By Mark Bresee, Partner
Irvine Office
Although the law regarding student fees has not and will not change − the scope of the constitutional “free school guarantee” is not in question − the ACLU’s effort to address the issue of compliance has taken multiple twists and turns. It started when the ACLU filed a lawsuit against the State in September, 2010, followed by a quick settlement which fizzled after Governor Brown took office. Legislation to address compliance and resolve the litigation, AB 165, made it to Governor Brown’s desk only to be vetoed because, in his opinion, the legislation went "too far." This resulted in a lifting of the stay of the ACLU suit, and a decision by the judge in January, 2012 making it clear that the State has some duty to enforce the free school guarantee on behalf of students.
These developments caused the parties to go back and start where they essentially began − Assembly member Lara introduced AB 1575, substantively the exact legislation that was vetoed by Governor Brown, but there were immediate signs that the plot would not unfold the same way this time around. On March 21, 2012 this legislation, like its predecessor, passed out of the Assembly Education Committee. However, the committee hearing revealed clear signs that the bill would have to be amended to get to the Governor’s desk, based in large part on statements by Democratic legislators during the hearing that amendments would be needed. Amendments were indeed made, as it passed out of the Assembly Appropriations Committee on May 25th and again before it passed out of the Assembly on a 50-22 vote on May 31st.
AB 1575, like its predecessor, would add a specifically-stated statutory student fee prohibition to the Education Code, in language designed to reflect current law: "A pupil enrolled in a public school shall not be required to pay a pupil fee for participation in an educational activity." It defines an "educational activity" as "an activity offered by a school, school district, charter school, or county office of education that constitutes an integral fundamental part of elementary and secondary education, including, but not limited to, curricular and extracurricular activities." It also defines a "pupil fee," and includes a variety of examples of prohibited fees and charges taken from existing precedent. Like AB 165, the new legislation would explicitly provide that it is "declarative of existing law and shall not be interpreted to prohibit the imposition of a fee, deposit, or other charge otherwise allowed by law." It continues to reinforce the authority to engage in voluntary fundraising, and to give rewards and recognition to those who excel in that endeavor.
AB 165 was often criticized for its multiple accountability and oversight provisions, and this has been the focus of the recent amendments to AB 1575. The vetoed bill included three different accountability and oversight levels − adding student fees to the uniform complaint and investigation process; an annual review and certification process at each district; and an annual audit of compliance with the local review and certification process. (For a description of these measures, see our prior post here). The current version of AB 1575 eliminates the latter two accountability provisions, leaving only the inclusion of student fees in the uniform complaint process. Complaints alleging the imposition of unlawful fees would be permitted. Investigation would be required and, if unlawful fees were found to have been charged in a state-level appeal, all affected pupils and parents would have to be reimbursed. The classroom notice required in the existing uniform complaint process would require amendment to existing notices, to include a notice that pupil fees cannot be charged. Also, lawsuits alleging the unlawful imposition of student fees would be exempt from the claim filing requirements of the Government Code.
New language in the bill, added May 30th, would require the California Department of Education to develop and distribute written guidance for school administrators regarding student fees, beginning with the 2014-15 school year and updated every three years thereafter. This new provision is undoubtedly intended, at least in part, to ensure that the issue of student fees does not slip from the radar screen as it has in the past.
We are informed that AB 1575, in its current form, remains a basis for resolving the ACLU litigation, and we continue to advise that districts, county offices and charter schools are well-served by keeping processes in place that eliminate or at least reduce student fee issues.
