No. 85-540 IN THE SUPREME COURT OF THE STATE OF MONTANA 1986

STATE OF MONTANA, ex rel., BOB BARTMESS, PATBARTMESS,MARY K. BARTSCH,JULIECLONINGER,NITA CREACH, GARYA HULL, ED KIBLER, DIANAKIBLER,et al., Relators and Appellants,

BOARD OF TRUSTEESOF SCHOOLDISTRICT NO. 1 and HIGH SCHOOLDISTRICTNO. 1, LEWIS & CLARK COUNTY, et al, Respondents and Respondents.

APPEAL FROM: District Court of the First JudicialDistrict, In and for the County of Lewis & Clark, TheHonorable Frank Davis,Judge presiding. COUNSEL OF RECORD: ForAppellant: 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 ForAmicus Curiae: Goetz,Madden & Dunn; JamesH. Goetz forHelena School Dist. No. 1,et al., Bozeman,Montana Leaphart LawFirm for Board of Public Education, Helena, Montana Charles Erdmann forMont. SchoolBoard Assoc., Helena,Montana Gough, Shanahan,Johnson & Waterman;Ronald Waterman argued forMontana High SchoolAssoc., Helena,Montana

Submitted: August 2511986 Decided: September 18, 1986

Filed: 

## SEP13

## 1986

ClerkMr. JusticeFred J. Weber delivered the Opinion of the Court.

This is an appeal of a summary judgment of the District Court for Lewis and Clark Countywhich 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 studentsor students with learning disabilities. The Helena high schools aremembers of the Montana High SchoolAssociation (MHSA)

# . TheMHSA requires a 1.0, or "D", grade average for participation in extracurricular activities. Its regulations permit member schools to adopt more stringentpolicies. TheNational CollegiateAthletic Association (NCAA)requires aminimum grade point averageof 2.0 to participate at the college level in practice, regular seasoncompetitionand athleticallyrelated financialaid during the first academicyear. Respondents adopted the 2.0 rule as an incentive for studentswho desire toparticipate in extracurricular activities. The 2.0 rule isa 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 improvementby students following the adoption of such apolicy. Relators brought an action in DistrictCourt 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 DistrictCourt ruled in favor of respondents. The DistrictCourt found the 2.0 rule to be "a reasonable, fair, equitable and non-discriminatory policy, promulgated for the purpose of implementingthe constitutionaland statutorymandated educational goals of the schooldistrict. 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 ofwhether or not the right to education itself is a fundamentalright. We are not ruling uponwhether the failure to offer any extracurricular activitiesmay result in a constitutionaldeprivation,nor whether extracurricular activities are in any way an indispensable component of the basic system of free quality publiceducation. 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 opportunitymay require some specific typesof funding. None of these issues isbefore us. The issue appealed concernsthe standardof reviewunder which the 2.0 rule will be considered. Equal protection analysis traditionally involves one of two standards. A state action which burdens a fundamentalright 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 CommunityUnionv. Lewis (~ont. 1986), 712 

## -

The relators contend that the right to participate in extracurricular activities is fundamentaland 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 thatholding,we conclude that participation in extracurricular activities is not a fundamental right under theU.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 DistrictJudge Murray said this Court hadrecognized extracurricular activitiesas an "integralpart of the totaleducationalprocess." 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, therewas a separateground forheightened constitutionalscrutiny. While we agree that extracurricular activities are part of the educational process, the case is not authority because of the marriage aspect. TheMoran decisionwasbased on language in a casewhich relators also cited,McNair v. SchoolDist. No. 1 (1930), 87 Mont. 423, 428,288 P. 188, 190:

Under the heading "Education," our Constitution declares that "itshallbe 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--thegood citizen, theman or womanwho is of the greatest value to the state,is the onewhose every faculty isdeveloped and alert. That case arose out of a taxpayer's objection to the constructionofa gymnasium and athletic field. This Courtheld the school board had been granted the authority to provide such facilities. The 'solemnmandate 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 improvemental,physical, andmoralpowers. This Court recently recognized that not all constitutionally important rights are fundamentalrights. The holding in Butte CommunityUnion 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 rightmust be found within Montana's Declaration of Rights or be aright "without which other constitutionally guaranteed rights would have little meaning." In the Matter ofC.H. (Mont. 1984), 683 P.2d 931, 940, 41 St.Rep. 997, 1007. Butte CommunityUnion, 712 P.2d at 1311. The right to welfarewas not foundwithinMontana's DeclarationofRights nor did we conclude it was a right without which other constitutionally guaranteed rights would have littlemeaning. 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 provisionsas 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 asystem 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 educationby the people ofMontana 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 SupremeCourt 1971Term

## - Forward: In Searchof EvolvingDoctrineon a Changing Court: A Model for aNewer Equal Protection,86Harv.L.Rev. 1 (1972),points out that where a statute impingeson a rightwhich 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.

# .. Inmy view, this result is the natural consequence of the limitations of the Court's traditional equal protection analysis. If a statute invadesa 'lfundamental"rightordiscriminates against a "suspect" class, it is subject to strict scrutiny. Ifa 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 ComrnunitvUnion. 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 students1right to participate in existing extracurricular activities. We furtherhold that this right isnot a fundamentalrightunder the Montana Constitution; but that such right is clearly subject to constitutional protection and that a middle-tier analysis is tobe 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 CommunityUnion, 712 P.2d at 1314. As in Butte CommunityUnion, our first inquiry is whether the classification is reasonable. Specifically, is the classificationof students eligible toparticipate 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 governmentalobjective. 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 studentsor studentswith learningdisabilities. While it is not based on studies showing improved grades for students operating under such a rule,it cannotbe denied that the rule is an incentive for those studentswho wish to participate in extracurricular activities. It also promotes adequate time to study for those studentswho have not maintained a 2.0 grade average. We conclude that the classificationis a reasonableone. Thepriority given to academic overnon-academicwork to the extent foundhere does not contradictthisCourt'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 extracurricularactivities ismore important than the achievement of average academicperformance. We conclude that the government interests in developing the full educational potential of each person and providing a basic systemof 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 JusticesMr. 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 importanceofeducation:

But neither is it merely some governmental "benefit" indistinguishable from other forms of social welfare legislation. Both the importanceof 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 educationand [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;Pfostv. 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 advancementof 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 theDeclaration of Rights such as the right to vote, right of participation, and right to know. Education is essential to even the most elemental exerciseofmany rightsguaranteed by theMontana Constitution. Education cannotbe characterized asmerely a benefit as

was welfare in Butte CommunityUnion 

## , supra. The right to

an education is not restricted in any manner. One need not qualify. Education is for all. Pursuant toArt. 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 constitutionalmandate and the fact that education is essential to the exercise of other constitutionally guaranteed rights, we should clearly hold thatbasic education isa fundamental right under theMontana 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 DistrictNo. 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 activitiesdid not meet even a rational basis test. The court cited language fromthis Court's decision in McNair v. SchoolDistrictNo. 1 (1930), 87Mont. 423, 288 P. 188: [Ilt is clear that the solemn mandate of the Constitution isnotdischarged by the mere training of themind; mentality without physical well-being does not make for good citizenship--the good citizen, the man or woman who is of the greatestvalue to the state, is the one whose every faculty isdeveloped 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. 87Mont. 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 schoolboard 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 ornon-academic, the statehas 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 canbe no denying it is sound incentive for those studentswho desire to engage in extracurricular activities. Further, itassures 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 eachperson." Respondents' 2.0 rule is a policy designed to achieve this constitutionaldirective.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 educationpossible. 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 thatMontana's educational financing system provide equal educationalopportunity. The subject of "equaleducational 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 thisdoctrine,the statemust show a compelling interest tomaintain 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 studentsare exempted from the rule. Relatorshave not shown that they are unable to meet the requirement. With the exemption noted for special education youngsters, all studentsare 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 JohnC. 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 apassing grade in this subject. The record at the end of the semester is final and scholastic deficienciesmay not be "madeup" in anyway. 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. Ifnot in conflictwithMontana High School Association policy, a studentwill have two (2)weeks tomake 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'soffice. On July 22, 1985, the respondent Board of Trustees enacted the following amendment to the academic eligibility requirement: If the grades of a studentwho isparticipating 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: SchoolBoard grammar, notmine.] Under the agreed statement of facts before this Court, 1) extracurricular activities mean activities which do not

earn credittoward graduation; 2) a 2.0 grade point average is a "C"average; 3) the rule sets ahigh standardwhich isrequired.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 forparticipation in interscholasticactivities. 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 forpractice,participation in regular

season competition,and financialaid. 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 SchoolDistrict. Until today, this Court had followed the rule that a student's right to participate in extracurricular activities

was constitutionallyprotected. Tobe sure,thatwas 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 abond issueproposed by School DistrictNo. 1 of that county "for the purpose of constructing an outdoorgymnasiumand athletic field in said district, furnishing and equipping the same." NcNair attacked theproposed bond issue on the grounds that the 1889 Constitutiondid 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.tionin 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 fivedays of theweek, and,usually, ninemonths 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 isnot discharged by the mere training of the mind; mentality without physical well-beingdoesnotmake for good citizenship--thegood citizen, the man or woman who is of the greatest value to the state is the onewhose every faculty isdeveloped and alert. Education may be particularly directed to either mental,moral orphysicalpowers or faculties,but in its broadest and best sense 

### it embraces them all. (Emphasisadded.) 87Mont. at 428,288 P. at 190. Following McNair, we had the case of Perkins v. Trask, (1933), 95Mont. 1, 23 P.2d 982. This was an action against the members of the School Board for the drowning death of a pupil ina swimmingpoolmaintained by the SchoolDistrictof Powell County. The trustees of the School District were immune from suit if they were performing a governmental function, and it wa.sthe contention of the plaintiff that because the trusteeshad authority construct swimmingpool, they were individually liable. In disposing of the argument that the trusteeswere not engaged in a governmental function, this Court said: Our Constitution imposes the duty upon the legislative assembly "to establish and ma.intaina 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 requiredby 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-tructandmaintain a swimming pool for theuse of thepupils.

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). 95Mont. at 7-8,23 P.2d at 984. Thusdid our Courthold that a swimmingpool 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 churchwas not entitled to a tax exemption for thepropertywhichwas used for educationalpurposes. This Court said:Our reviewof the record leadsus 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. SchoolDist. No. 1ofCascadeCounty, 87Mont. 423,

[428,]288 P.2d 188, 190, 69A.L.R. 866. (Emphasis added.) 144Mont. at 569, 570,399 P.2d at 93. Then came Granger

### v. Cascade County SchoolDist. (19721, 159 Mont. 516, 499 P.2d 780. In that case Cascade County SchoolDistricthad imposed fees in the grade schooland high school for such items as workbooks, chemistry notebooks, manual arts materials, musical instrument rentals, summer school,and others. The fees were attackedby 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: Isa given course or activity reasonablyrelated to a recognized academic and educational goal of the particular school system? If it is, it constitutes part of the free,public school system commandedby Art. XI, Sec. 1 of the Montana Constitution and additional fees or charges cannot be levied, directly or indirectly, against the student or hisparents. 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 grantinga constitutionallyprotected right to participate in extracurricular activities. InMoran v. School Dist. No. 7, Yellowstone County (D. Mont. 19721, 350 F.Supp. 1180, the federal court, recognizing the holding in McNair, stated: In relyingon this case thepresent 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 footballare "qenerally recognized 

### - as

### - a fundamental ingredient in the educational process." Kelly v. 

### -- Metropolitan County Board of Education of Nashville, etc., 293F.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.

(Emphasisadded.)

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 froma fundamental right,but it takes

a quantum jump. Thus, it was the law in this state until today that participation in extracurricular activitieswas 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 bythe School Board if a given course or activity is reasonably related to recognized academic or educationalgoal. Thatwas the state of the lawwhen the constitutional framers in 1972 in the new constitution adoptedArt. 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 "educationalpotential." For this must be true, if nothing else is, that the end of our educational systemmust be to develop students physically,mentally andmorally to meet the challengesof 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 sweetmix of associationwith their peers in other school endeavors, now branded as "nonessential"--drama, debate, cheerleading, drill team, student government,classand/or organizationalofficers,and yes, interscholastictrack, 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 extracurricularactivity!r, Jr, '3

We have never had before us a scheme of government so patently discriminatory. This Court has followed convoluted equalprotection analyses 

### - ad absurdum to a sillyresult. 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 arewith us today and tomorroware 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 belowmental education slaps at the three legs upon which the educational stool isbuilt. This rule is not rationally related to its object for two reasons: it is guilty of bad breadth, and it is not rationallyrelated to its intendedpurpose. 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 isone of thepunishments 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 ispatently irrational.

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Mr. JusticeWilliam H. Hunt, Sr: Iconcur in thedissent ofJustice Sheehy. H