" class, it is subject to 

strict scrutiny. If a statute is subject to strict 

scrutiny, the statute always, or nearly 

always . . . is struck down. Quite obviously, the 

only critical decision is whether strict scrutiny 

should be invoked at all. It should be no surprise, then, that the Court is hesitant to expand 

the number of categories of rights and classes 

subject to strict scrutiny, when each expansion 

involves the invalidation of virtually every classification bearing upon a newly covered category. 

In a similar manner, we pointed out that the strict scrutiny 

test requires the State to show a compelling state interest 

and is seldom satisfied. Butte Comrnunitv Union. 712 P.2d at 

Our analysis of the educational provisions of our Montana Constitution demonstrates there are competing and in 

some cases contradictory viewpoints which must be considered 

in determining whether the educational aspects of extracurricular activities are a right under our Constitution. We 

conclude that the only standard of constitutional review 

which allows a careful balancing of these competing interests 

is middle-tier analysis. We therefore hold that the 

middle-tier constitutional analysis is to be applied in 

determining whether the 2.0 rule violates students1 right to 

participate in existing extracurricular activities. We 

further hold that this right is not a fundamental right under 

the Montana Constitution; but that such right is clearly 

subject to constitutional protection and that a middle-tier 

analysis is to be applied for constitutional equal protection 

purposes. 
The standard of review used under Montana's middle-tier 

constitutional analysis is a "balancing of the rights infringed and the governmental interest to be served by such 

infringement." Butte Community Union, 712 P.2d at 1314. As 

in Butte Community Union, our first inquiry is whether the 

classification is reasonable. Specifically, is the classification of students eligible to participate in extracurricular 

activities on the basis of a 2.0 rule reasonable? Then we 

must examine whether the government interest in making this 

classification based upon academic grades is more important 

than the students' interest in participating in existing 

extracurricular activities. In other words, the school 

district must demonstrate that its classification is substantially related to an important governmental objective. 

The action of the trustees places attaining minimum 

grades in academic subjects above participating in 

non-academic or extracurricular activities for which no 

graduation credits are given. The 2.0 rule does not apply to 

special education students or students with learning disabilities. While it is not based on studies showing improved 

grades for students operating under such a rule, it cannot be 

denied that the rule is an incentive for those students who 

wish to participate in extracurricular activities. It also 

promotes adequate time to study for those students who have 

not maintained a 2.0 grade average. We conclude that the 

classification is a reasonable one. 

The priority given to academic over non-academic work to 

the extent found here does not contradict this Court's statement in McNair that physical and moral education are also 

important. 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 students' 

interest in participating in existing extracurricular 

activities. 

We hold that the District Court did not err in holding 

that participation in existing extracurricular activities is 

not a fundamental right. We further hold that the 2.0 rule 

does not violate the Constitution of the State of Montana. 

Affirmed. 

We Concur: 0" 

I 

Justices 
Mr. Justice Frank B. Morrison, Jr. specially concurs as 

follows: 

I concur in the result but the majority Opinion is not 

entirely clear on a central issue. 

First we must decide whether education is a. fundamental 

right. The United States Supreme Court has held that 

education is not a fundamental right guaranteed by the 

federal Constitution. San Antonio School District v. 

Rodriquez (1972), 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16. 

In Rodriquez, it was argued that education is fundamental 

because it is essential to the effective exercise of First 

Amendment freedoms and the right to vote. The Court 

disagreed, stating " [W] e have never presumed to possess 

either the ability or the authority to guarantee to the 

citizenry the most effective speech or the most informed 

electoral choice." 411 U.S. at 36, 93 S.Ct. at 1298, 36 

In the recent case of Plyler v. Doe (1981), 457 U.S. 

202, 102 S.Ct. 2382, 72 L.Ed.2d 786, the Supreme Court 

reaffirmed its holding in Rodriquez that education is not a 

fundamental right guaranteed by the federal Constitution. 

Despite its holding, the Court placed great emphasis on the 

importance of education: 

But neither is it merely some governmental 

"benefit" indistinguishable from other forms of 

social welfare legislation. Both the importance of 

education in maintaining our basic institutions, 

and the lasting impact of its deprivation on the 

life of the child, mark the distinction. The 

"American people have always regarded education and 

[the] acquisition of knowledge as matters of 

supreme importance." Meyer v. Nebraska, 262 U.S. 

390, 400 (1923). 

Plyler, 457 U.S. at 221, 102 S.Ct. at 2397, 72 L.Ed.2d at 

801. 
This Court is not bound by the decisions of the United 

States Supreme Court where independent state grounds exist 

for developing expanded rights under our state Constitution. 

Butte Community Union v. Lewis (Mont. 1986), 712 ~.2d 1309, 

43 St.Rep. 65; Pfost v. State (Mont. 1985), 713 P.2d 495, 42 

St.Rep. 1957. 

In Butte Community Union, supra, we said, "1n order to 

be fundamental, a right must be found within Montana's 

Declaration of Rights or be a right without which other 

constitutionally guaranteed rights would have little 

meaning." 712 P.2d at 1311, 43 St.Rep. at 68; citing In the 

Matter of C.H. (Mont. 1984), 683 P.2d 931, 940, 41 St.Rep. 

997, 1007. 

The right to education is not enumerated in Montana's 

Declaration of Rights but is found in Art. XI 1, 

Mont.Const. (1972). This section provides in part: "It is 

the goal of the people to establish a system of education 

which will develop the full educational potential of each 

person," and further directs the legislature to "provide a 

basic system of free quality public elementary and secondary 

schools. 'I 

The official committee comment to Art. XI S 1, opens 

with a statement stressing the importance of education in 

Montana: 

Education occupies a place of cardinal importance 

in the public realm. The educational system is 

charged with the task of shaping and cultivating 

the mind of each succeeding generation and with 

developing the capacities for cultural and 

technical advancement of society. 

For many, denial of a basic education would result in 

either illiteracy or severely retarded growth. Such 

individuals would be restricted from exercising, in a 

meaningful way, fundamental rights guaranteed in the 
Declaration of Rights such as the right to vote, right of 

participation, and right to know. Education is essential to 

even the most elemental exercise of many rights guaranteed by 

the Montana Constitution. 

Education cannot be characterized as merely a benefit as 

was welfare in Butte Community Union , supra. The right to 

an education is not restricted in any manner. One need not 

qualify. Education is for all. Pursuant to Art. X, § 1, the 

legislature must provide a basic system of public schools, 

and each person is guaranteed equality of educational 

opportunity. In view of this constitutional mandate and the 

fact that education is essential to the exercise of other 

constitutionally guaranteed rights, we should clearly hold 

that basic education is a fundamental right under the Montana 

Constitution. 

Next, we should address relators' contention that 

participation in extracurricular activities is a fundamental 

right which may be infringed only upon a showing of a 

compelling state interest. Relators cite Moran v. School 

District No. 7 (D.Mont. 1972), 350 F.Supp. 1180, in which the 

federal district court found that the right to attend school 

includes the right to participate in extracurricular 

activities. In Moran, the court found the school board's 

rule prohibiting married students from participating in 

extracurricular activities did not meet even a rational basis 

test. The court cited language from this Court's decision in 

McNair v. School District No. 1 (1930), 87 Mont. 423, 288 P. 

188: 

[Ilt is clear that the solemn mandate of the 

Constitution is not discharged by the mere training 

of the mind; mentality without physical well-being 

does not make for good citizenship--the good 

citizen, the man or woman who is of the greatest 
value to the state, is the one whose every faculty 

is developed and alert. 

Education may be particularly directed to either 

mental, moral or physical powers or faculties, but 

in its broadest and best sense it embraces them 

all. 

87 Mont. at 428, 288 P. at 190. 

Apparently we have not retreated from the position 

announced in McNair, although the majority analysis is 

somewhat murky. That case arose as a challenge by a 

taxpayer objecting to the construction of a gymnasium and 

athletic field. There this Court held the school board had 

been granted the authority to provide such facilities. The 

emphasis in McNair was that education should attempt to 

improve mental, physical, and moral powers. That rationale 

still holds force today, but I find the Helena high schools' 

2.0 rule is an attempt to guarantee a sound education. 

Regardless of whether the extracurricular activity is 

academic or non-academic, the state has a compelling interest 

in seeing that its young citizens receive a basic quality 

education. While the 2.0 rule is not based on studies 

showing improved grades by students operating under such a 

rule, there can be no denying it is sound incentive for those 

students who desire to engage in extracurricular activities. 

Further, it assures adequate time to study for those students 

affected by the rule. 

Montana's strong commitment to providing a quality 

system of education is clear under our Constitution. The 

state's compelling interest in educating its citizens is 

reflected in Art. X, $ 1, Mont.Const. (1972): "It is the 

goal of the people to establish a system of education which 

will develop the full educational potential of each person." 

Respondents' 2.0 rule is a policy designed to achieve this 

constitutional directive. 
The supervision and control of the public schools in 

each district is vested in a board of trustees pursuant to 

Art. XI § 8. The trustees' action does not deny educational 

opportunity, whether academic or nonacademic, to any 

students. Rather it seeks to create priorities within the 

curriculum to the end that students will receive the best 

education possible. 

Relators contend the 2.0 rule violates the guarantee of 

equal educational opportunity found in Art. X, $ 1, Mont. 

Const. (1972). The committee comments to Art. XI S 1, 

reflect a concern that Montana's educational financing system 

provide equal educational opportunity. 

The subject of "equal educational opportunity" has 

become a particularly important doctrine in modern 

education. Recent federal, district and state 

court decisions have interpreted the Fourteenth 

Amendment to the federal Constitution as applying 

to educational financing. Under this doctrine, the 

state must show a compelling interest to maintain a 

classification system by wealth which interferes 

with the individual's fundamental right to an 

education. 

To satisfy the burden of proving the denial of equal 

educational opportunity, relators would first have to show 

that affected students are incapable of maintaining a 2.0 

grade average and are thereby banned in fact from activity 

participation. Learning disabled and special education 

students are exempted from the rule. Relators have not shown 

that they are unable to meet the requirement. With the 

exemption noted for special education youngsters, all 

students are given the same opportunity. 

I would hold that respondents' 2.0 rule is a 

constitutionally sound method of furthering the state's 

compelling interest in educating its citizens. 
Mr. Justice John C. Sheehy, dissenting: 

The issue in this case is the validity of the academic 

eligibility requirement for participation in extracurricular 

activities in High School District No. 1, Lewis and Clark 

County, Montana, as follows: 

Academic Eligibility. To be eligible to 

participate in a Montana High School Association 

contest a student must have received a passing 

grade in at least twenty periods of prepared work 

per week or its equivalent during the last 

preceding semesters in which he/she was in 

attendance. If a student is assigned an 

"incomplete" in a subject, he/she has not received 

a passing grade in this subject. The record at the 

end of the semester is final and scholastic 

deficiencies may not be "made up" in any way. 

In addition, Helena School Dist. #1 High School 

activity participants (including Athletics, Band, 

Vocal, Speech, Drama, Cheerleaders, Drill Team, 

Student Council, Class and Organizational 

Officers) , must have a 2.0 grade point average the 

previous semester. If not in conflict with Montana 

High School Association policy, a student will have 

two (2) weeks to make up an incomplete. 

Further, Helena School Dist. #1 High School 

activity participants must be present the entire 

day to compete or practice unless permission is 

granted through the Principal's office. 

On July 22, 1985, the respondent Board of Trustees 

enacted the following amendment to the academic eligibility 

requirement: 

If the grades of a student who is participating in 

activities falls below a 2.0 grade point average 

for any nine week grading period the student will 

be ineligible to participate in activities during 

the next nine week grading period. The policy 

change will be retroactive to the 1984-85 spring 

quarter. 

[NOTE: School Board grammar, not mine.] 

Under the agreed statement of facts before this Court, 

1) extracurricular activities mean activities which do not 

earn credit toward graduation; 2) a 2.0 grade point average 

is a "C" average; 3) the rule sets a high standard which is 
required. for graduation from Helena high schools--whereby in 

order to graduate, a student must obtain 21. credits by 

receiving a grade of "D" or better in 21 courses. 

Participation by Helena high school students in 

interscholastic activities in Montana, for Class AA schools 

(both Helena high schools are Class AA schools) is allowed 

under the rules of Montana High School Association for 

students who receive a passing grade "D" in at least 20 

periods of prepared work per week. None of the other Class 

AA schools, 14 others, require more than a "D" passing grade 

for participation in interscholastic activities. 

Colleges, on paper at least, have higher standards for 

intercollegiate competition. The National Collegiate 

Association rule requires a 2.0 grade point average for a 

student to be eligible for practice, participation in regular 

season competition, and financial aid. 

The single issue in this case is the constitutional 

validity of the academic requirement rule for participation 

in extracurricular activities adopted by the Helena High 

School District. 

Until today, this Court had followed the rule that a 

student's right to participate in extracurricular activities 

was constitutionally protected. To be sure, that was not the 

majority rule among the several states, but in Montana, we 

held unswervingly to that rule, based on our special 

constitutional provisions and the interpretation of this 

Court in McNair v. School Dist. No. 1 (1930), 87 Mont. 423, 

288 P. 188. 

In McNair, a Casacade County taxpayer attacked the 

validity of a bond issue proposed by School District No. 1 of 

that county "for the purpose of constructing an outdoor 
gymnasium and athletic field in said district, furnishing and 

equipping the same." NcNair attacked the proposed bond issue 

on the grounds that the 1889 Constitution did not contemplate 

athletic fields, and that the statute which permitted the 

erection of gymnasiums did not include athletic fields. The 

1889 Constitution provided that the duty of the legislature 

was to establish and maintain "a general, uniform and 

thorough system of public, free, common schools." In 

construing what a "thorough system" meant, this Court said: 

What, then, constitutes a "thorough" system of 

educa.tion in our public schools? By its voluntary 

act, the state has assumed the function of 

education primarily resting upon the parents, and 

by laws on compulsory education has decreed that 

the custody of children be yielded to the state 

during the major portion of their waking hours for 

five days of the week, and, usually, nine months in 

the year. In doing so, the state is not actuated 

by motives of philanthropy or charity, but for the 

good of the state, and, for what it expends on 

education, it expects substantial returns in good 

citizenship. With this fact in mind, it is clear 

that the solemn mandate of the Constitution is not 

discharged by the mere training of the mind; 

mentality without physical well-being does not make 

for good citizenship--the good citizen, the man or 

woman who is of the greatest value to the state is 

the one whose every faculty is developed and alert. 

Education may be particularly directed to either 

mental, moral or physical powers or faculties, but 

in its broadest and best sense it embraces them 

all. (Emphasis added.) 

87 Mont. at 428, 288 P. at 190. 

Following McNair, we had the case of Perkins v. Trask, 

(1933), 95 Mont. 1, 23 P.2d 982. This was an action against 

the members of the School Board for the drowning death of a 

pupil in a swimming pool maintained by the School District of 

Powell County. The trustees of the School District were 

immune from suit if they were performing a governmental 

function, and it wa.s the contention of the plaintiff that 

because the trustees had authority construct swimming 
pool, they were individually liable. In disposing of the 

argument that the trustees were not engaged in a governmental 

function, this Court said: 

Our Constitution imposes the duty upon the 

legislative assembly "to establish and ma.intain a 

general, uniform and thorough system of public, 

free, common schools." (Sec. 1, Art. XI.) This 

the legislature has done by the enactment of our 

school laws. The courses of study are prescribed 

by Section 1054, Revised Codes of 1921, with power 

in the boards of trustees "to determine what 

branches, if any, in addition to those required by 

law, shall be taught in any school in the 

district. " [citing authority] . Also by Chapter 

147, Laws 1927, the trustees are given authority to 

issue bonds for the purpose of constructing or 

acquiring a gymnasium and for furnishing and 

equipping the same. (Sec. 1) Under the broad 

rules announced in McNair v. School District, 87 

Mont. 423, 288 P. 188, 69 ATL.R. 866, the trustees 

have authority to cons-truct and maintain a swimming 

pool for the use of the pupils. 

It is also contended that, if the board has the 

right to maintain a swimming pool, its right is 

optional and not mandatory, and hence the rule of 

immunity does not apply. This fact does not alter 

the legal principle applicable. (citing 

authority). 

95 Mont. at 7-8, 23 P.2d at 984. 

Thus did our Court hold that a swimming pool in a school 

was a performance of an educational duty by the school 

trustees. 

In Flathead Lake Methodist Camp v. Webb (1965), 144 

Mont. 565, 399 P.2d 90, the question was whether the 

Methodist Church was entitled to a Montana property tax 

exemption for the maintenance of a summer camp on Flathead 

Lake in Lake County. The tract involved and consisted of 22 

acres on which the Methodist congregations had erected 

cottages, dormitories, dining rooms, bathing facilities, 

garages, boat dock, water supplies, etc. Webb maintained 

that the church was not entitled to a tax exemption for the 
property which was used for educational purposes. This Court 

said: 

Our review of the record leads us to the conclusion 

that the "exclusive" use of the premises is for 

"educational purposes" within the meaning of the 

statute. The term "educational purposes" is not, 

by the weight of authority, defined in terms of the 

common scholastic institutions of grammar school, 

high school, and university or college. (Citing 

authority.) Organizations for the social, 

intellectual, physical, or religious welfare of 

children are exempt equally. --- The end of education 

may -- be to develop either - the mental, physical, or 

moral qualities. (Citing authority.) ~eligious 

education is exempt as an "educational purpose" 

Our court has stated: "Education may be 

particularly directed to either mental, moral, or 

physical powers or faculities, but it is broadest 

and best sense it embraces them all." McNair v. 

School Dist. No. 1 of Cascade County, 87 Mont. 423, 

[428,] 288 P.2d 188, 190, 69 A.L.R. 866. (Emphasis 

added. ) 

144 Mont. at 569, 570, 399 P.2d at 93. 

Then came Granger v. Cascade County School Dist. (19721, 

159 Mont. 516, 499 P.2d 780. In that case Cascade County 

School District had imposed fees in the grade school and high 

school for such items as workbooks, chemistry notebooks, 

manual arts materials, musical instrument rentals, summer 

school, and others. The fees were attacked by the plaintiffs 

on the grounds that the constitutional requirement of a. 

"thorough system" of public, free schools encompass all 

categories of activities in the school and no such fees can 

be imposed. There this Court reaffirmed its statement that 

education may be directed to mental, moral and physical 

powers, and provided this test: 

Is a given course or activity reasonably related to 

a recognized academic and educational goal of the 

particular school system? If it is, it constitutes 

part of the free, public school system commanded by 

Art. XI, Sec. 1 of the Montana Constitution and 

additional fees or charges cannot be levied, 

directly or indirectly, against the student or his 
parents. If it is not, reasonable fees or charges 

may be imposed. 

159 Mont. at 516, 527, 499 P.2d at 706. 

In addition, the federal district court in Montana 

construed our holding in McNair and its following cases as 

granting a constitutionally protected right to participate in 

extracurricular activities. In Moran v. School Dist. No. 7, 

Yellowstone County (D. Mont. 19721, 350 F.Supp. 1180, the 

federal court, recognizing the holding in McNair, stated: 

In relying on this case the present Montana Supreme 

Court has recognized the importance of 

extracurricular activities as an integral part of 

the total education process. Courts have begun to 

recognize that extracurricular activities such as 

football are "qenerally recognized - as - a fundamental 

ingredient -- in the educational process." Kelly v. 

Metropolitan County Board of Education of 

Nashville, etc., 293 F.Supp. 485, 493 (D.C. 1968). 

See also Lee v. Macon County Board of Education, 

283 F.Supp. 194 (D.C. 1968). Thus it is apparent 

that the right to attend school includes the right 

to participate in extracurricular activities. 

(Emphasis added.) 

In brief and in oral argument, the School Board concedes 

that extracurricular activities are "a fundamental ingredient 

of the educational process," but, without further explanation 

contends that the "fundamental ingredient" is not 

constitutionally protected. Some may distinguish a 

fundamental ingredient from a fundamental right, but it takes 

a quantum jump. 

Thus, it was the law in this state until today that 

participation in extracurricular activities was a fundamental 

ingredient of the educational process; that school boards 

which issue bonds or otherwise finance through taxpayers the 

erection of athletic fields and gymnasiums or other 

provisions for extracurricular activities do so as part of 

the educational process; and that fees cannot be charged by 
the School Board if a given course or activity is reasonably 

related to recognized academic or educational goal. That was 

the state of the law when the constitutional framers in 1972 

in the new constitution adopted Art. X, § 1, which provides: 

(1) 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. 

FJe have been shown no record from the 1972 

Constitutional Convention that would indicate that the 

constitutional framers wanted to divert extracurricular 

activities in schools from the other educational goals. 

Indeed, the language used by the constitutional framers in 

1972 seems to encompass physical development in the term 

"educational potential." For this must be true, if nothing 

else is, that the end of our educational system must be to 

develop students physically, mentally and morally to meet the 

challenges of life. 

Of the approximately 2,500 students attending both 

Helena high schools, more than 500 of them, with the approval 

of this Court, are ousted by the eligibility rule from any 

extracurricular activities. If these students found little 

to relish in classrooms heretofore, their tedium will never 

be relieved by the sweet mix of association with their peers 

in other school endeavors, now branded as 

"nonessential"--drama, debate, cheerleading, drill team, 

student government, class and/or organizational officers, and 

yes, interscholastic track, football, basketball and golf. 

It is now possible for a student to graduate from either of 

Helena's high school without ever being eligible for any 

extracurricular activity! 
r, Jr, '3 

We have never had before us a scheme of government so 

patently discriminatory. This Court has followed convoluted 

equal protection analyses - ad absurdum to a silly result. Now 

a Helena High School girl with a 1.98 grade average and a 

good soprano voice is excluded from singing with the Helena 

Starlighters. A Gary Cooper or a Myrna Loy, both Helena 

products, may now be excluded from the Helena drama classes. 

A student can sign up for Spanish, but that student cannot 

belong to the Spanish Club, even with a passing grade in 

Spanish, if his or her overall average is less than "C." In 

any test of fair dealing, those results should instantly be 

held irrational, but this Court does not want to apply 

rationality standards. It wants to talk about strict 

scrutiny and middle term reviews to deny these students 

perhaps the only time in their lives to use their God-given 

skills to run in track, to twirl batons, to play in bands. 

We shoulcl not resort to high-flown concepts of equal 

protection law, which are with us today and tomorrow are gone 

with the wind, to deny constitutional protection to these 

affected students. Even if we reverse this Court in its 

prior decisions by holding that no fundamental right is 

involved, or by holding that we do not have an inherently 

suspect class, equal protection still requires that the rule 

be rationally related to a legitimate state interest. 

Sullivan v. University Interscholastic League (Tex. 1981), 

616 S.W.2d. 170. 

The only stated purpose for the rule set out in the 

agreed statement of facts is that the rule is "to encourage 

higher academic achievement to students who wish to 

participate in extracurricular activities." A rule which 

places physical, educational and moral development below 
mental education slaps at the three legs upon which the 

educational stool is built. 

This rule is not rationally related to its object for 

two reasons: it is guilty of bad breadth, and it is not 

rationally related to its intended purpose. 

When I say bad breadth, I mean that this rule is so 

overbroad that it must eventually be modified by the School 

District trustees, and indeed it has already been modified 

once. Its intended purpose, to encourage greater academic 

achievement, is not supported by any evidence in the agreed 

statement of facts or otherwise. It is built more on wish 

than fact. No rational relationship has been shown. 

It is noteworthy that the exclusion of high school 

students from extracurricular activities is so drastic that 

it is one of the punishments allowed to trustees for students 

who show open defiance of authority, deface school buildings 

or threaten other persons. Section 20-5-201, MCA. Thus has 

the School Board placed students who earn a grade point 

average of less than 2.0 in the category of the rebellious 

and defiant. It is patently irrational. 

- - 

illA Q .2& 

Justice 

Mr. Justice William H. Hunt, Sr: 

I concur in the dissent of Justice Sheehy. H