|October 12, 2011|
Previously published on October 11, 2011
Governor Brown has vetoed AB 165, the bill introduced as part of the tentative settlement agreement in the Doe v. California lawsuit. The lawsuit was filed by the ACLU in September 2010 challenging the legality of certain fees charged to students. The settlement terms included a requirement that both parties engage in good faith efforts to enact specific legislative and regulatory proposals. AB 165 was introduced in January 2011 and sent to the Governor for signature on September 9, 2011.
Impact of the Bill
In his veto message delivered on October 8, 2011, Governor Brown stated that school district compliance with the free school guarantee was essential and districts should be held accountable but that “this bill took the wrong approach”.
The bill would have codified the constitutional prohibition against charging student fees in public schools. In Hartzell v. Connell (1984), the California Supreme Court held that student fees charged for educational activities, including extracurricular activities, violated the free school guarantee of the California Constitution (Art. IX, Sec. 5). The bill included definitions of “educational activity” and “pupil fees” in an attempt to clarify permissible and illegal student fees.
The more problematic aspects of the bill included heightened scrutiny of all student fees inherent in its enforcement mechanisms, such as requiring posting notices in all classrooms, audit and hearing procedures and specific complaint provisions. While fees and charges currently authorized by statute continue to be permissible, the bill could have caused even permissible fees to be subject to review and complaints, requiring school districts to identify and defend the statutory authority for charging fees. The fiscal impact on the state and local districts to implement the legislation was estimated in the tens of millions of dollars while at the same time creating another unfunded reimbursable state mandate.
The bill included enforcement mechanisms essentially designed to 1) review and determine whether unlawful student fees were being charged, and 2) require reimbursement of illegally charged fees to parents/students. The enforcement mechanisms included:
Annual Determination of Unlawful Student Fees: For the 2011-12 fiscal year only, district and county school superintendents and charter school officers would have been required to determine whether any unlawful fees were being charged to students. This determination was to be made between February 1 and March 1, 2012, and would have been limited to student fees charged on or after January 1, 2012. Each year thereafter this determination was to be made within the first 8 weeks after the first student day of school in the current fiscal year. If the superintendent determined that unlawful fees were being charged, he or she would have had to report that determination to the governing board at a public hearing. The report was to have identified the nature of the violation and action taken to provide full reimbursement within 10 weeks of the beginning of the school year in which the determination was made.
Compliance Audits: Compliance with student fees prohibitions would have been added to the list of compliance items in school district the annual audit requirements. The State Controller (in conjunction with Departments of Finance and Education) would have been required to include school fees in audit guides commencing with 2011-12 audits. County school superintendents would have been required to review audit exceptions and determine whether they had been corrected or a plan for correction was made which was to include full reimbursement for unlawful fees. The Superintendent of Public Instruction would have been authorized to withhold a portion of the district, county office or charter school administrative expenditures from future funding allocations until reimbursement is made when an agency had received audit exceptions for charging unlawful student fees two years in a row.
Uniform Complaint Procedures: The Williams Uniform Complaint Procedures would have been extended to include complaints related to student fees. Districts, county school superintendents and charter school officers would have been required to use these procedures to identify, investigate and resolve complaints about student fees, and districts/charter schools would have been required to post notices in each classroom about student fees. Claims for reimbursement of student fees could have been made through the uniform complaint procedures but would have been exempt from government tort claim procedures. School districts, county offices of education and charter schools would have been required to revise their uniform complaint procedures to include these provisions by March 1, 2012.
The Governor’s veto message said these enforcement mechanisms “went too far” by requiring specific complaint, hearing and audit procedures, “even where there have been no complaints, let alone evidence of any violation”.
What This Means for You
School districts, county offices of education and charter schools have gotten a reprieve from the onerous enforcement mechanisms included in AB 165. Nevertheless, districts should continue to review their student fee practices to ensure compliance with current law. The terms of the Doe v. California settlement agreement required adoption of legislation so it appears the case will either be re-opened and litigated or the parties could go back to the drawing board in further settlement discussions. Either way, the issue will remain active.