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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: Decided: Filed:

August 251 1986 September 18, 1986

SEP 13 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. Did the

Relators appeal and raise the following issue:

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 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 a fundamental

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 Associ-

ation (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. 2.0 rule to be "a The District Court found the fair, equitable and

reasonable,

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.

. ."
We

Amicus briefs were filed by several parties, some of whom addressed wider issues than the one now before us.

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. 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 A None

analysis traditionally involves one of two standards.

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. constitutional analysis has A third middle-tier level of been recently recognized in

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

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. School District v. Rodriguez (1973), 411 U.S. 1278, 36 L.Ed.2d 16. San Antonio 1, 93 S.Ct.

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, In

Yellowstone County

(D.Mont. 1972), 350 F.Supp.

1180.

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, system of

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