The Caldwell School District is the newest member on a list of school districts that charge fees for athletics when it approved “a $100 pay-to-play athletics fee.”  (Idaho Education News, July 9, 2024).

We contend such fees violate Article IX, Section 1, of the Idaho Constitution which states (with italic emphasis added):

LEGISLATURE TO ESTABLISH SYSTEM OF FREE SCHOOLS. The stability of a republican form of government depending mainly upon the intelligence of the people, it shall be the duty of the legislature of Idaho, to establish and maintain a general, uniform and thorough system of public, free common schools.

Every participation/”pay to play” fee—for athletics, activities, or classroom instruction—epitomizes the legislature’s failure to meet its constitutional “duty” to “ESTABLISH SYSTEM OF FREE SCHOOLS.”

The legislature claims it is meeting its constitutional duty, but whenever a district holds a special operation or bond levy, or imposes participation/”pay to play” fees, proves otherwise.

Participation/”pay to play” fees have been litigated in the past and continue today in state and federal courts.

The first court case was all about a mandatory $25.00 fee required by the Minidoka County School District, half of which was for textbooks and a graduation transcript, and the other half was for social and extracurricular activities.

A family named Paulson sued the Minidoka County School District over the mandatory $25.00 fee.

In Paulson v. Minidoka County School District (1971), the Idaho Supreme Court ruled, “The school and the entire product to be received from it by the student must be ‘free’.”

The Paulson court also established a “necessary element” test.

A necessary element, wrote the court, is “. . .peculiar to education, indistinguishable from other fixed educational expense items such as school building maintenance or teachers’ salaries”.

The Paulson court concluded, “schools may not charge students for such items because the common schools are to be ‘free’ as our constitution requires.”

Included in Minidoka County’s $25.00 fee was $12.50 for social and extracurricular activities.   Importantly, at the time of Paulson, Idaho school districts were not charging participation/”pay to play” fees for any activity or sport.

The Paulson court left what could be defined as “social and extracurricular” unanswered.  The court stated, “Because of the delicacy and difficulty in resolving constitutional problems we settle questions on a case-by-case basis.”

In today’s education, the inclusion of activities and athletics as part of the “entire educational product” is not a “delicate or difficult” question to answer.

Activities and athletics have become, in the current state of public education finance and program expansion, co-curricular, making them a necessary element, part of the entire educational product.  Bands, debate teams, choirs, cheerleaders, and every athletic program proudly advertise the school district name and colors.

Activities and athletics are celebrated with pride, as cohesive forces of school and community unity and success.

Activities and athletics are, unquestionably, a necessary element of every school and school district.  If this were not the case, school districts would not be spending tens of millions on gymnasiums, tracks, stadiums, equipment, and salaries for bus drivers, managers, trainers, coaches, and athletic directors.

Today’s activities and athletic programs, as necessary elements to the entire education product have been broadened by Title IX, by the Americans with Disabilities Act (ADA), by special education law, by regulatory agencies for every conference, league, and championship event.

Activities and athletics are important elements in “the entire education product” and must be offered free, without any barriers to participation.

Fees are a major barrier to participation.

This is especially true for students marginalized by race, gender, ethnicity, disability, or income.

Participation/”pay to play” fees, in many cases, have reached thousands of dollars.  Fees for high school cheerleading, for example, are among the highest, easily over a thousand dollars.

Treasure Valley parents with more than one student typically face a participation/”pay to play” fee  base of several hundred dollars.

Such fees limit participation and advance a growing trend of at the secondary level of participation based on affluence as opposed to an encouraging, open invitation to all students.

In defense, school district officials argue that they offer “waivers” or “scholarships” or even “school work in lieu of fees”.

This argument was laid to rest in Joki v West Ada, a 2012 case about fees for high school courses.

A Fourth District Court ruled, “Where a class is offered as part of the regular academic course of the school, the course must be offered without charge.”

The Court also ruled, “The fact that the fees may be waived in the discretion of the principal of the building does not render them constitutional.”

This ruling should have logically been adopted by districts across Idaho.  Incredibly, it was not, forcing additional litigation.

In Joki v. Meridian Joint School District No. 2 (2017), the Idaho Supreme Court stated, “It follows that in order for an educational service to satisfy the Constitutionally Based Education Claim Act (CBECA), it must be free.  According, Joki’s claim relating to the fees levied by the school districts fall squarely with the definition of a CBECA claim because of the legislature’s duty to provide free common schools.”

Activities and athletics as a necessary element, a part of the entire educational product have long been supported by research.

The US Department of Education reported—A 2002 study found students who spent no time in extracurricular activities in high school were 49 percent more likely to use drugs and 37 percent more apt to become teen parents.

A 2007 study in Medicine & Science in Sports and Exercise found students who were active in sports like soccer, football and even skateboarding performed 10 percent better in core subjects like math, science, social studies and language arts. . .

In 2017, the Journal of the Society for Social Work and Research Volume 8, Number 3, School Sports Participation and Academic Achievement in Middle and High School, found school sports participation was significantly associated with academic achievement, positive body-image perceptions, and self-esteem. . .

We could go on, but the above acknowledge what every student, parent, community, and school district knows—a state, a community, or a school district without activities and athletics shortchanges its children.

Activities and athletics clearly advance the total educational product by way of teaching values and skills and promoting a school district’s mission statement and the educational culture of the entire school, thereby giving an educational benefit to every student.

Activities and athletics are a necessary element of the educational process.

Participation/”pay to play” fees represent a failure to “establish and maintain a general, uniform and thorough system of public, free common schools.”

Idaho’s legislators and school board members take an oath of office to support and defend the Idaho Constitution.   Funding the mandates of the Constitution will provide an example to Idaho students, to all of us, that the Constitution must be honored.

Until then, many parents must decide if they can afford to pay fees in order for their child to participate in activities or athletics has grounds for a lawsuit.

A trip to the Idaho Supreme Court should not be necessary to determine what the word “FREE” means.

Jerry L Evans is a former State Superintendent of Public Instruction.
Rannels and Joki are former Idaho school district superintendents.
Huntley is a practicing lawyer and former Idaho Supreme Court Justice.

CONTACT INFORMATION:
Jerry L. Evans              208-866-0817
Robert Huntley             208-850-8835  Text message preferred
Russell Joki                  208-866-2111
Robert Ranells             208-512-2846