             TO BE PUBLISHED IN THE OFFICIAL REPORTS


                  OFFICE OF THE ATTORNEY GENERAL

                        State of California


                       JOHN K. VAN DE KAMP

                         Attorney General


          --------------------------------------------
                                :

                OPINION         : 

                                :

                  of            :    No. 86-604

                                :

          JOHN K. VAN DE KAMP   :    December 17, 1987

            Attorney General    :

                                :

          RONALD M. WEISKOPF    :

       Deputy Attorney General :

                                :

----------------------------------------------------------------
          THE HONORABLE DON ROGERS, MEMBER OF THE STATE SENATE, has

requested an opinion on the following question:


          May a high school district admit students enrolled in

private schools during the regular school year to classes in the

district's core academic area summer school program?


                            CONCLUSION


          A high school district may lawfully admit students

enrolled in private schools during the regular school year to

classes in the district's core academic area summer school program,

provided such admissions do not provide a substantial benefit to

the private schools.


                             ANALYSIS


          Article IX, section 5 of the California Constitution

calls for the Legislature to "provide for a system of common

schools by which a free school shall be kept up and supported in

each district at least six months in every year . . . ." Pursuant

thereto, the Legislature has adopted a comprehensive scheme which

requires school districts to provide and maintain certain courses

of study in grades 1 through 12 (Ed. Code, Pt. 26, chs. 1 & 2, §

51000, et seq., § 51200, et seq.) in regular day schools for 175

days each year. (Id., § 41420.)1


       1
       All unidentified statutory references herein are to the

Education Code.


                                1.                          86-604

          The Legislature has also authorized the governing boards

of elementary school districts and high school districts to

maintain various types of summer school programs.      (§§ 51730,

37250-37253, respectively; California Teachers Assn. v. Board of

Education (1980) 109 Cal.App.3d 738, 745.) One of them, authorized

by section 37253, subdivision (a) (Stats. 1984, ch. 97), is a high

school district's program of "instruction in mathematics, science,

or other core academic areas designated by the Superintendent of

Public Instruction." In its regard we are asked whether a high

school district may admit pupils who do not attend the district's

public schools during the regular academic year but attend private

schools instead.2 We conclude that in its discretion a high school

district may permit such students to attend core academic summer

school classes it offers pursuant to Education Code section 37253,

subdivision (a), with some caveats.


          School districts have been granted general authority

under section 35160 to initiate and carry on any program or

activity compatible with law 3 and they have been granted broad

permissive authority to offer summer school programs if they wish.

(Cf. Pt. 22, ch. 2, art. 4, § 37250, et seq.; California Teachers


     2
      Under California's Compulsory Education Law (Ed. Code, tit.

2, div. 4, pt. 27, ch. 2, § 48200 et seq.), every person between 6

and 16, not otherwise exempt, is required to attend public full-

time day school.     (§ 48200.)    That obligation though may be

satisfied, inter alia, by attending a private full-time day school

that meets certain statutory standards.     (§§ 48220, 48222; cf.

Roman Cath. etc. Corp. v. City of Piedmont (1955) 45 Cal.2d 325,

330.) While we have loosely referred to students who attend such

schools as "private school students" it should be noted that their

status in the summer months is not that easily categorized. For

example, our generic categorization would not automatically apply

to a student who attended a private school during the prior

academic year but intends to attend public school in the fall. In

light of our conclusion that a school district may admit "private

school students" to classes in its core academic area summer school

program, we need not dwell on the "status" question.

     3
      Section 35160 provides:


          "On and after January 1, 1976, the governing board

     of any school district may initiate and carry on any

     program, activity, or may otherwise act in any manner

     which is not in conflict with or inconsistent with, or

     preempted by, any law and which is not in conflict with

     the purposes for which school districts are established."


(See also Cal. Const., art. IX, § 14; cf. 67 Ops.Cal.Atty.Gen.

(1980) 851, 853; 60 Ops.Cal.Atty.Gen. (1977) 206, 207-208; 60

Ops.Cal.Atty.Gen. (1977) 177, 180.)


                                 2.                         86-604

Assn. v. Board of Education,        supra,   109   Cal.App.3d   at   745.)

Section 37250 provides:


          "The governing board of a district maintaining one

     or more high schools may maintain a summer school at any

     of such high schools during the period between the close

     of one academic year and the beginning of the succeeding

     academic year in accordance with rules and regulations of

     the State Board of Education.


          "The term 'academic year' as used in this section

     means that portion of the school year during which the

     regular day high school is maintained, which period must

     include not less than the number of days of teaching

     required to entitle the district to apportionments of

     state funds." (Emphasis added.)4


The governing board of a high school district that offers summer

school instructional programs may also offer "summer school

programs for instruction in mathematics, science, or other core

academic areas designated by the Superintendent of Public

Instruction." (§ 37253, subd. (a).) 5 The other areas designated


         4
        "No mandatory requirement of summer school is found in

section [37250] and it must therefore be concluded that the

establishment and maintenance of summer school classes and programs

is only permissive rather than mandatory."     California Teachers

Assn. v. Board of Education, supra, 109 Cal.App.3d 738, 745.)

Under section 37252, however, a governing board of a district

maintaining any of the grades 7 through 12--i.e., high school

districts (cf. § 52; Meyer v. Board of Trustees (1961) 195

Cal.App.2d 420, 425)--must offer summer school programs for pupils

enrolled in those grades who have not met the district's adopted

standards of proficiency in basic skills (§ 37252, subd. (a); cf.

§ 51215, et seq.), but that mandate involves a program different

from the core academic area program discussed herein. It also does

not concern private school pupils, but only those attending the

public schools of the district. (Cf. § 51215, et seq.)

     5
      Section 37253 provides in pertinent part:


           "(a) The governing board of any school district

     which offers summer school instructional programs

     pursuant to this article [i.e., art. 4] may also offer

     summer school programs for instruction in mathematics,

     science, or other core academic areas designated by the

     Superintendent of Public Instruction.


             "(b)   . . . . . . . . . . . . . . . . . . . . . .


             "(c)   . . . . . . . . . . . . . . . . . . . . . .


                                   3.                                86-604

by the Superintendent include social science/history, English

language/arts, foreign language, fine arts and computer education.

(Letter, State Department of Education (Jan. 29, 1987).)


          As its name implies, core academic areas embrace those

subjects which are basic to a student's education: They are an

integral part of the high school curriculum (§ 51220, cf. § 51007)6

and but for the last, a student may not receive a diploma of

graduation from high school without completing them. (§ 51225.3.)7

Since under section 48222 a private school must "offer instruction

in the several branches of study required to be taught in the

public schools of the state," private high schools also have a duty

to offer instruction in the subjects covered by the core academic

area curriculum, and a student who attends a private high school

must take them as a prerequisite to graduation.         (§§ 48222,

51225.3; cf. In re Shinn (1961) 195 Cal.App.2d 683, 686-687.)


          School districts are reimbursed by the state for core

academic area summer school programs in accordance with a formula,

set forth in section 42239, which essentially limits the

reimbursement to an amount computed upon a factor of "5 percent of

the district's total enrollment for the prior fiscal year . . . ."

(§ 42239, subd. (e)(1).)8 In its discretion a district may enroll



         "(d) The Superintendent of Public Instruction shall

     adopt rules and regulations necessary to implement this

     section, including, but not limited to, the designation

     of academic areas other than mathematics and science as

     core academic areas."

     6
      Section 51200 provides that the provisions of chapter 2 of

part 28 (of div. 4 of tit. 2) prescribe the requirements for

courses of study in grades 1 through 12. (Cf. § 51014 "course of

study".)   Section 51220 provides that the course of study for

grades 7 through 12 include courses in the following areas:

(a) English, (b) social sciences, (c) foreign language(s),

(d) physical education, (e) science, (f) mathematics, (g) fine

arts, (h) applied arts, (i) vocational-technical education, and (j)

driver education.     Section 51007 stresses the importance of

computer education programs in strengthening technical skills.

         7
       Section 51225.3 provides that commencing with the 1986-87

school year, no pupil may receive a diploma from high school who in

grades 9 through 12 has not completed all of the following: three

courses in English, two courses in mathematics, two courses in

science, three courses in social studies (history, government and

civics), one course in visual or performing arts or foreign

language, and two courses in physical science.

     8
      Section 42239 provides in part:



                                4.                          86-604

more than 5 percent of its students in core academic summer school

programs as long as the state apportionment to the district does

not exceed that computed amount. ( Id., subd. (e)(1); cf. § 75

["may" is permissive].) In such a case, the district would have to

finance the extra enrollment from other resources. ( Id., subd.

(e)(2); cf., § 41000, et seq.)


          May a high school district then, admit private school

students to a summer school core academic program? We believe so.


          Section 48030 of the Education Code provides:


          "Any graduate of the elementary schools of this

     state and any other person who furnishes to the principal

     of the high school and to the county or to the city

     superintendent of schools having immediate jurisdiction



          "For the 1984-85 fiscal year and each fiscal year

     thereafter, the county superintendent shall compute an

     amount for each school district's summer school

     attendance in the following manner:


          "(d) Commencing in the 1984-85 fiscal year, summer

     school attendance shall be the sum of paragraphs (1) and

     (2).


           "(1) The hours of attendance in the categories

     identified in Section 42238.6 as it reads in the 1983-84

     fiscal year.


           "(2) Any summer school hours of attendance for

     mathematics, science, or other core academic areas

     designated by the Superintendent of Public Instruction.


          "(e)(1) A school district's maximum entitlement for

     reimbursement for pupil attendance in summer school

     programs offered pursuant to paragraph (2) of subdivision

     (d) shall be an amount equal to 5 percent of the

     district's total enrollment for the prior fiscal year

     times 120 hours, times the hourly rate for the current

     fiscal year determined pursuant to subdivision (c).


          "(2) A district may enroll more than 5 percent of

     its students, or may enroll students for more than 120

     hours per year in summer school programs offered pursuant

     to paragraph (2) of subdivision (d), as long as the total

     state apportionment to the district for those programs

     does not exceed the amount computed pursuant to paragraph

     (1). A district shall earn its entitlement at the per

     pupil hourly rate pursuant to subdivision (c)."

     (Emphases added.)


                                5.                          86-604

     over the high school, satisfactory evidence of his

     fitness for high school work, may attend high school in

     the district in which he resides under such regulations

     as the high school board may prescribe."


In 39 Ops.Cal.Atty.Gen. 149 (1962) we were asked whether the

governing board of an elementary school district might allow a

pupil who attends a full time private school to also regularly

attend one or more classes in a public elementary school.      We

concluded that in its discretion the governing board of the

district might allow a pupil to attend certain classes, including

summer school classes. ( Id. at 150-151.)      We find the same

discretion with high school districts.


          In that earlier opinion, we noted that no statute

prohibited an elementary school board from establishing special

classes and adopting rules and regulations designed to permit the

privately schooled child to attend one or more of them.         (39

Ops.Cal.Atty.Gen. at 150.) To the contrary, we viewed the broad

provisions of the Education Code that dealt with the authority of

elementary school districts to provide "special day and evening

classes and summer schools" as making it apparent that the

Legislature intended that the school board should have the power to

provide special classes for other than these pupils admitted to and

attending public elementary school.      (39 Ops.Cal.Atty.Gen. at

151.)9 We can extrapolate these answers to our situation.


          As just mentioned, in 39 Ops.Cal.Atty.Gen. 149, we

answered the cognate question with respect to elementary school

districts in the affirmative, finding such discretion supported by


    9
     Section 51730 authorizes the governing body of an elementary

school district to establish and maintain "special day and evening

classes and summer schools, consisting of special day or special

evening classes or both."; section 51731 authorizes it to convene

those classes "at such hours and for such lengths of time . . . and

at such period and for such lengths of time during the school year

as [it determines]"; and section 51732 authorizes the board to

admit to "the evening elementary schools and the special day and

evening classes of the elementary schools . . . such minors and

adults as [it judges] may profit from the instruction offered."

Since section 51730 contemplates that an elementary district's

summer schools might consist of special day and evening classes,

the authorization of section 51732 could apply and permit a board

to admit non-public school minors to them. (39 Ops.Cal.Atty.Gen.,

supra, at 151; accord 12 Ops.Cal.Atty.Gen. 214 (1948).) And so we

concluded that in its discretion an elementary school district

governing board may admit private school pupils to one or more

special classes it offers in its public school system, including by

implication, summer school classes. (39 Ops.Cal.Atty.Gen., supra,

at 149.)


                                6.                          86-604

the broad authority found in various statutes which authorize the

maintenance of the various elementary school programs. ( Id. at

151.) The core academic area program at issue here is offered by

a high school district "which offers summer school instructional

programs pursuant to [article 4 of chapter 2 of part 22 (§§ 37250­
37253) of the Ed. Code]." (§ 37253, subd. (a).) It is true that

no specific authority is found therein for a district to admit

private school pupils to    those programs, but we believe such

authority may be found in other sections of the Education Code:

The various statutes authorizing the various elementary school

classes, find almost-parallel provision with respect to high school

districts (i.e., § 37250 [authority to maintain summer schools], §§

48040, 52500, et seq. [adult schools and evening high schools]),

and from them we find a similar authority for high school districts

to admit private school pupils to their core academic area summer

school programs.


          Regarding the time factor, sections 52501 and 52502

authorize the governing board of a high school district to

establish "classes for adults"; section 52512 provides that

"classes for adults may be maintained in conjunction with day or

evening high schools . . . [or] day or evening adult schools"; and

section 52505 provides that classes for adults may be convened at

such hours and for such length of time during the day or evening

and at such period and for such length of time during the school

year as may be determined by the governing authority."10 Since the


     10
          Section 52502 provides:


           "The governing board of a high school district or

     unified school district may establish classes for adults.

     If such classes result in average daily attendance in any

     school year of 100 or more, such districts shall

     establish an adult school for the administration of the

     program."


             Section 52501 provides:


             "The governing board of any school district

     maintaining secondary schools shall have power with the

     approval of the Department of Education to establish and

     maintain classes for adults, except program and classes

     in outdoor science education and conservation education

     as the term is employed in Section 8760, for the purpose

     of providing instruction in civic, vocational, literacy,

     health, homemaking, technical and general education."


             Section 52512 provides:


            "Classes for adults may be maintained in conjunction

     with     day or evening high schools, day or evening


                                     7.                       86-604

"school year" begins on the first day of July and ends on the last

day of June" (§ 37200), it covers the time during which summer

school classes are offered (§ 37250, supra) and thus, as we have

concluded previously, special classes for adults may be maintained

in the summer months . . . ." (12 Ops.Cal.Atty.Gen. (1948) 214,

217.)


          With respect to the content of such classes, section

52504 provides that "classes for adults shall conform to any course

of study and graduation requirements otherwise imposed by law or

under the authority of law." (§ 52504, cf. § 52506.) We believe

that such clearly includes core academic area subjects. (See fns.

6, 7, ante & accompanying text.)


          Then, the "sixty-four dollar" factor--who may attend such

classes -- is resolved by sections 52500 and 48040. The former

provides that "[a]dult schools and evening high schools shall

consist of classes for adults" and that "[m]inors may be admitted

to such classes pursuant to section 48040." The latter section

reads:


          "Adult school and evening high schools shall be open

     for the admission of adults and of such minors as in the

     judgment of the governing board may be qualified for

     admission thereto. (Emphasis added.)


          To recapitulate, section 52512 permits adult classes to

be maintained in conjunction with day or evening high schools, and

sections 52500 and 48040 permit adult schools and evening high

schools to be "open for the admission of . . . such minors as in

the judgment of the governing board may be qualified for admission

thereto". We therefore accept the proposition that despite "the

lack of clarity, if not confusion, in the various sections of the

Education Code dealing with the establishment of classes during the



     community colleges, day or evening adult schools, or day

     or evening regional occupational centers."


          Section 52503 provides:


           "The governing board of a high school district or

     unified school district may establish and maintain one or

     more adult schools by resolution of the governing board."


          Section 52505 provides:


          "Such classes [for adults] may be convened   at such

     hours and for such length of time during the       day or

     evening and at such period and for such length    of time

     during the school year as may be determined        by the

     governing authority."


                                8.                           86-604

summer vacation period" (12 Ops.Cal.Atty.Gen., supra, 214, 215), a

high school district does have authority to establish and maintain

special classes during the summer vacation period in core academic

area subjects and admit pupils to it other than those who are

regularly enrolled in its public school system, if it deems them

"qualified for admission thereto" pursuant to section 48040. (Cf.

39 Ops.Cal.Atty.Gen., supra, at 151; cf. 12 Ops.Cal.Atty.Gen.,

supra, at 217.)    Such students "may attend [the] high school

[classes] . . . under such regulations as the . . . board may

provide." (§ 48030, supra.)11


          The size of a summer school program will principally be

determined by the available funds and student interest as indicated

by the number of applications for it.       When state funding is

available to accommodate the total number of applicants, including

those "private school" students who wish to attend, there would

appear to be no reason to exclude them.      In fact admitting the

private school students in that situation could benefit the

district and its regular students in several ways. To begin with

a district could find itself in the position of needing a minimum

number of students to enroll in summer school in order to make the

program feasible. If an insufficient number of its own students

applied for summer school enrollment, the district's authority to

admit private school students might provide the additional students

necessary to make it so. In such a situation, the primary benefits

would accrue to the district and its students who might not

otherwise be able to supplement their studies in a summer school

program. Then, too, the admission of the private school students

would increase the district's ADA used in calculating the state

funding it will receive for its next year's program (§ 46330) and

the benefit secured thereby will be enjoyed by the district and its

regularly enrolled students after the private school students

return to their private schools in the fall.


    11
      We also note that the Legislature has specifically spoken to

the issue of private school students attending classes in public

schools in section 37113. The section provides that the governing

boards of districts maintaining a high school "shall, subject to

space being available, admit pupils regularly enrolled in non-

public schools to enroll in vocational and shop classes and in

classes relating to the natural and physical sciences."      In 55

Ops.Cal.Atty.Gen. (1972) 393, 395, we concluded that the governing

board of a high school district would not have to provide extra

classes or additional teachers to accommodate the private students

under the section. (55 Ops.Cal.Atty.Gen., supra, 393, 395 [former

§ 5665].) In light of the express legislative directive to enroll

non-public school students in section 37113's limited high school

courses subject to space availability, we perceive the ability of

a district to enroll them in other classes as being within its

considered discretion given the circumstances.     (Cf. §§ 35160,

48040.)


                                9.                          86-604

          Different considerations arise however when the number of

applicants exceeds the capacity of the summer school program

(determined by the available funds).    In that case a system of

priorities must be developed to determine which applicants are to

be admitted to the summer school program. This is because section

42229, subdivision (e)(2) does not require a district to tap its

own funds or other resources to even accommodate all of its own

students who wish to participate in the program. It "may" do so,

but need not. (§ 42239, subd. (e)(2); cf. § 75;       Tomlinson v.

Pierce (1968) 178 Cal.App.2d 112, 117.)     In that situation the

governing board may determine priority for admission on any

reasonable basis consistent with constitutional and statutory

requirements.


          Accordingly, we conclude that a high school district in

its discretion may admit private school pupils to a core academic

summer school class subject to priorities it would establish given

the limits of available state funding for the program. But a word

of caution is necessary.


          As mentioned prefatorily, the core academic area program

involves subjects which are basic to a student's education, are

those which a private school is required to teach, and are among

those a student must complete to be graduated from the private high

school. (See fns. 6, 7, ante, & accompanying text.) When, as a

general proposition, private school students are allowed to satisfy

any of those subjects by taking a class in it elsewhere, as in a

public school's core academic program, the private school may be

relieved of its educational responsibility of "providing that class

[and the necessary classroom space, the necessary teachers and the

necessary support materials, including textbooks] for the student."

(Klein, California Education Code section 37113--Permitting

Parochial School Children to Attend Public School Classes Violates

the California Constitution (1984) 24 Santa Clara L.Rev. 947, 962;

cf. Aguilar v. Felton (1985) 473 U.S. 402, 406, 409; Grand Rapids

School District v. Ball (1985) 473 U.S. 373, 375-379, 396-397;

Americans United, etc. v. Porter (W.D. Mich. 1980) 485 F.Supp. 432,

435, 437; Snyder v. Charlotte Pub. Schools (Mich. 1984) 365 N.W. 2d

151, 161; Thomas v. Allegany County Bd. of Ed ., supra, 443 A.2d

662, 665-666; Norwood v. Harrison (1973) 413 U.S. 455, 463-464.

When such is the case, a public benefit accrues to the private

school which may run afoul of the constitutional prohibition.


          Article IX, section 8 of the California Constitution

prohibits the appropriation of public monies "for the support of .

. . [a] school not under the exclusive control of the officers of

the public schools." 12 The language of the section "has remained


     12
          Article IX, section 8 provides:


             "No public money shall ever be appropriated for


                                  10.                           86-604

unchanged since its proposal in the constitutional convention of

1878-1879 . . . [where] [i]t was approved without significant

debate." ( Board of Trustees v. Cory (1978) 79 Cal.App.3d 661,

665.)   The reports of the Convention proceedings indicate "the

delegates were seriously concerned with assuring that public funds

should only be used for support of the public school system they

were creating in article IX of the Constitution." (Ibid.)


          In California Teachers Assn. v. Riles (1981) 29 Cal.3d

794, our Supreme Court held that section 60315 of the Education

Code--which authorized the Superintendent of Public Instruction to

lend textbooks used in the public schools to students attending

non-profit, non-public schools--violated section 8 of article IX

(and section 5 of article XVI)13 of the California Constitution.

(29 Cal.3d at 801, 813.) Even though the textbooks were provided

to the students and not to the schools, the latter were inexorably

involved with the state program in selecting, receiving and storing

the books for their students. They directly benefitted from it,

and since the benefit involved the schools' fundamental purpose,

the education of the students, it could not be characterized as

being indirect, remote, or incidental to pass constitutional muster

under earlier cases which established that private schools might

receive indirect or incidental benefits from an expenditure of

public funds without a violation of article IX, section 8 taking

place (e.g., California Educational Facilities Authority v. Priest

(1974) 12 Cal.3d 593, 604; Board of Trustees v. Cory, supra, 79

Cal.App.3d 661, 666-667; Bowker v. Baker (1946) 73 Cal.App.2d 653,



     the support of any sectarian . . . school, or any

     school not under the exclusive control of the 

     officers of the public schools."

      13
       Article XVI, section 5 of the Constitution prohibits the

grant of anything in support of a sectarian school.             The

possibility that such religiously-affiliated or sectarian schools

would be involved herein is real. In Riles, the facts showed that

87 percent of the private school participating in the textbook loan

program under former sections 60315 and 60246 (therein declared to

be unconstitutional) were religious schools. (29 Cal.3d at 799.)

The State Department of Education's statistics for 1982-83 showed

that 64 percent of private schools (having ten or more students)

were religiously affiliated. (Enrollment and Staff in California

Private Elementary Schools and High Schools, Cal. Dept. of Ed.

1982-83; see also, Meek v. Pittenger (1975) 421 U.S. 349, 364 [75%

of Pennsylvania's compulsory attendance private schools eligible

for state loan of textbooks were religiously affiliated]; Aguilar

v. Felton, supra, 473 U.S. 402, 406 [92%]; Wolman v. Walter (1977)

433 U.S. 229, 234 [96%]; Klein, California Education Code Section

37113--Permitting Parochial School Children to Attend Public School

Classes Violates the California Constitution, op. cit. supra, 24

Santa Clara L.Rev. at 947 fn. 2.)


                               11.                          86-604

663, 666; compare Committee for Public Education v. Nyquist (1972)

413 U.S. 756, 771-772). (29 Cal.3d at 809-811.)


          Funding for core academic summer school programs involves

an appropriation of public funds (§ 42239), and private schools are

not "under the exclusive control of the officers of the public

schools." (Cf., § 48222, 60026.) A constitutional question could

thus arise as to whether private schools would "benefit" when their

students are able to satisfy required courses by taking them in a

core academic area class offered in a high school district's summer

school program, and whether the character of the "benefit" results

in an impermissible "support" to the private school under article

IX, section 8. ( California Teachers Assn. v. Riles, supra, 29

Cal.2d 794, 809.)


          We believe the Riles rationale has its limits. We do not

think that the courts would hold that every governmental program or

service which involves a private school's fundamental purpose of

the education of its students would be held unconstitutional as a

direct benefit to the private school.     For example, the use of

public libraries and museums by private school students often

provides education to such students by providing research materials

for school assignments. We do not think the courts would hold that

private school students could not use such public facilities in

ways that enhance their education because to do so would constitute

a direct benefit to the private schools they attend. Instead we

believe such public institutions would provide, if at all, only an

insubstantial benefit to the private schools which would be

considered "indirect" or "remote" under the Riles rationale.


          Accordingly, we do not believe the constitutional

impermissibility would be reached by private school students

occasionally attending summer classes in the public schools. The

private schools would still have their statutory obligation to

teach the required subject(s) (§ 48222) and any "benefit", if

indeed it could be characterized as such, from the student taking

the class(es) would be insubstantial. The situation would be quite

different from that in Riles because there would be no direct

connection between the state program and the schools to involve the

state in their teaching processes or otherwise foster an inexorable

connection with them. (Compare, Aguilar v. Felton, supra, 473 U.S.

402, 409; Grand Rapids School District v. Ball, supra, 473 U.S.

373,387-391, 395-397; Norwood v. Harrison, supra, 413 U.S. 455,

465-466 with Committee For Public Education v. Regan (1980) 444

U.S. 646, 654-657; Wolman v. Walter, supra, 433 U.S. 229, 236-238

& 251 fn. 18; Meek v. Pittinger, supra, 421 U.S. 349, 359-362.)

Rather, the active participants in the process would be the

students, their parents, and the district, and not the private

schools.   Indeed, it is not even clear that a nonpublic school

would necessarily be aware that one of its students was attending

a public summer school.



                               12.                          86-604

          A recent high court decision elucidates the issue.

Witters v. Wash. Dept. of Serv. For The Blind (1986) 474 U.S. 481

involved a challenge to the expenditure of public funds under a

program to provide special education and/or training to assist

visually handicapped persons overcome vocational handicaps in a

case involving a student pursuing a theological career. Challenge

was made on the ground that the expenditure in the situation

violated the state constitutional prohibitions against the

expenditure of public funds to support religion and using public

funds to support schools that were not free from sectarian

influence. (Compare, Cal. Const. art. XVI, § 5, art. IX, § 8.)

The Washington Supreme Court had held that in providing financial

assistance to a theology student, the program had the primary

effect of advancing religion. The high court disagreed.


          It noted that under the program aid went directly to the

student who transmitted it to the educational institution of his

choice. Thus the court said that any "aid" under the program that

might ultimately flow to a religious institution would do so "only

as a result of the genuinely independent and private choices of aid

recipients" ( 474 U.S. at 487), and it thus distinguished the case

from others, such as Grand Rapids School District v. Ball, supra,

and Wolman v. Walter, supra, where no meaningful distinction could

be made between aid to the student and aid to his or her school so

that to the former inevitably (and impermissibly) flowed to the

latter. (474 U.S. at 487, fn. 4.)


          The same result would undoubtedly be reached in a

California case involving Education Code section 56300, et seq.

which directs school districts to "actively and systematically seek

out all individuals with exceptional needs, ages 0 through 21

years, including children not enrolled in public school programs,

who reside in the district" for assessment of their needs, the

planning of individualized instructional programs and referral for

instruction or other services. The Legislature has realized that

such aid would be provided the children and not their private

schools.


          Similarly in the situation presented herein, it would not

necessarily follow that because a private school student might

benefit from a public school summer program that his or her private

school would also automatically "benefit" thereby. In fact since

the content and instructional methods of the summer school classes

would remain at all times within the control of the school

district, it is possible that the courses could even conflict with

the approach of the private school

. 

          There are some situations when the constitutional hurdle

might act as a bar. For example where attendance by private school

students at a public summer school affects the educational program

of the private school, or where the number of its students taking

classes in required subjects in summer school is such that the


                               13.                          86-604

school might be relieved of its responsibility to teach them in

significant respects, one could no longer say with certainty that

the school would not "benefit" thereby or that the benefit would be

"indirect" and not involve its educational mission. The same would

be true where a connection between the private school and the

public district is such that the two are inextricably intertwined

in formulating or providing the educational effort for the

students. But such happenings would depend on the circumstances

involved in a particular situation. As a general matter though, we

do not believe that the ordinary summer school scenario would work

such significant impacts of material "benefit" to private schools.


          With the caution as to the constitutional prohibition on

state support for non-public schools in mind then, we conclude that

a high school district may admit private school students to classes

in its core academic area summer school program along priorities it

develops to meet constraints of available funding.


                            * * * * *





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