A sign of the times
Brown signs bill but says state can't afford it
For Assemblymember Marty Block (D-San Diego), winning the governor’s approval for his community college common assessment bill was slightly better than your mom saying “it’s the thought that counts.” In a brief signing message attached to his approval of AB 743, Gov. Brown said while he supports the plan, there’s no money in the state budget to pay for it.
But Block says the community college system does have its eye on some private funding, and has already received $500,000 in grants from the Gates and Hewlett Foundations. And once the standardized assessment is in place, state analysts say there will be significant savings in costs and workload.
AB 743 creates uniform placement exams in math and English language arts for entering community college students. These tests determine whether a student can enroll in college-level courses or if the student has to first take some basic skills or remedial classes. Right now the 112 community colleges use more than 100 different exams, so students have to re-test if they transfer to a different school or just want to take a single course on another campus.
The final law isn’t as far-reaching as Block intended. “When we first envisioned a bill, we envisioned creating a test by taking the best of everything” from the current exams, said Block in an interview, but the cost would have been prohibitive. The new tests will now be off-the-shelf and made available free of charge to the state’s community colleges.
The original version also made the new exams mandatory, but after some faculty complained, the bill was amended to leave it up to each college to decide. “There are some faculty unions and some colleges that feel strongly that they want to use their own test,” said Block. “I think in these economic times that’s a luxury we can’t afford.”
A veto on schools charging illegal fees
Gov. Brown's veto message of AB 165 (click to enlarge)
Saying that the bill “takes the wrong approach” to dealing with the issue of schools charging improper fees, Gov. Brown vetoed AB 165.
The bill, introduced by Assemblyman Ricardo Lara (D-South Gate), would have settled Jane Doe and Jason Roe v. The State of California, a class action lawsuit accusing state education officials of standing “idly by” while schools charge fees for everything from textbooks to gym uniforms in violation of the California Constitution’s mandate of free public education.
Los Angeles Superior Court Judge Carl West had suspended the case pending the outcome of AB 165. The bill would have established a complaint system using the existing process put in place for the Williams settlement, required districts to post the complaint process in every classroom, and called for districts to conduct annual compliance audits.
Although he agrees that schools need to be held accountable for violating the law, Gov. Brown wrote in his veto message that mandating “that every single classroom in California post a detailed notice and that all 1,042 school districts and over 1,200 charter schools follow specific complaint, hearing and audit procedures, even when there have been no complaints, let alone evidence of any violation” goes too far.
It’s unclear what happens next. The litigation will move forward, according to someone with knowledge of the case. But whether a new bill will be introduced or settlement talks will resume is up in the air until the different parties have time to meet.
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SVEF is the education foundation advocating for the needs of school districts across Silicon Valley. SVEF seeks to improve public education through establishing partnerships with the private sector and the education community ..
It is unfortunate – nay, ridiculous – that this issue of the legality of school districts charging fees is before the courts once again. This issue is a slam-dunk. In 1984, in the Hartzell case, the California Supreme Court held that charging fees to participate in activities – whether curricular or extracurricular – violates the free school guarantee of the state Constitution.
The facts that the district provides a fee waiver policy and/or that the invalidation of fees would work severe financial hardship on the district are irrelevant – requiring students to pay fees is unconstitutional. Period. (The Education Code provides some exceptions for a limited number of activities but their constitutionality has yet to be litigated.)
Superintendent of Public Instruction Torlakson swore to uphold the California Constitution. The California Supreme Court has held in Hartzell that charging fees to participate in curricular or extracurricular activities is unconstitutional. There is no question that many (perhaps hundreds) of school districts violate this prohibition daily. It is Superintendent Torlakson’s duty as the chief school officer to stop these violations. How about using some of those consultants who were moved to other, less important, jobs after categoricals were consolidated?
In 1984, 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 fee-waiver policy for needy students does not satisfy the requirements of the free school guarantee.
“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 nonneedy 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 financial consequences to the district due to the invalidation of student fees are irrelevant. “…financial hardship is no defense to a violation of the free school guarantee.”
“… 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.”
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A more careful read of the Hartzell v. Connell decision and subsequent decisions on the issue show that the fee issue is far from a judicial “slam dunk.”
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 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.
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 conclusion, while departing from Bird’s far-ranging rhetoric.
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 matters. Grodin noted that the fees at issue were for activities that were “functionally and intimately related to the District’s established curriculum” and “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.
The Hartzell decision was a nuanced and fractured one. Only three or four of the seven justices fully bought-in to the notion that extracurricular fees are impermissible and three explicitly departed from it.
A more recent case on point, Arcadia v. California Department of Education, seems to have taken at least a 90-degree turn from Bird’s rhetoric in Hartzell. Though generally critical of fees for activities that are “integral, fundamental, and necessary elements of any school’s activity,” this 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. Go figure. I, for one, would prefer to have a free ride to school and back (especially if it is distant) than free pom-poms and footballs, but the California Supreme Court apparently doesn’t agree with me.
No “slam-dunks” here, except, perhaps for full employment of litigating attorneys.
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