Public schools must provide the clay used in art class, but they can charge a student for taking home his or her finished sculpture. Playing sports is considered part of the educational mission, so schools have to cover all the costs – including uniforms – but attending a game is just for fun so students can pay admission. And schools can ask – even plead – for donations, but can’t require them in order for students to participate in a certain class or activity.
These are the black and white – and gray – rules of a new state law governing when it’s OK to charge students for school-related materials, trips and activities. Under the law, schools were required to implement a formal complaint process allowing families to challenge what they believe are illegal fees by the beginning of this month, but today the state Board of Education starts the process of setting regulations for reimbursing students who were illegally charged for fees in the past year.
“Previously, the only way to resolve this was to file a lawsuit,” said attorney Mark Bresee, a partner at Atkinson, Andelson, Loya, Ruud & Romo, who’s been a school lawyer for 20 years. Now, he says, there’s a more “user-friendly enforcement mechanism.”
The 2012 bill that triggered today’s board action, AB 1575, settled a lawsuit filed by the ACLU in April 2011. That case, Jane Doe and Jason Roe v. The State of California, accused state education officials of looking the other way while public schools charged students and their families hundreds of dollars or more for everything from textbooks and graphing calculators to participation in field trips.
AB 1575 doesn’t change the law; that’s been settled by court cases and opinions from the state attorney general for some time. Article IX, Section 5 of the State Constitution already states that “The Legislature shall 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.”
In 1984, the State Supreme Court essentially reaffirmed that in Hartzell v. Connell, ruling that once the community decides what’s an important component of an educational program, “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.”
What the law does do is codify those rules and opinions into the California Education Code, and requires the State Board to add a definition of pupil fees and incorporate the new process and timeline for resolving complaints into Title 5 of the Ed Code, which governs how districts must respond to complaints. The amendments that the Board approves today will then go out for public comment and a public hearing on May 14. Final regulations aren’t expected before July.
But the law is still a bit of morass. Especially since there are separate regulations outlining 20 instances where a school may charge fees, and the boundaries aren’t always clear-cut.
“What we’re hearing from parents is confusion because they’re not really sure what the law means,” said Patty Scripter, director of legislation for the California State PTA. In particular, for an organization that raises money to support local schools, Scripter said there is misunderstanding about fundraising. Even attorneys aren’t quite clear about the law in this area.
It doesn’t prohibit schools or parents from voluntary fundraising, said Bresee, but there’s not consensus on the parameters, those narrow gray spaces where a teacher or parent might cross the line between asking and mandating.
When talking to educators and parents, “I find myself saying, ‘it depends,’ a lot,” said Bresee. That’s because each situation may be unique. For example, if a coach tells all the players that the team needs money and could really use a $200 donation from every family, and is clear that paying won’t affect a student’s standing on the team, that’s OK. “But, if two weeks later the same coach makes five kids stay after practice because they’re the only ones who didn’t pay, you’ve just crossed the line,” he explained.
Adding to the confusion is the way a school is allowed to approach the issue of helping students who can’t afford to pay for something. A teacher can ask for donations for a school-sponsored field trip, but can’t ask students who don’t have the money to talk to the teacher about getting it covered.
“You can’t ask people to self identify as low-income,” said Brooks Allen, director of education advocacy for the ACLU of Southern California, and you can’t have a field trip available only for those who pay. Allen said it’s all or nothing; either the school raises enough money for everyone, or no one goes.
For now, the big push is on educating all school personnel, PTA members and other school volunteers about the cans and cannots of the law. No one is ruling out future legal action, if just to get the court to better clarify those blurry edges.