BILL ANALYSIS Ó
AB 165
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Date of Hearing: May 27, 2011
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Felipe Fuentes, Chair
AB 165 (Lara) - As Amended: May 5, 2011
Policy Committee: Education
Vote:6-2
Urgency: No State Mandated Local Program:
Yes Reimbursable: Yes
SUMMARY
This bill prohibits a school district, school, or other entity
working under the supervision of, or in coordination with, a
district or school, from imposing a fee for participation in
education activities. Specifically, this bill:
1)Defines "pupil fee" as a fee, deposit, or other charge imposed
on pupils or parent/guardians, which require educational
activities to be provided free of charge to all pupils without
regard to their families' ability or willingness to pay fees
or request special waivers, as specified. Further specifies a
pupil fee includes, but is not limited to:
a) A fee charged to a pupil as a condition for registering
for school or classes or as a condition of participating in
an extracurricular activity, as specified.
b) A security deposit or other payment a pupil is required
to make to obtain a lock, locker, book, class apparatus,
musical instrument, uniform, or other materials or
equipment.
c) A purchase that a pupil is required to make to obtain
materials, supplies, equipment, or uniforms associated with
an educational activity.
2)Defines "educational activity" as an activity that constitutes
an integral fundamental part of elementary and secondary
education or that amounts to a necessary element of a school
activity, including curricular and extracurricular activities.
3)Requires all supplies, materials, and equipment needed to
participate in educational activities to be provided to pupils
free of charge. Further prohibits a fee waiver policy from
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making a fee permissible.
4)Specifies this legislation not be interpreted to prohibit
solicitation of voluntary donations of funds or property,
voluntary participation in fundraising activities, or
districts and schools from providing pupil prizes or other
recognition for voluntarily participating in fundraising
activities.
5)Requires, beginning with the 2011-12 fiscal year, the
governing board of a school district, county office of
education (COE) or charter school to take both of the
following actions:
a) Hold a public hearing (on or before the end of the
eighth week after the first day of school) and make a
determination through a resolution as to whether pupil fees
for participation in educational activities have been
charged, or are being charged, within the current fiscal
year (FY).
b) Describe the pupil fees charged, as specified. Further
requires the governing board, if fees have not been
reimbursed, to set forth in the resolution the actions to
ensure that all affected pupils and parents/guardians
receive full reimbursement with interest within 10 weeks of
the beginning of the school year, as specified. Interest
is equal to the interest that the money would have earned
in the Pool Money Investment Account (calculated beginning
on the data the fee was collected).
6)Requires existing financial and compliance audits conducted by
school districts, beginning with audits of the 2011-12 FY, to
include pupil fee requirements. Further requires charter
schools to comply with audits associated with pupil fees, as
specified.
7)Adds compliance with pupil fee requirements to the existing
uniform complaint process (UCP) established under the Williams
v. State of California settlement agreement (2004).
8)Requires a notice to be posted in each classroom of a charter
school notifying parents/guardians, pupils, and teachers of
the following: (a) pupils are not to be charged fees and (b)
the location in which to obtain a form to file a complaint in
case of a shortage of complaint forms, as specified.
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9)Requires a district, COE, and charter school to establish
local policies and procedures to post notices and implement
the UCP provisions regarding pupil fees on or before January
1, 2012.
10)Requires the SPI to withhold one percent of administrative
costs of school districts, COEs, or charter schools in the
subsequent year, if the auditor finds the entity's violation
of pupil fee requirements has not been corrected or the entity
has a new audit exception for this purpose, as specified.
Further requires the SPI to hold these withholdings in trust
until the entity has reimbursement has been made.
FISCAL EFFECT
1)Potential, unknown GF/98 cost pressure, of approximately $23
million, to school districts, COEs, and charter schools to
reimburse pupils/parents, including interest, to back fill the
loss of fees. Since this bill requires districts, COEs, and
charter schools to reimburse pupils/parents, it is possible
these agencies will file a state mandate claim to seek
reimbursement from the state. Previous court cases have
determined it is illegal to charge pupil fees; however, the
Commission on State Mandates (CSM) may determine the
requirement to reimburse with interest is a higher level of
service and thus, a mandate.
2)GF/98 costs, likely between $5 million and $15 million, to
school districts, COEs, and charter schools to meet the
requirements of this bill related to determining whether fees
were charged, including to whom they were charged and the
amounts. Depending how large the district or COE, this work
is likely to be extensive due to the gathering of information
related to all educational activities. The costs incurred by
school districts and COEs, approximately $11 million, are
likely reimbursable under the state mandate provisions.
According to a May 2006 decision by the CSM, charter schools
are not eligible to claim mandate reimbursements. In denying
charter schools' mandate claims, the CSM repeatedly cites the
fact that charter schools are "voluntarily" created. As such,
costs to charter schools are not state reimbursable and
considered GF/98 cost pressure.
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3)Annual GF/98 costs, of at least $165,000, to the school
districts, COEs, and charter schools to hold a public hearing,
as specified in this measure. Of this cost, $90,000 would be
incurred by school district and COEs and therefore, likely be
deemed a state reimbursable mandate. The costs attributed to
charter schools ($75,000) would be considered GF/98 cost
pressure because charter schools are not eligible for state
mandated reimbursements, as referenced above.
The annual cost for the K-14 Open Meetings Mandate is
approximately $6 million GF/98.
4)GF administrative costs, of approximately $348,000, to the
State Department of Education (SDE) to administer the
provisions of this bill. Specifically, SDE asserts it needs
staff to conduct appeals and implement any penalties incurred
to school districts, COEs, and charter schools for not
complying with this measure.
5)Potential GF/98 cost pressure, of at least $1 million, to
county superintendents to monitor complaint process provisions
of this measure.
The 2010 Budget Act allocates approximately $8 million to COEs
to conduct monitoring of the uniform compliant process
requirements established by the Williams v. State of
California (2004) settlement agreement and the Valenzuela v.
O'Connell (2007) settlement agreement, as specified.
COMMENTS
1)Background . In September 2010, the American Civil Liberties
Union (ACLU) filed a complaint in Los Angeles Superior Court
on behalf of public school students against the State of
California and Governor Arnold Schwarzenegger. The complaint
was letter refilled against SPI Tom Torlakson, the SDE, and
the State Board of Education (SBE). The complaint states: "By
allowing its public school districts to condition access to
educational services and the quality of educational services
offered to students dependent upon payment of student fees,
the state has failed to perform its constitutional duty of
ensuring basic educational equality irrespective of economic
status. It thereby sanctions a dual school system which
deliberately favors students from families of means over
students from disadvantaged households. Although the State
may currently be operating under difficult budgetary
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constraints, 'financial hardship is no defense to a violation
of the free school guarantee.' Hartzell, 35 Cal. 3d at 9l2.
The California Constitution's guarantee to a free and equal
public education is absolute and cannot be qualified by the
finances of either the State or the students' families."
In May 2011, the ACLU meant with the defendants in the case
(SPI and SBE) and submitted a Joint Status Statement to the
court stating: "Plaintiffs and the State Education Defendants
would agree to a temporary stay of all proceedings to allow
for movement of Assembly Bill 165 through the legislative
process. If AB 165 passes through the Assembly and Senate and
is signed by the Governor, it may provide the full relief
sought in Plaintiff s First Amended Complaint, and therefore
this litigation would no longer be necessary. In light of the
legislative timeline described above, Plaintiffs and the State
Education Defendants believe that extending the stay for, at
most, the several months necessary to ascertain the bill's
prospects for passage is appropriate."
According to the author, the provisions of this bill provide
what is necessary to settle the complaint.
2)The Williams v. State of California case (2004) concerned
three aspects of K-12 education: instructional materials,
teacher qualifications, and facilities. The settlement obliges
schools to take steps to ensure (a) all students have
sufficient textbooks and materials; (b) teachers have
appropriate qualifications for their assignments; and (c)
facilities are clean, safe, and maintained in good repair
In order to enforce requirements related to the issues
referenced above, a uniform complaint process in every
district with schools subject to the settlement was
established. The county superintendent of schools is required
to monitor districts' compliance with this complaint process.
3)AB 347 (Nava), Chapter 526, Statutes of 2007 , established
requirements stipulated in the Valenzuela v. O'Connell et al.
settlement agreement. Specifically, this bill required each
county superintendent of schools to annually verify that
pupils who have not passed the high school exit examination by
the end of grade 12 are informed they are entitled to receive
intensive instruction and services, as specified. These
requirements were added to the existing Williams Settlement
complaint process.
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Chapter 526 also established a funding mechanism for county
superintendents to be compensated for monitoring duties
related to the high school exit examination, as specified.
4)Opposition . Education organizations (Association of
California School Administrators, the San Diego County Office
of Education, and the California Association of Suburban
School Districts) argue the bill has unintended consequences
by banning pupil fees, as specified. Specifically, these
organizations cite language in the bill prohibiting "other
entities" from charging pupil fees. According to the
Association of California School Administrators (ACSA), "The
entities include foundations, booster clubs, and other
volunteers attempting to provide financial support to schools.
ACSA urges you to amend the bill to clearly state that these
other entities do not prevent them from running separate
programs that occur on school district property or school
sponsored events."
Opponents also object to the additional public hearing
and resolution requirements in the bill. According to
the California Association of Suburban School Districts
(CALSSD), "While it is completely appropriate for any
illegal fees to be fully repaid with interest, CALSSD
believes this public hearing process is unnecessary and
possibly counter-productive. Districts should not have
to annually affirm that they have not violated student's
rights. Under no other forum is a district required to
admit that it has violated the law, and provide a remedy
even in the absence of a complaint. Additionally, it is
not clear that any legislative resolution of this case
will protect districts from further lawsuits. This
hearing process, which was not a component of any prior
settlement, will result in significant mandated costs
and could result in a legal cause of action by a parent
or community member."
Analysis Prepared by : Kimberly Rodriguez / APPR. / (916)
319-2081