BILL ANALYSIS Ó
AB 165
Page 1
Date of Hearing: April 27, 2011
ASSEMBLY COMMITTEE ON EDUCATION
Julia Brownley, Chair
AB 165 (Lara) - As Amended: April 13, 2011
SUBJECT : Pupil fees
SUMMARY : Creates an urgency statute that reinforces the
prohibition on the imposition of pupil fees and establishes
policies to ensure compliance with that prohibition.
Specifically, this bill :
1)Adds compliance with state statutory and constitutional
prohibitions against pupil fees, as well as other fee-related
requirements, to the list of compliance items required to be
verified as part of the annual financial and compliance audit
required of school districts.
2)Requires 1) above to be added to the audit guide requirements
as soon as possible.
3)Extends the uniform complaint process to include complaints
related to the imposition of pupil fees.
4)Requires a school district and a charter school to use its
adopted uniform complaint process to identify and resolve any
deficiencies related to the imposition of pupil fees.
5)Makes the principal or designee of a charter school
responsible for investigation and resolution of complaints
related to the imposition of pupil fees.
6)Requires the Superintendent of Public Instruction (SPI) to
require a school, school district, or charter school that has
unlawfully imposed a pupil fee to fully reimburse all affected
parties with interest paid at the rate earned on the school's
or district's cash holdings.
7)Requires a notice to be posted in each classroom in each
school in a district stating that pupils should not be charged
fees or be required to make a purchase in order to participate
in a class or extracurricular activity, as well as other
related information.
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8)Requires the county superintendent to review and resolve audit
findings related to the imposition of pupil fees, and to not
deem any findings to be corrected until repayments pursuant to
6) above are completed.
9)Requires the county office of education, upon the reporting of
any audit finding related to the imposition of pupil fees, to
withhold one percent of the local educational agency's (LEA's)
administrative expenditures from the next principal
apportionment until the LEA makes repayment pursuant to 6)
above.
10)Requires the withholding of an amount 10 times the amount of
pupil fees imposed if the auditor is unable to calculate the
amount equal to one percent of the administrative expenditures
of a charter school or if the fees collected are greater than
one percent of administrative expenditures.
11)Provides a statutory prohibition on the imposition of pupil
fees, and specifies the nature of those prohibited fees.
12)Requires the governing board of a LEA to hold a public
hearing within eight weeks after the start of the school year,
and to determine by resolution whether pupil fees have been or
are being charged during the current fiscal year; also
specifies the content of that resolution.
13)Provides for the exception of claims for money or damages
related to the reimbursement of pupil fees from a school
district's ability to file for compensation with the
California Victim Compensation and Government Claims Board.
EXISTING LAW :
1)Requires, in the California Constitution, the Legislature to
"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, after the first year in which a school
has been established."
2)Requires each local educational agency to adopt policies and
procedures to insure compliance with applicable state and
federal laws and regulations, including the establishment of a
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uniform system of complaint processing for specified programs,
activities or requirements that will provide for the filing,
investigation and resolution of complaints.
3)Requires each local education agency to provide for an annual
audit of its books and accounts, including all fund sources
and expenditures; requires the audit to be completed by a
certified public accountant or a public accountant, licensed
by the California Board of Accountancy, who is deemed by the
State Controller as qualified.
4)Requires, when filing a petition for authorization, a charter
school to describe the manner in which annual, independent
financial audits shall be conducted, and the manner in which
audit exceptions and deficiencies shall be resolved to the
satisfaction of the chartering authority.
5)Requires a notice to be posted in each classroom in each
school in a district notifying parents, guardians, pupils and
teachers of specific compliance requirements, including
sufficiency of textbooks, maintenance of facilities,
misassignment of teachers
FISCAL EFFECT : Unknown
COMMENTS : The primary impact of this bill is to provide
statutory reinforcement of the constitutional prohibition on the
imposition of pupil fees in California's public schools.
According to the author, "AB 165 will establish procedures that
will help identify, eliminate, and prevent the charging of
student fees in violation of a student's constitutional right to
a free public education." In addition the author states that,
"AB 165 will use existing accountability mechanisms to
efficiently prevent and address any fees imposed on students as
conditions of participation in educational activities."
Background on pupil fees : The Constitutional prohibition on the
imposition of pupil fees in California was clearly defined in
Hartzell v. Connell (1984; 35 Cal.3d 899, 201); the California
Supreme Court decision in this case, authored by then Chief
Justice Rose Bird, clearly articulates the Court's
interpretation as to how pupil fees on educational activities,
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including those imposed for sports or extracurricular
activities, violate the California Constitution.
In 1980 the governing board of the Santa Barbara High School
District made budget cuts in the area of sports and
extracurricular activities in excess of $1 million; this action
was in response to high inflation, declining enrollment, and the
loss of local property tax revenue as a result of the passage of
Proposition 13. The governing board considered two proposals
when it made this budget decision: 1) cut the number of
interscholastic sports teams from over 30 to 8, eliminate 9th
grade sports, and decrease the number of other extracurricular
activities; 2) eliminate only the 9th grade sports teams and
backfill the cuts by imposing a fee for students participating
in sports and extracurricular activities, including drama, music
and cheer programs. The governing board chose the second option
and voted to impose a required fee on students participating in
interscholastic sports or extracurricular activities amounting
to $25 per sport or activity (during the 4 years that this case
moved through the court system that fee rose to $35 per sport or
activity). Shortly before the start of the 1980-81 school year,
Barbara Hartzell, who had two children enrolled in the district,
along with a group of local grass-roots organizations calling
themselves the Coalition Opposing Student Fees, filed litigation
claiming the mandatory fee violated the free-school and
equal-protection guarantees of the California Constitution.
The school district argued that a fee-waiver policy, which they
had adopted at the same time as the fee, that allowed needy
students to play once they applied for and received the waiver,
was enough to satisfy the constitutional requirements for
free-schools and equal-protection. This argument prevailed in
the lower court, but that lower court decision was overturned by
the California Supreme Court in a 6-1 decision. The majority
opinion, authored by Chief Justice Bird, basically stated that
fees may be charged for activities that are recreational, but
not for those that are educational. It went on to opine that
extracurricular activities are an integral component of public
education, that they are a part of the educational program, and
that they thus must be free. The opinion stated that, "Once the
community has decided that a particular educational program is
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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?imposition of fees as a precondition for participation
in non-statutory educational programs offered by public high
school districts on a non-credit basis violates the free school
guarantee."
The court further stated that, "The constitutional defect in
such fees can neither be corrected by providing waivers to
indigent students nor justified by pleading financial hardship."
Thus the Court explicitly disagreed with the district's
argument and decided that a school district may not charge a fee
or require students to purchase necessary materials even if the
district maintains a special fund to assist students with
financial need, or waives the fee or charge for students with
financial need; a fee waiver policy for needy students does not
make the fee allowable. The Bird opinion stated, "Nor may a
student's participation be conditioned upon application for a
special waiver. The stigma that results from recording some
students as needy was recognized early in the struggle for free
schools." Additional lawsuits alleging Hartzell violations have
been filed against school districts over the last 25 years; in
nearly all of the cases, the issue has either been settled out
of court or the plaintiff has prevailed.
The American Civil Liberties Union (ACLU) has been active in
some of these past cases, and has also been active in
identifying districts that appear to be out of compliance with
the Hartzell decision. There appears to be no shortage of
districts that fall out of compliance, and this seems to occur
with more frequency when there are budget shortfalls that lead
districts to look for alternatives to deeper cuts (as was the
case in the Santa Barbara High School District 30 years ago).
It has also become clear in recent years that public awareness,
or at least a full understanding, of the Hartzell ruling has
generally faded over the past 25 years.
The author recognizes the current fiscal conditions faced by
public schools, when he states that, "Our State and our schools
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are operating under historically difficult budget conditions and
understandably are seeking revenue from every possible source,
but our constitution demands we ensure educational opportunities
are not conditioned on a student's ability to pay a fee. As
countless districts have demonstrated, fundraising can be
accomplished through constitutional means that include
solicitation of voluntary donations of funds or property and
voluntary participation in fundraising activities."
In response to reports from parents that schools in Southern
California were charging students mandatory fees as a condition
for participating in academic courses and school-sponsored
activities, the ACLU of Southern California began investigating
this practice. What started as a limited inquiry into a few
school districts grew into a wider investigation based on a
random sampling of websites for public high schools in
California; though wider, that sample covered well under half of
the public high schools in California. On August 10, 2010, ACLU
released a report, "PAY-TO-LEARN: An Investigation of Mandatory
Fees for Educational Activities in California's Public Schools,"
that details the results of this investigation. The
investigation uncovered more than 50 public school districts in
which at least one high school acknowledges on its website that
students must pay fees in order to participate in educational
programs; ACLU, during the investigation, also learned of a
number of schools that illegally charge fees, but that do not
have an active website link that documents the mandatory fee -
these schools were not reported among the 50 school districts
mentioned above. The types of fees that ACLU found being
charged included charges for text books and workbooks, lab fees
for science classes, material fees for fine arts classes, and
required purchases of P.E. uniforms, as well as charges in the
hundreds, and in some cases thousands, of dollars for
participation in extracurricular activities.
In September 2010, the ACLU filed a class action lawsuit against
the state, claiming that many fees charged to students for
school activities and supplies violated the California
Constitution and various provisions of the Education Code ÝJane
Doe, et al. v. State of California, et al., (Super. Ct. Los
Angeles County, 2010, BC445151)]. Anonymous students "Jane Doe"
and "Jason Roe," the plaintiffs, attend unnamed high schools in
Orange County. The complaint states that Jane Doe's school
requires students to purchase textbooks, workbooks, and novels
assigned for credit courses. The school charges additional fees,
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including Advance Placement exam fees when the examination is a
course requirement and affects students' grades, and an
enrollment fee. Jason Roe's school requires students to purchase
workbooks, lab manuals, and physical education uniforms, as well
as locks and student agendas as a requirement of school
enrollment.
Former Governor Schwarzenegger and the ACLU announced a
tentative settlement in Doe v. California on December 9; the
settlement would have required trial court approval as well as
legislation and regulations for implementation. In addition,
former Governor Schwarzenegger's office issued compliance
guidelines for schools to follow; there is evidence that schools
and school districts in the state are examining existing
policies on student fees and are making adjustments. At an
initial hearing on the settlement in late December, the court
expressed concerns about technical issues and did not approve
the settlement; the settlement, though initially signed and
approved by the parties, was never finalized by the court, and
the parties are no longer presenting that settlement agreement
to the court. The settlement would have established a
monitoring and enforcement system, substantially similar to the
provisions of this bill, in order to ensure that school
districts do not unlawfully charge fees to students for
educational activities, and would have been contingent on
enactment of legislation. The ACLU filed an amended complaint
in Doe v. California on April 7, 2011. The complaint was
amended to drop the Governor as a defendant in the case, to add
the SPI, the California Department of Education, and the
California State Board of Education as defendants (since they
would be the parties involved in any future remedies), and to
provide more historical detail regarding state reaction to and
oversight of the imposition of pupil fees. Though this bill is
neither explicitly linked to the pending litigation nor to any
settlement agreement that was or will be agreed to by the
parties, the underlying issue motivating both the lawsuit and
the bill is certainly the same, and the types of remedies being
sought in the complaint are consistent with the proposals made
in this bill.
The ACLU's investigative findings were more recently verified
when UCLA's Institute for Democracy, Education and Access (IDEA)
released its annual California Educational Opportunity Report in
March of this year; in that report, IDEA reported that many
low-poverty (wealthier) schools now solicit donations or charge
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families fees to pay for services that had previously been
freely provided by the school. Generally the more proactive
approach to donations or the imposition of fees is in response
to current fiscal conditions. In addition, IDEA found that
administrators in high-poverty districts felt that fees
constituted an extra burden that they could not place on
families of their pupils. Despite this, IDEA found through
responses to a survey item concerning imposition of pupil fees,
that fees are frequently in place even in high poverty schools
(see the table below). Not only are such fees likely unlawful,
but IDEA concluded that as high schools shift costs to families
through solicited donations and pupil fees, inequality between
schools often grows; low-poverty high schools are better able to
generate donations, charge fees in order to maintain services,
and to thus free up funds to spend in other budget areas.
-------------------------------------------------
|Has your school begun requiring students and |
|families to pay for or make additional |
|contributions to any of the following services |
|as a consequence of the budget cuts? |
|-------------------------------------------------|
| |
-------------------------------------------------
|----------------------+------+---------+---------|
| | All | Low | High |
| | HS | Poverty | Poverty |
|----------------------+------+---------+---------|
|Field Trips | 43%| 53%| 26%|
|----------------------+------+---------+---------|
|Arts and Music | 34%| 53%| 90%|
|----------------------+------+---------+---------|
|Instructional | 19%| 32%| 90%|
|Materials | | | |
|----------------------+------+---------+---------|
|Summer School | 12%| 20%| 50%|
|----------------------+------+---------+---------|
|Tutoring | 10%| 15%| 40%|
-------------------------------------------------
|Clubs | 12%| 17%| 90%|
|----------------------+------+---------+---------|
|Sports | 47%| 57%|30% |
-------------------------------------------------
Where does this leave schools ? Schools can lawfully pursue
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fundraising, seek sponsorships and collect donations, including
voluntary donations from participants, in order to support
athletics programs and extracurricular activities; however,
schools cannot lawfully exclude a student from belonging to a
team or participating in an activity based on a lack of any
required or voluntary financial contribution, whether in the
form of a donation or paid fee. In addition, certain fees
appear to remain legal under the Hartzell decision and this
bill; however, all pupil fees and charges will be scrutinized
more rigorously under the proposals in this bill. These certain
fees include, but may not be limited to, charges for optional
attendance as a spectator at a school sponsored activity, food
served to students (subject to federal and state restrictions
under school nutrition programs), replacement costs for District
books or supplies that are loaned to a student, and lost or
damaged, supplies that the students may need for specific
activities (where the student uses and gets to keep those
supplies, and takes the items that they produce home, such as
for a woodworking or design/sewing class), covering the actual
cost of duplicating public or student records, tuition (in the
case of foreign or out-of-state pupils), transportation to and
from school, or optional fingerprinting of pupils.
The purpose of this bill is to ensure that these lawful
activities can continue, while at the same time ensuring,
through the establishment of various enforcement mechanisms,
that unlawful pupil fees are eliminated.
Committee Amendments : Committee staff recommends the following
committee amendments to the bill:
1)Clarify to which audit guide or guides the compliance audit
requirements in this bill will be added, and delete the
explicitly provided authority for emergency regulations to put
those requirements in the audit guide (the provision of this
authority is redundant with current law and with the
requirement that these audit requirements be placed in the
audit guide "as soon as possible").
2)With respect to provisions related to the uniform complaint
process:
a) Clarify that the "governing body," not the governing
board of a charter school, takes on the proposed
responsibilities, and clarify, consistent with the author's
intent, that school districts, county offices of education,
and charter schools must meet noticing requirements.
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b) Specify that the terms of the reimbursement of pupils,
parents or guardians impacted by the imposition of pupil
fees include interest accrued from the date the fee was
paid and calculated to be based on the Pooled Money
Investment Account (PMIA) rate, since the interest rate
required in the bill may not exist for all school districts
or charter schools.
3)With respect to provisions related to audits and the
withholding of funds:
a) The bill adds provisions to EC 41020 that deal with both
local educational agencies and charter schools; however, EC
41020 does not apply to charter schools. Conforming
language is necessary in order to apply these requirements
to charter schools as the author intended.
b) Clarify that any withholding of funding from a charter
school is only authorized "until repayment is complete," in
order to conform this language to the same provision as
applied to school districts.
c) Require the SPI, rather than the county office of
education, to withhold funds as provided in this bill.
This also removes the need to authorize the county office
of education (a local agency, in some cases led by an
appointed official) to request that the State Controller (a
state-wide elected Constitutional Officer) perform the
withholding; therefore delete that authorizing provision;
this amendment also conforms to similar withholding
provisions in current law.
4)With respect to hearing and resolution requirements:
a) Clarify that these requirements apply to the governing
board of a local educational agency and the governing body
of a charter school.
b) Clarify that the required public hearing or hearings
take place during a regularly scheduled governing board or
governing body meeting.
5)As a courtesy to the author and to correct a drafting
oversight, delete the urgency clause.
REGISTERED SUPPORT / OPPOSITION :
Support
American Civil Liberties Union (Sponsor)
Association of American Publishers
Opposition
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Committee for Safety of Foreign Exchange Students (with
suggested amendments)
Analysis Prepared by : Gerald Shelton / ED. / (916) 319-2087