BILL ANALYSIS �
SENATE COMMITTEE ON EDUCATION
Alan Lowenthal, Chair
2011-12 Regular Session
BILL NO: AB 165
AUTHOR: Lara
AMENDED: June 20, 2011
FISCAL COMM: Yes HEARING DATE: June 29, 2011
URGENCY: No CONSULTANT:Beth Graybill
SUBJECT : Pupil fees.
SUMMARY
This bill reinforces the Constitutional prohibition on the
imposition of pupil fees and establishes policies to ensure
compliance with the prohibition.
BACKGROUND
The California Constitution requires 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. (California Constitution, Article IX,
Section 5)
Existing law establishes that state-supported educational
opportunities are a right to be enjoyed without regard to
economic status and prohibits school officials from requiring
any pupil, except for pupils in classes for adults, to
purchase any instructional material for the pupils' use in
the school.
(Education Code � 51004 and � 60070)
Existing law specifies that a pupil enrolled in a school
shall not be required to pay any fee, deposit, or other
charge not specifically authorized by law.
(California Code of Regulations, Title 5, Section 350)
Existing law, through the California Code of Regulation,
requires school districts to adopt Uniform Complaint
Procedures (UCP) that provide a process by which the public
can file written statements alleging discrimination or a
violation of a federal or state law and that delineate the
responsibilities of the complainant, the local educational
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agency, and the California Department of Education (CDE).
Existing law, through statute, establishes a UCP for
complaints regarding instructional materials, emergency or
urgent facilities conditions that pose a threat to the health
and safety of pupils, and teacher vacancy or misassignment.
AB 347 (Nava, Chapter 526, 2007), requires local education
agencies that receive intensive instruction funds to post a
notice in Grades 10-12 classrooms and provide an area on
complaint forms for alleging a lack of opportunity to receive
intensive instruction
and services for pupils who have not passed one or both parts
of the California High School Exit Exam (CAHSEE).
(California Code of Regulations, Title 5, Section 4600 and EC
� 35186)
ANALYSIS
With regard to pupil fees, this bill :
1) Prohibits a school district, school, charter school,
county office of education, or any other entity working
under the supervision of, or in coordination with, a
school district, school, charter school, or county
office of education, from imposing a pupil fee for
participation in educational activities.
2) Defines "pupil fee" as a fee, deposit, or other charge
imposed on pupils, or a pupil's parents or guardians in
violation of Section 49011 and the California
Constitution 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 that a fee includes:
a) A fee charged to a pupil as a condition for
registering for school or classes or as a condition
for participation in a class or an extracurricular
activity, regardless of whether the class or
activity is elective or compulsory, or is for
credit.
b) A security deposit or other payment that a
pupil is required to make to obtain a lock, locker,
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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 educational activities.
3) Defines educational activity to mean an activity offered
by a school, school district, charter school or county
office of education that constitutes an integral
fundamental part of elementary and secondary education,
or that amounts to a necessary element of a school
activity, including, but not limited to, curricular and
extracurricular activities.
4) Requires all supplies, materials, and equipment needed
to participate in educational activities to be provided
to pupils free of charge and specifies that a fee-waiver
policy shall not make a pupil fee permissible.
5) Prohibits school districts and schools from establishing
a two-tier educational system or offering course credit
or privileges related to educational activities in
exchange for money or donations of goods or services
from a pupil or a pupil's parents or guardians.
6) Specifies that this legislation not be interpreted to
prohibit solicitation of voluntary donations of funds or
property, voluntary participation in fundraising
activities, or school districts and schools from
providing pupils prizes or other recognition for
voluntarily participating in fundraising activities.
7) Specifies that the provisions of this legislation
applies to all public schools, including, but not
limited to, charter schools and alternative schools.
With regard to accountability, this bill :
8) 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. Requires a determination of unlawful fees to be
presented at a public hearing of the governing board or
body before the end of the eighth week after the first
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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.
9) Adds a complaint related to the imposition of pupil fees
for participation in educational activities to the
existing Williams Uniform Complaint Process established
under the Williams v. State of California settlement
agreement (WUCP) and requires school districts and
charter schools to use the Williams Uniform Complaint
process with modifications as necessary to identify and
resolve any deficiencies related to the imposition of
pupil fees for participation in educational activities.
a) Specifies that a complainant not satisfied
with the resolution offered by a school principal
or the designee of the district superintendent or
charter school has the right to file an appeal to
the Superintendent of Public Instruction, who shall
provide, within 30 working days, a written report
to the State Board of Education and the
complainant. If the report finds a school district
or charter school as unlawfully imposed a pupil
fee, the Superintendent must require the district,
charter school, or school to fully reimburse all
affected pupils, parents, or guardians.
10) 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) 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.
11) 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
charted fees and (b) the location in which to obtain a
form to file a complaint in case there is a shortage of
complaint forms, as specified.
12) Requires a school district, county office of education,
and charter school to establish local policies and
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procedures, post notices and implement the specified
complaint procedures on or before January 1, 2012.
13) Makes pupil fees subject to the compliance audits
process. Specifies that an audit exception related to
the imposition of pupil fees shall not be deemed
corrected until full reimbursement has been made.
14) Requires the SPI to withhold one percent of
administrative costs of school districts, county offices
of education, 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 reimbursed all unlawful pupil
fees collected.
15) Provides for local educational agencies to be reimbursed
for costs associated with complying with the
requirements of this act if the Commission on State
Mandates determines that the act contains mandated
costs.
STAFF COMMENTS
1) Need for the bill . The California Constitution entitles
public school pupils to a free and equal education and
current law specifies that state-supported educational
opportunities are a right to be enjoyed without regard
to economic status. Additionally, the California Code
of Regulations prohibits schools from charging pupils
fees, deposits, or other charges not specifically
authorized by law. In 1984, the California Supreme
Court ruled in Hartzell v. Connell that public schools
cannot charge students or families fees as a condition
for participating in educational programs, including
extracurricular activities. The Court opined that
because extracurricular activities are an integral
component of public education and are therefore part of
the educational program, they must be free. The opinion
further stated that "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."
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A March 2011 report released by the University of California
Los Angeles Institute for Democracy, Education and
Access noted that 19% of school principals surveyed
indicated that their schools have begun requiring
students and families to pay for instructional
materials. In August 2010, the American Civil Liberties
Union (ACLU) released a report that detailed the results
of an investigation that found more than 50 public
school districts that charge pupil fees for
participating in educational programs. The types of
fees ranged from charges for text books, workbooks,
science lab fees, material fees for fine arts classes,
and required purchases of physical education uniforms.
The study found that charges for participation in
extracurricular activities were often in the hundreds,
and in some cases, thousands of dollars. According to
the author's office, there are no accountability systems
in place to identify and address such fees.
This bill reinforces existing prohibitions against public
schools charging pupil fees and establishes an
accountability system to identify and correct unlawful
fees. According to the author's office, the purpose of
AB 165 is to explicitly codify the prohibition of school
fees, empower students and parents to challenge unlawful
fees and receive reimbursements through existing
administrative procedures that provide local resolution
in a timely manner.
2) Overview of pending litigation . In September 2010, the
ACLU filed a class action lawsuit against the state
(Jane Doe, et al. v. State of California, et al., Super.
Court, Los Angeles County, 2010, BC445151) claiming
that many of the fees charged for school activities and
supplies violate the California Constitution and various
provisions of the Education Code.
In December 2010, former Governor Schwarzenegger and the ACLU
announced a tentative settlement in Doe v. California.
The Settlement included legislative proposals that would
have established a monitoring and enforcement system in
order to ensure that school districts do not unlawfully
charge fees to students for educational activities. The
parties agreed to engage in good faith efforts to obtain
the enactment of legislation to implement the
legislative proposals. The Settlement was signed and
approved by the parties, although it was not finalized
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by the court and did not become effective.
The complaint was amended in April 2011 to include the newly
elected SPI, Tom Torlakson, the CDE, and the State Board
of Education (SBE). The complaint states: "The State's
failure has also deprived students who are unable to pay
mandatory fees of their "fundamental right" to "basic
educational equality" under the California Constitution.
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
equity 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 schools guarantee.' (Hartzell, 35
Cal 3d at 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 May 2011, the ACLU met with the SPI and SBE and as a
result, 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." The State of California did
not agree to the stay and suggested that the action be
dismissed, pending movement of AB 165 through the
legislative process.
3) Administrative concerns . Much of this bill, which is
not an urgency measure, becomes effective during the
2011-12 fiscal year, which will be half over by the time
this bill is enacted. It requires, for example, audit
procedures to be adopted so they can be used for audits
commencing with the 2011-12 fiscal year. It requires
local educational agencies to establish local policies
and procedures, post notices, and implement provisions
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of the WUCP concerning pupil fees by January 1, 2012,
and requires superintendents to determine, beginning
with the 2011-12 fiscal year, whether pupil fees have
been unlawfully charged. Assuming the bill is signed
into law, it would become effective on January 1, 2012.
Does this give local educational agencies adequate time
to adjust budgets, develop procedures, or adopt policies
that will be necessary to successfully implement key
components of this bill? Additionally, the requirements
required in Section 49012 would apply to and require
reimbursements for fees that may have been charged
before the bill becomes law. Absent amendments that
would either postpone some of the deadlines imposed by
the bill or add an urgency clause, this bill establishes
deadlines that may be unattainable.
Opponents object to a public hearing to determine if illegal
fees were charged during the year. According to the San
Bernardino County District Advocates for Better Schools,
"While it is appropriate to require fees to be repaid
with interest, districts should not have to annually
affirm that they have not violated student rights.
Under no other forum is a district required to admit
that it has violated the law and provide a remedy even
if no complaint has been filed."
4) Fiscal impact . According to the Assembly Appropriations
Committee analysis, this bill has unknown General
Fund/Proposition 98 cost pressure, of approximately $23
million, to school districts, county offices of
education, and charter schools to reimburse
pupils/parents for fees charged. It is possible that
these agencies could file a state mandate claim to seek
reimbursement from the state. Additional General Fund
costs of approximately $348,000 to the CDE to administer
the provisions of this bill, which would include
conducting appeals and implementing any penalties
incurred to school districts, COEs, and charter schools
for not complying with this measure.
SUPPORT
American Civil Liberties Union
Association of American Publishers
California Catholic Conference, Inc.
California Federation of Teachers
California State PTA
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OPPOSITION
California Association of School Business Officials
Metropolitan Education District
Riverside County School Superintendent Association
San Bernardino County District Advocates for Better Schools