BILL ANALYSIS �
AB 165
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CONCURRENCE IN SENATE AMENDMENTS
AB 165 (Lara)
As Amended August 30, 2011
Majority vote
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|ASSEMBLY: |53-21|(June 2, 2011) |SENATE: |23-15|(September 1, |
| | | | | |2011) |
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Original Committee Reference: ED.
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; also, 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.
3)Requires the Superintendent of Public Instruction (SPI), upon
the reporting of any audit finding related to the imposition
of pupil fees, to withhold a specified amount of an
educational entity's administrative expenditures from future
funding allocations until the entity reimburses illegal fees,
and requires the SPI to hold such withheld funds in trust
until reimbursement is made.
4)Provides a statutory prohibition on the imposition of fees on
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pupils enrolled in a public school, 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.
5)Requires the superintendent of a school district or COE, or
the chief executive officer of a charter school to determine
whether illegal pupil fees were or are being charged, and
requires that educational entity to fully reimburse all
affected parties within 10 weeks of the beginning of the
school year in which that determination is made; 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. For the 2011-12 fiscal year,
requires the public hearing to be held on or before March 1,
2012, and reimbursement made on or before March 15, 2012.
6)Clarifies that the provisions of this bill do not prohibit
solicitation of voluntary donations of funds or property,
voluntary participation in fundraising activities, or school
districts, schools, and other entities from providing pupils
prizes or other recognition for voluntarily participating in
fundraising activities.
The Senate amendments :
1)Delete the prohibition on a school district, school, charter
school, COE or any other entity from imposing pupil fees, and
instead directly prohibits fees from being required for a
pupil enrolled in a public school to participate in an
educational activity.
2)Clarify an educational activity to be an activity offered by a
school, school district, charter school, or COE.
3)Clarify that the provisions of this bill do not prohibit
solicitation of voluntary donations of funds or property,
voluntary participation in fundraising activities, or school
districts, schools, and other entities from providing pupils
prizes or other recognition for voluntarily participating in
fundraising activities.
4)Specify that the full reimbursement of any party affected by
the imposition of pupil fees occur within 10 weeks of the
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beginning of the school year in which those fees are
determined to exist.
5)Extend the requirement that a superintendent of a school
district or COE, or chief executive officer of a charter
school, determine whether illegal pupil fees are being
charged:
a) For the 2011-12 fiscal year, to fees charged on or after
January 1, 2012; and,
b) To each fiscal year after 2011-12.
6)Clarify timing requirements for public meetings and
reimbursements related to illegal pupil fees identified in the
2011-12 fiscal year versus subsequent fiscal years.
7)Clarify language and terms used in the bill.
EXISTING LAW :
1)Requires, in the California Constitution, that the
Legislature, "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."
2)Requires each school district, COE and charter school to 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; to provide for an annual audit of its
books and accounts, as specified; and, to post a notice in
each classroom in each school notifying parents, guardians,
pupils and teachers of specified compliance requirements.
AS PASSED BY THE ASSEMBLY , this bill was substantially similar
to the version passed by the Senate.
FISCAL EFFECT : According to the Senate Appropriations
Committee, this bill 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 lawsuit, which will
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likely present different (and unknown) state costs. The
committee notes General Fund costs created by reimbursable
mandates and associated with increased administrative workload
for the California Department of Education.
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
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.
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 fees 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)]. Former Governor Schwarzenegger and the ACLU
announced a tentative settlement in Doe v. California on
December 9, 2010. 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
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enactment of legislation; though initially signed and approved
by the parties, the court never finalized this settlement.
The ACLU filed an amended complaint in Doe v. California on
April 7, 2011, dropping the Governor as a defendant in the case,
adding the SPI, the California Department of Education, and the
California State Board of Education (SBE) as defendants (since
they would be the parties involved in any future remedies), and
providing more historical detail regarding state reaction to and
oversight of the imposition of pupil fees. 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.
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 legal 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
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.
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Analysis Prepared by : Gerald Shelton / ED. / (916) 319-2087
FN: 0002581