BILL ANALYSIS Ó
Senate Appropriations Committee Fiscal Summary
Senator Christine Kehoe, Chair
AB 165 (Lara)
Hearing Date: 08/25/2011 Amended: 08/15/2011
Consultant: Jacqueline Wong-HernandezPolicy Vote: Education 6-1
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BILL SUMMARY: AB 165 codifies in statute the constitutional
prohibition on the imposition of pupil fees; it defines pupil
fees and related terms and expressly prohibits pupil fees
declarative of existing law. This bill also establishes new
notice requirements, as well as complaint and enforcement
procedures related to pupil fees.
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Fiscal Impact (in thousands)
Major Provisions 2011-12 2012-13 2013-14
Fund
District self-check Potentially substantial
reimbursable mandate General
Complaint process Potentially substantial
reimbursable mandate General
Notice requirements Potentially significant
reimbursable mandate General
CDE administration / audits $200 $400
$400 General
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STAFF COMMENTS: SUSPENSE FILE. AS PROPOSED TO BE AMENDED.
This bill was introduced as part of the tentative settlement
agreement in Doe v. California, a lawsuit currently pending in
the Los Angeles County Superior Court.
In September 2010, the American Civil Liberties Union (ACLU)
filed a complaint in the Los Angeles Superior Court on behalf of
public school students against the State of California and
Governor Arnold Schwarzenegger. (The complaint was later refiled
against Superintendent of Public Instruction (SPI) Torlakson,
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the Department of Education (CDE), and the State Board of
Education (SBE)). The complaint claimed that "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 constraints, 'financial hardship is no
defense to a violation of the free school guarantee.' Ý(Hartzell
v. Connell (1984) 35 Cal.3d 899, 912.)] 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 December 2010, a tentative settlement agreement was reached
by the Plaintiffs and the State of California (the Defendants).
The settlement agreement required:
A) The Defendants to send a letter (attached to the
settlement agreement) and guidance regarding student fees
to all County and District Superintendents and Charter
School Administrators within two weeks; (Governor
Schwarzenegger sent the letter, as agreed).
B) Both parties engage in good faith efforts to enact
legislation that implements the specific "Legislative
Proposals" attached to the settlement document. The
settlement further provided that the legislation
substantially conform to the Legislative Proposals.
C) Both parties engage in good faith efforts to adopt
regulations that implement the "Regulatory Proposals"
attached to the settlement document.
AB 165 was introduced in January 2011, and is substantially
similar to the Legislative Proposals and Regulatory Proposals of
the settlement agreement, combined into a single piece of
legislation.
In May 2011, the ACLU (on behalf of all plaintiffs) met with the
defendants (the SPI and SBE) and submitted a Joint Status
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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 Plaintiffs' 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." Last month, the Court
issued an order suspending all further briefing until the
outcome of AB 165 is determined.
If AB 165 is signed into law, and its final language is
acceptable to the Plaintiffs, the lawsuit would be voluntarily
dismissed. If AB 165 is not enacted, or is enacted in a form not
satisfying the concerns of the Plaintiffs, the December 2010
settlement agreement would be reopened. If the bill were not
enacted, the Court would determine whether the settlement
agreement should be withdrawn, whether the parties should
attempt legislation anew, or whether another remedy is
appropriate. If the bill were enacted in an amended form not
acceptable to the Plaintiffs, the parties would likely have to
make their cases to the Court as to whether or not the enacted
legislation substantially conforms to the Legislative Proposals
described in the settlement agreement.
The substance of the bill is as follows:
1)This bill requires, commencing with the 2011-12 fiscal year, a
superintendent of a school district, county superintendent of
schools, or governing body of a charter school to determine
whether an unlawful pupil fee has been or, is being charged, in
the current fiscal year. The bill further requires a
determination of unlawful fees to be presented at a public
hearing of the governing board or body before the end of the 8th
week after the first day of school, and requires the governing
board or body to take action to provide full reimbursements to
all affected pupils, parents, or guardians within 10 weeks of
the beginning of the school year in which the determination is
made. For the 2011-12 fiscal year, determinations must be made
by March 1, 2012, and any required reimbursements must be paid
by March 15, 2012. Additionally, the superintendent of a school
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district, county superintendent of schools, or governing body of
a charter school would be required to present its determination
in a public meeting.
This provision creates an extensive new reimbursable state
mandate on local education agencies (LEAs). While compliance
with existing law prohibiting certain pupil fees is a current
responsibility of LEAs, requiring them to perform the specified
self-checks (in order to assess whether an actor or entity
within an LEA's jurisdiction has charged illegal fees is a new
requirement. LEAs would have to implement a system of
investigation and certification, and then apply it to every
staff person and program of every school within its
jurisdiction; this also potentially applies to parent groups and
booster clubs (which are arguably under an LEA's jurisdiction if
they are in any way approved to operate by the LEA). Depending
on the size of the LEA, this work is likely to be extensive due
to the gathering of information related to all educational
activities.
For the 2011-12 fiscal year, this mandate would also likely
include any actual reimbursements that an LEA is forced to pay
to pupils. This bill provides that reimbursement responsibility
belongs to a superintendent of a school district, county
superintendent of schools, or governing body of a charter
school, for any illegal fees charged by any actor or entity
under its jurisdiction; the LEA may not have received the money
collected, which makes a "reimbursement" actually a new cost to
the LEA. For example, if an athletics coach required pupils to
purchase team uniforms, (which would be illegal, and) which the
pupils received, the LEA never received any money (and likely
was unaware of the specific situation). For the 2011-12 school
year, which will be halfway over by the time this bill would
take effect, the LEA would have to reimburse the pupils for
their expenses. LEAs will bear the cost of making pupils whole,
regardless of what happened to the actual illegal fee revenue.
The state will likely have to reimburse these one-time costs.
In future years, the LEA must determine within 8 weeks of the
start of the school year whether fees have been charged in that
fiscal year (beginning July 1), and reimburse accordingly. Staff
notes that the language of this bill only requires LEAs to
self-check within the same fiscal year; the likely effect is
that LEAs determine if any illegal fees have been charged
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between July and November. It is not clear whether they are
required (or allowed) to look back to the previous fiscal year
to see if illegal fees had been charged in the period of time
between the self-check and the end of the same fiscal year. The
author may wish to clarify the time period for which the
self-check applies.
2)This bill adds a complaint procedure related to the imposition
of pupil fees for participation in educational activities to the
existing Williams Uniform Complaint Process (WUCP), established
under the Williams v. State of California settlement agreement.
It requires school districts and charter schools to use the WUCP
to identify and resolve any deficiencies related to the
imposition of pupil fees, as specified, and provides for an
appeals process. This bill requires the complaint process to be
in place by March 1, 2012.
This provision expands the scope of the WUCP to include
identifying and resolving any deficiencies related to the
imposition of pupil fees for participation in educational
activities, and the appeals process. In so doing, this bill
expands the likely number of reimbursable activities under this
state mandate. Schools will have to modify their policies and
processes on coordination with their governing LEAs (e.g.,
school boards), and establish the appeals process for pupil fee
complaints. The CDE will likely incur additional costs to
address appeals, as well as to amend existing WUCP regulations
and related documents.
3) This bill adds to the existing notice requirements of the
WUCP (which requires a notice to be posted in each classroom in
each school in the school district), to include notice that
pupils shall not be charged fees, including security deposits,
or be required to purchase materials or equipment, to
participate in a class or an extracurricular activity, as
specified.
This provision would also expand an existing state mandate by
adding information to the notifications currently required to be
posted in classrooms. Schools would have to update notifications
and post them in every classroom. Any costs to print and post
notices would be reimbursable for schools, but would likely be
one-time, minor additional costs. However, staff notes that
school districts can aggregate their mandate claims to meet the
minimum threshold of $1,000, and thus qualify for reimbursement
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even for minor costs.
4) This bill makes pupil fees subject to the compliance
audits process, and specifies that an audit exception related to
the imposition of pupil fees shall not be deemed corrected until
full reimbursement has been made. It further requires that
emergency regulations be adopted by the CDE to implement new
audit requirements. This bill requires the SPI to withhold 1% of
the administrative costs of school districts, county offices of
education, or charter schools in the subsequent year if the
auditor finds the entities' violation of pupil fee requirements
has not been corrected, or an entity has a new audit exception
for this purpose, as specified, until the entity has reimbursed
all unlawful pupil fees collected.
This provision requires the CDE to develop specified new
regulations to provide oversight to LEAs with regard to pupil
fees, and to administer penalties to LEAs. The CDE would have an
increased role in monitoring LEAs, adjudicating fees, and
providing guidance on the new regulations. The Department
estimates that in order to meet the additional workload created
by AB 165, the CDE would need an additional $402,291 annually
for 3 full-time Education Programs Consultants to handle the
increased workload. Staff notes that the CDE budget has been
reduced by 30% over the past three years.
AB 165 will likely cost the state tens of millions of dollars to
implement. If this bill is not enacted, however, the Court will
re-open the Doe v. California settlement agreement, which will
likely present different (and unknown) state costs. Staff notes
that this bill does differ from the Legislative Proposals
included in the settlement agreement, and that it appears to be
more extensive in its enforcement provisions than the
Legislative Proposals of the settlement agreement.
AS PROPOSED TO BE AMENDED: Proposed amendments would remove the
requirement for LEAs to determine whether illegal pupil fees
have been charged prior to January 1, 2012.