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ATTORNEYS FOR APPELLANTS
Jacquelyn Bowie Suess Kenneth J. Falk Indiana Civil Liberties Union Indianapolis, Indiana

ATTORNEYS FOR APPELLEE
Patrick A. Shoulders Robert L. Burkhart Ziemer Stayman Weitzel & Shoulders, LLP Evansville, Indiana

ATTORNEY FOR AMICUS CURIAE INDIANA SCHOOL BOARDS ASSOCIATION
Lisa F. Tanselle Indianapolis, Indiana

______________________________________________________________________________

In the

Indiana Supreme Court
_________________________________ No. 82S01-0409-CV-428 FRANK NAGY, ON BEHALF OF HIMSELF, HIS CHILDREN, WESTON NAGY AND JORDAN NAGY, AND THOSE SIMILARLY SITUATED, AND SONIA BRACKETT, ON BEHALF OF HERSELF, HER CHILDREN, CORY BRASHEAR AND CAMERON BRACKETT, AND THOSE SIMILARLY SITUATED, Appellants (Petitioners below), v. EVANSVILLE-VANDERBURGH SCHOOL CORPORATION, Appellee (Respondent below). _________________________________ Appeal from the Vanderburgh Superior Court, No. 82D03-0210-PL-4388 The Honorable J. Douglas Knight, Judge _________________________________ On Petition To Transfer from the Indiana Court of Appeals, No. 82A01-0308-CV-299 _________________________________ March 30, 2006 Rucker, Justice.

The question presented is whether the mandatory $20 student services fee imposed on students enrolled in a school corporation violates Article 8, Section 1 of the Indiana Constitution. We conclude it does.

I. Facts and Procedural History

The facts of this case are largely undisputed. students in grades Kindergarten through Twelve. 1

For the 2002-2003 school year, the

Evansville-Vanderburgh School Corporation ("EVSC") imposed a $20 student services fee on all EVSC acknowledges that the fee was

imposed as part of an attempt to balance its budget, which had a $2.3 million deficit in 2002 and a predicted $5.5 million deficit for 2003. The fee, along with state funds and local property tax receipts, was deposited in EVSC's general fund and was used to pay for, among other things, a coordinator of student services, nurses, media specialists, alternative education, elementary school counselors, a police liaison program, and activities such as athletics, drama, and music. The $20 fee is charged to every student including students who qualify for the free or reduced school lunches and textbook programs. If the fee is not paid, a notice is sent to the student's parents notifying them that if payment is not received by a date certain the matter would be referred to a law firm for collection and attorney fees of up to $100 would be charged to the parent regardless of whether legal action is taken.

Frank Nagy and Sonja Brackett are residents of Evansville whose children are enrolled in public schools under EVSC's jurisdiction. EVSC charged Nagy and Brackett a $20 fee for each of their children enrolled for the 2002-2003 academic year. The Brackett children qualify for the reduced or free school lunch and textbook programs.

In October 2002, on behalf of himself and others similarly situated, Nagy filed a class action complaint seeking declaratory and injunctive relief. The complaint was later amended to

During the 2002-2003 school year there were 23,127 students enrolled in schools under the jurisdiction of EVSC. They consisted of twenty elementary schools, ten middle schools, five high schools, and three alternative schools. Appellant's App. at 84-85.

1

2

add Sonja Brackett. 2 Among other things the complaint alleged that the imposition of the fee violated Article 8, Section 1 of the Indiana Constitution, as well as the due process clause of Fourteenth Amendment to the United States Constitution. EVSC responded with a motion to dismiss the Fourteenth Amendment due process claim, which the trial court initially granted. In the meantime the parties filed cross-motions for summary judgment. After conducting a hearing the trial court reconsidered its earlier ruling and granted summary judgment in favor of Brackett, on grounds that a fee imposed upon students who qualify for the reduced or free school lunch and textbook programs violated the due process clause of the Fourteenth Amendment. However, the trial court granted summary judgment in favor of EVSC on Plaintiffs' Indiana Constitutional claim. The Plaintiffs appealed and EVSC cross-appealed.

In a divided opinion, the Court of Appeals reversed the judgment of the trial court, holding that the $20 fee violates Article 8, Section 1 of the Indiana Constitution because it is used to pay for what amounts to tuition. Because the court found the fee in violation of the Indiana Constitution, it did not reach the federal due process claim. 3 See Nagy v. EvansvilleVanderburgh Sch. Corp., 808 N.E.2d 1221 (Ind. Ct. App. 2004). We agree that the student services fee is inconsistent with Article 8, Section 1, but for reasons slightly different than those expressed by the Court of Appeals. Having previously granted transfer, we now reverse the judgment of the trial court.

II. Discussion

A.

Rules of Constitutional Construction Article 8, Section 1 provides: "Knowledge and learning, generally diffused throughout a

community, being essential to the preservation of a free government; it shall be the duty of the General Assembly to encourage, by all suitable means, moral, intellectual, scientific, and
2

For the sake of clarity we refer to Nagy, Brackett, and additional named and unnamed plaintiffs collectively as "Plaintiffs."

3

Noting the Court of Appeals' decision not to address the Fourteenth Amendment issue, EVSC invites this Court to "consider the federal substantive due process claim" because of its importance. Appellee/Cross-Appellant Pet. to Trans. at 13. Deciding this case on Indiana Constitutional grounds we decline the invitation to address the federal claim.

3

agricultural improvement; and to provide, by law, for a general and uniform system of Common Schools, wherein tuition shall be without charge, and equally open to all." Ind. Const. Art. 8,

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