No. 96-490
TAMI KAPTEIN, a minor child, by and through
Plaintiffs and Appellants,
Defendant and Respondent.
APPEAL FROM:   District Court of the Ninth Judicial District,
In and for the County of Pondera,
The Honorable Marc Buyske, Judge presiding.
For Appellants:
Cameron Ferguson; Hartelius, Ferguson, Baker & Kazda
Great Falls, Montana
For Respondent:
Ronald F. Waterman and Catherine M. Swift; Gough,
Shanahan, Johnson & Waterman, Helena, Montana
For Amicus:
Janice Frankino Doggett, Attorney at Law, Helena,
Montana (for Montana School Boards Association)
Elizabeth A. Kaleva, Attorney at Law, Helena,
Montana (for School Administrators of Montana)
Dennis Moreen, Attorney at Law, Helena, Montana
(for Montana Education Association)
Geralyn Driscoll, Attorney at Law, Helena, Montana
(for Office of Public Instruction)
Jock O. Anderson, Attorney at Law, Helena, Montana
(for Montana High School Association)
Submitted on Briefs: January 16, 1997
Decided: February 6, 1977
Justice W. William Leaphart delivered the Opinion of the Court.
     Kathy and Marvin Kaptein (Kapteins) are residents and
taxpayers in Conrad, Montana.  In October of 1995, the Kapteins
filed suit in the Ninth Judicial District Court, Pondera County,
asking the court to enter a judgment requiring that the Conrad
School District Board of Trustees allow their 7th grade daughter,
Tami, to participate in the public school sports programs.  Tami
was, and is, a student at the Conrad Christian School.  The private
school in which Tami is enrolled offers ski days and arranges for
basketball practices and an intramural game.  The Conrad area
offers some additional athletic programs which Tami participates
in, for example, soccer and softball.  In addition, Tami seeks to
play on the public school athletic teams for social purposes
related to friendship and team camaraderie.  Tami participated in
the public school girls' sports program during the 1994-95 school
year.  This participation was without the approval of the
Superintendent or the Board of Trustees.  Her participation in the
public school program was terminated upon discovery by the Board of
Trustees.  The Board of Trustees refused to allow Tami to further
participate in the public school sports programs since the Boardūs
policy limited participation to students enrolled full time in
public school.  The Kapteins contend that the schoolūs policy is
unconstitutional under the provisions of Article X, Section 1 of
the Montana Constitution.  On November 20, 1995 the District Court
issued a preliminary injunction which allowed Tami to play 7th
grade volleyball.  Subsequently, both parties moved for summary
judgment.  The District Court upheld the constitutionality of the
Boardūs policy, granted summary judgment for the Conrad School
District and dissolved the preliminary injunction.  The Kapteins
then sought an injunction pending appeal under Rule 40, Montana
Rules of Appellate Procedure, which this Court denied.  We affirm
the District Courtūs grant of summary judgment.
     The Kapteins based their constitutional argument on Article X,
Section 1, of the Montana Constitution, which states:
     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. 
Citing our decision in State, ex rel., Bartmess v. Board of
Trustees (1986), 223 Mont. 269, 726 P.2d 801, Kapteins contend that
Tami has a constitutionally protected right to participate in
public school extracurricular activities and that this Court should
apply a middle-tier analysis in balancing Tamiūs right to
participate against the governmental interests to be served by
infringing that right.  The School District takes the position that
middle-tier analysis is not appropriate in this case and, even if
middle-tier analysis were applied, the schoolūs educational
interests in permitting only students enrolled in the school
district to participate in school-sponsored extracurricular
activities outweighs any right that Tami may have to participate. 
     Our review of cases from other jurisdictions reveals no
decisions, federal or state, which recognize a constitutional right
of a nonenrolled student to participate in a public school sports
      The United States Constitution, unlike the Montana
Constitution, does not explicitly or implicitly guarantee a right
to education.  San Antonio Indep. School Dist. v. Rodriguez (1973),
411 U.S. 1, 35, 93 S.Ct. 1278, 36 L.Ed.2d 16.  In keeping with the
Rodriguez precedent, the federal courts have applied a rational
relationship test to claims that private school students have been
unconstitutionally excluded from participating in public school
extracurricular activities.  In Denis J. OūConnell High School v.
Virginia High School League (1978), 581 F.2d 81, a parochial school
sought admission to the Virginia High School League which regulates
and governs all athletic, literary and debating contests between
the public high schools in the state of Virginia.  The private
school contended that, in restricting membership to public high
schools, the League, and thus the state, was violating equal
protection.  The Fourth Circuit held that, since there was no
fundamental right or suspect classification involved, the
classification would be subject to the rational relationship test. 
Denis J. O'Connell High School, 581 F.2d at 84.  The court held
that the classification was rationally related to the League's
policy of limiting student transfers to defined geographic areas
and of discouraging the recruiting of students for purposes of
athletic competition.  Since private schools in Virginia suffer no
geographic limitation with respect to the areas from which they may
draw students, the court held that admission of private schools
into the League would undermine that policy.  Denis J. O'Connell
High School, 581 F.2d at 84-87  Accord Valencia v. Blue Hen
Conference (D. Del. 1979), 476 F.Supp. 809, 826 (holding that the
public high school association's exclusion of private schools was
supported by legitimate interests in preventing athletic recruiting
and maintaining a competitive balance among schools within the
     We note the following three decisions from foreign
jurisdictions which address the question of whether a nonenrolled
student has a right under state law to participate in public school
courses or extracurricular activities.
     In Swanson v. Guthrie Independent School Dist. No. I-1, et al.
(D. Okla. 1996), 942 F.Supp. 511, parents who were home schooling
their daughter sought permission from the board of education to
have their daughter attend the public school on a part-time basis. 
The board denied the request and adopted a policy that required all
students enrolling in the Guthrie Public Schools to do so on a
full-time basis.  Swanson, 942 F.Supp. at 512.  The parents
challenged the policy on various grounds including a contention
that the policy violated the childūs constitutional right to attend
public schools and her right to a free public education under the
Oklahoma Constitution which provides constitutional guarantees of
a "system of public schools . . . open to all of the children of
the state" as well as a "system of free public schools wherein all
the children of the state may be educated."  Swanson, 942 F.Supp.
at 514.  The court acknowledged that under Oklahoma law, home
schooling is considered an alternative education option.  The court
concluded, however, that the parents were seeking to "judicially
abrogate the equivalency requirement for home schooling and replace
it with an absolute right to use public schools to supplement the
home school education.  [Citation omitted.]  This the Court will
not do."  Swanson, 942 F.Supp. at 515.  In rejecting the parents'
contention that the Oklahoma Constitution gave them the right to
choose public school courses on a piecemeal basis, the court said:
          Plaintiffs have failed to provide any evidence that
     defendants have deprived Annie of her right to a free
     public education.  Annie has always been and continues to
     be entitled to a free public education.  Nor have
     Plaintiffs provided any support for their contention that
     they may "pick and choose" what courses Annie will take
     in the public schools.  Oklahoma law is clear that the
     local boards of education have the power to "[m]aintain
     and operate a complete public school system of such
     character as the board of education shall deem best
     suited to the needs of the school district." 
     Okla.Stat.Ann.tit. 70  5- 117(A)(3) (West Supp.
     1995-96).  The Oklahoma Legislature has also vested the
     State Board of Education with the authority to determine
     curricular standards for public schools.  See
     Okla.Stat.Ann.tit. 70  11-103.6 (West Supp. 1995-96) 
     ("By February 1, 1991, the State Board of Education shall
     adopt curricular standards for instruction of students in
     the public schools of this state that are to be
     implemented not later than the 1993-94 school year."). 
     In light of existing Oklahoma law, the Court finds
     Plaintiffs' reliance on School Board, District No. 18 of
     Garvin County v. Thompson, 24 Okla. 1, 103 P. 578 (1909)
     is misplaced.  [Footnote omitted.]  The Court also
     declines to adopt Plaintiffs' strained interpretation of
     Oklahoma law to create a right to a free part-time public
Swanson, 942 F.Supp. at 514.
     In Thomas v. Allegany County Board of Education
(Md.Ct.Spec.App. 1982), 443 A.2d 622, 626, the appellate court
applied heightened scrutiny to the claims of private school
students who requested to participate in an all-county music
program offered to full-time students enrolled in the public
schools.  The court applied the "compelling state interest" test to
determine whether the boardūs rule limiting participation to school
district enrollees violated the equal protection clauses of the
state or federal constitution.  Thomas, 443 A.2d at 626-27.  The
court utilized the heightened scrutiny test because the private
school students claimed that their exclusion infringed upon their
freedom of religion under the free exercise clause of the First
Amendment.  The court concluded that the school district had
satisfied the compelling state interest test in view of the "de
minimi burden on the appellantūs freedom of religion and the
legitimate interest in avoiding administrative inefficiency." 
Thomas, 443 A.2d at 626. 
     Although the administrative impact of a decision
     mandating the participation of the private students into
     this public school program appears to us to be trivial,
     the precedent as it affects the broader spectrum of
     school administration is of a far more deleterious
     nature.  With the opening of such "Pandoraūs box", there
     would be no device to preclude, for example, a private
     school having difficulty securing a qualified chemistry
     teacher from unilaterally deciding to transport the
     entire student body to a nearby public school for their
     chemistry education.  The potential for administrative
     disruption is obvious.  Thus, while we may agree that
     little if any administrative hardship would inure to the
     Board in permitting these three students to participate
     in the All-County Band, it is not for this Court to hold
     that the Board must admit them, in view of the broader
     implications involved.  We think the school
     administrators and not courts, should decide how much
     administrative disruption is too much.
Thomas, 443 A.2d at 625-26.
     The plaintiffs in Thomas also argued that, since the Maryland
Constitution guaranteed "a thorough and efficient System of Free
Public Schools . . ." that they, as school-age children, were
entitled not merely to be admitted to the public schools, but to
any part or portion of the public school system which they choose.
Thomas, 443 A.2d at 627.  The court rejected this contention in
view of the unreasonable burden such construction would place on
the efficient administration of the public school system.  The
court recognized that if the legislature or school board wished to
permit participation by parochial students, the court saw no
impediment but did not think it was for any court to mandate the
admission of those students. Thomas, 443 A.2d at 627.
     Kapteins cite to the Michigan decision in Snyder v. Charlotte
Public School District, Eaton City (Mich. 1984), 365 N.W.2d 151. 
In Snyder, the Michigan Supreme Court held that a private school
student was entitled to enroll in a public grade school band
course.  In Snyder, the Michigan Supreme Court specifically
declined to rule on the basis of constitutional arguments, relying
instead upon a 60-year history of such sharing between public and
private schools in Michigan and an interpretation of Michigan
statutory law which permitted the "sharing" of school programs.
Snyder, 365 N.W.2d at 157.  In recognition of the potential problem
acknowledged by the Maryland court in Thomas, i.e. private school
students picking and choosing among various core academic courses,
the Michigan court limited its decision to certain nonessential
elective courses like band, art and shop.  Snyder, 365 N.W.2d at
     Kapteins suggest that we should decide this case solely upon
the basis of Tamiūs right to participate in extracurricular
activities; that we should not consider any "worse case scenarios,"
and that we can, as the Michigan court did, narrowly craft a
decision recognizing a right to participate only in certain
nonacademic activities such as sports, shop, band and art.  Given
that Kapteins are asserting a constitutional right to the "full
educational potential of each person" under Article X, Section 1,
of the Montana Constitution, Tami's appeal cannot be decided in
such a vacuum.  If Tamiūs right to participate in extracurricular
activities outweighs the School Districtūs interest in limiting
participation to enrolled students, then Tami will not be the only
nonenrolled person entitled to partake of the public school
programs.  Home-schoolers, dropouts and adults would have a right
equal to that of private school students such as Tami Kaptein to
participate in school programs on a part-time or  piecemeal basis. 
Furthermore, as recognized by the Maryland court in the Thomas
decision, there would be nothing preventing a private school from
unilaterally deciding to transport its entire student body to the
public school for purposes of taking an academic course such as
computer science.  Thomas, 443 A.2d at 626.
     Having reviewed some of the relevant decisions from elsewhere
around the country, we turn to a discussion of two Montana
decisions which address a studentūs right to participate in
extracurricular activities:  Moran v. School District #7
Yellowstone County (D. Mont. 1972), 350 F.Supp. 1180 and State, ex
rel., Bartmess v. Board of Trustees (1986), 223 Mont. 269, 726 P.2d
     In 1972, the United States District Court for the District of
Montana was presented with an issue as to whether a public school
could, pursuant to school policy, prohibit a student from
participating in extracurricular activities because the student was
married.  Moran, 350 F.Supp. at 1181-82.  Moran argued that, in
violation of the equal protection clause, the policy discriminated
against married persons without any reasonable basis.  The school
district argued that the policy was justified as it helped
discourage teenage marriages and helped those students who did
marry to achieve academic success.  Moran, 350 F.Supp. at 1183. 
The court rejected these rationales, stating:
     There is no legislative authority for school board action
     in the area of matrimony.  What married persons do with
     their time outside of school and how they discharge their
     matrimonial responsibilities is outside the statutory
     authority of the school board.
Moran, 350 F.Supp. at 1186.  Judge Murray then went on to point out
that if encouraging academic success of married students is the
stated goal, that goal could be achieved in a nondiscriminatory
fashion by tying participation in extracurricular activities to
academic performance for all students, not just married students. 
     Further, a simple requirement that those unable to keep
     up academic work may not participate in extracurricular
     activities would have the same effect as limiting married
     students to academic work if the extra activities are the
     cause of the academic failure but this of course would be
     in no way discriminatory.  This simple and easy method of
     ensuring that participation in extracurricular activities
     by any student is not done at the expense of his academic
     work dramatizes the prejudicial and invidious effects of
     the Boardūs rule.
Moran, 350 F.Supp. at 1186. 
     For the above reasons, the federal district court issued a
preliminary injunction restraining the board from enforcing its
rule excluding married students.  Moran, 350 F.Supp. at 1187.
     Fourteen years later, the Helena School District adopted the
very policy envisioned in Moran.  That is, the Helena District
integrated academic performance and extracurricular activity when,
for purposes of furthering academic achievement, it adopted a
policy requiring that no student (regardless of marital status)
could participate in extracurricular activities unless he or she
maintained a 2.0 grade point average.  Bartmess, 726 P.2d at 802. 
The relators in Bartmess argued that the right to participate in
extracurricular activities was a fundamental right and challenged
the 2.0 rule as being a denial of equal protection and equal
educational opportunity.  Bartmess, 726 P.2d at 802.  Without
addressing the question of whether education itself is a
fundamental right, we held that participation in extracurricular
activities was not a fundamental right; that the claim warranted a
middle-tier analysis and that the 2.0 rule did not violate either
the equal protection clause or the equal educational opportunity
clause found in Article X, Section 1, of the  Montana Constitution. 
Bartmess, 726 P.2d at 804-805.  
     We determine that Kapteins' claim of a right to participate,
like the relators in Bartmess, must be analyzed under a middle-tier
analysis.  We recognized in Bartmess that a studentūs right to
participate in extracurricular activities, although not a
fundamental right, is "clearly subject to constitutional
protection."  Bartmess, 726 P.2d at 805.  Under a middle-tier
analysis there must be a "balancing of the rights infringed and the
governmental interest to be served by such infringement."  Butte
Community Union v. Lewis (1986), 219 Mont. 426, 434, 712 P.2d 1309,
1314.  Thus, in the present context, the  right to participate must
be balanced against the School Districtūs interests in restricting
participation to students enrolled in the public school system. 
Consistent with the middle-tier analysis conducted in Bartmess, we
must first determine whether the classification based upon enrolled
students is reasonable.  We then examine whether the governmental
interest in making this classification based upon enrollment is
more important than Tami Kapteinūs interest in participating in
existing extracurricular activities. 
     As to the "reasonableness" of classifying students based upon
whether they are enrolled in the public school system, we note that 
Article X of the Montana Constitution places a heavy emphasis on
the concept of an educational "system."  Article X, Section 1(1),
states that it is the goal of the people to "establish a system of
education which will develop the full educational potential of each
person."  Article X, Section 1(3), provides: "The legislature shall
provide a basic system of free quality public elementary and
secondary schools."  Article X, Section 9(1), creates a state board
of education responsible for planning and evaluating programs for
the stateūs "educational systems."
     Article X, Section 9(3), creates a board of public education
"to exercise general supervision over the public school system. .
. ."  Given this heavy emphasis on the creation, supervision and
quality of the stateūs educational "system," we hold that the
School Districtūs classification of students based upon whether
they are enrolled in the public school "system" is entirely
     We must then examine the School Districtūs interest in making
this classification and weigh that interest against Tami Kapteinūs
interest in participating. 
     The School District has set forth an extensive list of
"educational reasons" for its policy of restricting participation
to enrolled students.  We will not delve into the particulars of
that list other than to note that the primary "educational reason"
propounded by the School District is that of providing a unified
program in which required academic courses, elective courses and
extracurricular activities are "integrated" so as to complement
each other.  The Board takes the position that the integrating of
the academic and extracurricular activities does not lend itself to
participation by nonenrolled students.  This rationale finds ample
support in our decision in Bartmess.  In Bartmess, Helena School
District No. 1 chose to adopt a policy whereby students in the
system needed to maintain a 2.0 or "C" grade average for the
preceding nine weeks in order to participate in extracurricular
activities.  The 2.0 standard was a higher standard than the 1.0
average needed to graduate from high school and was not based upon
any scientific or statistical studies showing academic improvement
as a result of such a policy.  Bartmess, 762 P.2d at 802.  Although
the label "integrating" was not used to characterize the policy in
Bartmess, the Helena School District was, in effect, "integrating"
the athletic/extra-curricular program with the academic program. 
That is, the Helena School District made a policy decision that
participation in extracurricular activities was tied to academic
performance.  In upholding this integrated approach, we stated:
     We are not able to conclude, as the relators urge, that
     an opportunity to participate in extracurricular
     activities is more important than the achievement of
     average academic performance.  We conclude that the
     government interests in developing the full educational
     potential of each person and providing a basic system of
     quality public education by the enactment of the 2.0 rule
     outweigh the studentsū interest in participating in
     existing extracurricular activities.
Bartmess, 726 P.2d at 805. 
     In the present case, we are likewise unable to conclude that
a private school studentūs interest in participating in
extracurricular activities is more important than the School
Districtūs policy decision that, in order to effectively  integrate 
academics and extracurricular activities, it needs to restrict
participation to those students who are enrolled in the public
school system. 
     Accordingly, we affirm the decision of the District Court. 
                                   /S/  W. WILLIAM LEAPHART
We concur:
Justice James C. Nelson specially concurs.
     I concur in our analysis and in the result of our decision,
and I have, accordingly, signed our opinion. I write separately
only to set forth my position on two points, one of which is 
mentioned in our opinion.
     First, in the context of the narrow legal question that was at
issue in State, ex rel., Bartmess v. Board of Trustees (1986), 223
Mont. 269, 726 P.2d 801, and in the context of the legal issue
here, I agree that a student's participation in extracurricular
school activities is not a fundamental right and that using middle
tier analysis is justified.  We have correctly so limited our
analysis to those facts.
     Beyond the narrow issues addressed in Bartmess and in the
instant case, however,  I do not want my agreement with our opinion
to be read as any sort of concession that a Montanan's rights under
Article X, Section 1, of the Montana Constitution, to equal
educational opportunity and to "a basic system of free quality
public elementary and secondary" education are anything but
fundamental rights.  
     As our opinion points out, Montanans, uniquely, are
constitutionally guaranteed important equal public education
rights.  Moreover, the legislature is obligated by our constitution
to provide the mechanism that will enable each person in this State
to exercise those rights to effectuate the goal of the people of
this state "to establish a system of education which will develop
the full educational potential of each person."  Art. X, Sec. 1,
     In that context, and as to those rights, I believe that such
rights are, indeed, fundamental.  In truth, when one considers the
obvious fact that, without a quality education, a person's ability
to exercise his or her other constitutional rights is severely
circumscribed, then it becomes readily apparent just how
fundamental the educational rights set forth in Article X, Section
1, really are. In our modern, technological, information-oriented
society one's constitutional right to seek gainful employment, to 
vote, to express one's views, to pursue life's basic necessities,
to acquire and possess property and to seek safety, health and
happiness, all, in a very real sense, depend upon a person's
education.  And these are but just a few of the constitutional
rights which Montanans enjoy.  Simply put, educational rights are
fundamental because they are rights without which other
constitutional rights would have little meaning.  See Butte
Community Union v. Lewis (1986), 219 Mont. 426, 430, 712 P.2d 1309,
     Second, as to the precise question at issue in the instant
case, I would also conclude that Article X, Section 6, of the
Montana Constitution prevents a public school district from
allowing sectarian school students to participate in district
activities.  This provision of Montana's Constitution provides:
     Aid prohibited to sectarian schools.  (1) The
     legislature, counties, cities, towns, school districts,
     and public corporations shall not make any direct or
     indirect appropriation or payment from any public fund or
     monies, or any grant of lands or other property for any
     sectarian purpose or to aid any church, school, academy,
     seminary, college, university, or other literary or
     scientific institution, controlled in whole or in part by
     any church, sect, or denomination.  (Emphasis added).
     Article X, Section 6, which was carried over from our 1889
Constitution, represents the Constitutional Convention's strong and
continuing belief in the necessity to maintain Montana's public
school systems apart from any entanglements with private sectarian
schools and to guard against the diversion of public resources to
sectarian school purposes.  As Delegate Burkhardt stated:
     The primary and significant advantage secured by the
     present provision is the unequivocal support it provides
     for a strong public school system.  The traditional
     separation between church and state, an important part of
     the American social framework, has also become a
     fundamental principle of American education.  The growth
     of a strong, universal, and free educational system in
     the United States has been due in part to its exclusively
     public character. . . . Any diversion of funds or effort
     from the public school system would tend to weaken that
     system in favor of schools established for private or
     religious purposes.
Montana Constitutional Convention, verbatim transcript, March 11,
1972, Vol. VI at pages 2008-09.
     If Tami is allowed to participate in the public school sports
programs, it is clear to me that the School District will be
providing aid, either directly or indirectly, to the Conrad
Christian School in violation of this express prohibition of
Montana's Constitution.  This is so because sectarian schools
derive their operating funds, for the most part, from tuition or
church resources.  To the extent that a sectarian school determines
that it cannot afford, for example, a volleyball program, or a
chemistry lab, or a band from these private sources, such schools
can shift the financial burden of such programs to the public
treasury by sending sectarian school students to the public school
volleyball program, chemistry lab or band.  In short, the public
school district ends up effectively subsidizing the sectarian
school's educational program.  This is precisely what Article X,
Section 6, prohibits--indirect aid to sectarian schools.
     Moreover, Montana's constitutional prohibition against aid to
sectarian schools is even stronger than the federal government's. 
The former expressly prohibits either direct or indirect aid, while
the latter prohibits aid which is found to be "direct."  See, e.g.,
Sloan v. Lemon (1973), 413 U.S. 825, 832, 93 S.Ct. 2982, 2987, 37
L.Ed.2d 939, 945, reh'g denied 414 U.S. 881, 94 S.Ct. 30, 38
L.Ed.2d 128 (tuition subsidies to parents of parochial students
struck down) and Meek v. Pittenger (1975), 421 U.S. 349, 363, 95
S.Ct. 1753, 1762-63, 44 L.Ed.2d 217, 230, reh'g denied 422 U.S.
1049, 95 S.Ct. 2668, 45 L.Ed.2d 702 (direct loan of instructional
materials has effect of advancing religion), and compare State ex
rel. Chambers v. School District No. 10 (1970), 155 Mont. 422, 472
P.2d 1013 (Article XI, Section 8, of Montana's 1889 Constitution,
the predecessor of Article X, Section 6, prevents the busing of
parochial students even though busing was permissible under the
federal constitution).
     Accordingly, while I concur fully in our analysis and in our
opinion, I am also convinced that Montana's Constitution expressly
prohibits what Tami and the Conrad Christian School hoped to
accomplish in this litigation.  The School District may not allow
her to participate in its programs unless she enrolls in the public
school system.
                                   /S/  JAMES C. NELSON
Justice W. William Leaphart concurs in the foregoing special
                                   /S/  W. WILLIAM LEAPHART
Justice Karla M. Gray, concurring in part and dissenting in part.
     Notwithstanding my disagreement with the Court's analysis of
the issue before us, I concur in the result the Court reaches.  The
basis of my disagreement is set forth briefly below, followed by a
brief statement of my view regarding the appropriate constitutional
basis on which this case should be resolved.  In this latter
regard, I join in Justice Nelson's reasoning that Article X,
Section 6, of the Montana Constitution clearly prohibits the Conrad
School District from allowing Tami to participate in public school
     The critical facts of this case are that Tami is enrolled in
the Conrad Christian School, a sectarian educational facility; she
is not enrolled in the Conrad public school system.  Tami seeks to
play on public school athletic teams for social purposes and
camaraderie.  The School District refused to allow her to do so
pursuant to its policy limiting participation to students enrolled
full time in the public school.  
     Under these facts, Tami asserts a constitutional right to
participate under Article X, Section 1, of the Montana
Constitution.  The Court relies on Bartmess in concluding that Tami
has such a constitutional right.  It then applies the Bartmess
middle-tier scrutiny and concludes that the School District's
policy decision to restrict participation in extracurricular
activities in order to effectively integrate academics and
extracurricular activities is more important than Tami's interest
in participating.  It holds that the School District's policy does
not violate the Montana Constitution.
     While I agree that the policy does not violate the Montana
Constitution, it is my view that Bartmess is inapplicable under the
facts now before us with regard to both the constitutional right to
participate and the resulting application of middle-tier scrutiny. 
In Bartmess, the challenge to the 2.0 GPA rule for participation in
extracurricular activities was asserted by students enrolled full
time in the public schools.  We held that a public school student's
right to participate in extracurricular activities offered by the
public school system in which the student is enrolled is entitled
to some degree of constitutional protection. 
     Unlike in Bartmess, however, the right being asserted by Tami
is totally separate and apart from any asserted right to
participate in the overall educational system of the School
District.  She has a right, of course, to attend public schools but
has chosen not to do so.  Thus, she does not have the same right to
participate as the students in Bartmess.  I simply do not perceive
any tie to Article X, Section 1, of the Montana Constitution such
as existed in Bartmess and, as a result, middle-tier scrutiny is
not appropriate.  
     In any event, the Montana Constitution contains a provision
which affirmatively precludes the School District from permitting
Tami to participate and which, therefore, provides the appropriate
basis on which to resolve the present case.  That provision--
Article X, Section 6, of the Montana Constitution--is discussed in
Justice Nelson's special concurring opinion and needs no further
discussion here.  I join in that portion of Justice Nelson's
     Tami advances several cases, including a recent United States
Supreme Court case, which she contends establish that no
constitutional problems involving separation of church and state
arise by allowing her to participate in public school athletics. 
In particular, she relies on Zobrest v. Catalina Foothills School
Dist. (1993), 509 U.S. 1, 13-14, 113 S.Ct. 2462, 2469, 125 L.Ed.2d
1, 14, in which the Supreme Court held that the "no establishment
of religion" clause in the First Amendment to the United States
Constitution does not bar a public school district from providing
a sign language interpreter to accompany a deaf student to classes
at a sectarian school where the service was part of a general
governmental program.  As Justice Nelson points out, however, the
First Amendment generally prohibits only direct aid.  Article X,
Section 6, of the Montana Constitution, on the other hand,
prohibits school districts from extending both direct and indirect
aid to sectarian schools.  Thus, the federal and sister state cases
on which Tami relies have no application to the unique and broad
proscription contained in the Montana Constitution regarding aid to
sectarian schools.
     I join the Court in affirming the District Court, although I
would accomplish that result under a different analysis.
                                   /S/  KARLA M. GRAY