No escaping school fees case

A Los Angeles County Superior Court judge drew a bright line Wednesday on Gov. Jerry Brown’s goal of shifting control over education decisions from Sacramento to local districts. What the state can’t do is pawn off its constitutional duty ensuring that California’s children get their fundamental right to a free education, Judge Carl West indicated in a terse tentative ruling. He is expected to elaborate on and finalize the ruling within the next few days. (Update: Judge West issued his final decision, confirming his tentative ruling, this morning. The state has 20 days to respond to his finding.)

The ruling marks a clear victory for plaintiffs who had sued the state and state education officials for failing to crack down on school districts that illegally charge students school fees ranging from payments for sports uniforms and textbooks to lab materials and AP tests. It’s a common practice that has become more prevalent as budget-strapped districts have sought ways to save money – often at the expense of low-income families that can’t afford the extra fees.

State officials didn’t dispute that these violations have occurred; the ACLU of Southern California had presented indisputable documentation. But, reversing the conciliatory position of Gov. Arnold Schwarzenegger, the Brown administration argued that the state, the State Board of Education, the Superintendent of Public Instruction, and the State Department of Education – all named in the lawsuit –  had no enforcement responsibility. If there are violations, sue the local districts, which have the power and authority to fix the problem, argued the Attorney General’s office on behalf of state officials.

But West didn’t buy it and cited a 20-year-old state Supreme Court decision (Butt v. State of California) that reaffirmed that the state bears the responsibility to see that districts provide an equal opportunity to an education.

West’s expected final ruling will mean that the class-action lawsuit that the ACLU filed two years ago on behalf of unnamed students will go to trial – which Schwarzenegger, in his final days as governor, had hoped to avoid through a settlement. Schwarzenegger encouraged the passage of AB 165, sponsored by Assemblyman Ricardo Lara (D-South Gate). It would have created a complaint process for parents and students who believed they had been charged illegal fees, and would have required districts to conduct annual compliance audits. If auditors concluded that a school district had charged illegal fees, it would be required to reimburse parents. The monitoring was modeled after terms in the Williams v. State of California lawsuit, which Schwarzenegger had also settled out of court, ensuring low-income schools had certificated teachers, clean buildings, and adequate textbooks.

AB 165 passed the Assembly 51-24 and the Senate 23-15 last fall. But Brown vetoed it, saying it took “the wrong approach” to district compliance. It “would mandate 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 any evidence of violation. This goes too far.”

Case law and evidence will not be on the state’s side in a full trial. In the 1984 decision, Hartzell v. Connell, the state Supreme Court ruled that that districts must cover the costs of school-sponsored activities as well as regular academic classes. Allowable charges are few, such as arts materials that students take home.

Assuming a quick verdict, Brown could negotiate different terms for a monitoring system, or perhaps the State Board and Department of Education could establish monitoring through regulations.

This entry was posted in Equity issues and tagged , , on by .

About John Fensterwald - Educated Guess

John Fensterwald, a journalist at the Silicon Valley Education Foundation, edits and co-writes "Thoughts on Public Education in California" (, one of the leading sources of California education policy reporting and opinion, which he founded in 2009. For 11 years before that, John wrote editorials for the Mercury News in San Jose, with a focus on education. He worked as a reporter, news editor and opinion editor for three newspapers in New Hampshire for two decades before receiving a Knight Fellowship at Stanford University in 1997 and heading West shortly thereafter. His wife is an elementary school teacher and his daughter attends the University California at Davis.

23 thoughts on “No escaping school fees case

  1. Navigio

    Wow, quite apropos the discussion on another article.
    Anyone have any idea how this impacts parent (donation) funded programs?  Obviously in that case it may not be the district charging the parents directly rather a school deciding a program is important and choosing to raise money to provide it.
    However, given a statement by the judge in the ruling cited in the other thread that extracurricular activities are a necessary component of education, it seems it may be possible to view almost any program as a responsibility of the district (and thus state). Making even parent funded programs illegal unless the district steps in and funds them instead. That would have quite a far reaching impact if it turns out to be the case.

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  2. Sue Moore

    I worked so hard as a teacher to ensure that ALL children participated in the extra-curricular programs I ran, and that meant a lot of fund-raising, etc. Without that effort, even 10 – 15 years ago, many valuable activities would have been lost. Parents helped – and those who had more would give more because they believed in a comprehensive, well rounded public education at the school. It’s part of being a good citizen!
    As a parent I participate in, and organize fund-raisers so that what were once part of the California curriculum – music, Spanish, drama, P.E., etc., are offered to ALL the children. When the K playground needed some more recess equipment I ran to Sports Chalet and bought some. It’s just part of being a community member, and at different times we contribute to the “Commons” in ways in different ways.
    How far will this go? Do we disband PTO because the funds are used to purchase STAR testing snacks and essential materials for the classrooms? Will the computers be donated elsewhere because the school fund raisers are not allowed to pay for the technician? Are book donations in honor of kids’ birthdays to be monitored? Will the regular classroom teachers funded by some parent groups be let go? Will the school garden that provides produce for Plant a Row be closed because the district has never funded it? I think I would be willing to haul down to file a lawsuit should that happen!
    This move by the governor is a total bait and switch: state money is “deferred” so parents step in and shore up the system, and now he says it’s the districts that are responsible for providing these things? I think it is my freedom of expression to donate money to a program that is valuable for children.
    Has the AG’s office provided a clear picture of what this ruling could mean for an individual school?
    John: Can you find an AG office person who will provide more than legalese to this situation?

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  3. navigio

    Remember who our last AG was?   :-P
    It almost seems the ‘legal basis’ for policy nowadays is to break the law and bank on the hope that nobody sues. Its ironic the Williams case is mentioned in this article because its another case where the state admitted what it was doing but tried to argue that was the only fiscally responsible thing to do. Even the settlement, as is pointed out here, puts the onus on the community to police the state instead of the state doing whats right. I guess probably a good time to be a lawyer..

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  4. el

    Voluntary fundraising is specifically legal and allowed. What you can’t do (as I understand it; I am not a lawyer nor expert in education law) is have any kind of sanction for failing to donate money, or any process to be exempted from that donation beyond a simple “no thanks, I don’t wish to contribute.”
    So I think it’s okay to still have arrangements where “Yes, we’ll go on a field trip if we can raise $500 to pay for it”, or to raise money for new sports uniforms and the like, but the contributions have to be voluntary.
    Oddly, home to school transportation is specifically exempted from this by another decision, even though I’d argue that getting to school in the first place is more central to a free education than having or playing on a football team. Oh well.

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  5. navigio

    Well, first off, if the school raises money to fund it, its a pretty good bet that its something that might fall under the necessary component of education that the state is failing to provide. Thats a different issue, but still a legal one.
    Then, if you ask for donations for those things, it essentially equivalent to asking people to pay a fee in order to get the program. People who dont/cant contribute are analogous to those who get ‘waivers’ in the more explicit system. Obviously the idea in the district-sanctioned case is that something/someone covers the gap for the waivers. The analogy just seems too perfect.
    I do agree with Paul that one side-effect is that we all suffer equally. Obviously that is not happening now. But I think there is also legal precedent to have us not suffer at all. (wouldnt that be nice).
    Of course, I am also not a lawyer.. not yet anyway..  ;-)

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  6. Public Access

    In my humble opinion, the unfortunate inclusion of “sports uniforms” as in: “crack down on school districts that illegally charge students school fees ranging from payments for sports uniforms and textbooks to lab materials and AP tests. ” ; is the confusing component in the notion of equal access to a free and appropriate education.   “FEES”  are a separate issue from fund-raising for enrichment activities.  Until, athletics are included.   Another example of “unintended consequences” in the efforts to define ethics in the goal of equality.

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  7. navigio

    Actually, I think you do have a quota. In our school, the amount of computer lab time we are able to provide kids is a direct function of how much funding we can raise. That is only one example of many where the extent of the program is a direct function of the revenue (ceramics, music, robotics, choir, field trips, even library). Even in the fees case, once you provide a waiver, the assumption is some of the fee is excess used to subsidize the waivers, so the ‘quota’ is as squishy there.
    I also know parents who buy into things their kids dont participate in just to support it. Regardless, I dont think the issue hinges on that point, its more a question from the access point of view, ie would that program exist if it wasnt some non-district/non-state entity paying for it, not whether there is a one-to-one mapping from resource to program.
    I also am a bit confused by the term ‘community’ in this context. At some level that seems to want to imply the school district decides its programs based on fiscal restrictions. However, a school is also a community, and privately funded programs are an explicit ‘decision’ that those things are desired (even necessary). Whats to prohibit a school from suing a district because the school down the road has a (privately funded) library? That may be too clear cut. How about art program?
    @public, I am not clear that its only when school uniforms are introduced that the issue become confusing. In fact, it actually seems clearer in that case. Sports are more ‘protected’ than libraries at this point (and mentioned by name in that earlier decision text). More protected than the arts. To be clear, I think sports are important, and so are those others. It just feels to me like the confusion applies to many aspects of school programs, not just sports or their uniforms. imho anyway.  :-D

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  8. Eric Premack

    Without regard to the merits of the fee issues, it may be premature to say that “the state can’t . . .  pawn off its constitutional duty ensuring that California’s children get their fundamental right to a free education.”  Instead, it seems that the ACLU has merely won an early procedural skirmish (on four of six counts) and the real issues on these remaining four counts will now proceed to trial (unless settled through some other mechanism).
    Though I’m not a lawyer and don’t even play one on TV, all today’s ruling seems to say is that the state, state board, and state department of education will need to proceed to trial on the issues and can’t duck (“demur” in lawyer-speak) the argument by pointing the finger at local districts.
    Whether they’ve won or lost the argument remains to be seen. In essence, the state representative were arguing, “don’t sue us, instead sue the districts who have the power to stop charging the fees.”  The court here only seems to be saying that the state officials do have to go to trial on four of the six complaints.
    ACLU presumably finds it easier and more politically palatable to sue a few mean/nasty state bureaucrats rather than chase after dozens of  more popular local districts.  Today’s ruling seems to allow them to pursue the fight through this easier statewide approach, but hasn’t yet declared them the victor.
    The merits of the underlying constitutional issues may be a lot less clear than many are inclined to think.  Most seem to be focusing on the rather sweeping anti-fee verbiage in the Supreme Court’s  Hartzell v. Connell decision (can you say “Rose Bird?”).  Few, however, seem to mention that the court’s subsequent decision in the Arcadia case all but gutted the Hartzell decision (albeit far short of de-publishing it), authorizing districts to charge fees to ride the bus to/from school.
    This one ain’t over yet–unless the state officials wimp-out, as they may for political correctness reasons.

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  9. John Fensterwald - Educated Guess Post author

    Public Access: You raise an important issue. The ACLU lawsuit only addresses fees related to academic courses. The plaintiff class is defined as “all current and future students in California public schools how have been or will be required to pay fees or purchase materials for courses for academic credit.” That said fees for extracurricular activities are generally prohibited as a result of the 1984 state Supreme Court decision in Hartzell v. Connell

    In his November, 2011 guidelines on the issue of fees, Supt. Tom Torlakson addressed this issue:

    The Attorney General has, in several opinions, consistently ruled that school districts do not have the authority to levy fees for any elective or compulsory class. Further, districts may not require security deposits for locks, lockers, books, class apparatus, musical instruments, uniforms or other equipment.
    In Hartzell v. Connell, 35 Cal. 3d 899 (1984), the California Supreme Court held that school districts may not charge fees for extracurricular activities because they are an integral component of public education.

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  10. navigio

    Hi Sue.. I was trying not to be a blabbermouth but since no one else chimed in..   ;-)
    I personally believe those things ARE fees. Or at least extremely analogous to fees. That is the point Im making. Its true its not a fixed fee, rather more an ability to pay fee. Its also true that the usage is not mapped one-to-one to the payment, but in the fee case (as long as there are waivers) it isnt either. And if you see the payee as not a single person but a school community, then of course its a fee. ‘You pay or you dont get the program’.
    Corporations are people now. Why cant school communities be a single entity too?

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  11. Sue Moore

    Thanks Navigio. I appreciate the comment.  I feel sometimes like parent groups are extorted by schools because the school/district holds all the financial information and the budgeting power, and parents are picking up the pieces.
    I would very much like to see legislation to force ALL publicly funded schools in California to create a budget and finance committee – with stakeholder representation – so that there is more transparency, influence over decisions, and more honesty. The murkiness of who is funding what in schools necessitates the latter. School budgets are a byzantine maze as far as I can tell – and should not be so.

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  12. el

    First, I am suspect that there are districts that deliberately produce obscure budgets to discourage scrutiny. But setting that aside, a California school budget is by its nature a fairly complicated document and unfortunately something that takes some time and experience to really follow, even if you have a White Hat business manager who is intent on transparency.
    One of the culprits is the nature of categorical funds and different funding streams. Our district received a new school bus during a very dark budgetary time. The casual observer would see that the district was willy-nilly spending money on new buses rather than classrooms. But the truth was that the bus was 90% paid for by a local air quality grant, and the improved fuel efficiency would pay for the district’s 10% contribution in short order… not to mention that the bus it replaced was over 30 years old and polluted like crazy.
    That’s a relatively easy case compared to some of the weird vagaries of other categoricals, where you have individual staff members sometimes paid out of 3 different funding streams to cover different elements of their job, other members paid in a bucket labeled “consultants” because they’re actually employees of a different LEA – the alphabetical soup of jargon, like LEA :-)  - and all the little expenses that add up to real money. Aggregate multiple schools into a budget, so that you’re spending millions of dollars in each labeled bucket, and it’s impossible to truly follow the money.
    So I think the first thing is to define what we mean by “transparent.” That seems a foolish thing to say, but I think rather than a law requiring transparency (all the information is legally public now, if you ask for it), what we need is a good model of transparency. Show me a budget that *is* easy to understand, and that can be quickly verified as an accurate accounting, and that allows parents and teachers to see where the money is flowing. For bonus points, show me that budget within the vagaries of current state and federal law :-) and show me how this format makes it impossible to hide financial impropriety or questionable choices.
    When we have a good model to work with, then we can talk about mandating a format if it doesn’t spread organically.

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  13. Navigio

    I think school expenditures should be clear. SARCs already require a per school accounting of restricted and unrestricted funds, and the basis for calculating those should be relatively straightforward. (teacher and admin salaries, title i and iii enrollment, etc) so those numbers exist somewhere.  I think it’s unfortunate that Ed-data does not include per-school finances but understand it would mean a significant chang in how budgets are reported.
    Regarding the meaning of transparency, I don’t understand why something needs to be asked for if it’s public. If it takes time to generate that information then provide access to the public and let them compile it themselves. All arguments against such an approach are based on the assumption that full transparency is too expensive. While that may be a valid argument, it’s one that results in limited transparency.
    I also agree the format of the result is as important as the content. A 100MB, 200 page, poorly scanned document that does not allow searching on text is arguably the equivalent of providing nothing at all.

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  14. edfundwonk

    All of the questions raised here were definitively answered by the California Supreme Court in Hartzell v. Connell (1984). The issue was “May a public high school district charge fees for educational programs simply because they have been denominated ‘extracurricular’?” The Court’s ruling was an emphatic “No.”

    In the specific case, a school district decided to cut its budget by $1.1 million. It considered two options for reducing the district’s funding for school athletic programs: (1) eliminate 9th grade athletics and reduce the number of remaining programs from 30 to 2 or (2) eliminate 9th grade athletics & support the remainder by levying fees of $25 for participating in athletics and for each of four types of programs: (a) drama, (b) vocal groups, (c) instrumental groups, and (d) cheerleaders. The district adopted the sedond option and was sued.

    The Court held that the extracurricular activities were “an integral component of  public education” and, as such, were protected by the State Constitution’s “free school guarantee.” Accordingly,  conditioning participation on the payment of fees was unconstitutional.

    The fact that the district provided fee waivers was no defense. In the words of the Court, “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 defendants also argued that “[i]f the fees were invalidated, many school districts may be forced to drop some extracurricular activities…[ producing] the anomolous result of reducing the number of educational opportunities  available to students.”  The Court acknowledged that school districts operate under difficult financial constraints. This fact, however, did not justify violation of the free schools guarantee. Instead, the solution to the funding problem must be found through the Legislature — not the courts.

    In sum, with very limited exceptions (e.g., fees for art supplies to create an item that then belongs to the student)  a fee cannot be charged any student for anything that is required to participate in academic or extracurricular activities.

    If students must have football uniforms to play on the football team, the district must buy them for ALL football players. If cheerleaders need cheerleading outfits to belong to the cheerleading squad, the district must buy them for ALL cheerleaders. If members of a singing group need to wear certain types of costumes, the district must buy them  for ALL singers.

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  15. Pingback: Compromise on school fees bill | Thoughts on Public Education

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