BILL ANALYSIS �
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|SENATE RULES COMMITTEE | AB 165|
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THIRD READING
Bill No: AB 165
Author: Lara (D), et al.
Amended: 8/30/11 in Senate
Vote: 21
SENATE EDUCATION COMMITTEE : 6-1, 6/29/11
AYES: Lowenthal, Alquist, Hancock, Liu, Price, Simitian
NOES: Blakeslee
NO VOTE RECORDED: Runner, Huff, Vargas, Vacancy
SENATE APPROPRIATIONS COMMITTEE : 5-4, 8/25/11
AYES: Kehoe, Alquist, Pavley, Price, Steinberg
NOES: Walters, Emmerson, Lieu, Runner
ASSEMBLY FLOOR : 53-21, 6/2/11 - See last page for vote
SUBJECT : Pupil fees
SOURCE : Author
DIGEST : This bill 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, and establishes new
notice requirements, as well as complaint and enforcement
procedures related to pupil fees.
ANALYSIS : 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
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district at least six months in every year, after the first
year in which a school has been established.
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.
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.
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
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, Statutes of
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.
This bill:
1. 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.
2. Requires a determination of unlawful fees to be
presented at a public hearing of the governing board or
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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 district,
county superintendent of schools, or governing body of a
charter school will be required to present its
determination in a public meeting.
3. 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.
4. 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.
5. 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
6. 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.
7. 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.
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8. Requires that emergency regulations be adopted by the
CDE to implement new audit requirements.
9. Requires the SPI to withhold one percent 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.
Comments
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."
A March 2011 report released by the University of
California Los Angeles Institute for Democracy, Education
and Access noted that 19 percent 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
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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.
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 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 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
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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 this bill through the legislative process.
If this bill 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
this bill through the legislative process.
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
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
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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 were
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 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
arts classes, and required purchases of physical education
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)].
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
According to the Senate Appropriations Committee:
Fiscal Impact (in thousands)
Major Provisions 2011-12 2012-13
2013-14 Fund
District self-check
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Potentially substantial reimbursable
General
mandate
Complaint process
Potentially substantial reimbursable General
mandate
Notice requirements Potentially
significant reimbursable General
mandate
CDE administration/ $200 $400 $400General
audits
SUPPORT : (Per Senate Committee on Education analysis f
6/20/11) (unable to reverify at time of writing)
American Civil Liberties Union
Association of American Publishers
California Catholic Conference, Inc.
California Federation of Teachers
California State PTA
OPPOSITION : ((Per Senate Committee on Education analysis
f 6/20/11) (unable to reverify at time of writing)
California Association of School Business Officials
Metropolitan Education District
Riverside County School Superintendent Association
San Bernardino County District Advocates for Better Schools
ARGUMENTS IN SUPPORT : 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 this bill 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.
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ARGUMENTS IN OPPOSITION : 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."
ASSEMBLY FLOOR :
AYES: Alejo, Allen, Ammiano, Atkins, Beall, Block,
Blumenfield, Bonilla, Bradford, Brownley, Buchanan,
Butler, Charles Calderon, Campos, Carter, Cedillo,
Chesbro, Conway, Davis, Dickinson, Eng, Feuer, Fong,
Fuentes, Furutani, Galgiani, Gatto, Gordon, Hayashi,
Roger Hern�ndez, Hill, Huber, Hueso, Huffman, Lara,
Bonnie Lowenthal, Ma, Mendoza, Miller, Mitchell, Monning,
Pan, Perea, V. Manuel P�rez, Portantino, Skinner,
Solorio, Swanson, Torres, Wieckowski, Williams, Yamada,
John A. P�rez
NOES: Achadjian, Cook, Donnelly, Fletcher, Garrick, Grove,
Hagman, Harkey, Jeffries, Jones, Knight, Logue, Mansoor,
Morrell, Nestande, Nielsen, Norby, Silva, Smyth, Valadao,
Wagner
NO VOTE RECORDED: Bill Berryhill, Beth Gaines, Gorell,
Halderman, Hall, Olsen
CPM:do 8/30/11 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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