Seth Rosenblatt
Administrators and parents alike have long waited for clarity on what fees schools could and could not charge students. With Governor Brown signing legislation that settles a lawsuit over public schools charging students for educational activities and materials, that day has come, right? Think again.
Intended to clarify the law around what fees school districts can charge and to rightfully curb abuses where schools have been illegally exacting fees from students, AB 1575 was the result of the ACLU’s class action lawsuit claiming that public schools have been violating the free school guarantee in the State Constitution. Without rehashing all of the details of the law and requirements, I’d like to point out the dilemma and challenge that school boards and districts face in implementing the law, and posit that the matter is far from settled. The publicity of the ACLU lawsuit prompted many districts, including my own, to start these discussions almost two years ago and analyze what we were charging students.
Although there is little to no dispute about the imperative that public school must be free, it doesn’t work out that neatly in its real-life application. First, we must acknowledge, as many readers of the EdSource article noted, that this problem is in large part a direct result of the massive underfunding of our public schools in this state. School districts have always been forced to be “creative” in how they deliver programs with less money, and in many cases that has involved charging students and families. But the pressure to do this has escalated in the last five years. This doesn’t condone such actions, and clearly there are some serious abuses (e.g., forcing students to buy textbooks or humiliating students who don’t pay). Second, we must recognize that in districts that have a community with the means, private fundraising supports many school activities; this is not charging the students directly, but it is indirect fee collection (even though it’s through “voluntary” participation).
Despite the supposed clarity in the new law and the guidance given by the State Superintendent, it’s still not clear what falls on what side of the line. In our district, for example, we have talked about using at least two criteria to determine the activities for which the district cannot charge: (a) services/tools/products that are integral to the educational experience of the school, and (b) those where the expense to provide it is required and unavoidable. If an expense meets both of these criteria, it’s clear that the district should pay. Textbooks – very clear that the district should pay. School photos – very clear that the district should be allowed to charge the student a fee.
But take items that satisfy criterion (a) but not (b). One such example is summer reading books. It’s perfectly reasonable for a school to require mandatory summer reading for its students (making it integral to the educational experience). But if those books are available for free to borrow from the school library (or the town library), then should the school district have to supply those books, as there is a free and reasonable alternative? If so, it would logically follow that the district could charge a fee for these books since the student/family doesn’t have to make such a purchase to fulfill the educational requirement. What if schoolwork requires doing research after school on the Internet, and many families don’t have a computer or Internet access at home? Should the school be required to provide that alternative (or even pay for their Internet access at home)? One can easily see where these grey areas come up quickly.
Then there is the fundamental question of what is integral to the curriculum. Our middle schools have an instrumental music program. It’s one of the electives, so students aren’t forced to take it, although many do. The district pays for the music teacher, but what about the instruments? How is a musical instrument conceptually any different from a textbook (because if a student took a different elective, he/she would surely be supplied with the appropriate textbook if one existed)? But the cost of instruments is so prohibitive that many districts might choose to just not offer the program at all, which would be unfortunate.
What about uniforms for school sports? What about other after-school “enrichment” programs for which many districts are now charging? Looked at from one angle, these are “after-school” activities that can’t be part of the standard curriculum, or they’d take place during the regular school day, no? But these are all programs that school districts should be providing (and would be if they had the funding), so why are they any different from classes offered during the school day? I suspect many school districts will be forced to thread the needle in defining what each program is and how it fits within the curriculum to attempt to abide by the law.
There are lots of other examples where perspectives will differ – and inevitably lead to disputes – whether it be transportation, clubs, or even whether the lowly pencil is a required material. And what about the growing number of districts asking every student to bring their own device (e.g., tablet, phone) as a primary tool for school? And despite this new law, our fiscal realities haven’t changed (and will become worse if both Propositions 30 and 38 fail), so it is naïve to believe that many districts won’t be forced by financial circumstance to ignore the law. I don’t condone it, but it is rational to believe they will wait to get sued first because they have no other choice in the short term.
I’m not writing this to debate which fees can be charged and which can’t (or which should and shouldn’t), but rather to state that despite the new law and particularly in the absence of proper funding, the issue will likely stay very foggy and confusing for boards, districts, and parents. Notwithstanding the assertions of clarity, ultimately many of these specific use cases may be decided by the courts in response to future lawsuits. However, if AB 1575 just stops the most blatant abuses, then it will have accomplished something. Like most other public school advocates, I dream of the day when schools have enough funding to make this issue moot, but today that is still just a dream.
Seth Rosenblatt is the president of the Governing Board of the San Carlos School District, currently in his second term. He also serves as the president of the San Mateo County School Boards Association and sits on the Executive Committee of the Joint Venture Silicon Valley Sustainable Schools Task Force. He has two children in San Carlos public schools. He writes frequently on issues in public education, in regional and national publications as well as on his own blog. Seth has more than 20 years of experience in media and technology, including executive positions in both start-up companies and large enterprises. He currently operates his own consulting firm for technology companies focused on strategy, marketing, and business development. Seth holds a B.A. in Economics from Dartmouth College and an M.B.A. from Harvard Business School.
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J. Pacheco 11 years ago11 years ago
If a high school student fails a course required for graduation, the student has the option of returning for a 5th year of high school or taking an online course before school, during lunch or after school, utilizing the school’s computer and servers.
Can the school charge the student the fee for the online course (the online services charges the school $35.00) since this form of credit recovery is optional?
el 11 years ago11 years ago
I think one of the key points is to have principals and superintendents committed to a culture of free education. That means, by the way, that long lists of required supplies shouldn't go home with the kids either. Simple things like providing folders don't actually cost that much and they keep the situation much more uniform, and mean less classroom time is wasted explaining to the kids what to get and waiting for the kids … Read More
I think one of the key points is to have principals and superintendents committed to a culture of free education. That means, by the way, that long lists of required supplies shouldn’t go home with the kids either. Simple things like providing folders don’t actually cost that much and they keep the situation much more uniform, and mean less classroom time is wasted explaining to the kids what to get and waiting for the kids to find the right items. If everyone understands that the school provides, but oh by the way here is some stuff we can use, or let’s fundraise as a class or school for a particular trip, it seems to me you’re less likely to have these kinds of problems in the first place.
Brooks Allen 11 years ago11 years ago
The ACLU of California agrees with Mr. Rosenblatt that the most pressing issue facing our public schools today is the devastating impact of the state budget cuts. It is why, consistent with our long history of fighting for high quality public schools for all children in California, we are strongly supporting current efforts to raise revenues for schools. In this spirit of common cause, we would like to address some of Mr. Rosenblatt’s concerns about … Read More
The ACLU of California agrees with Mr. Rosenblatt that the most pressing issue facing our public schools today is the devastating impact of the state budget cuts. It is why, consistent with our long history of fighting for high quality public schools for all children in California, we are strongly supporting current efforts to raise revenues for schools.
In this spirit of common cause, we would like to address some of Mr. Rosenblatt’s concerns about AB 1575.
First, it is important to note that AB 1575 does not change existing and long-standing law regarding permissible fees and the authority to engage in voluntary fundraising. AB 1575 explicitly states it is “declarative of existing law and shall not be interpreted to prohibit the imposition of a fee, deposit, or other charge otherwise allowed by law.” (California Education Code 49011(e); effective January 1, 2013.) The specific “serious abuses” Mr. Rosenblatt describes, and which gave rise to the bill, had been prohibited for generations. The goal of AB 1575 is to ensure all students’ constitutional rights are protected by improving awareness of existing law and providing a means for resolving concerns without costly litigation.
Second, with respect to questions about what existing law allows and prohibits, we must point out that the discussion above neglects mention of the regulation adopted by the State Board of Education in 1940 that states that “[a] pupil enrolled in a school shall not be required to pay any fee, deposit, or other charge not specifically authorized by law.” We urge Mr. Rosenblatt and others with questions about specific types of fees to consult the host of available guidance resources, including, for example:
• The California Department of Education’s November 2011 guidance for superintendents and charter school administrators –
http://www.edsource.org/wp-content/uploads/CDE-public-school-fee-advisory.pdf
• Tulare County Counsel Guidelines for Student Fees – http://wwwstatic.kern.org/gems/fcmat/StudentfeesguidelinesTulareC.pdf
• San Diego Unified School District’s useful overview of how the existing law regarding student fees has developed since the late 1800s – http://www.sandi.net/Page/3094
• Advisories and guidance from your district’s counsel (see e.g., http://www.aalrr.com/publications/Alerts/QP/governor_brown_signs_k_12_student_fee_legislation_increasing_the_repercussi)
Finally, Mr. Rosenblatt and others also may be interested to know that the Association of California School Administrators, which supported AB 1575, is hosting a related webinar on Monday – see http://www.fagenfriedman.com/newsflash.php?nf=359 – and the California School Boards Association likewise has a session on student fees planned for its conference later this month – see
http://www.aalrr.com/news_and_events/events/QP/csba_conference_student_fees_navigating_the_new_landscape.
In this era of economic hardship, for schools and families alike, it is absolutely critical to ensure well-intentioned and necessary efforts to fundraise and support programs do not inadvertently deny any child an equal opportunity to learn. This is the heart of AB 1575, and we believe it is why the bill was supported by student, parent, and teacher organizations such as the California State PTA and California Federation of Teachers, as well as numerous school districts and school administrator associations, including Los Angeles Unified School District, Riverside County School Superintendents’ Association, Association of California School Administrators, California Association of School Business Officials, and California Association of Suburban School Districts.
Replies
Seth Rosenblatt 11 years ago11 years ago
Brooks -- thanks for all the background info and clarification. To be clear, my point wasn't that the law isn't needed, and I suspect that most school board members agree with the overarching point that public school needs to be free for all. In an ideal world, no school would charge a fee for anything. My point was more that despite the law and the guidance from the various groups (including the … Read More
Brooks — thanks for all the background info and clarification. To be clear, my point wasn’t that the law isn’t needed, and I suspect that most school board members agree with the overarching point that public school needs to be free for all. In an ideal world, no school would charge a fee for anything. My point was more that despite the law and the guidance from the various groups (including the links you give above), it is impossible to have full clarity on this issue. From a practical point of view, there will still be many cases that will be remain unclear and will likely be handled inconsistently among school districts and/or will lead to further disputes. It certainly doesn’t mean that these folks should stop giving guidance 🙂
Seth Rosenblatt 11 years ago11 years ago
This is a great dialog and definitely exemplifies the main point and my inspiration for writing on this topic. Despite this new law, much of the interpretation will continue to be in the “eye of the beholder” and there will remain much confusion among many school districts and parents, and likely more lawsuits.
Eric Premack 11 years ago11 years ago
edfundwonk: The case I refer to is Arcadia Unified School Dist. v. State Dept. of Education (see: (1992) 2 Cal.4th 251 , 5 Cal.Rptr.2d 545; 825 P.2d 438). In this case, which came years after the Hartzell decision, the California Supreme Court found that it is constitutional for school districts to charge for home-to-school transportation. Your read of the Hartzell decision is quite selective and fails to consider the instant facts, the deeply-fractured nature of the … Read More
edfundwonk:
The case I refer to is Arcadia Unified School Dist. v. State Dept. of Education (see: (1992) 2 Cal.4th 251 , 5 Cal.Rptr.2d 545; 825 P.2d 438). In this case, which came years after the Hartzell decision, the California Supreme Court found that it is constitutional for school districts to charge for home-to-school transportation.
Your read of the Hartzell decision is quite selective and fails to consider the instant facts, the deeply-fractured nature of the court’s support for it, and the substantial turn the Court took in the subsequent Arcadia decision.
The facts of the Hartzell case were somewhat narrow and dealt with a school district (Santa Barbara High) charging fees to participate in “extracurricular” activities. Specifically, the district charged students who were enrolled in courses such as choir, orchestra, etc., as part of their regular school day to participate in after-school performances related to those classes. Each of these after school activities were “connected to a credit course” and “all parties are [including the school district] agreed that the activities are important educational experiences for the students.”
Chief Justice Rose Bird’s opinion, however, went far beyond the instant facts in Hartzell and made sweeping pronouncements about seemingly all fees, whether or not they charged for activities that had a tie to the school’s instructional program. Your quotes above come from this sweeping rhetoric.
It’s important to note that only two of the court’s justices concurred with Bird’s lofty rhetoric (Broussard and Reynoso). The decision held the day, however, because other members of the court joined the result, while departing from Bird’s far-ranging rhetoric that you cite above.
Justice Mosk concurred with Bird, poking fun at her “sugar-coating of inspirational quotations from Jefferson” and others. Justices Grodin and Kaus concurred in the result, but explicitly departed from Bird in key details. Grodin noted that the fees at issue were for activities that were “functionally and intimately related to the District’s established curriculum” (they were after school performances that directly stemmed from the music and performing arts classes) “a child interested in drama is told, in effect, ‘you may attend the drama class, study about plays, and participate in rehearsals, but when it comes to the actual performance you must remain backstage unless you pay a fee.”
Kaus wrote that “the ‘free school’ guarantee is a rarely traveled route; we have few, if any, helpful precedential guides in the California cases.” He went on to note that “well-intentioned judicial efforts to provide sweeping, ‘absolute’ rules to protect the values underlying the ‘free school’ provision may well prove, in practice, to have precisely the opposite effect by foreclosing reasonable legislative options.” Justice Richardson wrote a lengthy dissenting opinion, picking-apart Bird’s logic and concluding that even the fees at issue were constitutional. Oddly, Bird wrote a concurrence to her own lead opinion, tacking-on a few more notes.
Thus, it appears that only three of the Court’s judges actually agreed with the principles you cite above, three others were opposed to fees that were “integral” to the regular curriculum, and one judge dissented entirely. As such, one shouldn’t lean very heavily on the deeply fractured Hartzell decision–especially in light of the subsequent Arcadia decision..
The Arcadia decision seems to have taken at least a 90-degree turn from Bird’s rhetoric in Hartzell. Arugably, Arcadia takes a 179-degree turn. Though generally critical of fees for activities that are “integral, fundamental, and necessary elements of any school’s activity,” the 6-1 Arcadia decision found that school districts may charge fees for home-to-school transportation.
We’re now left with an odd jumble of court dicta that, on the one hand seemingly prohibit fees for cheerleading, yet authorize fees to ride the bus to get to school in the first instance. While there are many sound equity arguments against fees, I wouldn’t lean on the fractured Hartzell decision for a strong constitutional one.
edfundwonk 11 years ago11 years ago
Contrary to Mr. Premack’s assertion, there was no “decision” in the Arcadia case. Rather, the ACLU’s class action suit ended in a settlement agreement with the State of California. In Hartzell v. Connell (1984), in contrast, the California Supreme Court held in no uncertain terms that charging students fees to participate in activities curricular or extracurricular violates the free school guarantee of the California Constitution. (Hartzell v. Connell ((1984) 35 Cal.3d 899, 201 Cal.Rptr. 601; … Read More
Contrary to Mr. Premack’s assertion, there was no “decision” in the Arcadia case. Rather, the ACLU’s class action suit ended in a settlement agreement with the State of California. In Hartzell v. Connell (1984), in contrast, the California Supreme Court held in no uncertain terms that charging students fees to participate in activities curricular or extracurricular violates the free school guarantee of the California Constitution. (Hartzell v. Connell ((1984) 35 Cal.3d 899, 201 Cal.Rptr. 601; 679 P.2d 35).
A Supreme Court decision based on the State Constitution cannot be overturned by either a settlement agreement or by legislation; it can only be modified by amending the relevant section of the constitution (in this case, the free school guarantee). Consequently, the terms of the Arcadia settlement agreement are irrelevant to this issue.
In Hartzell, the Court held that a fee-waiver policy for needy students does not satisfy the requirements of the free school guarantee. Thus, if a student must have a football uniform to play football, the school district must buy uniforms for all football players.
In the words of the Court:
“The free school guarantee reflects the people’s judgment that a child’s public education is too important to be left to the budgetary circumstances and decisions of individual families. It makes no distinction between needy and non-needy families. Individual families, needy or not, may value education more or less depending upon conflicting budget priorities…”
“Once the community has decided that a particular educational program is important enough to be offered by its public schools, a student’s participation in that program cannot be made to depend upon his or her family’s decision whether to pay a fee or buy a toaster.”
The Court rejected the school district’s argument that prohibiting it from charging fees for extracurricular activities would have the ironic consequence of eliminating the programs it was trying to save:
“… defendants warn that, if the fees are invalidated, many school districts may be forced to drop some extracurricular activities. This court recognizes that, due to legal limitations on taxation and spending, school districts do indeed operate under difficult financial constraints. However, financial hardship is no defense to a violation of the free school guarantee.”…
“Educational opportunities must be provided to all students without regard to their families’ ability or willingness to pay fees or request special waivers. This fundamental feature of public education is not contingent upon the inevitably fluctuating financial health of local school districts. A solution to those financial difficulties must be found elsewhere for example, through the political process.”
In sum, my reading of Hartzell yields the following principles,
1. A school district is prohibited from charging fees for any activities, uniforms, supplies, etc. curricular or extracurricular, which are related to the educational experience – however tenuous the connection. Put another way, fees may only be charged for activities that are purely recreational.
2. If a student’s participation in an activity – curricular or extracurricular – is contingent upon anything with a cost, the district must either provide it or purchase it for all participants. Providing fee waivers for students who cannot afford to pay does not satisfy the free schools guarantee.
Finally, notwithstanding Hartzell , the Education Code specifies many items or activities for which fees may be charged, provided that inability to pay is not a barrier. In my opinion, most of these are of questionable legality. Until they are challenged, however, they will undoubtedly continue.
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edfundwonk 11 years ago11 years ago
Addendum: The football uniform is a bad example, especially in light of the home-to-school transportation issue, above. A better example would be a school choir in which extracurricular performances are required and students must provide elaborate costumes. In this exemple, the school would be required to buy or provide costumes for all students at no charge
el 11 years ago11 years ago
One of my concerns with the law in this area is that home to school transportation is excluded. It is hard for me to understand why it is okay to charge kids for the school bus but not for playing a sport.
Then of course there is the weird case we’re in with preschool, where we are being *obligated* to collect fees from parents for the kids to attend.
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Leeanne 11 years ago11 years ago
Bussing can be charged to parents because it is not a required activity of the district, except for special education. That is why it has been eliminated from many school districts. We are having no problem without bussing. Parents are getting their kids to school just fine.
edfundwonk 11 years ago11 years ago
I think HTS transportation is excluded because riding the school bus is optional -- it's not required as a condition of attending school. Sports, on the other hand, have a connection with the academic experience. (It's not a "recreational" activity.) And, under the free school guarantee, a student can't be excluded from school-related sports because of inability to pay. Under Hartzell, the school can't "pick & choose" who "needs" a fee waiver & who doesn't. … Read More
I think HTS transportation is excluded because riding the school bus is optional — it’s not required as a condition of attending school. Sports, on the other hand, have a connection with the academic experience. (It’s not a “recreational” activity.) And, under the free school guarantee, a student can’t be excluded from school-related sports because of inability to pay. Under Hartzell, the school can’t “pick & choose” who “needs” a fee waiver & who doesn’t. (You & I may have the same income, but I have two kids in college while you have a parent in a care facility — who has the greater “need”?)
el 11 years ago11 years ago
I’ve read the court decision and I understand the rationale by the court, but I can’t say I agree. I consider sports optional, and in many communities, the school bus is the only way a child could get to school under his/her own volition.
el 11 years ago11 years ago
I guess I don't have quite the same lack of clarity you do. I think perhaps the most glaring example is field trips. I suspect that most field trips these days are covered by some combination of fundraising and parental drivers and the like. I find them integral to the curriculum and I think they are extremely important. I am fine with fundraising that is voluntary and optional and non-judgemental. I think it's clear that schools cannot … Read More
I guess I don’t have quite the same lack of clarity you do.
I think perhaps the most glaring example is field trips. I suspect that most field trips these days are covered by some combination of fundraising and parental drivers and the like. I find them integral to the curriculum and I think they are extremely important. I am fine with fundraising that is voluntary and optional and non-judgemental.
I think it’s clear that schools cannot expect kids to provide their own electronic devices and it’s also clear that assignments that require internet have to be practical for any student to do, including students with no internet at home and no parent who will drive them to a library.
Our school routinely provides free fun reading books for kids, generally gently used hand-me-downs. It costs next to nothing and is one of easiest things to do. I highly recommend it for all schools. There is also the option of allowing books from the school library to be checked out over the summer.
Eric Premack 11 years ago11 years ago
I recently spent two days at a school that has what struck me as a stiff and costly student uniform requirement--requiring students to wear particular items on specified days (e.g., Fridays students are to wear a specified T-shirt). Students must buy them from a particular vendor, and I'd estimate the initial cost at between $100 and $200 per student, depending on what they buy. Initially, and based on my own experience as a public school … Read More
I recently spent two days at a school that has what struck me as a stiff and costly student uniform requirement–requiring students to wear particular items on specified days (e.g., Fridays students are to wear a specified T-shirt). Students must buy them from a particular vendor, and I’d estimate the initial cost at between $100 and $200 per student, depending on what they buy.
Initially, and based on my own experience as a public school student many years ago, it led me to assume that low-income parents would find this onerous and object to it. After speaking with a substantial number of parents, including several low-income ones, I found that they strongly support the uniform requirement. They said that it is somewhat costly, but ultimately cheaper. They pointed out that theys pend about the same amount of money either way and noted several other advantages, including the fact that their kids don’t have to worry about not wearing much more costly designer label clothes and that the uniforms create a sense of discipline, security, camaraderie, etc., at the school. The low-income parents also noted that the school recycles uniforms and they can buy them at low cost from other families who no longer need them.
This well-intended, but ill-crafted legislation will lead to all manner of unintended consequences. It also makes a muddle of already-muddled case law on the issue. While the bill’s proponents liked to cite the supreme court decision in the “Hartzell” case, they ignored the nearly contradictory decision in the subsequent “Arcadia” case. To make matters worse, it dumps this hairball into the hands of the under-staffed California Department of Education. It calls for the Department to issue guidance on the issues, but bypasses the usual and vital regulatory review process to ensure public input and vetting. It ties the issue to the troubled “uniform complaint process” giving the Department the role of judge, jury, and executioner over disputes.
ACLU does a lot of good and protects a lot of vital interests in my book, but their take-no-prisoner, legalistic approach on this case and on the “Williams” lawsuit strike me as misguided. I earnestly hope I’m proven wrong, but this new law indeed looks like good intentions run amok.
Paul Muench 11 years ago11 years ago
I guess it’s one step at a time. For a long time we’ve decided that a student who is required to participate in a grade level or a class but is not prepared to learn from that situation is still getting a free education.