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STUDENT FEES

Lawsuits and Legislation:


What it means for school districts
Howard Friedman
Fagen, Friedman & Fulfrost LLP

Debra Brown
California School Boards Association

AGENDA
Welcome
Prologue: What a free public education means
ACLU Lawsuit
Jane Doe v. State of California (2010)
Legislative Update: AB 165 (Lara)
To charge or not to charge: What is allowed
Questions?
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THEMES
A shift of emphasis from:
Individual to group responsibility for fundraising
Conditioning individual participation on
fees/fundraising to adjusting the scope of the
program to available funds
Student waivers to a system of opting-in
Foundations and booster clubs are more
important than ever!

CALIFORNIAS SYSTEM OF
FREE PUBLIC EDUCATION
The Legislature shall 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
California Constitution, article IX, section 5

CALIFORNIA EDUCATION CODE

[t]hese [educational]
opportunities are a right
to be enjoyed without
regard to economic
status
Education Code 51004

CALIFORNIA EDUCATION CODE


No school official shall require any pupil,
except pupils in classes for adults to
purchase any instructional material for the
pupils (sic) use in the school.
Education Code 60070

CALIFORNIA CODE OF REGULATIONS

A pupil enrolled in a school shall not be


required to pay any fee, deposit, or other
charge not specifically authorized by law.
Title 5, Code Regulations, 350

HARTZELL v. CONNELL
(1984) 35 Cal. 3d 899. (California Supreme Court.)

School district charged


for extracurricular
music and sports
activities; $25 for
each athletic team or
category of activity.

HARTZELL v. CONNELL
(1984) 35 Cal. 3d 899. (California Supreme Court.)

Fee waiver based on financial need, and an


outreach program
Holding:
Educational activities, curricular and
extracurricular, fall within the free school
guarantee
Waiver and outreach do not equate with
guarantee of free schools
Budget hardship is not relevant to guarantee
of free schools
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RECENT ACLU LAWSUIT


Challenge to fees charged by
school districts (and staff)
Class action seeking
injunctive relief (and
attorneys fees)
Based on California
Constitutions guarantee of
free schools (article IX,
section 5), and related
statutes
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THE GOOD NEWS


The district is not a defendant
Defendants are State of California and
(former) Governor Schwarzenegger

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AB 165 (LARA)
Introduced in response to suit filed by ACLU
against the state
If signed by Governor takes effect for the
2011-12 school year
Provides definitions, complaint procedures,
reimbursement process and audits
Applies to all public schools including charter
and alternative schools
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AB 165 (LARA) DEFINITIONS


Educational activity means an activitythat
constitutes an integral fundamental part of
elementary and secondary education, or that
amounts to a necessary element of a school
activity including, but not
limited to, curricular and
extracurricular activities.
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AB 165 (LARA) - DEFINITIONS


Pupil fee means a fee, deposit, or other charge
imposed on pupils, or a pupils parents
A pupil fee includes, but is not limited to:
A fee charged as a condition of registering for school or
classes or participation in extracurricular activities
Security deposit or other payment that a pupil is
required to make to for supplies, uniforms or equipment
A purchase required of a pupil to obtain supplies or
materials to participate with an educational activity
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AB 165 (LARA) - DEFINITIONS


Specifies that the provisions do NOT prohibit:
Solicitation of voluntary donations
Voluntary participation in fundraising
Providing pupil prizes or recognition for voluntary
participation in fundraising activities

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AB 165 (LARA) COMPLAINT PROCESS


Modeled after Williams
Utilizes Uniform Complaint Process
Requires posting of notices in each classroom
updated to include student fees
Specify location to file complaint
Complaint must be resolved within
30 days and must notify complainant
within 45 days
If not satisfactorily resolved complainant
may file appeal with the SPI

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AB 165 (LARA) PUBLIC HEARING


If a fee is charged, a determination must be
presented at a public hearing of the board
Hearing must be held prior to the eighth week of
school
For year round schools hearing must be
held within 8 weeks of start of school for
first track

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AB 165 (LARA) REIMBURSEMENT


Reimburse all who were charged within 10
weeks of beginning of school year
When must this be done for 2011-12 school year

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AB 165 (LARA) AUDIT REQUIREMENT


To be part of existing annual audit requirement
Audit guide will be updated to include
student fees
Charter schools will also be audited
for this provision
Any unresolved complaints will result
in the SPI withholding 1% of districts
administrative funds until resolved
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AB 165 (LARA) CONCERNS AND COSTS


What will districts role be in the fundraising
activities of other entities such as booster
clubs?
Mandated costs?
Posting requirements
Audits

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AB 165 (LARA) NEXT STEPS


Bill to be heard in Senate Appropriations on
August 15
Will likely go on Committees suspense file
Suspense file to be taken up on August 25

Full Senate vote, back to Assembly for


concurrence and then to the Governor
CSBA revised policies
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FEES ALLOWED BY EDUCATION CODE


Food, except where free and
reduced program eligibility
( 38084)

Deposits for school music


instruments and uniforms for use
in foreign country ( 38120)
Insurance for field trips ( 35331)
Lost or willfully damaged books;
parent liability to $16,765 for
2009-2010 ( 48904)
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FEES ALLOWED BY EDUCATION CODE


Tuition fees where parents are
residents of adjacent state or foreign
country ( 49050, 49052)
Purchase of materials fabricated by
student ( 17551)
Duplication of student records (with
exceptions) or public records ( 49065,
Government Code 6253)

Insurance for athletic team members,


must pay for those who cannot afford
( 32220, et seq.)

Fees for field trips; no pupil denied trip


because of lack of funds ( 35330)

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FEES ALLOWED BY EDUCATION CODE


Transportation to and from school
Some exceptions

Education Code 39807.5

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FEES ALLOWED BY EDUCATION CODE


School camp programs
Cannot be mandatory
No pupil shall be denied
opportunity to participate
because of nonpayment of
fee
Education Code 39807.5

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RED FLAGS
Terms: fee, required,
mandatory
Student-required classroom
contributions/essential supplies
Costs for mandatory off-site
activities/extra credit projects
for mandatory course work
(i.e., concert, museum, theatre
to be integrated into an in-class
project)
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BOTTOM LINE:
If its necessary for participation in the schoolsponsored program or activity, you may not
charge.

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FEE WAIVERS
Fee waiver or opt out will not make fees
to other students permissible

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UNIFORMS
A school district has a basic duty to provide
supplies which are necessary to fulfill
schools educational program
Includes school-related extracurricular
programs
Cheer, band, basketball, track, etc.

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UNIFORMS
School must provide a free uniform to any
student who is a member of the school team
free of charge.

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UNIFORMS
If the uniform item is required, the district
must provide free of charge
Not required to fund extra items
Students may elect to purchase and
keep items at their own expense

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TRANSPORTATION TO ATHLETIC EVENTS


From FCMAT (CDE):
Fees for transportation for extracurricular
activities are not legal where it is an integral
part of the activity.

Conservative position considering:


EC 35330 (field trip)
EC 39807.5 (transportation to/from school)
Arcadia : transportation educational activity

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TRANSPORTATION TO ATHLETIC EVENTS


Our advice to school districts:
Plain language of the law
There are some risks:
CDE has taken a conservative position
ACLU has flagged these fees

Ultimately it is a policy decision and costbenefit analysis

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SUMMER SPORTS CAMPS


Fees permitted if run by entity separate and
distinct from school district
If tied to a students participation on team
during school year, likely cannot require a
fee
If optional and offered to any community
member, then fee likely permissible
Arms length transaction recommended to
avoid alter ego problem
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DONATIONS
Schools, foundations, booster clubs
may solicit donations from students,
parents, community
As long as process is voluntary and
in no way prerequisite to participation
in program or activity

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DONATIONS (CONT.)
Any statement or explanation related to a
donation that could lead a reasonable
person to believe that the donation is not
truly voluntary should be avoided
Examples:
Specified minimum amount of donation
Date by which donation is due
Lesser donation amount if funds are
received early
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DONATIONS (CONT.)
Any statement or action that exerts explicit
or implicit pressure on students or parents to
make donation should be avoided
Examples:
Benching player for failure to make donation
Barring player from tryouts for not paying
fee to attend summer camp
Requiring a donation for required part of
cheerleading uniform

Not violation: Positively recognizing players


and families who donate
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DONATIONS/FUNDRAISING STRATEGY

District Policy Initiative:


Shift from individual requirement to group
fundraising
Approach from program-needs standpoint

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FUNDRAISING AVENUES

Fees/Charges

Parent Group Fundraising


Education Foundations

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FUNDRAISING ALWAYS NEEDS


A DISCLAIMER
Not related in any way to
student participation in
activity or program
Where appropriate Not an
activity of school district

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FUNDRAISING
Permissible, as long as raising of funds
is voluntary
Not allowed: requiring that students raise
funds or pay fee themselves

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FUNDRAISING (CONT.)
Allowed: requiring a student to attend a
fundraising event in same way as
attendance at games, rehearsals,
performances
Example:
Requiring members of vocal choir to perform
at a school fundraising concert

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TRACKING DONATIONS/FUNDRAISING

Assuming school-related activities


Distinguish arms length transaction
(i.e., non-profit organizations)

Cannot tie to individual fee obligations

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DONATIONS/FUNDRAISING SUGGESTIONS
Not allowed: Parent letter stating that the
required donation is $180 for uniform
Allowed:
Selling optional spirit packs
Sending letter soliciting parent donation to
program

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CONSEQUENCES OF ACLU SUIT:


AB 165; PROPOSED SECTION 35186
A school district shall use uniform
complaint processto help identify any
deficiencies related tofees, deposits, or
other charges related to participation in a
curricular or extracurricular activity.

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PROPOSED SECTION 35186


This section shall not be interpreted to
prohibit an entire class, sports team, or
club from participating in fundraising or
prohibit schools from providing recognition
for participating in such activities.

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CONSEQUENCES OF ACLU SUIT:


PROPOSED LAW AND REGULATIONS
Reimbursement to parents
Writs/Injunctions
Attorneys Fees

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Questions?
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THANK YOU
Webinar and slides may be accessed at:
www.csba.org

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CONTACTS
Howard Friedman
Fagen, Friedman & Fulfrost LLP
hfriedman@fagenfriedman.com
www.fagenfriedman.com

Debra Brown
California School Boards Association

dbrown@csba.org
www.csba.org

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