BILL ANALYSIS �
AB 165
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ASSEMBLY THIRD READING
AB 165 (Lara)
As Amended May 27, 2011
Majority vote
EDUCATION 6-2 APPROPRIATIONS 12-5
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|Ayes:|Brownley, Ammiano, |Ayes:|Fuentes, Blumenfield, |
| |Butler, Carter, Eng, | |Bradford, Charles |
| |Williams | |Calderon, Campos, Davis, |
| | | |Gatto, Hall, Hill, Lara, |
| | | |Mitchell, Solorio |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Norby, Wagner |Nays:|Harkey, Donnelly, |
| | | |Nielsen, Norby, Wagner |
| | | | |
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SUMMARY : Reinforces the Constitutional 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, and requires this to be added to
the K-12 audit guide commencing with audits of fiscal year
2011-12.
2)Extends the uniform complaint process to include complaints
related to the imposition of pupil fees, requires a school
district, county office of education (COE) and charter school
to use its adopted uniform complaint process to identify and
resolve any related deficiencies, and makes the principal or
designee of a charter school responsible for investigation and
resolution of related complaints.
3)Requires a notice to be posted in each classroom in each
school 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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4)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 reimbursements
pursuant to 6) below are completed.
5)Requires the Superintendent of Public Instruction (SPI), upon
the reporting of any audit finding related to the imposition
of pupil fees, to withhold 1% of the school district's, COE's
or charter school's administrative expenditures from the next
principal apportionment until the local education agency (LEA)
reimburses illegal fees, requires the SPI to instead withhold
an amount equal to 10 times the amount of pupil fees imposed
if the auditor is unable to calculate the amount equal to 1%
of the administrative expenditures of a charter school or if
the fees collected are greater than 1% of administrative
expenditures, and requires the SPI to hold such withheld funds
in trust until reimbursement is made.
6)Provides a statutory prohibition on the imposition of pupil
fees, specifies the nature of those prohibited fees, and
requires the SPI to require a school, school district, or
charter school that has unlawfully imposed a pupil fee to
fully reimburse all affected parties.
7)Requires the superintendent of a school district or COE, or
the governing body of a charter school to determine whether
illegal pupil fees were or are being charged; also requires
such determination to be presented, along with information on
the fees and related remedies, at a regularly scheduled public
hearing held within eight weeks after the start of the school
year.
8)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
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months in every year, after the first year in which a school
has been established."
2)Requires each LEA and charter schools to:
a) Adopt policies and procedures to insure compliance with
applicable state and federal laws and regulations,
including the establishment of a uniform system of
complaint processing for specified programs, activities or
requirements;
b) Provide for an annual audit of its books and accounts,
and requires the audit to be completed by an auditor deemed
by the State Controller to be qualified; and,
c) Post a notice in each classroom in each school notifying
parents, guardians, pupils and teachers of specific
compliance requirements, including sufficiency of
textbooks, maintenance of facilities, and misassignment of
teachers.
FISCAL EFFECT : According to the Assembly Appropriations
Committee:
1)Potential, unknown General Fund (GF), Proposition 98 cost
pressure, of approximately $22.7 million, to school districts,
COEs, and charter schools to reimburse pupils/parents for fees
charged. 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.
2)GF administrative costs, of approximately $348,000, to the
California Department of Education (CDE) to administer the
provisions of this bill. Specifically, CDE asserts it needs
staff to conduct appeals and implement any penalties incurred
by school districts, COEs, and charter schools for not
complying with this measure.
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. In
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Hartzell v. Connell (1984; 35 Cal.3d 899, 201), the California
Supreme Court articulated how pupil fees on educational
activities, including those imposed for extracurricular
activities, violate the California Constitution. The Court
basically stated that fees may be charged for activities that
are recreational, but not for those that are educational;
however, 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 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."
The Court 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 for students with financial
need; a fee waiver policy for needy students does not make the
fee allowable. The 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.
On August 10, 2010, the American Civil Liberties Union (ACLU)
released a report that detailed the results of an investigation
which uncovered more than 50 public school districts in which
students must pay fees in order to participate in educational
programs. The types of fees being charged included charges for
text books, workbooks, science lab fees, material fees for fine
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arts classes, and required purchases of physical educaction
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 �Jane Doe, et al. v. State of California, et al., (Super.
Ct. Los Angeles County, 2010, BC445151)].
Former Governor Schwarzenegger and the ACLU announced a
tentative settlement in Doe v. California on December 9. 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; though initially signed
and approved by the parties, the settlement was never finalized
by the court. Though this bill is not explicitly linked to the
pending litigation or to any settlement agreement, the
underlying issue motivating both the lawsuit and this bill is
certainly the same, and the types of remedies being sought in
the complaint are consistent with the proposals made in this
bill.
Under current law and this bill, schools may lawfully pursue
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; 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
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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.
Analysis Prepared by : Gerald Shelton / ED. / (916) 319-2087
FN: 0001104