Requests for Fees and Donations

"A pupil enrolled in a school shall not be required to pay any fee, deposit, or other charge not specifically authorized by law." 1

With this regulatory language the State Board of Education made clear that fees are not to be imposed except where specifically authorized by law. This administrative regulation was promulgated based on the authority of article IX, section 5 of the California Constitution, which provides for a free school system:

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 1874, the State Supreme Court held that this provision entitled students to be educated at public expense. 2

The California EC, as amended by Assembly Bill (AB) 1575 in 2012, provides that a pupil enrolled in a public school shall not be required to pay a pupil fee for participation in an educational activity. 3 “Educational activity” is defined 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. 4 “Pupil fee” is defined as a fee, deposit or charge imposed on pupils, or a pupil’s parents or guardians, including, but not limited to:

1. A fee charged to a pupil as a condition for registering for school or classes, or as a condition for participation in a class or an extracurricular activity, regardless of whether the class or activity is elective or compulsory, or is for credit.
2. A security deposit, or other payment, that a pupil is required to make to obtain a lock, locker, book, class apparatus, musical instrument, uniform, or other materials or equipment.
3. A purchase that a pupil is required to make to obtain materials, supplies, equipment, or uniforms associated with an educational activity. 5

All of the following apply to the prohibition on pupil fees described above:

4. All supplies, materials, and equipment needed to participate in educational activities shall be provided to pupils free of charge.
5. A fee waiver policy shall not make a pupil fee permissible. 6
6. School districts and schools shall not establish a two-tier educational system by requiring a minimal educational standard and also offering a second, higher educational standard that pupils may only obtain through payment of a fee or purchase of additional supplies that the school district or school does not provide.
7. A school district or school shall not offer course credit or privileges related to educational activities in exchange for money or donations of goods or services from a pupil or a pupil’s parents or guardians, and a school district or school shall not remove course credit or privileges related to educational activities, or otherwise discriminate against a pupil, because the pupil’s parents or guardians did not or will not provide money or donations of goods or services to the school district or school. 7

Schools can solicit voluntary donations of funds or property, and voluntary participation in fundraising activities. 8

The following analysis may be helpful when determining whether a fee can be charged: Is the fee specifically authorized by statute? If so, the fee can be charged. If the fee is not specifically authorized by statute, does it relate to an activity that is an integral component of public education? If so, the fee cannot be charged. Local educational agencies (LEAs) may also wish to consult their own attorneys.

The prohibition on “pupil fees” as defined above does not prohibit imposition of a fee, deposit or other charge otherwise allowed by law. (Ed. Code, § 49011(e)). The Legislature has passed a number of laws authorizing specific fees. Schools may, but are not required to, charge the following fees:

Materials and equipment

1. Reimbursement for the direct cost of materials provided to a pupil for property the pupil has fabricated from such materials to take home for his/her own possession and use, such as wood shop, art, or sewing projects kept by the pupil. (Ed. Code, § 17551.)
2. Charges for safety glasses, for a pupil to keep, so long as the school provides them free of charge for use in specified courses or activities involving the use of hazardous substances likely to cause injury to the eyes. (Ed. Code, §§ 32030-32033.)
3. Fees for sale or lease of Internet appliances or personal computers to parents for the purpose of providing access to the school district’s educational computer network, at no more than cost, so long as the district provides network access for families who cannot afford it. An Internet appliance is a technological product that allows a person to connect to, or access, an online educational network. The internet appliances and personal computers referred to in this section are deemed supplemental and not an essential part of the school district’s educational program. (Ed. Code, § 17453.1.)

Transportation

4. Fees for transportation to and from school, and transportation between school and regional occupational centers, programs, or classes, as long as (1) the fee does not exceed the statewide average nonsubsidized cost per pupil; (2)fees are not charged to unduplicated pupils as defined in Ed. Code, § 42238.02(b) (English learner, eligible for free or reduced-price meal, or foster youth); and (3) fees are not charged to pupils with disabilities whose Individualized Education Program (IEP) includes transportation as a related service necessary for them to receive a free appropriate public education. (Ed. Code, § 39807.5(b), (d), and (e).) 9
5. Fees for transportation of pupils to and from their places of summer employment in connection with any summer employment program for youth. (Ed. Code, § 39837.)
6. Fees for all or part of the cost of transportation for adult students. (Ed. Code, § 39801.5.)

Food

7. Charges for food served to pupils, subject to free and reduced price meal program eligibility and other restrictions specified in law. (Ed. Code, §§ 38082 and 38084.)

Lost or Damaged Property

8. Payment for the replacement cost for district books, supplies, or property loaned to a pupil that the pupil fails to return, or that are willfully cut, defaced, or otherwise injured, up to an amount not to exceed $10,000, adjusted annually for inflation. (Ed. Code, §§ 19911 and 48904.) Based on rules of construction, it appears that the word “willfully” modifies each of the phrases—“cuts, defaces, or otherwise injures”—that follows. Therefore, school districts should analyze, on a case-by-case basis, whether property has been willfully damaged. A blanket policy that charges fees for any damage to property would appear to be inconsistent with the statute.

Field Trips

9. Fees for field trips and excursions in connection with courses of instruction or school-related social, educational, cultural, athletic, or school band activities so long as no pupil is prevented from making the field trip or excursion because of lack of sufficient funds. (Ed. Code, § 35330(b).) 10
10. Medical or hospital insurance for field trips that is made available by the school district. (Ed. Code, § 35331(b)(2).)
11. Deposits for school band instruments, music, uniforms, and other regalia for use on an excursion to a foreign country. (Ed. Code, § 38120.)

Community Service Classes

12. 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. (Ed. Code, §§ 51810 and 51815.) These include classes such as dance, music, theatre, visual arts, handicraft, science, literature, nature study, nature contacting, aquatic sports, and athletics. (Ed. Code, § 51810.) These classes are primarily intended for adults and are open only to those minors whom the governing board believes will profit from such classes. (Ed. Code, § 51811.)
13. Fees for adults for any classes except (1) classes in English and citizenship or elementary subjects and (2) classes for which high school credit is granted when taken by a person not holding a high school diploma. (Ed. Code, § 52612(a).) 11 Nonimmigrant foreign nationals enrolled in a class in English and citizenship or an elementary subject shall be charged a fee not to exceed the actual cost of instruction. (Ed. Code, § 52613(a).)
14. Fees for adult classes, including fees not to exceed the cost of books or a refundable deposit. (Ed. Code, §§ 52612(b) and 60410.)
15. Fees (at not less than cost) for adult class materials, including those necessary for the making of articles that shall become the property of the student who made it. (Ed. Code, § 17552.)

Athletic Team Insurance

16. Charges for required medical and accident insurance for athletic team members that are not paid by school district or student body funds, so long as there is a waiver for financial hardship. (Ed. Code, §§ 32220-32224.)

Tuition

17. Tuition fees charged to pupils whose parents are actual and legal residents of an adjacent foreign country or an adjacent state. The pupils may be admitted to a school but shall be required to reimburse the district for the cost of educating the pupil. (Ed. Code, §§ 48050 and 48052.)
18. Tuition fees may be 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 U.S.C. § 1184(m)(1).)

School Camp Programs

19. Fees for outdoor science school camp programs, so long as no pupil is denied the opportunity to participate because of non-payment of the fee. (Ed. Code, § 35335.)

Early Education

20. Fees for preschool, EC § 8252, except for these exemptions: for up to 12 months for a family receiving child protective services or at risk of neglect, abuse or exploitation; for families receiving CalWORKS cash aid; and for those enrolled in part-day preschool per EC § 8207 et seq. (See EC § 8253.) Also, fees shall be assessed to children placed in state preschool by an IEP, however, these fees shall be paid for by the LEA. (EC § 56000 et seq.)

Expanded Learning

21. Fees may be assessed for extra enrichment programs and study trips in child supervision programs. (Ed. Code, § 8487) Fees may be charged in programs for supervision of children before and after school, except that no child who desires to participate shall be denied the opportunity to participate because of inability to pay the fee. (Ed. Code, § 8488.)

Fingerprinting

22. Fees for an optional fingerprint program for children in kindergarten or other newly enrolled children if the fee does not exceed the actual costs associated with the program. (Ed. Code, § 32390.)

Duplication of Records

24. Fees for the actual cost of duplicating public records, pupil records, or a prospectus of the school curriculum. (Gov. Code, § 6253(b); Ed. Code §§ 49063(h) and 49091.14.) However, no charge shall be made for furnishing up to two transcripts of former pupils’ records or up to two verifications of various records of former pupils. (Ed. Code § 49065.) Finally, if the cost would effectively prevent the parent of a special education pupil from exercising the right to receive copies of pupil records, the copies shall be reproduced at no cost. (Ed. Code, § 56504.)

Specialized Examinations

25. Fees for Advanced Placement and International Baccalaureate Diploma examinations for college credit, so long as (1) taking the exam is not a course requirement and (2) the exam results have no impact on a pupil’s grade or credit in a course. An LEA may fund all or part of the cost of the AP test fee for an economically disadvantaged pupil or the IB test fee for a pupil in need of financial assistance. (Ed. Code, §§ 52242; 52922.)

After School Programs

26. Fees for After School Education and Safety Programs, so long as any such fees are reduced on a sliding scale based on family income/ability to pay, and waived for pupils who are eligible for free or reduced-price meals, or homeless, or known by the program to be in foster care. (Ed. Code, § 8482.6)

1. Cap and gown for high school graduation ceremony

   A school district cannot require students to purchase or pay for a cap and gown if wearing a cap and gown is a condition of participation in a graduation ceremony. In Sands v. Morongo, 53 Cal. 3d 863, 873-874 (1991), cert. denied, 505 U.S. 1218 (1992), the California Supreme Court found that the high school graduation ceremony is “an integral part of the educational process” because it recognizes cumulative academic achievement. Therefore, the graduation ceremony is an “educational activity,” pursuant to EC 49010(a), as to which a pupil fee cannot be charged. EC section 38119 only authorizes districts to rent caps and gowns from a supplier and provide them free of charge to students. Therefore, a cap and gown fee is not “otherwise allowed by law.” EC section 49011(e). The CDE recommends that a district that requires students to wear a cap and gown at the ceremony inform students that: (1) the district will provide caps and gowns for graduating seniors for use during the ceremony, and (2) students also have the option to purchase an appropriate cap and gown from a vendor. No student should be required to self-identify as indigent in order to receive a cap and gown from the district.

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   Parent Service Hours

   EC section 49011(b)(4) bars a school district or school, including a charter school, from requiring parents to perform “volunteer hours” as a condition of allowing their child admission, enrollment, continued enrollment, sibling preference, attendance, participation in educational activities or receipt of credit or privileges related to educational activities. (See also EC 47605(n).) EC section 49011(c) permits a school district or school, including a charter school, to request that parents volunteer a specific number of hours per school year, and to identify the benefits to the school district or school as a result of these truly volunteer services; however, such requests may not be coercive or imply a negative consequence to a student or parent. EC 47605(n) specifies a charter school may encourage parental involvement, but shall notify the parents and guardians of applicant pupils and currently enrolled pupils that parental involvement is not a requirement for acceptance to, or continued enrollment at, the charter school.

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   Miscellaneous Fees

   The Opinions of the Attorney General 13 indicate that charges may not be levied for the following:

   1. 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;
   2. 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;
   3. A tuition fee or charge as a condition of 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;
   4. 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; 14
   5. Charges to an apprentice, or his or her parents or guardian, for admission or attendance in any class pursuant to Section 3074 of the Labor Code. (Ed. Code, § 48053.)
   6. Charges for textbooks and workbooks (except for classes for adults). (Ed. Code, §§ 60070 and 60410.)
   7. Fees to process an interdistrict transfer request by a pupil residing in another district. 15
   8. Reimbursement for lost Average Daily Attendance revenue for absences from school. 16
    

   As noted in 3 above, no statute specifically authorizes tuition for summer school. Therefore, tuition or any such fee or charge relating to summer school is prohibited under California Code of Regulations, title 5 (5 CCR), section 350, which precludes charging fees for educational activities not specifically authorized by law. For more information related to this issue, see Fiscal Management Advisory 22-01, Summer School, Third Parties and Tuition Fees, at www.cde.ca.gov/re/lr/fm.

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   School Supplies

   As for school supplies, EC section 38118 provides:

   Writing and drawing paper, pens, inks, blackboard erasers, crayons, lead pencils, and other necessary supplies for the use of the schools shall be furnished under direction of the governing board of the school district.

   The Attorney General has issued an opinion that all of the following are "necessary supplies" and therefore, if the school district requires that pupils use such items, the school district must provide them to pupils for free in order to participate in regular classroom work in the particular subjects involved. 17

   1. Art material for art classes and mechanical drawing sets;
   2. Cloth to be used in dressmaking classes and wood for carpentry classes;
   3. Gym suits for physical education classes; 18
   4. Bluebooks in which to write a final examination; and
   5. Paper on which to write a theme or report when such theme or report is a required assignment.

LEAs may offer summer school but it is not required. (EC 35160) If a LEA chooses to offer a summer school program, it cannot charge tuition or other pupil fees. (EC 49011, 5 CCR Section 350). A longstanding opinion of the Attorney General states that a school may not charge a fee for attendance in summer school. (Ops. Cal. Atty. Gen. Number NS 2469 (1940)).

As noted above, the prohibition on pupil fees extends only to educational activities that are “offered by [a LEA]” and that constitute an integral fundamental part of education. (emphasis added) (EC 49010(a)). Questions have arisen as to whether a third party that is affiliated in some way with a LEA can lawfully charge tuition fees for a summer school program. Stated another way, is a summer school program that is provided by such a third party deemed to be “offered” by the LEA under the law?

Any such allegation that such summer school tuition fees are impermissible pupil fees is a proper subject for a UCP pupil fees complaint. When investigating such a complaint, the LEA should make an individualized inquiry as to the relationship between the LEA and the third party, and the students, based on a variety of factors to determine whether the educational activities are being offered by the LEA.

Factors that can be weighed in determining if the LEA is offering the educational activities may include, but are not limited to:

• (1) the organizational structure of the third party, such as whether it is a separate legal entity and the degree of independence from the LEA;

• (2) the relationship between the third party and the LEA, such as the composition of the third party’s governing body and leadership and its relationship to the LEA;

• (3) the content of any Memorandum of Understanding or other written agreement between the parties regarding the use of facilities, equipment and materials, including any payment of fees by the third party to the LEA for that use;

• (4) the entity responsible for communicating about the summer school program to students, parent and guardians and how that responsibility is communicated to parents;

• (5) what student population is eligible to participate, such as whether the program is open to students attending non-LEA schools;

• (6) responsibility for choosing courses to be taught;

• (7) responsibility for registration;

• (8) responsibility for scheduling;

• (9) responsibility for collecting fees from enrolled students;

• (8) responsibility for hiring, supervision and payment of summer school staff;

• (9) responsibility and procedure for awarding and/or transferring course credit; and

• (10) other factors.

The Supreme Court in Hartzell v. Connell stated that “educational opportunities must be provided to all students without regard to their families’ ability or willingness to pay fees or request special waivers.” in 1998 the California Attorney General addressed the issue of donations, and emphasized that the constitutional concerns are alleviated when the raising of private funds is truly voluntary.

School districts, schools, programs and classes can and do seek and accept donations of funds and property, and this practice is permissible as long as it is truly voluntary and in no way a prerequisite to participation in the program or activity.

Therefore, any statement or explanation related to a donation that could lead a reasonable person to believe the donation may not be truly voluntary is to be avoided. Examples include but are not limited to a specified minimum amount of a donation, a date by which a donation is due, a lesser donation amount if funds are received prior to a certain date. Additionally, any statements or actions that exert explicit or implicit pressure on students or parents to make a donation are to be avoided, and the reason a student or family does not make a donation is not a subject for inquiry – as the Hartzell court said, access to educational programs must not be tied to the willingness to pay a fee or request a waiver, not only the ability to pay a fee or request a waiver.

As with donations, school districts, schools, programs and classes can and do engage in fundraising activities and programs, and this practice is also permissible as long as the raising of funds is voluntary. A student who is asked to but does not raise funds may not be denied participation in an educational activity. A requirement to raise funds in order to participate, even if there is no mandated amount to be raised, is the same as requiring a fee.

The prohibition on the requirement for an individual student to raise money is to be distinguished from a requirement to attend a fundraising event as an element of participation in an activity, in the same way attendance at practices, games, rehearsals or performances are an expected aspect of participation. For example, expecting the members of a vocal ensemble to attend a fundraising concert that is on its calendar of events does not violate the “free school” guarantee, so long as attendance is the only requirement. Another example is when members of an athletic team are expected to help out with a fundraising sale at a Back to School Night or Open House – just as a coach can expect players to attend practices and games, he/she can expect players to attend a fundraising event as long as the requirement is to attend rather than to raise money as a condition of participation in the activity or program.