DOE V. CALIFORNIA SETTLEMENT IMPLEMENTATION AGREEMENT

Transcription

1 DOE V. CALIFORNIA SETTLEMENT IMPLEMENTATION AGREEMENT It is hereby agreed among the Defendants (the State of California and Governor Arnold Schwarzenegger) and the plaintiff class representatives ( Plaintiffs ) (collectively, the Settling Parties ) in Doe v. California, Case Number BC in the Superior Court in and for the County of Los Angeles ( the Action ) that: 1. On September 10, 2010, Plaintiffs filed the Action, alleging that Defendants violated their constitutional duty to provide free and equal education by failing to ensure that California public school districts do not charge fees for educational activities. The Settling Parties agree that requiring public school students to pay fees or purchase materials for either curricular or extracurricular educational activities is prohibited by the California Constitution. See Cal. Const. art. IX, 5, art. I, 7(a) & art. IV, 16(a); Hartzell v. Connell, 35 Cal. 3d 889 (1984). 2. The Defendants enter into this Settlement Agreement to help ensure that districts comply with California law. The Defendants do not concede or admit any liability or wrongdoing. No party, including but not limited to the Plaintiffs, shall construe this Settlement Agreement or any party s performance hereunder, as an admission of any liability or wrongdoing. The provisions of this Settlement Agreement notwithstanding, the Settling Parties agree that nothing in this Settlement Agreement shall be construed so as to void or otherwise affect the enforceability of statutes that permit the charging of certain fees consistent with the California Constitution. 3. Promptly after the Settling Parties execute this Settlement Agreement, Plaintiffs (or, at the State s option, the State and Plaintiffs jointly) shall file a Notice of Settlement. The Notice of Settlement will describe the terms of the settlement, seek the Court s preliminary approval of the settlement, and seek approval to proceed according to the process established in this settlement agreement, including a stay of the litigation pending final court approval. Plaintiffs shall circulate the Notice of Settlement to the Defendants for their review and comment before the Notice is filed with the Court. 4. The Defendants agree to send the attached letter and guidance regarding student fees to all County and District Superintendents and Charter School Administrators within two weeks after the date of execution of this settlement agreement. 5. The Settling Parties agree to engage in good faith efforts to obtain the enactment of legislation that implements the legislative proposals attached to this Settlement Agreement (the Legislative Proposals ) as soon as possible, and no later than September 30, Consistent with this commitment, the Settling Parties also agree that during 1

2 fiscal years and they will not advocate or support any legislative measures relating to the Legislature s consideration of the proposed legislation to implement the settlement that do not substantially conform to the Legislative Proposals. A legislative measure does not Substantially Conform to the Legislative Proposals if it is inconsistent with the language and intent of the Legislative Proposals, including all duties, limitations, and deadlines set forth therein. 6. The Settling Parties agree to engage in good faith efforts to obtain the adoption of regulations that implement the regulatory proposals attached to this Settlement Agreement (the Regulatory Proposals ) for the Audit Guide pursuant to California Education Code Section as soon as possible, and no later than March 1, Consistent with this commitment, the Settling Parties also agree that during fiscal years and they will not advocate or support any regulatory measures relating to the proposed regulations to implement the settlement that do not substantially conform to the Regulatory Proposals. A regulatory measure does not Substantially Conform to the Regulatory Proposals if it is inconsistent with the language and intent of the Regulatory Proposals, including all duties, limitations, and deadlines set forth therein. 7. The Plaintiffs shall await the outcome of the efforts to enact the Legislative Proposals until August 31, If the Legislature has not passed a bill that seeks to implement the Legislative Proposals by August 31, 2011, then, after consultation, the Plaintiffs may apply to the Court for leave to withdraw from the Settlement Agreement and to lift the stay of the litigation, and the Defendants will not oppose the dissolution of the stay. 8. The Plaintiffs shall await the outcome of the efforts to enact the Regulatory Proposals until March 1, If regulations that seek to implement the Regulatory Proposals have not been adopted by the Education Audit Appeals Panel and approved by the Office of Administrative Law by March 1, 2011, then, after consultation, the Plaintiffs may apply to the Court for leave to withdraw from the Settlement Agreement and to lift the stay of the litigation, and the Defendants will not oppose the dissolution of the stay. 9. No later than October 3, 2011, Plaintiffs shall notify Defendants whether they agree that the legislation that has been passed by the Legislature and signed by the Governor (the Fees Legislation ) Substantially Conforms to the Legislative Proposals and whether they agree that the regulations adopted by the Education Audit Appeals Panel and approved by the Office of Administrative Law (the Fees Regulations ) Substantially Conform to the Regulatory Proposals, which agreement shall not be unreasonably withheld. If the Plaintiffs agree that the Fees Legislation and the Fees Regulations Substantially Conform, they shall promptly take all steps necessary to certify a class for purposes of settlement, wherein the settlement class shall be defined to include all current and future students in 2

3 California public schools who have been or will be required to pay fees or purchase materials for courses for academic credit up to and including the date on which the Court grants final approval of the settlement. Defendants shall provide all reasonable cooperation in the effort to certify the settlement class. Once the class has been certified, Plaintiffs shall submit a motion for final approval of the settlement and dismissal of the Action as provided in this Settlement Agreement. 10. In the event that Plaintiffs believe the Fees Legislation does not Substantially Conform to the Legislative Proposals and/or the Fees Regulations do not Substantially Conform to the Regulatory Proposals, they shall engage in consultation (as described in paragraph 12 below), giving written notice to Defendants of the alleged deficiencies and providing the Defendants with an opportunity to cure any alleged shortcoming. If the Defendants do not cure the alleged deficiencies, or are unable to cure them, the Plaintiffs may apply to the Court for leave to withdraw from the Settlement Agreement and to lift the stay of the litigation. 11. In the event the Court grants final approval of the settlement: a. The Settling Parties agree that plaintiffs and members of the plaintiff class waive all current and future claims against the Defendants, including but not limited to all claims for declaratory or injunctive relief, that arise from acts or omissions allegedly attributable to Defendants up to and including the date on which the Court grants final approval of the settlement, including those claims that were or could have been pled based on the factual allegations included in the complaint filed on September 10, b. The Settling Parties further agree the Action will be dismissed with prejudice subject to approval by the Court pursuant to California Code of Civil Procedure section 581, subdivision (k), and that such a dismissal will extinguish all current and future claims against the Defendants, including but not limited to all claims for declaratory or injunctive relief, that arise from acts or omissions allegedly attributable to Defendants up to and including the date on which the Court grants final approval of the settlement, including those claims that were or could have been pled based on the factual allegations included in the complaint filed on September 10, c. Plaintiffs may request that the Court award to them attorneys fees and costs, and the award of any such fees and costs will be determined by the Court in accordance with applicable law. 3

4 12. The terms Defendants and Settling Parties as used in this Settlement Agreement, including specifically but not limited to paragraphs 1-10, 11(a) and 11(b), and 13-14, shall not include any local public agency or entity, such as a school district or other local education agency. 13. The Settling Parties shall endeavor in good faith to resolve informally any differences regarding interpretations of, and compliance with, this Settlement Agreement prior to bringing such matters to the Court for resolution. However, if any Settling Party fails to perform in a timely manner any act required by this Agreement, regardless of the reason, or otherwise acts in violation of any provision of this Settlement Agreement, the burdened party may, after failure of good faith efforts to resolve the matter, move the Court to dissolve this Settlement Agreement and lift the stay on litigation. 14. This Settlement Agreement may be signed in counterparts, and all so executed counterparts shall constitute the Settlement Agreement, which shall be binding on the Settling Parties. More than one counterpart of this Agreement may be executed by the Parties hereto, and each executed counterpart (whether via facsimile, photocopy or original) shall be deemed an original. 4

5 Dated: December, 2010 PLAINTIFFS JANE DOE, A MINOR, BY HER GUARDIAN AD LITEM, ET. AL., EACH INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATIONS By: Mark D. Rosenbaum Brooks M. Allen David Sapp ACLU Foundation of Southern California Dan Marmalefsky Saro Balian Douglas J. Beteta Morrison & Foerster, LLP Alan L. Schlosser Jory C. Steele ACLU Foundation of Northern California David Blair-Loy ACLU Foundation of San Diego & Imperial Counties Attorneys for Plaintiffs 5

6 Dated: December, 2010 DEFENDANTS THE STATE OF CALIFORNIA AND ARNOLD SCHWARZENEGGER, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE STATE OF CALIFORNIA By: Jonathan E. Rich Deputy Attorney General Edmund G. Brown Jr. Attorney General of California Douglas M. Press Senior Assistant Attorney General Richard T. Waldow Supervising Deputy Attorney General Attorneys for Defendants Dated: December, 2010 DEFENDANT ARNOLD SCHWARZENEGGER, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE STATE OF CALIFORNIA By: Daniel P. Maguire Deputy Legal Affairs Secretary Office of Governor Arnold Schwarzenegger 6

7 LEGISLATIVE PROPOSALS Proposed amendments to California Education Code Sections 14501, 35186, and and proposed addition of California Education Code Section

8 (Bill to be enacted with an urgency clause.) [Proposed amendments are in strikethrough and underlined text.] SEC 1. Section of the Education Code is amended to read: (a) As used in this chapter, "financial and compliance audit" shall be consistent with the definition provided in the "Standards for Audits of Governmental Organizations, Programs, Activities, and Functions" promulgated by the Comptroller General of the United States. Financial and compliance audits conducted under this chapter shall fulfill federal single audit requirements. (b) As used in this chapter, "compliance audit" means an audit that ascertains and verifies whether or not funds provided through apportionment, contract, or grant, either federal or state, have been properly disbursed and expended as required by law or regulation or both and includes the verification of each of the following: (1) The reporting requirements for the sufficiency of textbooks or instructional materials, or both, as defined in Section (2) Teacher misassignments pursuant to Section (3) The accuracy of information reported on the School Accountability Report Card required by Section The requirements set forth in paragraphs (1) and (2) and this paragraph shall be added to the audit guide requirements pursuant to subdivision (b) of Section (4) Compliance with Section and the free school guarantee in Section 5 of Article IX of the California Constitution. SEC 2. Section of the Education Code is amended to read: (a) A school district shall use the uniform complaint process it has adopted as required by Chapter 5.1 (commencing with Section 4600) of Title 5 of the California Code of Regulations, with modifications, as necessary, to help identify and resolve any deficiencies related to instructional materials, emergency or urgent facilities conditions that pose a threat to the health and safety of pupils or staff, teacher vacancy or misassignment, and intensive instruction and services provided pursuant to Section to pupils who have not passed one or both parts of the high school exit examination after the completion of grade 12, and fees, deposits, or other charges related to participation in a curricular or extracurricular activity. (1) A complaint may be filed anonymously. A complainant who identifies himself or herself is entitled to a response if he or she indicates that a response is requested. A complaint form shall 8

9 include a space to mark to indicate whether a response is requested. If Section is otherwise applicable, the response, if requested, and report shall be written in English and the primary language in which the complaint was filed. All complaints and responses are public records. (2) The complaint form shall specify the location for filing a complaint. A complainant may add as much text to explain the complaint as he or she wishes. (3) Except as provided pursuant to paragraph (4), a complaint shall be filed with the principal of the school or his or her designee. A complaint about problems beyond the authority of the school principal shall be forwarded in a timely manner but not to exceed 10 working days to the appropriate school district official for resolution. (4) A complaint regarding any deficiencies related to intensive instruction and services provided pursuant to Section to pupils who have not passed one or both parts of the high school exit examination after the completion of grade 12 shall be submitted to the district official designated by the district superintendent. A complaint may be filed at the school district office, or it may be filed at the schoolsite and shall be immediately forwarded to the designee of the district superintendent. (b) The principal or the designee of the district superintendent, as applicable, shall make all reasonable efforts to investigate any problem within his or her authority. The principal or designee of the district superintendent shall remedy a valid complaint within a reasonable time period but not to exceed 30 working days from the date the complaint was received. The principal or designee of the district superintendent shall report to the complainant the resolution of the complaint within 45 working days of the initial filing. If the principal makes this report, the principal shall also report the same information in the same timeframe to the designee of the district superintendent. (c) A complainant not satisfied with the resolution of the principal or the designee of the district superintendent has the right to describe the complaint to the governing board of the school district at a regularly scheduled hearing of the governing board. As to complaints involving a condition of a facility that poses an emergency or urgent threat, as defined in paragraph (1) of subdivision (c) of Section or fees, deposits, or other charges related to participation in a curricular or extracurricular activity, a complainant who is not satisfied with the resolution proffered by the principal or the designee of the district superintendent has the right to file an appeal to the Superintendent, who shall provide a written report to 9

10 the state board and the complainant no later than 30 working days after the date the complaint was received describing the basis for the complaint and, as appropriate, a proposed remedy for the issue described in the complaint. Where a district or school has illegally required a pupil to pay a fee, make a deposit, or make a purchase, the Superintendent s remedy will include, but not be limited to, requiring the district or school to fully reimburse the pupil with interest. (d) A school district shall report summarized data on the nature and resolution of all complaints on a quarterly basis to the county superintendent of schools and the governing board of the school district. The summaries shall be publicly reported on a quarterly basis at a regularly scheduled meeting of the governing board of the school district. The report shall include the number of complaints by general subject area with the number of resolved and unresolved complaints. The complaints and written responses shall be available as public records. (e) The procedure required pursuant to this section is intended to address all of the following: (1) A complaint related to instructional materials as follows: (A) A pupil, including an English learner, does not have standards-aligned textbooks or instructional materials or state-adopted or district-adopted textbooks or other required instructional material to use in class. (B) A pupil does not have access to instructional materials to use at home or after school. (C) Textbooks or instructional materials are in poor or unusable condition, have missing pages, or are unreadable due to damage. (2) A complaint related to teacher vacancy or misassignment as follows: (A) A semester begins and a teacher vacancy exists. (B) A teacher who lacks credentials or training to teach English learners is assigned to teach a class with more than 20-percent English learner pupils in the class. This subparagraph does not relieve a school district from complying with state or federal law regarding teachers of English learners. (C) A teacher is assigned to teach a class for which the teacher lacks subject matter competency. (3) A complaint related to the condition of facilities that pose an emergency or urgent threat to the health or safety of pupils or staff as defined in paragraph (1) of subdivision (c) of Section and any other emergency conditions the school district determines appropriate and the requirements established pursuant to subdivision (a) of Section (4) A complaint related to the provision of intensive instruction and services pursuant to paragraphs (4) and (5) of subdivision (d) of Section (5) A complaint related to pupil fees as follows: 10

11 (A) A pupil is charged a fee as a condition for registering for school or classes, or as a condition for participation in any class or extracurricular activity, regardless of whether the class or activity is elective or compulsory or is for credit. (B) A pupil is required to make a security deposit or other required payment for a lock, locker, book, class apparatus, musical instrument, uniform, or other equipment. (C) A pupil is required to purchase materials, supplies, equipment, or uniforms associated with a school curricular or extracurricular activity. (f) In order to identify appropriate subjects of complaint, a notice shall be posted in each classroom in each school in the school district notifying parents, guardians, pupils, and teachers of the following: (1) There should be sufficient textbooks and instructional materials. For there to be sufficient textbooks and instructional materials each pupil, including English learners, must have a textbook or instructional materials, or both, to use in class and to take home. (2) School facilities must be clean, safe, and maintained in good repair. (3) There should be no teacher vacancies or misassignments as defined in paragraphs (2) and (3) of subdivision (h). (4) Pupils may not be charged fees, including security deposits, or be required to purchase equipment or materials, to participate in a class or an extracurricular activity. (4) (5) Pupils who have not passed the high school exit examination by the end of grade 12 are entitled to receive intensive instruction and services for up to two consecutive academic years after completion of grade 12 or until the pupil has passed both parts of the high school exit examination, whichever comes first, pursuant to paragraphs (4) and (5) of subdivision (d) of Section The information in this paragraph, which is to be included in the notice required pursuant to this subdivision, shall only be included in notices posted in classrooms in schools with grades 10 to 12, inclusive. (5)(6) The location at which to obtain a form to file a complaint in case of a shortage. Posting a notice downloadable from the Internet Web site of the department shall satisfy this requirement. (g) A local educational agency shall establish local policies and procedures, post notices, and implement this section on or before January 1, (h) For purposes of this section, the following definitions apply: (1) "Good repair" has the same meaning as specified in subdivision (d) of Section (2) "Misassignment" means the placement of a certificated employee in a teaching or services position for which the employee does not hold a legally recognized certificate or credential or the placement of a certificated employee in a teaching or services position that 11

12 the employee is not otherwise authorized by statute to hold. (3) "Teacher vacancy" means a position to which a single designated certificated employee has not been assigned at the beginning of the year for an entire year or, if the position is for a one-semester course, a position to which a single designated certificated employee has not been assigned at the beginning of a semester for an entire semester. (4) Fees, deposits, or other charges related to participation in a curricular or extracurricular activity means fees, deposits, or charges imposed on pupils in violation of Section and the Free Schools Clause in Article IX, Section 5 of the California Constitution, which requires that educational opportunities be provided to all students without regard to their families ability or willingness to pay fees or request special waivers. SEC 3. Section is added to Article 5.5 of Chapter 6 (Pupil Rights and Responsibilities) of Part 27 of Division 1 of Title 1 of the Education Code, to read: (a) A pupil enrolled in a school shall not be required to pay any fee, deposit, or other charge in order to participate in an educational activity. All supplies, materials, and equipment for curricular and extracurricular activities must be provided to pupils free of charge. (b) A wavier process does not render an otherwise impermissible mandatory fee, charge, or deposit permissible. (c) Districts cannot establish a two tier educational system by defining a minimal educational standard as the requirement and then offering a second, higher standard that pupils may only reach by paying a fee or purchasing additional supplies that the school does not provide. (d) No school may offer course credit or privileges related to curricular or extracurricular activities in exchange for money or donations of goods or services from the pupil or the pupil s parents or guardians, and no school may take away course credit or privileges related to curricular or extracurricular activities or punish a pupil because the pupil or the pupil s parents or guardians did not provide money or donations of goods or services to the school. (e) This section shall not be interpreted to prohibit an entire school, class, sports team, or club from participating in fundraising or to prohibit schools from providing students prizes or other recognition for participating in such activities. (f) This section is declarative of existing law, and shall not be interpreted to prohibit any school district or school from charging a fee, deposit, or other charge otherwise allowed by law. (g) For purposes of this section, educational activity means any activity which constitutes an integral fundamental part of the elementary and secondary education or which amounts to a necessary element of any school s activity, including, but not limited to, curricular and extracurricular activities. SEC. 4 Section of the Education Code is amended to read: 12

13 (a) It is the intent of the Legislature to encourage sound fiscal management practices among local educational agencies for the most efficient and effective use of public funds for the education of children in California by strengthening fiscal accountability at the district, county, and state levels. (b) (1) Not later than the first day of May of each fiscal year, each county superintendent of schools shall provide for an audit of all funds under his or her jurisdiction and control and the governing board of each local educational agency shall either provide for an audit of the books and accounts of the local educational agency, including an audit of income and expenditures by source of funds, or make arrangements with the county superintendent of schools having jurisdiction over the local educational agency to provide for that auditing. (2) A contract to perform the audit of a local educational agency that has a disapproved budget or has received a negative certification on any budget or interim financial report during the current fiscal year or either of the two preceding fiscal years, or for which the county superintendent of schools has otherwise determined that a lack of going concern exists, is not valid unless approved by the responsible county superintendent of schools and the governing board. (3) If the governing board of a local educational agency has not provided for an audit of the books and accounts of the local educational agency by April 1, the county superintendent of schools having jurisdiction over the local educational agency shall provide for the audit of each local educational agency. (4) An audit conducted pursuant to this section shall comply fully with the Government Auditing Standards issued by the Comptroller General of the United States. (5) For purposes of this section, "local educational agency" does not include community colleges. (c) Each audit conducted in accordance with this section shall include all funds of the local educational agency, including the student body and cafeteria funds and accounts and any other funds under the control or jurisdiction of the local educational agency. Each audit shall also include an audit of pupil attendance procedures. (d) All audit reports for each fiscal year shall be developed and reported using a format established by the Controller after consultation with the Superintendent and the Director of Finance. (e) (1) The cost of the audits provided for by the county superintendent of schools shall be paid from the county school service fund and the county superintendent of schools shall transfer 13

14 the pro rata share of the cost chargeable to each district from district funds. (2) The cost of the audit provided for by a governing board shall be paid from local educational agency funds. The audit of the funds under the jurisdiction and control of the county superintendent of schools shall be paid from the county school service fund. (f) (1) The audits shall be made by a certified public accountant or a public accountant, licensed by the California Board of Accountancy, and selected by the local educational agency, as applicable, from a directory of certified public accountants and public accountants deemed by the Controller as qualified to conduct audits of local educational agencies, which shall be published by the Controller not later than December 31 of each year. (2) Commencing with the fiscal year and except as provided in subdivision (d) of Section , it is unlawful for a public accounting firm to provide audit services to a local educational agency if the lead audit partner, or coordinating audit partner, having primary responsibility for the audit, or the audit partner responsible for reviewing the audit, has performed audit services for that local educational agency in each of the six previous fiscal years. The Education Audits Appeal Panel may waive this requirement if the panel finds that no otherwise eligible auditor is available to perform the audit. (3) It is the intent of the Legislature that, notwithstanding paragraph (2), the rotation within public accounting firms conform to provisions of the federal Sarbanes-Oxley Act of 2002 (P.L ; 15 U.S.C. Sec et seq.), and upon release of the report required by the act of the Comptroller General of the United States addressing the mandatory rotation of registered public accounting firms, the Legislature intends to reconsider the provisions of paragraph (2). In determining which certified public accountants and public accountants shall be included in the directory, the Controller shall use the following criteria: (A) The certified public accountants or public accountants shall be in good standing as certified by the Board of Accountancy. (B) The certified public accountants or public accountants, as a result of a quality control review conducted by the Controller pursuant to Section , shall not have been found to have conducted an audit in a manner constituting noncompliance with subdivision (a) of Section (g) (1) The auditor's report shall include each of the following: (A) A statement that the audit was conducted pursuant to standards and procedures developed in accordance with Chapter 3 (commencing with Section 14500) of Part 9 of Division 1 of Title 1. (B) A summary of audit exceptions and management improvement 14

15 recommendations. (C) Each audit of a local educational agency shall include an evaluation by the auditor on whether there is substantial doubt about the ability of the local educational agency to continue as a going concern for a reasonable period of time. This evaluation shall be based on the Statement of Auditing Standards (SAS) No. 59, as issued by the AICPA regarding disclosure requirements relating to the ability of the entity to continue as a going concern. (2) To the extent possible, a description of correction or plan of correction shall be incorporated in the audit report, describing the specific actions that are planned to be taken, or that have been taken, to correct the problem identified by the auditor. The descriptions of specific actions to be taken or that have been taken shall not solely consist of general comments such as "will implement," "accepted the recommendation," or "will discuss at a later date." (h) Not later than December 15, a report of each local educational agency audit for the preceding fiscal year shall be filed with the county superintendent of schools of the county in which the local educational agency is located, the department, and the Controller. The Superintendent shall make any adjustments necessary in future apportionments of all state funds, to correct any audit exceptions revealed by those audit reports. (i) (1) Commencing with the audit of local educational agencies pursuant to this section and subdivision (d) of Section , each county superintendent of schools shall be responsible for reviewing the audit exceptions contained in an audit of a local educational agency under his or her jurisdiction related to attendance, inventory of equipment, internal control, and any miscellaneous items, and determining whether the exceptions have been either corrected or an acceptable plan of correction has been developed. (2) Commencing with the audit of local educational agencies pursuant to this section and subdivision (d) of Section , each county superintendent of schools shall include in the review of audit exceptions performed pursuant to this subdivision those audit exceptions related to use of instructional materials program funds, teacher misassignments pursuant to Section , information reported on the school accountability report card required pursuant to Section and shall determine whether the exceptions are either corrected or an acceptable plan of correction has been developed. (3) Commencing with the audit of local education agencies pursuant to this section and subdivision (d) of Section , each county superintendent of schools shall include in the review of audit exceptions performed pursuant to this subdivision those audit exceptions related to compliance with Section and the free school guarantee in Section 5 of Article 15

16 IX of the California Constitution and shall determine whether the exceptions are either corrected or an acceptable plan of correction has been developed. (j) Upon submission of the final audit report to the governing board of each local educational agency and subsequent receipt of the audit by the county superintendent of schools having jurisdiction over the local educational agency, the county office of education shall do all of the following: (1) Review audit exceptions related to attendance, inventory of equipment, internal control, and other miscellaneous exceptions. Attendance exceptions or issues shall include, but not be limited to, those related to revenue limits, adult education, and independent study. (2) Review audit exceptions related to school fees pursuant to paragraph (3) of subdivision (i). (2)(3) If a description of the correction or plan of correction has not been provided as part of the audit required by this section, then the county superintendent of schools shall notify the local educational agency and request the governing board of the local educational agency to provide to the county superintendent of schools a description of the corrections or plan of correction by March 15. (3)(4) Review the description of correction or plan of correction and determine its adequacy. If the description of the correction or plan of correction is not adequate, the county superintendent of schools shall require the local educational agency to resubmit that portion of its response that is inadequate. (k) Each county superintendent of schools shall certify to the Superintendent and the Controller, not later than May 15, that his or her staff has reviewed all audits of local educational agencies under his or her jurisdiction for the prior fiscal year, that all exceptions that the county superintendent was required to review were reviewed, and that all of those exceptions, except as otherwise noted in the certification, have been corrected by the local educational agency or that an acceptable plan of correction has been submitted to the county superintendent of schools. In addition, the county superintendent shall identify, by local educational agency, any attendance-related audit exception or exceptions involving state funds, and require the local educational agency to which the audit exceptions were directed to submit appropriate reporting forms for processing by the Superintendent. (l) In the audit of a local educational agency for a subsequent year, the auditor shall review the correction or plan or plans of correction submitted by the local educational agency to determine if the exceptions have been resolved. If not, the auditor shall immediately notify the appropriate county office of education and the department and restate the exception in the audit report. After receiving that notification, the department shall either consult with 16

17 the local educational agency to resolve the exception or require the county superintendent of schools to follow up with the local educational agency. (2) If the auditor determines, in the audit of a local educational agency for a subsequent year, that an exception related to school fees has not been corrected or that the local education agency has a new audit exception related to school fees, the auditor shall immediately notify the appropriate county office of education, the Controller, the Superintendent, and the Director of the Department of Finance. Based on this notification, the Controller shall withhold one percent of the amount authorized to be used for administrative costs [General Administration function codes ] from the next principal apportionment to the local educational agency, until such time as the agency reimburses all illegally-collected fees, with applicable interest. (m) (1) The Superintendent shall be responsible for ensuring that local educational agencies have either corrected or developed plans of correction for any one or more of the following: (A) All federal and state compliance audit exceptions identified in the audit. (B) Any exceptions that the county superintendent certifies as of May 15 have not been corrected. (C) Any repeat audit exceptions that are not assigned to a county superintendent to correct. (D) All audit exceptions related to school fees. An audit exception related to school fees shall not be deemed corrected until the local educational agency has, at a minimum, fully reimbursed parents, guardians, and pupils, with interest. The amount of interest shall be calculated based on the date the fee was collected and the applicable interest rates applied to actual cash held in the local education agency's bank. (2) In addition, the Superintendent shall be responsible for ensuring that county superintendents of schools and each county board of education that serves as the governing board of a local educational agency either correct all audit exceptions identified in the audits of county superintendents of schools and of the local educational agencies for which the county boards of education serve as the governing boards or develop acceptable plans of correction for those exceptions. (3) The Superintendent shall report annually to the Controller on his or her actions to ensure that school districts, county superintendents of schools, and each county board of education that serves as the governing board of a school district have either corrected or developed plans of correction for any of the exceptions noted pursuant to paragraph (1). (n) To facilitate correction of the exceptions identified by the audits issued pursuant to this section, commencing with audits pursuant to this section, the Controller shall require auditors to categorize audit exceptions in each audit report in a manner that will make it clear to both the county superintendent of schools and the Superintendent which exceptions they are responsible 17

18 for ensuring the correction of by a local educational agency. In addition, the Controller annually shall select a sampling of county superintendents of schools and perform a followup of the audit resolution process of those county superintendents of schools and report the results of that followup to the Superintendent and the county superintendents of schools that were reviewed. (o) County superintendents of schools shall adjust subsequent local property tax requirements to correct audit exceptions relating to local educational agency tax rates and tax revenues. (p) If a governing board or county superintendent of schools fails or is unable to make satisfactory arrangements for the audit pursuant to this section, the Controller shall make arrangements for the audit and the cost of the audit shall be paid from local educational agency funds or the county school service fund, as the case may be. (q) Audits of regional occupational centers and programs are subject to the provisions of this section. (r) This section does not authorize examination of, or reports on, the curriculum used or provided for in any local educational agency. (s) Notwithstanding any other provision of law, a nonauditing, management, or other consulting service to be provided to a local educational agency by a certified public accounting firm while the certified public accounting firm is performing an audit of the agency pursuant to this section must be in accord with Government Accounting Standards, Amendment No. 3, as published by the United States General Accounting Office. 18

19 Exhibit Sample Classroom Notice as Amended by Legislative Proposals The Legislative Proposals would add the underlined text in paragraph #4 below. 19

20 Sample Williams Complaints Notice CDE, T English, Arial font Page 20 of 38 [California Department of Education] [Categorical Programs Complaints Management] [Legal and Audits Branch (July 2006)] Parents, Guardians, Pupils, and Teachers: Pursuant to California Education Code Section 35186, you are hereby notified that: 1. There should be sufficient textbooks and instructional materials. That means each pupil, including English learners, must have a textbook or instructional materials, or both, to use in class and to take home. 2. School facilities must be clean, safe, and maintained in good repair. 3. There should be no teacher vacancies or misassignments. There should be a teacher assigned to each class and not a series of substitutes or other temporary teachers. The teacher should have the proper credential to teach the class, including the certification required to teach English learners if present. Teacher vacancy means a position to which a single designated certificated employee has not been assigned at the beginning of the year for an entire year or, if the position is for a one-semester course, a position to which a single designated certificated employee has not been assigned at the beginning of a semester for an entire semester. Misassignment means the placement of a certificated employee in a teaching or services position for which the employee does not hold a legally recognized certificate or credential or the placement of a certificated employee in a teaching or services position that the employee is not otherwise authorized by statute to hold. 4. Pupils may not be charged fees, including security deposits, or be required to purchase equipment or materials, to participate in a class or an extracurricular activity. 5. A complaint form may be obtained at the school office, district office, or downloaded from the school s Web site at [district adds Web site address]. You may also download a copy of the California Department of Education complaint form from the following Web site: 20

21 REGULATORY PROPOSALS 21

22 Proposed Addition of Section 198XX.X to Standards and Procedures for Audits of California K 12 Local Education Agencies [Title 5, Div. 1.5, Ch. 3, California Code of Regulations] 198XX.X. Student Fee Revenues. (a) For fiscal year and each fiscal year thereafter, perform the following procedures: (1) Determine whether the school district or county office of education has collected revenue derived from fees, deposits, charges or levies issued to students: A. Charges for optional attendance as a spectator at a school or District sponsored activity. (Hartzell, 35 Cal.3d 899, 911, fn. 14). B. Charges for food served to students, subject to free and reduced price meal program eligibility and other restrictions specified in law. (Education Code and 38084). C. Paying the replacement cost for District books or supplies loaned to a student that the student fails to return, or that is willfully cut, defaced or otherwise injured, up to an amount not to exceed $10,000. (Education Code and 48904). D. Charges for required medical and accident insurance for athletic team members, so long as there is a waiver for financial hardship. (Education Code 32221). E. Charges for the rental or lease of personal property needed for District purposes, such as caps and gowns for graduation ceremonies (Education Code 38119). F. Fees for school camp programs, so long as no student is denied the opportunity to participate because of nonpayment of the fee. (Education Code 35335). G. Reimbursement for the direct cost of materials provided to a student for property the student has fabricated from such materials for his/her own possession and use, such as wood shop, art, or sewing projects kept by the student. (Education Code 17551). H. Reimbursement for the actual cost of duplicating public records, student records, or a prospectus of the school curriculum. (Government Code 6253; Education Code ). I. Fees for transportation to and from school, and transportation between school and regional occupational centers, programs or classes, as long as the fee does not exceed the statewide average nonsubsidized cost per student and provided there is a waiver provision based on financial need. (Education Code ). J. Fees for transportation of pupils to places of summer employment. (Education Code 39837). K. Tuition fees charged to pupils whose parents are actual and legal residents of an adjacent foreign country or an adjacent state. (Education Code ). L. Tuition fees collected from foreign students attending a District school pursuant to an F-1 visa, equal to the full unsubsidized per capita cost of providing education during the period of attendance. (8 USC 1184(m)(1)). M. Fees for an optional fingerprinting program for kindergarten or other newly enrolled students, if the fee does not exceed the actual costs associated with the program. (Education Code 32390). N. Fees for community classes in civic, vocational, literacy, health, homemaking, and technical and general education, not to exceed the cost of maintaining the community classes. (Education Code and 51815). O. Deposits for band instruments, music, uniforms and other regalia which school band members take on excursions to foreign countries. (Education Code 38120). 22

23 P. Charges for eye safety devices, at a price not to exceed the district's actual costs, in specified courses or activities in which students are engaged in, or are observing, an activity or the use of hazardous substances likely to cause injury to the eyes. (Education Code 32033). Q. Fees for field trips and excursions in connection with courses of instruction or school related social, educational, cultural, athletic, or school band activities, as long as no student is prevented from making the field trip or excursion because of lack of sufficient funds. (Education Code 35330(b)). R. Medical or hospital insurance for field trips that is made available by the school district. (Education Code 35331). S. Charges for standardized physical education attire of a particular color and design, but the school may not mandate that the attire be purchased from the school and no physical education grade of a student may be impacted based on the failure to wear standardized apparel arising from circumstances beyond the control of the student. (Education Code 49066). T. Charging for the parking of vehicles on school grounds. (Vehicle Code 21113). (b) If the school district or county office of education collected revenue derived from fees, deposits, charges or levies issued to students that are not listed in subparagraphs (A)-(T) of paragraph (1) of subdivision (a) of this section, include a finding in the Findings and Recommendations section of the audit report showing the full amount of revenue collected and accrued interest as disallowed. NOTE: Authority cited: Sections and of the Education Code and Section 350 of Title V of the California Code of Regulations. 23

24 Letter and Guidance to be sent to all County and District Superintendents and Charter School Administrators re: Student Fees 24

25 November [xx], 2010 [ADDRESS] Dear Superintendent [xx], As you may know, a group of students recently filed a lawsuit in Los Angeles Superior Court, alleging that many California public schools are illegally charging students mandatory fees to participate in educational activities. The State of California and I were the only defendants named in the suit, Doe, et al. v. State of California, et al., Case No. BC (Los Angeles Superior Court). I am concerned about these allegations, and therefore I ask you to immediately review your district s policies and the practices of its schools to ensure that students are not charged any illegal fees. Article IX, Section 5 of the California Constitution states: The Legislature shall provide for a system of common schools by which a free school shall be kept up and supported in each district. In Hartzell v. Connell, 35 Cal.3d 899, 913 (1984), the Supreme Court of California unambiguously held that this provision prohibits public schools from charging mandatory fees for educational activities. In guaranteeing free public schools, article IX, section 5 fixes the precise extent of the financial burden which may be imposed on the right to an education none. A school which conditions a student s participation in educational activities upon the payment of a fee clearly is not a free school. Id. at 911. The Court concluded that educational activities include both curricular and extracurricular activities. See id. The Court also flatly rejected the argument that a fee-waiver policy allows schools to charge fees for educational activities: Educational opportunities must be provided to all students without regard to their families ability or willingness to pay fees or request special waivers. Id. at 913. Thus, whenever a public school offers a curricular or extracurricular program to students, the California Constitution requires that the school provide all materials, supplies, and equipment whether they are necessary or supplementary to the program to students free of charge. The constitutional prohibition against requiring public school students to pay fees or purchase materials for educational activities is codified in Education Code 60070, which prohibits school officials from requiring students to purchase instructional materials, and reinforced by Title 5, Section 350 of the California Code of Regulations, which prohibits schools from requiring students to pay any fee, deposit or other charge not specifically authorized by 25

26 law. 1 Public schools may solicit and accept donations from parents or the broader community, so long as the fundraising program is voluntary and contributing is not a requirement for participating in an educational activity. My administration is evaluating options to establish a state-level process that will help identify impermissible fees to help ensure that districts and schools honor the free schools guarantee. I hope that the process we establish will also provide guidance to school districts on how they can raise additional money to support educational programming without resorting to illegal school fees. In the meantime, I ask you to review your district s policies, to evaluate your schools practices, and to ensure that no students in your district are being required to pay fees or to purchase materials or equipment for curricular and extracurricular activities. 2 Please feel free to contact [xx] if you have any questions. Sincerely, Enclosures 1 Although there are a few statutory exceptions authorizing public schools to charge students fees for certain services or materials, these are narrow and quite limited. For example, schools can charge all students for transportation to and from school and from summer employment (Education Code & 39837), for food served to students (Education Code & 38204), for lost or damaged school property (Education Code 48904), for school-provided insurance for field trips (Education Code 35331), and for medical and accident insurance for students participating in sports (Education Code 32221). Schools also may charge students for field trips and science camps, but they cannot prevent a student from participating for non-payment (Education Code & 35335). Additionally, if students create items in class and are allowed to take those items home with them as personal property, schools may charge students for the direct cost of materials (Education Code 17551). Schools also can charge various fees for adult education (Education Code 52612, 52615, & 60410) and community education courses (Education Code & 51815). None of these exceptions appears to justify the fees alleged in Doe v. State, which include requiring students to purchase required text and workbooks for academic courses; charging lab fees for science classes; charging material fees as a condition for enrolling in fine art classes; and requiring students to purchase schoolissued P.E. uniforms. Additionally, they do not justify charging fees or requiring students to purchase equipment to participate in extracurricular activities. 2 As you review internal policies and practices with your legal counsel, you may find the enclosed advisory produced by the Fiscal Crisis and Management Assistance Team (FCMAT) and the list of other potential resources useful starting points. My office is providing these materials for informational purposes only. The California Department of Education is in the process of updating its Fiscal Management Advisory (dated October 30, 1997) regarding Fees, Deposits, and Other Charges. 26

27 Letter Enclosure #1 27

28 (as of November 29, 2010) FCMAT What fees, if any, can be charged to students? Question: The high school and the middle schools are currently charging the student fees listed below. $10 Science Lab Fees $40 Cooking class fees $20 Ceramics, Jewelry, Arts, and Wood shop fees $45 Choir class $25 Band class AP exam fees (unknown at this time) These lab fees provide funding for disposable, consumable materials used in each class. Students are allowed (and encouraged) to take home whatever they make/test/produce in their classes. Science teachers feel that the science lab fees should be treated as a shop fee so that lab fees can be charged just like home economic, jewelry, and wood shop class in accordance with Ed Code section But some teachers think the students should not take any bio-hazardous waste home because of the safety reason. In 1992, the board approved the science fees. It is not included in the board policy but an approval was noted in board minutes. The teachers now understand the free school guarantee because I have shared the Fiscal Management Advisory but they still feel that they have an approval to charge certain fees from the board. I don't see any additional funding to offset the current student lab fees but I also don't want any lawsuit from parents. Please advise. Response: The California Constitution provides for a free school system. Since 1874, the California Supreme Court has interpreted this to mean that this entitles students to be educated at the public s expense. Title 5, California Code of Regulations, section 350, specifically states: 28

29 "A pupil enrolled in a school shall not be required to pay any fee, deposit, or other charge not specifically authorized by law." The State Board of Education has reiterated that no fees are to be charged except where specifically authorized by law. This understanding is based on the authority in Article IX, Section 5 of the California Constitution. The Attorney General has also made it clear in many of their opinions that school districts cannot levy fees as a condition for participation in any class, whether elective or compulsory. Such unallowable fees include security deposits for locks, lockers, books, class apparatus, musical instruments, uniforms or other equipment. Clearly, students may not be charged fees for participation in either curricular or extracurricular activities. And, whenever a particular curriculum or extra curricular program is adopted, all supplies, both necessary and supplemental, must be provided free of charge by the district. The district cannot establish a two tier educational system by defining some minimum educational standard as the requirement and then tell students that "there is also a second, higher standard which you can strive for, if you pay for rent, or provide some specified additional supplies which the school does not provide." The Education Code specifically authorizes certain fees which are not forbidden by the Code of Regulations Title 5 prohibition. The following fees can be levied as authorized in the following Education Code Sections: Transportation to and from school as it is a non-educational activity. Education Code section o Fees for transportation for extra curricular activities are not legal as it is an integral part of some of these activities. If participation in an extra curricular activity requires transportation and if the school district provides it, it may not collect fees for it. o By law, school districts must exempt from transportation charges pupils of parents and guardians who are indigent as set forth in rules and regulations adopted by the board. Furthermore, no charge shall be made for the transportation of disabled students. o The sum of state aid received for home to school transportation and the parent fees collected may not exceed actual operating cost of home to school transportation for each fiscal year. Education Code section Transportation of pupils to places of summer employment. Education Code section Charges for food served to pupils. Education Code sections (formally 39872), and (formally 39874) 29

30 Sale of materials purchased from the incidental expense account to pupils in classes for adults if provided in the governing board regulations. The proceeds of all such sales shall be deposited in that account. Education code section Class materials can be sold to persons enrolled in adult classes. This may include materials necessary for making of articles by students enrolled in adult education. The materials shall be sold at no less than the cost to the district. Any article made is then the property of the person who made it. Education code sections 52612, and Charges can be imposed for textbooks used in adult classes or a refundable deposit can be imposed on loaned books. Education code section Insurance for field trips. School districts must provide, or make available, medical or hospital insurance for pupils participating on any excursion or field trip, and the cost incurred by the school district "may be paid from the funds of the district, or by the insured pupil or his or her parent or guardian." Education Code section Lost or damaged books or other district supplies. If students fail to return school property loaned to the pupil, or willfully cut, deface or otherwise injure school property, the parent or guardian is liable for all damages not to exceed $10,000. Education Code section o When the minor and parent are unable to pay for the damages or to return the property, the school district or private school shall provide a program of voluntary work for the minor in lieu of payment of monetary damages. Fees for adult school classes. Education Code section o No fees are allowed for English and citizenship for foreigners, classes in elementary subjects, and classes for which high school credit is granted when taken by a person holding a high school diploma. o Adults may be charged a fee but high school students may not, even though they may be enrolled in the same class. o Adults may be charged for all or part of the costs of transportation. Education Code section Tuition fees charged to pupils whose parents are actual and legal residents of an adjacent foreign country or an adjacent state. Education Code sections 48050, and

31 Apprentices shall not be charged fees of any kind in any district providing instruction under Section 3074 of the Labor Code. Education Code section Materials can be sold to a student for property the student has fabricated from such materials for their own use as long as the price does not exceed direct cost of the materials used and provided that the school district governing board has authorized such sales pursuant to an adopted board policy. This applies to classes such as wood shop or sewing where an item is taken home by the students, but not when the items remain at school. It also does not apply to food in home economic classes which is eaten as part of the course work. Education Code section o This section does not authorize a blanket general fee to cover multiple items nor does it mean an obligation to purchase the item. This section must be read together with the constitutional free school guarantee and the statutes requiring schools to provide necessary school supplies and instructional materials. Whenever students fabricate products in a class such as wood shop or sewing, the wood or cloth for such products must be furnished free of charge. If the student decides to take a particular item home, then the law authorizes the district to sell that item to the student for the cost of the materials. If the student does not want to take an item home, then the district would keep the item and cannot charge or otherwise penalize the student. o The school district is recommended to have board adopted policies and guidelines which specify the conditions for implementing this section, keeping in mind the free school guarantee. Fees for an optional fingerprinting program for kindergarten or other newly enrolled students can be assessed to the parent or guardian who chooses to participate. The fee cannot exceed the actual costs associated with the program. Education Code section Students may be charged fees for community classes in civic, vocational, literacy, health, homemaking, and technical and general education, not to exceed the cost of maintaining the community classes. Governing boards may expend from the district s general fund any money that is budgeted for community services to establish and maintain community service classes. Education Code sections and o These community classes may be held at any time during the school year as determined by the governing board. Education Code section

32 o Community courses are not intended to teach required courses that K-12 students must complete as part of their instructional programs. They usually include classes in music, drama, art, handicraft, science, literature, nature studdy, nature contacting, aquatic sports, athletic and other such classes of general interest to the community. These classes are primarily intended for adults and are only open to minors who the governing board believes would profit from such classes. o Community service classes cannot be used as K-12 summer school, except for the incidental attendance of students with special interest in the subjects being taught. o Schools are lawfully authorized to charge fees for community service classes. But, in order to charge a fee for driver s training, schools must design their driver training programs to be community service and not for the benefit of high school students. (This principal would apply to any type of community service class.) Education Code sections and Driving School Association vs. San Mateo School Districts. 11 Cal App 4th (1992), and California Association for Safety Education vs. Brown 30 Cal. App 4th (1994) Fees for several statutory child care programs under certain conditions, while precluding charges to children s families whose children are enrolled in the state preschool program or for services to severely handicapped children. A similar before and after school child supervision program is authorized to charge fees to participants as long as "no needy child who desires to participate shall be denied the opportunity to participate because of inability to pay the fee". Education Code sections 8263(f), 8250(d), 8265, 8487, 8488(b) Actual cost of duplication of public records or student records. The California Public Records Act authorizes public agencies to charge direct costs of duplication for its records. The direct cost of duplication standard also applies to reproductions of the prospectus of school curriculum. Education Code section o Direct costs of duplication phrase allows a local agency to recover only the actual cost of copying documents and does not include ancillary tasks associated with the retrieval, inspection and handling of the file from which the copy is extracted. North County Parents Organization et al vs. Department of Education 23 Cal App4th (1994) 32

33 o School districts must specify the cost, if any, which will be charged to the parent for reproducing copies of records in a parental notice upon enrollment and in the annual notification of parents of their rights required by the Education Code Education Code 49063(h) Charges for medical and accident insurance for athletic team members who can afford to pay. All members of the athletic team must have such insurance. Education Code section o Whenever the school board determines that a team member or parent or guardian are financially unable to pay the costs of insurance protection, then the governing board shall require the costs of the protection to be paid either out of funds of the district or the student body. Fees for field trips and excursions may be charged in connection with courses of instruction or school related social, educational, cultural, athletic, or school band activities. But, no pupil shall be prevented from making the field trip or excursion because of lack of sufficient funds. Education Code section o The governing board shall coordinate efforts of the community service groups to supply funds for pupils in need of them. o No student may be left behind due to insufficient funds, nor may a student be left behind for failing or refusing to participate in fund-raisers. Fees for outdoor science camp programs. The fee cannot be mandatory - no pupil shall be denied the opportunity to participate in a school camp program because of nonpayment of the fee. Education code section o No student may be left behind due to insufficient funds, nor may a student be left behind for failing or refusing to participate in fund-raisers. California law provides "Writing and drawing paper, pens, inks, blackboards, blackboard erasers, crayons, lead pencils and other necessary supplies for the use of the schools shall be furnished under direction of the governing boards of the school districts"(education Code section 38118). Based on this section, the Attorney General has concluded that materials and mechanical drawing sets for art classes, cloth for dressmaking classes, wood for carpentry classes, gym suits and shoes for physical education classes, bluebooks necessary for examinations, and paper on which to write a theme or report when such a theme or report is a required assignment must be furnished by school district without charge as necessary supplies. Such supplies appear to be supplies that must be available to students in order to participate in regular classroom work in the 33

34 particular subjects involved. The State Department of Education supports this view. The general rule as stated by the Attorney General is that "supplies must be furnished free of cost to students when the supplies are what might be termed school supplies and are necessary in order for the students to pursue a course of study". So rather than state what materials a school district is not obligated to furnish, the Attorney General limits the discussion to the question above. The Attorney General s use of term school supplies does exclude those items or materials that are essential regardless of whether or not the person is a student. For example, a district is not obligated to furnish corrective lenses and clothes as these items are needed whether or not the person is a student. Also, since school districts are required to furnish necessary supplies, they are also responsible for regular upkeep and maintenance of those supplies. Attempts to impose an unconditional obligation on pupils to maintain and repair school district equipment are too broad. However, a student may be charged for damage of personal property loaned to a pupil where he or she willfully cuts, defaces, or otherwise injures the property as a result of pupil misconduct. This law allows the district to impose requirements for proper care and usage and consequent liability for mishandling, but not liability where damage may result from normal wear and tear, or from an intervening cause or a third party. Districts can recommend, and even make available, strictly optional materials for the students personal benefit. The law allows parents or other individuals as well as school districts to directly purchase instructional materials from the state adopted lists (Education Code section 60310). Also, teachers may make available a list of suppliers for tutorials, books, supplemental educational materials, or sell inexpensive quality paperback literature for leisure reading. Teachers may encourage students to use appropriate study aids as long as these purchases are strictly optional and in no way part of the regular instructional program. If such things are not part of the adopted curriculum or part of an established extracurricular program, and there is no penalty for failure to use or purchase these materials, such materials are not necessary supplies. The opposite arises, though, when such enrichment literature or materials are used as supplemental instructional material for a class or is an established part of an extracurricular activity as it then becomes a necessary supply which must be provided or loaned free of charge. Its not whether or not a grade is assigned that is the crucial point. It is the participation that counts and whether or not the material used in the instructional or extracurricular activity becomes a necessary school supply. Basically, the opinions of the Attorney General indicate that charges may not be levied for the following: A deposit in the nature of a guarantee that the district would be reimbursed for loss to the district on account of breakage, damage to, or loss of school property An admission charge to an exhibit, fair, theater or similar activity for instruction or extracurricular purposes when a visit to such places is part of the district s educational program 34

35 A tuition fee or charge as a condition to enrollment in any class or course of instruction, including a fee for attendance in a summer or vacation school, a registration fee, a fee for a catalog of courses, a fee for an examination in a subject, a late registration or program change fee, a fee for the issuance of a diploma or certificate, or a charge for lodging. Membership fees in a student body or any student organization as a condition for enrollment or participation in athletic or other curricular or extracurricular activities sponsored by the school (ASB cards may be sold to allow discounts or free entrance to games and social events). Instructional materials must be furnished without charge to elementary and high school students. Adults may be assessed a charge for books not to exceed their true cost to the district. Education Code sections and Fees to enroll and/or participate in activities of career technical student organizations which are part of a career technical class or course or instruction offered for credit. Education Code section Pupils shall not be charged for transportation associated with activities of career technical student organizations which are part of a career technical class or course of instruction offered for credit when those activities are integral to assisting the pupil to achieve the career objectives of the class or course. Education Code section o The exception to this is when the transportation is between the regular full time day schools that they would attend and the regular full time occupational training classes attended by them as provided by a regional occupational center or program. Education Code section On April 20, 1984, the Hartzell vs. Connell California Supreme Court decision raised serious questions about the imposition of non-statutory fees for extracurricular activities. The lead opinion on this matter is that fees may be charged for activities that are recreational, but not for those that are educational. Since extracurricular activities are described in the opinion as an integral component of public education, they are a part of the educational program, and thus must be free. The court further stated that the " 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 constitutional defect in such fees can neither be corrected by providing waivers to indigent students nor justified by pleading financial hardship." It is also the opinion of CDE and the Hartzell opinion 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 such fee or charge for students with financial need as the fee or charge still remains a condition for all other students not being assisted financially. A fee waiver policy for needy students does not make the fee allowable. 35

36 For the subject of gym or physical education clothes, Education Code section states that "No grade of a pupil participating in a physical education class may be adversely affected due to the fact that the pupil does not wear standardized physical education apparel where the failure to wear such apparel arises from circumstances beyond the control of the pupil", such as lack of sufficient funds. The California Department of Education has stated the position that a school district may require students to purchase their own gym clothes of a district specified design and color so long as the design and color are of a type sold for general wear outside of school. Once the required gym uniforms become specialized in terms of logos, school name or other similar characteristics not found on clothing for general use outside of school, they are considered school supplies and the district must provide the uniforms free of charge. In specific answer to your question, FCMAT is not able to provide legal advice, but since you are worried about the current charges, review the information we have provided above and see how the current charges that are occurring line up with the above information. And, if you have concerns about what is truly legal or not legal after reviewing the above, you should check with your legal counsel. Although staff is mentioning Education Code section 17551, this section does not allow for fees to be charged up front basically this code section means that all students can make the items regardless of paying fees or material charges, but at the end of the year if they want to bring the items home the district can charge for the actual cost of materials in making the item. This code does not authorize the class fees up front as all students are entitled to make the same items, whether or not they have money to do so. Also, remember that board policy can be stricter than the law, but the law takes precedence over board policy if they are in disagreement. Again, this is why you should get your legal counsel involved. 2/13/07 36

37 Letter Enclosure #2 37

38 Informational Resources regarding Student Fees in California K-12 Public Schools 1) The California Department of Education (CDE) Fiscal Management Advisory dated October 30, 1997 (which superseded Fiscal Management Advisory 87-03) currently being revised by CDE 2) Guidelines for Student Fees document produced by the Tulare County Counsel, dated December 7, 2004 (available at as of November 19, 2010) 3) San Diego Unified School District s Guidelines and Resources re: Student Fees: (available at as of November 19, 2010) 4) Hartzell v. Connell, 35 Cal.3d 899 (1984) 5) California Attorney General Opinion No , (September 14, 2004) (available at as of November 19, 2010) 6) California Constitution, Article IX, Section 5 7) California Code of Regulations, Title 5, Section